exv10w1



 





Exhibit 10.1



[FORM OF SUBSCRIBER UNIT PURCHASE AGREEMENT FOR MULTIFON S.A. DE C.V.]


SUBSCRIBER UNIT PURCHASE AGREEMENT

FOR MULTIFON S.A. DE C.V.




     This Agreement is entered into between Motorola Inc., by and through its
iDEN Subscriber Group, having a place of business at 8000 West Sunrise
Boulevard, Fort Lauderdale, Florida, 33322 (hereinafter “Seller” or “MOTOROLA”)
and Multifon S.A. de C.V., a company formed under the laws of Mexico, with a
place of business at Boulevard Manuel Avila Camacho# 36 piso 9, Col, Loamas de
Chapultepec, Mexico DF MX 11000 (hereinafter, together with any wholly-owned
subsidiary previously accepted by the Seller, collectively known as “Buyer”).



     This agreement applies only for sales of Motorola iDEN subscriber products
for distribution outside of the United States. Buyer agrees to purchase and
Seller agrees to sell selected Motorola iDEN subscriber products manufactured
in Seller’s facilities in Plantation, Florida, USA, (hereinafter “Products”)
during a term beginning on the date of the last signature hereto (“Effective
Date”), and ending with 60 days written notice by either party (“Term”), under
the terms and conditions set forth in this Agreement. Buyer may purchase
products manufactured at Seller’s other facilities under terms and conditions
acceptable to both parties at the time such purchases are desired.


PURCHASE ORDERS. All orders by Buyer shall be only upon the terms and
conditions of this Agreement. Buyer must stipulate in the purchase order its
desire for thirty (30) day terms or three hundred sixty (360) day deferred
payment terms. The only effect of any terms and conditions in Buyer’s purchase
orders or elsewhere shall be to request the payment terms and the time and
number of units to be delivered, subject to Seller’s acceptance, but they shall
not change, alter or add to the terms and conditions of this Agreement in any
other way. Except as provided below, Seller’s invoice shall also not change
the terms and conditions of this Agreement. Cancellation charges, which shall
include all costs incurred or committed for, may apply for any cancelled order.
Seller shall use its reasonable best efforts, including shipment to other
Nextel properties, to mitigate any costs incurred as a result of the Buyer’s
cancellation of an order within the non-cancelable period. Purchase orders are
non-cancelable fifteen (15) days or less before the requested ship date.



PRICING. Contract prices for Products require firm and prosecutable orders
thirty (30) day prior to requested ship date. Prices applicable to Products
sold pursuant to this Agreement (“Prices”) are those negotiated from time to
time by Nextel Communications, Inc. and Motorola, Inc. In order for Prices to
be applicable, the purchase orders submitted to Seller must reference this
Agreement.



PAYMENT TERMS AND CONDITIONS. Seller will invoice Buyer for the Products on or
about the date of shipment thereof. Payment of each invoiced amount is due
within 30 days of the date of the invoice; provided, however, that Buyer may
defer payment of invoiced amounts not to exceed an amount as set forth in a
separate letter from the Seller, for a period of up to three hundred sixty
(360) days from the original invoice date (each a “Maturity Date” and
collectively the “Maturity Dates”). In the event that Buyer shall have
stipulated in any purchase order its desire for up to three hundred sixty (360)
day deferred payment terms, the entire amount of such purchase order shall bear
interest from the date of the receipt by Seller of such purchase order at a
rate of 12% per annum; provided, however, that the present value of such
interest, calculated by discounting at the Discount Rate the amount of interest
which would have otherwise been payable on the deferred payment date, shall be
prepaid to Seller on the date of the receipt by Seller of such purchase order.
Seller shall not be obligated to ship any Products until it shall have received
payment in full of such prepaid interest. Seller will invoice Buyer for the
Products on or about the date of shipment thereof. Payment of each invoiced
amount is due within thirty (30) or up to three hundred sixty (360) days of the
date of the Invoice, depending upon whether Buyer shall have elected to defer
payment terms as


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provided above (each initial or deferred payment date, a
“Maturity Date” and collectively the “Maturity
Dates”). All payments shall be free and clear of all taxes, withholdings,
charges, fees, costs or duties applicable to this transaction. Should the
Buyer fail to make payment on the Maturity Date of any Invoice, the Buyer
agrees to pay Seller, on demand, interest on such Receivable at a rate of 14%
per annum, compounded daily, from the maturity date of such Invoice until the
full payment thereof. As used herein, the term “Discount Rate” shall mean the
rate published on the date of the relevant purchase order by The Wall Street
Journal with respect to the one-year London Interbank Offered Rate (LIBOR) (or,
if no such rate is so published, such other discount rate as shall be mutually
agreed in advance by Buyer and Seller).
The foregoing notwithstanding, in the event that (i) any interest payment is
not made when due, (ii) any deferred payment hereunder is not made on a
Maturity Date, or (iii) an event occurs which has a material adverse effect on
the business, operations, condition (financial or otherwise), or profits of the
Buyer, the Seller may (a) demand payment of cash on delivery, or otherwise
modify the payment terms hereunder with respect to any future shipments of
Products pursuant to this Agreement, (b) reduce Buyer’s credit limit, (c)
require collateral security for any future deferred payments, (d) suspend all
shipments under this Agreement, and/or (e) accelerate payment of all amounts
outstanding pursuant to this Agreement and exercise all available remedies
under applicable law.



Buyer acknowledges that Seller is procuring insurance with respect to the
deferred payments under this Agreement and agrees to provide all documents and
such other information available to it as is reasonably required in connection
with obtaining such insurance.



During the term hereof, Motorola Inc. may, with prior notification to the
Buyer, change the payment terms and/or credit limit of this Agreement.



FORECASTS. During the term of this Agreement, Buyer shall provide Seller, on a
quarterly basis not less than thirty (30) days prior to the start of the next
quarter, a continuous usage forecast for the next two (2) calendar quarters
(the “Quarterly Forecast”) to assist Seller in maintaining an orderly
production flow for the purpose of Buyer’s delivery requirements. Buyer shall
state in the Quarterly Forecast the Product model numbers and projected
purchase volume by units for each month of the quarter. The Quarterly Forecast
does not constitute a commitment by the Buyer; however, Buyer’s failure to
provide such information may be considered cause by Seller for excusable
delivery delay.



DELIVERY AND TITLE. All deliveries are FCA Seller’s plant, Plantation Florida
United States. Each such delivery will be separately invoiced. DELIVERY DATES
ARE BEST ESTIMATES ONLY. Title to the Products will pass to Buyer at the
Seller’s plant, Plantation, Florida.



FORCE MAJEURE. Neither party shall be liable for any delay or failure to
perform due to any cause beyond its reasonable control. Causes include, but
are not limited to strikes, acts of God, acts of the other party, interruptions
of transportation or inability to obtain necessary labor, materials or
facilities, or default of any supplier, or delays in regulatory authorization
or license grant. The delivery schedule shall be considered extended by a
period of time equal to the time lost because of any excusable delay. In the
event either party is unable to wholly or partially perform for a period
greater than forty-five (45) days because of any cause beyond its reasonable
control, either party may terminate any delayed order without any liability.



LICENSE DISCLAIMER. Nothing contained herein shall be deemed to grant either
directly or by implication, estoppel, or otherwise, any license under any
patents, copyrights, trademarks or trade secrets of SELLER.




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TAXES. Except for the amount, if any, of specific taxes stated in the
Agreement, Prices are exclusive of any amount for Federal, State and/or Local
excise, sales, use, property, retailer’s, occupation or any other
assessment in the nature of taxes however designated, on the Products and/or
services provided under this Agreement. If any such excluded tax, exclusive
however, of any taxes measured by Seller’s net income or taxes based on
Seller’s gross receipts or based on Seller’s franchise, is determined to be
applicable to this transaction or to the extent Seller is required to pay or
bear the burden thereof, one hundred percent (100%) thereof shall be added to
the Prices and paid by Buyer subject to prior substantiation by Seller.
Personal property taxes assessed on the Products after the date title transfers
under this paragraph shall be the responsibility of Buyer. In the event Buyer
claims exemption from sales, use or other such taxes under this Agreement,
Buyer shall hold Seller harmless of any subsequent assessments levied by a
proper taxing authority for such taxes, including interest, penalties, and late
charges.



Upon Seller’s request, Buyer shall produce sufficient evidence within thirty
(30) days of such request to prove that Buyer has fulfilled its obligation
relating to all taxes, duties, and fees. If any such taxes, duties, or fees
are determined to be applicable to this transaction and notwithstanding Buyer’s
responsibility, Seller is required to pay or bear the burden thereof, then
Prices shall be increased by the amount of such taxes and any interest or
penalty, and Buyer shall pay to Seller the full amount of any such increase no
later than thirty (30) days after receipt of an invoice. Customs clearance, or
related costs pertaining to import of the Products are the responsibility of
Buyer. No such costs have been included in Seller’s Prices.



TECHNICAL ASSISTANCE. Seller’s warranty shall not be enlarged, and no
obligation or liability shall arise out of Seller’s rendering of technical
advice, facilities or service in connection with Buyer’s purchase of the
Products furnished.



LIMITATION OF LIABILITY. EITHER PARTY’S TOTAL LIABILITY, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, IS
LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER WITH RESPECT TO
WHICH LOSSES OR DAMAGES ARE CLAIMED. BUYER’S SOLE REMEDY IS TO REQUEST SELLER
AT SELLER’S OPTION TO EITHER REFUND THE PURCHASE PRICE, REPAIR OR REPLACE
PRODUCT (S) THAT ARE NOT AS WARRANTED. IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR ANY LOSS OF USE, LOSS OF TIME, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS
OR SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES TO THE FULL EXTENT SUCH
MAY BE DISCLAIMED BY LAW.



LOGOS AND TRADEMARKS. In order that Seller may protect its trademarks, trade
names, corporate slogans, corporate logo, goodwill and product designations,
Buyer, without the express written consent of Seller, shall have no right to
use any such marks, names, slogans or designations of Seller in the sales,
lease or advertising of any products or on any product container, component
part, business forms, sales, advertising and promotional materials or other
business supplies or material, whether in writing, orally or otherwise. Buyer
agrees to provide Motorola with advertising material containing any Motorola
marks for approval before such marks are used. Motorola agrees to review
Buyer’s advertising material in a reasonable time and to not unreasonably
withhold or delay approval thereof. To minimize the impact of this review on
the Buyer, Motorola will provide Buyer with guidelines on the use of Motorola
logos. Compliance with these guidelines shall serve to relieve Buyer from
having to submit advertisements for prior approval.



PARTY RELATIONSHIP. This Agreement does not create any agency, joint venture
or partnership between Buyer and Seller. Neither party shall impose or create
any obligation or responsibility, express or implied, or make any promises,
representations or warranties on behalf of the other party, other than as
expressly provided herein.




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WAIVER. The failure of either party to insist in any one or more instances,
upon the performance of any of the terms or conditions herein or to exercise
any right hereunder shall not be construed as a waiver or relinquishment of the
future performance of any such terms or conditions or the future exercise of
such right
but the obligation of the other party with respect to such future performance
shall continue in full force and effect.



DEFAULT. Notwithstanding anything to the contrary hereunder, in the event that
either party shall be in breach or default of any of the terms or conditions of
this Agreement and such breach or default shall continue for a period of thirty
(30) days after the giving of written notice by the non-defaulting party, then
subject to the other terms and conditions of this Agreement, the non-defaulting
party, in addition to other rights and remedies it may have in law or equity,
shall have the right to immediately cancel this Agreement without any charge or
liability whatsoever.



DISPUTE RESOLUTION. The parties agree that any claims or disputes will be
submitted to non-binding mediation prior to initiation of any formal legal
process. Costs of mediation will be shared equally.



WARRANTY. The warranty document supplied with the Product at the time of
shipping shall govern the warranty coverage provided under this Agreement.



GENERAL. This Agreement constitutes the entire and final expression of
agreement between the parties pertaining to the subject matter hereof and
supersedes all other communications, oral or written, between the parties. No
alterations or modifications of this Agreement shall be binding upon either
Buyer or Seller unless made in writing and signed by an authorized
representative of each. If any term or condition of this Agreement shall to
any extent be held by a court or other tribunal to be invalid, void or
unenforceable, then that term or condition shall be inoperative and void
insofar as it is in conflict with law, but the remaining rights and obligations
of the parties shall be construed and enforced as if this Agreement did not
contain the particular term or condition held to be invalid, void or
unenforceable. Buyer shall make no assignment of this Agreement or of any
right granted herewith without the prior written consent of SELLER. Any
assignment of this Agreement is null and void. The laws of the State of
Illinois of the United States shall govern this Agreement.




     Unless this Agreement is superseded by a new agreement, or otherwise
terminated pursuant to the terms contained herein, this Agreement will continue
in effect beyond its Initial Term until terminated by either party upon thirty
(30) days prior written notice.



     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives effective as of the 20th day of July
2002.




	 	 	 	 	 	 	 
	 	 	
SELLER:
	 	 	 	BUYER:
	 	 	
MOTOROLA INC.
	 	 	 	MULTIFON S.A. DE C.V.
	By:	 	 	 	By:	 	 
	 	 	


Signature
	 	 	 	


Signature
	Printed Name: Mark Shockley	 	Printed Name: MARIA CRISTINA PEÑA







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	Title:	 	
 



	 	Title:
	 	CHIEF FINANCIAL OFFICER

20 July, 2002
	Date:	 	 	 	Date:	 	 
	 	 	


	 	 	 	








 



 



 



 



 



 



 



 



 





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