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EXHIBIT 10.7
EQUIPMENT SUPPLY AND SERVICES AGREEMENT
BETWEEN
MIRROR S.A.
AND
NORTEL NETWORKS CORPORATION
NORTHERN TELECOM DO BRASIL INDUSTRIA E COMERCIO LTDA.
NORTHERN TELECOM DO BRASIL COMERCIO E SERVICOS LTDA.
DATED AS OF JULY 9, 1999
Confidential Treatment Requested. Confidential portions of this document have
been omitted and filed separately with the Securities and Exchange Commission.
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TABLE OF CONTENTS
PAGE
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Article I Definitions; Interpretation.............................................................................2
Section 1.1 Definitions......................................................................................2
Section 1.2 Interpretation..................................................................................11
Article II Strategic Relationship................................................................................12
Section 2.1 Business Dealings Among the Parties.............................................................12
Section 2.2 Common Understandings...........................................................................12
Section 2.3 Principles Governing Business Conduct...........................................................12
Section 2.4 Purchase Commitment.............................................................................13
Article III Term; Condition Precedent; Suspensive Condition......................................................13
Section 3.1 Term............................................................................................13
Section 3.2 Effective Date..................................................................................14
Section 3.3 Suspensive Conditions...........................................................................14
Article IV Scope of Agreement and Turnkey Responsibilities.......................................................14
Section 4.1 Scope of Agreement..............................................................................14
Section 4.2 Turnkey Concept.................................................................................14
Section 4.3 Turnkey Network.................................................................................14
Section 4.4 Turnkey Switch Service Areas....................................................................14
Section 4.5 Turnkey Systems.................................................................................15
Section 4.6 Modification of Turnkey Responsibilities........................................................15
Section 4.7 Nortel's Subcontractors.........................................................................15
Section 4.8 Subcontractor Management........................................................................16
Section 4.9 Specifications..................................................................................16
Section 4.10 Technical Services Agreement/INPI Registration.................................................16
Article V Order, Delivery, Title Passage and Import Procedures...................................................17
Section 5.1 Order Procedures................................................................................17
Section 5.2 Delivery of Certain Equipment...................................................................17
Section 5.3 Title Passage and Risk of Loss of Equipment.....................................................17
Section 5.4 Import Procedures for [***].....................................................................18
Article VI Time Schedule.........................................................................................18
Section 6.1 Perform to Schedule.............................................................................18
Section 6.2 Time Is of the Essence..........................................................................19
Section 6.3 Anticipated Delays..............................................................................19
Section 6.4 [***]...........................................................................................19
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Section 6.5 No Release Upon Payment of Liquidated Damages...................................................19
Article VII Prices and Payment Terms.............................................................................19
Section 7.1 [***]...........................................................................................19
Section 7.2 Import Duties; Taxes............................................................................20
Section 7.3 Prices..........................................................................................21
Section 7.4 Price Basis.....................................................................................22
Section 7.5 Invoices........................................................................................23
Section 7.6 Payment Terms...................................................................................23
Section 7.7 Calculation of Interest.........................................................................27
Section 7.8 Payment Disputes................................................................................28
Section 7.9 Financing.......................................................................................28
Section 7.10 [***]..........................................................................................28
Article VIII Supply Agreement Administration and Project Management..............................................29
Section 8.1 Project Management..............................................................................29
Section 8.2 Progress Review Meeting.........................................................................30
Section 8.3 Agreement Administration by Mirror..............................................................30
Section 8.4 Nortel Employees................................................................................30
Article IX Division of Responsibilities..........................................................................31
Section 9.1 Joint Responsibilities..........................................................................31
Section 9.2 Mirror Responsibilities.........................................................................31
Section 9.3 Nortel Responsibilities.........................................................................32
Section 9.4 [***]...........................................................................................35
Article X Indemnification, Damages, and Delays...................................................................35
Section 10.1 General Indemnity (Mirror).....................................................................35
Section 10.2 Infringement Indemnity.........................................................................36
Section 10.3 [***]..........................................................................................37
Section 10.4 Failure to Meet Time Schedule (Liquidated Damages).............................................37
Section 10.5 [***]..........................................................................................40
Article XI Quality Assurance.....................................................................................41
Section 11.1 Quality Assurance..............................................................................41
Article XII Environmental Policy.................................................................................41
Section 12.1 Environment; Environmental Policy..............................................................41
Article XIII Warranties..........................................................................................42
Section 13.1 Hardware Warranty..............................................................................42
Section 13.2 Application Procedures for Hardware Warranty...................................................43
Section 13.3 Software Warranty..............................................................................44
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Section 13.4 Year 2000 Warranty.............................................................................44
Section 13.5 Warranty for Services..........................................................................45
Section 13.6 No Trouble Found...............................................................................45
Section 13.7 [***]..........................................................................................45
Section 13.8 [***]..........................................................................................45
Section 13.9 Support Services Program.......................................................................46
Section 13.10 [***].........................................................................................46
Section 13.11 [***].........................................................................................47
Section 13.12 [***].........................................................................................47
Section 13.13 Equipment Changes or Substitutions by Nortel..................................................47
Section 13.14 Network Expansion and Spares (Continuity of Supply)...........................................48
Section 13.15 Disclaimer of Warranties......................................................................49
Article XIV Software.............................................................................................50
Section 14.1 Software.......................................................................................50
Section 14.2 Software Patches...............................................................................50
Section 14.3 Software Upgrades..............................................................................50
Article XV Documentation.........................................................................................50
Section 15.1 Documentation to be Provided by Nortel.........................................................50
Section 15.2 License to Documentation.......................................................................51
Section 15.3 Proprietary Information........................................................................51
Section 15.4 Documents to Become Property of Mirror.........................................................51
Section 15.5 Responsibility for Documents...................................................................51
Article XVI Force Majeure and Acts of Providence.................................................................52
Section 16.1 Force Majeure..................................................................................52
Section 16.2 Acts of Providence.............................................................................52
Section 16.3 Exclusions.....................................................................................53
Section 16.4 Procedure for Calling Force Majeure or Acts of Providence......................................53
Section 16.5 Effects of Force Majeure or Acts of Providence.................................................54
Article XVII Representations and Warranties......................................................................54
Section 17.1 Representations and Warranties of Nortel.......................................................54
Section 17.2 Representations and Warranties of Mirror.......................................................55
Article XVIII Insurance..........................................................................................56
Section 18.1 Insurance......................................................................................56
Article XIX Limitation on Liability..............................................................................57
Section 19.1 Limitation of Liability........................................................................57
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Article XX Confidentiality.......................................................................................57
Section 20.1 Confidentiality................................................................................57
Article XXI Events of Default; Termination.......................................................................60
Section 21.1 Mirror Events of Default.......................................................................60
Section 21.2 Remedies for Mirror Events of Default..........................................................60
Section 21.3 Nortel Events of Default.......................................................................60
Section 21.4 Remedies for Nortel Events of Default..........................................................61
Section 21.5 Effects of Termination on Pre-Existing Rights..................................................61
Article XXII Governing Law; Resolution of Disputes...............................................................61
Section 22.1 Governing Law..................................................................................61
Section 22.2 Disputes.......................................................................................61
Section 22.3 Executive Resolution...........................................................................61
Section 22.4 Arbitration....................................................................................62
Section XXIII [***]...............................................................................................63
Section 23.1 [***]..........................................................................................63
Section 23.2 [***]..........................................................................................63
Article XXIV Miscellaneous.......................................................................................64
Section 24.1 Compliance with Law............................................................................64
Section 24.2 Publicity and Trademark........................................................................64
Section 24.3 Assignment.....................................................................................64
Section 24.4 Notices........................................................................................64
Section 24.5 Modifications to Notice Address................................................................65
Section 24.6 Records........................................................................................65
Section 24.7 Severability...................................................................................65
Section 24.8 Survival.......................................................................................66
Section 24.9 Consent........................................................................................66
Section 24.10 Discrepancies or Inconsistencies..............................................................66
Section 24.11 Amendment, Modification or Addendum...........................................................66
Section 24.12 No Waiver of Rights; No Novation..............................................................66
Section 24.13 Costs and Expenses............................................................................67
Section 24.14 Relationship of the Parties...................................................................67
Section 24.15 Language of Agreement.........................................................................67
Section 24.16 Third Party Beneficiaries.....................................................................67
Section 24.17 Relationship of Nortel Networks, Nortel Servicos and Nortel Industria.........................67
Section 24.18 Schedules.....................................................................................67
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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SCHEDULE SCHEDULES
Schedule 4.1 [***]
Schedule 4.9 [***]
Schedule 4.10 [***]
Schedule 5.1(a) [***]
Schedule 6.1 [***]
Schedule 7.3(a) [***]
Schedule 7.6(f)(vi) [***]
Schedule 7.9 [***]
Schedule 7.10 [***]
Schedule 8.1(a) [***]
Schedule 9.1(a) [***]
Schedule 9.3(a) [***]
Schedule 9.3(d) [***]
Schedule 10.6 [***]
Schedule 13.2 [***]
Schedule 13.9 [***]
Schedule 14.1 [***]
Schedule 15.1 [***]
Schedule 17.1(a) [***]
Schedule 23 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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EQUIPMENT SUPPLY AND SERVICES AGREEMENT
This EQUIPMENT Supply and Services Agreement (this "AGREEMENT") is entered
into as of the date specified on the signature page hereof between MIRROR S.A.,
a corporation duly organized under the laws of Brazil with its head office in
the city and State of Rio de Janeiro, Brazil, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇, ▇▇ degrees andar, registered with the Brazilian Registry of Legal Entities
(CNPJ) n degrees 02.730.101/0001-43 ("MIRROR"), and NORTEL NETWORKS CORPORATION,
a Canadian corporation with its head office located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ("NORTEL NETWORKS"), NORTHERN TELECOM DO BRASIL
INDUSTRIA E COMERCIO LTDA., a corporation duly organized under the laws of
Brazil, with its head office in the city and State of Sao Paulo, Brazil, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, 4 degrees andar, Santo ▇▇▇▇▇, registered with the
Brazilian Registry of Legal Entities (CNPJ) under n degrees 67.807.859/0001-88,
("NORTEL INDUSTRIA"), and NORTHERN TELECOM DO BRASIL COMERCIO E SERVICOS LTDA.,
a corporation duly organized under the laws of Brazil, with its head office in
the city and state of Sao Paulo, Brazil, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
10 degrees andar, Parte A, Santo ▇▇▇▇▇, registered with the Brazilian Registry
of Legal Entities (CNPJ) under n degrees 01.993.432/0001-03, ("NORTEL SERVICOS"
and, together with Nortel Networks and Nortel Industria and any Affiliate of any
of them that provides Equipment or Services hereunder, "NORTEL"). Each of Mirror
and Nortel are referred to herein as a "PARTY" and, collectively, as the
"Parties."
RECITALS
Whereas, Mirror has entered into two agreements with ANATEL, the Termos de
Autorizacao do Servico Telefonico Comutado, Modalidades Local e Longa Distancia,
entered into on February 4, 1999 (collectively, the "LICENSE") to provide
switched fixed telecommunications services in Region I of Brazil (as defined in
Schedule I of the Request for Bid in Bidding Procedure No. 0001/98/SBP/ANATEL),
comprising the following states of the Brazilian territory: Rio de Janeiro,
Minas Gerais, Espirito Santo, Bahia, Sergipe, Alagoas, Pernambuco, Paraiba, Rio
Grande do Norte, Ceara, Piaui, Maranhao, Para, Amapa, Amazonas and Roraima (the
"TERRITORY");
Whereas, Nortel is a worldwide provider of integrated telecommunications
solutions, with manufacturing operations in several countries, including a
state-of-the-art manufacturing facility located in the city of Campinas, state
of Sao Paulo, Brazil;
Whereas, Mirror seeks to purchase Equipment and Services from Nortel for
the purpose of engineering, commissioning, building and installing a public
switched telecommunications network in the Territory (the "PROJECT"), [***] on a
Turnkey basis as provided herein;
Whereas, Nortel is willing to supply to Mirror, and Mirror is willing to
purchase from Nortel, Equipment and Services for deployment in connection with
the Project on the terms and conditions set forth in this Agreement;
[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
WHEREAS, Mirror and Nortel have executed a Letter of Understanding dated
March 31, 1999 (as subsequently amended) to support the start of Project
implementation before the execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual premises contained herein,
the Parties hereby agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.1 Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings set forth below:
"ACCEPTANCE" means Partial Provisional Acceptance, Provisional Acceptance
and/or Final Acceptance, as the case may be.
"ACCEPTANCE TEST PROCEDURES" means mutually agreed methods of testing and
procedures that will be used to measure the performance of the Network, Switch
Service Areas, Equipment, Systems and Services to determine compliance with the
Specifications, which methods shall be defined and administered in accordance
with Schedule 9.3(a).
"ACTS OF PROVIDENCE" has the meaning set forth in Section 16.2.
"ADDITIONAL EQUIPMENT" has the meaning set forth in Section 13.10(c).
"AFFECTED PARTY" has the meaning set forth in Section 16.4(a).
"AFFILIATE," with respect to any Person, means any other Person, now or
hereafter existing, that, directly or indirectly, Controls, is Controlled by, or
is under common Control with, such Person.
"AGREEMENT" means this Agreement and its Schedules.
"ANATEL" means the Agencia Nacional de Telecomunicacoes of Brazil.
"AUTHORITY" means any governmental or other regulatory authority, agency or
instrumentality with jurisdiction over the operations of Mirror in Brazil,
including but not limited to ANATEL, and includes any officer empowered by such
Authority to perform all or any of the functions of the Authority or the
functional equivalent successors of the Authority.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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"AUDITOR" has the meaning set forth in Section 7.1(c).
"AUTHORIZED AGENT" has the meaning set forth in Section 20.1(e).
"BRAZIL" means the Republica Federativa do Brasil.
"BUSINESS DAY" means any day other than a Saturday, Sunday or a day on
which commercial banks are authorized or required to be closed in Sao Paulo or
Rio de Janeiro, Brazil or in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"BUSINESS PLAN" means Mirror's business plan comprising the pro-forma
balance sheet, the pro-forma statement of earnings and cash flow and pro-forma
financing requirements for Mirror, as such Business Plan may from time to time
be revised by Mirror.
"CDMA" means "code division multiple access" technology.
"CELL SITE" means a Site containing transmission and ancillary Equipment
designed to broadcast wireless signals to other Cell Sites, to one or more
Switches and/or to Customers, which signals are used to complete calls on the
Network.
"CHANGE ORDER" has the meaning set forth in Schedule 5.1(a).
"CHANGE ORDER PROCEDURE" means the procedure for requesting and
implementing Change Orders as specified in Schedule 5.1(a).
[***]
"CLASS A HARDWARE CHANGE" means a modification of existing Equipment to
remedy non-conformance to the Specifications that is required to correct design
defects of a type that result in electrical or mechanical inoperative conditions
or unsatisfactory operating conditions or that is required to enhance safety.
"CLASS AC HARDWARE CHANGE" means a modification of existing Equipment to
remedy electrical or mechanical inoperative conditions or unsatisfactory
operating conditions, which results from Equipment aging or when it is used in
combination with specific other Equipment or in combination with a particular
feature or option.
"COMMERCIAL LAUNCH" means the date on which the Equipment or Systems that
are the subject of an Order Document are completed (including the completion of
the Trial Run, if applicable) and such Equipment or Systems begin to operate
with paying customers (not including customers taking service on a trial basis
during the Trial Run).
"COMMISSIONING" means the powering of the Equipment, the loading of the
Software and the activation of the Equipment.
"COMPLETED SITES" has the meaning set forth in Section 7.6(a)(iv).
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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"CONFIDENTIAL INFORMATION" has the meaning set forth in Section 20.1(a).
"CONTROL" is possessed by a Person over another Person (such other Person
the "SUBJECT PERSON") if such Person (alone or in combination with one or more
related Persons), (i) holds shares or possesses rights that assure it the
majority of votes in resolutions in a general meeting of shareholders and the
power to elect a majority of the subject Person's directors and officers; (ii)
holds shares or possesses rights either directly or indirectly through the
control of other subject Person(s) that assure its prevalence in corporate
resolutions and the power to elect the majority of the subject Person's
directors and officers; (iii) satisfies the definitions of "control" set forth
in articles 116 and 243(2) of the Brazilian Company Act or any successor or
replacement legislation thereof or (iv) has the power otherwise to cause the
direction of the management of the subject Person; "CONTROLLING" or "CONTROLLED"
have corresponding meanings.
"COURSES" has the meaning set forth in Section 9.3(d).
[***]
"CUSTOMER" means a subscriber to the telecommunications services provided
by Mirror over the Network that is charged by Mirror for such services.
[***]
[***]
[***]
"DELIVERY" means delivery of Equipment to the applicable Site in
conformance with the Specifications and the provisions of Section 5.2.
"DISPUTE" has the meaning set forth in Section 22.2.
"DISPUTE NOTICE" has the meaning set forth in Section 22.3(a).
"DOCUMENTATION" means the documents describing the Network, the Equipment,
the Services, Software and each of the Systems, general operating instructions,
drawings, diagrams and other written material as well as electronic material
(such as in the form of CD-ROM and other electronic media), if any.
"DOLLARS" or "US DOLLARS" or "US$" means the lawful currency of the United
States of America.
"EFFECTIVE DATE" has the meaning set forth in Section 3.2.
"EQUIPMENT" means all of the equipment including, without limitation,
hardware, software and spare parts necessary to provide telecommunications
services to Customers within the Territory, consistent with applicable Laws and
specifications.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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"ETAS" has the meaning set forth in Section 13.9.
"EVENTS OF DEFAULT" has the meaning set forth in Section 21.1.
"EXCESS CAPACITY" has the meaning set forth in Section 13.10(c).
"EXCESS DUTIES" has the meaning set forth in Section 7.2(a).
[***]
"FINAL ACCEPTANCE" means that the Equipment, Services and/or Systems that
are the subject of an Order Document have been completed and successfully have
met all of the requirements for Final Acceptance set forth in Schedule 9.3(a)
and/or such Order Document, as the case may be, and all Punchlist items, if any,
have been completed to Mirror's satisfaction.
"FINANCING AGREEMENT" means one or more agreements regarding financing of
Equipment and Services as well as related import duties and taxes, as more fully
described in the Term Sheet.
"FINANCING FACILITY" has the meaning set forth in Section 7.2(b).
"FORCE MAJEURE" has the meaning set forth in Section 16.1.
"GOVERNMENT" means the government of Brazil, any state, region,
municipality or other political subdivision and/or any ministry, department,
agency or other instrumentality thereof.
[***]
"HARDWARE" means all the Nortel Equipment and Scope Equipment as defined
herein, including spare parts but not including Software.
"HARDWARE WARRANTY" has the meaning set forth in Section 13.1(b).
"HARDWARE WARRANTY PERIOD" has the meaning set forth in Section 13.1(b).
[***]
"IMPORTED SERVICES" has the meaning set forth in Section 4.10.
"INDEMNIFIED EQUIPMENT" has the meaning set forth in Section 10.2(a).
"INFRASTRUCTURE EQUIPMENT AND SERVICES" has the meaning set forth in
Section 2.4(a).
"INITIAL BUILD" has the meaning set forth in Section 7.6(a)(i).
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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"INSTALLATION" or "INSTALLATION SERVICES" means the Services listed in
Schedule 4.9 relating to assembling and installation of Equipment.
"INTEREST RATE" has the meaning set forth in Section 7.6(c).
"LAW" means the Constitution of Brazil, the Constitution of the State of
Rio de Janeiro or any other state located in the Territory, statutes,
provisional measures ("medidas provisorias"), Permit terms, judicial orders,
injunctive relief and other decisions, executive decrees, codes, administrative
decisions and rulings, regulations, assessments or requirements, in each case,
by or of any Authority generally affecting the residents of Brazil or the State
of Rio de Janeiro or any other state located in the Territory, or specifically
affecting any of the Parties or their performance under this Agreement. In
addition, Laws shall include all of the foregoing promulgated by any authority
of any other jurisdiction to which the Parties or any of them are subject.
"LICENSE" has the meaning set forth in the Recitals to this Agreement.
"LIQUIDATED DAMAGES" has the meaning set forth in Section 10.4(f).
"LOAN" has the meaning set forth in Section 7.6(f)(vi).
"LOSS" means any loss, damage, claim, obligation, liability or expense,
including reasonable attorneys' and experts' fees.
[***]
"MIRROR" has the meaning set forth in the Introductory Paragraph to this
Agreement.
"MIRROR DELAYS" has the meaning set forth in Section 10.4(f).
"MIRROR INDEMNIFIED PERSONS" has the meaning set forth in Section 10.1(a).
"MIRROR-INSTALLED EQUIPMENT" has the meaning set forth in Section 5.2(a).
"MIRROR PROJECT MANAGER" has the meaning set forth in Section 8.1(c).
"MIRROR'S WAREHOUSE" means Mirror's storage facilities located at specific
sites to be designated from time to time by Mirror in a notice to Nortel.
"NETWORK" means the complete and operating integrated ensemble of Systems,
Equipment and Services, necessary to permit Mirror to provide telecommunications
services to Customers in the Territory, consistent with applicable Laws and the
Specifications.
"NORTEL" has the meaning set forth in the Introductory Paragraph to this
Agreement.
"NORTEL EQUIPMENT" means the Equipment identified as such on Schedule
7.3(a) that Nortel is required to provide (either directly or through
Subcontractors) to Mirror under this
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Agreement, including, without limitation, the Hardware and Software specified on
such Schedule and OEM Equipment.
"NORTEL INDUSTRIA" has the meaning set forth in the Introductory Paragraph
to this Agreement.
"NORTEL PROJECT MANAGER" has the meaning set forth in Section 8.1(b).
"NORTEL REPRESENTATIVE" means any agent, representative, servant,
Subcontractor, officer or employee of Nortel or its successors or permitted
assigns.
"NORTEL SERVICES" means the Services that Nortel is required to provide
under this Agreement as specified on Schedule 7.3(a) including, without
limitation, (i) Project Management Services, (ii) Services associated with the
engineering, furnishing, commissioning and Installing Nortel Equipment and
Nortel provided Systems and the preparation of such Equipment and Systems for
operation, and (iii) Services that, by agreement of Mirror and Nortel, Nortel
will provide that are associated with the engineering, furnishing, commissioning
and/or Installing of Scope Equipment and other non-Nortel Equipment and the
preparation of such Equipment for operation.
"NORTEL SERVICOS" has the meaning set forth in the Introductory Paragraph
to this Agreement.
"NORTEL NETWORKS" has the meaning set forth in the Introductory Paragraph
to this Agreement.
"O&M" means operations and maintenance.
"OEM EQUIPMENT" means Equipment supplied by Nortel that is manufactured by
a third Person vendor but is not Scope Equipment.
"ORDER DOCUMENT" has the meaning set forth in Schedule 5.1(a).
"OTHER PURCHASE" has the meaning set forth in Section 7.6(a).
"PARTIAL COMMERCIAL LAUNCH" means, with respect to an SSA Purchase Order,
the Commercial Launch (at Mirror's sole discretion) of less than all of the
number of Cell Sites specified in such SSA Purchase Order.
"PARTIAL PROVISIONAL ACCEPTANCE" means, with respect to an SSA Purchase
Order, the Provisional Acceptance (at Mirror's sole discretion) of less than all
of the number of Cell Sites specified in such SSA Purchase Order.
"PARTY" or "PARTIES" has the meaning set forth in the Introductory
Paragraph to this Agreement.
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[***]
"PERMIT" means any consent, license, approval, permit, exemption,
registration, no objection certificate or other authorization of whatever nature
that is required to be granted at any time by any Person (a) for the purposes of
the Project including, without limitation, the construction, installation and
operation of the Network, the sale of the Equipment and/or the provision of the
Services; or (b) to allow Mirror to be permitted to enter into, or to exercise
its rights or observe or perform its obligations under, this Agreement.
"PERSON(S)" includes, without limitation, any individual, firm, company,
association, partnership, joint venture, trust, investment company, pension fund
or investment fund, or other entity, or any government or any ministry,
department or agency thereof.
"PLUG-IN" has the meaning set forth in Section 13.2(c).
[***]
"PRIME SUBCONTRACTOR" means a Subcontractor that has entered into a
contract with Nortel or Mirror (as the case may be) with a value in excess of
R$5 million per year.
"PROJECT" has the meaning set forth in the Recitals to this Agreement.
"PROJECT MANAGEMENT SERVICES" means the portion of the Services to be
provided by Nortel identified as such on Schedules 7.3(a) and 8.1(a).
"PROPRIETARY RIGHTS" has the meaning set forth in Section 10.2(a).
"PROVISIONAL ACCEPTANCE" means that a particular System, Switch Service
Area or Other Purchase has met the requirements for Provisional Acceptance set
forth in Schedule 9.3(a) with respect to all components of such System or all
Sites in, and other aspects of, such Switch Service Area or Other Purchase, as
the case may be, except for non-material Punchlist items.
"PRUDENT INDUSTRY PRACTICE" means those practices, methods, equipment
specifications and standards of safety and performance (including compliance
with all equipment manufacturers' specifications and recommended standards for
O&M), as the same may change from time to time, as are commonly used by firms
performing turnkey engineering, furnishing, installation and construction
services on facilities of the type and size similar to the Network, which in the
exercise of reasonable judgment and in the light of the facts that are known or
should have been known at the time the decision was made, are considered good,
safe and prudent practice in connection with the design, construction and use of
equipment, software, facilities and improvements, with commensurate standards of
safety, performance, dependability, efficiency and economy. Prudent Industry
Practice is not intended to be limited to the optimum practice or method to the
exclusion of all others, but rather to be a spectrum of reasonable and prudent
practices and methods.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
8
15
"PSTN" means the public switched telephone network in the Territory and in
Brazil as a whole.
"PUNCHLIST" means a list of defects or faults in Services, Equipment, a
Switch Service Area, a System or an Other Purchase, to be resolved by Nortel
prior to Final Acceptance thereof.
"PURCHASE COMMITMENT" has the meaning set forth in Section 2.4(b).
"PURCHASE ORDER" has the meaning set forth in Schedule 5.1(a).
"QUALCOMM" means ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, a Delaware corporation, or its
successors or permitted assigns, or any other Equipment supplier (other than
Nortel) supplying CDMA wireless access infrastructure Equipment for the Network.
"REAL" or "REAIS" OR "R$" means the lawful currency of Brazil.
"REQUEST FOR QUOTATION" has the meaning set forth in Schedule 5.1(a).
"RESPONSE NOTICE" has the meaning set forth in Section 22.3(b).
"RESPONSIBILITY MATRIX" means the table allocating tasks and
responsibilities between Mirror and Nortel for a given phase of the Project as
set forth in Schedule 9.1(a).
"RSS" means the Residential Subscriber Systems identified in Schedules 4.9
and 7.3(a).
"SCHEDULES" means the schedules attached to this Agreement.
"SCOPE EQUIPMENT" means Equipment supplied by Nortel but manufactured by a
third party vendor identified as such in Schedule 7.3(a).
"SCOPE SERVICES" means Services that are associated with the engineering,
furnishing, commissioning and/or installing of Scope Equipment and the
preparation of such Equipment for operation, other than such Services that, by
agreement of the Parties, are Nortel Services, as provided in the definition of
Nortel Services.
"SCOPE OF WORK" means the description of the work that Nortel shall perform
under this Agreement, as set forth in Schedule 4.1.
"SERVICES" means all services required to engineer, furnish and install the
Equipment and Systems comprising the Network and to prepare the Network for
operation.
[***]
"SITE" means Mirror's Warehouse or any specific premises where Nortel shall
deliver Equipment or perform Services, as designated by Mirror.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
9
16
"SOFT LAUNCH" means, as applicable with respect to a Switch Service Area or
System, the commencement of the Trial Run after the Provisional Acceptance (or
Partial Provisional Acceptance) of such Switch Service Area or System, as the
case may be.
"SOFTWARE" means the proprietary and/or third party software computer
programs (consisting of firmware and logic instructions in machine-readable code
residing in, or intended to be loaded in, system memories that provide basic
logic, operating instructions and user-related application instructions, but
excluding customer data) as well as associated Documentation used to describe,
maintain and use such programs that are integral to any Equipment required for
the Network; any reference herein to Software being sold, purchased or the like
is understood to be a reference to the Software being licensed by Nortel for use
by Mirror.
"SOFTWARE LICENSE" has the meaning set forth in Section 14.1.
"SOFTWARE WARRANTY" has the meaning set forth in Section 13.3.
"SOFTWARE WARRANTY PERIOD" means the period during which the Software
Warranty is in effect pursuant to Section 13.3(a).
"SPECIAL CREDITS" has the meaning set forth in Section 7.3(f).
"SPECIFICATIONS" means the technical standards and specifications, as well
as the requirements, of the Nortel Equipment and, as applicable, Scope
Equipment, in each case as set forth on Schedule 4.9 and on the relevant Order
Document, as the case may be.
"STAND-ALONE OEM EQUIPMENT" has the meaning set forth in Section 13.1(d).
"SUBCONTRACTOR" means any Person engaged to provide specific Equipment or
Services for the Network.
"SWITCH" means a Network element deployed within the Network that enables
the concentration, distribution, supervision of telecommunications traffic and
the gathering of billing data for calls to and from Mirror's Customers.
"SWITCH SERVICE AREA" or "SSA" means the portion of the Network installed
within the geographic area covered by a single Switching center and all
subsidiary Equipment attached to the Switches comprising such Switching center
including, without limitation, base station Equipment, transmission Equipment
and power system Equipment. "SSA PURCHASE ORDER" has the meaning set forth in
Schedule 5.1(a).
"SSA REQUEST FOR QUOTATION" has the meaning set forth in Schedule 5.1(a).
"SYSTEM" means a group of Equipment, Services, components and
infrastructure related to the Network and performing a specific function in the
Network such as, without limitation, billing system, transport system, voice
messaging system and data system.
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17
"TECHNICAL ASSISTANCE SERVICES" means the Services listed under such
heading in Schedule 9.3(d).
"TECHNICAL SERVICES AGREEMENT" has the meaning set forth in Section 4.10.
"TERM" has the meaning set forth in Section 3.1.
"TERM SHEET" means the term sheet for the Financing Agreement, which will
be attached hereto as Schedule 7.9.
"TERRITORY" has the meaning set forth in the Recitals to this Agreement.
"TIME SCHEDULE" has the meaning set forth in Section 6.1(a).
"TOOLS" has the meaning set forth in Section 9.3(j).
[***]
"TRIAL RUN" means, as applicable, with respect to a Switch Service Area,
the period prior to Commercial Launch when the Switch Service Area will be
optimized and operating with non-regularly paying customers. [***]
"TURNKEY" has the meaning set forth in Section 4.2.
"UNCOMPLETED SITES" has the meaning set forth in Section 7.6(a)(iv).
"VOLUME CREDITS" has the meaning set forth in Section 7.3(e).
"WARRANTY PERIOD" means the Software Warranty Period and/or the Hardware
Warranty Period, as the case may be.
"YEAR 2000 COMPLIANT" has the meaning set forth in Section 13.4(a).
Section 1.2 Interpretation. In this Agreement, (i) any reference to an
agreement or document shall mean such agreement or document as the same may be
supplemented, amended or modified from time to time in accordance with its
terms; (ii) in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from but excluding" and the words
"until" and "to" mean "to and including"; (iii) words importing the singular
shall include the plural and vice versa, and (iv) words importing the masculine
gender shall include the feminine and vice versa; (v) reference to any article,
section, clause, paragraph or schedule shall mean the applicable article,
section, clause, paragraph of, or schedule to, this Agreement, unless the
context otherwise requires; (vi) terms defined in this Agreement, when used in a
schedule to this Agreement, shall have the same meaning in such schedule as in
the Agreement; and (vii)
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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18
capitalized terms used in a schedule that are not defined in this Agreement
shall have the meaning attributed to them in such schedule.
ARTICLE II
STRATEGIC RELATIONSHIP
Section 2.1 Business Dealings Among the Parties. Mirror and Nortel are
entering into a collaborative relationship intended to enable Mirror to obtain a
significant competitive advantage in offering telecommunications services in the
Territory pursuant to the License. Each of the Parties will demonstrate
integrity and commitment to the Project of the highest order so as to achieve
world class status with respect thereto and to maximize the success of the
Project.
Section 2.2 Common Understandings. The Parties understand and acknowledge
that the following principles are critical to the success of the relationship
established by this Agreement and accordingly will strive to:
(a) create business value for each of the Parties;
(b) provide a high level of commitment to the relationship;
(c) work together through the learning curve;
(d) work together to accelerate innovation and expansion of the market
for the services to be provided by Mirror; and
(e) develop and implement reliable methods, measurements, waste
reduction and other quality assurance principles.
Section 2.3 Principles Governing Business Conduct. In support of the
critical success factors set forth in Section 2.1 and Section 2.2, the Parties
shall conduct business in the manner set forth below:
(a) Communication between the Parties shall be accurate, timely,
complete and concise. The Parties shall provide information that is meaningful
and not hold such information as leverage against one another.
(b) The Parties shall endeavor to resolve issues and complete
negotiations at the lowest appropriate management levels within their respective
organizations. When escalation of an issue to a more senior management
representative is warranted, the Parties shall jointly escalate such issue.
(c) The Parties shall strive continuously to improve business processes
and technology standards.
(d) Nortel shall identify and explore applications of new technologies.
Accordingly, technological innovations in relevant substantive fields shall be
constantly monitored
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and reviewed by Nortel and discussed with Mirror for applicability to the
Project, both within and outside of the context of the [***].
(e) The intent of the Parties is to share, as set forth herein or
otherwise mutually agreed by the Parties, the risks and benefits resulting from
business activities under this Agreement.
Section 2.4 Purchase Commitment.
(a) For purposes of this Agreement, "INFRASTRUCTURE EQUIPMENT AND
SERVICES" means wireless local access infrastructure Nortel Equipment and
related Nortel Services provided on a Turnkey basis, including all Nortel
Services required to engineer, furnish and install such Equipment and to achieve
Final Acceptance with respect thereto, in each case identified as such in
Schedule 7.3(a).
(b) [***]
(c) [***]
ARTICLE III
TERM; CONDITION PRECEDENT; SUSPENSIVE CONDITION
Section 3.1 Term. The term of this Agreement (the "TERM") shall be five (5)
years from the Effective Date, unless terminated earlier pursuant to Article
XXI, subject to renewal upon the mutual agreement of the Parties.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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20
Section 3.2 Effective Date. For the purposes of this Agreement, the date
that is the later of (a) the date on which the Parties execute the Term Sheet
and (b) the date on which the Parties execute this Agreement is referred to as
(the "EFFECTIVE DATE").
Section 3.3 Suspensive Conditions. In the event that the Parties fail (i)
to complete all required due diligence, and (ii) to receive all required
corporate authorizations, in each case in respect of the Financing Facility, by
July 31,1999, unless otherwise agreed by the Parties, this Agreement shall
terminate automatically and be of no further force and effect, without liability
for default.
ARTICLE IV
SCOPE OF AGREEMENT AND TURNKEY RESPONSIBILITIES
Section 4.1 Scope of Agreement. Pursuant to the Scope of Work and subject
to the terms and conditions of this Agreement, Nortel agrees to supply to Mirror
and Mirror agrees to purchase from Nortel, Nortel Equipment and Nortel Services.
In addition, Nortel shall consider in good faith any request to supply any other
Equipment and/or Services in accordance with the terms and conditions of this
Agreement.
Section 4.2 Turnkey Concept. Nortel shall manage and oversee the overall
development and implementation of the Network (Nortel's "TURNKEY"
responsibilities) in accordance with the terms of this Agreement including,
without limitation, the Scope of Work, the Time Schedule, the Specifications and
as specified in greater detail in Sections 4.3 through 4.6.
Section 4.3 Turnkey Network. Nortel's responsibilities with respect to
implementing the Network as a whole (as detailed more fully in the
Responsibility Matrix) shall encompass the Project Management Services and,
without limitation, the following:
[***]
Section 4.4 Turnkey Switch Service Areas. Nortel's Turnkey responsibilities
with respect to implementing each Switch Service Area or Other Purchase, as the
case may be (as detailed more fully in the Responsibility Matrix), shall
encompass, without limitation:
[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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21
[***]
Section 4.5 Turnkey Systems. Nortel's Turnkey responsibilities with respect
to implementing each System (as detailed more fully in the Responsibility
Matrix) shall encompass, without limitation:
[***]
Section 4.6 Modification of Turnkey Responsibilities. During the Term,
Mirror may, upon consultation with Nortel, modify the Responsibility Matrix for
the Project such that Mirror assumes a greater role in the management of the
Project, thereby modifying the Turnkey nature of the Project and Nortel's
obligations hereunder. Mirror agrees to provide Nortel with three (3) months'
notice prior to implementing any such modification.
Section 4.7 Nortel's Subcontractors. Nortel may subcontract the manufacture
of Nortel Equipment and the provision of Nortel Services as it deems
appropriate, subject to Section 24.1 and to the following provisions:
(a) All Subcontractors must have a demonstrated track record of (i)
performing world-class quality work, (ii) reliability and (iii) experience in
performing the relevant tasks for which such Subcontractors are contracted.
(b) Prior to engaging any Prime Subcontractor, Nortel shall first
notify Mirror and obtain the consent of Mirror to the engagement of such Prime
Subcontractor.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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22
Section 4.8 Subcontractor Management.
(a) [***]
(b) Nortel shall be and remain fully responsible to Mirror for
providing the Equipment and Services in accordance with the terms and conditions
of this Agreement irrespective of [***] the performance of Subcontractors, or
any of their respective employees, agents, representatives and consultants.
(c) Nothing contained herein shall be interpreted to create any
contractual or labor relationship between any Subcontractor and Mirror, except
to the extent such relationship is created by a direct contract between Mirror
and such Subcontractor. [***] Nortel shall be fully responsible to Mirror for
the acts and omissions of Subcontractors contracted by it [***] and Nortel
shall indemnify, defend and hold harmless Mirror against any and all Losses
arising out of or related to any acts, omissions or default by or on behalf of
any Subcontractor in connection with its or Nortel's obligations under this
Agreement.
(d) Mirror shall have the right to cause Nortel to dismiss from the
Project any Subcontractor engaged by Nortel [***] if, in Mirror's reasonable
judgment, such Subcontractor (or any of its employees or Subcontractors) is not
performing in a competent, workmanlike and professional manner and in accordance
with Mirror's policies governing employee conduct and Prudent Industry
Practices, upon written notice given to Nortel at least thirty (30) days in
advance of the intended date for such dismissal. Notwithstanding the foregoing
sentence, if Nortel reasonably deems that any Prime Subcontractor whose
dismissal Mirror requests must complete its work under any then outstanding
Order Document prior to its dismissal (in order to avoid any delay in the
performance of Nortel's obligations under the Time Schedule), Nortel shall be
allowed to maintain such Prime Subcontractor until such work then outstanding is
completed. Such dismissal shall in no way release Nortel from its obligations
and responsibilities under this Agreement.
Section 4.9 Specifications. The Equipment and Services supplied or
furnished by Nortel under this Agreement shall be of world-class quality, shall
conform to the Specifications set out in Schedule 4.9 and shall comply with all
applicable Laws and Prudent Industry Practice.
Section 4.10 Technical Services Agreement/INPI Registration. To the extent
certain Nortel Services under this Agreement constitute technical assistance
performed by engineers or technicians that are not resident in Brazil ("IMPORTED
SERVICES"), the Parties have agreed to execute
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
16
23
as of the date hereof a Technical Services Agreement, substantially in the form
contained in Schedule 4.10 (the "TECHNICAL SERVICES AGREEMENT"). Mirror and
Nortel shall cooperate in registering the Technical Services Agreement with the
Brazilian National Institute of Industrial Property to allow the remittance by
Mirror of amounts due hereunder to Nortel for any such Nortel Services. In the
event of any conflict between the provisions of this Agreement and any provision
in the Technical Services Agreement, the provisions of this Agreement shall
prevail.
ARTICLE V
ORDER, DELIVERY, TITLE PASSAGE AND IMPORT PROCEDURES
Section 5.1 Order Procedures.
(a) Schedule 5.1(a) sets forth the procedure agreed to by the Parties
for the purchases to be made under this Agreement.
(b) In the event of any inconsistency between the terms and conditions
contained in this Agreement and the terms and conditions of any Order Document
or other written agreement executed by the Parties, the terms of this Agreement
shall prevail unless such Order Document or other written agreement expressly
purports to modify such terms.
(c) Except as otherwise provided for in Sections 2.4 and 4.3 - 4.6,
only an Order Document duly executed by Mirror and accepted by Nortel as
provided in this Article V shall constitute a firm commitment to purchase on the
part of Mirror and a firm commitment to supply or provide the subject Equipment
or Services on the part of Nortel.
Section 5.2 Delivery of Certain Equipment.
(a) Nortel shall ensure that the RSS Equipment and other Nortel
Equipment or Scope Equipment being supplied hereunder, the installation of which
is not included within Nortel's responsibilities hereunder ("MIRROR-INSTALLED
EQUIPMENT"), is suitably packed and shall take measures to protect the
Mirror-Installed Equipment from moisture, rain, rust, corrosion and shock
according to the different shapes, special features, characteristics and
requirements of such Mirror-Installed Equipment. Nortel shall ▇▇▇▇, ▇▇▇▇ and
ship all Mirror-Installed Equipment in accordance with any and all common
carrier requirements. Mirror may reject any Delivery of Mirror-Installed
Equipment that does not conform to the terms of this Agreement or the applicable
Order Document.
(b) All of the RSS Equipment shall be shipped in complete sets, as
identified in Schedule 7.3(a), together with any Tools and material for
installation. No payment shall be made by Mirror for RSS Equipment not sent in
complete sets unless Delivery of incomplete sets has been agreed to by the
Parties.
(c) Unless otherwise specified in the applicable Order Document,
Mirror-Installed Equipment shall be Delivered to Mirror's Warehouse.
Section 5.3 Title Passage and Risk of Loss of Equipment.
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(a) Subject to Mirror's right to reject any Nortel Equipment or Scope
Equipment that does not conform to the Specifications, title to and risk of Loss
of the Nortel Equipment or Scope Equipment, as the case may be (other than the
Mirror-Installed Equipment), shall pass to Mirror upon the earlier of (i)
Provisional Acceptance and (ii) 120 days from the date of shipment (in the case
of Equipment other than Imported Equipment) or customs clearance (in the case of
Imported Equipment), as the case may be.
(b) Title to and risk of Loss of the Mirror-Installed Equipment shall
pass to Mirror upon Delivery.
(c) Title to Nortel's intellectual property, including, without
limitation, Software, patents, copyrights, trademarks and tradenames, shall not
be conveyed to Mirror at any time.
(d) Nortel shall indemnify, defend and hold harmless Mirror from and
against any Loss that occurs with respect to any Nortel Equipment or Scope
Equipment prior to the passage of the risk of Loss, as provided in this Section
5.3.
Section 5.4 Import Procedures for [***].
(a) [***] Nortel shall be solely responsible for and shall provide
all administrative, logistic, compliance, customs clearance and other support
services related to [***] other than any required signatures of, and
delegation of powers by, Mirror and the physical payment of applicable import
duties and taxes.
(b) Nortel shall take all reasonable steps to [***] through
appropriate equipment configuration and other such measures.
ARTICLE VI
TIME SCHEDULE
Section 6.1 Perform to Schedule.
(a) The Parties shall adhere to the schedule of milestones set forth in
Schedule 6.1 or to any amendment or replacement thereof as well as to the
schedule of milestones set forth in each Order Document (each, as applicable,
the "TIME SCHEDULE") for performance of their respective responsibilities set
forth in the Responsibility Matrix and shall use reasonable best efforts to
minimize all delays. In no event shall the date for any Commercial Launch
specified on the version of the Time Schedule attached hereto as Schedule 6.1 be
changed in any version/revision of the Time Schedule accompanying any Order
Document without the consent of both Parties. Notwithstanding the foregoing,
Nortel shall not be in breach of its obligations with respect to any milestone
on the Time Schedule nor be responsible for any delays or damages to the extent
that such delays or damages arise solely from the exercise by Mirror of any
discretionary right under this Agreement (other than as provided in Section
9.3(h)) in a manner that directly and unduly impedes, prevents or burdens
Nortel's ability to conform to the Time Schedule. In the event that Mirror's
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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exercise of such rights unduly impedes, prevents, or burdens Nortel's ability to
conform to the Time Schedule, then the time of performance of any of Nortel's
obligations hereunder, including the obligation to meet each of the milestones
under the Time Schedule, shall be extended by the actual time of delay caused by
such event, unless the Parties otherwise agree. [***]
(b) The Time Schedule (which, unless otherwise agreed, shall be created
using "Microsoft Project" software) will indicate the relevant time periods for
the engineering, manufacture, shipment, Delivery and receipt of the Equipment
and the provision of the Installation, testing, Commissioning, Provisional
Acceptance, Final Acceptance and all other Services.
Section 6.2 Time Is of the Essence. Nortel specifically acknowledges and
agrees that time is of the essence in the performance of all of Nortel's
obligations set forth in this Agreement.
Section 6.3 Anticipated Delays. Each Party shall immediately notify the
other of any anticipated delay in the performance of its obligations under this
Agreement from the date specified in the Time Schedule; provided that such
notification shall not relieve such Party of any of its obligations under this
Agreement except as otherwise specifically provided herein.
Section 6.4 Progress Report. Nortel shall provide Mirror, on a periodic
basis as agreed by the Parties, a written report (in hard and electronic format)
showing the scheduled progress versus actual progress, giving the details of
work completed in relation to the Time Schedule. Such report shall also include
a detailed explanation of any delays and a detailed projection of when the work
shall be completed. In the event that both Parties have agreed in writing to
changes in the Time Schedule, Nortel shall provide an updated Time Schedule to
Mirror reflecting such agreement.
Section 6.5 No Release upon Payment of Liquidated Damages. The payments of
Liquidated Damages for not achieving Provisional Acceptance or any other
milestones on time shall not release Nortel from the responsibility to continue
the Delivery of the Equipment, the completion of the Services, and its other
obligations under this Agreement.
ARTICLE VII
PRICES AND PAYMENT TERMS
Section 7.1 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
Section 7.2 Import Duties; Taxes.
(a) [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
(d) The Parties shall cooperate to structure the purchases of Equipment
and Services hereunder in a manner that is most tax efficient for both Parties.
Section 7.3 Prices.
(a) The prices charged by Nortel under this Agreement for Equipment and
Services shall be as specified in Schedule 7.3(a) [***]
(b) If the Parties are unable to agree as to Nortel's compliance
[***] then such issue shall be determined pursuant to Section 22.4.
(c) The prices set forth in Schedule 7.3(a) (other than in respect of
Imported Equipment) are quoted, and shall be invoiced and paid, in Reais. Such
prices are quoted as of the Effective Date. To maintain the economic and
financial balance of the Agreement, such prices shall be adjusted as follows:
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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--------------------- -------------------------------------------------
DESCRIPTION ADJUSTMENT CRITERIA
--------------------- -------------------------------------------------
Equipment (other than Adjustment by application to the price of the
Imported Equipment) [***] every twelve (12) months from the
Effective Date or at shorter intervals if
applicable Laws so permit.
--------------------- -------------------------------------------------
Services Adjustment by application to the price of the
[***] to be applied to prices every twelve (12)
months from the Effective Date or at shorter
intervals, if applicable Laws so permit.
--------------------- -------------------------------------------------
(d) The prices set forth in Schedule 7.3(a) applicable to Imported
Equipment are quoted, and shall be invoiced and paid, in [***] and shall not
be subject to adjustment for inflation or currency fluctuations.
(e) Schedule 7.3(a) sets forth a mechanism under which Mirror may earn
credits ("VOLUME CREDITS") applicable to the purchase of Nortel Equipment based
on the [***]
(f) [***]
Section 7.4 Price Basis.
(a) The prices set forth on Schedule 7.3(a) for Imported Equipment
shall be Carriage Paid to the Sites, as defined in the ICC Incoterms 1990
[***].
(b) The prices set forth on Schedule 7.3(a) for all Equipment other
than Imported Equipment shall be on the basis of Carriage and Insurance Paid to
the applicable Sites, as defined in the ICC Incoterms 1990 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
(c) In the event of any conflict between the terms of this Agreement
and the assignment of responsibilities and liabilities between the Parties
pursuant to Incoterms 1990, the express terms of this Agreement shall prevail.
Section 7.5 Invoices.
(a) Mirror shall have no obligation to pay Nortel for any amounts under
this Agreement, unless such amounts are expressly authorized by this Agreement
or an Order Document and Mirror has received an invoice for such charges.
(b) Nortel shall invoice Mirror for amounts due in accordance with the
schedule set forth in Section 7.6(a). Invoices, together with all supporting
documentation, must be received by Mirror within five (5) days of the date of
invoicing. If Mirror has not received any invoice within such five (5) day
period, Nortel shall reissue the invoice in question dated as of the date of
such reissuance. Notwithstanding the foregoing, no invoice shall be required to
be issued in respect of payments of interest due in accordance with Section
7.6(f)(iv).
(c) Each invoice rendered under this Agreement shall refer to the Order
Document number and identify the specific payment event in compliance with this
Article VII, the amounts due and applicable taxes. Each invoice shall be sent to
the billing address identified in the relevant Order Document. No term or
condition of any such invoice inconsistent with this Agreement shall be binding
upon Mirror, unless such term or condition has been expressly agreed upon by
Mirror in compliance with Section 5.1 and Section 24.11.
(d) Invoices shall be denominated [***]
Section 7.6 Payment Terms.
(a) Payment Schedule.
(i) Mirror shall pay Nortel for Equipment and Services provided
hereunder in respect of SSA Purchase Orders for the
engineering, furnishing, Installation and Commissioning of the
Switch and/or first Cell Sites in any SSA (the "INITIAL BUILD")
of each Switch Service Area and for Order Documents other than
in respect of the Initial Build of a Switch Service Area or for
a System ("OTHER PURCHASE") in accordance with the following
schedule:
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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------------------------------------------ -------------------------------- -------------------
PAYMENT MILESTONE PERCENTAGE FOR INITIAL BUILD OF PERCENTAGE FOR
SSAS OTHER THAN RIO DE JANEIRO & INITIAL BUILD OF
BELO HORIZONTE AND FOR OTHER RIO DE JANEIRO &
PURCHASES BELO HORIZONTE SSAs
------------------------------------------ -------------------------------- -------------------
Acceptance by Nortel of SSA Purchase Order [***] [***]
or Other Purchase
------------------------------------------ -------------------------------- -------------------
Provisional Acceptance [***] [***]
------------------------------------------ -------------------------------- -------------------
Commercial Launch [***] [***]
------------------------------------------ -------------------------------- -------------------
Final Acceptance [***] [***]
------------------------------------------ -------------------------------- -------------------
TOTAL [***] [***]
------------------------------------------ -------------------------------- -------------------
(ii) Mirror shall pay Nortel for Mirror-Installed Equipment
provided hereunder [***] of such Mirror-Installed
Equipment.
(iii) Mirror shall pay Nortel for training provided by Nortel
pursuant to Section 9.3(d) [***] upon the completion of the
Course in question or delivery of the training materials, as
the case may be.
(iv) With respect to an SSA Purchase Order, in the event that
Mirror elects to permit Partial Provisional Acceptance or
Partial Commercial Launch, the payment otherwise applicable
upon Provisional Acceptance or Commercial Launch, as the case
may be, in the table set forth at Section 7.6(a)(i) shall be
[***].
[***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
(b) Payment Due Date. All payments to be made by Mirror to Nortel under
the terms of this Agreement shall be due and payable within the thirty (30) days
immediately following the date of the invoice (except that in the event the
thirtieth day does not fall on a Business Day,
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
25
32
then payment shall be due on the next Business Day following such date), unless
a different payment due date is required in order to accommodate drawing
conditions of the Financing Facility (including conditions relating to required
minimum draw amounts).
(c) Late Payments. In the event that Mirror does not make payment on
invoices within the time prescribed in Section 7.6(b), Mirror shall pay interest
on the outstanding balance of the relevant invoice(s), at a rate of [***] per
annum (the "INTEREST RATE") from the day on which payment was due to the day on
which it is made, plus, in the case of principal amounts due in Brazilian Reais,
a [***] late payment fee.
(d) Modality of Payments. Payments shall be made by check, bank draft
or acceptable electronic transfer of funds to the accounts, or in compliance
with instructions, that Nortel shall specify on each invoice, or in accordance
with any applicable payment mechanism provided for in the Financing Facility, or
as otherwise mutually agreed by the Parties.
(e) Imported Equipment. With respect to Imported Equipment, Nortel
covenants that no payment by Mirror to Nortel shall be required, due or payable
(other than any amounts due on submission of the relevant Order Document) prior
to the dates corresponding to the payment milestones established in Section
7.6(a) and that all invoices shall reflect such requirement.
(f) [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
Section 7.7 Calculation of Interest. Interest applicable to any amount
payable hereunder shall be calculated for the actual number of days elapsed on
the basis of a year consisting of three hundred and sixty (360) days.
Section 7.8 Payment Disputes.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(a) In the event that Mirror disputes all or part of any invoice,
Mirror shall deliver to Nortel a notice specifying the basis for the dispute.
Mirror shall pay the undisputed amount of such invoice pursuant to Section
7.6(b) and Section 7.6(d) but may withhold the disputed amount pending
resolution of such dispute.
(b) If the Parties are able to resolve the dispute within twenty (20)
Business Days of the receipt by Nortel of the notice specified in Section
7.8(a), any amount owing to Nortel or to Mirror shall be reflected as a charge
or a credit, as the case may be, adjusted by the late payment charges set forth
in Section 7.6(c) on the next invoice (unless the dispute is with respect to
amounts set forth on the final invoice, in which case the Party owing any
amounts shall pay such amounts within five (5) Business Days of the resolution
of the dispute).
(c) If the Parties are unable to resolve the dispute within twenty (20)
Business Days of the receipt by Nortel of the notice specified in Section
7.8(a), the dispute shall be resolved as provided in Article XXII.
(d) Within fifteen (15) Business Days of the resolution of a payment
dispute pursuant to Article XXII, (i) Mirror shall pay any amounts determined to
be owing by it, together with interest accrued at the Interest Rate (calculated
pro rata on a daily basis) from the date on which such payment was due pursuant
to Section 7.6(b) until paid in full; and (ii) Nortel shall refund to Mirror any
amounts determined to have been overpaid, if applicable, together with interest
accrued at the Interest Rate (calculated pro rata on a daily basis) from the
date that such overpayment was made until repaid in full to Mirror.
Section 7.9 Financing.
(a) Nortel shall, subject to the provisions of Sections 3.2 and 3.3,
provide vendor debt financing for the Equipment and Services supplied to Mirror
under this Agreement on competitive market terms [***] Financing will be
provided on the terms set out in the Term Sheet.
(b) Except as otherwise provided in Section 7.6(f), it shall be a
condition precedent to Mirror's obligations to pay any amounts to Nortel and
Nortel's obligation to provide Equipment and Services under this Agreement that
the Parties execute the Financing Agreement on the terms and conditions set
forth in the Term Sheet, unless otherwise agreed.
Section 7.10 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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ARTICLE VIII
SUPPLY AGREEMENT ADMINISTRATION AND PROJECT MANAGEMENT
Section 8.1 Project Management.
(a) Project Management Services. Nortel shall perform the Project
Management Services specified on Schedule 8.1(a).
(b) Nortel's Project Manager. Nortel shall, during the Term, appoint a
manager for the Project (the "NORTEL PROJECT MANAGER") to coordinate Nortel's
provision of Project Management Services who shall:
(i) be fully conversant with the background of the Project;
(ii) be empowered and have authority to make day to day decisions
regarding the Project, while having full control of Nortel's
applicable assets and Project personnel in Brazil;
(iii) maintain and update the Time Schedule and deliver the Time
Schedule as revised from time to time to the Mirror Project
Manager;
(iv) ensure compliance with the Time Schedule;
(v) maintain the closest possible cooperation with the Mirror
Project Manager;
(vi) reside in Brazil and be available at Project Sites as
reasonably requested; and
(vii) be fluent in English and have a working knowledge of
Portuguese.
(c) Mirror Project Manager. Mirror shall, during the Term of this
Agreement, appoint a manager for the Project (the "MIRROR PROJECT MANAGER") to
be the liaison with the Nortel Project Manager, who shall:
(i) be fully conversant with the background of the Project;
(ii) be empowered and have authority to make day-to-day decisions
regarding the Project and its personnel;
(iii) ensure compliance with the Time Schedule;
(iv) maintain the closest possible cooperation with the Nortel
Project Manager;
(v) be available at Project Sites as reasonably requested; and
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(vi) be fluent in English and have a working knowledge of
Portuguese.
Section 8.2 Progress Review Meeting.
(a) During the term of implementation of the Network, both the Mirror
Project Manager and the Nortel Project Manager shall hold Project review
meetings at such intervals to be agreed upon by the Parties to review, monitor
and control the progress of the implementation of the Network in all its aspects
in conformity with the Specifications and the Time Schedule.
(b) If Nortel or Mirror, as the case may be, deem it unlikely that it
will be able to fulfill all of its obligations on the respective dates set out
in the Time Schedule, then such Party shall request a meeting to determine what
action is required. The Nortel Project Manager and the Mirror Project Manager
shall each have been delegated appropriate authority from Nortel and Mirror,
respectively, to develop and execute any action plan required to enable the
Parties to fulfill their respective obligations under this Agreement. Any action
plan implemented pursuant to the terms hereof shall be without prejudice to any
right or remedy Mirror or Nortel may have under this Agreement.
(c) Minutes of the meetings contemplated by this Section 8.2 shall be
kept in English or Portuguese as mutually agreed by the Parties.
Section 8.3 Agreement Administration by Mirror. The Mirror Project Manager
shall be responsible for administering the Agreement and ensuring the necessary
coordination with other Mirror departments. He shall be responsible for
coordinating the Project implementation between Mirror and Nortel; reviewing and
approving all quotations, invoices and inventory of Equipment Delivered;
monitoring Time Schedules; issuing Order Documents, monitoring the overall
progress of the Project; coordinating with Nortel to conclude agreement on the
Acceptance Test Procedures as provided in Section 9.3(a); providing Nortel with
clarification on the technical specification requirements; and approving and
issuing Change Orders. The Mirror Project Manager's territorial responsibilities
shall be for all areas covered by the Agreement. He may designate, as may be
required for certain periods of time, project managers for specific Switch
Service Areas, regions or Systems and define their administrative, managerial,
territorial and authorization responsibilities, which he will communicate in
writing to the Nortel Project Manager.
Section 8.4 Nortel Employees. Mirror may, at any time, cause Nortel to
dismiss an employee from the Project if, in Mirror's reasonable judgment, such
employee is not performing in a competent, workmanlike and professional manner
and in accordance with Mirror's policies governing employee conduct and Prudent
Industry Practices. Any delays or costs resulting from the replacement of
Nortel's employee shall be borne by Nortel.
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ARTICLE IX
DIVISION OF RESPONSIBILITIES
Section 9.1 Joint Responsibilities.
(a) Responsibility Matrix. Without limiting the generality of any of
the provisions of this Agreement, the respective rights and division of
responsibilities of Mirror and Nortel are set forth in the Responsibility Matrix
attached as Schedule 9.1(a). Mirror shall discharge those responsibilities
identified as those of Mirror, including Mirror's portion of responsibilities
that are to be jointly performed by Mirror and Nortel. Nortel shall discharge
those responsibilities identified as those of Nortel, including Nortel's portion
of responsibilities that are to be jointly performed by Nortel and Mirror.
(b) Punchlist. Both Parties will agree on items and issues to be placed
on each Punchlist. Nortel shall in good faith resolve as quickly as possible the
items placed on each Punchlist.
Section 9.2 Mirror Responsibilities.
(a) Costs. Mirror shall bear the costs of its own legal fees,
interconnection facilities, telephone and utility charges and other services and
items being supplied by Mirror under this Agreement.
(b) Engineering Information. Mirror shall:
(i) Provide to Nortel necessary engineering information
reasonably requested by Nortel and in accordance with the
Responsibility Matrix and the Time Schedule;
(ii) Provide, upon reasonable request, System usage information
where Mirror's analysis of System requirements has been
requested by Nortel or is otherwise required by a specific
provision of this Agreement in order for Nortel to discharge
its obligations under this Agreement and where the
information requested is reasonably necessary for such
purposes.
(c) O&M. Mirror shall assume responsibility for the lawful and proper
O&M of the Network.
(d) Export Controls. Where required by the country of origin of the
Equipment, Mirror shall comply with all applicable export Laws with respect to
the requirements of which Nortel has advised Mirror in writing. Specifically,
but without limitation, where the Equipment is subject to export controls and
Nortel has advised Mirror in writing with respect to the requirements of such
export controls, Mirror agrees that it will not resell or re-export Equipment or
technical data in any form without obtaining appropriate export or re-export
licenses from the applicable exporting country government.
(e) Permits. Mirror shall be responsible for obtaining all Permits
(other than permits specifically required to be obtained by Nortel or any
Subcontractor) required for implementation of the Network, including but not
limited to, Site building permits, zoning
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variances and the like from appropriate Authorities. Pursuant to the
Responsibility Matrix, Nortel shall provide Mirror with all Permit applications
for Permits that Mirror is responsible to obtain pursuant to this Section 9.2(e)
on an accurate and timely basis to enable Mirror to submit them to the
appropriate Authority.
(f) Other Obligations. Mirror shall perform all of its other
obligations pursuant to this Agreement, including the following:
(i) allow Nortel's personnel employed in the work reasonable
access to the Sites at all times, and to permit the use by
such personnel of all routes, roadways and ramps under the
control of Mirror when such access and use are necessary for
the proper performance of Nortel's obligations hereunder;
(ii) permit all of Nortel's personnel employed in the work
hereunder to use at all times such portions of existing
plants or equipment under Mirror's control as are reasonably
necessary for the proper completion of such work, as long as
such use will not interfere with Mirror's business
operations;
(iii) take reasonable security measures to safeguard all Nortel
Equipment and Scope Equipment on Mirror's premises against
all damages or Loss caused by Mirror's employees from the
Delivery until the date that the risk of Loss of such
Equipment transfers to Mirror pursuant to Section 5.3;
(iv) ensure that Mirror's personnel carrying out activities at the
Sites do not interfere with the progress of Nortel's
obligations hereunder;
(v) where applicable, take all necessary actions in accordance
with the relevant Responsibility Matrix to ensure that the
Sites are ready and available for commencement of
Installation;
(vi) make available a representative to acknowledge receipt of the
Equipment; and
(vii) bear any additional costs, including, without limitation,
freight, insurance, storage and taxes, if applicable,
relating to a Change Order that requires delivery of
Equipment to a Site other than the Site specified in the
Order Document to which such Change Order pertains.
Section 9.3 Nortel Responsibilities. Without limiting any other obligations
of Nortel under this Agreement, Nortel shall have the following
responsibilities:
(a) Acceptance Procedure. Nortel shall adhere to the Acceptance
procedures, including the Acceptance Test Procedures, each as set forth in
Schedule 9.3(a).
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(b) New Products or Services. Nortel shall make new and upgraded
Equipment and Services available to Mirror as and when they become available.
Where such new or upgraded Equipment or Services are developed by Nortel, Nortel
shall, subject to Section 14.2, negotiate the price [***] and delivery schedule
in good faith.
(c) Retrofits. Nortel shall, with Mirror's prior written consent,
provide a retrofit package to permit the Network to comply with [***]
(d) Training. Nortel shall provide training courses for planning,
installation and O&M of Equipment and Services purchased under this Agreement.
[***] Course listings, content and schedules are set forth in Schedule 9.3(d).
(e) Cooperation and Coordination With Other Vendors. Nortel recognizes
that Mirror will be developing the Network using vendors in addition to Nortel
including, without limitation, Qualcomm. Nortel shall, in engineering and
designing the Network and the Systems comprising the Network, cooperate and
coordinate its activities with such other vendors such that the Network shall
function in a seamless manner without regard to which vendor supplied a
particular Equipment or Service.
(f) Legal and Safety Standards. Nortel is responsible for assuring that
proper safety measures are taken to avoid accidents and that all work performed
is done in accordance with the relevant health and occupational safety Laws,
whether the work is performed by Nortel or its Subcontractors. Nortel shall be
responsible, at its own expense, for ensuring that all necessary procedures are
in place and supervision is provided to ensure the safety of all persons who may
at any time or for whatever reason be present on any of the Sites as part of
Nortel's provision of the Services, including, without limitation, the
Installation Services.
(g) Site Security. Up to Commercial Launch, Nortel shall ensure the
security of the Sites in a manner consistent with Mirror's security requirements
by providing security Services at the prices set forth in Schedule 7.3(a) and
shall ensure that entry to such Sites is properly monitored and only authorized
persons are permitted to enter and remain on any of such Sites. Nortel shall
allow Mirror or any person authorized by Mirror to inspect any Site at any time
while Nortel is providing Services on the Site.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(h) Inspection. Mirror and its employees, agents and representatives
shall at all times have the right to inspect the performance by Nortel of the
design, engineering, construction, Installation, testing and Acceptance, whether
in the process of being prepared or executed. If, in Mirror's reasonable
judgment, the work does not conform to the terms of this Agreement, the
Specifications and all applicable Laws, Mirror shall have the right to order the
suspension of such work; provided that Mirror's exercise of such right shall not
be deemed to be an "exercise by Mirror of any discretionary right under this
Agreement" giving rise to an extension of the Time Schedule under Section
6.1(a).
(i) Operation and Maintenance Support. Nortel, [***], shall allocate a
total of [***] of support Services by qualified technical personnel to be used
by Mirror to support the Network (including all Switch Service Areas) during the
[***] of operation, commencing on the Soft Launch of the first Switch Service
Area (or, if there is no Soft Launch, on Provisional Acceptance of such Switch
Service Area), with the actual utilization of such support resources to be
determined by agreement of the Parties. The personnel [***] to provide such
support Services shall include (A) O&M switch specialists and (B) qualified O&M
cell sites and transmission specialists. [***]
(j) Tools and Test Equipment. Unless otherwise specifically provided in
this Agreement, Nortel shall provide all tools and testing equipment (the
"TOOLS") required for the implementation of the Network under this Agreement.
Unless otherwise specifically provided in this Agreement, Nortel shall provide
and pay for all materials, labor, Tools, Equipment, transportation and other
facilities necessary for the performance and completion of the Project. Nortel
shall pay all charges for any special handling of the Equipment. All Tools used
during the implementation of the Network that (i) have been purchased and paid
for by Mirror as specified on an Order Document, and (ii) have been purchased by
Nortel specifically for use in implementing the Project and for which Nortel has
included the full, undepreciated or unamortized cost in the amounts being
charged to Mirror pursuant to this Agreement, shall become the property of
Mirror at the earlier of Commercial Launch or Final Acceptance.
(k) [***]
(l) Nortel Responsible for Incorrect Delivery; Excess Items. If any
Nortel Equipment or Scope Equipment is delivered to a point other than the one
set forth in an Order Document, any additional expenses incurred in Delivery of
such Equipment to the correct point of delivery and the risk of transportation
shall be borne by Nortel. Nortel is also responsible for items delivered in
excess of those required in the relevant Order Document or any excess
installation material.
(m) Advertising. Nortel shall assist Mirror in its advertising and
promotion efforts and shall cooperate with Mirror to establish joint advertising
and promotion programs.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(n) Acceptance of Sites. Nortel shall use its best efforts to approve
or disapprove of any candidate location for construction of a Cell Site at the
time of the site visit to such location, or within one (1) Business Day
thereafter.
(o) [***]
Section 9.4 [***]
ARTICLE X
INDEMNIFICATION, DAMAGES, AND DELAYS
Section 10.1 General Indemnity (Mirror).
(a) General. Nortel shall indemnify, defend and hold harmless Mirror
and its directors, officers, representatives, agents, servants, Subcontractors,
employees, successors and permitted assigns (collectively, "MIRROR INDEMNIFIED
PERSONS") from any and all Losses (including damage to property owned by third
parties) arising out of or in connection with this Agreement to the extent such
damages were caused by the breach of this Agreement by Nortel or the negligent
acts or omissions, willful misconduct or strict liability of Nortel or any
Nortel Representative.
(b) Personal Injury (Mirror). Nortel shall indemnify, defend and hold
harmless the Mirror Indemnified Persons from any and all Losses on account of
death or personal injury (whether to Mirror Indemnified Persons or to third
parties) arising out of or in connection with this Agreement to the extent that
such injury or death was caused by the negligent acts or omissions, willful
misconduct or strict liability of Nortel or any Nortel Representative.
(c) Claims. In any claim for indemnification brought pursuant to this
Agreement:
(i) The Mirror Indemnified Persons shall promptly notify Nortel
upon (A) receipt of notice of the commencement of a claim by
a third party for which indemnification is sought pursuant to
this Agreement, (B) becoming aware of a claim (other than one
covered by clause A, hereof) or facts supporting the
likelihood of a Loss, in each case eligible for
indemnification pursuant to this Agreement or (C) the
occurrence of any material event or change with respect to an
ongoing claim, in writing.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(ii) In case any such claim is brought against any Mirror
Indemnified Person, and it notifies Nortel of the
commencement thereof, or in respect of any ongoing action,
Nortel will be entitled to participate therein and to assume
the defense thereof. Subsequent to such assumption of
defense, Nortel shall not be liable to the Mirror Indemnified
Person for any legal or other expenses subsequently incurred
by the Mirror Indemnified Person, other than the reasonable
expenses of monitoring such defense, and shall control the
defense of such claim unless the Mirror Indemnified Person
reasonably believes there to be a conflict between its
interests and those of Nortel, in which case the Mirror
Indemnified Person may employ its own counsel for such
defense and the reasonable costs of such counsel as well as
other costs reasonably incurred in such defense shall be
borne by Nortel. Whether or not Nortel shall have assumed the
defense of a claim for which the Mirror Indemnified Person is
entitled to be indemnified, the Mirror Indemnified Person
shall not admit any liability with respect to, settle,
compromise or discharge such claim without the prior written
consent of Nortel, which consent shall not unreasonably be
withheld, conditioned or delayed.
(iii) The Mirror Indemnified Person shall, at Nortel's expense,
cooperate and consult with Nortel in the defense of such
claim and shall, upon request, provide all reasonable
information and assistance for defense against any such suit,
claim or demand.
Section 10.2 Infringement Indemnity.
(a) Defense Against Infringement Claims. In any claim, action, suit or
legal arbitration, mediation or other proceedings, Nortel, at Nortel's expense,
shall indemnify, defend and hold harmless Mirror, its directors, officers,
agents, employees, successors and permitted assigns, against any claim that
Nortel's Equipment, including Software, and Services supplied hereunder
(collectively, the "INDEMNIFIED EQUIPMENT") infringes any patent or copyright,
trademark, trade secret or other tangible or intangible property right, whether
Brazilian or foreign (collectively, "PROPRIETARY RIGHTS") by reason of Mirror's
use of such Proprietary Rights in furnishing telecommunication services in
accordance with the Specifications. Nortel shall reimburse Mirror its actual
reasonable costs for personnel (including legal counsel and experts) and
resources engaged in providing information or assistance requested by Nortel or
in defending such claim, action, suit, legal arbitration, mediation or other
proceeding. Nortel shall indemnify, defend and hold harmless Mirror, its
officers, agents, employees, Subcontractors, successors and permitted assigns
against any and all Losses on account of such alleged infringement or violation.
(b) Nortel to Act. If Mirror's use of the Indemnified Equipment is
enjoined, Nortel shall, at its expense, either procure the right for Mirror to
continue using such Indemnified Equipment or replace or modify the Indemnified
Equipment so that such Indemnified Equipment becomes non-infringing, whichever
can be accomplished more quickly. If none of the foregoing options is possible,
Nortel will remove the enjoined Indemnified Equipment and refund to Mirror
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any amounts paid to Nortel, less a reasonable charge for any actual period of
use by Mirror. Should the Indemnified Equipment so removed be a component of the
Network and such removal causes the Network not to meet the [***] or any other
of the Specifications, then Nortel shall be liable for restoring the Indemnified
Equipment to the [***] or other such Specification and for all Losses caused to
Mirror resulting from such removal.
(c) Information Supplied by Mirror. Nortel shall have no liability for
any claim of infringement of any Proprietary Rights to the extent that such
claim (i) arises directly and wholly from adherence to Specifications, designs,
drawings or instructions furnished by Mirror; (ii) arises from adherence to
instructions to apply Mirror's trademark, trade name or other company
identification; (iii) resides in non-Nortel Equipment or Scope Equipment that is
furnished by Mirror to Nortel for use under this Agreement or (iv) relates to
uses of Indemnified Equipment provided by Nortel in combination with other
Indemnified Equipment furnished either by Nortel or other Persons, which
combination was not Installed, recommended or otherwise approved by Nortel.
Section 10.3 [***]
Section 10.4 Failure to Meet Time Schedule (Liquidated Damages).
(a) With respect to Equipment and Services for the Initial Build of the
first and second Switch Service Areas (Rio de Janeiro and Belo Horizonte):
(i) In the event that, at the sole discretion of Mirror,
Commercial Launch with respect to the Initial Build of the
first or second Switch Service Areas occurs after the
relevant due date set forth in the Time Schedule because of
actions directly attributable to Nortel including, without
limitation, Nortel's failure to perform its obligations
hereunder in the manner and at the times specified in this
Agreement, Nortel shall pay to Mirror Liquidated Damages
[***] equal to [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(ii) In the event that on the relevant due date set forth in the
Time Schedule (A) Mirror, at its sole discretion, elects to
proceed with Commercial Launch of only a portion of the
Equipment and Services comprising the Initial Build of the
first or second Switch Service Areas, and (B) the failure of
the other portion of the Equipment and Services to be ready
for Commercial Launch is due to actions directly attributable
to Nortel, including, without limitation, Nortel's failure to
perform its obligations hereunder in the manner and at the
times specified in this Agreement, Nortel shall pay to Mirror
Liquidated Damages [***] equal to [***]
(b) With respect to Equipment and Services for the Initial Build of the
third and fourth Switch Service Areas (Recife and Fortaleza):
(i) In the event that, at the sole discretion of Mirror,
Commercial Launch with respect to the Initial Build of the
third or fourth Switch Service Area occurs after the relevant
due date set forth in the Time Schedule because of actions
directly attributable to Nortel including, without
limitation, Nortel's failure to perform its obligations
hereunder in the manner and at the times specified in this
Agreement, Nortel shall pay to Mirror Liquidated Damages
[***] equal to [***]
(ii) In the event that on the relevant due date set forth in the
Time Schedule (A) Mirror, at its sole discretion, elects to
proceed with Commercial Launch of only a portion of the
Equipment and Services comprising the Initial Build of the
third or fourth Switch Service Areas, and (B) the failure of
the other portion of the Equipment and Services to be ready
for Commercial Launch is due to actions directly attributable
to Nortel, including, without limitation, Nortel's failure to
perform its obligations hereunder in the manner and at the
times specified in this Agreement, Nortel shall pay to Mirror
liquidated damages [***] equal to [***]
(c) With respect to Equipment and Services for the Initial Build of the
fifth and sixth Switch Service Areas (Salvador and Vitoria):
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(i) In the event that, at the sole discretion of Mirror,
Commercial Launch with respect to the Initial Build of the
fifth or sixth Switch Service Area occurs after the relevant
due date set forth in the Time Schedule because of actions
directly attributable to Nortel including, without
limitation, Nortel's failure to perform its obligations
hereunder in the manner and at the times specified in this
Agreement, Nortel shall pay to Mirror liquidated damages
[***] equal to [***]
(ii) In the event that on the relevant due date set forth in the
Time Schedule (A) Mirror, at its sole discretion, elects to
proceed with Commercial Launch of only a portion of the
Equipment and Services comprising the Initial Build of the
fifth or sixth Switch Service Areas, and (B) the failure of
the other portion of the Equipment and Services to be ready
for Commercial Launch is due to actions directly attributable
to Nortel, including, without limitation, Nortel's failure to
perform its obligations hereunder in the manner and at the
times specified in this Agreement, Nortel shall pay to Mirror
liquidated damages [***] equal to [***]
(d) With respect to Equipment and Services other than for the Initial
Build of the first six (6) Switch Service Areas:
(i) In the event that, at the sole discretion of Mirror,
Commercial Launch with respect to any Equipment or Services
purchased under any Order Document other than for the Initial
Build of the first six (6) Switch Service Areas, occurs after
the relevant due date set forth in the Time Schedule because
of actions directly attributable to Nortel including, without
limitation, Nortel's failure to perform its obligations
hereunder in the manner and at the times specified in this
Agreement, Nortel shall pay to Mirror liquidated damages
[***] equal to [***]
(ii) In the event that on the relevant due date set forth in the
Time Schedule (A) Mirror, at its sole discretion, elects to
proceed with Commercial Launch of only a portion of the
Equipment and Services comprising any Order Document other
than for the Initial Build of the first six (6) Switch
Service Areas, and (B) the failure of the other portion of
the Equipment
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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and Services to be ready for Commercial Launch is due to
actions directly attributable to Nortel, including, without
limitation, Nortel's failure to perform its obligations
hereunder in the manner and at the times specified in this
Agreement, Nortel shall pay to Mirror liquidated damages
[***] equal to [***]
(e) At Mirror's option, Nortel may satisfy any and all penalties due
for failure to meet the milestones set forth in the Time Schedule for Acceptance
and/or Commercial Launch in the form of [***]
(f) The liquidated damages specified in Section 10.4(a) through (d)
(the "LIQUIDATED DAMAGES") shall not be applicable to the extent that actions or
omissions of Mirror were the direct cause of the delays described in Section
10.4(a) through (d) ("MIRROR DELAYS"). In the event of Mirror Delays, the dates
set forth in the Time Schedule for Nortel's performance shall be adjusted to
reflect such Mirror Delays. The extent of adjustment shall be [***] as agreed
between Mirror and Nortel, and the adjustment shall be based on a review of the
relevant Nortel critical path development and deployment plans (i.e., planning,
evaluation and review technical/critical path method ("PERT/CPM") chart). Where
additional expenses are incurred by Nortel in making up for a Mirror Delay,
Nortel and Mirror shall agree on equitable adjustment in Nortel's prices to
compensate for such additional expenses.
(g) The Parties hereby acknowledge and agree that the actual damages
that would be incurred by Mirror in the event of a failure to comply with the
Time Schedule by Nortel would be difficult to calculate and that the Liquidated
Damages provided for in this Agreement are fair and reasonable under the
circumstances.
Section 10.5 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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ARTICLE XI
QUALITY ASSURANCE
Section 11.1 Quality Assurance.
(a) Without restricting the generality of the provisions of Section 9.3
and Article XIII, it is understood and agreed that Nortel has sole
responsibility for the quality of the Equipment and Services supplied or
provided hereunder.
(b) Nortel shall deliver the Equipment and provide the Services to
Mirror in accordance with the terms and conditions of this Agreement diligently
and by competent and professional personnel.
(c) Nortel shall maintain a quality assurance program that is adequate
to ensure a consistent level of quality in the Equipment and Services supplied
under this Agreement and to ensure that the Equipment and Services conform to
all applicable Laws, professional requirements and the Specifications.
(d) Mirror reserves the right to conduct [***] quality assessments,
inspections or tests on the Equipment and Services in accordance with a sampling
plan jointly developed by the Parties, prior to shipment, at Nortel's premises.
If Mirror elects to exercise such rights, then Nortel shall, prior to shipment,
advise Mirror when the Equipment or Services are available for audit or testing
at Nortel's premises. Nortel shall make space available for Mirror's personnel
to carry out the audit or testing, and provide full cooperation to Mirror's
personnel.
(e) In the event that any Equipment or any Service provided hereunder
by Nortel fails to meet the requirements of the Specifications, Nortel shall,
subject to the applicable warranty provisions contained herein, promptly replace
the Equipment or repair it to conform to the Specifications. If the Equipment is
inspected on Site, the Parties will jointly determine the appropriate action
required in respect of any Equipment that does not satisfy the requirements of
the Specifications.
(f) Nortel also agrees to provide to Mirror, upon reasonable request,
quality program data information such as improvement program data, inspection
data, statistical process control information, test results. [***] pertaining to
the Equipment and Services supplied under the terms of this Agreement.
(g) Mirror's quality assurance assessment or inspections shall not
constitute a waiver or renunciation of any rights and remedies granted to Mirror
pursuant to this Agreement and shall not excuse Nortel from compliance with all
provisions of this Agreement.
ARTICLE XII
ENVIRONMENTAL POLICY
Section 12.1 Environment; Environmental Policy. Nortel assures Mirror that
it has a written business policy that addresses environmental protection and
preservation issues and the management and disposal of waste products, in each
case in a manner that is designed to ensure compliance with applicable Laws
relating to environmental protection and to minimize liability under such Laws.
Nortel certifies that this written business policy:
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(a) was implemented prior to the signing of this Agreement, remains in
effect and is required to be followed by all personnel under Nortel's control;
(b) was brought to the attention of Nortel's other representatives and
subcontractors who have been requested to follow such written business policy;
(c) states that Nortel will comply with and will cause all Nortel
Representatives to comply with Laws respecting the environment; and
(d) is available to Mirror upon request at any time during the Term.
Each of the Parties agrees that Nortel must seek to comply with and minimize
liability under applicable environmental Laws at all times during the Term.
Nortel shall indemnify, defend and hold the Mirror Indemnified Persons harmless
from any Losses arising out of or related to a breach by Nortel of the terms of
this Section 12.1.
ARTICLE XIII
WARRANTIES
Section 13.1 Hardware Warranty. Notwithstanding the Acceptance of any
Equipment, Nortel warrants to Mirror that:
(a) New Equipment. All the Hardware supplied by Nortel under this
Agreement shall be new and unused (except for testing required pursuant to this
Agreement).
(b) Nortel Equipment. For the period of [***] commencing on the earlier
of Final Acceptance or Commercial Launch of the portion of the Network
containing such Hardware (the "HARDWARE WARRANTY PERIOD"), all Nortel Equipment
(other than the Stand-Alone OEM Equipment) shall be free from defects in design,
material and workmanship, and will conform to the Specifications (the "HARDWARE
WARRANTY"). Notwithstanding the foregoing, the Hardware Warranty Period
applicable to RSS Equipment shall be [***] from Delivery of such RSS Equipment.
The warranty period for any Equipment or part thereof repaired or provided as a
replacement under this Hardware Warranty is [***] or the unexpired term of the
Hardware Warranty Period applicable to the repaired or replaced Equipment or
part, whichever is longer.
(c) Scope Equipment. Nortel hereby assigns to Mirror the warranties
given to Nortel by the vendor of all Scope Equipment, and such warranties will
remain in force for a term of at least [***] from the earlier of Final
Acceptance or Commercial Launch. If Nortel is prevented from assigning such
warranties (or if the applicable warranties are for a shorter period than
[***]), then Nortel will fully warrant such Equipment (on the same terms
applicable to Hardware) for a period of [***] from the earlier of Final
Acceptance or Commercial Launch.
(d) Stand Alone OEM Equipment. With respect to stand-alone OEM
Equipment such as, without limitation, computers, workstations and field test
equipment ("STAND-ALONE OEM
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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EQUIPMENT"), Nortel will assign to Mirror the warranties given to Nortel by its
vendor of such Stand-Alone OEM Equipment. [***]
(e) Nortel shall use its reasonable best efforts to negotiate to assign
the warranties contemplated in Section 13.1(c) and Section 13.1(d).
Section 13.2 Application Procedures for Hardware Warranty. If, under proper
use during the applicable Hardware Warranty Period, a defect or nonconformity is
identified in any Hardware supplied by Nortel, Mirror shall notify Nortel of
such defect or nonconformity promptly after Mirror discovers such defect or
nonconformity and proceed as described in the Warranty Procedures, as set forth
in Schedule 13.2. Upon receipt of notification from Mirror of such defect or
nonconformity during the Hardware Warranty Period, Nortel shall take the
following actions:
(a) Nortel, at its option, shall promptly repair or replace such
Hardware without charge.
(b) Where Nortel has elected to repair or replace Hardware that has
been installed by Nortel and such Hardware cannot, without undue expense or
burden, be returned to Nortel, Nortel will promptly repair or replace the
Hardware at Mirror's Site.
(c) If Nortel has elected to repair or replace a defective plug-in
component (i.e. a circuit board or similar electronic component that is designed
such that, in a rack or assembly of electronic equipment, it may be manually
replaced by pulling it from its socket connector and replacing it with a like
component for the purposes of maintenance or repair without changing the
functionality and/or performance of the overall electronic equipment) (a
"PLUG-IN"), Mirror is responsible for removing and reinstalling it. For any
Hardware other than Plug-Ins and RSS Equipment, Nortel shall be responsible for
removal and reinstallation of the Hardware.
(d) Hardware returned for repair or replacement will be accepted by
Nortel only in accordance with its instructions and procedures for such returns.
The transportation expense associated with returning such Hardware to Nortel
shall be borne by Nortel. Nortel shall pay the costs of transportation of the
repaired or replaced Hardware to the destination designated by Mirror within the
Territory. The reinstallation of the repaired or replacement part, subassembly
or unit (other than a Plug-In or RSS Equipment) shall be performed by Nortel
under the supervision of Mirror. Mirror shall, upon Nortel's reasonable request,
provide any additional information concerning such defect and its occurrence.
(e) To the extent Nortel makes generally available to its customers a
warranty extension program for Hardware, Mirror has the option to participate in
such program [***]. Mirror shall give Nortel notice of its decision to purchase
any available extension at least ninety (90) days prior to the expiration of the
warranty to be extended.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Section 13.3 Software Warranty. Notwithstanding Acceptance of any of the
Nortel Equipment, Nortel warrants to Mirror (the "SOFTWARE WARRANTY") that:
(a) from the Provisional Acceptance thereof, each item of Software will
be free from defects that materially affect the use of such Software and will
perform in accordance with the Specifications therefor for a period ending [***]
from the earlier of Final Acceptance or Commercial Launch (the "SOFTWARE
WARRANTY PERIOD");
(b) with respect to Software from a supplier other than Nortel, Nortel
hereby assigns to Mirror the warranties given to Nortel by its supplier of such
items and such warranties will remain in effect for a term of at least [***]
from the earlier of Final Acceptance or Commercial Launch. [***]
(c) Subject to the provisions set forth in Section 13.(b), Nortel will
repair or replace, whichever can be done most promptly and with the least
disruption to Mirror's business, all Software that does not satisfy the
requirements of the Software Warranty during the Software Warranty Period.
Section 13.4 Year ▇▇▇▇ ▇▇▇▇▇▇▇▇.
(a) As part of the Hardware Warranty and the Software Warranty, Nortel
represents, warrants and covenants to Mirror that all Equipment provided by
Nortel to Mirror hereunder, including without limitation, any and all
enhancements, upgrades, customizations, modifications, maintenance releases and
the like delivered by or on behalf of Nortel, is "Year 2000 Compliant", as
defined herein. "YEAR 2000 COMPLIANT" means that any function of such Equipment
containing or calling on a calendar function, including, without limitation, any
function indexed to the CPU clock, and any function providing specific dates or
days, or calculating spans of dates or days, shall record, store, process,
provide and, where appropriate, insert, true and accurate dates and calculations
for dates and spans prior to, including and following January 1, 2000 and shall
correctly recognize and process the date of February 29, and any related data,
during leap years. Without limiting the generality of the foregoing, Nortel
further represents, warrants and covenants:
(i) That such Equipment will continue to perform in compliance
with all Specifications applicable thereto, without the need
for manual intervention, prior to, on, and after January 1,
2000;
(ii) That such Equipment will not abnormally end or abort or
provide invalid or incorrect results as a result of date
data, specifically including date data that represents or
references different centuries or more than one century; and
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(iii) That such Equipment has been designed to ensure Year 2000
Compliance, including, but not limited to, date data century
recognition, calculations that accommodate same century and
multi-century formulas and date values, and date data
interface values that reflect the century.
(b) Notwithstanding anything in this Agreement or any Schedule or
Exhibit hereto to the contrary, the warranty made in this Section shall extend
until December 31, 2001.
Section 13.5 Warranty for Services. Nortel warrants to Mirror that all
Services will be performed in a careful, workmanlike and professional manner and
in accordance with the Specifications or any mutually agreed specification for
such Services, using material free from defects except where such material is
provided by Mirror. If the Services prove to be not so performed and if Mirror
notifies Nortel within [***] Nortel, at its expense, will promptly correct any
defects and deficiencies. If Nortel is unable to correct such defects and
deficiencies, it shall promptly render to Mirror [***]
Section 13.6 No Trouble Found. If Nortel reasonably determines that
Equipment for which the warranty Services are claimed is neither defective nor
non-conforming, Mirror shall pay Nortel's reasonably incurred costs of handling,
inspecting, testing, and transporting such Equipment, and, if applicable,
reasonable travel and related expenses. However, if upon return to service the
item fails to operate properly, Mirror and Nortel shall jointly work to
determine the cause of such failure and, if it is determined that the failure in
fact was the result of a warranted defect or nonconformity in such item,
Mirror's obligation to pay such costs shall be extinguished, Mirror shall be
reimbursed by Nortel for any costs that Mirror paid to Nortel and Nortel's
obligations under the Hardware Warranty and/or the Software Warranty, as the
case may be, shall apply.
Section 13.7 [***]
Section 13.8 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
Section 13.9 Support Services Program. Emergency Technical Assistance
Services ("ETAS") support for the Equipment shall be provided [***] to Mirror
during the Warranty Period. In addition, Nortel shall provide Technical
Assistance Services using the personnel specified in Section 9.3(i). The
description of Nortel customer and Technical Assistance Services is set forth in
Schedule 13.9.
Section 13.10 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
Section 13.11 [***]
Section 13.12 [***]
Section 13.13 Equipment Changes or Substitutions by Nortel. At any time
during its performance of this Agreement, Nortel may implement changes in the
Equipment identified in Schedule 4.9, modify the drawings and Specifications
relating thereto, or substitute Equipment of a similar or more recent design.
Nortel shall provide Mirror with advance written notice of any change,
modification or substitution including notice of Nortel's intention to change
the Equipment price. The notice shall be given at least thirty (30) days in
advance of the effective date of the change, modification or substitution.
However, notice of ten (10) days will be necessary where the Parties reasonably
consider the change as minor, where there is no price change and where items (a)
through (g) set forth below are complied with. [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
If each of the foregoing requirements has been met to Mirror's
satisfaction, Mirror and Nortel shall agree upon a Change Order in accordance
with the Order Procedures. With respect to changes, modifications, and
substitutions that do not conform to the foregoing requirements, Nortel shall
notify Mirror in writing thirty (30) days prior to their effective dates. In the
event that any such change is not desired by Mirror, Mirror shall notify Nortel
within thirty (30) days from the date of notice and Nortel shall not furnish any
such changed Equipment to Mirror on any orders in process at the time Nortel is
so notified. If a change is acceptable to Mirror, such change shall be reflected
in a Change Order.
Section 13.14 Network Expansion and Spares (Continuity of Supply).
(a) Class A and AC Hardware Changes. Nortel shall provide Class A and
Class AC Hardware Changes [***] to Mirror for the life of the Nortel
Equipment.
(b) Network Expansion Availability. For a period of [***] from the
expiration of the Term, Nortel shall make available to Mirror standard Nortel
Equipment that is compatible with, functionally equivalent to, and will permit
normal expansion of, the Network within the parameters defined by the
Specifications and under terms and conditions [***] mutually agreed to by
Mirror and Nortel. If Nortel discontinues the supply of compatible standard
Nortel Equipment during such period of time, then Nortel shall make available to
Mirror a commercially reasonable program for migration to Nortel's then-current
Nortel Equipment offering similar functionality.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(c) Discontinued Items. Nothing herein shall bar Nortel from
discontinuing individual items of Nortel Equipment. Nortel shall notify Mirror
at least [***] before Nortel discontinues accepting orders for an item of Nortel
Equipment sold under this Agreement; provided, however, that if Nortel offers
Nortel Equipment for sale that is equivalent in form, fit and function to the
discontinued Nortel Equipment, the notification period may be shorter than [***]
but in no event shorter than [***]
(d) Spare Parts Availability. Nortel warrants the availability of spare
parts or their functional equivalent for the Nortel Equipment for a period of
[***] from the expiration of the Term. [***] Should Nortel during the
aforementioned period discontinue production of any spare parts, Nortel will
give Mirror advance written notice, and will assist Mirror to find suitable
replacements, to enable Mirror to place orders for its requirements of spare
parts or to enter into any other mutually satisfactory arrangements with Nortel
prior to discontinuance of production of such spare parts.
Section 13.15 Disclaimer of Warranties. For all warranties set forth
hereunder, Mirror hereby agrees that Nortel shall not be liable or responsible
for any deficiencies to the extent that they result from:
(a) Nortel's reliance on erroneous material information furnished by
Mirror to Nortel;
(b) reasons of Force Majeure;
(c) unauthorized material changes, modifications or revisions made by
Mirror to the Equipment;
(d) any failure to meet the [***] materially attributable to Mirror,
including, without limitation: (i) Mirror's failure to apply Nortel's explicit
plans or instructions for System design, preventative and remedial maintenance,
frequency management, parameter adjustments and Cell Site traffic engineering
for radio capacity; (ii) Mirror's failure to implement all Nortel-recommended
recovery and System stabilization procedures; (iii) Mirror's failure to replace
defective circuit packs; (iv) Mirror's failure to follow applicable written
instructions of Nortel, where such instructions are capable of reasonable
interpretation and are unambiguous; or (v) Mirror's decision not to implement
Software patches provided by Nortel promptly upon their availability where such
Software patches are made available by Nortel to Mirror free of charge;
(e) modification, misuse, neglect or abuse of the Equipment, except
when made, done or caused by Nortel; improper wiring, repairing, splicing,
alteration, installation, storage or maintenance, except when made, done or
caused by Nortel or its agents, or any Nortel
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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Representative; use in a manner not in accordance with Nortel's written
specifications, operating instructions or Software licenses or failure of Mirror
to apply previously applicable Nortel modifications and corrections where Mirror
received written instructions to do so;
(f) defects in Equipment neither manufactured nor supplied by Nortel
under the terms of this Agreement; and
(g) In addition, Nortel makes no warranty with respect to Nortel
Equipment that has had any serial numbers or month and year of manufacture that
were marked on such Equipment as of the date of Provisional Acceptance thereof
removed, obliterated or altered, and with respect to expendable items,
including, without limitation, fuses, light bulbs, motor brushes and the like.
ARTICLE XIV
SOFTWARE
Section 14.1 Software. Nortel reserves title to the Software supplied by
Nortel and grants to Mirror a license on the terms specified in Schedule 14.1
(the "SOFTWARE LICENSE"). Included in this initial load will be the most recent
release generally available ("GA") including, but not limited to, the license,
the initial Software base load, the embedded Software license, the base Software
features and all optional Software features purchased by Mirror that are
available on the date that is ninety (90) days prior to the date programmed for
Commercial Launch in the Time Schedule. Mirror may assign such license to an
Affiliate or to any third Person with Nortel's prior written consent, which
consent shall not unreasonably be withheld, delayed or conditioned.
Section 14.2 Software Patches. Nortel shall provide, at no cost to Mirror,
Software patches for Software licensed hereunder to Mirror, as such Software
patches become available. Nortel shall grant Mirror a ninety-nine (99) year
right to use license for any Software patch.
Section 14.3 Software Upgrades. Upgrades approved by Nortel for commercial
release and associated with base Software loads and new releases associated with
base Software loads will be provided [***] from the Commercial Launch of such
Nortel Equipment. Mirror shall be responsible for any purchases of additional
Hardware and related Services required to permit the installation and operation
of Software upgrades and new Software releases. [***]
ARTICLE XV
DOCUMENTATION
Section 15.1 Documentation to be Provided by Nortel.
(a) Nortel shall provide its standard Documentation package (as
described in Schedule 15.1) [***] to Mirror and as reasonably required for
Mirror's personnel who are
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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involved in the planning, Commissioning, Acceptance, Installation, O&M,
supervision, and administration of the Network or any System.
(b) Nortel shall provide [***] one additional full set of Documentation
to Mirror upon request.
(c) Nortel shall make the Documentation available on CD-ROM or as
mutually agreed by the Parties. Documentation provided via Nortel's CD-ROM media
may be printed and copied to the extent necessary for the O&M of the Equipment
to which the Documentation pertains. However, Mirror may not press any copies of
CD-ROM discs.
(d) Nortel shall provide, [***] to Mirror, a copy of its Documentation
in both English and Portuguese. During the applicable Warranty Period set forth
herein, Nortel shall provide, also at no charge to Mirror, updates for such
Documentation. Nortel shall amend or replace the Documentation to reflect any
design change.
Section 15.2 License to Documentation. Mirror is hereby granted a
royalty-free, ninety-nine (99) year and non-exclusive license and right to
reproduce, translate, modify and use the Documentation provided by Nortel and
have it used by its Subcontractors, for purposes relating to the Network. If
Mirror modifies or translates the Documentation, Nortel shall not be liable for
any errors or omissions in such Documentation arising out of the modification or
translation. [***]
Section 15.3 Proprietary Information. All plans, drawings, designs and
specifications submitted by Mirror or on its behalf, are Confidential
Information to be protected in accordance with Article XX herein, shall remain
the property of Mirror, may be copied only in accordance with Article XX herein
and may not be disclosed to third parties by Nortel without Mirror's prior
written consent. These materials shall be returned to Mirror promptly upon its
request without any copy remaining with Nortel.
Section 15.4 Documents to Become Property of Mirror. Documentation,
including, without limitation, plans, drawings, designs, and specifications
supplied by Nortel in connection with the Equipment shall become the property of
Mirror, provided, however, that title to Nortel's intellectual property rights
shall not be conveyed to Mirror at any time. In addition, such Documentation
supplied by Nortel is Confidential Information to be protected by Mirror in
accordance with Article XX. Mirror shall have full rights to use the
Documentation supplied by Nortel in the course of the normal O&M of the Network.
Section 15.5 Responsibility for Documents.
(a) Each Party supplying technical data or documents shall be
responsible for the completeness and accuracy of such technical data or
documents. If such technical data or documents are not complete or are
inaccurate, each Party shall notify the responsible Party and
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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thereafter such responsible Party shall promptly complete and/or correct such
technical data or documents.
(b) Nortel shall make available upon reasonable notice, during normal
business hours to authorized representatives of Mirror all back-up technical
documents relating to the Project.
ARTICLE XVI
FORCE MAJEURE AND ACTS OF PROVIDENCE
Section 16.1 Force Majeure. "FORCE MAJEURE" shall comprise any human event
or a combination of ▇▇▇▇▇ ▇▇▇▇▇▇ that neither of the Parties could control,
foresee or prevent, and whose occurrence neither of them, their respective
agents, employees or Subcontractors acting under its direction, contributed to,
which events cause a Party or the Parties to default or delay in performing
their obligations under this Agreement. Such Force Majeure events shall include,
without limitation, the following:
(a) acts of a public enemy, war or threat of imminent war (declared or
undeclared) occurring in or involving Brazil, revolution, riot, rebellion,
insurrection, military or usurped power, state of siege, declaration of a state
of emergency or martial law, act of terrorism or sabotage (in each case
occurring in or involving Brazil), embargo or blockade, declaration of public
calamity;
(b) politically motivated or otherwise widespread strikes, suspensions,
interruptions, work slow-downs or other labor disruptions;
(c) explosions, chemical or radioactive contamination or ionizing
radiation;
(d) air crashes, objects falling from aircraft, pressure waves caused
by aircraft or aerial devices traveling at supersonic speed;
(e) the expropriation, confiscation, compulsory acquisition,
nationalization or seizure of all or any part of Nortel's or Mirror's assets or
capital stock by any Government or any Authority; or
(f) any exercise of sovereign or executive prerogative or similar
action by any Authority.
Section 16.2 Acts of Providence. "ACTS OF PROVIDENCE" shall comprise any
natural phenomena that neither of the Parties could control, foresee or prevent
and whose occurrence none of them, their respective agents, employees or
Subcontractors acting under their direction contributed to, which events cause a
Party or Parties to default or delay in performing its or their obligations
under this Agreement. Such Acts of Providence include, without limitation,
epidemics, meteorites, fire, lightning, earthquake, cyclone, whirlwind,
hurricane, earthquake, tempest, unusually severe storm, drought, flood (other
than reasonably foreseeable seasonal flooding) or other unusual or extreme
adverse weather or environmental condition or action of the elements.
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Section 16.3 Exclusions. The following events shall not be considered
events of Force Majeure or Acts of Providence:
(a) lack of funds;
(b) inconvertibility of currency; or
(c) unavailability, late delivery, or changes in cost of Nortel
Equipment, materials or spare parts for the Project.
Section 16.4 Procedure for Calling Force Majeure or Acts of Providence.
(a) If one Party wishes to claim relief from the performance of its
obligations on account of any event or circumstance of Force Majeure or an Act
of Providence (hereinafter, the "AFFECTED PARTY"), then the Affected Party shall
give notice to the other Party of such event or circumstance as soon as
reasonably practicable after becoming aware of such event or circumstance.
(b) Each notice served by an Affected Party to the other Party pursuant
to this Section 16.4 shall specify the event or circumstance of Force Majeure or
Act of Providence in respect of which the Affected Party is claiming relief.
Noncompliance with the procedure specified herein shall relieve the other Party
from accepting the Affected Party's claim until notice is so provided. The
Affected Party shall, by reason of any event or circumstance of Force Majeure or
Act of Providence in respect of which it has claimed relief under this Section
16.4:
(i) use its best efforts to mitigate the effects of such Force
Majeure or Act of Providence and to remedy any inability to
perform its obligations hereunder due to such events as
promptly as reasonably practicable; provided that:
(1) the Affected Party shall not be obliged to take any
steps that would not be in accordance with Prudent
Industry Practices or would be beyond its control; and
(2) the Affected Party shall not be required to settle any
strikes or other labor dispute on terms that are
adverse to the Affected Party and not commercially
reasonable.
(ii) furnish weekly reports to the other Party regarding the
progress in overcoming the adverse effects of such event of
Force Majeure or Act of Providence;
(iii) afford to the other Party reasonable facilities for obtaining
further information about the event or circumstance of Force
Majeure or Act of Providence; and
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(iv) resume the performance of its obligations under this
Agreement immediately after the events of Force Majeure or
Acts of Providence are remedied, cease to exist or are deemed
to have ended under the following paragraph.
When the Affected Party is able, or would have been able if it had complied with
its obligations under this Section 16.4, to resume the performance of all of its
obligations under this Agreement affected by the occurrence of an event or
circumstance of Force Majeure or Act of Providence, then the period of Force
Majeure or Act of Providence relating to such event or circumstance shall be
deemed to have ended.
Section 16.5 Effects of Force Majeure or Acts of Providence.
(a) An Affected Party shall be relieved from any liability for delays
in performance or the non-performance of its obligations under this Agreement
or, in the case of Nortel, for failure to manufacture or deliver Equipment or
Services where and to the extent that such non-performance is attributable
directly to the event of Force Majeure or Act of Providence. If an event of
Force Majeure or an Act of Providence causes a delay in the construction or
Commissioning of the Network, Nortel shall use its best efforts to resolve and
complete the construction of the Network in accordance with the Time Schedule.
The Parties shall use their reasonable commercial efforts to revise such Time
Schedule to reflect the actual impact on the construction and operational
schedules of the event of Force Majeure or Act of Providence.
(b) If any Force Majeure or Act of Providence occurs and results in a
delay or failure in performance, the non-Affected Party may elect to: (i)
terminate that part of any Order Document affected by the Force Majeure or Act
of Providence as to Equipment not already shipped or Services not already
rendered if the Force Majeure or Act of Providence continues for a period of
forty five (45) days after notifications; (ii) suspend that part of any Order
Document affected by the Force Majeure or Act of Providence for the duration of
the Force Majeure or Act of Providence, buy, sell, obtain, or furnish elsewhere
Equipment to be bought, sold, obtained, or furnished hereunder, and deduct from
any Order Document commitment the quantity bought, sold, obtained, or furnished
or for which such commitment has been made elsewhere; or (iii) resume
performance of such Order Document once the Force Majeure or Act of Providence
ceases with an option for the non-Affected Party to extend the delivery or
performance date up to the length of time the Force Majeure or Act of Providence
endured. Unless written notice is given within thirty (30) days after such
non-Affected Party is provided written notice of the occurrence of a Force
Majeure or Act of Providence, option (iii) shall be deemed selected. Nothing
contained herein or elsewhere shall impose any obligation on either Party to
settle any labor difficulty.
ARTICLE XVII
REPRESENTATIONS AND WARRANTIES
Section 17.1 Representations and Warranties of Nortel. Each of Nortel
Networks, Nortel Industria and Nortel Servicos represents and warrants that:
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(a) the persons executing this Agreement, and those identified in
Schedule 17.1(a) who are initialing the Schedules on its behalf, have express
authority to do so under specific or standing delegation and, in so doing, to
bind the each of Nortel Networks, Nortel Industria and Nortel Servicos thereto;
(b) it is duly organized, validly existing and in good standing, if
applicable, under the laws of its jurisdiction of establishment, with full power
and authority, as the case may be, to own, lease and operate the assets held or
used by it to conduct its business as currently conducted. It has the power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions provided for hereby have been duly authorized by its governing
body, and no other proceeding on the part of such Party is necessary to
authorize the execution or delivery of this Agreement or the consummation of any
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by each of Nortel Networks, Nortel Industria and Nortel Servicos
and constitutes a legal, valid and binding obligation of such Party, enforceable
against it in accordance with the terms set forth herein; and
(c) each of (i) the execution and delivery of this Agreement by such
Party and (ii) the consummation of the transactions provided for hereby does not
and will not (i) conflict with or violate any provision of the Certificate of
Incorporation, Memorandum of Association, Articles of Association, Bylaws,
Estatutos Sociais or any other document of governance of such Party, (ii)
violate, conflict with or result in the breach or termination of, or otherwise
give any other Person the right to accelerate, renegotiate or terminate or
receive any payment, or constitute a default, event of default or an event that,
with notice, lapse of time, or both, would constitute a default or event of
default, under the terms of any material contract to which such Party is a party
or is bound, (iii) result in the creation of any material pledges upon any of
their respective properties, or (iv) constitute a violation by any such Party of
any applicable Law.
Section 17.2 Representations and Warranties of Mirror. Mirror represents
and warrants that:
(a) the persons executing this Agreement, and those identified in
Schedule 17.1(a) who are initialing the Schedules on its behalf, have express
authority to do so under specific or standing delegation, and in so doing, to
bind Mirror thereto;
(b) it is duly organized, validly existing and in good standing, if
applicable, under the laws of its jurisdiction of establishment, with full power
and authority, as the case may be, to own, lease and operate the assets held or
used by it to conduct its business as currently conducted. It has the power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions provided for hereby have been duly authorized by its governing
body, and no other proceeding on the part of such Party is necessary to
authorize the execution or delivery of this Agreement or the consummation of any
of the transactions contemplated hereby. This Agreement has been duly executed
and delivered by Mirror and constitutes a legal, valid and binding obligation of
such Party, enforceable against it in accordance with the terms set forth
herein; and
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(c) each of (i) the execution and delivery of this Agreement and (ii)
the consummation of the transactions provided for hereby does not and will not
(i) conflict with or violate any provision of the Certificate of Incorporation,
Memorandum of Association, Articles of Association, Bylaws, Estatutos Sociais or
any other document of governance of Mirror, (ii) violate, conflict with or
result in the breach or termination of, or otherwise give any other Person the
right to accelerate, renegotiate or terminate or receive any payment, or
constitute a default, event of default or an event that, with notice, lapse of
time, or both, would constitute a default or event of default, under the terms
of any material contract to which Mirror is a party or is bound, (iii) result in
the creation of any material pledges upon its properties, or (iv) constitute a
violation by Mirror of any applicable Law.
ARTICLE XVIII
INSURANCE
Section 18.1 Insurance.
(a) Nortel agrees to maintain, so long as it supplies Equipment,
performs Installation or other Services for any Equipment or has obligations
regarding warranties under Article XIII, the following insurance coverage as
well as all other insurance required by Law in the jurisdiction where the work
is performed:
(i) Worker's Compensation. Nortel shall at all times during the
Term provide workers' compensation and related insurance as
required by Law;
(ii) General Liability. Nortel shall at all times during the Term
maintain policies of insurance with a reliable insurance
company for comprehensive general liability with a limit of
not less than [***] inclusive per occurrence for personal
injury, bodily injury, death, automotive liability,
third-party liability and property damage. Nortel shall
include Mirror as an additional insured and a stated
beneficiary on all such policies.
(iii) Self-Insurance. Nortel shall have the option where permitted
by Law to self-insure any or all of the foregoing insurance.
(iv) Demonstration of Insurance. Within thirty (30) days following
the Effective Date and thereafter upon request by Mirror,
Nortel shall provide to Mirror proof that it maintains the
insurance coverage as required above.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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ARTICLE XIX
LIMITATION ON LIABILITY
Section 19.1 Limitation of Liability.
(a) Scope of Liability. Mirror's exclusive remedies and the entire
liability of Nortel and its Affiliates and their employees and agents for any
claim, Loss, damage or expense of Mirror or any other entity arising out of the
transactions or actions contemplated by this Agreement, or the use or
performance of the Network or any Equipment, System or Service, whether in
action for or arising out of the breach of contact, tort, including negligence,
indemnity, or strict liability shall be as follows:
(i) For delay and penalties -- the remedies set forth in the
relevant section of Article X;
(ii) For the inadequate performance or non-performance of
Equipment or Services or claims that they do not conform to a
warranty -- the remedies set forth in the applicable Section
of Article XIII;
(iii) For tangible property damage and personal injury caused by
Nortel's negligence or willful misconduct -- the amount of
direct damages;
(iv) For everything other than as set forth above an amount of the
direct damages not to exceed the purchase price of the
Equipment and Services giving rise to Mirror's claim,
including awarded reasonable counsel fees and costs;
(v) Notwithstanding any other provision of this Agreement,
including without limitation the definition of Loss set forth
in Section 1.1, neither Party, its Affiliates and its
employees and agents shall be liable for any consequential,
indirect, moral or exemplary damages incurred by the other
Party of any nature whatsoever, including loss of profits or
revenues, anticipated savings, loss of data or associated
equipment, cost of capital or any other indirect economic
Losses. Nortel shall not be responsible for any claim, loss,
damage or expense to the extent resulting from Mirror's
negligence or willful misconduct.
ARTICLE XX
CONFIDENTIALITY
Section 20.1 Confidentiality.
(a) Confidential Information Defined. "CONFIDENTIAL INFORMATION" shall
mean such information disclosed by one Party to the other that at the time of
disclosure is designated as confidential or proprietary (or like designation),
is disclosed in circumstances of confidence or would be understood by the
Parties exercising reasonable business judgment to be confidential pursuant to
this Agreement and shall include, without limitation, formulas, processes,
designs, photographs, plans, samples, Equipment performance reports, subscriber
lists, pricing information, studies, findings, inventions, ideas, drawings,
schematics, sketches, specifications, parts lists, technical data, data bases,
software in any form, flowcharts, algorithms, and other business and
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technical information. Confidential Information may be communicated orally, in
writing, by electronic or magnetic media, by visual observation and by other
means. The Party receiving said notification shall, from that time forward treat
such information as Confidential Information. Excluded from Confidential
Information is that which the recipient had in its possession without
confidential limitation prior to disclosure, which is independently known or
developed by either Party, which is known or becomes known to the general public
without breach of this Agreement, or which is rightfully received from a third
Person and without confidential limitation.
(b) Exchange of Information. From time to time during the performance
of this Agreement, the Parties may deem it necessary to provide each other with
Confidential Information. The Parties agree:
(i) Nondisclosure. To maintain the confidentiality of such
Confidential Information and not to disclose it to any third
Person except as authorized by the original disclosing Party
in writing.
(ii) "Need to Know" Disclosure. To restrict disclosure of
Confidential Information only to employees and Authorized
Agents who have a "need to know." Such Confidential
Information shall be handled with the same degree of care
that the receiving Party applies to its own Confidential
Information but in no event shall such Confidential
Information be treated with less than reasonable care.
(iii) Precautions. To take all necessary and appropriate
precautions to guard the confidentiality of Confidential
Information, including informing employees and Authorized
Agents who handle such Confidential Information that it is
confidential and not to be disclosed to others.
(iv) Ownership. That Confidential Information is and shall,
subject to Section 15.4, at all times remain the property of
the disclosing Party. No use of any Confidential Information
is permitted except as otherwise provided herein and, except
as otherwise provided herein, no license to a Party under any
trademark, patent, copyright, mask work or any other
intellectual property right, is either granted or implied by
the conveying of Confidential Information to such Party.
(v) Use. To use such Confidential Information only as required
for the purposes of this Agreement.
(vi) Reproduction. That Confidential Information furnished in
written, pictorial, magnetic or other tangible form shall not
be reproduced or copied, in whole or part, except as
reasonably necessary (i) by Nortel for its performance under
this Agreement, and (ii) by Mirror for its installation and
O&M of Equipment and Services furnished by Nortel under this
Agreement; if copied or reproduced shall bear the same
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notices or legends, if any, as the originals and shall,
together with any full or partial copies thereof, be
returned, destroyed or erased (including any computer memory
thereof) when no longer needed for the purposes authorized
under this Agreement. The receiving Party shall use
reasonable efforts to return, destroy, or erase such
tangible Confidential Information (including copies,
reproductions or other documents containing Confidential
Information within ten (10) Business Days of the disclosing
Party's written request.
(vii) Legal Compulsion. The receiving Party may disclose
Confidential Information pursuant to any valid legal or
regulatory requirement or order of a court, regulatory
agency or other Authority having jurisdiction; provided,
that such disclosure shall be as narrowly tailored as
possible to comply with such legal or regulatory requirement
or order. Upon becoming aware of any such requirement to
disclose Confidential Information, the receiving Party
immediately shall so notify the disclosing Party of such
requirement and of the information that it proposes to
provide in compliance with such requirement.
(viii) Survival. This Article shall continue until termination of
this Agreement; provided, however that all obligations
hereunder with respect to Confidential Information received
prior to such expiration, cancellation or termination of
this Agreement shall survive such expiration, cancellation
or termination for a period of two (2) years after
termination.
(c) Agreement Disclosure. Except as may be required by, or necessary in
order to comply with, applicable Law, neither Nortel nor Mirror shall disclose
to any third party the contents of this Agreement, the schedules or any
amendments hereto or thereto for a period of two (2) years after the termination
of this Agreement without the prior written consent of the other Party, which
will not be unreasonably withheld. Nortel, to the extent appropriate, can
disclose the content of the Agreement to its Subcontractors, provided such
Subcontractors agree in writing to maintain such information confidential.
Mirror may disclose this Agreement to banks, financing entities and potential
equity investors and their respective advisors with a view to obtaining funds;
provided that said banks and financing entities and potential equity investors
agree to maintain such information confidential. In addition, Mirror's
shareholders may, as and to the extent required by, or necessary to ensure
compliance with, applicable laws, including, without limitation, applicable
securities laws and regulations, disclose this Agreement to banks, financing
entities and potential equity investors and their respective advisors with a
view to obtaining funds; provided that said banks and financing entities and
potential equity investors agree to maintain such information confidential.
(d) Third Parties. Except as provided below with respect to Authorized
Agents, neither Party shall disclose Confidential Information of the Party
hereto to any third Person without such other Party's prior written consent. Any
such consent may be conditioned upon execution by
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the third Person of a nondisclosure agreement in a form satisfactory to the
Party whose Confidential Information is being disclosed.
(e) Authorized Agents. For purposes of this Article XX, the term
"AUTHORIZED AGENT" includes an attorney, an expert, a consultant, a
Subcontractor, or other third Person, but only to the extent such Party is
performing or enforcing (or assisting the receiving Party to perform or enforce)
or advising the receiving Party with respect to its rights and obligations under
this Agreement, and provided that such third Person is bound by a professional
ethical obligation of confidentiality or agrees in writing (a copy of which
document will be produced to the disclosing Party at its request) to the same
conditions respecting use of Confidential Information contained in this clause
and to any reasonable conditions requested by the disclosing Party.
ARTICLE XXI
EVENTS OF DEFAULT; TERMINATION
Section 21.1 Mirror Events of Default. The following events shall be
considered events of default ("EVENTS OF DEFAULT") by Mirror under this
Agreement:
(a) Mirror materially breaches a material obligation under this
Agreement, which breach remains uncured thirty (30) days after Mirror has
received notice from Nortel identifying such material breach and requesting that
such breach be cured;
(b) Mirror makes a general assignment for the benefit of creditors, or
a petition in bankruptcy or under any insolvency law is filed by or against
Mirror and such petition is not dismissed within sixty (60) days after it has
been filed; and
(c) ANATEL revokes the License.
Section 21.2 Remedies for Mirror Event of Default. If Mirror commits an
Event of Default that has not been cured within the applicable cure period
provided in Section 21.1, Nortel may terminate this Agreement on sixty (60) days
notice to Mirror; provided, that if the applicable Event of Default is cured
within such sixty (60) day notice period, such notice shall be invalid and this
Agreement shall not be terminated on account of such cured Event of Default.
Section 21.3 Nortel Events of Default. The following events shall be
considered Events of Default by Nortel under this Agreement:
(a) Nortel or any Nortel Representative breaches a material obligation
under this Agreement, including, without limitation, [***] to provide vendor
financing (Section 7.9), [***] which breach remains uncured thirty (30) days
after Nortel has received notice from Mirror identifying such material breach
and requesting that such breach be cured;
(b) Liquidated Damages payable by Nortel at any time pursuant to this
Agreement reach [***]; and
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(c) Any of Nortel Networks, Nortel Industria or Nortel Servicos makes a
general assignment for the benefit of creditors, or if a petition in bankruptcy
or under any insolvency law is filed by or against Nortel and such petition is
not dismissed within sixty (60) days after it has been filed.
Section 21.4 Remedies for Nortel Events of Default. If Nortel commits an
Event of Default that has not been cured within the applicable cure period
provided in Section 21.3, if any, Mirror may elect either to:
(a) [***]
or
(b) terminate this Agreement [***] on thirty (30) days notice to
Nortel; provided, that if all Events of Default are cured within such thirty
(30) day notice period and there are no other outstanding Nortel Events of
Default or other defaults under this Agreement, such notice shall be invalid and
this Agreement shall not be terminated on account of such cured Event of
Default.
Section 21.5 Effects of Termination on Pre-Existing Rights. Each Party's
termination rights shall be without prejudice to the rights or claims it may
have hereunder against the other with respect to its performance, nonperformance
or breach of obligations hereunder. Any termination of this Agreement shall not
affect (i) any right or obligation of any Party arisen prior to termination; and
(ii) the right to use Equipment and Services acquired and paid for under this
Agreement, or otherwise exercise the rights granted hereunder provided such
rights survive termination of this Agreement pursuant to Section 24.8. In the
event termination is due to Nortel Events of Default, at Mirror's option, any
orders for Equipment or Services placed with Nortel prior to the effective date
of termination shall be completed in accordance with the terms of this
Agreement.
ARTICLE XXII
GOVERNING LAW; RESOLUTION OF DISPUTES
Section 22.1 Governing Law. The validity, construction and interpretation
of, and the rights and obligations of the Parties pursuant to, this Agreement
and any amendment hereto shall be governed by the Laws of Brazil.
Section 22.2 Disputes. Except as otherwise provided in this Agreement,
every dispute, controversy or disagreement of any kind or nature between the
Parties arising out of or in connection with this Agreement (each, a "DISPUTE")
shall be resolved in accordance with the following provisions of this Article
XXII.
Section 22.3 Executive Resolution.
(a) Upon the occurrence of a Dispute, either Party may deliver a notice
to the other Party (a "DISPUTE NOTICE") requesting that the Dispute be referred
to the senior management of the Parties. Any Dispute Notice shall include the
names of the senior management of the Party nominated to attempt to resolve the
Dispute and a schedule of their availability during the eighteen
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(18) day period following the date of the delivery of the Dispute Notice. Any
Dispute Notice shall be delivered promptly after the Dispute arises.
(b) Within three (3) days after receipt of a Dispute Notice, the other
Party shall provide a notice to the requesting Party (the "RESPONSE NOTICE")
indicating the names of the senior management of such other Party nominated to
attempt to resolve the Dispute, and a schedule of their availability during the
fifteen (15) day period following the date of the delivery of the Response
Notice.
(c) During the fifteen (15) day period following the delivery of the
Response Notice, the nominated members of the senior management of the Parties
shall meet as frequently as possible and shall attempt in good faith to resolve
the Dispute.
Section 22.4 Arbitration. In the event that any Dispute has not been
resolved within [***] of the delivery of a Response Notice, an arbitral tribunal
may be established in accordance with the following provisions:
(a) The Party wishing to appeal to the arbitral tribunal shall notify
the other Party indicating the nature of the Dispute and the name of its
appointed arbitrator.
(b) Within [***] from the date of receipt of the notice referred to in
Section 22.4(a), the other Party shall inform the first Party by written notice
of its appointed arbitrator. In the event such appointment is not made, the
first Party may request the President of the International Chamber of Commerce
to appoint the second arbitrator on behalf of the other Party.
(c) Within [***] from the date of the appointment referred to in
Section 22.4(b), the appointed arbitrators shall appoint a third arbitrator who
shall preside over the proceedings. If an agreement upon the third arbitrator is
not reached, such appointment shall be made by the President of the
International Chamber of Commerce.
(d) The arbitration shall be governed by the Rules of Arbitration of
the International Chamber of Commerce, except as provided otherwise herein, and
the arbitral tribunal shall adopt the substantive Laws of Brazil, without giving
effect to any conflict of Laws rules contained therein.
(e) All proceedings and records of the arbitration shall be conducted
and maintained in the English language. All notices, requests, demands and other
communications shall be in writing in the English language and shall be
delivered pursuant to Section 24.4.
(f) Any Party may apply to the arbitrators for the privilege of
conducting discovery. The right to conduct discovery shall be granted by the
arbitrators at their sole discretion with a view to avoiding surprise and
providing reasonable access to necessary information or information likely to be
presented during the course of the arbitration, without regard to whether or the
extent to which such information is confidential.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(g) The Parties shall be given the right to cross-examine any witness
whose testimony is so admitted.
(h) No indirect, consequential, incidental, moral or punitive damages
shall be sought by or imposed on the Parties (other than as otherwise permitted
by this Agreement).
(i) Any confidentiality covenant established in this Agreement shall
apply to the arbitration proceedings.
(j) The arbitration shall be conducted in the city of Rio de Janeiro,
Brazil.
(k) Within [***] from the date the arbitral tribunal is formed, the
arbitrators shall present a detailed arbitral award, which shall be determined
based on a majority of votes. Such arbitral award shall detail and quantify the
liabilities of the defaulting Party as well as indicate the proportion of the
arbitrators' fees and expenses to be borne by each Party and terms for the
respective payment. The arbitral award shall, except in the event of fraud or
material mistake, be final, without appeal and binding upon the Parties.
(l) Any judgment on such award must comply with the requirements of
enforceability in Brazil and shall be enforced in the same manner as if it were
a final judgment from any judicial court of such jurisdiction.
(m) The Parties agree that either Party may have the need to obtain
immediate relief including, without limitation, specific performance and/or
injunction from a judicial court. Therefore, the filing for and obtaining of
injunctive relief (or another type of remedy that cannot be obtained from an
arbitral tribunal under applicable Law) in connection with this Agreement shall
be permitted and shall not be considered a breach hereof; provided that such
remedy or judicial relief (i) is limited to what is required to prevent imminent
damage to a Party and (ii) does not resolve the merits or substance of any such
Dispute.
(n) If, for any reason, the arbitration proceedings or the enforcement
of any arbitral award thereunder is ultimately frustrated by any Party and the
other Party is unable to obtain appropriate legal remedy to conduct the
arbitration proceedings or to enforce the arbitral award against such Party, the
injured Party shall not be denied or restricted access to any judicial or
extrajudicial forum provided that, in such event, the Parties shall submit any
Dispute to the courts of the city of Rio de Janeiro, Brazil.
SECTION XXIII
[***]
Section 23.1 [***]
Section 23.2 [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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[***]
ARTICLE XXIV
MISCELLANEOUS
Section 24.1 Compliance with Law. The Parties shall comply with all
applicable Laws. In addition, Nortel acknowledges that it has received and
reviewed a copy of the License and shall, in performing its obligations under
this Agreement, comply with the requirements therein governing the procurement
of Equipment and Services.
Section 24.2 Publicity and Trademark. Nothing contained in this Agreement
shall be construed as conferring any right to use any name, trademark or other
designation of either Party hereto, including any abbreviation, or simulation of
any of the foregoing, in advertising, publicity or marketing activities. Any
publicity, advertising, etc., with regard to this Agreement or the Network that
mentions the other Party shall be mutually agreed upon in writing prior to
disclosure or dissemination.
Section 24.3 Assignment.
(a) This Agreement shall inure to the benefit of and be binding upon
the Parties hereto and their respective successors and permitted assigns. Except
as provided in Sections 24.3(b) and (c), neither Party shall assign or transfer
this Agreement without the prior written consent of the other Party.
(b) Nortel may assign its rights and delegate its duties, obligations
and liabilities hereunder to a designated (direct or indirect) subsidiary
controlled by Nortel, provided that Nortel remains jointly and severally liable
as to the performance of all of its obligations by such subsidiary.
(c) Mirror may assign its rights and delegate its duties, obligations
and liabilities to a designated (direct or indirect) subsidiary of Mirror,
provided that Mirror remains jointly and severally liable as to the performance
of its obligations by such subsidiary without requiring the consent of Nortel.
In addition, upon notice to Nortel, Mirror may assign this Agreement as security
to Persons providing debt financing for the Project and Nortel shall cooperate
with Mirror as required to effectuate such collateral assignment.
Section 24.4 Notices.
(a) Notices required to be given by one Party to another shall be
deemed properly given if reduced to writing and personally delivered or
transmitted by postage prepaid registered or certified post, return receipt
requested, by air courier, or by facsimile or electronic mail with confirmation
receipt to the addresses indicated below. Such notices shall be deemed to have
been given and shall be effective upon receipt.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
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(b) Notice to Mirror:
Mirror S.A.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ andar
20031-170 Rio de Janeiro, ▇.▇.
Brasil
Tel: ▇▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Operating Officer
(c) Notice to Nortel:
Nortel Networks Corporation
Northern Telecom do Brasil Industria e Comercio Ltda.
Northern Telecom do Brasil Comercio e Servicos Ltda.
▇▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - 10(O) Andar
▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Tel: ▇▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇
Attn: Director President
Section 24.5 Modifications to Notice Address. Either Party may change the
addresses for giving notice by providing the other Party with written
information about such change of address in accordance with Section 24.4.
Section 24.6 Records. Both Parties shall maintain complete and accurate
records of all matters that relate to their obligations hereunder in accordance
with generally accepted accounting principles and practices, uniformly and
consistently applied in a format that will permit audit. Unless otherwise
provided in this Agreement the Parties shall retain such records for a period of
five (5) years from the date of their creation or the period required by the
applicable Laws, whichever is greater.
Section 24.7 Severability. Any term or provision of this Agreement that is
held to be invalid, void, unenforceable or illegal will in no way affect, impair
or invalidate the remaining terms or provisions, which will remain in full force
and effect as though the Agreement did not contain the particular invalid or
unenforceable term or provision, and the rights and obligations of each Party
shall be construed and enforced accordingly. To the extent that any provision
shall be held to be invalid, illegal or unenforceable, such provision shall be
considered null and void but the remaining provisions of this Agreement shall
remain in effect. In the event the invalid illegal or unenforceable provision is
considered an essential element of this Agreement, the Parties shall promptly
negotiate replacement provisions that are acceptable to both Parties and are
valid, legal and enforceable, and come as close as possible to reflect
accurately the intentions of the Parties underlying the invalid, illegal or
unenforceable provision or provisions.
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Section 24.8 Survival. Termination of this Agreement, for whatever cause,
shall be without prejudice to any right or obligation of any Party hereto in
respect of this Agreement that has arisen prior to such termination or
expiration. If this Agreement is terminated by either Party prior to the
completion of Final Acceptance for any Order Document, then the Order Document's
Provisional Acceptance and Final Acceptance will be based on that Equipment
actually delivered to the corresponding Site(s) as of the effective date of
termination. The Parties' rights and obligations, which, by their nature, would
continue beyond the termination, cancellation, or expiration of this Agreement,
shall survive the termination, cancellation or expiration of this Agreement
including, without limitation, the provisions of Sections 7.8, 10.1, 10.2, 10.3,
10.4, 15.2, 15.4, 19.1, 20.1, 24.1, 24.2, 24.6, 24.8, 24.14, 24.15, and 24.17,
and Articles XIII, XIV and XXII.
Section 24.9 Consent. Wherever in this Agreement consent, approval or
mutual agreement is required of Mirror or Nortel, the appropriate Party agrees
not to withhold or delay unreasonably such consent or approval.
Section 24.10 Discrepancies or Inconsistencies. In the event of any
discrepancy or inconsistency between this Agreement and any of its Schedules,
the terms and conditions of this Agreement shall prevail to the extent of any
such discrepancy or inconsistency.
Section 24.11 Amendment, Modification or Addendum. Any amendment,
modification or addendum to this Agreement shall be made by making specific
reference to the provision(s) to be amended, modified or added and shall be made
in writing signed by all Parties hereto. All other provisions not specifically
referred to in such amendment, modification or addendum shall remain unchanged
and in full force and effect.
Section 24.12 No Waiver of Rights; No Novation.
(a) No waiver by either Party of any default or defaults by the other
Party in the performance of any of the provisions of this Agreement:
(i) shall operate or be construed as a waiver of any other or
further default or defaults whether of a like or different
character;
(ii) shall operate or be construed as a novation of any of the
rights and obligations established herein; or
(iii) shall be effective unless in writing duly executed by a duly
authorized representative of such Party.
(b) Neither the failure by a Party to insist on any occasion upon the
performance of the terms, conditions and provisions of this Agreement nor time
or other indulgence granted by one Party to the other shall act as a waiver of
such breach or acceptance of any variation or the relinquishment or the novation
of any such right or any other right hereunder, which shall remain in full force
and effect.
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Section 24.13 Costs and Expenses. Except as otherwise provided in this
Agreement, each Party shall pay its own costs and expenses in relation to the
negotiation, preparation, execution and carrying into effect of this Agreement.
Section 24.14 Relationship of the Parties. This Agreement shall not be
interpreted or construed to create an association, joint venture or partnership
between the Parties or to impose any partnership obligation or liability upon
either Party and neither Party shall have any right, power or authority to enter
into any agreement or undertaking for, or act on behalf of, or to act as or be
an agent or representative of, or to otherwise bind, the other Party.
Section 24.15 Language of Agreement. This Agreement shall be executed in
the English language and the Parties shall initial a sworn, official translation
of this Agreement (without the schedules) to the Portuguese language, which
shall be prepared within ninety (90) days from the Effective Date. Such
translation shall be used in the event that presentation of a Portuguese
translation of this Agreement to any Brazilian court, tribunal or Authority is
required. In the event that an official translation of the schedules to this
Agreement is required, the Parties shall jointly agree upon such official
translation. All documents, notices, waivers and all other written
communications between the Parties in connection with this Agreement shall,
unless the Parties otherwise agree, be in English.
Section 24.16 Third Party Beneficiaries. Except as provided in Section
20.1(c), this Agreement is intended to be solely for the benefit of the Parties
hereto and is not intended to confer any benefits upon, or create any rights in
favor of, any Person other than the Parties hereto.
Section 24.17 Relationship of Nortel Networks, Nortel Servicos and Nortel
Industria. Each of Nortel Networks, Nortel Servicos and Nortel Industria shall
be jointly and severally liable for the obligations of Nortel under this
Agreement.
Section 24.18 Schedules. The following Schedules shall constitute a part of
this Agreement as though included in the body hereof:
SCHEDULE SCHEDULES
Schedule 4.1 [***]
Schedule 4.9 [***]
Schedule 4.10 [***]
Schedule 5.1(a) [***]
Schedule 6.1 [***]
Schedule 7.3(a) [***]
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
67
74
Schedule 7.6(f)(vi) [***]
Schedule 7.9 [***]
Schedule 7.10 [***]
Schedule 8.1(a) [***]
Schedule 9.1(a) [***]
Schedule 9.3(a) [***]
Schedule 9.3(d) [***]
Schedule 10.5 [***]
Schedule 13.2 [***]
Schedule 13.9 [***]
Schedule 14.1 [***]
Schedule 15.1 [***]
Schedule 17.1(a) [***]
Schedule 23 [***]
* * * *
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted material
has been filed separately with the Securities and Exchange Commission.
68
75
Thus being agreed, the Parties have executed this Agreement in three (3)
counterparts, in the presence of two (2) witnesses signing below. Rio de
Janeiro, July 9, 1999.
------------------------------------------------------- -----------------------------------------------------
MIRROR S.A.
By: By:
---------------------------------------------- -----------------------------------------------
Name: Name:
-------------------------------------------- ---------------------------------------------
Title: Title:
------------------------------------------- --------------------------------------------
------------------------------------------------------- -----------------------------------------------------
NORTHERN TELECOM DO BRASIL
INDUSTRIA E COMERCIO LTDA.
By: By:
---------------------------------------------- -----------------------------------------------
Name: Name:
-------------------------------------------- ---------------------------------------------
Title: Title:
------------------------------------------- --------------------------------------------
------------------------------------------------------- -----------------------------------------------------
NORTHERN TELECOM DO BRASIL
COMERCIO E SERVICOS LTDA.
By: By:
---------------------------------------------- -----------------------------------------------
Name: Name:
-------------------------------------------- ---------------------------------------------
Title: Title:
------------------------------------------- --------------------------------------------
------------------------------------------------------- -----------------------------------------------------
NORTEL NETWORKS
CORPORATION
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
------------------------------------------------------- -----------------------------------------------------
WITNESS: WITNESS:
Name: Name:
-------------------------------------------- ---------------------------------------------
RG: RG:
---------------------------------------------- -----------------------------------------------
CPF: CPF:
--------------------------------------------- ----------------------------------------------
------------------------------------------------------- -----------------------------------------------------
69
76
SCHEDULE 4.1
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 5 pages
have been omitted from this Schedule.
77
SCHEDULE 4.9
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 624
pages have been omitted from this Schedule.
2
78
SCHEDULE 4.10
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 15
pages have been omitted from this Schedule.
3
79
SCHEDULE 5.1(a)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 13
pages have been omitted from this Schedule.
4
80
SCHEDULE 6.1
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 3 pages
have been omitted from this Schedule.
5
81
SCHEDULE 7.3(a)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 148
pages have been omitted from this Schedule.
6
82
SCHEDULE 7.6(f)(vi)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 1 page
has been omitted from this Schedule.
7
83
SCHEDULE 7.9
FINANCING AGREEMENT TERM SHEET
NONE
84
SCHEDULE 7.10
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 14
pages have been omitted from this Schedule.
9
85
SCHEDULE 8.1(a)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 5 pages
have been omitted from this Schedule.
10
86
SCHEDULE 9.1(a)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 4 pages
have been omitted from this Schedule.
11
87
SCHEDULE 9.3(a)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 6 pages
have been omitted from this Schedule.
12
88
SCHEDULE 9.3(d)
[***]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 75
pages have been omitted from this Schedule.
89
SCHEDULE 10.6
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 4 pages
have been omitted from this Schedule.
13
90
SCHEDULE 13.2
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 10
pages have been omitted from this Schedule.
14
91
SCHEDULE 13.9
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 9 pages
have been omitted from this Schedule.
15
92
SCHEDULE 14.1
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 3 pages
have been omitted from this Schedule.
16
93
SCHEDULE 15.1
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 15
pages have been omitted from this Schedule.
17
94
SCHEDULE 17.1(a)
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 1 page
has been omitted from this Schedule.
18
95
SCHEDULE 23
[* * *]
Certain material (indicated by an asterisk) has been omitted from this document
pursuant to a request for confidential treatment. The omitted material has been
filed separately with the Securities and Exchange Commission. A total of 5 pages
have been omitted from this Schedule.
19