Exhibit 10.27
-------------
CARRIER SERVICES AGREEMENT
This Carrier Services Agreement ("Agreement") is executed on May 22,
2003 (the "Effective Date") between ATSI Communications, Inc. (Delaware), a
Delaware corporation, hereinafter referred to as ("Customer") and Operadora
Mexicana de Telefonia, S.A. de C.V. (Omtel) and DIALMEX, ▇.▇▇, (Dialmex) a Texas
corporation , hereinafter collectively referred to as ("Provider(s)").
WHEREAS, Provider(s) desire to provide telecommunications services
and/or telecommunications facilities to Customer ("Services"), as described in
Addendum A and B attached hereto; and
WHEREAS, Customer desires to receive such Services, and has requested
that the Provider(s) provide such Services in accordance with the terms of this
Agreement.
NOW THEREFORE, in consideration of the mutual premises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned agree as follows:
1. Services. Provider(s) agree to furnish to Customer, and Customer
agrees to accept, upon the terms and conditions set forth herein, the Services
set forth in Addendum A. All Addendums identified herein are incorporated by
reference and specifically made a part of this Agreement.
2. Duration. The Term of this Agreement shall be for three (3) years
commencing on the Effective Date. This Agreement shall automatically be renewed
for additional successive one (1) year terms and shall run concurrent in
accordance with the Shareholder Agreement executed on May 20, 2003 between
Telemarketing, S.A. de C.V. and ATSI Communications, Inc. (Delaware) or as long
as Providers remain partners in ATSI Comunicaciones, S.A. de C.V. ("ATSICOM").
3. Rates. During the Term of this Agreement, charges for the Services
shall be as set forth in Addendum A . The Parties hereby agree that Customer
shall receive preferential rates as those provided by Omtel to Dialmex. These
Rates are those of Omtel's cost and can be adjusted upon at least five (5) days
prior written notification to Customer without requiring any other signature of
the parties hereto acknowledging and agreeing to the same.
4. Invoices. The parties acknowledge that all invoices for traffic are
processed every seven days on a per MINUTE basis. Dialmex will prepare and
deliver to Customer an invoice for Services provided ("Payable Amount") every
seven days to Customer, which shall be paid within the next three (3) working
days after receiving such invoice via wire transfer. If the full Payable Amount
is not received by Dialmex within the next three (3) working days after Customer
has received such invoice, then Dialmex shall be able to temporarily suspend the
Services until payment is received. On a monthly basis, Dialmex shall also
invoice Customer for the monthly E-1 charges as established in Addendum and/or
B, if applicable.
1
Should Customer default in payment for Services, then the Customer
agrees that Services provided may be terminated as provided in this Agreement.
Dialmex agrees to provide Customer real-time access to its reporting
system for the purpose of accessing and/or downloading all Call Detail Records
(CDR).
5. Security Deposit. To initiate service, Customer shall prepay the
estimated usage per E-1 of termination for fifteen (15) days period in the form
of Cash or Letter of Credit as established in Addendum A. True-up will occur
every fifteen days between DialMex and the Customer; if the usage increases over
the fifteen (15) days estimated traffic prepayment, Customer agrees to increase
the prepayment or Letter of Credit amount equal to the actual usage for fifteen
(15) days.
Return of deposited funds- Upon expiration of the term of this
agreement and/or the termination of this Agreement for cause or by desire of
either party, DialMex shall return to Customer any amounts on deposit which
prove to be in excess of any and/or all of the amounts due and payable pursuant
to the final invoice and/or reconciliation of the Customer's account with
DialMex for the Services provided to the Customer by and/or through this
agreement.
6. IVA Reimbursement. DialMex and/or Omtel hereby agrees to reimburse
Customer the total amount invoiced corresponding to IVA (Impuesto al Valor
Agregado) be it 10% or 15% or any other percentage if changes occur in the Tax
Laws of Mexico until Telemarketing de Mexico, S.A. de C.V. has fulfilled its
obligations under the Share Purchase Agreement executed between Telemarketing,
ATSI Comunicaciones, S.A. de C.V. and ATSI Communications, Inc. (Delaware) on
May 20, 2003. As soon as Telemarketing de Mexico, S.A. de C.V. has fulfilled its
obligations set therein, DialMex shall reimburse Customer 1/2 of all amounts
applicable to IVA.
7. Disputes. Any billing discrepancies shall be presented to DialMex in
full detail, in writing, within forty-five (45) days of the date of the invoice
in question. Such notification should not relieve Customer of the obligation to
make all payments including the amounts disputed by the due date set forth in
this agreement. DialMex shall not be obligated to consider any Customer disputes
which are received by DialMex more than forty-five days (45) following the date
of the invoice in question. DialMex and Customer agree to use their best efforts
to resolve the dispute in good faith and within forty five (45) days after
DialMex receives such notice. If the disputed amount is found to be valid, a
credit will be issued to Customer. In the event that DialMex and Customer are
unable to resolve the dispute within this forty-five (45) day period, the
parties consent to the jurisdiction of the Texas courts with venue at McAllen
for the purposes of this provision.
8. Termination. Except as otherwise provided herein, neither party may
terminate this Agreement at any time unless either Party defaults in the
performance of any of its material duties under this Agreement and does not cure
the default within five (5) days after receipt of written notice from the other
party, (ii) if either Party admits insolvency, makes an assignment for the
benefit of its creditors, is unable to pay debts as they mature, has a trustee
or receiver appointed over all or a substantial portion of its assets, or enters
into an agreement for the extension or readjustment of all or substantially all
of its obligations.
2
9. Remedies Upon Termination. Upon termination, Customer will pay
within fifteen (15) days of such termination to Dialmex all outstanding invoices
and all charges for Services incurred. If such amounts are less than the Deposit
and/or Letter of Credit that Customer has provided to Dialmex, Dialmex agrees to
apply the Deposit and/or Letter of Credit and return to Customer any excess as
provided for in Section 5 of this Agreement.
10. Warranties. The quality of Services provided hereunder shall be
consistent with industry standards, government regulations and sound business
practices. NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES TO THE
OTHER PARTY ABOUT THE SERVICES PROVIDED HEREUNDER, EXPRESS OR IMPLIED, BY
OPERATION OF LAW OR IN FACT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Damages. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY OR ANY OF SUCH OTHER PARTY'S CLIENTS FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH OR RELATED TO ANY OF THE
SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, WHETHER OR NOT THE SERVICE
PROVIDER RECEIVES NOTICE OF ANY SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES
COULD HAVE BEEN FORESEEN.
12. Force Majeure. Neither party shall be liable for any failure,
interruption and/or diminution of Services in the event that such failure,
interruption and/or diminution is the result of any fire, flood, epidemic,
earthquake or any other act of God, explosion, strike or other disputes, riot or
civil disturbance, war (whether declared or undeclared), armed conflict, any
municipal ordinance, or state or federal law, governmental order or regulation,
or order of any Court of competent jurisdiction, or other similar forces not
within the control of the Service providing party.
13. Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither party may assign or transfer any of its rights
or obligations hereunder without the prior written consent of the other party,
such consent not to be unreasonably withheld or delayed.
14. Confidentiality. Each party understands and agrees that the terms
and conditions of this Agreement and all non-tariff documents referenced herein
are confidential between Customer and Providers and shall not be disclosed by
either party to any other party.
15. Notices. All notices given hereunder and all payments to be made
hereunder shall be sent to the addresses set forth as follows:
3
Customer: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 210.614.7264
Dialmex:
Omtel:
or at such other addresses as a party may designate in writing to the other
party. All notices, requests, consents and other communications under this
Agreement shall be in writing and shall be deemed to have been delivered on the
date when hand delivered or three (3) days after deposit in the mail when sent
by U.S. Mail, postage prepaid, by certified mail, return receipt requested, or
telegraphed and confirmed, or upon confirmation of sending when sent by fax, or
on the day after being sent when sent by overnight delivery service.
16. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties hereto and supersedes all prior statements,
representations, understandings or agreements of the parties with respect to the
subject matter contained herein.
17. Amendment. Except as otherwise provided herein, including without
limitation the party's ability to make rate changes as provided in Section 5.
above, this Agreement shall not be amended, changed, modified, terminated or
discharged in whole or in part except by an instrument in writing duly executed
by the Parties or their approved successors or assigns.
18. Governing Law. This Agreement is executed in Texas and shall be
governed by the laws of the State of Texas, with exclusive venue at McAllen,
Texas.
19. Indemnity. The Parties agree to indemnify and hold the other
Party's directors, officers, employees, agents and advisors harmless from and
against any and all claims, demands, or actions and costs, liabilities or losses
arising directly or indirectly from the Customer's resale of the Services
acquired by and/or through this agreement.
20. Interconnection. The Customer agrees to interconnect at such
locations indicated by Dialmex during the Term of this Agreement.
4
IN WITNESS WHEREOF, the undersigned have set their hands.
ATSI Communications, Inc. (Delaware) Dialmex
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: CEO Title: CEO
Operadora Mexicana de Telefonia, S.A. de C.V.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: CEO
5
ADDENDUM A
DIALMEX SERVICES
TELECOMMUNICATION SERVICES AND/OR FACILITIES
This Addendum is hereby incorporated into the underlying Agreement as
though an original part thereof.
Customer: ATSI Communications, Inc. (Delaware)
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Primary Account Contact:
Legal & Billing:
▇▇▇▇▇ ▇▇▇▇▇▇
210.614.7240 Ext 1043
▇▇▇.▇▇▇.▇▇▇▇ Fax
Technical & Sales
▇▇▇▇▇ ▇▇▇▇▇▇▇
210.614.7240 Ext. 1050
210.614.7264
Committed Capacity : _____ E1's or DS3's (___ )
Service: Termination to Mexico
Billing Increments: 1 minute increment
Deposit required per E1: $15,000.00USD
Rates (Mexico): this rates include TAX and are:
FOB N.Y., FOB DALLAS, SAN ANTONIO or MCALLEN, Texas.
SERVICE ALSO AVAILABLE FOB INTERNET (VOIP).
------------------------------------- --------------------------
Billing Block Rate Per Minute
------------------------------------- --------------------------
1 Mexico City $.015
------------------------------------- --------------------------
2 Guadalajara, Monterrey $.015
------------------------------------- --------------------------
3 ▇▇▇▇▇▇, ▇▇▇▇, Toluca $.035
------------------------------------- --------------------------
4 $.0467
------------------------------------- --------------------------
5 $.0541
------------------------------------- --------------------------
6 $.0583
------------------------------------- --------------------------
Rest of country $.0998
------------------------------------- --------------------------
o All above rates FOB DIALMEX'S designated POP.
o CUSTOMER will be responsible for any charges incurred in running ____ ( ) DS3
or _________ ( ) T1's to DIALMEX'S designated POP.
o CUSTOMER will provide compression equipment if needed.
o DIALMEX will provide 24 hrs. Technical support 7 days a week.
6