Summary of the Agreements entered by Axtel In connection with the acquisition of the Avantel Companies.
Exhibit
4.16
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Summary
of the Agreements entered by
Axtel
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In
connection with the acquisition of the Avantel
Companies.
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1.
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▇▇▇▇▇,
S.A.B. de C.V. (“Axtel”) and Banco Nacional de México, S.A.,
Integrante del Grupo Financiero Banamex (“Banamex”)
entered into a Mater Agreement dated November 27, 2006, which established the
terms and conditions for the sale of substantially all of the assets of Avantel
Infraestructura, S. de ▇.▇. de C.V. and the sale of the 100% of the partnership
interest in Avantel Infraestructura, S. de ▇.▇. de C.V. and ▇▇▇▇▇▇▇, S. de
▇.▇.
de C.V. (the “Transaction”). Such Master Agreement
was subject to the following terms and conditions:
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Purpose:
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Establish
the terms and conditions for the sale of substantially all of the
assets
of Avantel Infraestructura, S. de ▇.▇. de C.V. and the sale of the
100% of
the Partnership Interest in Avantel Infraestructura, S. de ▇.▇. de
C.V.
and ▇▇▇▇▇▇▇, S. de ▇.▇. de C.V. (the
“Transaction”), including the following terms
applicable to this Transaction:
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(i)
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Affirmative
and Negative Covenants;
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(ii)
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Representations,
Warranties and Indemnification;
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(iii)
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Special
Due Diligence & Price Adjustment
Mechanism;
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Affirmative
and
Negative
Covenants:
Banamex
agreed and covenanted to:
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Provide
to Axtel all the information required to carry on the
Transaction;
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Make
its best efforts to (i) continue operating the Avantel companies
in a
manner consistent with past practice, (ii) maintain its employees,
directors, suppliers, sellers, outsourcers, advisors, (iii) maintain
its
corporate and accounting books in compliance with the Mexican Laws;
(iv)
maintain its assets at least in the current operational conditions;
(v) to
maintain its current insurance
policies;
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Not
sell, lease, transfer, assign, encumber or grant the use of the Assets
of
Avantel companies outside of the ordinary course of
business;
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Not
enter into transactions with its affiliates outside of the ordinary
course
of business;
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Not
amend the by-laws of the Avantel
Companies;
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Not
authorize reductions of capital stock of the Avantel
Companies;
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Representations
and
Warranties:
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-
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Banamex
provided the following representations and
warranties:
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o
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Corporate
power and authority to enter the Transaction
Agreements;
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o
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Corporate
existence and good standing of the Avantel
Companies;
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o
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Compliance
with the Corporate Books;
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o
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Valid
capital stocks for each Avantel
Companies;
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o
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No
encumbrance over the shares and partnership interests of the Avantel
Companies;
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o
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No
third party rights over the shares and partnership interests of the
Avantel Companies;
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o
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Compliance
with governmental authorizations and
concessions;
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o
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Compliance
of the financial statements and the accountable
books;
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o
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Compliance
with tax obligations;
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o
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Compliance
with labor obligations;
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o
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No
material litigations and administrative
proceedings;
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o
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Relations
with partners and shareholders;
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o
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Ownership
of properties and absence of liens;
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o
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Compliance
with intellectual property;
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o
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Compliance
with environmental laws;
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o
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Corporate
Approvals;
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o
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Powers
of Attorney;
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o
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Ownership
of Subsidiaries;
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Indemnification:
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The
indemnity amount that Banamex is required to pay Axtel for any breach
of
such representations and warranties is capped at US$62,000,000.00,
this
cap shall not apply for third party claims regarding the ownership
of the
partnership interest sold to
Axtel.
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Special
Due Diligence &
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Price
Adjustment Mechanism:
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Axtel
has the right to perform a special Due Diligence six months following
the
execution of the Master Agreement in order to validate the price
paid by
Axtel for the Transaction.
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If
Axtel finds an element that affects the price paid for the Transaction,
the Contract establishes a procedure for price
adjustment.
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Conditions
Precedent:
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The
sale of assets was subject to the fulfillment of the following conditions
precedent on or before December 29,
2006:
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Acquisition
approval by Axtel’s Shareholders.
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Authorization
by the Transport and Communications Ministry of
Mexico.
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Axtel
obtaining the necessary funding
commitments.
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Governing
Law
and
Jurisdiction:
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The
Contract shall be governed by, construed and interpreted in accordance
with the laws of Mexico, and all disputes or controversies shall
be
settled solely in the courts of, the City of Monterrey, Nuevo
▇▇▇▇.
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General
Terms and Conditions: |
In
addition to the foregoing, the Contract included the following clauses:
(i) Force Majuere, (ii) Notices and Communications (iii) Waivers,
(iv)
Amendments and Modifications, (v) Headings, (vi) Partial Invalidity
and
Severability, (vii) Confidentiality and (viii)
Assignment.
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2.-
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Asset
Purchase Agreement.
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▇▇▇▇▇,
S.A.B. de C.V. (“Axtel”) as buyer and Avantel
Infraestructura, S. de ▇.▇. de C.V. (“Avantel
Infraestructura”) as seller, entered into an Asset Purchase
Agreement dated November 27, 2006 for the sale of the assets of Avantel
Infraestructura. Such Asset Purchase Agreement was subject to the following
terms and conditions:
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Price:
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US$475,000,000.00
plus the respective Valued Added Tax for an amount of
US$69,409,149.00;
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Payment
Terms:
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| - | 100% on Closing Date |
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the
payment shall be made by wire
transfer.
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-
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the
payment shall be made in US
Dollars.
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Avantel
Infraestructura shall deliver the relevant invoices within three
(3)
business days after Closing Date, which shall comply with Mexican
tax
requirements.
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Taxes:
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Each
Party shall be solely responsible for and pay all taxes, duties,
levies
and other charges imposed on them by applicable
law.
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Closing
Date:
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The
Closing Date will be the date when all the conditions precedent will
be
fulfilled.
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The
Conditions Precedent were fulfilled on December 4,
2006.
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Title
and Risk of Loss: |
The
title and risk of loss of the Assets will pass to Axtel upon
payment.
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Assets
Delivery:
Avantel
Infraestructura will transfer (virtually) the possession of the assets upon
Closing Date.
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Conditions Precedents: |
The
asset sale was subject to the fulfillment of the following conditions
precedent on or before December 29,
2006:
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-
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Approval
by Axtel’s Shareholders to acquire assets and capital stock of
Avantel.
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-
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Authorization
by the Transport and Communications Ministry of
Mexico.
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-
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Axtel
obtaining the necessary funding
commitments.
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Representations
and
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Warranties:
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The
same as set forth in the Master
Agreement.
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Seller’s
Liability:
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Avantel
Infraestructura’s partners assumed the liabilities of Avantel
Infraestructura for the sale of the
Assets.
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Governing
▇▇▇ ▇▇▇ Jurisdiction: |
The
Contract shall be governed by, construed and interpreted in accordance
with the laws of Mexico, and all disputes or controversies shall
be
settled solely in the courts of, the City of Monterrey, Nuevo
▇▇▇▇.
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General
Terms and Conditions: |
In
addition to the foregoing, the Contract included the following clauses:
(i) Force Majuere, (ii) Notices and Communications (iii) Waivers,
(iv)
Amendments and Modifications, (v) Headings, (vi) Partial Invalidity
and
Severability, (vii) Confidentiality and (viii)
Assignment.
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3.-
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Partnership
Interest Purchase
Agreement.
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▇▇▇▇▇,
S.A.B. de C.V. (“Axtel”) and its subsidiary Impulsora e
Inmobiliaria Regional, S.A. de C.V. (“Impulsora”) as buyers,
and Banco Nacional de México, S.A. (“Banamex”) represented by
Banco ▇.▇. ▇▇▇▇▇▇, S.A. as a trustee of Banamex, Nueva Promotora de Sistemas
de
Teleinformática, S.A. de C.V. (“Nueva Promotora”), and
Telecomunicaciones Holding MX, S. de ▇.▇. de C.V. (“Tel
Holding”) as sellers, entered into a Partnership Interest Purchase
Agreement dated November 27, 2006 regarding the sale of the 100% of their equity
participation in Avantel Infraestructura, S. de ▇.▇. de C.V. (“Avantel
Infraestructura”) and Avantel, S. de ▇.▇. de C.V. (“Avantel
Concesionaria”) Such Partnership Interest Purchase Agreement was
subject to the following terms and conditions:
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Partnership
Interest
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Sold:
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(i)
Banamex, Nueva Promotora and Tel Holding will sell to Axtel the following equity
participation in Avantel Concesionaria:
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Partner
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Partnership
Interest Description
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Price
to be Paid by Axtel,
(In
Dollars)
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Nueva
Promotora.
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1
Serie A
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$7,950,000.00
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Nueva
Promotora
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1
Serie B
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$375,000.05
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Tel
Holding
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1
Serie B
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1,500,000.00
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Banamex
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1
Serie A
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$5,173,987.22
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$14,998,987.27
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(ii)
Banamex will sell to Impulsora the following equity participation in Avantel
Concesionaria:
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Partner
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Partnership
Interest Description
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Price
to be Paid by Impulsora,
(In
Dollars)
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Banamex
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1
Serie B
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$1,012.73
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(iii)
Banamex and Tel Holding will sell to Axtel the following equity participation
in
Avantel Infraestructura:
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Partner
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Partnership
Interest Description
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Price
to be Paid by Axtel,
(In
Dollars)
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Tel
Holding
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1
Serie B
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$202,310.19
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Tel
Holding
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1
Serie A
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$4,138,522.86
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Banamex
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1
Serie B
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$1,800,760.99
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Banamex,
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1
Serie B
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$9,798,205.66
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$15,939,799.69
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(iv)
Banamex will sell to Impulsora the following equity participation in Avantel
Infraestructura:
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Partner
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Partnership
Interest Description
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Price
to be Paid
by Impulsora, (In
Dollars)
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Banamex
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1
Serie
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$200.31
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Payment
Terms:
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| - | 100% on the Closing Date |
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the
payment shall be made by wire
transfer.
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the
payment shall be made in US
Dollars.
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Taxes:
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Each
Party shall be solely responsible for and pay all taxes, duties,
levies
and other charges imposed on them by applicable
law.
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Closing
Date:
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The
Closing Date will be the date when all the conditions precedent will
be
fulfilled.
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The
Conditions Precedent were fulfilled on December 4,
2006.
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Conditions Precedent: |
The
sale of the partnership interest was subject to the fulfillment of
the
following conditions precedent on or before December 29,
2006:
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-
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Approval
by Axtel’s Shareholders to acquire assets and capital stock of
Avantel.
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-
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Authorization
by the Transport and Communications Ministry of
Mexico.
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-
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Axtel
obtaining the necessary funding
commitments.
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-
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Payment
by Axtel to Avantel Infraestructura of the assets’ purchase price under
the Assets Purchase Agreement.
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Representations
& Warranties: |
The
sellers represented to the buyers that they were the only holders
of legal
title of the Partnership Interest
sold.
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Seller's
Liability:
The
seller’s liability is set forth in the Master Agreement.
Governing
Law
And
Jurisdiction: The
Contract shall be governed by, construed and interpreted in accordance with
the
laws of Mexico, and all disputes or controversies shall be settled solely in
the
courts of, the City of Monterrey, Nuevo ▇▇▇▇.
|
General Terms
and Conditions: |
In
addition to the foregoing, the Contract included the following clauses:
(i) Force Majuere, (ii) Notices and Communications (iii) Waivers,
(iv)
Amendments and Modifications, (v) Headings, (vi) Partial Invalidity
and
Severability, (vii) Confidentiality and (viii)
Assignment.
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4.
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Asset
Purchase Agreement.
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▇▇▇▇▇,
S.A.B. de C.V. (“Axtel”) as buyer and Avantel
Infraestructura, S. de ▇.▇. de C.V. (“Avantel
Infraestructura”) as seller, entered into an Asset Purchase
Agreement dated November 27, 2006 regarding the sale of the assets of Avantel
Infraestructura. Such Asset Purchase Agreement was subject to the following
terms and conditions:
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Purchase
Price:
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US$9,618,795.00
plus the respective Value Added Tax in an amount of
US$1,442,819.00
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Payment
Terms:
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| - |
100%
on Closing Date
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-
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the
payment shall be made by wire
transfer.
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|
-
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the
payment shall be made in US
Dollars.
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|
-
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The
Seller shall deliver the relevant invoices within three (3) business
days
after Closing Date, which shall comply with Mexican tax
requirements.
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|
Taxes:
|
Each Party shall be solely responsible for and pay all taxes, duties,
levies and other charges imposed on them by applicable
law.
|
|
Closing
Date:
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The
closing date will be the date when all the conditions precedent will
be
fulfilled.
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The
Conditions Precedent were fulfilled on December 4,
2006.
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Title
and Risk of Loss: |
The
legal title and risk of loss of the Assets will pass to Axtel upon
payment.
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Assets
Delivery:
The
seller will transfer (virtually) to Axtel the possession of the assets upon
Closing Date.
|
Conditions
Precents:
|
The
asset sale was subject to the fulfillment of the following conditions
precedent on or before December 29,
2006:
|
|
-
|
Approval
by Axtel’s Shareholders to acquire assets and capital stock of
Avantel.
|
|
-
|
Authorization
by the Transport and Communications Ministry of
Mexico.
|
|
-
|
Axtel
obtaining the necessary funding
commitments.
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Warranties: The
warranties of the Assets are set forth in the Master Agreement.
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Seller’s
Liability:
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The
partners of the seller in the Master Agreement assumed the liabilities
of
the Seller for the sale of the
Assets.
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Governing ▇▇▇ ▇▇▇
Jurisdiction: |
The
Contract shall be governed by, construed and interpreted in accordance
with the laws of Mexico, and all disputes or controversies shall
be
settled solely in the courts of, the City of Monterrey, Nuevo
▇▇▇▇.
|
|
General
Terms and Conditions: |
In
addition to the foregoing, the Contract included the following clauses:
(i) Force Majuere, (ii) Notices and Communications (iii) Waivers,
(iv)
Amendments and Modifications, (v) Headings, (vi) Partial Invalidity
and
Severability, (vii) Confidentiality and (viii)
Assignment.
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|
5.
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Bridge
Credit Agreement
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▇▇▇▇▇,
S.A.B. de C.V. as ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, S. De ▇.▇. de C.V. and other subsidiaries
of the Borrower as Guarantors, various Financial Institutions, as Lenders and
Credit Suisse, Acting through its Cayman Islands Branch as the Administrative
Agent, entered in the Bridge Credit Agreement dated as of November 30, 2006.
By
virtue of this Bridge Credit Agreement, Axtel financed part of the acquisition
of all of the Capital Stock in Avantel, S. de ▇.▇. de C.V. and substantially
all
of the assets and all of the Capital Stock of Avantel Infraestructura, S. de
▇.▇. de C.V. The Bridge Credit Agreement is attached in the Exhibit
4.18.
6.
Term Loan Credit
Agreement.
▇▇▇▇▇,
S.A.B. de C.V. as ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, S. De ▇.▇. de C.V. and other subsidiaries
of the Borrower as Guarantors, various Financial Institutions, as
Lenders, Citibank, N.A. as the Administrative Agent and Banco
Nacional de México, S.A. Integrante del Grupo Financiero Banamex, as the Peso
Agent, entered in the Credit Agreement dated as of November 30, 2006. By virtue
of this Credit Agreement, Axtel financed part of the acquisition of all of
the
Capital Stock in Avantel, S. de ▇.▇. de C.V and substantially all of the assets
and all of the Capital Stock of Avantel Infraestructura, S. de ▇.▇. de C.V.
The
Credit Agreement is attached in the Exhibit 4.19.