EXHIBIT 4(dd)
TRANSLATION
This Irrevocable Trust Agreement No. 207357 dated November 21, 2005 is made and
entered into by and among Maxcom Telecomunicaciones, S.A. de C.V., as settlor
and trust beneficiary in the second place (the "Settlor" or "Maxcom"),
represented herein by its attorneys-in-fact Adrian Aguirre Gomez and Jose
Antonio Solbes Alavarez; Banco Mercantil del Norte, S.A., Institucion de Banca
Multipe, Grupo Financiero Banorte, as trust beneficiary in the first place
("Banorte"), represented herein by its attorneys-in fact Antonio Fernandez
Montero and Juan Luis Flores Flores; Ixe Banco, S.A., Institucion de Banca
Multiple, Ixe Grupo Financiero, as trust beneficiary in the first place ("Ixe
Banco" and collectively with Banorte the "Trust Beneficiaries in the First
Place"), represented herein by its attorneys-in-fact Armando Jorge Rivero Laing
and Lourdes Patricia Ferro Bartolo; and HSBC Mexico, S.A., Institucion de Banca
Multiple, Grupo Financiero HSBC, Trust Division, as trustee (the "Trustee"),
represented herein by its trust officers Jorge Garay Espinosa and Gabriela
Ortega de Lascurain, in accordance with the following representations and
clauses:
REPRESENTATIONS
I. Maxcom represents, through its attorneys-in-fact, that:
(a) Maxcom is a corporation duly organized under the laws of the United Mexican
States, originally under the corporate name of Amaritel, S.A. de C.V., as
evidenced in Public Instrument No. 86,116 dated February 28, 1996, which was
granted before Ignacio Soto Borja, Esq., Notary Public No. 129 in and for Mexico
City, Federal District, and registered with the Public Registry of Commerce of
the Federal District under Commercial Folio No. 210,585.
(b) Maxcom changed its corporate name to Maxcom Telecomunicaciones, S.A. de C.V.
on February 9, 1999, as evidenced in Public Instrument No. 55,145 dated February
9, 1999, which was granted before Miguel Alessio Robles, Esq., Notary Public No.
19 in and for the Federal District, and registered on March 16, 1999 with the
Public Registry of Commerce of the Federal District under Commercial Folio No.
210,585.
(c) Maxcom has entered into a number of agreements and contracts with diverse
persons with respect to telecommunications services that Maxcom renders to them
(including local telephone services, long distance telephone services,
connection services, private lines, and Internet services), against payment of
diverse fees, which payment is made on a monthly basis by crediting the checking
accounts opened by Maxcom with the banks referred to in this Agreement.
(d) The rights to receive payments for the services referred to in the preceding
paragraph are free from any liens or encumbrances, except for applicable
provisions of the Credit Agreement (as defined below).
(e) The representatives of Maxcom have been vested with powers enough to execute
this Agreement, as evidenced in Public Instrument No. 57,789 dated
October 14, 2004, which was granted before Carlos Catano Muro Sandoval, Esq.,
Notary Public No. 51 in and for the Federal District, which powers have not been
revoked, limited or modified in any manner whatsoever; and that Maxcom has
obtained all the necessary corporate and governmental approvals and
authorizations, and filed all the necessary documents, in order to execute this
Agreement and perform its obligations hereunder.
(f) The execution of this Agreement by Maxcom and the performance of the
obligations of Maxcom hereunder do not violate (i) its by-laws, (ii) any
applicable law, or (iii) any other agreement of any nature to which Maxcom is a
party (which shall include but not be limited to, that certain: (x) Indenture
dated March 17, 2000 by and between Maxcom and The Bank of New York, (y)
Indenture dated April 29, 2002 by and between Maxcom and The Bank of New York,
and (z) Indenture dated October 8, 2004 by and between Maxcom and The Bank of
New York), or any order or authorization of any nature having binding effects
upon Maxcom.
(g) This Agreement constitutes a legal, valid and binding obligation of Maxcom,
enforceable upon its own terms.
(h) Maxcom has entered into the following Fund Concentration Agreements: (i) RAP
Agreement No. 2688 executed with HSBC Mexico, S.A., Institucion de Banca
Multiple, Grupo Financiero HSBC (the "HSBC RAP Agreement"), (ii) SEP B Agreement
No. 088514 executed with Banco Nacional de Mexico, S.A., Institucion de Banca
Multiple, Grupo Financiero Banamex (the "Banamex SEP Agreement"), and (iii) CIE
Agreement No. 9210-7 executed with BBVA Bancomer, Institucion de Banca Multiple,
Grupo Financiero (the "Bancomer CIE Agreement"); pursuant to which the
Collection Accounts are being handled, provided that any payments made to Maxcom
in connection with the telecommunication services rendered by Maxcom are
received in such accounts, with the authorization of Maxcom,.
(i) This Irrevocable Trust Agreement is created by Maxcom in favor of Trust
Beneficiaries in the First Place as an alternative source of payment for the
obligations of Maxcom derived from that certain: (i) Derivatives Agreement dated
July 7, 2005 executed with Ixe Banco (the "Derivatives Agreement"), (ii) Credit
Agreement dated April 13, 2005 executed with Ixe Banco (the "First Ixe Credit
Agreement"), (iii) Credit Agreement dated October 24, 2005 executed with Ixe
Banco (the "Second Ixe Credit Agreement"), and (iv) Credit Agreement dated
October 21, 2005 executed with Banorte (the "Banorte Credit Agreement"), all of
which, as amended from time to time, shall be collectively referred to as the
"Credit Agreements". A copy of each of Credit Agreement is enclosed to this
Agreement as Exhibit A1, A2, A3 and A4, respectively.
(j) Maxcom desires to transfer to the trust assets of this trust initially the
collection proceeds obtained from the Banamex SEP Agreement and the Bancomer CIE
Agreement, and later, upon execution of this Agreement, the collection proceeds
obtained from the HSBC RAP Agreement, upon the terms of this Agreement, by means
of a unilateral statement of will to be made by
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Maxcom under this Agreement and notified in writing to Trustee and Trust
Beneficiaries in the First Place.
(k) Maxcom is engaged mainly in the telecommunications business and registered
with the Federal Taxpayer Registry under No.: MTE-960228-KT0.
(l) In accordance with Article 115 of the Credit Institutions Act (Ley de
Instituciones de Credito), Maxcom represents under oath that the assets and
funds initially transferred to the trust assets of this trust, and any other to
be later transferred for accomplishing the purpose of the trust were obtained
through no unlawful action; and therefore, that Maxcom agrees that Trustee shall
be entitled to verify such circumstance or provide the competent authorities
with any information required by them.
(m) Trustee has explained to Maxcom, and Maxcom is aware of, the content and
scope of Article 106, Paragraph XIX, Subparagraph b), of the Credit Institutions
Act (Ley de Instituciones de Credito), and any other applicable provisions
regulating trust transactions of commercial banks issued by the Central Bank of
Mexico (Banco de Mexico).
(n) Trustee invited and suggested Maxcom, prior to the execution of this
Agreement, to obtain from a professional or firm elected by Maxcom counseling
and support relating to the scope, consequences, actions, implications and in
general legal and tax matters directly or indirectly related to this Agreement,
as well as for the negotiation and evaluation of legal risks of the final
wording of the agreement to be executed, since Trustee shall not be liable for
such circumstances. Thus, Trustee does not warrantee that the tax structure of
the final Trust Agreement shall not be modified or amended by subsequent
amendments to tax laws and effects that may be amended in the future.
(o) By executing this Agreement, Maxcom expressly and irrevocably authorizes
Trustee, in accordance with Article 28 of the Credit Bureau Act (Ley para
Regular las Sociedades de Informacion Crediticia), to consult, at its cost, as
of the execution date of this Agreement and from time to time during the term
hereof, credit bureaus that operate in Mexico in respect of Settlor.
(p) The assets that Maxcom transfers to the trust assets of this Trust have been
obtained through no unlawful act, and are the result of activities carried out
in accordance with applicable laws; and that there is no connection whatsoever
between the origin, source or destiny of the assets transferred to the trust
assets of this trust, or any yields obtained from the same, and unlawful
activities or activities to support terrorism
II. Banorte represents, through its attorneys-in-fact, that:
(a) Banorte is a commercial bank duly organized and validly existing under the
laws of the United States of Mexico, originally under the corporate name of
Banco Mercantil del Norte, S.A., Institucion de Banca Multiple, Grupo Financiero
Banorte, as evidenced in Public Instrument No. 34,991 dated July 30, 2002, which
was granted before Primitivo Carranza Acosta, Esq., Notary
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Public replacing Javier Garcia Avila, Esq., Notary Public No. 72 in and for the
City of Monterrey, Nuevo Leon, Mexico, and registered with the Public Registry
of Commerce of the Federal District.
(b) The representatives of Banorte have been vested with powers enough to
execute this Agreement, as evidenced in Public Instruments No. 34,491 dated July
30, 2002 and 38,383 dated June 4, 2004, which were granted before Primitivo
Carranza Acosta, Esq., Notary Public replacing Javier Garcia Avila, Esq., Notary
Public No. 72 and for Federal Property Assets, and registered with the Public
Registry of Commerce, which powers have not been revoked, modified or limited in
any manner whatsoever.
(c) Banorte and Maxcom entered into that certain Banorte Credit Agreement dated
October 21, 2005, as referred to in Representation I, Paragraph i), above.
(d) Banorte appears to execute this Agreement in order to grant its consent to
both its designation as Trust Beneficiary in the First Place, and the terms and
conditions set forth herein.
(e) Trustee has explained to Banorte, and Banorte is aware of, the content and
scope of Article 106, Paragraph XIX, Subparagraph b), of the Credit Institutions
Act (Ley de Instituciones de Credito), and any other applicable provisions
regulating the trust transactions of commercial banks issued by the Central Bank
of Mexico (Banco de Mexico).
(f) Trustee invited and suggested Banorte, prior to the execution of this
Agreement, to obtain from a professional or firm elected by Banorte counseling
and support relating to the scope, consequences, actions, implications and in
general legal and tax matters directly or indirectly related to this Agreement,
as well as for the negotiation and evaluation of legal risks of the final
wording of the agreement to be executed, since Trustee shall not be liable for
such circumstances. Thus, Trustee does not warrantee that the tax structure of
the final Trust Agreement shall not be modified or amended by subsequent
amendments to tax laws and effects that may be amended in the future.
III. Ixe Banco represents, through their attorneys-in-fact, that:
(a) Ixe Banco is a commercial bank duly organized and validly existing under the
laws of the United Mexican States; and that it changed its corporate name from
Banco Fimsa, S.A. de C.V. to Ixe Banco, S.A., Institucion de Banca Multiple, Ixe
Grupo Financiero, as evidenced in Public Instrument No. 33,450 dated May 3,
1995, which was granted before Roberto Courtade Bevilacqua, Esq., Notary Public
No. 132 in and for the Federal District, and registered with the Public Registry
of Commerce of the Federal District under Commercial Folio No. 193,508.
(b) The representatives of Ixe Banco have been vested with powers enough to
execute this Agreement, as evidenced in Public Instruments Nos. 7,320 dated
October 31, 2000 and 107,346 dated March 4, 2005, which were granted before
Mario Evaristo Vivanco Paredes, Esq., Notary Public No. 67 in and for the
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Federal District, registered with the Public Registry of Commerce of the Federal
District under Commercial Folio No. 193,508 and Cecilio Gonzalez Marquez, Esq.,
Notary Public No. 151 in and for the Federal District, which has not been
registered with the aforementioned registry, which powers have not been revoked,
modified or limited in any manner whatsoever.
(c) Ixe Banco and Maxcom entered into that certain First Ixe Credit Agreement
dated April 13, 2005, as referred to in Representation I, Paragraph i), above.
(d) Ixe Banco and Maxcom entered into that certain Derivatives Agreement dated
July 7, 2005, as referred to in Representation I, Paragraph h), above.
(e) Ixe Banco and Maxcom entered into that certain Second Ixe Credit Agreement
dated October 24, 2005, as referred to in Representation I, Paragraph i), above.
(f) Ixe Banco appears to execute this Agreement in order to grant its consent to
both its designation as Trust Beneficiary in the First Place, and the terms and
conditions set forth herein.
(g) Trustee has explained to Ixe Banco, and Ixe Banco is aware of, the content
and scope of Article 106, Paragraph XIX, Subparagraph b), of the Credit
Institutions Act (Ley de Instituciones de Credito), and any other applicable
provisions regulating the trust transactions of commercial banks issued by the
Central Bank of Mexico (Banco de Mexico).
(h) Trustee invited and suggested Ixe Banco, prior to the execution of this
Agreement, to obtain from a professional or firm elected by Ixe Banco counseling
and support relating to the scope, consequences, actions, implications and in
general legal and tax matters directly or indirectly related to this Agreement,
as well as for the negotiation and evaluation of legal risks of the final
wording of the agreement to be executed, since Trustee shall not be liable for
such circumstances. Thus, Trustee does not warrantee that the tax structure of
the final Trust Agreement shall not be modified or amended by subsequent
amendments to tax laws and effects that may be amended in the future.
IV. Trustee represents, through its trust officers, that:
(a) Trustee is a corporation duly organized under the laws of Mexico, as
evidenced in the compilation of its by-laws contained in Public Instrument No.
264,185 dated November 10, 1995, which was granted before Georgina Schila
Olivera Gonzalez, Esq., Notary Public No. 207 in and for Mexico City, Federal
District; that Trustee changed its corporate name from Banco internacional, S.A.
to HSBC Mexico, S.A. by means of Public Instrument No. 278,881 dated December
16, 2003, which was granted before Tomas Lozano Molina, Esq., Notary Public No.
10 in and for the Federal District; and that Trustee is duly authorized to carry
out trust transactions.
(b) Trustee agrees to act as trustee under this Agreement.
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(c) Trust officers of HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo
Financiero HSBC, have been vested with powers enough to execute this Agreement,
which powers have not been revoked, modified or limited in any manner
whatsoever, as evidenced in Public Instruments Nos. 289,531 and 289,532 dated
July 29, 2004, which were granted before Angel Gilberto Adame Lopez, Esq.,
Notary Public No. 233 in and for the Federal District.
(d) In accordance with Article 106, Paragraph XIX, Subparagraph b), of the
Credit Institutions Act (Ley DE Instituciones de Credito), Trustee has informed
and explained to the other parties the legal value and consequences of such
subparagraph which verbatim provides as follows:
"ARTICLE 106.- Commercial banks shall be prevented from being liable vis-a-vis
settlers or principals for any default of borrowers in respect of the credits
granted or to issuers in respect of securities acquired, gross negligence
excluded, as provided in the final part of article 391 of the Negotiable
Instruments and Credit Transactions Act, or warrantee the reception of yields
from funds whose investment is entrusted to them.
Should any credit remain outstanding upon expiration of the trust or agency
created for granting the same, the bank shall transfer the same to settlor or
trust beneficiary, as the case may be, or to the respective principal,
refraining from paying the same.
Any agreement providing for anything contrary to the two preceding paragraphs
shall have no legal effects whatsoever.
The aforementioned paragraphs and a statement of trustee confirming that it has
informed their content to the persons that transferred to its any assets or
rights for trust purposes shall be inserted in the trust or agency agreements."
Trustee further informs to settlor and trust beneficiaries in the first place
the following bans to which Trustee is subject, which were issued by the Central
Bank of Mexico (Banco DE Mexico):
"In executing Trust Agreements, Trustees shall be prevented from:
a) Charging to the trust assets any prices other than such prices agreed to in
respect of the respective transactions.
b) Warranting the obtainment of yields or prices for the funds whose investment
is entrusted to them.
c) Carrying out transactions subject to conditions and terms contrary to its
internal policies and sound financial customary practices.
d) Carrying out transactions with securities, negotiable instruments or other
financial instruments that do not meet the specifications agreed to in the
corresponding trust agreement.
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e) Creating Trusts not authorized in accordance with applicable laws and
regulations.
f) Paying, out of the trust assets, any penalty imposed on them by any
authority."
NOW, THEREFORE, in consideration of the aforementioned representations, the
parties agree to grant the following:
CLAUSES
1. DEFINITIONS.
Capitalized terms utilized in this Agreement shall have the meaning ascribed to
them in this clause or in any other part of the Agreement (which shall apply to
the singular or plural forms thereof):
"Banorte Credit Agreement" shall mean the credit agreement referred to in
Representation I, paragraph i), of this Agreement.
"Business Day" shall mean any business day on which banks are open, as
authorized by the National Banking and Securities Commission (Comision Nacional
Bancaria y de Valores).
"Collection Accounts" shall mean the checking accounts opened by Maxcom at the
Collection Banks pursuant to the Fund Concentration Agreements, where payments
made in favor of Maxcom are received, with the authorization of Maxcom, for the
telecommunications services rendered by Maxcom.
"Collection Banks" shall mean initially Banco Nacional de Mexico, S.A.,
Institucion de Banca Multiple, Grupo Financiero Banamex, and BBVA Bancomer,
S.A., Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer, and later,
upon execution of this Agreement, HSBC Mexico, S.A., Institucion de Banca
Multiple, Grupo Financiero, shall become a Collection Bank, in accordance with
Clause 2 of this Agreement (where Maxcom has opened Collection Accounts under
the Fund Concentration Agreements, which banks are authorized by Maxcom to
receive payments in favor of Maxcom derived from the telecommunication services
rendered by Maxcom to its clients), as well as any other banks in which accounts
are open or incorporated in accordance with this Agreement.
"Collection Proceeds" shall mean any present and future proceeds, as well as any
right to receive the same, of Maxcom credited to the Collection Accounts handled
under the Fund Concentration Agreements and transferred to Trustee by the
Collection Bank pursuant to this Agreement, in accordance with Clause 11 of this
Trust, which proceeds arise from payments made by customers of Maxcom to Maxcom,
which shall include but not be limited to, any proceeds received, and to be
received, from local telephone services, long telephone services, connection
services, private lines, Internet services and lease agreements for circuits
given for the rendition of telephone services.
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"Credit Agreements" shall mean collectively the First Ixe Credit Agreement, the
Second Ixe Credit Agreement and the Banorte Credit Agreement.
"Derivatives Agreement" shall mean the derivatives agreement referred to in
Representation I, paragraph i), of this Agreement.
"Fund Concentration Agreements" shall mean the Fund Concentration Agreements or
Contracts executed by Maxcom and the Collection Banks as follows:
1. Banamex SEP Agreement, pursuant to which the Collection Accounts opened by
Maxcom with Banco Nacional de Mexico, S.A., Institucion de Banca Multiple, Grupo
Financiero Banamex, are handled.
2. Bancomer CIE Agreement, pursuant to which the Collection Accounts opened by
Maxcom with BBVA Bancomer, Institucion de Banca Multiple, Grupo Financiero BBVA
Bancomer, are handled.
3. HSBC RAP Agreement, pursuant to which the Collection Accounts opened by
Maxcom with HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero
HSBC, are handled.
Any cash amounts existing in, or transferred in the future to, such Collection
Accounts (the "Collection Proceeds") received under the Banamex SEP Agreement
and the Bancomer CIE Agreement are transferred by Maxcom in accordance with
Clause 1 of this Agreement as initial contribution, and shall be managed by
Trustee in accordance with this Agreement, as well as the Collection Proceeds
with the corresponding right to receive the same under the HSBC RAP Agreement to
be transferred by Maxcom to the trust assets of this Trust Agreement upon
execution thereof, in accordance with Clause 1 of this Agreement, by means of a
unilateral statement of will to be made under this Agreement and notified in
writing to Trustee and Trust Beneficiaries in the First Place.
"Event of Default" shall mean any event of default attributable to Maxcom in
respect of its payment obligations under each of the Credit Agreements, as well
as any other default attributable to Maxcom in respect of the obligations
derived from this Agreement.
"First Ixe Credit Agreement" shall mean the credit agreement referred to in
Representation I, paragraph i), of this Agreement.
"Installment" shall mean the payment of principal, interest and accessories, if
any, corresponding to one full installment under each of the Credit Agreements.
"Installment Amount" shall mean the amount equal to the amount to be paid in
connection with the Installment under each of the Agreements, as applicable, in
accordance with Clause 8 of this Agreement.
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"Guaranteed Obligations" shall mean all the obligations of Maxcom derived from
the Credit Agreements.
"Peso" shall mean the lawful currency of the United Mexican States.
"Reserve Amount" shall mean an amount equal to payment of one (1) Installment,
which may be increased upon the terms of this Agreement, under each of the
Credit Agreements, that Maxcom shall at all times maintain as part of the Trust
Assets in accordance with Clause 8 of this Agreement, and the payment chart that
forms part of each of the Credit Agreements, which shall be duly notified and
provided to Trustee by Trust Beneficiaries in the First Place.
"Second Ixe Credit Agreement" shall mean the credit agreement referred to in
Representation I, paragraph i), of this Agreement.
"Settlor" shall mean Maxcom Telecomunicaciones, S.A. de C.V.
"SPEI" means the Inter-bank Electronic Payment System managed by the Central
Bank of Mexico (Banco de Mexico).
"Trust" shall mean the trust created by means of this irrevocable trust
agreement.
"Trust Account" shall mean Account No. 6200424804 opened by Trustee
(internationally called by Trustee as "Bridge Account") to receive the
Collection Proceeds from the Collection Bank, whose funds constitute the
Collection Accounts derived from the Fund Concentration Agreements.
"Trust Assets" shall mean the assets referred to in Clause 4 of this Agreement.
"Trust Beneficiary in the First Place" shall collectively mean Banco Mercantil
del Norte, S.A., Institucion de Banca Multiple, Grupo Financiero Banorte, and
Ixe Banco, S.A., Institucion de Banca Multiple, Ixe Grupo Financiero.
"Trust Beneficiary in the Second Place" shall mean Maxcom Telecomunicaciones,
S.A. de C.V.
"Trustee" shall mean HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo
Financiero HSBC, Trust Division, or any successor or assignee thereof.
2. TRUST.
(a) Settlor hereby transfers to the Trust Assets of this Trust: (i) the amount
of one thousand Pesos ($1,000) for creating the same as initial contribution,
and (ii) the Reserve Amount, provided that in respect of the latter, Trust
Beneficiaries in the First Place hereby notify to Trustee the amount of such
Reserve Amount, in accordance with Clause 8 below.
(b) Settlor hereby transfers to Trustee, in order to create the same, any
present and future Collection Proceeds deposited to the Collection Accounts,
which
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shall be transferred to the trust assets (like the amount referred to in
paragraph (a) above in the checking account opened by Trustee for the purposes
of this Trust at HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo
Financiero HSBC, Account No. 6200424804 (the "Bridge Account" or the "Trust
Account")), as well as all the other assets referred to in Clause 4, entrusting
to Trustee the accomplishment of the purposes of this Trust. Trustee hereby
accepts the designation hereby made and agrees to perform its duties and
obligations in a proper manner.
Settlor desires to utilize this Trust as an alternative payment device for
timely and properly performing each and every of the credits and other amounts,
debts and obligations of Maxcom to each and every of Trust Beneficiaries in the
First Place derived from the Credit Agreements.
Settlor engages Trustee, and Trustee agrees, to ensure that any Collection
Proceeds deposited in the Collection Accounts under the Banamex SEP Agreement
and the Bancomer CIE Agreement executed with the Collection Banks named Banco
Nacional de Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero
Banamex, and BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo
Financiero BBVA Bancomer, respectively, shall be transferred to the trust assets
of this Trust, and that the respective Collection Bank shall deposit, subject to
the terms and conditions set forth in Clause 11 hereof, the Collection Proceeds
to the Trust Account. Settlor shall take any necessary actions, whether
administrative or judicial, as required by the Collection Banks in order no
notify that the Collection Proceeds shall form part of the trust assets and be
able to transfer such proceeds to the Trust Account in accordance with the
aforementioned clause, being obliged to prove to Trustee the giving of such
notice in due course. By signing this Trust, Trust Beneficiaries in the First
Place hereby acknowledge receipt of such notice. Settlor shall copy Trust
Beneficiaries in the First Place and Trustee on any notice given to the
Collection Banks.
Settlor further engages Trustee, and Trustee further agrees, to receive as
initial contribution to this Trust, in a later act, by means of a unilateral
statement of will to be informed to Trustee and Trust Beneficiaries in the First
Place, the Collection Proceeds deposited in the Collection Accounts under the
HSBC RAP Agreement, ensuring that the Collection Bank under this Collection
Account shall deposit the Collection Proceeds in the Trust Account once Trustee
receives from Settlor a notice, by means of a written unilateral statement of
will, informing that such Collection Proceeds form part of the Trust Assets of
this Trust. Settlor shall copy Trust Beneficiaries in the First Place or
Trustee, as applicable, on such notice.
(c) It is expressly agreed that Settlor may not remove or substitute any of the
Collection Banks or designate additional Collection Banks without the prior
written consent of Trust Beneficiaries in the First Place and a prior notice
given to Trustee. If Settlor designates an additional Collection Bank or
substitutes any of the Collection Banks without the prior written consent of
Trust Beneficiaries in the First Place, it shall be deemed that an Event of
Default has occurred and
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Trustee shall act in conformity with the instructions given by Trust
Beneficiaries in the First Place.
Trustee hereby provides Settlor with an inventory of the assets, in accordance
with Clause 4 below.
3. PARTIES TO THE TRUST.
(a) Following are the parties to the Trust:
SETTLOR AND TRUST BENEFICIARY IN THE SECOND PLACE:
Maxcom Telecomunicaciones, S.A. de C.V.
TRUST BENEFICIARIES IN THE FIRST PLACE
Banco Mercantil del Norte, S.A., Institucion de Banca Multiple, Grupo Financiero
Banorte; and
Ixe Banco, S.A., Institucion de Banca Multiple, Ixe Grupo Financiero
Both of them being Trust Beneficiaries in the First Place pari passu, in
accordance with Clause 5, paragraph (e), below.
TRUSTEE:
HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero HSBC, Trust
Division
(b) Settlor, in its capacity as Trust Beneficiary in the Second Place, shall be
entitled to receive any remaining portion of the Trust Assets once each and
every of the Guaranteed Obligations are performed upon the terms of the Credit
Agreements, as notified to Trustee by Trust Beneficiaries in the First Place.
(c) Any successors, assignees or other parties replacing Trustee or Trust
Beneficiaries in the First Place upon the terms set forth in this Trust and the
Credit Agreements, as the case may be, shall be deemed to be "Trustee" and
"Trust Beneficiaries in the First Place" for purposes of this Agreement.
4. TRUST ASSETS.
Trust Assets shall be comprised of:
(a) Any Collection Proceeds deposited in the Collection Accounts under the Fund
Concentration Agreements that, with the prior authorization of Maxcom, are
received as payments made to it for the telecommunication services rendered,
whether the same are transferred to the trust assets on the execution date of
this Agreement or later.
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Copies of the Fund Concentration Agreements are enclosed to this Agreement
marked as Exhibits B, B1 and B2.
(b) Any investment instruments acquired by Trustee with the Trust Assets,
interest and other yields obtained in respect of the Trust Assets or any other
investments made by Trustee in accordance with this Agreement; and
(c) Any other amounts, collection rights under other agreements or interest
accrued thereon transferred to Trustee or becoming part of this Trust by
operation of law.
Any contributions received by Trustee through Settlor by means of negotiable
instrument shall be deemed duly received subject to the actual collection
thereof in accordance with Article 7 and other applicable provisions of the
Negotiable Instruments and Credit Transactions Act ("NICTA").
The description of the assets subject matter of this Agreement made in this
clause is deemed an inventory thereof made by the Parties hereto, for any legal
purposes that may apply.
Consequently, Settlor and Trust Beneficiaries in the First Place hereby state to
be in agreement with the provision of the list setting forth the assets that
form part of the Trust Assets, since the same have been described in this
clause, and therefore, such asset list shall be deemed to be the inventory
received in a satisfactory manner by them.
5. PURPOSE OF THE TRUST.
The purpose of this Trust is to create an alternative means of payment by
creating an independent patrimony that may enable Settlor to perform the
Guaranteed Obligations to be performed by it in favor of each of the Trust
Beneficiaries in the First Place pro-rata, based on the amounts owed to them
under the corresponding Credit Agreements, for which purpose, Trustee shall:
(a) Maintain title to the Trust Assets and allocate the same for accomplishing
the purposes of this Trust.
(b) Receive the Collection Proceeds transferred by the Collection Banks to the
Trust Account in accordance with Clause 11 below, or by means of diverse payment
means applicable to each of the Collection Banks, as the case may be.
(c) Manage the Collection Proceeds, provided that Trustee, Settlor and Trust
Beneficiary in the Second Place may create no lien or encumbrance on the Trust
Assets, other than such liens or encumbrances expressly permitted under this
Agreement. Additionally, it is agreed that if any penalty or sanction imposed by
any authority on Trustee in connection with the Trust Assets or under this
Agreement needs to be paid, Settlor shall provide Trustee with the necessary
funds to pay the same.
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(d) Invest and reinvest any amounts derived from the Collection Proceeds, in
accordance with Clause 9 of this Trust, as long as the same are not allocated in
accordance with paragraphs (e) and (f) below.
(e) Deliver, up to the total amount of the Trust Assets, any amount
corresponding to the payment of the Guaranteed Obligations, in whole or in part,
in accordance with the Credit Agreements, following in any case the instructions
contained in the duly signed written notice given to it by Trust Beneficiaries
in the First Place.
In order to accomplish such purpose, Trustee shall accumulate the following
amounts in the Trust Account, on a daily basis and during the first fifteen (15)
days of each month: (1) sixty percent (60%) of the Collection Proceeds received
by it to be utilized for paying the Installments, pro-rata and on a pari passu
basis, among (i) the Banorte Credit Agreement, and (ii) the First Ixe Credit
Agreement and the Second Ixe Credit Agreement, and (2) forty percent (40%) of
the Collection Proceeds shall be utilized to pay any Installment in favor of Ixe
Banco to other bank account indicated by it for such purpose (in order to
perform the obligations derived from the Derivatives Agreement); provided that
the remaining amounts, if any, shall be sent to Settlor via SPEI on a daily
basis, in accordance with this Agreement; provided further that Trustee shall be
subject to no liability whatsoever in case the amounts are not enough to pay
such amounts in full, since Trustee shall be liable solely in respect of the
total amount of the Trust Assets.
If the necessary amounts that Trustee shall accumulate in the Trust Account to
pay the corresponding Installments are accumulated in full before the fifteenth
(15th) day of each month, Trustee shall transfer to Settlor, via SPEI, as
provided in this Agreement, one hundred percent (100%) of the Collection
Proceeds received in the Trust Account as of the day following the date on which
such amounts are accumulated; provided that any received amounts held by it
shall be transferred to Trust Beneficiaries in the First Place on the fifteenth
(15th) day of such month, in accordance with the preceding paragraph.
If the Collection Proceeds are not enough to pay the Installments under the
Credit Agreements on the sixteenth (16th) calendar day of each month or on the
immediately succeeding Business Day, Trustee shall withhold in the Trust Account
one hundred percent (100%) of the Collection Proceeds received in the Collection
Accounts from such day until the time in which enough funds exist in order to
pay the Installments under the Credit Agreements. Once such Installments are
paid, Trustee shall release one hundred percent (100%) of the remaining
Collection Proceeds to Settlor by means of a transfer thereof via SPEI during
the next days and until the commencement of the next month.
(f) Allocate any amounts forming part of the Trust Assets in accordance with
Clause 8, or, if no express provisions exist, in accordance with the written
instructions received from Settlor, provided that the same do not constitute a
violation of the purpose of this Trust.
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(g) If the Collection Proceeds are not enough to make the payments referred to
in the preceding paragraph, upon exhausting the Reserve Amount in accordance
with Clause 8 of this Agreement (provided that the same is not restored by
Settlor), Trustee shall give a written notice to Settlor requesting payment of
any outstanding Installments that Maxcom must make under the Credit Agreements,
as applicable, so that Maxcom may deposit the necessary amounts to perform the
Guaranteed Obligations within a 3-Business-Day period from the reception of such
written notice.
(h) If Trustee receives a notice informing the existence and continuation of an
Event of Default from any of the Trust Beneficiaries in the First Place, Trustee
shall allocate the liquid portion of the Trust Assets in accordance with this
Agreement.
(i) Upon performance in full of each and every of the Guaranteed Obligations,
and payment of any trust fees or other due amounts under this Agreement, this
Trust shall be terminated in accordance with Clause 20 below, in which case
Trustee shall return to Settlor any amounts or funds then forming part of the
Trust Assets of the Trust, delivering to it, in its capacity as Trust
Beneficiary in the Second Place, any amount held by Trustee under this
Agreement. Furthermore, Trustee shall transfer to Settlor any other right or
asset then forming part of the Trust Assets.
Any delivery of remaining funds or assets made in accordance with this Agreement
shall be made by Trustee to Trust Beneficiary in the Second Place no later than
the Business Day immediately succeeding the date on which Trustee learns that
the liquid funds are available at the Trust in the account opened hereunder;
provided that if Trust Beneficiary in the Second Place requests a delivery of
the funds in any account not opened with Grupo Financiero HSBC in Mexico such
delivery shall be made within a 2-Business-Day period from the date on which the
liquid funds are available, by means of a wire transfer thereof, as agreed by
the parties, in which case, any cost thereof shall be borne by the Trust Assets
of the Trust or Settlor, as indicated by Settlor at the time in which the Trust
is terminated.
6. [INTENTIONALLY LEFT IN BLANK]
7. RESERVE AMOUNT AND INSTALLMENTS.
(a) As long as no Event of Default occurs in respect of the Guaranteed
Obligations, Trustee shall at all times maintain in the Trust Assets of the
Trust an amount equal to one (1) Installment under the Credit Agreements (the
"Reserve Amount"). In order to identify the Reserve Amount, Trustee shall record
the same in a sub-account of the Trust Assets, which shall form part of the
same, so that the same may be separated from the principal funds of the Trust
being utilized, among other things, to create on a monthly basis and from time
to time, the Installment Amount to be paid to the Trust Beneficiaries in the
First Place.
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If the Collection Proceeds are not enough to pay the Installments, the Reserve
Amount shall be allocated to pay the Guaranteed Obligations up to the total
Reserve Amount existing at that time in the Trust Assets.
The Reserve Amount may be increased, upon request of any of the Trust
Beneficiaries in the First Place, by giving a prior notice to Settlor in case
the Collection Proceeds decrease, on a quarterly basis, provided that such
decrease shall be determined by comparing it to the same quarter of the
immediately preceding year, as received in the Collection Accounts in accordance
with the following chart, giving the corresponding instructions to Trustee:
Decrease of Collection Proceeds Reserve Amount
(on a quarterly basis) (reference) (Installments equivalent)
Five percent (5%) Two (2) months
Ten percent (10%) Three (3) months
Fifteen percent (15%) Six (6) months
Twenty percent (20%) Trustee withholds any excess
In this case, Trustee shall withhold the liquid portion of the trust assets in
its entirety in the Trust Account until accumulating an amount equal to the
necessary Reserve Amount, provided that Settlor hereby agrees to verify any
decrease of the Collection Proceeds in order to create and maintain the Reserve
Amount, informing the necessary to Trustee, so that it may act in accordance
with paragraph (b) below.
(b) If the quarterly collection decreases in accordance with the preceding
paragraph, Trustee shall withhold the liquid portion of the trust assets in its
entirety in the Trust Account until accumulating an amount equal to the
necessary Reserve Amount in accordance with the aforementioned chart (the
"Installment Amount"), as long as necessary, in order to have the Installment
Amount referred to in Clause 5, paragraph (e), above.
Following is the method to be utilized to calculate the corresponding Reserve
Amount: (i) The quarters to be taken into account are January-March, April-June,
July-September, and October-December; (ii) Settlor shall evidence, by means of
the account statements of the Trust for the months forming part of the quarter,
no lather than the fifteenth (15th) day of the first month following the closing
of such quarter, that the result of adding these three months is not lower than
the percentage obtained from adding the three months forming part of the same
quarter in the immediately preceding year, in accordance with the aforementioned
chart; and (iii) if lower, in accordance with the chart set forth in the
preceding paragraph, the Reserve Amount to be allocated as of the first day of
the second month following each quarter being analyzed shall be calculated and
informed to Trustee, so that Trustee may allocate the necessary amounts obtained
from the Collection Proceeds to maintain the Reserve Amount, in the shortage
amount, in accordance with the information provided to it by Settlor and based
upon the calculations made by it in accordance with this clause.
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Trustee shall deliver to Trust Beneficiaries in the First Place, as applicable,
no later than 12:00 p.m. on the Business Day in which Settlor is to pay the
Installments under the Credit Agreements, the Installment Amount by means of a
deposit via SPEI to the account indicated for such purposes by each of the Trust
Beneficiaries in the First Place, as indicated in writing to Trustee no less
than five (5) Business Days before the payment date of the Installments,
provided that any instructions relating to the accounts where the Installments
are to be deposited shall remain effective, unless otherwise indicated by the
corresponding Trust Beneficiaries in the First Place. Upon creating the
Installment Amount in accordance with the preceding paragraphs, provided that
the Reserve Amount further exists, Trust Beneficiary in the Second Place may
freely dispose the funds forming part of the Trust Assets of the Trust in
accordance with this Agreement.
(c) Subject to the terms and conditions of this Agreement, as long as no Event
of Default exists in respect of the Guaranteed Obligations, Trustee shall
deposit to Trust Beneficiary in the Second Place, on a daily basis, to the
Account No. 4014175848 (CLABE: 0211800401417584844) of the latter at HSBC
Mexico, S.A., Institucion de Banca Multiple, Grupo Financiero HSBC, or any other
bank account timely indicated in writing to Trustee by Trust Beneficiary in the
Second Place, any cash deposited in the Trust Account in excess of the Reserve
Amount, until 12:00 p.m. of each Business Day, provided that Trustee has enough
funds to cover the Installment Amount.
9. INVESTMENT.
Trustee shall invest any amounts in cash forming part of the Trust Assets, in
the same currency in which the funds are received, unless otherwise indicated,
in accordance with the written instructions given by Settlor in any of the
financial entities forming part of Grupo Financiero HSBC, in such amounts and
schedules of the corresponding entities. If no express instruction is given,
Trustee shall invest the funds in Pesos through the Money Desk, in Debt
Instruments issued by the Federal Government, under daily liquidity periods. If
the funds of the Trust are not enough to invest in such type of investment
instruments, Trustee shall invest in Mutual Funds denominated D9 (LEGAL
ENTITIES) duly authorized to operate as mutual fund by the Ministry of Finance
and Public Credit, under the diversified investment regime, as established in
its policies for investment in, acquisition of and selection of securities, in
accordance with the parameters established in applicable provisions, ensuring a
risk diversification of the portfolio. The valuation price together with any
applied referential, shall be informed to the public on a daily basis, by means
of the Bulletin of the Mexican Stock Exchange published in a newspaper with
national circulation, without prejudice to any other publication by the mutual
fund. The Mutual Fund shall make available to the clients, at the premises of
the Managing Company and the Dealers of the same Financial Group, a report on
the securities portfolio that forms part of its assets, which report shall be
maintained available in writing, the last Business Day of each week for
consultation by any investors requesting so. This report shall be updated on the
Business Day immediately preceding the respective date. The counterparty
carrying out the transaction shall need to have an "AA" or higher rating, or its
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equivalent, always higher than an investment grade rating, as established by
rating agencies Standard & Poors, Moody's Investors Service and/or Fitch Mexico,
addressed in Mexico, and this Mutual Fund is, as applicable, rated by Covaf,
S.A. de C.V., provided that funds denominated in US dollars, based upon
investment periods, in Interterms (amounts equal to or higher than five thousand
US dollars), with a 30-day liquidity, or Credit Balance Account (amounts equal
to or higher than seventy five thousand US dollars), with a daily liquidity.
Trustee shall only be obligated to make investments if the Trust Assets of the
Trust have enough funds, in the required minimum amounts to make investments in
accordance with the provisions effective at the time in which the corresponding
investment is made, in accordance with this Agreement. If no enough funds exist,
it shall be deemed that Trustee has been instructed to maintain any funds at
sight.
If any foreign exchange transactions are required or instructed to accomplish
the purposes of this Trust and/or the investments thereof (being understood as
the purchase and/or sale of foreign currency and/or the conversion of Pesos into
other foreign currencies), these transactions shall be carried out by Trustee at
the exchange rate effective for transactions with the public at HSBC Mexico,
S.A., Institucion de Banca Multiple, Grupo Financiero HSBC, at the time in which
the transaction is made. In no circumstance shall Trustee be liable for any loss
or detriment resulting from foreign exchange differences accrued in respect of
the Trust Assets of the Trust.
Any purchase of securities or investment instruments shall be subject to the
schedules, availability and liquidity thereof and the market conditions existing
at the time in which Trustee carries out the transaction. Settlor hereby
expressly releases Trustee from any liability arising from the purchase of
securities or investment instruments under this Trust, as a consequence of any
investments made by Trustee in accordance with this Trust.
Any investment and/or sale instructions shall be at all times addressed to
Trustee. In no event shall the financial intermediary in charge of making the
investment have discretionary powers.
For purposes of the investment referred to in this clause, Trustee shall abide
by any legal or administrative provisions regulating investments of the funds
subject matter of trusts.
Any corporate and economic rights shall be exercised in accordance with the
investment agreement executed by Trustee in making the investments under this
Agreement.
Trustee may engage third parties, whether individuals or legal entities, to
exercise the corporate rights vested by the securities acquired under this
Trust. If Trustee directly or indirectly attends a shareholders meetings or a
meeting of holders of debentures, certificates of participation or any other
securities, Trustee shall cast its vote in the same way in which the majority
shareholders
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cast their votes, unless if the respective resolution contravenes the purposes
of this Trust.
If Trustee, in exercising the economic or corporate rights vested by the
securities acquired under this Trustee, becomes compelled to exercise any
optional right or make any payment, Trustee shall inform the same to Settlor in
writing, requesting a precise instruction and, as applicable, the funds
necessary to make the respective payments. Settlor shall instruct Trustee, and,
as applicable, provide the necessary funds no less than two (2) Business Days
before the date on which the option is to be exercised or the respective
payments are to be made.
Trustee shall not be liable for exercising the optional rights or making the
respective payments if no instructions or funds are provided in accordance with
the preceding paragraph.
Trustee may take all the actions and execute all the agreement necessary to make
the investment subject matter of this Trust in accordance with this clause. In
no event shall Trustee be obliged to physically deliver the securities or
instruments acquired as a result of the investments made when acting in
performing express investment orders.
Trustee shall pay, out of the Trust Assets of this Trust, any expenses, fees or
other amounts derived from the actions or agreements necessary to make the
investments hereunder. If the Trust Assets are not enough to bear such amounts,
Trustee shall be released from any liability, in which case Settlor shall be
expressly obliged to bear the same.
Settlor hereby expressly authorizes Trustee to disclose any information
necessary in respect of this Trust, and even in respect of Settlor or trust
beneficiaries in such events, and to such persons, that may be necessary in
order to make the investments referred to in this Clause and obtain the
appropriate tax treatment for the same. Settlor, or, as applicable, the
corresponding Trust Beneficiary in the First Place or the Trust Beneficiary in
the Second Place, receiving the benefits of the investment of the Trust Assets
shall be solely obliged to inform to Trustee the applicable tax treatment during
the term of this Agreement, provided that Trustee is released from any
obligation regarding the same.
Settlor and Trustee hereby agree that any expenses, fees or other amounts
arising from the acquisition or sale of securities or instruments of the money
or capital markets, brokerage firm, S.D. INDEVAL, S.A. de C.V., or any other
stock exchange instrument (or its equivalent in other countries) legally
authorized, charged as a result of the purchase, sale, management, custody or
any other concept related thereto that need to be operated by such
intermediaries in accordance with the Stock Exchange Act (or applicable laws in
the countries in which the investment is made), shall be paid out of the Trust
Assets, provided that if no enough funds exist to make such payments, Settlor
shall provide the necessary funds. Trustee is hereby released from any liability
that may arise
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from such lack of payment, since such amounts are independent from the fees to
be charged by Trustee under this Agreement.
The parties agree that Settlor shall give a written notice to Trustee informing
each deposit made to the account of this Trust on the same day thereof, no
lather than 12:00 p.m. Trustee shall not be obliged to invest such amounts if
the notice referred to herein is not given.
10. INSTRUCTIONS AND NOTICES TO TRUSTEE.
The parties agree that any instruction to Trustee shall be given by an
authorized representative in accordance herewith by means of an original duly
signed Instruction Letter, addressed to HSBC Mexico, S.A., Institucion de Banca
Multiple, Grupo Financiero HSBC, and delivered at the address of Trustee. It is
expressly agreed that Trustee shall not be obliged to perform any instructions
given to it via fax (facsimile), e-mail or any other electronic or magnetic
means other than the physical delivery of an original duly signed.
The instruction letters referred to in the preceding paragraph shall become
binding upon Trustee if the same:
1. Are addressed to HSBC Mexico, S.A., Institucion de Banca Multiple, Grupo
Financiero HSBC.
2. Make a references to the number of the trust referred to in the preamble
hereof.
3. Bear an original signature of the authorized representatives that may give
such instructions in accordance herewith, which representatives need to be
designated and presented to Trustee, providing Trustee with a copy of an
official identification bearing a picture and signature of the representative,
provided that the signature borne in such identification shall match the
signature affixed unto the corresponding instruction. If Trustee already has
such identification, no copy needs to be enclosed.
4. Contain an express and clear instruction to be performed by Trustee,
including specific amounts or activities.
Any failure to meet the aforementioned minimum requirements shall release
Trustee from the obligation to perform the instruction set forth in such letter,
in which case Trustee shall not be liable for any result or consequence of such
inactivity until the respective errors of the aforementioned instruction letter
are cured.
If Trustee takes any action in performing any instruction duly given to it by an
authorized representative in accordance herewith and subject to the terms,
conditions and purposes thereof, Trustee shall be subject to no liability
whatsoever, being responsible only up to the total amount of the Trust Assets.
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Trustee reserves the right to request any clarifications it deems necessary from
the parties in connection with the instructions given to Trustee that are
unclear, imprecise or depart from the purposes of this Trust.
11. MANAGEMENT OF COLLECTION ACCOUNTS AND COLLECTION PROCEEDS.
Trustee shall receive the Collection Proceeds derived from the Collection
Accounts as follows:
(a) Concerning the Collection Account under the Banamex SEP Agreement, pursuant
to which the Collection Account opened by Maxcom at Banco Nacional de Mexico,
S.A., Institucion de Banca Multiple, Grupo Financiero Banamex, is managed, by
means of a transfer to be made by Banco Nacional de Mexico, S.A., on a daily
basis, in accordance with the Irrevocable Instruction for transfer of Collection
Proceeds to the Trust Assets given by Settlor to such Collection Bank.
(b) Concerning the Collection Account under the Bancomer CIE Agreement, pursuant
to which the Collection Account opened by Maxcom at BBVA Bancomer, Institucion
de Banca Multiple, Grupo Financiero BBVA Bancomer, is managed, by means of a
fund transfer request to be made by Trustee, on a daily basis, in accordance
with the irrevocable power of attorney to administer property that is hereby
granted by Settlor to Trustee in the form of Exhibit C hereto, provided that
Settlor keeps no power or authority to make withdrawals but to make inquiries
about the balance of such Collection Account.
(c) Concerning the Collection Account under the HSBC RAP Agreement, pursuant to
which the Collection Account opened by Maxcom at HSBC Mexico, S.A., Institucion
de Banca Multile, Grupo Financiero HSBC, is managed, upon reception by Trustee
of a written notice from Settlor, by means of a unilateral statement of will,
which shall be informed by Trustee to HSBC Mexico, S.A., Institucion de Banca
Multiple.
If for any reason not attributable to the parties to this Trust, Settlor is
prevented from making inquiries about the balance of the Collection Accounts,
the parties shall make their best efforts under the then existing conditions and
without carrying out any activities that may have adverse effects, in order to
allow Settlor to make any online inquiries in respect of the balance,
transactions and payments relating to the Collection Accounts, as detailed as
necessary, including a banking reference to the fund concentration accounts, so
that Trust Beneficiary in the Second Place may identify the amount, date and
time of payments and the client that made the same, provided that in no
circumstance shall the same impair or affect the purposes of this Trust.
12. TRUSTEE'S DUTIES, OBLIGATIONS AND LIMITATIONS.
The parties agree that Trustee shall be subject to no liability if acting in
conformity with the instructions given by an authorized representative in
accordance herewith. However, any instructions given beyond the powers of
20
the respective representative (ultra vires) or in violation of this Agreement
shall not be performed by Trustee.
Trustee assumes no obligations whatsoever other than such expressly established
in this Agreement, without being liable for any facts, acts or omissions of the
parties, third parties or authorities preventing or hampering the accomplishment
of the purposes of this Agreement.
Any economic obligations of Trustee derived from this Agreement shall always be
deemed obligations to be paid out of the Trust Assets of this Trust, up to the
total value thereof. Trustee hereby assumes no economic obligations in its own
name, and shall not be liable for performing such obligations with its own
assets, unless if ordered so in accordance with applicable Mexican laws upon
accrual of damages and losses as a result of its negligence or misconduct.
Settlor hereby agrees to indemnify (including damages and losses) and hold
Trustee, its trust officers and staff, free and harmless from and against any
administrative proceeding, whether judicial or not, fine, penalty or any other
cause resulting from the accomplishment of the purposes of the Trust, attorneys'
fees derived from this Agreement, performance of instructions given by
authorized representatives and/or legal relationships of Trustee with third
parties hereunder, in accordance with this Agreement, whether directly or
through representatives designated by Trustee in accordance with this Agreement.
Any reference contained in this Agreement to the release of Trustee in respect
of any conduct and/or the effects thereof shall be deemed made solely by the
party that instructed, or should have instructed, Trustee under this Agreement,
or, Settlor, who shall be liable in accordance with this Clause.
13. ACCOUNT STATEMENTS.
Trustee shall prepare and send to Settlor and Trust Beneficiaries in the First
Place, on a monthly basis, within the first fifteen (15) calendar days of each
month, at the address referred to herein, a report on the transactions carried
out during the immediately preceding calendar month in connection with the Trust
Assets of this Trust.
The parties agree that Settlor and Trust Beneficiaries in the First Place may
request clarification in respect of the aforementioned report, within a
15-calendar-day period from the reception thereof. If no clarification or claim
is made within such 15-calendar-day period, the report shall be deemed accepted.
Trustee shall be subject to no liability whatsoever if Settlor or Trust
Beneficiaries in the First Place do not receive the respective report within the
period established in the first paragraph of this Clause due to causes not
attributable to Trustee. In such case, Settlor and Trust Beneficiaries in the
First Place shall request a copy thereof to Trustee. Reports issued two or more
months ago shall require payment to Trustee of the respective fee established in
the then effective rates of Trustee by the party requesting so.
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Settlor shall be entitled to review and receive online information about the
Collection Accounts and the Trust Account through such electronic means provided
to it by both the corresponding Collection Bank and Trustee, in order to obtain
information as to payments or Collection Proceeds of such Collection Accounts
and the Trust Account corresponding to clients of Maxcom for the rendition of
telecommunications services.
14. TRUST ASSETS DEFENSE.
Trustee shall not be liable for any facts or acts of the parties, third parties
or authorities preventing or hampering the accomplishment of the purpose hereof.
Trustee shall have, in respect of the Trust Assets, the powers and rights
established in Article 391, first part, of NICTA. However, Trustee shall not be
obliged to exercise such rights and powers in its own name. Upon occurrence of
any event constituting a conflict of interests or calling for the defense and
protection of the Trust Assets, Trustee shall be solely obliged to grant a
special power of attorney in favor of any person designated by Settlor in
writing, at its sole discretion, enclosing the acceptance of the
attorney-in-fact and its consent to the fact that any expenses and fees accrued
or incurred in respect thereof shall be paid by Settlor, without any
responsibility on Trustee.
Trustee shall not be responsible for any action taken by the attorneys-in-fact
and shall bear no expense or fee derived from the same. If any emergency occurs,
Trustee shall be entitled to take any essential actions necessary to preserve
the Trust Assets, without prejudice to the obligation of Settlor to promptly
designate the attorney-in-fact referred to in the preceding paragraph.
The fees of the attorney-in-fact and any expenses and costs accrued in
connection with the same shall be borne by Settlor, without any responsibility
on Trustee.
15. TRUSTEE'S FEES AND EXPENSES.
By executing this Agreement, the parties expressly agree that any fees of
Trustee derived from its participation in this Trust shall be paid by Settlor,
and, upon failure of Settlor to do so, out of the Trust Assets, as follows:
1. Fifty thousand Pesos ($50,000) for the review and acceptance of its
designation, due and payable in full on the execution date of this Trust.
2. Fifty hundred thousand Pesos ($500,000) per year for the administration of
this Agreement, due on payable in advance, it being understood that the same
shall become due and payable in its entirety upon commencement of the respective
period. For collection purposes, a debt remission is granted in respect of the
first annual payment equal to the period not yet elapsed or administered of the
Agreement.
3. The amount agreed to by the parties on a case-by-case basis for any amendment
to this Agreement.
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4. The amount agreed to by the parties on a case-by-case basis for carrying out
any legal act other than the execution of this Agreement and any amendment
thereto.
Upon failure in the performance of any of the payment obligations referred to in
this clause, Trustee shall charge a contractual penalty equal to the amount
resulting from applying the following rate to the outstanding amount during the
entire period in which the default continues without being cured:
A rate equal to the sum of the Inter-bank Interest Rate of Equilibrium ("TIIE")
and two (2) basis points, provided that TIIE shall mean the rate established by
the Central Bank of Mexico (Banco de Mexico) for 28-Day transactions denominated
in Pesos published in the Official Gazette of the Federation.
TIIE utilized for interest calculation purposes shall be the latest rate
published prior to the commencement of the period in which default occurs.
If at any time HSBC is prevented from determining the aforementioned rate by
reference to TIIE, the latter shall be replaced firstly by the sum of two point
five (2.5) basis points and 28-Day CETES Rate, in primary placement, considering
the latest known rate prior to the commencement of the default period in Pesos;
and, secondly, by the sum of two point twenty five (2.25) basis points and CPP
for liabilities denominated in Pesos that the Central Bank of Mexico (Banco DE
Mexico) deems representative for the Commercial Banks and publishes in the
Official Gazette of the Federation, taking into account the latest published
rate prior to the commencement of the default period in Pesos.
If the aforementioned replacement rates no longer appear, interest shall be
calculated by reference to a rate equal to the sum of the rate that replaces the
latter rate published by the Central Bank of Mexico (Banco de Mexico), and three
point five (3.5) basis points.
Fees referred to in this clause shall be automatically collected out of the
liquid funds forming part of the Trust Assets, provided that if the same are not
enough, Settlor hereby expressly and irrevocably authorizes Trustee to charge
any such fees to any account opened by it at HSBC Mexico, S.A. If no account
exists for such purposes or if the existing funds are not enough, any difference
shall be paid firstly by Settlor, and secondly, as applicable, by Trust
Beneficiaries in the First Place. It is expressly agreed that the Trust Assets
shall guarantee, in the first place, payment of the fees of Trustee and by
executing this Agreement, Settlor and/or Trust Beneficiaries in the First Place,
as applicable, expressly authorize Trustee to refrain from carrying any legal
act upon occurrence of any default in the payment of such fees until the date on
which the fees are paid in full.
The fees referred to in this clause shall be adjusted on the due payment
thereof, in the same proportion in which the National Consumer Price Index, or
any index replacing the same, rises, as published by the Central Bank of Mexico
(Banco de Mexico) in the Official Gazette of the Federation. Notwithstanding
23
the foregoing, the fees may be increased by Trustee if the administrative duties
to be performed by it are increased.
Trustee may collect all the banking and/or financial services required in the
future in order to improve the accomplishment of the purposes of the Trust, by
charging the same at the rates effective at the time in which the service is
required (as the case may be). Such payment shall be paid to Trustee before the
rendition of the respective service; otherwise, Trustee shall have no
responsibility whatsoever for its inactivity or any effects thereof. Such rates
for the services shall be paid out of the Trust Assets at the time in which the
service is requested.
Any fees of Trustee and the contractual penalty referred to in this Clause shall
be subject to the Value Added Tax, in accordance with applicable laws.
16. TAXES.
This Trust is not subject to the provisions established in Articles 13 and 144
of the Income Tax Act (Ley del Impuesto Sobre la Renta), and Tax Ruling 3.9.1
(Regla de Resolucion Miscelanea Fiscal 3.9.1), in no event shall it hire staff.
Any payment obligations arising in favor of third-party individuals (such as tax
withholdings, informative statements, etc.) shall be performed directly by
Settlor.
Any tax receipts that may be issued by the beneficiaries in respect of any
payments made to them shall bear the data of Settlor solely and exclusively,
delivering the corresponding amounts and applicable VAT so that settlors may
make the withholdings or make net payments. Settlor shall later request the
respective amount from Trustee so that it may deliver the withheld amounts to
tax authorities.
The parties agree that Trustee shall be released from any liability resulting
from, and Settlor shall indemnify and hold Trustee free and harmless from and
against, any dispute, whether judicial or not, including any administrative
action, brought in connection with the failure to perform, or improper
performance, of tax obligations, such as tax withholdings, tax returns, payment
of contributions, taxes, duties, accessories or other tax charges (whether
federal, state or local), errors or omissions in respect of any actions or
procedures before tax and otherwise authorities, hiring of staff or any other
engagement or hiring, labor lawsuits, etc.
Any expenses, contributions, duties, taxes and accessories accrued in connection
with this Trust, from its inception to its termination, may be paid out of the
Trust Assets, up to the total value thereof, and if not enough, by Settlors.
If the Trust Assets of the Trust are not enough to pay such amounts, Trustee
shall be released from any responsibility relating to the performance of the
respective acts, all of which shall be performed by Settlors.
The parties agree that Trustee shall not engage any company, auditors or outside
counsels to deliver any taxes to tax authorities or prepare and file tax
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returns with federal, state or local authorities. Under no circumstance shall
Trustee execute agreements from which any labor relationship with the Trust
arises. If any tax contribution or taxes need to be delivered to tax
authorities, or any tax returns need to be prepared and filed before federal,
state or local tax authorities, during the term of this Trust, the same shall be
completed by the person obliged to do so, this is, Settlor, Trust Beneficiaries
in the First Place or any outside counsel.
17. AMENDMENTS.
No amendment to this Agreement shall become effective, unless if in writing and
signed by Trustee, Settlor, Trust Beneficiaries in the First Place and Trust
Beneficiaries in the Second Place.
18. TRUSTEE SUBSTITUTION.
Settlor, being in agreement with Trust Beneficiaries in the First Place, may
order the substitution of Trustee, being consequently entitled to designate one
or more institutions that may become trustee or substitute trustee jointly or
subsequently.
No substitution of Trustee made in accordance with the preceding paragraph, if
any, shall tacitly or expressly imply an amendment of the purposes of the Trust,
the rights of the trust beneficiaries, the legal or contractual obligations to
be performed through the Trust Assets, the powers and duties of Trustee, or in
general, the terms and conditions of this Agreement that may contravene the
purpose thereof, as provided herein.
19. TRUSTEE'S RESIGNATION.
If any cause exists enabling Trustee to resign, Trustee shall inform the same to
Settlor, Trust Beneficiaries in the First Place and Trust Beneficiary in the
Second Place in writing, clearly expressing the reasons that ground such
resignation. Settlor, Trust Beneficiary in the First Place and Trust Beneficiary
in the Second Place shall jointly inform to Trustee, within a 60-calendar-day
period from the date on which they receive such notice, the name of the
institution(s) that shall act as substitute trustee, so that Trustee may deliver
the Trust Assets to the same.
The parties hereby expressly agree that Trustee may resign if the fees
corresponding to three or more consecutive periods are not timely paid, as
provided for in Clause 5 above, regardless that Trustee hereby reserves the
right to bring any applicable legal actions in order to collect such fees.
If Settlor and Trust Beneficiaries in the First Place fail to designate the
substitute trustee within the aforementioned period, this Trust shall be
terminated by operation of law in accordance with Article 385, third paragraph,
of NICTA. In such case, Trustee shall declare such termination for any legal
purposes that may apply and send an informative notice to Settlor and Trust
Beneficiaries in the First Place confirming the termination of the Trust and
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requesting written instructions for the delivery or transfer of the assets or
rights, which instructions shall be given within a 30-calendar-day period from
the date on which the informative notice is received.
Upon expiration of such period referred to in the preceding paragraph, any
existing amounts shall be transferred to Settlor and Trust Beneficiaries in the
First Place, as applicable, by depositing the same to the checking account to
which Trustee shall have made the latest deposit in accordance with this
Agreement.
If any doubt or opposition arises in respect of the delivery, the assets or
rights shall be made available to the court of competent jurisdiction, in
accordance with Article 393 of NICTA.
20. TERM; IRREVOCABLE NATURE.
The term of this Agreement shall be such as necessary to accomplish the purposes
thereof, without exceeding the maximum term permitted in accordance with
applicable laws, provided that the same may be terminated upon occurrence of any
of the events referred to in article 392 of NICTA, except for the event referred
to in paragraph VI thereof, since Settlor reserves no right to revoke the same.
21. ASSIGNMENTS.
Neither Trustee nor Settlor may assign or transfer their rights and obligations
derived from this Agreement without the prior written consent of Trust
Beneficiaries in the First Place. Trust Beneficiaries in the First Place and
Trust Beneficiary in the Second Place may assign their rights derived from this
Agreement by giving a written notice to Trustee and Settlor, and delivering the
corresponding documentation.
22. NOTICES.
Any notices and communications to be given under this Agreement shall be given
in writing or in such manner established herein, in the Spanish language, at the
addresses referred to herein below, or at any other address or number indicated
from time to time by the addressee thereof or their representatives by means of
a written notice given to the other parties. Such notices and communications
shall be given by hand, and become effective if delivered by messenger at the
time in which the same are received, or if given through courier on the Business
Day following the date on which the same are delivered.
If to Maxcom:
Maxcom Telecomunicacione, S.A. de C.V.
Guillermo Gonzalez Camarena No. 2000
Mexico, D.F. 01210
Attn: Jose Antonio Solis
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Telephone: 51471125
With copy to:
Alarcon Abogados, S.C.
B. de Ciruelos No. 168 - Piso 11
Col. Bosques de las Lomas
Mexico, D.F. 11700
Telephone: 10849390
If to Trustee:
HSBC Mexico, S.A.
Institucion de Banca Multiple,
Grupo Financiero HSBC
Reforma 156 - Piso 10
Colonia Juarez
Mexico, D.F.
C.P. 06600
Attn: Jorge Garay Espinosa
Telephone: 57212361,2970
If to Ixe Banco:
Ixe Banco, S.A.
Institucion de Banca Multiple
Ixe Grupo Financiero
Av. Periferico Sur 314
San angel Tlacopac, Alvaro Obregon
Mexico, D.F.
Attn: Lourdes Patricia Ferro Bertolo
Telephone: 51742141
If to Banorte:
Banco Mercantil del Norte, S.A.
Institucion de Banca Multiple
Grupo Financiero Banorte
Reforma No. 359 - Piso 2
Colonia Cuauhtemoc
Cuauhtemoc
Mexico, D.F.
Attn: Alejandro Diaz Martinez
Telephone: 56254879
23. HEADINGS.
The parties agree that the headings of the clauses of this Agreement are solely
for reference purposes, and therefore, constitute no limitation or modification
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whatsoever of the scope thereof. Any construction of such clauses shall be made
based upon the content thereof.
24. COUNTERPARTS.
This Agreement is executed in four (4) originals: one (1) original for Settlor,
one (1) original for Trust Beneficiary in the First Place, one (1) original for
Trust Beneficiary in the Second Place, and one (1) original for Trustee.
25. GOVERNING LAW AND JURISDICTION.
(a) This Agreement shall be governed by, and construed in accordance with, the
laws of Mexico. For everything relating to the construction, performance and
enforcement of this Agreement, Settlor and Trustee expressly and irrevocably
submit to the jurisdiction of the courts sitting in Mexico City, Federal
District, waiving any other jurisdiction they may be entitled to by reason of
their present or future domicile.
(b) Trustee, Settlor, Trust Beneficiaries in the First Place and Trust
Beneficiary in the Second Place hereby agree that for everything relating to the
construction, performance and enforcement of this Agreement: (i) Trustee
submitted solely to the jurisdiction of the courts sitting in Mexico City,
Federal District, and therefore, shall be subject to no jurisdiction whatsoever
other than the jurisdiction of such courts, and (ii) Trustee shall submit to no
foreign courts.
IN WITNESS WHEREOF, the parties caused their representatives to execute this
Agreement on the date first written above.
Trustee hereby provides each of the parties with an original of this Trust
Agreement, which parties acknowledge receipt thereof by executing the same.
MAXCOM TELECOMUNICACIONES, S.A. HSBC MEXICO, S.A.
DE C.V. INSTITUCION DE BANCA MULTIPLE
"SETTLOR" AND "TRUST BENEFICIARY IN THE GRUPO FINANCIERO HSBC
SECOND PLACE" TRUST DIVISION
/s/ Adrian Aguirre Gomez /s/ Jorge Garay Espinosa
_________________________________ ______________________________
Represented herein by: Represented herein by:
Adrian Aguirre Gomez Jorge Garay Espinosa
/s/ Jose Antonio Solbes /s/Gabriela Ortega de Lascurain
_________________________________ _____________________________
Jose Antonio Solbes Gabriela Ortega de Lascurain
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BANCO MERCANTIL DEL NORTE, S.A. IXE BANCO, S.A.
|NSTITUCION DE BANCA MULTIPLE INSTITUCION DE BANCA MULTIPLE
GRUPO FINANCIERO BANORTE IXE GRUPO FINANCIERO
"TRUST BENEFICIARY IN THE FIRST PLACE" "TRUST BENEFICIARY IN THE FIRST PLACE"
/s/ Antonio Fernandez Montero /s/ Armando Jorge Rivero Laing
_________________________________ __________________________________
Represented herein by: Represented herein by:
Antonio Fernandez Montero Armando Jorge Rivero Laing
/s/ Juan Luis Flores Flores /s/ Lourdes Patricia Ferro Bertolo
_________________________________ __________________________________
Juan Luis Flores Flores Lourdes Patricia Ferro Bertolo
The preceding signatures correspond to Trust No. 207357 dated November 21, 2005.
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