OPERATING AGREEMENT AND OTHER COVENANTS
BETWEEN:
I. MULTIPONTO TELECOMUNICACOES LTDA., a civil limited liability company
organized and existing under the laws of the Federative Republic of
Brazil, with head offices in the City of Rio de Janeiro, State of Rio de
Janeiro, at Av. Presidente ▇▇▇▇▇▇, 231, 28th floor (part), registered as
taxpayer under CGC number. 086.982.675 /0001-07, herein represented by its
duly empowered attorney-in-fact ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Brazilian,
married, engineer, resident and domiciled in the City of Rio de Janeiro,
State of Rio de Janeiro, with identity card number 1029543 issued by
SSP-BA, registered as taxpayer under CPF number 094323965-68, hereinafter
referred to simply as "PERMISSION HOLDER";
AND
II. PAGING NETWORK DO BRASIL S.A., a corporation, organized and existing under
the laws of the Federative Republic of Brazil, with head offices in the
City of Sao Paulo, State of Sao Paulo, at Rua ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, number
1711, registered as taxpayer under CGC/MF No. 01.126.946/0001-61, herein
represented by its Officers ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Trynin, American citizen,
single, business administrator, bearer of identity card No. V192319-I and
CPF No. 214308398-05 and ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Brazilian citizen,
married, business administrator, bearer of identity card No. 35355458-5
and CPF 214170768-49, hereinafter referred to simply as "OPERATOR";
WHEREAS:
1. Among the governmental directives applicable to the Communications
Sector, stands out the need for diversification of the
telecommunications services, for improvement of their quality and
expansion of such services, at the level of a greater participation
of the private sector, to the benefit of the final user;
2. The PERMISSION HOLDER is the holder of Permissions granted by the
Ministry of Communications for the exploitation of Paging Services
("Servico Especial de Radiochamada") (the "Services"), for the
purpose of
being rendered to third parties, for the term of fifteen (15) years,
renewable for an equal period, in accordance with the provisions of
Ordinances issued by the Minister of Communications Numbers 497,
498, 499, 500, 501, 502, 503 and 504, all dated as of July 18, 1994,
and published in the Official Gazette of July 22, 1994, except for
Ordinance No. 502 which was published in the Official Gazette of
Jully 25, 1994, which are attached hereto as Exhibit I (the
"Permissions");
3. Having in view the amplification of the rendering of the services in
the Brazilian territory the PERMISSION HOLDER has requested the
Ministry of Communications the transformation of the Permissions
into Permissions to National Restricted Exploitation (solely
National Restricted Permissions, and together with the Permissions,
also "Permissions") according to Ordinance No. 579/94, of August 2,
1994;
4. The PERMISSION HOLDER wishes to broaden its activity in the market,
providing an efficient and competitive service to the Subscribers
(as hereinafter defined) and, therefore, wishes to have the
cooperation of an entity with technical capability and with the
necessary financial resources, in the resale and operation of the
Services;
5. The OPERATOR is a company with capital to invest in the
installation, operation and provision of the Services, as well as
know-how and technical capability to operate and provide the
respective resale to the Subscribers, so as to cooperate with the
PERMISSION HOLDER in providing an efficient and competitive service
to the Subscribers;
6. The provisions of the Specific Telecommunications Rule ("▇▇▇▇▇
Especifica de Telecomunicacoes" - NET) No. 05/DNPV, approved by
Ordinance No. 257/91, of October 23, 1991, which expressly foresees
in its item 27.3 that the holders of permissions of Paging Services
may utilize other entities as resellers of their Services, by means
of mutual operating agreements;
7. The parties wish to formalize the above referred agreement,
regulating their respective rights and obligations with respect to
the resale and operation of the Services,
the parties have agreed to enter into this Operating Agreement and Other
Covenants (the "Agreement"), in accordance with the clauses and conditions
specified below:
Clause One: DEFINITIONS AND INTERPRETATION
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The following terms shall have the following meanings for all purposes of this
Agreement and such meanings shall be equally applicable to both the singular and
the plural forms of the terms defined:
1.1. "Paging Services" or "Servico Especial de Radiochamada" shall mean
the special telecommunications service with the purpose of
transmitting specially codified call signals, addressed to
Subscribers of the service, through the systems of tone and
transmission of information by sound, numeric and alpha numeric
displays.
1.2. "Permissions" shall mean the Ordinances which granted permission for
the exploitation of Paging Services Numbers 497, 498, 499, 500, 501,
502, 503 and 504, published in the Official Gazette of July 22,
1994, except for Ordinance No. 502 which was published in the
Official Gazette of July 25, 1994, which are attached hereto as
Exhibit I and are an integral part of this instrument, as if the
contents thereof were transcribed in full herein, as well as all and
any Ordinances that may be published in the Official Gazette
granting Permissions to National Restricted Exploitation, or other
modalities of exploitation.
1.3. "Services" shall mean the Paging Services ("Servico Especial de
Radiochamada") to be resold by the Operator hereunder.
1.4. "Subscribers" shall mean the users of the Services which have
entered into a Subscription Agreement.
1.5. "Subscription Agreement" shall mean the agreement with respect to
the rendering of Services, entered into between the Subscribers and
the PERMISSION HOLDER prior to the date of this Agreement, as well
as new agreements to be entered into between future Subscribers and
the OPERATOR, by means of the grant of authority hereunder to the
OPERATOR, as well as the procurement and follow-up of requests or
proposals or execution thereof by the OPERATOR.
1.6. "Territory" shall mean the Service areas specified in Ordinances
497, 498, 499, 500, 501, 502, 503 and 504/94, collectively
considered, and comprehends all extensions and modalities of
exploitation that may be permitted or licensed, including but not
limited to, local and national extensions:
1.6.1. Ordinance 497 covers the localities of Sao Paulo, ▇▇▇▇▇
▇▇▇▇▇, Sao ▇▇▇▇▇▇▇▇ do ▇▇▇▇▇, Diadema, Sao Caetano do Sul,
Guarulhos, Osasco, Barueri e Maua, all in the State of Sao
Paulo, having as service area 3,307 Km^2 in the frequency of
931 MHz, channel 931,7625 MHz;
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1.6.2. Ordinance 498 covers the localities of Belo Horizonte,
Contagem and Betim, all in the State of Minas Gerais, having
as service area 2.932 Km^2 in the frequency of 931 MHz,
channel 931,7625 MHz;
1.6.3. Ordinance 499 covers the localities of Porto Alegre, Guaiba,
Alvorada, and Canoas, all in the State of Rio Grande do Sul,
having as service area 706 Km^2 in the frequency of 931 MHz,
channel 931,7625 MHz;
1.6.4. Ordinance 500 covers the localities of Recife, Olinda and
Jaboatao, all in the State of Pernambuco, having as service
area 572 Km^2 in the frequency of 931 MHz, channel 931,7625
Mhz;
1.6.5. Ordinance 501 covers the locality of Curitiba, in the State
of Parana, having as service area 580 Km^2 in the frequency
of 931 MHz, channel 931,7625 MHz;
1.6.6. Ordinance 502 covers the Distrito Federal having as service
area 1.098 Km^2 in the frequency of 931 MHz, channel 931,7625
MHz;
1.6.7. Ordinance 503 covers the locality of Salvador, in the State
of Bahia, having as service area 315 Km^2 in the frequency of
931 MHz, channel 931,7625 MHz;
1.6.8. Ordinance 504 covers the localities of Rio de Janeiro,
Niteroi, Sao Joao de Meriti and Nova Iguacu, all in the State
of Rio de Janeiro, having as service area 4.129 Km^2 in the
frequency of 931 MHz, channel 931,7625 MHz.
1.7. "Service Trademark" shall mean the trademark utilized to identify
the business as specified in Exhibt II.
Clause Two: PURPOSE
2.1. The purpose of this private instrument is to regulate the conditions
of the resale of Services by the OPERATOR, as well as the terms of
the mutual Operating Agreement contracted hereby, and, specially,
the obligations of the OPERATOR regarding the utilization of
equipment and stations in accordance with the technical
specifications approved, as well as with respect to the utilization
of authorized equipment, technical characteristics of the Services
and proper utilization of the spectrum inherent to the
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operation, in order to improve and develop Paging Services in the
Territory.
2.2. The PERMISSION HOLDER hereby engages the OPERATOR as the exclusive
reseller of its Services, the OPERATOR being hereby entrusted with
the operation of such Services, it being further agreed that the
PERMISSION HOLDER shall not itself be permitted to directly sell or
operate any such Services, and shall hold the Permissions free and
clear of any lien, claim, charge or encumbrance of any kind.
Clause Three: OBLIGATIONS OF THE OPERATOR
The following are obligations of the OPERATOR:
3.1. To resell the Services by executing Subscription Agreements with the
Subscribers, containing, essencially, the provisions mentioned in
Exhibit III;
3.2. To ensure the operations necessary for the rendering of the Services
to all current and future Subscribers which have entered into a
service agreement and which do so in the future;
3.3. To ensure the above mentioned operation pursuant to standards of
trustworthiness, quality, courtesy and continuity, in accordance
with the technical characteristics inherent to the Service;
3.4. To maintain specialized technical personnel for the assistance to
Services to Subscribers and for the maintenance of the equipment
used;
3.5. To provide the stations on a permanent basis with the necessary
equipment in accordance with high technological standards;
3.6. To use solely certified equipment and in accordance with the
approved technical authorizations and specifications, ensuring its
permanent and adequate maintenance;
3.7. To comply with any requirements made by the National Communications
Secretariat ("Secretaria Nacional de Comunicacoes" - SNC) in
connection with the Permissions, within the scope of its competence,
within the term established by SNC;
3.8 Not to use, order or consent to the use of the equipment or
installation affected to the Services without compliance with the
rules and conditions applicable to it;
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3.9. To allow access to the installations and equipment of any
supervision agent of the SNC, duly identified, carrying out,
respectively, an inspection or verification mission;
3.10. To avoid the occurrence of interference harmful to other
telecommunication or broadcasting services authorized and legally
installed, as a result of the operation of a station or equipment;
3.11. To promptly interrupt the functioning of a station, upon the receipt
of notice from the PERMISSION HOLDER, in compliance with a
determination of the Ministry of Communications necessitating such
interruption;
3.12. Not to create, in the carrying out of its activity, a situation
dangerous to human life or to property;
3.13. To provide the information required by SNC, for the purpose of
verifying how the Service is being operated and the Subscribers
assisted;
3.14. To maintain an updated file of documents regarding the legal
capacity, economic and financial capacity and technical operational
capacity, including with respect to the equipment used in the
operation, which shall be done according to the same terms of such
regulatory requirement applied to the PERMISSION HOLDER;
3.15. To assume full responsibility for the operation of the stations
under its care, as well as for the good and efficient assistance to
the Subscribers, undertaking to instruct its employees and officers
of the obligation hereby undertaken;
3.16. To maintain in strict confidentiality and secret the communications
which take place by means of the equipment, networks or systems
inherent to the contracted operation;
3.17. To be responsible for all costs and charges arising from the resale
and operation of the Services, including expenses with equipment,
installation, maintenance, operation, modernization and financing;
3.18. To assume full responsibility for the reselling of the services and
for obtaining Subscribers, receiving and collecting the payment of
the subscriptions, and giving receipts therefor.
3.19. To assume, in general, full responsibility before the PERMISSION
HOLDER for the acts and activities developed by it, which may result
in
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any charges, encumbrances or damages to PERMISSION HOLDER, pursuant
to clause 7 below.
Clause Four: RIGHTS OF THE OPERATOR
The rights of the OPERATOR are to carry all activities necessary to conduct the
business and operation of the Services, including:
4.1. To contract, sub-contract and take all the measures, operational or
not, which it deems necessary for the fulfillment of its obligations
with respect to the resale and operation of the Service and to the
assistance to Subscribers, the OPERATOR being solely responsible for
the costs and charges resulting from agreements it enters with third
parties;
4.2. To establish the value of the Services to be offered to the
Subscribers regarding the initial sign up payment as well as the
monthly fees;
4.3. To sell advertising space;
4.4. To collect and administer subscription fees, monthly fees and other
income related to the Services;
4.5. To program and carry out in full the marketing policy and the sales
effort with respect to the Services, promoting, advertising and
marketing the Services to the general public;
4.6. To execute and to rescind Subscription Agreements; and
4.7. To develop the clientele of the Service by means of the reference of
Subscribers of its own indication, it being understood that the
OPERATOR shall not be entitled to any additional remuneration in
addition to the global remuneration provided for in Clause 8 below,
by reason of the reference of its own Subscribers herein provided
for.
Clause Five: OBLIGATIONS OF PERMISSION HOLDER
5.1. The PERMISSION HOLDER grants to the OPERATOR, within the scope of
this Agreement, the right to use all existing equipment and
infra-structure inherent to the Service object of the mutual
Operating Agreement contracted hereby, it being expressly understood
that PERMISSION HOLDER shall not be entitled to any remuneration in
7
addition to the global remuneration provided for in Clause 8 below,
by reason of such assignment.
5.2. The PERMISSION HOLDER shall comply with the requirements made by any
competent governmental body or authority, within the term
established by it, immediately notifying the OPERATOR of the action
or information required from it to make such compliance possible.
Notwithstanding the foregoing the OPERATOR undertakes to supply the
PERMISSION HOLDER of any and all information, data, as well as to do
any and all things which may be requested by SNC in connection with
the Permissions.
5.3. The PERMISSION HOLDER shall assume, before SNC, a punctually
compliant and diligent behavior with respect to the legal,
regulatory and specific requirements of the Ordinances by which the
Permissions were granted.
5.4. The PERMISSION HOLDER will comply with all laws, statutes,
governmental regulations and all judicial or administrative tribunal
orders, judgments, writs, injunctions, decrees or similar commands
applicable to the grant of Permissions set forth in paragraph 2 and
3 of the preamble to this Agreement and shall not, by its action or
inaction, adversely and materially affect the status of the
Permissions.
5.5. The PERMISSION HOLDER shall use its best efforts, at the Operator's
expense, to obtain and maintain in full force and effect each
Permission and shall timely file and prosecute all necessary
applications for renewal and, when requested by, and at the expense
of, the Operator, for the expansion, modification or otherwise of
the Permissions. The Permission Holder shall not assign, transfer,
sell, trade, dispose or otherwise encumber the Permissions.
5.6. The PERMISSION HOLDER shall use its best efforts to provide the
Operator with (i) copies of all correspondence with any governmental
body or authority relating to the Permissions and (ii) access to all
files and other documents regarding the legal capacity, economic and
financial capacity and technical operational capacity maintained by
the PERMISSION HOLDER.
5.7. The PERMISSION HOLDER shall, if necessary and at the Operator's sole
risk and expense, join the Operator in any litigation or other
proceeding brought by or against the Operator relating to the
Services or the Permissions, including to prevent any unauthorized
individual or entity from transmitting signals that would interfere
with the Operator's signals.
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5.8. The PERMISSION HOLDER shall supply to the OPERATOR all and any
information, specially notices received from SNC, necessary for the
compliance with the obligations which are incumbent upon the latter,
including the access to documents relating to the Services,
eventually in the possession of the former.
5.9. The PERMISSION HOLDER undertakes neither to interfere in the
OPERATOR'S commercial relationship with Subscribers nor to request
the OPERATOR to rescind any Subscribers' Agreements with respect to
the clientele developed as a result of the commercial and marketing
efforts of the OPERATOR, except in the case of default of the
Subscriber in the fulfillment of its obligations, that can adversely
and materially affect the obligations and responsibilities of the
PERMISSION HOLDER before the government under the applicable rules.
5.10. The PERMISSION HOLDER hereby ackowledges the confidential character
of the list of Subscribers developed as a result of the commercial
and marketing efforts of the OPERATOR, as well as the OPERATOR'S
exclusive ownership of and rights related to such list.
5.11. The PERMISSION HOLDER hereby ackowledges the exclusive rights of the
OPERATOR to the use and exploitation of the Service Trademark, at
the OPERATOR's best will.
Clause Six: RIGHTS OF PERMISSION HOLDER
6.1. The PERMISSION HOLDER reserves the functional power of supervising
the good use of the spectrum inherent to the operation of the
Services;
6.2. The PERMISSION HOLDER shall be promptly assisted and or indemnified
by the OPERATOR, in the case of an administrative or judicial
proceeding filed against it or in the case of any penalty or
indemnity collected from it, provided that in any case such
proceeding, penalty or indemnity results from the default of the
OPERATOR in the fulfillment of its obligations herein provided for;
6.3. The payment of the expenses and Claims as defined below incurred
with any penalties and indemnities resulting from a default of the
OPERATOR shall be covered by the OPERATOR which for this purpose
shall timely provide the PERMISSION HOLDER with the necessary
amounts, upon request of the same.
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6.4. In the event the PERMISSION HOLDER advances the above referred
amounts, it shall be reimbursed up to three business days after its
advice to the OPERATOR, for the actual amount disbursed;
6.5. It is expressly understood that the PERMISSION HOLDER has no
obligation to make any such advance; and
6.6. The PERMISSION HOLDER also has the right to be reimbursed by the
OPERATOR for the reasonable expenses incurred by it, in connection
with the acts performed at the request of or in the interest of the
OPERATOR, arising from the provisions of this Agreement, provided
they are duly evidenced by means of a detailed report and a
supporting documentation.
Clause Seven: INDEMNITY
7.1. The OPERATOR shall indemnify, reimburse and hold harmless the
PERMISSION HOLDER, its officers, directors, agents, employees and/or
attorneys-in-fact, from and against any and all claims, damages,
losses, liabilities, demands, suits, judgments, causes of action,
legal proceedings, whether civil or criminal, penalties, fines and
other sanctions (herein jointly referred to as "Claims"), and any
reasonable attorney's fees in connection therewith, including any of
the foregoing arising or imposed as a result of this Agreement,
which may in any way arise or potentially arise or be related to the
OPERATOR'S acts or omissions and or the operation of the Paging
Services, including vis a vis the relationship of the OPERATOR and
the Subscribers.
7.2. Once payment is made to the party to be indemnified under the
provision of this Clause, the OPERATOR shall be surrogated in all of
the rights that the indemnified party might have against third
parties, including the manufacturer of the equipment, if applicable.
7.3. The obligation to indemnify provided for herein does not apply to
any claims for which the PERMISSION HOLDER, its officers, directors,
shareholders, agents, employees and/or attorneys-in-fact have
contributed with willful intent or fault.
7.4. The PERMISSION HOLDER shall indemnify the OPERATOR its officers,
directors, agents, employees and/or attorneys-in-fact, in the event
the Permissions are revoked or suspended, or in the event the resale
and operation now agreed become impossible by reason of gross
negligence of the PERMISSION HOLDER.
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7.5. In order to defend and preserve the Permissions, the OPERATOR shall
determine the measures to be followed by the PERMISSION HOLDER, who
shall act in accordance with the OPERATOR's determinations, to the
extent such measures comply with all applicable laws and
regulations.
Clause Eight: OPERATING INCOME, REMUNERATION
8.1. The OPERATOR shall be entitled to the operating income generated by
the resale and operation of the Services, especially income
generated in connection with the contracts executed by the OPERATOR
with the subscribers, but also including any income generated by the
exploitation of ancilliary actvities, the PERMISSION HOLDER hereby
assigning to the OPERATOR any rights it might be entitled to at any
time with respect to such income.
8.2. In view of the assignment above, the PERMISSION HOLDER, in any
agreements it eventually comes to enter into with Subscribers, as a
result of a regulatory requirement, shall notify such Subscribers of
the assignment effected hereby, instructing them to make all
payments directly to the OPERATOR, at the place designed by it.
8.3. The OPERATOR undertakes the responsibility of providing all
necessary documentation regarding the notification and instruction
referred to in item 8.2. above, being the obligation of the
PERMISSION HOLDER limited to signing whatever is necessary and
proposed by the OPERATOR to accomplish item 8.2.
8.4. For the grant of the operation and for the assignment of the rights
arising from the agreements executed with the Subscribers, the
PERMISSION HOLDER is receiving from the OPERATOR's share holders
subscription bonds to purchase 2,5% (two and a half percent) of the
common stock of the OPERATOR (pre-management dilution).
Clause Nine: TAXES
9.1. The OPERATOR undertakes to pay all taxes which are directly or
indirectly levied upon the operation and resale of the Services, as
well as for the payment of any fees related thereto.
9.2. The OPERATOR hereby undertakes to reimburse the PERMISSION HOLDER
for all taxes and fees arising directly from the activities carried
out by the OPERATOR, undertaking full responsibility for any
penalties
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and/or late charges caused by it, no matter when this occurs,
including beyond the term of this Agreement, except for income tax
levied on the PERMISSION HOLDER other than income tax levied upon an
indemnification paid by the OPERATOR to the PERMISSION HOLDER,
according to Clause 7.
9.3. The OPERATOR shall be responsible for any infringements and for any
fiscal violations arising from the execution and performance of this
Agreement.
9.4. During the period this Agreement is in effect, in the event one of
the parties acquires a fiscal exemption for the development of its
activity, the other shall fulfill, as applicable, the accessory
conditions necessary for such exemption.
Clause Ten: CONFIDENTIALITY
10.1. It is hereby agreed that any and all information already supplied or
which comes to be supplied by one party to the other as a result of
this Agreement, specially those regarding the strategic-economic
plan of the operation now contracted, are confidential, and each
party shall and shall cause its representatives, agents, employees,
servants and consultants, to keep any information provided to it by
the other party in strict confidentiality, refraining from divulging
such information in whole or in part, without the previous written
consent of the other party.
10.2. The parties agree as of now that they shall not be responsible for
the violation of the confidentiality obligation provided for in this
clause in the event of a legal or judicial determination which
forces them to disclose to third parties information acquired within
the scope of this instrument, as well as information which becomes
public without their interference.
Clause Eleven: TERM
11.1. This Agreement shall come into effect on the date of its execution
and shall remain in effect with respect to the parties, for the term
of fifteen (15) years, automatically renewable for successive
fifteen (15) year periods, unless no later than 1 (one) year prior
to the end of any term
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notice is given by either party that the Agreement will not be
renewed, up to the maximum term equivalent to the term of
effectiveness of the Permissions or its renewal.
11.2. The parties may rescind this Agreement by mutual consent, provided
the continuity of the services and the operation of the activities
is ensured.
Clause Twelve: MUTUAL COOPERATION
The parties, within the strict compliance with their obligations and within the
scope of the present instrument, shall cooperate with one another before the
Ministry of Communications and other bodies of the Federal, State and Municipal
Public Administrations.
Clause Thirteen: ASSIGNMENT AND TRANSFER
13.1. The direct assignment or transfer of rights and obligations of the
OPERATOR arising from this Agreement can only be performed without
any consent from the PERMISSION HOLDER in addition to the consent
already expressed herein, if to a company which is also an operator,
provided it is affiliated with the OPERATOR, and further provided
that such assignee or transferee specifically assumes such
obligations.
13.2. For purposes of this clause, "affiliated company" shall mean with
respect to the OPERATOR, any and all associated companies as defined
in article 243, first paragraph of the Law 6404/76 (Brazilian
Corporation Law) or any company which, directly or indirectly,
controls, is controlled by or is under common control with the
OPERATOR at the time of the transfer and remains as an affiliated
company throughout the term this Agreement is in effect.
13.3. Notwithstanding the provisions of Clause 13.1. this Agreement and
the rights and obligations of the OPERATOR arising hereunder may be
assigned to any company that is acquiring all or substantially all
of the assets of the OPERATOR with the consent of the PERMISSION
HOLDER, which consent shall not be unreasonably withheld or delayed.
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Clause Fourteen: REPRESENTATIONS AND WARRANTIES OF THE PARTIES
14.1. Except as otherwise provided in this Section, each party represents
and warrants to the other, as to itself that:
(i) such party is a duly organized, validly existing and in good
standing under the laws of Brazil;
(ii) that the execution and delivery by such party of this
Agreement, the consummation by such party of the transactions
contemplated herein and compliance with the terms and
provisions hereof are within such party's corporate powers,
and do not and will not result in a violation of such party's
charter or by-laws as currently in effect;
(iii) this Agreement has been duly authorized, executed and
delivered by such party and is a legal, valid and binding
obligation of such party, enforceable against such party in
accordance with its terms, except as its enforceability may be
limited by bankruptcy, insolvency, reorganization and other
laws of general application affecting the enforcement of
creditor's rights in general;
(iv) according to the law, rules and regulations currently in
force, and the current interpretation thereto, no consent,
approval or authorization of any governmental authority is
required in connection with the execution, conclusion or is
actually enforcement of this Agreement;
(v) the PERMISSION HOLDER represents and warrants that the
Permissions were duly and validly issued in accordance with
the applicable legislation and are in full force and effect,
and that all of the conditions provided for in such
Permissions and in the applicable regulations have been
complied with in full, including but not limited to the
compliance with the term for the start up of operations, as
well as the technical characteristics of the Service provided
for in the Certificate of Project Approval;
(vi) the PERMISSION HOLDER represents and warrants that the
Permissions are free and clear of any liens and encumbrances
of any nature and that it has no knowledge of the existence of
any claim or proceeding, judicial or administrative, aiming at
modifying, suspending, revocating or terminating the
Permissions;
(vii) the PERMISSION HOLDER represents and warrants that its tax
obligations have been fulfilled up to the present date, all
income tax returns required by the tax authorities having been
duly filed; and
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(viii) the PERMISSION HOLDER represents and warrants that it made
the payment of the fees due in connection with receipt the
license for the functioning of the stations of the Service, of
the telecommunications supervision fee corresponding to the
stations to be installed, for purposes of receiving the
licenses for the functioning of the stations, as well as the
supervision fee with respect to the current year.
Clause Fifteen: JURISDICTION
15.1. This Agreement and all questions arising in connection with its
interpretation and legal relations between the parties in connection
herewith shall be governed and construed in accordance with the
substantive law of Brazil.
15.2. All disputes and differences arising from or in connection with this
Agreement, or in relations between the parties with respect to the
subject matter hereof, shall be finally settled by binding
arbitration in accordance with the Rules for Conciliation and
Arbitration of the International Chamber of Commerce (ICC) by three
arbitrators appointed in accordance with said Rules. The place of
arbitration shall be New York, New York, and the arbitration
proceedings shall be conducted in English.
15.3. If for any reason, notwithstanding the international character of
this Agreement and the diverse nationalities of the shareholders in
the companies parties to the same, the preceding clause 15.2. should
not be applied or be held invalid by any court in Brazil or in the
United States of America, the parties specifically agree that any
dispute or controversy relating to this Agreement or otherwise
described in clause 15.2. shall be decided solely and exclusively by
the competent courts of the State of New York, United States of
America.
Clause Sixteen: REFORMATION
16.1. If any competent governmental body or authority should amend or
clarify the law, rules, regulations or policies, or if any court
should interpret any law, regulation or policy in a manner that
would materially adversely affect the rights or obligations of the
parties under this Agreement, then the parties hereto shall promptly
negotiate using their best efforts and in good faith to reform and
amend this Agreement so as to effectuate as nearly as reasonably
possible the intention of the parties expressed in this Agreement.
No party shall take any action that contributes to such
15
amendment, clarification or interpretation without the prior written
consent of the other party. Only in the event the parties are unable
to reach the agreement with respect to the appropriate action to be
taken shall the offending provision(s) be stricken from this
Agreement and the remainder of the Agreement shall be enforced to
the greatest extent permitted by law.
16.2. In what specially regards the provision of Subscribers Agreements,
the parties hereto commit themselves to use their best efforts to
maintain permanently updated information concerning the most recent
regulamentary standards or otherwise recommended by the Ministry of
Communications, to which the Operator shall, as it deems necessary,
consult the Ministry of Communications. It is incumbent to the
Operator to update and develop the proposals of model or standards
considered to be the most adequate to the business conditions,
always observing the above mentioned regulamentary or ministerial
criterias.
16.3. As a condition to the best performance of its obligations and to
assume its continuous representation before the Ministry of
Communications the PERMISSION HOLDER shall grant a power-of-attorney
to persons chosen by mutual agreement with the OPERATOR, conferring
upon them the necessary powers.
Clause Seventeen: GENERAL PROVISIONS
17.1. This Agreement can only be amended with the express consent of both
parties, by means of a written instrument executed by both parties.
17.2. So as to avoid eventual conflicts of interest, the PERMISSION HOLDER
shall not directly assign or negotiate away any interest in, or
negotiate any matters related to, this Agreement, or the
Permissions.
17.3. All publicity and marketing material prepared by the OPERATOR or the
PERMISSION HOLDER within the scope of this Agreement shall be the
property of the OPERATOR.
17.4. The PERMISSION HOLDER and the OPERATOR reciprocally undertake to
inform one another, of any and all operational or technical measure,
or any other action, especially before the Public Administration,
which may adversely affect the activities of either of them, within
the scope of the rights and obligations arising from this Agreement.
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17.5. All communications under this Agreement shall be in writing and
shall be delivered by hand, internationally recognized air courier
or facsimile transmission, charges prepaid:
(i) if to the OPERATOR, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, facsimile
number (011) 521 1814, marked for the attention of ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or at such other address as the
OPERATOR may have furnished in writing to the PERMISSION
HOLDER;
(ii) if to the PERMISSION HOLDER, at Av. Presidente ▇▇▇▇▇▇, 231,
28th floor (part), Rio de Janeiro, ▇.▇., facsimile number
(021) 240-9575, marked for the attention of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dantas, or at such other address as the PERMISSION HOLDER may
have furnished in writing to the OPERATOR.
17.6. No party to this Agreement shall, by virtue of having entered into
this Agreement, be deemed to be the legal representative or agent of
any other party, and no party shall have the right or authority to
approve, create, or incur any liability or any obligation of any
kind, express or implied, against or in name of or on behalf of any
other party, except to the extent otherwise expressly provided in
this Agreement.
17.7. Specifically concerning the reciprocal commercial positions of the
Parties, it is their intention, in accordance with Ordinance number
257/91, of October 23, issued by the Ministry of Communications,
that the OPERATOR is not an agent of the PERMISSION HOLDER, but a
reseller of the Services.
17.8. This Agreement constitutes the entire understanding of the parties
hereto relating to the subject matter hereof and supersedes all
prior agreements or understandings with respect to the subject
matter hereof among such parties.
17.9. The authoritative text of this Agreement shall be the English text.
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In witness whereof, the parties have caused this Agreement to be duly executed
in 03 (three) counterparts of equal content and form, in the presence of the two
witnesses below.
Sao Paulo, December 11th, 1996
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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MULTIPONTO TELECOMUNICACOES LTDA.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
attorney-in-fact
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Trynin
/s/ Marco ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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PAGING NETWORK DO BRASIL S.A.
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Officer Officer
WITNESSES:
1. /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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OAB/RJ 80.668
CPF/MF ▇▇▇.▇▇▇.▇▇▇-▇▇
2. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
OAB/RJ 84.606-E
CPF/MF ▇▇▇.▇▇▇.▇▇▇-▇▇