EXHIBIT 99.2
**Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information.
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CREDIT AGREEMENT
Dated as of October 31, 2001
among
BRIGHTPOINT NORTH AMERICA L.P.
and
WIRELESS FULFILLMENT SERVICES LLC,
as Borrowers,
THE OTHER CREDIT PARTIES SIGNATORY HERETO,
as Credit Parties,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
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TABLE OF CONTENTS
Page
----
1. AMOUNT AND TERMS OF CREDIT...............................................................................2
1.1 Credit Facilities...............................................................................2
1.2 Letters of Credit...............................................................................5
1.3 Prepayments.....................................................................................5
1.4 Use of Proceeds.................................................................................7
1.5 Interest and Applicable Margins.................................................................7
1.6 Eligible Accounts..............................................................................10
1.7 Eligible Inventory.............................................................................12
1.8 Cash Management Systems........................................................................14
1.9 Fees...........................................................................................14
1.10 Receipt of Payments............................................................................15
1.11 Application and Allocation of Payments.........................................................15
1.12 Loan Account and Accounting....................................................................16
1.13 Indemnity......................................................................................16
1.14 Access.........................................................................................17
1.15 Taxes..........................................................................................18
1.16 Capital Adequacy; Increased Costs; Illegality..................................................19
1.17 Single Loan....................................................................................20
2. CONDITIONS PRECEDENT....................................................................................20
2.1 Conditions to the Initial Loans................................................................20
2.2 Further Conditions to Each Loan................................................................22
3. REPRESENTATIONS AND WARRANTIES..........................................................................22
3.1 Corporate Existence; Compliance with Law.......................................................23
3.2 Executive Offices, Collateral Locations, FEIN..................................................23
3.3 Corporate Power, Authorization, Enforceable Obligations........................................23
3.4 Financial Statements and Projections...........................................................24
3.5 Material Adverse Effect........................................................................24
3.6 Ownership of Property; Liens...................................................................25
3.7 Labor Matters..................................................................................25
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness......................26
3.9 Government Regulation..........................................................................26
3.10 Margin Regulations.............................................................................26
3.11 Taxes..........................................................................................27
3.12 ERISA..........................................................................................27
3.13 No Litigation..................................................................................28
3.14 Brokers........................................................................................28
3.15 Intellectual Property..........................................................................28
3.16 Full Disclosure................................................................................28
3.17 Environmental Matters..........................................................................29
3.18 Insurance......................................................................................29
3.19 Deposit and Disbursement Accounts..............................................................30
3.20 Government Contracts...........................................................................30
3.21 Customer and Trade Relations...................................................................30
3.22 Agreements and Other Documents.................................................................30
3.23 Solvency.......................................................................................30
3.24 Status of Holding Companies....................................................................30
3.25 Certain Agreements.............................................................................31
4. FINANCIAL STATEMENTS AND INFORMATION....................................................................31
4.1 Reports and Notices............................................................................31
4.2 Communication with Accountants.................................................................31
5. AFFIRMATIVE COVENANTS...................................................................................31
5.1 Maintenance of Existence and Conduct of Business...............................................31
5.2 Payment of Charges.............................................................................32
5.3 Books and Records..............................................................................32
5.4 Insurance; Damage to or Destruction of Collateral..............................................32
5.5 Compliance with Laws...........................................................................34
5.6 Supplemental Disclosure........................................................................34
5.7 Intellectual Property..........................................................................34
5.8 Environmental Matters..........................................................................34
5.9 Landlords' Agreements, Mortgagee Agreements, Bailee Letters and Real Estate Purchases..........35
5.10 Further Assurances.............................................................................36
5.11 Mortgages......................................................................................36
5.12 Major Agreements...............................................................................36
6. NEGATIVE COVENANTS......................................................................................36
6.1 Mergers, Subsidiaries, Etc.....................................................................36
6.2 Investments; Loans and Advances................................................................36
6.3 Indebtedness...................................................................................37
6.4 Employee Loans and Affiliate Transactions......................................................37
6.5 Capital Structure and Business.................................................................38
6.6 Guaranteed Indebtedness........................................................................38
6.7 Liens..........................................................................................38
6.8 Sale of Stock and Assets.......................................................................39
6.9 ERISA..........................................................................................39
6.10 Financial Covenants............................................................................39
6.11 Hazardous Materials............................................................................39
6.12 Sale-Leasebacks................................................................................39
6.13 Cancellation of Indebtedness...................................................................39
6.14 Restricted Payments............................................................................40
6.15 Change of Corporate Name or Location; Change of Fiscal Year....................................41
6.16 No Impairment of Intercompany Transfers........................................................41
6.17 No Speculative Transactions....................................................................42
6.18 Leases; Real Estate Purchases..................................................................42
6.19 Certain Agreements.............................................................................42
6.20 Holding Companies..............................................................................42
7. TERM....................................................................................................42
7.1 Termination....................................................................................42
7.2 Survival of Obligations Upon Termination of Financing Arrangements.............................42
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES..................................................................43
8.1 Events of Default..............................................................................43
8.2 Remedies.......................................................................................45
8.3 Waivers by Credit Parties......................................................................45
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT.....................................................46
9.1 Assignment and Participations..................................................................46
9.2 Appointment of Agent...........................................................................48
9.3 Agent's Reliance, Etc..........................................................................49
9.4 GE Capital and Affiliates......................................................................49
9.5 Lender Credit Decision.........................................................................50
9.6 Indemnification................................................................................50
9.7 Successor Agent................................................................................50
9.8 Setoff and Sharing of Payments.................................................................51
9.9 Advances; Payments; Non-Funding Lenders; Information; Actions in Concert.......................52
10. SUCCESSORS AND ASSIGNS..................................................................................54
10.1 Successors and Assigns.........................................................................54
11. MISCELLANEOUS...........................................................................................54
11.1 Complete Agreement; Modification of Agreement..................................................54
11.2 Amendments and Waivers.........................................................................54
11.3 Fees and Expenses..............................................................................56
11.4 No Waiver......................................................................................58
11.5 Remedies.......................................................................................58
11.6 Severability...................................................................................58
11.7 Conflict of Terms..............................................................................58
11.8 Confidentiality................................................................................58
11.9 GOVERNING LAW..................................................................................59
11.10 Notices........................................................................................59
11.11 Section Titles.................................................................................60
11.12 Counterparts...................................................................................60
11.13 WAIVER OF JURY TRIAL...........................................................................60
11.14 Press Releases and Related Matters.............................................................60
11.15 Reinstatement..................................................................................61
11.16 Advice of Counsel..............................................................................61
11.17 No Strict Construction.........................................................................61
12. CROSS-GUARANTY..........................................................................................61
12.1 Cross-Guaranty.................................................................................61
12.2 Waivers by Borrowers...........................................................................62
12.3 Benefit of Guaranty............................................................................62
12.4 Subordination of Subrogation, Etc..............................................................62
12.5 Election of Remedies...........................................................................63
12.6 Limitation.....................................................................................63
12.7 Contribution with Respect to Guaranty Obligations..............................................63
12.8 Liability Cumulative...........................................................................64
INDEX OF APPENDICES
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Annex A (Recitals) - Definitions
Annex B (Section 1.2) - Letters of Credit
Annex C (Section 1.8) - Cash Management System
Annex D (Section 2.1(a)) - Closing Checklist
Annex E (Section 4.1(a)) - Financial Statements and Projections - Reporting
Annex F (Section 4.1(b)) - Collateral Reports
Annex G (Section 6.10) - Financial Covenants
Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
Annex I (Section 11.10) - Notice Addresses
Annex J (from Annex A -
Commitments definition) Commitments as of Closing Date
Exhibit 1.1(a)(i) - Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) - Form of Revolving Note
Exhibit 1.1(b)(ii) - Form of Swing Line Note
Exhibit 1.5(e) - Form of Notice of Conversion/Continuation
Exhibit 4.1(b) - Form of Borrowing Base Certificate
Exhibit 6.14(a) - Form of XXXXX Distribution Notice
Exhibit 6.14(b) - Form of BPI Distribution Notice
Exhibit 9.1(a) - Form of Assignment Agreement
Exhibit B-1 - Application for Standby Letter of Credit
Exhibit B-2 - Application for Documentary Letter of Credit
Exhibit B-3 - Application and Agreement for Documentary Letter
of Credit
Schedule 1.1 - Agent's Representatives
Disclosure Schedule 1.4 - Use of Proceeds
Disclosure Schedule 1.6 - Account Debtors with Common Directors
Disclosure Schedule 3.1 - Corporate Existence; Compliance with Law
Disclosure Schedule 3.2 - Executive Offices, Collateral Locations, FEIN
Disclosure Schedule 3.4(A) - Financial Statements
Disclosure Schedule 3.4(B) - Pro Forma
Disclosure Schedule 3.4(C) - Projections
Disclosure Schedule 3.6 - Ownership of Property; Liens
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Indebtedness
Disclosure Schedule 3.11 - Taxes
Disclosure Schedule 3.12 - ERISA
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Environmental Matters
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
Disclosure Schedule 3.20 - Government Contracts
Disclosure Schedule 3.22 - Agreements and Other Documents
Disclosure Schedule 5.1 - Maintenance of Existence and Conduct of Business
Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.4(a) - Employee Loan and Affiliate Transactions
Disclosure Schedule 6.7 - Liens
This CREDIT AGREEMENT (this "Agreement"), dated as of October 31, 2001
among BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited partnership
("Brightpoint"), and WIRELESS FULFILLMENT SERVICES LLC, a California limited
liability company ("Wireless") (Brightpoint and Wireless are sometimes
collectively referred to herein as the "Borrowers" and individually as a
"Borrower"); the other Credit Parties signatory hereto; GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation (in its individual capacity, "GE Capital"),
for itself, as Lender, and as Agent for Lenders, and the other Lenders signatory
hereto from time to time.
RECITALS
WHEREAS, Borrowers have requested that Lenders extend revolving credit
facilities to Borrowers of up to Eighty Million Dollars ($80,000,000) in the
aggregate for the purpose of refinancing certain indebtedness of Borrowers and
to provide (a) working capital financing for Borrowers, (b) funds for other
general corporate purposes of Borrowers and (c) funds for other purposes
permitted hereunder; and for these purposes, Lenders are willing to make certain
loans and other extensions of credit to Borrowers of up to such amount upon the
terms and conditions set forth herein; and
WHEREAS, Borrowers have agreed to secure all of their obligations under the
Loan Documents by granting to Agent, for the benefit of Agent and Lenders, a
security interest in and lien upon all of their existing and after-acquired
personal and real property; and
WHEREAS, Brightpoint Inc., a Delaware corporation ("BPI"), Brightpoint
North America, Inc., an Indiana corporation ("Brightpoint Holdings"), Wireless
Fulfillment Services Holdings, Inc., a Delaware corporation ("Wireless
Holdings") and Brightpoint International Ltd., a Delaware corporation
("Brightpoint International") (BPI, Brightpoint Holdings, Wireless Holdings and
Brightpoint International are sometimes referred to herein as the "Holding
Companies" and individually as a "Holding Company"), are each willing to
guarantee all of the obligations of Borrowers to Agent and Lenders under the
Loan Documents and to pledge to Agent, for the benefit of Agent and Lenders, all
of the Stock of Brightpoint, Wireless, Brightpoint Holdings, Wireless Holdings
and Brightpoint International to secure such guaranty; and
WHEREAS, capitalized terms used in this Agreement shall have the meanings
ascribed to them in Annex A and, for purposes of this Agreement and the other
Loan Documents, the rules of construction set forth in Annex A shall govern. All
Annexes, Disclosure Schedules, Exhibits and other attachments (collectively,
"Appendices") hereto, or expressly identified to this Agreement, are
incorporated herein by reference, and taken together with this Agreement, shall
constitute but a single agreement. These Recitals shall be construed as part of
the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1 Credit Facilities.
(a) Revolving Credit Facility.
(i) Subject to the terms and conditions hereof, each Lender
agrees to make available to Borrowers from time to time until the Commitment
Termination Date its Pro Rata Share of advances (each, a "Revolving Credit
Advance"). The Pro Rata Share of the Revolving Loan of any Lender shall not at
any time exceed its separate Revolving Loan Commitment. The obligations of each
Lender hereunder shall be several and not joint. Until the Commitment
Termination Date, Borrowers may borrow, repay and reborrow under this Section
1.1(a); provided that the amount of any Revolving Credit Advance to be made at
any time shall not exceed Borrowing Availability at such time. Borrowing
Availability may be reduced by Reserves imposed by Agent in its reasonable
credit judgment. Moreover, the sum of the Revolving Loan and Swing Line Loan
outstanding to any Borrower shall not exceed at any time that Borrower's
separate Borrowing Base. Until the Commitment Termination Date, Borrowers may
from time to time borrow, repay and reborrow under this Section 1.1(a). Each
Revolving Credit Advance shall be made on notice by Borrower Representative on
behalf of the applicable Borrower to one of the representatives of Agent
identified in Schedule 1.1 at the address specified therein. Any such notice
must be given no later than (1) 11:00 a.m. (Chicago time) on the Business Day of
the proposed Revolving Credit Advance, in the case of an Index Rate Loan, or (2)
11:00 a.m. (Chicago time on the date which is 3 Business Days prior to the
proposed Revolving Credit Advance, in the case of a LIBOR Loan. Each such notice
(a "Notice of Revolving Credit Advance") must be given in writing (by telecopy
or overnight courier) substantially in the form of Exhibit 1.1(a)(i), and shall
include the information required in such Exhibit and such other information as
may be required by Agent. If any Borrower desires to have the Revolving Credit
Advances bear interest by reference to a LIBOR Rate, Borrower Representative
must comply with Section 1.5(e).
(ii) Except as provided in Section 1.12, each Borrower shall
execute and deliver to each Lender a note to evidence the Revolving Loan
Commitment of that Lender. Each note shall be in the principal amount of the
Revolving Loan Commitment of the applicable Lender, dated the Closing Date and
substantially in the form of Exhibit 1.1(a)(ii) (each a "Revolving Note" and,
collectively, the "Revolving Notes"). Each Revolving Note shall represent the
obligation of the applicable Borrower to pay the amount of the applicable
Lender's Revolving Loan Commitment or, if less, such Lender's Pro Rata Share of
the aggregate unpaid principal amount of all Revolving Credit Advances to such
Borrower together with interest thereon as prescribed in Section 1.5. The entire
unpaid balance of the aggregate Revolving Loan and all other non-contingent
Obligations shall be immediately due and payable in full in immediately
available funds on the Commitment Termination Date.
(iii) Anything in this Agreement to the contrary notwithstanding,
at the request of Borrower Representative, in its discretion Agent may (but
shall have absolutely no obligation to), make Revolving Credit Advances to
Borrowers on behalf of Lenders in amounts that cause the outstanding balance of
the aggregate Revolving Loan to exceed the Aggregate
Borrowing Base (less the Swing Line Loan) or which cause the outstanding balance
of the Revolving Loan owing by any Borrower to exceed that Borrower's separate
Borrowing Base (less the Swing Line Loan advanced to that Borrower) (any such
excess Revolving Credit Advances are herein referred to collectively as
"Overadvances"); provided that (A) no such event or occurrence shall cause or
constitute a waiver of Agent's, Swing Line Lender's or Lenders' right to refuse
to make any further Overadvances, Swing Line Advances or Revolving Credit
Advances, or incur any Letter of Credit Obligations, as the case may be, at any
time that an Overadvance exists, and (B) no Overadvance shall result in a
Default or Event of Default based on Borrowers' failure to comply with Section
1.3(b)(i) for so long as Agent permits such Overadvance to be outstanding, but
solely with respect to the amount of such Overadvance. In addition, Overadvances
may be made even if the conditions to lending set forth in Section 2 have not
been met. All Overadvances shall constitute Index Rate Loans, shall bear
interest at the Default Rate and shall be payable on demand. Except as otherwise
provided in Section 1.11(b), the authority of Agent to make Overadvances is
limited to an aggregate amount not to exceed $2,000,000 at any time, shall not
cause the aggregate Revolving Loan to exceed the Maximum Amount, and may be
revoked prospectively by a written notice to Agent signed by Lenders holding
more than 50% of the Revolving Loan Commitments.
(b) Swing Line Facility.
(i) Agent shall notify the Swing Line Lender upon Agent's receipt
of any Notice of Revolving Credit Advance. Subject to the terms and conditions
hereof, the Swing Line Lender may, in its discretion, make available from time
to time until the Commitment Termination Date advances (each, a "Swing Line
Advance") in accordance with any such notice. The provisions of this Section
1.1(b) shall not relieve Lenders of their obligations to make Revolving Credit
Advances under Section 1.1(a); provided that if the Swing Line Lender makes a
Swing Line Advance pursuant to any such notice, such Swing Line Advance shall be
in lieu of any Revolving Credit Advance that otherwise may be made by Revolving
Credit Lenders pursuant to such notice. The aggregate amount of Swing Line
Advances outstanding shall not exceed at any time the lesser of (A) the Swing
Line Commitment and (B) the lesser of the Maximum Amount and (except for
Overadvances) the Aggregate Borrowing Base, in each case, less the outstanding
balance of the Revolving Loan at such time ("Swing Line Availability").
Moreover, except for Overadvances, the Swing Line Loan outstanding to any
Borrower shall not exceed at any time that Borrower's separate Borrowing Base
less the Revolving Loan outstanding to such Borrower. Until the Commitment
Termination Date, Borrowers may from time to time borrow, repay and reborrow
under this Section 1.1(b). Each Swing Line Advance shall be made pursuant to a
Notice of Revolving Credit Advance delivered to Agent by Borrower Representative
on behalf of the applicable Borrower in accordance with Section 1.1(a). Any such
notice must be given no later than 11:00 a.m. (Chicago time) on the Business Day
of the proposed Swing Line Advance. Unless the Swing Line Lender has received at
least one Business Day's prior written notice from Requisite Lenders instructing
it not to make a Swing Line Advance, the Swing Line Lender shall,
notwithstanding the failure of any condition precedent set forth in Sections
2.2, be entitled to fund that Swing Line Advance, and to have each Lender make
Revolving Credit Advances in accordance with Section 1.1(b)(iii) or purchase
participating interests in accordance with Section 1.1(b)(iv). Notwithstanding
any other provision of this
Agreement or the other Loan Documents, the Swing Line Loan shall constitute an
Index Rate Loan. Borrowers shall repay the aggregate outstanding principal
amount of the Swing Line Loan upon demand therefor by Agent.
(ii) Each Borrower shall execute and deliver to the Swing Line
Lender a promissory note to evidence the Swing Line Commitment. Each note shall
be in the principal amount of the Swing Line Commitment of the Swing Line
Lender, dated the Closing Date and substantially in the form of Exhibit
1.1(b)(ii) (each a "Swing Line Note" and, collectively, the "Swing Line Notes").
Each Swing Line Note shall represent the obligation of each Borrower to pay the
amount of the Swing Line Commitment or, if less, the aggregate unpaid principal
amount of all Swing Line Advances made to such Borrower together with interest
thereon as prescribed in Section 1.5. The entire unpaid balance of the Swing
Line Loan and all other noncontingent Obligations shall be immediately due and
payable in full in immediately available funds on the Commitment Termination
Date if not sooner paid in full.
(iii) The Swing Line Lender, at any time and from time to time in
its sole and absolute discretion, but not less frequently than weekly, may on
behalf of any Borrower (and each Borrower hereby irrevocably authorizes the
Swing Line Lender to so act on its behalf) request each Lender (including the
Swing Line Lender) to make a Revolving Credit Advance to each Borrower (which
shall be an Index Rate Loan) in an amount equal to that Lender's Pro Rata Share
of the principal amount of the applicable Borrower's Swing Line Loan (the
"Refunded Swing Line Loan") outstanding on the date such notice is given. Unless
any of the events described in Sections 8.1(h) or 8.1(i) has occurred (in which
event the procedures of Section 1.1(b)(iv) shall apply) and regardless of
whether the conditions precedent set forth in this Agreement to the making of a
Revolving Credit Advance are then satisfied, each Lender shall disburse directly
to Agent, its Pro Rata Share of a Revolving Credit Advance on behalf of the
Swing Line Lender prior to 2:00 p.m. (Chicago time) in immediately available
funds on the Business Day next succeeding the date that notice is given. The
proceeds of those Revolving Credit Advances shall be immediately paid to the
Swing Line Lender and applied to repay the Refunded Swing Line Loan of the
applicable Borrower.
(iv) If, prior to refunding a Swing Line Loan with a Revolving
Credit Advance pursuant to Section 1.1(b)(iii), one of the events described in
Sections 8.1(h) or 8.1(i) has occurred, then, subject to the provisions of
Section 1.1(b)(v) below, each Lender shall, on the date such Revolving Credit
Advance was to have been made for the benefit of the applicable Borrower,
purchase from the Swing Line Lender an undivided participation interest in the
Swing Line Loan to such Borrower in an amount equal to its Pro Rata Share of
such Swing Line Loan. Upon request, each Lender shall promptly transfer to the
Swing Line Lender, in immediately available funds, the amount of its
participation interest.
(v) Each Lender's obligation to make Revolving Credit Advances in
accordance with Section 1.1(b)(iii) and to purchase participation interests in
accordance with Section 1.1(b)(iv) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense or other right that such Lender may have against the Swing
Line Lender, any Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of any Default or Event of Default; (C) any
inability of any Borrower to satisfy the conditions precedent to borrowing set
forth in this Agreement at any time or (D) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. If any Lender
does not make available to Agent or the Swing Line Lender, as applicable, the
amount required pursuant to Sections 1.1(b)(iii) or 1.1(b)(iv), as the case may
be, the Swing Line Lender shall be entitled to recover such amount on demand
from such Lender, together with interest thereon for each day from the date of
non-payment until such amount is paid in full at the Federal Funds Rate for the
first two Business Days and at the Index Rate thereafter.
(c) Reliance on Notices; Appointment of Borrower Representative.
Agent shall be entitled to rely upon, and shall be fully protected in relying
upon, any Notice of Revolving Credit Advance, Notice of Conversion/Continuation
or similar notice believed by Agent to be genuine. Agent may assume that each
Person executing and delivering any notice in accordance herewith was duly
authorized, unless the responsible individual acting thereon for Agent has
actual knowledge to the contrary. Each Borrower hereby designates Brightpoint as
its representative and agent on its behalf for the purposes of issuing Notices
of Revolving Credit Advances and Notices of Conversion/Continuation, giving
instructions with respect to the disbursement of the proceeds of the Loans,
selecting interest rate options, requesting Letters of Credit, giving and
receiving all other notices and consents hereunder or under any of the other
Loan Documents and taking all other actions (including in respect of compliance
with covenants) on behalf of any Borrower or Borrowers under the Loan Documents.
Borrower Representative hereby accepts such appointment. Agent and each Lender
may regard any notice or other communication pursuant to any Loan Document from
Borrower Representative as a notice or communication from all Borrowers, and may
give any notice or communication required or permitted to be given to any
Borrower or Borrowers hereunder to Borrower Representative on behalf of such
Borrower or Borrowers. Each Borrower agrees that each notice, election,
representation and warranty, covenant, agreement and undertaking made on its
behalf by Borrower Representative shall be deemed for all purposes to have been
made by such Borrower and shall be binding upon and enforceable against such
Borrower to the same extent as if the same had been made directly by such
Borrower.
1.2 Letters of Credit. Subject to and in accordance with the
terms and conditions contained herein and in Annex B, Borrower Representative,
on behalf of the applicable Borrower, shall have the right to request, and
Lenders agree to incur, or purchase participations in, Letter of Credit
Obligations in respect of each Borrower.
1.3 Prepayments.
(a) Voluntary Reductions in Revolving Loan Commitments. Borrowers
may at any time on at least 2 Business Days' prior written notice by Borrower
Representative to Agent permanently reduce (but not terminate) the Revolving
Loan Commitment; provided that (A) any such reductions shall be in a minimum
amount of $5,000,000 and integral multiples of $250,000 in excess of such
amount, (B) the Revolving Loan Commitment shall not be reduced to an amount less
than the amount of the Revolving Loan then outstanding, and (C) after giving
effect to such reductions, Borrowers shall comply with Section 1.3(b)(i). In
addition, Borrowers may at any time on at least 10 days' prior written notice by
Borrower Representative to Agent terminate
the Revolving Loan Commitment; provided that upon such termination, all Loans
and other Obligations shall be immediately due and payable in full and all
Letter of Credit Obligations shall be cash collateralized or otherwise satisfied
in accordance with Annex B hereto. Any reduction or termination of the Revolving
Loan Commitment must be accompanied by payment of the Fee required by Section
1.9(c), if any, plus the payment of any LIBOR funding breakage costs in
accordance with Section 1.13(b). Upon any such reduction or termination of the
Revolving Loan Commitment, each Borrower's right to request Revolving Credit
Advances, or request that Letter of Credit Obligations be incurred on its
behalf, or request Swing Line Advances, shall simultaneously be permanently
reduced or terminated, as the case may be; provided that a permanent reduction
of the Revolving Loan Commitment shall require a corresponding pro rata
reduction in the L/C Sublimit.
(b) Mandatory Prepayments.
(i) If at any time the aggregate outstanding balances of the
Revolving Loan and the Swing Line Loan exceed the lesser of (A) the Maximum
Amount and (B) the Aggregate Borrowing Base, Borrowers shall immediately repay
the aggregate outstanding Revolving Credit Advances to the extent required to
eliminate such excess. If any such excess remains after repayment in full of the
aggregate outstanding Revolving Credit Advances, Borrowers shall provide cash
collateral for the Letter of Credit Obligations in the manner set forth in Annex
B to the extent required to eliminate such excess. Furthermore, if, at any time,
the outstanding balance of the Revolving Loan of any Borrower exceeds that
Borrower's separate Borrowing Base less the outstanding balance of the Swing
Line Loan of that Borrower, the applicable Borrower shall immediately repay its
Revolving Credit Advances in the amount of such excess (and, if necessary, shall
provide cash collateral for its Letter of Credit Obligations as described
above). Notwithstanding the foregoing, any Overadvance made pursuant to Section
1.1(a)(iii) shall be repaid only on demand.
(ii) Immediately upon receipt by any Borrower of proceeds of any
asset disposition (excluding proceeds of asset dispositions permitted by Section
6.8 (a)) or any sale of Stock of Brightpoint Holdings, Wireless Holdings or any
Borrower, Borrowers shall prepay the Loans in an amount equal to all such
proceeds, net of (A) commissions and other reasonable and customary transaction
costs, fees and expenses properly attributable to such transaction and payable
by Borrowers in connection therewith (in each case, paid to non-Affiliates), (B)
transfer taxes, (C) amounts payable to holders of senior Liens (to the extent
such Liens constitute Permitted Encumbrances hereunder), if any, and (D) an
appropriate reserve for income taxes in accordance with GAAP in connection
therewith. Any such prepayment shall be applied in accordance with Section
1.3(c).
(iii) If any Loan Party issues Stock, no later than the Business
Day following the date of receipt of the proceeds thereof, all Borrowers (in the
case of an issuance by a Holding Company) or the issuing Borrower shall prepay
the Loans in an amount equal to all such proceeds, net of underwriting discounts
and commissions and other reasonable costs paid to non-Affiliates in connection
therewith. Any such prepayment shall be applied in accordance with Section
1.3(c).
(c) Application of Certain Mandatory Prepayments. Any
prepayments made by any Borrower pursuant to Sections 1.3(b)(ii) or (b)(iii)
above shall be applied as follows: first, to Fees and reimbursable expenses of
Agent then due and payable pursuant to any of the Loan Documents; second, to
interest then due and payable on that Borrower's Swing Line Loan; third, to the
principal balance of the Swing Line Loan outstanding to that Borrower until the
same has been repaid in full; fourth, to interest then due and payable on
Revolving Credit Advances made to that Borrower; fifth, to the principal balance
of Revolving Credit Advances outstanding to that Borrower until the same has
been paid in full; sixth, to any Letter of Credit Obligations of such Borrower
to provide cash collateral therefor in the manner set forth in Annex B, until
all such Letter of Credit Obligations have been fully cash collateralized in the
manner set forth in Annex B; seventh, to interest then due and payable on the
Swing Line Loan of the other Borrower, pro rata; eighth, to the principal
balances of the Swing Line Loan outstanding to the other Borrower, pro rata,
until the same have been repaid in full; ninth, to interest then due and payable
on the Revolving Credit Advances outstanding to the other Borrower, pro rata;
tenth, to the principal balance of the Revolving Credit Advances made to the
other Borrower, pro rata, until the same has been paid in full, and last to any
Letter of Credit Obligations of the other Borrower, pro rata, to provide cash
collateral therefor in the manner set forth in Annex B, until all such Letter of
Credit Obligations have been fully cash collateralized. Neither the Revolving
Loan Commitment nor the Swing Line Commitment shall be permanently reduced by
the amount of any such prepayments.
(d) No Implied Consent. Nothing in this Section 1.3 shall be
construed to constitute Agent's or any Lender's consent to any transaction that
is not permitted by other provisions of this Agreement or the other Loan
Documents.
1.4 Use of Proceeds. Borrowers shall utilize the proceeds of
the Revolving Loan and the Swing Line Advances solely for the Refinancing (and
to pay any related transaction expenses), to make distributions to BPI to
repurchase XXXXX to the extent and in the manner permitted hereunder, and for
the financing of Borrowers' ordinary working capital and general corporate
needs. Disclosure Schedule (1.4) contains a description of Borrowers' sources
and uses of funds as of the Closing Date, including Loans and Letter of Credit
Obligations to be made or incurred on that date, and a funds flow memorandum
detailing how funds from each source are to be transferred to particular uses.
1.5 Interest and Applicable Margins.
(a) Borrowers shall pay interest to Agent, for the ratable
benefit of Lenders in accordance with the various Loans being made by each
Lender, in arrears on each applicable Interest Payment Date, at the following
rates: (i) with respect to the Revolving Credit Advances, the Index Rate plus
the Applicable Index Margin per annum or, at the election of Borrower
Representative, the Applicable LIBOR Rate plus the Applicable LIBOR Margin per
annum, based on the aggregate Revolving Credit Advances outstanding from time to
time; and (ii) with respect to the Swing Line Loan, the Index Rate plus the
Applicable Index Margin per annum.
As of the Closing Date, the Applicable Margins are as follows:
Applicable Index Margin 1.250%
Applicable LIBOR Margin 2.750%
Applicable L/C Margin 2.750%
Applicable Unused Line Fee Margin 0.375%
The Applicable Margins shall be adjusted (up or down)
prospectively on a quarterly basis as determined by Borrowers' consolidated
financial performance, commencing with the first day of the first calendar month
that occurs more than 5 days after delivery of Borrowers' quarterly Financial
Statements to Lenders for the Fiscal Quarter ending September 30, 2002.
Adjustments in Applicable Margins shall be determined by reference to the
following grids:
IF BOTH BORROWING AVAILABILITY
IF FIXED CHARGE AND AVERAGE BORROWING 60-DAY LEVEL OF
COVERAGE RATIO IS: AVAILABILITY ARE: APPLICABLE MARGINS:
---------------------------------------- --------------------------------------------------------------- -------------------
greater than 1.40:1.00 greater than $30,000,000 Level I
---------------------------------------- --------------------------------------------------------------- -------------------
1.40:1.00, but greater than 1.25:1.00 less than $30,000,000, but greater than or equal to $25,000,000 Level II
---------------------------------------- --------------------------------------------------------------- -------------------
greater than 0.90:1.00 less than $25,000,000, but greater than or equal to $20,000,000 Level III
---------------------------------------- --------------------------------------------------------------- -------------------
Not applicable less than $20,000,000, but greater than or equal to $15,000,000 Level IV
---------------------------------------- --------------------------------------------------------------- -------------------
Not applicable less than $15,000,000 Level V
---------------------------------------- --------------------------------------------------------------- -------------------
APPLICABLE MARGINS
--------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
------- -------- --------- -------- -------
Applicable Index Margin 0.750% 1.000% 1.250% 1.500% 1.750%
Applicable LIBOR Margin 2.250% 2.500% 2.750% 3.000% 3.250%
Applicable L/C Margin 2.250% 2.500% 2.750% 3.000% 3.250%
Applicable Unused Line Fee Margin 0.375% 0.375% 0.375% 0.375% 0.375%
If there is a disparity between the financial tests described above, the test
resulting in the greater level of Applicable Margins will prevail.
All adjustments in the Applicable Margins after September 30,
2002 shall be implemented quarterly on a prospective basis, for each calendar
month commencing at least 5 days after the date of delivery to Lenders of the
quarterly unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the delivery of those
Financial Statements, Borrower Representative shall deliver to Agent and Lenders
a certificate, signed by its chief financial officer, setting forth in
reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins. Failure to timely deliver such Financial Statements shall,
in addition to any other remedy provided for in this Agreement,
result in an increase in the Applicable Margins to the highest level set forth
in the foregoing grid, until the first day of the first calendar month following
the delivery of those Financial Statements demonstrating that such an increase
is not required. If a Default or Event of Default has occurred and is continuing
at the time any reduction in the Applicable Margins is to be implemented, that
reduction shall be deferred until the first day of the first calendar month
following the date on which such Default or Event of Default is waived or cured.
(b) If any payment on any Loan becomes due and payable on a
day other than a Business Day, the maturity thereof will be extended to the next
succeeding Business Day (except as set forth in the definition of LIBOR Period)
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis
and interest shall be made by Agent on the basis of a 360-day year, in each case
for the actual number of days occurring in the period for which such interest
and Fees are payable. The Index Rate is a floating rate determined for each day.
Each determination by Agent of an interest rate and Fees hereunder shall be
final, binding and conclusive on Borrowers, absent manifest error.
(d) So long as an Event of Default has occurred and is
continuing under Section 8.1(a), (h) or (i) or so long as any other Default or
Event of Default has occurred and is continuing and at the election of Agent (or
upon the written request of Requisite Lenders) confirmed by written notice from
Agent to Borrower Representative, the interest rates applicable to the Loans and
the Letter of Credit Fees shall be increased by two percentage points (2%) per
annum above the rates of interest or the rate of such Fees otherwise applicable
hereunder ("Default Rate"), and all outstanding Obligations shall bear interest
at the Default Rate applicable to such Obligations. Interest and Letter of
Credit Fees at the Default Rate shall accrue from the initial date of such
Default or Event of Default until that Default or Event of Default is cured or
waived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section
2.2, Borrower Representative shall have the option to (i) request that any
Revolving Credit Advance be made as a LIBOR Loan, (ii) convert at any time all
or any part of outstanding Loans (other than the Swing Line Loan) from Index
Rate Loans to LIBOR Loans, (iii) convert any LIBOR Loan to an Index Rate Loan,
subject to payment of LIBOR breakage costs in accordance with Section 1.13(b) if
such conversion is made prior to the expiration of the LIBOR Period applicable
thereto, or (iv) continue all or any portion of any Loan (other than the Swing
Line Loan) as a LIBOR Loan upon the expiration of the applicable LIBOR Period
and the succeeding LIBOR Period of that continued Loan shall commence on the
first day after the last day of the LIBOR Period of the Loan to be continued.
Any Loan or group of Loans having the same proposed LIBOR Period to be made or
continued as, or converted into, a LIBOR Loan must be in a minimum amount of
$5,000,000 and integral multiples of $500,000 in excess of such amount. Any such
election must be made by 11:00 a.m. (Chicago time) on the 3rd Business Day prior
to (1) the date of any proposed Advance which is to bear interest at the LIBOR
Rate, (2) the end of each LIBOR Period with respect to any LIBOR Loans to be
continued as such, or (3) the date on which Borrower Representative wishes to
convert any Index Rate Loan to a LIBOR Loan for a LIBOR Period designated by
Borrower Representative in such election. If no election is received with
respect to
a LIBOR Loan by 11:00 a.m. (Chicago time) on the 3rd Business Day prior to the
end of the LIBOR Period with respect thereto (or if a Default or an Event of
Default has occurred and is continuing or if the additional conditions precedent
set forth in Section 2.2 shall not have been satisfied), that LIBOR Loan shall
be converted to an Index Rate Loan at the end of its LIBOR Period. Borrower
Representative must make such election by notice to Agent in writing, by
telecopy or overnight courier. In the case of any conversion or continuation,
such election must be made pursuant to a written notice (a "Notice of
Conversion/Continuation") in the form of Exhibit 1.5(e). No Loan may be made as
or converted into a LIBOR Loan until the earlier of (i) 15 days after the
Closing Date or (ii) completion of primary syndication as determined by Agent.
(f) Notwithstanding anything to the contrary set forth in this
Section 1.5, if a court of competent jurisdiction determines in a final order
that the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law (the "Maximum Lawful Rate"), then so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder shall
be equal to the Maximum Lawful Rate; provided, however, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrowers shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had the
interest rate payable hereunder been (but for the operation of this paragraph)
the interest rate payable since the Closing Date as otherwise provided in this
Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of
interest and in the manner provided in Sections 1.5(a) through (e), unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall be
calculated at a daily rate equal to the Maximum Lawful Rate divided by the
number of days in the year in which such calculation is made. If,
notwithstanding the provisions of this Section 1.5(f), a court of competent
jurisdiction shall finally determine that a Lender has received interest
hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent
permitted by applicable law, promptly apply such excess in the order specified
in Section 1.11 and thereafter shall refund any excess to Borrowers or as a
court of competent jurisdiction may otherwise order.
1.6 Eligible Accounts. All of the Accounts owned by each
Borrower and reflected in the most recent Borrowing Base Certificate delivered
by each Borrower to Agent shall be "Eligible Accounts" for purposes of this
Agreement, except any Account to which any of the exclusionary criteria set
forth below applies. Agent shall have the right to establish, or modify or
eliminate Reserves against Eligible Accounts from time to time in its reasonable
credit judgment. In addition, Agent reserves the right, at any time and from
time to time after the Closing Date, to adjust any of the criteria set forth
below, to establish new criteria and to adjust advance rates with respect to
Eligible Accounts, in its reasonable credit judgment, subject to the approval of
Supermajority Lenders in the case of adjustments, new criteria or changes in
advance rates or the elimination of Reserves which have the effect of making
more credit available. Eligible Accounts shall not include any Account of any
Borrower:
(a) that does not arise from the sale of goods or the
performance of services by such Borrower in the ordinary course of its business;
(b) (i) upon which such Borrower's right to receive payment is
not absolute or is contingent upon the fulfillment of any condition whatsoever
or (ii) as to which such Borrower is not able to bring suit or otherwise enforce
its remedies against the Account Debtor through judicial process or (iii) if the
Account represents a progress billing consisting of an invoice for goods sold or
used or services rendered pursuant to a contract under which the Account
Debtor's obligation to pay that invoice is subject to such Borrower's completion
of further performance under such contract or is subject to the equitable lien
of a surety bond issuer;
(c) in the event that any defense, counterclaim, setoff or
dispute is asserted as to such Account;
(d) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered and accepted by the applicable Account Debtor;
(e) with respect to which an invoice, in form and substance
previously approved by Agent or any other form reasonably acceptable to Agent in
form and substance, has not been sent to the applicable Account Debtor;
(f) that (i) is not owned by such Borrower or (ii) is subject
to any right, claim, security interest or other interest of any other Person,
other than Liens in favor of Agent, on behalf of itself and Lenders;
(g) that arises from a sale to any director, officer, other
employee or Affiliate of any Credit Party, or to any entity that has any common
officer or director with any Credit Party (except for any Account Debtor set
forth on Disclosure Schedule (1.6));
(h) that is the obligation of an Account Debtor that is the
United States government or a political subdivision thereof, or any state,
county or municipality or department, agency or instrumentality thereof unless
Agent, in its sole discretion, has agreed to the contrary in writing and such
Borrower, if necessary or desirable, has complied with respect to such
obligation with the Federal Assignment of Claims Act of 1940, or any applicable
state, county or municipal law restricting assignment thereof;
(i) that is the obligation of an Account Debtor located in a
foreign country other than Canada (excluding the province of Newfoundland, the
Northwest Territories and the Territory of Nunavit) unless payment thereof is
assured by a letter of credit assigned and delivered to Agent, reasonably
satisfactory to Agent as to form, amount and issuer;
(j) to the extent such Borrower or any Subsidiary thereof is
liable for goods sold or services rendered by the applicable Account Debtor to
such Borrower or any Subsidiary thereof but only to the extent of the potential
offset;
(k) that arises with respect to goods that are delivered on a
xxxx-and-hold, cash-on-delivery basis or placed on consignment, guaranteed sale
or other terms by reason of which the payment by the Account Debtor is or may be
conditional;
(l) that is in default; provided, that, without limiting the
generality of the foregoing, an Account shall be deemed in default upon the
occurrence of any of the following:
(i) the Account is not paid within the earlier of: 60 days
following its due date or 90 days following its original invoice date;
(ii) the Account Debtor obligated upon such Account suspends
business, makes a general assignment for the benefit of creditors or fails to
pay its debts generally as they come due; or
(iii) a petition is filed by or against any Account Debtor
obligated upon such Account under any bankruptcy law or any other federal, state
or foreign (including any provincial) receivership, insolvency relief or other
law or laws for the relief of debtors;
(m) that is the obligation of an Account Debtor if 50% or more
of the Dollar amount of all Accounts owing by that Account Debtor are ineligible
under the criteria set forth in Section 1.6(l);
(n) as to which Agent's Lien thereon, on behalf of itself and
Lenders, is not a first priority perfected Lien;
(o) as to which any of the representations or warranties in
the Loan Documents are untrue;
(p) to the extent such Account is evidenced by a judgment,
Instrument or Chattel Paper;
(q) to the extent such Account exceeds any credit limit
established by Agent, in its reasonable credit judgment;
(r) to the extent that such Account, together with all other
Accounts owing by such Account Debtor and its Affiliates as of any date of
determination exceed 10% (or, in Agent's sole discretion, 15%) of all Eligible
Accounts;
(s) that is payable in any currency other than Dollars; or
(t) that is otherwise unacceptable to Agent in its reasonable
credit judgment.
1.7 Eligible Inventory. All of the Inventory owned by the
Borrowers and reflected in the most recent Borrowing Base Certificate delivered
by each Borrower to Agent shall be "Eligible Inventory" for purposes of this
Agreement, except any Inventory to which any of the exclusionary criteria set
forth below applies. Agent shall have the right to establish, modify or
eliminate Reserves against Eligible Inventory from time to time in its
reasonable credit judgment. In addition, Agent reserves the right, at any time
and from time to time after the Closing Date, to adjust of the criteria set
forth below, to establish new criteria and to adjust advance rates with respect
to Eligible Inventory, in its reasonable credit
judgment, subject to the approval of Supermajority Lenders in the case of
adjustments, new criteria or changes in advance rates or the elimination of
Reserves which have the effect of making more credit available. Eligible
Inventory shall not include any Inventory of any Borrower that:
(a) is not owned by such Borrower free and clear of all Liens
and rights of any other Person (including the rights of a purchaser that has
made progress payments and the rights of a surety that has issued a bond to
assure such Borrower's performance with respect to that Inventory), except the
Liens in favor of Agent, on behalf of itself and Lenders, and Permitted
Encumbrances in favor of landlords and bailees to the extent permitted in
Section 5.9 hereof (subject to Reserves established by Agent in accordance with
Section 5.9 hereof);
(b) (i) is not located on premises owned, leased or rented by
such Borrower and set forth in Disclosure Schedule (3.2), or (ii) is stored at a
leased location, unless Agent has given its prior consent thereto and unless
either (x) a reasonably satisfactory landlord waiver has been delivered to
Agent, or (y) Reserves reasonably satisfactory to Agent have been established
with respect thereto or (iii) is stored with a bailee or warehouseman unless a
reasonably satisfactory, acknowledged bailee letter has been received by Agent
and Reserves reasonably satisfactory to Agent have been established with respect
thereto, or (iv) is located at an owned location subject to a mortgage in favor
of a lender other than Agent unless a reasonably satisfactory mortgagee waiver
has been delivered to Agent, or (v) is located at any site if the aggregate book
value of Inventory at any such location is less than $100,000;
(c) is placed on consignment or is in transit, except for
Inventory in transit between domestic locations of Credit Parties as to which
Agent's Liens have been perfected at origin and destination and Inventory in
transit to a purchaser, which Inventory (i) is fully insured, (ii) is subject to
a first priority security interest in and lien upon such goods in favor of Agent
(except for any possessor lien upon such goods in the possession of a freight
carrier or shipping company securing only the freight charges for the
transportation of such goods to such Borrowers), (iii) if required by Agent, is
evidenced or deliverable pursuant to documents, notices, instruments, statements
and bills of lading that have been delivered to Agent or an agent acting on its
behalf, and (iv) is otherwise deemed to be "Eligible Inventory" hereunder;
(d) is covered by a negotiable document of title, unless such
document has been delivered to Agent with all necessary endorsements, free and
clear of all Liens except those in favor of Agent and Lenders;
(e) is excess, obsolete, unsalable, shopworn, seconds, damaged
or unfit for sale;
(f) consists of display items or packing or shipping
materials, manufacturing supplies, work-in-process Inventory or replacement
parts;
(g) consists of goods which have been returned by the buyer
except for such goods which are in saleable "as new" condition in the ordinary
course of business;
(h) is not of a type held for sale in the ordinary course of
such Borrower's business;
(i) is not subject to a first priority lien in favor of Agent
on behalf of itself and Lenders, subject to Permitted Encumbrances;
(j) breaches any of the representations or warranties
pertaining to Inventory set forth in the Loan Documents;
(k) consists of any costs associated with "freight-in"
charges;
(l) consists of Hazardous Materials or goods that can be
transported or sold only with licenses that are not readily available;
(m) is not covered by casualty insurance reasonably acceptable
to Agent; or
(n) is otherwise unacceptable to Agent in its reasonable
credit judgment.
1.8 Cash Management Systems. On or prior to the Closing Date,
Borrowers will establish and will maintain until the Termination Date, the cash
management systems described in Annex C (the "Cash Management Systems").
1.9 Fees.
(a) Borrowers shall pay to GE Capital, individually, the Fees
specified in the GE Capital Fee Letter, at the times specified for payment
therein.
(b) As additional compensation for the Lenders, Borrowers
shall pay to Agent, for the ratable benefit of such Lenders, in arrears, on the
first Business Day of each month prior to the Commitment Termination Date and on
the Commitment Termination Date, a Fee for Borrowers' non-use of available funds
in an amount equal to the Applicable Unused Line Fee Margin per annum
(calculated on the basis of a 360 day year for actual days elapsed) multiplied
by the difference between (x) the Maximum Amount (as it may be reduced from time
to time) and (y) the average for the period of the daily closing balances of the
aggregate Revolving Loan and the Swing Line Loan outstanding during the period
for which such Fee is due.
(c) If Borrowers reduce or terminate the Revolving Loan
Commitment, whether voluntarily or involuntarily and whether before or after
acceleration of the Obligations, or if any of the Revolving Loan Commitments are
otherwise terminated, Borrowers shall pay to Agent, for the benefit of Lenders
as liquidated damages and compensation for the costs of being prepared to make
funds available hereunder an amount equal to the Applicable Percentage (as
defined below) multiplied by the amount of the reduction of the Revolving Loan
Commitment. As used herein, the term "Applicable Percentage" shall mean (x) two
percent (2.0%), in the case of a prepayment on or prior to the first anniversary
of the Closing Date and (y) one-half
percent (0.5%), in the case of a prepayment after the first anniversary of the
Closing Date but on or prior to the second anniversary thereof. The Credit
Parties agree that the Applicable Percentages are a reasonable calculation of
Lenders' lost profits in view of the difficulties and impracticality of
determining actual damages resulting from an early termination of the Revolving
Loan Commitments. Notwithstanding the foregoing, no prepayment fee shall be
payable by Borrowers upon a mandatory prepayment made pursuant to Sections
1.3(b) or 1.16(c); provided that Borrowers do not permanently reduce or
terminate the Revolving Loan Commitment upon any such prepayment and, in the
case of prepayments made pursuant to Sections 1.3(b)(ii) or (b)(iii), the
transaction giving rise to the applicable prepayment is expressly permitted
under Section 6.
(d) Borrowers shall pay to Agent, for the ratable benefit of
Lenders, the Letter of Credit Fee as provided in Annex B.
1.10 Receipt of Payments. Borrowers shall make each payment
under this Agreement not later than 1:00 p.m. (Chicago time) on the day when due
in immediately available funds in Dollars to the Collection Account. For
purposes of computing interest and Fees and determining Borrowing Availability
as of any date, all payments shall be deemed received on the first Business Day
following the Business Day on which immediately available funds therefor are
received in the Collection Account prior to 2:00 p.m. (Chicago time). Payments
received after 1:00 p.m. Chicago time on any Business Day or on a day that is
not a Business Day shall be deemed to have been received on the following
Business Day.
1.11 Application and Allocation of Payments.
(a) So long as no Default or Event of Default has occurred and
is continuing, (i) payments consisting of proceeds of Accounts received in the
ordinary course of business shall be applied, first, to the Swing Line Loan and,
second, the Revolving Loan; (ii) payments matching specific scheduled payments
then due shall be applied to those scheduled payments; (iii) voluntary
prepayments shall be applied as determined by Borrower Representative, subject
to the provisions of Section 1.3(a); and (iv) mandatory prepayments shall be
applied as set forth in Section 1.3(c). All payments and prepayments applied to
a particular Loan shall be applied ratably to the portion thereof held by each
Lender as determined by its Pro Rata Share. As to any other payment, and as to
all payments made when a Default or Event of Default has occurred and is
continuing or following the Commitment Termination Date, each Borrower hereby
irrevocably waives the right to direct the application of any and all payments
received from or on behalf of such Borrower, and each Borrower hereby
irrevocably agrees that Agent shall have the continuing exclusive right to apply
any and all such payments against the Obligations of Borrowers as Agent may deem
advisable notwithstanding any previous entry by Agent in the Loan Account or any
other books and records. In the absence of a specific determination by Agent
with respect thereto, payments shall be applied to amounts then due and payable
in the following order: (1) to Fees and Agent's expenses reimbursable hereunder;
(2) to interest on the Swing Line Loan; (3) to principal payments on the Swing
Line Loan; (4) to interest on the other Loans, ratably in proportion to the
interest accrued as to each Loan; (5) to principal payments on the other Loans
and to provide cash collateral for Letter of Credit Obligations in the manner
described in Annex B, ratably to the aggregate, combined principal balance of
the other Loans
and outstanding Letter of Credit Obligations; (6) to all other Obligations other
than Hedging Obligations, including expenses of Lenders to the extent
reimbursable under Section 11.3; and (7) to Hedging Obligations.
(b) Agent is authorized to, and at its sole election may,
charge to the Revolving Loan balance on behalf of each Borrower and cause to be
paid all Fees, expenses, Charges, costs (including insurance premiums in
accordance with Section 5.4(a)) and interest and principal, other than principal
of the Revolving Loan, owing by Borrowers under this Agreement or any of the
other Loan Documents if and to the extent Borrowers fail to pay promptly any
such amounts as and when due, even if the amount of such charges would exceed
Borrowing Availability at such time or would cause the balance of the Revolving
Loan and the Swing Line Loan to any Borrower to exceed such Borrower's separate
Borrowing Base after giving effect to such charges. At Agent's option and to the
extent permitted by law, any charges so made shall constitute part of the
Revolving Loan hereunder.
1.12 Loan Account and Accounting. Agent shall maintain a loan
account (the "Loan Account") on its books to record: all Advances, all payments
made by Borrowers, and all other debits and credits as provided in this
Agreement with respect to the Loans or any other Obligations. All entries in the
Loan Account shall be made in accordance with Agent's customary accounting
practices as in effect from time to time. The balance in the Loan Account, as
recorded on Agent's most recent printout or other written statement, shall,
absent manifest error, be presumptive evidence of the amounts due and owing to
Agent and Lenders by each Borrower; provided that any failure to so record or
any error in so recording shall not limit or otherwise affect any Borrower's
duty to pay the Obligations. Agent shall render to Borrower Representative a
monthly accounting of transactions with respect to the Loans setting forth the
balance of the Loan Account as to each Borrower for the immediately preceding
month. Unless Borrower Representative notifies Agent in writing of any objection
to any such accounting (specifically describing the basis for such objection),
within 30 days after the date thereof, each and every such accounting shall
(absent manifest error) be deemed final, binding and conclusive on Borrowers in
all respects as to all matters reflected therein. Only those items expressly
objected to in such notice shall be deemed to be disputed by Borrowers.
Notwithstanding any provision herein contained to the contrary, any Lender may
elect (which election may be revoked) to dispense with the issuance of Notes to
that Lender and may rely on the Loan Account as evidence of the amount of
Obligations from time to time owing to it.
1.13 Indemnity.
(a) Each Borrower shall jointly and severally indemnify and
hold harmless each of Agent, Lenders and their respective Affiliates, and each
such Person's respective officers, directors, employees, attorneys, agents and
representatives (each, an "Indemnified Person"), from and against any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including reasonable attorneys' fees and disbursements and other costs of
investigation or defense, including those incurred upon any appeal) that may be
instituted or asserted against or incurred by any such Indemnified Person as the
result of credit having been extended, suspended or terminated under this
Agreement and the other Loan Documents and the administration of such credit,
and in connection with or arising out of the transactions contemplated hereunder
and
thereunder and any actions or failures to act in connection therewith,
including any and all Environmental Liabilities and legal costs and expenses
arising out of or incurred in connection with disputes between or among any
parties to any of the Loan Documents (collectively, "Indemnified Liabilities");
provided, that no such Borrower shall be liable for any indemnification to an
Indemnified Person to the extent that any such suit, action, proceeding, claim,
damage, loss, liability or expense results from that Indemnified Person's gross
negligence or willful misconduct. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR
LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD
PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS
DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN
EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY
OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the
terms provided herein, if (i) any LIBOR Loans are repaid in whole or in part
prior to the last day of any applicable LIBOR Period (whether that repayment is
made pursuant to any provision of this Agreement or any other Loan Document or
occurs as a result of acceleration, by operation of law or otherwise); (ii) any
Borrower shall default in payment when due of the principal amount of or
interest on any LIBOR Loan; (iii) any Borrower shall refuse to accept any
borrowing of, or shall request a termination of, any borrowing of, conversion
into or continuation of, LIBOR Loans after Borrower Representative has given
notice requesting the same in accordance herewith; or (iv) any Borrower shall
fail to make any prepayment of a LIBOR Loan after Borrower Representative has
given a notice thereof in accordance herewith, then Borrowers shall jointly and
severally indemnify and hold harmless each Lender from and against all losses,
costs and expenses resulting from or arising from any of the foregoing. Such
indemnification shall include any loss (including loss of margin) or expense
arising from the reemployment of funds obtained by it or from fees payable to
terminate deposits from which such funds were obtained. For the purpose of
calculating amounts payable to a Lender under this subsection, each Lender shall
be deemed to have actually funded its relevant LIBOR Loan through the purchase
of a deposit bearing interest at the LIBOR Rate in an amount equal to the amount
of that LIBOR Loan and having a maturity comparable to the relevant LIBOR
Period; provided, that each Lender may fund each of its LIBOR Loans in any
manner it sees fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder. As promptly as practicable under the
circumstances, each Lender shall provide Borrower Representative with its
written calculation of all amounts payable pursuant to this Section 1.13(b), and
such calculation shall be binding on the parties hereto unless Borrower
Representative shall object in writing within 10 Business Days of receipt
thereof, specifying the basis for such objection in detail.
1.14 Access. Each Borrower shall, during normal business
hours, from time to time upon one Business Day's prior notice as frequently as
Agent determines to be appropriate: (a) provide Agent and any of its officers,
employees and agents access to its properties, facilities,
advisors and employees (including officers) of each Credit Party and to the
Collateral, (b) permit Agent, and any of its officers, employees and agents, to
inspect, audit and make extracts from any Borrower's books and records, and (c)
permit Agent, and its officers, employees and agents, to inspect, review,
evaluate and make test verifications and counts of the Accounts, Inventory and
other Collateral of any Borrower. If a Default or Event of Default has occurred
and is continuing or if access is necessary to preserve or protect the
Collateral as determined by Agent, each such Borrower shall provide such access
to Agent and to each Lender at all times and without advance notice.
Furthermore, so long as any Event of Default has occurred and is continuing,
Borrowers shall provide Agent and each Lender with access to their suppliers and
customers. Each Borrower shall make available to Agent and its counsel, as
quickly as is possible under the circumstances, originals or copies of all books
and records that Agent may reasonably request. Each Borrower shall deliver any
document or instrument necessary for Agent, as it may from time to time
reasonably request, to obtain records from any service bureau or other Person
that maintains records for such Borrower, and shall maintain duplicate records
or supporting documentation on media, including computer tapes and discs owned
by such Borrower. Agent will give Lenders at least 5 days' prior written notice
of regularly scheduled audits. Representatives of other Lenders may accompany
Agent's representatives on regularly scheduled audits at no charge to Borrowers.
1.15 Taxes.
(a) Any and all payments by each Borrower hereunder (including
any payments made pursuant to Section 12) or under the Notes shall be made, in
accordance with this Section 1.15, free and clear of and without deduction for
any and all present or future Taxes. If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder (including any
sum payable pursuant to Section 12) or under the Notes, (i) the sum payable
shall be increased as much as shall be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 1.15) Agent or Lenders, as applicable, receive an amount
equal to the sum they would have received had no such deductions been made, (ii)
such Borrower shall make such deductions, and (iii) such Borrower shall pay the
full amount deducted to the relevant taxing or other authority in accordance
with applicable law. Within 30 days after the date of any payment of Taxes,
Borrower Representative shall furnish to Agent the original or a certified copy
of a receipt evidencing payment thereof. Agent and Lenders shall not be
obligated to return or refund any amounts received pursuant to this Section.
(b) Each Borrower that is a signatory hereto shall jointly and
severally indemnify and, within 10 days of demand therefor, pay Agent and each
Lender for the full amount of Taxes (including any Taxes imposed by any
jurisdiction on amounts payable under this Section 1.15) paid by Agent or such
Lender, as appropriate, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted.
(c) Each Lender organized under the laws of a jurisdiction
outside the United States (a "Foreign Lender") as to which payments to be made
under this Agreement or under the Notes are exempt from United States
withholding tax under an applicable statute or tax treaty
shall provide to Borrower Representative and Agent a properly completed and
executed IRS Form W-8ECI or Form W-8BEN or other applicable form, certificate or
document prescribed by the IRS or the United States certifying as to such
Foreign Lender's entitlement to such exemption (a "Certificate of Exemption").
Any foreign Person that seeks to become a Lender under this Agreement shall
provide a Certificate of Exemption to Borrower Representative and Agent prior to
becoming a Lender hereunder. No foreign Person may become a Lender hereunder if
such Person fails to deliver a Certificate of Exemption in advance of becoming a
Lender.
1.16 Capital Adequacy; Increased Costs; Illegality.
(a) If any Lender shall have determined that any law, treaty,
governmental (or quasi-governmental) rule, regulation, guideline or order
regarding capital adequacy, reserve requirements or similar requirements or
compliance by any Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law), in each case, adopted after the Closing Date, from any
central bank or other Governmental Authority increases or would have the effect
of increasing the amount of capital, reserves or other funds required to be
maintained by such Lender and thereby reducing the rate of return on such
Lender's capital as a consequence of its obligations hereunder, then Borrowers
shall from time to time upon demand by such Lender (with a copy of such demand
to Agent) pay to Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for such reduction. A certificate as to the
amount of that reduction and showing the basis of the computation thereof
submitted by such Lender to Borrower Representative and to Agent shall, absent
manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in
any law or regulation (or any change in the interpretation thereof) or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), in each case
adopted after the Closing Date, there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining any Loan, then
Borrowers shall from time to time, upon demand by such Lender (with a copy of
such demand to Agent), pay to Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower
Representative and to Agent by such Lender, shall be conclusive and binding on
Borrowers for all purposes, absent manifest error. Each Lender agrees that, as
promptly as practicable after it becomes aware of any circumstances referred to
above which would result in any such increased cost, the affected Lender shall,
to the extent not inconsistent with such Lender's internal policies of general
application, use reasonable commercial efforts to minimize costs and expenses
incurred by it and payable to it by Borrowers pursuant to this Section 1.16(b).
(c) Notwithstanding anything to the contrary contained herein,
if the introduction of or any change in any law or regulation (or any change in
the interpretation thereof) shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender to agree
to make or to make or to continue to fund or maintain any LIBOR Loan, then,
unless that Lender is able to make or to continue to fund or to maintain such
LIBOR Loan at another branch or office of that Lender without, in that Lender's
opinion, adversely affecting it or its Loans or the income obtained therefrom,
on notice thereof and
demand therefor by such Lender to Borrower Representative through Agent, (i) the
obligation of such Lender to agree to make or to make or to continue to fund or
maintain LIBOR Loans shall terminate and (ii) each Borrower shall forthwith
prepay in full all outstanding LIBOR Loans owing by such Borrower to such
Lender, together with interest accrued thereon, unless Borrower Representative
on behalf of such Borrower, within 5 Business Days after the delivery of such
notice and demand, converts all LIBOR Loans into Index Rate Loans.
(d) Within 15 days after receipt by Borrower Representative of
written notice and demand from any Lender (an "Affected Lender") for payment of
additional amounts or increased costs as provided in Sections 1.15(a), 1.16(a)
or 1.16(b), Borrower Representative may, at its option, notify Agent and such
Affected Lender of its intention to replace the Affected Lender. So long as no
Default or Event of Default has occurred and is continuing, Borrower
Representative, with the consent of Agent, may obtain, at Borrowers' expense, a
replacement Lender ("Replacement Lender") for the Affected Lender, which
Replacement Lender must be reasonably satisfactory to Agent. If Borrowers obtain
a Replacement Lender within 90 days following notice of their intention to do
so, the Affected Lender must sell and assign its Loans and Revolving Loan
Commitments to such Replacement Lender for an amount equal to the principal
balance of all Loans held by the Affected Lender and all accrued interest and
Fees with respect thereto through the date of such sale; provided, that
Borrowers shall have reimbursed such Affected Lender for the additional amounts
or increased costs that it is entitled to receive under this Agreement through
the date of such sale and assignment. Notwithstanding the foregoing, Borrowers
shall not have the right to obtain a Replacement Lender if the Affected Lender
rescinds its demand for increased costs or additional amounts within 15 days
following its receipt of Borrowers' notice of intention to replace such Affected
Lender. Furthermore, if Borrowers give a notice of intention to replace and do
not so replace such Affected Lender within 90 days thereafter, Borrowers' rights
under this Section 1.16(d) shall terminate and Borrowers shall promptly pay all
increased costs or additional amounts demanded by such Affected Lender pursuant
to Sections 1.15(a), 1.16(a) and 1.16(b).
1.17 Single Loan. All Loans to each Borrower and all of the
other Obligations of each Borrower arising under this Agreement and the other
Loan Documents shall constitute one general obligation of that Borrower secured,
until the Termination Date, by all of the Collateral.
2. CONDITIONS PRECEDENT
2.1 Conditions to the Initial Loans. No Lender shall be
obligated to make any Loan or incur any Letter of Credit Obligations on the
Closing Date, or to take, fulfill, or perform any other action hereunder, until
the following conditions have been satisfied or provided for in a manner
satisfactory to Agent, or waived in writing by Agent and Lenders:
(a) Credit Agreement; Loan Documents. This Agreement or
counterparts hereof shall have been duly executed by, and delivered to,
Borrowers, each other Credit Party, Agent and Lenders; and Agent shall have
received such documents, instruments, agreements and legal opinions as Agent
shall reasonably request in connection with the transactions
contemplated by this Agreement and the other Loan Documents, including all those
listed in the Closing Checklist attached hereto as Annex D, each in form and
substance reasonably satisfactory to Agent.
(b) Repayment of Prior Lender Obligations; Satisfaction of
Outstanding L/Cs. (i) Agent shall have received a fully executed original of a
pay-off letter reasonably satisfactory to Agent confirming that all of the Prior
Lender Obligations will be repaid in full from the proceeds of the initial
Revolving Credit Advance and all Liens upon any of the property of Borrowers or
any of their Subsidiaries in favor of Prior Lender shall be terminated by Prior
Lender immediately upon such payment; and (ii) all letters of credit issued or
guaranteed by Prior Lender shall have been cash collateralized, supported by a
guaranty of Agent or supported by a Letter of Credit issued pursuant to Annex B,
as mutually agreed upon by Agent, Borrowers and Prior Lender.
(c) Approvals. Agent shall have received (i) satisfactory
evidence that the Credit Parties have obtained all required consents and
approvals of all Persons including all requisite Governmental Authorities, to
the execution, delivery and performance of this Agreement and the other Loan
Documents and the consummation of the Related Transactions or (ii) an officer's
certificate in form and substance reasonably satisfactory to Agent affirming
that no such consents or approvals are required.
(d) Opening Availability. The Eligible Accounts and Eligible
Inventory supporting the initial Revolving Credit Advance and the initial Letter
of Credit Obligations incurred and the amount of the Reserves to be established
on the Closing Date shall be sufficient in value, as determined by Agent, to
provide Borrowers, collectively, with Borrowing Availability, after giving
effect to the initial Revolving Credit Advance made to each Borrower, the
incurrence of any initial Letter of Credit Obligations and the consummation of
the Related Transactions (on a pro forma basis, with trade payables being paid
currently, and expenses and liabilities being paid in the ordinary course of
business and without acceleration of sales) of at least $20,000,000.
(e) Payment of Fees. Borrowers shall have paid the Fees
required to be paid on the Closing Date in the respective amounts specified in
Section 1.9 (including the Fees specified in the GE Capital Fee Letter), and
shall have reimbursed Agent for all fees, costs and expenses of closing
presented as of the Closing Date.
(f) Capital Structure: Other Indebtedness. The capital
structure of each Credit Party and the terms and conditions of all Indebtedness
of each Credit Party shall be acceptable to Agent in its sole discretion.
(g) Due Diligence. Agent shall have completed its business and
legal due diligence, including a roll forward of its previous Collateral audit,
with results reasonably satisfactory to Agent.
2.2 Further Conditions to Each Loan. Except as otherwise
expressly provided herein, no Lender shall be obligated to fund any Advance,
convert or continue any Loan as a LIBOR Loan or incur any Letter of Credit
Obligation, if, as of the date thereof:
(a) any representation or warranty by any Credit Party
contained herein or in any other Loan Document is untrue or incorrect as of such
date, except to the extent that such representation or warranty expressly
relates to an earlier date and except for changes therein expressly permitted or
expressly contemplated by this Agreement and Agent or Requisite Lenders have
determined not to make such Advance, convert or continue any Loan as LIBOR Loan
or incur such Letter of Credit Obligation as a result of the fact that such
warranty or representation is untrue or incorrect;
(b) any event or circumstance having a Material Adverse Effect
has occurred since the date hereof as determined by the Requisite Lenders and
Agent or Requisite Lenders have determined not to make such Advance, convert or
continue any Loan as a LIBOR Loan or incur such Letter of Credit Obligation as a
result of the fact that such event or circumstance has occurred;
(c) any Default or Event of Default has occurred and is
continuing or would result after giving effect to any Advance (or the incurrence
of any Letter of Credit Obligation), and Agent or Requisite Lenders shall have
determined not to make any Advance, convert or continue any Loan as a LIBOR Loan
or incur any Letter of Credit Obligation as a result of that Default or Event of
Default; or
(d) after giving effect to any Advance (or the incurrence of
any Letter of Credit Obligations), (i) the outstanding principal amount of the
aggregate Revolving Loan would exceed the lesser of the Aggregate Borrowing Base
and the Maximum Amount, in each case, less the then outstanding principal amount
of the Swing Line Loan, or (ii) the outstanding principal amount of the
Revolving Loan of the applicable Borrower would exceed such Borrower's separate
Borrowing Base less the outstanding principal amount of the Swing Line Loan to
that Borrower.
The request and acceptance by any Borrower of the proceeds of any Advance, the
incurrence of any Letter of Credit Obligations or the conversion or continuation
of any Loan into, or as, a LIBOR Loan shall be deemed to constitute, as of the
date thereof, (i) a representation and warranty by Borrowers that the conditions
in this Section 2.2 have been satisfied and (ii) a reaffirmation by Borrowers of
the cross-guaranty provisions set forth in Section 12 and of the granting and
continuance of Agent's Liens, on behalf of itself and Lenders, pursuant to the
Collateral Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and to incur Letter of
Credit Obligations, the Credit Parties executing this Agreement, jointly and
severally, make the following
representations and warranties to Agent and each Lender with respect to all
Credit Parties, each and all of which shall survive the execution and delivery
of this Agreement.
3.1 Corporate Existence; Compliance with Law. Each Borrower
(a) is a corporation, limited liability company or limited partnership duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or organization set forth in Disclosure
Schedule (3.1); (b) is duly qualified to conduct business and is in good
standing in each other jurisdiction where its ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not result in exposure to losses, damages or
liabilities in excess of $50,000; (c) has the requisite power and authority and
the legal right to own, pledge, mortgage or otherwise encumber and operate its
properties, to lease the property it operates under lease and to conduct its
business as now, heretofore and proposed to be conducted; (d) subject to
specific representations regarding Environmental Laws, has all material
licenses, permits, consents or approvals from or by, and has made all material
filings with, and has given all material notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct; (e) is in compliance with its charter and bylaws or
partnership or operating agreement, as applicable; and (f) subject to specific
representations set forth herein regarding ERISA, Environmental Laws, tax and
other laws, is in compliance with all applicable provisions of law, except where
the failure to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
3.2 Executive Offices, Collateral Locations, FEIN. As of the
Closing Date, the current location of each Credit Party's chief executive office
and the warehouses and premises at which any Collateral is located are set forth
in Disclosure Schedule (3.2), and none of such locations has changed within the
12 months preceding the Closing Date. In addition, Disclosure Schedule (3.2)
lists the federal employer identification number of each Credit Party.
3.3 Corporate Power, Authorization, Enforceable Obligations.
The execution, delivery and performance by each Credit Party of the Loan
Documents to which it is a party and the creation of all Liens provided for
therein: (a) are within such Person's power; (b) have been duly authorized by
all necessary corporate, limited liability company or limited partnership
action; (c) do not contravene any provision of such Person's charter, bylaws or
partnership or operating agreement as applicable; (d) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which such Person or any of its
property is bound; (f) do not result in the creation or imposition of any Lien
upon any of the property of such Person other than those in favor of Agent, on
behalf of itself and Lenders, pursuant to the Loan Documents; and (g) do not
require the consent or approval of any Governmental Authority or any other
Person, except those referred to in Section 2.1(c), all of which will have been
duly obtained, made or complied with prior to the Closing Date. Each of the Loan
Documents shall be duly executed and delivered by each Credit Party that is a
party thereto and each such Loan
Document shall constitute a legal, valid and binding obligation of such Credit
Party enforceable against it in accordance with its terms.
3.4 Financial Statements and Projections. Except for the
Projections, all Financial Statements concerning Borrowers and their respective
Subsidiaries that are referred to below have been prepared in accordance with
GAAP consistently applied throughout the periods covered (except as disclosed
therein and except, with respect to unaudited Financial Statements, for the
absence of footnotes and normal year-end audit adjustments) and present fairly
in all material respects the financial position of the Persons covered thereby
as at the dates thereof and the results of their operations and cash flows for
the periods then ended.
(a) Financial Statements. The following Financial Statements
attached hereto as Disclosure Schedule (3.4(a)) have been delivered on the date
hereof:
(i) The audited consolidated and consolidating balance sheets
at December 31, 1999 and December 31, 2000 and the related statements of income
and cash flows of BPI and its Subsidiaries for the Fiscal Years then ended,
certified by Ernst & Young LLP.
(ii) The unaudited balance sheet(s) at September 30, 2001 and
the related statement(s) of income and cash flows of Borrowers for the three
Fiscal Quarters then ended.
(b) Pro Forma. The Pro Forma delivered on the date hereof and
attached hereto as Disclosure Schedule (3.4(b)) was prepared by Borrowers giving
pro forma effect to the Related Transactions, was based on the unaudited
consolidated and consolidating balance sheets of Borrowers and their
Subsidiaries dated September 30, 2001, and was prepared in accordance with GAAP,
with only such adjustments thereto as would be required in accordance with GAAP
and necessary to reflect the pro forma effect of the Related Transactions.
(c) Projections. The Projections delivered on the date hereof
and attached hereto as Disclosure Schedule (3.4(c)) have been prepared by
Borrowers in light of the past operations of their businesses, and reflect
projections for the one year period beginning on January 1, 2002 on a
month-by-month basis. The Projections are based upon estimates and assumptions
stated therein, all of which Borrowers believe to be reasonable and fair in
light of current conditions and current facts known to Borrowers and, as of the
Closing Date, reflect Borrowers' good faith and reasonable estimates of the
future financial performance of Borrowers and of the other information projected
therein for the period set forth therein.
3.5 Material Adverse Effect. Between December 31, 2000 and the
Closing Date: (a) no Loan Party has incurred any obligations, contingent or
noncontingent liabilities, liabilities for Charges, long-term leases or unusual
forward or long-term commitments that are not reflected in the Pro Forma and
that, alone or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, (b) no contract, lease or other agreement or instrument has been
entered into by any Loan Party or has become binding upon any Loan Party's
assets and no law or regulation applicable to any Loan Party has been adopted
that has had or could reasonably be expected to have a Material Adverse Effect,
and (c) no Loan Party is in default and to the best
of Borrowers' knowledge no third party is in default under any material
contract, lease or other agreement or instrument, that alone or in the aggregate
could reasonably be expected to have a Material Adverse Effect. Between December
31, 2000 and the Closing Date no event has occurred, that alone or together with
other events, could reasonably be expected to have a Material Adverse Effect.
3.6 Ownership of Property; Liens. As of the Closing Date, the
real estate ("Real Estate") listed in Disclosure Schedule (3.6) constitutes all
of the real property owned, leased, subleased, or used by any Loan Party. Each
Borrower owns good and marketable fee simple title to all of its owned Real
Estate, and valid and marketable leasehold interests in all of its leased Real
Estate, all as described on Disclosure Schedule (3.6), and copies of all such
leases or a summary of terms thereof reasonably satisfactory to Agent have been
delivered to Agent. Disclosure Schedule (3.6) further describes any Real Estate
with respect to which any Loan Party is a lessor, sublessor or assignor as of
the Closing Date. Each Borrower also has good and marketable title to, or valid
leasehold interests in, all of its personal property and assets. As of the
Closing Date, none of the properties and assets of any Borrower are subject to
any Liens other than Permitted Encumbrances, and there are no facts,
circumstances or conditions known to any Credit Party that may result in any
Liens (including Liens arising under Environmental Laws) other than Permitted
Encumbrances. Each Borrower has received all deeds, assignments, waivers,
consents, nondisturbance and attornment or similar agreements, bills of sale and
other documents, and has duly effected all recordings, filings and other actions
necessary to establish, protect and perfect such Borrower's right, title and
interest in and to all such Real Estate and other properties and assets.
Disclosure Schedule (3.6) also describes any purchase options, rights of first
refusal or other similar contractual rights pertaining to any Real Estate. As of
the Closing Date, no portion of any Borrower's Real Estate has suffered any
material damage by fire or other casualty loss that has not heretofore been
repaired and restored in all material respects to its original condition or
otherwise remedied. As of the Closing Date, all material permits required to
have been issued or appropriate to enable the Real Estate to be lawfully
occupied and used for all of the purposes for which it is currently occupied and
used have been lawfully issued and are in full force and effect.
3.7 Labor Matters. As of the Closing Date (a) no strikes or
other material labor disputes against any Loan Party are pending or, to any Loan
Party's knowledge, threatened; (b) hours worked by and payment made to employees
of each Loan Party comply with the Fair Labor Standards Act and each other
federal, state, local or foreign law applicable to such matters; (c) all
payments due from any Loan Party for employee health and welfare insurance have
been paid or accrued as a liability on the books of such Loan Party; (d) except
as set forth in Disclosure Schedule (3.7), no Loan Party is a party to or bound
by any collective bargaining agreement, management agreement, consulting
agreement, employment agreement, bonus, restricted stock, stock option, or stock
appreciation plan or agreement or any similar plan, agreement or arrangement
(and true and complete copies of any agreements described on Disclosure Schedule
(3.7) have been delivered to Agent); (e) there is no organizing activity
involving any Borrower pending or, to any Loan Party's knowledge, threatened by
any labor union or group of employees; (f) there are no representation
proceedings pending or, to any Loan Party's knowledge, threatened with the
National Labor Relations Board, and no labor
organization or group of employees of any Loan Party has made a pending demand
for recognition; and (g) except as set forth in Disclosure Schedule (3.7), there
are no material complaints or charges against any Loan Party pending or, to the
knowledge of any Loan Party, threatened to be filed with any Governmental
Authority or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by any Loan
Party of any individual.
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock
and Indebtedness. Except as set forth in Disclosure Schedule (3.8), as of the
Closing Date, no Loan Party has any Subsidiaries, is engaged in any joint
venture or partnership with any other Person, or is an Affiliate of any other
Person. All of the issued and outstanding Stock of each Loan Party is owned by
each of the Stockholders and in the amounts set forth in Disclosure Schedule
(3.8). Except as set forth in Disclosure Schedule (3.8), there are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Loan Party may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any Stock or
other equity securities of its Subsidiaries. All outstanding Indebtedness and
Guaranteed Indebtedness of each Loan Party as of the Closing Date (except for
the Obligations) is described in Section 6.3 (including Disclosure Schedule
(6.3)). Neither Brightpoint Holdings nor Wireless Holdings has any assets
(except Stock of their Subsidiaries) or any Indebtedness or Guaranteed
Indebtedness (except the Obligations).
3.9 Government Regulation. No Loan Party is an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940. No Loan Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, or any other federal
or state statute that restricts or limits its ability to incur Indebtedness or
to perform its obligations hereunder. The making of the Loans by Lenders to
Borrowers, the incurrence of the Letter of Credit Obligations on behalf of
Borrowers, the application of the proceeds thereof and repayment thereof and the
consummation of the Related Transactions will not violate any provision of any
such statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
3.10 Margin Regulations. No Loan Party is engaged, nor will it
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" as such terms are defined in Regulation U of the Federal Reserve Board as
now and from time to time hereafter in effect (such securities being referred to
herein as "Margin Stock"). No Loan Party owns any Margin Stock, and none of the
proceeds of the Loans or other extensions of credit under this Agreement will be
used, directly or indirectly, for the purpose of purchasing or carrying any
Margin Stock, for the purpose of reducing or retiring any Indebtedness that was
originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any of the Loans or other extensions of credit under
this Agreement to be considered a "purpose credit" within the meaning of
Regulations T, U or X of the Federal Reserve Board. No Loan Party will take or
permit to be taken any action that might cause any Loan Document to violate any
regulation of the Federal Reserve Board.
3.11 Taxes. All tax returns, reports and statements, including
information returns, required by any Governmental Authority to be filed by any
Loan Party have been filed with the appropriate Governmental Authority and all
Charges have been paid prior to the date on which any fine, penalty, interest or
late charge may be added thereto for nonpayment thereof (or any such fine,
penalty, interest, late charge or loss has been paid), excluding Charges or
other amounts being contested in accordance with Section 5.2(b). Proper and
accurate amounts have been withheld by each Loan Party from its respective
employees for all periods in full and complete compliance with all applicable
federal, state, local and foreign laws and such withholdings have been timely
paid to the respective Governmental Authorities. Disclosure Schedule (3.11) sets
forth as of the Closing Date those taxable years for which any Loan Party's tax
returns are currently being audited by the IRS or any other applicable
Governmental Authority, and any assessments or threatened assessments in
connection with such audit, or otherwise currently outstanding. Except as
described in Disclosure Schedule (3.11), no Loan Party has executed or filed
with the IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any Charges. None of the Loan Parties and their respective
predecessors are liable for any Charges: (a) under any agreement (including any
tax sharing agreements) or (b) to each Loan Party's knowledge, as a transferee.
As of the Closing Date, no Loan Party has agreed or been requested to make any
adjustment under IRC Section 481(a), by reason of a change in accounting method
or otherwise, which would have a Material Adverse Effect.
3.12 ERISA.
(a) Disclosure Schedule (3.12) lists (i) all ERISA Affiliates
and (ii) all Plans and separately identifies all Pension Plans, including Title
IV Plans, Multiemployer Plans, ESOPs and Welfare Plans, including all Retiree
Welfare Plans. Copies of all such listed Plans, together with a copy of the
latest IRS/DOL 5500-series form for each such Plan, have been delivered to
Agent. Except with respect to Multiemployer Plans, each Qualified Plan has been
determined by the IRS to qualify under Section 401 of the IRC, the trusts
created thereunder have been determined to be exempt from tax under the
provisions of Section 501 of the IRC, and nothing has occurred that would cause
the loss of such qualification or tax-exempt status. Each Plan is in compliance
in all material respects with the applicable provisions of ERISA and the IRC,
including the timely filing of all reports required under the IRC or ERISA,
including the statement required by 29 CFR Section 2520.104-23. Neither any Loan
Party nor ERISA Affiliate has failed to make any contribution or pay any amount
due as required by either Section 412 of the IRC or Section 302 of ERISA or the
terms of any such Plan. Except as set forth in Disclosure Schedule (3.12),
neither any Loan Party nor ERISA Affiliate has engaged in a "prohibited
transaction," as defined in Section 406 of ERISA and Section 4975 of the IRC, in
connection with any Plan, that would subject any Loan Party to a material tax on
prohibited transactions imposed by Section 502(i) of ERISA or Section 4975 of
the IRC.
(b) Except as set forth in Disclosure Schedule (3.12): (i) no
Title IV Plan has any Unfunded Pension Liability; (ii) no ERISA Event or event
described in Section 4062(e) of ERISA with respect to any Title IV Plan has
occurred or is reasonably expected to occur; (iii) there are no pending, or to
the knowledge of any Loan Party, threatened claims (other than claims
for benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary or sponsor of any Plan;
(iv) no Loan Party or ERISA Affiliate has incurred or reasonably expects to
incur any liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; (v) within the last five years no Title IV Plan of any Loan
Party or ERISA Affiliate has been terminated, whether or not in a "standard
termination" as that term is used in Section 4041(b)(1) of ERISA, nor has any
Title IV Plan of any Loan Party or any ERISA Affiliate (determined at any time
within the last five years) with Unfunded Pension Liabilities been transferred
outside of the "controlled group" (within the meaning of Section 4001(a)(14) of
ERISA) of any Loan Party or ERISA Affiliate (determined at such time); (vi)
except in the case of any ESOP, Stock of all Loan Parties and their ERISA
Affiliates makes up, in the aggregate, no more than 10% of fair market value of
the assets of any Plan measured on the basis of fair market value as of the
latest valuation date of any Plan; and (vii) no liability under any Title IV
Plan has been satisfied with the purchase of a contract from an insurance
company that is not rated AAA by the Standard & Poor's Corporation or an
equivalent rating by another nationally recognized rating agency.
3.13 No Litigation. No action, claim, lawsuit, demand,
investigation or proceeding is now pending or, to the knowledge of any Loan
Party, threatened against any Loan Party, before any Governmental Authority or
before any arbitrator or panel of arbitrators (collectively, "Litigation"), (a)
that challenges any Loan Party's right or power to enter into or perform any of
its obligations under the Loan Documents to which it is a party, or the validity
or enforceability of any Loan Document or any action taken thereunder, or (b)
that has a reasonable risk of being determined adversely to any Loan Party and
that , if so determined, could be reasonably be expected to have a Material
Adverse Effect. Except as set forth on Disclosure Schedule (3.13), as of the
Closing Date there is no Litigation pending or, to any Loan Party's knowledge,
threatened, that seeks damages in excess of $250,000 or injunctive relief
against, or alleges criminal misconduct of, any Loan Party.
3.14 Brokers. No broker or finder brought about the obtaining,
making or closing of the Loans or the Related Transactions, and no Loan Party or
Affiliate thereof has any obligation to any Person in respect of any finder's or
brokerage fees in connection therewith.
3.15 Intellectual Property. As of the Closing Date, each Loan
Party owns or has rights to use all Intellectual Property necessary to continue
to conduct its business as now or heretofore conducted by it or proposed to be
conducted by it, and each Patent, Trademark, Copyright and License is listed,
together with application or registration numbers, as applicable, in Disclosure
Schedule (3.15). Each Loan Party conducts its business and affairs without
infringement of or interference with any Intellectual Property of any other
Person in any material respect. Except as set forth in Disclosure Schedule
(3.15), no Loan Party is aware of any infringement claim by any other Person
with respect to any Intellectual Property.
3.16 Full Disclosure. No information contained in this
Agreement, any of the other Loan Documents, any Projections, Financial
Statements or Collateral Reports or other written reports from time to time
delivered hereunder or any written statement furnished by or on behalf of any
Credit Party to Agent or any Lender pursuant to the terms of this Agreement
contains or will contain any untrue statement of a material fact or omits or
will omit to state a
material fact necessary to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made. The Liens
granted to Agent, on behalf of itself and Lenders, pursuant to the Collateral
Documents will at all times be fully perfected first priority Liens in and to
the Collateral described therein, subject, as to priority, only to Permitted
Encumbrances.
3.17 Environmental Matters
(a) Except as set forth in Disclosure Schedule (3.17), as of
the Closing Date: (i) to the knowledge of any Credit Party, the Real Estate is
free of contamination from any Hazardous Material except for such contamination
that would not adversely impact the value or marketability of such Real Estate
and that would not result in Environmental Liabilities that could reasonably be
expected to exceed $100,000; (ii) no Loan Party has caused or suffered to occur
any Release of Hazardous Materials on, at, in, under, above, to, from or about
any of its Real Estate; (iii) the Loan Parties are and have been in compliance
with all Environmental Laws, except for such noncompliance that would not result
in Environmental Liabilities which could reasonably be expected to exceed
$100,000; (iv) the Loan Parties have obtained, and are in compliance with, all
Environmental Permits required by Environmental Laws for the operations of their
respective businesses as presently conducted or as proposed to be conducted,
except where the failure to so obtain or comply with such Environmental Permits
would not result in Environmental Liabilities that could reasonably be expected
to exceed $100,000, and all such Environmental Permits are valid, uncontested
and in good standing; (v) no Loan Party is involved in operations or knows of
any facts, circumstances or conditions, including any Releases of Hazardous
Materials, that are likely to result in any Environmental Liabilities of such
Loan Party which could reasonably be expected to exceed $100,000, and no Loan
Party has permitted any current or former tenant or occupant of the Real Estate
to engage in any such operations; (vi) there is no Litigation arising under or
related to any Environmental Laws, Environmental Permits or Hazardous Material
that seeks damages, penalties, fines, costs or expenses in excess of $25,000 or
injunctive relief against, or that alleges criminal misconduct by, any Loan
Party; (vii) no notice has been received by any Loan Party identifying it as a
"potentially responsible party" or requesting information under CERCLA or
analogous state statutes, and to the knowledge of the Loan Parties, there are no
facts, circumstances or conditions that may result in any Loan Party being
identified as a "potentially responsible party" under CERCLA or analogous state
statutes; and (viii) the Loan Parties have provided to Agent copies of all
existing environmental reports, reviews and audits and all written information
pertaining to actual or potential Environmental Liabilities, in each case
relating to any Loan Party.
(b) Each Loan Party hereby acknowledges and agrees that Agent
(i) is not now, and has not ever been, in control of any of the Real Estate or
any Loan Party's affairs, and (ii) does not have the capacity through the
provisions of the Loan Documents or otherwise to influence any Loan Party's
conduct with respect to the ownership, operation or management of any of its
Real Estate or compliance with Environmental Laws or Environmental Permits.
3.18 Insurance. Disclosure Schedule (3.18) lists all insurance
policies of any nature maintained, as of the Closing Date, for current
occurrences by each Loan Party, as well as a summary of the terms of each such
policy.
3.19 Deposit and Disbursement Accounts. Disclosure Schedule
(3.19) lists all banks and other financial institutions at which any Loan Party
maintains deposit or other accounts as of the Closing Date, including any
Disbursement Accounts, and such Schedule correctly identifies the name, address
and telephone number of each depository, the name in which the account is held,
a description of the purpose of the account, and the complete account number
therefor.
3.20 Government Contracts. Except as set forth in Disclosure
Schedule (3.20), as of the Closing Date, no Loan Party is a party to any
contract or agreement with any Governmental Authority and no Loan Party's
Accounts are subject to the Federal Assignment of Claims Act (31 U.S.C. Section
3727) or any similar state or local law.
3.21 Customer and Trade Relations. As of the Closing Date,
there exists no actual or, to the knowledge of any Loan Party, threatened
termination or cancellation of, or any material adverse modification or change
in: the business relationship of any Loan Party with any customer or group of
customers whose purchases during the preceding 12 months caused them to be
ranked among the ten largest customers of such Loan Party; or the business
relationship of any Loan Party with any supplier material to its operations.
3.22 Agreements and Other Documents. As of the Closing Date,
each Loan Party has provided to Agent or its counsel, on behalf of Lenders,
accurate and complete copies (or summaries) of all of the following agreements
or documents to which it is subject and each of which is listed in Disclosure
Schedule (3.22): supply agreements and purchase agreements not terminable by
such Loan Party within 60 days following written notice issued by such Loan
Party and involving transactions in excess of $5,000,000 per annum (excepting
only contracts pursuant to which handsets and/or accessories are purchased in
the ordinary course of business by customers from any Credit Party or its
Affiliates); leases of Equipment having a remaining term of one year or longer
and requiring aggregate rental and other payments in excess of $500,000 per
annum; licenses and permits held by such Loan Party, the absence of which could
be reasonably likely to have a Material Adverse Effect; instruments and
documents evidencing any Indebtedness or Guaranteed Indebtedness of such Loan
Party and any Lien granted by such Loan Party with respect thereto; and
instruments and agreements evidencing the issuance of any equity securities,
warrants, rights or options to purchase equity securities of such Loan Party.
3.23 Solvency. Both before and after giving effect to (a) the
Loans and Letter of Credit Obligations to be made or incurred on the Closing
Date or such other date as Loans and Letter of Credit Obligations requested
hereunder are made or incurred, (b) the disbursement of the proceeds of such
Loans pursuant to the instructions of Borrower Representative; (c) the
Refinancing and the consummation of the other Related Transactions; and (d) the
payment and accrual of all transaction costs in connection with the foregoing,
each Loan Party is and will be Solvent.
3.24 Status of Holding Companies. Prior to the Closing Date,
none of the Holding Companies (other than BPI) will have engaged in any business
or incurred any Indebtedness or any other liabilities (except in connection with
their corporate formation).
3.25 Certain Agreements. Borrower Representative has delivered
to Agent true and complete copies, certified as such by an appropriate officer
of Borrower Representative of (a) each of the XXXXX and (b) each of the Major
Agreements.
4. FINANCIAL STATEMENTS AND INFORMATION
4.1 Reports and Notices.
(a) Each Borrower hereby agrees that from and after the
Closing Date and until the Termination Date, it shall deliver to Agent or to
Agent and Lenders, as required, the Financial Statements, notices, Projections
and other information at the times, to the Persons and in the manner set forth
in Annex E.
(b) Each Borrower hereby agrees that, from and after the
Closing Date and until the Termination Date, it shall deliver to Agent or to
Agent and Lenders, as required, the various Collateral Reports (including
Borrowing Base Certificates in the form of Exhibit 4.1(b)) at the times, to the
Persons and in the manner set forth in Annex F.
4.2 Communication with Accountants. Each Loan Party executing
this Agreement authorizes Agent, so long as a Default or an Event of Default has
occurred and is continuing, to communicate directly with its independent
certified public accountants, including Ernst & Young LLP, and authorizes and,
at Agent's request, shall instruct those accountants and advisors to disclose
and make available to Agent any and all Financial Statements and other
supporting financial documents, schedules and information relating to any Loan
Party (including copies of any issued management letters) with respect to the
business, financial condition and other affairs of any Loan Party.
5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Credit Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
and until the Termination Date:
5.1 Maintenance of Existence and Conduct of Business. Each
Loan Party shall: do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and its rights and
franchises; continue to conduct its business substantially as now conducted or
as otherwise permitted hereunder; at all times maintain, preserve and protect
all of its assets and properties used or useful in the conduct of its business,
and keep the same in good repair, working order and condition in all material
respects (taking into consideration ordinary wear and tear) and from time to
time make, or cause to be made, all necessary or appropriate repairs,
replacements and improvements thereto consistent with industry practices; and
transact business only in such corporate and trade names as are set forth in
Disclosure Schedule (5.1).
5.2 Payment of Charges.
(a) Subject to Section 5.2(b), each Loan Party shall pay and
discharge or cause to be paid and discharged promptly all Charges payable by it,
including (i) Charges imposed upon it, its income and profits, or any of its
property (real, personal or mixed) and all Charges with respect to tax, social
security and unemployment withholding with respect to its employees, (ii) lawful
claims for labor, materials, supplies and services or otherwise, and (iii) all
storage or rental charges payable to warehousemen or bailees, in each case,
before any thereof shall become past due.
(b) Each Loan Party may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges, Taxes or claims described in
Section 5.2(a); provided, that (i) adequate reserves with respect to such
contest are maintained on the books of such Loan Party, in accordance with GAAP;
(ii) no Lien shall be imposed to secure payment of such Charges (other than
payments to warehousemen and/or bailees) that is superior to any of the Liens
securing the Obligations and such contest is maintained and prosecuted
continuously and with diligence and operates to suspend collection or
enforcement of such Charges; (iii) none of the Collateral becomes subject to
forfeiture or loss as a result of such contest; (iv) such Loan Party shall
promptly pay or discharge such contested Charges, Taxes or claims and all
additional charges, interest, penalties and expenses, if any, and shall deliver
to Agent evidence reasonably acceptable to Agent of such compliance, payment or
discharge, if such contest is terminated or discontinued adversely to such
Credit Party or the conditions set forth in this Section 5.2(b) are no longer
met; and (v) Agent has not advised Borrowers in writing that Agent reasonably
believes that nonpayment or nondischarge thereof could have or result in a
Material Adverse Effect.
5.3 Books and Records. Each Loan Party shall keep adequate
books and records with respect to its business activities in which proper
entries, reflecting all financial transactions, are made in accordance with GAAP
and on a basis consistent with the Financial Statements attached as Disclosure
Schedule (3.4(a)).
5.4 Insurance; Damage to or Destruction of Collateral.
(a) The Loan Parties shall, at their sole cost and expense,
maintain the policies of insurance described on Disclosure Schedule (3.18) as in
effect on the date hereof or otherwise in form and amounts and with insurers
reasonably acceptable to Agent. Such policies of insurance (or the loss payable
and additional insured endorsements delivered to Agent) shall contain provisions
pursuant to which the insurer agrees to provide 30 days prior written notice to
Agent in the event of any non-renewal, cancellation or amendment of any such
insurance policy. If any Loan Party at any time or times hereafter shall fail to
obtain or maintain any of the policies of insurance required above, or to pay
all premiums relating thereto, Agent may at any time or times thereafter obtain
and maintain such policies of insurance and pay such premiums and take any other
action with respect thereto that Agent deems advisable. Agent shall have no
obligation to obtain insurance for any Loan Party or pay any premiums therefor.
By doing so, Agent shall not be deemed to have waived any Default or Event of
Default arising from any Loan Party's failure to maintain such insurance or pay
any premiums therefor. All sums so disbursed,
including reasonable attorneys' fees, court costs and other charges related
thereto, shall be payable on demand by Borrowers to Agent and shall be
additional Obligations hereunder secured by the Collateral.
(b) Agent reserves the right at any time upon any change in
any Loan Party's risk profile (including any change in the product mix
maintained by any Loan Party or any laws affecting the potential liability of
such Loan Party) to require additional forms and limits of insurance to, in
Agent's opinion, adequately protect both Agent's and Lender's interests in all
or any portion of the Collateral and to ensure that each Loan Party is protected
by insurance in amounts and with coverage customary for its industry. If
reasonably requested by Agent, each Loan Party shall deliver to Agent from time
to time a report of a reputable insurance broker, reasonably satisfactory to
Agent, with respect to its insurance policies.
(c) Each Borrower shall deliver to Agent, in form and
substance reasonably satisfactory to Agent, endorsements to (i) all "All Risk"
and business interruption insurance naming Agent, on behalf of itself and
Lenders, as loss payee, and (ii) all general liability and other liability
policies naming Agent, on behalf of itself and Lenders, as additional insured.
Each Borrower irrevocably makes, constitutes and appoints Agent (and all
officers, employees or agents designated by Agent), so long as any Default or
Event of Default has occurred and is continuing or the anticipated insurance
proceeds exceed $250,000, as such Borrower's true and lawful agent and
attorney-in-fact for the purpose of making, settling and adjusting claims under
such "All Risk" policies of insurance, endorsing the name of such Borrower on
any check or other item of payment for the proceeds of such "All Risk" policies
of insurance and for making all determinations and decisions with respect to
such "All Risk" policies of insurance. Agent shall have no duty to exercise any
rights or powers granted to it pursuant to the foregoing power-of-attorney.
Borrower Representative shall promptly notify Agent of any loss, damage, or
destruction to the Collateral in the amount of $250,000 or more, whether or not
covered by insurance. After deducting from such proceeds the expenses, if any,
incurred by Agent in the collection or handling thereof, Agent may, at its
option, apply such proceeds to the reduction of the Obligations in accordance
with Section 1.3(c); or permit or require the applicable Borrower to use such
money, or any part thereof, to replace, repair, restore or rebuild the
Collateral in a diligent and expeditious manner with materials and workmanship
of substantially the same quality as existed before the loss, damage or
destruction. Notwithstanding the foregoing, if the casualty giving rise to such
insurance proceeds could not reasonably be expected to have a Material Adverse
Effect and such insurance proceeds do not exceed $250,000 in the aggregate,
Agent shall permit the applicable Borrower to replace, restore, repair or
rebuild the property; provided that if such Borrower shall not have completed or
entered into binding agreements to complete such replacement, restoration,
repair or rebuilding within 120 days of such casualty, Agent may apply such
insurance proceeds to the Obligations in accordance with Section 1.3(c). All
insurance proceeds that are to be made available to any Borrower to replace,
repair, restore or rebuild the Collateral shall be applied by Agent to reduce
the outstanding principal balance of the Revolving Loan of such Borrower (which
application shall not result in a permanent reduction of the Revolving Loan
Commitment) and upon such application, Agent shall establish a Reserve against
the separate Borrowing Base of the affected Borrower in an amount equal to the
amount of such proceeds so applied. Thereafter, such funds shall be made
available to that Borrower to
provide funds to replace, repair, restore or rebuild the Collateral as follows:
(i) Borrower Representative shall request a Revolving Credit Advance be made to
such Borrower in the amount requested to be released; (ii) so long as the
conditions set forth in Section 2.2 have been met, Lenders shall make such
Revolving Credit Advance the Reserve established with respect to such insurance
proceeds shall be reduced by the amount of such Revolving Credit Advance. To the
extent not used to replace, repair, restore or rebuild the Collateral, such
insurance proceeds shall be applied in accordance with Section 1.3(c).
5.5 Compliance with Laws. Each Loan Party shall comply with
all federal, state, local and foreign laws and regulations applicable to it,
including those relating to FCC, ERISA and labor matters and Environmental Laws
and Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.6 Supplemental Disclosure. From time to time as may be
reasonably requested by Agent (which request will not be made more frequently
than once each year absent the occurrence and continuance of a Default or an
Event of Default), the Credit Parties shall supplement each Disclosure Schedule
hereto, or any representation herein or in any other Loan Document, with respect
to any matter hereafter arising that, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described in such
Disclosure Schedule or as an exception to such representation or that is
necessary to correct any information in such Disclosure Schedule or
representation which has been rendered inaccurate thereby (and, in the case of
any supplements to any Disclosure Schedule, such Disclosure Schedule shall be
appropriately marked to show the changes made therein); provided that (a) no
such supplement to any such Disclosure Schedule or representation shall amend,
supplement or otherwise modify any Disclosure Schedule or representation, or be
or be deemed a waiver of any Default or Event of Default resulting from the
matters disclosed therein, except as consented to by Agent and Requisite Lenders
in writing, and (b) no supplement shall be required or permitted as to
representations and warranties that relate solely to the Closing Date.
5.7 Intellectual Property. Each Loan Party will conduct its
business and affairs without infringement of or interference with any
Intellectual Property of any other Person in any material respect.
5.8 Environmental Matters. Each Loan Party shall and shall
cause each Person within its control to: (a) conduct its operations and keep and
maintain its Real Estate in compliance with all Environmental Laws and
Environmental Permits other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions that are appropriate or
necessary to maintain the value and marketability of the Real Estate or to
otherwise comply with Environmental Laws and Environmental Permits pertaining to
the presence, generation, treatment, storage, use, disposal, transportation or
Release of any Hazardous Material on, at, in, under, above, to, from or about
any of its Real Estate; (c) notify Agent promptly after such Loan Party becomes
aware of any violation of Environmental Laws or Environmental Permits or any
Release on, at, in, under, above, to, from or about any Real Estate that is
reasonably likely to result in Environmental Liabilities in excess of $100,000;
and (d) promptly forward to Agent a
copy of any order, notice, request for information or any communication or
report received by such Loan Party in connection with any such violation or
Release or any other matter relating to any Environmental Laws or Environmental
Permits that could reasonably be expected to result in Environmental Liabilities
in excess of $100,000, in each case whether or not the Environmental Protection
Agency or any Governmental Authority has taken or threatened any action in
connection with any such violation, Release or other matter. If Agent at any
time has a reasonable basis to believe that there may be a violation of any
Environmental Laws or Environmental Permits by any Credit Party or any
Environmental Liability arising thereunder, or a Release of Hazardous Materials
on, at, in, under, above, to, from or about any of its Real Estate, that, in
each case, could reasonably be expected to have a Material Adverse Effect, then
each Credit Party shall, upon Agent's written request (i) cause the performance
of such environmental audits including subsurface sampling of soil and
groundwater, and preparation of such environmental reports, at Borrowers'
expense, as Agent may from time to time reasonably request, which shall be
conducted by reputable environmental consulting firms reasonably acceptable to
Agent and shall be in form and substance reasonably acceptable to Agent, and
(ii) permit Agent or its representatives to have access to all Real Estate for
the purpose of conducting such environmental audits and testing as Agent deems
appropriate, including subsurface sampling of soil and groundwater. Borrowers
shall reimburse Agent for the costs of such audits and tests and the same will
constitute a part of the Obligations secured hereunder.
5.9 Landlords' Agreements, Mortgagee Agreements, Bailee
Letters and Real Estate Purchases. Each Loan Party shall obtain a landlord's
agreement, mortgagee agreement or bailee letter, as applicable, from the lessor
of each leased property, mortgagee of owned property or bailee with respect to
any warehouse, processor or converter facility or other location where
Collateral is stored or located, which agreement or letter shall contain a
waiver or subordination of all Liens or claims that the landlord, mortgagee or
bailee may assert against the Collateral at that location, and shall otherwise
be reasonably satisfactory in form and substance to Agent. With respect to such
locations or warehouse space leased or owned as of the Closing Date and
thereafter, if Agent has not received a landlord or mortgagee agreement or
bailee letter as of the Closing Date (or, if later, as of the date such location
is acquired or leased), any Borrower's Eligible Inventory at that location
shall, in Agent's discretion, be excluded from the Borrowing Base or be subject
to such Reserves as may be established by Agent in its reasonable credit
judgment. After the Closing Date, no real property or warehouse space shall be
leased by any Loan Party and no Inventory shall be shipped to a processor or
converter under arrangements established after the Closing Date without the
prior written consent of Agent (which consent, in Agent's discretion, may be
conditioned upon the exclusion from the Borrowing Base of Eligible Inventory at
that location or the establishment of Reserves acceptable to Agent) or, unless
and until a reasonably satisfactory landlord agreement or bailee letter, as
appropriate, shall first have been obtained with respect to such location. Each
Loan Party shall timely and fully pay and perform its obligations under all
leases and other agreements with respect to each leased location or public
warehouse where any Collateral is or may be located. To the extent otherwise
permitted hereunder, if any Loan Party proposes to acquire a fee ownership
interest in Real Estate after the Closing Date, it shall first provide to Agent
a mortgage or deed of trust granting Agent a first priority Lien on such Real
Estate, together with environmental audits, mortgage title insurance commitment,
real property survey, local counsel opinion(s), and, if required by Agent,
supplemental casualty insurance and flood insurance, and such other documents,
instruments or agreements reasonably requested by Agent, in each case, in form
and substance reasonably satisfactory to Agent.
5.10 Further Assurances. Each Credit Party executing this
Agreement agrees that it shall and shall cause each other Credit Party to, at
such Credit Party's expense and upon request of Agent, duly execute and deliver,
or cause to be duly executed and delivered, to Agent such further instruments
and do and cause to be done such further acts as may be necessary or proper in
the reasonable opinion of Agent to carry out more effectively the provisions and
purposes of this Agreement or any other Loan Document.
5.11 Mortgages. As soon as practicable, but in any event no
later than 60 days after the Closing Date, Borrowers shall execute and deliver
to Agent Mortgages in form and substance satisfactory to Agent covering the Real
Estate located in Indianapolis, Indiana and Reno, Nevada (the "Mortgaged
Properties") together with: (a) title insurance policies, reasonably
satisfactory in form and substance to Agent, in its sole discretion; (b)
evidence that counterparts of the Mortgages have been recorded in all places to
the extent necessary or desirable, in the judgment of Agent, to create a valid
and enforceable first priority lien (subject to Permitted Encumbrances) on each
Mortgaged Property in favor of Agent for the benefit of itself and Lenders (or
in favor of such other trustee as may be required or desired under local law);
and (c) an opinion of counsel in each state in which any Mortgaged Property is
located in form and substance and from counsel reasonably satisfactory to Agent.
5.12 Major Agreements. No later than 60 days prior to the
expiration of any Major Agreement, Borrower Representative shall notify Agent in
writing as to the likelihood the other Persons party to such Major Agreement
will agree to renew such Major Agreement. No later than 30 days prior to the
expiration of any Major Agreement, Borrower Representative shall provide a
written report to the Agent on the status of renewal negotiations and any
expected changes to the Major Agreement.
6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
until the Termination Date:
6.1 Mergers, Subsidiaries, Etc. No Loan Party shall directly
or indirectly, by operation of law or otherwise, (a) form or acquire any
Subsidiary, or (b) merge with, consolidate with, acquire all or substantially
all of the assets or Stock of, or otherwise combine with or acquire, any Person,
except that any Borrower may merge with another Borrower, provided that Borrower
Representative shall be the survivor of any such merger to which it is a party.
6.2 Investments; Loans and Advances. Except as otherwise
expressly permitted by this Section 6, no Loan Party shall make or permit to
exist any investment in, or make, accrue or permit to exist loans or advances of
money to, any Person, through the direct or indirect lending of money, holding
of securities or otherwise, except that: (a) Borrowers may
hold investments comprised of notes payable, or stock or other securities issued
by Account Debtors to any Borrower pursuant to negotiated agreements with
respect to settlement of such Account Debtor's Accounts in the ordinary course
of business, so long as the aggregate amount of such Accounts so settled by
Borrowers does not exceed $500,000; (b) each Loan Party may maintain its
existing investments in its Subsidiaries as of the Closing Date; and (c)
Borrowers may make intercompany loans and advances to BPI to the extent
permitted by Section 6.14(h).
6.3 Indebtedness.
(a) No Loan Party shall create, incur, assume or permit to
exist any Indebtedness, except (without duplication) (i) Indebtedness secured by
purchase money security interests and Capital Leases permitted in Section
6.7(c), (ii) the Loans and the other Obligations, (iii) unfunded pension fund
and other employee benefit plan obligations and liabilities to the extent they
are permitted to remain unfunded under applicable law, (iv) Indebtedness
consisting of intercompany loans and advances made by Brightpoint to Wireless;
provided that, (A) Wireless shall have executed and delivered to Brightpoint, on
the Closing Date, an Intercompany Note to evidence any such intercompany
Indebtedness, which Intercompany Note shall be pledged and delivered to Agent
pursuant to the Brightpoint Pledge Agreement as additional collateral security
for the Obligations; (B) each of Brightpoint and Wireless shall record all
intercompany transactions on its books and records in a manner satisfactory to
Agent; (C) the obligations under any such Intercompany Notes shall be
subordinated to the Obligations in a manner satisfactory to Agent; (D) at the
time any such intercompany loan or advance is made and after giving effect
thereto, each of Brightpoint and Wireless shall be Solvent; (E) no Event of
Default would occur and be continuing after giving effect to any such proposed
intercompany loan or repayment; and (F) the aggregate amount of such
intercompany loans owing by Wireless to Brightpoint shall at no time exceed the
Borrowing Availability of Wireless, (v) existing Indebtedness described in
Disclosure Schedule (6.3) and refinancings thereof or amendments or
modifications thereto that do not have the effect of increasing the principal
amount thereof or changing the amortization thereof (other than to extend the
same) and that are otherwise on terms and conditions no less favorable to any
Loan Party, Agent or any Lender, as determined by Agent, than the terms of the
Indebtedness being refinanced, amended or modified, and (vi) other unsecured
Indebtedness not to exceed $250,000 outstanding at any time in the aggregate for
all Loan Parties.
(b) No Loan Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest
or other amount payable in respect of any Indebtedness, other than (i) the
Obligations; (ii) Indebtedness secured by a Permitted Encumbrance if the asset
securing such Indebtedness has been sold or otherwise disposed of in accordance
with Sections 6.8(b) or (c); (iii) Indebtedness permitted by Section 6.3(a)(v)
upon any refinancing thereof in accordance with Section 6.3(a)(v); and (iv) as
otherwise permitted in Section 6.14.
6.4 Employee Loans and Affiliate Transactions.
(a) No Loan Party shall enter into or be a party to any
transaction with any other Loan Party or any Affiliate thereof except in the
ordinary course of and pursuant to the
reasonable requirements of such Loan Party's business and upon fair and
reasonable terms that are no less favorable to such Loan Party than would be
obtained in a comparable arm's length transaction with a Person not an Affiliate
of such Loan Party. In addition, if any such transaction or series of related
transactions involves payments in excess of $250,000 in the aggregate, the terms
of these transactions must be disclosed in advance to Agent and Lenders. All
such transactions existing as of the date hereof are described in Disclosure
Schedule (6.4(a)).
(b) No Loan Party shall enter into any lending or borrowing
transaction with any employees of any Loan Party, except loans to its respective
employees in the ordinary course of business consistent with past practices for
travel and entertainment expenses, relocation costs and similar purposes up to a
maximum of $100,000 to any employee and up to a maximum of $250,000 in the
aggregate at any one time outstanding.
6.5 Capital Structure and Business. No Loan Party shall (a)
make any changes in any of its business objectives, purposes or operations that
could in any way adversely affect the repayment of the Loans or any of the other
Obligations or could reasonably be expected to have or result in a Material
Adverse Effect, (b) make any change in its capital structure as described in
Disclosure Schedule (3.8), including the issuance or sale of any shares of
Stock, warrants or other securities convertible into Stock or any revision of
the terms of its outstanding Stock; provided that the Holding Companies may
issue or sell shares of their Stock for cash so long as (i) the proceeds thereof
are applied to the Obligations as required by Section 1.3(b)(iii), and (ii) no
Change of Control occurs after giving effect thereto, or (c) amend its charter
or bylaws in a manner that would adversely affect Agent or Lenders or such Loan
Party's duty or ability to repay the Obligations. No Loan Party shall engage in
any business other than the businesses currently engaged in by it.
6.6 Guaranteed Indebtedness. No Loan Party shall create,
incur, assume or permit to exist any Guaranteed Indebtedness except (a) by
endorsement of instruments or items of payment for deposit to the general
account of any Loan Party, and (b) for Guaranteed Indebtedness incurred for the
benefit of any other Loan Party if the primary obligation is expressly permitted
by this Agreement.
6.7 Liens. No Loan Party shall create, incur, assume or permit
to exist any Lien on or with respect to its Accounts or any of its other
properties or assets (whether now owned or hereafter acquired) except for (a)
Permitted Encumbrances; (b) Liens in existence on the date hereof and summarized
on Disclosure Schedule (6.7) securing the Indebtedness described on Disclosure
Schedule (6.3) and permitted refinancings, extensions and renewals thereof,
including extensions or renewals of any such Liens; provided that the principal
amount of the Indebtedness so secured is not increased and the Lien does not
attach to any other property; and (c) Liens created after the date hereof by
conditional sale or other title retention agreements (including Capital Leases)
or in connection with purchase money Indebtedness with respect to Equipment and
Fixtures acquired by any Loan Party in the ordinary course of business,
involving the incurrence of an aggregate amount of purchase money Indebtedness
and Capital Lease Obligations of not more than $3,000,000 outstanding at any one
time for all such Liens (provided that such Liens attach only to the assets
subject to such purchase money debt and such Indebtedness is incurred within 20
days following such purchase and does not exceed 100% of
the purchase price of the subject assets). In addition, no Loan Party shall
become a party to any agreement, note, indenture or instrument, or take any
other action, that would prohibit the creation of a Lien on any of its
properties or other assets in favor of Agent, on behalf of itself and Lenders,
as additional collateral for the Obligations, except operating leases, Capital
Leases or Licenses which prohibit Liens upon the assets that are subject
thereto.
6.8 Sale of Stock and Assets. No Loan Party shall sell,
transfer, convey, assign or otherwise dispose of any of its properties or other
assets, including the Stock of any of its Subsidiaries (whether in a public or a
private offering or otherwise) or any of its Accounts, other than (a) the sale
of Inventory in the ordinary course of business, and (b) the sale, transfer,
conveyance or other disposition by a Credit Party of Equipment and Fixtures that
are obsolete or no longer used or useful in such Credit Party's business and
having a sales price not exceeding $100,000 in any single transaction or
$250,000 in the aggregate in any Fiscal Year; and (c) other Equipment and
Fixtures having a value not exceeding $100,000 in any single transaction or
$250,000 in the aggregate in any Fiscal Year. With respect to any disposition of
assets or other properties permitted pursuant to clauses (b) and (c) above,
subject to Section 1.3(b), Agent agrees on reasonable prior written notice to
release its Lien on such assets or other properties in order to permit the
applicable Loan Party to effect such disposition and shall execute and deliver
to Borrowers, at Borrowers' expense, appropriate UCC-3 termination statements
and other releases as reasonably requested by Borrowers.
6.9 ERISA. No Loan Party shall, or shall cause or permit any
ERISA Affiliate to, cause or permit to occur an event that could result in the
imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of
ERISA or cause or permit to occur an ERISA Event to the extent such ERISA Event
could reasonably be expected to result in a liability of such Loan Party in
excess of $100,000.
6.10 Financial Covenants. Borrowers shall not breach or fail
to comply with any of the Financial Covenants.
6.11 Hazardous Materials. No Loan Party shall cause or permit
a Release of any Hazardous Material on, at, in, under, above, to, from or about
any of the Real Estate where such Release would (a) violate in any respect, or
form the basis for any Environmental Liabilities under, any Environmental Laws
or Environmental Permits or (b) otherwise adversely impact the value or
marketability of any of the Real Estate or any of the Collateral, other than
such violations or Environmental Liabilities that could not reasonably be
expected to have a Material Adverse Effect.
6.12 Sale-Leasebacks. No Loan Party shall engage in any
sale-leaseback, synthetic lease or similar transaction involving any of its
assets.
6.13 Cancellation of Indebtedness. No Loan Party shall cancel
any claim or debt owing to it, except for reasonable consideration negotiated on
an arm's length basis and in the ordinary course of its business consistent with
past practices.
6.14 Restricted Payments. No Loan Party shall make any
Restricted Payment, except (a) intercompany loans and advances between Borrowers
to the extent permitted by Section 6.3, (b) dividends and distributions by
Subsidiaries of any Borrower paid to such Borrower, (c) employee loans permitted
under Section 6.4(b), (d) dividends and distributions by Brightpoint to BPI to
permit BPI (contemporaneously with, and in the same amount of, such dividends)
to repay the XXXXX; provided, that (i) no Default or Event of Default has
occurred and is continuing or would result after giving effect to any Restricted
Payment pursuant to clause (d) above, (ii) until 30 days after the Closing Date,
Borrowers collectively shall have both Borrowing Availability of at least
$30,000,000 after giving effect to any such XXXXX Distribution and thereafter,
either (A) Borrowers collectively shall have both Average 30-Day Borrowing
Availability and Borrowing Availability of at least $20,000,000 after giving
effect to any such XXXXX Distribution; or (B) Borrowers collectively shall have
both Average 30-Day Borrowing Availability and Borrowing Availability of at
least $10,000,000 and the Adjusted Fixed Charge Coverage Ratio of Borrowers for
the 12-month period then ended (or with respect to the Fiscal Quarters ending on
or before June 30, 2002, the period commencing on October 1, 2001, and ending on
the last day of such Fiscal Quarter) shall exceed 1.1:1.0, in each case after
giving to any such XXXXX Distribtion, (iii) two (2) Business Days prior to any
such XXXXX Distribution, Brightpoint shall have delivered to Agent a notice in
the form of Exhibit 6.14(a) hereto (a "XXXXX Distribution Notice") and (iv) the
timing of such XXXXX Distribution shall be set at dates that permit the delivery
of Financial Statements necessary to determine current compliance with the
Financial Covenants prior to each such payment, (e) payments of principal and
interest of Intercompany Notes issued in accordance with Section 6.3 and this
Section 6.14, (f) dividends or distributions to any Holding Company by either
Borrower to pay taxes (contemporaneously with, and in the same amount of, such
distributions or dividends) attributable to its ownership of Stock of such
Borrower, (g) payment by either Borrower to BPI to reimburse BPI for BPI
Allocated Expense; provided, that (i) such payments shall not exceed $1,500,000
(or such higher amount as Agent may agree, in its sole discretion) in the
aggregate for both Borrowers, collectively, in any Fiscal Quarter and (ii) such
payments shall not be paid at any time after the occurrence of a Default or
Event of Default, other than necessary expenses agreed to in writing by Agent;
(h) Borrowers may make intercompany loans and advances to BPI ("BPI Intercompany
Loans"); provided, (i) that no Event of Default would occur and be continuing
after giving effect to any such proposed BPI Intercompany Loan and (ii) either
(A) Borrowers collectively shall have both Average 30-Day Borrowing Availability
and Borrowing Availability of at least $20,000,000 after giving effect to any
such proposed BPI Intercompany Loan; or (B) Borrowers collectively shall have
both Average 30-Day Borrowing Availability and Borrowing Availability of at
least $12,500,000 and the Adjusted Fixed Charge Coverage Ratio of Borrowers for
the 12-month period then ended (or with respect to the Fiscal Quarters ending on
or before June 30, 2002, the period commencing on October 1, 2001, and ending on
the last day of such Fiscal Quarter) shall exceed 1.1:1.0, in each case after
giving effect to any such proposed Intercompany Loan, and (iii) two (2) Business
Days prior to any such BPI Intercompany Loan the applicable Borrower shall have
delivered to Agent a notice in the form of Exhibit 6.14(b) hereto (a "BPI
Intercompany Loan Notice"); and (i) Borrowers may make payments to BPI in
respect of expenses of BPI which are not BPI Allocated Expenses; provided, (i)
the BPI Unallocated Expense Balance shall not increase by more than $1,700,000
any Fiscal Quarter and (ii) such payments shall not be paid at any time after
the occurrence of and during the continuance of a
Default or Event of Default, provided, further that no payment may be made
pursuant to clause (h) or (i) hereof unless (i) BPI shall have executed and
delivered to Brightpoint, on the Closing Date, an Intercompany Note to evidence
any such BPI Intercompany Loans and BPI Unallocated Expenses Balance, which
Intercompany Note shall be pledged and delivered to Agent pursuant to the
Brightpoint Pledge Agreement as additional collateral security for the
Obligations; (ii) each of Brightpoint and BPI shall record all intercompany
transactions on its books and records in a manner satisfactory to Agent; (iii)
the obligations under any such Intercompany Note shall be subordinated to the
Obligations in a manner satisfactory to Agent; (iv) at the time any such BPI
Intercompany Loans are made or the BPI Unallocated Expenses Balance is increased
and after giving effect thereto, each Borrower and BPI shall be Solvent; (v) no
Event of Default would occur and be continuing after giving effect to any such
proposed intercompany transfer; and (vi) the aggregate amount of all BPI
Intercompany Loans and the BPI Unallocated Expense Balance shall at no time
exceed $10,000,000 and (vii) Borrowers collectively shall have both Average
30-Day Borrowing Availability and Borrowing Availability of at least $12,500,000
after giving effect to such payment. If the aggregate outstanding amount of BPI
Intercompany Loans and the BPI Unallocated Expenses Balance exceed $10,000,000
at any time, BPI immediately shall repay the BPI Intercompany Loans or reduce
the BPI Unallocated Expense Balance so that the aggregate outstanding amount of
such intercompany loans and the BPI Unallocated Expense Balance is less than or
equal to $10,000,000.
6.15 Change of Corporate Name or Location; Change of Fiscal
Year. No Loan Party shall (a) change its corporate name or trade name or (b)
change its chief executive office, principal place of business, corporate
offices or warehouses or locations at which Collateral is held or stored, or the
location of its records concerning the Collateral, in each case without at least
30 days prior written notice to Agent and after Agent's written acknowledgment
that any reasonable action requested by Agent in connection therewith, including
to continue the perfection of any Liens in favor of Agent, on behalf of Lenders,
in any Collateral, has been completed or taken, and provided that any such new
location shall be in the continental United States. Without limiting the
foregoing, no Credit Party shall change its name, identity or corporate
structure in any manner that might make any financing or continuation statement
filed in connection herewith seriously misleading within the meaning of Section
9-402(7) of the Code or any other then applicable provision of the Code except
upon prior written notice to Agent and Lenders and after Agent's written
acknowledgment that any reasonable action requested by Agent in connection
therewith, including to continue the perfection of any Liens in favor of Agent,
on behalf of Lenders, in any Collateral, has been completed or taken. No Loan
Party shall change its Fiscal Year.
6.16 No Impairment of Intercompany Transfers. No Loan Party
shall directly or indirectly enter into or become bound by any agreement,
instrument, indenture or other obligation (other than this Agreement and the
other Loan Documents) that could directly or indirectly restrict, prohibit or
require the consent of any Person with respect to the payment of dividends or
distributions or the making or repayment of intercompany loans by a Subsidiary
of any Borrower to any Borrower or between Borrowers.
6.17 No Speculative Transactions. No Loan Party shall engage
in any transaction involving commodity options, futures contracts or similar
transactions, except for Hedging Obligations.
6.18 Leases; Real Estate Purchases. No Loan Party shall enter
into any operating lease for Equipment or Real Estate, if the aggregate of all
operating lease payments payable in any year for Borrowers on a consolidated
basis would exceed $9,000,000. No Borrower shall purchase a fee simple ownership
interest in Real Estate with an aggregate purchase price in excess of $250,000.
6.19 Certain Agreements. No Credit Party shall change or amend
the terms of any of the XXXXX or the Major Agreements without the prior written
consent of Agent. In the case of the Major Agreements, Borrower Representative
shall notify Agent in writing of such proposed change, which notice shall
contain a statement made by Borrower Representative in good faith as to whether
the proposed change is a material change to the applicable Major Agreement. If
Agent has not notified Borrower Representative that it does not consent to such
change (and Borrower Representative has endeavored to contact Agent by telephone
to discuss the change) within five (5) Business Days from Agent's receipt of the
notice referenced above (or, with respect to changes which Borrower
Representative has stated are not material, two (2) Business Days from Agent's
receipt of the notice referenced above), Agent's consent shall be deemed to be
not required.
6.20 Holding Companies. None of the Holding Companies other
than BPI shall engage in any trade or business, or own any assets (other than
Stock of their Subsidiaries) or incur any Indebtedness or Guaranteed
Indebtedness (other than the Obligations).
7. TERM
7.1 Termination. The financing arrangements contemplated
hereby shall be in effect until the Commitment Termination Date, and the Loans
and all other Obligations shall be automatically due and payable in full on such
date.
7.2 Survival of Obligations Upon Termination of Financing
Arrangements. Except as otherwise expressly provided for in the Loan Documents,
no termination or cancellation (regardless of cause or procedure) of any
financing arrangement under this Agreement shall in any way affect or impair the
obligations, duties and liabilities of the Credit Parties or the rights of Agent
and Lenders relating to any unpaid portion of the Loans or any other
Obligations, due or not due, liquidated, contingent or unliquidated, or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is required after the Commitment Termination
Date. Except as otherwise expressly provided herein or in any other Loan
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon the Credit Parties, and all rights of Agent
and each Lender, all as contained in the Loan Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the
provisions of Section 11, the payment obligations under Sections 1.15
and 1.16, and the indemnities contained in the Loan Documents shall survive the
Termination Date.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1 Events of Default. The occurrence of any one or more of
the following events (regardless of the reason therefor) shall constitute an
"Event of Default" hereunder:
(a) Any Borrower (i) fails to make any payment of principal
of, or interest on, or Fees owing in respect of, the Loans or any of the other
Obligations when due and payable, or (ii) fails to pay or reimburse Agent or
Lenders for any expense reimbursable hereunder or under any other Loan Document
within 10 days following Agent's demand for such reimbursement or payment of
expenses.
(b) Any Credit Party fails or neglects to perform, keep or
observe any of the provisions of Sections 1.4, 1.8, 5.4(a) or 6, or any of the
provisions set forth in Annexes C or G, respectively.
(c) Any Borrower fails or neglects to perform, keep or observe
any of the provisions of Section 4 or any provisions set forth in Annexes E or
F, respectively, and the same shall remain unremedied for 3 days or more.
(d) Any Credit Party fails or neglects to perform, keep or
observe any other provision of this Agreement or of any of the other Loan
Documents (other than any provision embodied in or covered by any other clause
of this Section 8.1) and the same shall remain unremedied for 20 days or more
after the earlier of (i) the date of receipt by any Credit Party of notice
thereof from Agent and (ii) the date that any Credit Party had knowledge
thereof.
(e) A default or breach occurs under any other agreement,
document or instrument to which any Credit Party is a party that is not cured
within any applicable grace period therefor, and such default or breach (i)
involves the failure to make any payment when due in respect of any Indebtedness
or Guaranteed Indebtedness (other than the Obligations) of any Credit Party in
excess of $500,000 in the aggregate (including (x) undrawn committed or
available amounts and (y) amounts owing to all creditors under any combined or
syndicated credit arrangements), or (ii) causes, or permits any holder of such
Indebtedness or Guaranteed Indebtedness or a trustee to cause, Indebtedness or
Guaranteed Indebtedness or a portion thereof in excess of $500,000 in the
aggregate to become due prior to its stated maturity or prior to its regularly
scheduled dates of payment, or cash collateral in respect thereof to be
demanded, in each case, regardless of whether such default is waived, or such
right is exercised, by such holder or trustee.
(f) Any information contained in any Borrowing Base
Certificate is untrue or incorrect in any respect in the aggregate in any
Borrowing Base Certificate), or any representation or warranty herein or in any
Loan Document or in any written statement, report, financial statement or
certificate (other than a Borrowing Base Certificate) made or delivered to Agent
or
any Lender by any Credit Party is untrue or incorrect in any material respect
as of the date when made or deemed made.
(g) Assets of any Credit Party with a fair market value of
$250,000 or more are attached, seized, levied upon or subjected to a writ or
distress warrant, or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors of any Credit Party and such
condition continues for 30 days or more.
(h) A case or proceeding is commenced against any Credit Party
seeking a decree or order in respect of such Credit Party (i) under the
Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or
other similar law, (ii) appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for such Credit Party or for any
substantial part of any such Credit Party's assets, or (iii) ordering the
winding-up or liquidation of the affairs of such Credit Party, and such case or
proceeding shall remain undismissed or unstayed for 60 days or more or a decree
or order granting the relief sought in such case or proceeding shall be entered
by a court of competent jurisdiction.
(i) Any Credit Party (i) files a petition seeking relief under
the Bankruptcy Code, or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consents to or fails to contest in a
timely and appropriate manner the institution of proceedings thereunder or the
filing of any such petition or the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Credit Party or for any substantial part of any such Credit
Party's assets, (iii) makes an assignment for the benefit of creditors, (iv)
takes any action in furtherance of any of the foregoing; or (v) admits in
writing its inability to, or is generally unable to, pay its debts as such debts
become due.
(j) A final judgment or judgments for the payment of money in
excess of $250,000 in the aggregate at any time are outstanding against one or
more of the Credit Parties and the same are not, within 30 days after the entry
thereof, discharged or execution thereof stayed or bonded pending appeal, or
such judgments are not discharged prior to the expiration of any such stay.
(k) Any material provision of any Loan Document for any reason
ceases to be valid, binding and enforceable in accordance with its terms (or any
Credit Party shall challenge the enforceability of any Loan Document or shall
assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms),
or any Lien created under any Loan Document ceases to be a valid and perfected
first priority Lien (except as otherwise permitted herein or therein) in any of
the Collateral purported to be covered thereby.
(l) Any Change of Control occurs.
(m) Any event occurs, whether or not insured or insurable, as
a result of which revenue-producing activities cease or are substantially
curtailed at any facility of Borrowers
generating more than 15% of Borrowers' consolidated revenues for the Fiscal Year
preceding such event and such cessation or curtailment continues for more than
30 days.
(n) Any default or breach by any Borrower occurs and is
continuing under any of the XXXXX or the Major Agreements, any of the XXXXX or
the Major Agreements shall be terminated for any reason, or any Major Agreement
is not renewed within 10 days prior to its expiration date.
(o) There is not in effect an issuer rating assigned to BPI by
Standard & Poor's Rating Services of B or better (or, if no rating is available
from Standard & Poor's Rating Services, an issuer rating by Xxxxx'x Investor's
Services, Inc. of B2 or better).
8.2 Remedies.
(a) If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of the Requisite Lenders
shall), without notice, suspend all or any portion of the Revolving Loan
facility with respect to additional Advances and/or the incurrence of additional
Letter of Credit Obligations, whereupon any additional Advances and additional
Letter of Credit Obligations shall be made or incurred in Agent's sole
discretion (or in the sole discretion of the Requisite Lenders, if such
suspension occurred at their direction) so long as such Default or Event of
Default is continuing. If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of Requisite Lenders shall),
without notice except as otherwise expressly provided herein, increase the rate
of interest applicable to the Loans and the Letter of Credit Fees up to the
Default Rate.
(b) If any Event of Default has occurred and is continuing,
Agent may (and at the written request of the Requisite Lenders shall), without
notice: (i) terminate all or any portion of the Revolving Loan facility with
respect to further Advances or the incurrence of further Letter of Credit
Obligations; (ii) declare all or any portion of the Obligations, including all
or any portion of any Loan to be forthwith due and payable, and require that any
or all of the Letter of Credit Obligations be cash collateralized as provided in
Annex B, all without presentment, demand, protest or further notice of any kind,
all of which are expressly waived by Borrowers and each other Credit Party; or
(iii) exercise any rights and remedies provided to Agent under the Loan
Documents or at law or equity, including all remedies provided under the Code;
provided, that upon the occurrence of an Event of Default specified in Sections
8.1(h) or (i), the Revolving Loan facility shall be immediately terminated and
all of the Obligations, including the aggregate Revolving Loan, shall become
immediately due and payable without declaration, notice or demand by any Person.
8.3 Waivers by Credit Parties. Except as otherwise provided
for in this Agreement or by applicable law, each Credit Party waives (including
for purposes of Section 12): (a) presentment, demand and protest and notice of
presentment, dishonor, notice of intent to accelerate, notice of acceleration,
protest, default, nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or all commercial paper, accounts, contract rights,
documents, instruments, chattel paper and guaranties at any time held by Agent
on which any Credit Party may in any way be liable, and hereby ratifies and
confirms whatever Agent may do
in this regard, (b) all rights to notice and a hearing prior to Agent's taking
possession or control of, or to Agent's replevy, attachment or levy upon, the
Collateral or any bond or security that might be required by any court prior to
allowing Agent to exercise any of its remedies, and (c) the benefit of all
valuation, appraisal, marshaling and exemption laws.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 Assignment and Participations.
(a) Subject to the terms of this Section 9.1, any Lender may
make an assignment to a Qualified Assignee of, or sell participations in, at any
time or times, the Loan Documents, Loans, Letter of Credit Obligations and any
Revolving Loan Commitment or any portion thereof or interest therein, including
any Lender's rights, title, interests, remedies, powers or duties thereunder.
Any assignment by a Lender shall: (i) require the consent of Agent (which
consent shall not be unreasonably withheld or delayed with respect to a
Qualified Assignee) and the execution of an assignment agreement (an "Assignment
Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and
otherwise in form and substance reasonably satisfactory to, and acknowledged by,
Agent; (ii) be conditioned on such assignee Lender representing to the assigning
Lender and Agent that it is purchasing the applicable Loans to be assigned to it
for its own account, for investment purposes and not with a view to the
distribution thereof; (iii) after giving effect to any such partial assignment,
the assignee Lender shall have Revolving Loan Commitments in an amount at least
equal to $5,000,000 and the assigning Lender shall have retained Revolving Loan
Commitments in an amount at least equal to $5,000,000; (iv) include a payment to
Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has
occurred and is continuing, require the consent of Borrower Representative,
which shall not be unreasonably withheld or delayed; provided that no such
consent shall be required for an assignment to a Qualified Assignee. In the case
of an assignment by a Lender under this Section 9.1, the assignee shall have, to
the extent of such assignment, the same rights, benefits and obligations as all
other Lenders hereunder. The assigning Lender shall be relieved of its
obligations hereunder with respect to its Revolving Loan Commitments or assigned
portion thereof from and after the date of such assignment. Each Borrower hereby
acknowledges and agrees that any assignment shall give rise to a direct
obligation of Borrowers to the assignee and that the assignee shall be
considered to be a "Lender". In all instances, each Lender's liability to make
Loans hereunder shall be several and not joint and shall be limited to such
Lender's Pro Rata Share of the applicable Revolving Loan Commitment. In the
event Agent or any Lender assigns or otherwise transfers all or any part of the
Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers
shall, upon the request of Agent or such Lender, execute new Notes in exchange
for the Notes, if any, being assigned. Notwithstanding the foregoing provisions
of this Section 9.1(a), any Lender may at any time pledge the Obligations held
by it and such Lender's rights under this Agreement and the other Loan Documents
to a Federal Reserve Bank, and any Lender that is an investment fund may assign
the Obligations held by it and such Lender's rights under this Agreement and the
other Loan Documents to another investment fund managed by the same investment
advisor; provided, that no such pledge to a Federal Reserve Bank shall release
such Lender from such Lender's obligations hereunder or under any other Loan
Document.
(b) Any participation by a Lender of all or any part of its
Revolving Loan Commitments shall be made with the understanding that all amounts
payable by Borrowers hereunder shall be determined as if that Lender had not
sold such participation, and that the holder of any such participation shall not
be entitled to require such Lender to take or omit to take any action hereunder
except actions directly affecting (i) any reduction in the principal amount of,
or interest rate or Fees payable with respect to, any Loan in which such holder
participates, (ii) any extension of the scheduled amortization of the principal
amount of any Loan in which such holder participates or the final maturity date
thereof, and (iii) any release of all or substantially all of the Collateral
(other than in accordance with the terms of this Agreement, the Collateral
Documents or the other Loan Documents). Solely for purposes of Sections 1.13,
1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a participation
shall give rise to a direct obligation of Borrowers to the participant and the
participant shall be considered to be a "Lender". Except as set forth in the
preceding sentence no Borrower or Credit Party shall have any obligation or duty
to any participant. Neither Agent nor any Lender (other than the Lender selling
a participation) shall have any duty to any participant and may continue to deal
solely with the Lender selling a participation as if no such sale had occurred.
(c) Except as expressly provided in this Section 9.1, no
Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in, all or
any part of the Loans, the Notes or other Obligations owed to such Lender.
(d) Each Credit Party executing this Agreement shall assist
any Lender permitted to sell assignments or participations under this Section
9.1 as reasonably required to enable the assigning or selling Lender to effect
any such assignment or participation, including the execution and delivery of
any and all agreements, notes and other documents and instruments as shall be
requested and, if requested by Agent, the preparation of informational materials
for, and the participation of management in meetings with, potential assignees
or participants. Each Credit Party executing this Agreement shall certify the
correctness, completeness and accuracy of all descriptions of the Credit Parties
and their respective affairs contained in any selling materials provided by them
and all other information provided by them and included in such materials,
except that any Projections delivered by Borrowers shall only be certified by
Borrowers as having been prepared by Borrowers in compliance with the
representations contained in Section 3.4(c).
(e) Any Lender may furnish any information concerning Credit
Parties in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants); provided that
such Lender shall obtain from assignees or participants confidentiality
covenants substantially equivalent to those contained in Section 11.8.
(f) So long as no Event of Default has occurred and is
continuing, no Lender shall assign or sell participations in any portion of its
Loans or Revolving Loan Commitments to a potential Lender or participant, if, as
of the date of the proposed assignment or sale, the assignee Lender or
participant would be subject to capital adequacy or similar requirements under
Section 1.16(a), increased costs under Section 1.16(b), an inability to fund
LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with
Section 1.15(a).
(g) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender"), may grant to a special purpose funding vehicle
(an "SPC"), identified as such in writing by the Granting Lender to Agent and
Borrowers, the option to provide to Borrowers all or any part of any Loans that
such Granting Lender would otherwise be obligated to make to Borrowers pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan; and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Revolving
Loan Commitment of the Granting Lender to the same extent, and as if such Loan
were made by such Granting Lender. No SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). Any SPC may (i) with notice to, but without
the prior written consent of, Borrowers and Agent and without paying any
processing fee therefor assign all or a portion of its interests in any Loans to
the Granting Lender or to any financial institutions (consented to by Borrowers
and Agent) providing liquidity and/or credit support to or for the account of
such SPC to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC. This Section 9.1(g) may not be
amended without the prior written consent of each Granting Lender, all or any of
whose Loans are being funded by an SPC at the time of such amendment. For the
avoidance of doubt, the Granting Lender shall for all purposes, including
without limitation, the approval of any amendment or waiver of any provision of
any Loan Document or the obligation to pay any amount otherwise payable by the
Granting Lender under the Loan Documents, continue to be the Lender of record
hereunder.
9.2 Appointment of Agent. GE Capital is hereby appointed to
act on behalf of all Lenders as Agent under this Agreement and the other Loan
Documents. The provisions of this Section 9.2 are solely for the benefit of
Agent and Lenders and no Credit Party nor any other Person shall have any rights
as a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and the other Loan Documents, Agent
shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation toward or relationship of agency or trust
with or for any Credit Party or any other Person. Agent shall have no duties or
responsibilities except for those expressly set forth in this Agreement and the
other Loan Documents. The duties of Agent shall be mechanical and administrative
in nature and Agent shall not have, or be deemed to have, by reason of this
Agreement, any other Loan Document or otherwise a fiduciary relationship in
respect of any Lender. Except as expressly set forth in this Agreement and the
other Loan Documents, Agent shall not have any duty to disclose, and shall not
be liable for failure to disclose, any information relating to any Credit Party
or any of their respective Subsidiaries or any Account Debtor that is
communicated to or obtained by GE Capital or any of its Affiliates in any
capacity. Neither Agent nor any of its Affiliates nor any of their respective
officers, directors, employees, agents or representatives shall be liable to any
Lender for any action taken or omitted to be taken by it hereunder or under any
other Loan Document, or in connection herewith or therewith, except for damages
caused by its or their own gross negligence or willful misconduct.
If Agent shall request instructions from Requisite Lenders,
Supermajority Lenders or all affected Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Loan
Document, then Agent shall be entitled to refrain from such act or taking such
action unless and until Agent shall have received instructions from Requisite
Lenders, Supermajority Lenders or all affected Lenders, as the case may be, and
Agent shall not incur liability to any Person by reason of so refraining. Agent
shall be fully justified in failing or refusing to take any action hereunder or
under any other Loan Document (a) if such action would, in the opinion of Agent,
be contrary to law or the terms of this Agreement or any other Loan Document,
(b) if such action would, in the opinion of Agent, expose Agent to Environmental
Liabilities or (c) if Agent shall not first be indemnified to its satisfaction
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Without limiting the foregoing,
no Lender shall have any right of action whatsoever against Agent as a result of
Agent acting or refraining from acting hereunder or under any other Loan
Document in accordance with the instructions of Requisite Lenders, Supermajority
Lenders or all affected Lenders, as applicable.
9.3 Agent's Reliance, Etc. Neither Agent nor any of its
Affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or the other Loan Documents, except for
damages caused by its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, Agent: (a) may treat the payee
of any Note as the holder thereof until Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form reasonably
satisfactory to Agent; (b) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations made in or in connection with this
Agreement or the other Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or the other Loan Documents on the part of any
Credit Party or to inspect the Collateral (including the books and records) of
any Credit Party; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; and (f) shall incur no liability
under or in respect of this Agreement or the other Loan Documents by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telecopy, telegram, cable or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
9.4 GE Capital and Affiliates. With respect to its Revolving
Loan Commitments hereunder, GE Capital shall have the same rights and powers
under this Agreement and the other Loan Documents as any other Lender and may
exercise the same as though it were not Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include GE Capital in its
individual capacity. GE Capital and its Affiliates may lend money to, invest in,
and generally engage in any kind of business with, any Credit Party, any of
their Affiliates and any Person who may do business with or own securities of
any Credit Party or
any such Affiliate, all as if GE Capital were not Agent and without any duty to
account therefor to Lenders. GE Capital and its Affiliates may accept fees and
other consideration from any Credit Party for services in connection with this
Agreement or otherwise without having to account for the same to Lenders. Each
Lender acknowledges the potential conflict of interest between GE Capital as a
Lender holding disproportionate interests in the Loans and GE Capital as Agent.
9.5 Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon Agent or any other Lender and based
on the Financial Statements referred to in Section 3.4(a) and such other
documents and information as it has deemed appropriate, made its own credit and
financial analysis of the Credit Parties and its own decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Each
Lender acknowledges the potential conflict of interest of each other Lender as a
result of Lenders holding disproportionate interests in the Loans, and expressly
consents to, and waives any claim based upon, such conflict of interest.
9.6 Indemnification. Lenders agree to indemnify Agent (to the
extent not reimbursed by Credit Parties and without limiting the obligations of
Borrowers hereunder), ratably according to their respective Pro Rata Shares,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against Agent in any way relating to or arising out of this Agreement or any
other Loan Document or any action taken or omitted to be taken by Agent in
connection therewith; provided, that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct. Without limiting the foregoing, each Lender
agrees to reimburse Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement and each other Loan Document, to the
extent that Agent is not reimbursed for such expenses by Credit Parties.
9.7 Successor Agent. Agent may resign at any time by giving
not less than 30 days' prior written notice thereof to Lenders and Borrower
Representative. Upon any such resignation, the Requisite Lenders shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within 30 days after the resigning Agent's giving notice of resignation, then
the resigning Agent may, on behalf of Lenders, appoint a successor Agent, which
shall be a Lender, if a Lender is willing to accept such appointment, or
otherwise shall be a commercial bank or financial institution or a subsidiary of
a commercial bank or financial institution if such commercial bank or financial
institution is organized under the laws of the United States
of America or of any State thereof and has a combined capital and surplus of at
least $300,000,000. If no successor Agent has been appointed pursuant to the
foregoing, within 30 days after the date such notice of resignation was given by
the resigning Agent, such resignation shall become effective and the Requisite
Lenders shall thereafter perform all the duties of Agent hereunder until such
time, if any, as the Requisite Lenders appoint a successor Agent as provided
above. Any successor Agent appointed by Requisite Lenders hereunder shall be
subject to the approval of Borrower Representative, such approval not to be
unreasonably withheld or delayed; provided that such approval shall not be
required if a Default or an Event of Default has occurred and is continuing.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the resigning Agent. Upon the earlier of the
acceptance of any appointment as Agent hereunder by a successor Agent or the
effective date of the resigning Agent's resignation, the resigning Agent shall
be discharged from its duties and obligations under this Agreement and the other
Loan Documents, except that any indemnity rights or other rights in favor of
such resigning Agent shall continue. After any resigning Agent's resignation
hereunder, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was acting as Agent under
this Agreement and the other Loan Documents.
9.8 Setoff and Sharing of Payments. In addition to any rights
now or hereafter granted under applicable law and not by way of limitation of
any such rights, upon the occurrence and during the continuance of any Event of
Default and subject to Section 9.9(f), each Lender is hereby authorized at any
time or from time to time, without notice to any Credit Party or to any other
Person, any such notice being hereby expressly waived, to offset and to
appropriate and to apply any and all balances held by it at any of its offices
for the account of any Borrower or Guarantor (regardless of whether such
balances are then due to such Borrower or Guarantor) and any other properties or
assets at any time held or owing by that Lender or that holder to or for the
credit or for the account of any Borrower or Guarantor against and on account of
any of the Obligations that are not paid when due. Any Lender exercising a right
of setoff or otherwise receiving any payment on account of the Obligations in
excess of its Pro Rata Share thereof shall purchase for cash (and the other
Lenders or holders shall sell) such participations in each such other Lender's
or holder's Pro Rata Share of the Obligations as would be necessary to cause
such Lender to share the amount so offset or otherwise received with each other
Lender or holder in accordance with their respective Pro Rata Shares (other than
offset rights exercised by any Lender with respect to Sections 1.13, 1.15 or
1.16). Each Lender's obligation under this Section 9.8 shall be in addition to
and not in limitation of its obligations to purchase a participation in an
amount equal to its Pro Rata Share of the Swing Line Loans under Section 1.1.
Each Credit Party that is a Borrower or Guarantor agrees, to the fullest extent
permitted by law, that (a) any Lender may exercise its right to offset with
respect to amounts in excess of its Pro Rata Share of the Obligations and may
sell participations in such amounts so offset to other Lenders and holders and
(b) any Lender so purchasing a participation in the Loans made or other
Obligations held by other Lenders or holders may exercise all rights of offset,
bankers' lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender or holder were a direct holder of the Loans and the
other Obligations in the amount of such participation. Notwithstanding the
foregoing, if all or any portion of the offset amount or payment otherwise
received is thereafter recovered from the Lender that has exercised the right
of offset, the purchase of participations by that Lender shall be rescinded and
the purchase price restored without interest.
9.9 Advances; Payments; Non-Funding Lenders; Information;
Actions in Concert.
(a) Advances; Payments.
(i) Lenders shall refund or participate in the Swing Line Loan
in accordance with clauses (iii) and (iv) of Section 1.1(c). If the Swing Line
Lender declines to make a Swing Line Loan or if Swing Line Availability is zero,
Agent shall notify Lenders, promptly after receipt of a Notice of Revolving
Credit Advance and in any event prior to 12:00 noon (Chicago time) on the date
such Notice of Revolving Advance is received, by telecopy, telephone or other
similar form of transmission. Each Lender shall make the amount of such Lender's
Pro Rata Share of such Revolving Credit Advance available to Agent in same day
funds by wire transfer to Agent's account as set forth in Annex H not later than
2:00 p.m. (Chicago time) on the requested funding date, in the case of an Index
Rate Loan, and not later than 10:00 a.m. (Chicago time) on the requested funding
date, in the case of a LIBOR Loan. After receipt of such wire transfers (or, in
the Agent's sole discretion, before receipt of such wire transfers), subject to
the terms hereof, Agent shall make the requested Revolving Credit Advance to the
Borrower designated by Borrower Representative in the Notice of Revolving Credit
Advance. All payments by each Lender shall be made without setoff, counterclaim
or deduction of any kind.
(ii) On the 2nd Business Day of each calendar week or more
frequently at Agent's election (each, a "Settlement Date"), Agent shall advise
each Lender by telephone, or telecopy of the amount of such Lender's Pro Rata
Share of principal, interest and Fees paid for the benefit of Lenders with
respect to each applicable Loan. Provided that each Lender has funded all
payments or Advances required to be made by it and has purchased all
participations required to be purchased by it under this Agreement and the other
Loan Documents as of such Settlement Date, Agent shall pay to each Lender such
Lender's Pro Rata Share of principal, interest and Fees paid by Borrowers since
the previous Settlement Date for the benefit of such Lender on the Loans held by
it. To the extent that any Lender (a "Non-Funding Lender") has failed to fund
all such payments and Advances or failed to fund the purchase of all such
participations, Agent shall be entitled to set off the funding short-fall
against that Non-Funding Lender's Pro Rata Share of all payments received from
Borrowers. Such payments shall be made by wire transfer to such Lender's account
(as specified by such Lender in Annex H or the applicable Assignment Agreement)
not later than 1:00 p.m. (Chicago time) on the next Business Day following each
Settlement Date.
(b) Availability of Lender's Pro Rata Share. Agent may assume
that each Lender will make its Pro Rata Share of each Revolving Credit Advance
available to Agent on each funding date. If such Pro Rata Share is not, in fact,
paid to Agent by such Lender when due, Agent will be entitled to recover such
amount on demand from such Lender without setoff, counterclaim or deduction of
any kind. If any Lender fails to pay the amount of its Pro Rata Share forthwith
upon Agent's demand, Agent shall promptly notify Borrower Representative and
Borrowers shall immediately repay such amount to Agent. Nothing in this Section
9.9(b) or elsewhere in this Agreement or the other Loan Documents shall be
deemed to require Agent to advance funds on behalf of any Lender or to relieve
any Lender from its obligation to fulfill its Revolving Loan Commitments
hereunder or to prejudice any rights that Borrowers may have against any Lender
as a result of any default by such Lender hereunder. To the extent that Agent
advances funds to any Borrower on behalf of any Lender and is not reimbursed
therefor on the same Business Day as such Advance is made, Agent shall be
entitled to retain for its account all interest accrued on such Advance until
reimbursed by the applicable Lender.
(c) Return of Payments.
(i) If Agent pays an amount to a Lender under this Agreement
in the belief or expectation that a related payment has been or will be received
by Agent from Borrowers and such related payment is not received by Agent, then
Agent will be entitled to recover such amount from such Lender on demand without
setoff, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount received
by Agent under this Agreement must be returned to any Borrower or paid to any
other Person pursuant to any insolvency law or otherwise, then, notwithstanding
any other term or condition of this Agreement or any other Loan Document, Agent
will not be required to distribute any portion thereof to any Lender. In
addition, each Lender will repay to Agent on demand any portion of such amount
that Agent has distributed to such Lender, together with interest at such rate,
if any, as Agent is required to pay to any Borrower or such other Person,
without setoff, counterclaim or deduction of any kind.
(d) Non-Funding Lenders. The failure of any Non-Funding Lender
to make any Revolving Credit Advance or any payment required by it hereunder or
to purchase any participation in any Swing Line Loan to be made or purchased by
it on the date specified therefor shall not relieve any other Lender (each such
other Lender, an "Other Lender") of its obligations to make such Advance or
purchase such participation on such date, but neither any Other Lender nor Agent
shall be responsible for the failure of any Non-Funding Lender to make an
Advance, purchase a participation or make any other payment required hereunder.
Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender
shall not have any voting or consent rights under or with respect to any Loan
Document or constitute a "Lender" (or be included in the calculation of
"Requisite Lenders" or "Supermajority Lenders" hereunder) for any voting or
consent rights under or with respect to any Loan Document. At Borrower
Representative's request, Agent or a Person reasonably acceptable to Agent shall
have the right with Agent's consent and in Agent's sole discretion (but shall
have no obligation) to purchase from any Non-Funding Lender, and each
Non-Funding Lender agrees that it shall, at Agent's request, sell and assign to
Agent or such Person, all of the Revolving Loan Commitments of that Non-Funding
Lender for an amount equal to the principal balance of all Loans held by such
Non-Funding Lender and all accrued interest and fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to
an executed Assignment Agreement.
(e) Dissemination of Information. Agent shall use reasonable
efforts to provide Lenders with any notice of Default or Event of Default
received by Agent from, or delivered by Agent to, any Credit Party, with notice
of any Event of Default of which Agent has actually become aware and with notice
of any action taken by Agent following any Event of Default; provided, that
Agent shall not be liable to any Lender for any failure to do so, except to the
extent that such failure is attributable to Agent's gross negligence or willful
misconduct. Lenders acknowledge that Borrowers are required to provide Financial
Statements and Collateral Reports to Lenders in accordance with Annexes E and F
hereto and agree that Agent shall have no duty to provide the same to Lenders.
(f) Actions in Concert. Anything in this Agreement to the
contrary notwithstanding, each Lender hereby agrees with each other Lender that
no Lender shall take any action to protect or enforce its rights arising out of
this Agreement or the Notes (including exercising any rights of setoff) without
first obtaining the prior written consent of Agent and Requisite Lenders, it
being the intent of Lenders that any such action to protect or enforce rights
under this Agreement and the Notes shall be taken in concert and at the
direction or with the consent of Agent or Requisite Lenders.
10. SUCCESSORS AND ASSIGNS
10.1 Successors and Assigns. This Agreement and the other Loan
Documents shall be binding on and shall inure to the benefit of each Credit
Party, Agent, Lenders and their respective successors and assigns (including, in
the case of any Credit Party, a debtor-in-possession on behalf of such Credit
Party), except as otherwise provided herein or therein. No Credit Party may
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder or under any of the other Loan Documents without
the prior express written consent of Agent and Lenders. Any such purported
assignment, transfer, hypothecation or other conveyance by any Credit Party
without the prior express written consent of Agent and Lenders shall be void.
The terms and provisions of this Agreement are for the purpose of defining the
relative rights and obligations of each Credit Party, Agent and Lenders with
respect to the transactions contemplated hereby and no Person shall be a third
party beneficiary of any of the terms and provisions of this Agreement or any of
the other Loan Documents.
11. MISCELLANEOUS
11.1 Complete Agreement; Modification of Agreement. The Loan
Documents constitute the complete agreement between the parties with respect to
the subject matter thereof and may not be modified, altered or amended except as
set forth in Section 11.2. Any letter of interest, commitment letter, fee letter
(other than the GE Capital Fee Letter) or confidentiality agreement between any
Credit Party and Agent or any Lender or any of their respective Affiliates,
predating this Agreement and relating to a financing of substantially similar
form, purpose or effect shall be superseded by this Agreement.
11.2 Amendments and Waivers.
(a) Except for actions expressly permitted to be taken by
Agent, no amendment, modification, termination or waiver of any provision of
this Agreement or any other Loan Document, or any consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Agent and Borrowers, and by Requisite Lenders,
Supermajority Lenders or all affected Lenders, as applicable. Except as set
forth in clauses (b) and (c) below, all such amendments, modifications,
terminations or waivers requiring the consent of any Lenders shall require the
written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of or
consent with respect to any provision of this Agreement that increases the
percentage advance rates set forth in the definition of the Brightpoint
Borrowing Base, or the Wireless Borrowing Base, or that makes less restrictive
the nondiscretionary criteria for exclusion from Eligible Accounts and Eligible
Inventory set forth in Sections 1.6 and 1.7, shall be effective unless the same
shall be in writing and signed by Agent, Supermajority Lenders and Borrowers. No
amendment, modification, termination or waiver of or consent with respect to any
provision of this Agreement that waives compliance with the conditions precedent
set forth in Section 2.2 to the making of any Loan or the incurrence of any
Letter of Credit Obligations shall be effective unless the same shall be in
writing and signed by Agent, Requisite Lenders and Borrowers. Notwithstanding
anything contained in this Agreement to the contrary, no waiver or consent with
respect to any Default or any Event of Default shall be effective for purposes
of the conditions precedent to the making of Loans or the incurrence of Letter
of Credit Obligations set forth in Section 2.2 unless the same shall be in
writing and signed by Agent, Requisite Lenders and Borrowers.
(c) No amendment, modification, termination or waiver shall,
unless in writing and signed by Agent and each Lender directly affected thereby:
(i) increase the principal amount of any Lender's Revolving Loan Commitment
(which action shall be deemed to directly affect all Lenders; (ii) reduce the
principal of, rate of interest on or Fees payable with respect to any Loan or
Letter of Credit Obligations of any affected Lender; (iii) extend any scheduled
payment date (other than payment dates of mandatory prepayments under Section
1.3(b)(ii)-(iv)) or final maturity date of the principal amount of any Loan of
any affected Lender; (iv) waive, forgive, defer, extend or postpone any payment
of interest or Fees as to any affected Lender; (v) release any Guaranty or,
except as otherwise permitted herein or in the other Loan Documents, release, or
permit any Credit Party to sell or otherwise dispose of, any Collateral with a
value exceeding $5,000,000 in the aggregate (which action shall be deemed to
directly affect all Lenders); (vi) change the percentage of the Revolving Loan
Commitments or of the aggregate unpaid principal amount of the Loans that shall
be required for Lenders or any of them to take any action hereunder; and (vii)
amend or waive this Section 11.2 or the definitions of the terms "Requisite
Lenders" or "Supermajority Lenders" insofar as such definitions affect the
substance of this Section 11.2. Furthermore, no amendment, modification,
termination or waiver affecting the rights or duties of Agent or L/C Issuer
under this Agreement or any other Loan Document shall be effective unless in
writing and signed by Agent or L/C Issuer, as the case may be, in addition to
Lenders required hereinabove to take such action. Each amendment, modification,
termination or waiver shall be effective only in the specific instance and for
the specific purpose for which it was given. No amendment, modification,
termination or waiver shall be required for Agent to take additional Collateral
pursuant to any Loan Document. No amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the holder of that Note. No notice
to or demand on any Credit Party in any case shall entitle such Credit Party or
any other Credit Party to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 11.2 shall be binding upon each holder
of the Notes at the time outstanding and each future holder of the Notes.
(d) If, in connection with any proposed amendment,
modification, waiver or termination (a "Proposed Change"):
(i) requiring the consent of all affected Lenders, the consent
of Requisite Lenders is obtained, but the consent of other Lenders whose consent
is required is not obtained (any such Lender whose consent is not obtained as
described in this clause (i) and in clauses (ii), (iii) and (iv) below being
referred to as a "Non-Consenting Lender"),
(ii) requiring the consent of Supermajority Lenders, the
consent of Requisite Lenders is obtained, but the consent of Supermajority
Lenders is not obtained, or
(iii) requiring the consent of Requisite Lenders, the consent
of Lenders holding 51% or more of the aggregate Revolving Commitments is
obtained, but the consent of Requisite Lenders is not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower
Representative's request, Agent or a Person reasonably acceptable to Agent shall
have the right with Agent's consent and in Agent's sole discretion (but shall
have no obligation) to purchase from such Non-Consenting Lenders, and such
Non-Consenting Lenders agree that they shall, upon Agent's request, sell and
assign to Agent or such Person, all of the Revolving Loan Commitments of such
Non-Consenting Lenders for an amount equal to the principal balance of all Loans
held by the Non-Consenting Lenders and all accrued interest and Fees with
respect thereto through the date of sale, such purchase and sale to be
consummated pursuant to an executed Assignment Agreement.
(e) Upon payment in full in cash and performance of all of the
Obligations (other than indemnification Obligations), termination of the
Revolving Loan Commitments and a release of all claims against Agent and
Lenders, and so long as no suits, actions, proceedings or claims are pending or
threatened against any Indemnified Person asserting any damages, losses or
liabilities that are Indemnified Liabilities, Agent shall deliver to Borrowers
termination statements, mortgage releases and other documents necessary or
appropriate to evidence the termination of the Liens securing payment of the
Obligations.
11.3 Fees and Expenses. Borrowers shall reimburse (i) Agent
for all fees, costs and expenses (including the reasonable fees and expenses of
all of its counsel, advisors, consultants and auditors) and (ii) Agent (and,
with respect to clauses (c) and (d) below, all Lenders) for all fees, costs and
expenses, including the reasonable fees, costs and expenses of counsel or other
advisors (including environmental and management consultants and appraisers),
incurred in connection with the negotiation and preparation of the Loan
Documents and incurred in connection with:
(a) the forwarding to Borrowers or any other Person on behalf
of Borrowers by Agent of the proceeds of any Loan (including a wire transfer fee
of $25 per wire transfer);
(b) any amendment, modification or waiver of, consent with
respect to, or termination of, any of the Loan Documents or Related Transactions
Documents or advice in connection with the syndication and administration of the
Loans made pursuant hereto or its rights hereunder or thereunder;
(c) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Agent, any Lender, any Borrower or any other
Person and whether as a party, witness or otherwise) in any way relating to the
Collateral, any of the Loan Documents or any other agreement to be executed or
delivered in connection herewith or therewith, including any litigation,
contest, dispute, suit, case, proceeding or action, and any appeal or review
thereof, in connection with a case commenced by or against any or all of the
Borrowers or any other Person that may be obligated to Agent by virtue of the
Loan Documents; including any such litigation, contest, dispute, suit,
proceeding or action arising in connection with any work-out or restructuring of
the Loans during the pendency of one or more Events of Default; provided that in
the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders; provided,
further, that no Person shall be entitled to reimbursement under this clause (c)
in respect of any litigation, contest, dispute, suit, proceeding or action to
the extent any of the foregoing results from such Person's gross negligence or
willful misconduct;
(d) any attempt to enforce any remedies of Agent against any
or all of the Credit Parties or any other Person that may be obligated to Agent
or any Lender by virtue of any of the Loan Documents, including any such attempt
to enforce any such remedies in the course of any work-out or restructuring of
the Loans during the pendency of one or more Events of Default; provided, that
in the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders;
(e) any workout or restructuring of the Loans during the
pendency of one or more Events of Default; and
(f) efforts to (i) monitor the Loans or any of the other
Obligations, (ii) evaluate, observe or assess any of the Credit Parties or their
respective affairs, and (iii) verify, protect, evaluate, assess, appraise,
collect, sell, liquidate or otherwise dispose of any of the Collateral;
including, as to each of clauses (a) through (f) above, all reasonable
attorneys' and other professional and service providers' fees arising from such
services and other advice, assistance or other representation, including those
in connection with any appellate proceedings, and all expenses, costs, charges
and other fees incurred by such counsel and others in connection with or
relating to any of the events or actions described in this Section 11.3, all of
which shall be payable, on demand, by Borrowers to Agent. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
fees, costs and expenses of accountants, environmental advisors, appraisers,
investment bankers, management and other consultants and
paralegals; court costs and expenses; photocopying and duplication expenses;
court reporter fees, costs and expenses; long distance telephone charges; air
express charges; telegram or telecopy charges; secretarial overtime charges; and
expenses for travel, lodging and food paid or incurred in connection with the
performance of such legal or other advisory services.
11.4 No Waiver. Agent's or any Lender's failure, at any time
or times, to require strict performance by the Credit Parties of any provision
of this Agreement or any other Loan Document shall not waive, affect or diminish
any right of Agent or such Lender thereafter to demand strict compliance and
performance herewith or therewith. Any suspension or waiver of an Event of
Default shall not suspend, waive or affect any other Event of Default whether
the same is prior or subsequent thereto and whether the same or of a different
type. Subject to the provisions of Section 11.2, none of the undertakings,
agreements, warranties, covenants and representations of any Credit Party
contained in this Agreement or any of the other Loan Documents and no Default or
Event of Default by any Credit Party shall be deemed to have been suspended or
waived by Agent or any Lender, unless such waiver or suspension is by an
instrument in writing signed by an officer of or other authorized employee of
Agent and the applicable required Lenders, and directed to Borrowers specifying
such suspension or waiver.
11.5 Remedies. Agent's and Lenders' rights and remedies under
this Agreement shall be cumulative and nonexclusive of any other rights and
remedies that Agent or any Lender may have under any other agreement, including
the other Loan Documents, by operation of law or otherwise. Recourse to the
Collateral shall not be required.
11.6 Severability. Wherever possible, each provision of this
Agreement and the other Loan Documents shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this
Agreement or any other Loan Document shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement or such other Loan Document.
11.7 Conflict of Terms. Except as otherwise provided in this
Agreement or any of the other Loan Documents by specific reference to the
applicable provisions of this Agreement, if any provision contained in this
Agreement conflicts with any provision in any of the other Loan Documents, the
provision contained in this Agreement shall govern and control.
11.8 Confidentiality. Agent and each Lender agree to use
commercially reasonable efforts (equivalent to the efforts Agent or such Lender
applies to maintaining the confidentiality of its own confidential information)
to maintain as confidential all confidential information provided to them by the
Credit Parties and designated as confidential for a period of 2 years following
receipt thereof, except that Agent and any Lender may disclose such information
(a) to Persons employed or engaged by Agent or such Lender in evaluating,
approving, structuring or administering the Loans and the Revolving Loan
Commitments; (b) to any bona fide assignee or participant or potential assignee
or participant that has agreed to comply with the covenant contained in this
Section 11.8 (and any such bona fide assignee or participant or potential
assignee or participant may disclose such information to Persons employed or
engaged by them as described in clause (a) above); (c) as required or requested
by
any Governmental Authority or reasonably believed by Agent or such Lender to
be compelled by any court decree, subpoena or legal or administrative order or
process; (d) as, on the advice of Agent's or such Lender's counsel, is required
by law; (e) in connection with the exercise of any right or remedy under the
Loan Documents or in connection with any Litigation to which Agent or such
Lender is a party; or (f) that ceases to be confidential through no fault of
Agent or any Lender.
11.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EACH CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN XXXX COUNTY, CITY OF CHICAGO, ILLINOIS SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE CREDIT
PARTIES, AGENT AND LENDERS PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND THE CREDIT
PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF XXXX COUNTY; PROVIDED FURTHER, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH
COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY OBJECTION THAT SUCH CREDIT PARTY
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE
ADDRESS SET FORTH IN ANNEX I OF THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE
DEEMED COMPLETED UPON THE EARLIER OF SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF
OR 3 DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
11.10 Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication
shall or may be given to or served upon any of the parties by any other parties,
or whenever any of the parties desires to give or serve upon any other parties
any communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be deemed to have been validly served, given or delivered: (a)
upon the earlier of actual receipt and 3 Business Days after deposit in the
United States Mail, registered or certified mail, return receipt requested, with
proper postage prepaid; (b) upon transmission, when sent by telecopy or other
similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States Mail as
otherwise provided in this Section 11.10); (c) 1 Business Day after deposit with
a reputable overnight courier with all charges prepaid or (d) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party to be
notified and sent to the address or facsimile number indicated in Annex I or to
such other address (or facsimile number) as may be substituted by notice given
as herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to any Person (other than Borrower Representative or
Agent) designated in Annex I to receive copies shall in no way adversely affect
the effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
11.11 Section Titles. The Section titles and Table of Contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
11.12 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement.
11.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY CREDIT
PARTY ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
11.14 Press Releases and Related Matters. Each Credit Party
executing this Agreement agrees that neither it nor its Affiliates will in the
future issue any press releases or other public disclosure using the name of GE
Capital or its affiliates or referring to this Agreement, the other Loan
Documents or the Related Transactions Documents without at least 2 Business
Days' prior notice to GE Capital and without the prior written consent of GE
Capital
unless (and only to the extent that) such Credit Party or Affiliate is required
to do so under law and then, in any event, such Credit Party or Affiliate will
consult with GE Capital before issuing such press release or other public
disclosure. Each Credit Party consents to the publication by Agent or any Lender
of a tombstone or similar advertising material relating to the financing
transactions contemplated by this Agreement. Agent reserves the right to provide
to industry trade organizations information necessary and customary for
inclusion in league table measurements.
11.15 Reinstatement. This Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against any Borrower for liquidation or reorganization, should any Borrower
become insolvent or make an assignment for the benefit of any creditor or
creditors or should a receiver or trustee be appointed for all or any
significant part of any Borrower's assets, and shall continue to be effective or
to be reinstated, as the case may be, if at any time payment and performance of
the Obligations, or any part thereof, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
of the Obligations, whether as a "voidable preference," "fraudulent conveyance,"
or otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the Obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, reduced, restored or returned.
11.16 Advice of Counsel. Each of the parties represents to
each other party hereto that it has discussed this Agreement and, specifically,
the provisions of Sections 11.9 and 11.13, with its counsel.
11.17 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
12. CROSS-GUARANTY
12.1 Cross-Guaranty. Each Borrower hereby agrees that such
Borrower is jointly and severally liable for, and hereby absolutely and
unconditionally guarantees to Agent and Lenders and their respective successors
and assigns, the full and prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of, all Obligations owed or hereafter
owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its
guaranty obligation hereunder is a continuing guaranty of payment and
performance and not of collection, that its obligations under this Section 12
shall not be discharged until payment and performance, in full, of the
Obligations has occurred, and that its obligations under this Section 12 shall
be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in, this Agreement, any other Loan Document
or any other agreement, document or instrument to which any Borrower is or may
become a party;
(b) the absence of any action to enforce this Agreement
(including this Section 12) or any other Loan Document or the waiver or consent
by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to
perfect its Lien against, any security for the Obligations or any action, or the
absence of any action, by Agent and Lenders in respect thereof (including the
release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.
12.2 Waivers by Borrowers. Each Borrower expressly waives all
rights it may have now or in the future under any statute, or at common law, or
at law or in equity, or otherwise, to compel Agent or Lenders to xxxxxxxx assets
or to proceed in respect of the Obligations guaranteed hereunder against any
other Credit Party, any other party or against any security for the payment and
performance of the Obligations before proceeding against, or as a condition to
proceeding against, such Borrower. It is agreed among each Borrower, Agent and
Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this Section 12 and such waivers, Agent and Lenders would
decline to enter into this Agreement.
12.3 Benefit of Guaranty. Each Borrower agrees that the
provisions of this Section 12 are for the benefit of Agent and Lenders and their
respective successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between any other Borrower and Agent or Lenders, the
obligations of such other Borrower under the Loan Documents.
12.4 Subordination of Subrogation, Etc. Notwithstanding
anything to the contrary in this Agreement or in any other Loan Document, and
except as set forth in Section 12.7, each Borrower hereby expressly and
irrevocably subordinates to payment of the Obligations any and all rights at law
or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off and any and all defenses available to a surety,
guarantor or accommodation co-obligor until the Obligations are indefeasibly
paid in full in cash. Each Borrower acknowledges and agrees that this
subordination is intended to benefit Agent and Lenders and shall not limit or
otherwise affect such Borrower's liability hereunder or the enforceability of
this Section 12, and that Agent, Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 12.4.
12.5 Election of Remedies. If Agent or any Lender may, under
applicable law, proceed to realize its benefits under any of the Loan Documents
giving Agent or such Lender a Lien upon any Collateral, whether owned by any
Borrower or by any other Person, either by judicial foreclosure or by
non-judicial sale or enforcement, Agent or any Lender may, at its sole option,
determine which of its remedies or rights it may pursue without affecting any of
its rights and remedies under this Section 12. If, in the exercise of any of its
rights and remedies, Agent or any Lender shall forfeit any of its rights or
remedies, including its right to enter a deficiency judgment against any
Borrower or any other Person, whether because of any applicable laws pertaining
to "election of remedies" or the like, each Borrower hereby consents to such
action by Agent or such Lender and waives any claim based upon such action, even
if such action by Agent or such Lender shall result in a full or partial loss of
any rights of subrogation that each Borrower might otherwise have had but for
such action by Agent or such Lender. Any election of remedies that results in
the denial or impairment of the right of Agent or any Lender to seek a
deficiency judgment against any Borrower shall not impair any other Borrower's
obligation to pay the full amount of the Obligations. In the event Agent or any
Lender shall bid at any foreclosure or trustee's sale or at any private sale
permitted by law or the Loan Documents, Agent or such Lender may bid all or less
than the amount of the Obligations and the amount of such bid need not be paid
by Agent or such Lender but shall be credited against the Obligations. The
amount of the successful bid at any such sale, whether Agent, Lender or any
other party is the successful bidder, shall be conclusively deemed to be the
fair market value of the Collateral and the difference between such bid amount
and the remaining balance of the Obligations shall be conclusively deemed to be
the amount of the Obligations guaranteed under this Section 12, notwithstanding
that any present or future law or court decision or ruling may have the effect
of reducing the amount of any deficiency claim to which Agent or any Lender
might otherwise be entitled but for such bidding at any such sale.
12.6 Limitation. Notwithstanding any provision herein
contained to the contrary, each Borrower's liability under this Section 12
(which liability is in any event in addition to amounts for which such Borrower
is primarily liable under Section 1) shall be limited to an amount not to exceed
as of any date of determination the greater of:
(a) the net amount of all Loans advanced to any other Borrower
under this Agreement and then re-loaned or otherwise transferred to, or for the
benefit of, such Borrower; and
(b) the amount that could be claimed by Agent and Lenders from
such Borrower under this Section 12 without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law after taking into account, among other
things, such Borrower's right of contribution and indemnification from each
other Borrower under Section 12.7.
12.7 Contribution with Respect to Guaranty Obligations.
(a) To the extent that any Borrower shall make a payment under
this Section 12 of all or any of the Obligations (other than Loans made to that
Borrower for which it
is primarily liable) (a "Guarantor Payment") that, taking into account all other
Guarantor Payments then previously or concurrently made by any other Borrower,
exceeds the amount that such Borrower would otherwise have paid if each Borrower
had paid the aggregate Obligations satisfied by such Guarantor Payment in the
same proportion that such Borrower's "Allocable Amount" (as defined below) (as
determined immediately prior to such Guarantor Payment) bore to the aggregate
Allocable Amounts of each of the Borrowers as determined immediately prior to
the making of such Guarantor Payment, then, following indefeasible payment in
full in cash of the Obligations and termination of the Revolving Loan
Commitments, such Borrower shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Borrower for the
amount of such excess, pro rata based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of
any Borrower shall be equal to the maximum amount of the claim that could then
be recovered from such Borrower under this Section 12 without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law.
(c) This Section 12.7 is intended only to define the relative
rights of Borrowers and nothing set forth in this Section 12.7 is intended to or
shall impair the obligations of Borrowers, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Agreement, including Section 12.1. Nothing contained in this
Section 12.7 shall limit the liability of any Borrower to pay the Loans made
directly or indirectly to that Borrower and accrued interest, Fees and expenses
with respect thereto for which such Borrower shall be primarily liable.
(d) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets of the
Borrower to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Borrowers against other
Credit Parties under this Section 12.7 shall be exercisable upon the full and
indefeasible payment of the Obligations and the termination of the Revolving
Loan Commitments.
12.8 Liability Cumulative. The liability of Borrowers under
this Section 12 is in addition to and shall be cumulative with all liabilities
of each Borrower to Agent and Lenders under this Agreement and the other Loan
Documents to which such Borrower is a party or in respect of any Obligations or
obligation of the other Borrower, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first written above.
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Duly Authorized Signatory
LASALLE BUSINESS CREDIT, INC.,
as Lender
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
-----------------------------------------------
NATIONAL CITY BANK OF INDIANA,
AS LENDER
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
The following Persons are signatories to this Agreement in
their capacity as Credit Parties or Loan Parties and not as Borrowers.
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel & Secretary
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES
HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
ANNEX A (RECITALS)
TO
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have
(unless otherwise provided elsewhere in the Loan Documents) the following
respective meanings, and all references to Sections, Exhibits, Schedules or
Annexes in the following definitions shall refer to Sections, Exhibits,
Schedules or Annexes of or to the Agreement:
"Account Debtor" means any Person who may become obligated to
any Credit Party under, with respect to, or on account of, an Account.
"Accounting Changes" has the meaning ascribed thereto in Annex
G.
"Accounts" means all "accounts," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, including (a) all
accounts receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper,
Documents or Instruments), whether arising out of goods sold or services
rendered by it or from any other transaction (including any such obligations
that may be characterized as an account or contract right under the Code), (b)
all of each Credit Party's rights in, to and under all purchase orders or
receipts for goods or services, (c) all of each Credit Party's rights to any
goods represented by any of the foregoing (including unpaid sellers' rights of
rescission, replevin, reclamation and stoppage in transit and rights to
returned, reclaimed or repossessed goods), (d) all monies due or to become due
to any Credit Party, under all purchase orders and contracts for the sale of
goods or the performance of services or both by such Credit Party or in
connection with any other transaction (whether or not yet earned by performance
on the part of such Credit Party), including the right to receive the proceeds
of said purchase orders and contracts, (e) all health care insurance receivables
and (f) all collateral security and guaranties of any kind, given by any Account
Debtor or any other Person with respect to any of the foregoing.
"Adjusted Fixed Charge Coverage Ratio" means, with respect to
any Person for any fiscal period, the ratio of Free Cash Flow to Adjusted Fixed
Charges.
"Adjusted Fixed Charges" means with respect to any Person for
any fiscal period, Fixed Charges during such period plus XXXXX Distributions
during such period plus the greater of (a) zero and (b) BPI Intercompany Loans
made at any time during such period when either 30-Day Borrowing Availability or
Borrowing Availability do not exceed $20,000,000 after giving effect to such BPI
Intercompany Loans minus BPI Intercompany Loans repaid during such period.
"Advance" means any Revolving Credit Advance or Swing Line
Advance, as the context may require.
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"Affiliate" means, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially, or as a
trustee, guardian or other fiduciary, 5% or more of the Stock having ordinary
voting power in the election of directors of such Person, (b) each Person that
controls, is controlled by or is under common control with such Person, (c) each
of such Person's officers, directors, joint venturers and partners and (d) in
the case of Borrowers, the immediate family members, spouses and lineal
descendants of individuals who are Affiliates of any Borrower. For the purposes
of this definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise; provided, however, that the term "Affiliate" shall specifically
exclude Agent and each Lender.
"Agent" means GE Capital in its capacity as Agent for Lenders
or its successor appointed pursuant to Section 9.7.
"Aggregate Borrowing Base" means as of any date of
determination, an amount equal to (i) the sum of the Brightpoint Borrowing Base
and the Wireless Borrowing Base; less (ii) any Reserves except to the extent
already deducted therefrom.
"Agreement" means the Credit Agreement by and among Borrowers,
the other Credit Parties party thereto, GE Capital, as Agent and Lender and the
other Lenders from time to time party thereto, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Appendices" has the meaning ascribed to it in the recitals to
the Agreement.
"Applicable Index Margin" means the per annum interest rate
margin from time to time in effect and payable in addition to the Index Rate
applicable to the Revolving Loan, as determined by reference to Section 1.5(a).
"Applicable L/C Margin" means the per annum fee, from time to
time in effect, payable with respect to outstanding Letter of Credit Obligations
as determined by reference to Section 1.5(a).
"Applicable LIBOR Margin" means the per annum interest rate
from time to time in effect and payable in addition to the LIBOR Rate applicable
to the Revolving Loan, as determined by reference to Section 1.5(a).
"Applicable Margins" means collectively the Applicable L/C
Margin, the Applicable Unused Line Fee Margin, the Applicable Index Margin and
the Applicable LIBOR Margin.
"Applicable Unused Line Fee Margin" means the per annum fee,
from time to time in effect, payable in respect of Borrowers' non-use of
committed funds pursuant to Section 1.9(b), which fee is determined by reference
to Section 1.5(a).
"Assignment Agreement" has the meaning ascribed to it in
Section 9.1(a).
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"Average 30-Day Borrowing Availability" means as of any date
of determination, for either Borrower or both Borrowers, as applicable, the
arithmetic average of the Borrowing Availability during the thirty days then
ended.
"Average 60-Day Borrowing Availability" means as of any date
of determination, for either Borrower or both Borrowers, as applicable, the
arithmetic average of the Borrowing Availability during the sixty days then
ended.
"Bankruptcy Code" means the provisions of Title 11 of the
United States Code, 11 U.S.C. Sections 101 et seq.
"Blocked Accounts" has the meaning ascribed to it in Annex C.
"Borrower Representative" means Brightpoint in its capacity as
Borrower Representative pursuant to the provisions of Section 1.1(c).
"Borrowers" and "Borrower" have the respective meanings
ascribed thereto in the preamble to the Agreement.
"Borrowing Availability" means as of any date of determination
(a) as to all Borrowers, the lesser of (i) the Maximum Amount and (ii) the
Aggregate Borrowing Base, in each case, less the sum of the aggregate Revolving
Loan and Swing Line Loan then outstanding, or (b) as to an individual Borrower,
the lesser of (i) the Maximum Amount less the sum of the Revolving Loan and
Swing Line Loan outstanding to all other Borrowers and (ii) that Borrower's
separate Borrowing Base, less the sum of the Revolving Loan and Swing Line Loan
outstanding to that Borrower; provided that an Overadvance in accordance with
Section 1.1(a)(iii) may cause the Revolving Loan and the Swing Line Loan to
exceed the Aggregate Borrowing Base or a Borrower's separate Borrowing Base by
the amount of such permitted Overadvance.
"Borrowing Base" means as the context may require, the
Brightpoint Borrowing Base, the Wireless Borrowing Base or any such Borrowing
Base.
"Borrowing Base Certificate" means a certificate to be
executed and delivered from time to time by each Borrower in the form attached
to the Agreement as Exhibit 4.1(b).
"BPI" means Brightpoint, Inc., a Delaware corporation.
"BPI Allocated Expenses" means with respect to any Borrower
for any fiscal period, those expenses accrued by BPI and allocated to such
Borrower for the purpose of being expensed and paid by such Borrower, which
allocation shall be determined in good faith by such Borrower by dividing such
Borrower's revenue by total revenue of BPI and its consolidated Subsidiaries and
multiplying by the amount of expenses incurred by BPI.
"BPI Intercompany Loans" has the meaning set forth in Section
6.14(h).
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"BPI Pledge Agreement" means the Pledge Agreement of even date
herewith executed by BPI in favor of Agent, or behalf of itself and Lenders,
pledging the Stock of each of Brightpoint, Brightpoint Holdings and Wireless
Holdings.
"BPI Unallocated Expense Balance" means at any time, the
aggregate payments made after the Closing Date by Borrowers to BPI and payments
made by Borrowers to third parties on behalf of BPI other than those payments
made in respect to (i) BPI Allocated Expenses, (ii) BPI Intercompany
Distributions, (iii) XXXXX Distributions, and (iv) dividends and distributions
to pay taxes, less any cash payments made after the Closing Date by BPI to
Borrowers in order to reimburse Borrowers for payments made by Borrowers with
respect to such payment.
"Brightpoint" means Brightpoint North America L.P., a Delaware
limited partnership.
"Brightpoint Borrowing Base" means, as of any date of
determination by Agent, from time to time, an amount equal to the sum at such
time of:
(a) up to 85% of the book value of Brightpoint's Eligible
Accounts; and
(b) the lesser of (i) up to 60% of the book value of
Brightpoint's Eligible Inventory valued at the lower of cost (determined
on a first-in, first-out basis) or market, (ii) if applicable, up to 85%
of the Net Recovery Liquidation Value of Brightpoint's Eligible
Inventory and (iii) the amount determined pursuant to clause (a) above;
in each case, less any Reserves established by Agent at such time, Reserves for
duties, customs brokers, freight, taxes, insurance and other Charges and
expenses pertaining to such Inventory.
"Brightpoint Holdings" means Brightpoint North America, Inc.,
an Indiana corporation.
"Brightpoint Holdings Pledge Agreement" means the Pledge
Agreement of even date herewith executed by Brightpoint Holdings in favor of
Agent, on behalf of itself and Lenders, pledging all Stock of its Subsidiaries
and all Intercompany Notes owing to or held by it.
"Brightpoint International" means Brightpoint International
Ltd., a Delaware corporation.
"Brightpoint International Pledge Agreement" means the Pledge
Agreement of even date herewith executed by Brightpoint International in favor
of Agent, on behalf of itself and Lenders, pledging all Stock of Wireless and
all Intercompany Notes owing to or held by it.
"Brightpoint Pledge Agreement" means the Pledge Agreement of
even date herewith executed by Brightpoint in favor of Agent, on behalf of
itself and Lenders, pledging all Stock of its Subsidiaries, if any, and all
Intercompany Notes owing to or held by it.
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"Business Day" means any day that is not a Saturday, a Sunday
or a day on which banks are required or permitted to be closed in the States of
Illinois or New York and in reference to LIBOR Loans shall mean any such day
that is also a LIBOR Business Day.
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of Indebtedness) by
such Person during any measuring period for any fixed assets or improvements or
for replacements, substitutions or additions thereto that have a useful life of
more than one year and that are required to be capitalized under GAAP.
"Capital Lease" means, with respect to any Person, any lease
of any property (whether real, personal or mixed) by such Person as lessee that,
in accordance with GAAP, would be required to be classified and accounted for as
a capital lease on a balance sheet of such Person.
"Capital Lease Obligation" means, with respect to any Capital
Lease of any Person, the amount of the obligation of the lessee thereunder that,
in accordance with GAAP, would appear on a balance sheet of such lessee in
respect of such Capital Lease.
"Cash Collateral Account" has the meaning ascribed to it Annex
B.
"Cash Equivalents" has the meaning ascribed to it in Annex B.
"Cash Management Systems" has the meaning ascribed to it in
Section 1.8.
"Change of Control" means any of the following: (a) any person
or group of persons (within the meaning of the Securities Exchange Act of 1934,)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934,) of 20% or more of the issued and outstanding shares of
capital Stock of BPI having the right to vote for the election of directors of
BPI under ordinary circumstances; (b) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period constituted the
board of directors of BPI (together with any new directors whose election by the
board of directors of BPI or whose nomination for election by the Stockholders
of BPI was approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the directors
then in office; (c) BPI ceases to own and control, directly or indirectly, all
of the economic and voting rights associated with all of the outstanding capital
Stock of each Borrower; (d) BPI ceases to directly own and control all of the
economic and voting rights associated with all of the outstanding Stock of
Brightpoint Holdings, Wireless Holdings and Brightpoint International; (e) BPI
and Brightpoint Holdings cease to directly own and control all of the economic
and voting rights associated with all of the outstanding Stock of each
Brightpoint; or (f) Brightpoint International and Wireless Holdings cease to
directly own and control all of the economic and voting rights associated with
all of the outstanding Stock of Wireless.
A-5
"Charges" means all federal, state, county, city, municipal,
local, foreign or other governmental taxes (including taxes owed to the PBGC at
the time due and payable), levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c)
the employees, payroll, income or gross receipts of any Credit Party, (d) any
Credit Party's ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party's business.
"Chattel Paper" means any "chattel paper," as such term is
defined in the Code, including electronic chattel paper, now owned or hereafter
acquired by any Credit Party, wherever located.
"Closing Date" means October 31, 2001.
"Closing Checklist" means the schedule, including all
appendices, exhibits or schedules thereto, listing certain documents and
information to be delivered in connection with the Agreement, the other Loan
Documents and the transactions contemplated thereunder, substantially in the
form attached hereto as Annex D.
"Code" means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of Illinois; provided, that
in the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Agent's or
any Lender's Lien on any Collateral is governed by the Uniform Commercial Code
as enacted and in effect in a jurisdiction other than the State of Illinois, the
term "Code" shall mean the Uniform Commercial Code as enacted and in effect in
such other jurisdiction solely for purposes of the provisions thereof relating
to such attachment, perfection, priority or remedies and for purposes of
definitions related to such provisions.
"Collateral" means the property covered by the Security
Agreement, the Mortgages and the other Collateral Documents and any other
property, real or personal, tangible or intangible, now existing or hereafter
acquired, that may at any time be or become subject to a security interest or
Lien in favor of Agent, on behalf of itself and Lenders, to secure the
Obligations.
"Collateral Documents" means the Security Agreement, the
Pledge Agreements, the Guaranties, the Mortgages, the Patent Security Agreement,
the Trademark Security Agreement, the Copyright Security Agreement and all
similar agreements entered into guaranteeing payment of, or granting a Lien upon
property as security for payment of, the Obligations.
"Collateral Reports" means the reports with respect to the
Collateral referred to in Annex F.
"Collection Account" means that certain account of Agent,
account number 000-000-00 in the name of Agent at Bankers Trust Company in New
York, New York ABA No. 021 001 033, or such other account as may be specified in
writing by Agent as the "Collection Account.".
A-6
"Commitment Termination Date" means the earliest of (a)
October 31, 2004, (b) the date of termination of Lenders' obligations to make
Advances and to incur Letter of Credit Obligations or permit existing Loans to
remain outstanding pursuant to Section 8.2(b), and (c) the date of indefeasible
prepayment in full by Borrowers of the Loans and the cancellation and return (or
stand-by guarantee) of all Letters of Credit or the cash collateralization of
all Letter of Credit Obligations pursuant to Annex B, and the permanent
reduction of all Revolving Loan Commitments to zero dollars ($0).
"Compliance Certificate" has the meaning ascribed to it in
Annex E.
"Concentration Accounts" has the meaning ascribed to it in
Annex C.
"Contracts" means all "contracts," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, in any event,
including all contracts, undertakings, or agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or interest, including
any agreement relating to the terms of payment or the terms of performance of
any Account.
"Control Letter" means a letter agreement between Agent and
(i) the issuer of uncertificated securities with respect to uncertificated
securities in the name of any Credit Party, (ii) a securities intermediary with
respect to securities, whether certificated or uncertificated, securities
entitlements and other financial assets held in a securities account in the name
of any Credit Party, (iii) a futures commission merchant or clearing house, as
applicable, with respect to commodity accounts and commodity contracts held by
any Credit Party, whereby, among other things, the issuer, securities
intermediary or futures commission merchant disclaims any security interest in
the applicable financial assets, acknowledges the Lien of Agent, on behalf of
itself and Lenders, on such financial assets, and agrees to follow the
instructions or entitlement orders of Agent without further consent by the
affected Credit Party.
"Copyright License" means any and all rights now owned or
hereafter acquired by any Credit Party under any written agreement granting any
right to use any Copyright or Copyright registration.
"Copyright Security Agreements" means the Copyright Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"Copyrights" means all of the following now owned or hereafter
adopted or acquired by any Credit Party: (a) all copyrights and General
Intangibles of like nature (whether registered or unregistered), all
registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any similar office or agency of the United
States, any state or territory thereof, or any other country or any political
subdivision thereof, and (b) all reissues, extensions or renewals thereof.
"Credit Parties" means each Holding Company, each Borrower and
each of Borrowers' Subsidiaries.
A-7
"Default" means any event that, with the passage of time or
notice or both, would, unless cured or waived, become an Event of Default.
"Default Rate" has the meaning ascribed to it in Section
1.5(d).
"Disbursement Accounts" has the meaning ascribed to it in
Annex C.
"Disclosure Schedules" means the Schedules prepared by
Borrowers and denominated as Disclosure Schedules (1.4) through (6.7) in the
Index to the Agreement.
"Documents" means all "documents," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located.
"Dollars" or "$" means lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any fiscal
period, without duplication, an amount equal to (a) consolidated net income of
such Person for such period determined in accordance with GAAP, minus (b) the
sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, (iv) any aggregate net gain (but not any
aggregate net loss) during such period arising from the sale, exchange or other
disposition of capital assets by such Person (including any fixed assets,
whether tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets and all securities), (v) any non-cash income
allocated to such Person from BPI, and (vi) any other non-cash gains that have
been added in determining consolidated net income, in each case to the extent
included in the calculation of consolidated net income of such Person for such
period in accordance with GAAP, but without duplication, plus (c) the sum of (i)
any provision for income taxes, (ii) Interest Expense, (iii) loss from
extraordinary items for such period to the extent agreed to by Agent, (iv) the
amount of non-cash charges (including depreciation and amortization) for such
period, (v) amortized debt discount for such period, and (vi) the amount of any
deduction to consolidated net income as the result of any grant to any members
of the management of such Person of any Stock, in each case to the extent
included in the calculation of consolidated net income of such Person for such
period in accordance with GAAP, but without duplication. For purposes of this
definition, the following items shall be excluded in determining consolidated
net income of a Person: (1) the income (or deficit) of any other Person accrued
prior to the date it became a Subsidiary of, or was merged or consolidated into,
such Person or any of such Person's Subsidiaries; (2) the income (or deficit) of
any other Person (other than a Subsidiary) in which such Person has an ownership
interest, except to the extent any such income has actually been received by
such Person in the form of cash dividends or distributions; (3) the
undistributed earnings of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any contractual obligation or
requirement of law applicable to such Subsidiary; (4) any restoration to income
of any contingency reserve, except to the extent that provision for such reserve
was made out of income accrued during such period; (5) any write-up of any
asset; (6) any net gain from the collection of the proceeds of life insurance
policies; (7) any net gain arising from the acquisition of any securities, or
the extinguishment, under GAAP, of any Indebtedness, of such Person, (8) in the
case of a successor to such Person by consolidation or merger or as a
A-8
transferee of its assets, any earnings of such successor prior to such
consolidation, merger or transfer of assets, and (9) any deferred credit
representing the excess of equity in any Subsidiary of such Person at the date
of acquisition of such Subsidiary over the cost to such Person of the investment
in such Subsidiary.
"Eligible Accounts" has the meaning ascribed to it in Section
1.6.
"Eligible Inventory" has the meaning ascribed to it in Section
1.7.
"Environmental Laws" means all applicable federal, state,
local and foreign laws, statutes, ordinances, codes, rules, standards and
regulations, now or hereafter in effect, and any applicable judicial or
administrative interpretation thereof, including any applicable judicial or
administrative order, consent decree, order or judgment, imposing liability or
standards of conduct for or relating to the regulation and protection of human
health, safety, the environment and natural resources (including ambient air,
surface water, groundwater, wetlands, land surface or subsurface strata,
wildlife, aquatic species and vegetation). Environmental Laws include the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. Sections 9601 et seq.) ("CERCLA"); the Hazardous Materials
Transportation Authorization Act of 1994 (49 U.S.C. Sections 5101 et seq.); the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sections 136 et
seq.); the Solid Waste Disposal Act (42 U.S.C. Sections 6901 et seq.); the Toxic
Substance Control Act (15 U.S.C. Sections 2601 et seq.); the Clean Air Act (42
U.S.C. Sections 7401 et seq.); the Federal Water Pollution Control Act (33
U.S.C. Sections 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C.
Sections 651 et seq.); and the Safe Drinking Water Act (42 U.S.C. Sections
300(f) et seq.), and any and all regulations promulgated thereunder, and all
analogous state, local and foreign counterparts or equivalents and any transfer
of ownership notification or approval statutes.
"Environmental Liabilities" means, with respect to any Person,
all liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all reasonable fees, disbursements and expenses of counsel, experts
and consultants), fines, penalties, sanctions and interest incurred as a result
of or related to any claim, suit, action, investigation, proceeding or demand by
any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute or common law, including any arising under
or related to any Environmental Laws, Environmental Permits, or in connection
with any Release or threatened Release or presence of a Hazardous Material
whether on, at, in, under, from or about or in the vicinity of any real or
personal property.
"Environmental Permits" means all permits, licenses,
authorizations, certificates, approvals or registrations required by any
Governmental Authority under any Environmental Laws.
"Equipment" means all "equipment," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located
and, in any event, including all such Credit Party's machinery and equipment,
including processing equipment, conveyors,
A-9
machine tools, data processing and computer equipment, including embedded
software and peripheral equipment and all engineering, processing and
manufacturing equipment, office machinery, furniture, materials handling
equipment, tools, attachments, accessories, automotive equipment, trailers,
trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and other
equipment of every kind and nature, trade fixtures and fixtures not forming a
part of real property, together with all additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions, warranties
and rights with respect thereto, and all products and proceeds thereof and
condemnation awards and insurance proceeds with respect thereto.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any regulations promulgated thereunder.
"ERISA Affiliate" means, with respect to any Credit Party, any
trade or business (whether or not incorporated) that, together with such Credit
Party, are treated as a single employer within the meaning of Sections 414(b),
(c), (m) or (o) of the IRC.
"ERISA Event" means, with respect to any Credit Party or any
ERISA Affiliate, (a) any event described in Section 4043(c) of ERISA with
respect to a Title IV Plan; (b) the withdrawal of any Credit Party or ERISA
Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of any Credit Party or any ERISA
Affiliate from any Multiemployer Plan; (d) the filing of a notice of intent to
terminate a Title IV Plan or the treatment of a plan amendment as a termination
under Section 4041 of ERISA; (e) the institution of proceedings to terminate a
Title IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any Credit
Party or ERISA Affiliate to make when due required contributions to a
Multiemployer Plan or Title IV Plan unless such failure is cured within 30 days;
(g) any other event or condition that might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the
imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the
termination of a Multiemployer Plan under Section 4041A of ERISA or the
reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245
of ERISA; or (i) the loss of a Qualified Plan's qualification or tax exempt
status; or (j) the termination of a Plan described in Section 4064 of ERISA.
"ESOP" means a Plan that is intended to satisfy the
requirements of Section 4975(e)(7) of the IRC.
"Event of Default" has the meaning ascribed to it in Section
8.1.
"Fair Labor Standards Act" means the Fair Labor Standards Act,
29 U.S.C.Section 201 et seq.
"FCC" means the Federal Communications Commission (or any
successor agency, commission, bureau, department or other political subdivision
of the United States of America.
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"Federal Funds Rate" means, for any day, a floating rate equal
to the weighted average of the rates on overnight Federal funds transactions
among members of the Federal Reserve System, as determined by Agent in its sole
discretion, which determination shall be final, binding and conclusive (absent
manifest error).
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fees" means any and all fees payable to Agent or any Lender
pursuant to the Agreement or any of the other Loan Documents.
"Financial Covenants" means the financial covenants set forth
in Annex G.
"Financial Statements" means the consolidated and
consolidating income statements, statements of cash flows and balance sheets of
Borrowers delivered in accordance with Section 3.4 and Annex E.
"Fiscal Month" means any of the monthly accounting periods of
Borrowers.
"Fiscal Quarter" means any of the quarterly accounting periods
of Borrowers, ending on March 31, June 30, September 30 and December 31 of each
year.
"Fiscal Year" means any of the annual accounting periods of
Borrowers ending on December 31 of each year.
"Fixed Charges" means, with respect to any Person for any
fiscal period, (a) the aggregate of all Interest Expense paid or accrued during
such period, plus (b) scheduled payments of principal with respect to
Indebtedness during such period, plus (c) Capital Expenditures.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any fiscal period, the ratio of Free Cash Flow plus Lease Expenses to
Fixed Charges.
"Fixtures" means all "fixtures" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party.
"Free Cash Flow" means, with respect to any Person for any
fiscal period, the aggregate of EBITDA minus taxes accrued or paid during such
period minus the increase in BPI Unallocated Expense Balance during such period.
"Funded Debt" means, with respect to any Person, without
duplication, all Indebtedness for borrowed money evidenced by notes, bonds,
debentures, or similar evidences of Indebtedness that by its terms matures more
than one year from, or is directly or indirectly renewable or extendible at such
Person's option under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of more than one year from the
date of creation thereof, and specifically including Capital Lease Obligations,
current maturities of long-term debt, revolving credit and short-term debt
extendible beyond one year at the option of
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the debtor, and also including, in the case of Borrowers, the Obligations and,
without duplication, Guaranteed Indebtedness consisting of guaranties of Funded
Debt of other Persons.
"GAAP" means generally accepted accounting principles in the
United States of America consistently applied, as such term is further defined
in Annex G to the Agreement.
"GE Capital" means General Electric Capital Corporation, a
Delaware corporation.
"GE Capital Fee Letter" means that certain letter, dated as of
October 31, 2001, between GE Capital and Borrowers with respect to certain Fees
to be paid from time to time by Borrowers to GE Capital.
"General Intangibles" means all "general intangibles," as such
term is defined in the Code, now owned or hereafter acquired by any Credit
Party, including all right, title and interest that such Credit Party may now or
hereafter have in or under any Contract, all payment intangibles, customer
lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor
and reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark License), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights, all
liability, life, key man and business interruption insurance, and all unearned
premiums), uncertificated securities, chooses in action, deposit, checking and
other bank accounts, rights to receive tax refunds and other payments, rights to
receive dividends, distributions, cash, Instruments and other property in
respect of or in exchange for pledged Stock and Investment Property, rights of
indemnification, all books and records, correspondence, credit files, invoices
and other papers, including without limitation all tapes, cards, computer runs
and other papers and documents in the possession or under the control of such
Credit Party or any computer bureau or service company from time to time acting
for such Credit Party.
"Goods" means all "goods" as defined in the Code, now owned or
hereafter acquired by any Credit Party, including embedded software.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any agency, department or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranteed Indebtedness" means as to any Person, any
obligation of such Person guaranteeing, providing comfort or otherwise
supporting any Indebtedness, lease, dividend, or other obligation ("primary
obligation") of any other Person (the "primary obligor") in any manner,
including any obligation or arrangement of such Person to (a) purchase or
repurchase any such primary obligation, (b) advance or supply funds (i) for the
purchase or payment of any
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such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet condition of the primary obligor, (c) purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, (d) protect the beneficiary of such arrangement from
loss (other than product warranties given in the ordinary course of business) or
(e) indemnify the owner of such primary obligation against loss in respect
thereof. The amount of any Guaranteed Indebtedness at any time shall be deemed
to be an amount equal to the lesser at such time of (x) the stated or
determinable amount of the primary obligation in respect of which such
Guaranteed Indebtedness is incurred and (y) the maximum amount for which such
Person may be liable pursuant to the terms of the instrument embodying such
Guaranteed Indebtedness, or, if not stated or determinable, the maximum
reasonably anticipated liability (assuming full performance) in respect thereof.
"Guaranties" means, collectively, the Holding Company
Guaranties, and any other guaranty executed by any Guarantor in favor of Agent
and Lenders in respect of the Obligations.
"Guarantors" means each Holding Company and each other Person,
if any, that executes a guaranty or other similar agreement in favor of Agent,
for itself and the ratable benefit of Lenders, in connection with the
transactions contemplated by the Agreement and the other Loan Documents.
"Hazardous Material" means any substance, material or waste
that is regulated by, or forms the basis of liability now or hereafter under,
any Environmental Laws, including any material or substance that is (a) defined
as a "solid waste," "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," "restricted hazardous waste,"
"pollutant," "contaminant," "hazardous constituent," "special waste," "toxic
substance" or other similar term or phrase under any Environmental Laws, or (b)
petroleum or any fraction or by-product thereof, asbestos, polychlorinated
biphenyls (PCB's), or any radioactive substance.
"Hedging Obligations" means up to $25,000,000 in notional
amount of obligations owed to Agent or any Lender under swap agreements (as such
term is defined in Section 101 of the Bankruptcy Code) and any other agreements
or arrangements designed to provide protection against fluctuations in interest
or currency exchange rates.
"Holding Company" and "Holding Companies" have the respective
meanings ascribed thereto in the preamble to the Agreement.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property payment for which is deferred 6 months or
more, but excluding obligations to trade creditors incurred in the ordinary
course of business that are unsecured and not overdue by more than 6 months
unless being contested in good faith, (b) all reimbursement and other
obligations with respect to letters of credit, bankers' acceptances and surety
bonds, whether or not matured, (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to
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property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations and
the present value (discounted at the Index Rate as in effect on the Closing
Date) of future rental payments under all synthetic leases, (f) all obligations
of such Person under commodity purchase or option agreements or other commodity
price hedging arrangements, in each case whether contingent or matured, (g) all
obligations of such Person under any foreign exchange contract, currency swap
agreement, interest rate swap, cap or collar agreement or other similar
agreement or arrangement designed to alter the risks of that Person arising from
fluctuations in currency values or interest rates, in each case whether
contingent or matured, (h) all Indebtedness referred to above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property or other assets
(including accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness,
and (i) the Obligations.
"Indemnified Liabilities" has the meaning ascribed to it in
Section 1.13.
"Indemnified Person" has the meaning ascribed to in Section
1.13.
"Index Rate" means, for any day, a floating rate equal to the
higher of (i) the rate publicly quoted from time to time by The Wall Street
Journal as the "base rate on corporate loans posted by at least 75% of the
nation's 30 largest banks" (or, if The Wall Street Journal ceases quoting a base
rate of the type described, the highest per annum rate of interest published by
the Federal Reserve Board in Federal Reserve statistical release H.15 (519)
entitled "Selected Interest Rates" as the Bank prime loan rate or its
equivalent), and (ii) the Federal Funds Rate plus 50 basis points per annum.
Each change in any interest rate provided for in the Agreement based upon the
Index Rate shall take effect at the time of such change in the Index Rate.
"Index Rate Loan" means a Loan or portion thereof bearing
interest by reference to the Index Rate. "Instruments" means all "instruments,"
as such term is defined in the Code, now owned or hereafter acquired by any
Credit Party, wherever located, and, in any event, including all certificated
securities, all certificates of deposit, and all notes and other, without
limitation, evidences of indebtedness, other than instruments that constitute,
or are a part of a group of writings that constitute, Chattel Paper.
"Intellectual Property" means any and all Licenses, Patents,
Copyrights, Trademarks, and the goodwill associated with such Trademarks.
"Intercompany Notes" means demand notes to evidence any
intercompany Indebtedness owing at any time by any Credit Party to another
Credit Party, which Intercompany Notes shall be in form and substance
satisfactory to Agent.
"Interest Expense" means, with respect to any Person for any
fiscal period, interest expense (whether cash or non-cash) of such Person
determined in accordance with GAAP for the
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relevant period ended on such date, including, interest expense with respect to
any Funded Debt of such Person and interest expense for the relevant period that
has been capitalized on the balance sheet of such Person.
"Interest Payment Date" means (a) as to any Index Rate Loan,
the first Business Day of each month to occur while such Loan is outstanding,
and (b) as to any LIBOR Loan, the last day of the applicable LIBOR Period;
provided that, in addition to the foregoing, each of (x) the date upon which all
of the Revolving Loan Commitments have been terminated and the Loans have been
paid in full and (y) the Commitment Termination Date shall be deemed to be an
"Interest Payment Date" with respect to any interest that has then accrued under
the Agreement.
"Inventory" means all "inventory," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located,
and in any event including inventory, merchandise, goods and other personal
property that are held by or on behalf of any Credit Party for sale or lease or
are furnished or are to be furnished under a contract of service, or that
constitute raw materials, work in process, finished goods, returned goods, or
materials or supplies of any kind, nature or description used or consumed or to
be used or consumed in such Credit Party's business or in the processing,
production, packaging, promotion, delivery or shipping of the same, including
other supplies and embedded software.
"Investment Property" means all "investment property" as such
term is defined in the Code now owned or hereafter acquired by any Credit Party,
wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities account
and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all commodity accounts
held by any Credit Party.
"IRC" means the Internal Revenue Code of 1986 and all
regulations promulgated thereunder.
"IRS" means the Internal Revenue Service.
"L/C Issuer" has the meaning ascribed to it in Annex B.
"L/C Sublimit" has the meaning ascribed to it in Annex B.
"Lease Expenses" means, with respect to any Person for any
fiscal period, the aggregate rental obligations of such Person determined in
accordance with GAAP which are payable in respect of such period under leases of
real or personal property (net of income from subleases thereof, but including
taxes, insurance, maintenance and similar expenses that the lessee is obligated
to pay under the terms of such leases), whether or not such obligations are
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reflected as liabilities or commitments on a consolidated balance sheet of such
Person or in the notes thereto, excluding, however, any such obligations under
Capital Leases.
"Lenders" means GE Capital, the other Lenders named on the
signature pages of the Agreement, and, if any such Lender shall decide to assign
all or any portion of the Obligations, such term shall include any assignee of
such Lender.
"Letter of Credit Fee" has the meaning ascribed to it in Annex
B.
"Letter of Credit Obligations" means all outstanding
obligations incurred by Agent and Lenders at the request of Borrower
Representative, whether direct or indirect, contingent or otherwise, due or not
due, in connection with the issuance of Letters of Credit by Agent or another
L/C Issuer or the purchase of a participation as set forth in Annex B with
respect to any Letter of Credit. The amount of such Letter of Credit Obligations
shall equal the maximum amount that may be payable at such time or at any time
thereafter by Agent or Lenders thereupon or pursuant thereto.
"Letters of Credit" means documentary or standby letters of
credit issued for the account of any Borrower by any L/C Issuer, and bankers'
acceptances issued by any Borrower, for which Agent and Lenders have incurred
Letter of Credit Obligations.
"LIBOR Business Day" means a Business Day on which banks in
the City of London are generally open for interbank or foreign exchange
transactions.
"LIBOR Loan" means a Loan or any portion thereof bearing
interest by reference to the LIBOR Rate.
"LIBOR Period" means, with respect to any LIBOR Loan, each
period commencing on a LIBOR Business Day selected by Borrower Representative
pursuant to the Agreement and ending one, two or three months thereafter, as
selected by Borrower Representative's irrevocable notice to Agent as set forth
in Section 1.5(e); provided, that the foregoing provision relating to LIBOR
Periods is subject to the following:
(a) if any LIBOR Period would otherwise end on a day that is
not a LIBOR Business Day, such LIBOR Period shall be extended to the
next succeeding LIBOR Business Day unless the result of such extension
would be to carry such LIBOR Period into another calendar month in
which event such LIBOR Period shall end on the immediately preceding
LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond the
Commitment Termination Date shall end 2 LIBOR Business Days prior to
such date;
(c) any LIBOR Period that begins on the last LIBOR Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR
Period) shall end on the last LIBOR Business Day of a calendar month;
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(d) Borrower Representative shall select LIBOR Periods so as
not to require a payment or prepayment of any LIBOR Loan during a
LIBOR Period for such Loan; and
(e) Borrower Representative shall select LIBOR Periods so that
there shall be no more than 5 separate LIBOR Loans in existence at any
one time.
"LIBOR Rate" means for each LIBOR Period, a rate of interest
determined by Agent equal to:
(a) the offered rate for deposits in United States Dollars for
the applicable LIBOR Period that appears on Telerate Page 3750 as of
11:00 a.m. (London time), on the second full LIBOR Business Day next
preceding the first day of such LIBOR Period (unless such date is not a
Business Day, in which event the next succeeding Business Day will be
used); divided by
(b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is 2 LIBOR Business Days prior to the
beginning of such LIBOR Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto, as now and from
time to time in effect) for Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board that are
required to be maintained by a member bank of the Federal Reserve System.
If such interest rates shall cease to be available from
Telerate News Service, the LIBOR Rate shall be determined from such financial
reporting service or other information as shall be mutually acceptable to Agent
and Borrower Representative.
"License" means any Copyright License, Patent License,
Trademark License or other license of rights or interests now held or hereafter
acquired by any Credit Party.
"Lien" means any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the Code or comparable law of any jurisdiction).
"Litigation" has the meaning ascribed to it in Section 3.13.
"Loan Account" has the meaning ascribed to it in Section 1.12.
"Loan Documents" means the Agreement, the Notes, the
Collateral Documents, the Master Standby Agreement, the Master Documentary
Agreement, and all other agreements, instruments, documents and certificates
identified in the Closing Checklist executed and delivered to, or in favor of,
Agent or any Lenders and including all other pledges, powers of
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attorney, consents, assignments, contracts, notices, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any
Credit Party, or any employee of any Credit Party, and delivered to Agent or any
Lender in connection with the Agreement or the transactions contemplated
thereby. Any reference in the Agreement or any other Loan Document to a Loan
Document shall include all appendices, exhibits or schedules thereto, and all
amendments, restatements, supplements or other modifications thereto, and shall
refer to the Agreement or such Loan Document as the same may be in effect at any
and all times such reference becomes operative.
"Loan Parties" means the Credit Parties other than BPI or
Brightpoint International.
"Loans" means the Revolving Loan and the Swing Line Loan.
"Lock Boxes" has the meaning ascribed to it in Annex C.
"XXXXX" means those certain Liquid Yield Option Notes due 2018
(Zero Coupon - Subordinated), issued by BPI pursuant to the XXXXX Indenture, as
the same may be amended, supplemented or modified in accordance with Section
6.19 hereof.
"XXXXX Distributions" means, with respect to any fiscal
period, all distributions and dividends paid by Brightpoint during such period
(or for which Brightpoint has delivered a XXXXX Distribution Notice during such
period) to BPI and used to repurchase XXXXX, and all dividends and distributions
to BPI to pay taxes attributable to any gain realized by BPI as a result of such
repurchases.
"XXXXX Distribution Notice" has the meaning assigned to it in
Section 6.14.
"XXXXX Indenture" means that certain indenture dated as of
March 11, 1998, by and between BPI and Chase Manhattan Bank, as trustee,
pursuant to which the XXXXX were issued, as amended, supplemented or modified in
accordance with Section 6.19 hereof.
"Margin Stock" has the meaning ascribed to in Section 3.10.
"Major Agreements" means any agreement or contract between any
Loan Party and any Person that provides for the distribution by the Loan Parties
of wireless communications handsets if, during the 180 calendar days immediately
preceding the Closing Date not less than fifty percent (50%) of all wireless
communications handsets distributed by the Loan Parties were manufactured or
supplied to the Loan Parties by such Person.
"Master Documentary Agreement" means the Master Agreement for
Documentary Letters of Credit dated as of the Closing Date among Borrowers, as
Applicants, and GE Capital.
"Master Standby Agreement" means the Master Agreement for
Standby Letters of Credit dated as of the Closing Date among Borrowers, as
Applicants, and GE Capital, as issuer.
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"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or financial or other condition
of any Credit Party, (b) any Borrower's or Credit Party's ability to pay any of
the Loans or any of the other Obligations in accordance with the terms of the
Agreement, (c) the Collateral or Agent's Liens, on behalf of itself and Lenders,
on the Collateral or the priority of such Liens, or (d) Agent's or any Lender's
rights and remedies under the Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, any event or occurrence adverse to one
or more Credit Parties which results or could reasonably be expected to result
in costs and/or liabilities or loss of revenues, individually or in the
aggregate, to any Credit Party in any 30-day period in excess of the lesser of
$10,000,000 and 20% of Borrowing Availability as of any date of determination
shall constitute a Material Adverse Effect.
"Maximum Amount" means, as of any date of determination, an
amount equal to the Revolving Loan Commitment of all Lenders as of that date.
"Mortgaged Properties" has the meaning assigned to it in
Section 5.11.
"Mortgages" means each of the mortgages, deeds of trust,
leasehold mortgages, leasehold deeds of trust, collateral assignments of leases
or other real estate security documents delivered by any Credit Party to Agent
on behalf of itself and Lenders with respect to the Mortgaged Properties, all in
form and substance reasonably satisfactory to Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA, and to which any Credit Party or ERISA Affiliate
is making, is obligated to make or has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of them.
"Net Recovery Liquidation Value" means, at any time, with
respect to any Inventory, the net liquidation value expressed as a percentage of
such Inventory as then most recently determined, based on (i) an inventory
appraisal performed by an independent inventory appraisal firm satisfactory to
the Agent and (ii) field examinations by the Agent.
"Non-Funding Lender" has the meaning ascribed to it in Section
9.9(a)(ii).
"Notes" means, collectively, the Revolving Notes and the Swing
Line Notes.
"Notice of Conversion/Continuation" has the meaning ascribed
to it in Section 1.5(e).
"Notice of Revolving Credit Advance" has the meaning ascribed
to it in Section 1.1(a).
"Obligations" means all loans, advances, debts, liabilities
and obligations for the performance of covenants, tasks or duties or for payment
of monetary amounts (whether or not such performance is then required or
contingent, or such amounts are liquidated or determinable) owing by any Credit
Party to Agent or any Lender, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by
any note,
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agreement or other instrument, arising under the Agreement or any of the other
Loan Documents. This term includes all principal, interest (including all
interest that accrues after the commencement of any case or proceeding by or
against any Credit Party in bankruptcy, whether or not allowed in such case or
proceeding), Fees, Charges, expenses, attorneys' fees and any other sum
chargeable to any Credit Party under the Agreement or any of the other Loan
Documents. This term also includes the Hedging Obligations.
"Overadvance" has the meaning ascribed to it in Section
1.1(a)(iii).
"Patent License" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right with respect
to any invention on which a Patent is in existence.
"Patent Security Agreements" means the Patent Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"Patents" means all of the following in which any Credit Party
now holds or hereafter acquires any interest: (a) all letters patent of the
United States or of any other country, all registrations and recordings thereof,
and all applications for letters patent of the United States or of any other
country, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State, or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a Plan described in Section 3(2) of
ERISA.
"Permitted Encumbrances" means the following encumbrances: (a)
Liens for taxes or assessments or other governmental Charges not yet due and
payable or which are being contested in accordance with Section 5.2(b); (b)
pledges or deposits of money securing statutory obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation (excluding Liens under ERISA); (c) pledges or deposits of
money securing bids, tenders, contracts (other than contracts for the payment of
money) or leases to which any Credit Party is a party as lessee made in the
ordinary course of business; (d) inchoate and unperfected workers', mechanics'
or similar liens arising in the ordinary course of business, so long as such
Liens attach only to Equipment, Fixtures and/or Real Estate; (e) carriers',
warehousemen's, suppliers' or other similar possessory liens arising in the
ordinary course of business and securing liabilities in an outstanding aggregate
amount not in excess of $100,000 at any time, so long as such Liens attach only
to Inventory; (f) deposits securing, or in lieu of, surety, appeal or customs
bonds in proceedings to which any Credit Party is a party; (g) any attachment or
judgment lien not constituting an Event of Default under Section 8.1(j); (h)
zoning restrictions, easements, licenses, or other restrictions on the use of
any Real Estate or other minor irregularities in title (including leasehold
title) thereto, so long as the same do not materially impair the use, value, or
marketability of such Real Estate; (i) presently existing or hereafter created
Liens in favor of Agent, on behalf of Lenders; and (j) Liens expressly permitted
under clauses (b) and (c) of Section 6.7 of the Agreement.
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"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, public benefit corporation,
other entity or government (whether federal, state, county, city, municipal,
local, foreign, or otherwise, including any instrumentality, division, agency,
body or department thereof).
"Plan" means, at any time, an "employee benefit plan", as
defined in Section 3(3) of ERISA, that any Credit Party or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to or has
maintained, contributed to or had an obligation to contribute to at any time
within the past 3 years on behalf of participants who are or were employed by
any Credit Party or ERISA Affiliate.
"Pledge Agreements" means, collectively, the BPI Pledge
Agreement, the Brightpoint Holdings Pledge Agreement, the Wireless Holdings
Pledge Agreement, the Brightpoint International Pledge Agreement and any pledge
agreements entered into after the Closing Date by any Credit Party (as required
by the Agreement or any other Loan Document).
"Prior Credit Agreement" means that certain Second Amended and
Restated Multicurrency Credit Agreement dated as of July 27, 1999, as amended,
among BPI and Brightpoint International, as borrowers and guarantors, and
certain Affiliates of BPI and Brightpoint International, as guarantors, and the
Prior Lender.
"Prior Lender" means, collectively, each of the financial
institutions party to the Prior Credit Agreement and Bank One, Indiana, National
Association, in its individual capacity and as administrative agent for each of
the financial institutions party to the Prior Credit Agreement.
"Prior Lender Obligations" means all Indebtedness of the
Credit Parties and any of their Affiliates arising under, pursuant to or in
connection with the Prior Credit Agreement, including, without limitation, all
advances, debts, liabilities, obligations, covenants and duties of any kind or
nature, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising and however acquired, arising under the
Prior Credit Agreement or under any of the instruments, documents or agreements
executed in connection with the Prior Credit Agreement.
"Proceeds" means "proceeds," as such term is defined in the
Code, including (a) any and all proceeds of any insurance, indemnity, warranty
or guaranty payable to any Credit Party from time to time with respect to any of
the Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to any Credit Party from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any Person acting under
color of governmental authority), (c) any claim of any Credit Party against
third parties (i) for past, present or future infringement of any Patent or
Patent License, or (ii) for past, present or future infringement or dilution of
any Copyright, Copyright License, Trademark or Trademark License, or for injury
to the goodwill associated with any Trademark or Trademark License, (d) any
recoveries by any Credit Party against third parties with respect to any
litigation or dispute concerning any of the
A-21
Collateral, (e) dividends, interest, distributions and Instruments with respect
to Investment Property and pledged Stock, and (f) any and all other amounts from
time to time paid or payable under or in connection with any of the Collateral,
upon disposition or otherwise.
"Pro Forma" means the unaudited consolidated and consolidating
balance sheet of Borrowers and their Subsidiaries as of September 30, 2001 after
giving pro forma effect to the Related Transactions.
"Projections" means Borrowers' forecasted consolidated and
consolidating: (a) balance sheets; (b) profit and loss statements; (c) cash flow
statements; and (d) capitalization statements, all prepared on a Subsidiary by
Subsidiary or division-by-division basis, if applicable, and otherwise
consistent with the historical Financial Statements of the Borrowers, together
with appropriate supporting details and a statement of underlying assumptions.
"Pro Rata Share" means with respect to all matters relating to
any Lender, (a) the percentage obtained by dividing (i) the Revolving Loan
Commitment of that Lender by (ii) the aggregate Revolving Loan Commitments of
all Lenders, and (b) on and after the Commitment Termination Date, the
percentage obtained by dividing (i) the aggregate outstanding principal balance
of the Loans held by that Lender, by (ii) the outstanding principal balance of
the Loans held by all Lenders.
"Qualified Assignee" means (a) any Lender, any Affiliate of
any Lender and, with respect to any Lender that is an investment fund that
invests in commercial loans, any other investment fund that invests in
commercial loans and that is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor, and (b) any
commercial bank, savings and loan association or savings bank or any other
entity which is an "accredited investor" (as defined in Regulation D under the
Securities Act of 1933) which extends credit or buys loans as one of its
businesses, including insurance companies, mutual funds, lease financing
companies and commercial finance companies, in each case, which has a rating of
BBB or higher from S&P and a rating of Baa2 or higher from Xxxxx'x at the date
that it becomes a Lender and which, through its applicable lending office, is
capable of lending to Borrowers without the imposition of any withholding or
similar taxes; provided that no Person determined by Agent to be acting in the
capacity of a vulture fund or distressed debt purchaser shall be a Qualified
Assignee, and no Person or Affiliate of such Person (other than a Person that is
already a Lender) holding Subordinated Debt or Stock issued by any Credit Party
shall be a Qualified Assignee.
"Qualified Plan" means a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the IRC.
"Real Estate" has the meaning ascribed to it in Section 3.6.
"Refinancing" means the repayment in full by Borrowers of the
Prior Lender Obligations on the Closing Date.
"Refunded Swing Line Loan" has the meaning ascribed to it in
Section 1.1(c)(iii).
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"Related Transactions" means the initial borrowing under the
Revolving Loan on the Closing Date, the Refinancing, the payment of all fees,
costs and expenses associated with all of the foregoing and the execution and
delivery of all of the Related Transactions Documents.
"Related Transactions Documents" means the Loan Documents, and
all other agreements or instruments executed in connection with the Related
Transactions.
"Release" means any release, threatened release, spill,
emission, leaking, pumping, pouring, emitting, emptying, escape, injection,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of
Hazardous Material in the indoor or outdoor environment, including the movement
of Hazardous Material through or in the air, soil, surface water, ground water
or property.
"Requisite Lenders" means Lenders having (a) more than 66 2/3%
of the Revolving Loan Commitments of all Lenders, or (b) if the Revolving Loan
Commitments have been terminated, more than 66 2/3% of the aggregate outstanding
amount of all Loans.
"Reserves" means (a) reserves established by Agent from time
to time against Eligible Inventory pursuant to Section 5.9, (b) reserves
established pursuant to Section 5.4(c), and (c) such other reserves against
Eligible Accounts, Eligible Inventory or Borrowing Availability of any Borrower
that Agent may, in its reasonable credit judgment, establish from time to time.
Without limiting the generality of the foregoing, Reserves established to ensure
the payment of accrued Interest Expenses or Indebtedness shall be deemed to be a
reasonable exercise of Agent's credit judgment.
"Restricted Payment" means, with respect to any Credit Party
(a) the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other property or
assets in respect of Stock; (b) any payment on account of the purchase,
redemption, defeasance, sinking fund or other retirement of such Credit Party's
Stock or any other payment or distribution made in respect thereof, either
directly or indirectly; (c) any payment or prepayment of principal of, premium,
if any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment
and any claim for rescission with respect to, any Subordinated Debt; (d) any
payment made to redeem, purchase, repurchase or retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire Stock
of such Credit Party now or hereafter outstanding; (e) any payment of a claim
for the rescission of the purchase or sale of, or for material damages arising
from the purchase or sale of, any shares of such Credit Party's Stock or of a
claim for reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission; (f) any payment, loan,
contribution, or other transfer of funds or other property to any Stockholder of
such Credit Party other than payment of compensation in the ordinary course of
business to Stockholders who are employees of such Person; and (g) any payment
of management fees (or other fees of a similar nature) by such Credit Party to
any Stockholder of such Credit Party or its Affiliates.
"Retiree Welfare Plan" means, at any time, a Welfare Plan that
provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such
A-23
participant's termination of employment, other than continuation coverage
provided pursuant to Section 4980B of the IRC and at the sole expense of the
participant or the beneficiary of the participant.
"Revolving Credit Advance" has the meaning ascribed to it in
Section 1.1(a)(i).
"Revolving Loan" means, at any time, the sum of (i) the
aggregate amount of Revolving Credit Advances outstanding to Borrowers plus (ii)
the aggregate Letter of Credit Obligations incurred on behalf of Borrowers.
Unless the context otherwise requires, references to the outstanding principal
balance of the Revolving Loan shall include the outstanding balance of Letter of
Credit Obligations.
"Revolving Loan Commitment" means (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances or incur
Letter of Credit Obligations as set forth on Annex J to the Agreement or in the
most recent Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate commitment of all Lenders to make Revolving Credit
Advances or incur Letter of Credit Obligations, which aggregate commitment shall
be Eighty Million Dollars ($80,000,000) on the Closing Date, as such amount may
be adjusted, if at all, from time to time in accordance with the Agreement.
"Revolving Note" has the meaning ascribed to it in Section
1.1(a)(ii).
"Security Agreement" means the Security Agreement of even date
herewith entered into by and among Agent, on behalf of itself and Lenders, and
each Credit Party that is a signatory thereto.
"Solvent" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person; (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction, and is
not about to engage in a business or transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities (such as litigation, guaranties and pension plan
liabilities) at any time shall be computed as the amount that, in light of all
the facts and circumstances existing at the time, represents the amount that can
be reasonably be expected to become an actual or matured liability.
"Stock" means all shares, options, warrants, general or
limited partnership interests, membership interests or other equivalents
(regardless of how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934).
A-24
"Stockholder" means, with respect to any Person, each holder
of Stock of such Person.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which an aggregate of more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of 50% or more of such Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership or limited liability
company in which such Person and/or one or more Subsidiaries of such Person
shall have an interest (whether in the form of voting or participation in
profits or capital contribution) of more than 50% or of which any such Person is
a general partner or may exercise the powers of a general partner. Unless the
context otherwise requires, each reference to a Subsidiary shall be a reference
to a Subsidiary of a Borrower.
"Supermajority Lenders" means Lenders having (a) 80% or more
of the Revolving Loan Commitments of all Lenders, or (b) if the Revolving Loan
Commitments have been terminated, 80% or more of the aggregate outstanding
amount of the Revolving Loan (with the Swing Line Loan being attributed to the
Lender making such Loan) and Letter of Credit Obligations.
"Supporting Obligations" has the meaning ascribed thereto in
the Code.
"Swing Line Advance" has the meaning ascribed to it in Section
1.1(b)(i).
"Swing Line Availability" has the meaning ascribed to it in
Section 1.1(b)(i).
"Swing Line Commitment" means, as to the Swing Line Lender,
the commitment of the Swing Line Lender to make Swing Line Advances as set forth
on Annex J to the Agreement, which commitment constitutes a subfacility of the
Revolving Loan Commitment of the Swing Line Lender.
"Swing Line Lender" means GE Capital.
"Swing Line Loan" means, as the context may require, at any
time, the aggregate amount of Swing Line Advances outstanding to any Borrower or
to all Borrowers.
"Swing Line Note" has the meaning ascribed to it in Section
1.1(b)(ii).
"Taxes" means taxes, levies, imposts, deductions, Charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on or measured by the net income of Agent or a Lender by the jurisdictions under
the laws of which Agent and Lenders are organized or conduct business or any
political subdivision thereof.
A-25
"Termination Date" means the date on which (a) the Loans have
been indefeasibly repaid in full, (b) all other Obligations under the Agreement
and the other Loan Documents have been completely discharged (c) all Letter of
Credit Obligations have been cash collateralized, canceled or backed by standby
letters of credit in accordance with Annex B, and (d) none of Borrowers shall
have any further right to borrow any monies under the Agreement.
"Title IV Plan" means a Pension Plan (other than a
Multiemployer Plan), that is covered by Title IV of ERISA, and that any Credit
Party or ERISA Affiliate maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of them.
"Trademark License" means rights under any written agreement
now owned or hereafter acquired by any Credit Party granting any right to use
any Trademark.
"Trademark Security Agreements" means the Trademark Security
Agreements made in favor of Agent, on behalf of Lenders, by each applicable
Credit Party.
"Trademarks" means all of the following now owned or hereafter
existing or adopted or acquired by any Credit Party: (a) all trademarks, trade
names, corporate names, business names, trade styles, service marks, logos,
other source or business identifiers, prints and labels on which any of the
foregoing have appeared or appear, designs and general intangibles of like
nature (whether registered or unregistered), all registrations and recordings
thereof, and all applications in connection therewith, including registrations,
recordings and applications in the United States Patent and Trademark Office or
in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof; (b) all
reissues, extensions or renewals thereof; and (c) all goodwill associated with
or symbolized by any of the foregoing.
"Unfunded Pension Liability" means, at any time, the aggregate
amount, if any, of the sum of (a) the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, all determined as of the most recent valuation date for each such
Title IV Plan using the actuarial assumptions for funding purposes in effect
under such Title IV Plan, and (b) for a period of 5 years following a
transaction which might reasonably be expected to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by any
Credit Party or any ERISA Affiliate as a result of such transaction.
"Welfare Plan" means a Plan described in Section 3(i) of
ERISA.
"Wireless" means Wireless Fulfillment Services LLC, a
California limited liability company.
"Wireless Borrowing Base" means, as of any date of
determination by Agent, from time to time, an amount equal to the sum at such
time of:
(a) up to 85% of the book value of Wireless' Eligible
Accounts; and
A-26
(b) the lesser of (i) up to 60% of the book value of Wireless'
Eligible Inventory valued at the lower of cost (determined on a
first-in, first-out basis) or market; (ii) if applicable, up to 85% of
the Net Recovery Liquidation Value of Brightpoint's Eligible Inventory
and (iii) the amount determined pursuant to clause (a) above
in each case, less any Reserves established by Agent at such time.
"Wireless Holdings" means Wireless Fulfillment Services
Holdings, Inc., a Delaware corporation.
"Wireless Holdings Pledge Agreement" means the Pledge
Agreement of even date herewith executed by Wireless Holdings in favor of Agent,
on behalf of itself and Lenders, pledging all Stock of its Subsidiaries and all
Intercompany Notes owing to or held by it.
"Wireless Pledge Agreement" means the Pledge Agreement of even
date herewith executed by Wireless in favor of Agent, on behalf of itself and
Lenders, pledging all Stock of its Subsidiaries, if any, and all Intercompany
Notes owing to or held by it.
Rules of construction with respect to accounting terms used in
the Agreement or the other Loan Documents shall be as set forth in Annex G. All
other undefined terms contained in any of the Loan Documents shall, unless the
context indicates otherwise, have the meanings provided for by the Code as in
effect in the State of Illinois to the extent the same are used or defined
therein. Unless otherwise specified, references in the Agreement or any of the
Appendices to a Section, subsection or clause refer to such Section, subsection
or clause as contained in the Agreement. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to the Agreement as a whole,
including all Annexes, Exhibits and Schedules, as the same may from time to time
be amended, restated, modified or supplemented, and not to any particular
section, subsection or clause contained in the Agreement or any such Annex,
Exhibit or Schedule.
Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter genders. The words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; the word "or" is not exclusive; references to Persons include their
respective successors and assigns (to the extent and only to the extent
permitted by the Loan Documents) or, in the case of governmental Persons,
Persons succeeding to the relevant functions of such Persons; and all references
to statutes and related regulations shall include any amendments of the same and
any successor statutes and regulations. Whenever any provision in any Loan
Document refers to the knowledge (or an analogous phrase) of any Credit Party,
such words are intended to signify that such Credit Party has actual knowledge
or awareness of a particular fact or circumstance or that such Credit Party, if
it had exercised reasonable diligence, would have known or been aware of such
fact or circumstance.
A-27
ANNEX B (SECTION 1.2)
TO
CREDIT AGREEMENT
LETTERS OF CREDIT
(a) Issuance. Subject to the terms and conditions of the
Agreement, Agent and Lenders agree to incur, from time to time prior to the
Commitment Termination Date, upon the request of Borrower Representative on
behalf of the applicable Borrower and for such Borrower's account, Letter of
Credit Obligations by causing Letters of Credit to be issued by GE Capital or a
Subsidiary thereof or a bank or other legally authorized Person selected by or
acceptable to Agent in its sole discretion (each, an "L/C Issuer") for such
Borrower's account and guaranteed by Agent; provided, that if the L/C Issuer is
a Lender, then such Letters of Credit shall not be guaranteed by Agent but
rather each Lender shall, subject to the terms and conditions hereinafter set
forth, purchase (or be deemed to have purchased) risk participations in all such
Letters of Credit issued with the written consent of Agent, as more fully
described in paragraph (b)(ii) below. The aggregate amount of all such Letter of
Credit Obligations shall not at any time exceed the least of (i) Twenty Five
Million Dollars ($25,000,000) (the "L/C Sublimit") and (ii) the Maximum Amount
less the aggregate outstanding principal balance of the Revolving Credit
Advances and the Swing Line Loan, and (iii) the Aggregate Borrowing Base less
the aggregate outstanding principal balance of the Revolving Credit Advances and
the Swing Line Loan. Furthermore, the aggregate amount of any Letter of Credit
Obligations incurred on behalf of any Borrower shall not at any time exceed such
Borrower's separate Borrowing Base less the aggregate principal balance of the
Revolving Credit Advances and the Swing Line Loan to such Borrower. No such
Letter of Credit shall have an expiry date that is more than one year following
the date of issuance thereof, unless otherwise determined by the Agent, in its
sole discretion, and neither Agent nor Lenders shall be under any obligation to
incur Letter of Credit Obligations in respect of, or purchase risk
participations in, any Letter of Credit having an expiry date that is later than
the Commitment Termination Date.
(b) (i) Advances Automatic; Participations. In the event that
Agent or any Lender shall make any payment on or pursuant to any Letter of
Credit Obligation, such payment shall then be deemed automatically to constitute
a Revolving Credit Advance to the applicable Borrower under Section 1.1(a) of
the Agreement regardless of whether a Default or Event of Default has occurred
and is continuing and notwithstanding any Borrower's failure to satisfy the
conditions precedent set forth in Section 2, and each Lender shall be obligated
to pay its Pro Rata Share thereof in accordance with the Agreement. The failure
of any Lender to make available to Agent for Agent's own account its Pro Rata
Share of any such Revolving Credit Advance or payment by Agent under or in
respect of a Letter of Credit shall not relieve any other Lender of its
obligation hereunder to make available to Agent its Pro Rata Share thereof, but
no Lender shall be responsible for the failure of any other Lender to make
available such other Lender's Pro Rata Share of any such payment.
(ii) If it shall be illegal or unlawful for any Borrower to
incur Revolving Credit Advances as contemplated by paragraph (b)(i) above
because of an Event of Default described in Sections 8.1(h) or (i) or otherwise
or if it shall be illegal or unlawful for any
B-1
Lender to be deemed to have assumed a ratable share of the reimbursement
obligations owed to an L/C Issuer, or if the L/C Issuer is a Lender, then (A)
immediately and without further action whatsoever, each Lender shall be deemed
to have irrevocably and unconditionally purchased from Agent (or such L/C
Issuer, as the case may be) an undivided interest and participation equal to
such Lender's Pro Rata Share (based on the Revolving Loan Commitments) of the
Letter of Credit Obligations in respect of all Letters of Credit then
outstanding and (B) thereafter, immediately upon issuance of any Letter of
Credit, each Lender shall be deemed to have irrevocably and unconditionally
purchased from Agent (or such L/C Issuer, as the case may be) an undivided
interest and participation in such Lender's Pro Rata Share (based on the
Revolving Loan Commitments) of the Letter of Credit Obligations with respect to
such Letter of Credit on the date of such issuance. Each Lender shall fund its
participation in all payments or disbursements made under the Letters of Credit
in the same manner as provided in the Agreement with respect to Revolving Credit
Advances.
(c) Cash Collateral.
(i) If Borrowers are required to provide cash collateral for
any Letter of Credit Obligations pursuant to the Agreement prior to the
Commitment Termination Date, each Borrower will pay to Agent for the ratable
benefit of itself and Lenders cash or cash equivalents acceptable to Agent
("Cash Equivalents") in an amount equal to 105% or of the maximum amount then
available to be drawn under each applicable Letter of Credit outstanding for the
benefit of such Borrower. Such funds or Cash Equivalents shall be held by Agent
in a cash collateral account (the "Cash Collateral Account") maintained at a
bank or financial institution acceptable to Agent. The Cash Collateral Account
shall be in the name of the applicable Borrower and shall be pledged to, and
subject to the control of, Agent, for the benefit of Agent and Lenders, in a
manner satisfactory to Agent. Each Borrower hereby pledges and grants to Agent,
on behalf of itself and Lenders, a security interest in all such funds and Cash
Equivalents held in the Cash Collateral Account from time to time and all
proceeds thereof, as security for the payment of all amounts due in respect of
the Letter of Credit Obligations and other Obligations, whether or not then due.
The Agreement, including this Annex B, shall constitute a security agreement
under applicable law.
(ii) If any Letter of Credit Obligations, whether or not then
due and payable, shall for any reason be outstanding on the Commitment
Termination Date, Borrowers shall either (A) provide cash collateral therefor in
the manner described above, or (B) cause all such Letters of Credit and
guaranties thereof, if any, to be canceled and returned, or (C) deliver a
stand-by letter (or letters) of credit in guaranty of such Letter of Credit
Obligations, which stand-by letter (or letters) of credit shall be of like tenor
and duration (plus 30 additional days) as, and in an amount equal to 105% of,
the aggregate maximum amount then available to be drawn under, the Letters of
Credit to which such outstanding Letter of Credit Obligations relate and shall
be issued by a Person, and shall be subject to such terms and conditions, as are
be satisfactory to Agent in its sole discretion.
(iii) From time to time after funds are deposited in the Cash
Collateral Account by any Borrower, whether before or after the Commitment
Termination Date, Agent may apply such funds or Cash Equivalents then held in
the Cash Collateral Account to the
B-2
payment of any amounts, and in such order as Agent may elect, as shall be or
shall become due and payable by such Borrower to Agent and Lenders with respect
to such Letter of Credit Obligations of such Borrower and, upon the satisfaction
in full of all Letter of Credit Obligations of such Borrower, to any other
Obligations of any Borrower then due and payable.
(iv) No Borrower nor any Person claiming on behalf of or
through any Borrower shall have any right to withdraw any of the funds or Cash
Equivalents held in the Cash Collateral Account, except that upon the
termination of all Letter of Credit Obligations and the payment of all amounts
payable by Borrowers to Agent and Lenders in respect thereof, any funds
remaining in the Cash Collateral Account shall be applied to other Obligations
then due and owing and upon payment in full of such Obligations, any remaining
amount shall be paid to Borrowers or as otherwise required by law. Interest
earned on deposits in the Cash Collateral Account shall be for the account of
Agent.
(d) Fees and Expenses. Borrowers agree to pay to Agent for the
benefit of Lenders, as compensation to such Lenders for Letter of Credit
Obligations incurred hereunder, (i) all costs and expenses incurred by Agent or
any Lender on account of such Letter of Credit Obligations, and (ii) for each
month during which any Letter of Credit Obligation shall remain outstanding, a
fee (the "Letter of Credit Fee") in an amount equal the Applicable L/C Margin
from time to time in effect multiplied by the maximum amount available from time
to time to be drawn under the applicable Letter of Credit. Such fee shall be
paid to Agent for the benefit of the Lenders in arrears, on the first day of
each month and on the Commitment Termination Date. In addition, Borrowers shall
pay to any L/C Issuer, on demand, such fees (including all per annum fees),
charges and expenses of such L/C Issuer in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued.
(e) Request for Incurrence of Letter of Credit Obligations.
Borrower Representative shall give Agent at least 2 Business Days' prior written
notice requesting the incurrence of any Letter of Credit Obligation. The notice
shall be accompanied by the form of the Letter of Credit (which shall be
acceptable to the L/C Issuer) and a completed Application for Standby Letter of
Credit or Application and Agreement for Documentary Letter of Credit or
Application for Documentary Letter of Credit (as applicable) in the form of
Exhibit X-0, X-0 or B-3 attached hereto. Notwithstanding anything contained
herein to the contrary, Letter of Credit applications by Borrower Representative
and approvals by Agent and the L/C Issuer may be made and transmitted pursuant
to electronic codes and security measures mutually agreed upon and established
by and among Borrower Representative, Agent and the L/C Issuer.
(f) Obligation Absolute. The obligation of Borrowers to
reimburse Agent and Lenders for payments made with respect to any Letter of
Credit Obligation shall be absolute, unconditional and irrevocable, without
necessity of presentment, demand, protest or other formalities, and the
obligations of each Lender to make payments to Agent with respect to Letters of
Credit shall be unconditional and irrevocable. Such obligations of Borrowers and
Lenders shall be paid strictly in accordance with the terms hereof under all
circumstances including the following:
B-3
(i) any lack of validity or enforceability of any
Letter of Credit or the Agreement or the other Loan Documents
or any other agreement;
(ii) the existence of any claim, setoff, defense or
other right that any Borrower or any of their respective
Affiliates or any Lender may at any time have against a
beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such transferee may be
acting), Agent, any Lender, or any other Person, whether in
connection with the Agreement, the Letter of Credit, the
transactions contemplated herein or therein or any unrelated
transaction (including any underlying transaction between any
Borrower or any of their respective Affiliates and the
beneficiary for which the Letter of Credit was procured);
(iii) any draft, demand, certificate or any other
document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect;
(iv) payment by Agent (except as otherwise expressly
provided in paragraph (g)(ii)(C) below) or any L/C Issuer
under any Letter of Credit or guaranty thereof against
presentation of a demand, draft or certificate or other
document that does not comply with the terms of such Letter of
Credit or such guaranty;
(v) any other circumstance or event whatsoever, that
is similar to any of the foregoing; or
(vi) the fact that a Default or an Event of Default
has occurred and is continuing.
(g) Indemnification; Nature of Lenders' Duties.
(i) In addition to amounts payable as elsewhere provided in
the Agreement, Borrowers hereby agree to pay and to protect, indemnify, and save
harmless Agent and each Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees and allocated costs of internal counsel) that Agent or any
Lender may incur or be subject to as a consequence, direct or indirect, of (A)
the issuance of any Letter of Credit or guaranty thereof, or (B) the failure of
Agent or any Lender seeking indemnification or of any L/C Issuer to honor a
demand for payment under any Letter of Credit or guaranty thereof as a result of
any act or omission, whether rightful or wrongful, of any present or future de
jure or de facto government or Governmental Authority, in each case other than
to the extent solely as a result of the gross negligence or willful misconduct
of Agent or such Lender (as finally determined by a court of competent
jurisdiction).
(ii) As between Agent and any Lender and Borrowers, Borrowers
assume all risks of the acts and omissions of, or misuse of any Letter of Credit
by beneficiaries, of any Letter of Credit. In furtherance and not in limitation
of the foregoing, to the fullest extent permitted by law, neither Agent nor any
Lender shall be responsible for: (A) the form, validity,
B-4
sufficiency, accuracy, genuineness or legal effect of any document issued by any
party in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any Letter of Credit to comply fully with
conditions required in order to demand payment under such Letter of Credit;
provided, that in the case of any payment by Agent under any Letter of Credit or
guaranty thereof, Agent shall be liable to the extent such payment was made
solely as a result of its gross negligence or willful misconduct (as finally
determined by a court of competent jurisdiction) in determining that the demand
for payment under such Letter of Credit or guaranty thereof complies on its face
with any applicable requirements for a demand for payment under such Letter of
Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they may be in cipher; (E) errors in interpretation of
technical terms; (F) any loss or delay in the transmission or otherwise of any
document required in order to make a payment under any Letter of Credit or
guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of
any drawing under any Letter of Credit or guaranty thereof; and (H) any
consequences arising from causes beyond the control of Agent or any Lender. None
of the above shall affect, impair, or prevent the vesting of any of Agent's or
any Lender's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to
expand any waivers, covenants or indemnities made by Borrowers in favor of any
L/C Issuer in any letter of credit application, reimbursement agreement or
similar document, instrument or agreement between or among Borrowers and such
L/C Issuer, including an Application and Agreement For Documentary Letter of
Credit, a Master Documentary Agreement and a Master Standby Agreement entered
into with Agent.
B-5
ANNEX C (SECTION 1.8)
TO
CREDIT AGREEMENT
CASH MANAGEMENT SYSTEM
Each Borrower shall, and shall cause its Subsidiaries to,
establish and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination
Date, each Borrower shall (i) establish lock boxes ("Lock Boxes") or at Agent's
discretion, blocked accounts ("Blocked Accounts") at one or more of the banks
set forth in Disclosure Schedule (3.19), and shall request in writing and
otherwise take such reasonable steps to ensure that all Account Debtors forward
payment directly to such Lock Boxes, and (ii) deposit and cause its Subsidiaries
to deposit or cause to be deposited promptly, and in any event no later than the
first Business Day after the date of receipt thereof, all cash, checks, drafts
or other similar items of payment relating to or constituting payments made in
respect of any and all Collateral (whether or not otherwise delivered to a Lock
Box) into one or more Blocked Accounts in such Borrower's name or any such
Subsidiary's name and at a bank identified in Disclosure Schedule (3.19) (each,
a "Relationship Bank"). On or before the Closing Date, each Borrower shall have
established a concentration account in its name (each a "Concentration Account"
and collectively, the "Concentration Accounts") at the bank or banks that shall
be designated as the Concentration Account bank for each such Borrower in
Disclosure Schedule (3.19) (each a "Concentration Account Bank" and
collectively, the "Concentration Account Banks"), which banks shall be
reasonably satisfactory to Agent.
(b) Each Borrower may maintain, in its name, an account (each
a "Disbursement Account" and collectively, the "Disbursement Accounts") at a
bank reasonably acceptable to Agent into which Agent shall, from time to time,
deposit proceeds of Revolving Credit Advances and Swing Line Advances made to
such Borrower pursuant to Section 1.1 for use by such Borrower solely in
accordance with the provisions of Section 1.4.
(c) On or before the Closing Date (or such later date as Agent
shall consent to in writing), each Concentration Account Bank, each bank where a
Disbursement Account is maintained and all other Relationship Banks, shall have
entered into tri-party blocked account agreements with Agent, for the benefit of
itself and Lenders, and the applicable Borrower and Subsidiaries thereof, as
applicable, in form and substance reasonably acceptable to Agent, which shall
become operative on or prior to the Closing Date. Each such blocked account
agreement shall provide, among other things, that (i) all items of payment
deposited in such account and proceeds thereof deposited in the applicable
Concentration Account are held by such bank as agent or bailee-in-possession for
Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement
has no rights of setoff or recoupment or any other claim against such account,
as the case may be, other than for payment of its service fees and other charges
directly related to
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the administration of such account and for returned checks
or other items of payment, and (iii) from and after the Closing Date (A) with
respect to banks at which a Blocked Account is maintained, such bank agrees to
forward immediately all amounts in each Blocked Account to such Borrower's
Concentration Account Bank and to commence the process of daily sweeps from such
Blocked Account into the applicable Concentration Account and (B) with respect
to each Concentration Account Bank, such bank agrees to immediately forward all
amounts received in the applicable Concentration Account to the Collection
Account through daily sweeps from such Concentration Account into the Collection
Account. No Borrower shall, or shall cause or permit any Subsidiary thereof to,
accumulate or maintain cash in Disbursement Accounts or payroll accounts as of
any date of determination in excess of checks outstanding against such accounts
as of that date and amounts necessary to meet minimum balance requirements.
(d) So long as no Default or Event of Default has occurred and
is continuing, Borrowers may amend Disclosure Schedule (3.19) to add or replace
a Relationship Bank, Lock Box or Blocked Account or to replace any Concentration
Account or any Disbursement Account; provided, that (i) Agent shall have
consented in writing in advance to the opening of such account or Lock Box with
the relevant bank and (ii) prior to the time of the opening of such account or
Lock Box, the applicable Borrower or its Subsidiaries, as applicable, and such
bank shall have executed and delivered to Agent a tri-party blocked account
agreement, in form and substance reasonably satisfactory to Agent. Borrowers
shall close any of their accounts (and establish replacement accounts in
accordance with the foregoing sentence) promptly and in any event within 30 days
following notice from Agent that the creditworthiness of any bank holding an
account is no longer acceptable in Agent's reasonable judgment, or as promptly
as practicable and in any event within 60 days following notice from Agent that
the operating performance, funds transfer or availability procedures or
performance with respect to accounts or Lock Boxes of the bank holding such
accounts or Agent's liability under any tri-party blocked account agreement with
such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Blocked Accounts, Disbursement Accounts
and the Concentration Accounts shall be cash collateral accounts, with all cash,
checks and other similar items of payment in such accounts securing payment of
the Loans and all other Obligations, and in which each Borrower and each
Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself and
Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be
deemed received by Agent in accordance with Section 1.10 and shall be applied
(and allocated) by Agent in accordance with Section 1.11. In no event shall any
amount be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account.
(g) Each Borrower shall and shall cause its Affiliates,
officers, employees, agents, directors or other Persons acting for or in concert
with such Borrower (each a "Related Person") to (i) hold in trust for Agent, for
the benefit of itself and Lenders, all checks, cash and other items of payment
received by such Borrower or any such Related Person, and (ii) within 1 Business
Day after receipt by such Borrower or any such Related Person of any checks,
cash or other items of payment, deposit the same into a Blocked Account of such
Borrower. Each
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Borrower and each Related Person thereof acknowledges and agrees
that all cash, checks or other items of payment constituting proceeds of
Collateral are part of the Collateral. All proceeds of the sale or other
disposition of any Collateral, shall be deposited directly into the applicable
Blocked Accounts.
C-3
ANNEX D (SECTION 2.1(a))
TO
CREDIT AGREEMENT
CLOSING CHECKLIST
In addition to, and not in limitation of, the conditions described in Section
2.1 of the Agreement, pursuant to Section 2.1(a), the following items must be
received by Agent in form and substance satisfactory to Agent on or prior to the
Closing Date (each capitalized term used but not otherwise defined herein shall
have the meaning ascribed thereto in Annex A to the Agreement):
A. Appendices. All Appendices to the Agreement, in form and substance
satisfactory to Agent.
B. Revolving Notes and Swing Line Notes. Duly executed originals of
the Revolving Notes and Swing Line Notes for each applicable Lender, dated
the Closing Date.
C. Security Agreement. Duly executed originals of the Security
Agreement, dated the Closing Date, and all instruments, documents and
agreements executed pursuant thereto.
D. Insurance. Satisfactory evidence that the insurance policies
required by Section 5.4 are in full force and effect, together with
appropriate evidence showing loss payable and/or additional insured clauses
or endorsements, as requested by Agent, in favor of Agent, on behalf of
Lenders.
E. Security Interests and Code Filings.
(a) Evidence satisfactory to Agent that Agent (for the benefit
of itself and Lenders) has a valid and perfected first priority security
interest in the Collateral, including (i) such documents duly executed by each
Credit Party (including financing statements under the Code (both pre-revision
and post-revision) and other applicable documents under the laws of any
jurisdiction with respect to the perfection of Liens) as Agent may request in
order to perfect its security interests in the Collateral and (ii) copies of
Code search reports listing all effective financing statements that name any
Credit Party as debtor, together with copies of such financing statements, none
of which shall cover the Collateral, except for those relating to the Prior
Lender Obligations (all of which shall be terminated on the Closing Date).
(b) Evidence satisfactory to Agent, including copies, of all
UCC-1 and other financing statements filed in favor of any Credit Party with
respect to each location, if any, at which Inventory may be consigned.
(c) Control Letters from (i) all issuers of uncertificated
securities and financial assets held by each Borrower, (ii) all securities
intermediaries with respect to all securities accounts and securities
entitlements of each Borrower, and (iii) all futures commission
D-1
agents and clearing houses with respect to all commodities contracts and
commodities accounts held by any Borrower.
F. Payoff Letter; Termination Statements. Copies of a duly
executed payoff letter, in form and substance reasonably satisfactory to Agent,
by and between all parties to the Prior Lender loan documents evidencing
repayment in full of all Prior Lender Obligations, together with (a) UCC-3 or
other appropriate termination statements, in form and substance satisfactory to
Agent, manually signed by the Prior Lender releasing all liens of Prior Lender
upon any of the personal property of each Credit Party, and (b) termination of
all blocked account agreements, bank agency agreements or other similar
agreements or arrangements or arrangements in favor of Prior Lender or relating
to the Prior Lender Obligations.
G. Intellectual Property Security Agreements. Duly executed
originals of Trademark Security Agreements, Copyright Security Agreements and
Patent Security Agreements, each dated the Closing Date and signed by each
Credit Party which owns Trademarks, Copyrights and/or Patents, as applicable,
all in form and substance reasonably satisfactory to Agent, together with all
instruments, documents and agreements executed pursuant thereto.
H. Holding Company Guaranties. Duly executed originals of the
Holding Company Guaranties, dated the Closing Date, and all documents,
instruments and agreements executed pursuant thereto.
I. Initial Borrowing Base Certificate. Duly executed originals
of an initial Borrowing Base Certificate from each Borrower, dated the Closing
Date, reflecting information concerning Eligible Accounts and Eligible Inventory
of such Borrower as of a date not more than 7 days prior to the Closing Date.
J. Initial Notice of Revolving Credit Advance. Duly executed
originals of a Notice of Revolving Credit Advance, dated the Closing Date, with
respect to the initial Revolving Credit Advance to be requested by Borrower
Representative on the Closing Date.
K. Letter of Direction. Duly executed originals of a letter of
direction from Borrower Representative addressed to Agent, on behalf of itself
and Lenders, with respect to the disbursement on the Closing Date of the
proceeds of the initial Revolving Credit Advance.
L. Cash Management System; Blocked Account Agreements.
Evidence satisfactory to Agent that, as of the Closing Date, Cash Management
Systems complying with Annex C to the Agreement have been established and are
currently being maintained in the manner set forth in such Annex C, together
with copies of duly executed tri-party blocked account and lock box agreements,
reasonably satisfactory to Agent, with the banks as required by Annex C.
M. Charter and Good Standing. For each Credit Party, such
Person's (a) charter and all amendments thereto, (b) good standing certificates
(including verification of tax status) in its state of incorporation and (c)
good standing certificates (including verification of tax
D-2
status) and certificates of qualification to conduct business in each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, each dated a recent date prior to the
Closing Date and certified by the applicable Secretary of State or other
authorized Governmental Authority.
N. Bylaws and Resolutions. For each Credit Party, (a) such
Person's bylaws, together with all amendments thereto and (b) resolutions of
such Person's Board of Directors, approving and authorizing the execution,
delivery and performance of the Loan Documents to which such Person is a party
and the transactions to be consummated in connection therewith, each certified
as of the Closing Date by such Person's corporate secretary or an assistant
secretary as being in full force and effect without any modification or
amendment.
O. Incumbency Certificates. For each Credit Party, signature
and incumbency certificates of the officers of each such Person executing any of
the Loan Documents, certified as of the Closing Date by such Person's corporate
secretary or an assistant secretary as being true, accurate, correct and
complete.
P. Opinions of Counsel. Duly executed originals of opinions of
Xxxxx & Xxxxxxx, counsel for the Credit Parties, together with any local counsel
opinions reasonably requested by Agent, each in form and substance reasonably
satisfactory to Agent and its counsel, dated the Closing Date, and each
accompanied by a letter addressed to such counsel from the Credit Parties,
authorizing and directing such counsel to address its opinion to Agent, on
behalf of Lenders, and to include in such opinion an express statement to the
effect that Agent and Lenders are authorized to rely on such opinion.
Q. Pledge Agreements. Duly executed originals of each of the
Pledge Agreements accompanied by (as applicable) (a) share certificates
representing all of the outstanding Stock being pledged pursuant to such Pledge
Agreement and stock powers for such share certificates executed in blank and (b)
the original Intercompany Notes and other instruments evidencing Indebtedness
being pledged pursuant to such Pledge Agreement, duly endorsed in blank.
R. Accountants' Letters. A letter from the Credit Parties to
their independent auditors authorizing the independent certified public
accountants of the Credit Parties to communicate with Agent in accordance with
Section 4.2, and a letter from such auditors acknowledging Lenders' reliance on
the auditor's certification of past and future Financial Statements.
S. Appointment of Agent for Service. An appointment of CT
Corporation as each Credit Party's agent for service of process.
T. Fee Letter. Duly executed originals of the GE Capital Fee
Letter.
U. Officer's Certificate. Agent shall have received duly
executed originals of a certificate of the Chief Executive Officer and Chief
Financial Officer of each Borrower, dated the Closing Date, stating that, since
December 31, 2000 (a) no event or condition has occurred or
D-3
is existing which could reasonably be expected to have a Material Adverse
Effect; (b) there has been no material adverse change in the industry in which
any Borrower operates; (c) no Litigation has been commenced which, if
successful, would have a Material Adverse Effect or could challenge any of the
transactions contemplated by the Agreement and the other Loan Documents; (d)
there have been no Restricted Payments made by any Credit Party; and (e) there
has been no material increase in liabilities, liquidated or contingent, and no
material decrease in assets of any Borrower or any of its Subsidiaries.
V. Waivers. Agent, on behalf of Lenders, shall have received
landlord waivers and consents, bailee letters and mortgagee agreements in form
and substance reasonably satisfactory to Agent, in each case as required
pursuant to Section 5.9.
W. Appraisals. Agent shall have received appraisals as to all
Equipment and as to each of the Mortgaged Properties, each of which shall be in
form and substance reasonably satisfactory to Agent.
X. Audited Financials; Financial Condition. Agent shall have
received the Financial Statements, Projections and other materials set forth in
Section 3.4, certified by Borrower Representative's Chief Financial Officer, in
each case in form and substance reasonably satisfactory to Agent, and Agent
shall be satisfied, in its sole discretion, with all of the foregoing. Agent
shall have further received a certificate of the Chief Executive Officer and/or
the Chief Financial Officer of each Borrower, based on such Pro Forma and
Projections, to the effect that (a) the Pro Forma fairly presents the financial
condition of such Borrower as of the date thereof after giving effect to the
transactions contemplated by the Loan Documents; (b) the Projections are based
upon estimates and assumptions stated therein, all of which such Borrower
believes to be reasonable and fair in light of current conditions and current
facts known to such Borrower and, as of the Closing Date, reflect such
Borrower's good faith and reasonable estimates of its future financial
performance and of the other information projected therein for the period set
forth therein; and (c) containing such other statements with respect to the
solvency of such Borrower and matters related thereto as Agent shall request.
Y. Master Standby Agreement. A Master Agreement for Standby
Letters of Credit among Borrowers and GE Capital.
Z. Master Documentary Agreement. A Master Agreement for
Documentary Letters of Credit among Borrowers and GE Capital.
AA. Major Agreements. Certified copies of the Major
Agreements, the expiration dates of which shall be satisfactory to Agent.
BB. XXXXX. Certified copies of the XXXXX.
CC. Acknowledgements. Acknowledgements of Agent's security
interest by Nokia Mobile Phones, Inc. and other vendors as required by Agent.
DD. No-Offset Letters. No-offset letters executed by such
Account Debtors as required by Agent.
D-4
EE. Other Documents. Such other certificates, documents and
agreements respecting any Credit Party as Agent may, in its sole discretion,
request.
D-5
ANNEX E (SECTION 4.1(a))
TO
CREDIT AGREEMENT
FINANCIAL STATEMENTS AND PROJECTIONS - REPORTING
Borrowers shall deliver or cause to be delivered to Agent or
to Agent and Lenders, as indicated, the following:
(a) Monthly Financials. To Agent and Lenders, within 30 days
after the end of each Fiscal Month, financial information regarding Borrowers
and their Subsidiaries, certified by the Chief Financial Officer of Borrower
Representative, consisting of consolidated and consolidating (i) unaudited
balance sheets as of the close of such Fiscal Month and the related statements
of income and cash flows for that portion of the Fiscal Year ending as of the
close of such Fiscal Month; (ii) unaudited statements of income and cash flows
for such Fiscal Month, setting forth in comparative form the figures for the
corresponding period in the prior year and the figures contained in the
Projections for such Fiscal Year, all prepared in accordance with GAAP (subject
to the absence of footnotes and to normal year-end adjustments); and (iii) a
summary of the outstanding balance of all Intercompany Notes as of the last day
of that Fiscal Month. Such financial information shall be accompanied by (A) a
statement in reasonable detail (each, a "Compliance Certificate") showing the
calculations used in determining compliance with each Financial Covenant that is
tested on a monthly basis, and (B) the certification of the Chief Financial
Officer of Borrower Representative that (i) such financial information presents
fairly in accordance with GAAP (subject to the absence of footnotes and to
normal year-end adjustments) the financial position and results of operations of
Borrowers and their Subsidiaries, on a consolidated and consolidating basis, in
each case as at the end of such Fiscal Month and for that portion of the Fiscal
Year then ended and (ii) any other information presented is true, correct and
complete in all material respects and that there was no Default or Event of
Default in existence as of such time or, if a Default or Event of Default has
occurred and is continuing, describing the nature thereof and all efforts
undertaken to cure such Default or Event of Default.
(b) Quarterly Financials. To Agent and Lenders, within 45 days
after the end of each Fiscal Quarter, consolidated and consolidating financial
information regarding Borrowers and their Subsidiaries and BPI and its
Subsidiaries, certified by the Chief Financial Officer of Borrower
Representative, including (i) unaudited balance sheets as of the close of such
Fiscal Quarter and the related statements of income and cash flow for that
portion of the Fiscal Year ending as of the close of such Fiscal Quarter and
(ii) unaudited statements of income and cash flows for such Fiscal Quarter, in
each case setting forth in comparative form the figures for the corresponding
period in the prior year and the figures contained in the Projections for such
Fiscal Year, all prepared in accordance with GAAP (subject to the absence of
footnotes and to normal year-end adjustments). Such financial information shall
be accompanied by (A) a Compliance Certificate in respect of each of the
Financial Covenants that is tested on a quarterly basis and (B) the
certification of the Chief Financial Officer of Borrower Representative that (i)
such financial information presents fairly in accordance with GAAP (subject to
the absence of footnotes and to normal year-end adjustments) the financial
position, results of operations and statements of cash flows of Borrowers and
their Subsidiaries, on both a consolidated and consolidating basis, as at
E-1
the end of such Fiscal Quarter and for that portion of the Fiscal Year then
ended, (ii) any other information presented is true, correct and complete in all
material respects and that there was no Default or Event of Default in existence
as of such time or, if a Default or Event of Default has occurred and is
continuing, describing the nature thereof and all efforts undertaken to cure
such Default or Event of Default. In addition, Borrowers shall deliver to Agent
and Lenders, within 45 days after the end of each Fiscal Quarter, a management
discussion and analysis that includes a comparison to budget for that Fiscal
Quarter and a comparison of performance for that Fiscal Quarter to the
corresponding period in the prior year.
(c) Operating Budget. To Agent and Lenders, as soon as
available, but not later than 30 days after the end of each Fiscal Year, an
annual operating budget for Borrowers, on a consolidated and consolidating
basis, approved by the Board of Directors of Borrowers, for the following Fiscal
Year, which (i) includes a statement of all of the material assumptions on which
such budget is based, (ii) includes monthly balance sheets, income statements
and statements of cash flows for the following year and (iii) integrates sales,
gross profits, operating expenses, operating profit, cash flow projections and
Borrowing Availability projections, all prepared on the same basis and in
similar detail as that on which operating results are reported (and in the case
of cash flow projections, representing management's good faith estimates of
future financial performance based on historical performance), and including
budgeted amounts for personnel, Capital Expenditures and facilities.
(d) Annual Audited Financials. To Agent and Lenders, within 90
days after the end of each Fiscal Year, audited Financial Statements for
Borrowers and their Subsidiaries on a consolidated and (unaudited) consolidating
basis and BPI and its Subsidiaries on a consolidated basis, consisting of
balance sheets and statements of income and retained earnings and cash flows,
setting forth in comparative form in each case the figures for the previous
Fiscal Year, which Financial Statements shall be prepared in accordance with
GAAP and certified without qualification, by an independent certified public
accounting firm of national standing or otherwise acceptable to Agent. Such
Financial Statements shall be accompanied by (i) a statement prepared in
reasonable detail showing the calculations used in determining compliance with
each of the Financial Covenants, (ii) a report from such accounting firm to the
effect that, in connection with their audit examination, nothing has come to
their attention to cause them to believe that a Default or Event of Default has
occurred (or specifying those Defaults and Events of Default that they became
aware of), it being understood that such audit examination extended only to
accounting matters and that no special investigation was made with respect to
the existence of Defaults or Events of Default, (iii) a letter addressed to
Agent, on behalf of itself and Lenders, in form and substance reasonably
satisfactory to Agent and subject to standard qualifications required by
nationally recognized accounting firms, signed by such accounting firm
acknowledging that Agent and Lenders are entitled to rely upon such accounting
firm's certification of such audited Financial Statements, (iv) the annual
letters to such accountants in connection with their audit examination detailing
contingent liabilities and material litigation matters, and (v) the
certification of the Chief Executive Officer or Chief Financial Officer of
Borrowers that all such Financial Statements present fairly in accordance with
GAAP the financial position, results of operations and statements of cash flows
of Borrowers and their Subsidiaries on a consolidated and consolidating basis,
as at the end of such Fiscal Year and for the period then ended, and that there
was no Default or Event of Default in existence as of such
E-2
time or, if a Default or Event of Default has occurred and is continuing,
describing the nature thereof and all efforts undertaken to cure such Default or
Event of Default.
(e) Reports on Internal Control. To Agent and Lenders, within
5 Business Days after receipt thereof by any Credit Party, copies of all
"Reports on Internal Control" received by such Credit Party from its independent
certified public accountants.
(f) Default Notices. To Agent and Lenders, as soon as
practicable, and in any event within 5 Business Days after an executive officer
of any Borrower has actual knowledge of the existence of any Default, Event of
Default or other event that has had a Material Adverse Effect, telephonic or
telecopied notice specifying the nature of such Default or Event of Default or
other event, including the anticipated effect thereof, which notice, if given
telephonically, shall be promptly confirmed in writing on the next Business Day.
(g) SEC Filings and Press Releases. To Agent and Lenders,
promptly upon their becoming available, copies of: (i) all Financial Statements,
reports, notices and proxy statements made publicly available by any Credit
Party to its security holders; (ii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any Credit Party with
any securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority; and (iii) all press releases and
other statements made available by any Credit Party to the public concerning
material changes or developments in the business of any such Person.
(h) Equity Notices. To Agent, as soon as practicable, copies
of all material written notices given or received by any Credit Party with
respect to any Stock of such Person.
(i) Supplemental Schedules. To Agent, supplemental
disclosures, if any, required by Section 5.6.
(j) Litigation. To Agent in writing, promptly upon learning
thereof, notice of any Litigation commenced or threatened against any Credit
Party that (i) seeks damages in excess of $250,000, (ii) seeks injunctive
relief, (iii) is asserted or instituted against any Plan, its fiduciaries or its
assets or against any Credit Party or ERISA Affiliate in connection with any
Plan, (iv) alleges criminal misconduct by any Credit Party, (v) alleges the
violation of any law regarding, or seeks remedies in connection with, any
Environmental Liabilities or (vi) involves any product recall.
(k) Insurance Notices. To Agent, disclosure of losses or
casualties required by Section 5.4.
(l) Lease Default Notices. To Agent, within 2 Business Days
after receipt thereof, copies of (i) any and all default notices received under
or with respect to any leased location or public warehouse where Collateral is
located, and (ii) such other notices or documents as Agent may reasonably
request.
(m) Lease Amendments. To Agent, within 2 Business Days after
receipt thereof, copies of all material amendments to real estate leases.
E-3
(n) To Agent, promptly on receipt thereof, copies of all
notices received with respect to any Major Agreement or the XXXXX.
(o) Other Documents. To Agent and Lenders, such other
financial and other information respecting any Credit Party's business or
financial condition as Agent or any Lender shall from time to time reasonably
request.
E-4
ANNEX F (SECTION 4.1(b))
TO
CREDIT AGREEMENT
COLLATERAL REPORTS
Borrowers shall deliver or cause to be delivered the
following:
(a) To Agent, upon its request, and in any event no less
frequently than 11:00 a.m. (Chicago time) on Wednesday of each week (together
with a copy of all or any part of the following reports requested by any Lender
in writing after the Closing Date), each of the following reports, each of which
shall be prepared by the applicable Borrower as of the last day of the
immediately preceding week:
(i) a Borrowing Base Certificate with respect to each
Borrower, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable
discretion;
(ii) with respect to each Borrower, a summary of
Inventory by location and type with a supporting perpetual Inventory
report, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable
discretion; and
(iii) with respect to each Borrower, a monthly trial
balance showing Accounts outstanding aged from invoice date as follows:
1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more,
accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion.
(b) To Agent, on a weekly basis or at such more frequent
intervals as Agent may request from time to time (together with a copy of all or
any part of such delivery requested by any Lender in writing after the Closing
Date), collateral reports with respect to each Borrower, including all additions
and reductions (cash and non-cash) with respect to Accounts of such Borrower, in
each case accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion each of which shall be prepared
by the applicable Borrower as of the last day of the immediately preceding week;
(c) To Agent, at the time of delivery of each of the monthly
Financial Statements delivered pursuant to Annex E:
(i) a reconciliation of the Accounts trial balance of
each Borrower to such Borrower's most recent Borrowing Base
Certificate, general ledger and monthly Financial Statements delivered
pursuant to Annex E, in each case accompanied by such supporting detail
and documentation as shall be requested by Agent in its reasonable
discretion;
(ii) a reconciliation of the perpetual inventory by
location of each Borrower to such Borrower's most recent Borrowing Base
Certificate, general ledger and
F-1
monthly Financial Statements delivered pursuant to Annex E, in each
case accompanied by such supporting detail and documentation as shall
be requested by Agent in its reasonable discretion;
(iii) an aging of accounts payable and a
reconciliation of that accounts payable aging to each Borrower's
general ledger and monthly Financial Statements delivered pursuant to
Annex E, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable
discretion;
(iv) a reconciliation of the outstanding Loans as set
forth in the monthly Loan Account statement provided by Agent to each
Borrower's general ledger and monthly Financial Statements delivered
pursuant to Annex E, in each case accompanied by such supporting detail
and documentation as shall be requested by Agent in its reasonable
discretion;
(d) To Agent, at the time of delivery of each of the quarterly
or annual Financial Statements delivered pursuant to Annex E, (i) a listing of
government contracts of each Borrower subject to the Federal Assignment of
Claims Act of 1940; and (ii) a list of any applications for the registration of
any Patent, Trademark or Copyright filed by any Credit Party with the United
States Patent and Trademark Office, the United States Copyright Office or any
similar office or agency in the prior Fiscal Quarter;
(e) Each Borrower, at its own expense, shall deliver to Agent
the results of each physical verification, if any, that such Borrower or any of
its Subsidiaries may in their discretion have made, or caused any other Person
to have made on their behalf, of all or any portion of their Inventory (and, if
a Default or an Event of Default has occurred and is continuing, each Borrower
shall, upon the request of Agent, conduct, and deliver the results of, such
physical verifications as Agent may require);
(f) Each Borrower, at its own expense, shall deliver to Agent
such appraisals of its assets as Agent may request at any time after the
occurrence and during the continuance of a Default or an Event of Default, such
appraisals to be conducted by an appraiser, and in form and substance reasonably
satisfactory to Agent;
(g) To Agent, on a weekly basis, or at such more frequent
intervals as Agent may request up to four times in any Fiscal Year when no
Default or Event of Default exists and from time to time, a report showing all
cash payments between BPI and Borrowers and by Borrowers to third parties on
behalf of BPI. Such report shall in a form satisfactory to Agent and shall be
recorded to intercompany accounts set forth on each Borrower's balance sheet;
and
(h) Such other reports, statements and reconciliations with
respect to the Borrowing Base, Collateral or Obligations of any or all Credit
Parties as Agent shall from time to time request in its reasonable discretion.
F-2
ANNEX G (SECTION 6.10)
TO
CREDIT AGREEMENT
FINANCIAL COVENANTS
Borrowers shall not breach or fail to comply with any of the
following financial covenants, each of which shall be calculated in accordance
with GAAP consistently applied:
(a) Minimum Fixed Charge Coverage Ratio. At all times after
Borrowers' Borrowing Availability first is below $20,000,000, Borrowers and
their Subsidiaries shall have on a consolidated basis at the end of each Fiscal
Quarter set forth below, a Fixed Charge Coverage Ratio for the 12-month period
then ended (or with respect to the Fiscal Quarters ending on or before June 30,
2002, the period commencing on October 1, 2001, and ending on the last day of
such Fiscal Quarter) of not less than the following:
1.00:1:00 for the Fiscal Quarter ending December 31, 2001;
1.05:1.00 for the Fiscal Quarter ending March 31, 2002;
1.15:1.00 for the Fiscal Quarter ending June 30, 2002 and;
1.25:1.00 for each Fiscal Quarter ending thereafter.
(b) Minimum Borrowing Availability. Borrowers shall maintain
at all times a Borrowing Availability of (i) on or before Agent's receipt of
Financial Statements for the Fiscal Quarter ending December 31, 2001,
$20,000,000 and (ii) thereafter, $10,000,000.
Unless otherwise specifically provided herein, any accounting
term used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP consistently applied. That certain items or computations
are explicitly modified by the phrase "in accordance with GAAP" shall in no way
be construed to limit the foregoing. If any "Accounting Changes" (as defined
below) occur and such changes result in a change in the calculation of the
financial covenants, standards or terms used in the Agreement or any other Loan
Document, then Borrowers, Agent and Lenders agree to enter into negotiations in
order to amend such provisions of the Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
Borrowers' and their Subsidiaries' financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made;
provided, however, that the agreement of Requisite Lenders to any required
amendments of such provisions shall be sufficient to bind all Lenders.
"Accounting Changes" means (i) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants (or successor thereto or any agency with similar functions), (ii)
changes in accounting principles concurred in by any Borrower's certified public
accountants; (iii) purchase accounting adjustments under A.P.B. 16 or 17 and
EITF 88-16, and the application of the accounting principles set forth in FASB
109, including the establishment of reserves pursuant thereto and any subsequent
reversal (in whole or in part) of such reserves; and (iv) the reversal of any
reserves established as a result of purchase accounting adjustments. All such
adjustments
G-1
resulting from expenditures made subsequent to the Closing Date (including
capitalization of costs and expenses or payment of pre-Closing Date liabilities)
shall be treated as expenses in the period the expenditures are made and
deducted as part of the calculation of EBITDA in such period. If Agent,
Borrowers and Requisite Lenders agree upon the required amendments, then after
appropriate amendments have been executed and the underlying Accounting Change
with respect thereto has been implemented, any reference to GAAP contained in
the Agreement or in any other Loan Document shall, only to the extent of such
Accounting Change, refer to GAAP, consistently applied after giving effect to
the implementation of such Accounting Change. If Agent, Borrowers and Requisite
Lenders cannot agree upon the required amendments within 30 days following the
date of implementation of any Accounting Change, then all Financial Statements
delivered and all calculations of financial covenants and other standards and
terms in accordance with the Agreement and the other Loan Documents shall be
prepared, delivered and made without regard to the underlying Accounting Change.
For purposes of Section 8.1, a breach of a Financial Covenant contained in this
Annex G shall be deemed to have occurred as of any date of determination by
Agent or as of the last day of any specified measurement period, regardless of
when the Financial Statements reflecting such breach are delivered to Agent.
G-2
ANNEX H (SECTION 9.9(A))
to
CREDIT AGREEMENT
WIRE TRANSFER INFORMATION
Name: General Electric Capital Corporation
Bank: Bankers Trust Company
New York, New York
ABA #: 000000000
Account #: 00000000
Account Name: GECC/CAF Depository
Reference: CFC 4302
H-1
ANNEX I (SECTION 11.10)
TO
CREDIT AGREEMENT
NOTICE ADDRESSES
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
with copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
(B) If to any Borrower, to Borrower Representative, at
Brightpoint North America L.P.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
I-1
with copies to:
Xxxxx & Xxxxxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
I-2
ANNEX J (FROM ANNEX A - REVOLVING LOAN COMMITMENTS DEFINITION)
to
CREDIT AGREEMENT
LENDER REVOLVING LOAN COMMITMENT
------------------------------------ -------------------------------
General Electric Capital Corporation $50,000,000 (including a Swing
Line Commitment of $10,000,000)
LaSalle Bank National Association $20,000,000
National City Bank of Indiana $10,000,000
-----------
TOTAL $80,000,000
i
EXHIBIT 1.1(a)(i)
TO
CREDIT AGREEMENT
FORM OF NOTICE OF REVOLVING CREDIT ADVANCE
Reference is made to that certain Credit Agreement dated as of ________,
2001 by and among Brightpoint North America L.P. ("Brightpoint"), Wireless
Fulfillment Services LLC ("Wireless", together with Brightpoint, "Borrowers'),
the other Credit Parties named therein, General Electric Capital Corporation
("Agent") and all Lenders named therein (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Credit Agreement"). Capitalized terms used herein
without definition are so used as defined in the Credit Agreement.
The undersigned Borrower Representative hereby gives irrevocable notice,
pursuant to Section 1.1(a) of the Credit Agreement, of a request hereby for a
Revolving Credit Advance as follows:
Aggregate Amount of Advance: $____________
Date of Advance: ____________
Amount of Advance Type of Revolving Credit Loan Interest Period
----------------- ------------------------------ ---------------
$____________ [Index Rate][LIBOR] Loan ___ Months
The requested Revolving Credit Advance is to be wired as follows:
[Name of Bank]
[City of Bank]
Beneficiary: _______________
Account No.: ______________
ABA No.: _________________
Attn: _____________________
The undersigned hereby certifies on behalf of the Borrowers that on the date
hereof and on the Date of Advance set forth above, and after giving effect to
the Advances requested hereby: (i) there exists and there shall exist no Default
or Event of Default under the Credit Agreement: (ii) the proceeds of the
Revolving Credit Advances will be used in accordance with Section 1.4 of the
Credit Agreement; and (iii) each of the representations and warranties contained
in the Credit Agreement and the other Loan Documents is true and correct.
Borrower Representative's Chief Financial Officer hereby certifies that at
the time of and after giving actual and pro forma effect to the requested
Revolving Credit Advance, Borrowers are and will be Solvent.
IN WITNESS WHEREOF, Borrower Representative has caused this Notice of
Revolving Credit Advance to be executed and delivered by its duly authorized
Chief Financial Officer as of the date first set forth above.
BRIGHTPOINT NORTH AMERICA
L.P.
BY: BRIGHTPOINT NORTH
AMERICA, INC., its general
partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT 1.1(a)(II)
TO
CREDIT AGREEMENT
FORM OF REVOLVING NOTE
Chicago, Illinois
$------------
FOR VALUE RECEIVED, the undersigned, __________________________, a
______________ ___________ ("Borrower"), HEREBY PROMISES TO PAY to the order of
_______________________ ("Lender"), at the offices of GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as Agent for Lenders ("Agent"), at its
address at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or at
such other place as Agent may designate from time to time in writing, in lawful
money of the United States of America and in immediately available funds, the
amount of ___________ DOLLARS AND ________ CENTS ($________) or, if less, the
aggregate unpaid amount of all Revolving Credit Advances made to the undersigned
under the "Credit Agreement" (as hereinafter defined). All capitalized terms
used but not otherwise defined herein have the meanings given to them in the
Credit Agreement or in Annex A thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to that
certain Credit Agreement dated as of ________, 2001 by and among Borrower, the
other Person named therein as Borrower, the other Persons named therein as
Credit Parties, Agent, Lender and the other Persons signatory thereto from time
to time as Lenders (including all annexes, exhibits and schedules thereto, and
as from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), and is entitled to the benefit and security of the Credit
Agreement, the Security Agreement and all of the other Loan Documents referred
to therein. Reference is hereby made to the Credit Agreement for a statement of
all of the terms and conditions under which the Loans evidenced hereby are made
and are to be repaid. The date and amount of each Revolving Credit Advance made
by Lenders to Borrowers, the rates of interest applicable thereto and each
payment made on account of the principal thereof, shall be recorded by Agent on
its books; provided that the failure of Agent to make any such recordation shall
not affect the obligations of Borrower to make a payment when due of any amount
owing under the Credit Agreement or this Note in respect of the Revolving Credit
Advances made by Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand, presentment, protest
and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not be
assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
THAT STATE.
[BORROWER]
By:_________________________________
Title:______________________________
EXHIBIT 1.1(B)(II)
TO
CREDIT AGREEMENT
FORM OF SWING LINE NOTE
Chicago, Illinois
$---------------
FOR VALUE RECEIVED, the undersigned, ________________________, a
____________ ___________ ("Borrower"), HEREBY PROMISES TO PAY to the order of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Swing Line
Lender") at the offices of GENERAL ELECTRIC CAPITAL CORPORATION, a New York
corporation, as Agent (in such capacity, the "Agent") at the Agent's address at
00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, or at such other
place as Agent may designate from time to time in writing, in lawful money of
the United States of America and in immediately available funds, the amount of
___________________ DOLLARS AND NO CENTS ($________) or, if less, the aggregate
unpaid amount of all Swing Line Advances made to the undersigned under the
"Credit Agreement" (as hereinafter defined). All capitalized terms used but not
otherwise defined herein have the meanings given to them in the Credit Agreement
or in Annex A thereto.
This Swing Line Note is issued pursuant to that certain Credit Agreement
dated as of ________, 2001 by and among Borrower, the other Person named therein
as Borrower, the other Persons named therein as Credit Parties, Agent, Swing
Line Lender and the other Persons signatory thereto from time to time as Lenders
(including all annexes, exhibits and schedules thereto and as from time to time
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
and is entitled to the benefit and security of the Credit Agreement, the
Security Agreement and all of the other Loan Documents. Reference is hereby made
to the Credit Agreement for a statement of all of the terms and conditions under
which the Loans evidenced hereby are made and are to be repaid. The date and
amount of each Swing Line Advance made by Swing Line Lender to Borrowers, the
rate of interest applicable thereto and each payment made on account of the
principal thereof, shall be recorded by Agent on its books; provided that the
failure of Agent to make any such recordation shall not affect the obligations
of Borrower to make a payment when due of any amount owing under the Credit
Agreement or this Swing Line Note in respect of the Swing Line Advances made by
Swing Line Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby shall be payable
in the amounts and on the dates specified in the Credit Agreement, the terms of
which are hereby incorporated herein by reference. Interest thereon shall be
paid until such principal amount is paid in full at such interest rates and at
such times, and pursuant to such calculations, as are specified in the Credit
Agreement.
If any payment on this Swing Line Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Swing Line Note
may, as provided in the Credit Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Swing Line Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
THIS SWING LINE NOTE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
[BORROWER]
By:_____________________________
Title:__________________________
EXHIBIT 1.5(e)
TO
CREDIT AGREEMENT
FORM OF NOTICE OF CONVERSION/CONTINUATION
Reference is made to that certain Credit Agreement dated as of ________,
2001 by and among the undersigned ("Borrower Representative"), the other Person
named therein as Borrower, the other Persons named therein as Credit Parties,
General Electric Capital Corporation ("Agent") and the Lenders from time to time
signatory thereto (including all annexes, exhibits or schedules thereto, and as
from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"). Capitalized terms used herein without definition are so
used as defined in the Credit Agreement.
Borrower Representative hereby gives irrevocable notice, pursuant to
Section 1.5(e) of the Credit Agreement, of its request to:
(a) on [ date ] convert $[________] of the aggregate outstanding principal
amount of the [_______] Loan, bearing interest at the [________] Rate, into a(n)
[________] Loan [and, in the case of a LIBOR Loan, having a LIBOR Period of
[_____] month(s)];
[(b) on [ date ] continue $[________]of the aggregate outstanding principal
amount of the [_______] Loan, bearing interest at the LIBOR Rate, as a LIBOR
Loan having a LIBOR Period of [_____] month(s)].
Borrower Representative certifies that the conversion and/or continuation
of the Loans requested above is for the separate account(s) of the following
Borrower[s] in the following [respective] amount[s]: [Name: $_____________] and
[Name: $_______________].
Borrower Representative hereby represents and warrants that all of the
conditions contained in Section 2.2 of the Credit Agreement have been satisfied
on and as of the date hereof, and will continue to be satisfied on and as of the
date of the conversion/continuation requested hereby, before and after giving
effect thereto; and (ii) reaffirms the cross-guaranty provisions set forth in
Section 12 of the Credit Agreement and the guaranty and continuance of Agent's
Liens, on behalf of itself and Lenders, pursuant to the Collateral Documents.
IN WITNESS WHEREOF, Borrower Representative has caused this Notice of
Conversion/Continuation be executed and delivered on behalf of the Borrowers
specified above by its duly authorized officer as of the date first set forth
above.
BRIGHTPOINT NORTH AMERICA
L.P.
BY: BRIGHTPOINT NORTH
AMERICA, INC., its general
partner
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
-2-
EXHIBIT 4.1(b)
BRIGHTPOINT/WIRELESS
Borrowing Base Certificate
Pursuant to the Credit Agreement dated as of ________, 2001, among the
undersigned, the other person designated therein as Borrower, the persons
designated therein as Credit Parties, the other persons designated therein as
Lenders and GENERAL ELECTRIC CAPITAL CORPORATION (the "Credit Agreement"), the
undersigned certifies that as of the close of business on the date set forth
below, the Borrowing Base is computed as set forth below.
The undersigned represents and warrants that this Borrowing Base Certificate is
a true and correct statement of, and that the information contained herein is
true and correct in all material respects regarding, the status of Eligible
Accounts, and Eligible Inventory and that the amounts reflected herein are in
compliance with the provisions of the Credit Agreement and the Appendices
thereto. The undersigned further represents and warrants that there is no
Default or Event of Default and all representations and warranties contained in
the Credit Agreement and other Loan Documents are true and correct in all
material respects. The undersigned understands that the Lenders will extend
loans in reliance upon the information contained herein. In the event of a
conflict between the following summary of eligibility criteria and Sections 1.6
and 1.7 of the Credit Agreement, the Credit Agreement shall govern. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
specified in the Credit Agreement.
BPNA WFS
TOTAL TOTAL TOTAL
1 Accounts Receivable per the DD/MM/YY Aging
Less Ineligibles:
2 a) Past Due Accounts (>60 days)
3 b) Cross-Age (>50.0% past due)
4 c) Credit Balances (> 60 days)
5 d) Affiliated Receivables
6 e) Government Accounts
7 f) Foreign Accounts
8 g) Contra Accounts
9 h) Shipments not Received by Customer FOB Destination
10 i) Xxxx and Hold Sales
11 j) Nextel Communication Receivables (Contra)
12 k) Addback: Past Due Balances > Total Balance
13 l) Other ineligibles
14 Total Ineligibles
15 Eligible Accounts Receivable
16 Advance Rate
17 Available Accounts Receivable before Dilution
Reserve
18 Dilution Reserve (x% of eligible receivables)
19 AVAILABLE ACCOUNTS RECEIVABLE
BPNA BPNA BPNA WFS
PHONES ACCESSORIES TOTAL TOTAL TOTAL
20 Inventory per the MM/DD/YY Perpetual
21 Add: 3 days intransit FOB Destination * xx%
22 Add: Xxxx and Hold
23 Less: Handspring Contract Finance Contra
24 Adjusted Gross Inventory
Less Ineligibles:
25 a) D.O.A.
26 b) Quarantine
27 c) In-Transit
28 d) Locations < $100M
29 e) Packaging
30 f) Reserves as of MM/DD/YY 31 g) Vendor Credit as of MM/DD/YY 32 h) Other
33 i) BSS Accessories and Parts
34 Total Ineligible Inventory
35 Eligible Inventory
36 Inventory Advance Rates ___% ___% ___%
37 Available Inventory Before Cap
38 Inventory Cap (line 18)
39 INVENTORY AVAILABILITY (LESSER OF 37 OR 38)
40 BORROWING BASE BEFORE RESERVES (19+39)
41 Less: Reserves
42 Less: Nextel Cash Reserve as of MM/DD/YY
43 BORROWING BASE +40-41-42 (NOT TO EXCEED $80,000,000)
44 Less: Revolving Loan Balance
45 Less: Letters of Credit
46 BORROWING AVAILABILITY
Brightpoint North American L.P. as Borrower Representative
By
-----------------------------------------
Duly Authorized Signatory
EXHIBIT 6.14(a)
TO
CREDIT AGREEMENT
FORM OF XXXXX DISTRIBUTION NOTICE
Reference is made to that certain Credit Agreement dated as of October
31, 2001 by and among Brightpoint North America L.P. ("Brightpoint"), Wireless
Fulfillment Services LLC ("Wireless", together with Brightpoint, "Borrowers"),
the other Credit Parties named therein, General Electric Capital Corporation
("Agent") and all Lenders named therein (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Credit Agreement"). Capitalized terms used herein
without definition are so used as defined in the Credit Agreement.
Brightpoint hereby gives notice, pursuant to Section 6.14 of the Credit
Agreement, of a XXXXX Distribution on __________, ____ (the "Notice Date") in
the amount of $_________ (the "Requested Distribution").
Brightpoint hereby certifies, pursuant to Section 6.14 of the Credit
Agreement, that on the Notice Date, [Average 30-Day Borrowing Availability is
$_________ and Borrowing Availability is $__________.] or [Average 30-Day
Borrowing Availability is $_________, Borrowing Availability is $__________ and
for the [____________] period ending ______, ____ (the "Ratio Period"), the
Adjusted Fixed Charge Coverage Ratio exceeds 1.1:1.0 as indicated below:
Adjusted Fixed Charge Coverage Ratio for the Ratio Period:
Free Cash Flow (A): $____________
Adjusted Fixed Charges (B):
Fixed Charges: $____________
BPI intercompany distributions: $____________
XXXXX Distributions: $____________
$____________
Adjusted Fixed Charge Coverage Ratio (A/B): _____________]
Brightpoint hereby certifies that on the Notice Date set forth
above, and after giving effect to the Requested Distribution: (i) there exists
and there shall exist no Default or Event of Default under the Credit Agreement;
and (ii) each of the representations and warranties contained in the Credit
Agreement and the other Loan Documents is true and correct.
Brightpoint's Chief Financial Officer hereby certifies that at
the time of and after giving actual and pro forma effect to the Requested
Distribution, Brightpoint is and will be Solvent.
IN WITNESS WHEREOF, Brightpoint has caused this Notice of
XXXXX Distribution to be executed and delivered by its duly authorized Chief
Financial Officer as of the Notice Date set forth above.
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH
AMERICA, INC., its general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
EXHIBIT 6.14(b)
TO
CREDIT AGREEMENT
FORM OF BPI DISTRIBUTION NOTICE
Reference is made to that certain Credit Agreement dated as of October
31, 2001 by and among Brightpoint North America L.P. ("Brightpoint"), Wireless
Fulfillment Services LLC ("Wireless", together with Brightpoint, "Borrowers"),
the other Credit Parties named therein, General Electric Capital Corporation
("Agent") and all Lenders named therein (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Credit Agreement"). Capitalized terms used herein
without definition are so used as defined in the Credit Agreement.
[Brightpoint/Wireless] hereby gives notice, pursuant to Section 6.14 of
the Credit Agreement, of an intercompany [loan/advance] to Brightpoint, Inc. on
_________, _____ (the "Notice Date") in the amount of $_________ (the "Requested
Distribution").
[Brightpoint/Wireless] hereby certifies, pursuant to Section 6.14 of
the Credit Agreement, that on the Notice Date, [Average 30-Day Borrowing
Availability is $_________ and Borrowing Availability is $__________.] or
[Average 30-Day Borrowing Availability is $________, Borrowing Availability is
$__________ and for the [____________] period ending _________, ____ (the "Ratio
Period"), the Adjusted Fixed Charge Coverage Ratio exceeds 1.1:1.0 as indicated
below:
Adjusted Fixed Charge Coverage Ratio for the Ratio Period:
Free Cash Flow (A): $____________
Adjusted Fixed Charges (B):
Fixed Charges: $____________
BPI intercompany distributions: $____________
XXXXX Distributions: $____________
$____________
Adjusted Fixed Charge Coverage Ratio (A/B): _____________]
[Brightpoint/Wireless] hereby certifies that on the Notice Date set forth above,
and after giving effect to the Requested Distribution: (i) there exists and
there shall exist no Default or Event of Default under the Credit Agreement; and
(ii) each of the representations and warranties contained in the Credit
Agreement and the other Loan Documents is true and correct.
[Brightpoint/Wireless's] Chief Financial Officer hereby certifies that
at the time of and after giving actual and pro forma effect to the Requested
Distribution, [Brightpoint/Wireless] is and will be Solvent.
IN WITNESS WHEREOF, [Brightpoint/Wireless] has caused this BPI
Distribution Notice to be executed and delivered by its duly authorized Chief
Financial Officer as of the Notice Date set forth above.
[____________________________]
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT 9.1(A)
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Agreement") is made as of ________,
200_ by and between __________________________________ ("Assignor Lender") and
________________________ ("Assignee Lender") and acknowledged and consented to
by GENERAL ELECTRIC CAPITAL CORPORATION, as agent ("Agent"). All capitalized
terms used in this Agreement and not otherwise defined herein will have the
respective meanings set forth in the Credit Agreement as hereinafter defined.
RECITALS:
WHEREAS, Brightpoint North America L.P., a Delaware limited partnership
("Brightpoint'), Wireless Fulfillment Services LLC, a California limited
liability company ("Wireless", together with Brightpoint, "Borrowers"), the
other Credit Parties named therein, Agent, Assignor Lender and other Persons
signatory thereto as Lenders have entered into that certain Credit Agreement
dated as of ________, 2001 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") pursuant to which Assignor
Lender has agreed to make certain Loans to, and incur certain Letter of Credit
Obligations for, Borrowers;
WHEREAS, Assignor Lender desires to assign to Assignee Lender [all/a
portion] of its interest in the Loans (as described below), the Letter of Credit
Obligations and the Collateral and to delegate to Assignee Lender [all/a
portion] of its Revolving Loan Commitments and other duties with respect to such
Loans, Letter of Credit Obligations and Collateral;
WHEREAS, Assignee Lender desires to become a Lender under the Credit
Agreement and to accept such assignment and delegation from Assignor Lender; and
WHEREAS, Assignee Lender desires to appoint Agent to serve as agent for
Assignee Lender under the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions, and covenants herein contained, Assignor Lender and Assignee Lender
agree as follows:
1. ASSIGNMENT, DELEGATION, AND ACCEPTANCE
1.1. Assignment. Assignor Lender hereby transfers and assigns to
Assignee Lender, without recourse and without representations or warranties of
any kind (except as set forth in Section 3.2), [all/such percentage] of Assignor
Lender's right, title, and interest in the Revolving Loan, Letter of Credit
Obligations, Loan Documents and Collateral as will result in Assignee Lender
having as of the Effective Date (as hereinafter defined) a Pro Rata Share
thereof, as follows:
Assignee Lender's Loans Principal Amount Pro Rata Share
----------------------- ---------------- --------------
Revolving Loan $____________ ____%
1.2. Delegation. Assignor Lender hereby irrevocably assigns and
delegates to Assignee Lender [all/a portion] of its Revolving Loan Commitments
and its other duties and obligations as a Lender under the Loan Documents
equivalent to [100%/___%] of Assignor Lender's Revolving Loan Commitment (such
percentage representing a commitment of $ ___________).
1.3. Acceptance by Assignee Lender. By its execution of this Agreement,
Assignee Lender irrevocably purchases, assumes and accepts such assignment and
delegation and agrees to be a Lender with respect to the delegated interest
under the Loan Documents and to be bound by the terms and conditions thereof. By
its execution of this Agreement, Assignor Lender agrees, to the extent provided
herein, to relinquish its rights and be released from its obligations and duties
under the Credit Agreement.
1.4. Effective Date. Such assignment and delegation by Assignor Lender
and acceptance by Assignee Lender will be effective and Assignee Lender will
become a Lender under the Loan Documents as of the date of this Agreement
("Effective Date") and upon payment of the Assigned Amount and the Assignment
Fee (as each term is defined below).
2. INITIAL PAYMENT AND DELIVERY OF NOTES
2.1. Payment of the Assigned Amount. Assignee Lender will pay to
Assignor Lender, in immediately available funds, not later than 11:00 a.m.
(Chicago time) on the Effective Date, an amount equal to its Pro Rata Share of
the then outstanding principal amount of the Loans as set forth above in Section
1.1 together with accrued interest, fees and other amounts as set forth on
Schedule 2.1 (the "Assigned Amount").
2.2. Payment of Assignment Fee. Assignor Lender and/or Assignee Lender
will pay to Agent, for its own account in immediately available funds, not later
than 11:00 a.m. (Chicago time) on the Effective Date, the assignment fee in the
amount of $3,500 (the "Assignment Fee") as required pursuant to Section 9.1(a)
of the Credit Agreement.
2.3. Execution and Delivery of Notes. Following payment of the Assigned
Amount and the Assignment Fee, Assignor Lender will deliver to Agent the Notes
previously delivered to Assignor Lender for redelivery to Borrowers and Agent
will obtain from Borrowers for delivery to [Assignor Lender and] Assignee
Lender, new executed Notes evidencing Assignee Lender's [and Assignor Lender's
respective] Pro Rata Share[s] in the Loans after giving effect to the assignment
described in Section 1. Each new Note will be issued in the aggregate maximum
principal amount of the Revolving Loan Commitment [of the Lender to whom such
Note is issued] OR [the Assignee Lender].
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1. Assignee Lender's Representations, Warranties and Covenants.
Assignee Lender hereby represents, warrants, and covenants the following to
Assignor Lender and Agent:
-2-
(a) This Agreement is a legal, valid, and binding agreement of
Assignee Lender, enforceable according to its terms;
(b) The execution and performance by Assignee Lender of its
duties and obligations under this Agreement and the Loan Documents will
not require any registration with, notice to, or consent or approval by
any Governmental Authority;
(c) Assignee Lender is familiar with transactions of the kind
and scope reflected in the Loan Documents and in this Agreement;
(d) Assignee Lender has made its own independent investigation
and appraisal of the financial condition and affairs of each Credit
Party, has conducted its own evaluation of the Loans and Letter of
Credit Obligations, the Loan Documents and each Credit Party's
creditworthiness, has made its decision to become a Lender to Borrowers
under the Credit Agreement independently and without reliance upon
Assignor Lender or Agent, and will continue to do so;
(e) Assignee Lender is entering into this Agreement in the
ordinary course of its business, and is acquiring its interest in the
Loans and Letter of Credit Obligations for its own account and not with
a view to or for sale in connection with any subsequent distribution;
provided, however, that at all times the distribution of Assignee
Lender's property shall, subject to the terms of the Credit Agreement,
be and remain within its control;
(f) No future assignment or participation granted by Assignee
Lender pursuant to Section 9.1 of the Credit Agreement will require
Assignor Lender, Agent, or Borrower to file any registration statement
with the Securities and Exchange Commission or to apply to qualify
under the blue sky laws of any state;
(g) Assignee Lender has no loans to, written or oral
agreements with, or equity or other ownership interest in any Credit
Party;
(h) Assignee Lender will not enter into any written or oral
agreement with, or acquire any equity or other ownership interest in,
any Credit Party without the prior written consent of Agent; and
(i) As of the Effective Date, Assignee Lender (i) is entitled
to receive payments of principal and interest in respect of the
Obligations without deduction for or on account of any taxes imposed by
the United States of America or any political subdivision thereof, (ii)
is not subject to capital adequacy or similar requirements under
Section 1.16(a) of the Credit Agreement, (iii) does not require the
payment of any increased costs under Section 1.16(b) of the Credit
Agreement, and (iv) is not unable to fund LIBOR Loans under Section
1.16(c) of the Credit Agreement and Assignee Lender will indemnify
Agent from and against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, or expenses that result
from Assignee Lender's failure to fulfill its obligations under the
terms of Section 1.15(c) of the Credit Agreement or from any other
inaccuracy in the foregoing.
3.2. Assignor Lender's Representations, Warranties and Covenants.
Assignor Lender hereby represents, warrants and covenants the following to
Assignee Lender:
(a) Assignor Lender is the legal and beneficial owner of the
Assigned Amount;
(b) This Agreement is a legal, valid and binding agreement of
Assignor Lender, enforceable according to its terms;
-3-
(c) The execution and performance by Assignor Lender of its
duties and obligations under this Agreement and the Loan Documents will
not require any registration with, notice to or consent or approval by
any Governmental Authority;
(d) Assignor Lender has full power and authority, and has
taken all action necessary to execute and deliver this Agreement and to
fulfill the obligations hereunder and to consummate the transactions
contemplated hereby;
(e) Assignor Lender is the legal and beneficial owner of the
interests being assigned hereby, free and clear of any adverse claim,
lien, encumbrance, security interest, restriction on transfer, purchase
option, call or similar right of a third party; and
(f) This Assignment by Assignor Lender to Assignee Lender
complies, in all material respects, with the terms of the Loan
Documents.
4. LIMITATIONS OF LIABILITY
Neither Assignor Lender (except as provided in Section 3.2) nor Agent
makes any representations or warranties of any kind, nor assumes any
responsibility or liability whatsoever, with regard to (a) the Loan Documents or
any other document or instrument furnished pursuant thereto or the Loans, Letter
of Credit Obligations or other Obligations, (b) the creation, validity,
genuineness, enforceability, sufficiency, value or collectibility of any of
them, (c) the amount, value or existence of the Collateral, (d) the perfection
or priority of any Lien upon the Collateral, or (e) the financial condition of
any Credit Party or other obligor or the performance or observance by any Credit
Party of its obligations under any of the Loan Documents. Neither Assignor
Lender nor Agent has or will have any duty, either initially or on a continuing
basis, to make any investigation, evaluation, appraisal of, or any
responsibility or liability with respect to the accuracy or completeness of, any
information provided to Assignee Lender which has been provided to Assignor
Lender or Agent by any Credit Party. Nothing in this Agreement or in the Loan
Documents shall impose upon the Assignor Lender or Agent any fiduciary
relationship in respect of the Assignee Lender.
5. FAILURE TO ENFORCE
No failure or delay on the part of Agent or Assignor Lender in the
exercise of any power, right, or privilege hereunder or under any Loan Document
will impair such power, right, or privilege or be construed to be a waiver of
any default or acquiescence therein. No single or partial exercise of any such
power, right, or privilege will preclude further exercise thereof or of any
other right, power, or privilege. All rights and remedies existing under this
Agreement are cumulative with, and not exclusive of, any rights or remedies
otherwise available.
6. NOTICES
Unless otherwise specifically provided herein, any notice or other
communication required or permitted to be given will be in writing and addressed
to the respective party as set forth below its signature hereunder, or to such
other address as the party may designate in writing to the other.
7. AMENDMENTS AND WAIVERS
No amendment, modification, termination, or waiver of any provision of
this Agreement will be effective without the written concurrence of Assignor
Lender, Agent and Assignee Lender.
-4-
8. SEVERABILITY
Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law. In the event
any provision of this Agreement is or is held to be invalid, illegal, or
unenforceable under applicable law, such provision will be ineffective only to
the extent of such invalidity, illegality, or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of the
Agreement. In addition, in the event any provision of or obligation under this
Agreement is or is held to be invalid, illegal, or unenforceable in any
jurisdiction, the validity, legality, and enforceability of the remaining
provisions or obligations in any other jurisdictions will not in any way be
affected or impaired thereby.
9. SECTION TITLES
Section and Subsection titles in this Agreement are included for
convenience of reference only, do not constitute a part of this Agreement for
any other purpose, and have no substantive effect.
10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
11. APPLICABLE LAW
THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE.
12. COUNTERPARTS
This Agreement and any amendments, waivers, consents, or supplements
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which, when so executed and delivered, will be
deemed an original and all of which shall together constitute one and the same
instrument.
[signature page follows]
-5-
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
ASSIGNEE LENDER: ASSIGNOR LENDER:
_________________________________ __________________________________________
By:______________________________ By:_______________________________________
Title:___________________________ Title:____________________________________
Notice Address: Notice Address:
_________________________________ __________________________________________
_________________________________ __________________________________________
_________________________________ __________________________________________
ACKNOWLEDGED AND CONSENTED TO:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:______________________________
Title:___________________________
SCHEDULE 2.1
Assignor Lender's Loans
Principal Amount
----------------
Revolving Loan $
----------------
Subtotal $
----------------
Accrued Interest $
----------------
Unused Line Fee $
----------------
Other + or - $
----------------
Total $
================
All determined as of the Effective Date.
EXHIBIT B-1
APPLICATION FOR IRREVOCABLE STANDBY LETTER OF CREDIT
TO: GENERAL ELECTRIC CAPITAL CORPORATION
Date
L/C No.
(Bank Use Only)
The undersigned Applicant hereby requests General Electric Capital Corporation
("GE Capital") to issue and transmit by:
Teletransmission Mail Overnight Courier Other, Explain______
the Standby Letter of Credit (the "Credit") substantially as set forth below. In
issuing the Credit, GE Capital is expressly authorized to make such changes from
the terms hereinbelow set forth as GE Capital, in its sole discretion, may deem
advisable.
--------------------------------------------------------------------- --------------------------------------------------------------
Applicant (Full Name and Address) Advising Bank: First Union National Bank
0 Xxxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Standby Letters of Credit
--------------------------------------------------------------------- --------------------------------------------------------------
Beneficiary (Full Name and Address) Currency and Amount in Figures:
Currency and Amount in Words:
--------------------------------------------------------------
Expiration Date
--------------------------------------------------------------
* SPECIAL INSTRUCTIONS
Is EVERGREEN language required? Yes No
If yes, what is the number of days notification required for
customary non-renewal notice?
Thirty days Sixty Days Ninety days Other
------------------------------------------------------------------------------------------------------------------------------------
Charges: GE Capital's charges are for our account, all other charges are to be paid by beneficiary.
------------------------------------------------------------------------------------------------------------------------------------
Credit to be available to payment against Beneficiary's draft(s) at sight drawn
on GE Capital or its correspondent at GE Capital's option accompanied by the
following documents:
Statement, purportedly signed by the Beneficiary, reading as follows (please
state below exact wording to appear on the statement):
Other Documents
Special Conditions
Issue substantially in form of attached specimen. (Specimen must also be signed
by applicant)
--------------------------------------------------------------------------------
Complete only when the Beneficiary (Foreign Bank, or other Financial
Institution) is to issue its undertaking based on this Credit.
Request Beneficiary to issue and deliver their (specify the type of
undertaking)_______________________________________________________________
in favor of________________________________________________________________
for an amount not exceeding the amount specified above, effective
immediately relative to (specify contract number or other pertinent
reference)_________________________________________________________________
___________________________________________________________________________
to expire on __________________. (This date must be at least 15 days prior
to the expiry date indicated above). It is understood that if the Credit is
issued in favor of any bank or other financial or commercial entity which
has issued or is to issue an undertaking on behalf of the Applicant of the
Credit in connection with the Credit, the Applicant hereby agrees to remain
liable under the Master Agreement and this Application in respect of the
Credit (even after its expiry date) until GE Capital is released by such
bank or entity.
--------------------------------------------------------------------------------
Each Applicant signing below affirms that it has fully read and agrees to this
Application. IN CONSIDERATION OF GE CAPITAL'S ISSUANCE OF THE CREDIT, THE
APPLICANT AGREES TO BE BOUND BY THE MASTER AGREEMENT FOR STANDBY LETTERS OF
CREDIT BETWEEN APPLICANT AND GE CAPITAL (THE "MASTER AGREEMENT"), THE TERMS OF
WHICH ARE INCORPORATED BY REFERENCE. All actions to be taken by GE Capital
hereunder or in connection with any Credit may be taken by First Union National
Bank or another bank designated by GE Capital as GE Capital's agent.
(Note: If a bank, trust company, or other financial institution signs as
Applicant for its customer, or if two Applicants jointly apply, both parties
should sign below). Documents may be forwarded to you by the Beneficiary, or the
negotiating bank, in one mail. You may forward documents to us or our
customhouse broker, if specified below, in one mail. We understand and agree
that this Credit will be subject to the International Standby Practices,
International Chamber of Commerce Publication No. 590 ("ISP98").
_________________________________ _________________________________
(Print or type name of Applicant) (Print or type name of Applicant)
_________________________________ _________________________________
(Address) (Address)
_________________________________ _________________________________
_________________________________ _________________________________
Authorized Signature (Title) Authorized Signature (Title)
_________________________________ _________________________________
Authorized Signature (Title) Authorized Signature (Title)
Customer Contact
________________________________________________________________________________
GE CAPITAL USE ONLY
(NOTE: Application will NOT be processed if this section is not complete.)
Approved:__________________ City: ____________________ Date:__________________
___________________________ Telephone:________________
(Print name and title)
Exhibit B-2
[GE CAPITAL LOGO] GE CAPITAL
APPLICATION FOR
DOCUMENTARY LETTER OF CREDIT
DATE
Dear Sir/Madam:
The undersigned hereby requests General Electric Capital Corporation ("GE
CAPITAL") to arrange for GE Capital Trade Services, Ltd. (the "Issuer"), to open
the irrevocable Letter of Credit via:
[ ] Air Mail [ ] Short Teletransmission [ ] Full Teletransmission
(Details by Air Mail) (Operative Transmission)
In Favor of __________________ (Beneficiary) at____________________________________________________ (address)
For Account of________________ (Applicant) at______________________________________________________ (address)
up to an aggregate amount of___________________ available by draft at ______________________ for [ ] 100% [ ]___ % of the invoice
value, drawn at the Issuer's option, on the Issuer or its correspondent, and presented not later than_________________________
(credit expiration date)
DOCUMENTS REQUIRED AS INDICATED BY "X"
[ ] Commercial Invoice_____________________________________________________________________________________________________________
[ ] U.S. Special Customs Form #5515________________________________________________________________________________________________
[ ] Insurance Policy/Certificate/Address___________________________________________________________________________________________
[ ] _______________________________________________________________________________________________________________________________
[ ] Packing List___________________________________________________________________________________________________________________
[ ] Certificate of Origin__________________________________________________________________________________________________________
[ ] Certificate of Fumigation______________________________________________________________________________________________________
[ ] Other Documents________________________________________________________________________________________________________________
[ ] Air Way Xxxx consigned to______________________________________________________________________________________________________
[ ] Full set clean on board ocean Bills of Lading issued or endorsed to the order of First Union National Bank
[ ] marked "Freight [ ] Collect [ ] Prepaid" Latest Shipping Date__________________________________
Notify______________________________________________________________________________________________________________________________
Evidencing shipment of______________________________________________________________________________________________________________
(PLEASE MENTION COMMODITY ONLY, OMITTING DETAILS ON PRICE, GRADE, QUALITY, ETC.)
From ____________________________________________ To ____________________________________________________________________
Partial shipments [ ] are [ ] are not permitted. Transhipments [ ] are [ ] are not permitted.
Indicate shipping terms: (FOB, C&F, CIF) ___________________ Container shipments [ ] are [ ] are not permitted.
The negotiating bank, if any, is to be authorized to forward all documents in one registered airmail.
Documents must be presented for payment, acceptance or negotiation within _______days after the date of issuance of the Xxxx of
Lading or other shipping documents.
All banking charges outside USA are for account of [ ] Beneficiary [ ] Applicant
Applicant Telephone No.___________________________________________ Charge Account No. __________________________________________
The Master Agreement for Documentary Letters of Credit dated as of __________, 20___ between Applicant and GE Capital is
incorporated herein by reference.
Insurance to be effected by the undersigned if "Insurance Policy/Certificate" box is not checked.
SPECIAL INSTRUCTIONS:
_________________________________________________________________ ______________________________________________________________
Name of Applicant Authorized Signature and Title Date
Approved by:
_________________________________________________________________ ______________________________________________________________
GE Capital Unit and Region Official Signature and Title Date
SCHEDULE 1.1 (SECTION 1.1(a))
TO
CREDIT AGREEMENT
AGENT'S REPRESENTATIVE
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
DISCLOSURE SCHEDULE 1.4
TO CREDIT AGREEMENT
Sources and Uses; Funds Flow Memorandum
SOURCES:
General Electric Capital Corporation $19,937,080.51
==============
USES:
Bank One, Indiana N.A. - prior lender obligations $19,097,080.51
General Electric Capital Corporation - outstanding fees 530,000.00
Winston & Xxxxxx - legal fees 85,000.00
LaSalle National Bank N.A. - closing fees 150,000.00
National City Bank of Indiana - closing fees 75,000.00
--------------
Total Uses $19,937,080.51
==============
DISCLOSURE SCHEDULE 1.6
TO CREDIT AGREEMENT
Account Debtors with Common Directors
Account Debtor: Interactive Intelligence, Inc.
DISCLOSURE SCHEDULE 3.1
TO CREDIT AGREEMENT
Corporate Existence; Compliance with Law
Credit Party Type of Entity State of Organization
------------ -------------- ---------------------
Brightpoint North America L.P. Limited Partnership Delaware
Wireless Fulfillment Services LLC Limited Liability Company California
Brightpoint, Inc. Corporation Delaware
Brightpoint North America, Inc. Corporation Indiana
Wireless Fulfillment Services Holdings, Inc. Corporation Delaware
Brightpoint International Ltd. Corporation Delaware
DISCLOSURE SCHEDULE 3.2
TO CREDIT AGREEMENT
Executive Offices, Collateral Locations, FEIN
BRIGHTPOINT NORTH AMERICA L.P.
Executive Office: 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Collateral Location(s): 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
0000 Xxxxxxx Xxxxx
Xxxx, Xxxxxx 00000
Federal Employer Identification Number: 00-0000000
WIRELESS FULFILLMENT SERVICES LLC
Executive Office: 000 Xxxxxxx Xxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Collateral Location(s): 000 Xxxxxxx Xxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Federal Employer Identification Number: 00-0000000
BRIGHTPOINT, INC.
Executive Office: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Federal Employer Identification Number: 00-0000000
BRIGHTPOINT NORTH AMERICA, INC.
Executive Office: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Federal Employer Identification Number: 00-0000000
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
Executive Office: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Federal Employer Identification Number: 00-0000000
BRIGHTPOINT INTERNATIONAL LTD.
Executive Office: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Federal Employer Identification Number: 00-0000000
DISCLOSURE SCHEDULE 3.4(A)
TO CREDIT AGREEMENT
Financial Statements
SEE ATTACHED.
Schedule 3.4(A)
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATING
BALANCE SHEETS
SEPTEMBER 30, 2001
(Amounts in thousands)
NORTH WIRELESS
AMERICA L.P. FULFILLMENT ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
ASSETS
Current assets:
Cash and cash equivalents ** ** $ -- $ 4,212
Accounts receivable ** ** -- 83,539
Inventories ** ** -- 75,664
Other current assets ** ** -- 48,984
------------ ----------- ------------ -----------
Total current assets ** ** -- 212,399
Property and equipment ** ** -- 31,472
Goodwill and other intangibles ** ** -- 14,945
Other assets ** ** -- 34,680
------------ ----------- ------------ -----------
Total assets ** ** $ -- $293,496
============ =========== ============ ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ** ** $ -- $111,411
Accrued expenses ** ** -- 21,799
------------ ----------- ------------ -----------
Total current liabilities ** ** -- 133,210
------------ ----------- ------------ -----------
Long-term debt:
Line of credit ** ** -- --
Subordinated notes ** ** -- --
------------ ----------- ------------ -----------
Total long-term debt ** ** -- --
------------ ----------- ------------ -----------
Stockholders' equity:
Common stock ** ** -- 196
Additional paid-in capital ** ** -- 70,694
Retained earnings (deficit) ** ** -- 89,396
Accumulated other comprehensive loss ** ** -- --
------------ ----------- ------------ -----------
Total stockholders' equity ** ** -- 160,286
------------ ----------- ------------ -----------
Total liabilities and stockholders' equity ** ** $ -- $293,496
============ =========== ============ ===========
Schedule 3.4(A)
** Portions of this document indicated by an ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATING
STATEMENTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 2001
(Amounts in thousands)
NORTH WIRELESS CORPORATE
AMERICA L.P. FULFILLMENT ALLOCATION ELIMINATIONS CONSOLIDATED
------------ ----------- ---------- ------------ ------------
Revenue ** ** ** $ (9,692) $ 481,905
Cost of revenue ** ** ** (9,692) 462,896
------- ------- ------- --------- ---------
Gross profit ** ** ** -- 19,009
Selling, general and administrative expenses ** ** ** -- 27,028
Unusual charges ** ** ** -- (1,920)
------- ------- ------- --------- ---------
Income from operations ** ** ** -- (6,099)
Interest expense ** ** ** -- 2,857
Other expenses (income), net ** ** ** -- 131
------- ------- ------- --------- ---------
Income (loss) before income taxes, minority
interest, accounting change and extraordinary gain ** ** ** -- (9,087)
Income taxes ** ** ** -- (3,709)
------- ------- ------- --------- ---------
Income (loss) before minority interest, accounting
change and extraordinary gain ** ** ** -- (5,378)
Minority interest ** ** ** -- --
------- ------- ------- --------- ---------
Income (loss) before accounting change, net of tax ** ** ** -- (5,378)
Extraordinary gain on extinguishment of debt, net of tax ** ** ** -- 4,623
------- ------- ------- --------- ---------
Net income (loss) ** ** ** $ -- $ (755)
======= ======= ======= ========= =========
Schedule 3.4(A)
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATING
PROFORMA - STATEMENTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 2001
(Amounts in thousands)
NORTH WIRELESS CORPORATE
AMERICA L.P. FULFILLMENT ALLOCATION ELIMINATIONS CONSOLIDATED
------------ ----------- ---------- ------------ ------------
Revenue ** ** ** $ (2,313) $ 174,231
Cost of revenue ** ** ** (2,313) 164,376
------- ------- ------- --------- ---------
Gross profit ** ** ** -- 9,855
Selling, general and administrative expenses ** ** ** -- 9,279
Unusual charges ** ** ** -- (1,920)
------- ------- ------- --------- ---------
Income from operations ** ** ** -- 2,496
Interest expense ** ** ** -- 686
Other expenses (income), net ** ** ** -- 192
------- ------- ------- --------- ---------
Income (loss) before income taxes, minority
interest, accounting change and extraordinary gain ** ** ** -- 1,618
Income taxes ** ** ** -- (103)
------- ------- ------- --------- ---------
Income (loss) before minority interest, accounting
change and extraordinary gain ** ** ** -- 1,721
Minority interest ** ** ** -- --
------- ------- ------- --------- ---------
Income (loss) before accounting change, net of tax ** ** ** -- 1,721
Extraordinary gain on extinguishment of debt, net of tax ** ** ** -- --
------- ------- ------- --------- ---------
Net income (loss) ** ** ** $ -- $ 1,721
======= ======= ======= ========= =========
DISCLOSURE SCHEDULE 3.4(B)
TO CREDIT AGREEMENT
Pro Forma
SEE ATTACHED.
Schedule 3.4(B)
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATING
BALANCE SHEETS
SEPTEMBER 30, 2001
(Amounts in thousands)
NORTH WIRELESS
AMERICA L.P. FULFILLMENT ELIMINATIONS CONSOLIDATED
------------ ----------- ------------ ------------
ASSETS
Current assets:
Cash and cash equivalents ** ** $ -- $ 4,212
Accounts receivable ** ** -- 83,539
Inventories ** ** -- 75,664
Other current assets ** ** -- 48,984
------------ ----------- ------------ -----------
Total current assets ** ** -- 212,399
Property and equipment ** ** -- 31,472
Goodwill and other intangibles ** ** -- 14,945
Other assets ** ** -- 34,680
------------ ----------- ------------ -----------
Total assets ** ** $ -- $293,496
============ =========== ============ ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ** ** $ -- $111,411
Accrued expenses ** ** -- 21,799
------------ ----------- ------------ -----------
Total current liabilities ** ** -- 133,210
------------ ----------- ------------ -----------
Long-term debt:
Line of credit ** ** -- --
Subordinated notes ** ** -- --
------------ ----------- ------------ -----------
Total long-term debt ** ** -- --
------------ ----------- ------------ -----------
Stockholders' equity:
Common stock ** ** -- 196
Additional paid-in capital ** ** -- 70,694
Retained earnings (deficit) ** ** -- 89,396
Accumulated other comprehensive loss ** ** -- --
------------ ----------- ------------ -----------
Total stockholders' equity ** ** -- 160,286
------------ ----------- ------------ -----------
Total liabilities and stockholders' equity ** ** $ -- $293,496
============ =========== ============ ===========
Schedule 3.4(B)
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATING
STATEMENTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 2001
(Amounts in thousands)
NORTH WIRELESS CORPORATE
AMERICA L.P. FULFILLMENT ALLOCATION ELIMINATIONS CONSOLIDATED
------------ ----------- ---------- ------------ ------------
Revenue ** ** ** $ (2,313) $ 174,231
Cost of revenue ** ** ** (2,313) 164,376
------- ------- ------- --------- ---------
Gross profit ** ** ** -- 9,855
Selling, general and administrative expenses ** ** ** -- 9,279
Unusual charges ** ** ** -- (1,920)
------- ------- ------- --------- ---------
Income from operations ** ** ** -- 2,496
Interest expense ** ** ** -- 686
Other expenses (income), net ** ** ** -- 192
------- ------- ------- --------- ---------
Income (loss) before income taxes, minority
interest, accounting change and extraordinary gain ** ** ** -- 1,618
Income taxes ** ** ** -- (103)
------- ------- ------- --------- ---------
Income (loss) before minority interest, accounting
change and extraordinary gain ** ** ** -- 1,721
Minority interest ** ** ** -- --
------- ------- ------- --------- ---------
Income (loss) before accounting change, net of tax ** ** ** -- 1,721
Extraordinary gain on extinguishment of debt, net of tax ** ** ** -- --
------- ------- ------- --------- ---------
Net income (loss) ** ** ** $ -- $ 1,721
======= ======= ======= ========= =========
Schedule 3.4(B)
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATING
STATEMENTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 2001
(Amounts in thousands)
NORTH WIRELESS CORPORATE
AMERICA L.P. FULFILLMENT ALLOCATION ELIMINATIONS CONSOLIDATED
------------ ----------- ---------- ------------ ------------
Revenue ** ** ** $ (9,692) $ 481,905
Cost of revenue ** ** ** (9,692) 462,896
------- ------- ------- --------- ---------
Gross profit ** ** ** -- 19,009
Selling, general and administrative expenses ** ** ** -- 27,028
Unusual charges ** ** ** -- (1,920)
------- ------- ------- --------- ---------
Income from operations ** ** ** -- (6,099)
Interest expense ** ** ** -- 2,857
Other expenses (income), net ** ** ** -- 131
------- ------- ------- --------- ---------
Income (loss) before income taxes, minority
interest, accounting change and extraordinary gain ** ** ** -- (9,087)
Income taxes ** ** ** -- (3,709)
------- ------- ------- --------- ---------
Income (loss) before minority interest, accounting
change and extraordinary gain ** ** ** -- (5,378)
Minority interest ** ** ** -- --
------- ------- ------- --------- ---------
Income (loss) before accounting change, net of tax ** ** ** -- (5,378)
Extraordinary gain on extinguishment of debt, net of tax ** ** ** -- 4,623
------- ------- ------- --------- ---------
Net income (loss) ** ** ** $ -- $ (755)
======= ======= ======= ========= =========
DISCLOSURE SCHEDULE 3.4(C)
TO CREDIT AGREEMENT
Projections
SEE ATTACHED.
Schedule 3.4(C)
** Portions of this document indicated by an ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATED
STATEMENTS OF OPERATIONS
FORECAST 2002
(AMOUNTS IN THOUSANDS)
JANUARY FEBRUARY MARCH APRIL MAY JUNE
------- -------- ----- ----- --- ----
Revenue ** ** ** ** ** **
Cost of revenue ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Gross profit ** ** ** ** ** **
Selling, general and administrative expenses ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Income from operations ** ** ** ** ** **
Interest expense on additional borrowings ** ** ** ** ** **
Interest expense (forecasted XXXXX expense) ** ** ** ** ** **
Other expenses (income), net ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Income (loss) before income taxes, minority
interest, accounting change and extraordinary gain ** ** ** ** ** **
Income taxes ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Income (loss) before minority interest, accounting
change and extraordinary gain ** ** ** ** ** **
Minority interest ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Income (loss) before accounting change, net of tax ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Extraordinary gain on extinguishment of debt, net of tax ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Net income (loss) ** ** ** ** ** **
======= ======= ======= ======= ======= =======
EPS (before extraordinary gain) ** ** ** ** ** **
EPS (Quarterly)
Input Values
Capital Expenditures ** ** ** ** ** **
Depreciation ** ** ** ** ** **
Interest - Budget ** ** ** ** ** **
Amortization (XXXXX) ** ** ** ** ** **
Amortization ** ** ** ** ** **
Rent expense ** ** ** ** ** **
Number of shares ** ** ** ** ** **
Interest on additional borrowings & term debt ** ** ** ** ** **
EBITDA ** ** ** ** ** **
Quarterly EBITDA ** **
Prior 3 quarters EBITDA ** **
------- -------
Rolling 4 quarters EBITDA ** **
Quarterly Capex ** **
Prior 3 quarters Capex ** **
------- -------
Rolling 4 quarters Capex ** **
Quarterly Interest (net of XXXXX xxxxx.) ** **
Prior 3 quarters Interest (net of XXXXX amort.) ** **
------- -------
Rolling 4 quarters Interest (net of XXXXX xxxxx.) ** **
Quarterly Income taxes ** **
Prior 3 quarters Income taxes ** **
------- -------
Rolling 4 quarters Income taxes ** **
2002
JULY AUGUST SEPTEMBER OCTOBER NOVEMBER DECEMBER FULL YEAR
---- ------ --------- ------- -------- -------- ---------
Revenue ** ** ** ** ** ** **
Cost of revenue ** ** ** ** ** ** **
------- ------- ------- ------- ------- ------- -------
Gross profit ** ** ** ** ** ** **
Selling, general and administrative expenses ** ** ** ** ** ** **
------- ------- ------- ------- ------- ------- -------
Income from operations ** ** ** ** ** ** **
Interest expense on additional borrowings ** ** ** ** ** ** **
Interest expense (forecasted XXXXX expense) ** ** ** ** ** ** **
Other expenses (income), net ** ** ** ** ** ** **
------- ------- ------- ------- ------- ------- -------
Income (loss) before income taxes, minority
interest, accounting change and extraordinary gain ** ** ** ** ** ** **
Income taxes ** ** ** ** ** ** **
------- ------- ------- ------- ------- ------- -------
Income (loss) before minority interest, accounting
change and extraordinary gain ** ** ** ** ** ** **
Minority interest ** ** ** ** ** ** **
------- ------- ------- ------- ------- ------- -------
Income (loss) before accounting change, net of tax ** ** ** ** ** ** **
Extraordinary gain on extinguishment of debt, net of tax ** ** ** ** ** ** **
------- ------- ------- ------- ------- ------- -------
Net income (loss) ** ** ** ** ** ** **
======= ======= ======= ======= ======= ======= =======
EPS (before extraordinary gain) ** ** ** ** ** ** **
EPS (Quarterly)
Input Values
Capital Expenditures ** ** ** ** ** ** **
Depreciation ** ** ** ** ** ** **
Interest - Budget ** ** ** ** ** ** **
Amortization (XXXXX) ** ** ** ** ** ** **
Amortization ** ** ** ** ** ** **
Rent expense ** ** ** ** ** ** **
Number of shares ** ** ** ** ** ** **
Interest on additional borrowings & term debt ** ** ** ** ** ** **
EBITDA ** ** ** ** ** ** **
Quarterly EBITDA ** **
Prior 3 quarters EBITDA ** **
------- -------
Rolling 4 quarters EBITDA ** **
Quarterly Capex ** **
Prior 3 quarters Capex ** **
------- -------
Rolling 4 quarters Capex ** **
Quarterly Interest (net of XXXXX xxxxx.) ** **
Prior 3 quarters Interest (net of XXXXX amort.) ** **
------- -------
Rolling 4 quarters Interest (net of XXXXX xxxxx.) ** **
Quarterly Income taxes ** **
Prior 3 quarters Income taxes ** **
------- -------
Rolling 4 quarters Income taxes ** **
CONFIDENTIAL
Schedule 3.4(C)
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request
for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA - CONSOLIDATED
BALANCE SHEETS
FORECAST 2002
(AMOUNTS IN THOUSANDS)
FORECAST FORECAST FORECAST FORECAST FORECAST FORECAST
JANUARY FEBRUARY MARCH APRIL MAY JUNE
-------- -------- -------- -------- -------- --------
ASSETS
Current assets:
Cash and cash equivalents ** ** ** ** ** **
Accounts receivable ** ** ** ** ** **
Inventories ** ** ** ** ** **
Other current assets ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total current assets ** ** ** ** ** **
Property and equipment ** ** ** ** ** **
Goodwill and other intangibles ** ** ** ** ** **
Other assets ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total assets ** ** ** ** ** **
======= ======= ======= ======= ======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ** ** ** ** ** **
Accrued expenses ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total current liabilities ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Long-term debt:
Additional borrowings ** ** ** ** ** **
Term loan ** ** ** ** ** **
Multicurrency borrowings ** ** ** ** ** **
China borrowings ** ** ** ** ** **
Convertible notes ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total long-term debt ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Stockholders' equity:
Common stock ** ** ** ** ** **
Additional paid-in capital ** ** ** ** ** **
Retained earnings (deficit) ** ** ** ** ** **
Accumulated other comprehensive loss ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total stockholders' equity ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total liabilities and stockholders' equity ** ** ** ** ** **
======= ======= ======= ======= ======= =======
Days Sales Outstanding ** ** ** ** ** **
Days Inventory Outstanding ** ** ** ** ** **
Days Payable Outstanding ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Cash Conversion Cycle ** ** ** ** ** **
Formula Calculations:
Line of credit ** ** ** ** ** **
Letters of credit ** ** ** ** ** **
Letters of credit supporting China debt ** ** ** ** ** **
Permitted receivables financing ** ** ** ** ** **
0 xxxxxxx xxxxxxxx XXXXXX ** ** ** ** ** **
FORECAST FORECAST FORECAST FORECAST FORECAST FORECAST
JULY AUGUST SEPTEMBER OCTOBER NOVEMBER DECEMBER
-------- -------- --------- -------- -------- --------
ASSETS
Current assets:
Cash and cash equivalents ** ** ** ** ** **
Accounts receivable ** ** ** ** ** **
Inventories ** ** ** ** ** **
Other current assets ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total current assets ** ** ** ** ** **
Property and equipment ** ** ** ** ** **
Goodwill and other intangibles ** ** ** ** ** **
Other assets ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total assets ** ** ** ** ** **
======= ======= ======= ======= ======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable ** ** ** ** ** **
Accrued expenses ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total current liabilities ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Long-term debt:
Additional borrowings ** ** ** ** ** **
Term loan ** ** ** ** ** **
Multicurrency borrowings ** ** ** ** ** **
China borrowings ** ** ** ** ** **
Convertible notes ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total long-term debt ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Stockholders' equity:
Common stock ** ** ** ** ** **
Additional paid-in capital ** ** ** ** ** **
Retained earnings (deficit) ** ** ** ** ** **
Accumulated other comprehensive loss ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total stockholders' equity ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Total liabilities and stockholders' equity ** ** ** ** ** **
======= ======= ======= ======= ======= =======
Days Sales Outstanding ** ** ** ** ** **
Days Inventory Outstanding ** ** ** ** ** **
Days Payable Outstanding ** ** ** ** ** **
------- ------- ------- ------- ------- -------
Cash Conversion Cycle ** ** ** ** ** **
Formula Calculations:
Line of credit ** ** ** ** ** **
Letters of credit ** ** ** ** ** **
Letters of credit supporting China debt ** ** ** ** ** **
Permitted receivables financing ** ** ** ** ** **
0 xxxxxxx xxxxxxxx XXXXXX ** ** ** ** ** **
CONFIDENTIAL
DISCLOSURE SCHEDULE 3.6
TO CREDIT AGREEMENT
Ownership of Property; Liens
Owned Real Estate
The Loan Parties do not currently own any Real Estate in fee simple.
Leased Real Estate
The Loan Parties listed below lease Real Estate as indicated:
1. Brightpoint North America L.P.: 000 Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx
00000;
2. Brightpoint North America L.P.: 0000 Xxxxxxx Xxxxx, Xxxx, Xxxxxx 00000; and
3. Wireless Fulfillment Services LLC: 000 Xxxxxxx Xxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000.
Purchase Options, etc.
There are no purchase options, rights of first refusal or other similar
contractual rights pertaining to any Real Estate, except as set forth in the
lease agreements and related documents.
DISCLOSURE SCHEDULE 3.7
TO CREDIT AGREEMENT
Labor Matters
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information.
The Borrowers have not created any stock option plans. However, certain of their
respective employees are permitted to participate in the BPI 1994 and 1996 Stock
Option Plans, copies of which have been delivered to Agent prior to the Closing
Date.
The Borrowers are parties to management agreements, consulting agreements,
employment agreements, stock option plans and similar plans in substantially the
forms provided to Agent prior to the Closing Date. It is the Borrowers' standard
practice to require each employee to execute and delivery an employment
agreement. The following lists the Borrowers' current employees:
BRIGHTPOINT INDIANAPOLIS EMPLOYEE LIST
as of October 25, 2001
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Agent Sales 101101 ** 12/4/00 12/4/00 Sales Representative **
Agent Sales 101101 ** 10/5/98 10/5/98 Sales Representative **
Agent Sales 101101 ** 2/21/00 2/21/00 Sales Representative **
Agent Sales 101101 ** 3/17/97 3/30/98 Sales Representative **
Agent Sales 101101 ** 10/8/01 10/8/01 Sales Representative **
Agent Sales 101101 ** 6/8/98 4/16/01 Administrative Assistant **
Agent Sales 101101 ** 3/19/01 3/19/01 Sales Representative **
Agent Sales 101101 ** 5/29/01 5/29/01 Sales Representative **
Agent Sales 101101 ** 7/24/00 7/24/00 Sales Representative **
Agent Sales 101101 ** 1/29/93 5/1/99 Administrative Supervisor **
Agent Sales 101101 ** 7/29/96 2/5/01 Director of Agent Sales **
Agent Sales 101101 ** 10/23/00 10/23/00 Sales Representative **
Agent Sales 101101 ** 5/29/01 5/29/01 Sales Representative **
Agent Sales 101101 ** 10/15/01 10/15/01 Sales Representative **
Agent Sales 101101 ** 8/10/98 8/10/98 Sales Representative **
Agent Sales 101101 ** 7/19/99 6/18/01 Sales Manager **
Agent Sales 101101 ** 1/24/00 7/1/01 Sales Manager **
Agent Sales 101101 ** 1/4/00 1/4/00 Sales Representative **
Agent Sales 101101 ** 3/2/98 4/1/99 Sales Manager **
Agent Sales 101101 ** 9/18/00 9/18/00 Sales Representative **
Agent Sales 101101 ** 6/25/01 6/25/01 Sales Representative **
Agent Sales 101101 ** 2/19/01 2/19/01 Sales Representative **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Agent Sales 101101 ** 11/6/00 11/6/00 Sales Representative **
Agent Sales 101101 ** 8/13/01 8/13/01 Sales Representative **
Agent Sales 101101 ** 8/27/90 5/2/97 V.P. Agent Dealer Sales **
Agent Sales 101101 ** 1/16/95 3/3/01 National Accounts Manager **
Agent Sales 101101 ** 5/29/01 5/29/01 Sales Representative **
Agent Sales 101101 ** 1/29/01 1/29/01 Sales Representative **
Agent Sales 101101 ** 7/28/97 3/5/01 National Accounts Manager **
Carrier 101102 ** 3/16/98 3/16/98 Regional Account Manager **
Carrier 101102 ** 9/23/91 10/18/99 VP, Carrier Sales **
Carrier 101102 ** 8/3/98 7/12/99 National Acct. Project Coordinator **
Carrier 101102 ** 11/8/99 4/1/01 National Accounts Manager **
Carrier 101102 ** 1/30/95 5/1/97 Regional Account Manager **
Carrier 101102 ** 6/30/97 11/1/99 Regional Account Manager **
Carrier 101102 ** 3/2/98 6/1/99 Regional Account Manager **
Carrier 101102 ** 8/19/96 7/1/01 National Accounts Manager **
Marketing 101104 ** 7/9/01 7/9/01 Director, Wireless Data Solutions **
Marketing 101104 ** 12/4/00 5/3/01 Director of Marketing **
Marketing 101104 ** 1/4/00 7/9/01 Manager of Marketing Comm. **
Marketing 101104 ** 8/28/95 6/11/01 Director of E-Business **
Purchasing 101105 ** 1/16/95 1/11/98 Purchasing Coordinator **
Purchasing 101105 ** 11/4/96 1/1/99 Director of Purchasing **
Purchasing 101105 ** 1/31/00 1/31/00 Inventory Forecast Manager **
Purchasing 101105 ** 11/15/99 2/14/00 Purchasing Assistant **
Purchasing 101105 ** 9/17/01 9/17/01 Sr. Purchasing Director **
Purchasing 101105 ** 4/26/99 5/1/01 Cost Accountant **
Purchasing 101105 ** 8/23/01 8/23/01 Purchasing Coordinator **
Customer Service 101107 ** 8/23/99 8/20/01 Customer Service Specialist **
Customer Service 101107 ** 4/26/99 3/1/00 Customer Service Manager **
Customer Service 101107 ** 8/30/99 9/18/00 Customer Service Supervisor **
Customer Service 101107 ** 11/6/00 8/20/01 Order Processing Specialist **
Customer Service 101107 ** 10/2/00 1/8/01 Customer Service Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Customer Service 101107 ** 9/25/00 12/30/00 Order Processing Specialist **
Customer Service 101107 ** 7/19/99 1/22/01 Customer Service Specialist **
Customer Service 101107 ** 3/19/01 9/3/01 Customer Service Supervisor **
Customer Service 101107 ** 10/23/00 10/23/00 Customer Service Specialist **
Procurement 101108 ** 7/1/92 11/30/98 Director of Procurement **
Procurement 101108 ** 9/16/97 4/22/00 Supply Coordinator **
National Accounts 101109 ** 1/17/00 9/4/01 National Acct Coordinator Nokia **
National Accounts 101109 ** 1/19/97 7/10/00 Director, National Accounts Qwest **
National Accounts 101109 ** 4/21/97 12/4/00 Project Manager **
National Accounts 101109 ** 12/14/98 3/7/00 National Accounts Manager **
National Accounts 101109 ** 12/4/00 12/4/00 National Accounts Manager **
National Accounts 101109 ** 7/10/00 9/13/01 V.P., Business Development **
National Accounts 101109 ** 9/18/00 7/2/01 Director, National Accounts NAMS **
National Accounts 101109 ** 7/15/96 3/30/00 Project Manager **
National Accounts 101109 ** 6/1/98 7/10/00 National Accounts Manager **
National Accounts 101109 ** 9/8/98 9/4/01 Production Planner, Sr. **
National Accounts 101109 ** 4/20/98 10/4/99 National Accounts Manager **
National Accounts 101109 ** 7/23/01 7/23/01 Integrations Manager **
Channel Development 101115 ** 8/27/01 8/27/01 Regional Channel Dvlpmt. Manager **
Channel Development 101115 ** 8/27/01 8/27/01 Regional Channel Dvlpmt Manager **
Channel Development 101115 ** 7/22/96 8/13/01 Regional Channel Dvlpmt. Manager **
Channel Development 101115 ** 7/5/00 8/13/01 Supervisor Channel Development **
Channel Development 101115 ** 6/18/01 8/13/01 Director, Channel Development **
Channel Development 101115 ** 8/27/01 8/27/01 Wireless Data Product Manager **
Nextel Sales 101118 ** 11/14/00 11/14/00 Nat. Sales Manager - Accessories **
Nextel Sales 101118 ** 11/27/00 2/5/01 Customer Service Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Nextel Sales 101118 ** 2/1/97 6/4/01 VP, National Accounts **
Nextel Sales 101118 ** 1/17/00 5/2/01 Department Coordinator **
Nextel Sales 101118 ** 8/9/99 10/17/00 Director National Accounts Nextel **
Nextel Sales 101118 ** 2/12/01 2/14/01 Customer Service Specialist **
Nextel Sales 101118 ** 2/7/00 2/14/01 Customer Service Supervisor **
Nextel Sales 101118 ** 10/25/99 2/5/01 Customer Service Specialist **
Nextel Sales 101118 ** 1/2/01 1/2/01 Customer Service Sales Rep. **
Nextel Sales 101118 ** 4/16/01 4/16/01 Customer Service Specialist **
Nextel Sales 101118 ** 11/27/00 11/27/00 National Acct. Project Coordinator **
Nextel Sales 101118 ** 1/31/00 4/23/01 Administrative Assistant **
Nextel Sales 101118 ** 12/11/00 2/5/01 Customer Service Specialist **
Nextel Sales 101118 ** 2/1/99 8/17/00 Project Manager **
Nextel Sales 101118 ** 3/29/99 4/2/01 Sales Operations Manager **
Nextel Sales 101118 ** 2/7/00 11/27/00 National Acct. Project Coordinator **
Nextel Sales 101118 ** 1/15/01 9/3/01 Customer Service Specialist **
Wireless VAR Channel 101120 ** 7/16/01 9/1/01 Sales Representative **
Continuous Improvement 101305 ** 8/17/98 12/3/00 Project Manager **
Continuous Improvement 101305 ** 2/15/99 3/22/01 Vice President Of Operations **
Continuous Improvement 101305 ** 12/15/97 10/23/00 Department Coordinator **
Continuous Improvement 101305 ** 6/23/97 1/8/01 Continuous Improvement Manager **
Continuous Improvement 101305 ** 7/20/98 3/22/01 Administrative Assistant **
Continuous Improvement 101305 ** 12/11/00 3/22/01 Project Manager **
Facilities 101306 ** 3/31/97 3/31/97 Director of Facilities **
Facilities 101306 ** 9/24/01 9/24/01 Facilities Maintenance Assistant **
Facilities 101306 ** 11/8/97 7/1/98 Facilities Maintenance Supervisor **
Facilities 101306 ** 9/4/01 9/4/01 Facility Service & Conference Clerk **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Facilities 101306 ** 6/14/99 6/14/99 Administrative Services Manager **
Facilities 101306 ** 1/1/01 1/2/01 Security and Safety Manager **
Facilities 101306 ** 1/31/00 1/31/00 Corporate Receptionist **
Facilities 101306 ** 8/16/99 2/5/01 Facilities Maintenance Supervisor **
Project Management 101311 ** 3/2/98 11/10/00 Test Engineer **
Project Management 101311 ** 1/20/97 9/25/00 Industrial Engineer **
Project Management 101311 ** 3/12/01 3/12/01 Vice President Of Operations **
Project Management 101311 ** 11/27/95 11/10/00 Technical Support Specialist **
Project Management 101311 ** 7/19/99 4/16/01 Software Engineer **
Project Management 101311 ** 8/4/97 7/2/01 Director Operations **
Project Management 101311 ** 3/29/99 11/10/00 Software Engineer **
Maintenance 101319 ** 1/10/00 2/7/00 Maintenance Mechanic **
Maintenance 101319 ** 9/17/01 9/17/01 Maintenance Mechanic **
Maintenance 101319 ** 9/5/00 9/5/00 Maintenance Mechanic **
Maintenance 101319 ** 12/2/99 2/7/00 Maintenance Manager **
Maintenance 101319 ** 12/13/99 5/29/00 Maintenance Mechanic **
Shipping - Indy 101322 ** 12/18/00 2/12/01 Production Assembler **
Shipping - Indy 101322 ** 6/1/98 2/23/01 Operations Supervisor **
Shipping - Indy 101322 ** 11/6/00 9/3/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 10/26/98 2/23/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 3/30/98 2/23/01 Warehouse Specialist TL **
Shipping - Indy 101322 ** 3/10/99 1/15/01 Warehouse Specialist TL **
Shipping - Indy 101322 ** 10/20/97 6/22/99 Warehouse Specialist **
Shipping - Indy 101322 ** 10/27/99 1/15/01 Operations Supervisor **
Shipping - Indy 101322 ** 11/30/98 1/15/01 Warehouse Specialist **
Shipping - Indy 101322 ** 11/6/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 10/16/00 4/18/01 Production Assembler **
Shipping - Indy 101322 ** 7/24/00 7/24/00 Warehouse Specialist **
Shipping - Indy 101322 ** 10/3/95 3/6/01 Operations Manager **
Shipping - Indy 101322 ** 3/16/98 2/23/01 Production Assembler TL **
Shipping - Indy 101322 ** 8/23/99 1/15/01 Production Assembler **
Shipping - Indy 101322 ** 10/16/00 10/16/00 Production Assembler **
Shipping - Indy 101322 ** 4/13/98 2/23/01 Warehouse Specialist TL **
Shipping - Indy 101322 ** 5/22/00 3/27/01 Cargo Shipping Specialist TL **
Shipping - Indy 101322 ** 12/20/99 7/22/01 Cargo Shipping Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Shipping - Indy 101322 ** 10/11/99 1/15/01 Production Assembler **
Shipping - Indy 101322 ** 7/24/00 7/24/00 Production Assembler **
Shipping - Indy 101322 ** 7/31/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 10/23/00 3/6/01 Operations Supervisor **
Shipping - Indy 101322 ** 7/24/00 7/24/00 Warehouse Specialist **
Shipping - Indy 101322 ** 12/13/99 3/13/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 1/10/00 1/10/00 Operations Supervisor **
Shipping - Indy 101322 ** 11/20/00 12/15/00 Production Assembler **
Shipping - Indy 101322 ** 4/5/99 8/1/00 Warehouse Specialist **
Shipping - Indy 101322 ** 3/3/99 2/23/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 4/12/99 2/23/01 Production Assembler **
Shipping - Indy 101322 ** 9/5/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 7/24/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 7/31/00 3/6/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 10/11/99 2/23/01 Production Assembler **
Shipping - Indy 101322 ** 12/4/00 2/12/01 Warehouse Specialist **
Shipping - Indy 101322 ** 12/4/00 12/4/00 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 6/28/99 2/23/01 Production Assembler TL **
Shipping - Indy 101322 ** 6/19/95 2/23/01 Warehouse Specialist TL **
Shipping - Indy 101322 ** 3/3/99 8/1/00 Warehouse Specialist TL **
Shipping - Indy 101322 ** 10/2/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 5/29/98 3/1/01 Warehouse Specialist **
Shipping - Indy 101322 ** 11/20/00 1/18/01 Warehouse Specialist **
Shipping - Indy 101322 ** 7/17/00 8/6/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 2/7/00 5/31/01 Warehouse Specialist **
Shipping - Indy 101322 ** 1/24/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 12/18/00 2/12/01 Warehouse Specialist **
Shipping - Indy 101322 ** 12/13/99 9/3/01 Sr. Operations Manager **
Shipping - Indy 101322 ** 6/3/96 8/1/00 Warehouse Specialist TL **
Shipping - Indy 101322 ** 6/5/00 6/5/00 Warehouse Specialist **
Shipping - Indy 101322 ** 12/20/99 2/23/01 Warehouse Specialist TL **
Shipping - Indy 101322 ** 10/16/00 2/23/01 Production Assembler **
Shipping - Indy 101322 ** 6/5/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 9/17/01 9/17/01 Operations Supervisor **
Shipping - Indy 101322 ** 1/15/96 2/23/01 Cargo Shipping Specialist TL **
Shipping - Indy 101322 ** 6/15/98 8/20/01 Operations Manager **
Shipping - Indy 101322 ** 12/4/00 7/23/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 12/18/00 12/18/00 Warehouse Specialist **
Shipping - Indy 101322 ** 12/18/00 3/6/01 Cargo Shipping Specialist **
Shipping - Indy 101322 ** 2/3/97 6/8/00 Shipping TL **
Shipping - Indy 101322 ** 12/18/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 10/2/00 2/23/01 Warehouse Specialist **
Shipping - Indy 101322 ** 11/6/00 7/23/01 Cargo Shipping Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Shipping - Indy 101322 ** 11/6/00 3/1/01 Cargo Shipping Specialist **
Receiving and Putaway - Indy 101323 ** 1/8/96 10/16/00 Receiving TL **
Receiving and Putaway - Indy 101323 ** 8/23/99 7/10/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 7/5/00 9/24/01 Receiving Help Desk Supervisor **
Receiving and Putaway - Indy 101323 ** 12/4/00 7/23/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 9/17/01 9/17/01 Receiving TL **
Receiving and Putaway - Indy 101323 ** 6/9/97 1/31/00 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 2/25/99 9/25/00 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 5/26/98 10/25/99 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 4/12/99 7/9/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 12/13/99 2/23/01 Inventory Control Specialist **
Receiving and Putaway - Indy 101323 ** 2/16/98 8/14/00 Operations Manager **
Receiving and Putaway - Indy 101323 ** 7/31/00 9/17/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 6/22/98 10/14/01 Quality Control Team Leader **
Receiving and Putaway - Indy 101323 ** 5/4/98 6/4/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 12/20/99 7/23/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 9/17/01 9/17/01 Receiving TL **
Receiving and Putaway - Indy 101323 ** 2/16/98 8/28/00 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 10/2/00 10/2/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 9/24/98 5/15/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 12/13/99 12/13/99 Material Handler **
Receiving and Putaway - Indy 101323 ** 12/6/99 10/14/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 6/1/98 9/11/00 Operations Supervisor **
Receiving and Putaway - Indy 101323 ** 8/11/97 6/21/99 Material Handler **
Receiving and Putaway - Indy 101323 ** 10/1/01 10/1/01 Receiving Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Receiving and Putaway - Indy 101323 ** 6/7/99 2/23/01 Operations Manager **
Receiving and Putaway - Indy 101323 ** 11/3/97 1/4/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 8/31/98 8/20/01 Operations Manager **
Receiving and Putaway - Indy 101323 ** 3/25/96 8/20/00 Operations Supervisor **
Receiving and Putaway - Indy 101323 ** 11/29/99 11/29/99 Material Handler **
Receiving and Putaway - Indy 101323 ** 6/1/99 7/8/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 7/10/00 7/10/00 Operations Manager **
Receiving and Putaway - Indy 101323 ** 5/30/00 2/12/01 Material Handler TL **
Receiving and Putaway - Indy 101323 ** 2/24/97 9/17/01 Receiving TL **
Receiving and Putaway - Indy 101323 ** 6/9/97 6/4/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 3/10/99 9/18/00 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 12/29/99 9/18/00 Receiving TL **
Receiving and Putaway - Indy 101323 ** 7/26/99 1/17/00 Material Handler TL **
Receiving and Putaway - Indy 101323 ** 4/20/98 10/27/00 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 5/21/01 5/21/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 10/1/01 10/1/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 9/17/01 9/17/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 3/6/00 3/6/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 10/2/00 7/23/01 Material Handler **
Receiving and Putaway - Indy 101323 ** 9/10/01 9/10/01 Operations Director **
Receiving and Putaway - Indy 101323 ** 12/13/99 12/13/99 Material Handler **
Receiving and Putaway - Indy 101323 ** 10/1/01 10/1/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 10/2/00 7/16/01 Material Handler TL **
Receiving and Putaway - Indy 101323 ** 11/22/99 7/20/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 8/18/97 9/10/01 Department Coordinator **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Receiving and Putaway - Indy 101323 ** 1/10/00 1/31/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 7/7/97 1/31/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 4/30/01 4/30/01 Director Operations **
Receiving and Putaway - Indy 101323 ** 9/19/01 9/19/01 Receiving Specialist **
Receiving and Putaway - Indy 101323 ** 10/18/99 11/6/00 Operations Supervisor **
Receiving and Putaway - Indy 101323 ** 12/13/99 12/13/99 Material Handler **
Receiving and Putaway - Indy 101323 ** 2/24/97 7/24/00 Receiving TL **
Receiving and Putaway - Indy 101323 ** 12/27/99 7/25/00 Material Handler **
Receiving and Putaway - Indy 101323 ** 3/16/99 12/13/99 Material Handler TL **
Kitting PCS- Indy 101325 ** 8/2/99 10/18/99 Production Assembler **
Kitting PCS- Indy 101325 ** 12/27/99 9/18/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 2/22/99 8/21/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 7/17/00 7/17/00 Production Assembler **
Kitting PCS- Indy 101325 ** 12/8/97 6/21/99 Operations Supervisor **
Kitting PCS- Indy 101325 ** 3/29/99 8/21/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 8/2/99 9/25/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 12/27/99 2/7/00 Production Assembler **
Kitting PCS- Indy 101325 ** 10/27/97 6/25/01 Operations Manager **
Kitting PCS- Indy 101325 ** 12/15/97 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 9/5/00 9/5/00 Production Assembler **
Kitting PCS- Indy 101325 ** 5/26/98 6/21/99 Production Assembler TL **
Kitting PCS- Indy 101325 ** 3/1/99 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 11/6/00 11/6/00 Production Assembler **
Kitting PCS- Indy 101325 ** 2/24/97 6/12/00 Production Assembler TL **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Kitting PCS- Indy 101325 ** 12/8/97 6/21/99 Production Assembler TL **
Kitting PCS- Indy 101325 ** 10/16/00 10/16/00 Production Assembler **
Kitting PCS- Indy 101325 ** 9/5/00 9/5/00 Production Assembler **
Kitting PCS- Indy 101325 ** 9/13/99 9/13/99 Production Assembler **
Kitting PCS- Indy 101325 ** 10/16/00 10/16/00 Production Assembler **
Kitting PCS- Indy 101325 ** 6/15/98 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 4/26/99 2/7/00 Production Assembler **
Kitting PCS- Indy 101325 ** 2/1/99 2/7/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 3/29/99 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 3/3/99 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 10/18/99 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 12/15/97 9/25/00 Production Assembler **
Kitting PCS- Indy 101325 ** 2/1/99 2/7/00 Production Assembler **
Kitting PCS- Indy 101325 ** 4/5/99 2/7/00 Production Assembler **
Kitting PCS- Indy 101325 ** 12/18/00 5/7/01 Production Assembler **
Kitting PCS- Indy 101325 ** 3/1/99 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 12/20/99 8/7/00 Production Assembler **
Kitting PCS- Indy 101325 ** 10/23/00 10/23/00 Operations Supervisor **
Kitting PCS- Indy 101325 ** 12/20/99 11/6/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 3/29/99 7/9/00 Production Assembler **
Kitting PCS- Indy 101325 ** 2/15/99 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 12/20/99 2/23/01 Production Assembler TL **
Kitting PCS- Indy 101325 ** 10/30/00 10/30/00 Production Assembler **
Kitting PCS- Indy 101325 ** 10/16/00 10/16/00 Production Assembler **
Kitting PCS- Indy 101325 ** 4/12/99 7/24/00 Production Assembler **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Kitting PCS- Indy 101325 ** 7/10/00 7/10/00 Production Assembler **
Kitting PCS- Indy 101325 ** 12/8/97 8/21/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 5/26/98 7/17/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 4/12/99 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 5/8/00 8/21/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 4/5/99 2/7/00 Production Assembler **
Kitting PCS- Indy 101325 ** 10/16/00 10/16/00 Production Assembler **
Kitting PCS- Indy 101325 ** 8/19/96 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 8/21/00 8/21/00 Production Assembler **
Kitting PCS- Indy 101325 ** 6/21/99 7/17/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 10/5/98 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 4/5/99 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 5/26/98 10/16/00 Production Assembler **
Kitting PCS- Indy 101325 ** 7/13/98 9/25/00 Production Assembler **
Kitting PCS- Indy 101325 ** 9/5/00 9/5/00 Production Assembler **
Kitting PCS- Indy 101325 ** 12/18/00 5/21/01 Production Assembler **
Kitting PCS- Indy 101325 ** 5/21/01 9/4/01 Operations Supervisor **
Kitting PCS- Indy 101325 ** 12/20/99 7/24/00 Production Assembler **
Kitting PCS- Indy 101325 ** 4/13/98 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 5/10/99 7/24/00 Production Assembler **
Kitting PCS- Indy 101325 ** 2/16/98 6/21/99 Production Assembler TL **
Kitting PCS- Indy 101325 ** 12/27/99 4/2/01 Production Assembler **
Kitting PCS- Indy 101325 ** 7/27/98 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 3/29/99 2/23/01 Production Assembler **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Kitting PCS- Indy 101325 ** 10/16/00 10/16/00 Production Assembler **
Kitting PCS- Indy 101325 ** 10/25/99 2/23/01 Production Assembler **
Kitting PCS- Indy 101325 ** 2/25/99 3/13/01 Director of Production **
Kitting PCS- Indy 101325 ** 9/5/00 9/5/00 Production Assembler **
Kitting PCS- Indy 101325 ** 2/22/99 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 11/6/00 11/6/00 Production Assembler **
Kitting PCS- Indy 101325 ** 6/1/99 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 10/30/00 10/30/00 Production Assembler **
Kitting PCS- Indy 101325 ** 4/12/99 9/25/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 3/20/00 4/5/00 Production Assembler **
Kitting PCS- Indy 101325 ** 4/19/99 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 9/20/99 8/20/01 Operations Manager **
Kitting PCS- Indy 101325 ** 8/12/96 6/21/99 Production Assembler TL **
Kitting PCS- Indy 101325 ** 2/16/98 6/21/99 Production Assembler **
Kitting PCS- Indy 101325 ** 5/8/00 5/8/00 Production Assembler **
Kitting PCS- Indy 101325 ** 12/15/97 9/4/01 Operations Supervisor **
Kitting PCS- Indy 101325 ** 10/20/97 5/30/00 Production Assembler TL **
Kitting PCS- Indy 101325 ** 10/25/99 2/23/01 Operations Supervisor **
Kitting PCS- Indy 101325 ** 12/20/99 8/14/00 Production Assembler **
Inventory Control - Indy 101327 ** 3/29/99 5/13/01 Inventory Control Specialist **
Inventory Control - Indy 101327 ** 11/6/00 11/6/00 Inventory Control Specialist **
Inventory Control - Indy 101327 ** 3/6/00 5/13/01 Inventory Control Specialist **
Inventory Control - Indy 101327 ** 3/29/99 6/21/99 Inventory Control Supervisor **
Inventory Control - Indy 101327 ** 8/25/97 6/21/99 Inventory Control Supervisor **
Inventory Control - Indy 101327 ** 9/5/00 5/13/01 Inventory Control Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Inventory Control - Indy 101327 ** 12/4/00 12/4/00 Inventory Control Specialist **
Inventory Control - Indy 101327 ** 2/21/00 5/1/00 Inventory Control TL **
Inventory Control - Indy 101327 ** 3/26/99 6/21/99 Staff Accountant **
Shipping 101342 ** 8/12/96 6/26/00 Operations Supervisor **
Shipping 101342 ** 6/29/98 10/30/00 Receiving TL **
Shipping 101342 ** 11/15/99 6/26/00 Receiving Specialist **
Shipping 101342 ** 8/18/97 4/16/01 Receiving Specialist **
Shipping 101342 ** 1/17/00 9/18/00 Receiving Specialist **
Shipping 101342 ** 4/20/98 6/26/00 Receiving Specialist **
Quality Control 101343 ** 3/22/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 6/1/98 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 10/27/97 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 11/15/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 8/19/96 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 12/13/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 12/15/97 10/8/01 Quality Control Team Leader **
Quality Control 101343 ** 8/19/96 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 6/1/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 2/10/97 10/8/01 Quaity Control Inspector **
Quality Control 101343 ** 4/5/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 4/5/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 10/25/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 1/10/00 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 7/15/96 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 3/1/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 6/21/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 8/16/99 10/8/01 Quality Control Inspector **
Quality Control 101343 ** 11/15/99 9/18/00 Quality Control Inspector **
Returns Qualifiers-Indy
Return 101353 ** 10/26/98 9/25/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 8/6/98 5/22/01 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 12/15/97 8/17/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 8/3/98 1/17/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 4/20/98 8/28/00 Returns Qualifier **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Returns Qualifiers-Indy
Return 101353 ** 1/24/00 1/24/00 Operations Supervisor **
Returns Qualifiers-Indy
Return 101353 ** 6/1/98 8/28/00 Operations Supervisor **
Returns Qualifiers-Indy
Return 101353 ** 8/17/98 8/28/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 7/6/99 7/12/99 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 8/19/96 6/21/99 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 6/1/99 6/21/99 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 5/17/99 9/19/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 6/1/99 10/19/00 Returns Qualifier TL **
Returns Qualifiers-Indy
Return 101353 ** 12/15/97 9/25/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 7/27/98 8/28/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 11/3/97 6/1/01 Receiving Specialist **
Returns Qualifiers-Indy
Return 101353 ** 4/28/97 8/28/00 Returns Qualifier TL **
Returns Qualifiers-Indy
Return 101353 ** 4/13/98 9/1/00 Operations Development Analyst **
Returns Qualifiers-Indy
Return 101353 ** 5/22/00 5/22/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 5/22/00 8/28/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 10/11/99 9/25/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 3/13/00 10/2/00 Returns Qualifier **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Returns Qualifiers-Indy
Return 101353 ** 12/15/97 9/18/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 6/16/97 1/27/01 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 4/5/99 8/28/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 11/15/99 9/25/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 5/20/96 8/28/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 12/6/99 6/19/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 12/15/97 10/2/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 3/22/99 6/21/99 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 3/8/99 1/22/01 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 5/10/99 8/28/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 4/13/98 3/20/00 Returns Qualifier TL **
Returns Qualifiers-Indy
Return 101353 ** 12/15/97 4/2/01 Returns Qualifier TL **
Returns Qualifiers-Indy
Return 101353 ** 5/22/00 5/22/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 12/6/99 9/25/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 5/17/99 10/2/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 8/19/96 6/21/99 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 10/18/99 3/5/01 MateriaL Handler **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Returns Qualifiers-Indy
Return 101353 ** 6/21/99 1/17/00 Returns Qualifier **
Returns Qualifiers-Indy
Return 101353 ** 2/22/99 1/2/01 Returns Qualifier **
Quality Control Indy Returns 101355 ** 4/20/98 9/18/00 Operations Supervisor **
Quality Control Indy Returns 101355 ** 12/2/96 9/4/01 Quality Control Manager **
Tech Support 101392 ** 2/10/97 3/26/01 Operations Supervisor **
Tech Support 101392 ** 6/1/98 1/17/00 Testing Technician **
Tech Support 101392 ** 1/4/00 10/2/00 Testing Technician **
Tech Support 101392 ** 3/22/99 1/17/00 Testing Technician **
Tech Support 101392 ** 8/2/99 9/25/00 Testing Technician **
Administration 101400 ** 3/15/00 9/13/01 Executive Assistant **
Administration 101400 ** 8/10/98 6/1/01 EVP CFO **
Administration 101400 ** 12/4/00 9/13/01 Executive Assistant **
Administration 101400 ** 1/20/93 3/2/00 EVP Sales & Marketing **
Administration 101400 ** 6/4/01 6/4/01 EVP CIO **
Administration 101400 ** 12/20/99 5/2/01 Executive Assistant **
Administration 101400 ** 1/24/00 1/1/01 EVP Human Resources **
Administration 101400 ** 9/1/98 6/1/01 EVP COO **
Administration 101400 ** 10/23/00 10/23/00 Executive Assistant **
Finance and Accounting 101401 ** 4/19/99 9/1/99 Staff Accountant **
Finance and Accounting 101401 ** 7/17/00 1/1/01 Senior Accounts Payable Specialist **
Finance and Accounting 101401 ** 5/1/00 1/1/01 Accounting Manager **
Finance and Accounting 101401 ** 5/8/01 5/8/01 Accounting Manager **
Finance and Accounting 101401 ** 9/21/98 4/11/01 Director of Financial Reporting **
Finance and Accounting 101401 ** 9/10/01 9/10/01 VP, Controller **
Finance and Accounting 101401 ** 10/22/01 10/22/01 Financial Analyst **
Finance and Accounting 101401 ** 11/18/96 4/10/01 Financial Analyst **
Finance and Accounting 101401 ** 12/4/00 12/4/00 Accountant **
Finance and Accounting 101401 ** 7/10/00 1/1/01 Customer Reporting Specialist **
Finance and Accounting 101401 ** 6/14/00 7/12/01 Budgeting and Forecasting Manager **
Finance and Accounting 101401 ** 7/6/99 1/1/01 Senior Accounts Payable Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Finance and Accounting 101401 ** 7/10/00 7/10/00 Manager of Customer Reporting **
Finance and Accounting 101401 ** 9/10/01 9/10/01 Inventory Analyst **
Finance and Accounting 101401 ** 4/21/97 8/28/00 Customer Reporting Specialist **
Finance and Accounting 101401 ** 1/10/00 4/24/01 Financial Analyst **
Finance and Accounting 101401 ** 11/6/00 6/18/01 Accounts Payable Specialist **
Finance and Accounting 101401 ** 10/4/99 10/5/99 Business Manager **
Finance and Accounting 101401 ** 6/5/00 1/1/01 Disbursement Manager **
Finance and Accounting 101401 ** 6/7/99 9/13/01 Financial Analyst Supervisor **
Finance and Accounting 101401 ** 11/8/99 4/30/01 Admin Assistant Customer Reporting **
Finance and Accounting 101401 ** 4/26/99 2/21/00 Financial Analyst **
Finance and Accounting 101401 ** 10/17/01 10/17/01 Financial Analyst **
Finance and Accounting 101401 ** 6/8/98 9/17/01 Staff Accountant **
Finance and Accounting 101401 ** 5/17/99 5/1/01 Financial Analyst **
Finance and Accounting 101401 ** 11/26/00 5/1/01 Financial Analyst **
Finance and Accounting 101401 ** 10/8/01 10/8/01 Accountant **
Human Resources 101402 ** 1/12/00 7/3/00 Corporate Recruiter Manager **
Human Resources 101402 ** 2/9/00 2/9/00 Executive Assistant **
Human Resources 101402 ** 8/7/00 8/7/00 Corporate Recruiting Specialist **
Human Resources 101402 ** 2/21/00 2/21/00 Payroll & Benefits Manager **
Human Resources 101402 ** 1/10/00 8/20/01 Senior Payroll/Benefits Coordinator **
Human Resources 101402 ** 10/14/96 11/1/99 Administrative Assistant, HR **
Human Resources 101402 ** 5/8/00 5/8/00 HRIS Specialist **
Human Resources 101402 ** 12/15/97 2/5/01 Employee Relations Manager **
Credit 101403 ** 4/13/98 11/22/99 Credit Specialist **
Credit 101403 ** 8/23/99 1/1/01 Collection Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Credit 101403 ** 5/24/99 1/1/01 Senior Collection Specialist **
Credit 101403 ** 3/2/98 1/1/01 Accounts Receivable Manager **
Credit 101403 ** 8/27/01 8/27/01 Cash Application Specialist **
Credit 101403 ** 1/1/90 1/1/01 Cash Receipts Manager **
Credit 101403 ** 4/5/99 1/1/01 Cash Application Specialist **
Credit 101403 ** 5/27/97 5/1/00 Sr. Credit Specialist **
Credit 101403 ** 1/12/95 2/14/01 Sr. Cash Application Specialist **
Credit 101403 ** 10/17/00 6/1/01 Sr. Cash Application Specialist **
Credit 101403 ** 6/19/00 7/9/01 Senior Collection Specialist **
Credit 101403 ** 11/15/99 1/1/01 Cash Application Supervisor **
Credit 101403 ** 10/9/00 10/9/00 Credit Supervisor **
Credit 101403 ** 1/20/97 6/14/99 Credit Specialist **
Credit 101403 ** 1/17/00 1/1/01 Collection Specialist **
Credit 101403 ** 6/4/01 6/4/01 Collection Specialist **
Credit 101403 ** 12/20/99 1/1/01 Account Reconciliation Specialist **
Credit 101403 ** 7/17/00 7/17/00 Credit Specialist **
Credit 101403 ** 9/5/00 1/1/01 File Clerk **
Credit 101403 ** 12/19/94 1/1/01 Sr. Cash Application Specialist **
Credit 101403 ** 10/11/99 10/11/99 Director of Credit and Collections **
Credit 101403 ** 9/4/01 9/4/01 Retail Supervisor **
Credit 101403 ** 9/25/00 9/13/01 Senior Collection Specialist **
Credit 101403 ** 12/6/99 1/1/01 Senior Collection Specialist **
Freight - Finance 101408 ** 10/19/98 11/28/00 Logistics Manager **
Freight - Finance 101408 ** 3/13/00 3/13/00 Freight Specialist **
Freight - Finance 101408 ** 3/19/01 3/19/01 Freight Specialist **
Nextel Credit 101417 ** 1/17/00 1/17/00 Collection Specialist **
Nextel Credit 101417 ** 1/29/01 1/29/01 Collection Specialist **
Nextel Credit 101417 ** 6/5/00 6/5/00 Collection Specialist **
Nextel Credit 101417 ** 3/12/01 3/12/01 Account Reconciliation Specialist **
Nextel Credit 101417 ** 12/20/99 12/20/99 Credit Hold Specialist **
Nextel Credit 101417 ** 6/19/00 4/4/01 Cash Application Specialist **
Nextel Credit 101417 ** 12/13/99 6/26/00 Account Reconciliation Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Nextel Credit 101417 ** 10/23/00 10/23/00 Collection Specialist **
Nextel Credit 101417 ** 7/10/00 7/10/00 Collection Specialist **
Brightpoint University 101422 ** 10/18/99 10/30/00 Brightpoint University Director **
Brightpoint University 101422 ** 4/19/99 4/1/01 Human Resources Manager **
Brightpoint University 101422 ** 10/23/00 10/23/00 Warehouse Trainers **
Brightpoint University 101422 ** 11/8/99 1/1/00 Training Coordinator **
Brightpoint University 101422 ** 4/10/00 4/10/00 Brightpoint University Trainer **
BSS Finance 101423 ** 2/26/01 2/26/01 Collection Specialist **
BSS Finance 101423 ** 2/12/01 7/9/01 BSS Collection Supervisor **
BSS Finance 101423 ** 1/13/97 5/3/01 Director National Accounts **
XX Xxxxxxx 101424 ** 8/17/98 12/1/00 Lead Analyst **
XX Xxxxxxx 101424 ** 8/7/00 12/1/00 Programmer/Analyst **
XX Xxxxxxx 101424 ** 1/4/00 10/15/01 Staff Accountant **
XX Xxxxxxx 101424 ** 10/16/00 12/1/00 Programmer/Analyst **
XX Xxxxxxx 101424 ** 8/9/99 6/4/01 Vice President, IT **
XX Xxxxxxx 101424 ** 8/17/98 1/30/01 Operations Supervisor **
XX Xxxxxxx 101424 ** 7/11/99 12/1/00 Director Of Applications **
XX Xxxxxxx 101424 ** 10/18/99 3/15/01 Resource Planning Analyst **
XX Xxxxxxx 101424 ** 4/30/01 9/13/01 Programmer/Analyst **
XX Xxxxxxx 101424 ** 6/15/98 12/1/00 Lead Analyst **
XX Xxxxxxx 101424 ** 2/15/99 12/1/00 Programmer/Analyst **
XX Xxxxxxx 101424 ** 7/26/99 12/1/00 Programmer/Analyst **
XX Xxxxxxx 101424 ** 2/7/00 12/1/00 Business Analyst **
XX Xxxxxxx 101424 ** 3/2/98 9/2/01 Sr. Operations Manager **
XX Xxxxxxx 101424 ** 9/25/00 12/1/00 Project Leader **
XX Xxxxxxx 101424 ** 2/7/00 12/1/00 Director- Applications,Finance,HR **
XX Xxxxxxx 101424 ** 8/9/99 9/2/01 Sr. Operations Manager **
XX Xxxxxxx 101424 ** 4/28/97 5/7/01 Operations Supervisor **
XX Xxxxxxx 101424 ** 10/25/99 12/1/00 Systems Programmer Analyst **
XX Xxxxxxx 101424 ** 10/27/98 3/5/01 Accounting Manager **
Information Technology 101501 ** 4/3/00 10/6/00 EDI Specialist **
Information Technology 101501 ** 9/15/97 7/26/99 Systems & Database Manager **
Information Technology 101501 ** 11/4/98 2/22/00 Director Of Applications **
Information Technology 101501 ** 9/7/99 7/24/00 EDI Coordinator/Supervisor **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Information Technology 101501 ** 2/19/01 2/19/01 System Support Specialist **
Information Technology 101501 ** 7/13/98 9/15/99 Programmer/Analyst **
Information Technology 101501 ** 3/30/01 3/30/01 Systems Administrator **
Information Technology 101501 ** 5/10/99 6/12/00 Network Technician **
Information Technology 101501 ** 10/9/00 10/9/00 Lead Web Architect **
Information Technology 101501 ** 3/5/01 3/5/01 Programmer/Analyst **
Information Technology 101501 ** 2/24/97 6/21/99 Network Support Coordinator **
Information Technology 101501 ** 3/26/01 3/26/01 Microsystems Specialist **
Information Technology 101501 ** 4/20/98 10/22/00 Lead Analyst **
Information Technology 101501 ** 5/22/00 5/22/00 Help Desk Manager **
Information Technology 101501 ** 10/21/96 10/18/99 Manager, Network Operations **
Information Technology 101501 ** 9/16/96 8/6/01 ERP Administrator **
Information Technology 101501 ** 9/3/96 11/1/99 Microsystems Specialist **
Information Technology 101501 ** 1/2/01 1/2/01 Telecommunication Engineer **
Information Technology 101501 ** 3/9/98 12/13/99 Jr. Systems Admin-NT/Novell **
Information Technology 101501 ** 5/15/01 5/15/01 Web Architect **
Information Technology 101501 ** 5/26/98 10/4/99 Database Administrator **
Information Technology 101501 ** 8/17/98 8/17/98 Programmer/Analyst **
Information Technology 101501 ** 7/24/00 7/24/00 Microsystems Specialist **
Information Technology 101501 ** 5/30/00 5/8/01 Web Architect **
Information Technology 101501 ** 3/6/00 4/1/01 Project Manager **
Information Technology 101501 ** 8/18/97 6/21/99 Network Engineer **
Information Technology 101501 ** 3/6/00 3/6/00 Systems Administrator NT **
Information Technology 101501 ** 10/23/00 10/23/00 Microsystems Specialist **
DEPT. POSITION
DEPARTMENT CODE FULL NAME HIRE DATE DATE TITLE REPORTS TO
---------- ------ --------- --------- -------- ----- ----------
Information Technology 101501 ** 5/20/96 7/6/99 Director- Technical Infrastructure **
Information Technology 101501 ** 5/20/96 9/3/01 Microsystems Specialist **
Information Technology 101501 ** 7/20/98 11/27/00 ERP Administrator **
Information Technology 101501 ** 4/3/00 4/3/00 Project Leader **
Information Technology 101501 ** 5/5/97 12/13/99 Systems Administrator NT **
Information Technology 101501 ** 1/15/01 5/8/01 Web Architect **
Information Technology 101501 ** 4/30/01 4/30/01 Systems Administrator **
Information Technology 101501 ** 9/27/99 12/27/99 Sr. Microsystems Specialist **
Resource Planning 101703 ** 11/8/99 2/12/01 Resource Planning Analyst **
Resource Planning 101703 ** 9/24/98 7/9/01 Production Coordinator **
Resource Planning 101703 ** 5/1/00 5/1/00 Resource Planning Analyst **
Resource Planning 101703 ** 11/8/99 10/30/00 Resource Planning, Manager **
Resource Planning 101703 ** 9/27/99 12/27/99 Resource Planning Analyst **
Resource Planning 101703 ** 8/20/01 8/20/01 Resource Planning Analyst **
Resource Planning 101703 ** 3/16/98 2/9/01 Resource Planning Analyst **
Last Updated on 10/25/2001
By **
BRIGHTPOINT RENO EMPLOYEE LIST
As of October 8, 2001
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
---------- ---------- ---- --------- -------- ----- ----------
Facility Costs - Reno 108360 ** 2/10/97 3/1/01 Director, General Manager **
Facility Costs - Reno 108360 ** 10/16/00 9/16/01 Human Resources Manager **
Facility Costs - Reno 108360 ** 1/8/01 3/1/01 Receptionist **
Shipping - Reno 108362 ** 3/17/97 2/5/01 Operations Supervisor **
Shipping - Reno 108362 ** 9/17/01 9/17/01 Material Handler **
Shipping - Reno 108362 ** 11/20/00 3/19/01 Warehouse Specialist **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
---------- ---------- ---- --------- -------- ----- ----------
Shipping - Reno 108362 ** 9/25/00 9/25/00 Warehouse Specialist **
Shipping - Reno 108362 ** 9/24/01 9/24/01 Warehouse Specialist **
Shipping - Reno 108362 ** 10/23/00 10/23/00 Cargo Shipping Specialist **
Shipping - Reno 108362 ** 12/4/97 3/5/01 Cargo Shipping Specialist TL **
Shipping - Reno 108362 ** 9/25/00 7/9/01 Material Handler TL **
Receiving and Xxxxxxx -
Xxxx 000000 ** 3/14/97 2/5/01 Operations Supervisor **
Receiving and Xxxxxxx -
Xxxx 000000 ** 6/19/00 9/4/00 Receiving Specialist **
Receiving and Xxxxxxx -
Xxxx 000000 ** 6/19/00 7/30/01 Material Handler **
Receiving and Xxxxxxx -
Xxxx 000000 ** 2/3/99 9/20/99 Receiving Specialist **
Receiving and Xxxxxxx -
Xxxx 000000 ** 5/26/98 2/7/00 Receiving TL **
Receiving and Xxxxxxx -
Xxxx 000000 ** 6/19/00 6/19/00 Receiving Specialist **
Pick and Pack - Reno 108364 ** 9/17/01 9/17/01 Warehouse Specialist **
Pick and Pack - Reno 108364 ** 9/17/01 9/17/01 Warehouse Specialist **
Returns - Reno 108366 ** 9/17/01 9/17/01 Returns Qualifier **
Returns - Reno 108366 ** 10/18/99 2/5/01 Operations Supervisor **
Returns - Reno 108366 ** 11/6/00 00/0/00 Xxxxxxx Xxxxxxxxx **
Xxxxxxx - Xxxx 000000 ** 10/2/00 2/19/01 Returns Qualifier **
Returns - Reno 108366 ** 11/20/00 11/20/00 Returns Qualifier **
Returns - Reno 108366 ** 11/20/00 11/20/00 Returns Qualifier **
Returns - Reno 108366 ** 4/9/01 0/0/00 Xxxxxxx Xxxxxxxxx **
Xxxxxxx - Xxxx 000000 ** 2/22/99 0/0/00 Xxxxxxxx Xxxxxxx XX **
Xxxxxxx - Xxxx 000000 ** 2/19/01 2/19/01 Returns Qualifier **
Inventory Control - Reno 108367 ** 11/20/00 5/27/01 Material Handler **
Inventory Control - Reno 108367 ** 1/8/01 5/27/01 Material Handler **
Inventory Control - Reno 108367 ** 2/8/99 6/18/01 Inventory Control TL **
Inventory Control - Reno 108367 ** 4/24/00 6/18/01 Returns Qualifier **
Inventory Control - Reno 108367 ** 5/1/00 8/6/01 Material Handler **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
---------- ---------- ---- --------- -------- ----- ----------
Quality Control - Reno 108368 ** 6/5/00 8/7/00 Quality Control Inspector **
Quality Control - Reno 108368 ** 1/26/98 8/21/00 Quality Control Team Leader **
Quality Control - Reno 108368 ** 1/8/01 1/8/01 Quality Control Inspector **
Cellular - Reno 108369 ** 4/9/01 4/9/01 Warehouse Specialist **
Cellular - Reno 108369 ** 9/9/98 6/18/01 Returns Qualifier TL **
Cellular - Reno 108369 ** 2/4/99 6/18/01 Material Handler **
Cellular - Reno 108369 ** 11/8/99 2/8/01 Inventory Control Specialist **
Cellular - Reno 108369 ** 10/23/00 10/23/00 Warehouse Specialist **
Cellular - Reno 108369 ** 10/23/00 10/23/00 Warehouse Specialist **
Cellular - Reno 108369 ** 1/24/00 7/24/00 Material Handler **
Xxxxxxxxx - Xxxx 000000 ** 8/27/01 8/27/01 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 8/28/00 8/28/00 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 11/20/00 11/20/00 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 11/20/00 3/19/01 Returns Qualifier **
Xxxxxxxxx - Xxxx 000000 ** 10/2/00 2/19/01 Material Handler **
Xxxxxxxxx - Xxxx 000000 ** 5/24/99 7/10/00 Cargo Shipping Specialist TL **
Xxxxxxxxx - Xxxx 000000 ** 4/9/01 4/9/01 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 2/15/99 0/0/00 Xxxxxxxx Xxxxxxx XX **
Xxxxxxxxx - Xxxx 000000 ** 7/24/00 7/30/01 Returns Qualifier **
Xxxxxxxxx - Xxxx 000000 ** 4/9/01 4/9/01 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 6/11/01 6/11/01 Material Handler **
Xxxxxxxxx - Xxxx 000000 ** 7/24/00 6/18/01 Material Handler **
Xxxxxxxxx - Xxxx 000000 ** 4/19/00 11/20/00 Material Handler **
Xxxxxxxxx - Xxxx 000000 ** 8/21/00 8/21/00 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 8/27/01 8/27/01 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 5/1/00 6/11/01 Quality Control Inspector **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
---------- ---------- ---- --------- -------- ----- ----------
Xxxxxxxxx - Xxxx 000000 ** 11/22/99 6/18/01 Warehouse Specialist TL **
Xxxxxxxxx - Xxxx 000000 ** 1/8/01 6/18/01 Material Handler **
Xxxxxxxxx - Xxxx 000000 ** 1/8/01 1/8/01 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 7/24/00 2/26/01 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 7/24/00 8/18/00 Warehouse Specialist **
Xxxxxxxxx - Xxxx 000000 ** 1/24/00 9/4/00 Warehouse Specialist **
Information Technology 101501 ** 8/27/95 4/2/01 Sr. Microsystems Specialist **
Last Updated on 10/8/2001
By **
WIRELESS EMPLOYEE LIST
As of October 8, 2001
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Agent Sales 519101 ** 3/21/99 6/1/00 Account Coordinator **
Marketing 519104 ** 3/11/96 8/13/01 Database Administrator **
Marketing 519104 ** 8/2/00 8/2/00 Marketing Coordinator **
Marketing 519104 ** 8/21/00 4/18/01 Database Coordinator **
Customer Service 519801 ** 4/6/98 4/12/00 TSR Team Leader **
Customer Service 519801 ** 5/30/00 5/4/01 Customer Service Representative **
Customer Service 519801 ** 4/30/01 9/3/01 B-B TSR **
Customer Service 519801 ** 5/30/00 5/30/00 TSR **
Customer Service 519801 ** 3/28/01 3/28/01 TSR **
Customer Service 519801 ** 7/23/01 7/23/01 TSR **
Customer Service 519801 ** 10/18/99 8/21/00 TSR Team Leader **
Customer Service 519801 ** 1/1/98 9/24/01 Team Leader Support Services **
Customer Service 519801 ** 1/29/01 1/29/01 Call Center Supervisor **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Customer Service 519801 ** 10/17/99 4/12/00 TSR **
Customer Service 519801 ** 3/15/01 10/1/01 SPOC/GSA Representative **
Customer Service 519801 ** 11/27/00 5/9/01 Customer Service Representative **
Customer Service 519801 ** 5/18/01 5/18/01 TSR **
Customer Service 519801 ** 3/28/01 3/28/01 TSR **
Customer Service 519801 ** 3/28/01 10/1/01 Customer Service Representative **
Customer Service 519801 ** 7/8/01 7/8/01 TSR **
Customer Service 519801 ** 4/24/01 9/2/01 Customer Service Representative **
Customer Service 519801 ** 3/4/01 3/4/01 TSR **
Customer Service 519801 ** 11/14/99 8/21/00 TSR Team Leader **
Customer Service 519801 ** 5/5/97 8/1/00 Customer Service Representative **
Customer Service 519801 ** 9/7/98 4/12/00 TSR **
Customer Service 519801 ** 2/6/00 7/9/01 TSR Team Leader **
Customer Service 519801 ** 12/21/98 2/1/01 Business to Business Representative **
Customer Service 519801 ** 7/16/01 10/1/01 Customer Service Representative **
Customer Service 519801 ** 3/21/99 6/11/01 TSR Team Leader **
Customer Service 519801 ** 3/28/01 3/28/01 TSR **
Customer Service 519801 ** 6/12/00 8/29/01 E-Commerce Support Representative **
Customer Service 519801 ** 9/7/98 7/23/01 Customer Service Representative **
Customer Service 519801 ** 4/9/01 4/9/01 TSR **
Customer Service 519801 ** 1/7/01 8/29/01 E-Commerce Support Representative **
Customer Service 519801 ** 5/7/01 5/7/01 TSR **
Customer Service 519801 ** 5/7/01 5/7/01 TSR **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Customer Service 519801 ** 4/19/01 10/1/01 B-B TSR **
Customer Service 519801 ** 3/21/99 9/3/01 B-B TSR **
Customer Service 519801 ** 5/7/01 5/7/01 TSR **
Customer Service 519801 ** 3/20/01 3/20/01 Business to Business Representative **
Customer Service 519801 ** 11/27/00 11/27/00 TSR **
Customer Service 519801 ** 12/24/00 12/24/00 TSR **
Customer Service 519801 ** 5/7/01 5/7/01 TSR **
Customer Service 519801 ** 1/28/01 5/21/01 Business to Business TL **
Customer Service 519801 ** 4/24/01 4/24/01 TSR **
Customer Service 519801 ** 4/19/01 9/17/01 TSR Team Leader **
Customer Service 519801 ** 12/11/00 7/18/01 Customer Service Representative **
Customer Service 519801 ** 10/18/99 2/1/01 Business to Business Representative **
Customer Service 519801 ** 4/17/00 4/17/00 TSR **
Customer Service 519801 ** 12/24/00 9/3/01 B-B TSR **
Customer Service 519801 ** 8/27/01 8/27/01 Call Center Operating Manager **
Customer Service 519801 ** 11/14/99 6/10/01 Support Services Supervisor **
Customer Service 519801 ** 7/18/01 7/18/01 TSR **
Customer Service 519801 ** 7/8/01 7/8/01 TSR **
Customer Service 519801 ** 5/8/00 9/17/01 TSR Team Leader **
Customer Service 519801 ** 11/14/99 7/9/01 Trainer **
Customer Service 519801 ** 11/30/98 4/12/00 TSR **
Customer Service 519801 ** 4/24/01 10/1/01 Customer Service Representative **
Customer Service 519801 ** 4/30/01 4/30/01 TSR **
Customer Service 519801 ** 5/9/01 9/3/01 B-B TSR **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Customer Service 519801 ** 9/7/98 5/15/00 Team Leader **
Customer Service 519801 ** 4/17/00 8/20/01 Support Services Specialist **
Customer Service 519801 ** 5/18/01 10/1/01 Customer Service Representative **
Customer Service 519801 ** 4/24/01 4/24/01 TSR **
Customer Service 519801 ** 4/24/01 6/11/01 Customer Service Representative **
Customer Service 519801 ** 4/24/01 7/9/01 Customer Service Representative **
Customer Service 519801 ** 9/24/01 9/24/01 Team Leader **
Customer Service 519801 ** 7/23/01 7/23/01 TSR **
Customer Service 519801 ** 3/29/99 7/9/01 TSR **
Customer Service 519801 ** 4/4/99 10/1/01 SPOC **
Customer Service 519801 ** 2/5/01 2/5/01 TSR **
Customer Service 519801 ** 9/24/01 9/24/01 TSR **
Customer Service 519801 ** 1/29/01 1/29/01 TSR **
Customer Service 519801 ** 4/3/01 4/3/01 TSR **
Customer Service 519801 ** 12/21/98 4/12/00 TSR **
Customer Service 519801 ** 11/14/99 10/1/01 SPOC **
Customer Service 519801 ** 4/24/01 4/24/01 TSR **
Customer Service 519801 ** 7/8/01 7/23/01 Customer Service Representative **
Customer Service 519801 ** 5/16/99 9/3/01 B-B TSR **
Customer Service 519801 ** 10/14/96 5/8/00 TSR Team Leader **
Customer Service 519801 ** 7/8/01 7/8/01 TSR **
Customer Service 519801 ** 5/7/01 5/7/01 TSR **
Customer Service 519801 ** 5/30/00 8/21/00 TSR Team Leader **
Customer Service 519801 ** 4/30/01 4/30/01 TSR **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Customer Service 519801 ** 7/9/01 7/9/01 TSR **
Customer Service 519801 ** 4/19/01 7/23/01 Customer Service Representative **
Customer Service 519801 ** 5/7/01 7/23/01 Customer Service Representative **
Customer Service 519801 ** 4/30/01 4/30/01 TSR **
Customer Service 519801 ** 6/12/00 9/3/01 B-B TSR **
Customer Service 519801 ** 12/24/00 12/24/00 TSR **
Customer Service 519801 ** 11/27/00 5/9/01 Customer Service Representative **
Customer Service 519801 ** 2/19/01 2/19/01 Business to Business Representative **
Customer Service 519801 ** 12/24/00 12/24/00 TSR **
Customer Service 519801 ** 9/20/99 8/2/00 Call Center Supervisor **
Customer Service 519801 ** 9/12/01 9/12/01 Call Center Supervisor **
Customer Service 519801 ** 10/16/96 5/14/01 Call Center Assistant Manager **
Customer Service 519801 ** 3/9/98 9/24/01 TSR **
Customer Service 519801 ** 3/28/01 3/28/01 TSR **
Customer Service 519801 ** 3/10/97 5/4/98 B-B TSR **
Customer Service 519801 ** 9/21/98 9/3/01 B-B TSR **
Customer Service 519801 ** 7/16/01 10/1/01 Business to Business representative **
Customer Service 519801 ** 5/7/01 5/7/01 TSR **
Customer Service 519801 ** 9/17/01 9/17/01 TSR **
Customer Service 519801 ** 3/14/01 9/3/01 B-B TSR **
Customer Service 519801 ** 12/15/98 8/30/99 Customer Service Representative **
Customer Service 519801 ** 11/14/99 8/29/01 E-Commerce Support Representative **
Customer Service 519801 ** 5/16/99 10/1/01 SPOC/GSA Representative **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Customer Service 519801 ** 5/18/01 5/18/01 Customer Service Representative **
Customer Service 519801 ** 7/16/01 7/16/01 TSR **
Customer Service 519801 ** 7/16/01 7/16/01 TSR **
Customer Service 519801 ** 3/28/01 9/3/01 B-B TSR **
Customer Service 519801 ** 6/5/00 6/5/00 TSR **
Customer Service 519801 ** 10/17/99 10/17/99 TSR **
Customer Service 519801 ** 5/9/01 5/9/01 TSR **
Customer Service 519801 ** 12/24/00 7/9/01 Customer Service Representative **
Customer Service 519801 ** 12/21/98 8/30/99 Customer Service Representative **
Customer Service 519801 ** 8/7/00 5/4/01 Customer Service Representative **
Customer Service 519801 ** 8/13/01 8/13/01 Call Center Team Leader **
Fulfillment 519394 ** 5/15/00 7/8/01 Project Coordinator **
Fulfillment 519394 ** 10/16/95 8/17/98 Supervisor Business to Business **
Facilities 519306 ** 9/7/98 9/29/00 Facilities Assistant **
Facilities 519306 ** 9/29/97 9/29/00 Facilities Coordinator **
Administration 519400 ** 7/9/01 8/29/01 E-Commerce Support Representative **
Administration 519400 ** 11/13/00 4/1/01 Support Services **
Administration 519400 ** 11/27/00 8/29/01 E-Commerce Support Representative **
Administration 519400 ** 6/14/99 11/20/00 Project Manager **
Administration 519400 ** 5/30/01 5/30/01 Support Services Rep **
Administration 519400 ** 5/15/01 6/18/01 Project Manager **
Administration 519400 ** 9/11/95 4/1/01 General Manager, BSS **
Administration 519400 ** 12/11/00 8/29/01 E-Commerce Support Representative **
Administration 519400 ** 10/30/00 4/1/01 Support Services **
Administration 519400 ** 9/17/01 9/17/01 Workforce Administrator **
Administration 519400 ** 5/29/01 8/29/01 E-Commerce Support Representative **
POSITION
DEPARTMENT NAME DEPARTMENT NAME HIRE DATE DATE TITLE REPORTS TO
--------------- ---------- ---- --------- -------- ----- ----------
Administration 519400 ** 6/29/98 8/29/01 E-Commerce Support Representative **
Administration 519400 ** 10/9/00 6/18/01 Director, National Accounts Nokia **
Finance and Accounting 519401 ** 11/30/98 4/13/00 Corporate Customer Specialist **
Finance and Accounting 519401 ** 8/9/99 2/1/01 Financial Analyst **
Finance and Accounting 519401 ** 11/2/98 4/21/00 Corporate Customer Specialist **
Finance and Accounting 519401 ** 2/5/01 2/5/01 Cash Receipts Clerk **
Finance and Accounting 519401 ** 11/16/98 5/15/00 Accounts Payable Specialist **
Finance and Accounting 519401 ** 1/1/98 11/30/00 Cash Reciepts Generalist **
Finance and Accounting 519401 ** 10/18/99 4/21/00 Credit and Collections Specialist **
Finance and Accounting 519401 ** 5/4/98 9/3/01 Accounting Supervisor **
Finance and Accounting 519401 ** 11/2/98 4/21/00 Credit and Collections Specialist **
Human Resources 519402 ** 10/2/00 10/2/00 Human Resources Representative **
Human Resources 519402 ** 6/21/99 6/21/99 Human Resources Manager **
Human Resources 519402 ** 6/21/00 2/26/01 Administrative Services Manager **
Human Resources 519402 ** 1/8/01 6/4/01 Human Resources Assistant **
Brightpoint University 519422 ** 12/21/98 7/23/01 Corporate Trainer **
Brightpoint University 519422 ** 7/25/01 7/25/01 Training Manager **
Network Administration 519502 ** 3/27/00 9/17/01 LAN Administrator **
Network Administration 519502 ** 6/5/00 9/17/01 Microsystems Specialist **
Last Updated on 10/8/2001
By **
Brightpoint, as assignee of Brightpoint Holdings, has engaged
PricewaterhouseCoopers LLP to perform consulting services pursuant to an
engagement letter dated September 28, 2000.
DISCLOSURE SCHEDULE 3.8
TO CREDIT AGREEMENT
Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness
1. BRIGHTPOINT NORTH AMERICA, INC.
Authorized: 1,000 shares
Issued and Outstanding shares: 100 shares Brightpoint, Inc.
2. BRIGHTPOINT INTERNATIONAL LTD.
Authorized: 2,000 shares
Issued and Outstanding shares: 400 shares Brightpoint, Inc.
3. WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
Authorized: 3,000
Issued and Outstanding: 100 Shares Brightpoint, Inc.
4. WIRELESS FULFILLMENT SERVICES LLC
Wireless Fulfillment Services Holdings, Inc. Interest: 99%
Brightpoint International Ltd. Interest: 1%
5. BRIGHTPOINT NORTH AMERICA L.P.
General Partnership Interest held by Brightpoint North America, Inc.: 1%
Limited Partnership Interest held by Brightpoint, Inc.: 99%
DISCLOSURE SCHEDULE 3.11
TO CREDIT AGREEMENT
Taxes
BPI has contested in good faith the assessment by the State of Indiana of
Indiana Sales/Use Tax in the amount of $86,449.53, plus interest of $9,686.61
and a penalty in the amount of $8,644.95, for the tax years 1996, 1997 and 1998.
Adequate reserves have been established by Brightpoint in accordance with GAAP.
DISCLOSURE SCHEDULE 3.12
TO CREDIT AGREEMENT
ERISA
(a)(1) - ERISA Affiliates
Brightpoint FSC, Inc. Brightpoint Unit Trust Eurocom Systems, S.A.
----------------------------------- ----------------------------------- ----------------------------------
Brightpoint North America, Inc. Brightpoint New Zealand Limited Mega-Hertz
Brightpoint International Ltd. Brightpoint Australasia Pty. Autocom SARL
Limited
Brightpoint Global Access, Inc. Grand Prize Limited Axess Communication
Sp. z. o.o.
Brightpoint Latin America , Inc. Brightpoint Philippines, Inc. Brightpoint Zimbabwe (Private)
Limited
Wireless Fulfillment Services Brightpoint Taiwan Limited Brightpoint (South Africa)
Holdings, Inc. (Proprietary) Limited
Brightpoint North America L.P. Brightpoint EMA B.V. Brightpoint (UK) Limited
Brightpoint do Brasil Ltda. Brightpoint France (SARL) Ericsson Alliance Proprietary
Limited
Brightpoint de Venezuela C.A. Brightpoint Sweden AB Brightpoint GmbH
Brightpoint de Argentina S.A. Brightpoint B.V. Brightpoint Holdings Belgium
Brightpoint de Mexico, S.A. Brightpoint (Ireland) Limited Brightpoint Norway
de C.V.
Brightpoint Solutions de Mexico, Brightpoint EMA Limited Brightpoint International Trading
S.A. de C.V. (Shanghai) Co. Ltd.
Servicios Brightpoint de Mexico, Brightpoint Germany GmbH Brightpoint (PRC) Limited
S.A. de C.V.
Brightpoint Puerto Rico, Inc. Brightpoint Netherlands Holdings Sunrise International Limited
B.V.
Brightpoint de Colombia, Inc. Brightpoint Jordan Ltd. Brightpoint Taiwan
Brightpoint Jamaica Limited Brightpoint (Private) Limited Brightpoint Worldwide Trading (Shanghai) Co.,
Ltd.
Fono Distribution Services Brightpoint India Private Limited Brightpoint International Trading (Guangzhou)
Limited Liability Company Co., Ltd.
Brightpoint International Holdings UK Xxxxx Limited Partnership Brightpoint International
B.V. (Asia Pacific) Pte. Ltd.
Brightpoint Middle East FZE Winning Land Company Limited
Wireless Fulfillment Services Brightpoint Australia Pty Ltd
LLC
Brightpoint Holdings B.V. Advanced Portable Technologies
Pty Ltd
Brightpoint Xxxxxxx.Xxx Limited Brightpoint China Limited
(a)(ii) - ERISA Plans
Brightpoint, Inc. 401(k) Plan
Brightpoint, Inc. Medical and Dental Benefits Plan (currently through
Anthem and, previously, through Great West)
Brightpoint, Inc. Vision Benefits Plan (through Spectera)
Brightpoint, Inc. Group Life Insurance Plan (currently through
Jefferson Pilot and, previously, through Principal)
Brightpoint, Inc. Long-Term Disability Plan (currently through
Jefferson Pilot and, previously, through Provident)
Brightpoint, Inc. Cafeteria Plan
(a) and (b)(iii) - Prohibited Transaction Issues and Possible Actions
On June 4, 2001, Brightpoint, Inc. applied to the Department of Labor
for a prohibited transaction exemption to allow the Company to make
the Brightpoint 401(k) Plan whole for losses caused by the Plan's
institutional trustee, the Independent Trust Corporation ("Intrust").
Illinois state banking officials had placed Intrust in receivership
because of apparent financial irregularities, and in those
receivership proceedings, the supervising court had ordered that
Intrust's trust fund shortages be apportioned among virtually all
trust accounts, including the Plan's. To protect Plan participants and
beneficiaries from experiencing a $108,738.85 shortage, Brightpoint
selected one of the court-ordered options and paid the shortage amount
from its general assets, receiving a certificate entitling it to any
funds later recovered from Intrust principals. To ensure that
Brightpoint's make-whole effort would not violate the prohibited
transaction provisions of the Employee Retirement Income Security Act
or the Internal Revenue Code, Brightpoint sought the private
exemption, which is pending.
(vii) - Brightpoint, Inc. Stock Ownership
More than 10 percent of the assets of the Brightpoint, Inc. 401(k)
Plan consist of common stock in Brightpoint, Inc.
DISCLOSURE SCHEDULE 3.13
TO CREDIT AGREEMENT
No Litigation
None.
DISCLOSURE SCHEDULE 3.15
TO CREDIT AGREEMENT
Intellectual Property
The Borrowers either own or have the rights to use all the following
Intellectual Property:
TITLE COUNTRY SERIAL # REGISTRATION # ISSUED
----- ------- ---------- -------------- --------
BRIGHTLINK U.S. 74/711,577 2,095,698 9/9/97
BRIGHTPOINT U.S. 75/591,726 2,353,363 5/30/00
BRIGHTPOINT & DESIGN U.S. 75/182,057 2,170,782 7/7/98
BRIGHTPOINT DIRECT U.S. 76/184,944
BRIGHTPOINT EPIC O/S U.S. 76/173,014
AND DESIGN
BRIGHTPOINT ONLINE U.S. 76/185,967
ECLIPSE LOGO U.S. 75/354,459 2,247,244 5/25/99
WIRELESS STOCKROOM U.S. 76/108,675
WIRELESS COMMUNICATION U.S. 08/871,873 6,029,143 2/22/00
PATENT
WIRELESS COMMUNICATION U.S. 09/483,714 PATENT
Brightpoint Holdings and Wireless Holdings do not own or use any
Intellectual Property.
DISCLOSURE SCHEDULE 3.17
TO CREDIT AGREEMENT
Environmental Matters
None.
DISCLOSURE SCHEDULE 3.18
TO CREDIT AGREEMENT
Insurance
See attached.
Insurance
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment of such omitted information.
BRIGHTPOINT INSURANCE SCHEDULE OF POLICIES
Policy Term Policy Limits Deductible Policy Number Insurer
----------- ------------- ---------- ------------- -------
Boiler & Machinery 08/01/01-08/01/02 ** ** ** **
California Earthquake 04/23/01-04/23/02 ** ** ** **
Credit Insurance 07/01/01-06/30/02 ** ** ** **
Crime DIC/DIL 08/01/01-08/01/02 ** ** ** **
Directors and Officers 08/01/01-08/01/02 ** ** ** **
Domestic Auto 08/01/01-08/01/02 ** ** ** **
Domestic Package (Property) 08/01/01-08/01/02 ** ** ** **
Domestic Package (Liability) 08/01/01-08/01/02 ** ** ** **
Domestic Work Comp 08/01/01-08/01/02 ** ** ** **
Employment Practices 08/01/01-08/01/02 ** ** ** **
Fiduciary Liability 08/01/01-08/01/02 ** ** ** **
Foreign Liability 08/01/01-08/01/02 ** ** ** **
Foreign Property 08/01/01-08/01/02 ** ** ** **
Kidnap and Xxxxxx 08/01/01-08/01/02 ** ** ** **
National Flood - Miami 08/17/01-08/17/02 ** ** ** **
Nevada Earthquake 09/14/00-09/14/01 ** ** ** **
Professional E&O Liability 08/31/99-08/31/00 ** ** ** **
Transportation 11/30/00-11/30/01 ** ** ** **
Travel Health & Accident Policy 08/01/01-08/01/02 ** ** ** **
Umbrella 08/01/01-08/01/02 ** ** ** **
NOTE: THE POLICIES REFERENCED ABOVE ARE SHOWN WITH BASE LIMITS AND DEDUCTIBLES.
SUBLIMITS MAY BE CONTAINED WITHIN THESE POLICIES FOR SPECIFIC PORTIONS OF THE
COVERAGE. SUMMARIZES OF THE FOREGOING POLICIES HAVE BEEN PROVIDED TO AGENT.
DISCLOSURE SCHEDULE 3.19
TO CREDIT AGREEMENT
Deposit & Disbursement Accounts
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment of such omitted information.
BRIGHTPOINT NORTH AMERICA L.P.
Bank One, Indiana, N.A.
** **
** **
** **
** **
Bank One, N.A. (Chicago)
** **
National City Bank of Indiana
** **
** **
WIRELESS FULFILLMENT SERVICES LLC
Bank One, Indiana, N.A.
** **
Comerica Bank (California)
** **
** **
** **
** **
** **
** **
** **
** **
** **
** **
CONTACTS
** ** **
Bank One, Indiana, N.A. National City Bank of Indiana Comerica Bank
** ** **
** ** **
** ** **
DISCLOSURE SCHEDULE 3.20
TO CREDIT AGREEMENT
Government Contracts
Wireless sells wireless communication device accessories to Government
Authorities from time to time in the ordinary course of its business.
DISCLOSURE SCHEDULE 3.22
TO CREDIT AGREEMENT
Agreements and Other Documents
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment of such omitted information.
The following supply and purchase agreements are not terminable by the
applicable Loan Party upon 60 days' prior written notice and involve
transactions in excess of $5,000,000 per annum (excepting only contracts
pursuant to which handsets and/or accessories are purchased in the ordinary
course of business by customers from any Loan Party or its Affiliates):
SUPPLIER NAME SUPPLIER CONTRACT
LESSOR/VENDOR NAME DESCRPTION
------------------
Alltel Customer Fulfillment Service Agreement by and between ALLTEL Communications, Inc. and Brightpoint, dated as
of July 13, 2001
Audiovox Brightpoint purchases wireless communication devices and related accessories from Audivox in the ordinary
course of business by issuing purchase orders and paying corresponding invoices. Brightpoint does not have a
written supply agreement with Audiovox.
Brightstar Brightpoint purchases wireless communication devices and related accessories from Brightstar in the ordinary
course of business by issuing purchase orders and paying corresponding invoices. Brightpoint does not have a
written supply agreement with Brightstar.
Ericsson Cellular Distributor Agreement by and between Ericsson, Inc. and Brightpoint as assignee of Brightpoint
Holdings, dated as of January 23, 2001, as amended; and Broadband Modem Purchase Agreement by and between
Ericsson Incorporated and Brightpoint, dated as of May 11, 2001
Kyocera Supply Agreement by and between Kyocera Wireless Corp. and Brightpoint, dated as of September 4, 2001
Motorola United States Accessories Supply Agreement by and between Motorola, Inc. and Brightpoint, dated as of May 1,
2001, as amended, and Supply Agreement by and between Motorola, Inc. (through its US Markets Division of its
Pan American Cellular Subscriber Group) and Brightpoint as assignee of Brightpoint Holdings, dated as of
June 1, 2000
Option Wireless Ltd. Brightpoint purchases wireless communication devices and related accessories from Option Wireless in the
ordinary course of business by issuing purchase orders and paying corresponding invoices. Brightpoint does
not have a written supply agreement with Option Wireless.
Nokia Distributor Agreement by and between Nokia Mobile Phones, Inc. and Brightpoint, Inc., dated as of
December 22, 1999, as amended; Distributor Agreement by and between Nokia Inc. and Brightpoint, dated as of
October 29, 2001; and Logistics Fulfillment Agreement by and between Nokia, Inc. and Brightpoint, dated
August 22, 2001
Samsung Distributorship Agreement by and between Samsung Telecommunications America, Inc. and Brightpoint as assignee
of Brightpoint Holdings, dated September 1, 1997
Siemens Distributorship Agreement by and between Siemens Information and Communication Mobile LLC and Brightpoint,
dated as of June 25, 2001
The following leases of Equipment have a remaining term exceeding one year and
require aggregate rental and other payments in excess of $500,000 per annum:
DESCRIPTION OF
EQUIPMENT OR CONTRACT CONTRACT MONTHLY
PROPERTY UNDER
LESSOR/VENDOR NAME CONTRACT BEGIN DATE END DATE PAYMENT
------------------ --------------- ---------- -------- -------
Banc One Misc. Equipment 12/15/1996 2/28/2002 **
Bankers Direct Leasing JDE Xxxxxxx and
Oracle Software 7/10/2000 7/10/2003 **
Bankers Direct Leasing Provia 7/10/2000 7/10/2003 **
Avaya (Lucent) DEFINITY G-2 8/9/1995 12/7/2002 **
DISCLOSURE SCHEDULE 5.1
TO CREDIT AGREEMENT
Maintenance of Existence and Conduct of Business
Brightpoint transacts business under the following corporate and trade names:
o Brightpoint North America L.P.
o Brightpoint North America
o Brightpoint
Brightpoint Holdings transacts business under the following corporate name:
o Brightpoint North America, Inc.
Brightpoint International transacts business under the following corporate name:
o Brightpoint International Ltd.
Wireless transacts business under the following corporate and trade names:
o Wireless Fulfillment Services LLC
o Wireless Stockroom, Inc.
o Wireless Stockroom
o TracFone Wireless Accessories
o Airtouch Accessories Program
o ATTWS Accessories Program
o Verizon Accessories Program
o Alltel
o Boomerang Wireless
o Top Wireless Accessory Sales
o LA Cellular Accessories Program
o Cellular Stockroom
o TBL Creative Services
o Cellularone Accessories Program
o Sprint PCS Accessories Hotline
o Nextel Nestday Accessories
o NEC Wireless Accessories
o Accessory Sales
o Omnipoint Accessory Order Hotline
Wireless Holdings transacts business under the following corporate name:
o Wireless Fulfillment Services Holdings, Inc.
o Brightpoint Subscriber Services
DISCLOSURE SCHEDULE 6.3
TO CREDIT AGREEMENT
Indebtedness
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment of such omitted information.
Existing Indebtedness includes:
I. Standby letter of credit - ** **
Standby letter of credit - ** **
---------
Total **
II. Any Indebtedness secured by any of the Liens identified on Disclosure
Schedule 6.7 (except with respect to those Liens identified on Disclosure
Schedule 6.7 as already terminated or as being terminated on the Closing
Date).
DISCLOSURE SCHEDULE 6.4(a)
TO CREDIT AGREEMENT
Employee Loan and Affiliate Transactions
North America L.P. Wireless Fulfillment Eliminations Consolidation
------------------ -------------------- ------------ -------------
Intercompany receivable - Brightpoint, Inc. $21,404,611 $ 23,670,481 -- $45,075,092
Intercompany receivable - Wireless Fulfillment
Services LLC 27,965,960 -- (27,965,960) --
Intercompany payable - Brightpoint North America L.P. -- (27,965,960) 27,965,960 --
Long-term intercompany receivable (payable)
- Brightpoint, Inc. 37,524,243 (8,982,323) -- 28,595,920
----------- ------------ ----------- -----------
Total intercompany receivable - Brightpoint, Inc. $58,928,854 $ 14,742,158 -- $73,671,012
DISCLOSURE SCHEDULE 6.7
TO CREDIT AGREEMENT
Liens
The following is a list of Liens on record as of the Closing Date. An asterisk *
indicates that the Lien has been terminated prior to the Closing Date or is to
be terminated in connection with the Prior Lender Obligations.
I. The standby letters of credit disclosed in Schedule 6.3
II.
TYPE OF
DEBTOR SECURED PARTY FILING LOCATION COLLATERAL
------ ------------- ------ -------- ----------
1. BRIGHTPOINT, INC. Konica Business Machines UCC California - Secretary Konica Copier
of State
2. Brightpoint, Inc. CIT Communications Finance UCC California - Secretary All existing and
Corporation of State acquired assets
3. Brightpoint, Inc. General Electric Capital UCC California - Secretary Reconditioned Systems
Corporation of State Haworth Unigroup
Furniture Systems
4. Brightpoint, Inc. Bank One, Indianapolis, National UCC Florida - Secretary of All existing and *
Association, as Agent State acquired assets
5. Brightpoint, Inc. Bank One, Indianapolis, National UCC Florida - Secretary of Amendment *
Association, as Agent State
6. Brightpoint, Inc. Bank One, Indianapolis, National UCC Florida - Secretary of Termination *
Association, as Agent State
7. Brightpoint, Inc. Bank One, Indianapolis, National UCC Florida - Secretary of All existing and *
Association, as Agent State acquired assets
8. Brightpoint, Inc. Bank One, Indianapolis, National UCC Florida - Secretary of Termination *
Association, as Agent State
9. Brightpoint, Inc. The First National Bank of UCC Florida - Secretary of All existing and *
Chicago, as Administrative Agent State acquired assets
10. Brightpoint, Inc. NBD Bank, N.A., as UCC Florida - Secretary of Amendment *
Administrative Agent State
11. Brightpoint, Inc. The First National Bank of UCC Florida - Secretary of All existing and *
Chicago, as Administrative Agent State acquired assets
12. Brightpoint, Inc. NBD Bank, N.A., as UCC Florida - Secretary of Amendment *
Administrative Agent State
13. Brightpoint, Inc. Bank One, Indiana, National UCC Florida - Secretary of Amendment
Association, as Administrative State *
Agent
14. Brightpoint, Inc. Bank One, Indiana National UCC Florida - Secretary of All existing and *
Association State acquired assets
15. Brightpoint, Inc. Bank One, Indianapolis, NA as UCC Indiana - Secretary of All existing and *
(Wholesale Cellular Agent State acquired assets
USA, Inc.)
16. Brightpoint, Inc. Bank One, Indianapolis, NA as UCC Indiana - Secretary of Amendment *
Agent State
17. Brightpoint, Inc. Bank One, Indiana UCC Indiana - Secretary of Amendment *
State
18. Brightpoint, Inc. Amano Business Credit UCC Indiana - Secretary of Leased equipment
State
19. Brightpoint, Inc. Tokyo Leasing (USA) Inc. UCC Indiana - Secretary of Amendment
State
20. Brightpoint, Inc. Bank One, Indianapolis, NA as UCC Indiana - Secretary of All existing and *
Agent State acquired assets
21. Brightpoint, Inc. Bank One, Indiana UCC Indiana - Secretary of Amendment *
State
22. Brightpoint, Inc. Bank One, Indianapolis, IN UCC Indiana - Secretary of All existing and *
State acquired assets
23. Brightpoint, Inc. Bank One, Indiana, NA UCC Indiana - Secretary of Amendment *
State
24. Brightpoint, Inc. Bank One, Indiana, National UCC Indiana - Secretary of Partial Release *
Association State
25. Brightpoint, Inc. AT & T Credit Corporation UCC Indiana - Secretary of AT&T Definity/Intuity/
State Bay Network equipment
26. Brightpoint, Inc. Banc One Leasing Corporation UCC Indiana - Secretary of Leased equipment
State
27. Brightpoint, Inc. Banc One Leasing Corporation UCC Indiana - Secretary of Leased equipment
State
28. Brightpoint, Inc. The First National Bank of UCC Indiana - Secretary of All existing and *
Chicago, as Administrative Agent State acquired assets
29. Brightpoint, Inc. NBD Bank, N.A., as UCC Indiana - Secretary of Amendment *
Administrative Agent State
30. Brightpoint, Inc. Bank One, Indiana, National UCC Indiana - Secretary of Amendment *
Association, as Administrative State
Agent
31. Brightpoint, Inc. Banc One Leasing Corporation UCC Indiana - Secretary of Leased equipment
State
32. Brightpoint, Inc. AT&T Credit Corporation UCC Indiana - Secretary of Leased equipment
State
33. Brightpoint, Inc. AT&T Credit Corporation UCC Indiana - Secretary of Leased equipment
State
34. Brightpoint, Inc. AT&T Credit Corporation UCC Indiana - Secretary of Leased equipment
State
35. Brightpoint, Inc. Midwest Bankers Group, Inc. UCC Indiana - Secretary of Office Furniture
State
36. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
37. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
38. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
39. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
40. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
41. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
42. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
43. Brightpoint, Inc. Hewlett-Packard Company UCC Indiana - Secretary of Leased equipment
State
44. Brightpoint, Inc. Nextel Finance Company UCC Indiana - Secretary of Precautionary/non-
State security interest
bailment of handsets
and accessories
45. Brightpoint, Inc. Hewlett- Packard Company UCC Indiana - Secretary of Leased Equipment
State
46. Brightpoint, Inc. Hewlett- Packard Company UCC Indiana - Secretary of Leased Equipment
State
47. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
office furniture
48. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
material handling
equipment
49. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
computer equipment
50. Brightpoint, Inc. Agilent Technologies UCC Indiana - Secretary of Leased equipment
State
51. Brightpoint, Inc. Agilent Technologies UCC Indiana - Secretary of Leased equipment
State
52. Brightpoint, Inc. Agilent Technologies UCC Indiana - Secretary of Leased equipment
State
53. Brightpoint, Inc. Newcourt Communications Finance UCC Indiana - Secretary of Leased equipment
State
54. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
office furniture
55. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
equipment
56. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
equipment
57. Brightpoint, Inc. General Electric Capital UCC Indiana - Secretary of Precautionary/non-
Corporation State security interest in
material handling
equipment
58. Brightpoint, Inc. Conseco Finance Vendor Services UCC Indiana - Secretary of Copiers
Corp. State
59. Brightpoint, Inc. Konica Business Machines UCC Indiana - Secretary of Copier
State
60. Brightpoint, Inc. AT & T Credit Corporation UCC Indiana - Xxxxxx County AT&T Definity/Intuity/
Recorder Bay Network equipment
61. Brightpoint, Inc. AT & T Credit Corporation UCC Indiana - Xxxxxx County AT&T equipment
Recorder
62. Brightpoint, Inc. AT & T Credit Corporation UCC Indiana - Xxxxxx County AT&T equipment
Recorder
63. Brightpoint, Inc. AT & T Credit Corporation UCC Indiana - Xxxxxx County AT&T equipment
Recorder
64. Brightpoint, Inc. AT & T Credit Corporation UCC Indiana - Xxxxxx County Custom Cable System,
Recorder etc.
65. Brightpoint, Inc. Midwest Bankers Group, Inc. UCC Indiana - Xxxxxx County Office furniture
Recorder
66. Brightpoint, Inc. Nextel Finance Company UCC Indiana - Xxxxxx County Precautionary/non-
Recorder security interest
bailment of handsets
and accessories
67. Brightpoint, Inc. General Electric Capital UCC Indiana - Xxxxxxxxx No description on file.
Corporation County Recorder
68. Brightpoint, Inc. The First National Bank of UCC Nevada - Secretary of All existing and *
Chicago, as Administrative Agent State acquired assets
69. Brightpoint, Inc. NBD Bank, N.A., as UCC Nevada - Secretary of Amendment *
Administrative Agent State
70. Brightpoint, Inc. Bank One Indiana as UCC Nevada - Secretary of Amendment *
Administrative Agent State
71. Brightpoint, Inc. Bank One Indiana NA UCC Pennsylvania - All existing and *
Administrative Agent Department of State acquired assets
Uniform Commercial Code
Section
72. Brightpoint, Inc. Bank One Indiana NA UCC Pennsylvania - Amendment *
Administrative Agent Department of State
Uniform Commercial Code
Section
73. Brightpoint, Inc. Associates Leasing Inc. UCC Pennsylvania - 1 New Mitsubishi Model
Department of State ESR36-18
Uniform Commercial Code
Section
74. Brightpoint, Inc. Associates Leasing Inc. UCC Pennsylvania - 2 New Mitsubishi Model
Department of State EOP15-24
Uniform Commercial Code
Section
75. Brightpoint, Inc. The First National Bank of UCC Pennsylvania - Bucks All existing and *
Chicago, as Administrative Agent County Prothonotary acquired assets
76. Brightpoint, Inc. NBD Bank, N.A., as UCC Pennsylvania - Bucks Amendment *
Administrative Agent County Prothonotary
77. Brightpoint, Inc. Bank One, Indiana, National UCC Pennsylvania - Bucks Amendment *
Association, as Administrative County Prothonotary
Agent
78. Brightpoint, Inc. Associates Leasing, Inc. UCC Pennsylvania - Bucks Leased equipment
County Prothonotary
79. Brightpoint, Inc. Associates Leasing, Inc. UCC Pennsylvania - Bucks Leased equipment
County Prothonotary
80. Brightpoint, Inc. Bank One, Indiana, National UCC Georgia - All existing and after *
Association, as Administrative Gwinnett County acquired assets
Agent
81. BRIGHTPOINT NORTH Nextel West Corporation UCC Indiana - Secretary of Precautionary/non-
AMERICA, INC. State security interest
bailment of handsets
and accessories
82. Brightpoint North Bankers/Softech Divisions of EAB UCC Indiana - Secretary of Leased equipment
America, Inc. Leasing Corp. State
83. Brightpoint North Bankers/Softech Divisions of EAB UCC Indiana - Secretary of All existing and
America, Inc. Leasing Corp. State acquired assets
84. Brightpoint North Bankers/Softech Divisions of EAB UCC Indiana - Secretary of Amendment
America, Inc. Leasing Corp. State
85. Brightpoint North Cybex Leasing Services UCC Indiana - Secretary of Fitness equipment
America, Inc. State
86. Brightpoint North Cybex Leasing Services UCC Indiana - Secretary of Assignment
America, Inc. State
87. Brightpoint North Bank One, Indiana, N.A. as UCC Indiana - Secretary of All existing and *
America, Inc. Administrative Agent State acquired assets
88. Brightpoint North Nextel of California Inc. UCC Nevada - Secretary of Precautionary/non-
America, Inc. State security interest
bailment of handsets
and accessories
89. Brightpoint North Bank One Indiana as UCC Nevada - Secretary of All existing and *
America, Inc. Administrative Agent State acquired assets
90. BRIGHTPOINT NORTH Bankers/Softech Divisions of EAB UCC Indiana - Secretary of Leased equipment
AMERICA L.P. Leasing Corp. State
91. Brightpoint North Bankers/Softech Divisions of EAB UCC Indiana - Secretary of Sun server equipment
America L.P. Leasing Corp. State
92. Brightpoint North Bankers/Softech Divisions of EAB UCC Indiana - Secretary of Amendment
America L.P. Leasing Corp. State
93. Brightpoint North Bank One, Indiana, N.A., as UCC Indiana - Secretary of All existing and *
America L.P. Administrative Agent State acquired assets
94. Brightpoint North Associated Material Handling UCC Indiana - Secretary of Leased equipment
America L.P. Industries, Inc. State
95. Brightpoint North Xxxxxxx Leasing Corporation UCC Delaware - Secretary of Leased equipment
America L.P. State
96. Brightpoint North Fleet Capital Leasing UCC Nevada - Secretary of Konica Copier
America L.P. State
97. Brightpoint North Bank One Indiana as UCC Nevada - Secretary of All existing and *
America L.P. Administrative Agent State acquired assets
98. BRIGHTPOINT The First National Bank of UCC Indiana - Secretary of All existing and *
INTERNATIONAL, LTD. Chicago as Administrative Agent State acquired assets
99. Brightpoint The First National Bank of UCC Indiana - Secretary of Amendment *
International, Ltd. Chicago as Administrative Agent State
100. Brightpoint Bank One, Indiana, National UCC Indiana - Secretary of Amendment *
International, Ltd. Association, as Administrative State
Agent
101. Brightpoint Bank One, Indiana, National UCC Indiana - Secretary of Release *
International, Ltd. Association, as Administrative State
Agent
102. Brightpoint The First National Bank of UCC Nevada - Secretary of All existing and *
International, Ltd. Chicago, as Administrative Agent State acquired assets
103. Brightpoint NBD Bank, N.A., as UCC Nevada - Secretary of Amendment *
International, Ltd. Administrative Agent State
104. Brightpoint Bank One Indiana as UCC Nevada - Secretary of Amendment *
International, Ltd. Administrative Agent State
105. Brightpoint The First National Bank of UCC Pennsylvania - Bucks All existing and *
International, Ltd. Chicago, as Administrative Agent County Prothonotary acquired assets
106. Brightpoint NBD Bank, N.A., as UCC Pennsylvania - Bucks Amendment *
International, Ltd. Administrative Agent County Prothonotary
107. Brightpoint Bank One, Indiana, National UCC Pennsylvania - Bucks Amendment *
International, Ltd. Association, as Administrative County Prothonotary
Agent
108. Brightpoint The First National Bank of UCC Pennsylvania - All existing and *
International, Ltd. Chicago, as Administrative Agent Department of State acquired assets
Uniform Commercial Code
Section
109. Brightpoint NBD Bank, N.A., as UCC Pennsylvania - Amendment *
International, Ltd. Administrative Agent Department of State
Uniform Commercial Code
Section
110. Brightpoint Bank One Indiana NA UCC Pennsylvania - Amendment *
International, Ltd. Administrative Agent Department of State
Uniform Commercial Code
Section
111. Brightpoint The First National Bank of UCC Florida - Secretary of All existing and *
International, Ltd. Chicago, as Administrative Agent State acquired assets
112. Brightpoint Bank One, Indiana, National UCC Florida - Secretary of Amendment *
International, Ltd. Association, as Administrative State
Agent
113. WIRELESS FULFILLMENT NBD Bank, N.A., as UCC California - Secretary All existing and *
SERVICES LLC Administrative Agent of State acquired assets
114. Wireless Fulfillment Bank One, Indiana, National UCC California - Secretary Amendment *
Services LLC Association, as Administrative of State
Agent
115. Wireless Fulfillment NBD Bank, N.A., as UCC California - Secretary All existing and *
Services LLC Administrative Agent of State acquired assets
116. Wireless Fulfillment Bank One, Indiana, National UCC California - Secretary Amendment *
Services LLC Association, as Administrative of State
Agent
117. Wireless Fulfillment Leasetec Corporation UCC California - Secretary Electronic data
Services LLC of State processing equipment
118. Wireless Fulfillment Nextel of California, Inc. UCC California - Secretary Precautionary/non-
Services LLC of State security interest
bailment of handsets
and accessories
119. Wireless Fulfillment CIT Communications Finance UCC California - Secretary Leased equipment
Services LLC Corporation of State
120. Wireless Fulfillment CIT Communications Finance UCC California - Secretary Leased equipment
Services LLC Corporation of State
121. Wireless Fulfillment CIT Communications Finance UCC California - Secretary Leased equipment
Services LLC Corporation of State
122. Wireless Fulfillment NBD Bank, N.A., as UCC Indiana - Secretary of All existing and *
Services LLC Administrative Agent State acquired assets
123. WIRELESS FULFILLMENT Bank One, Indiana, National UCC California - Secretary All existing and *
SERVICES HOLDINGS, Association of State acquired assets
INC.
124. Wireless Fulfillment Bank One, Indiana, National UCC Indiana - Secretary of All existing and *
Services Holdings, Association State acquired assets
Inc.
MASTER AGREEMENT
FOR
STANDBY LETTERS OF CREDIT
TERMS AND CONDITIONS
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
The undersigned ("APPLICANT") will require, from time to time, Standby
Letters of Credit. General Electric Capital Corporation ("GE CAPITAL") will,
upon Applicant's application therefor, and to the extent such application is
approved by GE Capital in its sole discretion, issue Standby Letters of Credit
or arrange for the issuance thereof through an indirect wholly-owned subsidiary
of GE Capital. Each Credit will be governed by and interpreted in accordance
with the following terms and conditions. Capitalized terms shall have the
meanings accorded them in Section 9, Definitions, below.
1. PAYMENT TERMS.
In addition to all commissions, charges, fees and expenses payable in
connection with Credits pursuant to the Credit Agreement (including, without
limitation the Letter of Credit Fee, as defined in the Credit Agreement),
Applicant agrees to pay to GE Capital on demand, at GE Capital's office located
at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 or at such other
address or account as may be designated in writing by GE Capital, in Dollars, in
immediately available funds: (i) each amount paid by GE Capital under any Credit
(which payment is permitted or required under this Agreement, ISP 98 or
applicable law) in Dollars or in the event that the Credit permits Drafts under
such Credit to be payable in a currency other than Dollars, the Dollar
Equivalent of each amount so drawn; (ii) interest on each amount (or the Dollar
Equivalent thereof) so drawn for each day from the date of payment of the
relevant Draft to and including the date of payment in full of such amount by
Applicant to GE Capital, at the rate specified in the Credit Agreement; and
(iii) any and all commissions and charges of, and any and all costs and expenses
incurred by, GE Capital and its subcontractors or agents in relation to the
Credits and all Drafts thereunder. A schedule of commissions and charges is
attached hereto as Annex I. If a Credit provides for sight payment,
reimbursement by Applicant is due on the day on which GE Capital pays on the
applicable Draft. All payments by Applicant hereunder shall be made without
withholding, deduction or set-off and shall be made free and clear of taxes.
2. SECURITY INTEREST.
To secure the payment and performance of all Obligations (including,
without limitation, Letter of Credit Obligations), the Applicant hereby grants
to Agent a security interest in the following, including, without limitation,
the unqualified right to the possession and disposal of all property shipped
under or in connection with each Credit, whether released to the Applicant under
security agreements or otherwise, and also in and to all shipping documents,
documents of title, or Drafts drawn under each Credit and in and to all other
property owned by the Applicant, in or coming into GE Capital's possession or
custody, and in any deposit balances now or hereafter held by a bank as
custodian for GE Capital for the Applicant's account, together with the proceeds
of each and all of the foregoing, until the Termination Date (subject to
reinstatement as provided in the Loan Documents). The grant of a security
interest in the preceding sentence supplements, rather than limits or
supersedes, any grant of a security interest by Applicant in the Loan Documents.
If GE Capital honors any presentation, demand or Draft and Applicant fails to
reimburse GE Capital therefor in accordance with the terms of the Credit
Agreement, GE Capital may assert its rights of subrogation under applicable law,
whether GE Capital's honor satisfies all or only part of the underlying
obligation. The Applicant must, on reasonable notice, cooperate with GE Capital
in its assertion of the Applicant's rights against the Beneficiary, the
Beneficiary's rights against the Applicant, and any other rights that GE Capital
may have by subrogation or assignment. Such cooperation shall include without
limitation the prompt return of all Drafts, documents, instruments and
statements in Applicant's possession that were presented by or on behalf of
Beneficiary in connection with any draw under a Credit. Subject to the terms of
the Credit Agreement and the terms of Section 8(b) below, the Applicant agrees
to make upon demand such cash deposits with GE Capital as GE Capital may require
to further secure Applicant's Letter of Credit Obligations.
3. ADMINISTRATION OF CREDIT.
(a) Applicant will promptly examine a copy of each Credit (and any proposed
amendments thereto) sent to Applicant, as well as all other instruments and
documents delivered to Applicant from time to time in connection with such
Credit, and, in the event Applicant has any claim of non-compliance with the
instructions or of any discrepancy or other irregularity or any objection to any
action taken or proposed to be taken by GE Capital with respect to any Credit,
Applicant will notify GE Capital thereof in writing within three business days
after its receipt of a copy of such Credit, any amendments thereto, or such
instruments or documents or notice of any such proposed action, and Applicant
will conclusively be deemed to have waived any such claim against GE Capital and
its subcontractors, servicers and agents or any defense to payment of GE
Capital, its subcontractors or agents, unless such notice is given as aforesaid.
This Section 3(a) is intended to substitute three business days for the "not
unreasonable time period" set forth in Rule 5.09 of ISP 98.
(b) Neither GE Capital nor any of its agents, subcontractors or servicers
shall be responsible for, and neither GE Capital's powers and rights hereunder
nor Applicant's obligations shall be affected by: (i) any act or omission
pursuant to Applicant's instructions; (ii) any other act or omission of GE
Capital or its subcontractors, servicers, agents or employees other than any
such arising from its or their gross negligence or willful misconduct; (iii) the
validity, accuracy or genuineness of Drafts, documents or required statements,
even if such Drafts, documents or statements should in fact prove to be in any
or all respects invalid, inaccurate, fraudulent or forged (and notwithstanding
that Applicant shall have notified GE Capital thereof); (iv) failure of any
Draft to bear any reference or adequate reference to the applicable Credit; (v)
errors, omissions, interruptions or delays in transmission of delivery of any
messages however sent and whether or not in code or otherwise; (vi) any act,
default, omission, insolvency or failure in business of any other person
(including any agent, subcontractor or
2
employee) or any consequences arising from causes beyond GE Capital's control;
(vii) any acts or omissions of any Beneficiary of any Credit or transferee of
any Credit, if transferable; (viii) any act or omission of GE Capital required
or permitted under any (1) law or practice to which a Credit is subject
(including ISP 98), (2) applicable order, ruling or decree of any court,
arbitrator or governmental agency, (3) a published statement or interpretation
on a matter of law or practice (including ISP 98); (ix) honor or other
recognition of a presentation or demand that includes forged or fraudulent
documents or that is otherwise affected by the fraudulent, bad faith, or illegal
conduct of the Beneficiary or other person (excluding GE Capital's employees),
including payment to a person who forges the signature of a Beneficiary or the
signature of an assignee of a Credit's proceeds, (x) honor of a presentation
without regard to any nondocumentary condition(s) in the Credit, regardless of
whether Rule 4.11 of ISP 98 applies, or (xi) dishonor of any presentation that
does not strictly comply with the terms of the applicable Credit or that is
fraudulent, forged or otherwise not entitled to be honored. Without limiting the
generality of the foregoing, GE Capital may (1) act in reliance on any oral,
telephone, telegraphic, electronic, facsimile or written request, notice, or
instruction believed in good faith to be from or have been authorized by the
Applicant, (2) receive, accept or pay as complying with the terms of a Credit
any Drafts or other documents, otherwise in order, which are signed by or issued
to any person or entity acting as the representative of, or in the place of, the
party in whose name such Credit provides that any Drafts or other documents
should be drawn or issued and (3) waive its stipulation that the bank nominated
in the applicable Credit shall accept or pay the Drafts, and GE Capital may then
accept presentations of Drafts and documents for payment directly.
(c) Subject to GE Capital's obtaining any necessary consent from the
Beneficiary or other third party, GE Capital may for Applicant's account at any
time (i) treat a Credit as governed by the law of the place where GE Capital or
the Beneficiary is located, notwithstanding a choice of law provision in the
Credit, and, in case of conflict, treat the law as prevailing over practice in
such place or vice versa; (ii) shorten or lengthen the examination period; (iii)
specify or amend a specified place or manner of receiving a presentation,
effecting honor, or giving notice of dishonor; or (iv) discount an accepted
Draft or deferred obligation incurred under the Credit.
(d) Unless GE Capital is enjoined by a court of competent jurisdiction, GE
Capital may assume that any Beneficiary or other presenter acts in good faith
and that any presentation or other demand is nonfraudulent.
(e) Unless the Credit specifically permits and GE Capital specifically
agrees, GE Capital need not check the authenticity or authority of any purported
Beneficiary signature, even if in other transactions the Beneficiary is a
customer or its signature is otherwise known to GE Capital.
(f) Unless specifically committed to do so in a writing signed by GE
Capital, GE Capital need not consent to any amendment of a Credit. GE Capital
may, without authorization from or notice to Applicant, send a notice of
non-extension to the Beneficiary under a Credit if it provides for automatic
extension. Any notice of dishonor given by GE Capital within six business days
after presentation of documents to GE Capital shall not be
3
deemed to be unreasonable. This Section 3(d) is intended to substitute six
business days for the three business days set forth in Rule 5.01a of ISP 98.
(g) Notwithstanding any waiver by Applicant of discrepancies in Drafts,
documents or required statements, GE Capital acting alone has the right in its
sole judgement, to decline to approve any discrepancies and to refuse payment on
that basis under any Credit issued hereunder.
(h) GE Capital may assign its rights and delegate its duties hereunder to
any subsidiary of GE Capital, in each case without prior notice to Applicant;
provided that such assignment and delegation does not diminish Applicant's
rights or increase Applicant's duties hereunder.
(i) No Credit shall be issued hereunder providing for the acceptance of
time Drafts or the incurrence of deferred payment undertakings.
(j) Notwithstanding any provision herein contained to the contrary, if
Applicant approves the issuance of a Credit requiring payment of a Draft on the
same day on which such Draft is presented, GE Capital shall be entitled to honor
such Draft without review or examination by Applicant and Applicant waives all
defenses to reimbursement thereof based on irregularities that may have been
revealed by Applicant's review or examination.
4. LETTER OF CREDIT TEXT; EXTENSIONS, INCREASES AND MODIFICATIONS OF CREDIT.
(a) Applicant is responsible for preparing or approving the text of each
Credit as issued by GE Capital and as received by the Beneficiary. GE Capital's
recommendation or drafting of text or GE Capital's use or non-use or refusal to
use text submitted by Applicant shall not affect Applicant's ultimate
responsibility for the final text and its receipt by the Beneficiary. Applicant
is responsible for the effect, or lack of effect under ISP 98, Rule 4.11 or
applicable law, of a provision in any Credit that requires GE Capital to verify
facts rather than examine documents or that fails to identify the documents to
which the provision applies.
Applicant is responsible for including suitable provisions in the
underlying agreement that permit Applicant to review the text of the Credit as
received by the Beneficiary and that describe the circumstances under which: a
drawing under the Credit may be made, Credit proceeds may be applied to the
underlying agreement, and part or all of those proceeds may be returned.
Applicant accepts the risk that the text of the Credit is consistent with the
underlying obligation, suitable for Applicant's purposes, and received by the
Beneficiary in time to permit the Beneficiary and Applicant to review the Credit
and to request any desired amendments.
(b) Each Applicant agrees that GE Capital may at any time and from time to
time, in its discretion, by agreement with one or more other Applicants (whether
or not such Applicant shall have been appointed as the "Agent Applicant" in the
Joint Signature Agreement contained in the Application): a) further finance or
refinance any transaction under any Credit; b) renew, extend or change the time
of payment or the manner, place or terms of payment of any of the Obligations;
c) settle or compromise any of the Obligations or subordinate the payment
thereof to the payment of any other debts of or claims against any Applicant
which may at the time be due
4
or owing to GE Capital; or d) release any Applicant or any Guarantor or any
Collateral, or modify the terms under which such Collateral is held, or forego
any right of setoff, or modify or amend in any way this Agreement or any Credit,
or give any waiver or consent under this Agreement; all in such manner and on
such terms as GE Capital may deem proper and without notice or further assent
from such Applicant. In any such event, such Applicant shall remain bound by
such event and this Agreement after giving effect to such event, and the
Obligations under this Agreement shall be continuing obligations in respect of
any transaction so financed or refinanced and, in either case, if the
Obligations are contingent, may be treated by GE Capital as due and payable for
their maximum face amount.
5. RESERVE REQUIREMENTS AND SIMILAR COSTS.
If GE Capital is now or hereafter becomes subject to any reserve, special
deposit or similar requirement against assets of, deposits with, or for the
account of, or credit extended by, GE Capital, or any other condition is imposed
upon GE Capital which imposes a cost upon GE Capital, and the result, in the
determination of GE Capital is to increase the cost to GE Capital of maintaining
a Credit or paying or funding the payment of any Draft thereunder, or to reduce
the amount of any sum received or receivable, directly or indirectly, by GE
Capital hereunder, Applicant will pay to GE Capital upon demand such amounts
required to compensate GE Capital for such increased cost or reduction. In
making the determinations contemplated hereunder, GE Capital may make such
estimates, assumptions, allocations and the like which GE Capital in good faith
determines to be appropriate, but GE Capital's selection thereof, and GE Capital
determinations based thereon, shall be final and binding and conclusive upon
Applicant.
6. POSSESSION OF PROPERTY BY APPLICANT.
If the Applicant accepts or retains possession of documents, goods or other
property, if any, covered by a Credit, prior to GE Capital's review of such
documents, then all discrepancies and other irregularities of said documents
shall be deemed waived by the Applicant, and GE Capital is authorized and
directed to pay any Drafts drawn or purporting to be drawn upon such Credit.
7. PARTIAL SHIPMENTS.
(a) Except as otherwise expressly stated in any Credit (i) partial
shipments may be made under such Credit, and GE Capital may honor the relative
Drafts without inquiry regardless of any apparent disproportion between the
quantity shipped and the amount of the relative Draft and the total amount of
such Credit and the total quantity to be shipped under such Credit, and (ii) if
such Credit specifies shipments in installments within stated periods and the
shipper fails to ship in any designated period, shipments of subsequent
installments may nevertheless be made in their respective designated periods and
GE Capital may honor the relative Drafts.
8. EVENTS OF DEFAULT, REMEDIES; PRE-FUNDING.
(a) If any Event of Default has occurred and is continuing, other than an
Event of Default specified in Sections 8.1(h) or 8.1(i) of the Credit Agreement,
GE Capital as issuer
5
hereunder and in its capacity as Agent under the Credit Agreement may pursue any
of the remedies provided for in the Loan Documents, including without limitation
declaring that all of the Obligations (including any such Obligations hereunder
that may be contingent and not matured) are immediately due and payable. If an
Event of Default under Section 8.1(h) or Section 8.1(i) of the Credit Agreement
has occurred, the Obligations shall automatically be due and payable.
(b) Without limiting the generality of the foregoing, Applicant agrees that
if: i) any Default or Event of Default shall have occurred and be continuing;
ii) GE Capital at any time and for any reason deems itself to be insecure or the
risk of non-payment or non-performance of any of the Obligations to have
increased; or iii) in the event that a Credit is denominated in a currency other
than Dollars, GE Capital determines that such currency is unavailable or that
the transactions contemplated by this Agreement are unlawful or contrary to any
regulations to which GE Capital or any agent, servicer or subcontractor of GE
Capital may be subject or that due to currency fluctuations the Dollar
Equivalent of the amount of a Credit exceeds the amount of Dollars that GE
Capital in its sole judgment expected to be its maximum exposure under such
Credit, then Applicant will upon demand pay to GE Capital an amount equal to the
undisbursed portion, if any, of such Credit, and such amount shall be held as
additional Collateral for the payment of all Letter of Credit Obligations, and
after the expiration hereof, to the extent not applied to the Letter of Credit
Obligations, shall be returned to Applicant (unless otherwise provided in the
Credit Agreement or any other Loan Document).
9. DEFINITIONS.
As used herein, the following terms shall have the following meanings:
"AGENT" shall have the meaning given such term in the Credit
Agreement.
"AGREEMENT" shall mean, collectively, this Agreement each Application
for Standby Letter of Credit entered into between GE Capital and Applicant, the
Joint Signature Agreement and the Authorization and Agreement of Account Party
appended hereto, as the same may be amended, modified, supplemented or restated
from time to time.
"APPLICANT" shall mean the person or entity executing this Agreement
as Applicant; provided that if two or more persons or entities shall have
executed this Agreement as Applicant or as Joint Applicant, the terms
"Applicant" and "Applicants" shall mean each and all of such persons and
entities, individually and collectively, except that, if the term "Applicant" is
preceded by the word "any" or "each" or a word or words of similar import, such
terms shall be deemed to refer to each of such persons or entities,
individually.
"BENEFICIARY" shall mean, as to any Credit, the beneficiary of that
Credit.
"COLLATERAL" shall have the meaning given such term in the Credit
Agreement.
"CREDIT" shall mean a Standby Letter of Credit issued by GE Capital
upon Applicant's request of GE Capital, as the same may be amended and
supplemented from time to time, and any and all renewals, increases, extensions
and replacements thereof and therefor.
6
"CREDIT AGREEMENT" shall mean the Credit Agreement, dated as of
October 31, 2001 among the Applicant, the other credit parties signatory
thereto, the lenders signatory thereto from time to time and GE Capital as agent
and as lender, as such Credit Agreement may be amended, modified, supplemented
or restated from time to time.
"DEFAULT" shall have the meaning given such term in the Credit
Agreement.
"DOLLAR EQUIVALENT" shall mean: a) the number of Dollars that is
equivalent to an amount of a currency other than Dollars, determined by applying
the selling rate of First Union National Bank, First Union Bank International or
another bank of comparable size selected by GE Capital; or b) in the event that
GE Capital shall not at the time be offering such a rate, the amount of Dollars
that GE Capital, in its sole judgment, specifies as sufficient to reimburse or
provide funds to GE Capital in respect of amounts drawn or drawable under a
Credit; in either case as and when determined by GE Capital.
"DOLLARS" shall mean lawful currency of the United States of America.
"DRAFT" shall mean any Draft (sight or time), receipt, acceptance,
cable or other written demand for payment.
"EVENT OF DEFAULT" shall have the meaning given such term in the
Credit Agreement.
"GUARANTOR" shall have the meaning given such term in the Credit
Agreement.
"LETTER OF CREDIT OBLIGATIONS" shall have the meaning given such term
in the Credit Agreement.
"LOAN DOCUMENTS" shall have the meaning given such term in the Credit
Agreement.
"OBLIGATIONS" shall have the meaning given such term in the Credit
Agreement.
"TERMINATION DATE" shall have the meaning given such term in the
Credit Agreement.
10. EXPENSES; INDEMNIFICATION.
Applicant agrees to reimburse GE Capital and its subcontractors,
servicers and agents upon demand for and to indemnify and hold GE Capital
harmless from and against all claims, liabilities, losses, costs and expenses
("Indemnified Liabilities") including attorneys' fees and disbursements,
incurred or suffered by GE Capital and its subcontractors, servicers and agents
in connection with this Agreement or any Credit. Such Indemnified Liabilities
shall include, but not be limited to, all such Indemnified Liabilities incurred
or suffered by GE Capital and its subcontractors, servicers and agents in
connection with (a) GE Capital's exercise of any right or remedy granted to it
hereunder or under the Loan Documents, (b) any claim and the prosecution or
defense thereof arising out of or in any way connected with this Agreement
including, without limitation, as a result of any act or omission by a
Beneficiary, (c) the
7
collection or enforcement of the Obligations, and (d) any of the events or
circumstances referred to in paragraph 3(b) hereof, including any defense by GE
Capital in an action in which Applicant obtains an injunction against
presentation or honor of any Draft. None of GE Capital or any subcontractor,
servicer or agent of GE Capital shall be liable to Applicant for any special,
indirect, consequential or punitive damages arising with respect to any Credit.
Applicant must in all instances mitigate damages claimed against GE Capital or
any subcontractor, servicer or agent arising with respect to any Credit. If GE
Capital honors a Draft or presentation under a Credit for which Applicant claims
it is not obligated to reimburse GE Capital, Applicant shall nonetheless pay to
GE Capital the amount paid by GE Capital, without prejudice to Applicant's
claims against GE Capital to recover fees and costs paid by Applicant with
respect to the honored presentation plus any direct damages resulting therefrom
which Applicant is unable to avoid or reduce. Applicant's prevailing in an
action based on forgery or fraud of the Beneficiary or other presenter does not
relieve Applicant from its obligation to pay GE Capital's costs and expenses in
contesting the entry or maintenance of injunctive relief.
11. LICENSES; INSURANCE.
If any Credit assures payment for goods to be imported, the Applicant
shall procure or cause the Beneficiaries of each Credit to procure promptly any
necessary import and export or other licenses for import or export or shipping
of any goods referred to in or pursuant to such Credit and to comply and to
cause the Beneficiaries to comply with all foreign and domestic governmental
regulations in regard to the shipment and warehousing of such goods or otherwise
relating to or affecting such Credit, including governmental regulations
pertaining to transactions involving designated foreign countries or their
nationals, and to furnish such certificates in that respect as GE Capital may at
any time require, and to keep such goods adequately covered by insurance in
amounts, with carriers and for such risks as shall be satisfactory to GE
Capital, and to cause GE Capital's interest to be endorsed thereon, and to
furnish GE Capital on demand with evidence thereof. Should the insurance upon
said goods for any reason be unsatisfactory to GE Capital, GE Capital may, at
its expense, obtain insurance satisfactory to it.
12. NO WAIVERS OF RIGHTS HEREUNDER; RIGHTS CUMULATIVE.
No delay by GE Capital in exercising any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right
preclude other or further exercises thereof or the exercise of any other right.
No waiver or amendment of any provision of this Agreement shall be enforceable
against GE Capital unless in writing and signed by an officer of GE Capital, and
unless it expressly refers to the provision affected, any such waiver shall be
limited solely to the specific event waived. All rights granted GE Capital
hereunder shall be cumulative and shall be supplementary of and in addition to
those granted or available to GE Capital under the Loan Documents or applicable
law and nothing herein shall be construed as limiting any such other right.
13. CONTINUING AGREEMENT; TERMINATION.
This Agreement shall continue in full force and effect until the
Termination Date (subject to reinstatement, as provided in the Loan Documents).
8
14. PERFORMANCE STANDARDS.
Notwithstanding any provision to the contrary herein, GE Capital
reserves the right to decline (i) any request made by the Applicant for the
issuance of a Credit or (ii) any instruction provided by the Applicant if, in
its discretion, GE Capital determines that the issuance of such Credit or the
carrying out of such instruction contravenes GE Capital's customary procedures
or policy, ISP 98 or any applicable law, rule or regulation.
15. GOVERNING LAW; JURISDICTION; CERTAIN WAIVERS.
(a) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of Illinois, and with respect to all
security interests granted in connection herewith, GE Capital shall have the
rights and remedies of a secured party under applicable law, including but not
limited to the Uniform Commercial Code of Illinois. This Agreement supplements
the Loan Documents, including those provisions relating to Letter of Credit
Obligations and, except as expressly provided herein to the contrary, this
Agreement does not supersede the Loan Documents.
(b) APPLICANT AGREES THAT ALL ACTIONS AND PROCEEDINGS RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED WITHIN
THE STATE OF ILLINOIS AND THAT SUCH COURTS ARE CONVENIENT FORUMS THEREFOR, AND
APPLICANT SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
(c) Applicant waives personal service of process upon it and consents that
any such service of process may be made by certified or registered mail, return
receipt requested, directed to Applicant at its address last specified for
notices hereunder, and service so made shall be deemed completed two (2) days
after the same shall have been so mailed.
(d) APPLICANT WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BETWEEN IT AND GE CAPITAL WAIVES THE RIGHT TO ASSERT IN ANY ACTION OR
PROCEEDING WITH REGARD TO THIS AGREEMENT OR ANY OF THE OBLIGATIONS ANY OFFSETS
OR COUNTERCLAIMS WHICH IT MAY HAVE.
(e) Each Credit and this Agreement shall be subject to the International
Standby Practices, International Chamber of Commerce Publication No. 590 ("ISP
98") and the same are incorporated herein by reference. Applicant is responsible
for knowing applicable letter of credit law and practice, including ISP 98.
Solely for purposes of interpreting the ISP 98's application to this Agreement
and Credits issued hereunder, GE Capital shall be deemed to be a "bank" as such
term is used in ISP 98. To the extent permitted by applicable law, this
Agreement shall prevail in case of a conflict with applicable law or ISP 98, and
ISP 98 shall prevail in case of a conflict with applicable law.
16. NOTICES.
Any notice to GE Capital shall be effective only if in writing or by
authenticated teletransmission acceptable to GE Capital, as applicable, directed
to the attention of and received
9
by GE Capital. Any notice to or demand on Applicant, or, if more than one
Applicant executes this Agreement, the Agent Applicant, shall be binding on all
Applicants and shall be effective when made to Applicant, or if more than one
Applicant executes this Agreement, the Agent Applicant, by mail, telegraph,
facsimile, telephone or otherwise, in the case of mailed, telegraphed or cabled
notices, to the address appearing below such Applicant's signature or at such
other address as may hereafter be specified in a notice designated as a notice
of change of address under this paragraph, and in the case of telephonic or
facsimile notices, to the telephone number of such Applicant appearing below
Applicant's signature. Any requirements under applicable law of reasonable
notice by GE Capital to Applicant of any event shall be met if notice is given
to Applicant or Agent Applicant, as the case may be, in the manner prescribed
above at least two days before (a) the date of such event or (b) the date after
which such event will occur.
17. APPLICANT STATUS.
The person identified in this Agreement as Applicant represents and
warrants, except as otherwise provided in this Agreement, that:
(a) it acts for itself and for no other person in requesting issuance of
each Credit for its account;
(b) it may be identified in each Credit as the "applicant," "account party"
or "customer" at whose request and on whose instruction and for those account
the Credit is issued;
(c) it alone (acting through its officers) may authorize GE Capital to
issue, amend, pay, or otherwise act under any Credit; and
(d) it alone has standing to enforce this Agreement or otherwise to assert
the rights and remedies of an applicant, including without limitation, to xxx
for any injunction against honor of any Credit.
18. GENERAL.
(a) If this Agreement is executed by two or more Applicants, they shall be
jointly and severally liable hereunder, and all provisions hereof regarding the
Collateral shall apply to the Obligations and Collateral of any or all of them.
(b) This Agreement shall be binding upon the heirs, executors,
administrators, assigns and successors of each of the Applicant(s) and shall
inure to the benefit of and be enforceable by GE Capital and its respective
successors, transferees and assigns.
(c) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
(d) This Agreement shall be deemed to be a "Loan Document" for all purposes
under the Credit Agreement.
10
(e) This Agreement may be executed in any number of separate counterparts,
each of which shall collectively and separately constitute one agreement.
Date:
NAME OF APPLICANT:
BRIGHTPOINT NORTH AMERICA L.P. GENERAL ELECTRIC CAPITAL CORPORATION
By: BRIGHTPOINT NORTH AMERICA, By:_________________________________
INC., its general partner Name:_______________________________
Title: Duly Authorized Signatory
By:_______________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
Address of Applicant:
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax No.:_______________________________
11
JOINT SIGNATURE AGREEMENT
In consideration of your establishment from time to time of a Credit
substantially as applied for herein, it is further agreed that this Agreement
shall be the joint and several agreement of the undersigned and all property
referred to in this Agreement as belonging to Applicant shall be understood to
refer to the joint property of any or all of the several Applicants as well as
to the individual property of each of them. The happening of any Event of
Default as specified in paragraph 6 of this Agreement with respect to any
Applicant shall mature the obligations of all Applicants. A demand made on any
Applicant pursuant to paragraph 1 of this Agreement shall fix the exchange rate
as to all Applicants.
It is agreed that Wireless Fulfillment Services LLC shall appear in each
Credit as Account Party and that Brightpoint North America L.P. ("AGENT
APPLICANT") has the exclusive right to issue all instructions on any and all
matters relating to such Credit, including, without limitation, instructions as
to disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in such Credit or any other matter.
BRIGHTPOINT NORTH AMERICA L.P. WIRELESS FULFILLMENT SERVICES LLC
JOINT APPLICANT JOINT APPLICANT
By: BRIGHTPOINT NORTH AMERICA, INC., By: BRIGHTPOINT, INC., its manager
its general partner By:_______________________________
By:_____________________________ Name: Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx Title: Executive Vice President,
Title: Executive Vice President & General Counsel & Secretary
Secretary
Address of Joint Applicant Address of Joint Applicant
000 Xxxxxxx Xxxxxxx 000 Xxxxxxx Xxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
AUTHORIZATION AND AGREEMENT OF ACCOUNT PARTY
Gentlemen:
We hereby join the request of Applicant to issue from time to time the
Credits, described on page 1 with our name appearing as Account Party.
In consideration of your issuing each Credit in this form it is agreed that
Applicant has the exclusive right to issue all instructions on any and all
matters relating to such Credits including, without limitation, instructions as
to disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in each Credit or any other matters
irrespective of whether the same may now or hereafter affect our rights or those
of our successors or assigns.
WIRELESS FULFILLMENT SERVICES LLC
Account Party
By: BRIGHTPOINT, INC., its manager
By:___________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel & Secretary
Address of Account Party:
000 Xxxxxxx Xxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
ANNEX I
The Applicant agrees to pay the following fees with respect to the
Credits:
I. ISSUANCE:
- Upon issuance thereof, the greater of (a) 25BP PA of the amount of the Credit
or (b) $150.00
Plus:
- (c) Issuance Fee $150.
II AMENDMENT:
- Upon any amendment which increases the amount thereof, the greater of (d)25BP
PA of such increased amount or (e) $150.00
- Amendments changing a condition of the SBLC (f) $125.00
III. EVERGREEN RENEWAL:
- (g) Issuance fee (a) plus $150.
IV. DOCUMENT EXAMINATION:
- (h) $250
MASTER AGREEMENT
FOR
DOCUMENTARY LETTERS OF CREDIT
TERMS AND CONDITIONS
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx Xxxxxxxx, XX 00000
The undersigned ("APPLICANT") will require, from time to time, Documentary
Letters of Credit. General Electric Capital Corporation ("GE CAPITAL") will,
upon Applicant's application therefor, and to the extent such application is
approved by GE Capital in its sole discretion, arrange for the issuance of
Credits (as defined herein) through GE Capital Trade Services, Limited or
another subsidiary of GE Capital appointed in accordance with Section 3(d) (the
"ISSUER"), an indirect wholly-owned subsidiary of GE Capital. Each Credit will
be governed by and interpreted in accordance with the following terms and
conditions. Capitalized terms shall have the meanings accorded them in Section
9, Definitions, below.
1. PAYMENT TERMS.
In addition to all commissions, charges, fees and expenses payable in
connection with Credits pursuant to the Credit Agreement (including, without
limitation the Letter of Credit Fee, as defined in the Credit Agreement),
Applicant agrees to pay to GE Capital on demand, at GE Capital's office located
at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 or at such other
address or account as may be designated in writing by GE Capital, in Dollars, in
immediately available funds: (i) each amount drawn under any Credit in Dollars
or in the event that the Credit permits Drafts under such Credit to be payable
in a currency other than Dollars, the Dollar Equivalent of each amount so drawn;
(ii) interest on each amount (or the Dollar Equivalent thereof) so drawn for
each day from the date of payment of the relevant Draft to and including the
date of payment in full of such amount by Applicant to GE Capital, at the rate
specified in the Credit Agreement; and (iii) any and all commissions and charges
of, and any and all costs and expenses incurred by, GE Capital, Issuer and each
of their correspondents in relation to the Credits and all Drafts thereunder. A
schedule of commissions and charges is attached hereto as Annex I.
2. SECURITY INTEREST.
To secure the payment and performance of all Obligations (including,
without limitation, Letter of Credit Obligations), the Applicant hereby grants
to Agent a security interest in the Collateral, including, without limitation,
the unqualified right to the possession and disposal of all property shipped
under or in connection with each Credit, whether released to the Applicant under
security agreements or otherwise, and also in and to all shipping documents,
documents of title, or Drafts drawn under each Credit and in and to all other
property owned by the Applicant, in or coming into GE Capital's possession or
custody, and in any deposit balances
now or hereafter held by a bank as custodian for GE Capital for the Applicant's
account, together with the proceeds of each and all of the foregoing, until the
Termination Date (subject to reinstatement as provided in the Loan Documents).
The grant of a security interest in the preceding sentence supplements, rather
than limits or supersedes, any grant of a security interest by Applicant in the
Loan Documents. If Issuer honors any presentation or demand and Applicant fails
to reimburse GE Capital therefor in accordance with the terms of the Credit
Agreement, GE Capital and Issuer may assert their rights of subrogation under
applicable law, whether Issuer's honor satisfies all or only part of the
underlying obligation. The Applicant must, on reasonable notice, cooperate with
Issuer and GE Capital in their assertion of the Applicant's rights against the
Beneficiary, the Beneficiary's rights against the Applicant, and any other
rights that Issuer or GE Capital may have by subrogation or assignment. Subject
to the terms of the Credit Agreement, the Applicant agrees to make upon demand
such cash deposits with GE Capital as GE Capital may require to further secure
the Applicant's Letter of Credit Obligations.
3. ADMINISTRATION OF CREDIT.
(a) Applicant will promptly examine a copy of each Credit (and any
amendments thereof) sent to Applicant, as well as all other instruments and
documents delivered to Applicant from time to time in connection with such
Credit, and, in the event Applicant has any claim of non-compliance with the
instructions or of any discrepancy or other irregularity, Applicant will notify
GE Capital thereof in writing within two business days after its receipt of a
copy of such Credit (and any amendments thereof), and Applicant will
conclusively be deemed to have waived any such claim against GE Capital, Issuer
and their subcontractors, servicers and agents unless such notice is given as
aforesaid.
(b) Neither Issuer, GE Capital nor any of their correspondents shall be
responsible for, and neither Issuer's and GE Capital's powers and rights
hereunder nor Applicant's Obligations shall be affected by: (i) any act or
omission pursuant to Applicant's instructions; (ii) any other act or omission of
Issuer, GE Capital or their subcontractors, servicers and agents or their
respective agents or employees other than any such arising from its or their
gross negligence or willful misconduct; (iii) the validity, accuracy or
genuineness of Drafts, documents or required statements, even if such Drafts,
documents or statements should in fact prove to be in any or all respects
invalid, inaccurate, fraudulent or forged (and notwithstanding that Applicant
shall have notified Issuer or GE Capital thereof); (iv) failure of any Draft to
bear any reference or adequate reference to the applicable Credit; (v) errors,
omissions, interruptions or delays in transmission of delivery of any messages
however sent and whether or not in code or otherwise; (vi) any act, default,
omission, insolvency or failure in business of any other person (including any
correspondent) or any consequences arising from causes beyond Issuer's or GE
Capital's control; (vii) any acts or omissions of any Beneficiary of any Credit
or transferee of any Credit, if transferable; (viii) any act or omission of GE
Capital or Issuer required or permitted under any (1) law or practice to which a
Credit is subject, (2) applicable order, ruling or decree of any court,
arbitrator or governmental agency, or (3) published statement or interpretation
on a matter of law or practice; (ix) honor or other recognition of a
presentation or demand that includes forged or fraudulent documents or that is
otherwise affected by the fraudulent or illegal conduct of the Beneficiary or
other person (excluding GE Capital's and Issuer's employees), or (x) dishonor of
any presentation that does not strictly comply with the terms of the applicable
Credit or that is fraudulent, forged or otherwise not entitled to be honored.
Without limiting the
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generality of the foregoing, Issuer may (1) act in reliance on any oral,
telephone, telegraphic, electronic, facsimile or written request, notice, or
instruction believed in good faith to be from or have been authorized by the
Applicant, (2) receive, accept or pay as complying with the terms of a Credit
any Drafts or other documents, otherwise in order, which are signed by or issued
to any person or entity acting as the representative of, or in the place of, the
party in whose name such Credit provides that any Drafts or other documents
should be drawn or issued and (3) waive its stipulation that the bank nominated
in the applicable Credit shall accept or pay the Drafts, and Issuer may then
accept presentations of Drafts and documents for payment directly.
(c) Notwithstanding any waiver by Applicant of discrepancies in Drafts,
documents or required statements, GE Capital or Issuer, either one acting alone,
has the right in its sole judgement, to decline to approve any discrepancies and
to refuse payment on that basis under any Credit issued hereunder. Such right is
in addition to and not in limitation of rights of Issuer under the UCP (as
defined in paragraph 15(e) below).
(d) GE Capital may appoint any of its other subsidiaries as "Issuer" at any
time and any such Issuer may assign all or any portion of its rights under this
Agreement or any Credit, including without limitation any reimbursement
obligation owing to it to any subsidiary of GE Capital, in each case without
prior notice to Applicant.
4. EXTENSIONS, INCREASES AND MODIFICATIONS OF CREDIT.
Each Applicant agrees that GE Capital, acting through Issuer may at any
time and from time to time, in its discretion, by agreement with one or more
other Applicants (whether or not such Applicant shall have been appointed as the
"Agent Applicant" in the Joint Signature Agreement contained in the
Application): a) further finance or refinance any transaction under any Credit;
b) renew, extend or change the time of payment or the manner, place or terms of
payment of any of the Obligations; c) settle or compromise any of the
Obligations or subordinate the payment thereof to the payment of any other debts
of or claims against any Applicant which may at the time be due or owing to
Issuer; or d) release any Applicant or any Guarantor or any Collateral, or
modify the terms under which such Collateral is held, or forego any right of
setoff, or modify or amend in any way this Agreement or any Credit, or give any
waiver or consent under this Agreement; all in such manner and on such terms as
Issuer may deem proper and without notice or further assent from such Applicant.
In any such event, such Applicant shall remain bound by such event and this
Agreement after giving effect to such event, and the Obligations under this
Agreement shall be continuing obligations in respect of any transaction so
financed or refinanced and, in either case, if the Obligations are contingent,
may be treated by GE Capital as due and payable for their maximum face amount.
5. RESERVE REQUIREMENTS AND SIMILAR COSTS.
If Issuer is now or hereafter becomes subject to any reserve, special
deposit or similar requirement against assets of, deposits with, or for the
account of, or credit extended by, Issuer, or any other condition is imposed
upon Issuer which imposes a cost upon Issuer, and the result, in the
determination of Issuer is to increase the cost to Issuer of maintaining a
Credit or paying or funding the payment of any Draft thereunder, or to reduce
the amount of any sum received or receivable, directly or indirectly, by Issuer
hereunder, Applicant will pay to Issuer upon demand such amounts required to
compensate Issuer for such increased cost or reduction.
3
In making the determinations contemplated hereunder, Issuer may make such
estimates, assumptions, allocations and the like which Issuer in good faith
determines to be appropriate, but Issuer's selection thereof, and Issuer's
determinations based thereon, shall be final and binding and conclusive upon
Applicant.
6. POSSESSION OF PROPERTY BY APPLICANT.
If the Applicant accepts or retains possession of documents, goods or other
property, if any, covered by a Credit, prior to Issuer's review of documents,
then all discrepancies and other irregularities of said documents shall be
deemed waived by the Applicant, and Issuer is authorized and directed to pay any
Drafts drawn or purporting to be drawn upon such Credit.
7. PARTIAL SHIPMENTS.
(a) Except as otherwise expressly stated in any Credit (i) partial
shipments may be made under such Credit, and Issuer may honor the relative
Drafts without inquiry regardless of any apparent disproportion between the
quantity shipped and the amount of the relative Draft and the total amount of
such Credit and the total quantity to be shipped under such Credit, and (ii) if
such Credit specifies shipments in installments within stated periods and the
shipper fails to ship in any designated period, shipments of subsequent
installments may nevertheless be made in their respective designated periods and
Issuer may honor the relative Drafts.
8. EVENTS OF DEFAULT, REMEDIES; PRE-FUNDING.
(a) If any Event of Default has occurred and is continuing, other than an
Event of Default specified in Sections 8.1(h) or 8.1(i) of the Credit Agreement,
Issuer may direct GE Capital in its capacity as Agent under the Credit Agreement
to pursue any of the remedies provided for in the Loan Documents, including
without limitation declaring that all of the Obligations (including any such
Obligations that may be contingent and not matured) are immediately due and
payable. If an Event of Default under Section 8.1(h) or Section 8.1(i) of the
Credit Agreement has occurred, the Obligations shall automatically be due and
payable.
(b) Without limiting the generality of the foregoing, Applicant agrees that
if: i) any Default or Event of Default shall have occurred and be continuing;
ii) GE Capital at any time and for any reason deems itself or Issuer to be
insecure or the risk of non-payment or non-performance of any of the Obligations
to have increased; or iii) in the event that a Credit is denominated in a
currency other than Dollars, GE Capital determines that such currency is
unavailable or that the transactions contemplated by this Agreement are unlawful
or contrary to any regulations to which GE Capital, Issuer or any agent,
servicer or subcontractor of either of them may be subject or that due to
currency fluctuations the Dollar Equivalent of the amount of a Credit exceeds
the amount of Dollars that Issuer in its sole judgment expected to be its
maximum exposure under such Credit, then Applicant will upon demand pay to GE
Capital an amount equal to the undisbursed portion, if any, of such Credit, and
such amount shall be held as additional Collateral for the payment of all Letter
of Credit Obligations, and after the expiration hereof, to the extent not
applied to the Letter of Credit Obligations, shall be returned to Applicant
(unless otherwise provided in the Credit Agreement or any other Loan Document).
4
9. DEFINITIONS.
As used herein, the following terms shall have the following meanings:
"AGENT" shall have the meaning given such term in the Credit Agreement.
"AGREEMENT" shall mean, collectively, these terms and conditions each
Application for Documentary Letter of Credit entered into between GE Capital
and/or Issuer and Applicant, the Joint Signature Agreement and the Authorization
and Agreement of Account Party appended hereto, as the same may be amended,
modified, supplemented or restated from time to time.
"APPLICANT" shall mean the person or entity executing this Agreement as
Applicant; provided that if two or more persons or entities shall have executed
this Agreement as Applicant or as Joint Applicant, the terms "Applicant" and
"Applicants" shall mean each and all of such persons and entities, individually
and collectively, except that, if the term "Applicant" is preceded by the word
"any" or "each" or a word or words of similar import, such terms shall be deemed
to refer to each of such persons or entities, individually.
"BENEFICIARY" shall mean, as to any Credit, the beneficiary of that Credit.
"COLLATERAL" shall have the meaning given such term in the Credit
Agreement.
"CREDIT" shall mean a Documentary Letter of Credit issued by Issuer upon
Applicant's request of GE Capital, as the same may be amended and supplemented
from time to time, and any and all renewals, increases, extensions and
replacements thereof and therefor.
"CREDIT AGREEMENT" shall mean the Credit Agreement, dated as of October 31,
2001 among the Applicant, the other credit parties signatory thereto, the
lenders signatory thereto from time to time and GE Capital as agent and as
lender, as such Credit Agreement may be amended, modified, supplemented or
restated from time to time.
"DEFAULT" shall have the meaning given such term in the Credit Agreement.
"DOLLAR EQUIVALENT" shall mean: a) the number of Dollars that is equivalent
to an amount of a currency other than Dollars, determined by applying the
selling rate of First Union National Bank, First Union Bank International or
another bank of comparable size selected by Issuer; or b) in the event that
Issuer shall not at the time be offering such a rate, the amount of Dollars that
Issuer, in its sole judgment, specifies as sufficient to reimburse or provide
funds to Issuer in respect of amounts drawn or drawable under a Credit; in
either case as and when determined by Issuer.
"DOLLARS" shall mean lawful currency of the United States of America.
"DRAFT" shall mean any Draft (sight or time), receipt, acceptance, cable or
other written demand for payment.
5
"EVENT OF DEFAULT" shall have the meaning given such term in the Credit
Agreement.
"GUARANTOR" shall have the meaning given such term in the Credit Agreement.
"LETTER OF CREDIT OBLIGATIONS" shall have the meaning given such term in
the Credit Agreement.
"LOAN DOCUMENTS" shall have the meaning given such term in the Credit
Agreement.
"OBLIGATIONS" shall have the meaning given such term in the Credit
Agreement.
"TERMINATION DATE" shall have the meaning given such term in the Credit
Agreement.
10. EXPENSES; INDEMNIFICATION.
Applicant agrees to reimburse GE Capital and Issuer upon demand for and to
indemnify and hold GE Capital and Issuer harmless from and against all claims,
liabilities, losses, costs and expenses ("Indemnified Liabilities") including
attorneys' fees and disbursements, incurred or suffered by GE Capital and/or
Issuer in connection with any Credit. Such Indemnified Liabilities shall
include, but not be limited to, all such Indemnified Liabilities incurred or
suffered by GE Capital and/or Issuer in connection with (a) GE Capital and/or
Issuer's exercise of any right or remedy granted to it hereunder or under the
Loan Documents, (b) any claim and the prosecution or defense thereof arising out
of or in any way connected with this Agreement including, without limitation, as
a result of any act or omission by a Beneficiary, (c) the collection or
enforcement of the Obligations, and (d) any of the events or circumstances
referred to in paragraph 3(b) hereof. None of GE Capital, Issuer or any
subcontractor, servicer or agent of either of them shall be liable to Applicant
for any special, indirect, consequential or punitive damages arising with
respect to any Credit. Applicant must in all instances mitigate damages claimed
against Issuer or GE Capital or any subcontractor, servicer or agent of either
of them arising with respect to any Credit.
11. LICENSES; INSURANCE.
The Applicant shall procure or cause the Beneficiaries of each Credit to
procure promptly any necessary import and export or other licenses for import or
export or shipping of any goods referred to in or pursuant to such Credit and to
comply and to cause the Beneficiaries to comply with all foreign and domestic
governmental regulations in regard to the shipment and warehousing of such goods
or otherwise relating to or affecting such Credit, including governmental
regulations pertaining to transactions involving designated foreign countries or
their nationals, and to furnish such certificates in that respect as GE Capital
may at any time require, and to keep such goods adequately covered by insurance
in amounts, with carriers and for such risks as shall be satisfactory to GE
Capital, and to cause GE Capital's interest to be endorsed thereon, and to
furnish GE Capital on demand with evidence thereof. Should the insurance upon
said goods for any reason be unsatisfactory to GE Capital, GE Capital may, at
its expense, obtain insurance satisfactory to it.
6
12. NO WAIVERS OF RIGHTS HEREUNDER; RIGHTS CUMULATIVE.
No delay by GE Capital or Issuer in exercising any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right preclude other or further exercises thereof or the exercise of any other
right. No waiver or amendment of any provision of this Agreement shall be
enforceable against GE Capital or Issuer unless in writing and signed by an
officer of GE Capital, and unless it expressly refers to the provision affected,
any such waiver shall be limited solely to the specific event waived. All rights
granted GE Capital or Issuer hereunder shall be cumulative and shall be
supplementary of and in addition to those granted or available to GE Capital or
Issuer under the Loan Documents or applicable law and nothing herein shall be
construed as limiting any such other right.
13. CONTINUING AGREEMENT; TERMINATION.
This Agreement shall continue in full force and effect until the
Termination Date (subject to reinstatement, as provided in the Loan Documents).
14. PERFORMANCE STANDARDS.
Notwithstanding any provision to the contrary herein, GE Capital reserves
the right to decline (i) any request made by the Applicant for the issuance of a
Credit or (ii) any instruction provided by the Applicant if, in its discretion,
GE Capital determines that the issuance of such Credit or the carrying out of
such instruction contravenes GE Capital's customary procedures or policy or any
applicable law, rule or regulation.
15. GOVERNING LAW; JURISDICTION; CERTAIN WAIVERS.
(a) This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the State of Illinois, and with respect to all
security interests granted in connection herewith, GE Capital and Issuer shall
have the rights and remedies of a secured party under applicable law, including
but not limited to the Uniform Commercial Code of Illinois.
(b) APPLICANT AGREES THAT ALL ACTIONS AND PROCEEDINGS RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED WITHIN
THE STATE OF ILLINOIS AND THAT SUCH COURTS ARE CONVENIENT FORUMS THEREFOR, AND
APPLICANT SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS.
(c) Applicant waives personal service of process upon it and consents that
any such service of process may be made by certified or registered mail, return
receipt requested, directed to Applicant at its address last specified for
notices hereunder, and service so made shall be deemed completed two (2) days
after the same shall have been so mailed.
(d) APPLICANT WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BETWEEN IT AND GE CAPITAL OR ISSUER AND WAIVES THE RIGHT TO
ASSERT IN ANY ACTION OR PROCEEDING WITH REGARD TO THIS
7
AGREEMENT OR ANY OF THE OBLIGATIONS ANY OFFSETS OR COUNTERCLAIMS WHICH IT MAY
HAVE.
(e) Each Credit and this Agreement shall be subject to the Uniform Customs
and Practice for Documentary Credits (1993 Revision) International Chamber of
Commerce Publication No. 500, or the most recent revision thereof (the "UCP"),
the terms of which are known to us, and the same shall be considered as
incorporated herein. Solely for purposes of interpreting the UCP's application
to this Agreement and Credits issued hereunder, Issuer shall be deemed to be a
"bank" as such term is used in the UCP.
16. NOTICES.
Any notice to GE Capital or Issuer shall be effective only if in writing or
by authenticated teletransmission acceptable to GE Capital or Issuer, as
applicable, directed to the attention of and received by GE Capital or Issuer's
Letter of Credit Group, as applicable. Any notice to or demand on Applicant, or,
if more than one Applicant executes this Agreement, the Agent Applicant, shall
be binding on all Applicants and shall be effective when made to Applicant, or
if more than one Applicant executes this Agreement, the Agent Applicant, by
mail, telegraph, facsimile, telephone or otherwise, in the case of mailed,
telegraphed or cabled notices, to the address appearing below such Applicant's
signature or at such other address as may hereafter be specified in a notice
designated as a notice of change of address under this paragraph, and in the
case of telephonic or facsimile notices, to the telephone number of such
Applicant appearing below Applicant's signature. Any requirements under
applicable law of reasonable notice by GE Capital or Issuer to Applicant of any
event shall be met if notice is given to Applicant or Agent Applicant, as the
case may be, in the manner prescribed above at least seven days before (a) the
date of such event or (b) the date after which such event will occur.
17. THIRD PARTY BENEFICIARY.
Applicant hereby acknowledges that Issuer is a third party beneficiary
under this Agreement and may enforce its rights under this Agreement directly
against the Applicant as if Issuer were named herein as a party.
18. GENERAL.
(a) If this Agreement is executed by two or more Applicants, they shall be
jointly and severally liable hereunder, and all provisions hereof regarding the
Collateral shall apply to the Obligations and Collateral of any or all of them.
(b) This Agreement shall be binding upon the heirs, executors,
administrators, assigns and successors of each of the Applicant(s) and shall
inure to the benefit of and be enforceable by GE Capital, Issuer and their
respective successors, transferees and assigns.
(c) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
8
(d) This Agreement shall be deemed to be a "Loan Document" for all purposes
under the Credit Agreement.
(e) This Agreement may be executed in any number of separate counterparts,
each of which shall collectively and separately constitute one agreement.
Date:
NAME OF APPLICANT:
BRIGHTPOINT NORTH AMERICA L.P. GENERAL ELECTRIC CAPITAL CORPORATION
By: BRIGHTPOINT NORTH AMERICA, By: --------------------------------
INC., its general partner Name: -------------------------
Title: Duly Authorized Signatory
By: -------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
Address of Applicant:
000 Xxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax No.: -----------------------------
9
JOINT SIGNATURE AGREEMENT
In consideration of your establishment from time to time of a Credit
substantially as applied for herein, it is further agreed that this Agreement
shall be the joint and several agreement of the undersigned and all property
referred to in this Agreement as belonging to Applicant shall be understood to
refer to the joint property of any or all of the several Applicants as well as
to the individual property of each of them. The happening of any Event of
Default as specified in paragraph 6 of this Agreement with respect to any
Applicant shall mature the obligations of all Applicants. A demand made on any
Applicant pursuant to paragraph 1 of this Agreement shall fix the exchange rate
as to all Applicants.
It is agreed that Wireless Fulfillment Services LLC shall appear in each
Credit as Account Party and that Brightpoint North America L.P. ("AGENT
APPLICANT") has the exclusive right to issue all instructions on any and all
matters relating to such Credit, including, without limitation, instructions as
to disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in such Credit or any other matter.
BRIGHTPOINT NORTH AMERICA L.P. WIRELESS FULFILLMENT SERVICES LLC
JOINT APPLICANT JOINT APPLICANT
By: BRIGHTPOINT NORTH AMERICA, By: BRIGHTPOINT, INC., its manager
INC., its general partner
By: By:
------------------------ --------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx
Title: Executive Vice President Title: Executive Vice President,
& Secretary General Counsel &
Secretary
Address of Joint Applicant Address of Joint Applicant
000 Xxxxxxx Xxxxxxx 000 Xxxxxxx Xxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
AUTHORIZATION AND AGREEMENT OF ACCOUNT PARTY
Gentlemen:
We hereby join the request of Applicant to issue from time to time the
Credits, described on page 1 with our name appearing as Account Party.
In consideration of your issuing each Credit in this form it is agreed that
Applicant has the exclusive right to issue all instructions on any and all
matters relating to such Credits including, without limitation, instructions as
to disposition of documents and any unutilized funds, and waivers of
discrepancies, and to agree with you upon any amendments, modifications,
extensions, renewals, or increases in each Credit or any other matters
irrespective of whether the same may now or hereafter affect our rights or those
of our successors or assigns.
WIRELESS FULFILLMENT SERVICES LLC
Account Party
By: BRIGHTPOINT, INC., its manager
By:
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel & Secretary
Address of Account Party:
000 Xxxxxxx Xxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
ANNEX I
The Applicant agrees to pay the following fees with respect to the Credits:
1. upon issuance thereof, the greater of (a) 1/4 of 1% of the amount of the
Credit or (b) $120;
2. upon any amendment which increases the amount thereof, the greater of
(c) 1/4 of 1% of such increased amount or (d) $100;
3. upon any other amendment thereof, $100;
4. upon the negotiation thereof, the greater of (e) 1/4 of 1% of the amount
thereof or (f) $120; and
5. with respect to any other activity related to such Credit, the standard
fees and charges of Issuer for such activity.
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of October 31, 2001, among Brightpoint North
America L.P., a Delaware limited partnership ("Brightpoint"), Wireless
Fulfillment Services LLC, a California limited liability company ("Wireless");
(Brightpoint and Wireless are sometimes collectively referred to herein as
"Grantors" and individually as a "Grantor"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, individually and in its capacity as Agent
for Lenders.
W I T N E S S T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantors, the other Persons named therein as Credit Parties,
Agent and Lenders (including all annexes, exhibits and schedules thereto, as
from time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), Lenders have agreed to make the Loans and to incur Letter
of Credit Obligations on behalf of Grantors;
WHEREAS, in order to induce Agent and Lenders to enter into the Credit
Agreement and other Loan Documents and to induce Lenders to make the Loans and
to incur Letter of Credit Obligations as provided for in the Credit Agreement,
Grantors have agreed to grant a continuing Lien on the Collateral (as
hereinafter defined) to secure the Obligations;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS.
(a) All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in Annex A thereto. All other
terms contained in this Security Agreement, unless the context indicates
otherwise, have the meanings provided for by the Code to the extent the same are
used or defined therein.
(b) "Uniform Commercial Code jurisdiction" means any jurisdiction that has
adopted all or substantially all of Article 9 as contained in the 2000 Official
Text of the Uniform Commercial Code, as recommended by the National Conference
of Commissioners on Uniform State Laws and the American Law Institute, together
with any subsequent amendments or modifications to the Official Text.
2. GRANT OF LIEN.
(a) To secure the prompt and complete payment, performance and observance
of all of the Obligations (specifically including, without limitation, each
Grantor's Obligations arising under the cross-guaranty provisions of Section 12
of the Credit Agreement), each Grantor hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to Agent, for itself and the
benefit of Lenders, a Lien upon all of its right, title and interest in, to and
under all
personal property and other assets, whether now owned by or owing to,
or hereafter acquired by or arising in favor of such Grantor (including under
any trade names, styles or derivations thereof), and whether owned or consigned
by or to, or leased from or to, such Grantor, and regardless of where located
(all of which being hereinafter collectively referred to as the "Collateral"),
including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment intangibles and
Software);
(v) all Goods (including Inventory, Equipment and Fixtures);
(vi) all Instruments;
(vii) all Investment Property;
(viii) all Deposit Accounts, of any Grantor, including all Blocked
Accounts, Concentration Accounts, Disbursement Accounts, and all other bank
accounts and all deposits therein;
(ix) all money, cash or cash equivalents of any Grantor;
(x) all Supporting Obligations and Letter-of-Credit Rights of any
Grantor; and
(xi) to the extent not otherwise included, all Proceeds, tort claims,
insurance claims and other rights to payments not otherwise included in the
foregoing and products of the foregoing and all accessions to,
substitutions and replacements for, and rents and profits of, each of the
foregoing.
(b) In addition, to secure the prompt and complete payment, performance and
observance of the Obligations and in order to induce Agent and Lenders as
aforesaid, each Grantor hereby grants to Agent, for itself and the benefit of
Lenders, a right of setoff against the property of such Grantor held by Agent or
any Lender, consisting of property described above in Section 2(a) now or
hereafter in the possession or custody of or in transit to Agent or any Lender,
for any purpose, including safekeeping, collection or pledge, for the account of
such Grantor, or as to which such Grantor may have any right or power.
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3. AGENT'S AND LENDERS' RIGHTS: LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
(a) It is expressly agreed by Grantors that, anything herein to the
contrary notwithstanding, each Grantor shall remain liable under each of its
Contracts and each of its Licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder. Neither Agent nor any
Lender shall have any obligation or liability under any Contract or License by
reason of or arising out of this Security Agreement or the granting herein of a
Lien thereon or the receipt by Agent or any Lender of any payment relating to
any Contract or License pursuant hereto. Neither Agent nor any Lender shall be
required or obligated in any manner to perform or fulfill any of the obligations
of any Grantor under or pursuant to any Contract or License, or to make any
payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by any party under
any Contract or License, or to present or file any claims, or to take any action
to collect or enforce any performance or the payment of any amounts which may
have been assigned to it or to which it may be entitled at any time or times.
(b) Agent may at any time after an Event of Default has occurred and be
continuing (or if any rights of set-off (other than set-offs against an Account
arising under the Contract giving rise to the same Account) or contra accounts
may be asserted with respect to the following), without prior notice to any
Grantor, notify Account Debtors and other Persons obligated on the Collateral
that Agent has a security interest therein, and that payments shall be made
directly to Agent. Upon the request of Agent, each Grantor shall so notify
Account Debtors and other Persons obligated on Collateral. Once any such notice
has been given to any Account Debtor or other Person obligated on the
Collateral, the affected Grantor shall not give any contrary instructions to
such Account Debtor or other Person without Agent's prior written consent.
(c) Agent may at any time in Agent's own name, in the name of a nominee of
Agent or in the name of any Grantor communicate (by mail, telephone, facsimile
or otherwise) with Account Debtors, parties to Contracts and obligors in respect
of Instruments to verify with such Persons, to Agent's satisfaction, the
existence, amount terms of, and any other matter relating to, Accounts, payment
intangibles, Instruments or Chattel Paper. If a Default or Event of Default
shall have occurred and be continuing, each Grantor, at its own expense, shall
cause the independent certified public accountants then engaged by such Grantor
to prepare and deliver to Agent and each Lender at any time and from time to
time promptly upon Agent's request the following reports with respect to each
Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts;
(iii) trial balances; and (iv) a test verification of such Accounts as Agent may
request. Each Grantor, at its own expense, shall deliver to Agent the results of
each physical verification, if any, which such Grantor may in its discretion
have made, or caused any other Person to have made on its behalf, of all or any
portion of its Inventory.
3
4. REPRESENTATIONS AND WARRANTIES. Each Grantor represents and warrants
that:
(a) Each Grantor has rights in and the power to transfer each item of the
Collateral upon which it purports to xxxxx x Xxxx hereunder free and clear of
any and all Liens other than Permitted Encumbrances.
(b) No effective security agreement, financing statement, equivalent
security or Lien instrument or continuation statement covering all or any part
of the Collateral is on file or of record in any public office, except such as
may have been filed (i) by any Grantor in favor of Agent pursuant to this
Security Agreement or the other Loan Documents, and (ii) in connection with any
other Permitted Encumbrances.
(c) This Security Agreement is effective to create a valid and continuing
Lien on and, upon the filing of the appropriate financing statements listed on
Schedule I hereto, a perfected Lien in favor of Agent, for itself and the
benefit of Lenders, on the Collateral with respect to which a Lien may be
perfected by filing pursuant to the Code. Such Lien is prior to all other Liens,
except Permitted Encumbrances that would be prior to Liens in favor of Agent for
the benefit of Agent and Lenders as a matter of law, and is enforceable as such
as against any and all creditors of and purchasers from any Grantor (other than
purchasers and lessees of Inventory in the ordinary course of business and
non-exclusive licensees of General Intangibles in the ordinary course of
business). All action by any Grantor necessary or desirable to protect and
perfect such Lien on each item of the Collateral has been duly taken.
(d) Schedule II hereto lists all Instruments, Letter of Credit Rights and
Chattel Paper of each Grantor. All action by any Grantor necessary or desirable
to protect and perfect the Lien of Agent on each item set forth on Schedule II
(including the delivery of all originals thereof to Agent and the legending of
all Chattel Paper as required by Section 5(b) hereof) has been duly taken. The
Lien of Agent, for the benefit of Agent and Lenders, on the Collateral listed on
Schedule II hereto is prior to all other Liens, except Permitted Encumbrances
that would be prior to the Liens in favor of Agent as a matter of law, and is
enforceable as such against any and all creditors of and purchasers from any
Grantor.
(e) Each Grantor's name as it appears in official filings in the state of
its incorporation or other organization, the type of entity of each Grantor
(including corporation, partnership, limited partnership or limited liability
company), organizational identification number issued by each Grantor's state of
incorporation or organization or a statement that no such number has been
issued, each Grantor's state of organization or incorporation, the location of
each Grantor's chief executive office, principal place of business, offices, all
warehouses and premises where Collateral is stored or located, and the locations
of its books and records concerning the Collateral are set forth on Schedule
IIIA and Schedule III-B, respectively, hereto. Each Grantor has only one state
of incorporation or organization.
(f) With respect to the Accounts, except as specifically disclosed in the
most recent Collateral Report delivered to Agent (i) they represent bona fide
sales of Inventory or rendering of services to Account Debtors in the ordinary
course of each Grantor's business and
4
are not evidenced by a judgment, Instrument or Chattel Paper; (ii) there are no
setoffs, claims or disputes existing or asserted with respect thereto and no
Grantor has made any agreement with any Account Debtor for any extension of time
for the payment thereof, any compromise or settlement for less than the full
amount thereof, any release of any Account Debtor from liability therefor, or
any deduction therefrom except a discount or allowance allowed by such Grantor
in the ordinary course of its business for prompt payment and disclosed to
Agent; (iii) to each Grantor's knowledge, there are no facts, events or
occurrences which in any way impair the validity or enforceability thereof or
could reasonably be expected to reduce the amount payable thereunder as shown on
any Grantor's books and records and any invoices, statements and Collateral
Reports delivered to Agent and Lenders with respect thereto; (iv) no Grantor has
received any notice of proceedings or actions which are threatened or pending
against any Account Debtor which might result in any adverse change in such
Account Debtor's financial condition; and (v) no Grantor has knowledge that any
Account Debtor is unable generally to pay its debts as they become due. Further
with respect to the Accounts (x) the amounts shown on all invoices, statements
and Collateral Reports which may be delivered to the Agent with respect thereto
are actually and absolutely owing to such Grantor as indicated thereon and are
not in any way contingent; (y) no payments have been or shall be made thereon
except payments immediately delivered to the applicable Blocked Accounts or the
Agent as required pursuant to the terms of Annex C to the Credit Agreement; and
(z) to each Grantor's knowledge, all Account Debtors have the capacity to
contract.
(g) With respect to any Inventory scheduled or listed on the most recent
Collateral Report delivered to Agent pursuant to the terms of this Security
Agreement or the Credit Agreement, (i) such Inventory is located at one of the
applicable Grantor's locations set forth on Schedule IIIA or Schedule IIIB
hereto, as applicable, (ii) no Inventory is now, or shall at any time or times
hereafter be stored at any other location without Agent's prior consent, and if
Agent gives such consent, each applicable Grantor will concurrently therewith
obtain, to the extent required by the Credit Agreement, bailee, landlord and
mortgagee agreements, (iii) the applicable Grantor has good, indefeasible and
merchantable title to such Inventory and such Inventory is not subject to any
Lien or security interest or document whatsoever except for the Lien granted to
Agent, for the benefit of Agent and Lenders, and except for Permitted
Encumbrances, (iv) except as specifically disclosed in the most recent
Collateral Report delivered to Agent, such Inventory is Eligible Inventory of
good and merchantable quality, free from any defects, (v) such Inventory is not
subject to any licensing, patent, royalty, trademark, trade name or copyright
agreements with any third parties which would require any consent of any third
party upon sale or disposition of that Inventory or the payment of any monies to
any third party upon such sale or other disposition, and (vi) the completion of
manufacture, sale or other disposition of such Inventory by Agent following an
Event of Default shall not require the consent of any Person and shall not
constitute a breach or default under any contract or agreement to which any
Grantor is a party or to which such property is subject.
(h) No Grantor has any interest in, or title to, any Patent, Trademark or
Copyright except as set forth in Schedule IV hereto. This Security Agreement is
effective to create a valid and continuing Lien on and, upon filing of the
Copyright Security Agreements with the United States Copyright Office and filing
of the Patent Security Agreements and the
5
Trademark Security Agreements with the United State Patent and Trademark Office,
perfected Liens in favor of Agent on each Grantor' s Patents, Trademarks and
Copyrights and such perfected Liens are enforceable as such as against any and
all creditors of and purchasers from any Grantor. Upon filing of the Copyright
Security Agreements with the United States Copyright Office and filing of the
Patent Security Agreements and the Trademark Security Agreements with the United
State Patent and Trademark Office and the filing of appropriate financing
statements listed on Schedule I hereto, all action necessary or desirable to
protect and perfect Agent's Lien on each Grantor's Patents, Trademarks or
Copyrights shall have been duly taken.
5. COVENANTS. Each Grantor covenants and agrees with Agent, for the benefit
of Agent and Lenders, that from and after the date of this Security Agreement
and until the Termination Date:
(a) Further Assurances: Pledge of Instruments; Chattel Paper.
(i) At any time and from time to time, upon the written request of
Agent and at the sole expense of Grantors, each Grantor shall promptly and
duly execute and deliver any and all such further instruments and documents
and take such further actions as Agent may deem desirable to obtain the
full benefits of this Security Agreement and of the rights and powers
herein granted, including (A) using its best efforts to secure all consents
and approvals necessary or appropriate for the assignment to or for the
benefit of Agent of any License or Contract held by such Grantor and to
enforce the security interests granted hereunder; and (B) filing any
financing or continuation statements under the Code with respect to the
Liens granted hereunder or under any other Loan Document as to those
jurisdictions that are not Uniform Commercial Code jurisdictions.
(ii) Unless Agent shall otherwise consent in writing (which consent
may be revoked), each Grantor shall deliver to Agent all Collateral
consisting of negotiable Documents, certificated securities, Chattel Paper
and Instruments (in each case, accompanied by stock powers, allonges or
other instruments of transfer executed in blank) promptly after such Credit
Party receives the same.
(iii) Each Grantor shall, in accordance with the terms of the Credit
Agreement, obtain or use its best efforts to obtain waivers or
subordinations of Liens from landlords and mortgagees, and each Credit
Party shall in all instances obtain signed acknowledgements of Agent's
Liens from bailees having possession of any Grantor's Goods that they hold
for the benefit of Agent.
(iv) If required by the terms of the Credit Agreement and not waived
by Agent in writing (which waiver may be revoked), each Grantor shall
obtain authenticated Control Letters from each issuer of uncertificated
securities, securities intermediary, or commodities intermediary issuing or
holding any financial assets or commodities to or for any Grantor.
6
(v) In accordance with Annex C to the Credit Agreement, each Grantor
shall obtain a blocked account, lockbox or similar agreement with each bank
or financial institution holding a Deposit Account for such Grantor.
(vi) Each Grantor that is or becomes the beneficiary of a letter of
credit shall promptly, and in any event within two (2) Business Days after
becoming a beneficiary, notify Agent thereof and enter into a tri-party
agreement with Agent and the issuer and/or confirmation bank with respect
to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Agent
and directing all payments thereunder to the Collection Account, all in
form and substance reasonably satisfactory to Agent.
(vii) Each Grantor shall take all steps necessary to grant the Agent
control of all electronic chattel paper in accordance with the Code and all
"transferable records" as defined in each of the Uniform Electronic
Transactions Act and the Electronic Signatures in Global and National
Commerce Act.
(viii) Each Grantor hereby irrevocably authorizes the Agent at any
time and from time to time to file in any filing office in any Uniform
Commercial Code jurisdiction any initial financing statements and
amendments thereto that (a) indicate the Collateral (i) as all assets of
such Grantor or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls within the scope of
Article 9 of the Code or such jurisdiction, or (ii) as being of an equal or
lesser scope or with greater detail, and (b) contain any other information
required by part 5 of Article 9 of the Code for the sufficiency or filing
office acceptance of any financing statement or amendment, including (i)
whether such Grantor is an organization, the type of organization and any
organization identification number issued to such Grantor, and (ii) in the
case of a financing statement filed as a fixture filing or indicating
Collateral as as-extracted collateral or timber to be cut, a sufficient
description of real property to which the Collateral relates. Each Grantor
agrees to furnish any such information to the Agent promptly upon request.
Each Grantor also ratifies its authorization for the Agent to have filed in
any Uniform Commercial Code jurisdiction any initial financing statements
or amendments thereto if filed prior to the date hereof.
(ix) Each Grantor shall promptly, and in any event within ten (10)
Business Days after the same is acquired by it, notify Agent of any
commercial tort claim (as defined in the Code) in excess of $100,000
acquired by it and unless otherwise consented by Agent, such Grantor shall
enter into a supplement to this Security Agreement, granting to Agent a
Lien in such commercial tort claim.
(b) Maintenance of Records. Grantors shall keep and maintain, at their own
cost and expense, satisfactory and complete records of the Collateral, including
a record of any and all payments received and any and all credits granted with
respect to the Collateral and all other dealings with the Collateral. Grantors
shall xxxx their books and records pertaining to the Collateral to evidence this
Security Agreement and the Liens granted hereby. If any Grantor retains
possession of any Chattel Paper or Instruments with Agent's consent, such
Chattel Paper and Instruments shall be marked with the following legend: "This
writing and the obligations
7
evidenced or secured hereby are subject to the security interest of General
Electric Capital Corporation, as Agent, for the benefit of Agent and certain
Lenders."
(c) Covenants Regarding Patent, Trademark and Copyright Collateral.
(i) Grantors shall notify Agent immediately if they know or have
reason to know that any application or registration relating to any Patent,
Trademark or Copyright (now or hereafter existing) may become abandoned or
dedicated, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding
in the United States Patent and Trademark Office, the United States
Copyright Office or any court) regarding any Grantor's ownership of any
Patent, Trademark or Copyright, its right to register the same, or to keep
and maintain the same.
(ii) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for the
registration of any Patent, Trademark or Copyright with the United States
Patent and Trademark Office, the United States Copyright Office or any
similar office or agency without giving Agent prior written notice thereof,
and, upon request of Agent, Grantor shall execute and deliver any and all
Patent Security Agreements, Copyright Security Agreements or Trademark
Security Agreements as Agent may request to evidence Agent's Lien on such
Patent, Trademark or Copyright, and the General Intangibles of such Grantor
relating thereto or represented thereby.
(iii) Grantors shall take all actions necessary or requested by Agent
to maintain and pursue each application, to obtain the relevant
registration and to maintain the registration of each of the Patents,
Trademarks and Copyrights (now or hereafter existing), including the filing
of applications for renewal, affidavits of use, affidavits of
noncontestability and opposition and interference and cancellation
proceedings.
(iv) In the event that any of the Patent, Trademark or Copyright
Collateral is infringed upon, or misappropriated or diluted by a third
party, such Grantor shall comply with Section 5(a)(ix) of this Security
Agreement. Such Grantor shall, unless such Grantor shall reasonably
determine that such Patent, Trademark or Copyright Collateral is in no way
material to the conduct of its business or operations, promptly xxx for
infringement, misappropriation or dilution and to recover any and all
damages for such infringement, misappropriation or dilution, and shall take
such other actions as Agent shall deem appropriate under the circumstances
to protect such Patent, Trademark or Copyright Collateral.
(d) Indemnification. In any suit, proceeding or action brought by Agent or
any Lender relating to any Collateral for any sum owing with respect thereto or
to enforce any rights or claims with respect thereto, each Grantor will save,
indemnify and keep Agent and Lenders harmless from and against all expense
(including reasonable attorneys' fees and expenses), loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction of
liability whatsoever of the Account Debtor or other Person obligated on the
Collateral, arising
8
out of a breach by any Grantor of any obligation thereunder or arising out of
any other agreement, indebtedness or liability at any time owing to, or in favor
of, such obligor or its successors from such Grantor, except in the case of
Agent or any Lender, to the extent such expense, loss, or damage is attributable
solely to the gross negligence or willful misconduct of Agent or such Lender as
finally determined by a court of competent jurisdiction. All such obligations of
Grantors shall be and remain enforceable against and only against Grantors and
shall not be enforceable against Agent or any Lender.
(e) Compliance with Terms of Accounts, etc. In all material respects, each
Grantor will perform and comply with all obligations in respect of the
Collateral and all other agreements to which it is a party or by which it is
bound relating to the Collateral.
(f) Limitation on Liens on Collateral. No Grantor will create, permit or
suffer to exist, and each Grantor will defend the Collateral against, and take
such other action as is necessary to remove, any Lien on the Collateral except
Permitted Encumbrances, and will defend the right, title and interest of Agent
and Lenders in and to any of such Grantor's rights under the Collateral against
the claims and demands of all Persons whomsoever.
(g) Limitations on Disposition. No Grantor will sell, license, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or contract
to do so except as permitted by the Credit Agreement.
(h) Further Identification of Collateral. Grantors will, if so requested by
Agent, furnish to Agent, as often as Agent requests, statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as Agent may reasonably request, all in such
detail as Agent may specify.
(i) Notices. Grantors will advise Agent promptly, in reasonable detail, (i)
of any Lien (other than Permitted Encumbrances) or claim made or asserted
against any of the Collateral, and (ii) of the occurrence of any other event
which would have a material adverse effect on the aggregate value of the
Collateral or on the Liens created hereunder or under any other Loan Document.
(j) Good Standing Certificates. Not less frequently than once during each
calendar quarter, each Grantor shall, unless Agent shall otherwise consent,
provide to Agent a certificate of good standing from its state of incorporation
or organization.
(k) No Reincorporation. Without limiting the prohibitions on mergers
involving the Grantors contained in the Credit Agreement, no Grantor shall
reincorporate or reorganize itself under the laws of any jurisdiction other than
the jurisdiction in which it is incorporated or organized as of the date hereof
without the prior written consent of Agent.
(l) Terminations; Amendments Not Authorized. Each Grantor acknowledges that
it is not authorized to file any financing statement or amendment or termination
statement with respect to any financing statement without the prior written
consent of Agent and agrees that
9
it will not do so without the prior written consent of Agent, subject to such
Grantor's rights under Section 9-509(d)(2) of the Code.
(m) Authorized Terminations. Agent will promptly deliver to each Grantor
for filing or authorize each Grantor to prepare and file termination statements
and releases in accordance with Section 11.2(e) of the Credit Agreement.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
On the Closing Date each Grantor shall execute and deliver to Agent a power
of attorney (the "Power of Attorney") substantially in the form attached hereto
as Exhibit A. The power of attorney granted pursuant to the Power of Attorney is
a power coupled with an interest and shall be irrevocable until the Termination
Date. The powers conferred on Agent, for the benefit of Agent and Lenders, under
the Power of Attorney are solely to protect Agent's interests (for the benefit
of Agent and Lenders) in the Collateral and shall not impose any duty upon Agent
or any Lender to exercise any such powers. Agent agrees that (a) except for the
powers granted in clause (h) of the Power of Attorney, it shall not exercise any
power or authority granted under the Power of Attorney unless an Event of
Default has occurred and is continuing, and (b) Agent shall account for any
moneys received by Agent in respect of any foreclosure on or disposition of
Collateral pursuant to the Power of Attorney provided that none of Agent or any
Lender shall have any duty as to any Collateral, and Agent and Lenders shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers. NONE OF AGENT, LENDERS OR THEIR RESPECTIVE AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL BE RESPONSIBLE
TO ANY GRANTOR FOR ANY ACT OR FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR
OTHERWISE, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT
JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL
DAMAGES.
7. REMEDIES: RIGHTS UPON DEFAULT.
(a) In addition to all other rights and remedies granted to it under this
Security Agreement, the Credit Agreement, the other Loan Documents and under any
other instrument or agreement securing, evidencing or relating to any of the
Obligations, if any Event of Default shall have occurred and be continuing,
Agent may exercise all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, each Grantor expressly agrees
that in any such event Agent, without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon such Grantor or any other Person
(all and each of which demands, advertisements and notices are hereby expressly
waived to the maximum extent permitted by the Code and other applicable law),
may forthwith enter upon the premises of such Grantor where any Collateral is
located through self-help, without judicial process, without first obtaining a
final judgment or giving such Grantor or any other Person notice and opportunity
for a hearing on Agent's claim or action and may collect, receive, assemble,
process, appropriate and realize upon the Collateral, or any part thereof, and
may forthwith sell, lease, license, assign, give an option or options to
10
purchase, or sell or otherwise dispose of and deliver said Collateral (or
contract to do so), or any part thereof, in one or more parcels at a public or
private sale or sales, at any exchange at such prices as it may deem acceptable,
for cash or on credit or for future delivery without assumption of any credit
risk. Agent or any Lender shall have the right upon any such public sale or
sales and, to the extent permitted by law, upon any such private sale or sales,
to purchase for the benefit of Agent and Lenders, the whole or any part of said
Collateral so sold, free of any right or equity of redemption, which equity of
redemption each Grantor hereby releases. Such sales may be adjourned and
continued from time to time with or without notice. Agent shall have the right
to conduct such sales on any Grantor's premises or elsewhere and shall have the
right to use any Grantor's premises without charge for such time or times as
Agent deems necessary or advisable.
If any Event of Default shall have occurred and be continued, each Grantor
further agrees, at Agent's request, to assemble the Collateral and make it
available to Agent at a place or places designated by Agent which are reasonably
convenient to Agent and such Grantor, whether at such Grantor's premises or
elsewhere. Until Agent is able to effect a sale, lease, or other disposition of
Collateral, Agent shall have the right to hold or use Collateral, or any part
thereof, to the extent that it deems appropriate for the purpose of preserving
Collateral or its value or for any other purpose deemed appropriate by Agent.
Agent shall have no obligation to any Grantor to maintain or preserve the rights
of such Grantor as against third parties with respect to Collateral while
Collateral is in the possession of Agent. Agent may, if it so elects, seek the
appointment of a receiver or keeper to take possession of Collateral and to
enforce any of Agent's remedies (for the benefit of Agent and Lenders), with
respect to such appointment without prior notice or hearing as to such
appointment. Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale to the Obligations as
provided in the Credit Agreement, and only after so paying over such net
proceeds, and after the payment by Agent of any other amount required by any
provision of law, need Agent account for the surplus, if any, to any Grantor. To
the maximum extent permitted by applicable law, each Grantor waives all claims,
damages, and demands against Agent or any Lender arising out of the
repossession, retention or sale of the Collateral except such as arise solely
out of the gross negligence or willful misconduct of Agent or such Lender as
finally determined by a court of competent jurisdiction. Each Grantor agrees
that ten (10) days prior notice by Agent of the time and place of any public
sale or of the time after which a private sale may take place is reasonable
notification of such matters. Grantors shall remain liable for any deficiency if
the proceeds of any sale or disposition of the Collateral are insufficient to
pay all Obligations, including any attorneys' fees and other expenses incurred
by Agent or any Lender to collect such deficiency.
(b) Except as otherwise specifically provided herein, each Grantor hereby
waives presentment, demand, protest or any notice (to the maximum extent
permitted by applicable law) of any kind in connection with this Security
Agreement or any Collateral.
(c) To the extent that applicable law imposes duties on the Agent to
exercise remedies in a commercially reasonable manner, each Grantor acknowledges
and agrees that it is not commercially unreasonable for the Agent (i) to fail to
incur expenses reasonably deemed significant by the Agent to prepare Collateral
for disposition or otherwise to complete raw material or work in process into
finished goods or other finished products for disposition, (ii) to fail to
obtain third party consents for access to Collateral to be disposed of, or to
obtain or, if not
11
required by other law, to fail to obtain governmental or third party consents
for the collection or disposition of Collateral to be collected or disposed of,
(iii) to fail to exercise collection remedies against Account Debtors or other
Persons obligated on Collateral or to remove Liens on or any adverse claims
against Collateral, (iv) to exercise collection remedies against Account Debtors
and other Persons obligated on Collateral directly or through the use of
collection agencies and other collection specialists, (v) to advertise
dispositions of Collateral through publications or media of general circulation,
whether or not the Collateral is of a specialized nature, (vi) to contact other
Persons, whether or not in the same business as the Grantor, for expressions of
interest in acquiring all or any portion of such Collateral, (vii) to hire one
or more professional auctioneers to assist in the disposition of Collateral,
whether or not the Collateral is of a specialized nature, (viii) to dispose of
Collateral by utilizing internet sites that provide for the auction of assets of
the types included in the Collateral or that have the reasonable capacity of
doing so, or that match buyers and sellers of assets, (ix) to dispose of assets
in wholesale rather than retail markets, (x) to disclaim disposition warranties,
such as title, possession or quiet enjoyment, (xi) to purchase insurance or
credit enhancements to insure the Agent against risks of loss, collection or
disposition of Collateral or to provide to the Agent a guaranteed return from
the collection or disposition of Collateral, or (xii) to the extent deemed
appropriate by the Agent, to obtain the services of other brokers, investment
bankers, consultants and other professionals to assist the Agent in the
collection or disposition of any of the Collateral. Each Grantor acknowledges
that the purpose of this Section 7(c) is to provide non-exhaustive indications
of what actions or omissions by the Agent would not be commercially unreasonable
in the Agent's exercise of remedies against the Collateral and that other
actions or omissions by the Agent shall not be deemed commercially unreasonable
solely on account of not being indicated in this Section 7(c). Without
limitation upon the foregoing, nothing contained in this Section 7(c) shall be
construed to grant any rights to any Grantor or to impose any duties on Agent
that would not have been granted or imposed by this Security Agreement or by
applicable law in the absence of this Section 7(c).
(d) Neither the Agent nor the Lenders shall be required to make any demand
upon, or pursue or exhaust any of their rights or remedies against, any Grantor,
any other obligor, guarantor, pledgor or any other Person with respect to the
payment of the Obligations or to pursue or exhaust any of their rights or
remedies with respect to any Collateral therefor or any direct or indirect
guarantee thereof. Neither the Agent nor the Lenders shall be required to
marshal the Collateral or any guarantee of the Obligations or to resort to the
Collateral or any such guarantee in any particular order, and all of its and
their rights hereunder or under any other Loan Document shall be cumulative. To
the extent it may lawfully do so, each Grantor absolutely and irrevocably waives
and relinquishes the benefit and advantage of, and covenants not to assert
against the Agent or any Lender, any valuation, stay, appraisement, extension,
redemption or similar laws and any and all rights or defenses it may have as a
surety now or hereafter existing which, but for this provision, might be
applicable to the sale of any Collateral made under the judgment, order or
decree of any court, or privately under the power of sale conferred by this
Security Agreement, or otherwise.
8. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY COLLATERAL. For the
purpose of enabling Agent to exercise rights and remedies under
12
Section 7 hereof (including, without limiting the terms of Section 7 hereof, in
order to take possession of, hold, preserve, process, assemble, prepare for
sale, market for sale, sell or otherwise dispose of Collateral) at such time as
Agent shall be lawfully entitled to exercise such rights and remedies, each
Grantor hereby grants to Agent, for the benefit of Agent and Lenders, an
irrevocable, nonexclusive license (exercisable without payment of royalty or
other compensation to such Grantor) to use, license or sublicense any
Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license access to all
media in which any of the licensed items may be recorded or stored and to all
computer software and programs used for the compilation or printout thereof.
9. LIMITATION ON AGENT'S AND LENDERS' DUTY IN RESPECT OF COLLATERAL. Agent
and each Lender shall use reasonable care with respect to the Collateral in its
possession or under its control. Neither Agent nor any Lender shall have any
other duty as to any Collateral in its possession or control or in the
possession or control of any agent or nominee of Agent or such Lender, or any
income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto.
10. REINSTATEMENT. This Security Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of any
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of the Obligations,
whether as a "voidable preference," "fraudulent conveyance," or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
11. NOTICES. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desires to give and serve upon any
other party any communication with respect to this Security Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be given in the manner, and deemed received, as
provided for in the Credit Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Security
Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Security
Agreement. This Security Agreement is to be read, construed and applied together
with the Credit Agreement and the other Loan Documents which, taken together,
set forth the complete
13
understanding and agreement of Agent, Lenders and Grantors with respect to the
matters referred to herein and therein.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither Agent nor any Lender shall by
any act, delay, omission or otherwise be deemed to have waived any of its rights
or remedies hereunder, and no waiver shall be valid unless in writing, signed by
Agent and then only to the extent therein set forth. A waiver by Agent of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have had on any future occasion.
No failure to exercise nor any delay in exercising on the part of Agent or any
Lender, any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Security Agreement may be waived, altered, modified
or amended except by an instrument in writing, duly executed by Agent and
Grantors.
14. LIMITATION BY LAW. All rights, remedies and powers provided in this
Security Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Security Agreement are intended to be subject to all applicable mandatory
provisions of law that may be controlling and to be limited to the extent
necessary so that they shall not render this Security Agreement invalid,
unenforceable, in whole or in part, or not entitled to be recorded, registered
or filed under the provisions of any applicable law.
15. TERMINATION OF THIS SECURITY AGREEMENT. Subject to Section 10 hereof,
this Security Agreement shall terminate upon the Termination Date.
16. SUCCESSORS AND ASSIGNS. This Security Agreement and all obligations of
Grantors hereunder shall be binding upon the successors and assigns of each
Grantor (including any debtor-in-possession on behalf of such Grantor) and
shall, together with the rights and remedies of Agent, for the benefit of Agent
and Lenders, hereunder, inure to the benefit of Agent and Lenders, all future
holders of any instrument evidencing any of the Obligations and their respective
successors and assigns. No sales of participations, other sales, assignments,
transfers or other dispositions of any agreement governing or instrument
evidencing the Obligations or any portion thereof or interest therein shall in
any manner impair the Lien granted to Agent, for the benefit of Agent and
Lenders, hereunder. No Grantor may assign, sell, hypothecate or otherwise
transfer any interest in or obligation under this Security Agreement.
17. COUNTERPARTS. This Security Agreement may be authenticated in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement. This Security Agreement may be authenticated by manual
signature, facsimile or, if approved in writing by Agent, electronic means, all
of which shall be equally valid.
18. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE
LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL
14
MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS SECURITY AGREEMENT AND
THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THAT STATE, AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. EACH GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE
OR FEDERAL COURTS LOCATED IN XXXX COUNTY, CITY OF CHICAGO, ILLINOIS, SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
GRANTORS, AGENT AND LENDERS PERTAINING TO THIS SECURITY AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED, THAT AGENT,
LENDERS AND GRANTORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE XXXX COUNTY, AND, PROVIDED, FURTHER, NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT
OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH GRANTOR EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH GRANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH GRANTOR AT THE ADDRESS SET FORTH
ON ANNEX I TO THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
19. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH
COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES
ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT,
15
LENDERS, AND GRANTORS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH, THIS SECURITY AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO.
20. SECTION TITLES. The Section titles contained in this Security Agreement
are and shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.
21. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in
the negotiation and drafting of this Security Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
22. ADVICE OF COUNSEL. Each of the parties represents to each other party
hereto that it has discussed this Security Agreement and, specifically, the
provisions of Section 18 and Section 19, with its counsel.
23. BENEFIT OF LENDERS. All Liens granted or contemplated hereby shall be
for the benefit of Agent, individually, and Lenders, and all proceeds or
payments realized from Collateral in accordance herewith shall be applied to the
Obligations in accordance with the terms of the Credit Agreement.
16
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
AS AGENT
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Duly Authorized Signatory
SCHEDULE I
to
SECURITY AGREEMENT
FILING JURISDICTIONS
A. Brightpoint North America L.P.
B. Wireless Fulfillment Services LLC
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS
CHATTEL PAPER
AND
LETTER OF CREDIT RIGHTS
A. Brightpoint North America L.P.
B. Wireless Fulfillment Services LLC
[TO BE COMPLETED BY GRANTORS]
SCHEDULE IIIA
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING BRIGHTPOINT'S COLLATERAL
I. Grantor's official name: _____________________________________________
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued:
IV. State or Incorporation or Organization of Brightpoint:
V. Chief Executive Office and principal place of business of Brightpoint:
VI. Corporate Offices of Brightpoint:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE IIIB
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING WIRELESS'S COLLATERAL
I. Grantor's official name:
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company):
III. Organizational identification number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued:
IV. State or Incorporation or Organization of Wireless:
V. Chief Executive Office and principal place of business of Wireless:
VI. Corporate Offices of Wireless:
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located:
IX. Locations of Records Concerning Collateral:
[TO BE COMPLETED BY GRANTORS]
SCHEDULE IV
to
SECURITY AGREEMENT
PATENTS, TRADEMARKS AND COPYRIGHTS
A. Brightpoint North America L.P.
B. Wireless Fulfillment Services LLC
[TO BE COMPLETED BY GRANTORS]
EXHIBIT A
POWER OF ATTORNEY
This Power of Attorney is executed and delivered by
______________________, a _____________________ corporation ("Grantor") to
General Electric Capital Corporation, a New York corporation (hereinafter
referred to as "Attorney"), as Agent for the benefit of Agent and Lenders, under
a Credit Agreement and a Security Agreement, both dated as of ____________,
2001, and other related documents (the "Loan Documents"). No person to whom this
Power of Attorney is presented, as authority for Attorney to take any action or
actions contemplated hereby, shall be required to inquire into or seek
confirmation from Grantor as to the authority of Attorney to take any action
described below, or as to the existence of or fulfillment of any condition to
this Power of Attorney, which is intended to grant to Attorney unconditionally
the authority to take and perform the actions contemplated herein, and Grantor
irrevocable waives any right to commence any suit or action, in law or equity,
against any person or entity which acts in reliance upon or acknowledges the
authority granted under this Power of Attorney. The power of attorney granted
hereby is coupled with an interest, and may not be revoked or canceled by
Grantor without Attorney' s written consent.
Grantor hereby irrevocably constitutes and appoints Attorney (and all
officers, employees or agents designated by Attorney), with full power of
substitution, as Grantor's true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of Grantor and in the
name of Grantor or in its own name, from time to time in Attorney's discretion,
to take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of the Loan Documents and, without limiting the generality of the
foregoing, Grantor hereby grants to Attorney the power and right, on behalf of
Grantor, without notice to or assent by Grantor, and at any time, to do the
following: (a) change the mailing address of Grantor, open a post office box on
behalf of Grantor, open mail for Grantor, and ask, demand, collect, give
acquittances and receipts for, take possession of, endorse any invoices, freight
or express bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, and notices in connection with any property
of Grantor; (b) effect any repairs to any asset of Grantor, or continue or
obtain any insurance and pay all or any part of the premiums therefor and costs
thereof, and make, settle and adjust all claims under such policies of
insurance, and make all determinations and decisions with respect to such
policies; (c) pay or discharge any taxes, liens, security interests, or other
encumbrances levied or placed on or threatened against Grantor or its property;
(d) defend any suit, action or proceeding brought against Grantor if Grantor
does not defend such suit, action or proceeding or if Attorney believes that
Grantor is not pursuing such defense in a manner that will maximize the recovery
to Attorney, and settle, compromise or adjust any suit, action, or proceeding
described above and, in connection therewith, give such discharges or releases
as Attorney may deem appropriate; (e) file or prosecute any claim, litigation,
suit or proceeding in any court of competent jurisdiction or before any
arbitrator, or take any other action otherwise deemed appropriate by Attorney
for the purpose of collecting any
and all such moneys due to Grantor whenever payable and to enforce any other
right in respect of Grantor's property; (f) cause the certified public
accountants then engaged by Grantor to prepare and deliver to Attorney at any
time and from time to time, promptly upon Attorney's request, the following
reports: (1) a reconciliation of all accounts, (2) an aging of all accounts, (3)
trial balances, (4) test verifications of such accounts as Attorney may request,
and (5) the results of each physical verification of inventory; (g) communicate
in its own name with any party to any Contract with regard to the assignment of
the right, title and interest of such Grantor in and under the Contracts and
other matters relating thereto; (h) to file such financing statements with
respect to the Security Agreement, with or without Grantor's signature, or to
file a photocopy of the Security Agreement in substitution for a financing
statement, as the Agent may deem appropriate and to execute in Grantor's name
such financing statements and amendments thereto and continuation statements
which may require the Grantor's signature; and (i) execute, in connection with
any sale provided for in any Loan Document, any endorsements, assignments or
other instruments of conveyance or transfer with respect to the Collateral and
to otherwise direct such sale or resale, all as though Attorney were the
absolute owner of the property of Grantor for all purposes, and to do, at
Attorney's option and Grantor's expense, at any time or from time to time, all
acts and other things that Attorney reasonably deems necessary to perfect,
preserve, or realize upon Grantor's property or assets and Attorney's Liens
thereon, all as fully and effectively as Grantor might do. Grantor hereby
ratifies, to the extent permitted by law, all that said Attorney shall lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this Power of Attorney is executed by Grantor, and
Grantor has caused its seal to be affixed pursuant to the authority of its board
of directors this _____________ day of ____________________.
[ GRANTOR ]
---------------------------------------
By:______________________________________
Name:____________________________________
Title:___________________________________
NOTARY PUBLIC CERTIFICATE
On this _____ day of ____________, 2001, [officer's name] who is
personally known to me appeared before me in his/her capacity as the [title] of
[Grantor] ("Grantor") and executed on behalf of Grantor the Power of Attorney in
favor of General Electric Capital Corporation to which this Certificate is
attached.
_________________________________
Notary Public
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 31, 2001, (together with all
amendments, if any, from time to time hereto, this "Agreement") between
BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited partnership (the "Pledgor")
and GENERAL ELECTRIC CAPITAL CORPORATION in its capacity as Agent for Lenders
("Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Borrowers, the other
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified (the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the shares of
Stock listed in Part A of Schedule I hereto and the owner of the promissory
notes and instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means those shares listed on Part A of Schedule I
hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares; and
(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares of stock of a Pledged Entity from
time to time acquired by Pledgor in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates
representing such additional shares, and all dividends, distributions,
cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Stock; and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates and all promissory
notes and instruments evidencing the Pledged Collateral shall be delivered to
and held by or on behalf of Agent, for itself and the benefit of Lenders,
pursuant hereto. All Pledged Shares shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Agent and all promissory notes or other instruments evidencing
the Pledged Indebtedness shall be endorsed by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Agent that:
-2-
(a) Pledgor is, and at the time of delivery of the Pledged Shares
to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien
created by this Agreement; Pledgor is and at the time of delivery of
the Pledged Indebtedness to Agent will be, the sole owner of such
Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by, and
is the legal, valid and binding obligations of, the Pledged Entities,
and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and
are presently represented by the certificates listed on Part A of
Schedule I hereto. As of the date hereof, there are no existing
options, warrants, calls or commitments of any character whatsoever
relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Agent
for the benefit of Agent and Lenders in the Pledged Collateral and the
proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares of Stock of each Pledged Entity; and
-3-
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5 survive
the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights
in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral
or xxxxx x Xxxx in the Pledged Collateral, unless otherwise expressly
permitted by the Credit Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Agent
from time to time may request in order to ensure to Agent and Lenders
the benefits of the Liens in and to the Pledged Collateral intended to
be created by this Agreement, including the filing of any necessary
Code financing statements, which may be filed by Agent with or (to the
extent permitted by law) without the signature of Pledgor, and will
cooperate with Agent, at Pledgor's expense, in obtaining all necessary
approvals and making all necessary filings under federal, state, local
or foreign law in connection with such Liens or any sale or transfer of
the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional Stock
or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to
Agent pursuant to any of the Loan Documents, which Stock, notes or
instruments are not already Pledged Collateral, promptly (and in any
event within three (3) Business Days) deliver to Agent a Pledge
Amendment, duly executed by Pledgor, in substantially the form of
Schedule II hereto (a "Pledge Amendment") in respect of any such
additional Stock, notes or instruments, pursuant to which Pledgor shall
pledge to Agent all of such additional Stock, notes and instruments.
Pledgor hereby authorizes Agent to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares and Pledged Indebtedness
listed on any Pledge Amendment delivered to Agent shall for all
purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not
-4-
inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares, the stated
capital or the authorized share capital of a Pledged Entity or the
issuance of any additional shares of its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral; (B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a Pledged
Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with clause (i) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit
of Agent, be segregated from the other property or funds of Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
-5-
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends,
interest, principal and other distributions made thereon, to sell in
one or more sales after ten (10) days' notice of the time and place of
any public sale or of the time at which a private sale is to take place
(which notice Pledgor agrees is commercially reasonable) the whole or
any part of the Pledged Collateral and to otherwise act with respect to
the Pledged Collateral as though Agent was the outright owner thereof.
Any sale shall be made at a public or private sale at Agent's place of
business, or at any place to be named in the notice of sale, either for
cash or upon credit or for future delivery at such price as Agent may
deem fair, and Agent may be the purchaser of the whole or any part of
the Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or any right of redemption. Each
sale shall be made to the highest bidder, but Agent reserves the right
to reject any and all bids at such sale which, in its discretion, it
shall deem inadequate. Demands of performance, except as otherwise
herein specifically provided for, notices of sale, advertisements and
the presence of property at sale are hereby waived and any sale
hereunder may be conducted by an auctioneer or any officer or agent of
Agent. PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE
PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED
COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL
POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT
SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING
THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT
OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO
SO OR FOR ANY DELAY IN DOING SO.
-6-
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to Agent, in its discretion, that the proceeds
of the sales of the whole of the Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, Agent may,
on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise
of its rights (when permitted under this Section 8) to sell the whole
or any part of the Pledged Shares hereunder, it is necessary or
advisable to effect a public registration of all or part of the Pledged
Collateral pursuant to the Securities Act of 1933, as amended (or any
similar statute then in effect) (the "Act"), Pledgor shall, in an
expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Agent shall desire to sell or
otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged Shares
by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such other
reasonable acts and things as may be required of it to enable Agent to
consummate the public sale or other disposition in such jurisdictions
of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
of the Pledged Collateral are delivered to the underwriters for sale
pursuant to such
-7-
registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect
to such Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant for the
purposes of such registration, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in a customary form and covering matters
of the type customarily covered by such comfort letters and as the
underwriters or Agent shall reasonably request. The opinion of counsel
referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is
being given as Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall
additionally cover such other financial matters (including information
as to the period ending not more than five (5) Business Days prior to
the date of such letter) with respect to the registration in respect of
which such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, and shall not be required to effect such registration
or to cause the same to be effected. Without limiting the generality of
the foregoing, in any such event, Agent in its discretion (x) may, in
accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Act (or similar statute), (y) may
approach and negotiate with a
-8-
single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act
and who will represent and agree that such purchaser is purchasing for
its own account, for investment and not with a view to the distribution
or sale of such Pledged Collateral or any part thereof. In addition to
a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this Section 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
(f) Pledgor recognizes that Agent may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause
(e) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of such sale
being private. Agent shall be under no obligation to delay a sale of
any of the Pledged Collateral for the period of time necessary to
permit the Pledged Entity to register such securities for public sale
under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of
-9-
the Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and Pledgor waives the benefit of all such laws to
the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure
or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon
Pledgor by Agent with respect to any such remedies shall operate as a
waiver thereof, or limit or impair Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Agent,
that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgor's obligations hereunder shall at such
time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
-10-
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that Agent may at any time, or
from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without notice
to or further assent from Pledgor, it being hereby agreed that Pledgor
shall be and remain bound upon this Agreement, irrespective of the
value or condition of any of the Collateral, and notwithstanding any
such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
-11-
payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced,
restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
-12-
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
With copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
(b) If to Pledgor, at:
Brightpoint North America L.P.
c/o Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
With copies to:
Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent,
-13-
approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Its Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
Class Stock Certificate Number Percentage of
Pledged Entity of Stock Number(s) of Shares Outstanding Shares
-------------- -------- ---------------- --------- ------------------
[100%]
[100%]
[100%]
[100%]
PART B
PLEDGED INDEBTEDNESS
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-16-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is delivered
pursuant to Section 6(d) of the Pledge Agreement referred to below. All defined
terms herein shall have the meanings ascribed thereto or incorporated by
reference in the Pledge Agreement. The undersigned hereby certifies that the
representations and warranties in Section 5 of the Pledge Agreement are and
continue to be true and correct, both as to the promissory notes, instruments
and shares pledged prior to this Pledge Amendment and as to the promissory
notes, instruments and shares pledged pursuant to this Pledge Amendment. The
undersigned further agrees that this Pledge Amendment may be attached to that
certain Pledge Agreement, dated ______________, 2001, between undersigned, as
Pledgor, and General Electric Capital Corporation, as Agent, (the "Pledge
Agreement") and that the Pledged Shares and Pledged Indebtedness listed on this
Pledge Amendment shall be and become a part of the Pledged Collateral referred
to in said Pledge Agreement and shall secure all Secured Obligations referred to
in said Pledge Agreement. The undersigned acknowledges that any promissory
notes, instruments or shares not included in the Pledged Collateral at the
discretion of Agent may not otherwise be pledged by Pledgor to any other Person
or otherwise used as security for any obligations other than the Secured
Obligations.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Name and Class Certificate Number
Address of Pledgor Pledged Entity of Stock Number(s) of Shares
------------------ -------------- -------- ---------- ---------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-17-
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 31, 2001, (together with all
amendments, if any, from time to time hereto, this "Agreement") between WIRELESS
FULFILLMENT SERVICES LLC, a California limited liability company (the "Pledgor")
and GENERAL ELECTRIC CAPITAL CORPORATION in its capacity as Agent for Lenders
("Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Borrowers, the other
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified (the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the shares of
Stock listed in Part A of Schedule I hereto and the owner of the promissory
notes and instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means those shares listed on Part A of Schedule I
hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares; and
(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares of stock of a Pledged Entity from
time to time acquired by Pledgor in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates
representing such additional shares, and all dividends, distributions,
cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Stock; and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates and all promissory
notes and instruments evidencing the Pledged Collateral shall be delivered to
and held by or on behalf of Agent, for itself and the benefit of Lenders,
pursuant hereto. All Pledged Shares shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Agent and all promissory notes or other instruments evidencing
the Pledged Indebtedness shall be endorsed by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Agent that:
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(a) Pledgor is, and at the time of delivery of the Pledged Shares
to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien
created by this Agreement; Pledgor is and at the time of delivery of
the Pledged Indebtedness to Agent will be, the sole owner of such
Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by, and
is the legal, valid and binding obligations of, the Pledged Entities,
and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and
are presently represented by the certificates listed on Part A of
Schedule I hereto. As of the date hereof, there are no existing
options, warrants, calls or commitments of any character whatsoever
relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Agent
for the benefit of Agent and Lenders in the Pledged Collateral and the
proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares of Stock of each Pledged Entity; and
-3-
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights
in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral
or xxxxx x Xxxx in the Pledged Collateral, unless otherwise expressly
permitted by the Credit Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Agent
from time to time may request in order to ensure to Agent and Lenders
the benefits of the Liens in and to the Pledged Collateral intended to
be created by this Agreement, including the filing of any necessary
Code financing statements, which may be filed by Agent with or (to the
extent permitted by law) without the signature of Pledgor, and will
cooperate with Agent, at Pledgor's expense, in obtaining all necessary
approvals and making all necessary filings under federal, state, local
or foreign law in connection with such Liens or any sale or transfer of
the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional Stock
or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to
Agent pursuant to any of the Loan Documents, which Stock, notes or
instruments are not already Pledged Collateral, promptly (and in any
event within three (3) Business Days) deliver to Agent a Pledge
Amendment, duly executed by Pledgor, in substantially the form of
Schedule II hereto (a "Pledge Amendment") in respect of any such
additional Stock, notes or instruments, pursuant to which Pledgor shall
pledge to Agent all of such additional Stock, notes and instruments.
Pledgor hereby authorizes Agent to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares and Pledged Indebtedness
listed on any Pledge Amendment delivered to Agent shall for all
purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not
-4-
inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares, the stated
capital or the authorized share capital of a Pledged Entity or the
issuance of any additional shares of its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral; (B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a Pledged
Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with clause (i) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit
of Agent, be segregated from the other property or funds of Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
-5-
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends,
interest, principal and other distributions made thereon, to sell in
one or more sales after ten (10) days' notice of the time and place of
any public sale or of the time at which a private sale is to take place
(which notice Pledgor agrees is commercially reasonable) the whole or
any part of the Pledged Collateral and to otherwise act with respect to
the Pledged Collateral as though Agent was the outright owner thereof.
Any sale shall be made at a public or private sale at Agent's place of
business, or at any place to be named in the notice of sale, either for
cash or upon credit or for future delivery at such price as Agent may
deem fair, and Agent may be the purchaser of the whole or any part of
the Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or any right of redemption. Each
sale shall be made to the highest bidder, but Agent reserves the right
to reject any and all bids at such sale which, in its discretion, it
shall deem inadequate. Demands of performance, except as otherwise
herein specifically provided for, notices of sale, advertisements and
the presence of property at sale are hereby waived and any sale
hereunder may be conducted by an auctioneer or any officer or agent of
Agent. PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE
PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED
COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL
POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT
SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING
THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT
OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO
SO OR FOR ANY DELAY IN DOING SO.
-6-
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to Agent, in its discretion, that the proceeds
of the sales of the whole of the Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, Agent may,
on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise
of its rights (when permitted under this Section 8) to sell the whole
or any part of the Pledged Shares hereunder, it is necessary or
advisable to effect a public registration of all or part of the Pledged
Collateral pursuant to the Securities Act of 1933, as amended (or any
similar statute then in effect) (the "Act"), Pledgor shall, in an
expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Agent shall desire to sell or
otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged Shares
by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such other
reasonable acts and things as may be required of it to enable Agent to
consummate the public sale or other disposition in such jurisdictions
of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
of the Pledged Collateral are delivered to the underwriters for sale
pursuant to such
-7-
registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect
to such Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant for the
purposes of such registration, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in a customary form and covering matters
of the type customarily covered by such comfort letters and as the
underwriters or Agent shall reasonably request. The opinion of counsel
referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is
being given as Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall
additionally cover such other financial matters (including information
as to the period ending not more than five (5) Business Days prior to
the date of such letter) with respect to the registration in respect of
which such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, and shall not be required to effect such registration
or to cause the same to be effected. Without limiting the generality of
the foregoing, in any such event, Agent in its discretion (x) may, in
accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Act (or similar statute), (y) may
approach and negotiate with a
-8-
single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act
and who will represent and agree that such purchaser is purchasing for
its own account, for investment and not with a view to the distribution
or sale of such Pledged Collateral or any part thereof. In addition to
a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this Section 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
(f) Pledgor recognizes that Agent may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause
(e) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of such sale
being private. Agent shall be under no obligation to delay a sale of
any of the Pledged Collateral for the period of time necessary to
permit the Pledged Entity to register such securities for public sale
under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of
-9-
the Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and Pledgor waives the benefit of all such laws to
the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure
or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon
Pledgor by Agent with respect to any such remedies shall operate as a
waiver thereof, or limit or impair Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Agent,
that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgor's obligations hereunder shall at such
time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
-10-
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that Agent may at any time, or
from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without notice
to or further assent from Pledgor, it being hereby agreed that Pledgor
shall be and remain bound upon this Agreement, irrespective of the
value or condition of any of the Collateral, and notwithstanding any
such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
-11-
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
-12-
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
With copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
(b) If to Pledgor, at:
Wireless Fulfillment Services LLC
c/o Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
With copies to:
Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent,
-13-
approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
WIRELESS FULFILLMENT SERVICES LLC
By: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------
Its Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
Class Stock Certificate Number Percentage of
Pledged Entity of Stock Number(s) of Shares Outstanding Shares
-------------- -------- ---------------- --------- ------------------
[100%]
[100%]
[100%]
[100%]
PART B
PLEDGED INDEBTEDNESS
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
[TO BE PROVIDED BY BORROWER]
-16-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is delivered
pursuant to Section 6(d) of the Pledge Agreement referred to below. All defined
terms herein shall have the meanings ascribed thereto or incorporated by
reference in the Pledge Agreement. The undersigned hereby certifies that the
representations and warranties in Section 5 of the Pledge Agreement are and
continue to be true and correct, both as to the promissory notes, instruments
and shares pledged prior to this Pledge Amendment and as to the promissory
notes, instruments and shares pledged pursuant to this Pledge Amendment. The
undersigned further agrees that this Pledge Amendment may be attached to that
certain Pledge Agreement, dated ______________, 2001, between undersigned, as
Pledgor, and General Electric Capital Corporation, as Agent, (the "Pledge
Agreement") and that the Pledged Shares and Pledged Indebtedness listed on this
Pledge Amendment shall be and become a part of the Pledged Collateral referred
to in said Pledge Agreement and shall secure all Secured Obligations referred to
in said Pledge Agreement. The undersigned acknowledges that any promissory
notes, instruments or shares not included in the Pledged Collateral at the
discretion of Agent may not otherwise be pledged by Pledgor to any other Person
or otherwise used as security for any obligations other than the Secured
Obligations.
WIRELESS FULFILLMENT SERVICES LLC
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Name and Class Certificate Number
Address of Pledgor Pledged Entity of Stock Number(s) of Shares
------------------ -------------- -------- ---------- ---------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-17-
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 31, 2001, (together with all
amendments, if any, from time to time hereto, this "Agreement") between
BRIGHTPOINT, INC., a Delaware corporation (the "Pledgor") and GENERAL ELECTRIC
CAPITAL CORPORATION in its capacity as Agent for Lenders ("Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Borrowers, the other
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified (the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the Stock listed
in Part A of Schedule I hereto and the owner of the promissory notes and
instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means the Stock listed on Part A of Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates, if any, representing
the Pledged Shares, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged Shares;
and
(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares or interests of Stock of a Pledged Entity
from time to time acquired by Pledgor in any manner (which Stock shall be deemed
to be part of the Pledged Shares), and the certificates, if any, representing
such additional shares or interests, and all dividends, distributions, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such Stock; and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest, cash,
instruments and other property and assets from time to time received, receivable
or otherwise distributed in respect of the Pledged Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other instruments,
together with such promissory notes and instruments, and all interest, cash,
instruments and other property and assets from time to time received, receivable
or otherwise distributed in respect of that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates, if any, and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Agent, for itself and the benefit of
Lenders, pursuant hereto. All Pledged Shares shall be accompanied by duly
executed instruments of transfer or assignment in blank, to the extent
applicable, all in form and substance satisfactory to Agent and all promissory
notes or other instruments evidencing the Pledged Indebtedness shall be endorsed
by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Agent that:
-2-
(a) Pledgor is, and at the time of delivery of the Pledged Shares
to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien
created by this Agreement; Pledgor is and at the time of delivery of
the Pledged Indebtedness to Agent will be, the sole owner of such
Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by, and
is the legal, valid and binding obligations of, the Pledged Entities,
and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and
are presently represented on Part A of Schedule I hereto. As of the
date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Agent
for the benefit of Agent and Lenders in the Pledged Collateral and the
proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares or interests of Stock held by Pledgor of each
Pledged Entity; and
-3-
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights
in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral
or xxxxx x Xxxx in the Pledged Collateral, unless otherwise expressly
permitted by the Credit Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Agent
from time to time may request in order to ensure to Agent and Lenders
the benefits of the Liens in and to the Pledged Collateral intended to
be created by this Agreement, including any control agreements and the
filing of any necessary Code financing statements, which may be filed
by Agent with or (to the extent permitted by law) without the signature
of Pledgor, and will cooperate with Agent, at Pledgor's expense, in
obtaining all necessary approvals and making all necessary filings
under federal, state, local or foreign law in connection with such
Liens or any sale or transfer of the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional Stock
or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to
Agent pursuant to any of the Loan Documents, which Stock, notes or
instruments are not already Pledged Collateral, promptly (and in any
event within three (3) Business Days) deliver to Agent a Pledge
Amendment, duly executed by Pledgor, in substantially the form of
Schedule II hereto (a "Pledge Amendment") in respect of any such
additional Stock, notes or instruments, pursuant to which Pledgor shall
pledge to Agent all of such additional Stock, notes and instruments.
Pledgor hereby authorizes Agent to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares and Pledged Indebtedness
listed on any Pledge Amendment delivered to Agent shall for all
purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not
-4-
inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares or
interests, the stated capital or the authorized share capital of a
Pledged Entity or the issuance of any additional shares or interests of
its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral; (B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a Pledged
Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with clause (i) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit
of Agent, be segregated from the other property or funds of Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
-5-
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates, if any, or instruments representing or
evidencing Pledged Collateral for certificates, if any, or instruments
of smaller or larger denominations, to exercise the voting and all
other rights as a holder with respect thereto, to collect and receive
all cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of
the time and place of any public sale or of the time at which a private
sale is to take place (which notice Pledgor agrees is commercially
reasonable) the whole or any part of the Pledged Collateral and to
otherwise act with respect to the Pledged Collateral as though Agent
was the outright owner thereof. Any sale shall be made at a public or
private sale at Agent's place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future
delivery at such price as Agent may deem fair, and Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of
Pledgor or any right of redemption. Each sale shall be made to the
highest bidder, but Agent reserves the right to reject any and all bids
at such sale which, in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer or agent of Agent. PLEDGOR
HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND
ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL,
INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF
SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT
SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING
THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT
OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO
SO OR FOR ANY DELAY IN DOING SO.
-6-
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to Agent, in its discretion, that the proceeds
of the sales of the whole of the Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, Agent may,
on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise
of its rights (when permitted under this Section 8) to sell the whole
or any part of the Pledged Shares hereunder, it is necessary or
advisable to effect a public registration of all or part of the Pledged
Collateral pursuant to the Securities Act of 1933, as amended (or any
similar statute then in effect) (the "Act"), Pledgor shall, in an
expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Agent shall desire to sell or
otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged Shares
by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such other
reasonable acts and things as may be required of it to enable Agent to
consummate the public sale or other disposition in such jurisdictions
of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
or interests of the Pledged Collateral are delivered to the
underwriters for sale pursuant to
-7-
such registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect
to such Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant for the
purposes of such registration, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in a customary form and covering matters
of the type customarily covered by such comfort letters and as the
underwriters or Agent shall reasonably request. The opinion of counsel
referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is
being given as Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall
additionally cover such other financial matters (including information
as to the period ending not more than five (5) Business Days prior to
the date of such letter) with respect to the registration in respect of
which such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, and shall not be required to effect such registration
or to cause the same to be effected. Without limiting the generality of
the foregoing, in any such event, Agent in its discretion (x) may, in
accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Act (or similar statute), (y) may
approach and negotiate with a
-8-
single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act
and who will represent and agree that such purchaser is purchasing for
its own account, for investment and not with a view to the distribution
or sale of such Pledged Collateral or any part thereof. In addition to
a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this Section 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates, if any, representing the Pledged Collateral sold in such
sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
(f) Pledgor recognizes that Agent may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause
(e) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of such sale
being private. Agent shall be under no obligation to delay a sale of
any of the Pledged Collateral for the period of time necessary to
permit the Pledged Entity to register such securities for public sale
under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of
-9-
the Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and Pledgor waives the benefit of all such laws to
the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure
or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon
Pledgor by Agent with respect to any such remedies shall operate as a
waiver thereof, or limit or impair Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Agent,
that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgor's obligations hereunder shall at such
time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
-10-
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that Agent may at any time, or
from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without notice
to or further assent from Pledgor, it being hereby agreed that Pledgor
shall be and remain bound upon this Agreement, irrespective of the
value or condition of any of the Collateral, and notwithstanding any
such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
-11-
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
-12-
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
With copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
(b) If to Pledgor, at:
Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
With copies to:
Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies
-13-
shall in no way adversely affect the effectiveness of such notice, demand,
request, consent, approval, declaration or other communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Its Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
Class Stock Certificate Number Percentage of
Pledged Entity of Stock Number(s) of Shares Outstanding Shares
-------------- -------- ---------------- --------- ------------------
[100%]
[100%]
[100%]
[100%]
PART B
PLEDGED INDEBTEDNESS
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
[TO BE PROVIDED BY BORROWERS]
-16-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is
delivered pursuant to Section 6(d) of the Pledge Agreement referred to below.
All defined terms herein shall have the meanings ascribed thereto or
incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section 5 of the Pledge
Agreement are and continue to be true and correct, both as to the promissory
notes, instruments and shares or interests pledged prior to this Pledge
Amendment and as to the promissory notes, instruments and shares or interests
pledged pursuant to this Pledge Amendment. The undersigned further agrees that
this Pledge Amendment may be attached to that certain Pledge Agreement, dated
______________, 2001, between undersigned, as Pledgor, and General Electric
Capital Corporation, as Agent, (the "Pledge Agreement") and that the Pledged
Shares and Pledged Indebtedness listed on this Pledge Amendment shall be and
become a part of the Pledged Collateral referred to in said Pledge Agreement and
shall secure all Secured Obligations referred to in said Pledge Agreement. The
undersigned acknowledges that any promissory notes, instruments, shares or
interests not included in the Pledged Collateral at the discretion of Agent may
not otherwise be pledged by Pledgor to any other Person or otherwise used as
security for any obligations other than the Secured Obligations.
BRIGHTPOINT, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Name and Class Certificate Number
Address of Pledgor Pledged Entity of Stock Number(s) of Shares
------------------ -------------- -------- ---------- ---------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-17-
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 31, 2001, (together with all
amendments, if any, from time to time hereto, this "Agreement") between
BRIGHTPOINT NORTH AMERICA, INC., an Indiana corporation (the "Pledgor") and
GENERAL ELECTRIC CAPITAL CORPORATION in its capacity as Agent for Lenders
("Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Borrowers, the other
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified (the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the Stock listed
in Part A of Schedule I hereto and the owner of the promissory notes and
instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means the Stock listed on Part A of Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates, if any, representing
the Pledged Shares, and all dividends, distributions, cash, instruments
and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares; and
(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares or interests of Stock of a Pledged
Entity from time to time acquired by Pledgor in any manner (which Stock
shall be deemed to be part of the Pledged Shares), and the
certificates, if any, representing such additional shares or interests,
and all dividends, distributions, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Stock;
and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates, if any, and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Agent, for itself and the benefit of
Lenders, pursuant hereto. All Pledged Shares shall be accompanied by duly
executed instruments of transfer or assignment in blank, to the extent
applicable, all in form and substance satisfactory to Agent and all promissory
notes or other instruments evidencing the Pledged Indebtedness shall be endorsed
by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Agent that:
-2-
(a) Pledgor is, and at the time of delivery of the Pledged Shares
to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien
created by this Agreement; Pledgor is and at the time of delivery of
the Pledged Indebtedness to Agent will be, the sole owner of such
Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by, and
is the legal, valid and binding obligations of, the Pledged Entities,
and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and
are presently represented on Part A of Schedule I hereto. As of the
date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Agent
for the benefit of Agent and Lenders in the Pledged Collateral and the
proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares or interests of Stock held by Pledgor of each
Pledged Entity; and
-3-
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights in or to
the Pledged Collateral, or any unpaid dividends, interest or other distributions
or payments with respect to the Pledged Collateral or xxxxx x Xxxx in the
Pledged Collateral, unless otherwise expressly permitted by the Credit
Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Agent from time to
time may request in order to ensure to Agent and Lenders the benefits of the
Liens in and to the Pledged Collateral intended to be created by this Agreement,
including any control agreements and the filing of any necessary Code financing
statements, which may be filed by Agent with or (to the extent permitted by law)
without the signature of Pledgor, and will cooperate with Agent, at Pledgor's
expense, in obtaining all necessary approvals and making all necessary filings
under federal, state, local or foreign law in connection with such Liens or any
sale or transfer of the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the claim of
any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional Stock
or promissory notes or instruments of a Pledged Entity or Stock or promissory
notes or instruments otherwise required to be pledged to Agent pursuant to any
of the Loan Documents, which Stock, notes or instruments are not already Pledged
Collateral, promptly (and in any event within three (3) Business Days) deliver
to Agent a Pledge Amendment, duly executed by Pledgor, in substantially the form
of Schedule II hereto (a "Pledge Amendment") in respect of any such additional
Stock, notes or instruments, pursuant to which Pledgor shall pledge to Agent all
of such additional Stock, notes and instruments. Pledgor hereby authorizes Agent
to attach each Pledge Amendment to this Agreement and agrees that all Pledged
Shares and Pledged Indebtedness listed on any Pledge Amendment delivered to
Agent shall for all purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part thereof for
all purposes not
-4-
inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares or
interests, the stated capital or the authorized share capital of a
Pledged Entity or the issuance of any additional shares or interests of
its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral; (B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a Pledged
Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with clause (i) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit
of Agent, be segregated from the other property or funds of Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
-5-
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates, if any, or instruments representing or
evidencing Pledged Collateral for certificates, if any, or instruments
of smaller or larger denominations, to exercise the voting and all
other rights as a holder with respect thereto, to collect and receive
all cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of
the time and place of any public sale or of the time at which a private
sale is to take place (which notice Pledgor agrees is commercially
reasonable) the whole or any part of the Pledged Collateral and to
otherwise act with respect to the Pledged Collateral as though Agent
was the outright owner thereof. Any sale shall be made at a public or
private sale at Agent's place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future
delivery at such price as Agent may deem fair, and Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of
Pledgor or any right of redemption. Each sale shall be made to the
highest bidder, but Agent reserves the right to reject any and all bids
at such sale which, in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer or agent of Agent. PLEDGOR
HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND
ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL,
INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF
SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT
SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING
THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT
OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO
SO OR FOR ANY DELAY IN DOING SO.
-6-
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to Agent, in its discretion, that the proceeds
of the sales of the whole of the Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, Agent may,
on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise
of its rights (when permitted under this Section 8) to sell the whole
or any part of the Pledged Shares hereunder, it is necessary or
advisable to effect a public registration of all or part of the Pledged
Collateral pursuant to the Securities Act of 1933, as amended (or any
similar statute then in effect) (the "Act"), Pledgor shall, in an
expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Agent shall desire to sell or
otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged Shares
by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such other
reasonable acts and things as may be required of it to enable Agent to
consummate the public sale or other disposition in such jurisdictions
of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
or interests of the Pledged Collateral are delivered to the
underwriters for sale pursuant to
-7-
such registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect
to such Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant for the
purposes of such registration, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in a customary form and covering matters
of the type customarily covered by such comfort letters and as the
underwriters or Agent shall reasonably request. The opinion of counsel
referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is
being given as Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall
additionally cover such other financial matters (including information
as to the period ending not more than five (5) Business Days prior to
the date of such letter) with respect to the registration in respect of
which such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, and shall not be required to effect such registration
or to cause the same to be effected. Without limiting the generality of
the foregoing, in any such event, Agent in its discretion (x) may, in
accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Act (or similar statute), (y) may
approach and negotiate with a
-8-
single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act
and who will represent and agree that such purchaser is purchasing for
its own account, for investment and not with a view to the distribution
or sale of such Pledged Collateral or any part thereof. In addition to
a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this Section 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates, if any, representing the Pledged Collateral sold in such
sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
(f) Pledgor recognizes that Agent may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause
(e) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of such sale
being private. Agent shall be under no obligation to delay a sale of
any of the Pledged Collateral for the period of time necessary to
permit the Pledged Entity to register such securities for public sale
under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of
-9-
the Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and Pledgor waives the benefit of all such laws to
the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure
or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon
Pledgor by Agent with respect to any such remedies shall operate as a
waiver thereof, or limit or impair Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Agent,
that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgor's obligations hereunder shall at such
time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
-10-
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that Agent may at any time, or
from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without notice
to or further assent from Pledgor, it being hereby agreed that Pledgor
shall be and remain bound upon this Agreement, irrespective of the
value or condition of any of the Collateral, and notwithstanding any
such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
-11-
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
-12-
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
With copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
(b) If to Pledgor, at:
Brightpoint North America, Inc.
c/o Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
With copies to:
Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent,
-13-
approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Its Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
Percentage of
Class Stock Certificate Number of Outstanding
Pledged Entity of Stock Number(s) Shares/Interests Shares/Interests
-------------- -------- ---------------- ---------------- ------------------
[100%]
[100%]
[100%]
[100%]
PART B
PLEDGED INDEBTEDNESS
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
[TO BE PROVIDED BY BORROWERS]
-16-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is
delivered pursuant to Section 6(d) of the Pledge Agreement referred to below.
All defined terms herein shall have the meanings ascribed thereto or
incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section 5 of the Pledge
Agreement are and continue to be true and correct, both as to the promissory
notes, instruments and shares or interests pledged prior to this Pledge
Amendment and as to the promissory notes, instruments and shares or interests
pledged pursuant to this Pledge Amendment. The undersigned further agrees that
this Pledge Amendment may be attached to that certain Pledge Agreement, dated
______________, 2001, between undersigned, as Pledgor, and General Electric
Capital Corporation, as Agent, (the "Pledge Agreement") and that the Pledged
Shares and Pledged Indebtedness listed on this Pledge Amendment shall be and
become a part of the Pledged Collateral referred to in said Pledge Agreement and
shall secure all Secured Obligations referred to in said Pledge Agreement. The
undersigned acknowledges that any promissory notes, instruments, shares or
interests not included in the Pledged Collateral at the discretion of Agent may
not otherwise be pledged by Pledgor to any other Person or otherwise used as
security for any obligations other than the Secured Obligations.
BRIGHTPOINT NORTH AMERICA, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Name and Class Certificate Number of
Address of Pledgor Pledged Entity of Stock Number(s) Shares/Interests
------------------ -------------- -------- ---------- -----------------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-17-
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 31, 2001, (together with all
amendments, if any, from time to time hereto, this "Agreement") between WIRELESS
FULFILLMENT SERVICES HOLDINGS, INC., a Delaware corporation (the "Pledgor") and
GENERAL ELECTRIC CAPITAL CORPORATION in its capacity as Agent for Lenders
("Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Borrowers, the other
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified (the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the Stock listed
in Part A of Schedule I hereto and the owner of the promissory notes and
instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means the Stock listed on Part A of Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates, if any, representing
the Pledged Shares, and all dividends, distributions, cash, instruments
and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares; and
(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares or interests of Stock of a Pledged
Entity from time to time acquired by Pledgor in any manner (which Stock
shall be deemed to be part of the Pledged Shares), and the
certificates, if any, representing such additional shares or interests,
and all dividends, distributions, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Stock;
and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates, if any, and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Agent, for itself and the benefit of
Lenders, pursuant hereto. All Pledged Shares shall be accompanied by duly
executed instruments of transfer or assignment in blank, to the extent
applicable, all in form and substance satisfactory to Agent and all promissory
notes or other instruments evidencing the Pledged Indebtedness shall be endorsed
by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Agent that:
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(a) Pledgor is, and at the time of delivery of the Pledged Shares
to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien
created by this Agreement; Pledgor is and at the time of delivery of
the Pledged Indebtedness to Agent will be, the sole owner of such
Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by, and
is the legal, valid and binding obligations of, the Pledged Entities,
and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and
are presently represented on Part A of Schedule I hereto. As of the
date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Agent
for the benefit of Agent and Lenders in the Pledged Collateral and the
proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares or interests of Stock held by Pledgor of each
Pledged Entity; and
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(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights
in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral
or xxxxx x Xxxx in the Pledged Collateral, unless otherwise expressly
permitted by the Credit Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Agent
from time to time may request in order to ensure to Agent and Lenders
the benefits of the Liens in and to the Pledged Collateral intended to
be created by this Agreement, including any control agreements and the
filing of any necessary Code financing statements, which may be filed
by Agent with or (to the extent permitted by law) without the signature
of Pledgor, and will cooperate with Agent, at Pledgor's expense, in
obtaining all necessary approvals and making all necessary filings
under federal, state, local or foreign law in connection with such
Liens or any sale or transfer of the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional Stock
or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to
Agent pursuant to any of the Loan Documents, which Stock, notes or
instruments are not already Pledged Collateral, promptly (and in any
event within three (3) Business Days) deliver to Agent a Pledge
Amendment, duly executed by Pledgor, in substantially the form of
Schedule II hereto (a "Pledge Amendment") in respect of any such
additional Stock, notes or instruments, pursuant to which Pledgor shall
pledge to Agent all of such additional Stock, notes and instruments.
Pledgor hereby authorizes Agent to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares and Pledged Indebtedness
listed on any Pledge Amendment delivered to Agent shall for all
purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not
-4-
inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares or
interests, the stated capital or the authorized share capital of a
Pledged Entity or the issuance of any additional shares or interests of
its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral; (B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a Pledged
Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with clause (i) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit
of Agent, be segregated from the other property or funds of Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
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8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates, if any, or instruments representing or
evidencing Pledged Collateral for certificates, if any, or instruments
of smaller or larger denominations, to exercise the voting and all
other rights as a holder with respect thereto, to collect and receive
all cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of
the time and place of any public sale or of the time at which a private
sale is to take place (which notice Pledgor agrees is commercially
reasonable) the whole or any part of the Pledged Collateral and to
otherwise act with respect to the Pledged Collateral as though Agent
was the outright owner thereof. Any sale shall be made at a public or
private sale at Agent's place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future
delivery at such price as Agent may deem fair, and Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of
Pledgor or any right of redemption. Each sale shall be made to the
highest bidder, but Agent reserves the right to reject any and all bids
at such sale which, in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer or agent of Agent. PLEDGOR
HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND
ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL,
INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF
SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT
SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING
THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT
OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO
SO OR FOR ANY DELAY IN DOING SO.
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(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to Agent, in its discretion, that the proceeds
of the sales of the whole of the Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, Agent may,
on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise
of its rights (when permitted under this Section 8) to sell the whole
or any part of the Pledged Shares hereunder, it is necessary or
advisable to effect a public registration of all or part of the Pledged
Collateral pursuant to the Securities Act of 1933, as amended (or any
similar statute then in effect) (the "Act"), Pledgor shall, in an
expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Agent shall desire to sell or
otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged Shares
by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such other
reasonable acts and things as may be required of it to enable Agent to
consummate the public sale or other disposition in such jurisdictions
of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
or interests of the Pledged Collateral are delivered to the
underwriters for sale pursuant to
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such registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect
to such Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant for the
purposes of such registration, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in a customary form and covering matters
of the type customarily covered by such comfort letters and as the
underwriters or Agent shall reasonably request. The opinion of counsel
referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is
being given as Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall
additionally cover such other financial matters (including information
as to the period ending not more than five (5) Business Days prior to
the date of such letter) with respect to the registration in respect of
which such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, and shall not be required to effect such registration
or to cause the same to be effected. Without limiting the generality of
the foregoing, in any such event, Agent in its discretion (x) may, in
accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Act (or similar statute), (y) may
approach and negotiate with a
-8-
single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act
and who will represent and agree that such purchaser is purchasing for
its own account, for investment and not with a view to the distribution
or sale of such Pledged Collateral or any part thereof. In addition to
a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this Section 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates, if any, representing the Pledged Collateral sold in such
sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
(f) Pledgor recognizes that Agent may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause
(e) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of such sale
being private. Agent shall be under no obligation to delay a sale of
any of the Pledged Collateral for the period of time necessary to
permit the Pledged Entity to register such securities for public sale
under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of
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the Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and Pledgor waives the benefit of all such laws to
the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure
or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon
Pledgor by Agent with respect to any such remedies shall operate as a
waiver thereof, or limit or impair Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Agent,
that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgor's obligations hereunder shall at such
time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
-10-
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that Agent may at any time, or
from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without notice
to or further assent from Pledgor, it being hereby agreed that Pledgor
shall be and remain bound upon this Agreement, irrespective of the
value or condition of any of the Collateral, and notwithstanding any
such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
-11-
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
-12-
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
With copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
(b) If to Pledgor, at:
Wireless Fulfillment Services Holdings, Inc.
c/o Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
With copies to:
Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent,
-13-
approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Its Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
Percentage of
Class Stock Certificate Number of Outstanding
Pledged Entity of Stock Number(s) Shares/Interests Shares/Interests
-------------- -------- ---------------- ---------------- ------------------
[100%]
[100%]
[100%]
[100%]
PART B
PLEDGED INDEBTEDNESS
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
[TO BE PROVIDED BY BORROWERS]
-16-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is
delivered pursuant to Section 6(d) of the Pledge Agreement referred to below.
All defined terms herein shall have the meanings ascribed thereto or
incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section 5 of the Pledge
Agreement are and continue to be true and correct, both as to the promissory
notes, instruments and shares or interests pledged prior to this Pledge
Amendment and as to the promissory notes, instruments and shares or interests
pledged pursuant to this Pledge Amendment. The undersigned further agrees that
this Pledge Amendment may be attached to that certain Pledge Agreement, dated
______________, 2001, between undersigned, as Pledgor, and General Electric
Capital Corporation, as Agent, (the "Pledge Agreement") and that the Pledged
Shares and Pledged Indebtedness listed on this Pledge Amendment shall be and
become a part of the Pledged Collateral referred to in said Pledge Agreement and
shall secure all Secured Obligations referred to in said Pledge Agreement. The
undersigned acknowledges that any promissory notes, instruments, shares or
interests not included in the Pledged Collateral at the discretion of Agent may
not otherwise be pledged by Pledgor to any other Person or otherwise used as
security for any obligations other than the Secured Obligations.
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Name and Class Certificate Number of
Address of Pledgor Pledged Entity of Stock Number(s) Shares/Interests
------------------ -------------- -------- ---------- -----------------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-17-
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of October 31, 2001, (together with all
amendments, if any, from time to time hereto, this "Agreement") between
BRIGHTPOINT INTERNATIONAL LTD., a Delaware corporation (the "Pledgor") and
GENERAL ELECTRIC CAPITAL CORPORATION in its capacity as Agent for Lenders
("Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Pledgor, the Persons named therein as Borrowers, the other
Persons named therein as Credit Parties, Agent and the Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified (the "Credit Agreement") the Lenders have agreed to make Loans to, and
incur Letter of Credit Obligations for the benefit of, Borrowers;
WHEREAS, Pledgor is the record and beneficial owner of the Stock listed
in Part A of Schedule I hereto and the owner of the promissory notes and
instruments listed in Part B of Schedule I hereto;
WHEREAS, Pledgor benefits from the credit facilities made available to
Borrowers under the Credit Agreement;
WHEREAS, in order to induce Agent and Lenders to make the Loans and to
incur the Letter of Credit Obligations as provided for in the Credit Agreement,
Pledgor has agreed to pledge the Pledged Collateral to Agent in accordance
herewith;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means the Stock listed on Part A of Schedule I hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Pledgor hereby pledges to Agent, and grants to Agent for
itself and the benefit of Lenders, a first priority security interest in all of
the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates, if any, representing
the Pledged Shares, and all dividends, distributions, cash, instruments
and other property or proceeds from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of
the Pledged Shares; and
(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares or interests of Stock of a Pledged
Entity from time to time acquired by Pledgor in any manner (which Stock
shall be deemed to be part of the Pledged Shares), and the
certificates, if any, representing such additional shares or interests,
and all dividends, distributions, cash, instruments and other property
or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such Stock;
and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and
all interest, cash, instruments and other property and assets from time
to time received, receivable or otherwise distributed in respect of
that Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of Pledgor now or hereafter existing
under this Agreement including, without limitation, all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates, if any, and all
promissory notes and instruments evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of Agent, for itself and the benefit of
Lenders, pursuant hereto. All Pledged Shares shall be accompanied by duly
executed instruments of transfer or assignment in blank, to the extent
applicable, all in form and substance satisfactory to Agent and all promissory
notes or other instruments evidencing the Pledged Indebtedness shall be endorsed
by Pledgor.
5. Representations and Warranties. Pledgor represents and warrants to
Agent that:
-2-
(a) Pledgor is, and at the time of delivery of the Pledged Shares
to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of
any Lien thereon or affecting the title thereto, except for any Lien
created by this Agreement; Pledgor is and at the time of delivery of
the Pledged Indebtedness to Agent will be, the sole owner of such
Pledged Collateral free and clear of any Lien thereon or affecting
title thereto, except for any Lien created by this Agreement;
(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness
has been duly authorized, authenticated or issued and delivered by, and
is the legal, valid and binding obligations of, the Pledged Entities,
and no such Pledged Entity is in default thereunder;
(c) Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness has been
issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject;
(e) All of the Pledged Shares are presently owned by Pledgor, and
are presently represented on Part A of Schedule I hereto. As of the
date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority
or any other Person is required (i) for the pledge by Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged Collateral pursuant
to this Agreement, except as may be required in connection with such
disposition by laws affecting the offering and sale of securities
generally;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on
and a first priority perfected security interest in favor of the Agent
for the benefit of Agent and Lenders in the Pledged Collateral and the
proceeds thereof, securing the payment of the Secured Obligations,
subject to no other Lien;
(h) This Agreement has been duly authorized, executed and
delivered by Pledgor and constitutes a legal, valid and binding
obligation of Pledgor enforceable against Pledgor in accordance with
its terms;
(i) The Pledged Shares constitute 100% of the issued and
outstanding shares or interests of Stock held by Pledgor of each
Pledged Entity; and
-3-
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the
terms of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Pledgor covenants and agrees that until the Termination
Date:
(a) Without the prior written consent of Agent, Pledgor will not
sell, assign, transfer, pledge, or otherwise encumber any of its rights
in or to the Pledged Collateral, or any unpaid dividends, interest or
other distributions or payments with respect to the Pledged Collateral
or xxxxx x Xxxx in the Pledged Collateral, unless otherwise expressly
permitted by the Credit Agreement;
(b) Pledgor will, at its expense, promptly execute, acknowledge
and deliver all such instruments and take all such actions as Agent
from time to time may request in order to ensure to Agent and Lenders
the benefits of the Liens in and to the Pledged Collateral intended to
be created by this Agreement, including any control agreements and the
filing of any necessary Code financing statements, which may be filed
by Agent with or (to the extent permitted by law) without the signature
of Pledgor, and will cooperate with Agent, at Pledgor's expense, in
obtaining all necessary approvals and making all necessary filings
under federal, state, local or foreign law in connection with such
Liens or any sale or transfer of the Pledged Collateral;
(c) Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens; and
(d) Pledgor will, upon obtaining ownership of any additional Stock
or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to
Agent pursuant to any of the Loan Documents, which Stock, notes or
instruments are not already Pledged Collateral, promptly (and in any
event within three (3) Business Days) deliver to Agent a Pledge
Amendment, duly executed by Pledgor, in substantially the form of
Schedule II hereto (a "Pledge Amendment") in respect of any such
additional Stock, notes or instruments, pursuant to which Pledgor shall
pledge to Agent all of such additional Stock, notes and instruments.
Pledgor hereby authorizes Agent to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares and Pledged Indebtedness
listed on any Pledge Amendment delivered to Agent shall for all
purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Default or Event of Default shall
have occurred and be continuing and until written notice shall be given to
Pledgor in accordance with Section 8(a) hereof:
(a) Pledgor shall have the right, from time to time, to vote and
give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not
-4-
inconsistent with the provisions of this Agreement, the Credit
Agreement or any other Loan Document; provided, however, that no vote
shall be cast, and no consent shall be given or action taken, which
would have the effect of impairing the position or interest of Agent in
respect of the Pledged Collateral or which would authorize, effect or
consent to (unless and to the extent expressly permitted by the Credit
Agreement):
(i) the dissolution or liquidation, in whole or in part, of a
Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with any
other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens
in favor of Agent;
(iv) any change in the authorized number of shares or
interests, the stated capital or the authorized share capital of a
Pledged Entity or the issuance of any additional shares or interests of
its Stock; or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Pledgor shall be entitled, from time to time, to collect
and receive for its own use all cash dividends and interest paid in
respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for,
any Pledged Collateral; (B) dividends and other distributions paid or
payable in cash in respect of any Pledged Shares in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in capital of a Pledged
Entity; and (C) cash paid, payable or otherwise distributed, in respect
of principal of, or in redemption of, or in exchange for, any Pledged
Collateral; provided, however, that until actually paid all rights to
such distributions shall remain subject to the Lien created by this
Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to Pledgor in
accordance with clause (i) above) and all other distributions in
respect of any of the Pledged Shares or Pledged Indebtedness, whenever
paid or made, shall be delivered to Agent to hold as Pledged Collateral
and shall, if received by Pledgor, be received in trust for the benefit
of Agent, be segregated from the other property or funds of Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary indorsement).
-5-
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to Pledgor, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates, if any, or instruments representing or
evidencing Pledged Collateral for certificates, if any, or instruments
of smaller or larger denominations, to exercise the voting and all
other rights as a holder with respect thereto, to collect and receive
all cash dividends, interest, principal and other distributions made
thereon, to sell in one or more sales after ten (10) days' notice of
the time and place of any public sale or of the time at which a private
sale is to take place (which notice Pledgor agrees is commercially
reasonable) the whole or any part of the Pledged Collateral and to
otherwise act with respect to the Pledged Collateral as though Agent
was the outright owner thereof. Any sale shall be made at a public or
private sale at Agent's place of business, or at any place to be named
in the notice of sale, either for cash or upon credit or for future
delivery at such price as Agent may deem fair, and Agent may be the
purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of
Pledgor or any right of redemption. Each sale shall be made to the
highest bidder, but Agent reserves the right to reject any and all bids
at such sale which, in its discretion, it shall deem inadequate.
Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of
property at sale are hereby waived and any sale hereunder may be
conducted by an auctioneer or any officer or agent of Agent. PLEDGOR
HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS AGENT AS THE PROXY AND
ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT TO THE PLEDGED COLLATERAL,
INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES, WITH FULL POWER OF
SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE
UNTIL THE TERMINATION DATE. IN ADDITION TO THE RIGHT TO VOTE THE
PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND ATTORNEY-IN-FACT
SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS,
PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES WOULD
BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT
SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND
WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY
PLEDGED SHARES ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON
(INCLUDING THE ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT
THEREOF), UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. NOTWITHSTANDING
THE FOREGOING, AGENT SHALL NOT HAVE ANY DUTY TO EXERCISE ANY SUCH RIGHT
OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO
SO OR FOR ANY DELAY IN DOING SO.
-6-
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if
there be but one sale, shall be inadequate to discharge in full all the
Secured Obligations, or if the Pledged Collateral be offered for sale
in lots, if at any of such sales, the highest bid for the lot offered
for sale would indicate to Agent, in its discretion, that the proceeds
of the sales of the whole of the Pledged Collateral would be unlikely
to be sufficient to discharge all the Secured Obligations, Agent may,
on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of
previous postponement of sale, and no other notice of such postponement
or postponements of sale need be given, any other notice being hereby
waived; provided, however, that any sale or sales made after such
postponement shall be after ten (10) days' notice to Pledgor.
(c) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise
of its rights (when permitted under this Section 8) to sell the whole
or any part of the Pledged Shares hereunder, it is necessary or
advisable to effect a public registration of all or part of the Pledged
Collateral pursuant to the Securities Act of 1933, as amended (or any
similar statute then in effect) (the "Act"), Pledgor shall, in an
expeditious manner, cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect to
the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Act with
respect to the sale or other disposition of the Pledged Shares covered
by such registration statement whenever Agent shall desire to sell or
otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged Shares
by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement under
such other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such other
reasonable acts and things as may be required of it to enable Agent to
consummate the public sale or other disposition in such jurisdictions
of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
or interests of the Pledged Collateral are delivered to the
underwriters for sale pursuant to
-7-
such registration or, if the security is not being sold through
underwriters, on the date that the registration statement with respect
to such Pledged Shares becomes effective, (A) an opinion, dated such
date, of the independent counsel representing such registrant for the
purposes of such registration, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in customary form and covering matters of
the type customarily covered in such legal opinions; and (B) a comfort
letter, dated such date, from the independent certified public
accountants of such registrant, addressed to the underwriters, if any,
and in the event the Pledged Shares are not being sold through
underwriters, then to Agent, in a customary form and covering matters
of the type customarily covered by such comfort letters and as the
underwriters or Agent shall reasonably request. The opinion of counsel
referred to above shall additionally cover such other legal matters
with respect to the registration in respect of which such opinion is
being given as Agent may reasonably request. The letter referred to
above from the independent certified public accountants shall
additionally cover such other financial matters (including information
as to the period ending not more than five (5) Business Days prior to
the date of such letter) with respect to the registration in respect of
which such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable
but not later than 18 months after the effective date of the
registration statement, an earnings statement covering the period of at
least 12 months beginning with the first full month after the effective
date of such registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(d) All expenses incurred in complying with Section 8(c) hereof,
including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel for the registrant, the fees and expenses of
counsel for Agent, expenses of the independent certified public
accountants (including any special audits incident to or required by
any such registration) and expenses of complying with the securities or
blue sky laws or any jurisdictions, shall be paid by Pledgor.
(e) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Act, Agent may, in its discretion (subject only to applicable
requirements of law), sell such Pledged Collateral or part thereof by
private sale in such manner and under such circumstances as Agent may
deem necessary or advisable, but subject to the other requirements of
this Section 8, and shall not be required to effect such registration
or to cause the same to be effected. Without limiting the generality of
the foregoing, in any such event, Agent in its discretion (x) may, in
accordance with applicable securities laws, proceed to make such
private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be
or shall have been filed under said Act (or similar statute), (y) may
approach and negotiate with a
-8-
single possible purchaser to effect such sale, and (z) may restrict
such sale to a purchaser who is an accredited investor under the Act
and who will represent and agree that such purchaser is purchasing for
its own account, for investment and not with a view to the distribution
or sale of such Pledged Collateral or any part thereof. In addition to
a private sale as provided above in this Section 8, if any of the
Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of
any proposed sale pursuant to this Section 8, then Agent shall not be
required to effect such registration or cause the same to be effected
but, in its discretion (subject only to applicable requirements of
law), may require that any sale hereunder (including a sale at auction)
be conducted subject to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates, if any, representing the Pledged Collateral sold in such
sale, including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's
access to financial information about Pledgor and such Person's
intentions as to the holding of the Pledged Collateral so sold for
investment for its own account and not with a view to the distribution
thereof; and
(iv) as to such other matters as Agent may, in its discretion,
deem necessary or appropriate in order that such sale (notwithstanding
any failure so to register) may be effected in compliance with the
Bankruptcy Code and other laws affecting the enforcement of creditors'
rights and the Act and all applicable state securities laws.
(f) Pledgor recognizes that Agent may be unable to effect a public
sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause
(e) above. Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall not be deemed to have been made
in a commercially unreasonable manner solely by virtue of such sale
being private. Agent shall be under no obligation to delay a sale of
any of the Pledged Collateral for the period of time necessary to
permit the Pledged Entity to register such securities for public sale
under the Act, or under applicable state securities laws, even if
Pledgor and the Pledged Entity would agree to do so.
(g) Pledgor agrees to the maximum extent permitted by applicable
law that following the occurrence and during the continuance of an
Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay
the enforcement of this Agreement, or the absolute sale of the whole or
any part of
-9-
the Pledged Collateral or the possession thereof by any purchaser at
any sale hereunder, and Pledgor waives the benefit of all such laws to
the extent it lawfully may do so. Pledgor agrees that it will not
interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure
or delay on the part of Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon
Pledgor by Agent with respect to any such remedies shall operate as a
waiver thereof, or limit or impair Agent's right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against Pledgor in any respect.
(h) Pledgor further agrees that a breach of any of the covenants
contained in this Section 8 will cause irreparable injury to Agent,
that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against
Pledgor, and Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon Pledgor by Agent with respect to any power of sale, Lien,
option or other right hereunder, shall constitute a waiver thereof, or limit or
impair Agent's right to take any action or to exercise any power of sale, Lien,
option, or any other right hereunder, without notice or demand, or prejudice
Agent's rights as against Pledgor in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the Termination Date, Agent
shall deliver to Pledgor the Pledged Collateral pledged by Pledgor at the time
subject to this Agreement and all instruments of assignment executed in
connection therewith, free and clear of the Liens hereof and, except as
otherwise provided herein, all of Pledgor's obligations hereunder shall at such
time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
-10-
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
13. Release. Pledgor consents and agrees that Agent may at any time, or
from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such
manner and upon such terms as Agent may deem proper, and without notice
to or further assent from Pledgor, it being hereby agreed that Pledgor
shall be and remain bound upon this Agreement, irrespective of the
value or condition of any of the Collateral, and notwithstanding any
such change, exchange, settlement, compromise, surrender, release,
renewal or extension, and notwithstanding also that the Secured
Obligations may, at any time, exceed the aggregate principal amount
thereof set forth in the Credit Agreement, or any other agreement
governing any Secured Obligations. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable
hereon, and in giving any notice to or of making any claim or demand
hereunder upon Pledgor. No act or omission of any kind on Agent's part
shall in any event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against Pledgor
or any Pledged Entity for liquidation or reorganization, should Pledgor or any
Pledged Entity become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of Pledgor's or a Pledged Entity's assets, and shall continue
to be effective or be reinstated, as the case may be, if at any time payment and
performance of the Secured Obligations, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Obligations, whether as a "voidable
preference", "fraudulent conveyance", or otherwise, all as though such
-11-
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Secured
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
15. Miscellaneous.
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel
concerning all matters pertaining to its duties hereunder.
(b) Pledgor agrees to promptly reimburse Agent for actual
out-of-pocket expenses, including, without limitation, reasonable
counsel fees, incurred by Agent in connection with the administration
and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully
taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
AGENT AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
ILLINOIS APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE, AND
NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED,
ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND ON
BEHALF OF AGENT AND PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
-12-
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
With copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Phone No.: (000) 000-0000
(b) If to Pledgor, at:
Brightpoint International Ltd.
c/o Brightpoint, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Executive Vice President and General Counsel
With copies to:
Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 17, (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid, or (d) when delivered, if hand-delivered by
messenger. Failure or delay in delivering copies of any notice, demand, request,
consent,
-13-
approval, declaration or other communication to the persons designated
above to receive copies shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments realized from the Pledged Collateral in accordance herewith shall be
applied to the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Its Duly Authorized Signatory
SCHEDULE I
PART A
PLEDGED SHARES
Percentage of
Class Stock Certificate Number of Outstanding
Pledged Entity of Stock Number(s) Shares/Interests Shares/Interests
-------------- -------- ---------------- ---------------- ------------------
[100%]
[100%]
[100%]
[100%]
PART B
PLEDGED INDEBTEDNESS
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
[TO BE PROVIDED BY BORROWERS]
-16-
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________, ___ is
delivered pursuant to Section 6(d) of the Pledge Agreement referred to below.
All defined terms herein shall have the meanings ascribed thereto or
incorporated by reference in the Pledge Agreement. The undersigned hereby
certifies that the representations and warranties in Section 5 of the Pledge
Agreement are and continue to be true and correct, both as to the promissory
notes, instruments and shares or interests pledged prior to this Pledge
Amendment and as to the promissory notes, instruments and shares or interests
pledged pursuant to this Pledge Amendment. The undersigned further agrees that
this Pledge Amendment may be attached to that certain Pledge Agreement, dated
______________, 2001, between undersigned, as Pledgor, and General Electric
Capital Corporation, as Agent, (the "Pledge Agreement") and that the Pledged
Shares and Pledged Indebtedness listed on this Pledge Amendment shall be and
become a part of the Pledged Collateral referred to in said Pledge Agreement and
shall secure all Secured Obligations referred to in said Pledge Agreement. The
undersigned acknowledges that any promissory notes, instruments, shares or
interests not included in the Pledged Collateral at the discretion of Agent may
not otherwise be pledged by Pledgor to any other Person or otherwise used as
security for any obligations other than the Secured Obligations.
BRIGHTPOINT INTERNATIONAL LTD.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Name and Class Certificate Number of
Address of Pledgor Pledged Entity of Stock Number(s) Shares/Interests
------------------ -------------- -------- ---------- -----------------
Initial
Pledged Entity Principal Amount Issue Date Maturity Date Interest Rate
-------------- ---------------- ---------- ------------- -------------
-17-
CONTROL AGREEMENT
This Control Agreement (the "Agreement") is entered into as of the 31st
day of October, 2001 by and among Brightpoint North America L.P., a Delaware
limited partnership (the "Pledged Entity"), General Electric Capital
Corporation, a Delaware corporation, as agent for the benefit of the Lenders
(the "Secured Party"), and Brightpoint North America, Inc., an Indiana
corporation ("Pledgor").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of October
31, 2001 (as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") among Brightpoint North America L.P. and
Wireless Fulfillment Services LLC (collectively, "Borrowers"), Pledgor, the
other Credit Parties party thereto, the Secured Party and the lenders from time
to time party thereto (the "Lenders"), the Lenders have extended certain loans
and other financial accommodations to Borrowers which are secured by, among
other things, a pledge of and security interest in and to all right, title and
interests of Pledgor in the membership interests in the Pledged Entity owned or
held by Pledgor (such interests being referred to herein as the "Pledged
Collateral"); and
WHEREAS, the parties hereto wish to acknowledge such security interests
and the Secured Party's control over the Pledged Collateral for purposes of the
provisions of Article 8 of the Uniform Commercial Code as enacted and in effect
in the State of Illinois (the "Code").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. All capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
2. Acknowledgment of Security Interest. The Pledged Entity hereby
acknowledges and agrees that the Secured Party, individually and on behalf of
the Lenders, has been granted and continues to hold a first priority security
interest in and to the Pledged Collateral as collateral security for the
obligations of the Pledged Entity under the Credit Agreement.
3. Agreement to Follow Instructions; Agreement Not to Register
Transfer. The Pledged Entity hereby agrees to comply with any "instructions" (as
defined in Section 8-102(a)(12) of the Code) originated by or on behalf of the
Secured Party without further consent of the Pledgor, including, without
limitation, instructions regarding the transfer, redemption or other disposition
of the Pledged Collateral or the proceeds thereof, including any distributions
with respect thereto. The Pledged Entity agrees that it shall not register any
transfer of the Pledged Collateral to any Person without the prior written
consent of the Secured Party.
4. Intent of the Parties. By executing and delivering this Agreement,
the parties hereto intend to establish the Secured Party's control over the
Pledged Collateral for purposes of the provisions of Section 8-106(c)(2) of the
Code.
5. Consent. Pledgor hereby consents to the execution and delivery of
this Agreement by the Pledged Entity and the Secured Party.
6. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF
THE STATE OF ILLINOIS.
7. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
8. Amendments. No amendment, waiver, termination or other modification
to this Agreement shall be effective unless the same is in writing and is signed
by each of the parties hereto.
[signature page follows]
-2-
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PLEDGED ENTITY:
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH AMERICA, INC., its
general partner
By:/s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
SECURED PARTY:
GENERAL ELECTRIC CAPITAL CORPORATION, as agent
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Duly Authorized Signatory
PLEDGOR:
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
CONTROL AGREEMENT
This Control Agreement (the "Agreement") is entered into as of the 31st day
of October, 2001 by and among Brightpoint North America L.P., a Delaware limited
partnership (the "Pledged Entity"), General Electric Capital Corporation, a
Delaware corporation, as agent for the benefit of the Lenders (the "Secured
Party"), and Brightpoint, Inc., a Delaware corporation ("Pledgor").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of October 31,
2001 (as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") among Brightpoint North America L.P. and
Wireless Fulfillment Services LLC (collectively, "Borrowers"), Pledgor, the
other Credit Parties party thereto, the Secured Party and the lenders from time
to time party thereto (the "Lenders"), the Lenders have extended certain loans
and other financial accommodations to Borrowers which are secured by, among
other things, a pledge of and security interest in and to all right, title and
interests of Pledgor in the membership interests in the Pledged Entity owned or
held by Pledgor (such interests being referred to herein as the "Pledged
Collateral"); and
WHEREAS, the parties hereto wish to acknowledge such security interests and
the Secured Party's control over the Pledged Collateral for purposes of the
provisions of Article 8 of the Uniform Commercial Code as enacted and in effect
in the State of Illinois (the "Code").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. All capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
2. Acknowledgment of Security Interest. The Pledged Entity hereby
acknowledges and agrees that the Secured Party, individually and on behalf of
the Lenders, has been granted and continues to hold a first priority security
interest in and to the Pledged Collateral as collateral security for the
obligations of the Pledged Entity under the Credit Agreement.
3. Agreement to Follow Instructions; Agreement Not to Register
Transfer. The Pledged Entity hereby agrees to comply with any "instructions" (as
defined in Section 8-102(a)(12) of the Code) originated by or on behalf of the
Secured Party without further consent of the Pledgor, including, without
limitation, instructions regarding the transfer, redemption or other disposition
of the Pledged Collateral or the proceeds thereof, including any distributions
with respect thereto. The Pledged Entity agrees that it shall not register any
transfer of the Pledged Collateral to any Person without the prior written
consent of the Secured Party.
4. Intent of the Parties. By executing and delivering this Agreement, the
parties hereto intend to establish the Secured Party's control over the Pledged
Collateral for purposes of the provisions of Section 8-106(c)(2) of the Code.
5. Consent. Pledgor hereby consents to the execution and delivery of this
Agreement by the Pledged Entity and the Secured Party.
6. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF
THE STATE OF ILLINOIS.
7. Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement.
8. Amendments. No amendment, waiver, termination or other modification to
this Agreement shall be effective unless the same is in writing and is signed by
each of the parties hereto.
[signature page follows]
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PLEDGED ENTITY:
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
SECURED PARTY:
GENERAL ELECTRIC CAPITAL CORPORATION, as agent
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
----------------------------------------
Title: Duly Authorized Signatory
PLEDGOR:
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
CONTROL AGREEMENT
This Control Agreement (the "Agreement") is entered into as of the 31st day
of October, 2001 by and among Wireless Fulfillment Services LLC, a California
limited liability company (the "Pledged Entity"), General Electric Capital
Corporation, a Delaware corporation, as agent for the benefit of the Lenders
(the "Secured Party"), and Brightpoint International Ltd., a Delaware
corporation ("Pledgor").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of October 31,
2001 (as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") among Brightpoint North America L.P. and
Wireless Fulfillment Services LLC (collectively, "Borrowers"), Pledgor, the
other Credit Parties party thereto, the Secured Party and the lenders from time
to time party thereto (the "Lenders"), the Lenders have extended certain loans
and other financial accommodations to Borrowers which are secured by, among
other things, a pledge of and security interest in and to all right, title and
interests of Pledgor in the membership interests in the Pledged Entity owned or
held by Pledgor (such interests being referred to herein as the "Pledged
Collateral"); and
WHEREAS, the parties hereto wish to acknowledge such security interests and
the Secured Party's control over the Pledged Collateral for purposes of the
provisions of Article 8 of the Uniform Commercial Code as enacted and in effect
in the State of Illinois (the "Code").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. All capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
2. Acknowledgment of Security Interest. The Pledged Entity hereby
acknowledges and agrees that the Secured Party, individually and on behalf of
the Lenders, has been granted and continues to hold a first priority security
interest in and to the Pledged Collateral as collateral security for the
obligations of the Pledged Entity under the Credit Agreement.
3. Agreement to Follow Instructions; Agreement Not to Register Transfer.
The Pledged Entity hereby agrees to comply with any "instructions" (as defined
in Section 8-102(a)(12) of the Code) originated by or on behalf of the Secured
Party without further consent of the Pledgor, including, without limitation,
instructions regarding the transfer, redemption or other disposition of the
Pledged Collateral or the proceeds thereof, including any distributions with
respect thereto. The Pledged Entity agrees that it shall not register any
transfer of the Pledged Collateral to any Person without the prior written
consent of the Secured Party.
4. Intent of the Parties. By executing and delivering this Agreement, the
parties hereto intend to establish the Secured Party's control over the Pledged
Collateral for purposes of the provisions of Section 8-106(c)(2) of the Code.
5. Consent. Pledgor hereby consents to the execution and delivery of this
Agreement by the Pledged Entity and the Secured Party.
6. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF
THE STATE OF ILLINOIS.
7. Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement.
8. Amendments. No amendment, waiver, termination or other modification to
this Agreement shall be effective unless the same is in writing and is signed by
each of the parties hereto.
[signature page follows]
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PLEDGED ENTITY:
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
SECURED PARTY:
GENERAL ELECTRIC CAPITAL CORPORATION, as agent
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Duly Authorized Signatory
PLEDGOR:
BRIGHTPOINT INTERNATIONAL LTD.
By: Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
CONTROL AGREEMENT
This Control Agreement (the "Agreement") is entered into as of the 31st day
of October, 2001 by and among Wireless Fulfillment Services LLC, a California
limited liability company (the "Pledged Entity"), General Electric Capital
Corporation, a Delaware corporation, as agent for the benefit of the Lenders
(the "Secured Party"), and Brightpoint, Inc., a Delaware corporation
("Pledgor").
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of October 31,
2001 (as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement") among Brightpoint North America L.P. and
Wireless Fulfillment Services LLC (collectively, "Borrowers"), Pledgor, the
other Credit Parties party thereto, the Secured Party and the lenders from time
to time party thereto (the "Lenders"), the Lenders have extended certain loans
and other financial accommodations to Borrowers which are secured by, among
other things, a pledge of and security interest in and to all right, title and
interests of Pledgor in the membership interests in the Pledged Entity owned or
held by Pledgor (such interests being referred to herein as the "Pledged
Collateral"); and
WHEREAS, the parties hereto wish to acknowledge such security interests and
the Secured Party's control over the Pledged Collateral for purposes of the
provisions of Article 8 of the Uniform Commercial Code as enacted and in effect
in the State of Illinois (the "Code").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. All capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
2. Acknowledgment of Security Interest. The Pledged Entity hereby
acknowledges and agrees that the Secured Party, individually and on behalf of
the Lenders, has been granted and continues to hold a first priority security
interest in and to the Pledged Collateral as collateral security for the
obligations of the Pledged Entity under the Credit Agreement.
3. Agreement to Follow Instructions; Agreement Not to Register Transfer.
The Pledged Entity hereby agrees to comply with any "instructions" (as defined
in Section 8-102(a)(12) of the Code) originated by or on behalf of the Secured
Party without further consent of the Pledgor, including, without limitation,
instructions regarding the transfer, redemption or other disposition of the
Pledged Collateral or the proceeds thereof, including any distributions with
respect thereto. The Pledged Entity agrees that it shall not register any
transfer of the Pledged Collateral to any Person without the prior written
consent of the Secured Party.
4. Intent of the Parties. By executing and delivering this Agreement, the
parties hereto intend to establish the Secured Party's control over the Pledged
Collateral for purposes of the provisions of Section 8-106(c)(2) of the Code.
5. Consent. Pledgor hereby consents to the execution and delivery of this
Agreement by the Pledged Entity and the Secured Party.
6. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAW PROVISIONS) OF
THE STATE OF ILLINOIS.
7. Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement.
8. Amendments. No amendment, waiver, termination or other modification to
this Agreement shall be effective unless the same is in writing and is signed by
each of the parties hereto.
[signature page follows]
- 2 -
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PLEDGED ENTITY:
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
SECURED PARTY:
GENERAL ELECTRIC CAPITAL CORPORATION, as agent
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Duly Authorized Signatory
PLEDGOR:
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of October 31, 2001, by Brightpoint
North America L.P., a Delaware limited partnership ("Grantor"), in favor of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its capacity as
Agent for Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Wireless Fulfillment Services LLC (collectively
with Grantor, "Borrowers"), the other Persons named therein as Credit Parties,
Agent and the Persons signatory thereto from time to time as Lenders (including
all annexes, exhibits or schedules thereto, as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), Lenders
have agreed to make the Loans and to incur Letter of Credit Obligations for the
benefit of Borrowers.
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, but only
upon the condition, among others, that Grantor shall have executed and delivered
to Agent, for itself and the ratable benefit of Lenders, that certain Security
Agreement dated as of the date herewith (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, pursuant to the Security Agreement, Grantor is required to execute
and deliver to Agent, for itself and the ratable benefit of Lenders, this
Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in Annex A thereto to the Credit
Agreement.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Grantor hereby
grants to Agent, on behalf of itself and Lenders, a continuing first priority
security interest in all of Grantor's right, title and interest in, to and under
the following, whether presently existing or hereafter created or acquired
(collectively, the "Trademark Collateral"):
(a) all of its Trademarks and Trademark Licenses to which it is a
party including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark License; and
(d) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past, present or
future (i) infringement or dilution of any Trademark or Trademark licensed
under any Trademark License or (ii) injury to the goodwill associated with
any Trademark or any Trademark licensed under any Trademark License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this
Trademark Security Agreement are granted in conjunction with the security
interests granted to Agent, on behalf of itself and Lenders, pursuant to the
Security Agreement. Grantor hereby acknowledges and affirms that the rights and
remedies of Agent with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[SIGNATURE PAGE FOLLOWS]
- 2 -
IN WITNESS WHEREOF, Grantor has caused this Trademark Security Agreement to
be executed and delivered by its duly authorized officer as of the date first
set forth above.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------
Title: Duly Authorized Signatory
ACKNOWLEDGMENT OF GRANTOR
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 31 day of October, 2001 before me personally appeared Xxxxxx X.
Xxxxx, proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of Brightpoint North America L.P.,
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
/s/ Xxxxxx Xxx
------------------------
{seal} Notary Public
- 4 -
SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS
Xxxx Reg. No. Date
TRADEMARK APPLICATIONS
TRADEMARK LICENSES
Name of Agreement, Parties, Date of Agreement
[TO BE PROVIDED BY BORROWERS]
- 5 -
TRADEMARK SECURITY AGREEMENT
TRADEMARK SECURITY AGREEMENT, dated as of October 31, 2001, by Wireless
Fulfillment Services LLC, a California limited liability company ("Grantor"), in
favor of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its
capacity as Agent for Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Brightpoint North America L.P. (collectively with
Grantor, "Borrowers"), the other Persons named therein as Credit Parties, Agent
and the Persons signatory thereto from time to time as Lenders (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), Lenders have agreed
to make the Loans and to incur Letter of Credit Obligations for the benefit of
Borrowers.
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, but only
upon the condition, among others, that Grantor shall have executed and delivered
to Agent, for itself and the ratable benefit of Lenders, that certain Security
Agreement dated as of the date herewith (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, pursuant to the Security Agreement, Grantor is required to execute
and deliver to Agent, for itself and the ratable benefit of Lenders, this
Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in Annex A thereto to the Credit
Agreement.
2. GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL. Grantor hereby
grants to Agent, on behalf of itself and Lenders, a continuing first priority
security interest in all of Grantor's right, title and interest in, to and under
the following, whether presently existing or hereafter created or acquired
(collectively, the "Trademark Collateral"):
(a) all of its Trademarks and Trademark Licenses to which it is a
party including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark License; and
(d) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past, present or
future (i) infringement or dilution of any Trademark or Trademark licensed
under any Trademark License or (ii) injury to the goodwill associated with
any Trademark or any Trademark licensed under any Trademark License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this
Trademark Security Agreement are granted in conjunction with the security
interests granted to Agent, on behalf of itself and Lenders, pursuant to the
Security Agreement. Grantor hereby acknowledges and affirms that the rights and
remedies of Agent with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[SIGNATURE PAGE FOLLOWS]
- 2 -
IN WITNESS WHEREOF, Grantor has caused this Trademark Security Agreement to
be executed and delivered by its duly authorized officer as of the date first
set forth above.
WIRELESS FULFILLMENT SERVICES LLC
By: BRIGHTPOINT, INC.,
its manager
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President,
General Counsel & Secretary
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Duly Authorized Signatory
ACKNOWLEDGMENT OF GRANTOR
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 31st day of October, 2001 before me personally appeared Xxxxxx X.
Xxxxx, proved to me on the basis of satisfactory evidence to be the person who
executed the foregoing instrument on behalf of Wireless Fulfillment Services
LLC, who being by me duly sworn did depose and say that he is an authorized
officer of said corporation, that the said instrument was signed on behalf of
said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.
/s/ Xxxxxx Xxx
------------------------
{seal} Notary Public
- 4 -
SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS
Xxxx Reg. No. Date
TRADEMARK APPLICATIONS
TRADEMARK LICENSES
Name of Agreement, Parties, Date of Agreement
[TO BE PROVIDED BY BORROWERS]
- 5 -
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT, dated as of October 31, 2001, by
Brightpoint North America L.P., a Delaware limited partnership ("Grantor"), in
favor of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its
capacity as Agent for Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Wireless Fulfillment Services LLC (collectively
with Grantor, "Borrowers") the other Persons named therein as Credit Parties,
Agent and the Persons signatory thereto from time to time as Lenders (including
all annexes, exhibits or schedules thereto, as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), Lenders
have agreed to make the Loans and to incur Letter of Credit Obligations for the
benefit of Borrowers;
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, but only
upon the condition, among others, that Grantor shall have executed and delivered
to Agent, for itself and the ratable benefit of Lenders, that certain Security
Agreement dated as of the date herewith (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, pursuant to the Security Agreement, Grantor is required to
execute and deliver to Agent, for itself and the ratable benefit of Lenders,
this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in Annex A to the Credit Agreement.
2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL. Grantor hereby
grants to Agent, on behalf of itself and Lenders, a continuing first priority
security interest in all of Grantor's right, title and interest in, to and under
the following, whether presently existing or hereafter created or acquired
(collectively, the "Copyright Collateral"):
(a) all of its Copyrights and Copyright Licenses to which it is a
party including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
and
(c) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past,
present or future
infringement or dilution of any Copyright or any Copyright licensed
under any Copyright License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this
Copyright Security Agreement are granted in conjunction with the security
interests granted to Agent, on behalf of itself and Lenders, pursuant to the
Security Agreement. Grantor hereby acknowledges and affirms that the rights and
remedies of Agent with respect to the security interest in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[signature page follows]
-2-
IN WITNESS WHEREOF, Grantor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Duly Authorized Signatory
ACKNOWLEDGMENT OF GRANTOR
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 31st day of October, 2001 before me personally appeared Xxxxxx
X. Xxxxx, proved to me on the basis of satisfactory evidence to be the person
who executed the foregoing instrument on behalf of Brightpoint North America
L.P., who being by me duly sworn did depose and say that he is an authorized
officer of said corporation, that the said instrument was signed on behalf of
said corporation authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
/s/ Xxxxxx Xxx
-----------------------------
{seal} Notary Public
-4-
SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS
MarkReg. No. Date
COPYRIGHT APPLICATIONS
COPYRIGHT LICENSES
Name of Agreement Parties Date of Agreement
[TO BE PROVIDED BY BORROWERS]
-5-
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT, dated as of October 31, 2001, by Wireless
Fulfillment Services LLC, a California limited liability company ("Grantor"), in
favor of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its
capacity as Agent for Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Brightpoint North America L.P. (collectively with
Grantor, "Borrowers") the other Persons named therein as Credit Parties, Agent
and the Persons signatory thereto from time to time as Lenders (including all
annexes, exhibits or schedules thereto, as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), Lenders have agreed
to make the Loans and to incur Letter of Credit Obligations for the benefit of
Borrowers;
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, but only
upon the condition, among others, that Grantor shall have executed and delivered
to Agent, for itself and the ratable benefit of Lenders, that certain Security
Agreement dated as of the date herewith (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, pursuant to the Security Agreement, Grantor is required to
execute and deliver to Agent, for itself and the ratable benefit of Lenders,
this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in Annex A to the Credit Agreement.
2. GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL. Grantor hereby
grants to Agent, on behalf of itself and Lenders, a continuing first priority
security interest in all of Grantor's right, title and interest in, to and under
the following, whether presently existing or hereafter created or acquired
(collectively, the "Copyright Collateral"):
(a) all of its Copyrights and Copyright Licenses to which it is a
party including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
and
(c) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past,
present or future
infringement or dilution of any Copyright or any Copyright licensed
under any Copyright License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this
Copyright Security Agreement are granted in conjunction with the security
interests granted to Agent, on behalf of itself and Lenders, pursuant to the
Security Agreement. Grantor hereby acknowledges and affirms that the rights and
remedies of Agent with respect to the security interest in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
[signature page follows]
-2-
IN WITNESS WHEREOF, Grantor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized officer as of the
date first set forth above.
IRELESS FULFILLMENT SERVICES LLC
By: BRIGHTPOINT, INC.,
its manager
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Duly Authorized Signatory
ACKNOWLEDGMENT OF GRANTOR
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 31st day of October, 2001 before me personally appeared Xxxxxx
X. Xxxxx, proved to me on the basis of satisfactory evidence to be the person
who executed the foregoing instrument on behalf of Wireless Fulfillment Services
LLC, who being by me duly sworn did depose and say that he is an authorized
officer of said corporation, that the said instrument was signed on behalf of
said corporation authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
/s/ Xxxxxx Xxx
--------------------
{seal} Notary Public
-4-
SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS
MarkReg. No. Date
COPYRIGHT APPLICATIONS
COPYRIGHT LICENSES
Name of Agreement Parties Date of Agreement
[TO BE PROVIDED BY BORROWERS]
-5-
PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of October 31, 2001, by Brightpoint
North America L.P., a Delaware limited partnership ("Grantor"), in favor of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its capacity as
Agent for Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Wireless Fulfillment Services LLC (collectively
with Grantor, "Borrowers") the other Persons named therein as Credit Parties,
Agent and the Persons signatory thereto from time to time as Lenders (including
all annexes, exhibits or schedules thereto, and as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), Lenders
have agreed to make the Loans and to incur Letter of Credit Obligations for the
benefit of Borrowers;
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, but only
upon the condition, among others, that Grantor shall have executed and delivered
to Agent, for itself and the ratable benefit of Lenders, that certain Security
Agreement dated as of the date herewith (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, pursuant to the Security Agreement, Grantor is required to
execute and deliver to Agent, for itself and the ratable benefit of Lenders,
this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in Annex A thereto to the Credit
Agreement.
2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. Grantor hereby
grants to Agent, on behalf of itself and Lenders, a continuing first priority
security interest in all of Grantor's right, title and interest in, to and under
the following, whether presently existing or hereafter created or acquired
(collectively, the "Patent Collateral"):
(a) all of its Patents and Patent Licenses to which it is a party
including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
and
(c) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past,
present or future infringement or dilution of any Patent or any Patent
licensed under any Patent License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this
Patent Security Agreement are granted in conjunction with the security interests
granted to Agent, on behalf of itself and Lenders, pursuant to the Security
Agreement. Grantor hereby acknowledges and affirms that the rights and remedies
of Agent with respect to the security interest in the Patent Collateral made and
granted hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
[SIGNATURE PAGE FOLLOWS]
-2-
IN WITNESS WHEREOF, Grantor has caused this Patent Security Agreement
to be executed and delivered by its duly authorized officer as of the date first
set forth above.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Duly Authorized Signatory
ACKNOWLEDGMENT OF GRANTOR
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 31st day of October, 2001 before me personally appeared Xxxxxx
X. Xxxxx, proved to me on the basis of satisfactory evidence to be the person
who executed the foregoing instrument on behalf of Brightpoint North America
L.P., who being by me duly sworn did depose and say that he is an authorized
officer of said corporation, that the said instrument was signed on behalf of
said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.
/s/ Xxxxxx Xxx
-----------------------
{seal} Notary Public
-4-
SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS
Xxxx Reg. No. Date
PATENT APPLICATIONS
PATENT LICENSES
Name of Agreement, Parties, Date of Agreement
[TO BE PROVIDED BY BORROWERS]
-5-
PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of October 31, 2001, by Wireless
Fulfillment Services LLC, a California limited liability company ("Grantor"), in
favor of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, in its
capacity as Agent for Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Grantor, Brightpoint North America L.P. (collectively with
Grantor, "Borrowers") the other Persons named therein as Credit Parties, Agent
and the Persons signatory thereto from time to time as Lenders (including all
annexes, exhibits or schedules thereto, and as from time to time amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), Lenders
have agreed to make the Loans and to incur Letter of Credit Obligations for the
benefit of Borrowers;
WHEREAS, Agent and Lenders are willing to make the Loans and to incur
Letter of Credit Obligations as provided for in the Credit Agreement, but only
upon the condition, among others, that Grantor shall have executed and delivered
to Agent, for itself and the ratable benefit of Lenders, that certain Security
Agreement dated as of the date herewith (including all annexes, exhibits or
schedules thereto, as from time to time amended, restated, supplemented or
otherwise modified, the "Security Agreement");
WHEREAS, pursuant to the Security Agreement, Grantor is required to
execute and deliver to Agent, for itself and the ratable benefit of Lenders,
this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor hereby agrees as follows:
1. DEFINED TERMS. All capitalized terms used but not otherwise defined
herein have the meanings given to them in Annex A thereto to the Credit
Agreement.
2. GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. Grantor hereby
grants to Agent, on behalf of itself and Lenders, a continuing first priority
security interest in all of Grantor's right, title and interest in, to and under
the following, whether presently existing or hereafter created or acquired
(collectively, the "Patent Collateral"):
(a) all of its Patents and Patent Licenses to which it is a party
including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
and
(c) all products and proceeds of the foregoing, including, without
limitation, any claim by Grantor against third parties for past,
present or future infringement or dilution of any Patent or any Patent
licensed under any Patent License.
3. SECURITY AGREEMENT. The security interests granted pursuant to this
Patent Security Agreement are granted in conjunction with the security interests
granted to Agent, on behalf of itself and Lenders, pursuant to the Security
Agreement. Grantor hereby acknowledges and affirms that the rights and remedies
of Agent with respect to the security interest in the Patent Collateral made and
granted hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
[SIGNATURE PAGE FOLLOWS]
-2-
IN WITNESS WHEREOF, Grantor has caused this Patent Security Agreement
to be executed and delivered by its duly authorized officer as of the date first
set forth above.
WIRELESS FULFILLMENT SERVICES LLC
By: BRIGHTPOINT, INC.,
its manager
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
ACCEPTED AND ACKNOWLEDGED BY:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------
Title: Duly Authorized Signatory
ACKNOWLEDGMENT OF GRANTOR
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
On this 31st day of October, 2001 before me personally appeared Xxxxxx
X. Xxxxx, proved to me on the basis of satisfactory evidence to be the person
who executed the foregoing instrument on behalf of Wireless Fulfillment Services
LLC, who being by me duly sworn did depose and say that he is an authorized
officer of said corporation, that the said instrument was signed on behalf of
said corporation as authorized by its Board of Directors and that he
acknowledged said instrument to be the free act and deed of said corporation.
/s/ Xxxxxx Xxx
---------------------
{seal} Notary Public
-4-
SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS
Xxxx Reg. No. Date
PATENT APPLICATIONS
PATENT LICENSES
Name of Agreement, Parties, Date of Agreement
[TO BE PROVIDED BY BORROWERS]
-5-
GUARANTY
This GUARANTY (this "Guaranty"), dated as of October 31, 2001, by and
among the Guarantors identified as such on the signature page hereof (each, a
"Guarantor" and collectively, "Guarantors"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, individually and as agent (in such
capacity, "Agent") for itself and the lenders from time to time signatory to the
Credit Agreement hereinafter defined ("Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the date
hereof by and among Borrowers, Guarantors, Agent and the Persons signatory
thereto from time to time as Lenders (as from time to time amended, restated,
supplemented or otherwise modified, the "Credit Agreement") Lenders have agreed
to make Loans to, and incur Letter of Credit Obligations for the benefit of,
Borrowers.
WHEREAS, Guarantors own the Stock of Borrowers or are Affiliates of
Borrowers and as such will derive direct and indirect economic benefits from the
making of the Loans and other financial accommodations provided to Borrowers
pursuant to the Credit Agreement; and
WHEREAS, in order to induce Agent and Lenders to enter into the Credit
Agreement and other Loan Documents and to induce Lenders to make the Loans and
to incur Letter of Credit Obligations as provided for in the Credit Agreement,
Guarantors have agreed to guarantee payment of the Obligations;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce Lenders to provide the Loans and other
financial accommodations under the Credit Agreement, it is agreed as follows:
1. DEFINITIONS.
Capitalized terms used herein shall have the meanings assigned to them
in the Credit Agreement, unless otherwise defined herein.
References to this "Guaranty" shall mean this Guaranty, including all
amendments, modifications and supplements and any annexes, exhibits and
schedules to any of the foregoing, and shall refer to this Guaranty as the same
may be in effect at the time such reference becomes operative.
2. THE GUARANTY.
2.1 Guaranty of Guaranteed Obligations of Borrowers. Each Guarantor
hereby jointly and severally unconditionally guarantees to Agent and Lenders,
and their respective successors, endorsees, transferees and assigns, the prompt
payment (whether at stated maturity, by acceleration or otherwise) and
performance of the Obligations of Borrowers (hereinafter the "Guaranteed
Obligations"). Guarantors agree that this Guaranty is a guaranty of
payment and performance and not of collection, and that their obligations under
this Guaranty shall be primary, absolute and unconditional, irrespective of, and
unaffected by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in this Guaranty, any other Loan
Document or any other agreement, document or instrument to which any
Credit Party and/or Guarantors are or may become a party;
(b) the absence of any action to enforce this Guaranty or any
other Loan Document or the waiver or consent by Agent and/or Lenders
with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect
its Lien against, any Collateral for the Guaranteed Obligations or any
action, or the absence of any action, by Agent in respect thereof
(including, without limitation, the release of any such security); or
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor,
it being agreed by each Guarantor that its obligations under this Guaranty shall
not be discharged until the Termination Date. Each Guarantor shall be regarded,
and shall be in the same position, as principal debtor with respect to the
Guaranteed Obligations. Each Guarantor agrees that any notice or directive given
at any time to Agent which is inconsistent with the waiver in the immediately
preceding sentence shall be null and void and may be ignored by Agent and
Lenders, and, in addition, may not be pleaded or introduced as evidence in any
litigation relating to this Guaranty for the reason that such pleading or
introduction would be at variance with the written terms of this Guaranty,
unless Agent and Lenders have specifically agreed otherwise in writing. It is
agreed among each Guarantor, Agent and Lenders that the foregoing waivers are of
the essence of the transaction contemplated by the Loan Documents and that, but
for this Guaranty and such waivers, Agent and Lenders would decline to enter
into the Credit Agreement.
2.2 Demand by Agent or Lenders. In addition to the terms of the
Guaranty set forth in Section 2.1 hereof, and in no manner imposing any
limitation on such terms, it is expressly understood and agreed that, if, at any
time, the outstanding principal amount of the Guaranteed Obligations under the
Credit Agreement (including all accrued interest thereon) is declared to be
immediately due and payable, then Guarantors shall, without demand, pay to the
holders of the Guaranteed Obligations the entire outstanding Guaranteed
Obligations due and owing to such holders. Payment by Guarantors shall be made
to Agent in immediately available Federal funds to an account designated by
Agent or at the address set forth herein for the giving of notice to Agent or at
any other address that may be specified in writing from time to time by Agent,
and shall be credited and applied to the Guaranteed Obligations.
2.3 Enforcement of Guaranty. In no event shall Agent have any
obligation (although it is entitled, at its option) to proceed against any
Borrower or any other Credit Party
-2-
or any Collateral pledged to secure Guaranteed Obligations before seeking
satisfaction from any or all of the Guarantors, and Agent may proceed, prior or
subsequent to, or simultaneously with, the enforcement of Agent's rights
hereunder, to exercise any right or remedy which it may have against any
Collateral, as a result of any Lien it may have as security for all or any
portion of the Guaranteed Obligations.
2.4 Waiver. In addition to the waivers contained in Section 2.1 hereof,
Guarantors waive, and agree that they shall not at any time insist upon, plead
or in any manner whatever claim or take the benefit or advantage of, any
appraisal, valuation, stay, extension, marshaling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by Guarantors of their Guaranteed
Obligations under, or the enforcement by Agent or Lenders of, this Guaranty.
Guarantors hereby waive diligence, presentment and demand (whether for
non-payment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Guaranteed Obligations, acceptance of further security,
release of further security, composition or agreement arrived at as to the
amount of, or the terms of, the Guaranteed Obligations, notice of adverse change
in any Borrower's financial condition or any other fact which might increase the
risk to Guarantors) with respect to any of the Guaranteed Obligations or all
other demands whatsoever and waive the benefit of all provisions of law which
are or might be in conflict with the terms of this Guaranty. Guarantors
represent, warrant and jointly and severally agree that, as of the date of this
Guaranty, their obligations under this Guaranty are not subject to any offsets
or defenses against Agent or Lenders or any Credit Party of any kind. Guarantors
further jointly and severally agree that their obligations under this Guaranty
shall not be subject to any counterclaims, offsets or defenses against Agent or
any Lender or against any Credit Party of any kind which may arise in the
future.
2.5 Benefit of Guaranty. The provisions of this Guaranty are for the
benefit of Agent and Lenders and their respective successors, transferees,
endorsees and assigns, and nothing herein contained shall impair, as between any
Credit Party and Agent or Lenders, the obligations of any Credit Party under the
Loan Documents. In the event all or any part of the Guaranteed Obligations are
transferred, indorsed or assigned by Agent or any Lender to any Person or
Persons, any reference to "Agent" or "Lender" herein shall be deemed to refer
equally to such Person or Persons.
2.6 Modification of Guaranteed Obligations, Etc. Each Guarantor hereby
acknowledges and agrees that Agent and Lenders may at any time or from time to
time, with or without the consent of, or notice to, Guarantors or any of them:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed Obligations;
(b) take any action under or in respect of the Loan Documents in
the exercise of any remedy, power or privilege contained therein or
available to it at law, equity or otherwise, or waive or refrain from
exercising any such remedies, powers or privileges;
-3-
(c) amend or modify, in any manner whatsoever, the Loan Documents;
(d) extend or waive the time for any Credit Party's performance
of, or compliance with, any term, covenant or agreement on its part to
be performed or observed under the Loan Documents, or waive such
performance or compliance or consent to a failure of, or departure
from, such performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release, dispose of,
or otherwise deal with, any property pledged, mortgaged or conveyed, or
in which Agent or Lenders have been granted a Lien, to secure any
Obligations;
(f) release anyone who may be liable in any manner for the payment
of any amounts owed by Guarantors or any Credit Party to Agent or any
Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
any Guarantor or any Credit Party are subordinated to the claims of
Agent and Lenders; and/or
(h) apply any sums by whomever paid or however realized to any
amounts owing by any Guarantor or any Credit Party to Agent or any
Lender in such manner as Agent or any Lender shall determine in its
discretion;
and Agent and Lenders shall not incur any liability to Guarantors as a result
thereof, and no such action shall impair or release the Guaranteed Obligations
of Guarantors or any of them under this Guaranty.
2.7 Reinstatement. This Guaranty shall remain in full force and effect
and continue to be effective should any petition be filed by or against any
Credit Party or any Guarantor for liquidation or reorganization, should any
Credit Party or any Guarantor become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of such Credit Party's or such Guarantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be
restored or returned by Agent or any Lender, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Guaranteed Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
2.8 Deferral of Subrogation, Etc. Notwithstanding anything to the
contrary in this Guaranty, or in any other Loan Document, each Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and its
successors and assigns (including any surety) until the Termination
Date, any and all rights at law or in equity to subrogation, to
-4-
reimbursement, to exoneration, to contribution, to indemnification, to
set off or to any other rights that could accrue to a surety against a
principal, to a guarantor against a principal, to a guarantor against a
maker or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the
holder of any claim against any Person, and which such Guarantor may
have or hereafter acquire against any Credit Party in connection with
or as a result of such Guarantor's execution, delivery and/or
performance of this Guaranty, or any other documents to which such
Guarantor is a party or otherwise; and
(b) acknowledges and agrees (i) that this waiver is intended to
benefit Agent and Lenders and shall not limit or otherwise effect any
Guarantor's liability hereunder or the enforceability of this Guaranty,
and (ii) that Agent, Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 2.8 and their rights under this
Section 2.8 shall survive payment in full of the Guaranteed
Obligations.
2.9 Election of Remedies. If Agent may, under applicable law, proceed
to realize benefits under any of the Loan Documents giving Agent and Lenders a
Lien upon any Collateral owned by any Credit Party, either by judicial
foreclosure or by non-judicial sale or enforcement, Agent may, at its sole
option, determine which of such remedies or rights it may pursue without
affecting any of such rights and remedies under this Guaranty. If, in the
exercise of any of its rights and remedies, Agent shall forfeit any of its
rights or remedies, including its right to enter a deficiency judgment against
any Credit Party, whether because of any applicable laws pertaining to "election
of remedies" or the like, Guarantors hereby consent to such action by Agent and
waive any claim based upon such action, even if such action by Agent shall
result in a full or partial loss of any rights of subrogation which Guarantors
might otherwise have had but for such action by Agent. Any election of remedies
which results in the denial or impairment of the right of Agent to seek a
deficiency judgment against any Credit Party shall not impair each Guarantor's
obligation to pay the full amount of the Guaranteed Obligations. In the event
Agent shall bid at any foreclosure or trustee's sale or at any private sale
permitted by law or the Loan Documents, Agent may bid all or less than the
amount of the Guaranteed Obligations and the amount of such bid need not be paid
by Agent but shall be credited against the Guaranteed Obligations. The amount of
the successful bid at any such sale shall be conclusively deemed to be the fair
market value of the collateral and the difference between such bid amount and
the remaining balance of the Guaranteed Obligations shall be conclusively deemed
to be the amount of the Guaranteed Obligations guaranteed under this Guaranty,
notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which Agent
and Lenders might otherwise be entitled but for such bidding at any such sale.
2.10 Funds Transfers. If any Guarantor shall engage in any transaction
as a result of which any Borrower is required to make a mandatory prepayment
with respect to the Guaranteed Obligations under the terms of the Credit
Agreement (including any issuance or sale of such Guarantor's Stock or any sale
of its assets), such Guarantor shall distribute to, or make a contribution to
the capital of, one or more of the Borrowers an amount equal to the mandatory
prepayment required under the terms of the Credit Agreement.
-5-
3. DELIVERIES.
In a form satisfactory to Agent, Guarantors shall deliver to Agent
(with sufficient copies for each Lender), concurrently with the execution of
this Guaranty and the Credit Agreement, the Loan Documents and other
instruments, certificates and documents as are required to be delivered by
Guarantors to Agent under the Credit Agreement.
4. REPRESENTATIONS AND WARRANTIES.
To induce Lenders to make the Loans and incur Letter of Credit
Obligations under the Credit Agreement, Guarantors jointly and severally make
the representations and warranties as to each Guarantor contained in the Credit
Agreement, each of which is incorporated herein by reference, and the following
representations and warranties to Agent and each Lender, each and all of which
shall survive the execution and delivery of this Guaranty:
4.1 Corporate Existence; Compliance with Law. Each Guarantor (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) is duly qualified to do business and
is in good standing under the laws of each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification;
(iii) has the requisite corporate power and authority and the legal right to
own, pledge, mortgage and operate its properties, to lease the property it
operates under lease, and to conduct its business as now, heretofore and
proposed to be conducted; (iv) has all licenses, permits, consents or approvals
from or by, and has made all material filings with, and has given all notices
to, all Governmental Authorities having jurisdiction, to the extent required for
such ownership, operation and conduct; (v) is in compliance with its charter and
by-laws; and (vi) is in compliance with all applicable provisions of law, except
where the failure to comply, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.2 Executive Offices. Each Guarantor's executive office and principal
place of business are as set forth in Schedule 3.2 of the Credit Agreement.
4.3 Corporate Power; Authorization; Enforceable Guaranteed Obligations.
The execution, delivery and performance of this Guaranty and all other Loan
Documents and all instruments and documents to be delivered by each Guarantor
hereunder and under the Credit Agreement are within such Guarantor's corporate
power, have been duly authorized by all necessary or proper corporate action,
including the consent of stockholders where required, are not in contravention
of any provision of such Guarantor's charter or by-laws, do not violate any law
or regulation, or any order or decree of any Governmental Authority, do not
conflict with or result in the breach of, or constitute a default under, or
accelerate or permit the acceleration of any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which any Guarantor is a party or by which any Guarantor or any of its property
is bound, do not result in the creation or imposition of any Lien upon any of
the property of any Guarantor, other than those in favor of Agent, for itself
and the benefit of Lenders, and the same do not require the consent or approval
of any Governmental Authority or any other Person except those referred to in
Section 2.1(c) of the Credit Agreement, all of which have been duly obtained,
made or complied with prior to the Closing Date. On or prior to the Closing
Date, this
-6-
Guaranty and each of the Loan Documents to which any Guarantor is a
party shall have been duly executed and delivered for the benefit of or on
behalf of such Guarantor, and each shall then constitute a legal, valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms.
5. FURTHER ASSURANCES.
Each Guarantor agrees, upon the written request of Agent or any Lender,
to execute and deliver to Agent or such Lender, from time to time, any
additional instruments or documents reasonably considered necessary by Agent or
such Lender to cause this Guaranty to be, become or remain valid and effective
in accordance with its terms.
6. PAYMENTS FREE AND CLEAR OF TAXES.
All payments required to be made by each Guarantor hereunder shall be
made to Agent and Lenders free and clear of, and without deduction for, any and
all present and future Taxes. If any Guarantor shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder, (a) the sum
payable shall be increased as much as shall be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 6) Agent or Lenders, as applicable, receive an amount
equal to the sum they would have received had no such deductions been made, (b)
such Guarantor shall make such deductions, and (c) such Guarantor shall pay the
full amount deducted to the relevant taxing or other authority in accordance
with applicable law. Within thirty (30) days after the date of any payment of
Taxes, each applicable Guarantor shall furnish to Agent the original or a
certified copy of a receipt evidencing payment thereof. Each Guarantor shall
jointly and severally indemnify and, within ten (10) days of demand therefor,
pay Agent and each Lender for the full amount of Taxes (including any Taxes
imposed by any jurisdiction on amounts payable under this Section 6) paid by
Agent or such Lender, as appropriate, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally asserted.
7. OTHER TERMS.
7.1 Entire Agreement. This Guaranty, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements relating to a
guaranty of the loans and advances under the Loan Documents and/or the
Guaranteed Obligations.
7.2 Headings. The headings in this Guaranty are for convenience of
reference only and are not part of the substance of this Guaranty.
7.3 Severability. Whenever possible, each provision of this Guaranty
shall be interpreted in such a manner to be effective and valid under applicable
law, but if any provision of this Guaranty shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Guaranty.
-7-
7.4 Notices. Whenever it is provided herein that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by any other party, or whenever any
of the parties desires to give or serve upon another any such communication with
respect to this Guaranty, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be addressed to
the party to be notified as follows:
(a) If to Agent, at:
General Electric Capital Corporation
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Brightpoint Account Manager
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
with copies to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
(b) If to any Lender, at the address of such Lender specified in the
Credit Agreement.
(c) If to any Guarantor, at the address of such Guarantor specified
on Schedule I hereto.
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been validly served, given or delivered (i) upon the earlier of actual
receipt and three (3) Business Days after the same shall have been deposited
with the United States mail, registered or certified mail, return receipt
requested, with proper postage prepaid, (ii) upon transmission, when sent by
telecopy or other similar facsimile transmission (with such telecopy or
facsimile promptly confirmed by delivery of a copy by personal delivery or
United States mail as otherwise provided in this Section 7.4), (iii) one (1)
Business Day after deposit with a reputable overnight carrier with all charges
prepaid, or (iv) when delivered, if hand-delivered by messenger.
7.5 Successors and Assigns. This Guaranty and all obligations of
Guarantors hereunder shall be binding upon the successors and assigns of each
Guarantor (including a debtor-in-possession on behalf of such Guarantor) and
shall, together with the rights and remedies of Agent, for itself and for the
benefit of Lenders, hereunder, inure to the benefit of
-8-
Agent and Lenders, all future holders of any instrument evidencing any of the
Obligations and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Obligations or any portion
thereof or interest therein shall in any manner affect the rights of Agent and
Lenders hereunder. Guarantors may not assign, sell, hypothecate or otherwise
transfer any interest in or obligation under this Guaranty.
7.6 No Waiver; Cumulative Remedies; Amendments. Neither Agent nor any
Lender shall by any act, delay, omission or otherwise be deemed to have waived
any of its rights or remedies hereunder, and no waiver shall be valid unless in
writing, signed by Agent and then only to the extent therein set forth. A waiver
by Agent, for itself and the ratable benefit of Lenders, of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which Agent would otherwise have had on any future occasion. No failure
to exercise nor any delay in exercising on the part of Agent or any Lender, any
right, power or privilege hereunder, shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies hereunder provided are
cumulative and may be exercised singly or concurrently, and are not exclusive of
any rights and remedies provided by law. None of the terms or provisions of this
Guaranty may be waived, altered, modified, supplemented or amended except by an
instrument in writing, duly executed by Agent and Guarantors.
7.7 Termination. This Guaranty is a continuing guaranty and shall
remain in full force and effect until the Termination Date. Upon payment and
performance in full of the Guaranteed Obligations, Agent shall deliver to
Guarantors such documents as Guarantors may reasonably request to evidence such
termination.
7.8 Counterparts. This Guaranty may be executed in any number of
counterparts, each of which shall collectively and separately constitute one and
the same agreement.
7.9 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN
ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. EACH GUARANTOR HEREBY CONSENTS AND AGREES
THAT THE STATE OR FEDERAL COURTS LOCATED IN XXXX COUNTY, CITY OF CHICAGO,
ILLINOIS SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN OR AMONG GUARANTORS, AGENT OR ANY LENDER PERTAINING TO THIS
GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OF
THE OTHER LOAN DOCUMENTS, PROVIDED, THAT AGENT AND GUARANTORS ACKNOWLEDGE THAT
ANY APPEALS FROM THOSE COURTS
-9-
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF XXXX COUNTY, AND, PROVIDED,
FURTHER, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE
AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE GUARANTEED
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT,
FOR THE BENEFIT OF AGENT AND LENDERS. EACH GUARANTOR EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH GUARANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS
AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY SUCH COURT. EACH GUARANTOR HEREBY WAIVES PERSONAL SERVICE
OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT
AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH GUARANTOR AT THE ADDRESS
SET FORTH ON SCHEDULE I HERETO AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
7.10 WAIVER OF JURY TRIAL.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), EACH GUARANTOR AND AGENT DESIRES THAT DISPUTES
ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OR ARBITRATION, EACH GUARANTOR AND AGENT WAIVES ALL
RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN
CONNECTION WITH THIS GUARANTY AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
RELATED HERETO OR THERETO.
7.11 Limitation on Guaranteed Obligations. Notwithstanding any
provision herein contained to the contrary, each Guarantor's liability hereunder
shall be limited to an amount not to exceed as of any date of determination the
greater of:
(a) the net amount of all Loans and other extensions of credit
(including Letters of Credit) advanced under the Credit Agreement and
directly or indirectly re-loaned or otherwise transferred to, or
incurred for the benefit of, such
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Guarantor, plus interest thereon at the applicable rate specified in
the Credit Agreement; or
(b) the amount which could be claimed by the Agent and Lenders
from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law
after taking into account, among other things, such Guarantor's right
of contribution and indemnification from each other Guarantor under
Section 7.12.
7.12 Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under
this Guaranty of all or any of the Guaranteed Obligations (a "Guarantor
Payment") which, taking into account all other Guarantor Payments then
previously or concurrently made by the other Guarantors, exceeds the
amount which such Guarantor would otherwise have paid if each Guarantor
had paid the aggregate Guaranteed Obligations satisfied by such
Guarantor Payment in the same proportion that such Guarantor's
"Allocable Amount (as defined below) (in effect immediately prior to
such Guarantor Payment) bore to the aggregate Allocable Amounts of all
of Guarantors in effect immediately prior to the making of such
Guarantor Payment, then, following indefeasible payment in full in cash
of the Obligations and termination of the Commitments, such Guarantor
shall be entitled to receive contribution and indemnification payments
from, and be reimbursed by, each of the other Guarantors for the amount
of such excess, pro rata based upon their respective Allocable Amounts
in effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could
then be recovered from such Guarantor under this Guaranty without
rendering such claim voidable or avoidable under Section 548 of Chapter
11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law.
(c) This Section 7.12 is intended only to define the relative
rights of Guarantors and nothing set forth in this Section 7.12 is
intended to or shall impair the obligations of Guarantors, jointly and
severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Guaranty.
(d) The rights of the parties under this Section 7.12 shall be
exercisable upon the full and indefeasible payment of the Guaranteed
Obligations and the termination of the Credit Agreement and the other
Loan Documents.
(e) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets of any Guarantor
to which such contribution and indemnification is owing.
8. SECURITY.
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To secure payment of each Guarantor's obligations under this Guaranty,
concurrently with the execution of this Guaranty, each Guarantor has entered
into a Pledge Agreement pursuant to which each Guarantor has pledged all of the
Stock of each of its Subsidiaries to Agent for the benefit of Lenders, provided
that (i) BPI shall not pledge its Stock of Brightpoint International and (ii)
Brightpoint International shall pledge only its Stock in Wireless.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guaranty as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General Counsel
and Secretary
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-----------------------------------------
Title: Duly Authorized Signatory
SCHEDULE I
[TO BE PROVIDED BY BORROWERS]
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