EXHIBIT 4.26
Commission for the Promotion
of Private Investment
COPRI Telecom
REPUBLIC OF PERU
COMMISSION FOR THE PROMOTION OF PRIVATE INVESTMENT
COPRI
Special Telecommunications Committee
ADDENDUM TO THE CONCESSION AGREEMENT
EXECUTED BETWEEN THE GRANTOR
AND TELEFONICA DEL PERU S. A. A.
2000
1
ADDENDUM TO THE CONCESSION AGREEMENT EXECUTED BETWEEN THE GRANTOR AND
Compania Peruana de Telefonos S. A. and ENTEL PERU S. A.
(Telefonica del Peru S.A.A.)
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Know all men by these presents the Addendum to the concession agreement signed
by the Grantor and Telefonica del Peru S. A. A. (the "Addendum"), which is made
by and between the Peruvian State acting, through the Ministry of Transport,
Communications, Housing, and Construction, with address at ▇▇. ▇▇ ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇, ▇▇▇▇ ▇, (the "Grantor"), duly represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Deputy Minister of Communications from the Ministry of Transport,
Communications, Housing, and Construction, with National Identity Document No.
17430899, duly empowered through Supreme Decree No. 035-2000-MTC, (as party of
the first part), and Telefonica del Peru S. A. A., with address at Av. Arequipa
1155, Santa ▇▇▇▇▇▇▇, Lima, who acts duly represented by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DEL
▇▇▇▇▇, of Spanish nationality, identified by Alien Card N-100602, sufficiently
empowered to execute this Addendum, as party of the second part.
RECITALS:
I. By agreement dated 10-13-99, the Special Committee approved the
Bases for the Special Public Tender for the allocation of the radio
spectrum and the awarding in concession to the private sector, of
Public Local Fixed Telephony and Local Carrier Services, which, in
turn, were approved by COPRI at its session dated 11-16-99;
II. By agreement of COPRI, dated 03-01-2000, approval was granted to
this Addendum and the Ministry of Transport, Communications,
Housing, and Construction was appointed to act in the capacity as
Grantor;
III. Under date 06-20-2000, the Special Committee declared successful
bidder of the Contest forming part of the Tender, to the Bidder
having submitted the highest Economic Bid, such as this term is
described in the Bases.
IV. Under date May 16, 1994, the Grantor executed with Compania Peruana
de Telefonos S. A. and ENTEL Peru S. A. (Telefonica del Peru S. A.
A.) the concession agreement for the provision of Carrier and Local
Telephone Services.
In conformity with the above mentioned, it has been agreed to enter into this
Addendum, under the following terms and conditions:
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CLAUSE 1
DEFINITIONS
Any reference herein to "Article", "Annex" or "Appendix" should, unless
otherwise expressly stated, be understood as made to articles, annexes, and
appendices hereof, respectively.
Terms appearing in capital letters and not otherwise expressly defined herein
correspond to Governing Laws or to terms defined in the Bases, or to terms
currently used in caps. Expressions in the singular include the plural, and vice
versa.
Unless otherwise expressly provided for herein, references to "Days" should be
construed as made to days not a Saturday, Sunday or a holiday in the city of
Lima. Holidays are understood to be those days on which, by stipulation of the
Governmental Authority unless otherwise expressly indicated, banks from the city
of Lima are not obliged to provide attention to the public. Holidays are also
understood to be those days in which, pursuant to Governmental Authority, the
civil service is not working. All references to hours must be understood made to
Peruvian time.
Any mention of a specific Governmental Authority must be understood made to it
or to whomever succeeds it or to whomever is designated by it to perform the
acts referred to in this Addendum or in the Governing Laws.
In this Addendum and exclusively for this Addendum, the following terms will
have the meanings herein below indicated:
User: The Person having entered into a service contract with the Licensee
Corporation, in the manner and under the terms established by the General
Contracting Articles and Conditions of Use applicable to the Granted Service,
approved by OSIPTEL.
Awardee: The Bidder favored with the Award of the Bid.
Spectrum Allocation Area: The geographic area wherein the Licensee Corporation
is entitled to use the spectrum in order to render the Granted Services set out
in Article 5.1.
Allocation: The administrative act whereby the State grants a Person right of
use over a specific portion of the radio spectrum within a certain geographic
area, for the provision of telecommunications services as provided for in the
Frequency Allocation National Plan.
Governmental Authority: Any judicial, legislative, political or administrative
authority from Peru, empowered as per Applicable Laws and for the exercise of
its duties to issue or interpret general or specific rules or decisions with
binding effects for those who are subject to its jurisdiction.
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First-Rate Foreign Banks: The foreign banks determined as such pursuant to
Letter No. 002-2000-EF/90 published in the Official Daily "El Peruano" on
January 4, 2000, or as amended.
Bases: The document, including its Forms, Annexes, Appendices, and Letters,
setting forth the terms under which the Tender was carried out.
Special Committee: The Special Committee whose powers are described in the
Bases.
Grantor: The State, represented by the Ministry of Transport, Communications,
Housing, and Construction.
Concession: The administrative act whereby the State grants the Licensee
Corporation the right to render Public Fixed Telephony and Local Carrier
Services at the Concession Area.
Conditions of Use: The rules approved by OSIPTEL, setting out the terms and
conditions which govern the rights and obligations between the Licensee
Corporation and the Subscribers and Users, in the provision of Public Fixed
Telephony Service and Local Carrier Public Service.
Technical Operations Control: The control over technical and operating aspects
exercised by the Pre-Qualified Operator in the Licensee Corporation.
Effective Control: It shall be assumed that control exists except if, in the
reasonable discretion of the Grantor, the opposite is proven in the following
cases:
a) When a Person exercises more than one half of the voting power at a general
meeting of stockholders or of members of a legal entity, through direct or
indirect ownership or through beneficial use, pledge, trust, unionization,
and similar agreements; or
b) When a Person not included in the above literal is empowered to appoint or
remove most of the members of the board or equivalent body, so as to
control or exercise a majority of votes at the sessions of the board or
equivalent decision-making body, or to rule the operating and/or financial
policies under a regulation or a contract, whatever its type.
COPRI: The Commission for the Promotion of Private Investment, the body
entrusted with promoting private investment in infrastructure and public service
works which may be given in concession to the private sector in accordance with
Governing Laws.
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Dollar or US$: The legal tender in the United States of America.
Affiliated Company: A company will be considered an affiliate of other company
when the Effective Control of such companies is exerted by the same Parent
Office. Also considered in this definition is the company where the Effective
Control is exerted by a Subsidiary Office, such as this has been defined, and so
forth.
Associated Companies: Those companies related to each other through a Parent
Company-Subsidiary Company (or vice versa) relationship, or an Affiliated
Company-Affiliated Company relationship, in accordance with the appropriate,
relevant definitions. Also applicable are the special rules on association and
economic group approved through Resolution SBS No. 001-98 published on
January 6, 1998.
Date of Closing: The date established in paragraph 1.7.13 of the Bases, on which
the closing acts mentioned in section 10.3 of the Bases take place.
Guaranty of Faithful Compliance: The stand-by letter of credit or bank guaranty
to be furnished by the Licensee Corporation pursuant to section 10.4 of the
Bases, to warrant compliance with its obligations in line with the terms of the
Addendum to the concession agreement.
Telecommunications Law: The Unique Ordained Text of the Telecommunications Law
approved by means of Supreme Decree No. 013-93-TCC of April 28, 1993 and the
extension thereof approved by Supreme Decree No. 021-93-TCC dated August 5,
1993, and the other amending and complementary rules or any substitutes thereof.
Governing Laws: Those referenced in Section 1.4 of the Bases.
Tender: The process regulated in the Bases for the allocation of the radio
spectrum and the giving in concession to the private sector of Public Fixed
Telephony Service and Local Carrier Service.
Ministry: The Ministry of Transport, Communications, Housing, and Construction.
Usage Milestones: The obligations and commitments undertaken by the Licensee
Corporation, to use the allocated spectrum so as to ensure an efficient use of
said resource. These Usage Milestones are submitted by the Licensee Corporation
pursuant to Clause 7.2 and Annex 1.
Pre-Qualified Operator: The Purchaser who meets Prequalification Requirements
and is declared as such by the Special Committee.
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OSIPTEL: The Body Supervising Private Investment in Telecommunications. Its
duties and powers are set out in the Governing Laws.
Party: Is, as applicable, the Grantor or the Licensee Corporation.
Parties: Are, jointly, the Grantor and the Licensee Corporation.
Minimum Interest: 25% of the subscribed and paid-in capital stock of the
Licensee Corporation, pertaining to the Pre-qualified Operator. This interest
must have voting rights.
Person: Any natural person or legal entity, either national or foreign,
empowered to perform juridical acts and to undertake obligations in Peru.
Telecommunications Public Network: The telecommunications network or system
established and exploited by one or more companies for the specific purpose of
rendering telecommunications services to the public.
General Regulations: The General Regulations of the Telecommunications Law,
approved by Supreme Decree No. 006-94-TCC, and the amendments thereto.
Granted Service(s): That/those specified in Article 2.1.
Carrier Service: The type of telecommunications service offering the capacity
required to transport signals which allow the rendering of Final Services,
Diffusion Services, and the Value Added Service.
Public Telecommunications Service: The telecommunications service that is
available to the general public in exchange for valuable consideration.
Telephone Service: The service allowing users real-time telephone conversations
in both transmission senses, through the telecommunications network.
Licensee Corporation: The company which executed the concession agreement(s)
specified in numeral IV of the Recitals.
Main Stockholder(s): Any person who directly or indirectly owns or holds, under
any title or form, ten per cent (10%) or more of the voting capital stock of the
Licensee Corporation or the Pre-qualified Operator, as applicable.
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Tariff: The price payable for the provision of a Telecommunications Public
Service.
User: The Person who, because of its association with the Subscriber, makes use
of the Telecommunications Public Service.
CLAUSE 2
PURPOSE OF THE ADDENDUM
2.1 General Purpose
---------------
The purpose of this Addendum is to incorporate additional Articles to the
concession agreement referred to in numeral IV of the Recitals as a result of
the allocation, within the Concession Area, of the PAR B-F:3.425-3.450 GHz and
3.525-3.550 GHz bands subject matter of the Tender, subject to the terms and
conditions hereinafter set forth and as provided for in the Governing Laws.
The Licensee Corporation may render the local fixed telephony services and local
carrier service, hereinafter the Granted Service(s), using also wire or optical
means.
CLAUSE 3
REPRESENTATIONS BY THE LICENSEE CORPORATION
AND THE GRANTOR
3.1 Representations by the Licensee Corporation
-------------------------------------------
The Licensee Corporation warrants to the Grantor, on the Date of Closing,
the truthfulness of the representations contained herein.
3.1.1 Authorization, Signature, and Effect. That the signature, delivery,
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and performance of this Addendum and of stockholders' covenants or
agreements, as referred to in the General Societies' Act, as well
as the consummation of the operations contemplated thereunder by
the Licensee Corporation and Pre-qualified Operator, are within
their powers and have been duly authorized by their respective
boards and other bodies, if and when required.
That, no other act or procedure by the Licensee Corporation and the
Pre-qualified Operator is required to be performed in order to
authorize this Addendum. This Addendum has been duly and validly
signed and delivered by the Licensee Corporation and Pre-qualified
Operator and, along with the relevant authorization, signature, and
delivery thereof by the Grantor,
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constitutes a valid and binding obligation for the Licensee
Corporation and the Pre-qualified Operator who have executed same.
3.1.2 Conflict of Interest
--------------------
That, neither the Licensee Corporation nor any of its Main
Stockholders are prevented from contracting with the Peruvian
State. Likewise, neither the Licensee Corporation nor any of its
Main Stockholders have impediments nor are subject to restrictions
(through contractual, judicial, legislative, or other proceedings)
for undertaking and fulfilling the obligations derived from the
Bases or this Addendum.
3.1.3 Misrepresentation or Inaccuracy: That there is no misrepresentation
-------------------------------
or inaccuracy as to the information that was known or should have
been known by them, on any documents submitted by the Awardee, the
Licensee Corporation or the Prequalified Operator, or by any of
their Associated Companies, with respect to the Tender.
3.2 Representations by the Grantor
------------------------------
The Grantor warrants to the Licensee Corporation, as of the Date of Closing, the
truthfulness and accuracy of the following representations:
3.2.1 Incorporation and Legality. That, according to Governing Laws, the
--------------------------
Grantor is the competent Governmental Authority and is duly
authorized to act as such hereunder.
3.2.2 Authorization, Signature, and Effect. That, the signature,
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delivery, and performance of this Addendum by the Grantor, as well
as the consummation by the Grantor of the obligations and rights
provided for hereunder, are within its powers and in agreement with
Governing Laws, and have been duly authorized by the relevant
Governmental Authorities. No other action or procedure by the
Grantor or other Governmental Authority is required to authorize
the signature of this Addendum or to meet the obligations provided
for hereunder. This Addendum has been duly and validly signed by
the Grantor and, along with the relevant authorization, signature
and delivery thereof to the Licensee Corporation, constitutes a
valid and binding obligation for the State.
3.2.3 Approvals. That there are no requirements under Governing Laws
---------
implying the obligation to secure any additional approvals to the
consents obtained prior to the Date of Closing in order to enter
into this Addendum or to meet the obligations and grant the rights
provided for hereunder.
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3.2.4 Compliance. That there are no Governing Laws prohibiting, opposing
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to or in any manner preventing the signature or compliance with the
terms of this Addendum by the Grantor.
3.2.5 No-interference with other Operators. That, pursuant to the Note
------------------------------------
published on October 29, 1998, of the Annex to Ministerial
Resolution No. 450-98-MTC/15.03 published on October 24, 1998, the
1910 to 1930 MHz band must admit the coexistence of two Operators,
subject to the following conditions:
a) Guaranty of mutual coexistence by the technologies selected by
the Operators;
b) Guaranty to adopt the required technical measures in the event
that some harmful interferences might occur towards the
adjacent bands;
c) Operators will be authorized to enter into agreements within
the same area, to optimize the use of the spectrum.
If any controversy or discrepancy derived from the above described
conditions should arise in connection with this item and could not
be settled directly within the shortest time, the Grantor will
settle it at the request of either party involved in the
controversy or discrepancy or at the government's initiative, and
its decision shall have the nature of last administrative instance.
Accordingly, if there should be any interference between the
radio-communications systems of the Licensee Corporation and a
rural services provider operating on this band, and such should
result in damage for the former, the rural services provider will
be the one to adopt the technical measures required to stop such
interferences over the radio-communications systems of the Licensee
Corporation.
3.2.6 Guaranty of the Grantor. That the proper formalities and
-----------------------
coordination have been made so that, in conformity with the
provisions of article 4(degree) of Law No. 26885, the Executive
should issue the Supreme Decree referred to in article 2(degree) of
Decree Law No. 25570, as amended by article 6(degree) of Law No.
26438, whereby the State's guaranty will be granted to back up the
representations and warranties of the Grantor set out hereunder.
3.2.7 Clearing of PAR B-F: 3.425-3.450 GHz and 3.525-3.550 GHz Bands.
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That, except as provided for in Annex 3, the above described
band(s) has/have been fully cleared and is/are available to the
Licensee Corporation at the Concession Area.
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CLAUSE 4
OBLIGATIONS RELATED TO THE DATE OF CLOSING
4.1 Obligations to be Fulfilled by the Licensee Corporation prior to or
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simultaneously with the Date of Closing
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(a) Payment for a single time by the Licensee Corporation, of the sum
tendered in its Economic Bid, as duty for the allocation of the
spectrum referred to in Article 6.1. Payment will be made in the
fashion notified in due course by the Special Committee in writing, in
line with the instructions it may receive from COPRI.
(b) The Licensee Corporation will refund FONCEPRI the expenses and fees
incurred by the Peruvian State on Financial, Legal, and Technical
Advisors and others associated to the Tender, Bases, and Addendum to
the concession agreement, which were notified by the Special Committee
in a letter.
(c) The delivery of the proxies which were duly filed with the Lima Public
Registries, for the Legal Representatives of the Licensee Corporation
signing the Addendum to the Concession Agreement.
(d) The submittal of a sworn declaration of the Licensee Corporation,
whereby it confirms that it complies with the provisions of item 9.2
of the Bases.
(e) The delivery, by the Licensee Corporation, of the Guaranty of Faithful
Compliance referred to in item 10.4 of the Bases.
(f) The execution of the Addendum to the concession agreement by the Legal
Representatives of the Licensee Corporation and the Pre-qualified
Operator.
4.2 Obligations to be Fulfilled by the Grantor Prior to or Simultaneously with
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the Date of Closing
-------------------
(a) Delivery of certified copy of the Deputy Minister's Resolution on the
allocation of the radio spectrum.
(b) Delivery of certified copy of the Supreme Decree referred to in
Article 3.2.6 of this Addendum, except if such Supreme Decree should
have been published as of the Date of Closing.
(c) The Grantor will date, sign, and deliver one original copy of the
Addendum to the Licensee Corporation.
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(d) Subject to compliance with the provisions of Clause 4.1, on the Date
of Closing the Grantor will return to the Licensee Corporation the
Guaranty of Validity, Effectiveness, and Fulfillment of the Economic
Bid furnished pursuant to the Bases.
4.3 Effectiveness of the Addendum
-----------------------------
This Addendum will become effective on the Date of Closing, provided that each
and all of the requirements set out in the preceding Articles 4.1 and 4.2 are
met.
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CLAUSE 5
SCOPE OF ALLOCATION OF THE RADIO SPECTRUM
5.1 Spectrum Allocation Area
------------------------
The Spectrum Allocation Area for the Granted Service(s) is (are) the
departments throughout the territory of the Republic of Peru and the Callao
Constitutional Province.
5.2 Exclusivity of Use of the PAR B-F: 3.425-3.450 GHz and 3.525-3.550 GHz
Bands.
Without prejudice to the provisions of Articles 5.3 and 3.2.5, the Licensee
Corporation will have exclusive use of the aforesaid PAR B-F: 3.425-3.450
GHz and 3.525-3.550 GHz Bands within the Spectrum Allocation Area for the
provision of the Granted Services.
However, as per article 187(degree) of the General Regulations, the
Licensee Corporation is entitled to use the allocated spectrum to provide
other services, subject to Governing Laws and to the Licensee Corporation
having secured, in addition, the concession, registration or permit
required by Governing Laws for the service intended to be provided.
The Licensee Corporation has the option to request the corresponding
concessions for the provision of other telecommunications public services.
Subject to compliance with the requirements established in Governing Laws,
the Grantor will grant the requested concessions within fifty (50) Days
following submittal of the relevant request. Without prejudice to the
foregoing, the Grantor will not grant any new Concessions for the provision
of the mobile telephone service or for the Personal Communications Public
Service until within three years counted as from the date of closing of the
bidding for Personal Communications Public Service carried out in March,
2000.
CLAUSE 6
SPECTRUM ALLOCATION DUTY
6.1 Spectrum Allocation Duty
------------------------
The Licensee Corporation will pay for a single time, as duty for the
allocation of the spectrum referred to in Article 2.1, the sum tendered by
the Awardee in its Economic Bid. This Economic Bid is submitted in
accordance with Form 1 of the Bases, made part of this Agreement as
Annex 5.
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CLAUSE 7
OBLIGATIONS AND RIGHTS OF THE LICENSEE CORPORATION
7.1 General Obligations
-------------------
In addition to those derived from the concession agreement, the obligations by
the Licensee Corporation will be those set out in this Addendum, those
established in Governing Laws, particularly in the Telecommunications Law, the
General Regulations; the provisions enacted by the Grantor and OSIPTEL on issues
of their competence and which might be effective during the Concession Term and,
primarily, those set out in the Articles below.
7.2 Usage Milestones
----------------
The Licensee Corporation binds itself to comply with the Usage Milestones that
will be subject to the requirements set out in Annex 1.
The Licensee Corporation will submit to the Grantor and to OSIPTEL a report
concerned with the achievement of its Usage Milestones, on the eleventh (11th)
month following the approval of the Technical Project and every twelve (12)
months thereafter. In addition, within sixty (60) calendar days following the
expiration of the five (5)-year term as from the approval of the technical
project profile, it will submit a report on the achievement of its Usage
Milestones according to the provisions of Annex 1.
7.3 Technical Project
-----------------
Within six (6) months counted as from the Date of Closing, the Licensee
Corporation must submit to the Grantor a technical project profile that should
include its proposed Usage Milestones for the allocated radio spectrum, which
should be compatible with Annex 1. The information required in the technical
project profile is contained in Annex 4.
The Grantor is afforded a sixty (60) calendar day-term to propose and to notify
to the Licensee Corporation its observations to said project. If, upon
expiration of the term, no observations should have been made, the project shall
be deemed approved. If any observations should exist, these must be rectified by
the Licensee Corporation within a fifteen (15)-Day term as from the notification
of the observations.
The Grantor is afforded a fifteen (15)-Day term to make a pronouncement on the
rectifications to the observations solved by the Licensee Corporation.
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7.4 Mortgage of Concession Rights and of Exploitation Rights over the Allocated
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Band
----
The Licensee Corporation may, with the prior approval of the Grantor, create
mortgages over the exploitation rights of the assigned band defined in Clause
2.1, derived from this Addendum. Said mortgages will be governed by the
provisions of Law No. 26885 and the Governing Laws.
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CLAUSE 8
GUARANTIES
8.1 Submittal of Guaranty of Faithful Compliance
--------------------------------------------
(a) To guarantee each and all of the obligations according to this
Addendum, the Licensee Corporation or a third party acting on its
behalf will furnish, prior to or simultaneously on the Date of
Closing, a bank guaranty or a stand-by letter of credit in favor of
the Grantor (the "Guaranty of Faithful Compliance with the Contract")
in the amount of one million dollars (US$ 1,000,000) for every band
allocated to the Licensee Corporation in the Tender, according to the
forms contained in Annexes 3 and 3A.
(b) The Guaranty of Faithful Compliance must be issued in accordance with
the form attached as Annex 2, by a Bank Entity or a First-Rate Foreign
Bank, and confirmed by a Bank Entity. Alternatively, a stand-by letter
of credit will be acceptable in the form attached as Annex 2A, same
which may have the formality used by the bank issuing same, provided
that it meets the requirements set out in the Addendum and is issued
by a First-Rate Foreign Bank and confirmed by a Bank Entity.
(c) If damages and losses caused by a breach of the terms and conditions
hereof by the Licensee Corporation should exceed the amount of the
Guaranty of Faithful Compliance, the Grantor may execute said guaranty
without prejudice to its right to take those actions required to
collect other damages and losses.
(d) The Guaranty of Faithful Compliance will be kept effective under the
terms established in Annexes 2 and 2A until the Licensee Corporation
proves achievement of Usage Milestones with respect to the provisions
in numeral (3) of Annex 1.
(e) If the Guaranty of Faithful Compliance is issued for a shorter term
than the compliance with Usage Milestones, as per the specification in
numeral (3) of Annex 1, the Licensee Corporation must submit the
renewal thereof to the Grantor prior to its expiration. Otherwise, the
Grantor may request its execution for purposes of preserving the
guaranty, even when no default other than non-renewal of the guaranty
should exist. Under the above assumption, once the Licensee
Corporation complies with correctly renewing the Guaranty of Faithful
Compliance, the Grantor will immediately refund the executed amount to
the Licensee Corporation.
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(f) The Grantor may execute the guaranty referred to herein in case of
breach of this Addendum for reasons attributable to the Licensee
Corporation, with respect to its obligations agreed hereunder. Prior
to the execution of the guaranty, the Grantor will send a plain,
written notice to the Licensee Corporation, stating the incurred
non-compliance and its intention to execute the guaranty.
(g) The minimum term of the guaranty must be one renewable year until the
achievement of Usage Milestones, as stipulated in numeral (3) of Annex
1.
CLAUSE 9
INTERNATIONAL OBLIGATIONS
9.1 International Qualification of the Licensee Corporation
-------------------------------------------------------
The Licensee Corporation will have the quality (capacity) of an Acknowledged
Exploitation Company in the sense provided in the Annex of Incorporation of the
Telecommunications International Union, and is authorized to participate in
Union Sectors pursuant to Article 19 (N 229 and following) of the International
Telecommunications Covenant, Geneve, 1992.
9.2 Determination of Telecommunications International Policy
--------------------------------------------------------
It corresponds to the Peruvian State to define the telecommunications
international policy.
CLAUSE 10
USE OF RADIO SPECTRUM
10.1 Frequencies Granted
-------------------
The Service Granted may be rendered using for such purpose the PAR
B-F:3.425-3.450 GHz and 3.525-3.550 GHz bands referred to in Clause 2.1.
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CLAUSE 11
RESTRICTIONS ON THE ASSIGNMENT OF CONTRACTUAL
POSITION; ASSIGNMENT OF CONTROL
11.1 Assignment Restrictions
-----------------------
The Licensee Corporation may not, without the prior, written authorization from
the Grantor, transfer or assign the band allocated to any Person. Said
authorization shall not be unfairly or unreasonably withheld, provided that the
new user meets at least the prequalification requirements set out in the Bases.
11.2 Assignment of Control
---------------------
(a) Stock Participation and Assignment Restriction. During the first three
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(3) years of effectiveness of the Addendum counted as from the Date of
Closing, the Pre-qualified Operator must retain the ownership of, at
least, the Minimum Interest.
(b) Technical Operations Control: During the first three (3) years of the
----------------------------
Concession counted as from the Date of Closing, the Licensee
Corporation will ensure that the Pre-qualified Operator exercises the
Control of Technical Operations of the Licensee Corporation.
(c) Plurality of Operators: In the event of a plurality of Operators in
----------------------
the Licensee Corporation, the reference to the Minimum Interest of the
Pre-qualified Operator will be construed related to the Operator who
Pre-qualified for the Tender according to the Special Committee, or
eventually the operator who substitutes it, through prior compliance
with the requirements established in this Addendum.
11.3 Prohibition of Participation
----------------------------
Pursuant to numeral 9.2.4 of the Bases, unless with the prior authorization of
the Special Committee or of the Grantor, following the expiration of the duties
of the Special Committee, no other Pre-qualified Operator having submitted an
Economic Bid at the Tender may participate, neither directly nor indirectly, in
the Licensee Corporation. This restriction is good for three (3) years as from
the Date of Closing.
11.4 Term to Rectify any Breach of Provisions in Articles 11.2 and 11.3
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If the Licensee Corporation should breach the provisions of Articles 11.2 and
11.3 for reasons beyond its internal control, triggered by global mergers or
other transactions on an international level, the Grantor will afford it a term
not to exceed six (6) months to rectify the breach, counted as from the date of
the notification thereof to the Licensee Corporation.
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11.5 Subcontracting and Repurchasing
-------------------------------
The Licensee Corporation, with the prior and written approval from the Grantor,
may subcontract third parties for the performance of any or all of the
activities included under the Granted Services, anywhere within the Spectrum
Allocation Area, under the same conditions established hereunder and in the
concession agreement. Said conditions do not include the tax matter.
The Licensee Corporation may subcontract complementary activities to the
provision of the Granted Service, including the logistics, installation, and
maintenance of infrastructure, administrative services, among others.
The subcontracting does not release the Licensee Corporation from complying with
the obligations established hereunder nor with those established under any
applicable rules.
Furthermore, the Licensee Corporation may offer a bulk traffic volume for
purposes of its resale to third parties, subject to Governing Laws.
CLAUSE 12
LAPSING AND TERMINATION OF THE ADDENDUM
12.1 Lapsing of Addendum
-------------------
In addition to what is provided for in the concession agreement, the following
will be considered grounds for the lapsing of the Addendum:
(a) The impossibility to continue rendering the service through the
allocated band due to the Force Majeure Event established in Article
14.3.
(b) Non-compliance with the provisions of Articles 11.1, 11.2, and 11.3,
except as provided for in Article 11.4
12.2 Termination of Addendum
-----------------------
In addition to what is provided for in the concession agreement, the following
will be considered grounds for termination of the Addendum:
(a) If the Licensee Corporation does not furnish to the Grantor, in due
course, the renewal of the Guaranty of Faithful Compliance, in line
with Article 8.
18
(b) If the Licensee Corporation should agree to go into, or is undergoing,
liquidation, or has been declared insolvent and such should not have
been lifted within forty-five (45) calendar days after the relevant
event was known by the Licensee Corporation.
(c) If any of the representations in Article 3.1 is proven to be false or
inaccurate.
(d) If the Licensee Corporation breaches the provisions of Article 11.5.
12.3 General Procedure for the Termination of the Addendum
-----------------------------------------------------
The termination pursuant to Article 12.2 shall be carried out by decision of the
Grantor, based upon the following procedure:
(a) Notice. Prior to issuing a resolution pursuant to the above paragraph,
------
the Grantor will afford a reasonable time to the Licensee Corporation
in order for it to rectify the cause which may have given rise to the
decision, under penalty, to initiate the termination process.
Following this, in the absence of a rectification, it will publish an
ad in the official daily "El Peruano" and will serve notice to the
Licensee Corporation and OSIPTEL, stating:
i) that it intends to issue a resolution, defining its scope and
effects;
ii) the reasons behind its intention to issue such
resolution;
iii) the period during which the Licensee Corporation or any third
parties holding an interest may submit written comments or
objections on the proposed resolution, which period may not be
shorter than ten (10) calendar days as from the date of
publication of the notice;
iv) the period during which OSIPTEL will send to the Grantor and
the Licensee Corporation a report and an opinion on the
proposed resolution, which may not be shorter than ten (10)
calendar days counted as from the date of publication of the
notice;
v) the date, place, and time for a hearing, at which the Licensee
Corporation, OSIPTEL, and any third party with a legitimate
interest may raise comments or objections. Such date may not
be shorter than ten (10) calendar days counted as from the
expiration of the term to submit written comments or
objections.
(b) Hearing and Resolution. On the date specified in the notice, the
----------------------
Grantor will hold a public hearing at which the Licensee Corporation,
OSIPTEL, and those third parties with a legitimate interest which
should have submitted comments or objections that the Grantor may have
previously deemed relevant, will have the right to be heard. The
resolution of the Grantor shall be issued latest sixty (60) calendar
days after the public hearing.
19
CLAUSE 13
PENALTIES
13.1 Independence of the Contractual Penalties from any Administrative
-----------------------------------------------------------------
Sanction
--------
The sanctions dealt with in Article 13.2 shall be applied independently from any
penalties corresponding in accordance with Governing Laws. Moreover, given the
contractual nature of the sanctions contained herein, the imposition thereof may
only be objected to in arbitration proceedings, pursuant to Article 15, and for
this or any other purposes the administrative proceedings shall be understood
exhausted.
13.2 Non-achievement of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
The non-achievement of Usage Milestones will be duly punished by the Grantor or
by OSIPTEL in accordance with Governing Laws, subject to a maximum limit of one
million Dollars (US$1,000,000) for every band allocated to the Licensee
Corporation under the Tender.
Breach of numerals (1) or (2) of Annex 1 will cause the reversion to the State
of the radio spectrum allocated to the Licensee Corporation in all departments,
plus a penalty of one million dollars (US$1,000,000).
Breach of numeral (3) of Annex 1 will cause the reversion to the State of the
radio spectrum at that/those department(s) where the breach by the Licensee
Corporation occurs. In this case, the penalty will be equivalent to one million
dollars (US$1,000,000) times the share of (i) obligation of the Licensee
Corporation as to number of lines installed through the utilization of the
allocated band, at that/those department(s) where it defaulted as to (ii) the
minimum commitment of the Licensee Corporation of total lines installed through
the utilization of the allocated band, in all departments where it was allocated
the spectrum (as per Annex 1).
The penalties referred to herein will be applied independently for every band
allocated to the Licensee Corporation under the Tender. These penalties will be
paid executing the Guaranty of Faithful Compliance.
13.3 Procedure for the Enforcement of Sanctions
------------------------------------------
Prior to issuing a resolution imposing any of the penalties established in
Article 13.2, the Grantor will serve written notice to the Licensee Corporation
stating (i) its purpose to issue a resolution imposing a penalty; (ii) the
reasons behind the imposition of the penalty; and (iii) the period during which
the Licensee Corporation may submit its explanations in writing, which period
may not be shorter than thirty (30) calendar days counted as from the date of
notice. Upon expiration of such period with or without the respective
explanation, it will issue the corresponding and duly supported decision, which
will be in writing, and will state the reasons for its issuance.
20
If the Licensee Corporation should not pay the penalties established in Article
13, the Grantor will execute the Guaranty of Faithful Compliance with the
Contract.
13.4 Penalty for Termination of the Addendum
---------------------------------------
If the Grantor should terminate the Addendum for any of the reasons provided for
in Article 12.2, the Licensee Corporation will pay a penalty equivalent to one
million Dollars (US$1,000,000).
The penalty for termination of the Addendum will be applied only up to the limit
of one million Dollars (US$1,000,000).
The penalty referred to herein may only be payable through the execution of the
Guaranty of Faithful Compliance.
13.5 Damages and Losses
------------------
The penalties referred to in Articles 13.2 and 13.4 shall be applied without
prejudice to the obligation by the Licensee Corporation to compensate direct
damages and losses caused upon the Grantor, resulting from its non-compliance,
pursuant to the provisions of the Civil Code.
13.6 Destiny of Sanction Payments
----------------------------
The sums applicable to sanctions derived from non-achievement of Usage
Milestones and Addendum Termination shall be paid to the Grantor.
CLAUSE 14
FORCE MAJEURE EVENTS
14.1 Force Majeure Events
--------------------
For purposes of this Addendum, the term "Force Majeure Event" will mean an
event, condition or circumstance, including Acts of God, beyond the reasonable
control of the Party claiming Force Majeure same which, despite all reasonable
efforts by the Party claiming Force Majeure so as to prevent it or mitigate its
effects, causes a material delay or an interruption in the fulfillment of any
obligation established in this Addendum, including, without limitation:
14.1.1 Any "Special Force Majeure Event", which shall mean:
(a) Any act of war (whether declared or not), invasion, armed
conflict or act from a foreign enemy, blockade, embargo,
revolution, disturbance, insurrection, civil commotion or
21
demonstrations, terrorist acts and any appropriation,
occupation or siege of any substantial portion of the
facilities of the Licensee Corporation, as a result of the
foregoing;
(b) Any strike or work stoppage not triggered by a desire to
influence the contracting terms between the Licensee
Corporation and its workers, or in response to some change in
the Governing Laws, or directed against companies or
facilities owned or run by foreigners;
14.1.2 Any "Other Force Majeure Event", which shall mean:
(a) Any earthquake, flood, storm, hurricane, tornado, lightning,
fire, explosion, epidemics, pest or similar event;
(b) Any strike or work stoppage other than a Special Force Majeure
Event.
14.2 Governing Laws
--------------
The Licensee Corporation may not invoke the approval or the effects of Governing
Laws as a Force Majeure Event with respect to the fulfillment of obligations by
the Licensee Corporation, established in this Addendum.
14.3 Absence of Liability
--------------------
The Parties will not be liable for non-compliance with their respective
obligations, or for the partial, late or defective compliance therewith,
whenever such non-compliance is due to a Force Majeure Event, provided that the
party affected by the Force Majeure Event should have proven to the other party
that it acted with due diligence and took every precautions and reasonable
alternative measures to comply with this Addendum. In that case, the obligations
affected by such event will be suspended while the Force Majeure Event persists.
A delayed compliance with the obligations by the Licensee Corporation due to a
Force Majeure event, lasting longer than a twelve (12)-month period and
preventing the rendering of the Granted Service through the allocated band, will
entitle the Licensee Corporation to request the lapsing of the Addendum. If the
Force Majeure Event extends beyond eighteen (18) months, the Addendum will
lapse.
Before the lapsing may become applicable under the assumptions in the preceding
paragraph, the Licensee Corporation may request the Grantor the reformulation of
the technical project.
14.4 Notice of Force Majeure Event
-----------------------------
The Party invoking a Force Majeure Event must notify the other Party:
22
14.4.1 Those acts making up the assumed Force Majeure Event within the
first five (5) Days following its occurrence or following the
discovery of such event, except if the same is public and evident,
in which case it will not require any notification whatsoever; and
14.4.2 The predictable period of suspension of activities by the affected
Party. In addition, the Party invoking the Force Majeure Event must
keep the other Party posted of any relevant event developments.
14.5 Resumption of Service
---------------------
The Party invoking a Force Majeure Event must make every possible effort to
ensure that the rendering of Granted Services through the allocated band shall
be resumed upon conclusion of the event. Moreover, the affected Party must make
every possible effort to minimize any delays or additional costs to the
Subscribers.
CLAUSE 15
SETTLEMENT OF CONTROVERSIES
15.1 Discrepancies between the Parties
---------------------------------
(a) Any controversy which might arise in connection with the
performance of this Addendum, including its construction and any
aspect relative to its existence, validity or termination, except
for those matters concerned with the exercise of powers or duties
by Governmental Authorities, shall be amicably settled by the
Parties and, if no satisfactory agreement were to be reached by
them, they will submit unconditionally to legal arbitration
according to the rules set out herein below.
(b) The rules of procedure applicable to the arbitration shall be those
from the National and International Arbitration Center of the Lima
Chamber of Commerce, to which the parties submit unconditionally;
-- Law No. 26572, General Law on Arbitration, and its amendments,
extensions and related provisions will apply in addition. The
arbitrators will be empowered to solve any voids with respect to
the aforesaid rulings.
(c) The arbitration will take place in the city of Lima and will be
conducted in the Spanish language. The solution of controversies
shall be carried out in accordance with Governing Laws.
(d) The arbitration will be performed by a panel of three (3)
arbitrators. Each Party will designate one arbitrator. The third
arbitrator, who will preside over the Jury, will be designated by
agreement of the other two arbitrators selected by the Parties. If
one of the Parties does not designate its arbitrator within ten
(10) Days counted as from the notification of the appointment
request, it
23
shall be understood that it has waived its right and, as a result,
the arbitrator will be appointed by the Lima Chamber of Commerce at
the request of either party. If the two designated arbitrators
should not reach an agreement as to the appointment of the third
arbitrator within ten (10) Days following the date of appointment
of the second arbitrator, the third arbitrator will be designated
at the request of either Party by the Lima Chamber of Commerce.
(e) The Parties agree that the award to be issued by the Arbitration
Jury shall have the nature of final and will represent a last
instance resolution with authority of res judicata (matter
decided). The Parties expressly waive the right to appeal the award
before the judges and courts, or before any Peruvian or foreign
jurisdictional level.
Without prejudice to the provisions in the previous paragraph, if
one of the Parties should decide to file an appeal for dismissal
against the arbitration award, or any other remedy before a
national or foreign jurisdiction or venue, seeking its
nullification, repeal or the postponement of the decision under the
award, said party must furnish a bank guaranty or stand-by letter
of credit substantially in the form of Annexes 2 and 2A, - same
which will remain effective while the appeal for reversal is not
solved -, in favor of the Arbitration Jury, in the amount of two
hundred thousand Dollars (US$200,000). If the relevant appeal is
declared dismissed, inadmissible or groundless by the competent
authority or level, the Jury will proceed immediately to execute
the furnished guaranty and to deliver the full amount (thereof) to
the other Party. If the appeal for dismissal were rendered
groundless, the Jury will return the bank guaranty or stand-by
letter of credit to the Party who furnished it.
15.2 Controversies with Other Telecommunications Public Service Operators
--------------------------------------------------------------------
Any controversies arising with other Telecommunications Public Service
operators, dealing with non-arbitrable matters or whose resolution is the
exclusive competence of OSIPTEL, will be subject to the procedure established in
OSIPTEL's General Regulations for the Solution of Controversies in
Administrative Proceedings.
CLAUSE 16
FINAL PROVISIONS
16.1 Submission to Governing Laws
----------------------------
This Addendum has been negotiated, drawn up, and executed in conformity with
Peruvian legal rules and its contents, performance, and the other consequences
that may be derived herefrom will be governed by the legal rules of Peru's
internal law.
24
Accordingly, the Licensee Corporation waives irrevocably and unconditionally any
diplomatic claim in relation to this Addendum.
16.2 Order of Priority
-----------------
In case of discrepancy as to the construction of this Addendum, the Parties will
abide by the following order of priority in order to settle any situation as
promptly as possible:
(a) This Addendum and the Annexes hereto.
(b) The concession agreement.
(c) The Letters.
(d) The Bases.
16.3 Interpretation Criteria
-----------------------
a) This Addendum will be interpreted in accordance with its own Clauses
and the Bases.
b) The time periods established in this Addendum will be calculated in
Days, calendar days, months or years, as applicable.
c) The language used in this Addendum is the Spanish language. In case of
any discrepancy between any translation hereof and this Addendum, the
Spanish language will prevail for purposes of its interpretation.
d) The captions contained in this Addendum are meant for identification
and should not be considered part of this Addendum to restrict or
enhance its contents, so as to define the rights and obligations of
the Parties.
e) The terms defined in the singular will include the same terms in the
plural, and vice versa. The terms in masculine gender include the
feminine, and vice versa.
f) The Annexes to this Addendum form an integral part herewith.
g) The use of the "or" disjunction in an enumeration must be understood
to include only one of the elements of such enumeration.
h) The use of the "and" conjunction in an enumeration must be understood
to include all of the elements of such enumeration or list.
16.4 Notices
-------
Unless otherwise provided in the Addendum, all notices, subpoenas,
requests, complaints, and other communications which are valid or allowed
under this Addendum, must be made in writing and will be considered validly
sent if they include an acknowledgment copy or if they are sent by courier,
telex or facsimile, once their receipt has been confirmed from the
acknowledgment copy or from the confirmation of full transmission issued by
the system of the addressee of the relevant notice, to the following
addresses:
25
If addressed to the Grantor:
Name: Ministerio de Transportes, Comunicaciones, Vivienda
y Construccion
Address: ▇▇. ▇▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇ ▇
Attention: Jefe de la Unidad Especializada en Concesiones
de Telecomunicaciones
Facsimile: 332-4084
If addressed to the Licensee Corporation:
Name: Telefonica del Peru S.A.A.
Address: Av. Arequipa 1155, Lima
Attention: Gerencia de Regulacion
Facsimile: 470-4254
If addressed to the Pre-Qualified Operator:
Name: Telefonica del Peru S.A.A.
Address: Av. Arequipa 1155, Lima
Attention: Gerencia de Regulacion
Facsimile: 470-4254
or to any other address or person designated in writing by the Parties.
16.5 Waiver
------
Waiver of the rights derived from this Addendum will only have effect
if made in writing and if the other Party is notified accordingly. If,
at any time, either Party waives or stops the exercise of a specific
right included hereunder, such behavior will not be considered as a
permanent waiver to enforce the same or any other right throughout the
effectiveness thereof.
Any amendments and clarifications to this Addendum, including those as
the Licensee Corporation may propose at the suggestion of the financial
entities, will only be valid if they have been agreed to in writing,
have been signed by sufficiently empowered representatives from the
Parties, and are compliant with any relevant requirements from
Governing Laws.
26
16.6 Partial Invalidity
------------------
If any term or provision of this Addendum is considered to be invalid or
not demandable by any competent authority or person, such invalidity must
be interpreted restrictively and will not affect the validity of any other
provision hereof.
16.7 Prevalence of the Addendum
--------------------------
The Licensee Corporation recognizes and accepts that, henceforth, its
rights and obligations for the use of the allocated spectrum will abide by
the provisions in this Addendum, in current Governing Laws, and in those
dealing with this matter, to be enacted in future.
16.8 Designation of Governmental Authority
-------------------------------------
The Grantor will designate the Governmental Authority that is to oversee
the correct compliance with any of the rights, interests or obligations in
accordance herewith. Such designated Governmental Authority will abide by
the terms and conditions of this Addendum in their entirety.
27
16.9 Public Deed
-----------
At the request of either Party, this Addendum will be converted into a
Public Deed. The cost of the conversion into a Public Deed will be borne by
the Party requesting same.
In witness whereof, the Parties have executed and delivered five (5)
original, identical copies of this Addendum, on July 25th, 2000.
Grantor: Ministry of Transport, Communications, Housing, and Construction
Name: Doctor ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Position: Deputy Minister of Communications from the Ministry
of Transport, Communications, Housing, and Construction.
Signature: ________________ (signed)
Bidder: TELEFONICA DEL PERU S. A. A.
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DEL ▇▇▇▇▇
Position: REPRESENTATIVE
Signature: _________________ (signed)
Pre-Qualified Operator: TELEFONICA DEL PERU S.A.A.
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DEL ▇▇▇▇▇
Position:
Signature: __________________________ (signed)
28
ANNEX No. 1
RADIO SPECTRUM USAGE MILESTONES
Usage Milestones for the radio spectrum of the Licensee Corporation will be
projected by the Licensee Corporation for five years, for every band allocated
to it under the Tender, in line with the parameters set out in Annex No. 1A.
Usage Milestones proposed by the Licensee Corporation must be consistent with
the number of lines to be installed through the utilization of every band
allocated under the Tender, and approved by the Grantor. Without prejudice to
the foregoing, Usage Milestones of the Licensee Corporation must reflect the
following requirements:
(1) The Licensee Corporation must start rendering the Granted Service through
the utilization of every band allocated under the Tender, in at least one
department from its Spectrum Allocation Area, within twelve months from the
approval of the Technical Project profile by the Grantor.
(2) After twenty-four (24) months of having commenced rendering the Granted
Service through the utilization of the allocated band, the Licensee Corporation
must be capable of rendering the Granted Service through every band allocated
under the Bid, to a number of installed lines equivalent to one per cent (1%) of
the lines in service existing as of the Date of Closing, of the greatest
operator established in the departments where the spectrum was allocated to it.
For such purposes, the number of installed lines will be calculated in aggregate
form, in that/those department(s) where the band(s) was/were allocated to the
Licensee Corporation. The number of installed lines specified in this obligation
may be shorter if such is specified by the Licensee Corporation in its technical
project profile approved by the Grantor.
(3) Within five years following the approval of the Technical Project profile,
the Licensee Corporation must be capable of rendering the Granted Service
through every band allocated under the Tender, to a number of installed lines
equivalent to three per cent (3%) of the lines in service existing as of the
Date of Closing of the greatest operator established in each of the departments
where bands were allocated to it. The lines in service of the greatest operator
established will be calculated in each of the relevant departments.
For purposes of the achievement of Usage Milestones, the number of installed
lines will not take into account the replacement of existing lines.
29
ANNEX No. 1A
Usage Milestones of Radio Spectrum
Service
-------
1. Operation Band
---------------------------------------------------------------------
Tx. (MHz.) Range of E. Base Rx. (MHz.) Range of E. Base
---------------------------------------------------------------------
---------------------------------------------------------------------
2. Bandwidth of Radio Channel
State the bandwidth of the System's radio channel.
For example:
CDMA ---- 1.25 MHz.
GSM ---- 200 KHz.
TDMA ---- 30 KHz.
3. Number of Traffic Channels/RF Channel.
N = ______________ traffic channels
4. Traffic expressed in:
------------------------------------------------------------------------------------
CITY Year 1 Year 2 Year 3 Year 4 Year 5
------------------------------------------------------------------------------------
(Erlangs(RF
Channel)
------------------------------------------------------------------------------------
Mbps/MHz
------------------------------------------------------------------------------------
Traffic parameters are referred to any element (cell, trunk, etc.)
handling traffic in the concession area.
30
NOTES:
-----
1. Usage Milestones of the Radio Spectrum projected over five years must be
consistent with the number of lines to be installed through the
utilization of the allocated band.
2. Faced with a default of Usage Milestones, the Grantor may reallocate and
reassign, either in whole or in part, the frequency bands that were
allocated to the Licensee Corporation; especially, in those areas not
covered in the technical project profile if, as from the third year
counted from the start-up date for the provision of the Granted Service
through the utilization of the allocated band, it is confirmed that this
is not being used and that the Licensee Corporation has not submitted
any plan on its use.
3. Operating Band: Portion of Service Band allocated to the Licensee
Corporation so as to render the service.
4. Radio Channel or RF Channel: The portion of spectrum within the
operating band, required to transmit information.
5. Traffic Channel: Simple or multiple channels carrying the information
using the RF channel.
6. Service Band is understood to be the portion of spectrum, simple or
double, allocated to the service.
Simple --- Unidirectional (one-way)
Double --- Bidirectional (two way)
31
ANNEX No. 2
Guaranty of Faithful Compliance
[ ] ________, 2000
Messrs.
Ministry of Transport, Communications, Housing, and Construction
Lima-Peru
Bidder:
----------------------
Ref.: Addendum to the concession agreement signed between the Grantor
and ______________________ for the allocation of the radio spectrum
At the request of our clients, Messrs. [state name of Licensee Corporation], we
hereby provide this joint and several, irrevocable, unconditional and
automatically executable guaranty in the amount of one million Dollars from the
United States of America (US$ 1'000,000.00) in favor of the Ministry of
Transport, Communications, Housing, and Construction, to guarantee the faithful
compliance with the subject Addendum by [state name of the Licensee Corporation]
pursuant to the terms and conditions established in Clause 8 of said Addendum.
Payment of this guaranty shall be made effective automatically, without the need
of any further action on your part, upon our receipt of a written request in
that connection, same which must be signed by the Minister of Transport,
Communications, Housing, and Construction or some person duly authorized by him,
stating that our clients [state name of the Licensee Corporation] have not
complied with any of the obligations which are guaranteed hereby. Said request
must be sent through notary-certified means.
Our obligations hereunder, including payment of the guaranteed amount, will not
be affected by any dispute among COPRI, the Special Committee, their Advisors or
any entity from the Peruvian Government and our clients.
The term of effectiveness of this guaranty will be from _________ to __________.
Any delay on our part in honoring the amount of this guaranty as from the date
it is required by you pursuant to the terms herein will accrue interest
equivalent to the LIBOR rate for one year plus a Spread of 3%. The applicable
LIBOR rate will be that established by the daily Cable from ▇▇▇▇▇▇, received at
11:00 a.m. in Lima.
Unless otherwise expressly indicated herein, the terms used in this guaranty
have the same meaning ascribed to them in the Addendum.
32
Yours truly,
BANK ISSUING THE GUARANTY
33
ANNEX No. 2A
Guidelines to be Followed in case that the Guaranty of Faithful
Compliance adopts the form of a Stand-By Letter of Credit
At the option of the Licensee Corporation, the Guaranty referred to in Clause 8
of this Addendum may adopt the form of a stand-by letter of credit ("Stand-By
Letter of Credit"), same which must be issued in favor of the same beneficiary,
the Ministry of Transport, Communications, Housing, and Construction, by a
First-Rate Foreign Bank, and confirmed by a Bank Entity.
The Stand-By Letter of Credit must substantially contain the same
characteristics established for a guaranty issued as stated in Annex 2.
Therefore, this should be joint and several, irrevocable, unconditional,
automatically executable, and should be payable at the offices of the Bank
Entity which confirms same. The obligations of the Licensee Corporation covered
by the Stand-By Letter of Credit and the conditions for its execution must be
exactly those described in Annex 2.
34
ANNEX No. 3
Band Occupancy
o In an eventual situation that the band(s) described in Article 2.1 is/are
occupied by a third party at the Concession Area without having been
allocated, the Grantor warrants the full vacancy of said band(s) latest on
December 31, 2000, unless otherwise requested by the Licensee Corporation.
o In any event, the Licensee Corporation will not pay any cost related to the
vacancy of such band(s).
35
ANNEX No. 4
Information Required in the Technical Project Profile
1. Detailed description of the technical characteristics of the system to
be installed:
a) Network description, indicating: technology to be used,
network capacity, switching system, external plant, and
coverage area.
b) Network configuration layout.
c) Location of radio stations and, if applicable, switching
exchanges.
d) List of equipment to be installed, indicating make and
model, and attaching copies of brochures and/or manuals
containing technical characteristics of the equipment.
2. Radio stations in the TE-003 Technical Information Form (see Appendix).
3. Time periods and schedules for the installation of equipment and the
start-up of services through the utilization of the allocated band,
counted as from the signature of the Addendum.
----------------------------------------------------------------------------------------------------------------------------
Month
----------------------------------------------------------------------------------------------------------------
Activities 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
Activities 11th 12th
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
4. Plan to install or replace lines through the utilization of each band.
allocated over five (5) years, bearing in mind the expansion plans and
other commitments contained in current concession agreements.
---------------------------------------------------------------------------------------------------------------
Number of Lines to Be Installed
---------------------------------------------------------------------------------------------
City Year 1 Year 2 Year 3 Year 4 Year 5
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
36
---------------------------------------------------------------------------------------------------------------
Cumulative
---------------------------------------------------------------------------------------------------------------
Number of Lines to Be Replaced
---------------------------------------------------------------------------------------------
City Year 1 Year 2 Year 3 Year 4 Year 5
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Cumulative
---------------------------------------------------------------------------------------------------------------
Number of Public Telephone Lines
---------------------------------------------------------------------------------------------
City Year 1 Year 2 Year 3 Year 4 Year 5
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
Cumulative
---------------------------------------------------------------------------------------------------------------
5. In case of using the radio spectrum, state the Usage Milestones over
five years.
6. The company must ensure that radio stations are not located in the
vicinity (within a radius of 500 m. away) from Technical Verification
Stations and from Remote Radio Position Finding Stations located in the
city of Lima and in six (6) capital cities of Departments.
7. Those radio stations located within obstacle restricting surfaces of an
airport or an aerodrome are subject to legal restrictions on property;
accordingly, they will also require an authorization from the Air
Transportation General Bureau (DGTA), as provided for in the Law and in
the Regulations on Civil Aeronautics. In this context, the formalities
for the granting of radio station installation permits should be as
follows:
o The company must submit the authorization request before the
DGTA, in line with the requirements established by this bureau
for such purpose.
o The company must submit before this Unit copy of the request
submitted before the DGTA, so as to continue with the
appraisal of its record.
o Upon completion of the appraisal of its record, the company
must submit copy of the authorization granted by the DGTA,
with which this Unit will proceed to issue the relevant
permits.
Note: Except for copies of brochures and/or the equipment technical
manuals, the technical profile must be approved by some Engineer of
the specialty who is a member of its professional association.
37
Appendix to Annex No. 4
TE-003
Technical Data Form for each Station
I. DESCRIPTION:
-------------------------------------------------------------------------------------------------
COMPANY:
-------------------------------------------------------------------------------------------------
STATION:
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NAME:
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LOCATION Exact address
Department, Province, District
Geograph. Coord. -------- ▇.▇. ------- S.L. ------- m.a.s.l.
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SIGN:
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FREQUENCIES:
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TIME BLOCK:
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LINK:
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II. EQUIPMENT:
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MAKE:
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MODEL:
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FREQUENCY RANGE:
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POWER:
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EMISSION TYPE:
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III. RADIANT SYSTEM:
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ANTENNA TYPE:
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MAKE:
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MODEL:
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GAIN:
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TOWER HEIGHT (m):
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BUILDING HEIGHT (m)
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INSTALLED HEIGHT (m)
(*)
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(*) Installed Height: Height above soil at which the antenna has been
installed.
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