SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A
(Mark One)
Annual Report Pursuant to Section 13
X or 15(d) of the Securities Exchange
Act of 1934 for the fiscal year
ended December 31, 1997
or
Transition Report Pursuant to
Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Transition Period from __________ to __________
Commission File Number 33-32341-D
WORLDPORT COMMUNICATIONS, INC.
(Name of Small Business Registrant as Specified in its Charter)
Delaware 84-1127336
(State or other jurisdiction of (IRS Employer ID Number)
incorporation of organization)
3610 Kennesaw North Industrial Parkway, 30144
Suite 200, Kennesaw, Georgia (Zip Code)
(Address of principal executive offices)
Registrant's telephone number: (770) 792-3774
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
Name of each exchange on which registered
N/A
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
past 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B is not contained in this form, and no disclosure
will be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of
this Form 10-KSB or any amendment to this Form 10-KSB [ X ]
The Registrant's revenues for its most recent fiscal year were
$2,777,575.
The approximate aggregate market value of common stock of the Registrant
held by non-affiliates of the Registrant is $68,459,181, computed on the
basis of $6 7/8 per share, average bid/ask price of the common stock on
the OTC Bulletin Board on March 30, 1998.
The number of shares of the Registrant's common stock, $0.0001 par value
per share, outstanding as of March 30, 1998 was 17,383,333.
Documents incorporated by reference: None.
Transitional Small Business Disclosure Format
(Check one):
Yes _______ No __X___
PART IV
ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit No. Description
2.1 Agreement and Plan of Merger by and
among the Company, WorldPort
Acquisitions, Inc., The Wallace Wade
Company, and John W. Dalton, dated
April 20, 1997, previously filed with
Form 8-K dated July 7, 1997, and
incorporated herein by reference.
2.2 Asset Purchase Agreement by and
between the Company and Telenational
Communications Limited Partnership
dated April 23, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended March 31, 1997, and
incorporated herein by reference.
2.3 Amendment No. 1 to the Asset Purchase
Agreement by and between the Company
and Telenational Communications
Limited Partnership, dated June 20,
1997, previously filed with Form 8-K
dated July 7, 1997, and incorporated
herein by reference.
3.1 Certificate of Incorporation for the
Company previously filed with Form
10-QSB for the fiscal quarter ended
September 30, 1996, and incorporated
herein by reference.
3.2 Bylaws of the Company previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
4.1 Certificate of Designation of Series
A Preferred Stock of the Company
dated November 12, 1997 previously
filed with Form 10-KSB for the fiscal
year ended December 31, 1997, and
incorporated herein by reference.
10.1 Financial Advisory Agreement between
the Company and Dinton Trader S.A.
dated October 31, 1996, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
10.2 Loan Agreement between Com Tech
International Corporation and the
Company dated June 27, 1996,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1996, and incorporated herein by
reference.
10.3 Assignment, Pledge & Security
Agreement between Com Tech
International Corporation and the
Company dated June 27, 1996,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1996, and incorporated herein by
reference.
10.4 Convertible Secured Promissory Note
between the Company and Maroon Bells
Capital Partners, Inc. dated July 1,
1996, previously filed with Form 10-
QSB for the fiscal quarter ended
September 30, 1996, and incorporated
herein by reference.
Exhibit No. Description
10.5 Loan Agreement between the Company
and Maroon Bells Capital Partners,
Inc. dated July 1, 1996, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
10.6 Assignment, Pledge & Security
Agreement between the Company and
Maroon Bells Capital Partners, Inc.
dated July 1, 1996, previously filed
with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
10.7 Secured Promissory Note between the
Company and Com Tech International
Corporation dated June 27, 1996,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1996, and incorporated herein by
reference.
10.8 Maroon Bells Capital Partners, Inc.
Advisory Agreement for WorldPort
Communications, Inc. dated March 7,
1997, previously filed with Form 10-
KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.9 Stock Issuance and Indemnification
Agreement by and between Maroon Bells
Capital Partners, Inc. and WorldPort
Communications, Inc. dated March 7,
1997, previously filed with Form 10-
KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.10 Pledge Agreement, Secured Promissory
Note, and Guaranty between Edmund
Blankenau and the Company dated April
4, 1997, previously filed with Form
10-KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.11 Employment Agreement by and between
John W. Dalton and the Company dated
April 8, 1997, previously filed with
Form 10-KSB for the fiscal year ended
December 31, 1996, and incorporated
herein by reference.
10.12 Lease by and between the Company and
Mission Life Insurance Company, dated
April 15, 1997, previously filed with
Form 10-QSB for the fiscal quarter
ended March 31, 1997, and
incorporated herein by reference.
10.13 Settlement Agreement by and between
Com Tech International Corporation
and WorldPort Communications, Inc.,
dated April 14, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended March 31, 1997, and
incorporated herein by reference.
Exhibit No. Description
10.14 Management Services Agreement by and
between WorldPort Communications,
Inc. and Telenational Communications
Limited Partnership, dated April 29,
1997, previously filed with Form 10-
QSB for the fiscal quarter ended
March 31, 1997, and incorporated
herein by reference.
10.15 Employment Agreement by and between
W. Dean Spies and the Company
effective April 7, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended March 31, 1997, and
incorporated herein by reference.
10.16 First Amended Loan Modification
Agreement by and between the Company,
Telenational Communications, Inc.,
Telenational Communications Limited
Partnership and Value Partners, Ltd.
dated June 20, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended June 30, 1997, and
incorporated herein by reference.
10.17 Second Amended and Restated Senior
Secured Promissory Note by and
between the Company, Telenational
Communications, Inc. and Value
Partners, Ltd. Dated June 20, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended June 30,
1997, and incorporated herein by
reference.
10.18 First Amended Pledge and Security
Agreement by and between Telenational
Communications, Inc. and Value
Partners, Ltd. dated June 20, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended June 30,
1997, and incorporated herein by
reference.
10.19 Notice and Certification of No Oral
Agreements by and between the
Company, Telenational Communications,
Inc., Telenational Communications
Limited Partnership and Value
Partners, Ltd. dated June 20, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended June 30,
1997, and incorporated herein by
reference.
10.20 Consulting Agreement by and between
Edmund Blankenau and the Company
dated June 20, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended June 30, 1997, and
incorporated herein by reference.
10.21 Employment Agreement by and between
Bruce Burton and the Company dated
June 20, 1997, previously filed with
Form 10-QSB for the fiscal quarter
ended June 30, 1997, and incorporated
herein by reference.
10.22 Lease by and between Telenational
Communications, Inc. and 7300
Woolworth Partnership dated July 1,
1997, previously filed with Form 10-
QSB for the fiscal quarter ended June
30, 1997, and incorporated herein by
reference.
10.23 Promissory Note by and between the
Company and Cablex Electronique, Ltd.
dated September 11, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
Exhibit No. Description
10.24 Promissory Note by and between the
Company and Le Chevalier Noir, Ltd.
dated September 11, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.25 Promissory Note by and between the
Company and Woodlands, Ltd. dated
October 1, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.26 Promissory Note by and between the
Company and Maroon Bells Capital
Partners, Inc. dated October 9, 1997,
previously filed with Form 10-QSB for
the fiscal quarter ended September
30, 1997, and incorporated herein by
reference.
10.27 Agreement for the Provision of
Corporate Voice Communication
Services between EQUANT Network
Services, Inc. and the Company dated
September 4, 1997, previously filed
with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.28 Master Equipment Lease Agreement by
and between the Company and
Forsythe/McArthur Associates, Inc.
dated October 31, 1997, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1997, and
incorporated herein by reference.
10.29 Lease Schedule A by and between the
Company and Forsythe/McArthur
Associates, Inc. dated October 30,
1997, previously filed with Form 10-
QSB for the fiscal quarter ended
September 30, 1997, and incorporated
herein by reference.
10.30** Carrier Agreement (800 Origination)
dated October 23, 1997 between
Operador Protel, S.A. de C.V. and
WorldPort Communications, Inc.
10.31** Service Contract dated November 12,
1997 between All American Cables and
Radio, Inc. and WorldPort
Communications, Inc.
10.32** Commission Agreement dated November 12,
1997 between ARBITEL and WorldPort
Communications, Inc.
10.33** Carrier Service Agreement, effective as
of January 1, 1997, between Telenational
Communications Limited Partnership (the
predecessor to Telenational
Communications, Inc., a wholly-owned
subsidiary of WorldPort Communications,
Inc.) and Telenational Communications
Dutschland Limited Partnership.
16.1 Letter of Schumacher & Associates,
Inc., Independent Certified Public
Accountant, previously filed with
Form 8-K dated July 7, 1997, and
incorporated herein by reference.
22.1 Notice of Annual and Special Meeting
of Shareholders and Proxy Statement
dated September 18, 1996, previously
filed with Form 10-QSB for the fiscal
quarter ended September 30, 1996, and
incorporated herein by reference.
23.1 Consent of Arthur Andersen LLP,
Independent Public Accountants previously
filed with Form 10-KSB for the fiscal year
ended December 31, 1997, and incorporated
herein by reference.
27.1 Financial Data Schedule previously filed with
Form 10-KSB for the fiscal year ended December
31, 1997, and incorporated herein by
reference.
**Filed herewith - confidential treatment has been requested for portions of
these documents.
(b) No Current Reports on Form 8-K were filed during the last quarter of the
period covered by this Report.
SIGNATURES
Pursuant to the requirements of Section 13 of 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated this 14th day of May, 1998
WORLDPORT COMMUNICATIONS, INC.
By /s/ Phillip S. Magiera
Phillip S. Magiera
Chief Financial Officer and Secretary
CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR
WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [*] [**] [***]
[****] OR [*****]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.30
CARRIER AGREEMENT
(800 ORIGINATION)
THIS CARRIER AGREEMENT, (the "Agreement"), is made this October 23, 1997 between
Operadora Protel, S.A. de C.V., its affiliates and/or representatives, a Mexican
corporation with a business address of Monte Elbruz 132, 4th Floor, Lomas de
Chapultpec, Mexico, D.F 11000 (herein named "Carrier") and WorldPort
Communications Inc. its affiliates and/or representatives, a United States
corporation, with a business address of 9601 Katy Freeway, Suite 200, Houston,
Texas 77024 (herein named "Purchaser"). WITNESSETH
WHEREAS, Carrier provides the sale of certain telecommunications services,
including international long distance, switched and dedicated El termination
services, 800 number origination including prepaid and debit cards (hereinafter
referred to as the "Service") and
WHEREAS, Purchaser desires to use the Service supplied and furnished by Carrier
upon the terms, provisions and conditions of this Agreement and the Agreement's
Service Schedule(s) for termination of Mexico 800 number originated call traffic
into the United States of America and/or all other international destinations
defined in the Service Schedule.
NOW, THEREFORE, for and in consideration of the recitals, promises and covenants
contained herein and for other good and valuable consideration, the parties
hereto mutually agree as follows:
Effective Date - Minimum Service Terms
A. Effective Date - This Agreement shall be effective between the parties
as of the date first written above.
B. Start of Service - Carrier's obligation to provide and Purchaser's
obligation to accept and pay for Service pursuant to this Agreement
shall commence upon the execution of a Service Schedule by both
parties ("Start of Service"). Start of Service for a particular
Service may be further described in the relevant Service Schedule(s)
which constitutes an integral part of this agreement.
C. Minimum Service Term - Except as otherwise provided herein, the
Parties' obligations hereunder with respect to Service shall continue
from the Start of Service Date and continue over the Minimum Service
Term set forth in the relevant Service Schedule (the "Minimum Service
Term"). Upon the expiration of the Minimum Service Term, Service
shall automatically be extended for terms of [***], unless notice is
provided to Carrier by Purchaser ninety (90) days prior to the
expiration of the said Minimum Service Term.
D. Minimum Commitment - During each month during the Minimum Service
Term, Purchaser shall obtain and pay for monthly usage of at least the
amount set forth in the relevant Service Schedule (the "Minimum
Commitment") after the Ramp-up Period as defined in the attached
Service Schedule.
2. Service Schedules - Service requested by Purchaser hereunder shall be
requested on Carrier Service Schedule forms and signed by authorized
representatives of Purchaser and Carrier. Any Service Schedule executed by
the parties hereto shall reference this Agreement and shall become a part
of this Agreement to the extent that it describes the Service, Requested
Service Date, Service Connection, Charges, Specific Service Terms and other
information necessary for Carrier to provide Service to Purchaser.
3. Service Connections; Taxes; Service Billings
A. Technical Requirements - In order to utilize certain Services, a
designated connection between Purchaser's Location ("Purchaser's
Location") and the Carrier's Network at the Carrier Point-of-Presence
facilities (POP) must be established (herein "Service Connection").
Unless otherwise indicated in the Service Schedule, Purchaser shall be
responsible for establishing each Service Connection from its
facilities subject to Carrier approval. Service Connection shall only
be comprised of DS-l or DS-3 facilities unless otherwise agreed to by
the Parties hereto.
B. Connection - Commencing with the ramp-up schedule defined in Service
Schedule A of the Agreement, Purchaser must provide an average loading
on each E-1 comprising the Service Connection of not less than the
number of minutes of usage per E-1 per calendar month of the Minimum
Service Term (or any pro-rata portion thereof) set forth in the
relevant Service Schedule ("Minimum Monthly Usage"). The loading
shall average [**] minutes per El span, but may be loaded as
technically possible for the type Service provided. The Parties
hereto agree and accept not to exceed standard 4-1 compression
technology, however, any other compression technology must be accepted
by all parties hereto prior to implementation.
C. Expedite Charges - Should Purchaser request expeditious Service and/or
changes to orders and Carrier agrees to such request, Carrier may
charge Purchaser the actual cost plus [*] for supplying the requested
Service to Purchaser payable, with the request for expeditious
Service.
D. Fraudulent Calls - Purchaser shall indemnify and hold Carrier harmless
from all costs, expense, claims, or actions arising from fraudulent
calls of any nature which may comprise a portion of the Service to the
extent that the party claiming the call(s) in question to be
fraudulent is or had been at the time of the call, Purchaser or an
end-user of the Service through Purchaser.
E. Licenses - The Parties hereto are responsible for obtaining all
licenses, approvals from any regulatory authorities for its operation.
Each Party shall indemnify and hold harmless the other Party hereto
from all costs and damages, including without limitation, reasonable
attorney's fees, arising from the other Parties failure to comply with
any regulatory or governmental approvals required.
F. Billing - Per paragraph 5 of the Agreement, Purchaser will cooperate
with all Carrier billing practices such that Purchaser shall not act
in any manner to circumvent Carrier ability to charge for Carrier
Services. Except as otherwise agreed in writing between the Parties,
Purchaser is solely responsible for billing and collection of all
accounts, customer or end users to whom Purchaser provides services.
4. Other Obligations
A. Carrier Obligations
1). Carrier shall make its best efforts to ensure service
availability. Carrier may amend the rates specified in Exhibit A
at any time upon THIRTY (30) DAYS written notice to Purchaser.
2). Carrier shall make its best efforts to process all requests for
Service in a timely and accurate manner.
3). Carrier shall keep the quality of service within ITU standards
and keep the services within standards acceptable to both parties
hereto after initial testing and acceptance of Services by
Purchaser. Carrier shall assure that a minimum of Ninety Five
Percent (95%) of calls placed pursuant to the terms of this
Agreement are successfully completed.
4). Client list to be provided.
B. Other Purchaser Obligations
1). Purchaser shall not be relieved of any obligation hereunder by
virtue of the fact that Service is ultimately not used by
Purchaser's End Users (as hereinafter defined).
2). Purchaser shall be solely responsible for End User solicitation,
service, requests, creditworthiness, customer service, billing
and collection, and shall indemnify and hold Carrier harmless
from all costs (including attorney's fees) arising from its
responsibilities hereunder.
3). Purchaser shall be solely liable for amounts it cannot collect
from End Users, and billing adjustments it grants End Users,
including adjustments for fraudulent charges, directory
assistance or any other form of credit.
4). Client list to be provided.
5. Charges and Payments Terms
A. Taxes - Purchaser acknowledges and understands that all charges stated
in Service Schedules are computed by Carrier exclusive of any
applicable use, excise, gross receipt, sales and privileges taxes,
duties, fees with the exception of the Value added Tax normally
charged for these types of services in Mexico or other taxes or
similar governmental changes, customary for this type of service,
excluding rate and pricing changes imposed by the regulator which
affects the base rates and pricing established by the Service Schedule
as controlled and defined in section 5 hereunder.
B. Billing Disputes - Any billing discrepancies shall be presented to
Carrier in reasonable detail, in writing, within ninety (90) days of
the date of invoice in question. Purchaser acknowledges that it has
the right of set-off or deduction of any Billing discrepancies only
with proper documentation and set off will have to be agreed upon the
parties hereto.
C. Charges and Payment Terms - Carrier billing for Service shall be made
every month basis following the Start of Service. Service shall be
billed at the rates set forth on the Service Schedule(s) attached.
Purchaser will pay each Carrier faxed invoice for Service in full by
bank wire transfer or to the address set forth on a relevant Service
Schedule with no offset or deductions of any kind unless agreed to by
both parties, within seven (7) days of the invoice date set forth on
each faxed Carrier invoice to Purchaser ("Due Date"). All payments
due hereunder shall be made in U.S. dollars and sent to the Carrier
designated bank in same day funds. If payment is not received by
Carrier on the Due Date, Purchaser shall also pay a late fee in the
amount of one and one-half percent (1 1/2%) of the unpaid balance of
the Service charges per month or the maximum lawful rate under
applicable law. The Purchaser agrees that as the monthly usage
increases Purchaser will furnish Carrier with additional Security
Deposits if requested and required as set forth in the Service
Schedule, an integral part of this contract.
D. Suspension of Services - In the event payment is not received from
Purchaser by the Due Date, Carrier shall provide Purchaser with a 5
day written termination notice, said notice commencing one day after
the Due Date. If payment is not received in full within the 5 days of
such notice, Carrier has the right to suspend the effective portion of
the Service, and exercise all its rights over any and all Security
Deposits or other financial instruments established for its protection
against failure of Purchaser to pay an invoice. Following such
payment, Carrier shall reinstate Service to Purchaser, provided
Purchaser provides to Carrier satisfactory assurance of Purchaser
ability to pay for Service and reestablishes any Security Deposit
deficiency and/or additional Security Deposit required by Carrier.
6. Warranty - CARRIER MAKES NO OTHER WARRANTIES ABOUT THE SERVICE PROVIDED
HEREUNDER, EXPRESS OR IMPLIED, INCLUDED BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OTHER THAN THOSE
WARRANTIES HEREIN.
7. Default; Continued Relationship; Termination
A. In the event of Default, as defined below, this Agreement and
relationship of the parties may be terminated by the non-defaulting
Party in accordance with applicable provisions hereof and/or the
occurrence of any of the following events (collectively, a "Default").
B. Carrier may terminate this Agreement upon Purchaser's failure to cure
any of the following within 30 days following written notice thereof:
(a) the (i) insolvency, corporate reorganization, arrangement with
creditors, receivership or dissolution; or (ii) institution of
bankruptcy proceedings; (b) assignment or attempted assignment of the
Agreement or any interest therein, except as permitted by Section 16
hereof; (c) change in control of Purchaser without Carrier's prior
written consent, which consent shall not be unreasonably withheld; (d)
a final order by a government entity with appropriate jurisdiction
that a Service or the relationship hereunder is contrary to law or
regulation; or (e) breach of any provision herein not otherwise
referred to in this Section 7.
C. Carrier may terminate this agreement in the event Purchaser fails to
make any payment when due or fails to furnish security as may be
required pursuant to Section 5(E) hereof, and fails to cure default
within five (5) days after receipt of notice of such default.
D. Purchaser may terminate this Agreement on thirty (30) days prior
notice to Carrier for any breach of this Agreement. Additionally,
Purchaser may terminate this Agreement on THIRTY (30) DAYS prior
notice if (1) Carrier fails to meet its obligations regarding quality
of the network as such quality may be defined by the International
Standards (ITU) and fails to cure such failure within the said notice
period, (2) Carrier fails to meet its obligations to terminate traffic
or (3) any branch, office or decree of the Mexican Government and/or
its administration and/or regulatory bodies, and/or extensions thereof
(including state and local governments), attempts, or succeeds, or has
succeeded in, levying or imposing any order, surcharge, tax or fee
which serve to increase, either directly or indirectly, the cost of
the service to Purchaser beyond those rates set forth in Exhibit A of
this Agreement., or (4) any branch, office or decree of the United
States Government and/or its administration and/or regulatory bodies,
and/or extensions thereof (including state and local governments),
attempts, or succeeds, or has succeeded in, levying or imposing any
order, surcharge, tax or fee which serves to increase, either directly
or indirectly, the cost of the service to increase,
8. Liability: General Indemnity
A. Limited Liability - In no event shall either party hereto be liable to
the other party for any indirect, special, incidental or consequential
losses or damages, including without limitation, loss of revenue, loss
of customers or clients, loss of goodwill or loss of profits arising
in any manner from this Agreement and the performance or non-
performance of obligations hereunder. Unless Purchaser agrees
otherwise, if Carrier delays for more than thirty (30) days the
provisioning of any order for circuit(s), then Purchaser shall be
relieved of any commitment herein for the purchase of any additional
minutes from Carrier as to that order and Purchaser may withdraw the
order(s) so delayed and the Securities provided by Purchaser related
to those order(s) so delayed.
B. General Indemnity - In the event parties other than Purchaser shall
have use of the Service through Purchaser, Purchaser agrees to forever
indemnify and hold Carrier, its affiliated companies and any third
party provider or operator of facilities employed in provision of the
Service harmless from and against any and all claims, demands, suits,
actions, losses, damages, assessments (including without limitation,
attorney's fees) or payments which may be asserted by said parties
arising out of or relating to any defect in the Service, unless such
defect is caused by Carrier, its affiliated companies and any third
party provider or operator of facilities employed in provision of the
Service.
C. In the event that Carrier is required by any Mexican regulatory
agency, including but not limited to the Secretaria de Comunicaciones
y Transportes and the Comision Federal de Telecomunicaciones, to alter
the "transport and termination" of services provided by this contract,
require the revocation, cancellation or termination of Carrier's
concession, Purchaser, agrees to hold Carrier harmless in any and all
jurisdictions, and not liable for any loss, monetary or otherwise, as
a result of any of the above circumstances.
9. Force Majeure - If either Parties performance of this Agreement or any of
its obligations hereunder are prevented, restricted or interfered with by
cause beyond its control including, but not limited to, acts of God, fire,
explosion, vandalism, cable cut, storm or other similar occurrence, any
law, order, regulation, direction, action or request of the United States
or Mexico government or state or local governments or of any department,
agency, commission, court, bureau, corporation or other instrumentality of
any one or more said governments, or of any civil or military authority, or
by national emergency, insurrection, riot, war, strike, lockout or work
stoppage or other labor difficulties, supplier failure, shortage, breach or
delay, then the party affected herein shall be excused from such
performance on a day-to-day basis to the extent of such restriction, change
or interference.
10. Notices - Any notices to be given hereunder by either party to the other
may be effected by either personal delivery in writing or by mail,
registered or certified, postage prepaid, with returned receipt requested
or overnight delivery. Mailed notices shall be addressed to the respective
addresses shown below. Either party may change its address for notice by
giving written notice in accordance with terms of this Agreement.
If to Carrier: If to Purchaser:
Operadora Protel S.A. de C.V. WorldPort Communications Inc.
Monte Elbruz 132 9601 Katy Freeway, Suite 200
4th Floor Houston Texas, 77024
Lomas de Chapultepec
Mexico D.F. 11000
Att: Ana Ma Dominguez Att: John Dalton
11. No Waiver - No term or provision of this agreement shall be deemed waived
and no breach or default shall be deemed excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived
or consented. No Consent by any party to, or waiver of, a breach or
default by the other, whether express or implied, shall constitute a
consent to, waiver of, or excuse for any different or subsequent breach or
default.
12. Headings -The headings of the Sections of this Agreement are inserted
solely for convenience and do not form a part of or affect the meaning
hereof.
13. Confidentiality
A. Confidential Information - A party ("the disclosing party") may,
either orally, in written form, or otherwise, disclose to the other
party ("the receiving party"), or the receiving party may otherwise
obtain either party's confidential information ("Either Party's
Confidential Information") in connection with this Agreement. The
terms and conditions of this Agreement are Either Party's Confidential
Information". Any information that either party may disclose to the
other party or may otherwise obtain in connection with this Agreement
regarding any of (I) either party's existing or potential customers;
(II) either party's rates and changes; or (III) either party's
network, platform, software shall be either party's Confidential
Information, regardless of whether it is indicated as such at the time
of disclosure. If any of the following apply to any information, such
information shall not be considered as either part's Confidential
Information.(I) it is or becomes available to the public through no
wrongful act of either party; (ii) it is already in the possession of
either party and not subject to any agreement of confidence between
the parties; (iii) it is received from a third party without
restriction for the benefit of either party and without breach of this
Agreement; or (iv) it is independently developed by either party.
Either party may disclose either party's Confidential Information
pursuant to a requirement of a duly empowered government agency or a
court of a competent jurisdiction after due notice and an adequate
opportunity to intervene is given to the other party, unless such
notice is prohibited. Except as provided herein, either party shall
not use or disclose either party's Confidential Information. Upon
termination or expiration of this Agreement, each shall, at the other
party's direction, either return to the other party or destroy all
Either Party's Confidential Information and so certify it in writing.
The obligations of this provision will survive for two (2) years after
any termination or expiration of this Agreement.
B. Limited Disclosure - A party shall not disclose Confidential
Information unless subject to discovery or disclose pursuant to legal
process as provided below, or to any other party other than the
directors officers and employees of a party or a party's agents
including their respective brokers, lenders, insurance carriers or
bona fide prospective purchasers who have specifically agreed in
writing to nondisclosure of the terms, and conditions hereof. Any
disclosure hereof required by legal process shall only be made after
providing the non-disclosing party with notice thereof in order to
permit the non-disclosing party to seek an appropriate protective
order or exemption. It is acknowledged by the parties hereto that
violation by a party or its agents of the foregoing provisions shall
entitle the non-disclosing party at its option to obtain injunctive
relief without a showing of irreparable harm or injury and without
bond. Carrier agrees not to circumvent Purchaser sources or
Purchaser's existing customers and potential customers to offer
services for termination into Mexico during the period of this
agreement. Purchaser will not circumvent Carrier Sources to obtain
termination services.
14. Regulations - This Agreement is made expressly subject to all present and
future valid orders and regulations of any regulatory body having
jurisdiction of the subject matter hereof and to the laws of the United
States of America, any of its states, or any Mexican governmental agency
including but not limited to the Secretaria de Comunicaciones y
Transportes, Comision Federal de Telecomunicaciones having jurisdiction.
In the event this Agreement, or any of its provisions, shall be found
contrary to or in conflict with any such order, rule, regulations or laws,
this Agreement shall be deemed modified to the extent necessary to comply
with any such order, rule, regulation or law and shall be modified in such
a way as is consistent with the form, intent and purpose of this Agreement.
In the event this Agreement, or any of its provisions, shall be found
contrary to or in conflict with any tariff of any government, the party
affected shall have the opportunity to amend tariff to conform under the
services of this Agreement contemplated for the services herein.
15. Service Start Condition - In order for this agreement to take effect,
Purchaser acknowledges that Carrier must have their own international
gateway, as well as an interconnect agreement with an international carrier
and/or lease capacity from another authorized international gateway.
16. Governing Law
A. Law - This Agreement shall be construed under the laws of the State of
New York.
17. Binding Effect - All terms and conditions hereof shall be binding upon and
inure to the benefit of and be enforceable by the heirs, administrators,
executors, successors and assigns of the respective parties hereto. This
Agreement cannot be assigned by either Party hereto without the written
consent of the other Party.
18. Counterparts - This Agreement may be executed in more than one counterpart,
each of which shall be deemed to be an original, but all of which together
shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of date
first written above.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
SERVICE SCHEDULE
800 ORIGINATION
IN COUNTRY
Operadora Protel S.A. de C.V (Carrier) agrees to provide and Global (Purchaser)
agrees to accept the Services described below subject to the terms and
conditions set forth herein and contained in the Agreement among Purchaser and
Carrier, dated October 23, 1997. Capitalized terms herein shall have the
definitions ascribed to them herein, or if not defined, the definition provided
in the Agreement shall apply.
1. Carrier agrees to provide the Service described in Exhibit A and all other
Exhibits defined hereto to the Specified Termination locations if any,
described in Exhibit A for the charges set forth in Exhibit A for a Minimum
Service Term of [***] beginning after the Ramp-Up Period agreed to in
Exhibit A, and shall continue automatically for [***] periods thereafter,
unless one of the parties provides written notice to the other party ninety
(90) days prior to the expiration of the Service Term, that the Service
Term will not be continued.
2. Start of Service will occur concurrently, regardless of Start Date, with
the activation of each Service Connection relevant to the Service in
question. The Minimum Commitment calculation for Service will commence and
apply as defined by the Ramp-up Period in Exhibit A herein a part of this
Agreement and the minimum monthly usage calculation for Service will
commence as of thirty (30) calendar days following Start of service.
3. As of the Requested Service Date, Circuits comprising Service Connections
will be provided between the Carrier POP's and Purchaser Originating
Locations (international 800 number originated calls using in-country 800
numbers with delivery to Carrier's USA defined POP), or as otherwise
defined for the Service in Exhibit A herein.
Requested Service Date:
4. Purchaser shall provide Carrier with the regular quarterly forecasts
regarding the number of minutes expected to be originated, so as to enable
Carrier to configure optimum network arrangements.
5. Carrier reserves the right to modify charges for and/or terminate the
Service offerings to specific locations and modify Service Connection
charges (not to exceed the then-current generally available Carrier
charges, if Carrier receives price changes from their underlying sources,
if any, upon not less than FORTY-FIVE (45) DAYS prior written notice to
Purchaser. If Charges are unacceptable, Purchaser may cancel that portion
of the Service and related Minimum Commitment affected by the modified
charges upon thirty (30) days written notice to Carrier. The Parties
hereto will mutually determine to best way to go forward based on the
changes proposed.
6. Banking Relationship of the Parties - All payments to Carrier for Services
shall be made to the bank wire transfer Account as defined by Carrier and
can be changed by Carrier from time to time with thirty (30) days written
noticed.
7. Purchaser will make applicable payments for the defined Service into an
"Carrier Payment Account", the amount of which will be determined by the
bi-weekly invoices to Purchaser. Every month Purchaser will receive an
invoice from Carrier and for which payment is due from Purchaser seven (7)
days from the time the invoice is received by Purchaser as defined in the
Agreement.
8. This Schedule may be executed in more than one counterpart, each of which
shall be deemed to be an original, but all of which together shall
constitute a single Agreement.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on November
11, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
SERVICE SCHEDULE
800 ORIGINATION
(VOLUME COMMITMENT)
Carrier agrees to provide and Purchaser agrees to accept the Service described
below subject to the terms and conditions set forth herein and contained in that
certain Agreement between Purchaser and Carrier, dated October 23, 1997. In
addition to all other obligations pursuant to the Agreement, it is farther
agreed that the following conditions shall apply:
1. Purchaser's Minimum Commitment - Commencing with the Start Date set forth
in Exhibit A hereto, and after the ramp-up period defined in Exhibit A and
continuing through the End Date set forth on Exhibit A attached hereto
("Commitment Period"), Purchaser shall obtain and pay for Monthly Usage, as
defined below, of at least the amount set forth in Exhibit A hereto
("Minimum Commitment"). For purposes of this Schedule, "Monthly Usage"
shall be defined solely as the minute usage for Mexico 800 number
originated international call minutes.
2. Deficiency Charge - In the event Purchaser does not maintain the designated
Minimum Commitment for the months indicated and after the ramp-up period
for those month(s) only, Purchaser will pay Carrier [***] percent of the
difference between the Minimum Commitment and the actual Monthly Usage (as
defined above) generated (the "Deficiency Charge") by Purchaser. The
Deficiency Charge will be due at the same time payment is due for Service
provided to Purchaser.
3. Cancellation Charge - At any time during the Commitment Period, Purchaser
may cancel this Service Schedule if Purchaser provides written notification
thereof to Carrier, not less than ninety (90) days prior to the effective
date of such intent of cancellation. In such case or in the event
Purchaser terminates this portion of the Agreement, Purchaser shall
immediately pay to Carrier all charges for Service provided through the
effective date of such cancellation plus an Cancellation Charge (the
"Cancellation Charge") equal to [***] of the Minimum Commitment that should
have become due for the non-expired portion of the Commitment Period.
4. Liquidated Damages - It is agreed that Carrier damages in the event
Purchaser cancels Service or fails to meet the Minimum Commitment shall be
difficult or impossible to ascertain. The provision for a Deficiency
Charge is intended, therefore, to establish liquidated damages in the event
of a cancellation or failure by Purchaser to meet the Minimum Commitment.
5. Breach and Commitment Waiver - Notwithstanding anything to the contrary
contained in Section 2 above, Purchaser's Minimum Commitment on Exhibit A
will be waived if Carrier materially breaches this Agreement; provided
however, Purchaser must give Carrier written notice of any such default and
an opportunity to cure such default within FORTY-FIVE (45) DAYS of the
notice before the Commitment is waived. The parties will then mutually
agree on how best to move forward. Additionally, if Carrier is not able to
provide necessary capacity for Purchaser to meet it's commitment, the
Minimum Commitment will be waived by Carrier.
6. Other Charges - Any Deficiency Charge or Cancellation Charge payable
pursuant to this Service Schedule shall be in addition to all other charges
payable by Purchaser pursuant to the Agreement.
7. Counterparts - This Schedule may be executed in more than one counterpart,
each of which shall be deemed to be an original, but all of which together
shall constitute a single Agreement.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on October
23, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT A
800 ORIGINATION
SELECTED SERVICES
INTERNATIONAL 800/PREPAID/DEBIT CALL ORIGINATION
The below defined Exhibit of Selected Services defines the Minimum Commitment
made by Purchaser for the use of Service from Carrier. This Exhibit may be
executed in more than one counterpart, each of which shall be deemed to be an
original, but all of which together shall constitute a single Agreement.
1. Start and Termination of Initial Period
A. Start Date of Commitment Period October 23, 1997 (the Start Date)
B. End Date of Commitment Period [***] (the End Date)
2. Service Definition - The Service to be provided by Carrier and to be
purchased by Purchaser related to these Selected Services Exhibit are 800
number origination for use as Prepaid or Debit Card minutes in the country
of Mexico to be delivered by Carrier to an agreed to Point on Presence
(POP) selected by Carrier in the United States of America at which POP
Purchaser will bring its connecting facilities. From this POP defined by
Carrier it will be Purchaser's obligation to complete the final delivery to
the terminating location as they deem necessary and at Purchaser's cost.
For the purpose of this Agreement the Carrier's POP is defined as the
TecNet POP in the city of Dallas, Texas, United States of America.
3. Minimum Commitment - Purchaser Minimum Commitment during the initial period
of service shall be defined as the Mexico 800 number originated call volume
in minutes from Purchaser defined properties to be terminated in the
country of United States of America by Purchaser's network, whether owned,
leased or otherwise acquired and operated for the purpose of call transport
and termination.
A. Minimum Commitment - Purchaser commits to originate in Mexico via 800
numbers belonging to Carrier and assigned for the purpose of call
origination, which Carrier will transport to an agreed to POP in the
United States, and which Purchaser will accept at the defined POP and
terminate in said country at least [**] minutes per month according to
an agreed to rampup schedule which allow both Carrier and Purchaser to
develop their respective markets and infrastructure. The Start Date
will be the date Carrier turns up the 800 numbers for Service.
B. Ramp-Up Period - The Ramp-Up Period is defined as the mutually agreed
period in months for Purchaser to meet its Minimum Commitment and said
Minimum Commitment will commence as defined in this Exhibit as 3.A.
The target dates for ram-up are:
Estimated Ramp-up Schedule
In of Minutes/Month
Month Terminating Call Minutes
First [**]
Second [**]
Third [**]
Four [**]
Five [**]
Six [**]
C. Country of Origination - MEXICO
D. Point of Presence - [****] (CFA to be provided).
E. Purchaser understands and accepts the circumstances that Carrier is
developing its infrastructure and may be limited in providing
necessary capacity in order for Purchaser to ramp up to commitment
levels and beyond. Purchaser agrees and will not oversell traffic to
its customers resulting in not been able to provide capacity to it's
customers via Carrier's network in order not to tarnish the goodwill
of both parties.
4. Transport Charges - Price per minute of for 800 number call origination is
set by Carrier for the Initial Period and can be changed by Carrier from
time to time until the termination of the agreement, with thirty (30) day
written notice to Purchaser of said change. The following schedule sets
forth the Initial Agreement Period pricing for the Selected Services
A. The charges defined below for 800 number origination include the cost
of the 800 number, the in-country transport of the 800 number call and
the delivery to the Carrier's USA POP. All other cost related to
Purchaser ability to accept, transport and deliver the call to the
end-user are obligation of Purchaser.
TRANSPORT AND TERMINATION PRICING SCHEDULE
800 number origination minutes per month:
[**] [*]
[**] [*]
[**] [*]
[**] [*]
The maximum price to end-user is [*] USD.
5. Additional Terms and Conditions
A. The parties will establish the banking and deposits accounts within
ten (10) working days after execution of this Agreement or as mutually
agreed to by the parties hereto.
B. Purchaser will have a ramp-up period as defined by section 3(B) above
to achieve the Minimum Commitment. Should Purchaser not meet the
Minimum Commitment within the above defined Ramp-Up Period, Purchaser
agrees that the terms and conditions defined in Service Schedule
section 5 (800 Number Origination-In Country), and Service Schedule
(Volume Commitment) Section 2 and 3 Deficiency Charges and
Cancellation Charges will be in force and apply as defined.
C. Purchaser will make a security deposit as defined by Carrier in the
form of a financial instrument defined by Carrier, unless mutually
agreed to in writing by the Parties (Security Deposit). The amount of
Security Deposit will be defined at time when this Agreement is
effective and will be included in this Document. The amount of
Security Deposit will be US$[*] which will be placed in the "Escrow
Deposit Account". The Security Deposit on hand in the Escrow Deposit
Account will be increased as the Service Monthly Usage increases
through the ramp-up period and thereafter, as required by Carrier.
D. Purchaser has the right to approve the quality, call connect timing,
db loss, post dial delay and the overall circuit quality before the
Start Service Date is effective and the services accepted per this
Agreement. However, unless the Purchaser does not approve, in
writing, the quality, call connect timing, db loss, post dial delay
and the overall quality; all terms and conditions are accepted and
applicable for said Services and the entire Agreement is in full
force.
E. The Mexico Billing increments are [**] MTR and [**] increments
thereafter.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on the 23rd
day of October, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT B
800 ORIGINATION
SELECTED SERVICES
NATIONAL 800/PREPAID/DEBIT CALL ORIGINATION
The below defined Exhibit of Selected Services defines the Minimum Commitment
made by Purchaser for the use of Service from Carrier. This Exhibit may be
executed in more than one counterpart, each of which shall be deemed to be an
original, but all of which together shall constitute a single Agreement.
1. Start and Termination of Initial Period
A. Start Date of Commitment Period October 23, 1997 (the Start Date)
B. End Date of Commitment Period [***] (the End Date)
2. Service Definition - The Service to be provided by Carrier and to be
purchased by Purchaser related to these Selected Services Exhibit are 800
number originated call minutes in the country of Mexico to be delivered by
Carrier to Purchaser's customers selected terminating points within Mexico.
Carrier will complete the final delivery to the terminating location as
they deem necessary and at agreed Purchaser's cost.
3. Minimum Commitment - Purchaser Minimum Commitment during the initial period
of service shall be defined as the Mexico 800 number originated call volume
in minutes from Purchaser defined properties to be terminated in the
country of Mexico by Purchaser's network, whether owned, leased or
otherwise acquired and operated for the purpose of call transport and
termination.
A. Minimum Commitment - Purchaser commits to originate in Mexico via 800
numbers belonging to Carrier and assigned for the purpose of call
origination, which Carrier will transport to an agreed terminating
location in the country of Mexico, at least [**] per month according
to an agreed to ramp-up schedule which allow both Carrier and
Purchaser to develop their respective markets and infrastructure. The
Start Date will be the date Carrier turns up the 800 numbers for
Service.
B. Ramp-Up Period - The Ramp-Up Period is defined as the mutually agreed
period in months for Purchaser to meet its Minimum Commitment and said
Minimum Commitment will commence as defined in this Exhibit as 2.A.
The target dates for ramp-up are
Estimated Ramp-up Schedule
In Minutes/Month
Month Terminating Call Minutes
First [**]
Second [**]
Third [**]
Four [**]
Five [**]
Six [**]
C. Country of Origination - MEXICO
D. Point of Presence - [****] (CFA to be provided)
E. Purchaser understands and accepts the circumstances that Carrier is
developing its infrastructure and may be limited in providing
necessary capacity in order for Purchaser to ramp up to commitment
levels and beyond. Purchaser agrees and will not oversell traffic to
its customers resulting in not been able to provide capacity to it's
customers via Carrier's network in order not to tarnish the goodwill
of both parties.
4. Transport Charges - Price per minute of for 800 number call origination is
set by Carrier for the Initial Period and can be changed by Carrier from
time to time until the termination of the agreement, with thirty (30) day
written notice to Purchaser of said change. Purchaser will act a an
authorize seller of services for Carrier, and as such agrees that Carrier
will set the per minute price to be used as the selling price per minute of
prepaid and debit service, and will receive a commission based on the terms
defined in the Agency Agreement as defined in this Exhibit B of Selected
Services paragraph 5.F. The following schedule sets forth the Initial
Agreement Period pricing for the Selected Services
Transport and Termination Pricing
800 number origination including $[*] USD/minute Minimum Price
call termination in the Country of
Mexico. Price to Purchaser.
800 number origination including $[*] USD/minute Maximum Price
call termination in the Country of
Mexico. Price to End User.
PRICES INCLUDE THE MEXICAN VALUE ADDED TAX OF 15%-IVA
A. The charges defined above for 800 number origination include the cost of
the 800 number, the in-country transport of the 800 number call and the
delivery of the call to the end-user customer. All other cost related to
Purchaser ability to accept, transport and deliver the call to the end-user
are obligation of Purchaser.
5. Additional Terms and Conditions
A. The parties will establish the banking and deposits accounts within
ten (10) working days after execution of this Agreement or as mutually
agreed to by the parties hereto.
B. Purchaser will have a ramp-up period as defined by section 3(B) above
to achieve the Minimum Commitment. Should Purchaser not meet the
Minimum Commitment within the above defined Ramp-Up Period, Purchaser
agrees that the terms and conditions defined in Service Schedule
section 5 (800 Origination-In Country), and Service Schedule (Volume
Commitment) Section 2 and 3 Deficiency Charges and Cancellation
Charges will be in force and apply as defined.
C. Purchaser will make a security deposit as defined by Carrier in the
form and financial instrument defined by Carrier, unless mutually
agreed to in writing by the Parties (Security Deposit). The amount of
Security Deposit will be defined at time when this Agreement is
effective and will be included in this Document. The amount of
Security Deposit will be $[*] which will be placed in the "Escrow
Deposit Account". The Security Deposit on hand in the Escrow Deposit
Account will be increased as the Service Monthly Usage increases
through the ramp-up period and thereafter, as required by Carrier.
D. Purchaser has the right to approve the quality, call connect timing,
db loss, post dial delay and the overall circuit quality before the
Start Service Date is effective and the services accepted per this
Agreement. However, unless the Purchaser does not approve, in
writing, the quality, call connect timing, db loss, post dial delay
and the overall quality; all terms and conditions are accepted and
applicable for said Services and the entire Agreement is in full
force.
E. The Mexico Billing increments are [**] MTR and [**] increments
thereafter.
F. For the purpose of this Service Exhibit B and its execution, Purchaser
agrees that it will enter into an Agent Agreement for the purpose of
marketing the services in the country of Mexico. This is a regulatory
requirement that must be met by Carrier. This above mentioned Agent
Agreement is considered a condition requirement for Carrier'
performance on the Services requested.
G. Carrier will provide to Purchaser 01-800 numbers (Mexico)
H. Carrier will provide the Service 24 hours a day, 7 days a week, 365
days a year.
I. Carrier will provide voice recognition in the debit card platform or
other services until the voice recognition is installed, in order to
reduce non-completes.
J. Purchaser shall pay the costs for non-completes exceeding [*] of such
calls
K. Carrier will provide Purchaser a list of all charges in connection
with the Service of prepaid debit cards.
L. Purchaser will provide customer service or Carrier will provide
customer service at an agreed price with Purchaser
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT C
800 0RIGINATION
SELECTED SERVICES
SERVICE CONNECTION DIAGRAMS
The below defined Exhibit of Selected Services defines and represents the
Service Connection to be used Purchaser for the use of Service from Carrier.
This Exhibit may be executed in more than one counterpart, each of which shall
be deemed to be an original, but all of which together shall constitute a single
Agreement.
1. Process and Service Connection Diagrams (to be defined).
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
EXHIBIT D
800 ORIGINATION
SELECTED SERVICES
INTERNATIONAL 800/PREPAID/DEBIT CALL ORIGINATION
ANCILLARY CHARGES
The below defined Exhibit of Selected Services defines the Ancillary Charges for
the use related services made by Purchaser for the use of Service from Carrier.
This Exhibit may be executed in more than one counterpart, each of which shall
be deemed to be an original, but all of which together shall constitute a single
Agreement.
SCHEDULE OF ANCILLARY CHARGES
Service Description Price For Service
Voice Recognition $[*] per call
Operator Services $[*] per call
Excess Incomplete Call Attempts (over [*] $[*] per minute
of all attempts)
Customer Service
THIS EXHIBIT MAY BE MODIFIED BY PROTEL.
IN WITNESS WHEREOF, the parties have executed this Service Schedule on the 23d
day of October, 1997.
WORLDPORT COMMUNICATIONS INC. OPERADORA PROTEL S.A. DE C.V.
By: /s/ John W. Dalton By: /s/ Ana Ma Dominguez
(Signature) (Signature)
John W. Dalton Ana Ma Dominguez
(Print Name) (Print Name)
Its: President and CEO Its: Legal Representative
(Title) (Title)
CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR
WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [*] [**] [***]
[****] OR [*****]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.31
SERVICE CONTRACT
This Agreement is made this 12th day of November, 1997 by and between All
American Cables and Radio, Inc. ("AACR"), a Company created under the laws of
the Dominican Republic, with a principal address at Josefa Perdomo, 52, Gazcue,
Santo Domingo, Dominican Republic represented herein by its Executive Vice
President, Mr. Alvaro Nadal, and
WorldPort Communications, Inc. ("WorldPort") a Delaware corporation with its
principal offices at 9601 Katy Freeway, Suite 200, Houston, Texas, USA,
represented herein by its President and Chief Executive Officer, Mr. John W.
Dalton.
WHEREAS, AACR has represented that it has the transmission facilities as well as
the necessary termination capacity to terminate telephone calls within the
Dominican Republic regardless of the network or company to which the calls are
sent;
WHEREAS, WorldPort has represented that it has the potential to raise an
important
volume of telephone calls to the Dominican Republic;
NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
1. SCOPE OF THE AGREEMENT.
1.1 AACR grants to WorldPort a franchise to sell international long
distance service ("ILDS") for calls terminating in the Dominican
Republic. This option is granted under the terms and conditions set
forth hereunder.
2. TERMS AND CONDITIONS.
2.1 The service (the "Service") granted herein to WorldPort is only to
resell ILDS to "Facilities Based Resellers," "Resellers," "Minute
Aggregators" and high volume customers. Excluded from the provisions
of this Agreement will be all "Facilities Based Carriers."
2.2 WorldPort, under this Agreement, commits a minimum traffic volume of
[**], over a period of [***] (the "Initial Term") commencing on the
in-service date (the "Effective Date") of the transmission facilities
between WorldPort and AACR as defined in Section 4.1.1.
3. RATES AND CONDITIONS.
3.1 Rates, Minimum Volume and Billing
3.1.1 AACR will charge WorldPort for traffic delivered pursuant to this
contract at a per minute rate of [*] for completed calls only,
billed in [**] increments. In the event that WorldPort prepays
the equivalent of [**] according to the schedule in Section 3.2.1
below and delivers its traffic to AACR in [****] the rate
applicable under this Agreement shall be [*] per minute.
3.1.2 For each month during the Initial Term, WorldPort commits to
maintain a minimum traffic volume ("Minimum Volume") to AACR
based on the following schedule:
[***] [**]
[***] [**]
[***] [**]
[***] [**]
[***] [**]
3.1.3 Every month AACR will issue to WorldPort a bill for the greater
of (i) the total of the conversation minutes sent by WorldPort,
billed in [**] increments or (ii) the Minimum Volume for the
applicable month according to the schedule set forth in section
3.1.2. Payment shall be due 30 days after WorldPort's receipt of
the bill, less any legitimate disputes, which must be raised
within 45 days of the invoice date.
3.1.4 If the actual traffic sent by WorldPort in any month is below the
volume of the applicable month according to the schedule set
forth in section 3.1.2., this shall be deemed a "Volume
Shortfall". The Volume Shortfall will be adjusted with those
minutes in excess sent by WorldPort in any other month.
3.1.5 All differences between the bills issued by AACR and WorldPort's
books and records shall be cleared within a thirty (30) day
period. Both parties will endeavor to reduce those differences
to a minimum. In the event that differences of more than 7% of
the entire bill persist for more than three months, the parties
will hire a third party qualified expert to clear the
differences. The party responsible for the difference will pay
cost and expenses of the expert.
3.2 Deposit
3.2.1 Under this Agreement, WorldPort shall be required to deposit [*]
equivalent to [**] minutes. The deposit shall be transferred by
WorldPort to AACR at the rate of [*] per month for the first
[***] following the Effective Date.
In the event of default by WorldPort in its performance under this
Agreement which is not cured by WorldPort within ten (10) days, the
Deposit may be executed by AACR.
3.2.2 The parties agree that the nature of the deposit required by AACR
is equivalent to approximately one (1) month of minimum billing
as set forth in section 3.1.2 herein.
3.2.3 Under no circumstance shall the deposit hereby agreed between the
parties be deemed to constitute a loan to AACR, an equity
participation in AACR or ownership in AACR shares.
3.3 Miscellaneous
3.3.1 WorldPort agrees not to solicit any non-facilities based carriers
already under contract with AACR.
3.4 In the event of a material breach of this Agreement by WorldPort of
Section 3.1.3(Payment terms) or Section 3.1.2 (minimum traffic
volumes) above, the parties will endeavor to remedy the situation. In
the event that the material breach by WorldPort of Section 3.1.3 or
Section 3.1.2 continue for more than one month, the following remedies
will apply:
3.4.1 AACR will apply the outstanding due bill to the WorldPort
deposit.
3.4.2 During the period starting the first day of the month of the
traffic volume breach, (in the event of a violation of Section
3.1.2), AACR will continue to bill WorldPort the Minimum Volume
under the same rate and conditions set forth.
3.4.3 If the material breach of Section 3.1.3 continues for three (3)
consecutive months, the terms and conditions granted hereunder by
AACR to WorldPort will cease.
4. FACILITIES.
4.1 Transmission Facilities
4.1.1 As soon as practicable after signing this Agreement, WorldPort
shall provide AACR, with a forecast of facilities needs. The
parties commit to install facilities using La Mona I transmission
systems in order to ensure a service level of P.01. WorldPort
will be responsible to extend its transmission facilities in T-1
format to meet AACR facilities at the [****]. The Effective Date
shall be that date on which WorldPort's transmission facilities
are fully connected to AACR facilities at PRTC and both parties
have completed all testing required to ensure proper transmission
between facilities.
Under this section, the parties agree that WorldPort is responsible
for the installation costs and monthly rent charges for any of the
terrestrial links of its transmission facilities to meet AACR system
in [****] The parties also agree to share in proportion to the
facilities used the maintenance and operations cost charged by LaMona
systems.
4.1.2 AACR commits to provide to WorldPort the required transmission
capacity between [****] and the Dominican Republic following an
activation schedule to be executed according to the growth of the
traffic. In order to optimize the use of facilities both between
USA mainland and [****] and [****] and the Dominican Republic,
both parties will compress the voice channels on both ends. Each
party will bear the cost of the compression equipment used on
their own facilities.
5. EFFECTIVE DATE AND TERMINATION.
5.1 Effective Date
This Agreement shall become effective upon the Effective Date
referenced in Section 2.2 above. All other provisions of this
Agreement shall be effective upon the signature of this Agreement.
5.2 Term.
This Agreement shall have a term of [***] from the Effective Date, and
shall automatically renew for successive periods of [***] ("Renewal
Periods") unless either party gives the other 120 days notice prior to
the expiration hereof. In the event of such termination notice, the
Agreement, including all provisions, shall continue in force until the
deposit is used up by application of monthly service bills or 180 days
after the termination notice date, whichever occurs first.
6. AFFILIATION.
6.1 The relationship between AACR and WorldPort under this Agreement shall
be solely that described herein in the joint provisions of
international long distance services for calls terminated in the
Dominican Republic. Nothing contained herein shall be deemed to
constitute a partnership or joint venture between the parties, and the
common enterprise of the parties shall be limited to the express
provisions of this Agreement.
7. PREVIOUS AGREEMENTS.
7.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes and cancels
any and all prior verbal or written agreements.
8. ASSIGNMENT.
8.1 Neither party shall assign or transfer all or any portion of its
rights and obligations under this Agreement (other than to a wholly-
owned subsidiary) without the prior written consent of the other
party.
9. EXECUTION.
9.1 This Agreement shall be executed in two counterparts in English, each
of which shall be considered an original with identical legal effect.
10. SEVERANCE.
10.1 If any provision of this Agreement for any reason and to any extent is
held to be invalid or unenforceable, then neither the remainder of the
Agreement nor the application of the provision to other persons,
entities, or circumstances shall be affected, but instead shall be
enforceable to the maximum extent permitted by law.
11. MODIFICATIONS.
11.1 This Agreement may not be amended, modified or changed, nor shall any
waiver of any provision hereby be effective, except only by an
instrument in writing and signed by the party against whom enforcement
of any waiver, amendment, change, modification or discharge is sought.
12. CONFIDENTIALITY.
12.1 The provisions of this Agreement, as well as its existence, shall be
considered confidential by the parties, and shall be protected to the
same extent as they would protect their own confidential information.
Disclosure to third parties shall not be permitted unless agreed to in
writing by the other party. AACR acknowledges that WorldPort must
disclose the existence, duration and potential liability of this
Agreement in its regular filings with the U. S. Securities & Exchange
Commission, and AACR hereby consents to such disclosure. With the
exception of such SEC filings, total or partial disclosure of this
Agreement by WorldPort to any third party without the consent in
writing of AACR to WorldPort, will constitute an event of default and
consequently the execution of the deposit.
13. CONFLICTS.
13.1 The parties agree that this Agreement shall be governed by the laws of
the State of Florida. In the event of a conflict resulting from the
interpretation of this Agreement, the parties will endeavor to find a
solution and remedy the situation. In the event the conflict cannot
be solved within a reasonable time frame, the controversy will be
settled by binding arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, then in
effect.
14. NOTICES.
14.1 Notices shall be made by facsimile or electronic mail or by overnight
courier to the addresses referenced above, or to such other addresses
as the parties may provide from time to time. All notices shall be
considered effective upon receipt.
IN WITNESS THEREOF, the parties hereto have severally subscribed these
presents, or caused them to be subscribed in their name and behalf by their
respective officers thereunto duly authorized.
ALL AMERICAN CABLES & RADIO, INC.
/s/ Alvaro Nadal
Mr. Alvaro Nadal
Executive Vice President
WORLDPORT COMMUNICATIONS, INC.
/s/ John W. Dalton
Mr. John W. Dalton
President & Chief Executive Officer
CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR
WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [*] [**] [***] OR
[****]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
EXHIBIT 10.32
COMMISSION AGREEMENT
This Agreement is made this 12th day of November, 1997 by and between ARBITEL, a
Company created under the laws of the Isle of Man, with a principal address at
Africa House, Woodbourne Road, Douglas, Isle of Man IM99 1AW represented herein
by its Director, Wendy Nicolau de Almeida Baines, and
WorldPort Communications, Inc. ("WorldPort") a Delaware corporation with its
principal offices at 9601 Katy Freeway, Suite 200, Houston, Texas, USA,
represented herein by its President and Chief Executive Office, Mr. John W.
Dalton.
WHEREAS, ARBITEL has introduced WorldPort to All American Cables & Radio, Inc. a
Dominican Republic corporation ("AACR") and assisted WorldPort in negotiating a
Service Contract of even date herewith with AACR for the termination of
international long distance minutes in the Dominican Republic (the "Service
Contract"), and;
WHEREAS, WorldPort intends to transmit an important volume of telephone calls to
the Dominican Republic pursuant to that Service Contract;
NOW, THEREFORE, THE PARTIES HAVE AGREED AS FOLLOWS:
1. COMMISSION FOR SERVICES RENDERED.
1.1 WorldPort agrees to compensate ARBITEL for services rendered in respect
to the successful closing of the Service Contract with a commission
equal to [*] per minute for each minute transmitted by WorldPort to
AACR pursuant to the Service Contract, for the duration of the
Initial Term of the Service Contract plus any Renewal Periods thereof.
2. PAYMENT TERMS.
2.1 WorldPort agrees that within 30 days of the Effective Date, as such
date is defined in the Service Contract, it will make an advance
commission payment to ARBITEL (the "Advance Payment') in the amount
of [*] (calculated as [*] x [**] committed minutes).
2.2 WorldPort agrees that during the Term of the Service Contract,
WorldPort will pay to ARBITEL, at the same time that it pays
AACR invoices pursuant to Section 3.1.3 of such Service Contract,
the commission described in section 1.1 herein net of the
Advance Payment, or [*] per minute.
2.3 WorldPort further agrees that the net commission payment made
pursuant to section 2.2 above, shall be made in cash in U.S.
Dollars. [*]
3. TERM.
3.1 This Commission Agreement shall have a term equal to the Initial Term
of the Service Contract plus any extensions thereof.
4. REFERENCES TO THE SERVICE CONTRACT
4.1 All capitalized terms and references herein to the Service Contract
shall have the meanings as defined in such Service Contract.
5. NOTICES AND PAYMENT.
5.1 All Notices and Payments made between the parties shall be made to the
addresses above, unless one party notifies the other of a different
address or different payment method (such as wire transfer) in writing.
6. PREVIOUS AGREEMENTS.
6.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes
and cancels any and all prior verbal or written agreements.
7. ASSIGNMENT.
7.1 Neither party shall assign or transfer all or any portion of its rights
and obligations under this Agreement (other than to a wholly-owned
subsidiary) without the prior written consent of the other party.
8. EXECUTION.
8.1 This Agreement shall be executed in two counterparts in English, each
of which shall be considered an original with identical legal effect.
9. SEVERANCE.
9.1 If any provision of this Agreement for any reason and to any extent
is held to be invalid or unenforceable, then neither the remainder of
the Agreement nor the application of the provisions to other persons,
entities, or circumstances shall be affected, but instead shall be
enforceable to the maximum extent permitted by law.
10. MODIFICATIONS.
10.1 This Agreement may not be amended, modified or changed, nor shall any
waiver of any provision hereby be effective, except only by an
instrument in writing and signed by the party against whom enforcement
of any waiver, amendment, change, modification or discharge is sought.
11. CONFIDENTIALITY.
11.1 The provisions of this Agreement, as well as its existence, shall be
considered confidential by the parties, and shall be protected to the
same extent as they would protect their own confidential information.
Disclosure to third parties shall not be permitted unless agreed to
in writing by the other party.
12. CONFLICTS.
12.1 The parties agree that this Agreement shall be governed by the laws of
the State of Florida. In the event of a conflict resulting from the
interpretation of this Agreement, the parties will endeavor to find a
solution and remedy the situation. In the event the conflict cannot be
solved within a reasonable time frame, the controversy will be settled
by binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, then in effect.
IN WITNESS THEROF, the parties hereto have severally subscribed these presents,
or caused them to be subscribed in their name and behalf by their respective
officers thereunto duly authorized.
ARBITEL
/s/ Wendy Nicolau de Almeida Baines
Wendy Nicolau de Almeida Baines
Director
WORLDPORT COMMUNICATIONS, INC.
/s/ Mr. John W. Dalton
Mr. John W. Dalton
President & Chief Executive Officer
CONFIDENTIAL TREATMENT REQUESTED FOR PORTIONS OF THIS DOCUMENT. PORTIONS FOR
WHICH CONFIDENTIAL TREATMENT IS REQUESTED ARE DENOTED BY [*] [**] [***]
[****] OR [*****]. MATERIAL OMITTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.33
CARRIER SERVICE AGREEMENT
This Carrier Service Agreement (the "Agreement"), is entered into this
1st day of May and effective as of January 1, 1997 (the "Effective Date"),
between Telenational Communications Limited Partnership ("Company"), a Nebraska
limited partnership, with its principal place of business at 7300 Woolworth
Avenue, Omaha, Nebraska, 68124, and Telenational Communications Deutschland
Limited Partnership, (the "Customer"), a Nebraska Limited Partnership, with its
principal place of business at Ballindamm 13, 20095 Hamburg, Germany. This
Agreement replaces the Exclusive Representation Agreement dated February 24,
1993 (and addenda thereto) between Telenational Communications Deutschland
Limited Partnership and TESI, a division of Telenational Communications Limited
Partnership. The parties agree as follows:
1. Description of Services. Company shall provide Customer with
certain switched and/or dedicated telecommunications Services (the "Services")
as described in Exhibit A attached hereto. Company shall maintain at all times
during this Agreement and provide Customer with a copy of the Company's FCC
Certification and such other documents which evidence Company's qualifications
to provide telecommunications Services. Customer shall provide Company with
such certification, governmental consent, authorization , license or other
approval required by the laws or regulations governing Customer, evidencing
Customer's authority to conduct business in the countries states and/or
territories set in Exhibit A, if applicable.
2. Term; Termination.
2.1 Customer agrees to subscribe for the Services for a period
of [***] from the Effective Date (the "Initial Term"). This Agreement may be
terminated by either party by written notice to the other party at least ninety
(90) days prior to the expiration of the Initial Term or any Additional Term.
If no notice of termination is given prior to the expiration of the Term, this
Agreement shall be automatically renewed for successive [***] periods
("Additional Term" or "Additional Terms", together with the Initial Term,
"Term").
2.2 Either party may terminate this Agreement by written notice
if the other party is the subject of a bankruptcy order, or becomes insolvent,
or makes any arrangement or composition with or assignment for the benefit of
its creditors, or if any of the other party's assets are the subject of any form
of seizure or goes into liquidation either voluntary (otherwise than for
reorganization or amalgamation) or compulsory or if a receiver or administrator
is appointed over its assets (or the equivalent of any such event in the
jurisdiction of the other party).
2.3 This Agreement may be terminated upon notice of termination
if there occurs any of the following events:
2.3.1 Either party makes any material misrepresentation
relating to the provision of the Services or charges for the Services
as agreed to herein and as represented in all exhibits attached
hereto.
2.3.2 Either party breaches a material obligation, which is
not cured within 30 days.
2.4 Customer may immediately terminate this Agreement or that
part of the Agreement relating to a Service, a portion of a Service or a
program;
2.4.1 If any Service is interrupted or materially impaired
for a period of 5 (five) consecutive days or ten (10) days in any
sixty (60) day period not withstanding cause.
2.4.2 If any Service provided by Company does not meet CCITT
standards.
2.4.3 The Company's failure, after notice by the Customer, to
assure the continuity of effective fraud control measures, as provided
in Section 3.3; or
2.4.4 Either party's failure to maintain the certifications
required by Section 1.
2.5 Upon expiry or termination of this Agreement or any Service
or Program provided under it:
2.5.1 The rights of the parties accrued up to the date of
expiry or termination shall remain unaffected;
2.5.2 The Company shall cooperate fully in the handover of
said Services to another carrier or provider including but not limited
to the handover of dedicated (D Numbers as set out on Exhibit F
attached hereto) toll free access numbers to the Customer where
numbers are dedicated to Customer.
2.5.3 Customer shall pay all undisputed amounts outstanding
to Company
2.5.4 Company shall provide Service until such time as
Services can be handed over to another provider and shall be paid by
Customer at rates of the then current year until such handover is
completed, provided that the Company's responsibilities for such
handover shall be accomplished within 90 days after the event
requiring such handover.
3. Services and Payment.
3.1 Customer will pay to Company monthly recurring and
nonrecurring charges for the Services as set forth in Exhibit B attached hereto
(the "Usage Fees"). Usage Fees will be reviewed and agreed to on an annual
basis by both parties, beginning on October 1, 1997, and continuing each October
thereafter. In the event that the parties cannot agree on the Usage Fees prior
to December 1 of any year, the provisions of Section 14 shall govern.
Notwithstanding the immediate preceding sentence, based on Company's prevailing
rates from its providers warranted by Company, Company may adjust per minute
prices if said prices are changed by Company's provider with ten (10) days
written notice to Customer. At the request of the Customer at any time, based
on prevailing market factors and conditions, the Company shall adjust Usage Fees
to insure that such Usage Fees are competitive with fees charged by third
parties for the same Services or to insure that Customer remains competitive in
its markets. If such obligation is not met, Customer reserves the right to
terminate affected Services or routes subject to Section 14. This section is
subject to Section 14 of this Agreement.
3.2 Taxes. Customer acknowledges and understands that the Usage
Fees are computed by Company exclusive of any federal, state, local or VAT taxes
or other documented taxes including use, excise, gross receipts, sales and
privilege taxes, duties,(other than general income or property taxes), charged
to or against Company or Customer for the specific services furnished to
customer that may be due by Customer to authorities. Customer shall be
responsible for VAT and other applicable taxes based on usage by its
subscribers. Company shall be responsible for payment of all taxes not directly
attributable to Customer.
3.3 Fraudulent Calls.
3.3.1 Company shall insure that effective fraud control
mechanisms are applied throughout the term of this Agreement as set
out in Exhibit C attached hereto. Such mechanisms shall include, but
not be limited to, provision of Call Exception reports which detail
abnormally high usage on cards or abnormal calling patterns. Such
reports shall be provided on a timely basis and shall be provided to
Customer either as such events occur or on a weekly basis, whichever
is more frequent.
3.3.2 Subject to Section 3.3.1, and except as provided
herein, Customer shall defend, indemnify and hold Company harmless
from all damages, liabilities, awards, penalties, costs, expenses
(including reasonable attorneys' fees and settlement payments),
arising from claims or actions which may comprise a portion of the
Services to the extent that the party claiming the call(s) in question
to be fraudulent is (or had been at the time of the call) an end-user
of the Services through Customer's distribution channels. Fraudulent
use, includes without limitation, using outbound long distance to
transmit a message with the intent to avoid payment, or using
fraudulent means or devices, false numbers, false electronic devices,
tampering with or making connections not authorized by Company.
Additionally, should a card be reported lost or stolen, Company
guarantees that it will deactivate said card number within two (2)
hours of said report which shall be date and time stamped and any
subsequent usage on said card shall be the responsibility of Company.
Customer shall not be excused from paying Company for Services
provided to Customer relating to fraudulent use or any portion thereof
on the basis that fraudulent use comprised a corresponding portion of
the Services nor shall Company be excused from liability on fraud or
misuse where a lost or stolen report has been filed and Company has
failed to deactivate card.
3.4 Payment Obligations. Company will invoice Customer monthly
for Fees, Additional Charges and other related charges referenced hereunder.
Customer will pay in full each invoice for Services within fifteen (15) days of
the invoice date, said invoice to be delivered electronically to customer on
invoice date and mailed to customer via overnight mail on said date. If payment
is not received in full by Company on or before such date, Customer also shall
pay a late fee in the amount of the lesser of one and one-half percent (1-1/2%)
of the unpaid balance per month, provided, however that CDRs have been delivered
as set out in Exhibit E attached hereto. In the event of nonpayment by Customer
when due of any amount billed by Company hereunder, Company shall be entitled to
commence an action to collect any amounts due and to exercise any legal rights
it may possess against Customer under this Agreement or applicable law.
3.4.1 Customer shall post a letter of credit "LOC" in the
amount of one and one half (1-1/2) month's estimated Usage Fees for
the Services as agreed upon between the parties. This amount will be
reviewed on a quarterly basis and adjusted appropriately or, at
Customer's option, the parties will utilize a lockbox agreement as set
out in exhibit D that is agreeable to both parties.
3.4.2 Company agrees to process credit card transactions for
Customer under its Merchant Account and deposit said funds into
Customer's designated account until such time as Customer establishes
its own Merchant Account. Customer agrees to pay Mastercard, Visa and
American Express processing fees for said transactions and remains
liable for chargebacks on processed accounts.
3.5 Billing Discrepancies. Any billing discrepancies identified
by Customer shall be presented in writing to Company in reasonable detail within
ninety (90) days of the date of the invoice in question. Company shall not be
obligated to consider any Customer notice of billing discrepancies which are
received by Company more than ninety (90) days following the date of the invoice
in question. Any amounts which are determined to be in error based on actual
documented call detail records, will be credited to the Customer account within
120 days of the invoice in question with any applicable interest at 1 1/2% and
any other rebates based on taxes or other charges that are incurred based on the
Services provided. Requests for adjustment by Customer shall not be cause for
delay in payment by Customer of any balance due.
3.6 Subscriber Billings. Company shall bill Customer once per
month for subscriber ("Subscriber") and end-user ("End-User") (both defined as
the customer of Customer), usage of the Services and other sums due Company
hereunder. Company billing shall represent "monthly" usage and End-Users
assigned to that billing cycle, except for new Subscribers and End-Users
assigned during a month whose usage will be for a partial month. CDRs shall be
made available on a weekly basis and three days after the last day of each
month, Company shall furnish Customer with CDRs (Call Detail Records) in a
format and method as specified in Exhibit E attached hereto supported by a
summary level only paper invoice (both the CDR and the paper invoice hereinafter
collectively referred to as the "Customer Invoice").
4. Call Detail Records. Call Detail Records ("CDRs") shall be
retained by Company for a period of one year either on tape or disc format.
Archived CDRs shall be made available for review by Customer upon fifteen 15
days notice during normal working hours. Call Detail Records shall be provided
with the information and in the format as set out in Exhibit E attached hereto.
5. Company Name. Customer retains all rights to use Company's and
Customer's name and trademarks (Telenational Communications Deutschland, TNCD,
TNC, Telenational) or any derivation thereof within Germany and on promotional
materials and literature issued in Germany through the term of the Agreement.
Up until that time, Customer also has the right to transfer the name to Company,
after which time the Company may not use such name or derivation thereof for any
purpose for a period of one year. Customer may use other brand names for the
Services its provides under this Agreement while still utilizing Company's
Services. Company agrees that it will not sell its Services in Germany under
Company's name or trademarks or any derivative thereof (Telenational
Communications, Telenational, TNC, Telenational Communications Limited,
Telenational Communications Deutschland,) for one year after termination or
expiration of this Agreement; provided however, that both parties may sell
services and products in Germany under brand names other than those set forth
above.
6. Card Subscribers and Clients. All Subscribers and end users
including database accounts, that have been or are acquired by Customer shall be
the sole property of Customer. Company, its affiliates, representatives,
affiliates, agents, and successors, will not, during the term of this Agreement
and subsequent to termination, solicit business from such subscribers and
clients. During the term that Company provides services to Customer's
customers, Company may utilize as references, the names of, but not contact
without prior written approval of Customer, Customer's customers or clients.
After termination, all Subscriber and End User Records will be the sole property
of the Customer. The responsibilities for billing as and all respective
subscriber balances are the property and responsibility of Customer as of
January 1, 1997 and all such balances will accordingly be applied to the books
and general ledger of Customer.
6.1 Subscribers and End Users that fall under the contract with
Schipol as set out in Appendix 2 attached hereto and any new customers shall be
subject to the terms and condition of Appendix 2.
7. Dedicated Access Numbers. Company shall assign all toll-free
numbers as set out in Exhibit F, to Customer and shall insure that any new
programs are placed on the toll-free numbers owned by Customer. Customer has
the right to acquire its own toll-free numbers and direct those to the Company
if it so desires in which case, Customer shall bear the total cost for said
lines. Any future assignments of toll-free numbers will be exclusive, where
possible, to Customer for Customer programs at the option of Customer.
8. Billing Software. Current software utilized will be In-Touch
software as currently provided by Company and any software which Customer may
choose subsequently. Customer will, during the term of this Agreement, pay all
costs for its billing system.
9. LIMITED WARRANTY. THIS AGREEMENT IS A CONTRACT FOR SERVICES,
WHICH WILL BE PROVIDED IN ACCORDANCE WITH THE SPECIFICATIONS DESCRIBED ON
EXHIBIT A ATTACHED HERETO. EXCEPT AS PROVIDED IN THIS AGREEMENT COMPANY MAKES
NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES
PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
10. Provision of Service and Interruption of Service. Company
shall provide the Services to Customer in accordance with CCITT standards for
international transmission and Operator Services dealing with Grade of Service,
Quality of Service, and Transmission Quality as well as any other standards
commonly accepted by the telecommunications industry. Company shall provide
alternate termination carrier routing 24 hours a day, 7 days a week, maintenance
and bypass networks in the event a primary carrier's network Service is
interrupted. IT IS UNDERSTOOD AND AGREED BETWEEN THE PARTIES THAT COMPANY DOES
NOT GUARANTY THE UNINTERRUPTED OPERATION OF ITS SERVICES. Company shall not be
held liable in the event of disruption of Service caused by a foreign operating
entity or PTT, by the deactivation of a toll free number by the foreign entity
or PTT, or in the event of a foreign operating entity or PTT declaring the
Service illegal. Company agrees to pay its carriers as required to insure that
no Services shall be cut off due to nonpayment by Company.
11. LIMITATION OF LIABILITY. EXCEPT AS SET FORTH HEREIN,
CUSTOMER AGREES THAT COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS, REVENUES, OR
ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR THE
LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM USE OF OR INABILITY
TO USE THE SERVICES PROVIDED HEREUNDER EITHER SEPARATELY OR IN COMBINATION WITH
OTHER OF CUSTOMER'S SERVICES. FURTHER, COMPANY SHALL NOT BE RESPONSIBLE FOR
PERSONAL INJURY OR PROPERTY DAMAGE TO CUSTOMER'S PROPERTY OR THE PROPERTY OF
THIRD PARTIES EXCEPT AS MAY BE CAUSED BY GROSS NEGLIGENCE OR INTENTIONAL
WRONGFUL ACTS BY COMPANY OR ITS AGENTS AND SHALL INDEMNIFY AND HOLD HARMLESS
COMPANY FROM ANY LOSS OR EXPENSE, INCLUDING ATTORNEY'S FEES RESULTING FROM SUCH
CLAIMS BY THIRD PARTIES AGAINST COMPANY.
12. INDEMNIFICATION. EACH PARTY SHALL DEFEND, INDEMNIFY AND
HOLD THE OTHER PARTY HARMLESS FROM AND AGAINST ALL CLAIMS, SUITS OR PROCEEDINGS,
AND PAY ANY SETTLEMENT AMOUNTS OR DAMAGES AWARDED BY A COURT, ARISING OUT OF
CLAIMS BY THIRD PARTIES REGARDING OR RELATING TO THE USE OF THE SERVICES OR
OTHERWISE ARISING UNDER THIS AGREEMENT, FOR WHICH THE OTHER PARTY IS
RESPONSIBLE.
13. Confidentiality.
13.1 Confidential Information. During the term of this
Agreement, each party will provide to the other party, and each party will come
into possession of, information relating to the other party's business which is
considered confidential (the "Confidential Information"). Confidential
Information shall include, without limitation, this Agreement and its terms,
information marked confidential, all of each party's trade secrets and all of
each party's confidential or proprietary data, Customer lists and information
relating to its business, operations or finances. The receiving party shall use
the same degree of care as it uses to protect its own Confidential Information
of like nature, but no less than a reasonable degree of care, to maintain the
Confidential Information of the disclosing party. The foregoing obligations
shall not apply to any information that (i) is publicly known at the time of its
disclosure (except when publicly known by virtue of a violation of this
Agreement), (ii) is lawfully received by the receiving party from a third party
not under an obligation of confidentiality to the disclosing party, (iii) is
published or otherwise made known to the public by the disclosing party, or (iv)
was generated independently by the receiving party before disclosure by the
disclosing party.
13.2 Restrictions. During the term of this Agreement and after
the termination hereof or as otherwise permitted by law, each party shall not in
any manner or form, directly or indirectly, disclose any Confidential
Information of the other party to any person or entity, or permit any person or
entity to disclose, use, examine or reproduce such Confidential Information,
except for disclosure, use, examination and reproduction during the term of this
Agreement as necessary to perform this Agreement, Each party shall promptly
notify the other party in writing of any unauthorized disclosure, use,
examination or reproduction of Confidential Information by any person or entity
of which such party has knowledge. If a court with proper jurisdiction or
another governmental agency with proper jurisdiction orders a party to disclose
the other party's Confidential Information, that party will immediately inform
the other party of the order before responding thereto.
13.3 Remedies. Each party acknowledges that its breach of this
section will cause the other party irreparable damage which could not be
remedied solely by the imposition of damages, and therefore, in the event of
such breach by one party the other party shall be entitled to seek and receive
injunctive relief, both temporary and permanent provided that such remedy shall
not be exclusive and shall not prevent such party from seeking and receiving
monetary damages in addition to injunctive relief The remedies referenced in
this section are cumulative and in addition to any other relief to which the
parties may be entitled.
14. Right of First Refusal. At such time as Customer implements
a new program, continues an existing program or contract with a provider other
than Company, Customer shall submit in writing to Company a Request for Proposal
for any such program or Service. Company shall have twenty (20) working days to
respond with rates for said program, at which time, Customer shall be free to
choose either Company or any other party to provide Services set out in
Customer's Request for Proposal, provided, however, if Company can provide the
Services at a lower rate or equal to that of other providers and provide all the
Services proposed by other providers at the same or higher level of quality,
said information war-ranted by Customer. Company shall have the first right of
refusal on said business. Company shall have such first right of refusal on
Services as set out in Exhibit A.
15. Compliance with Law. Company and Customer represent and
warrant that they will comply with all federal, state and local laws,
regulations and ordinances by which it is governed.
16. Notices. Any notices required or permitted to be given
hereunder shall be deemed served for all purposes when sent by overnight courier
or by certified mail, return receipt requested, to each party at its address
below:
If to Company:
Bruce G. Burton
President
Telenational Communications
7300 Woolworth Avenue
Omaha, Nebraska 68124
(402) 392-1110
If to Customer:
Wolfgang Weinschrod
President
Telenational Communications
Deutschl and Ballindamm
13 Hamburg, Germany 20095
49 40 3258 1171
or at such other address of which a party gives the other party notice
hereunder.
17. Force Majeure. In no event shall Company or Customer be
liable for delay in the performance or delivery of Services, or for any damages
suffered by Company or Customer when any delay or nonperformance is due to
causes beyond Company's control, including, but not limited to, acts of God,
fire, strikes, floods, epidemics, quarantine restrictions, war, insurrection or
riot, civil or military authority, compliance with priority orders or preference
rating issued by any federal, state or other governmental authority.
18. Advertising. The parties agree that any press release,
advertisement or publication generated by a party which includes the name of the
other party specifically regarding this Agreement will be submitted to the
nonpublishing party for its written approval prior to publication.
19. Entire Agreement; Modifications. This Agreement, together
with all exhibits attached hereto, constitutes the entire Agreement and
understanding between the parties hereto pertaining to the subject matter
hereof. This Agreement may not be modified or supplemented except by written
Agreement executed by the parties hereto.
20. Waiver. The failure of a party to enforce a provision of
this Agreement shall not be construed as a general or specific waiver of that
provision, nor shall it affect the validity of this Agreement or a party's right
to enforce this Agreement.
21. Severability. In the event that a court with proper
jurisdiction or another governmental agency with proper jurisdiction issues an
order finding that an immaterial provision of this Agreement is unlawful, that
particular provision will not be effective and will be severed from this
Agreement but the remaining provisions of this Agreement will continue in effect
and will bind the parties. In the event that a court with proper jurisdiction
or another governmental agency with proper jurisdiction issues an order finding
that this Agreement, as a whole, is unlawful or may not be enforced, this
Agreement will terminate and both parties will be excused from all further
performance hereunder.
22. Assignment; Binding Effect. This Agreement is not
assignable by either party hereto without the prior written consent of the other
party, which consent shall not be unreasonably withheld, except to an entity
that is acquiring all or substantially all of a party's business or to an entity
that controls, is controlled by, or is under common control with, the assigning
party and which agrees to comply with and be bound by this Agreement. This
Agreement shall be binding upon and inure to the benefit of the parties, their
successors-in-interest and permitted assigns.
23. Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of Nebraska.
24. Arbitration. All disputes or claims arising out of, or in
any way relating to this Agreement shall be submitted to and determined by final
and binding arbitration under the rules of the American Arbitration Association.
Arbitration proceedings may be initiated by either party hereto upon notice to
the other party hereto upon notice to the other party and to the American
Arbitration Association, and shall be conducted by three arbitrators under the
rules of the American Arbitration Association in Omaha, Nebraska provided,
however, that the parties may agree following the giving of such notice to have
the arbitration proceedings conducted with a single arbitrator. The notice must
specify in general the issues to be resolved in any such arbitration proceeding.
The arbitrators shall be selected by Agreement of the parties to the arbitration
proceeding from a list of five or more arbitrators proposed to the parties by
the American Arbitration Association, or may be persons not on such list as
agreed to by the parties. If the parties to the arbitration proceeding fail to
agree on one or more of the persons to serve as arbitrators within fifteen days
after delivery to each party hereto of the list as proposed by the American
Arbitration Association, then at the request of any party to such proceeding,
such arbitrators shall be selected at the discretion of the American Arbitration
Association. Where the arbitrators shall determine that an arbitration
proceeding was commenced by a party frivolously or without a basis, or primarily
for the purpose of harassment or delay, the arbitrators may assess such party
the cost of such proceedings including reasonable attorneys' fees of the other
party. In all other cases, each party to the arbitration proceeding shall bear
its own costs and its pro-rata share of the fees and expenses charged by the
arbitrators and the American Arbitration Association in connection with any
arbitration proceeding.
25. Captions. The captions appearing in this Agreement are
included solely for convenience of reference and shall not be construed or
interpreted to affect the meaning or interpretation of this Agreement.
26. Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original.
27. Definitions.
CDR: Call Detail Records as defined in Exhibit E.
CALL TYPE: Type of call by code including: operator services
time, Customer service time, Completed call time,
Unbillable call time.
OPERATOR SERVICES TIME: The amount of time an operator is on the line to
assist Customer.
SUBSCRIBER/END USER: A "customer of Customer" that utilizes Services
contracted for by Customer with Company.
DEDICATED ACCESS NUMBERS: Toll-free numbers for access to the Company's
platform or Services that are assigned to
Customer.
BILLING SOFTWARE: In-Touch software used by Customer for billing
subscribers or other software as selected by
Customer.
USAGE FEES: Costs per second and/or minute as set out in
Exhibit A and Exhibit B and additional costs as
set out therein.
OUTBOUND LONG DISTANCE: Calls that have accessed the system with a valid
users code or id and have been terminated at a
determined location.
HANDOVER: Transfer of Services provided to Customer.
IN WITNESS WHEREOF, the parties hereto have executed two (2) original
copies of this Agreement on the date first above written.
TELENATIONAL COMMUNICATIONS LIMITED
PARTNERSHIP, a Nebraska limited partnership
By:
Bruce G. Burton, President
TELENATIONAL COMMUNICATIONS DEUTSCHLAND
LIMITED PARTNERSHIP, a Nebraska limited
partnership
By: Telenational Communications Deutschland
Corporation
By:
Wolfgang Weinschrod, President
EXHIBIT A
Description of Services
Company shall provide the following prepaid and postpaid calling card Services:
USA Domestic Outbound
USA Domestic Inbound
international Outbound
International Inbound
USA Inbound
USA Outbound
Multilingual Operator Services English, German, French, Spanish, regardless
of card platform or Service provider at the option of Customer
Multilingual VRU in the same languages as specified for operators at the
option of Customer
Voice mail, follow-me, fax services
Customer may determine call processing method utilized for dedicated numbers and
new programs. Shared numbers will be reevaluated based on usage at the request
of Customer
EXHIBIT B
Usage Fees
Usage fees will be charged based on all CDRs and documented Customer utilization
of services and billed based on seconds of usage. Required documentation for
billing is set out in the attached Exhibit E and Appendix 1 as agreed by both
parties.
AUTOMATED CALL PROCESSING
Monthly Completed Call Volume Rate Per Completed Call
[**] [*]
[**] [*]
[**] [*]
[**] [*]
[**] [*]
OPERATOR ASSISTANCE CALL PROCESSING:
Monthly Call Volume (Attempts) Rate Per Work Second
[**] [*]
[**] [*]
[**] [*]
[**] [*]
[**] [*]
Usage Fees
[*]
Per minute usage fees are as listed below and billed based on [*].
When usage occurs in countries not listed herein, rates will be established
based on the terms and conditions of this Agreement.
INBOUND COSTS USING GREENLINE
WHERE POSSIBLE AND AFTER
PORTING TO BE COMPLETED
COUNTRY COST
ARGENTINE RE [*]
ARUBA [*]
AUSTRALIA [*]
AUSTRIA [*]
BAHAMAS [*]
BANGLADESH [*]
BELGIUM [*]
BERMUDA [*]
BOLIVIA [*]
BRAZIL [*]
CANADA [*]
CHILE [*]
CHINA [*]
COLOMBIA [*]
COSTA RICA [*]
CROTIA, REP [*]
CUBA [*]
CYPRUS [*]
DENMARK [*]
DOMINICAN RE [*]
EGYPT [*]
EL SALVADOR [*]
ETHIOPIA, D [*]
FINLAND [*]
FRANCE [*]
GAMBIA [*]
GERMANY [*]
GREECE [*]
GUADELOUPE [*]
GUAM [*]
HAITI [*]
HONG KONG [*]
HUNGARY [*]
INDIA [*]
INDONESIA [*]
IRELAND [*]
ISRAEL [*]
ITALY [*]
JAPAN [*]
JORDAN, AMM [*]
KENYA, LANG [*]
KOREA REPUBL [*]
LUXEMBOURG [*]
MALAWI [*]
MALAYSIA [*]
MALTA [*]
MAURITIUS [*]
MEXICO [*]
MOROCCO [*]
MOZAMBIQUE [*]
MYANMAR [*]
NETHERLANDS [*]
NEW ZEALAND [*]
NICARAGUA [*]
NIGERIA [*]
NORWAY [*]
OMAN [*]
PAKISTAN [*]
PAPUA NEW GU [*]
PARAGUAY [*]
PERU [*]
PHILIPPINES [*]
POLAND [*]
PORTUGAL [*]
RUSSIA [*]
SAIPAN [*]
SAUDI ARABIA [*]
SEYCHELLES [*]
SINGAPORE [*]
SLOVENIA, RE [*]
SOUTH AFRICA [*]
SPAIN [*]
SRI LANKA [*]
SURINAM [*]
SWEDEN [*]
SWITZERLAND [*]
SYRIA [*]
TAIWAN [*]
THAILAND [*]
TRINIDAD/TOB [*]
TUNISIA [*]
TURKEY [*]
U.S.A. [*]
UNITED ARAB [*]
UNITED KINGD [*]
URUGUAY [*]
VENEZUELA [*]
VIETNAM [*]
YUGOSLAVIA [*]
ZAMBIA [*]
ZIMBABWE [*]
OUTBOUND COSTS
COUNTRY CPM
800 SERVICE [*]
ALASKA [*]
ALBANIA [*]
ALGERIA [*]
ANDORRA [*]
ANGOLA [*]
ARGENTINA [*]
ARUBA [*]
AUSTRALIA [*]
AUSTRIA [*]
AZERBAJAN [*]
BAHRAIN [*]
BANGLADESH [*]
BELARUS [*]
BELGIUM [*]
BELIZE [*]
BENIN [*]
BOLIVIA [*]
BOSNIA HERZE [*]
BOTSWANA [*]
BRAZIL [*]
BRUNEI [*]
BULGARIA [*]
BURKINA FASO [*]
BURUNDI [*]
CIS [*]
CAMBODIA [*]
CAMEROON [*]
CANADA [*]
CAPE VERDE [*]
CARRIBEAN [*]
CHAD REPUBLC [*]
CHILE [*]
CHINA [*]
COLOMBIA [*]
CONGO [*]
COSTA RICA [*]
CROATIA [*]
CUBA [*]
CYPRUS [*]
CZECHOSLOVAKIA [*]
DENMARK [*]
DJIBOUTI [*]
ECUADOR [*]
EGYPT [*]
EL SALVADOR [*]
ERITREA [*]
ESTONIA [*]
ETHIOPIA [*]
FALKLAND ISL [*]
FIJI ISLANDS [*]
FINLAND [*]
FRANCE [*]
FRENCH ANTIL [*]
FRENCH GUIAN [*]
FRENCH POLYN [*]
GABON REPBLC [*]
GAMBIA [*]
GERMANY [*]
GHANA [*]
GIBRALTAR [*]
GREECE [*]
GUADELOUPE [*]
GUAM [*]
GUATEMALA [*]
GUINEA [*]
GURNEA-BISSA [*]
GUYANA [*]
HAITI [*]
HONDURAS [*]
HONG KONG [*]
HUNGARY [*]
ICELAND [*]
INDIA [*]
INDONESIA [*]
IRAN [*]
IRELAND [*]
ISRAEL [*]
ITALY [*]
IVORY COAST [*]
JAPAN [*]
JORDAN [*]
KENYA [*]
KOREA [*]
KUWAIT [*]
LAOS [*]
LATVIA [*]
LEBANON [*]
LIBERIA [*]
LIBYA [*]
LITHUANIA [*]
LUXEMBOURG [*]
MACAO [*]
MACEDONIA [*]
MADAGASCAR [*]
MALAWI [*]
MALAYSIA [*]
MALDIVES [*]
MALI [*]
MALTA [*]
MARISAT [*]
MAURITANIA [*]
MAURITIUS [*]
MEXICO [*]
MONACO [*]
MONGOLIAN RE [*]
MOROCCO [*]
MOZAMBIQUE [*]
MYANMAR [*]
NAMIBIA [*]
NEPAL [*]
NETHERLANDS [*]
NETHR ANTIL [*]
NEW CALEDONI [*]
NEW ZEALAND [*]
NICARAGUA [*]
NIGER [*]
NIGERIA [*]
NIUE [*]
NORWAY [*]
OMAN [*]
PAKISTAN [*]
PANAMA [*]
PAPUA N GUIN [*]
PARAGUAY [*]
PERU [*]
PHILIPPINES [*]
POLAND [*]
PORTUGAL [*]
QATAR [*]
REUNION ISL [*]
ROMANIA [*]
RWANDA [*]
SAIPAN [*]
SAO. TOME [*]
SAUDI ARABIA [*]
SENEGAL [*]
SEYCHELLES [*]
SIERRA LEONE [*]
SINGAPORE [*]
SLOVENIA [*]
SOLOMON ISL [*]
SOMALI [*]
SOUTH AFRICA [*]
SPAIN [*]
SRI LANKA [*]
SUDAN [*]
SURINAME [*]
SWEDEN [*]
SWITZERLAND [*]
SYRIA [*]
TAIWAN [*]
TANZANIA [*]
THAILAND [*]
TOGO [*]
TUNISIA [*]
TURKEY [*]
UGANDA [*]
UKRAINE [*]
UN ARAB EMIR [*]
UN KINGDOM [*]
URUGUAY [*]
USA OUTBOUND [*]
VANUATU REP [*]
VENEZUELA [*]
VIETNAM [*]
YEMEN REP [*]
YUGOSLAV FED [*]
ZAIRE [*]
ZAMBIA [*]
ZIMBABWE [*]
EXHIBIT C
FRAUD PREVENTION AND DETECTION PROCEDURES
[*****]
