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Exhibit 10.1
Translation from French to English
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SCHEDULE 1
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AGREEMENT FOR THE FINANCING
WITHOUT RECOURSE OF COMMERCIAL RECEIVABLES BY
SUBROGATORY TRANSFER
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BETWEEN: OFFICE DEPOT BS , a French
simplified limited company (SAS) with share capital of 148.568.500
€, whose registered office is located in SENLIS (60300), 126,
avenue du Poteau, registered with the Trade and Companies Registry
under number ° 324 559 970, hereinafter referred to as the
Client,
AND: FORTIS COMMERCIAL FINANCE , a French simplified
limited company (SAS) with share capital of € 33,865,055
whose registered office is located at 30, Quai de Dion Bouton,
PUTEAUX (92800) registered with the Trade and Companies
Registry under number 342 227 576, hereinafter referred to as
FCF,
Article 1: Purpose / Scope of the agreement
The present Agreement allows the Client to obtain
from FCF the financing, by subrogatory transfer without recourse,
of any commercial receivables arising from its activity of supply
of office products and furniture up to the amount specified at
article 7.
To be eligible for the present Agreement, said receivables (the
« Eligible Receivables ») must meet all
the following criteria:
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Certain, liquid and denominated in
euros,
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Corresponding to firm sales subject
to effective deliveries or to achieved provision of
services,
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For which payment terms are
complying with the legal regulations in force and in any case, not
exceeding 180 days following the invoice date,
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On all kind of debtors located in
France metropolitan (excluding private individuals, debtors which
are equally the Client’s suppliers of office furniture and
articles, or Office-Depot group members).
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The compliance with the conditions of eligibility
of the transferred receivables is the Client’s
responsibility, FCF not having any control to operate; it being
clarified that the Client will communicate to FCF, on its demand,
any document or any useful information in connection with the
operations.
The Client refrains from entering into any agreement
(mobilization of receivables, factoring or other) allowing a third
party to come into competition with FCF with regards to the
Eligible Receivables.
Article 2: Current account Agreement
The transactions handled pursuant to the present
Agreement are recorded in a current account opened in the name of
the Client in the books of FCF; the sums due by FCF as well as all
sums due by the Client pursuant to the present Agreement are
recorded in such current account (the "Current Account"
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The reciprocal discounts, debts and receivables recorded in the
Current Account constitute solely account entries, all such entries
being indivisibly merged. Any debit balance arising from this
merger will be immediately due and every credit balance will be
immediately available.
The Client and FCF agree that the aforementioned reciprocal
receivables and debts arising from the performance of the present
Agreement are related and indivisible, in such a way that they
constitute each other’s guarantee and do mutually set off
with one another whereas the conditions required for legal
compensation would not be met.
There may be opened as many sub-current-accounts in the name of
the Client as necessary, which will all be part of the Current
Account.
The Client’s Current Account does not contain any
overdraft authorization. Should a debit position be attained, in
particular in respect of the payment of any receivables held by FCF
against the Client, FCF is entitled to claim immediately the
repayment of the corresponding amounts to the Client.
FCF shall send monthly to the Client a Current Account
statement. Each statement will be deemed to reflect the reality and
the accuracy of the operations between the Client and FCF, except
for obvious errors or motivated and justified disputes, notified by
the Client to FCF within 60 days as from the notification date.
Should the monthly comparing
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Translation from French to
English
carried out by the Client between its subsidiary
accounting of Receivables and the Current Account reveal any
differences, the Client undertakes to proceed to all usual
verifications and to inform FCF without delay of the results of its
verifications.
The termination of the Agreement opens the closure period of the
Current Account starting as from the date of notification of the
termination. The definitive closure and the balance of the Current
Account shall only be established subject to the settlement of all
pending operations.
Article 3: Remittance of Receivables - Transfer of property
The Client transfers to FCF, on a weekly basis,
and under a specification agreed by FCF, the list of the Eligible
Receivables.
Transfer of title of the Eligible Receivables is made by means
of conventional subrogation in accordance with article
1250-1° of the French Civil Code. By crediting the Current
Account of the amount of the receivables transferred by the Client
and which are listed in the summary forms, FCF becomes the sole
holder of the title of the aforementioned receivables as a result
and as from the day of their registration in the account. The
amount of the transferred receivables is inscribed to the credit of
the current account within 48 hours of the reception of the form at
the latest.
To that effect, the Client shall sign upon the activation of the
Agreement at the latest, a permanent subrogation form (
quittance subrogative permanente ) in favor of FCF, of which
a template is appended to the present Agreement (Annex 3).
FCF is entitled to request at any time the provision of any
document on the transferred receivables, in particular invoice,
purchase orders (except for phone orders) and delivery notes. The
Client has 30 days to deliver the documents. In particular
instances, FCF may request the Client to do its best efforts to
deliver the documents as soon as possible.
Article 4: Receivable management mandate
4-1: Purpose of Mandate
FCF hereby gives mandate to the Client to collect and receive
payments regarding the transferred receivables. This mandate will
not lead any obligation of payment from FCF; expenses and outlays
of any kind will stay at the charge of the Client.
The procedures communicated by the Client to FCF during the
diligences made prior to the signature of the present Agreement are
attached to the Agreement. Any significant change to such
procedures must firstly be accepted by FCF. The Client commits to
apply the credit and collection procedures mentioned in Annex 6 and
generally to exercise due care to protect FCF’s rights.
The Client is dispensed of informing its debtors of the
existence of the present agreement and of affixing on its invoices
any clause of transfer ( clause à ordre ).
4-2: Payments
The payment instruments received by the Client for the
transferred receivables shall be remitted on a dedicated bank
account opened at Fortis Bank. The LCR and other kind of bills of
exchange shall be remitted on the dedicated bank account by the
Client at the date of invoice issuing or on receipt.
Debtor payments made by bank transfers shall be domiciliated on
the bank accounts of the Client opened at BSD-CIN LA BANQUE
POSTALE, LCL and BNP, named cashing accounts; for whatever purposes
it may serve the claims in restoration of the balances of these
accounts will have firstly been transferred to FCF in accordance
with articles L. 313-23 & following of the Monetary and
Financial code further to a security document which shall be signed
at the latest upon the date of the first remittance of receivables.
The template for the assignment agreement of professional
receivables is appended as annex 4 and the templates for protocols
regarding the operation of the cashing accounts are appended as
annex 5. The references of the said cashing accounts will be
reported on original invoices, and the balances of the cashing
accounts will be transferred daily to the dedicated bank account,
pursuant to an ad hoc agreement signed between the parties and the
domiciled bank. It is understood that any credit transfer
corresponding to a transferred receivable, received on any bank
account other than the cashing bank account shall be immediately
transferred to the dedicated account.
Pursuant to the terms of a particular functioning agreement to
be concluded with each of the aforementioned banks, the Client
refrains to operate those cashing accounts on debit or to change
the domiciliation of the payments before having obtained previous
agreement from FCF.
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Translation from French to
English
4-3: Power
The Client grants FCF full powers to endorse all payment title
that might be made out to the order of the Client. The Client
undertakes not to revoke such powers for so long as its current
account in FCF’s books remains open. The power shall be used
by FCF only in case the mandate is revoked.
4-4: Reporting
The Client shall report, at the first remittance of receivables
and at least twice a month, on the performance of the mandate by
communicating to FCF the information described below in a format
agreed by the Parties (for that purpose, FCF supplies the Client
with a specification allowing it to prepare the corresponding
files) :
- Itemized outstanding balance of the non identified debtors
included in the scope of the agreement; the Client shall retain the
invoices sold by bills of exchange payable in the balance forwarded
to FCF.
- Actualized list of active debtors included in the scope of the
application.
- Summary of the amount of the dilutions of the past 15 days.
Generally, dilution are defined as any entry lessening the amount
of the receivables transferred without cash counterpart on the
dedicated bank account and more particularly as credit notes,
discounts, rebates on the turnover, participation to advertisement,
direct payments (except for purchase cards) and disputes
(non-payment by a debtor for any other reason than insolvency as
described in article 6 of the present Agreement as soon as the
Client is being made aware of it and at the latest 120 days from
the due date ).
- List of the bad debts accounted over the last elapsed fifteen
days and registered in the "416" account category.
- Actualized
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