Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Brighstar Corp. Form S-1 HTML 1.42M
2: EX-4.1 Form of Common Stock Certificate 4 22K
3: EX-4.2 Certificate of Designation 34 124K
4: EX-4.3 Stockholders' Agreement 41 165K
5: EX-4.4 Purchase Agreement 246 961K
6: EX-4.5 Redemption Agreement 8 47K
7: EX-10.1 Amended & Restated Distribution Agreement 32 129K
W/Motorola
16: EX-10.10 Kyocera Wireless Corp. Supply Agreement 6 44K
17: EX-10.11 Amendment to Supply Agreement W/Kyocera 1 18K
18: EX-10.12 Amendment No. 2 to Supply Agreement W/Kyocera 2± 19K
19: EX-10.13 Amendment No. 3 to Supply Agreement W/Kyocera 1 18K
20: EX-10.14 Amendment No. 4 to Supply Agreement W/Kyocera 2 20K
21: EX-10.15 Amendment No. 5 to Supply Agreement W/Kyocera 2± 19K
22: EX-10.16 Contract for Services W/Otecel S.A. 42 170K
23: EX-10.17 Operating Agreement W/Narbitec 33 128K
24: EX-10.18 First Amendment to Operating Agreement 3 21K
25: EX-10.19 Development and Supply Agreement W/Csi Wireless 44 190K
8: EX-10.2 Exclusive Distribution Agreement W/Motorola 19 73K
26: EX-10.20 First Amendment to Development and Supply 16 67K
Agreement
27: EX-10.21 Employment Agreement / Denise Gibson 11 66K
28: EX-10.22 Executive Employment Agreement/ Marcelo Claure 17 90K
29: EX-10.23 Executive Employment Agreement W/Oscar Fumagali 10 60K
30: EX-10.24 Independent Contractor Agreement/ Victor Raul 8 41K
Califa
31: EX-10.25 Independent Contractor Agreement/ Carlos M. Touyaa 8 41K
32: EX-10.26 Industrial Multi-Tenant Lease 40 183K
33: EX-10.27 Lease Agreement 94 395K
34: EX-10.28 Factoring Agreement/ Factor Banarte 18 118K
35: EX-10.29 Factoring Agreement/ Bbva Bancomer, S.A. 15 65K
9: EX-10.3 Motorola Master Distributor Agreement 23± 94K
36: EX-10.30 Revolving Credit and Security Agreement W/Pnc Bank 131 511K
37: EX-10.31 Amended and Restated Payment Terms Agreement 22 101K
W/Motorola
38: EX-10.32 Intercreditor Agreement W/Motorola 29 124K
39: EX-10.33 Amended and Restated Stock Pledge and Security 14 63K
Agreement W/Motorola
40: EX-10.34 Limited Security Agreement W/Motorola 22 91K
41: EX-10.35 Security Agreement W/Motorola 22 98K
42: EX-10.36 Amended and Restated Security Agreement W/Motorola 13 67K
43: EX-10.37 Amended and Restated Unconditional Guaranty/ 9 45K
Brightstar Corp W/Motorola
44: EX-10.38 Amended and Restated Unconditional Guaranty/ 9 45K
Brightstar U.S.,Inc. W/Motorola
45: EX-10.39 Unconditonal Guaranty W/Motorola 16 70K
10: EX-10.4 Amendment One to Motorola Master Distributor 3 25K
Agreement
46: EX-10.40 Amended and Restated Personal Guaranty W/Motorola 5 32K
47: EX-10.41 Stock Pledge and Security Agreement W/Motorola 11 51K
48: EX-10.42 Amended and Restated Security Agreement W/Motorola 14 67K
49: EX-10.43 Amended and Restated Stock Pledge and Security 10 49K
Agreement/ Motorola
50: EX-10.44 Amended and Restated Pledge Agreement/Telcel C.A. 8± 42K
51: EX-10.45 Promissory Note W/American Express 5± 32K
52: EX-10.49 Purchase Agreement/El Salvador 14 64K
11: EX-10.5 First Amendment to Motorola Master Distributor 2 20K
Agreement
53: EX-10.50 Amendment No. 1 to Purchase Agreement /El Salvador 2 21K
54: EX-10.51 Purchase Agreement/ Guatemala 14 64K
55: EX-10.52 Amendment No. 1 to Purchase Agreement/Guatemala 2 23K
56: EX-10.53 2004 Stock Incentive Plan 20 89K
57: EX-10.54 Cellular Essential Properties Cross License Agmt 17 58K
12: EX-10.6 U.S. Distribution Agreement W/Motorola 30 105K
13: EX-10.7 Distributor Agreement W/Sendo America, Inc. 26 100K
14: EX-10.8 Distribution Agreement W/Sagem S.A. 33 117K
15: EX-10.9 Distributor Agreement W/Samsung 16 68K
58: EX-21 List of Subsidiaries 1 18K
59: EX-23.2 Consent of Deloitte & Touche LLP 1 17K
EX-10.29 — Factoring Agreement/ Bbva Bancomer, S.A.
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EXHIBIT 10.29
A CONTRACT FOR THE OPENING OF A CURRENT CREDIT ACCOUNT TO BE SIGNED BY:
1. BBVA BANCOMER, A LIMITED LIABILITY COMPANY AND MULTIPLE BANKING INSTITUTION,
THE FINANCIAL GROUP BBVA BANCOMER, AS THE CREDIT GRANTING INSTITUTION,
HEREINAFTER REFERRED TO AS "BANCOMER", REPRESENTED BY MISS EMMA LAREDO SANCHEZ
AND MR. LUIS ANTONIO VILLA TORRIJOS;
2. BRIGHTSTAR DE MEXICO, A LIMITED LIABILITY COMPANY WITH A VARIABLE SHARE
CAPITAL, HEREINAFTER REFERRED TO AS "THE CLIENT", REPRESENTED BY MR. GABRIEL
ANGELES BLANCAS AND MR. EMILIO CARLOS LOMNICZI STRUBERT;
GOVERNED BY THE FOLLOWING DECLARATIONS AND CLAUSES.
DECLARATIONS
I. BY MEANS OF HIS REPRESENTATIVES, "THE CLIENT" HEREBY DECLARES:
1. that his representatives have been duly granted the necessary powers and
faculties to sign and execute this contract in his name and on his behalf, the
said powers not having been revoked nor modified in any way;
2. that the company is duly constituted in accordance with the laws of the
country and that, in accordance with its company purpose, it is dedicated to the
supply, purchase and sale and marketing in general of cellular telephones;
3. that the company and the assets comprising the company are up to date in the
payment of all debts, obligations, taxes and duties for which it is liable;
4. that no actions or proceedings which may affect the legality of this contract
are pending nor is there any likelihood that such may be instituted against the
company in any way which may do so;
5. that the financial statements which have been submitted to "BANCOMER" are an
appropriate description of the current financial situation of the company, as
are the results of their operations for the period defined thereto in accordance
with the generally accepted and normally applied principles of accounting, and
that no significant change has taken place in the company's financial
conditions;
6. that "BANCOMER" has signed a contract for an at sight bank deposit in dollars
and in a Checking Account (hereinafter known as the "CHECKING ACCOUNT")
identified by the number 452383691.
II. BY MEANS OF THEIR REPRESENTATIVES, "BANCOMER" HEREBY DECLARES:
1. that it is a limited liability company duly constituted in accordance with
the laws of Mexico and authorized to operate as a multiple banking institution,
and is duly empowered to sign and execute this contract;
2. that its representatives have been granted sufficient powers to act in its
name and on its behalf in the signing and execution of this contract, the said
powers not having been revoked nor modified in any way;
3. that having taken account of the declarations made by "THE CLIENT" it is
prepared to open credit in favor of "THE CLIENT".
Having regard to the above declarations, the parties hereby allow themselves to
be bound by the following stipulations:
CLAUSES
SUM OF MONEY.
ONE. By virtue of this contract "BANCOMER" opens in favor of "THE CLIENT" a
current credit account up to the sum of US$25,000,000.00 (twenty-five million
dollars), the money to be legal tender in the United States of America
(hereinafter referred to as the "Loan").
"THE CLIENT" shall be obliged to repay to "BANCOMER" the sums provided in
Dollars, in the same foreign currency. If "BANCOMER", in accordance with what
has already been agreed to, shall find themselves unable to obtain the sums in
Dollars, then "BANCOMER" shall be under no obligation make the outlay in
Dollars.
The limit of the credit shall not include interest, interim interest, fees,
additional charges and any other costs, which "THE CLIENT" shall be obliged to
pay to "BANCOMER" in accordance with this contract.
"THE CLIENT" shall make use of the Loan in accordance with the form, terms and
conditions laid down in this contract.
The Loan shall be granted in accordance with the provisions of the General Law
on Securities and Credit Operations, in the form of the opening of a Current
Credit Account.
PURPOSE.
TWO. "THE CLIENT" shall undertake to use the sum of the loan solely to reinforce
his working capital.
LIFE OF THE CONTRACT.
THREE. The life of the contract shall be for 12 (TWELVE) months counting from
the date of the signing of this contract.
The conclusion of the contract notwithstanding, the contract shall remain
legally in force until such time as "THE CLIENT" shall have paid off all the
sums for which he is responsible in their entirety.
LOAN PAYMENTS.
FOUR. During the life of this contract the Loan shall be payable to "THE CLIENT"
in whole or in part insofar as it be permitted by the liquid assets of
"BANCOMER" and/or of its subsidiaries, agencies or the offices it may hold
abroad, or of the funding sources designated by "BANCOMER" and subject to the
following:
(i) that there be no reason or motive on the part of "THE CLIENT" which may be
deemed a breach of his obligations as laid down in this instrument;
(ii) that "THE CLIENT" shall present to "BANCOMER" with a least 3 (three)
working days' notice a letter requesting payment of the loan signed by
"THE CLIENT", or where appropriate by his representative(s).
It shall be understood that the payments which "THE CLIENT" shall undertake
shall not in their entirety exceed the total sum of the Loan.
The loan repayments which "THE CLIENT" shall undertake in accordance with this
contract shall be credited to the "CHECKING ACCOUNT" which "BANCOMER" shall have
set up for them.
"THE CLIENT" may make fund transfers before the date set for the payment of the
monies provided, being empowered to make such payment, as long as this contract
shall not have terminated, in the form thereto agreed upon for his benefit.
On any occasion on which "THE CLIENT" shall desire to repay the Loan in whole or
in part, he shall reach an agreement with "BANCOMER" as to the dates of the
partial payment of the capital (hereinafter referred to as "Partial Payment
Date"), which shall not be less than 2 (two) nor greater than 180 (one hundred
and eighty) days, nor, where appropriate, greater than the termination date of
the Loan. The Partial Payment
Dates thus agreed upon shall be stated in promissory notes which "THE CLIENT"
shall sign for "BANCOMER" for each sum.
The promissory notes to be signed shall be in accordance with article 170 of the
General Law on Securities and Credit Operations and with this contract and shall
under no circumstances exceed the period of the life of the said contract.
PAYMENT OF THE PRINCIPAL
FIVE. During the life of this contract, "THE CLIENT" shall be obliged to repay
to "BANCOMER" the sums he shall have used, making payments to "BANCOMER" by way
of the principal, in the form laid down in this instrument, that is to say, on
the due date for each payment.
Should a date for the repayment of the principal not be a working day, the
payment shall be made on the working day immediately following.
ORDINARY INTEREST
SIX. During the life of this contract "THE CLIENT" shall be obliged to pay
"BANCOMER", ordinary interest on the outstanding principal of the Loan, which
shall be calculated at an annualized rate which shall be equal to the LIBOR rate
(to be defined below) plus THE POINTS WHICH BY JOINT AGREEMENT THE PARTIES SHALL
DEFINE IN THE DOCUMENT WHICH COVERS THE RELEVANT PAYMENT.
The interest shall accrue from the date of the payment of the Loan in whole or
in part and must be paid in accordance with the time period, sum and rate
corresponding to the payment, in advance of the moment of each payment to
"BANCOMER".
Should it occur that any date for the payment of interest not be a Working Day
(this term to be defined below), the said payment shall be made on the Working
Day immediately following, the interest to be recalculated accordingly.
For the purposes of this contract:
A "WORKING DAY" shall be deemed to mean, leaving aside Saturdays, Sundays or
holidays, any day on which the main offices of the credit institutions in
Mexico, the City of London, England and New York City, N.Y., United States of
America, are open to the public for the carrying out of banking operations.
The "FINAL PAYMENT DATE" shall be deemed to mean the expiry of the period during
which this contract is in force.
The "INTEREST PAYMENT DATE" shall be deemed to mean the first date of each
Interest Period.
"INTEREST PERIOD" shall be deemed to mean, in respect of the Loan, the number of
calendar days included between each one of the dates on which "THE CLIENT" shall
have the loan available and the Partial Payment Dates which the parties shall
agree upon for the repayment of the Loan, it being understood that the Interest
Periods thus
defined shall not be less than 2 (two) days and not more than 180 (one hundred
and eighty) days on a basis of which interest which shall give rise to the
outstanding sum total of the principal shall be calculated. Any Interest Period
which is in force on the Final Payment Date shall conclude precisely on the said
date.
The "LIBOR (LONDON INTERBANK OFFERED) RATE" shall mean the annual interest rate
offered by the main banks on the London Interbank market as the rate for
deposits in Dollars for a period of up to 180 days, at approximately 11.00 a.m.
(London time), which shall be published 48 (forty-eight) working hours (in
London, England) before the beginning of each Interest Period on the LIBOR 01
page of the REUTERS INFORMATION SYSTEM, OR ALSO ON THE BTMM PAGE OF THE
BLOOMBERG SYSTEM, both for the deposits in US Dollars or the currency replacing
them, should the said pages cease to be published.
The aforementioned LIBOR rate will be rounded, should the figure arrive at five
decimal places or more, to the nearest figure with four decimal places. For this
purpose, a five shall be rounded up to the ten immediately higher.
Should the Bank of Mexico cease to use the LIBOR rate as the reference rate and
even if it should continue to be published, the Bank of Mexico shall define a
substitution rate for the above mentioned LIBOR rate, starting from the date
established by the bank itself, plus the percentage points indicated above and
with the same calculation system.
Should the Bank of Mexico fail to determine a substitution reference rate for
the LIBOR rate, the Cost of Pick up on credit of Liabilities Denominated in
Dollars (CCP Dollars - to be defined below) shall be used as a substitution
rate, plus at least one percentage point in addition to the figure agreed for
LIBOR, should it occur for some reason that the Bank of Mexico ceases to accept
CCP Dollars as a reference rate, and even if it should continue to be published,
the rate set by the Bank of Mexico as a substitution for this latter shall be
accepted and shall be published on the Working Day immediately prior to the
beginning of the Interest Period in question, plus the percentage points allowed
in the first part of this paragraph.
"CCP Dollars" refers to the Cost of Pick up on Credit of Liabilities denominated
in Bank of Mexico US Dollars which the Bank of Mexico shall calculate and
publish in the Official Gazette of the Federation (Republic of Mexico).
Should it occur that none of the rates indicated above be published, the parties
are in agreement that a further accord amending this contract shall be signed
the purpose of which shall be to set the rate of interest applicable thereto.
This shall take place within a period of time not longer than 20 (twenty)
calendar days, by which day "BANCOMER" shall have communicated the said
circumstance to "THE CLIENT".
Should the parties not reach an agreement regarding the substituted rate
applicable within the period of time agreed above, this shall be deemed cause
for the early expiry of this contract. In this case "THE CLIENT" shall be
obliged to repay to "BANCOMER" the sum of the Loan outstanding plus additional
sums on the date of the aforementioned expiry, as long as in the contrary case
the outstanding sum shall yield interim interest in accordance with that which
is agreed upon in this instrument, the basis thereto being taken as the most
recent ordinary rate applicable to this Loan.
To calculate the ordinary interest for each Interest Period, the annualized
interest rate applicable shall be divided by 360 (three hundred and sixty) and
the result multiplied by the number of calendar days which compose the Interest
Period in question. The resulting rate shall be multiplied by the outstanding
sum of the Loan and the product shall be sum which "THE CLIENT" shall pay to
"BANCOMER" by way of interest on every Interest Payment Date.
INTERIM INTEREST.
SEVEN. Should it occur that "THE CLIENT" does not punctually pay any sum of
money he should to "BANCOMER" in accordance with this contract, with the
exception of interest, the said sum of money shall yield interim interest from
the date on which the payment is due until the sum is paid in full. The interest
shall be accrued daily, shall be payable at sight and in accordance with an
annualized rate equal to the figure arrived at by multiplying the ordinary
interest rate by 3 (three).
To calculate interim interest, the annualized interim interest rate applicable
shall be divided by 360 (three hundred and sixty) and the quotient shall be
applied to outstanding and due sums, thus producing the interim interest for
each day, which "THE CLIENT" shall be obliged to pay according to the terms of
this contract.
COMMISSION.
EIGHT. "THE CLIENT" shall be obliged to pay the following to "BANCOMER":
Commission for opening the Loan equivalent to the sum of US $3,000.00 (three
thousand dollars) which shall be paid on the occasion of the first Loan payment.
For the purposes of the above, "THE CLIENT" shall irrevocably empower "BANCOMER"
to collect the said commission, plus the relevant VAT, from the sum of the Loan.
PLACE AND FORM OF PAYMENT.
NINE. All payments of the principal, interest and other sums which "THE CLIENT"
must make to "BANCOMER" in respect of this contract shall be made in NEW YORK,
N.Y., UNITED STATES OF AMERICA, AS PAYMENTS INTO ACCOUNT NUMBER 400-001942 (FOUR
ZERO ZERO DASH ZERO ZERO ONE NINE FOUR TWO) AT THE JP MORGAN CHASE BANK IN NEW
YORK CITY, N.Y., AT 270 PARK AVENUE 10017, NEW YORK, N.Y., (WHEN THE FUNDS IN
QUESTION ARISE FROM THE ASSETS HELD BY "BANCOMER") at the latest by 11.00 a.m.
(New York City time) on the date on which the said payments are to be made, in
Dollars and in freely transferable and payable funds, or into any other account
which "BANCOMER" shall communicate in writing and in good time to "THE CLIENT".
ADDITIONAL SERVICES FOR THE CLIENT.
TEN. A minimum of two days before the date on which payment must be made "THE
CLIENT" may request that "BANCOMER" pay the sum relating to the relevant
repayment, interest and extras arising from this contract into any checking
account in NATIONAL CURRENCY of which "THE CLIENT" shall inform "BANCOMER" with
a view to the latter purchasing in free foreign exchange over the counter the
sum of Dollars necessary to cover the amount of the said obligations on behalf
of and on the order of "THE CLIENT", and lodge the necessary funds in the
"BANCOMER" office abroad in order that they in their turn may undertake the
necessary payment obligations in the name of "THE CLIENT".
That which is agreed to in the above paragraph shall be understood solely and
exclusively as a service which "BANCOMER" offers to "THE CLIENT", and not as
though the payment of loans and the like is being made in the Republic of
Mexico, such that "THE CLIENT" shall expressly accept that the place(s) of
payment abroad is that (those) laid down in this agreement, and that, should it
occur that "BANCOMER" not be provided with the necessary funds in time and in
the correct form, they must execute the payment in question on their own
account.
TAX.
ELEVEN. All sums which "THE CLIENT" must pay arising from this Loan operation
and from the payments in Dollars shall be paid in Dollars, without deductions,
free of any sums withheld, taxes, duties, etc., of any kind whatsoever which may
be imposed or levied at any time or by any authority. Should it occur that some
applicable law shall oblige "THE CLIENT" to make any of the said deductions, the
sums to be received by "BANCOMER" shall be increased by the same amount in order
to ensure that "BANCOMER" shall receive in full the sums due to them arising
from this operation.
"THE CLIENT" shall, when legally required, provide "BANCOMER" with the relevant
evidence of payments and sums withheld, evidence which must comply with the
legal requisites thereto applied by the Law, or, where necessary, evidence that
the same has been replaced by official provision.
SPECIAL OBLIGATIONS.
TWELVE. During the life of this contract, and as long as payment arising
therefrom shall be made, "THE CLIENT" shall be obliged to discharge the
following obligations:
OBLIGATIONS TO UNDERTAKE
1. To deliver to "BANCOMER" his duly passed annual financial statements
within the 180 calendar days following the closing of the financial year.
2. To deliver to "BANCOMER" within the 45 calendar days following the closing
of each half-year, his internal financial statements which shall include a
balance sheet, profit and loss statement and breakdown reports of their
main credit and debit accounts.
3. Inform "BANCOMER" within ten working days of any event which may affect or
shall affect or prejudice the current financial situation of their
business, or which may affect any of the reasons for early payment dates
in this contract, and shall further inform them of any actions and
measures taken in respect of this.
OBLIGATIONS NOT TO UNDERTAKE
In the absence of prior written authorization from "BANCOMER", "THE CLIENT" may
not:
1. Contract liabilities with financial costs of which the sums and securities
relating thereto may affect the payment obligations laid down in this
contract.
2. Grant loans and/or securities to third parties or subsidiary companies
which may affect the payment obligations laid down in this contract.
3. Merge with or separate from other companies even if they are subsidiaries
or members of his own company group.
COSTS.
THIRTEEN. All justifiable and reasonable costs, including where necessary
charges levied by the Public Legal Officials and Registration fees to be settled
by "BANCOMER" arising from this Loan operation, shall be covered by "THE
CLIENT".
Should it occur that "THE CLIENT" shall not within a period of 10 (ten) calendar
days following the date of the signing of this contract have paid the sums arise
from this contract by way of costs, fees and duties, he shall expressly and
irrevocably authorize "BANCOMER" to charge them to his CHECK ACCOUNT, it being
understood that, if he does not have sufficient funds in his account, he shall
be obliged to reimburse these sums to "BANCOMER" within a period of ten calendar
days counting from the date of the payment which "BANCOMER" has made, and shall
furthermore be obliged to pay the interim interest agreed to in this document
for every day which the payment of these sums is late.
REASONS FOR ADVANCE PAYMENT
FOURTEEN. The period of time for the payment of the Loan and the accessory sums
related thereto shall be deemed to have arrived in advance should any of the
following cases occur:
1. If "THE CLIENT" shall default in the fulfillment of any of his obligations
laid down in this document, including the obligations to undertake and not
to undertake laid down in this document, if he breach other contracts or
obligations which he have contracted or may in the future contract with
"BANCOMER".
Regardless of the above, the Loan shall terminate in the cases laid down in
article thirty one of the General Law on Securities and Credit Operations.
AUTHORIZATION.
FIFTEEN. "THE CLIENT" shall ratify the authorization which he previously
expressly and irrevocably granted to "BANCOMER" in a separate document to seek
from the National or Foreign Credit Information Company(ies) they may deem
necessary all information relating to his credit record. Likewise, "BANCOMER"
shall continue to be authorized to make periodical reviews and communicate to
the said company(ies) information on the credit record they may deem necessary
in terms of the Law Regulating Credit Information Companies and authorize
limitations or extensions for the purposes of this operation to the clauses of
the account contracts. The said authorization shall remain in force for at least
three years counting from the date of signing or as long as there shall exist a
legal relationship with "BANCOMER". "THE CLIENT" has stated that he fully
understands the nature, scope and consequences of the information which shall
periodically be required in respect of his financial and credit status.
TRANSFER OF CREDIT.
SIXTEEN. This contract shall take effect as soon as it has been signed by "THE
CLIENT" and "BANCOMER" and subsequently shall apply to "THE CLIENT" and
"BANCOMER" and their respective successors and transferees, whatever shall be
the case. "THE CLIENT" may not transfer his right or obligations in accordance
with this contract, nor interest therein, without prior agreement in writing
from "BANCOMER". "BANCOMER", for their part, shall have to right to transfer or
negotiate this Loan and the promissory notes relating thereto and in the
measures relating to the said transfer, the transferee shall hold the same
rights and benefits in respect of "THE CLIENT" as he would hold if he were
"BANCOMER" in this contract.
LIMITATIONS AND COMPLAINTS
SEVENTEEN. Within the terms of Article 294 of the General Law on Securities and
Credit Operations, it is expressly agreed that "BANCOMER" shall reserve the
right to lodge complaints about or limit this contract at any moment by written
advice thereto delivered to "THE CLIENT".
ADDRESSES
EIGHTEEN. The parties hereby state that for the purposes of this contract their
addresses are as follows:
"BANCOMER" is located at Avenida Universidad 1200, Colonia Xoco, Delegacion
Benito Juarez, P.O. Box 03339.
"THE CLIENT" is located at Avenida Industria No. 10, Colonia Pueblo de los
Reyes, P.O. Box 54075, Tlalnepantla, Mexico State.
"THE CLIENT" must inform "BANCOMER" of any change of address at least ten (10)
days before the change takes place. Should he fails to do so, all information,
notifications and other legal or extralegal obligations to be undertaken at the
address shown thereon, in this clause, shall be deemed to have fully taken
effect.
ENFORCEMENT ORDER
NINETEEN. This contract, together with the statement of account certified by the
"BANCOMER" accountant, shall stand as an enforcement order, in accordance with
the provisions of article 68 of the Law on Credit Institutions.
RULING
TWENTY. This contract is an international operation in which the specification
of the currency as Dollars and the payment in that currency are essential, and
Dollars shall be deemed to be the currency applicable in all cases for the
fulfillment of the obligations upon "THE CLIENT" arising from this contract.
"THE CLIENT's" payment obligations shall be deemed fulfilled only to the extent
that sums paid in other currencies or in other locations, presumably in
accordance with a ruling or for some other reason, shall, on being converted
into Dollars in accordance with ordinary banking procedures, cover the sums in
Dollars owed in accordance with this contract.
If, in order to obtain a ruling from a court, whether for the payment of a sum
owed and payable or in the implementation of a ruling handed down previously, it
shall become necessary to convert a sum payable in Dollars under this contract
to another currency (the "other currency"), the exchange rate to be used shall
be that at which "BANCOMER" would have been able to buy Dollars using the other
currency by means of ordinary banking practices on the working day immediately
preceding that on which the payment must be made in accordance with the final
ruling. "THE CLIENT's" obligations regarding any sum set down in Dollars which
he may owe to "BANCOMER" in accordance with this contract, shall only be deemed
fulfilled, notwithstanding any ruling expressed in the other currency, by the
sum in dollars which "BANCOMER" can acquire by means of normal banking practices
on the working day immediately following the receipt by "BANCOMER" of any sum
payable in accordance with the said ruling in the aforementioned other currency;
and "THE CLIENT" shall agree, as an independent obligation and notwithstanding
any ruling in another currency, that if the sum in Dollars purchased in any form
is lower than the sum originally owed in Dollars to "BANCOMER", to compensate
"BANCOMER" for the said loss, and "BANCOMER" shall agree that if the sum of
Dollars purchased in the said form shall exceed the sum originally owed to
"BANCOMER", the latter shall repay the surplus to "THE CLIENT".
LAWS AND COURTS.
TWENTY-ONE. This contract shall be governed by the laws of the United States of
Mexico, particularly as regards the Law on Credit Institutions, the General Law
on Securities and Credit Operations, and their supplementary laws.
Likewise, in all matters regarding the interpretation, execution and fulfillment
of this contract, the parties shall be subject to the jurisdiction of the Laws
and Courts of MEXICO CITY, FEDERAL DISTRICT, expressly waiving the rights
accorded them by any present or future domicile.
STATUS AND OFFICERS
BBVA BANCOMER, A LIMITED LIABILITY COMPANY, MULTIPLE BANKING INSTITUTION,
FINANCIAL GROUP BBVA BANCOMER, herewith define their legal status by means of
document No. 28948, dated July 14th, 1997, signed before Notary Public No. 156
of the Federal District, Mr. Rogelio Magana Luna, at which time the articles of
association of BBVA BANCOMER, SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE,
GRUPO FINANCIERO BBVA BANCOMER, registered in the Public Business Registry of
the Federal District, on Mercantile Folio 64010, dated August 5th, 1997, were
certified.
Document number sixty-six thousand and twenty-two dated November 16th, 2000,
signed before Notary Public number one hundred and thirty-seven of the Federal
District, Mr. Carlos de Pablo Sema, registered in the Public Businesses register
of the Federal District on the same Mercantile Folio on December 14th, 2000,
provides evidence of the change of name from Bancomer, S.A., Institucion de
Banca Multiple
to "BBVA BANCOMER", SOCIEDAD ANONIMA, INSTITUCION DE BANCA MULTIPLE, GRUPO
FINANCIERO BBVA BANCOMER.
Miss EMMA LAREDO SANCHEZ and Mr. LUIS ANTONIO VILLA TORRIJOS hereby sign as
representatives of the creditor party BBVA BANCOMER, SOCIEDAD ANONIMA,
INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER, in their capacity
as attorneys, as laid down in Public Documents numbers 71243 of February 20th,
2002 and 68204 of July 3rd, 2001, signed before Notary Public number 137 of the
Federal District, Mr. CARLOS DE PABLO SERNA.
BRIGHTSTAR DE MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE, is a company duly
constituted in accordance with the Laws of the Land; as stated in Public
Document number 82600 of October 12th, 1999, signed before Notary Public number
89 of the Federal District, Mr. Gerardo Correa Echegaray, registered with the
Property and Business Registry of the Federal District, on Mercantile Folio No.
256865 on September 8th, 2003.
Mr. GABRIEL ANGELES BLANCAS hereby signs this contract in representation of the
duly authorized BRIGHTSTAR DE MEXICO, A LIMITED LIABILITY COMPANY OF VARIABLE
SHARE CAPITAL, in his capacity as ATTORNEY, as laid down in Public Document No.
8396 of 29th May, 2000, signed before Notary Public number 89 of the Federal
District mentioned above and registered with the Public Commerce Registry of the
Federal District, on Mercantile Folio 256865 on April 17th, 2000, duly empowered
for this purpose, who on oath to tell the truth declares that until the moment
of signing this contract, such powers have in no way been revoked or limited.
Mr. EMILIO CARLOS LOMNICZI STRUBERT hereby signs this contract in representation
of the duly authorized BRIGHTSTAR DE MEXICO, A LIMITED LIABILITY COMPANY OF
VARIABLE SHARE CAPITAL, in his capacity as ATTORNEY, as laid down in Public
Document No. 94593 of June 19th, 2003, signed before Notary Public number 89 of
the Federal District mentioned above and registered with the Public Commerce
Registry of the Federal District, on Mercantile Folio 256865, duly empowered for
this purpose, who on oath to tell the truth declares that until the moment of
signing this contract, such powers have in no way been revoked or limited.
OFFICIALS CONCERNED:
Miss EMMA LAREDO SANCHEZ, of age, Mexican, single, born in Mexico, Federal
District, Bank Officer, domiciled at Avenida Universidad No. 1200, Colonia Xoco,
Mexico 03339, Federal District, both he [sic] and his client up to date in the
payment of Income Tax, appears in this contract as representative of the
Creditor.
Mr. LUIS ANTONIO VILLA TORRIJOS, of age, Mexican, married, born in Mexico,
Federal District, Bank Officer, domiciled at Avenida Universidad No. 1200,
Colonia Xoco, Mexico 03339, Federal District, both he and his client up to date
in the payment of Income Tax, appears in this contract as representative of the
Creditor, BRIGHTSTAR CDE MEXICO, S.A. DE C.V.
Mr. GABRIEL ANGELES BLANCAS, Mexican, born in Mexico, Federal District, 42 years
of age, married, the entrepreneur, with the same domicile as "THE CLIENT", both
he and his client up to date in the payment of Income Tax, appears in this
contract as representative of the Borrower, BRIGHTSTAR DE MEXICO, S.A DE C.V.
Mr. CARLOS EMILIO LOMNICZI STRUBERT, Austrian, born in Buenos Aires, Argentina
on March 25th, 1968, a businessman with the same domicile as his client, both he
and his client up to date in the payment of Income Tax, appears in this contract
as representative of the Borrower, BRIGHTSTAR DE MEXICO, S.A DE C.V.
Drawn up and signed in Mexico City, DF, on January 5th, 2004.
CREDITOR BORROWER
/s/ Emma Laredo Sanchez /s/ Gabriel Angeles Blancas
/s/ Luis Antonio Villa Torrijos /s/ Emilio Carlos Lomniczi
BBVA BANCOMER SOCIEDAD BRIGHTSTAR DE MEXICO
ANONIMA INSTITUCION DE BANCA SOCIEDAD ANONIMA
MULTIPLE GRUPO DE CAPITAL VARIABLE
FINANCIERO, BBVA BANCOMER MR. GABRIEL ANGELES
MISS EMMA LAREDO SANCHEZ BLANCAS AND MR. EMILIO
AND MR. LUIS ANTONIO VILLA CARLOS LOMNICZI
TORRIJOS STRUBERT
ATTORNEYS ATTORNEYS
DOCUMENT NUMBER : (010503) zero, one, zero, five, zero, three
In Mexico City, Federal District, on the * day of the month of January in the
year two thousand and three THERE APPEARED BEFORE ME, JORGE TOLENTINO VALLEJO,
Public Inspector Number Twenty-one of the Federal District, acting in my
capacity as Public Functionary duly authorized by the law, FOR THE FIRST PART
"BBVA BANCOMER", A LIMITED LIABILITY COMPANY, MULTIPLE BANKING INSTITUTION,
FINANCIAL GROUP BBVA BANCOMER, HEREINAFTER REFERRED TO AS "BBVA BANCOMER",
REPRESENTED FOR THE PURPOSES OF THIS DOCUMENT BY THE LAWYERS EMMA LAREDO SANCHEZ
AND LUIS ANTONIO VILLA TORRIJOS, BRIGHTSTAR DE MEXICO, S.A. DE C.V., HEREINAFTER
REFERRED TO AS "THE CLIENT"; represented by their attorneys, Mr. GABRIEL ANGELES
BLANCAS AND Mr. EMILIO CARLOS LOMNICZI STRUBERT.
I. As declared above, the parties state that they have signed a Loan Contract,
as attached to this document and forming an integral part thereof.
II. The parties duly appear and ratify this document before the undersigned
Public Inspector, agreeing that it is the faithful expression of their will, the
content and signature of the Contract mentioned in the previous point.
III. They recognize the signatures affixed thereto as being theirs, having been
written with their own hands and being the same as those they use in all
documentation and business, a declaration they make on oath to tell the truth,
and for greater evidence they herewith sign this document in my presence.
IV. They state that the powers they exercise have not been revoked nor modified
in any way, and hence were valid at the time of this ratification.
*fifth * Testate: Three "invalid", four "VALID".
Consequent upon the above statements, I, THE UNDERSIGNED PUBLIC INSPECTOR, STATE
THAT:
ONE: I am assured of the identity of the persons appearing before me and that I
believe that they are empowered to sign the contract and bind themselves and
that I deem them legally capable such that I find in them no appearance of
natural incapacity and have received no notification that they are under any
prohibition, and they have produced documentation consisting of photographs with
their signatures, photocopies of which have been added to the copy in the
archive relating to this document.
TWO: Miss EMMA LAREDO SANCHEZ and Mr. LUIS ANTONIO VILLA TORRIJOS are not
personally known to me and in my judgement are empowered to sign contracts and
bind themselves in that I find in them no evident incapacity thereto nor have
received any information that they are under any prohibition.
THREE: The undersigned is satisfied with the status and officers set down in the
body of the document which forms the subject of this ratification, as reproduced
as if incorporated into the document itself, all the representatives having
declared on oath that the legal authority and powers with their clients are
invested through which they act have neither been revoked nor modified in any
way, and hence are valid as of this day.
FOUR: The persons appearing before me have ratified each and every part of the
content and signature of the Contract, declaring that it is the true expression
of their will, as are the signatures affixed thereto.
FIVE: I have read out, explained and directed those appearing before me the
content and legal force of this document, and since they are in agreement with
each and all of its parts, they have signed it in the presence of and together
with the Inspector on the fifth day of the month of January of the year two
thousand and four.
SIX: This document shall be produced in triplicate, one copy remaining in the
possession of the Public Inspector, the others to be given to each of the
parties.
CREDITOR BORROWER
/s/ Emma Laredo Sanchez /s/ Gabriel Angeles Blancas
/s/ Luis Antonio Villa Torrijos /s/ Emilio Carlos Lomniczi
BBVA BANCOMER, SOCIEDAD BRIGHTSTAR DE MEXICO.
ANONIMA INSTITUCION DE SOCIEDAD
BANCA MULTIPLE GRUPO ANONIMA DE CAPITAL
FINANCIERO, BBVA VARIABLE. Mr. GABRIEL
BANCOMER. ANGELES BLANCAS AND Mr.
Miss EMMA LAREDO SANCHEZ EMILIO CARLOS LOMNICZI
AND Mr. LUIS ANTONIO STRUBERT, ATTORNEYS
VILLA TORRIJOS, ATTORNEYS
PUBLIC INSPECTOR NUMBER TWENTY-ONE OF THE FEDERAL DISTRICT
Mr. JORGE TOLENTINO VALLEJO
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