EXHIBIT 5.2
June 10, 2004
(52)(81)8129-9200
Axtel, S.A. de C.V.
Blvd. Diaz Ordaz km. 3.33 No. L-1
Col. Unidad San Pedro
San Pedro Garza Garcia, N.L.
Mexico, CP 66215
Dear Ladies and Gentlemen:
We have acted as special Mexican counsel to Axtel, S.A. de C.V. (the
"Company"), and its subsidiaries Servicios Axtel, S.A. de C.V., Impulsora e
Inmobiliaria Regional, S.A. de C.V. and Instalaciones y Contrataciones, S.A. de
C.V. (collectively the "Guarantors"), all of which are corporations with
variable capital (Sociedades Anonimas de Capital Variable) organized under the
laws of the United Mexican States ("Mexico"), with respect to the preparation of
a Registration Statement on Form F-4 (the "Registration Statement"), filed by
the Company with the Securities and Exchange Commission (the "Commission") and
relating to an offer to exchange (the "Exchange Offer") up to $175,000,000
principal amount of 11% Senior Notes due 2013 (the "Exchange Notes") for a like
principal amount of the Company's outstanding 11% Senior Notes due 2013 (the
"Original Notes"). The Exchange Notes have been authorized pursuant to
resolutions adopted by the Extraordinary Shareholders Meeting and the Board of
Directors of the Company, and are identical in all material respects to the
Original Notes, except for certain transfer restrictions relating to the
Original Notes. Terms defined in the Registration Statement and not defined
herein have the meanings ascribed thereto in the Registration Statement.
The Exchange Notes will be issued pursuant to the Indenture (the
"Indenture") dated as of December 16, 2003, by and among the
Company, the Guarantors and the Bank of New York, as trustee (the "Trustee").
The Exchange Offer is being made pursuant to a registration rights agreement
dated as of December 16, 2003 among the Company, the Guarantors and Credit
Suisse First Boston LLC.(the "Registration Rights Agreement").
In rendering this opinion, we have reviewed such documents and made such
investigations as we have deemed appropriate, including the Indenture and the
Registration Rights Agreement. In addition, we have examined and relied upon on
the originals or copies, certified or otherwise identified to our satisfaction,
of all such corporate records of the Company and such other instruments and
other papers and we have made such investigations of law, as we have deemed
appropriate as a basis for the opinions expressed below.
In our examination of documents, instruments and other papers we have
assumed, without any independent investigation or verification of any kind:
(i) the legal capacity of all relevant natural persons, the genuineness of
all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic originals of all documents
submitted to us as certified, conformed, photostatic or facsimile
copies.
(ii) that each party to such documents has satisfied those legal
requirements that are applicable to it to the extent necessary to make
such document enforceable against it; that each party to such
documents has the power, corporate or otherwise, to enter into and
perform its obligations thereunder; and that each party to such
documents has performed or will perform each of its obligations under
such documents;
(iii) the due authorization by all requisite action, corporate or
otherwise, of such documents by each party thereto; the due execution
and delivery by such parties of such documents; and, in the case of
documents for which we have reviewed forms thereof, that when executed
and delivered, each such documents will conform in all respects to the
form thereof that we have reviewed.
As to all matters of fact that are relevant to this opinion, we have relied
upon the accuracy as to factual matters asserted in
such records, opinions, certificates, documents and papers submitted to us
(including without limitation the Indenture, the Registration Rights Agreement,
the Registration Statement and the related prospectus), and upon the accuracy of
such representations and warranties of officers and other representatives of the
Company and the Guarantors as in our judgment we deemed necessary or appropriate
to render the opinions set forth below.
We express no opinion as to any laws other than the laws of the United
Mexican States ("Mexico") as currently in effect, and we assume that there is
nothing in any other law that affects our opinion.
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, we are of the opinion that:
(i) when the Exchange Notes have been duly executed, authenticated,
registered, issued and delivered in exchange for Original Notes of a
like principal amount in accordance with the terms of the Indenture
and as contemplated by the Registration Statement, the Exchange Notes
will constitute valid and binding obligations of the Company and the
Guarantors, enforceable against them in accordance with their terms,
except as disclosed in the Registration Statement and the related
prospectus.
This opinion is subject to the following qualifications:
1. Prerogatives of the Trustee and the holders of Exchange Notes, although
discretionary, should be supported by the factual assumptions required for their
reasonable exercise. Under Mexican law the Company or the Guarantors would have
the right to contest in court any notice or certificate of the Trustee
purporting to be conclusive and binding.
2. Covenants of the Company and the Guarantors which purport to bind them
on matters reserved by law to shareholders, or which purport to bind
shareholders to vote or refrain from voting their shares in the Company or the
Guarantors, are not enforceable under Mexican Law.
3. The enforceability of the obligations of the Company and the Guarantors
under the Indenture, the Guarantees, the Registration Rights Agreement and such
other documents to which the Company and the Guarantors are a party may be
limited by bank-
ruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), concurso mercantil, reorganization, moratorium, tax,
labor, fraudulent conveyance and similar laws relating to or affecting
enforcement of creditors' rights generally, or by general principles of equity,
including principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a proceeding in equity or at
law), or public policy ("orden publico"). Under the laws of Mexico, labor
claims, claims of tax authorities related to the payment of taxes, and claims
related to Social Security quotas, Workers Housing Fund and other social
contributions, will have priority over all other claims exercised against the
Company and the Guarantors.
4. The obligations of the Company or the Guarantors to pay default interest
on past due ordinary interest under the Indenture or the Exchange Notes may be
unenforceable under Mexican law.
5. We believe that the Exchange Notes may not be considered as "titulos de
credito" under the laws of Mexico, and we express no opinion as to the
enforceability of the Exchange Notes under the laws and rules applicable to
"titulos de credito".
6. Pursuant to Article 8 of the Mexican Monetary Law (Ley Monetaria de los
Estados Unidos Mexicanos), if collection of amounts payable by any of the
Company or the Guarantors in foreign currency outside Mexico under the Indenture
or the Exchange Notes is sought in Mexican courts, such courts could render a
judgment in Mexican currency or, if such judgment is rendered in foreign
currency but payable in Mexico, such judgment may be discharged in Mexican legal
currency at the rate of exchange in effect at the date and place where payment
is made, as determined by the Central Bank of Mexico (Banco de Mexico).
Provisions purporting to limit the ability of the Company and the Guarantors to
discharge their obligations as described above, or purporting to give the
Trustee or the holders of Exchange Notes an additional course of action seeking
indemnity or compensation for possible deficiencies arising or resulting from
variations in rates of exchange, may not be enforceable in Mexico.
7. The recognition by Mexican courts of a judgment rendered in the United
States is usually done under the principle of reciprocity, which means that
Mexican courts would reexamine judgments rendered in the United States if such
foreign country or state would reexamine Mexican judgments.
8. Waivers by the Company or the Guarantors to their right to any review by
the Mexican court before which enforcement is sought of the judgment rendered by
any New York court or any other non-Mexican court issuing the judgment, are not
valid in Mexico.
9. Claims under the Indenture and the Registration Rights Agreement may
become barred under the statutes of limitations or may be or become subject to
defenses or set-off or counterclaim. Waivers in the Indenture and the
Registration Rights Agreement to applicable Mexican statutes of limitation are
unenforceable under Mexican Law.
10. A Mexican court could determine that the waivers in the Guarantees to
possible defenses or exceptions of the Guarantors or to limitations or
discharges of the Guarantors' Guarantees based on the invalidity, illegality,
unenforceability, amendment, limitation, termination, discharge or similar
situations affecting the guaranteed obligations, are contrary to public policy
("orden publico"). As a general principle under Mexican law, the Guarantees
would be deemed limited or discharged to the same extent as the guaranteed
obligations.
11. The validity of the Guarantees is subject to the existence and validity
of the obligation being guaranteed; therefore, the enforcement of the Guarantee
is not independent or irrespective of the obligation being guaranteed. A
Guarantor may be released from its obligations under the Guarantee if (i) the
holder of the Exchange Notes gives the Company an extension for payment under
the Exchange Notes without the express consent of such Guarantor, or (ii) the
Company waives any cause that would otherwise release the Company of its
obligations under the Exchange Notes, including expirations or statute of
limitation provisions.
12. It may not be possible for the holders of the Exchange Notes to effect
service of process outside of Mexico or within the United States upon the
officers and directors of the Company or of the Guarantors, or to enforce a
judgment obtained in the United States against them, the Company or the
Guarantors outside of Mexico or in the United States courts that is based on the
civil liability provisions under laws of jurisdictions other than Mexico
including the federal or state securities laws or other laws of the United
States.
13. In connection to the submission to jurisdiction provisions set forth in
the Indenture, the Exchange Notes and the Registration Rights Agreement, we note
that since service of process by mail does not constitute personal service under
Mexican law and
since service of process is considered to be a basic procedural requirement
under the laws of Mexico, if for the purposes of a legal proceeding outside
Mexico service of process is made by mail or in any manner that does not
constitute personal service or does not guarantee due process of law or
otherwise prevents the Company from exercising its rights as defendant to be
heard and to controvert the facts which bear on the question of right in the
matter involved, then a final judgment rendered in connection with such legal
proceeding may not be enforced in the courts of Mexico.
14. We express no opinion as to the effects that an adverse decision may
have in the Company arising out of the "Shareholdings Disputes" referred to in
the Registration Statement and the related prospectus.
15. A judgment rendered in the United States may or need not be recognized
or enforced by Mexican courts if, among others:
(a) the foreign court did not have jurisdiction over the subject matter in
a manner that is compatible or analogous with Mexican laws or the
subject matter is of the exclusive jurisdiction of Mexican courts;
(b) the judgment was rendered under a system which does not provide
procedures compatible with due process requirements;
(c) enforcement of such judgment would be contrary to public policy;
(d) the defendant did not receive adequate personal notice in sufficient
time to defend;
(e) the judgment is not final in the rendering state;
(f) the judgment conflicts with another final judgment, or
(g) there is no reciprocity with the rendering state.
16. There is doubt as to the enforceability, in actions originated in
Mexico, of liabilities based in whole or in part on the United States federal or
state securities laws, and as to the enforceability of judgments obtained in the
United States in actions based in whole or in part on the civil liability
provisions of United States federal or state securities laws.
17. A judgment obtained in a competent State or Federal court sitting in
the Borough of Manhattan, City of New York, United States of America arising out
of or in connection with the obligations of the Company or the Guarantors under
the Exchange Notes may be enforceable in Mexico against the Company or the
Guarantors, provided that:
(a) such judgment is obtained in compliance with legal requirements of the
jurisdiction of the court rendering such judgment and in compliance
with all legal requirements of the Exchange Notes;
(b) such judgment is strictly for the payment of a certain sum of money,
based on an in personam (as opposed to an in rem) action;
(c) service of process was made personally on the defendant or a duly
authorized process agent so as to ensure its due process rights and
its rights to be heard and assert its defenses;
(d) such judgment (and the underlying obligation for which the judgment
was obtained) does not contravene Mexican law, public policy of
Mexico, international treaties or agreements binding upon Mexico or
generally accepted principles of international law;
(e) the applicable procedure under the laws of Mexico with respect to the
enforcement of foreign judgments (including issuance of a letter
rogatory by the competent authority of such jurisdiction requesting
enforcement of such judgment and the certification of such judgment as
authentic by the corresponding authorities of such jurisdiction in
accordance with the laws thereof) is complied with;
(f) such judgment is final in the jurisdiction where obtained;
(g) the courts of such jurisdiction recognize the principles of
reciprocity in connection with the enforcement of Mexican judgments in
such jurisdiction;
(h) the action in respect of which such judgment is rendered is not
subject to legal proceedings in Mexico, among the parties;
(i) the court that rendered such judgment has jurisdiction over the debtor
as recognized by the courts of Mexico and in accordance with its
conflict of laws rules;
(j) the judgment complies with all requirements to be deemed authentic.
(k) such judgment was not obtained by fraud or in a manner contrary to
general principles of law and equity and the enforcement thereof would
not be inconsistent with public policy, as such term is understood
under the laws of Mexico applicable therein;
(l) the enforcement of such judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropiatory, public
or criminal laws;
(m) no new admissible evidence relevant to the action is discovered prior
to the rendering of the judgment by the court in Mexico; and
(n) the action to enforce such judgment is commenced within six years
after the date of such judgment.
The opinion expressed above is limited to questions arising under the laws
of Mexico, and we do not purport to be experts in, or to express any opinion
concerning any laws, rules or regulations (including but not limited to the
laws, rules and regulations of the United States of America, and any state or
political subdivision thereof (including the State of New York)) other than the
laws, rules and regulations of Mexico; neither do we express an opinion as to
the impact that any such laws, rules and regulations may have in the opinions
rendered above. Furthermore, we note that the authorization, execution,
authentication, issuance and delivery of the documents that we reviewed for
purposes of this opinion may be governed by the federal laws of the United
States of America or the laws of the State of New York, in whole or in part, and
to that extent you are receiving the opinion of Cahill Gordon and Reindel LLP,
special United States counsel to the Company with respect to such matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference of our firm in the
Registration Statement and related prospectus under the caption "Legal Matters".
Our consent to such reference does not constitute a consent under Section 7 of
the Se-
curities Act, and in consenting to such reference we have not certified any part
of the Registration Statement and do not otherwise come within the categories of
persons whose consent is required under said Section 7 or under the rules and
regulations of the Commission thereunder.
This opinion is furnished by us as special Mexican counsel to the Company
and the Guarantors on the aspects described herein above and is solely for your
benefit. This opinion is limited solely to questions arising under the laws of
Mexico, and speaks only as of the date hereof. We expressly disclaim any
responsibility to advise you of any development or circumstance of any kind,
including any change of law or fact, that may occur after the date of this
opinion.
Very truly yours,
/S/ D&A Morales y Asociados, S.C.