Agreement for the Lease and the Contract for Improvement, Replacement, Repair, Maintenance and Operation of Telecommunications Facilities for the Cellular Digital Amps 800 Band a System - Communications Authority of Thailand, BFKT (Thailand) Ltd. and Tawan Mobile Telecom Co. Ltd.
CONFIDENTIAL INFORMATION REDACTED
(TRANSLATION FROM THE THAI LANGUAGE ORIGINAL)
AGREEMENT
FOR THE LEASE AND THE CONTRACT FOR IMPROVEMENT, REPLACEMENT, REPAIR,
MAINTENANCE AND OPERATION OF TELECOMMUNICATIONS FACILITIES
FOR THE CELLULAR DIGITAL AMPS 800 BAND A SYSTEM
THIS AGREEMENT is made at the Communications Authority of Thailand of 99 Moo 3
Changwattana Road, Khwaeng Thungsonghong, Khet Laksi, Bangkok Metropolis 10002
on 16 October 2000.
BETWEEN:
1. The Communications Authority of Thailand by Mr. Thirapong Suttinon,
Governor of the Communications Authority of Thailand, hereinafter
referred to as "CAT", on the one part;
2. BFKT (Thailand) Limited, a limited company incorporated under the laws
of Thailand, by Mr. Wai Man Edmund Sin, as evidenced by the
Certification Document of the Partnerships and Companies Registration
Office, Bangkok Metropolis No. Sor Or. 0057207 dated 9 October 2000,
which is attached hereto and referred to in Clause 17.1, and having its
head office located at 990 22nd-25th Floor, Rama IV Road, Khwaeng Silom,
Khet Bangrak, Bangkok Metropolis 10500, hereinafter referred to as
"BFKT", on the one part;
3. Tawan Mobile Telecom Company Limited, a limited company incorporated
under the laws of Thailand, by Mr. Ormsin Chevapruk and Mr. Anuwat
Laikijrung, as evidenced by the Certification Document of the
Partnerships and Companies Registration Office, Bangkok Metropolis No.
Sor Or. 0057205 dated 9 October 2000, which is attached hereto and
referred to in Clause 17.2, and having its head office located at 947
Moo 12 Bangna-Trad Road, Khwaeng Bangna, Khet Prakanong, Bangkok
Metropolis 10260, hereinafter referred to as "TMT", on the other part.
WHEREAS: CAT has the right to provide and is an operator of the service
of mobile telephone under the Cellular Digital AMPS 800 Band A
System, and is desirous to lease the Facilities for the Cellular
Digital AMPS 800 Band A System and to contract BFKT to undertake
improvement, replacement, repair, maintenance and operation of
those Facilities for the Cellular Digital AMPS 800 Band A
System.
NOW, THEREFORE, the three parties who, unless specifically referred to, shall be
hereinafter collectively referred to as the "Parties", hereby agree as follows:
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CLAUSE 1. DEFINITIONS
In this Agreement:
Facilities Means the mobile telecommunications equipment and
accessories under the Cellular Digital AMPS 800
Band A System which are comprised of switching
subsystem, base station subsystem, networking
subsystem, ancillary equipment of switching system
and network system, test devices and radio system
analysis equipment including hardware and software
for the said equipment and accessories as well as
the equipment and accessories for the provision of
additional services relating to the mobile
telephone under the Cellular Digital AMPS 800 Band
A System of CAT as well as all requisites for
those said Facilities;
Force Majeure Means any event outside the reasonable control of
either party that prevent such party from
implementing this Agreement, such as storm, flood,
fire or peril or other similar natural calamity,
riot or civil commotion, usurpation, embargo,
blockage, accident during transportation of the
Facilities, strike, war, unreasonably delay by
government agency or any other state enterprise in
providing necessary service requested by such
party;
Independent Auditor Means a firm of independent auditors of
international standing jointly chosen by BFKT and
CAT or, if they are unable to agree, nominated by
the President for the time being of the
Association of Certified Public Accountants of
Thailand;
Lease Fee Means the Lease Fee for the Facilities;
Marketing Agreement Means the Agreement for Marketing Service of
Mobile Telephone Under the Cellular Digital AMPS
800 Band A System of CAT dated 14 August 1996, as
amended by the Amendment No. 1/2540 to the
Agreement for Marketing Services dated 1 April
1997 and the Amendment No. 2/2543 dated ..........
between CAT and TMT;
Metropolitan Means the area of Bangkok Metropolis and
Nonthaburi, Samutprakarn, Pathumthani, Prachuab
Kirikhan, Petchburi, Ratchaburi, Kanchanaburi,
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Nakorn Pathom, Samutsongkram, Samutsakorn,
Suphanburi, Ayudhaya, Angthong, Lopburi, Singburi,
Prachinburi, Nakorn Nayok, Srakaew, Chonburi,
Chachoengsao, Rayong, Chantaburi, Trad.
Operating Expenses Means expenses incurred by BFKT in operating the
Facilities which include installment and lease fee
for the transmission back bone and equipment,
staff wage, cost of public utilities, expense for
management and operating staff and related
overheads, lease fee and expenses for office and
office equipment, insurance premiums and other
expenses relating to the operation of the
Facilities;
Upcountry Means other provinces outside the Metropolitan.
Wage Means the wage for the improvement, replacement,
repair and maintenance of the Facilities;
CLAUSE 2. LEASE OF FACILITIES
2.1 CAT agrees to lease and BFKT agrees to let the Facilities
installed under Clause 2.5 and which are in service, in the number of not less
than [***] [(***)] cell sites which are owned and procured, imported, tested
and installed by BFKT in the condition that must be complete according to the
test under Clause 2.5, paragraph two, pursuant to the Technical Specification
and Operating Plan attached hereto and referred to in Clause 17.3 with BFKT's
own expenses, for CAT to use in the provision of service of mobile telephone
under the Cellular Digital AMPS 800 Band A System of CAT for a lease period
commencing as from the effective date of this Agreement until 21 April 2015.
In case BFKT will procure, import, install and test the
Facilities which is not according to the Technical Specifications and Operating
Plan which are attached hereto and referred to in Clause 17.3, BFKT must make a
proposal to CAT for consideration and approval not less than 30 days before the
implementation thereof.
2.2 The leased Facilities under Clause 2.1 must be brand new and
unused and must not be old stock, and must be owned by BFKT only. BFKT agrees to
warrant that all those Facilities are free from any and all derogation of
rights, execution, encumbrances or restrictions except that BFKT may give the
Facilities as security for the loan or credit to the lender of BFKT or to the
supplier of the Facilities of BFKT.
2.3 BFKT shall ensure that the performance, specification and
capacity of the leased Facilities under Clause 2.1 are not inferior to the Code
Division Multiple Access of the manufacturers of the Cellular CDMA System and
the Technical Specifications and Operating Plan which are attached hereto and
referred to in Clause 17.3, and that those Facilities must be compatible with
the Cellular System already procured by CAT.
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2.4 The leased Facilities under Clause 2.1 must have the capacity to
handle the recipients of services which will be increased according to marketing
target under Clause 4 of the Marketing Agreement as well as the traffic volume
during busy hours of each promotion period without causing the standards of the
Grade of Service and Percentage of Drop Call during normal situation and
suitable duration to become inferior to the design pursuant to the Technical
Specification and Operating Plan under Clause 2.3. In case that CAT deems it
necessary to connect with other domestic network (roaming), the leased
Facilities under Clause 2.1 must have the capacity to accommodate the roaming.
2.5 BFKT agrees to completely procure, import, test and install the
leased Facilities under Clause 2.1 in the Metropolitan and in service according
to the number of cell sites and period of time set forth below.
2.5.1 [***] cell sites by 30 November 2001;
2.5.2 Additional [***] cell sites by 30 November 2002;
2.5.3 Additional [***] cell sites by 30 November 2003;
2.5.4 At least additional [***] cell sites by 30 November
2004.
The Facilities under the first paragraph shall be deemed to have
been completely installed and tested and be ready for service only when they
have passed the test according to the criteria prescribed in the document
attached hereto and referred to in Clause 17.4 and the representative of CAT has
participated in such tests and approved the results thereof. BFKT shall notify
CAT in writing not less than 7 CAT's business days before the test date. In case
that there is such an advance notification but CAT fails to send its
representative to participate in the test, the Parties agree that such test may
be conducted without the approval of CAT's representative.
In each implementation of the plan of installation of the
Facilities under Clause 2.1, BFKT must give details of such plan to CAT not less
than 30 days before the commencement of the work.
2.6 BFKT shall obtain a lawful license to use the leased Facilities
under Clause 2.1 as well as the software for those Facilities throughout the
lease term hereunder. BFKT must be responsible for the infringement of copyright
or patent of those Facilities as well as the software for those Facilities. If
any third party claims or exercises its claim that the copyright or patent
relating to the Facilities or the software for the Facilities is infringed, BFKT
must take all actions to settle that claim or exercise of claim without delay
and must bear all damages and expenses incurred therefrom.
2.7 Subject to the conditions herein, BFKT agrees that it shall
neither dispose of or transfer the leased Facilities under Clause 2.1 to any
person or create any encumbrance or
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restriction thereon, nor use those Facilities in its own business or allow other
person to lease or utilize them.
2.8 Subject to the conditions herein, CAT shall have peaceful
enjoyment of the leased Facilities under Clause 2.1 without any interruption,
intervention or whatever act that may prevent CAT from utilizing the same,
whether by BFKT, its employee or agent, or person under its control.
2.9 BFKT agrees to permit CAT and/or CAT's agent to access its
premises where the leased Facilities under Clause 2.1 are installed at all
reasonable time in order to inspect the same upon reasonable notice of CAT.
2.10 BFKT must take out an insurance against all risks for the leased
Facilities under Clause 2.1 which are normally insurable for the full
replacement value thereof throughout the lease term hereunder with an insurance
company registered and operating insurance business in Thailand. BFKT shall pay
the insurance premiums and be designated a beneficiary so that BFKT shall use
the proceeds of the insurance agreement for repairing and/or procuring the
replacement Facilities in case of loss or damage.
2.11 BFKT shall arrange for at least 10 (Ten) CAT staff or employees
to be provided with all overseas technical training by the manufacturer of the
Facilities for a period not less than 5 (Five) days each and in accordance with
the standards of training of each program, and shall arrange for at least 5
(Five) CAT staff or employee to observe the works in management and other
non-technical areas abroad for a period not less than 7 (Seven) days each. The
training or observation shall be arranged during the lease or whenever there is
a change in the system, and shall be divided into various phases throughout the
lease period of this Agreement. All expenses therefor shall be borne by BFKT.
The training and observation schedule shall be further agreed between CAT and
BFKT.
2.12 CAT warrants that CAT has the right and authority to lease the
Facilities owned, procured, imported, installed and tested by BFKT under Clause
2.1, and to contract BFKT to carry out the improvement, replacement, repair,
maintenance and operation of the Facilities hereunder.
2.13 CAT shall not make any change, alteration or addition to the
leased Facilities under Clause 2.1.
2.14 CAT shall permit BFKT and/or an agent of BFKT to enter CAT's
premises where the leased Facilities under Clause 2.1 are installed at all
reasonable time in order to inspect the condition of the leased Facilities.
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2.15 CAT has not created, and shall not create or permitted the
creation by TMT or a third person of any lien, encumbrance or security interest
over the leased Facilities under Clause 2.1.
2.16 CAT shall facilitate the import of the leased Facilities under
Clause 2.1 and the application for licenses under the Communications Radio Act
B.E. 2498 and other relevant laws from the responsible agencies in the name of
CAT.
2.17 As for the Facilities which CAT leases from the Network Company
under Clause 2.1, CAT or a juristic person that accepts the transfer of rights
and/or duties from CAT and/or a juristic person transformed or converted from
CAT or a subsidiary company or affiliated company of CAT, or of the juristic
person that accepts the transfer of rights and/or duties from CAT, or of a
juristic person transformed or converted from CAT according to the Shareholders
Agreement of Tawan Mobile Telecom Company Limited between CAT and i-Mobile
Holdings Company Limited dated 16 October 2000 shall have the right to use the
same for internal communications of CAT or both juristic persons or the
subsidiary company or affiliated company of CAT or both juristic persons, and
for providing the mobile telephone service under the Cellular system to the
numbers under the service agreements made with CAT or both juristic persons or
the subsidiary company or affiliated company of CAT or of both juristic persons
in the Upcountry project.
The terms "subsidiary company" and "affiliated company" under
the first paragraph shall have the same meanings as ascribed in Clause 3.1 of
the Shareholders Agreement of Tawan Mobile Telecom Company Limited which is
referred to in the first paragraph.
2.18 CAT shall cooperate with BFKT in order that the management and
operation of the 69 and 50 cell sites of CAT as well as the additional cell
sites for which CAT will lease the Facilities from BFKT will be efficient and
meet the Grade of Service for the entire system.
CLAUSE 3. CONTRACT FOR IMPROVEMENT, REPLACEMENT, REPAIR, MAINTENANCE AND
OPERATION
3.1 CAT agrees to contract and BFKT agrees to be contracted to
undertake the improvement, replacement, repair, maintenance and operation of the
leased Facilities under Clause 2.1 to ensure that they are at all times in good
order as they were passed the test in Clause 2.5, paragraph two and can be used
for the provision of service of mobile telephone under the Cellular Digital AMPS
800 Band A System of CAT in an efficient manner according to the standards of
Grade of Service throughout the contract term hereunder. The term of the said
contract shall be from the effective date of this Agreement until 21 April 2015.
The scope of operation of the said Facilities shall be in accordance with the
document attached hereto and referred to in Clause 17.5.
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3.2 BFKT must improve, replace, repair, maintain and operate the
leased Facilities under Clause 2.1 in accordance with the conditions in Clauses
2.3 and 2.4 hereof.
3.3 CAT agrees that BFKT may subcontract the works relating to
improvement, replacement, repair and maintenance of the leased Facilities under
Clause 3.1, including the import, installation and test of all or part of the
Facilities to other person, provided that BFKT must be responsible to CAT for
the works done by its subcontractor in all respects and must also be responsible
for and pay all the wage or any other money to the subcontractor. CAT shall
neither be responsible for nor need to pay the wage or any other money to that
subcontractor. However, the operation of the leased Facilities according to
Clause 3.1 must be carried out by BFKT itself and may not be subcontracted to
other person.
3.4 BFKT must provide an on the job training to CAT staff or
employee for a period as suitable for each course. Such training shall be
arranged during the contract term or whenever there is a change in the system,
and shall be divided into various phases throughout the contract term under this
Agreement. All expenses for that training shall be borne by BFKT. The
commencement schedule of the training shall be further agreed between CAT and
BFKT.
3.5 In case that CAT has the transmission backbone and equipment
between the base station and the cell sites under Clause 2.1, BFKT must lease
such transmission backbone and equipment from CAT and pay all expenses in the
lease to CAT. CAT shall charge such expenses at reasonable rates which are not
higher than those which CAT offers to other persons in general. The transmission
backbone and equipment of CAT must have the quality not inferior to the
technical standards of those transmission backbone and equipment, otherwise BFKT
may ask CAT to improve them first in order to meet the standards. If CAT cannot
carry out such an improvement, BFKT may procure the same by itself or lease the
same from other service providers, provided that BFKT shall be responsible for
expenses for such procurement or lease.
The transmission backbone and equipment provided by BFKT in
accordance with the first paragraph shall be new, never been used, not old
stock, and owned by BFKT only.
CLAUSE 4. LEASE FEE AND WAGE
4.1 The Parties agree that the Lease Fee and Wage hereunder shall be
in accordance with the rules and procedures for calculation of the Lease Fee and
Wage which are attached hereto and referred to in Clause 17.6. TMT agrees to pay
the Lease Fee and Wage as specified herein.
The following terms as used herein and in the document attached hereto
and referred to in Clause 17.6 shall have the following meanings:
"Cost of the Facilities" means the cost of the Facilities which have
been installed and passed the test under Clause 2.5, paragraph two and in
service (including the CIF price of the related Facilities, hardware and
software, installation and technical service fee), plus logistics
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cost (including import duty, customs tax, excise tax, warehouse and local
transportation expenses) and other taxed relating to the Facilities.
"Annual financing charge rate" means 10.5% per annum.
4.2 In case that there is any fault, defect or loss or damage in
the leased Facilities under Clause 2 for a consecutive period of more than 15
(Fifteen) days, BFKT pay compensation to TMT within 10 days from the date of
completion of the rectification and provision of service in the amount equal to
the lost airtime of CAT during the fault, defect or loss or damage in the leased
Facilities under Clause 2 , by multiplying the average Airtime Charges per cell
site per day of CAT of the entire system (all cell sites) prior to the month of
such fault, defect or loss or damage with the number of cell cites not in
service and the number of days during which they are out of service (a fraction
of day in excess of 12 hours shall be counted as a day). However, BFKT must not
be responsible under this Clause if such fault, defect, loss or damage is caused
by Force Majeure, sabotage, or an act of any person other than BFKT or TMT, or
the employee or agent of BFKT or TMT.
CLAUSE 5. CALCULATION AND PAYMENT OF LEASE FEE, WAGE AND OPERATING
EXPENSES
5.1 BFKT agrees to be responsible for calculating the Lease Fee and
Wage under Clause 4 (including any adjustment made under Clause 5.4). In this
regard, within 4 weeks prior to the beginning of each year, or within 4 weeks
from the effective date of this Agreement in the case of the 1st year (ending
December 31, 2000), BFKT shall send CAT written notification of the total amount
of the estimated Leased Fees and the estimated Wage for the forthcoming year,
and the basis and details of such calculation. If CAT does not protest such
written notification within 15 CAT's business days of the date of such
notification, the estimated Lease Fee and the estimated Wage shall be deemed to
have been accepted by CAT.
If CAT disagrees with either the estimated Lease Fee or the
estimated Wage under the first paragraph, CAT shall notify BFKT within 15 CAT's
business days of the date of the notification. In such case, CAT and BFKT shall
refer the matter to an Independent Auditor who shall be instructed to make a
determination within 7 CAT's business days of its appointment. The determination
of the Independent Auditor shall be the basis on which the estimated Lease Fee
and the estimated Wage shall be calculated with respect to the relevant year.
The Parties agree that the estimated Lease Fee and the estimated Wage shall be
used solely as the basis for the payments to be made pursuant to Clauses 5.2 and
5.3. Accordingly, such estimates shall not restrict BFKT from making any
adjustments (upward or downwards) with respect to the final calculation of the
Lease Fee and Wage pursuant to Clause 5.4.
The costs of the Independent Auditor under the second paragraph
shall be met by CAT if the Independent Auditor agrees with BFKT's calculation of
the estimated Lease Fee and the estimated Wage; or by BFKT if the Independent
Auditor disagrees with such calculation.
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5.2 The estimated Lease Fee for each year shall be paid in four
instalments. Each installment shall be 25 (Twenty five) per cent of the
estimated Lease Fee for the year, and the installments shall be payable within
15 CAT's business days from the last day of each March, June, September and
December, except in the 1st year (ending December 31, 2000) for which the
payment thereof shall be made within January 2001.
5.3 The estimated Wage for each year shall be paid in four
instalments. Each instalment shall be 25 (Twenty five) per cent of the estimated
Wage for the year, and the instalments shall be payable within 15 CAT's business
days from the last day of each March, June, September and December, except in
the 1st year (ending 31 December 2000) for which the payment thereof shall be
made within January 2001.
5.4 Within 60 days from the day following the last date of each
year, BFKT shall send CAT a written notice setting forth any adjustments to the
estimated Lease Fee and/or estimated Wage (including exchange rate adjustments)
according to actual amounts for that year.
BFKT shall send a copy of each adjustment notice under the first
paragraph to the Independent Auditor, who shall be instructed to issue a
certification as to the accuracy of the adjustment within 15 business days of
its appointment. The costs of the Independent Auditor in issuing the
certification of the adjustment notice shall be paid by BFKT. The Independent
Auditor's determination shall be final and used as the basis for finalising the
actual amount of the Lease Fee or Wage for the relevant Year. In case that the
estimated Lease Fee under Clause 5.2 and/or the estimated Wage under Clause 5.3
which have been paid by BFKT are lower than the actual amounts of the Lease Fee
and/or Wage under this Clause, TMT shall make payment of the shortfall to BFKT;
or in case that the estimated Lease Fee under Clause 5.2 and/or the estimated
Wage under Clause 5.3 which have been paid by BFKT are higher than the actual
amounts of the Lease Fee and/or Wage under this Clause, BFKT shall make payment
of the excess to TMT. Such payment free of interest shall be made within 15 days
of the date of determination of the Independent Auditor.
5.5 No more than once in any year, CAT may call for an Independent
Auditor to certify that the estimated Lease Fee or estimated Wage under Clause
5.1 reasonably reflect the projected costs of BFKT for that year. The
certification of the Independent Auditor shall be used as a basis for adjusting
the estimated Lease Fee or estimated Wage for the remainder of the year but
shall not in any way affect the final calculation of the actual amounts of the
Lease Fee and/or the Wage or the Independent Auditor's certification under
Clause 5.4.
The costs of the Independent Auditor under the first paragraph
shall be met by CAT if the Independent Auditor agrees with BFKT's calculation of
the estimated Lease Fee and estimated Wage; or by BFKT if the Independent
Auditor disagrees with such calculation.
5.6 The Parties agree that TMT shall pay the Operating Expenses to
BFKT as actually paid by BFKT on a monthly basis. BFKT shall submit an invoice
which sets forth details of BFKT's Operating Expenses incurred during the
previous month, and any eligible BFKT's
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Operating Expenses not included in previous invoices by the 10th (Tenth) day of
the following month. TMT shall reimburse such Operating Expenses to BFKT within
20th day of the month that TMT receives invoice from BFKT.
5.7 All payments under this Clause 5 shall be made by cheque or
telegraphic transfer to BFKT's bank account notified by BFKT to CAT and TMT
prior to the due date for the first payment, or as notified by BFKT in writing
from time to time.
5.8 The Parties agree that TMT shall be responsible to BFKT for
Lease fee, Wage, Operating Expenses, and VAT as specified in Clause 4 and Clause
5 hereof as well as other related expenses, penalty, surcharge, interest,
damages or any other money arising from the overdue payment or the default of
this Agreement by TMT, and CAT shall not be liable to BFKT for the same. BFKT
shall exercise its right and claim against TMT to be liable for the same and
BFKT cannot exercise its right or claim for the same against CAT.
5.9 It is hereby acknowledged and agreed that TMT shall be
responsible for VAT on the amounts payable under this Clause 5 to BFKT. The
Parties agree to enter into suitable arrangements to ensure that TMT and CAT can
claim appropriate VAT inputs and outputs according to the law in force from time
to time.
BFKT shall issue the receipt and tax invoice to CAT in respect
of any payment of the Lease Fee and Wage and the reimbursement of Operating
Expenses received by BFKT under this Clause 5, and delivery them to TMT. CAT
shall issue the receipt and tax invoice to TMT for the payment of Lease Fee and
Wage and the payment of BFKT's Operating Expenses made by TMT to BKFT hereunder
and deliver them to TMT when TMT gives the receipt and tax invoice mentioned
above to CAT.
5.10 The currency of payments under this Clause 5 shall be Thai Baht.
However, in calculating the costs of the Facilities, the original costs in US
Dollars would be used and then translated into Thai Baht by using the average
exchange rate between US Dollar and Thai Baht during that lease year.
5.11 Any late payment of whatsoever amount under this Agreement shall
be subject to interest payable by the party obligated to make such payment at
1.25 (One point two five) per cent per month of the unpaid amounts. The Parties
agree that no interest shall be imposed on the timely payment of an adjustment
under Clause 5.3.
CLAUSE 6. SECONDMENT OF CAT STAFF
6.1 BFKT agrees to CAT's secondment of certain CAT staff or employee
to BFKT to perform the work in BFKT at the level of management, administration
and operation. BFKT shall, at its own cost, be responsible for payment of
salaries, wages, overtime pays, bonuses, welfare and any other monies paid by
CAT to those CAT staff throughout the lease and contract
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term hereunder. CAT and BFKT shall mutually agree on the direction and period of
performance of work, position and number of staff as well as other conditions as
CAT and BFKT may consider appropriate. If there is a proper reason, BFKT may
request CAT to replace its staff or employee.
BFKT must pay the expenses under the first paragraph to CAT
within 15 days of the receipt of written notification from CAT, provided that
CAT shall provide evidence of relevant expenses to BFKT together with such
notification of CAT.
6.2 BFKT agrees to appoint one representative of CAT to be the
Chairman of its Board of Directors throughout the lease and contract term
hereunder, and to be responsible for remuneration of the Chairman.
CLAUSE 7. SUPERVISION AND EXAMINATION
The operation of BFKT with respect to the improvement, replacement,
repair, maintenance and operation of the Facilities under this Agreement shall
be under the supervision of CAT. BFKT shall allow CAT or its representative to
inspect such operation, and shall make all information and details available for
examination by CAT during normal business hours as CAT thinks fit upon at least
7-day advance notice of CAT. In this regard, BFKT must render full facilities to
CAT or its representative
CLAUSE 8. RELATIONSHIP OF BFKT AND THIRD PERSON
The implementation hereunder, be it the management, operation or any
juristic act made with a third party, shall be under the responsibility of BFKT
and carried out by BFKT in its own name. CAT shall not in any way be responsible
for all the obligations of BFKT to that third party. If any claim or action is
brought by a third party against CAT for its liability due to the operation of
BFKT, BFKT shall take all measure to prevent CAT from being liable thereto,
including to defend and litigate on CAT's behalf and to compensate CAT for any
expenses or damage thereby sustained.
CLAUSE 9. ASSIGNMENT OF RIGHTS AND OBLIGATIONS
9.1 BFKT shall not assign its rights and/or obligations under this
Agreement to any third party unless a prior written consent is given by CAT.
The assignment of rights and obligations for the benefit of a
bank and/or finance company lending or granting credit for the procurement and
installation of equipment, buildings and other items required for the operation
of BFKT under this Agreement, or the juristic entity selling goods or providing
service or telecom technology who grants financial supported to BFKT shall be
permitted and valid only when BFKT is demanded by such bank or finance company
or the juristic entity selling goods or providing service or telecom technology
who grants financial support to BFKT to pay all the indebtedness owing to any of
them under the loan agreement or credit facilities agreement but BFKT is unable
to pay all such indebtedness within a period stipulated under the said loan
agreement or credit facility agreement. In such event
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BFKT shall immediately inform CAT in writing of the said assignment of rights
and obligations. CAT shall be the party to consider approving the qualifications
of the juristic person designed by the bank or finance company or the juristic
entity selling or providing service or telecom technology who grants financial
support to BFKT in order to accept the assignment of rights and obligations
under this Agreement, provided that such juristic person must be a company
established and registered in Thailand and subject to the conditions under
Clause 10.
The assignment of rights and obligations shall not, in all
cases, release the BFKT from its liabilities under this Agreement, and BFKT
agrees for CAT to claim for compensation for damages incurred by the failure of
BFKT to comply with this Agreement prior to the assignment of rights and
obligations including for the acts of or the non-compliance by the assignee
subsequent to the assignment as if it were the act done by BFKT.
The assignment of rights and obligations under this Agreement
shall be made by an assignment agreement to be entered into among BFKT, the
assignee and CAT, and the assignee shall thereby be bound to comply with the
stipulations of this Agreement.
9.2 CAT reserves the right to assign the rights and/or obligations
hereunder to any other juristic entity established to undertake
telecommunications business under the Act and it shall be deemed that BFKT and
TMT have unconditionally agreed and consented to such an assignment of rights
and/or obligations. CAT shall notify BFKT and TMT of such assignment of rights
and/or obligations in writing.
In case of the transformation or conversion of CAT into a new
juristic entity, BFKT and TMT agree and consent that all the rights and/or
obligations of CAT hereunder shall be assigned to such new juristic entity so
that it shall pursue all related businesses hereunder.
BFKT and TMT agrees and consents to waive the right to make any
dispute, objection or claim on the ground of the assignment of rights and/or
obligations under the first and second paragraph, and agrees to give its consent
to the assignment of rights and/or obligations hereunder to the new juristic
entity under the first and second paragraph.
CLAUSE 10. STATUS OF BFKT
From the date of signing this Agreement and throughout the term hereof, BFKT
must be a juristic person registered in Thailand and not foreign as prescribed
by the foreign business law.
CLAUSE 11. AGREEMENT WITH LENDER OR CREDIT PROVIDER OF BFKT
BFKT must agree with its lender or credit provider (Lender) that in
case the Lender would enforce the leased Facilities under Clause 2.1, the Lender
must offer the lease or sale on hire-purchase or sale of those Facilities to CAT
first (Right of First Refusal). If CAT fails to accept the lease or
hire-purchase or purchase of those Facilities within 120 (One hundred twenty)
days from the day following the date of receipt of an offer from that Lender,
the Lender may propose the lease, sale on hire-purchase, sale or disposal or
those Facilities to a third party with
<PAGE>
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the conditions and price not better than those offered to CAT. In the case that
CAT agrees to lease, the leasing terms must not be inferior to and the lease fee
must not be higher than those specified in this Agreement, and CAT shall not be
responsible for Lease fee, Wage, Operating Expenses, VAT and other related
expenses which are under the responsibility of TMT and overdue to BFKT on or
before the expiration of the lease period of Facilities under Clause 2.1
including penalties, surcharge, interest, damages and other money resulting from
the unpaid balance or default of TMT in this Agreement.
CLAUSE 12. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each Party represents and warrants for the benefit of each other Party
that:
12.1 it has full power and authority to enter into, and to perform
its respective obligations under this Agreement;
12.2 this Agreement is validly executed and binding on it, and
enforceable against it in accordance with the express terms;
12.3 all consents and approvals necessary for its performance of this
Agreement have been obtained and remain in full force and effect.
CLAUSE 13. GOVERNING LAW
13.1 This Agreement shall be governed by the law of Thailand. The
interpretation of this Agreement shall be made in accordance with the law of
Thailand.
13.2 In case of any dispute, conflict or claim arising out of this
Agreement or in connection with this Agreement, including the breach,
termination or validity of this Agreement, the Parties agree that it shall be
settled by arbitration in accordance with the UNCITRAL Arbitration Rules
applicable at the time of submission of the dispute to arbitration or any other
Rules agreed upon by the parties.
The arbitration panel shall consist of three arbitrators, one to
be appointed by CAT and one by BFKT. The two arbitrators shall jointly appointed
a third arbitrator to be the chairman. If the two arbitrators cannot reach an
agreement, the Director for the time being of the Arbitration Office, Ministry
of Justice shall appoint the third arbitrator. The arbitration shall be
conducted in Bangkok Metropolis, Thailand in the Thai language.
CLAUSE 14. TERMINATION
14.1 If BFKT becomes a bankrupt or is subject to an absolute
receivership order of the Court, CAT shall have the right to terminate this
Agreement forthwith. If BFKT is in breach of any clause of this Agreement, CAT
shall send a written warning to BFKT first to require BFKT
<PAGE>
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to take a remedial action or perform correctly within 120 (One hundred and
twenty) days from the date of notification of CAT. If BFKT fails to do so within
the prescribed time, CAT has the right to terminate this Agreement forthwith.
14.2 If CAT becomes a bankrupt or is subject to an absolute
receivership order of the Court, BFKT shall have the right to terminate this
Agreement forthwith. If CAT is in breach of any clause of this Agreement, BFKT
shall send a written warning to CAT first to require CAT to take a remedial
action or perform correctly within 120 (One hundred and twenty) days from the
date of notification of BFKT. If CAT fails to do so within the prescribed time,
BFKT has the right to terminate this Agreement forthwith.
14.3 If TMT becomes a bankrupt or is subject to an absolute
receivership order of the Court, BFKT shall have the right to terminate this
Agreement forthwith. If TMT fails to pay the Lease Fee, Wage, Operating
Expenses, VAT and/or other related expenses under this Agreement or is in breach
of any Clause of this Agreement, BFKT shall send a written warning to TMT first
to require TMT to take a remedial action or perform correctly within 120 (One
hundred and twenty) days from the date of notification of BFKT. If TMT fails to
do so within the prescribed time and CAT does not terminate the Marketing
Agreement with TMT within 30 (Thirty) days from the date on which CAT is
notified by BFKT in writing that TMT is in breach of the Agreement and fails to
take a remedial action or perform correctly within such prescribed time, BFKT
has the right to terminate this Agreement forthwith.
14.4 In case that the Marketing Agreement is terminated because TMT
breaches such Agreement and CAT terminates it, CAT has the right to continue the
lease of the leased Facilities and the contract for improvement, replacement,
repair, maintenance and operation of the leased Facilities with BFKT under this
Agreement. However, CAT has the right to terminate this Agreement within 1 (One)
year from the day following the date of termination of the Marketing Agreement.
14.5 In case that the Marketing Agreement is terminated because CAT
breaches such Agreement and TMT terminates it, CAT agrees to lease the leased
Facilities from and hire BFKT for improvement, replacement, repair, maintenance
and operation of the leased Facilities under this Agreement.
14.6 In the case under Clause 14.4 or 14.5, CAT agrees to accept the
assignment of rights and obligations of TMT under this Agreement from TMT as
from the day following the date of termination of the Marketing Agreement,
except the responsibility for payment of the Lease Fee, Wage, Operating
Expenses, VAT, and other relevant expenses incurred before and on the date of
termination of the Marketing Agreement including the penalty, surcharge,
interest, damages and any other money due to the non-payment or breach of this
Agreement by TMT which TMT must be liable to pay in full notwithstanding that
they are incurred after the date of termination of the Marketing Agreement. CAT
must not be responsible for payment of those Lease Fee, Wage, Operating
Expenses, VAT, and other relevant expenses including the penalty, surcharge,
interest, damages and any other money to BFKT and BFKT must exercise its claim
and take an action against TMT only for its liability to pay the same. In no
case shall BFKT be entitled to exercise such claim or take an action against
CAT.
14.7 In case that the Marketing Agreement is terminated for any
reason which is not due to the breach under Clause 14.4 or 14.5 of the Marketing
Agreement by TMT or CAT,
<PAGE>
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whether or not this Agreement is terminated, CAT and BFKT agree to enter into a
new lease agreement and contract for improvement, replacement, repair,
maintenance and operation of the leased Facilities. In doing so, CAT and BFKT
shall negotiate in good faith, with reason, to reach a mutual agreement which is
justified to both parties.
14.8 In case that BFKT is in breach of any clause of this Agreement
and CAT has not yet terminated the Agreement as stated in Clause 14.1, CAT shall
have the right to send its officers and employees to jointly carry out a
rectification with BFKT for a period not less than 120 (One hundred and twenty)
days from the day following the expiry of the 120-day period under Clause 14.1.
The expenses relating to those officers and employees of CAT shall be borne by
CAT. If CAT finds it impossible to rectify the breach of BFKT any further, CAT
has the right to terminate this Agreement forthwith. In this connection, BFKT
shall not impose the Lease Fee, Wage, Operating Expenses and other related
expenses from the day following the expiry of the 120-day period under Clause
14.1 until the date on which the ratification is complete or the date on which
CAT terminates the Agreement and BFKT shall not demand TMT and CAT to pay the
same. CAT must terminate the Agreement within 15 days following the completion
of such 120-day period during which CAT sent its officers or employees to
jointly carry out a rectification with BFKT under this Clause, otherwise it
shall be deemed that CAT is no longer entitled to terminate this Agreement. In
such case, BFKT shall still have the right to impose the Lease Fee, Wage and
Operating Expenses hereunder as from the expiration of the termination right of
CAT within the period of 15 days.
14.9 In case that BFKT terminates this Agreement according to Clause
14.2, BFKT may repossess the leased Facilities under Clause 2.1 after the
termination of this Agreement. If those leased Facilities are installed in the
premises which CAT is an owner or has the possession right, BFKT must remove
them without delay at the expense of BFKT.
14.10 In case that either party is unable to perform according to this
Agreement within the period of time hereunder due to Force Majeure, it shall not
be deemed that such party is in breach of the Agreement and the period for such
performance shall be extended according to the duration of such Force Majeure.
CLAUSE 15. EFFECTIVE DATE AND LEASE OF FACILITIES AFTER EXPIRY OF THE LEASE
PERIOD
15.1 This Agreement shall be effective as from the date on which
i-Mobile Holdings Company Limited duly and fully accepts the transfer of shares
from Tawan Telecom Company Limited according to Clause 3 of the Agreement for
Assignment of Rights, Duties and Liabilities under the Shareholders Agreement of
Tawan Mobile Telecom Company Limited among CAT, Tawan Telecom Company Limited
and i-Mobile Holdings Company Limited dated 16 October 2000.
<PAGE>
- 16 -
15.2 Upon expiration of the lease period of the Facilities under
Clause 2.1, CAT shall have the right to lease the Facilities under Clause 2.1
from BFKT for a further period of not less than 5 (Five) years with the terms
and conditions which shall provide CAT with the benefits not lesser than those
under the terms and conditions stipulated herein and the Lease Fee which is not
higher than the rate of the Lease Fee specified herein. In this connection, CAT
must not be responsible for the Lease Fee, Wage, Operating Expenses, VAT and
other relevant expenses which are under the responsibility of TMT and overdue to
BFKT on or before the expiration of the lease period of the Facilities under
Clause 2.1 as well as the penalty, surcharge, interest, damages or any other
money resulting from the unpaid balance or default of TMT in this Agreement.
However, CAT must send a notice of the exercise of its right to lease those
Facilities to BFKT within 6 (Six) months before the expiration of the lease
period of the Facilities under Clause 2.1.
CLAUSE 16. NOTICES
16.1 All notices, reports, correspondences and requests under this
Agreement shall be made in writing in Thai and shall be delivered to the Parties
at the respective addresses hereinbelow stipulated, or any other address
notified by one party to the other in writing from time to time. The notices,
reports, correspondences or requests shall be deemed effective from the date on
which BFKT, TMT and/or CAT receives the same notwithstanding the date specified
therein.
Address of CAT:
THE COMMUNICATIONS AUTHORITY OF THAILAND
No. 99, Mu 3, Chaeng Watthana Road
Kwaeng Thung Song Hong, Khet Laksi
Bangkok Metropolis 10002
Facsimile No.
Address of BFKT
BFKT (THAILAND) COMPANY LIMITED
990 22nd-25th Floor, Rama IV Road
Khwaeng Silom, Khet Bangrak
Bangkok Metropolis 10500
Facsimile No. 636-2111
Address of the TMT:
TAWAN MOBILE TELECOM COMPANY LIMITED
947 Moo 12 Bangna-Trad Road
Khwaeng Bangna, Khet Prakanong
Bangkok Metropolis 10260
Facsimile No. 361-8344
16.2 CAT agrees that all notices, reports, correspondences and
requests to be sent to BFKT under Clause 16.1 in respect of the breach of the
Agreement or remedy of the default or termination of this Agreement shall sent
with copies by registered mail and by fax at the address
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below. The date that such notices, reports, correspondences and requests to BFKT
shall be deemed effective shall be the date as provided in Clause 16.1. The
sending of copies thereof to the address specified herein shall have no legal
effect on the notices, reports, correspondences and requests under Clause 16.1
25th Floor
Abdulrahim Place,
990 Rama IV Road,
Silom, Bangrak,
Bangkok 10500
Attention: Mr. Wisit Kanjanopas
Facsimile No. 636-2111
CLAUSE 17 ATTACHMENTS
The following documents are attached hereto and shall be deemed as part hereof:
17.1 The Certification Document (Affidavit) of BFKT (THAILAND)
COMPANY LIMITED issued by the Partnerships and Companies Registration Office,
Bangkok Metropolis;
17.2 The Certification Document (Affidavit) of TAWAN MOBILE TELECOM
COMPANY LIMITED issued by the Partnerships and Companies Registration Office,
Bangkok Metropolis;
17.3 Technical Specifications and Implementation Plan.
17.4 Guidelines for Inspection and Acceptance of the Facilities of
the Network.
17.5 Scope of Work for Network Management.
17.6 Rules and Methods of Calculations of Lease Fee and Wage
This Agreement is made in 3 copies with identical contents. Each party shall
retain one copy. The three parties have thoroughly read and understood the
contents herein and therefore hereunto sign as evidence in the presence of
witnesses.
THE COMMUNICATIONS AUTHORITY OF THAILAND
Sign
---------------------------------
(Mr. Thirapong Suttinon)
TAWAN MOBILE TELECOM COMPANY LIMITED BFKT (THAILAND) COMPANY LIMITED
Sign /s/ Ormsin Chevapruk Sign /s/ Ormsin Chevapruk
----------------------- -------------------------
(Mr. Ormsin Chevapruk) (Mr. Wai Man Edmund Sin)
Sign /s/ Anuwat Laikijrung
------------------------
(Mr. Anuwat Laikijrung)
<PAGE>
- 18 -
Sign /s/ Pakkaporn Sathienpakiranakorn Witness Sign /s/ Tim Tak Timothy Wong Witness
---------------------------------- -------------------------
(Mr. Pakkaporn Sathienpakiranakorn) (Mr. Tim Tak Timothy Wong)
Sign /s/ Wattanachai Wattanasonthi Witness Sign /s/ Wisit Kanjanopas Witness
------------------------------ ---------------------
(Mr. Wattanachai Wattanasonthi) (Mr. Wisit Kanjanopas)
<PAGE>
- 19 -
Attachment 17.1
(TRANSLATION FROM THAI ORIGINAL)
This Document certifies only the The true and complete certification
particulars the company has must carry a serial number, bear the
registeredfor legal effect. Facts number, bear the full signature of the
relating to actual standing should Registrar and have the seal of the
be sought elsewhere Registrar affixed
( G A R U D A )
No. Sor Or. 0057207 PARTNERSHIPS AND COMPANIES
REGISTRATION OFFICE
Bangkok Metropolis
CERTIFICATION DOCUMENT
This is to certify that this Company was registered under the Civil and
Commercial Code as a juristic person, being incorporated as a limited company,
Registration No. 1147/2543 on the 9th day of August B.E. 2543 and that the
following information appears in the documents registration records on the day
of issuance hereof:
1. The name of the Company is " BFKT (Thailand) Limited".
2. The Company has 2 directors whose names are here listed:
(1) Mr. Ng Jiak Hong (2) Mr. Wai Man Edmund Sin
(3)__________________________ (4)__________________________
(5)__________________________ (6)__________________________
(7)__________________________ (8)__________________________
(9)__________________________ (10)_________________________
(11)_________________________ (12)_________________________
(13)_________________________ (14)_________________________
3. Number or names of the directors who can sign to bind the
Company are: Any one of Mr. Ng Jiak Hong or Mr. Wai Man Edmund
Sin singly sign and affix the Company's seal
4. The registered capital is fixed at Baht 100,000
5. The address of the principal business office is 990 22nd-25th
Floor, Rama IV Road, Khwaeng Silom, Khet Bangrak, Bangkok
Metropolis 10500
6. The objects of the Company comprise 40 items and are as appear
in the copy of the documents attached hereto in 5 sheet(s) which
bear the signature of the Registrar who certified the document
and are affixed with the seal of the Partnerships and Companies
Registration Office.
Issued on this day the 9 October B.E. 2543
<PAGE>
- 20 -
The Registrar may terminate the
registration if it appears later that - Signature -
the registration is not duly done. ( Mrs. Manee Pinvises )
Registrar
(SEAL)
Bor Chor 1146/2543
The objects of this Company are 40 to number, as follows:
GENERAL OBJECTS
(1) To buy, obtain, receive, rent, buy on hire-purchase, own, possess,
improve, use or otherwise manage any property whatsoever as well as the
fruits thereof.
(2) To sell, transfer, mortgage, pledge, exchange or otherwise dispose of
any property.
(3) To be a broker, agent or commission agent in transactions and businesses
of all types except insurance, membership recruitment for associations,
and trading in securities.
(4) To borrow money, overdraw from accounts with banks, juristic persons or
other finance institutions; and to lend money or otherwise give credit,
with or without security; as well as to accept, issue, transfer or
endorse bills of exchange or other negotiable instruments except the
banking business, finance business and credit foncier business.
(5) To establish branch offices or to appoint agents, within or without the
Kingdom.
(6) To become a partner with limited liability and a partner with unlimited
liability in a partnership and a shareholder in a private company and a
public company.
OPERATING OBJECTS
(7) To carry on the business of trading in rice, rice products, cassava,
cassava products, maize, sesame seeds, beans, pepper, jute, kapok,
cotton, lac, castor beans, wood, resin, vegetables, fruits, forest
products, medicinal herbs, animal hides, animal horn, live animals,
animal flesh, sugar, animal feed, and agricultural products of all
kinds.
(8) To carry on the business of trading in machinery, engines, mechanical
tools, labour-saving devices, vehicles, electricity generators and
electrical goods, refrigerators, air-conditioners, fans, electric
rice-cookers, electric irons, water-pumps, heaters, coolers, kitchen
utensils, hardware, copperware, brassware, sanitary fittings, home
fittings, furniture, electrical equipment, and plumbing, including spare
parts and accessories for the aforesaid goods.
(9) To carry on the business of trading in fresh food, dried food,
pre-cooked food, tinned food, food seasoning, liquid refreshment,
liquor, beer, cigarettes, and other consumables.
(10) To carry on the business of trading in textiles, yarn, garments,
ready-made clothes, wearing apparel and accessories, cosmetics, beauty
aids and accessories, and other consumer goods.
<PAGE>
- 21 -
(11) To carry on the business of trading in medicines for the curing and
prevention of disease in humans and animals, pharmaceutical products,
chemical substances, medical and pharmaceutical equipment, fertilizers,
herbicides and pesticides, all kinds of growth agents for plants and
animals, and scientific instrument and equipment.
(12) To carry on the business of trading in gold, precious metal alloys,
silver, diamonds, precious gems and semi-precious stones, including
imitations thereof.
(13) To carry on the business of trading in paper, stationery, school books,
printed forms, printed books, educational materials, calculators,
printers, printing equipment and accessories, printed matter,
newspapers, filing cabinets, and all kinds of office equipment.
(14) To carry on the business of trading in construction materials,
construction equipment and tools, implements used in construction, all
types of workman's tools, pigment and paint, painter's equipment, and
all kinds of building ornament and decoration.
(15) To carry on the business of trading in plastics, or other similar
materials, either in raw form or processed into articles.
(16) To carry on the business of trading in latex, cured rubber sheet, or
other kinds of rubber, which are produced by or derived from any part of
the rubber tree, including synthetic rubber and synthetic versions of
the said materials or goods made by scientific means.
(17) To carry on the business of rice farming, orchard gardening, growing
plant crops, salt production (from evaporation of sea water), forestry,
rubber plantation, raising animals, and the stock-raising business.
(18) To carry on the business of a rice mill, sawmill, planing and
impregnating timber mill, automobile body builders, ceramic and glazed
ware factory, pottery factory, jute-bailing factory, vegetable-oil
extraction factory, paper factory, gunny-bag factory, textile factory,
spinning factory, textile dying and printing factory, rubber-tire
manufacture and retreading factory, iron works, metal casting and
machine lathing, and galvanized, iron sheet manufacture, pre-cooked food
factory, liquor distillery, gas factory, cigarette factory, sugar-mill,
plastic goods factory, metal-pressing and smelting factory, door and
window manufacture, glass factory, soft drink manufacture, rubber
casting factory, automobile assembly works.
(19) To carry on the business of a printing house, printing and publishing
books service, printing and publishing books for sale and newspaper
publishing.
(20) To carry on the business of ice factory.
(21) To carry on the business of fishery, fishing pontoons, and fish trading
on piers.
<PAGE>
- 22 -
(22) To carry on business of stone blasting and rock crushing.
(23) To carry on the contracting business of constructing buildings,
commercial buildings, residential buildings, offices, roads, bridges,
tunnels, dams, and all other kinds of constructions as well as all
categories of civil engineering work.
(24) To carry on the business of mining, ore smelting, ore extraction, ore
conversion, fusing ores, dressing minerals, mineral surveying, analyzing
and examining minerals, grinding ore and transportation of minerals and
ore.
(25) To carry on the business of hotels, restaurants, bars, night-clubs,
bowling alleys, massage parlors, cinema theatres and other kinds of
theatres of entertainment, vacation resorts, sport fields, and swimming
pools.
(26) To carry on the business of shipment transportation and loading of goods
and passengers on land, on water, or in the air, both within the country
and internationally, including the services of bringing shipment at
ports through customs clearance and management of all kinds of freight.
(27) To carry on the business of guided tours including all kinds of business
involved with guided tours.
(28) To carry on the business of import and export of the goods stipulated in
the objects for distribution.
(29) To carry on the business of hair-cutting, hair-dressing, beauty-salon,
dress-making, and laundry.
(30) To carry on the business of commercial photograph, the development,
printing and enlargement of photographs, including the same for
documents.
(31) To carry on the business of production and distribution of movie films.
(32) To carry on the business of a service station selling petrol and
providing repair, maintenance and inspection services, lubrication,
spraying, and anti-rust treatment for all kinds of vehicles, including
the services of installation, inspection and fixing of all kinds of
anti-theft and accident prevention accessories.
(33) To carry on service businesses in legal, accountancy, engineering and
architectural fields, including advertising.
(34) To undertake a service business providing guarantees for debt, liability
or performance of the contractual obligations of other persons,
including the guarantee for a person who has
<PAGE>
- 23 -
entered or departed the country in accordance with the laws of
immigration, taxation and other laws.
(35) To undertake a service business of counselling and making
recommendations on problems related to work management, commerce and
industry, including problems of manufacturing, marketing and
distributing.
(36) To carry on a service business of collecting, compiling, preparing,
publishing and distributing statistics, data and information concerning
agriculture, industry, commerce, finance and the market, including
analyzing and assessing the outcome of business transactions.
(37) To carry on the business of a private hospital and nursing home, of
curing of the ill and people in pain, and providing technical
instruction and training in medicine and health science.
(38) To carry on a service business of being a manager who protects
interests, collects and receives the benefit and manages the properties
of others.
(39) To carry on the business of bidding for sale of goods and hire of work
in accordance with all of the objects, for any person, body of persons,
juristic person, government agency and state enterprise.
(40) The Company is entitled to issue shares at a price higher than par
value.
<PAGE>
- 24 -
Attachment 17.2
(TRANSLATION FROM THE THAI ORIGINAL)
This Document certifies only the The true and complete certification
particulars the company has must carry a serial number, bear the
registered for legal effect. Facts full signature of the Registrar and
relating to actual standing should have the seal of the Registrar affixed
be sought elsewhere
( G A R U D A )
No. Sor Or. 0057206 PARTNERSHIPS AND COMPANIES
REGISTRATION OFFICE
Bangkok Metropolis
CERTIFICATION DOCUMENT
This is to certify that this Company was registered under the Civil and
Commercial Code as a juristic person, being incorporated as a limited company,
Registration No. (2) 2575/2539 on the 14th day of June B.E. 2539 and that the
following information appears in the documents registration records on the day
of issuance hereof:
1. The name of the Company is " Tawan Mobile Telecom Company
Limited".
2. The Company has 9 directors whose names are here listed:
(1) Mr. Anuwat Laikijrung (2) Mr. Sukhato Phummalee
(3) Mr. Rasamee Sawamipak (4) Mr. Worrawit Pativejwong
(5) Mr. Ratana Meetem (6) Mr. Prasartporn Surasit
(7) Mr. Ormsin Chivapruck (8) Mr. Watthanachai Watthanasonthi
(9) Mr. Ratien Srimongkon (10)___________________________
(11)______________________ (12)___________________________
(13)______________________ (14)___________________________
3. Number or names of the directors who can sign to bind the
Company are: 1. Any one of Mr. Prasartporn Surasit or Mr. Ormsin
Chivapruck or Mr. Watthanachai Watthanasonthi and any of one Mr.
Anuwat Laikijrung or Mr. Sukhato Phummalee or Mr. Worrawit
Pativejwong or Mr. Ratana Meetem or Mr. Rasamee Sawamipak or Mr.
Ratien Srimongkon jointly sign with affix the Company's seal
4. The registered capital is fixed at Baht 15,000,000
5. The address of the principal business office is 947 Moo 12
Bangna-Trad Road, Khwaeng Bangna, Khet Bangna, Bangkok
Metropolis
6. The objects of the Company comprise 50 items and are as appear
in the copy of the documents attached hereto in 6 sheet(s) which
bear the signature of the Registrar who certified the document
and are affixed with the seal of the Partnerships and Companies
Registration Office.
Issued on this day the 9 October B.E. 2543
<PAGE>
- 25 -
The Registrar may terminate the
registration if it appears later that - Signature -
the registration is not duly done. ( Mrs. Manee Pinvises )
Registrar
(SEAL)
Bor Chor (2) 2575/2539
The objects of this Company are 50 to number, as follows:
GENERAL OBJECTS
(1) To buy, obtain, receive, rent, lease out buy or hire-purchase, own,
possess, improve, use or otherwise manage any property whatsoever as
well as the fruits thereof.
(2) To sell, transfer, mortgage, pledge, receiving pledge exchange or
otherwise dispose of any property.
(3) To be a broker, agent or commission agent in transactions and businesses
of all types except insurance, membership recruitment for associations,
and trading in securities.
(4) To borrow money, overdraw from accounts with banks, juristic persons or
other finance institutions; and to lend money or otherwise give credit,
with or without security; as well as to accept, issue, transfer or
endorse bills of exchange or other negotiable instruments except the
banking business, finance business and credit foncier business.
(5) To establish branch offices or to appoint agents, within or without the
Kingdom.
(6) To become a partner with limited liability in a partnership and a
shareholder in other companies.
OPERATING OBJECTS
(7) To carry on the business of trading in rice, rice products, cassava,
cassava products, maize, sesame seeds, beans, pepper, jute, kapok,
cotton, lac, castor beans, wood, resin, vegetables, fruits, forest
products, medicinal herbs, animal hides, animal horn, live animals,
animal flesh, sugar, animal feed, and agricultural products of all
kinds.
(8) To carry on the business of trading in machinery, engines, mechanical
tools, labour-saving devices, vehicles, electricity generators and
electrical goods, refrigerators, air-conditioners, fans, electric
rice-cookers, electric irons, water-pumps, heaters, coolers, kitchen
utensils, hardware, copperware, brassware, sanitary fittings, home
fittings, furniture, electrical equipment, and plumbing, including spare
parts and accessories for the aforesaid goods.
(9) To carry on the business of trading in fresh food, dried food,
pre-cooked food, tinned food, food seasoning, liquid refreshment,
liquor, beer, cigarettes, and other consumables.
<PAGE>
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(10) To carry on the business of trading in textiles, yarn, garments,
ready-made clothes, wearing apparel and accessories, cosmetics, beauty
aids and accessories, and other consumer goods.
(11) To carry on the business of trading in medicines for the curing and
prevention of disease in humans and animals, pharmaceutical products,
chemical substances, medical and pharmaceutical equipment, fertilizers,
herbicides and pesticides, all kinds of growth agents for plants and
animals, and scientific instrument and equipment.
(12) To carry on the business of trading in gold, precious metal alloys,
silver, diamonds, precious gems and semi-precious stones, including
imitations thereof.
(13) To carry on the business of trading in paper, stationery, school books,
printed forms, printed books, educational materials, calculators,
printers, printing equipment and accessories, printed matter,
newspapers, filing cabinets, and all kinds of office equipment.
(14) To carry on the business of trading in construction materials,
construction equipment and tools, implements used in construction, all
types of workman's tools, pigment and paint, painter's equipment, and
all kinds of building ornament and decoration.
(15) To carry on the business of trading in plastics, or other similar
materials, either in raw form or processed into articles.
(16) To carry on the business of trading in latex, cured rubber sheet, or
other kinds of rubber, which are produced by or derived from any part of
the rubber tree, including synthetic rubber and synthetic versions of
the said materials or goods made by scientific means.
(17) To carry on the business of rice farming, orchard gardening, growing
plant crops, salt production (from evaporation of sea water), forestry,
rubber plantation, raising animals, and the stock-raising business.
(18) To carry on the business of a rice mill, sawmill, planing and
impregnating timber mill, automobile body builders, ceramic and glazed
ware factory, pottery factory, jute-bailing factory, vegetable-oil
extraction factory, paper factory, gunny-bag factory, textile factory,
spinning factory, textile dying and printing factory, rubber-tire
manufacture and retreading factory, iron works, metal casting and
machine lathing, and galvanized, iron sheet manufacture, pre-cooked food
factory, liquor distillery, gas factory, cigarette factory, sugar-mill,
plastic goods factory, metal-pressing and smelting factory, door and
window manufacture, glass factory, soft drink manufacture, rubber
casting factory, automobile assembly works.
(19) To carry on the business of a printing house, printing and publishing
books service, printing and publishing books for sale and newspaper
publishing.
(20) To carry on the business of ice factory.
<PAGE>
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(21) To carry on the business of fishery, fishing pontoons, and fish trading
on piers.
(22) To carry on business of stone blasting and rock crushing.
(23) To carry on the contracting business of constructing buildings,
commercial buildings, residential buildings, offices, roads, bridges,
tunnels, dams, and all other kinds of constructions as well as all
categories of civil engineering work.
(24) To carry on the business of mining, ore smelting, ore extraction, ore
conversion, fusing ores, dressing minerals, mineral surveying, analyzing
and examining minerals, grinding ore and transportation of minerals and
ore.
(25) To carry on the business of hotels, restaurants, bars, night-clubs,
bowling alleys, massage parlors, cinema theatres and other kinds of
theatres of entertainment, vacation resorts, sport fields, and swimming
pools.
(26) To carry on the business of shipment transportation and loading of goods
and passengers on land, on water, or in the air, both within the country
and internationally, including the services of bringing shipment at
ports through customs clearance and management of all kinds of freight.
(27) To carry on the business of guided tours including all kinds of business
involved with guided tours.
(28) To carry on the business of foreign currency exchange (when permitted by
the Ministry of Finance).
(29) To carry on the business of import and export for distribution of the
goods stipulated in the objects.
(30) To carry on the business of hair-cutting, hair-dressing, beauty-salon,
dress-making, and laundry.
(31) To carry on the business of commercial photograph, the development,
printing and enlargement of photographs, including the same for
documents.
(32) To carry on the business of production and distribution of movie films.
(33) To carry on the business of a service station selling petrol and
providing repair, maintenance and inspection services, lubrication,
spraying, and anti-rust treatment for all kinds of vehicles, including
the services of installation, inspection and fixing of all kinds of
anti-theft and accident prevention accessories.
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(34) To carry on service businesses in legal, accountancy, engineering and
architectural fields, including advertising.
(35) To undertake a service business providing guarantees for debt, liability
or performance of the contractual obligations of other persons,
including the guarantee for a person who has entered or departed the
country in accordance with the laws of immigration, taxation and other
laws.
(36) To undertake a service business of counselling and making
recommendations on problems related to work management, commerce and
industry, including problems of manufacturing, marketing and
distributing.
(37) To carry on a service business of collecting, compiling, preparing,
publishing and distributing statistics, data and information concerning
agriculture, industry, commerce, finance and the market, including
analyzing and assessing the outcome of business transactions.
(38) To carry on the business of a private hospital and nursing home, of
curing of the ill and people in pain, and providing technical
instruction and training in medicine and health science.
(39) To carry on a service business of being a manager who protects
interests, collects and receives the benefit and manages the properties
of others.
(40) To carry on the business of bidding for sale of goods and hire of work
in accordance with all of the objects, for any person, body of persons,
juristic person, government agency and state enterprise.
(41) To carry on the business of cellular telephone communication services.
(42) To engage in the business of providing news and telex communication
services and in the business of providing services on television and
radio, mass communication, and all kind of telecommunication; to
produce, procure, and to be hired to produce and procure videotape,
transmitter and receiver radio, television and video, and all kind of
communication equipment including necessary materials and devices in
order to implement its business engaged, or its services provided, or
otherwise be hired of service.
(43) To carry on its licensed or assigned business and to provide services
thereto, or to engage in the business requested by any government
agency, state enterprise, juristic person, or private agency both in and
outside Thailand, and to enter into or become an associate of a business
and affair which it is licensed or assigned or be hired of service in
relation with radio, television, video, equipment or all kind of
telecommunication instruments or mass communication businesses.
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(44) To carry on the business to let property, sell, rent, let, hire
purchase, let for hire purchase, sell with right of redemption,
exchange, mortgage, or acquire or dispose of land and immovable property
by any means. To use or utilize land or other assets and to mortgage,
take mortgage of, rent, let, or exchange of movable properties;
(45) To buy, sell, assemble, install radio and telephone appliances and all
kind of telecommunications and electronic equipment, as well as radio
wires and telegram wires used together with the such equipment and
appliances, metals used for installing pole and telephone wires, all
kinds of equipment to be used or to facilitate radio telegram in every
frequency including receiver or transmitter in any means, equipment for
marine telecommunication, tube communication and control systems,
satellite communication system, radio communication and accessories
thereof.
(46) To carry on the business of repair, and maintenance services of
merchandises pursuant to the Company's objects and to clean, test, and
give instruction in connection with the application, maintenance and
operation thereof.
(47) To make contact with govern agencies and competent office to acquire or
dispose of exclusive rights, agreements, rights, ownership, licenses,
rights over trademark, industrial property, copyrights, patents,
concessions or privileges necessary for business operation of the
Company.
(48) To file application and hold permits and other registration which are
necessary to or for the purpose of the business of the Company.
(49) To carry on the business of installation, repair, and maintenance of all
kind of public telephone and to import, manufacture and sell all kind of
telephone appliances, public telephone appliances and telephone cards.
(50) To carry on telecommunication business as well as to market
cellular-system telephone service on Digital AMPS 800 Band A of
Telecommunication Authority of Thailand, i.e. to procure sale channel
for cellular phone and service for Digital AMPS 800 Band A of the
Telecommunication Authority of Thailand and to procure additional
services in connection therewith, after-sale services and other services
in connection with sales and promotion.
<PAGE>
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Attachment 17.3
Technical Specifications and Implementation Plan
[***]
<PAGE>
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Attachment 17.4
CELL SITE ACCEPTANCE TEST INDICATORS
After cell site equipment installation, all site operation will undergo
initial testing and provisional testing which will include BTS calibration,
Transmit / Receive path measurement, drive test for RF coverage, verifying
handoff paths and performance monitoring for one week. All the above tests must
be witnessed and accepted by staff from CAT.
When the above tests has been accomplished CAT will be invited to join
the following tests for Ready-For-Service Acceptance :
1. Visual check of all antennae, ancillaries are properly installed with
the necessary grounding.
2. Verify the Cell Site configuration such that the equipment is properly
installed.
3. Verify GPS signed reception and the perform BTS synchronization.
4. Call set up test with 95% successful rate at -75 dBm field strength
boundary on street level.
- 10 origination calls to a fixed line phone.
- 10 termination calls from a fixed line phone.
- 10 origination calls to a CDMA mobile phone.
- 10 termination calls from a CDMA mobile phone.
- Call duration 90 seconds.
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Attachment 17.5
Scope of Work for Network Management.
[***]
<PAGE>
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Attachment 17.6
Rules and Methods of Calculations of Lease Fee and Wage
[***]