EXHIBIT 10.1
CURRENT ACCOUNT CREDIT OPENING AGREEMENT FORMALIZED BY SCOTIABANK INVERLAT,
SOCIEDAD ANONIMA, A MULTIPLE BANKING INSTITUTION, GRUPO FINANCIERO SCOTIABANK
INVERLAT, HEREINAFTER REFERRED TO AS "THE CREDITOR", REPRESENTED BY MR.
FRANCISCO VAZQUEZ FERNANDEZ AND BY DAISYTEK DE MEXICO, A VARIABLE CAPITAL
CORPORATION, HEREINAFTER REFERRED TO AS "THE ACCREDITED" REPRESENTED BY GLAUBER
DAVID VIVAS; PURSUANT WITH THE FOLLOWING STATEMENTS AND CLAUSES:
REPRESENTATIONS AND WARRANTEES
I. The Creditor's representative states that his represented is a Credit
Institution, constituted in accordance with the laws in the matter and is
empowered to formalize the agreement herein..
II. The Accredited representative states that:
a) His represented is a mercantile society of Mexican nationality regulated by
its social statutes, by the General Mercantile Societies Law (Ley de
Sociedades Mercantiles) and other applicable regulations.
b) His represented is proprietor of the inventories of merchandise located
within its installations, distinct from deposited merchandise or merchandise
deposited on consignment for sale of which third parties are owners of as
well as the machinery used for its operation.
c) He has no knowledge of any legal procedure filed against his represented,
which could adversely affect their financial situation, operations, assets
or their own legal existence, in prejudice of the legality validity or
ability to claim what is set forth by the agreement herein.
d) The financial and accountable information brought forth to the Creditor for
the acceptance of this credit, accurately and truthfully reflects his
represented economic situation and therefore has not breached article one
hundred and twelve of the Credit Institutions Law (Ley de Instituciones de
Credito), whose text and legal scope has been explained to them, thus
considering its transcription unnecessary.
e) To comply with the general capacity dispositions referred to by article one
hundred and fifteen of the Credit Institutions Law (Ley de Instituciones de
Credito), issued by the Treasury Department (Secretaria de Hacienda y
Credito Publico), in the Official Federation Diary (Diario Oficial de la
Federacion) on the tenth of March, nineteen ninety seven, and according to
what is set forth in the Second disposition, he has brought forth before the
Creditor copies of the documents of his represented listed as follows:
1. Federal Taxpayer's Record Identification Number and Fiscal
Identification Certificate.
2. Evidence of the filed Deeds of Incorporation of his represented, and
their applicable reforms, as well as the power through which its credits
its empowerment of representation.
3. His represented proofs of address (Property tax payment, electric power
service receipt, telephone bill, etc.).
f) That his represented acknowledges that the agreement herein was authorized
according to the legal and financial regulations applicable to Credit
Institutions, based on the information provided by the Creditor.
g) That his represented has knowledge of the fact that a breach of any positive
or negative covenants give rise to effects that repercussion on the credit
administration costs, that is, in the charge of a commission that to this
effect the Creditor gives knowledge of at the moment of signing, for in the
event of any such assumption, the Creditor needs to perform several
unforeseen administrative and/or juridical activities, in order for the
Accredited to fulfill the obligations agreed to in the agreement herein.
h) That it owns the assets that integrate the Industrial Unit, which is free of
encumbrance or domain limitation, as evidenced with the corresponding
certificate issued by the Public Commerce Records of the Federal District
Registro Publico de Comercio del Distrito Federal attached to the agreement
herein as annex "A". The Industrial Unit is understood as all floating and
fixed assets subject to exploitation, cash in the current account and
credits in favour of the company, originated by its operations, considered
in their unity.
Having stated the above, the parties grant the following:
CLAUSES
CHAPTER ONE
CURRENT ACCOUNT CREDIT
FIRST.- CREDIT.- The Creditor grants the Accredited a Current Account Credit, up
to the amount of $90'000,000.00 (NINENTY MILLION PESOS, MEXICAN LEGAL TENDER).
This amount does not include the interest, expenses and accessories the
Accredited shall cover for the use of the credit herein..
SECOND.- DESTINATION.- The Accredited is obliged to invest the credit amount
precisely as support to his working capital.
THIRD.- WITHDRAWAL.- The Accredited may withdraw the granted revolving credit
amount in the following terms:
a) In a revolving manner at maximum terms of 180 (one hundred and eighty)
days, with the possibility of extending the withdrawal terms without
surpassing the indicated 180 (one hundred and eighty) days; and may again
dispose of the granted credit amounts he may have settled when the stated
term has expired.
b) Up to the amount that is lower from the following amounts:
b.1) $90'000,000.00 (Ninety million pesos Mexican Legal Tender 00/100),
which the first clause of this agreement refer to; or
b.2) The amount resulting from the maximum financing Calculation relative to
the analysis of accounts receivable and the inventory of the
Accredited.
We understand as maximum financing Calculation, the monthly balance in books
of its accounts receivable with an age not older than 120 (one hundred and
twenty) days times 60% (sixty percent), plus the monthly balance in books of
its inventories times 30%(thirty percent).
Such withdrawals shall for no reason surpass neither the open credit amount nor
the expiry date of the contract herein.
The Accredited may have access to the credit, providing the agreement herein is
ratified before a public certifier appointed by the Creditor and in its case, is
filed, or else brought forth for this process, in the corresponding Property and
Commerce Public Files.
FOURTH.- COMMISSIONS.- The Accredited is obliged to pay the Creditor, over the
total credit amount, an opening commission equivalent to 1 % (one percent).
Likewise, the Accredited shall promptly inform the Creditor about any likely
non-compliance in the cases where the Accredited itself has previous knowledge
of the fact that it will be unable to fulfill its positive and negative
covenants on time, and for such purpose he must request an extension to fulfill
such obligations.
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In such extension application he shall describe the causes
that originate such non-compliance, the actions and periods of time he will need
to repair it, understanding that the Creditor reserves his right to grant the
aforementioned extension to the Accredited.
If the Creditor has knowledge of any non-compliance with the positive and
negative covenants, it will notify the Accredited in order for them to inform it
of the causes that originated such non-compliance, the actions and periods of
time he will take to repair them for which an extension will be applied for in
order to comply with such obligations. In said application the causes that
originated such non-compliance will be outlined, with the understanding that the
Creditor reserves the right to serve the Accredited the aforesaid extension.
In both cases, the Accredited authorizes the Creditor to charge on any of the
checking accounts it manages, the valid fee it informs them whenever any of the
aforementioned assumptions occur. For informative effects, the fee at the time
the agreement herein was formalized is USD $200.00 (Two-hundred dollars United
States of America legal tender 00/100) or its equivalent in Pesos, Mexican
Currency, plus the Value Added Tax (V.A.T.).
Without prejudice that the Accredited pay the commission for non-compliance
outlined in the previous paragraph, the Creditor reserves the power to terminate
the agreement herein in advance due to non-compliance.
FIFTH.- AMORTIZATION.- The Accredited:
a) Is obliged to restore the Creditor the withdrawn amounts at the agreed
dates for their amortization in the promissory notes that evidence the
dispositions and in its case, together with their interest, whenever the
withdrawals have an expiry term under 3 (three) months.
b) Shall in no event surpass the amount of the withdrawals charged to this
credit, surpass the limit set forth, in its case the due date of the
promissory notes that evidence them, nor the validity of this agreement.
The application of the amounts the Accredited pays the Creditor shall cover his
debt in the following sequence:
a) Trial or collections expenses, insurance or other accounted concepts, if
any,
b) Value Added Tax over penalty interest, if any,
c) Penalty interest,
d) Value Added Tax over ordinary interest,
e) Ordinary interest,
f) Overdue capital,
g) Valid capital.
The Accredited shall make the payments corresponding to the Creditor, at the
working day immediately subsequent to each of the payment dates if any of them
should be a non-working day.
SIXTH.- INTEREST.- The Accredited is obliged to pay the Creditor, ordinary
annual interest, over the unpaid balances according to the following:
a) In a due quarterly manner, when the withdrawal due date is equal to or
over 3 (three) months.
b) At the withdrawal due date, when it is under 3 (three) months.
c) We shall take as reference rate the Interbank Equilibrium Interest Rate
(T.I.I.E), which shall be determined at the beginning of the interest
calculation period and is updated on a monthly basis.
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To the reference rate mentioned in the above item c), we shall add 3.25 (three
point twenty-five) additional percentage points, thus conforming the ordinary
interest rate.
In the event the T.I.I.E. Rate exists no more, or when the ordinary interest
calculation is done, according to what is set forth in the above paragraph, is
unknown, its substitute reference rate shall be that of the Federation Treasury
Certificates (CETES); to this reference rate we shall add 6.25 (six point
twenty-five) percentage points, thus conforming the substitute interest rate.
In the event the T.I.I.E and CETES rates no longer exist, or when the interest
calculation is done, they are unknown, their substitute reference rate shall be
the Liabilities Time Collection Cost (C.C.P.); to this reference rate we shall
add 7.5 (seven point five) percentage points, thus conforming the substitute
rate.
The agreed rate and, in its case, its substitute rates, shall be applied at the
effectively elapsed days during the interest calculation period.
DEFINITIONS:
As T.I.I.E. we shall understand the 28-day term Interbank Equilibrium Rate
issued daily by the Banco de Mexico, through the Oficial Federation Diary
(Diario Oficial de la Federacion), the day each interest rate determination
period begins, and for effects of its calculation, the 28-day term T.I.I.E rate
shall be equivalent to 30-day terms. In the event such rate is not issued, we
shall use as reference rate that issued at the immediately prior date, and so
subsequently until the twenty-second day of such interest calculation rate date.
As CETES we shall understand the 28-day term Federation Treasury Certificates
Rate, issued by the Banco de Mexico, through the Oficial Federation Diary
(Diario Oficial de la Federacion) at the most recent prior date to the starting
date of each interest rate determination period.
As Liabilities Time Collection Cost (C.C.P.) we shall understand the 30-day
Liabilities Time Collection cost, estimated by the Banco de Mexico representing
the group of Multiple Banking Institutions and issued by the Official Federation
Diary (Diario Oficial de la Federacion) at the initial date of each rate
determination period.
If the Accredited were to incur in payment default of the agreed amortizations,
as well as any other obligation under its charge, caused by the credit hereby
formalized, the Creditor shall apply penalty interest equal to those resulting
from multiplying by 2 (two) the aforementioned ordinary interest rate, during
the term it is still in force.
Penalty interest shall give rise: over any of the Accredited unpaid due balance
which is not interest and over the amount of other patrimonial obligations under
the Accredited liability that are not over capital or interest if they are not
paid in terms with what is set forth herein.
SEVENTH.- WITHDRAWAL DOCUMENTATION.- To document a withdrawal set forth herein,
the Accredited shall subscribe to the Creditor promissory notes that shall not
surpass its amount and whose expiry dates shall not be later than this
agreement's expiry date; such securities shall gather the requirements, terms
and conditions set forth by the General Securities and Credit Operations Law.
CHAPTER TWO
48-HOUR CURRENT ACCOUNT CREDIT
EIGHTH.- CREDIT.- The Creditor grants the Accredited a Current Account Credit,
up to the amount of $5'000,000.00 (FIVE MILLION PESOS, MEXICAN LEGAL TENDER).
This amount does not include interest, expenses and accessories the Accredited
shall cover to use the herein credit.
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NINTH.- DISPOSITION.- The Accredited may make use of the credit amount
exclusively to cover the remaining amounts when drafting checks to be paid
charged on checking account number 0001181122 which the Accredited himself has
established with the Creditor in Branch PATRIOTISMO (113), Mexico City, Federal
District (Distrito Federal).
The Accredited may make use of the credit amount conceded herein providing it is
ratified before a public Certifier appointed by the Creditor and, in its case,
is filed, or else brought forth for this process, in the corresponding Property
and Commerce Public Files.
TENTH.- AMORTIZATION.- The Accredited is obliged to restore the Creditor the
established amounts, with their corresponding interest according to the herein
interest clause, exactly within forty-eight hours after the withdrawal in
question.
The application of payments by the Accredited to the Creditor shall be to cover
his debt in the following sequence:
a) Trial or collections expenses, insurance and commissions, if any,
b) Value Added Tax over penalty interest, if any,
c) Penalty interest,
d) Value Added Tax over ordinary interest,
e) Ordinary interest,
f) Overdue capital,
g) Valid capital.
The Accredited shall pay the Creditor, at the working day immediately subsequent
to each of the payment dates if any of them should be a non-working day.
ELEVENTH.- INTEREST.- The Accredited is obliged to pay the Creditor, exactly
within 48 hours after the date of withdrawal, ordinary annual interest, over
unpaid balances according to the following: the reference rate shall be the
Interbank Equilibrium Interest Rate (T.I.I.E..), which shall be determined at
the beginning of the interest calculation period and will be updated on a daily
basis
To the aforementioned reference rate, we shall add 2.5 (two point five)
percentage points, thus conforming the ordinary interest rate.
In the event the T.I.I.E. Rate exists no more, or when the ordinary interest
calculation is done, according to what is set forth in the above paragraph, is
unknown, its substitute reference rate shall be that of the Federation Treasury
Certificates (CETES); to this reference rate we shall add 5.5 (five point five)
percentage points, thus conforming the substitute interest rate.
In the event the T.I.I.E and CETES rates no longer exist, or when the interest
calculation is done, they are unknown, their substitute reference rate shall be
the Liabilities Time Collection Cost (C.C.P.); to this reference rate we shall
add 6.5 (six point five) percentage points, thus conforming the substitute rate.
The agreed rate and, in its case, its substitute rates, shall be applied at the
effectively elapsed days during the interest calculation period.
DEFINITIONS:
As T.I.I.E. we shall understand the 28-day term Interbank Equilibrium Rate
issued daily by the Banco de Mexico, through the Oficial Federation Diary
(Diario Oficial de la Federacion), the day each interest rate determination
period begins, and for effects of its calculation, the 28-day term T.I.I.E rate
shall be
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equivalent to 30-day terms. In the event such rate is not issued, we shall use
as reference rate that issued at the immediately prior date, and so subsequently
until the twenty-second day of such interest calculation rate date.
As CETES we shall understand the 28-day term Federation Treasury Certificates
Rate, issued by the Banco de Mexico, through the Oficial Federation Diary
(Diario Oficial de la Federacion) at the most recent prior date to the starting
date of each interest rate determination period.
As Liabilities Time Collection Cost (C.C.P.) we shall understand the 30-day
Liabilities Time Collection cost, estimated by the Banco de Mexico representing
the group of Multiple Banking Institutions and issued by the Official Federation
Diary (Diario Oficial de la Federacion) at the initial date of each rate
determination period.
If the Accredited were to incur in payment default of the agreed amortizations,
as well as any other obligation under his charge, caused by the credit hereby
formalized, the Creditor shall apply penalty interest equal to those resulting
from multiplying by 2 (two) the aforementioned ordinary interest rate, during
the term it is still in force.
Penalty interest shall give rise: over any of the Accredited unpaid due balance
which is not interest and over the amount of other patrimonial obligations under
the Accredited liability that are not over capital or interest if they are not
paid in terms with what is set forth herein.
CHAPTER THREE
COMMON CLAUSES
TWELFTH.- TERMINATION.- This agreement shall be deemed as terminated at its (36)
thirty-six months of validity, counting from its date of formalization. Without
prejudice to the above, the Creditor, at the twelfth and twenty-fourth months
portfolio validity, shall have the power to make a credit revision, as well as a
revision of the terms, conditions and obligations under the charge of the
Accredited according to the present Contract and Daisytek International
Corporation under the terms of the Guarantee Letter, and in its case to deem it
terminated at such dated, and thus shall notify the Accredited himself about the
early termination, thirty days prior to the effective termination date, and he
shall pay the unpaid credit balance.
THIRTEENTH.- GUARANTEES.- Without prejudice of the obligation by the Accredited
of responding with all his assets, present or future, as guarantee of the
fulfillment of the obligations under his charge derived from the agreement
herein, of the payment of interest and other benefits derived from the Law or
Judicial Resolutions and from expenses and trial expenses or costs in the event
of a trial where the court rules to hold the Accredited to its payment, the
Accredited constitutes in favor and with the Creditor's consent, a SPECIFIC AND
FIRST TERM MORTGAGE OVER THE INDUSTRIAL UNIT HE IS PROPRIETOR OF, which includes
all the material and fixture elements of the Accredited's business subject to
exploitation, considered in his unit, the current exploitation cash, the loans
in favor of the Accredited originated by his operations, his collectibles,
without prejudice of the responsibility of disposing of them and substituting
them in the normal movement of its operations, without the need of consent by
the Creditor and its total assets located within the mentioned Industrial Unit.
Such mortgage includes all and everything that corresponds to it, in terms with
article sixty-seven of the Credit Institutions Law, and therefore it will
prevail due to its filing in the corresponding Public Commerce Records, during
the entire duration of any unpaid balance under the Accredited.
The Accredited broadens the agreed industrial mortgage to past due unpaid
interest, even if it exceeds three years, agreement which will be filed in the
corresponding Public Commerce Records. The Accredited guarantees with the agreed
mortgage, the herein credit amount and its accessories, notwithstanding the
guaranteed obligation is reduced.
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The guarantees constituted in accordance with what is set forth above shall
prevail while the capital or its interest, all or in parts, remain unpaid. The
Accredited states his conformity in the fact that there shall be no guarantee
decrease if the credit is decreased.
To comply with what is set forth by the Security and Exchange Commission
(Comision Nacional Bancaria y de Valores) in matters of appraisals, the Creditor
shall request the elaboration of the corresponding appraisals, in its case,
every two years starting from the date this agreement is signed, in order to
verify the value of the goods granted as guarantee; the expenses caused by the
elaboration of the appraisals shall be borne by the Accredited, who authorized
the corresponding charge on the Accredited checking account.
Without prejudice of the guarantee constituted herein, the Accredited is obliged
to deliver a letter of Guarantee from Daisytek International Corporation for an
amount of $95'000,000.00 (Ninety five million pesos, Mexican Legal Tender
00/100), which shall have the same validity term as the herein agreement. Such
guarantee shall subsist providing there is a pending debt and shall respond for
the total unpaid credit at that point of time, together with ordinary interest,
penalty interest, if any, and other legal accessories in reasonable and duly
evidenced amounts.
FOURTEENTH.- OFFICER.- The Creditor shall be entitled, during the validity of
the agreement herein, to appoint an officer to verify the exact compliance of
the obligations under the Accredited.
FIFTEENTH.- NEGOTIABILITY.- The Accredited specifically empowers the Creditor to
discount or cede the entire or part of the credit, even before it expires and in
its case, to endorse and in any other form negotiate the securities that
document the dispositions derived from the credit herein, though this will not
deem it renewed in the ceded or discounted portion.
SIXTEENTH.- INSURANCE.- The Accredited or Daisytek International Corporation
isis obliged at the date of signature of the agreement herein or at the latest
by the first withdrawal to acquire insurance that covers his company's assets
for an amount no lesser than their replacement value, as well as that which
covers its accounts receivable, for a minimum value of USD 8,000,000 (eight
million dollars, legal tender of the United States of America). In both cases,
the policies should have the main endorsement in favor of the Creditor and to
furnish the Creditor with the insurance certificate or policy.
In the policy that covers the accounts receivable it shall be set forth that if
they surpass a 180-day (one hundred and eighty day) term, the Creditor as main
beneficiary may demand the collection of the policy.
By the expiration date of the aforementioned policies, the Accredited or
Daisytek International Corporation shall perform the corresponding renewal,
furnishing the Creditor with a copy of the new insurance policy.
Likewise, the Accredited or Daisytek International Corporation is obliged to
insure the assets object to guarantee, for an amount no lesser than their
replacement value, which covers at least the total amount of the granted credit
and its accessories, stating as beneficiary the Creditor and to process the
endorsement through which the insurance company is informed that the insured
assets have been object of a guarantee granted for the Creditor, in order for
the corresponding policy to point out the corresponding encumbrance.
In the event the Accredited or Daisytek International Corporation does not
contract an insurance in the terms set forth in the above paragraphs, they
hereby authorize the Creditor to contract the corresponding insurance and to
charge on any of the checking accounts that has or comes to have the
corresponding amounts. Likewise, when the policies expire, the Accredited is
obliged to deliver the renewals within a 15-day term; after such term, they
authorize the Creditor to request them and is obliged to pay the amount of such
renewals.
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SEVENTEENTH.- ADVANCED PAYMENT.- The parties agree that if the Accredited is
current in compliance with his payment obligations, he may make total or partial
advanced payments of the credit's insolvable balance. The Accredited is obliged
to notify the Creditor in writing, one business day in advance, about the
advanced payment amount to be made, in which case it will cause no commission.
EIGHTEENTH.- POSITIVE AND NEGATIVE COVENANTS.- The Accredited is obliged to
comply with the following obligations:
Before making the credit withdrawal:
a) Deliver a copy of the written confirmation by Daisytek International
Corporation and Daisytek Inc., stating that the credits granted by the
Creditor to the Accredited, do not infringe the conditions of credit
Syndicated Contracts formalized with foreign Financial Institutions.
b) Deliver a copy of the authorization of the creditor Credit Institutions of
Daisytek International Corporation, for the release of the covenants set
forth in the Syndicated Credit.
c) Obtain a consent by Daisytek International Corporation to subordinate its
credits to its debt with the Creditor.
Once the first withdrawal from any of the credits has been made and during their
validity:
I. Positive Covenants:
a) Formally subordinate the liabilities of its filial companies.
b) Accredit the dissolution of the Priority Fulfillment Services de Mexico,
S.A. de C.V. society, a filial company of the Accredited, within three
months from the first withdrawal of any of the loans formalized herein.
c) Keep the Accredited's assets insured including its inventory with main
endorsement in favor of the Creditor.
d) Keep valid the Accredited's accounts payable insurance policy with main
endorsement in favor of the Creditor.
e) Deliver audited individual and consolidated annual financial information of
the Accredited and Daisytek International Corporation, within one hundred
and twenty days after the closing of the fiscal year.
f) Deliver quarterly individual and consolidated financial information of the
Accredited and Daisytek International Corporation, within sixty days after
the period closing.
g) Deliver a negative and positive covenants compliance letter, together with
the aforementioned financial information which shall include compliance with
the negative and positive covenants in this contract and those set forth in
credit contracts signed between Daisytek International Corporation with
foreign Financial Institutions.
h) Deliver the "Loan basis calculation" on a monthly basis, that includes the
inventory and accounts receivable with an age not over 120 (one hundred and
twenty) days, within the 30 (thirty) days after month closing.
i) Deliver a quarterly report of the age of accounts receivable.
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j) Notify the Creditor of any substantial change in administration, in which
case, the Creditor should manifest its conformity, such that it cannot be
denied without just cause for it, within five working days, counted from the
date of notification.
k) Keep the following quarterly financial covenants:
1) A debt coverage index no greater than 3.50 (three point fifty) We
understand as debt coverage index: Bank Debt divided by operating
Profit, before interest, taxes, depreciation and amortization. It is
understood that this will be calculated on a rolling four-quarter basis.
2) An interest Coverage Index no less than 2.00 (two point zero). We
understand as interest index: operating Profit, before interest, taxes,
depreciation and amortization divided by Financial ------- Expenses.
3) A minimum tangible net worth of USD $15'000,000.00 (Fifteen million
dollars, US National Legal Tender). We understand tangible net worth as:
total equity minus investments in subsidiaries and affiliates, minus
accounts due by officers and affiliates, plus any debt subordinated to
the Creditor.
II. Negative covenants:
l) Constitute real guarantees over the company's assets.
m) Contract additional financing to those contracted, nor grant guarantees.
n) Decree dividends, nor withdraw profit.
o) Change the line of business.
p) Change the Accredited's share control.
q) Hold transactions with connected, affiliated and filial parties, except
those deriving from its normal course of operations.
NINETEENTH.- CAUSES FOR EARLY EXPIRY. - The Creditor may deem this agreement as
expired in advance, and therefore demand payment of the principal amount, caused
interest and other legal accessories, if the Accredited breaches the positive
and negative covenants, as well as the other obligations under his charge
derived from this agreement and especially:
a) If it uses the credit amount or part of it, in its case, for different ends
than those agreed to in this agreement's Second and Ninth Clauses or if it
does not furnish the Creditor, whenever it request so, the information or
documents relative to the credit's destination and how its company works.
b) If it stops covering at the due date one or more of the amounts under its
charge, either capital or interest.
c) If it leases or transfers its business, changes its facilities, if it
scissions or merges, or if it changes its social address or social
denomination without prior written authorization by the Creditor.
d) If the guarantee set forth by it in this agreement, in its case, does not
fulfill the requirements to which the guarantees Clause refers to.
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e) If its company and/or, in its case, the guarantee assets, were alienated,
granted as guarantee or were in total or partial lien, except for the sale
of goods during the normal course of business.
f) If any suit is filed against it affecting the proper functioning of its
company or impairs its patrimony and/or the guarantee, in its case, for an
amount higher than USD $5'000,000.00 (Five million dollars, U.S. legal
tender) 00/1009, that is not resolved within a 30-natural day term, counting
from its date of inception, except if it proves the Creditor that it has
taken all the legal measures necessary for its defense and that the Creditor
agrees with this.
g) If it does not comply with the payment of its contributions, taxes or any
other fiscal debt under its charge, including the fees corresponding to the
Mexican Social Security Institute (Instituto Mexicano del Seguro Social),
the National Workers Housing Fund Institute (Instituto del Fondo Nacional
para la Vivienda de los Trabajadores) and the Pension Funds System (Sistema
de Ahorro para el Retiro).
h) If it does not comply with the conditions set forth in the clause relative
to Insurance.
i) If it does not grant the officer, or in its case the Auditor the Creditor
appoints, with the necessary powers to undertake his position.
j) If the Accredited or Daisytek International Corporation were declared in
contest or if a contest procedure were initiated against them.
k) If the Accredited or Daisytek International Corporation, breaches any of
their obligations, and especially that of payment, derived from credits
granted by the Creditor or by any National or Foreign Financial Institution.
l) If the Accredited breaches any of the conditions established in the
contracts related to the normal course of business, provided that a "final
and definitive" sentence exists to this effect.
m) By any reason foreseen by the Law for this effect.
Without prejudice of what is set forth above, the Creditor grants the Accredited
a ten workday term of grace counting from the date of payment default of capital
or interest of the Credit, to repair it, and therefore at such term the
Accredited shall not be deemed as having incurred in a cause for anticipated
termination, without prejudice of generating the corresponding penalty interest.
TWENTIETH. - ACTIONS. - The Creditor reserves the power of obtaining the
collection of the balances charged to the Accredited, exercising via merchant
execution enforcement procedure or the corresponding one where appropriate,
without restraint order, in the understanding that, if the latter execution
procedure does not exclude the other; the Creditor shall point out the
sufficient assets for embargo without subjection to the order established in
article one thousand three hundred and ninety five of the Merchant Code (Codigo
de Comercio) in which case the Depositary named by the Creditor shall take
possession without granting bail. The exercise of one of these actions does not
imply the loss of the other and the actions that concern the Creditor, shall
integrally prevail in subsistence until the total credit and its accessories
charged to the Accredited be realized.
The Accredited states his specific consent for the quantities that may be
appropriated in the event of a trial, the Creditor shall apply them to cover
their debts in the sequence indicated by the amortization clause.
TWENTY-FIRST. - ACCOUNT STATEMENT. - In the terms of article sixty eight of the
Credit Institutions Law (Ley de Instituciones de Credito), the herein agreement
in addition to a certified account statement by an Accountant empowered by the
Creditor, shall be a bond conveying an enforceable right security without the
need of authentication of signature or any other requirement.
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TWENTY-SECOND. - RESTRICTION AND DENOUNCE. - The Creditor in terms with what is
set forth by article two hundred and ninety four of the Securities and Credit
Operations General Law (Ley General de Titulos y Operaciones de Credito), shall
denounce the present instrument, or where appropriate, shorten the term, through
a simple written notification on this matter to the Accredited - under the
understanding that the amounts drawn down by the Accredited will be paid at
their original maturity and may only be required by the Creditor in an
anticipated manner, in the event of non-compliance as described in this
contract.
TWENTY-THIRD. - COST INCREASE. - If during the enforcement of this agreement,
the competent authorities issue legal dispositions of general character,
applicable to loans as the one formalized herein, or issue a specific
requirement related to the credit granted hereby, and from these an increase in
credit costs is derived, the Creditor, through written notification shall inform
Accredited of the latter event, in order that in a thirty day period, counted
from the such dispositions or requirements, during its enforcement, the terms of
the third paragraph number M.21.2. of Banco de Mexico's Bulletin 2019/95, whose
text is transcribed hereinafter: "In the case of credits whose cost for the
loaning institutions partially depends on the commissions charged to a third
party to the institution itself, and are unknown by it when the credit is
formalized, or else may be modified by the third party itself after it,
institutions may agree with their accredited the possibility of rebounding the
amount of such commissions."
TWENTY-FOURTH.- CREDIT INFORMATION.- The Accredited, authorizes the Creditor to
request and furnish at any given moment, credit information to and from any of
The Grupo Financiero Scotiabank Inverlat entities and to and from credit
information societies and to use any other mean considered pertinent to obtain
information of his credit history and verify the information herein.
TWENTY-FIFTH.- ADDRESSES AND PAYMENT LOCATION.- The parties declare the
following as their addresses to hear and receive all types of documents and
notifications regarding this agreement:
Creditor: Boulevard M. Avila Camacho No. 1-18, Colonia Lomas de
Chapultepec, Mexico, Distrito Federal, C.P. 11009.
Accredited: Avenida Benjamin Franklin No. 98, 5 degrees. Piso, Colonia
Escandon, Mexico, Distrito Federal, C.P. 11800.
The Accredited undertakes to pay the Creditor the capital, interest and other
benefits derived from the agreement herein, at the Creditor's address, or any of
its branches, in working days and hours without requirement or previous
collection effort, in cash or in checks, but if these were not certified or
teller, the amount shall not be applied, until these have been cashed. Without
prejudice of the above, the Accredited empowers the Creditor to charge to any
checking account it operates or may come to operate, the amount of all the debt
as capital, interest, commission, expenses and accessories derived hereby.
In the supposition that the aforementioned checking accounts have no available
funds and only as that referring to capital amortization, the parties agree that
if the Accredited does no cover them promptly, for the days elapsed since the
obligation is due until the date when the corresponding payment is made, instead
of the corresponding ordinary rate, the penalty rate set forth hereby shall be
applied. The Creditor shall be empowered to appoint a different payment
location, prior notification to the Accredited.
TWENTY-SIXTH.- FORTUITOUS CASE.- The Accredited and the Creditor expressly
oblige themselves to comply with the agreement herein, even in the fortuitous
case of force-majeur, in terms with what is set forth in article two thousand
one hundred and eleven of the Federal District Civil Code (Codigo Civil para el
Distrito Federal).
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TWENTY-SEVENTH.- RIGHTS AND FEES.- The rights, fees and other expenses caused by
the formalization of this instrument, as well as by the intervention of a Public
Certifier in this agreement, its filing, in its case, in the corresponding
Property and Commerce Public Records and its cancellation, when due, shall be
bourn by the Accredited, who is obliged to cover them when this instrument is
signed.
TWENTY-EIGHTH.-JURISDICTION.- For all that relative to the interpretation,
compliance and execution of the agreement herewith, the parties submit to the
jurisdiction of the Courts competent of the Federal District (Distrito Federal),
expressly renouncing to the jurisdiction of any address they have or may come to
have.
LEGAL PERSONALITIES AND PARTICULARS OF WITNESSES
SCOTIABANK INVERLAT, SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, GRUPO
FINANCIERO SCOTIABANK INVERLAT, (PREVIOUSLY BANCO INVERLAT, SOCIEDAD ANONIMA,
INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO INVERLAT), is an institution
constituted in accordance with the Country's laws, in deed number three-hundred
and ten dated January the thirtieth, nineteen thirty-four before the
Certification of Public Notary number seven of the City of Chihuahua, Chihuahua,
Mr. Jose Mena Castillo; the first testimony of the aforementioned deed was filed
dated May the twenty-fourth, nineteen thirty-four, under number forty-two to
folios two-hundred eighty-two and subsequent of book number seventeen of the
Commerce Section of the Property Public Records of the District of Morelos,
Chihuahua.
With deed number three-thousand two-hundred and eighty-eight by Mr. Fernando O.
Bustamante, Public Notary number nineteen of the District of Morelos, Chihuahua,
on December twenty-fourth, nineteen seventy-six, the Financiera Comermex,
Sociedad Anonima e Hipotecaria Comermex, Sociedad Anonima fusion with Banco
Comercial Mexicano, Sociedad Anonima was formalized, the alter prevailing under
the denomination of Multibanco Comermex, Sociedad Anonima, the first testimony
of the aforementioned deed was filed under number four-hundred and thirteen to
folios one-hundred and fifty-nine of book number two-hundred and thirteen, of
the Commerce Section of the Property Public Records of the aforementioned
District of Morelos, State of Chihuahua, dated December the thirty-first,
nineteen seventy six.
As of August the twenty-ninth, nineteen eighty-three, date of issuance of the
relative Decree by the Official Federation Diary (Diario Oficial de la
Federacion) with the same date, it became a National Credit Society (Sociedad
Nacional de Credito) and therefore its denomination changed Multibanco Comermex
Sociedad Nacional de Credito.
By Federal Executive Decree dated January the twenty-ninth, nineteen ninety-two,
issued in the Official Federation Diary (Diario Oficial de la Federacion) dated
the thirtieth of the same date and year, this National Credit Society changed to
a Corporation (Sociedad Anonima). Such Decree sets forth in its seventh article
that the appointments, powers, orders, commissions, designations, of Fiduciary
Delegates and, in general, the representations granted and the powers conceded
by the Corporation (Sociedad) that is changed, shall prevail in their terms
providing they are not specifically modified or revoked.
By public deed number thirty-three thousand nine-hundred seventy-three dated
June the third, nineteen ninety-two, certificated by Mr. Francisco Javier
Gutierrez Silva, Notary number one-hundred forty-seven, of the Federal District
(Distrito Federal), and filed in the Property and Commerce Public Records of
Chihuahua, State of Chihuahua, under number one-thousand two-hundred and
twenty-seven, to folios one-hundred and eight, book number five-hundred
seventy-three, dated September the nineteenth, nineteen ninety-two, the
shareholders extraordinary assembly deed was formalized where they agreed, among
other issues, to incorporate Multibanco Comermex Corporation (Sociedad Anonima)
to Grupo Financiero Inverlat, a Variable Capital Corporation (Sociedad Anonima
de Capital Variable), taking as their denomination that of Multibanco Comermex,
Sociedad Anonima, Institucion de Banca
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Multiple, Grupo Financiero Inverlat and completely modifying its social
statutes.
By deed number thirteen thousand two-hundred and fifty four, dated December the
second, nineteen ninety-four, certified by Ana Patricia Bandala Tolentino,
Notary number one-hundred ninety-five of the Federal District (Distrito
Federal), whose first testimony as duly filed in the Commerce Public Records of
Chihuahua, State of Chihuahua, under number two-thousand two-hundred and twenty
one, folios ninety one, book number six-hundred and sixty-six of the Commerce
Section on June the first, nineteen ninety-five, and in the Commerce Public
Records of the Federal District (Distrito Federal) in the mercantile file number
one-hundred ninety-eight thousand eight-hundred and sixty seven, on June the
seventh, nineteen ninety-five, through which the Shareholder Extraordinary
General Assembly Deed was formalized, where, among others, they agreed to change
its denomination to Inverlat Bank, Corporation, Multiple Banking Institution,
Inverlat Financial Group, (Banco Inverlat, Sociedad Anonima, Institucion de
Banca Multiple, Grupo Financiero Inverlat), and change its social address from
the City of Chihuahua, State of Chihuahua, to Mexico City, Federal District
(Distrito Federal), reforming for this effect the first and fifth articles of
its social statutes.
By deed number twenty-three thousand three-hundred and ninety-five dated January
the twelfth two-thousand and one, certified by Mrs. Ana Patricia Bandala
Tolentino, officer of Notary one-hundred and ninety-five of the Federal District
(Distrito Federal), in filing process due to the recent nature of its granting
the Inverlat Bank, Corporation, Multiple Banking Institution, Inverlat Financial
Group (Banco Inverlat, S.A., Institucion de Banca Multiple, Grupo Financiero
Inverlat) Shareholders Ordinary, Extraordinary and Special Assembly Deed was
formalized, where, among other agreements, they adopted the change of the
corporation into a filial and the integral reform of its statutes, to adopt the
denomination Scotiabank Inverlat, S.A., Institucion de Banca Multiple, Grupo
Financiero Scotiabank Inverlat.
FRANCISCO JOSE VAZQUEZ FERNANDEZ, who participates in the formalization of the
agreement herein with the capacity of representative of Scotiabank Inverlat,
Sociedad Anonima, Institucion de Banca Multiple, Grupo Financiero Scotiabank
Inverlat, justifies his personality and powers with the testimony of deed number
ninety-nine thousand and fifty-five, dated February the second, nineteen
ninety-six, certified by Mr. Francisco Villalon Igartua, Notary number thirty of
the Federal District (Distrito Federal), where the granting of powers by
Inverlat Bank, Corporation, Multiple Banking Institution, Inverlat Financial
Group (Banco Inverlat, Sociedad Anonima, Institucion de Banca Multiple, Grupo
Financiero Inverlat) is evidenced appointing him with powers to Claim and
Collect, with all the general powers and even special ones that, according to
the Law, require a special power or clause, but not including the power to
cession assets, in terms with paragraph one of article two-thousand five-hundred
and fifty-four of the Federal District Civil Code (Codigo Civil para el Distrito
Federal); for Deeds of Administration in terms with the second paragraph of
article two-thousand five-hundred and fifty-four of the Federal District Civil
Code (Codigo Civil para el Distrito Federal); to formalize all types of
agreements where the where the empowering corporation grants credit to third
parties and release the assets from encumbrance set forth to guarantee them,
exercising whatever rights and actions competent to the aforementioned
empowering corporation; power to grant and file credit deeds in terms with what
is set forth in article nine of the General Securities and Credit Operations Law
(Ley General de Titulos y Operaciones de Credito), needing to exercise this
latter power jointly with any other empowered officer of the corporation. As his
particulars, the empowered officer states to be: Mexican by birth; original from
Mexico, Federal District (Distrito Federal), born the first of October, nineteen
forty-three; married; a Lawyer and Banking Officer, with address Boulevard
Manuel Avila Camacho number one, tenth floor, Juridical Executive Office,
Colonia Lomas de Chapultepec, Delegacion Miguel Hidalgo, zip code
eleven-thousand and nine, Federal District (Distrito Federal).
Maria del Rosario Ordonez Rodriguez and Fernando Angel Ruiz Ramirez, in their
witness capacity; state to be Mexican by birth; both of age; Banking
Functionaries; she states she is single and he states he is married; with
address Boulevard Manuel Avila Camacho number one, seventeenth floor, Juridical
Executive Office, Colonia Lomas de Chapultepec, Delegacion Miguel Hidalgo, zip
code eleven-thousand and nine, Federal District (Distrito Federal).
DAISYTEK DE MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE, was constituted prior
authorization by the Foreign Affairs Ministry (Secretaria de Relaciones
Exteriores), as is evidenced by deed number seventy-nine thousand eight-hundred
and ninety-two, granted May the twenty-fourth, nineteen ninety-four, certified
by Mr. Ignacio Soto Borja, Notary number one-hundred and twenty-nine of the
Federal District (Distrito Federal), filed in the Commerce Public Records of the
Federal District (Distrito Federal), in mercantile folio number one-hundred
ninety-two thousand and three on September ninth, nineteen ninety-four; with a
ninety-nine-year duration; and address in the Federal District (Distrito
Federal); its social object, among others is to: a) acquire, sell and distribute
all types of computer provisions and their accessories, not including videotext
or package commuting, ...f) obtain and grant loans that are not subject to
baking intermediation, sign, accept and negotiate all types of securities,
either civil or mercantile, subscribe and issue amortizable real estate share
bonds, obligations or certificates mortgage certificates and request and obtain
bonds and insurance and likewise issue guarantees or bonds regarding contracted
obligations, or over securities, in representation of the Corporation, or
corporations it has interest on or shares, j) in general, the execution of all
types of lawful deeds, contracts and agreements, either civil or mercantile
necessary to perform its social ends.
Glauber David Vivas in his capacity as legal representative of Daisytek, a
Variable Capital Corporation (Sociedad Anonima de Capital Variable), evidences
his powers with the testimony of deed number 107847, granted on August sixth of
the year two-thousand and one, certified by Mr. Ignacio Soto Borja, Notary
number 129, filed in the Commerce Public Records of the Federal District
(Distrito Federal), under mercantile folio number 192303.
Signed in triplicate, before the witnesses subscribed hereafter, in the City of
Mexico, Federal District (Distrito Federal) on the 22 day of the month of July
of the year two-thousand two.
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"THE CREDITOR" "THE ACCREDITED"
SCOTIABANK INVERLAT, S.A. DAISYTEK DE MEXICO, S.A. DE C.V.
INSTITUCION DE BANCA MULTIPLE
GRUPO FINANCIERO SCOTIABANK INVERLAT
- ---------------------------------------- ---------------------------------
MR. FRANCISCO JOSE VAZQUEZ FERNANDEZ MR. GLAUBER DAVID VIVAS
WITNESSES:
- ---------------------------------------- ---------------------------------
MISS MARIA DEL ROSARIO ORDONEZ RODRIGUEZ MR. FERNANDO ANGEL RUIZ RAMIREZ
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DEED NUMBER
IN THE CITY OF MEXICO, FEDERAL DISTRICT (DISTRITO FEDERAL), THE __ DAY OF THE
MONTH OF ____ OF YEAR TWO-THOUSAND AND TWO, I, ENRIQUE FLORES CASTRO ALTAMIRANO,
BROKER OF THE PUBLIC BROKERAGE COMPANY NUMBER THIRTY-SIX OF THE FEDERAL
DISTRICT, HEREBY CERTIFY:
That on this date and before me appeared Mr. Francisco Jose Vazquez Fernandez,
in his capacity as Legal Representative of SCOTIABANK INVERLAT, SOCIEDAD
ANONIMA, INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO SCOTIABANK INVERLAT,
Mr. GLAUBER DAVID VIVAS, in his capacity as Legal Representative of DAISYTEK DE
MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE, Mr. GLAUBER DAVID VIVAS, in his
capacity as Legal Representative of PRIORITY FULLFILLMENT SERVICES DE MEXICO,
SOCIEDAD ANONIMA DE CAPITAL VARIABLE, and Miss. Maria del Rosario Ordonez
Rodriguez and Mr. Fernando Angel Ruiz Ramirez, both in their own right, who in
the latter CURRENT ACCOUNT CREDIT OPENING AGREEMENT, appear as "THE CREDITOR",
"THE ACCREDITED" and "THE WITNESSES", respectively, with the purpose to ratify
it in all and each of its parts, stating that what is included in it is the
lawful expression of their will and that the signatures it bears are their
authentic rubrics for they wrote them with their own hands and they are the same
they use in all their deeds and businesses, statement they declare under oath to
tell the truth and who for a greater evidence sign the herein deed before my
presence and next to me.
"THE CREDITOR"
SCOTIABANK INVERLAT, SOCIEDAD ANONIMA
INSTITUCION DE BANCA MULTIPLE
GRUPO FINANCIERO SCOTIABANK INVERLAT
-------------------------------------------------------------------------
REPRESENTED BY MR.
FRANCISCO JOSE VAZQUEZ FERNANDEZ
"THE ACCREDITED"
DAISYTEK DE MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE
- --------------------------------------------------------------------------------
REPRESENTED BY MR.
GLAUBER DAVID VIVAS
"THE WITNESSES"
- ---------------------------------------- ---------------------------------
MARIA DEL ROSARIO ORDONEZ RODRIGUEZ FERNANDO ANGEL RUIZ RAMIREZ
BY HER OWN RIGHT BY HIS OWN RIGHT
BEFORE ME
-------------------------------------------------------------------------
LICENCIADO ENRIQUE FLORES CASTRO ALTAMIRANO
PUBLIC BROKER NUMBER THIRTY-SIX
OF THE FEDERAL DISTRICT
(DISTRITO FEDERAL)
15