UNITED STATES
SECURITIES & EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended: March 31, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from:___________________ to______________________
Commission file number: 0-23494
BRIGHTPOINT, INC.
(Exact name of registrant as specified in its charter)
Delaware 35-1778566
State or other jurisdiction (I.R.S. Employer
of incorporation or organization Identification No.)
6402 Corporate Drive, Indianapolis, Indiana 46278
(Address of principal executive offices) (Zip Code)
(317) 297-6100
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [X] Yes [ ] No
Number of shares of common stock outstanding at May 1, 1997: 22,357,354 shares
<PAGE>
BRIGHTPOINT, INC.
INDEX
Page No.
--------
PART I. FINANCIAL INFORMATION
ITEM 1
Consolidated Statements of Income
Three Months Ended March 31, 1996 and 1997 ................... 3
Consolidated Balance Sheets
December 31, 1996 and March 31, 1997 ......................... 4
Consolidated Statements of Cash Flows
Three Months Ended March 31, 1996 and 1997 ................... 5
Notes to Consolidated Financial Statements ............................ 6
ITEM 2
Management's Discussion and Analysis of
Financial Condition and Results of Operations ................ 10
PART II OTHER INFORMATION
ITEM 6
Exhibits and Reports on Form 8-K ...................................... 15
Signatures ................................................................ 16
<PAGE>
BRIGHTPOINT, INC.
CONSOLIDATED STATEMENTS OF INCOME
(Amounts in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended March 31
1996 1997
-------- --------
<S> <C> <C>
Net sales $112,960 $199,169
Cost of sales 105,032 183,167
-------- --------
Gross profit 7,928 16,002
Selling, general and administrative expenses 3,677 8,096
-------- --------
Income from operations 4,251 7,906
Net investment gain -- 1,432
Interest expense, net 184 1,123
-------- --------
Income before income taxes and minority interest 4,067 8,215
Income taxes 1,165 2,443
-------- --------
Income before minority interest 2,902 5,772
Minority interest in subsidiaries' earnings -- 356
-------- --------
Net income $ 2,902 $ 5,416
======== ========
Pro forma financial information:
Historical income before income taxes and minority interest $ 4,067 $ 8,215
Pro forma income taxes 1,590 2,443
Minority interest in subsidiaries earnings -- 356
-------- --------
Pro forma net income $ 2,477 $ 5,416
======== ========
Pro forma net income per share $ 0.12 $ 0.23
======== ========
Weighted average common shares outstanding 20,595 23,187
======== ========
</TABLE>
See accompanying notes.
3
<PAGE>
BRIGHTPOINT, INC.
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
<TABLE>
<CAPTION>
December 31, 1996 March 31, 1997
----------------- --------------
(Note 1) (Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 14,255 $ 19,153
Marketable securities 18,000 --
Accounts receivable (less allowance for doubtful
accounts of $1,115 in 1996 and $1,063 in 1997) 113,119 110,922
Inventories 112,916 105,790
Other current assets 8,422 8,208
-------- --------
Total current assets 266,712 244,073
Property and equipment 8,207 12,397
Goodwill 15,232 16,975
Other assets 8,894 2,813
-------- --------
Total assets $299,045 $276,258
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses $123,231 $ 72,300
-------- --------
Total current liabilities 123,231 72,300
Notes payable 79,564 102,307
Deferred taxes 330 330
Minority interest 938 823
Stockholders' equity:
Preferred stock, $.01 par value: 1,000 shares
authorized; no shares issued or outstanding -- --
Common stock, $.01 par value: 25,000 shares
authorized; 21,636 and 22,125 issued and
outstanding in 1996 and 1997, respectively 216 221
Additional paid-in capital 73,206 77,196
Foreign currency translation adjustment 97 131
Unrealized gain on marketable securities, net of tax 3,929 --
Retained earnings 17,534 22,950
-------- --------
Total stockholders' equity 94,982 100,498
-------- --------
Total liabilities and stockholders' equity $299,045 $276,258
======== ========
</TABLE>
See accompanying notes.
4
<PAGE>
BRIGHTPOINT, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended March 31
1996 1997
-------- --------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 2,902 $ 5,416
Adjustments to reconcile net income to
net cash used by operating activities:
Minority interest -- 356
Depreciation and amortization 126 660
Net investment gain -- (1,432)
Changes in current assets and liabilities:
Accounts receivable (20,974) 2,117
Inventories 7,913 7,199
Other current assets 75 176
Accounts payable and accrued expenses 856 (47,018)
-------- --------
Net cash used by operating activities (9,102) (32,526)
INVESTING ACTIVITIES
Capital expenditures (1,470) (4,655)
Sale of marketable securities, net of transaction costs -- 18,528
Acquisition of minority interest -- (750)
Other assets (1,223) (860)
-------- --------
Net cash provided (used) by investing activities (2,693) 12,263
FINANCING ACTIVITIES
Net proceeds from notes payable 11,380 22,732
Payments on stockholder loans (214) --
Proceeds from exercise of stock options and warrants 34 2,398
S corporation distributions (128) --
-------- --------
Net cash provided by financing activities 11,072 25,130
Effect of exchange rate changes on cash and cash equivalents -- 31
-------- --------
Net increase (decrease) in cash and cash equivalents (723) 4,898
Cash and cash equivalents at beginning of period 726 14,255
-------- --------
Cash and cash equivalents at end of period $ 3 $ 19,153
======== ========
</TABLE>
See accompanying notes.
5
<PAGE>
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-Q and
Article 10 of Regulation S-X of the Securities Exchange Act of 1934.
Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of the Company, all adjustments (consisting of
only normal recurring accruals) considered necessary to present fairly the
consolidated financial statements have been included.
The consolidated financial statements include the accounts of the Company,
its wholly-owned subsidiary, Brightpoint International Ltd. and Brightpoint
International Ltd.'s majority-owned foreign subsidiaries, which are
domiciled outside of the United States and are generally wholly-owned.
Significant intercompany accounts and transactions have been eliminated in
consolidation.
The consolidated balance sheet at December 31, 1996 has been derived from
the audited consolidated financial statements at that date, but does not
include all of the information and footnotes required by generally accepted
accounting principles for complete financial statements. The consolidated
statement of income for the three months ended March 31, 1997 is not
necessarily indicative of the results that may be expected for the entire
year.
For further information reference is made to the audited consolidated
financial statements and the footnotes thereto included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1996.
On June 7, 1996, the Company completed a merger with Allied Communications,
Inc., Allied Communications of Florida, Inc., Allied Communications of
Georgia, Inc., Allied Communications of Illinois, Inc. and Allied
Communications of Puerto Rico, Inc. (collectively Allied Communications),
which was engaged in substantially the same business as the Company. The
transaction was accounted for using the pooling-of-interests method and
accordingly, the Company's financial statements have been restated to
reflect the consolidated balance sheets and consolidated results of
operations of both entities as if the merger had been in effect for all
periods presented.
Pro forma net income per share for all periods presented is computed after
taking into consideration the 3,796,875 shares of the Company's common
stock that were exchanged for all of the outstanding common stock of Allied
Communications. The merger was structured as a tax-free reorganization. In
connection with the merger, the Company recorded a non-recurring charge of
$2.7 million ($2.1 million net of tax) in the quarter ended June 30, 1996,
for transaction costs, including investment banking
6
<PAGE>
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
1. Basis of Presentation (continued)
legal, and accounting fees, and for other estimated costs associated with
the merger.
There were no material differences between the accounting policies of the
Company and Allied Communications. Certain amounts in Allied
Communications' historical combined financial statements were reclassified
to conform with the presentation used by the Company.
2. Recently Issued Accounting Standard
In February 1997, the FASB issued Statement of Financial Accounting
Standards No. 128, "Earnings per Share," which replaces the presentation of
primary earnings per share (EPS) with basic EPS and replaces fully diluted
EPS with diluted EPS. It also requires dual presentation of basic and
diluted EPS on the face of the income statement for all entities with
complex capital structures and requires a reconciliation of the components
of the basic EPS computation to the components of the diluted EPS
computation. SFAS No. 128 is effective for both interim and annual periods
ending after December 15, 1997. Earlier adoption is not permitted. Upon
adoption, all prior-period EPS data presented will be restated. The Company
does not anticipate the adoption of SFAS No. 128 to have a significant
effect on EPS.
3. Pro Forma Income Taxes
The pro forma income tax amount presented in the 1996 statement of income
represents an estimate of the income taxes that the Company and Allied
Communications would have incurred had Allied Communications been a tax
paying entity in 1996.
4. Acquisition
In February 1997, the Company acquired the balance of ownership of its
majority-owned subsidiary, Brightpoint China Limited. The 20 percent
minority interest was owned by members of management of that subsidiary.
The purchase price for the remaining equity interest consisted of 96,775 of
unregistered shares of the Company's common stock, valued at $1.3 million,
and $750,000 in cash. The acquisition was accounted for using the purchase
method. The resulting goodwill of $1.6 million is being amortized over 30
years. The impact of this acquisition was not material in relation to the
Company's results of operations for the quarter ended March 31, 1997.
Consequently, pro forma information is not presented.
7
<PAGE>
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
5. Credit Arrangements
On January 28, 1997, the Company amended its $75 million credit agreement
(line of credit) with Bank One, Indiana, NA, as agent for a group of banks
(the "bank"), to increase available borrowings on the line of credit to
$100 million. Borrowings on the amended line of credit bear interest,
payable monthly, at the bank's prime rate less 100 basis points to plus 25
basis points or at LIBOR plus 75 to 200 basis points depending upon the
ratio of the Company's funded debt to capital. The $100 million line of
credit matures in two stages, $25 million on July 31, 1997 and $75 million
on May 28, 1999 and does not include provisions for demand repayment. The
credit agreement also includes a provision to allow the Company to
guarantee bank debt of Brightpoint International Ltd. in an amount not to
exceed $25 million. Under the line of credit at March 31, 1997, there was
$76.7 million outstanding, $12.2 million in letters of credit and $11.1
million remaining available.
At March 31, 1997, Brightpoint International Ltd. had a $25 million line of
credit agreement with The First National Bank of Chicago to provide working
capital for the Company's international operations. Borrowings on the
credit agreement were $25 million at March 31, 1997, and bear interest
consistent with the Company's line of credit agreement. The credit
agreement matures in February 1998.
Substantially all of the Company's assets, including its inventories and
receivables, are pledged to the bank as collateral. In addition to
covenants requiring the maintenance of certain financial ratios, the
Company's agreement with the bank limits or prohibits the Company, subject
to certain exceptions, from among other things, incurring additional
indebtedness, declaring or paying cash dividends, making capital
distributions or other payments to stockholders, merging or consolidating
with another corporation, forming subsidiaries, selling all or
substantially all of its assets, creating liens or security interests on
the Company's assets and entering into transactions with affiliates. The
Company's inability to incur additional indebtedness could, under certain
circumstances, limit the Company's ability to expand its operations.
On April 17, 1997, the Company obtained a commitment for a $200 million
five-year global credit facility from Bank One, Indiana, NA and The First
National Bank of Chicago, as co-agents for a group of banks. The new
facility, upon closing, will replace the existing $125 million of credit
facilities.
8
<PAGE>
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(Unaudited)
6. Net Investment Gain
During the first quarter of 1997, the Company realized a gain on the sale
of an equity investment it had made in Cellstar Corporation. The gain, net
of transaction costs, was approximately $8.3 million. In addition, on March
31, 1997, Pocket Communications, Inc. (Pocket) filed for protection under
Chapter 11 of the U.S. Bankruptcy Code. Accordingly, the Company recorded
$6.9 million of unrealized losses on its investments in Pocket and two
smaller equity investments, resulting in a net investment gain of $1.4
million. Excluding the impact of this net investment gain and related
income taxes, net income per share for the first quarter of 1997 would have
been $0.20.
7. Subsequent Events
On April 15, 1997, the Company entered into a definitive agreement to
acquire the business and certain net assets of Telnic AB, a distributor of
wireless communications equipment located in Sweden. The newly-formed
Brightpoint Sweden AB will be a wholly-owned subsidiary of Brightpoint
International Ltd. The acquisition is expected to close on or about May 20,
1997 and is conditional upon, among other things, the satisfactory
completion of due diligence inquiries. The acquisition will be accounted
for using the purchase method.
On April 22, 1997, the Company announced that it had acquired the balance
of ownership of two of its majority-owned subsidiaries, Brightpoint (UK)
Limited and Brightpoint Australia Pty Ltd. The 20 percent minority
interests were owned by members of management of each of the respective
subsidiaries. The purchase price of the minority ownership interests
consisted of approximately 135,470 of unregistered shares of the Company's
common stock, valued at $1.8 million, and approximately $765,000 in cash.
The acquisitions were accounted for using the purchase method.
On April 24, 1997, the stockholders of the Company approved an amendment to
the Company's Certificate of Incorporation to increase the authorized
number of shares of common stock from 25,000,000 to 100,000,000 and an
amendment to the Company's 1994 Stock Option Plan to increase the number of
shares reserved for issuance from 2,109,375 to 4,100,000.
9
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
(Dollars in thousands, except per share data)
Comparison of Three Months Ended March 31, 1996 to Three Months Ended March 31,
1997
Overview
This discussion and analysis should be read in conjunction with the accompanying
consolidated financial statements and related notes. On June 7, 1996, the
Company completed a merger with Allied Communications, which was engaged in
substantially the same business as the Company. The transaction was accounted
for using the pooling-of-interests method and accordingly, the Company's
financial statements have been restated to reflect the consolidated balance
sheets and consolidated results of operations of both entities as if the merger
had been in effect for all periods presented.
Certain statements made in this report may contain forward-looking statements.
For a description of risks and uncertainties relating to such forward-looking
statements, see the Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
Results of Operations
Net Sales
Three Months Ended March 31
1996 1997 Change
- --------------------------------------------------------------------------------
Net sales $112,960 $199,169 76%
- --------------------------------------------------------------------------------
Net sales for the three months ended March 31, 1997 increased significantly over
net sales for the same period in 1996 reflecting continued strong worldwide
demand for wireless handsets and related accessories. The increase in net sales
is primarily attributable to a 36% increase in units sold and a 40% increase in
per unit prices. This increase in average selling prices was the result of
significant sales growth in markets where sales are concentrated in higher
priced digital handsets.
Three Months Ended March 31
1996 1997
- --------------------------------------------------------------------------------
Net sales by division:
Asia-Pacific 10% 43%
North America 69% 35%
Europe, Middle East and Africa 3% 19%
Latin America 18% 3%
- --------------------------------------------------------------------------------
Net sales in markets outside of North America grew 268% from 31% of total net
sales for the first three months of 1996 to 65% of total net sales for the same
period in 1997. Sales in the Company's Asia-Pacific division continued to
accelerate as the Company furthered its
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (CONTINUED)
(Dollars in thousands, except per share data)
Results of Operations (continued)
efforts to penetrate this large, attractive market. Sales in the Latin America
division decreased as the Company continued to reduce its sales to other
distributors. The Latin America market has historically been served by the
Company through a network of other distributors.
Net sales for the three months ended March 31, 1997 were comprised of the sales
of wireless handsets (91% of net sales), sales of wireless accessories (7%) and
fees generated from value-added logistics services (2%).
Gross Profit
Three Months Ended March 31
1996 1997 Change
- --------------------------------------------------------------------------------
Gross profit $7,928 $16,002 102%
Gross margin percentage 7.02% 8.03%
- --------------------------------------------------------------------------------
Gross profit for the three months ended March 31, 1997 improved significantly
over the same period in 1996 due to increased sales and increased gross margin
percentage. The increase in gross margin percentage is primarily due to an
increase in the amount of higher margin value-added logistics services provided
by the Company, as well as increased sales in certain markets in which the
Company generates higher margins. In addition, the Company continued its
disciplined effort to reduce lower margin sales to other distributors in the
North and Latin America markets.
Selling, General and Administrative Expenses
Three Months Ended March 31
1996 1997 Change
- --------------------------------------------------------------------------------
Selling, general and
administrative expenses $3,677 $8,096 120%
As a percent of net sales 3.26% 4.06%
- --------------------------------------------------------------------------------
The increase in selling, general and administrative expenses for the three
months ended March 31, 1997 over the same period in 1996 is attributable to the
Company's expanded level of operations and reflects increases in depreciation
expense relating to investments in management information systems, rent expense
for expanded facilities, and compensation expense and travel costs associated
with increased international sales and marketing efforts.
11
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (CONTINUED)
(Dollars in thousands, except per share data)
Results of Operations (continued)
Income from Operations
Three Months Ended March 31
1996 1997 Change
- --------------------------------------------------------------------------------
Income from operations $4,251 $7,906 86%
As a percent of net sales 3.76% 3.97%
- --------------------------------------------------------------------------------
The increase in income from operations for the three months ended March 31, 1997
over the same period in 1996 is primarily attributable to increased gross profit
offset partially by an increase in selling, general and administrative expenses.
Net Income and Pro Forma Net Income
Three Months Ended March 31
1996 1997 Change
- --------------------------------------------------------------------------------
Net income $ 2,902 $ 5,416 87%
Pro forma net income $ 2,477 $ 5,416 119%
Pro forma net income as
a percent of net sales 2.19% 2.72%
Pro forma net income per share $ 0.12 $ 0.23 92%
Weighted average shares
outstanding (000s) 20,595 23,187
- --------------------------------------------------------------------------------
The increase in net income and pro forma net income for the three months ended
March 31, 1997 over the same period in 1996 is the result of increased income
from operations, a $1.4 million net investment gain and a decrease in the
effective income tax rate from 39.1% in the first quarter of 1996 to 29.7% in
the first quarter of 1997, partially offset by an increase in interest expense
relating to bank debt obtained for working capital purposes and by income
attributable to minority interests. The decrease in the effective income tax
rate is due primarily to increased earnings in tax jurisdictions with lower
statutory rates. Pro forma amounts for 1996 reflect a provision for income taxes
for Allied Communications which, at the time, was not subject to income taxes.
During the first quarter of 1997, the Company realized a gain on the sale of an
equity investment it had made in Cellstar Corporation. The gain, net of
transaction costs, was approximately $8.3 million. In addition, on March 31,
1997, Pocket Communications, Inc. (Pocket) filed for protection under Chapter 11
of the U.S. Bankruptcy Code. Accordingly, the Company recorded $6.9 million of
unrealized losses on its investments in Pocket and two smaller equity
investments, resulting in a net investment gain of $1.4 million. Excluding the
impact of this net investment gain and related income taxes, net income per
share for the first quarter of 1997 would have been $0.20.
The increase in weighted average shares outstanding is due primarily to 850,000
shares issued in connection with the acquisition of Brightpoint International
Ltd. and the minority interests in certain of its foreign subsidaries and the
dilutive impact of stock options and warrants.
12
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (CONTINUED)
(Dollars in thousands, except per share data)
Liquidity and Capital Resources
December 31, 1996 March 31, 1997
- --------------------------------------------------------------------------------
Cash, cash equivalents and marketable
securities $ 32,255 $ 19,153
Working capital $143,481 $171,773
Current ratio 2.16:1 3.38:1
- --------------------------------------------------------------------------------
The Company's primary cash requirements have been to fund increased levels of
accounts receivable and inventories. The Company has historically satisfied its
working capital requirements principally through cash flow from operations,
vendor financing, bank borrowings and the issuance of equity securities.
The increase in working capital is primarily attributable to a decrease in
accounts payable. This increase was funded by an increase in bank borrowings and
the sale of the Company's investment in Cellstar Corporation. The Company also
generated working capital through the exercise of stock options.
The increase in cash used by operating activities for the three months ended
March 31, 1997 was primarily attributable to a decrease in accounts payable,
partially offset by decreases in accounts receivable and inventories. The cash
provided by investing activities for the three months ended March 31, 1997 was
primarily attributable to the sale of the Company's investment in Cellstar
Corporation partially offset by capital expenditures relating to the purchase of
information systems equipment and software, the expansion of its warehouse
facility in Indianapolis, Indiana, the opening of its west coast distribution
center in Sparks, Nevada and the continued expansion of its international
operations. The cash used by investing activities for the three months ended
March 31, 1996 was primarily attributable to capital expenditures relating to
the purchase of information systems equipment and software. The net cash
provided by financing activities is primarily due to advances against the
Company's line of credit and proceeds from the exercise of stock options.
On January 28, 1997, the Company amended its $75 million credit agreement (line
of credit) with Bank One, Indiana, NA, as agent for a group of banks (the
"bank"), to increase available borrowings on the line of credit to $100 million.
Borrowings on the amended line of credit bear interest, payable monthly, at the
bank's prime rate less 100 basis points to plus 25 basis points or at LIBOR plus
75 to 200 basis points depending upon the ratio of the Company's funded debt to
capital. The $100 million line of credit matures in two stages, $25 million on
July 31, 1997 and $75 million on May 28, 1999 and does not include provisions
for demand repayment. The credit agreement also includes a provision to allow
the Company to guarantee bank debt of Brightpoint International Ltd. in an
amount not to exceed $25 million. Under the line of credit at March 31, 1997,
there was $76.7 million outstanding, $12.2 million in letters of credit and
$11.1 million remaining available.
13
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS (CONTINUED)
(Dollars in thousands, except per share data)
Liquidity and Capital Resources (continued)
At March 31, 1997, Brightpoint International Ltd. had a $25 million line of
credit agreement with The First National Bank of Chicago to provide working
capital for the Company's international operations. Borrowings on the credit
agreement were $25 million at March 31, 1997, and bear interest consistent with
the Company's line of credit agreement. The credit agreement matures in February
1998.
Substantially all of the Company's assets, including its inventories and
receivables, are pledged to the bank as collateral. In addition to covenants
requiring the maintenance of certain financial ratios, the Company's agreement
with the bank limits or prohibits the Company, subject to certain exceptions,
from among other things, incurring additional indebtedness, declaring or paying
cash dividends, making capital distributions or other payments to stockholders,
merging or consolidating with another corporation, forming subsidiaries, selling
all or substantially all of its assets, creating liens or security interests on
the Company's assets and entering into transactions with affiliates. The
Company's inability to incur additional indebtedness could, under certain
circumstances, limit the Company's ability to expand its operations.
On April 17, 1997, the Company obtained a commitment for a $200 million
five-year global credit facility from Bank One, Indiana, NA and The First
National Bank of Chicago, as co-agents for a group of banks. The new facility
will replace the existing $125 million of credit facilities.
The Company believes that projected cash flow from operations together with
existing capital resources, including cash and borrowings available under its
line of credit, will be sufficient to satisfy the Company's current working
capital requirements. The Company has no material commitments for capital
expenditures as of March 31, 1997.
The Company frequently transacts business in currencies other than its
functional currency and therefore experiences some risk to exchange rate
fluctuations. The Company has not experienced significant exchange rate gains or
losses historically, however, increasing trade activity in foreign markets or
large fluctuations in exchange rates could generate more significant gains or
losses from these arrangements.
14
<PAGE>
PART II. OTHER INFORMATION
Item 2. Changes in Securities
During the Company's quarter ended March 31, 1997, the Company issued (i)
96,775 unregistered shares of the Company's common stock, valued at $1.3
million, in connection with its purchase, in February 1997, of the remaining 20%
of Brightpoint China Limited and (ii) options under the Company's 1996 Stock
Option Plan, exercisable for the purchase of an aggregate of 337,500 shares of
the Company's common stock at $22.40 per share and 130,000 shares of the
Company's common stock at $19.40 per share, to certain officers, employers and
consultants of the Company. All of the foregoing sercurities' issuances were
made in reliance on the exemptions from registration provided by Sections 4(2)
(issuances not involving a public offering) and/or 2(3) (issuances that do not
constitute a sale) of the Securities Act of 1933, as amended. No underwriter
fees or commissions were paid by the Company in connection with such issuances.
As previously reported in the Company's Current Report on Form 8-K, filed
on March 28, 1997, the Company's Board of Directors adopted a Shareholder Rights
Plan (the "Plan") which is designed to protect the Company from unfair or
coercive takeover attempts and to prevent a potential acquirer from gaining
control of the Company without fairly compensating all of the Company's
shareholders.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(10.1) Seventh Amendment to the Credit Agreement dated April 24, 1997
(10.2) Sparks, Nevada Distribution Center Lease Agreement
(11) Statement Re: Computation of Earnings Per Share
(27) Financial Data Schedule
(99) Cautionary Statements
(b) Reports on Form 8-K
On March 28, 1997, the Company filed a Form 8-K with the Securities
and Exchange Commisssion reporting an other event (the adoption of its
Shareholder Rights Plan) under Item 5.
15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Brightpoint, Inc.
-----------------
(Registrant)
Date May 13, 1997 /s/ J. Mark Howell
--------------------- ------------------
J. Mark Howell
President and Chief Operating Officer
Date May 13, 1997 /s/ Phillip A. Bounsall
--------------------- -----------------------
Phillip A. Bounsall
Executive Vice President
and Chief Financial Officer
16
<PAGE>
Exhibit Index
-------------
Exhibit No. Description
----------- -----------
(10.1) Seventh Amendment to the Credit Agreement dated April 24, 1997
(10.2) Sparks, Nevada Distribution Center Lease Agreement
(11) Statement Re: Computation of Earnings Per Share
(27) Financial Data Schedule
(99) Cautionary Statements
17
SEVENTH AMENDMENT TO CREDIT AGREEMENT
BRIGHTPOINT, INC., a Delaware corporation (the "Company"), the banks listed
on the signature pages hereof (each individually a "Bank" and collectively the
"Banks") and BANK ONE, INDIANA, NATIONAL ASSOCIATION (formerly known as "Bank
One, Indianapolis, National Association"), a national banking association with
its principal office in Indianapolis, Indiana, as agent for the Banks (in such
capacity the "Agent" and in its individual capacity "Bank One") agree as
follows:
1. CONTEXT. This Seventh Amendment is made in the context of the following
agreed statement of facts:
(a) The Company, the Banks and the Agent are parties to a Credit Agreement
dated June 13, 1995, as amended by a First Amendment dated as of September
15, 1995, a Second Amendment dated as of January 19, 1996, a Third
Amendment dated as of June 7, 1996, and a Fourth Amendment dated as of June
28, 1996, a Fifth Amendment dated effective as of October 11, 1996, and a
Sixth Amendment dated effective as of January 29, 1997 (collectively, the
"Agreement").
(b) The Company has requested that the Banks (i) extend the temporary
incrrease in the Company's line of credit to July 31, 1997; and (ii) waive
the Company's noncompliance with a certain negative covenant to permit the
acquisition by the Company of certain stock and other assets.
(c) The Banks have agreed to such requests, subject to certain terms and
conditions, and the parties have executed this Seventh Amendment (the
"Seventh Amendment") to give effect to their agreement.
2. DEFINITIONS. Terms used in this Seventh Amendment with their initial letters
capitalized are used as defined in the Agreement, unless otherwise specifically
defined herein.
3. REVOLVING LOAN EXTENSION. (a) From the date of this Seventh Amendment, and
until July 31, 1997, each Bank agrees to make its Percentage of Advances (all
such Advances by all such Banks are collectively referred to as the "Revolving
Loan") under a revolving line of credit from time to time to the Company of an
aggregate principal amount not exceeding One Hundred Million and No/100 Dollars
($100,000,000.00), provided that all of the conditions of lending stated in
Section 7 of the Agreement as being applicable to Advances have been fulfilled
at the time of each Advance. On July 31, 1997, if not sooner terminated or
accelerated, the Aggregate Commitment shall automatically reduce to Seventy-Five
Million andn No/100 Dollars ($75,000,000.00) and the Company shall repay to the
Banks the principal amount outstanding in excess of such reduced Commitment in
accordance with each Bank's Percentage, immediately and without demand. Each
Bank's Percentage of Advances for the temporary increase in the Aggregate
Commitment and after reduction on July 31, 1997 shall be as set forth in
Schedule "A" attached hereto.
<PAGE>
(b) The obligation of the Company to repay the Revolving Loan shall be
evidenced by the promissory notes (the "Revolving Notes") of the Company payable
to the order of each Bank and in an amount equal to each Bank's Percentage of
the Aggregate Commitment, which Revolving Notes shall be in the form of Exhibit
"A" attached hereto.
4. WAIVER OF NONCOMPLIANCE WITH COVENANT. The Banks hereby consent to the
acquisition by the Company of certain net assets of Telnic AB of Sweden and the
20% minority interests outstanding in Brightpoint China, Ltd., Brightpoint (UK)
Ltd., and Brightpoint Australia Pty. Ltd., and hereby waive the resulting
noncompliance with Section 6.e. of the Agreement. Such waiver shall not
constitute an agreement or waiver on the part of the Banks to any further or
other default or noncompliance on the part of the Company or any Subsidiary.
5. CONDITIONS PREDECENT. As conditions precedent to the effectiveness of this
Seventh Amendment, the Agent shall have received, each duly executed and in form
and substance satisfactory to the Banks, the following:
(a) This Seventh Amendment;
(b) The Revolving Notes;
(c) Certified Resolutions of the Board of Directors authorizing the
execution and delivery of the Seventh Amendment, the acquisition of
Telnic AB of Sweden and the minority interests in the indirect
Subsidiaries; and
(d) Such other documents as may be reasonably required by the Agent or the
Banks.
6. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the Agent to enter
into this Seventh Amendment, the Company represents and warrants, as of the date
of this Seventh Amendment, and except as otherwise provided in this Seventh
Amendment, that no Event of Default or Unmatured Event of Default has occurred
or is continuing and that the representations and warranties contained in
Section 3 of the Agreement are true and correct, except that the representations
contained in Section 3.d. refer to the latest financial statements furnished to
the Banks by the Company pursuant to the requirements of the Agreement.
7. REAFFIRMATION OF THE AGREEMENT. Except as amended by this Seventh Amendment,
all terms and conditions of the Agreement shall remain unchanged and in full
force and effect and the Obligations of the Company shall continue to be secured
and guaranteed as therein provided until payment and performance in full of all
Obligations.
8. COUNTERPARTS. This Seventh Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company, the Agent and the Banks, by their
respective
<PAGE>
duly authorized officers, have executed this Seventh Amendment to Credit
Agreement with effect as of April _______, 1997.
BRIGHTPOINT, INC.
By
------------------------------------------
Phillip A. Bounsall, Executive Vice President
and Chief Financial Officer
Address: 6402 Corporate Drive
Indianapolis, Indiana 46278
Attn: Executive Vice President
and Chief Financial Officer
Fax: (317) 387-5493
BANK ONE, INDIANA, NATIONAL ASSOCIATION
Individually and as Agent
By
------------------------------------------
Brian D. Smith, Vice President and
Senior Relationship Manager
Address: Bank One Center/Tower
111 Monument Circle, Suite 1921
P.O. Box 7700
Indianapolis, Indiana 46277-0119
Attn: Manager, Metropolitan Department B
Fax: (317) 321-8079
3
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By
------------------------------------------
------------------------------------------
Printed Name & Title
Address: One First National Plaza
Mail Suite 0088
Chicago, Illinois 60670-0088
Attn: Cory M. Olson
Fax: (312) 732-5161
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By
------------------------------------------
------------------------------------------
Printed Name & Title
Address: SunTrust Bank, Central Florida, N.A.
200 South Orange Avenue
Orlando, Florida 32801
Attn: Chris Black, Vice President
Fax: (407) 237-6894
CORESTATES BANK, N.A.
By
------------------------------------------
------------------------------------------
Printed Name & Title
Address: CoreStates Bank, N.A.
1339 Chestnut Street
Widener Building, 3rd Floor
Philadelphia, Pennsylvania 19101
Attn: Joseph N. Finley
Fax: (215) 973-6745
4
<PAGE>
EXHIBIT "A"
PROMISSORY NOTE
(Revolving Loan)
Indianapolis, Indiana
$34,000,000.00 Dated: April ______, 1997
Final Maturity: May 28, 1999
On or before May 28, 1999 ("Final Maturity"), BRIGHTPOINT, INC., a Delaware
corporation formerly known as Wholesale Cellular USA, Inc., (the "Maker")
promises to pay to the order of BANK ONE, INDIANA, NATIONAL ASSOCIATION
(formerly known as "Bank One, Indianapolis, N.A.") (the "Payee Bank") at the
principal office of BANK ONE, INDIANA, NATIONAL ASSOCIATION (the "Agent") at
Bank One Center/Tower, 111 Monument Circle, Indianapolis, Indiana 46277, the
principal sum of Thirty-Four Million and 00/100 Dollars ($34,000,000.00) or so
much of the principal amount of the Loan represented by this Note as may be
disbursed by the Payee Bank under the terms of the Credit Agreement described
below, and to pay interest on the unpaid principal balance outstanding from time
to time as provided in this Note.
This Note evidences indebtedness (the "Loan") incurred or to be incurred by
the Maker under a revolving line of credit extended to the Maker by the Payee
Bank under a Credit Agreement dated June 13, 1995, as amended (collectively the
"Credit Agreement"). All references in this Note to the Credit Agreement shall
be construed as references to that Agreement as it may be amended from time to
time. The Loan is referred to in the Credit Agreement as the "Revolving Loan."
Subject to the terms and conditions of the Credit Agreement, the proceeds of the
Loan may be advanced and repaid and re-advanced until Final Maturity; provided
that on July 31, 1997, the amount available to be borrowed hereunder shall
automatically reduce to an amount not to exceed $31,125,000.00 and the Maker
shall immediately repay any excess over such reduced amount on such date and
without demand. The principal amount of the Loan outstanding from time to time
shall be determined by reference to the books and records of the Payee Bank on
which all Advances under the Loan and all payments by the Maker on account of
the Loan shall be recorded. Such books and records shall be deemed prima facie
to be correct as to such matters.
The terms "Advance" and "Banking Day" are used in this Note as defined in
the Credit Agreement.
Interest on the unpaid principal balance of the Loan outstanding from time
to time prior to and after maturity will accrue at the rate or rates provided in
the Credit Agreement. Prior to maturity, accrued interest shall be due and
payable on the last Banking Day of each month commencing on the last Banking Day
of the month in which this Note is executed. After maturity, interest shall be
due and payable as accrued and without demand. Interest will be calculated on
Page 1 of 2 Pages
<PAGE>
the basis that an entire year's interest is earned in 360 days.
The entire outstanding principal balance of this Note shall be due and
payable, together with accrued interest, at Final Maturity. Reference is made to
the Credit Agreement for provisions requiring prepayment of principal under
certain circumstances. Principal may be prepaid, but only as provided in the
Credit Agreement.
If any installment of interest due under the terms of this Note is not paid
when due, then the Required Banks may, subject to the terms of the Credit
Agreement, without notice, declare the entire principal amount of the Note and
all accrued interest immediately due and payable. Reference is made to the
Credit Agreement which provides for acceleration of the maturity of this Note
upon the happening of other "Events of Default" as defined therein.
All payments on account of this Note shall be applied first to expenses of
collection, next to any late payment fees which are due and payable, next to
interest which is due and payable, and only after satisfaction of all such
expenses, fees and interest, to principal.
The Maker and any endorsers severally waive demand, presentment for payment
and notice of nonpayment of this Note, and each of them consents to any renewals
or extensions of the time of payment of this Note without notice.
All amounts payable under the terms of this Note shall be payable with
expenses of collection, including attorneys' fees, and without relief from
valuation and appraisement laws.
This Note is given to replace that certain Promissory Note of the Maker in
favor of the Payee Bank, dated January 29, 1997, in the principal amount of
$34,000,000.00 and bearing a final maturity date of May 29, 1999, and to
represent an extension of the indebtedness evidenced thereby.
This Note is made under and will be governed in all cases by the
substantive laws of the State of Indiana, notwithstanding the fact that Indiana
conflicts of law rules might otherwise require the substantive rules of law of
another jurisdiction to apply.
BRIGHTPOINT, INC.
By:
---------------------------------------------
Phillip A. Bounsall, Executive Vice President
and Chief Financial Officer
Page 2 of 2 Pages
<PAGE>
EXHIBIT "A"
PROMISSORY NOTE
(Revolving Loan)
Indianapolis, Indiana
$16,500,000.00 Dated: April _____, 1997
Final Maturity: May 28, 1999
On or before May 28, 1999 ("Final Maturity"), BRIGHTPOINT, INC., a Delaware
corporation formerly known as Wholesale Cellular USA, Inc., (the "Maker")
promises to pay to the order of CORESTATES BANK, N.A. (the "Payee Bank") at the
principal office of BANK ONE, INDIANA, NATIONAL ASSOCIATION (formerly known as
"Bank One, Indianapolis, N.A.") (the "Agent") at Bank One Center/Tower, 111
Monument Circle, Indianapolis, Indiana 46277, the principal sum of Sixteen
Million Five Hundred Thousand and 00/100 Dollars ($16,500,000.00) or so much of
the principal amount of the Loan represented by this Note as may be disbursed by
the Payee Bank under the terms of the Credit Agreement described below, and to
pay interest on the unpaid principal balance outstanding from time to time as
provided in this Note.
This Note evidences indebtedness (the "Loan") incurred or to be incurred by
the Maker under a revolving line of credit extended to the Maker by the Payee
Bank under a Credit Agreement dated June 13, 1995, as amended (collectively the
"Credit Agreement"). All references in this Note to the Credit Agreement shall
be construed as references to that Agreement as it may be amended from time to
time. The Loan is referred to in the Credit Agreement as the "Revolving Loan."
Subject to the terms and conditions of the Credit Agreement, the proceeds of the
Loan may be advanced and repaid and re-advanced until Final Maturity; provided
that on July 31, 1997, the amount available to be borrowed hereunder shall
automatically reduce to an amount not to exceed $10,125,000.00 and the Maker
shall immediately repay any excess over such reduced amount on such date and
without demand. The principal amount of the Loan outstanding from time to time
shall be determined by reference to the books and records of the Payee Bank on
which all Advances under the Loan and all payments by the Maker on account of
the Loan shall be recorded. Such books and records shall be deemed prima facie
to be correct as to such matters.
The terms "Advance" and "Banking Day" are used in this Note as defined in
the Credit Agreement.
Interest on the unpaid principal balance of the Loan outstanding from
time to time prior to and after maturity will accrue at the rate or rates
provided in the Credit Agreement. Prior to maturity, accrued interest shall be
due and payable on the last Banking Day of each month commencing on the last
Banking Day of the month in which this Note is executed. After
Page 1 of 2 Pages
<PAGE>
maturity, interest shall be due and payable as accrued and without demand.
Interest will be calculated on the basis that an entire year's interest is
earned in 360 days.
The entire outstanding principal balance of this Note shall be due and
payable, together with accrued interest, at Final Maturity. Reference is made to
the Credit Agreement for provisions requiring prepayment of principal under
certain circumstances. Principal may be prepaid, but only as provided in the
Credit Agreement.
If any installment of interest due under the terms of this Note is not paid
when due, then the Required Banks may, subject to the terms of the Credit
Agreement, without notice, declare the entire principal amount of the Note and
all accrued interest immediately due and payable. Reference is made to the
Credit Agreement which provides for acceleration of the maturity of this Note
upon the happening of other "Events of Default" as defined therein.
All payments on account of this Note shall be applied first to expenses of
collection, next to any late payment fees which are due and payable, next to
interest which is due and payable, and only after satisfaction of all such
expenses, fees and interest, to principal.
The Maker and any endorsers severally waive demand, presentment for payment
and notice of nonpayment of this Note, and each of them consents to any renewals
or extensions of the time of payment of this Note without notice.
All amounts payable under the terms of this Note shall be payable with
expenses of collection, including attorneys' fees, and without relief from
valuation and appraisement laws.
This Note is given to replace that certain Promissory Note of the Maker in
favor of the Payee Bank, dated January 29, 1997, in the principal amount of
$16,500,000.00 and bearing a final maturity date of May 29, 1999, and to
represent an extension of the indebtedness evidenced thereby.
This Note is made under and will be governed in all cases by the
substantive laws of the State of Indiana, notwithstanding the fact that Indiana
conflicts of law rules might otherwise require the substantive rules of law of
another jurisdiction to apply.
BRIGHTPOINT, INC.
By:
-----------------------------------
Phillip A. Bounsall, Executive Vice
President and Chief Financial Officer
Page 2 of 2 Pages
<PAGE>
EXHIBIT "A"
PROMISSORY NOTE
(Revolving Loan)
Indianapolis, Indiana
$22,500,000.00 Dated: April _____, 1997
Final Maturity: May 28, 1999
On or before May 28, 1999 ("Final Maturity"), BRIGHTPOINT, INC., a Delaware
corporation formerly known as Wholesale Cellular USA, Inc., (the "Maker")
promises to pay to the order of SUNTRUST BANK, CENTRAL FLORIDA, N.A. (the "Payee
Bank") at the principal office of BANK ONE, INDIANA, NATIONAL ASSOCIATION
(formerly known as "Bank One, Indianapolis, N.A.") (the "Agent") at Bank One
Center/Tower, 111 Monument Circle, Indianapolis, Indiana 46277, the principal
sum of Twenty-Two Million Five Hundred Thousand and 00/100 Dollars
($22,500,000.00) or so much of the principal amount of the Loan represented by
this Note as may be disbursed by the Payee Bank under the terms of the Credit
Agreement described below, and to pay interest on the unpaid principal balance
outstanding from time to time as provided in this Note.
This Note evidences indebtedness (the "Loan") incurred or to be incurred by
the Maker under a revolving line of credit extended to the Maker by the Payee
Bank under a Credit Agreement dated June 13, 1995, as amended (collectively the
"Credit Agreement"). All references in this Note to the Credit Agreement shall
be construed as references to that Agreement as it may be amended from time to
time. The Loan is referred to in the Credit Agreement as the "Revolving Loan."
Subject to the terms and conditions of the Credit Agreement, the proceeds of the
Loan may be advanced and repaid and re-advanced until Final Maturity; provided
that on July 31, 1997, the amount available to be borrowed hereunder shall
automatically reduce to an amount not to exceed $14,250,000.00 and the Maker
shall immediately repay any excess over such reduced amount on such date and
without demand. The principal amount of the Loan outstanding from time to time
shall be determined by reference to the books and records of the Payee Bank on
which all Advances under the Loan and all payments by the Maker on account of
the Loan shall be recorded. Such books and records shall be deemed prima facie
to be correct as to such matters.
The terms "Advance" and "Banking Day" are used in this Note as defined in
the Credit Agreement.
Interest on the unpaid principal balance of the Loan outstanding from time
to time prior to and after maturity will accrue at the rate or rates provided in
the Credit Agreement. Prior to maturity, accrued interest shall be due and
payable on the last Banking Day of each month commencing on the last Banking Day
of the month in which this Note is executed.
Page 1 of 2 Pages
<PAGE>
After maturity, interest shall be due and payable as accrued and without demand.
Interest will be calculated on the basis that an entire year's interest is
earned in 360 days.
The entire outstanding principal balance of this Note shall be due and
payable, together with accrued interest, at Final Maturity. Reference is made to
the Credit Agreement for provisions requiring prepayment of principal under
certain circumstances. Principal may be prepaid, but only as provided in the
Credit Agreement.
If any installment of interest due under the terms of this Note is not paid
when due, then the Required Banks may, subject to the terms of the Credit
Agreement, without notice, declare the entire principal amount of the Note and
all accrued interest immediately due and payable. Reference is made to the
Credit Agreement which provides for acceleration of the maturity of this Note
upon the happening of other "Events of Default" as defined therein.
All payments on account of this Note shall be applied first to expenses of
collection, next to any late payment fees which are due and payable, next to
interest which is due and payable, and only after satisfaction of all such
expenses, fees and interest, to principal.
The Maker and any endorsers severally waive demand, presentment for payment
and notice of nonpayment of this Note, and each of them consents to any renewals
or extensions of the time of payment of this Note without notice.
All amounts payable under the terms of this Note shall be payable with
expenses of collection, including attorneys' fees, and without relief from
valuation and appraisement laws.
This Note is given to replace that certain Promissory Note of the Maker in
favor of the Payee Bank, dated January 29, 1997, in the principal amount of
$22,500,000.00 and bearing a final maturity date of May 29, 1999, and to
represent an extension of the indebtedness evidenced thereby.
This Note is made under and will be governed in all cases by the
substantive laws of the State of Indiana, notwithstanding the fact that Indiana
conflicts of law rules might otherwise require the substantive rules of law of
another jurisdiction to apply.
BRIGHTPOINT, INC.
By:
-------------------------------------
Phillip A. Bounsall, Executive Vice
President and Chief Financial Officer
Page 2 of 2 Pages
<PAGE>
EXHIBIT "A"
PROMISSORY NOTE
(Revolving Loan)
Indianapolis, Indiana
$27,000,000.00 Dated: April _____, 1997
Final Maturity: May 28, 1999
On or before May 28, 1999 ("Final Maturity"), BRIGHTPOINT, INC., a Delaware
corporation formerly known as Wholesale Cellular USA, Inc., (the "Maker")
promises to pay to the order of THE FIRST NATIONAL BANK OF CHICAGO (the "Payee
Bank") at the principal office of BANK ONE, INDIANA, NATIONAL ASSOCIATION
(formerly known as "Bank One, Indianapolis, N.A.") (the "Agent") at Bank One
Center/Tower, 111 Monument Circle, Indianapolis, Indiana 46277, the principal
sum of Twenty-Seven Million and 00/100 Dollars ($27,000,000.00) or so much of
the principal amount of the Loan represented by this Note as may be disbursed by
the Payee Bank under the terms of the Credit Agreement described below, and to
pay interest on the unpaid principal balance outstanding from time to time as
provided in this Note.
This Note evidences indebtedness (the "Loan") incurred or to be incurred by
the Maker under a revolving line of credit extended to the Maker by the Payee
Bank under a Credit Agreement dated June 13, 1995, as amended (collectively the
"Credit Agreement"). All references in this Note to the Credit Agreement shall
be construed as references to that Agreement as it may be amended from time to
time. The Loan is referred to in the Credit Agreement as the "Revolving Loan."
Subject to the terms and conditions of the Credit Agreement, the proceeds of the
Loan may be advanced and repaid and re-advanced until Final Maturity; provided
that on July 31, 1997, the amount available to be borrowed hereunder shall
automatically reduce to an amount not to exceed $19,500,000.00 and the Maker
shall immediately repay any excess over such reduced amount on such date and
without demand. The principal amount of the Loan outstanding from time to time
shall be determined by reference to the books and records of the Payee Bank on
which all Advances under the Loan and all payments by the Maker on account of
the Loan shall be recorded. Such books and records shall be deemed prima facie
to be correct as to such matters.
The terms "Advance" and "Banking Day" are used in this Note as defined in
the Credit Agreement.
Interest on the unpaid principal balance of the Loan outstanding from time
to time prior to and after maturity will accrue at the rate or rates provided in
the Credit Agreement. Prior to maturity, accrued interest shall be due and
payable on the last Banking Day of each month commencing on the last Banking Day
of the month in which this Note is executed.
Page 1 of 2 Pages
<PAGE>
After maturity, interest shall be due and payable as accrued and without demand.
Interest will be calculated on the basis that an entire year's interest is
earned in 360 days.
The entire outstanding principal balance of this Note shall be due and
payable, together with accrued interest, at Final Maturity. Reference is made to
the Credit Agreement for provisions requiring prepayment of principal under
certain circumstances. Principal may be prepaid, but only as provided in the
Credit Agreement.
If any installment of interest due under the terms of this Note is not paid
when due, then the Required Banks may, subject to the terms of the Credit
Agreement, without notice, declare the entire principal amount of the Note and
all accrued interest immediately due and payable. Reference is made to the
Credit Agreement which provides for acceleration of the maturity of this Note
upon the happening of other "Events of Default" as defined therein.
All payments on account of this Note shall be applied first to expenses of
collection, next to any late payment fees which are due and payable, next to
interest which is due and payable, and only after satisfaction of all such
expenses, fees and interest, to principal.
The Maker and any endorsers severally waive demand, presentment for payment
and notice of nonpayment of this Note, and each of them consents to any renewals
or extensions of the time of payment of this Note without notice.
All amounts payable under the terms of this Note shall be payable with
expenses of collection, including attorneys' fees, and without relief from
valuation and appraisement laws.
This Note is given to replace that certain Promissory Note of the Maker in
favor of the Payee Bank, dated January 29, 1997, in the principal amount of
$27,000,000.00 and bearing a final maturity date of May 29, 1999, and to
represent an extension of the indebtedness evidenced thereby.
This Note is made under and will be governed in all cases by the
substantive laws of the State of Indiana, notwithstanding the fact that Indiana
conflicts of law rules might otherwise require the substantive rules of law of
another jurisdiction to apply.
BRIGHTPOINT, INC.
By:
-------------------------------------
Phillip A. Bounsall, Executive Vice
President and Chief Financial Officer
Page 2 of 2 Pages
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A TO SEVENTH AMENDMENT TO CREDIT AGREEMENT
BANK GROUP PERCENTAGES AND COMMITMENTS
--------------------------------------
(000's Omitted)
- ------------------------------------------------------------------------------------------------------------------------------------
$75 Mil. Line $25 Mil. Increase Aggregate
------------- ----------------- ---------
Commitment
----------
<S> <C> <C> <C> <C> <C> <C>
Name $ % $ % $ %
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Bank One, Indianapolis $ 31,125 41.5% $ 2,875 11.5% $ 34,000 34.0%
- ------------------------------------------------------------------------------------------------------------------------------------
First Chicago $ 19,500 26.0% $ 7,500 30.0% $ 27,000 27.0%
- ------------------------------------------------------------------------------------------------------------------------------------
Suntrust Bank $ 14,250 19.0% $ 8,250 33.0% $ 22,500 22.5%
- ------------------------------------------------------------------------------------------------------------------------------------
CoreStates Bank $ 10,125 13.5% $ 6,375 25.5% $ 16,500 16.5%
-------- ---- -------- ---- -------- ----
- ------------------------------------------------------------------------------------------------------------------------------------
Total $ 75,000 100.0% $ 25,000 100.0% $100,000 100.0%
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
DERMODY
P R O P E R T I E S
STANDARD INDUSTRIAL LEASE For Landlord Use Only:
(NET-NET-NET) Building #: 227B
L/A: BPE
Lease Preparation Date: December 20, 1996
Landlord: DP Operating Partnership, L.P., a Delaware limited partnership,
located at 1200 Financial Boulevard, P. O. Box 7098, Reno, Nevada 89510
Tenant: Brightpoint, Inc., a Delaware corporation, with its principal business
offices located at 6402 Corporate Drive, Indianapolis, Indiana 46278.
Trade Name (dba): Brightpoint, Inc.
1. LEASE TERMS
1.01 Premises: The Premises referred to in this Lease contain approximately
65,088 square feet as shown on Exhibit "A" attached, together with the
non-exclusive right to use the Common Areas as set forth in Section 4.02.,
subject to the terms and conditions of this Lease, and any conditions and
restrictions, and Rules and Regulations of the Project (subject to the
provisions of Section 24.01 hereof) in effect from time to time. The address of
the Leased Premises is: 1450 E. Greg Street, Unit 104, Sparks, Nevada 89431.
1.02 Project: The Project in which the Premises are located consist of
approximately 201,295 square feet as shown in Exhibit A.
1.03 Tenant's Notice Address: Tenant's Notice Address is the address of the
Leased Premises as defined in Section 1.01 unless otherwise specified here: 6402
Corporate Drive, Indianapolis, IN 46278; Attn: Bruce D. Storey/Brendan Egan.
1.04 Landlord's Notice Address: P. O. Box 7098, 1200 Financial Boulevard,
Reno, Nevada 89510
1.05 Tenant's Permitted Use: Storage, warehousing, assembly, light
manufacturing, service and distribution of wireless communication equipment and
related products in compliance with all applicable laws, rules, and regulations
and this Lease.
-1-
<PAGE>
1.06 Lease Term: The Lease Term is for five (5) years and commences on
March 1, 1997, and expires February 28, 2002.
1.07 Base Monthly Rent: EIGHTEEN THOUSAND, TWO HUNDRED EIGHTY-NINE AND
72/100 DOLLARS ($18,289.72) in lawful money of the United States of America for
the first 30 months of the Lease term and, commencing at the beginning of the
31st month of the Lease term, Nineteen Thousand, Five Hundred Seventy Dollars
($19,570.00) in lawful money of the United States of America for the remaining
balance of the Lease term.
1.08 Security Deposit: [WAIVED]
1.09 Proportionate Share: Tenant's Proportionate Share is 32.33% based upon
the total square footage of the Project and the square footage of the Premises.
1.11 Tenant is entitled to common vehicle parking spaces subject to the
provisions of Section 8 of the Lease.
1.12 Tenant Improvements: Tenant Improvements to be performed in the
Premises, if any, will be performed in accordance with the terms and provisions
entitled "Landlord's Work" contained in Exhibit "B" attached if applicable.
Thereafter during the Lease Term, Landlord will be under no obligation to alter,
change, decorate or improve the Premises.
2. DEMISE AND POSSESSION
2.01 Landlord leases to Tenant and Tenant leases from Landlord the Premises
described in 1.01. By entering the Premises, Tenant acknowledges that it has
examined the Premises and accepts the Premises in their present condition
subject to any additional work Landlord has agreed to do as stated on Exhibit B
if applicable. Landlord expressly reserves its right to lease any other space
available in the Project to whom ever it wishes; provided, however, that
Landlord shall not lease any portion of the Project to any Person or entity
which conducts junk yard or smelting operations. Tenant hereby acknowledges that
it did not rely on any other tenant remaining a tenant in the Project as a
consideration for entering into this Lease.
2.02 If for any reason Landlord cannot deliver possession of
-2-
<PAGE>
the Premises on the date the Lease commences, Landlord shall not be subject to
any liability nor shall the validity of this Lease be affected. If Tenant has
not caused such delay there shall be a proportionate reduction of the Base
Monthly Rent covering the period between the commencement of the Lease Term and
the date when Landlord can deliver possession. However, Tenant, unless it is the
cause of the delay, has the right to cancel this Lease by written notification
if possession of the Premises is not delivered within one hundred eighty (180)
days of the date the Lease Term commences, and, subject to the terms and
conditions of this Lease, exercise its available rights at law or equity.
Landlord may terminate this Lease by giving written notice to Tenant if
possession of the Premises is not delivered within one hundred eighty (180) days
of the date the lease is to commence.
3. BASE MONTHLY RENT
3.01 Base Monthly Rent: On the first day of every calendar month of the
Lease Term commencing March 1, 1997 or such other date as Landlord delivers
possession of the Premises as set forth in Section 2.02 above, Tenant will pay,
without deduction or offset, prior notice or demand, Base Monthly Rent at the
place designated by Landlord. However, the first month's Base Monthly Rent
(Section 1.07), and Additional Rent (Section 5.05), is due and payable upon
execution of this Lease. In the event, that the Term of this Lease commences or
ends on a day other than the first day of a calendar month, a prorated amount of
Base Monthly Rent and Additional Rent shall be due upon execution and shall be
calculated using the actual number of days in the particular month. In the event
this Lease is to commence upon a date not ascertained on execution, both parties
agree to complete and execute a Commencement Date Certificate in the form of
Exhibit "E" within ten (10) days of the Commencement Date, if applicable.
3.02 The Base Monthly Rent is subject to increase on the first day of the
thirty-first (31st) calendar month following the month during which (a) Tenant
has taken possession of the Premises or, (b) the Lease Term commences, whichever
occurs earlier, as set forth in Section 1.07 above, for the duration of the
Lease Term.
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Landlord need not give Tenant notice of such increase.
3.03 Any installment of rent or any other charge payable which is not paid
within ten (10) days after it becomes due will be considered past due and Tenant
will pay to Landlord as Additional Rent a late charge equal to the product of
the variable Prime Rate "Prime", plus four percent (4%) per annum as charged by
Bank of America, Nevada; times the amount of such installment amount due, or
twelve percent (12%) per annum of such installment or the sum of twenty-five
dollars ($25.00), whichever is greater, for each month or fractional month
transpiring from the date due until paid. A twenty-five dollar ($25.00) handling
charge will be paid by Tenant to Landlord for each returned check and,
thereafter, Tenant will pay all future payments of rent or other charges due by
money order or cashier's check. In the event a late charge is assessed for three
(3) consecutive rental periods, whether or not it is collected, the rent shall
without further notice become due and payable quarterly in advance
notwithstanding any provision of this Lease to the contrary. If Tenant shall be
served with a demand for the payment of past due rent, any payments tendered
thereafter to cure any default by Tenant shall be made only by cashier's check.
3.04 The amount of the Base Monthly Rent includes projected construction of
Tenant's improvements as indicated on Exhibit "B" attached. In the event that
Tenant requests Landlord to construct additional improvements and/or final
construction costs exceed original estimates, such costs or expenses upon
itemized notice by
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Landlord, shall be paid by Tenant to Landlord .
4. COMMON AREAS
4.01 Definitions: "Common Areas": "Common Area" is defined as all areas and
facilities outside the Premises and within the exterior boundary line of the
Project that are provided and designated by Landlord for the non-exclusive use
of Landlord, Tenant and other lessees of the Project and their respective
employees, agents, customers and invitees. Common Areas include, but are not
limited to: all parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways, corridors, landscaped areas
and any restrooms used in common by lessees.
4.02 Tenant, its employees, agents, customers and invitees have the
non-exclusive right (in common with other Tenants, Landlord, and any other
person granted use by Landlord) to use of the Common Areas. Tenant agrees to
abide by and conform to, and to cause its employees, agents, customers and
invitees to abide by and conform to all rules and regulations established by
Landlord subject to provisions of paragraph 24.
4.03 Landlord has the right, in its sole discretion, from time to time, to:
1) make changes to the Common Areas, including without limitation, changes in
the location, size, shape and number of driveways, entrances, parking spaces,
parking areas, ingress, egress, direction of driveways, entrances, corridors
parking areas and walkways so long as such changes do not materially and
adversely affect or materially impair ingress or egress to the Premises except
in the case of emergency and all laws, rules and regulations pertaining to the
parking within the real property constituting the Project remain satisfied; 2)
close temporarily any of the Common Areas for maintenance purposes so long as
reasonable access to the Premises remains available; 3) add additional buildings
and improvements to the Common Areas; 4) use the Common Areas while engaged in
making additional improvements, repairs or alterations to the Project or any
portion thereof; do and perform any other acts or make any other changes in, to
or with respect to the Common Areas and Project as Landlord may, in the exercise
of sound business judgement, deem to be appropriate.
5. ADDITIONAL RENT
5.01 All charges payable by Tenant other than Base Monthly Rent are called
"Additional Rent". Unless this lease provides otherwise, Additional Rent is to
be paid with the next monthly
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installment of Base Monthly Rent and is subject to the provisions of 3.03. The
term "rent" whenever used in this Lease means Base Monthly Rent and Additional
Rent.
5.02 Operating Costs
A. "Operating Costs" are all costs and expenses of ownership, operation,
maintenance, management, repair and insurance incurred by Landlord for the
Project including, but not limited to the following: all supplies, materials,
labor and equipment, used in or related to the operation and maintenance of the
Common Areas; all utilities, including but not limited to: water, electricity,
gas, heating, lighting, sewer, waste disposal related to the maintenance or
operation of the Common Areas; all air-conditioning and ventilating costs
related to the maintenance or operation of the Project; all Landlord's costs in
managing, maintaining, repairing, operating and insuring the Project, including,
for example, clerical, supervisory, and janitorial staff; all maintenance,
management and service agreements, including but not limited to, janitorial,
security, trash removal related to the maintenance or operation of the Project;
all legal and accounting costs and fees for licenses and permits related to the
ownership and operation of the Project; all insurance premiums and costs of
fire, casualty, and liability coverage, rent abatement and earthquake insurance
and any other type of insurance related to the Entire Project, including any
deductible for a loss attributable to the Premises; all operation, maintenance
and repair costs to the Common Areas, including but not limited to, sidewalks,
walkways, parkways, parking areas, loading and unloading areas, trash areas,
roadways, driveways, corridors, and landscaped area, including for example,
costs of resurfacing and restriping parking areas; all maintenance and repair
costs of building exteriors (including painting, asphalt repair and replacement
and roof maintenance, repair and replacement), restrooms used in common by
Tenants and signs and directories of the Project; amortization (along with
reasonable financing charges) of capital improvements made to the Common Areas
which may be required by any government authority or which will improve the
operating efficiency of the Project; a reasonable reserve for repairs and
replacement; a five percent (5%) fee for Landlord's supervision of the Common
Areas (five percent (5%) of the total above mentioned costs and expenses
incurred in a calendar year). Operating Costs will not include (a) depreciation
of the Project, (b) costs of repairs caused by the negligence or fault of
Landlord's contractors, (c) costs of Landlord's structural repairs made pursuant
to Section 13.05 below which are excluded from Operating Costs pursuant to such
Section, and (d) costs arising from another tenant's negligence or willful
misconduct.
B. Tenant shall pay to Landlord Tenant's Proportionate Share
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of the Operating Costs as indicated in 1.09. If there is a change in the square
footage of either the Project or the Premises during the term of this Lease the
Proportionate Share of the Tenant shall be adjusted accordingly. Such payment
shall be paid by Tenant with and in addition to the monthly payment of Base
Monthly Rent. Tenant shall, if Landlord so elects, pay to Landlord on a monthly
basis, in advance, the amount which Landlord reasonably estimates to be Tenant's
Proportionate Share of the Operating Costs. In the event of such election by
Landlord, Landlord shall periodically determine Tenant's share of the actual
Operating Costs, and in the event that the amount which Tenant has paid to
Landlord on account of the estimated Operating Costs is less than his share of
such actual Operating Costs, Tenant shall pay such difference to Landlord on the
next rent payment date. In the event that Tenant has paid to Landlord more than
his share of such actual Operating Costs, the amount of such difference shall be
credited against Tenant's payments of Operating Costs next due or if such period
is at the end of the Lease term the amount of any overpayment shall be promptly
refunded to Tenant.
C. Failure by Landlord to provide Tenant with a statement by April 1st of
each year shall not constitute a waiver by Landlord of its right to collect
Tenant's share of Operating Costs or estimates for a particular calendar year,
Landlord's right to charge Tenant for such expenses in subsequent years is not
waived.
5.03 Taxes
A. "Real Project Taxes" are: (i) any fee, license fee, license tax,
business license fee, commercial rental tax, levy, charge, assessment, penalty
or tax imposed by any taxing authority against the Project; (ii) any tax or fee
on Landlord's right to receive, or the receipt of, rent or income from the
Project or against Landlord's business of leasing the Project, (iii) any tax or
charge for fire protection, streets, sidewalks, road maintenance, refuse or
other services provided to the Project by any governmental agency; (iv) any tax
imposed upon this transaction, or based upon a re-assessment of the Project due
to a change in ownership or transfer of all of part or Landlord's interest in
the Project; (v) any charge or fee replacing, substituting for, or in addition
to any tax previously included within the definition of real property tax; and
(vi) the Landlord's cost of any tax protest relating to any of the above. Real
Project Taxes do not, however, include Landlord's federal or state income,
franchise, inheritance or estate taxes.
B. Tenant shall pay to Landlord Tenant's Proportionate Share of the Real
Project Taxes as indicated in 1.09. Such payment shall be paid by Tenant
annually upon being invoiced for such taxes in addition to the monthly payment
of Base Monthly
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Rent. Tenant shall, if Landlord so elects and Tenant agrees, pay to Landlord on
a monthly basis, in advance, the amount which Landlord reasonably estimates to
be Tenant's Proportionate Share of the Real Project Taxes. In the event of such
election by Landlord, Landlord shall periodically determine Tenant's share of
the actual Real Project Taxes, and in the event that the amount which Tenant has
paid to Landlord on account of the Real Project Taxes is less than his share of
such actual Real Project Taxes, Tenant shall pay such difference to Landlord on
the next rent payment date. In the event that Tenant has paid to Landlord more
than his share of such actual Real Project Taxes, the amount of such difference
shall be credited against Tenant's payment of Real Project Taxes next due. If
the Lease term is expired then Landlord shall promptly refund any overpayment to
Tenant. If Tenant does not agree to the advance monthly payments specified
above, Tenant shall pay to Landlord on a quarterly basis, not later than thirty
(30) days in advance of each required quarterly installment, Tenant's
Proportionate Share of the Real Project Taxes. Landlord agrees that Tenant shall
have the right, at Tenant's sole cost and expense and upon written notice to
Landlord, to contest the legality or validity of any of the taxes which are to
be paid by Tenant pursuant to the foregoing provisions. In the event of any such
contest, failure on the part of Tenant to pay any such tax, prior to the
delinquency date thereof shall not constitute a default hereunder if Tenant
posts a bond, in a reasonable amount required by Landlord, but not to exceed one
hundred fifty percent (150%) of the disputed assessment. Tenant, upon the final
determination of such contest, shall immediately pay and discharge any judgment
rendered against it, together with all costs and charges incidental thereto.
Landlord further agrees at the request of Tenant, to execute, or join in the
execution of any instrument or documents necessary in connection with any such
contest, but at no expense to Landlord.
C. Personal Property Taxes: Tenant will pay all taxes charged against trade
fixtures, furnishing, equipment or any other personal property belonging to
Tenant. Tenant will have personal property taxes billed separately from the
Project. If any of Tenant's personal property is taxed with the Project, Tenant
will pay Landlord the taxes for the personal property upon demand by Landlord.
5.04 Based on Tenant's Proportionate Share defined in 1.09, Tenant agrees
to pay as Additional Rent to Landlord its share of any parking charges, utility
surcharges, occupancy taxes, or any other costs resulting from the statutes or
regulations, or interpretations thereof, enacted by any governmental authority
in connection with the use or occupancy of the Project or the parking facilities
serving the Project, or any part thereof.
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5.05 Landlord by completing this paragraph may elect to have Tenant pay a
monthly estimate of the Additional Rent due from Tenant of 5.5(cent) per square
foot, i.e, THREE THOUSAND, FIVE HUNDRED SEVENTY-NINE AND 84/100 DOLLARS
($3,579.84) per month. Landlord shall make adjustments to this estimate based
upon actual costs and projected future costs. Landlord shall periodically
determine the balance between actual Additional Rent and Additional Rent paid by
Tenant and make adjustments in accordance with 5.02 and 5.03 above.
7. USE OF PREMISES: QUIET CONDUCT
7.01 The Premises may be used and occupied only for Tenant's Permitted Use
as shown in 1.05 and for no other purpose, without obtaining Landlord's prior
written consent, which consent shall not be unreasonably withheld or delayed.
Tenant will comply with all laws, ordinances, orders and regulations affecting
the Premises.Landlord represents that to the best of Landlord's knowledge, there
are currently no covenants, restrictions, or agreements affecting the Project
which would prevent Tenant from utilizing the Premises for Tenant's permitted
use specified in Section 1.05 above. Tenant will not perform any act or carry on
any practices that may injure the Project or the Premises or be a nuisance or
menace, or disturb the quiet enjoyment of other lessees in the Project including
but not limited to equipment which causes vibration, use or storage of
chemicals, or heat or noise which is not properly insulated. Tenant will not
cause, maintain or permit any outside storage on or about the Premises. In
addition, Tenant will not allow any condition or thing to
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remain on or about the Premises which diminishes the appearance or aesthetic
qualities of the Premises and/or the Project or the surrounding property. The
keeping of a dog or other animal on or about the Premises is expressly
prohibited. So long as Tenant is not in default under the terms of this Lease,
Tenant shall have quiet enjoyment of the Premises during the entire term of the
Lease and any extension thereof.
7.02 As used in this section, the term "Hazardous Waste" means:
A. Those substances defined as "hazardous substances", "hazardous
materials", "toxic substances", "regulated substances", or "solid waste" in the
Toxic Substance Control Act, 15 U.S.C. ss. 2601 et. seq., as now existing or
hereafter amended ("TSCA"), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601 et. seq., as now
existing or hereafter amended ("CERCLA"), the Resource, Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et. seq., as now existing or
hereafter amended ("RCRA"), the Federal Hazardous Substances Act, 15 U.S.C. ss.
1261 et. seq., as now existing or hereafter amended ("FHSA"), the Occupational
Safety and Health Act of 1970, 29 U.S.C. ss. 651 et. seq., as now existing or
hereafter amended ("OSHA"), the Hazardous Materials Transportation Act, 49
U.S.C. ss. 1801 et. seq., as now existing or hereafter amended ("HMTA"), and the
rules and regulations now in effect or promulgated hereafter pursuant to each
law referenced above;
B. Those substances defined as "hazardous waste", "hazardous material", or
"regulated substances" in Nev. Rev. Stat. ch 459, 1989 Nev. Stat. ch. 598 and
1989 Nev. Stat. ch 363, or in the regulations now existing or hereafter
promulgated pursuant thereto or in the Uniform Fire Code, 1988 edition;
C. Those substances listed in the United States Department of
Transportation table (49 CFR ss. 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); and
D. Such other substances, mixtures, materials and waste which are regulated
under applicable local, state or federal law, or which are classified as
hazardous or toxic under federal, state or local laws or regulations (all laws,
rules and regulations referenced in paragraphs (a), (b), (c) and (d) are
collectively referred to as "Environmental Laws").
7.03 Tenant's Covenants. Tenant does not intend to and Tenant will not, nor
will Tenant allow any other person (including partnerships, corporations and
joint ventures), during the term of
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this Lease to manufacture, process, store, distribute, use, discharge or dispose
of any Hazardous Waste in, under or on the Project, the Common Areas, or any
property adjacent thereto.
A. Tenant shall notify Landlord promptly in the event of any spill or
release of Hazardous Waste into, on, or onto the Project regardless of the
source of spill or release, whenever Tenant knows or suspects that such a
release occurred.
B. Tenant will not be involved in operations at or near the Project which
could lead to the imposition on the Tenant or the Landlord of liability or the
creation of a lien on the Project, under the Environmental Laws.
C. Tenant shall, upon twenty-four (24) hour prior notice by Landlord,
permit Landlord or Landlord's agent access to the Project to conduct an
environmental site assessment with respect to the Project.
7.04. Indemnity. Tenant for itself and its successors and assigns
undertakes to protect, indemnify, save and defend Landlord, its agents,
employees, directors, officers, shareholders, affiliates, consultants,
independent contractors, successors and assigns (collectively the "Indemnitees")
harmless from any and all liability, loss, damage and expense, including
reasonable attorneys' fees, claims, suits and judgments that Landlord or any
other Indemnitee, whether as Landlord or otherwise, may suffer as a result of,
or with respect to:
A. The violation by Tenant or Tenant's agents, employees, invitees,
licensees or contractors of any Environmental Law, including the assertion of
any lien thereunder and any suit brought or judgment rendered regardless of
whether the action was commenced by a citizen (as authorized under the
Environmental Laws) or by a government agency;
B. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, any spill or release of
or the presence of any Hazardous Waste affecting the Project whether or not the
same originates or emanates from the Project or any contiguous real estate,
including any loss of value of the Project as a result of a spill or release of
or the presence of any Hazardous Waste;
C. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, any other matter
affecting the Project within the jurisdiction of the United States Environmental
Protection Agency, the Nevada State Environmental Commission, the Nevada
Department of Conservation and Natural Resources, or the Nevada Department of
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Commerce, including costs of investigations, remedial action, or other response
costs whether such costs are incurred by the United States Government, the State
of Nevada, or any Indemnitee;
D. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, liability for clean-up
costs, fines, damages or penalties incurred pursuant to the provisions of any
applicable Environmental Law; and
E. To the extent caused, directly or indirectly by Tenant or Tenant's
agents, employees, invitees, licensees or contractors, liability for personal
injury or property damage arising under any statutory or common-law tort theory,
including, without limitation, damages assessed for the maintenance of a public
or private nuisance, or for the carrying of an abnormally dangerous activity,
and response costs.
7.05 Remedial Acts. In the event of any spill or release of or the presence
of any Hazardous Waste affecting the Project, caused by Tenant, its employees,
agents, invitees, licensees, or contractors, whether or not the same originates
or emanates from the Project or any contiguous real estate, and/or if Tenant
shall fail to comply with any of the requirements of any Environmental Law,
Landlord may, without notice to Tenant, at its election, but without obligation
so to do, gives such notices and/or cause such work to be performed at the
Project and/or take any and all other actions as Landlord shall deem necessary
or advisable in order to remedy said spill or release of Hazardous Waste or cure
said failure of compliance and any amounts paid as a result thereof, together
with interest at the rate equal to the product of the variable Prime Rate
"Prime", plus four percent (4%) per annum as charged by Bank of America, Nevada;
times the amount of such installment amount due, or twelve percent (12%) per
annum of such installment or the sum of twenty-five dollars ($25.00), whichever
is greater, for each month or fractional month transpiring from the date due
until paid.
7.06 Settlement. Landlord upon giving Tenant ten (10) days prior notice,
shall have the right in good faith to pay, settle or compromise, or litigate any
claim, demand, loss, liability, cost, charge, suit, order, judgment or
adjudication under the belief that it is liable therefor, whether liable or not,
without the consent or approval of Tenant unless Tenant within said ten (10) day
period shall protest in writing and simultaneously with such protest deposit
with Landlord collateral satisfactory to Landlord sufficient to pay and satisfy
any penalty and/or interest which may accrue as a result of such protest and any
judgment or judgments as may result, together with attorney's fees and expenses,
including, but not limited to, environmental
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consultants.
8. PARKING
8.01 Tenant and Tenant's customers, suppliers, employees, and invitees have
the non-exclusive right to park in common with other lessees in the parking
facilities as designated by Landlord. Tenant agrees not to overburden the
parking facilities and agrees to cooperate with Landlord and other lessees in
the use of the parking facilities. Landlord reserves the right to, on an
equitable basis, assign specific spaces with or without charge to Tenant as
Additional Rent, make changes in the parking layout from time to time, and to
establish reasonable time limits on parking.
9. UTILITIES
9.01 Tenant will be responsible for and shall pay for all water, gas, heat,
light, power, sewer, electricity, or other services metered, chargeable to or
provided to the Premises separate from and in addition to the costs outlined in
Section 5.02 dealing with the utility costs for Common Area Maintenance.
Landlord reserves the right to install separate meters for any such utility.
9.02 Landlord will not be liable or deemed in default to Tenant nor will
there be any abatement of rent for any interruption or reduction of utilities or
services not caused by any act of Landlord or any act reasonably beyond
Landlord's control. Tenant agrees to comply with energy conservation programs
implemented by Landlord by reason of enacted laws or ordinances.
9.03 Tenant will contract and pay for all telephone and such other services
for the Premises subject to the provisions of 10.03.
10. ALTERATIONS, MECHANIC'S LIENS
10.01 Tenant will not make any alterations to the Premises without
Landlord's prior written consent which consent shall not be unreasonably
withheld in accordance with the provisions of this Section 10. Landlord's
consent shall be contingent upon Tenant providing Landlord with the following
items or information, all subject to Landlord's approval: (i) Tenant's
contractor, (ii) certificates of insurance by Tenant's contractor for commercial
general liability insurance with limits not less than $2,000,000 General
Aggregate,$1,000,000 Products/Complete Operations Aggregate,$1,000,000 Personal
& Advertising Injury, $1,000,000 Each Occurrence, $50,000 Fire Damage, $5,000
Medical Expense, $1,000,000 Auto Liability (Combined Single Limit, including
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Hired/Non-Owned Auto Liability), Workers Compensation, including Employer's
Liability, as required by state statute endorsed to show Landlord as an
additional insured and for worker's compensation as required and (iii) detailed
plans and specifications for such work. Tenant agrees that it will have its
contractor execute a waiver of mechanic's lien and that Tenant will remove any
mechanic's lien placed against the Project or provide a bond or other collateral
in an amount and on such terms as are acceptable to Landlord in Landlord's
reasonable discretion (it being agreed that Landlord may require removal of and
Tenant shall immediately remove any such liens if so required by Landlord's
lenders, partners, affiliates, or otherwise to finance, refinance, sell, or
transfer the Project) within twenty (20) days of receipt of notice of lien. In
addition, before alterations may begin, valid building permits or other permits
or licenses required must be furnished to Landlord, and, once the alterations
begin, Tenant will diligently and continuously pursue their completion. At
Landlord's option, any alterations may become part of the realty and belong to
Landlord. If requested by Landlord, Tenant will pay, prior to the commencement
of the construction, an amount determined by Landlord necessary to cover the
costs of demolishing such alterations and/or the cost of returning the Premises
to its condition prior to such alterations. As a further condition to giving
such consent, Landlord may require Tenant to provide Landlord, at Tenant's sole
cost and expense, a payment and performance bond in form acceptable to Landlord,
in a principal amount not less than one and one-half times the estimated costs
of such alterations, to ensure Landlord against any liability for mechanic's and
materialmen's liens and to ensure completion of work. Tenant, at Landlord's
option, shall at Tenant's expense remove all alterations and repair all damage
to the Premises. Notwithstanding the foregoing, Tenant may, without Landlord's
prior consent, make nonstructural changes, alterations, and additions to the
interior of the Premises which increase the value of the Premises. Such
additions may include, without limitation, installation of computer cabling,
painting, and telecommunications systems. Tenant agrees not to install any
equipment on or otherwise modify, repair or alter the roof of the Premises
without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed.
10.02 Notwithstanding anything in 10.01, Tenant may, with written consent
of Landlord, install trade fixtures, equipment, and machinery in conformance
with the ordinances of the applicable city and county, and they may be removed
upon termination of its Lease provided the Premises are not damaged by their
removal.
10.03 Any private telephone systems and/or other related telecommunications
equipment and lines must be installed within Tenant's Premises and, upon
termination of this Lease removed and
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the Premises restored to the same condition as before such installation.
10.04 Tenant will pay all costs for alterations and will keep the Premises,
the Project and the underlying property free from any liens arising out of work
performed for, materials furnished to or obligation incurred by Tenant, or
provide a bond or other collateral in an amount and on such terms as are
acceptable to Landlord in Landlord's reasonable discretion (it being agreed that
Landlord may require removal of and Tenant shall immediately remove any such
liens if so required by Landlord's lenders, partners, affiliates, or otherwise
to finance, refinance, sell, or transfer the Project).
10.05 Landlord will have the right to construct or permit construction of
tenant improvements in or about the Project for existing and new Tenants and to
alter any public areas in and around the Project. Notwithstanding anything which
may be contained in this Lease, Tenant understands this right of Landlord and
agrees that such construction will not be deemed to constitute a breach of this
Lease by Landlord and Tenant waives any such claim which it might have arising
from such construction. To the extent reasonably possible, Landlord agrees to
conduct or permit such construction so that such construction shall not
materially and unreasonably interfere with Tenant's ability to conduct its
business on the Premises.
11. FIRE INSURANCE: HAZARDS AND LIABILITY INSURANCE
11.01 Except as expressly provided as Tenant's Permitted Use, or as
otherwise consented to by Landlord in writing, Tenant shall not do or permit
anything to be done within or about the Premises which Tenant knows or
reasonably believes will increase the existing rate of insurance on the Project
and shall, at its sole cost and expense, comply with any requirements,
pertaining to the Premises, of any insurance organization insuring the Project
and Project-related apparatus. Upon notice of such increase, Tenant agrees to
pay to Landlord, as Additional Rent, any increases in premiums on policies
resulting from Tenant's Permitted Use or other use consented to by Landlord
which increases Landlord's premiums or requires extended coverage by Landlord to
insure the Premises. Landlord agrees, to the extent reasonably possible, to
provide Tenant with a reasonable opportunity to cure such condition.
11.02 Tenant, at all times during the term of this Lease and at Tenant's
sole expense, will maintain a policy of standard fire and extended coverage
insurance with "all risk" coverage on all Tenant's improvements and alterations
in or about the Premises and on all personal property and equipment to the
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extent of at least ninety percent (90%) of their full replacement value. The
proceeds from this policy will be used by Tenant for the replacement of personal
property and equipment and the restoration of Tenant's improvements and/or
alterations. This policy will contain an express waiver, in favor of Landlord,
of any right of subrogation by the insurer.
11.03 Tenant, at all times during the term on this Lease and at Tenant's
sole expense, will maintain a policy of commercial general liability coverage
with limits of not less than $2,000,000 combined single limit for bodily injury
and property damage insuring against all liability of Tenant and its authorized
representatives arising out of or in connection with Tenant's use or occupancy
of the Premises.
11.04 All insurance will name Landlord and/or Landlord's designated
partners and affiliates as an additional named insured and will include an
express waiver of subrogation by the insurer in favor of Landlord and Tenant and
will release Landlord from any claims for damage to any person, to the Premises,
and to the Project, and to Tenant's personal property, equipment, improvements
and alterations in or on the Premises of the Project, caused by or resulting
from risks which are to be insured against by Tenant under this Lease. All
insurance required to be provided by Tenant under this Lease will (a) be issued
by an insurance company authorized to do business in the state in which the
Premises are located and which has and maintains a rating of A/X in the Best's
Insurance Reports or the equivalent, (b) be primary and noncontributing with any
insurance carried by Landlord, and (c) contain an endorsement requiring at least
thirty (30) days prior written notice of cancellation to Landlord before
cancellation or change in coverage, scope or limit of any policy. Tenant will
deliver a certificate of insurance or a copy of the policy to Landlord within
thirty (30) days of execution of this Lease and will provide evidence of renewed
insurance coverage at each anniversary, and prior to the expiration of any
current policies; however, in no event will Tenant be allowed to occupy the
Premises before providing adequate and acceptable proof of insurance as stated
above. Tenant's failure to provide evidence of this coverage to Landlord may, in
Landlord's sole discretion, constitute a default under this Lease.
11.05 Tenant and Landlord each waive any and all rights against the other,
or against the officers, employees, agents and representatives of the other, for
loss of or damage to such waiving party or its property or property of others
under its control, where such loss of damage is insured against under an
insurance policy required to be in force under this Lease at the time of such
loss or damage. Tenant and Landlord shall upon obtaining the policies of
insurance required hereunder, give
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notice to the insurance carriers that the foregoing mutual waiver of subrogation
is contained in this Lease.
12. INDEMNIFICATION AND WAIVER OF CLAIMS
12.01 Except to the extent caused by the negligence or intentional
misconduct of Landlord, Tenant waives all claims against Landlord for damage to
any property in or about the Premises and for injury to any persons, including
death resulting therefrom, regardless of cause or time of occurrence. Tenant
will defend, indemnify and hold Landlord harmless from and against any and all
claims, actions, proceedings, expenses, damages and liabilities, including
attorney's fees, arising out of, connected with, or resulting from any use of
the Premises by Tenant, its employees, agents, visitors or licensees, including,
without limitation, any failure of Tenant to comply fully with all of the terms
and conditions of this Lease except for any damage or injury which is the direct
result of intentional misconduct by Landlord, its employees, agents, visitors or
licensees. Landlord will defend, indemnify, and hold Tenant, its employees,
agents, visitors, or licensees harmless from and against any and all claims,
actions, proceedings, expenses, damages, and liabilities, including reasonable
attorneys' fees, caused by the negligence or intentional misconduct of Landlord.
13. REPAIRS
13.01 Tenant shall, at its sole expense, keep and maintain the Premises and
every part thereof (excepting common use equipment, which Landlord agrees to
repair or replace pursuant to Section 5.02 unless damages are due to the neglect
or intentional acts of Tenant or its agents, employees, visitors, or licensees),
including interior windows, skylights, doors, plate glass, any store fronts and
the interior of the Premises, in good and sanitary order, condition and repair.
Tenant will, also, at its sole cost keep and maintain all utilities, fixtures,
plumbing and mechanical equipment used by Tenant in good order and repair and
furnish all expendables (light bulbs, paper goods, soaps, etc.) used in the
Premises. The standard for comparison and need of repair will be the condition
of the Premises at the time of commencement of this Lease and all repairs will
be made by a licensed and bonded contractor approved by Landlord.
13.02 Tenant will not make repairs to the Premises at the cost of Landlord
whether by deductions of rent or otherwise, or vacate the Premises or terminate
the Lease if repairs are not made. If during the Term, any alteration, addition
or change to the Premises is required by legal authorities, Tenant, at its sole
expense, shall promptly make the same. Landlord reserves the right to make any
such repairs not made or maintained in good
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condition by Tenant and Tenant shall reimburse Landlord for all such costs upon
demand.
13.03 If repairs deemed necessary by Landlord or any government authority
are not made by Tenant within the prescribed time frame as requested in writing,
Tenant shall be in default of this Lease.
13.04 Tenant shall, at its own expense, within thirty days of lease
commencement, contract with a vendor acceptable to Landlord for the maintenance
service of the HVAC which will be furnished to the Landlord upon request. If
Tenant fails to obtain and maintain such a maintenance service contract Landlord
shall have the right to obtain such a maintenance service contract at the
expense of Tenant.
13.05 Subject to the following provisions, Landlord agrees to maintain and
repair the structural portion of the Premises (for purposes of this Agreement
constituting only the structural walls, the roof structure, and foundation) and
maintain the Common Areas in good condition and repair. The costs of such
repairs and maintenance, excluding the costs of repairs to the structural walls
and the foundation not caused by Tenant's or Tenant's employees, agents,
invitees, or contractors' negligence, intentional misconduct, or failure to
properly maintain the Premises, or failure to perform or observe any conditions
or agreements contained in this Lease, shall constitute "Operating Costs" of the
Project pursuant to Section 5.02 above. Without limiting the foregoing, Landlord
shall not be responsible for repairs caused by Tenant's negligence, intentional
misconduct, or failure to properly maintain the Premises, or failure to perform
or observe any conditions or agreements contained in this Lease. Landlord shall
not be required to commence any repairs hereunder except after notice of the
need therefor from Tenant.
14. AUCTIONS, SIGNS, AND LANDSCAPING
14.01 Tenant will not conduct or permit to be conducted any sale by auction
on the Premises. Landlord will have the right to control landscaping and approve
the placement, size, and quality of signs pursuant to Exhibit "F", "Sign
Criteria". Tenant will not make alterations or additions to the landscaping and
will not place any signs nor allow the placement of any signs, which are visible
from the outside, on or about any building of the Project, nor in any landscape
area, without the prior written consent of Landlord. Landlord will have the
right in its sole discretion to withhold its consent. Any signs not in
conformity with this Lease or in accordance with the provisions of Exhibit "F"
may be removed by Landlord at Tenant's expense.
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15. ENTRY BY LANDLORD
15.01 Tenant will permit Landlord and Landlord's agents to enter the
Premises at all reasonable times for the purpose of inspecting the same, or for
the purpose of maintaining the Project, or for the purpose of making repairs,
alterations or additions to any portion of the Project, including the erection
and maintenance of such scaffolding, canopies, fences and props as may be
required, or for the purpose of posting notices of nonresponsibility for
alterations, additions or repairs , or for the purpose of showing the Premises
to prospective tenants during the last six months of the Lease Term, or placing
upon the Project any usual or ordinary "for sale" signs, without any rebate of
rents and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Premises thereby occasioned. Tenant will permit Landlord at any
time within sixty (60) days prior to the expiration of this Lease, to place upon
the Premises any usual or ordinary "to let" or "to lease" signs. Tenant will not
install a new or additional lock or any bolt on any door of the Premises without
the prior written consent of Landlord, which will not be unreasonably withheld.
If Landlord gives its consent, such work shall be undertaken by a locksmith
approved by Landlord, at Tenant's sole cost. Landlord retains the right to
charge Tenant for restoring any altered doors to their condition prior to the
installation of the new or additional locks.
16. ABANDONMENT
16.01 Tenant will not vacate or abandon the Premises, which shall be deemed
to occur any time during the Lease Term if Tenant does not conduct business for
a period of sixty (60) consecutive days and/or leaves the Premises unoccupied
for any period of time. If Tenant abandons, vacates or surrenders the Premises,
or is dispossessed by process of law, or otherwise, any personal property
belonging to Tenant left in or about the Premises will, at the option of
Landlord be deemed abandoned and may be disposed of by Landlord in the manner
provided for by the laws of the state in which the Premises are located. Tenant
agrees to provide written notice to Landlord prior to any vacation, abandonment,
or cessation of business by Tenant of or from the Premises for any period of
time.
17. DESTRUCTION
17.01 In the case of total destruction of the Premises, or any portion
thereof substantially interfering with Tenant's use of the Premises, whether by
fire or other casualty, not caused by the fault or negligence of Tenant, its
agents, employees, servants, contractors, subtenants, licensees, customers or
business invitees, this Lease shall terminate except as herein provided.
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If such destruction occurs prior to the second (2nd) anniversary of the date of
this Lease and provided that (1) Landlord has received sufficient proceeds from
insurance maintained under this Lease on the Premises in order to repair such
damage, and (2) such damage is not due to the fault or negligence of Tenant, its
agents, employees, servants, contractors, subtenants, licensees, customers or
business invitees, then Landlord shall proceed to repair such damage with
reasonable dispatch, and this Lease shall not terminate, but shall continue in
full force and effect. If such destruction occurs after the second (2nd)
anniversary of the date of this Lease, and if Landlord notifies Tenant in
writing within forty-five (45) days of such destruction of Landlord's election
to repair said damage, and if Landlord proceeds to and does repair such damage
with reasonable dispatch, this Lease shall not terminate, but shall continue in
full force and effect. Upon any such damage which is repaired by Landlord in
accordance with the provisions of this Section 17.01, Tenant shall be entitled
to a reduction in the minimum rent in an amount equal to that proportion of the
minimum rent which the number of square feet of floor space in the unusable
portion bears to the total number of square feet of floor space in the Premises.
Said reduction shall be prorated so that the rent shall only be reduced for
those days any given area is actually unusable. In determining what constitutes
reasonable dispatch, consideration shall be given to delays caused by labor
disputes, civil commotion, war, warlike operations, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
control, fire or other casualty, inability to obtain any materials or services,
acts of God and other causes beyond Landlord's control. If this Lease is
terminated pursuant to this Section 17 and if Tenant is not in default
hereunder, rent shall be prorated as of the date of termination, any security
deposited with Landlord shall be returned to Tenant, less any reasonable offsets
and all rights and obligations hereunder shall cease and terminate.
17.02. Notwithstanding the foregoing provisions, in the event the Premises,
or any portion thereof, shall be damaged by fire or other casualty due to the
fault or negligence of Tenant, its agents, employees, servants, contractors,
subtenants, licensees, customers or business invitees, then, without prejudice
to any other rights and remedies of Landlord, this Lease shall not terminate,
the damage shall be repaired at Tenant's cost, and there shall be no
apportionment or abatement of any rent.
17.03. In the event of any damage not limited to, or not including, the
Premises, such that the building of which the Premises is a part is damaged to
the extent of fifteen percent (15%) percent or more of the cost of replacement,
or the buildings (taken in the aggregate) of the
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Project owned by Landlord shall be damaged to the extent of more than fifteen
percent (15%) of the aggregate cost of replacement, Landlord may elect to
terminate this Lease upon giving notice of such election in writing to Tenant
within ninety (90) days after the occurrence of the event causing the damage.
17.04. The provisions of this Section 17 with respect to Landlord shall be
limited to such repair as is necessary to place the Premises in the same
condition as the Premises were in upon commencement of this Lease, reasonable
wear and tear and any modifications or preparations made by Tenant excepted, and
when placed in such condition the Leased Property shall be deemed restored and
rendered tenantable promptly following which time Tenant, at Tenant's expense
shall perform Tenant's work required by Exhibit B (if applicable) and Tenant
shall also repair or replace its stock in trade, fixtures, furniture,
furnishings, floor coverings and equipment, and if Tenant has closed, Tenant
shall promptly reopen for business.
17.05. All insurance proceeds payable under any fire, and/or rental
insurance shall be payable solely to Landlord and Tenant shall have no interest
therein. Tenant shall in no case be entitled to compensation for damages on
account of any annoyance or inconvenience in making repairs under any provision
of this Lease unless such damage was solely caused by Landlord's intentional
misconduct or gross negligence. Except to the extent provided for in this
Section 17, neither the rent payable by Tenant nor any of Tenant's other
obligations under any provision of this Lease shall be affected by any damage to
or destruction of the Premises or any portion thereof by any cause whatsoever.
18. ASSIGNMENT, SUBLETTING AND TRANSFERS OF OWNERSHIP
18.01 Except for a "Permitted Assignment." as defined in Section 18.02
below, Tenant will not, without Landlord's prior written consent, assign,
sublease, sell, mortgage, encumber, convey or otherwise transfer all or any part
of Tenant's leasehold estate, or permit the Premises to be occupied by anyone
other than Tenant and Tenant's employees or sublet the Premises or any portion
thereof (collectively called "Transfer"). Tenant must supply Landlord with any
and all documents deemed necessary by Landlord to evaluate any proposed Transfer
and with respect to a Permitted Assignment at least sixty (60) days in advance
of Tenant's proposed Transfer date or the date of a Permitted Assignment.
18.02 Except for a "Permitted Assignment," as defined hereinbelow, Landlord
need not consent to any Transfer for reasons including, but not limited to,
whether or not: (a) in the
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reasonable judgment of Landlord the transferee is of a character or is engaged
in a business which is not in keeping with the standard of Landlord for the
Project; (b) in the reasonable judgment of Landlord any purpose for which the
transferee intends to use the Premises is not in keeping with the standards of
Landlord for the Project; provided in no event may any purpose for which
transferee intends to use the Premises be in violation of this Lease; (c) the
portion of the Premises subject to the transfer is not regular in shape with
appropriate means of entering and exiting, including adherence to any local,
county or other governmental codes, or is not otherwise suitable for the normal
purposes associated with such a Transfer; or (d) Tenant is in default under this
Lease or any other Lease with Landlord. Notwithstanding the foregoing provisions
of this Section 18.02, and provided that Tenant complies with all other
provisions of this Article 18, Landlord hereby consents to the assignment of the
Lease to (i) any wholly-owned subsidiary corporation of Brightpoint, Inc., (ii)
an entity formed as a result of the merger or consolidation of Tenant with one
or more corporations ("Merger"), and (iii) the sale by Tenant of all or
substantially all of its assets, including this Lease, to a single corporation
("Asset Sale), and such entity specifically assumes the obligations of Tenant
under this Lease and otherwise agrees to comply with the terms and conditions of
the Lease (a "Permitted Assignment"). No Permitted Assignment shall release or
otherwise affect Tenant's or any guarantor's obligations under this Lease, or
constitute an express or implied consent to any other Transfer of all or any
part of Tenant's leasehold estate, or the occupation by anyone other than Tenant
or Tenant's employees.
18.03 In the event Landlord consents to a sublease of the Premises, Tenant
will pay Landlord fifty percent (50%) of the excess, if any, of the rent and
other charges reserved in the sublease over the allocable portion of the rent
and other charges hereunder for that portion of the Premises subject to the
sublease. For the purpose of this section, the rent reserved in the sublease
will be deemed to include any lump sum payment or other consideration given to
Tenant in consideration for the sublease. Tenant will pay or cause the
transferee to pay to Landlord this additional rent together with the monthly
installments of rent due.
18.04 Any consent to any Transfer which may be given by Landlord or any
Permitted Assignment, or the acceptance of any rent, charges or other
consideration by Landlord from Tenant or any third party, will not constitute a
waiver by Landlord of the provisions of this Lease or a release of Tenant from
the full performance by it of the covenants stated herein; and any consent given
by Landlord to any Transfer, or any Permitted Assignment, will not relieve
Tenant (or any transferee of Tenant) from the
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above requirements for obtaining the written consent of Landlord to any
subsequent Transfer.
18.05 If a default under this Lease should occur while the Premises or any
part of the Premises are Transferred, assigned, sublet or otherwise transferred
(including, without limitation, a Permitted Assignment), Landlord, in addition
to any other remedies provided for within this Lease or by law, may at its
option collect directly from the transferee all rent or other consideration
becoming due to Tenant under the Transfer or Permitted Assignment and apply
these monies against any sums due to Landlord by Tenant; and Tenant authorizes
and directs any transferee to make payments of rent or other consideration
direct to Landlord upon receipt of notice from Landlord. No direct collection by
Landlord from any transferee should be construed to constitute a novation or a
release of Tenant or any guarantor of Tenant from the further performance of its
obligations in connection with this Lease.
18.06 If Tenant is a corporation or a partnership, the issuances of any
additional stock or equity interest and/or the transfer, assignment or
hypothecation of any stock or interest in such corporation or partnership in the
aggregate in excess of Twenty-five percent (25%) of such interests, as the same
may be constituted as of the date of this lease, whether directly or indirectly,
shall be deemed to be a Transfer within the meaning of this Section 18.
Notwithstanding the foregoing, Tenant may issue additional stock and/or
transfer, assign, or hypothecate all or any portion of Tenant's stock, as the
same may be constituted as of the date of this Lease, whether directly or
indirectly, and the same shall not constitute a Transfer within the meaning of
this Article 18. In the event of any such stock issuance or transfer, the same
shall not constitute consent by Landlord to any further stock issuance or
transfer, nor shall it affect this Lease or any of Tenant's or any guarantor's
obligations hereunder.
18.07 In the event Tenant requests Landlord's consent to an Assignment,
Sub-Let or Transfer of Tenant's interest in the leased Premises or in the case
of a Permitted Assignment, Tenant agrees to pay Landlord all reasonable
attorney's fees incurred by Landlord for any legal services for document review
of any and all documents deemed necessary by Landlord and Tenant to Assign,
Sub-let or Transfer Tenant's interest in the leased Premises.
19. BREACH BY TENANT
19.01 Tenant will be in breach of this Lease if at any time during the term
of this Lease (and regardless of the pendency of any bankruptcy, reorganization,
receivership, insolvency or other proceedings in law, in equity or before any
administrative
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tribunal which have or might have the effect of preventing Tenant from complying
with the terms of this Lease):
A. Tenant fails to make payment of any installment of Base Monthly Rent,
Additional Rent, or of any other sum herein specified to be paid by Tenant,
within five (5) days of receipt of written notice from Landlord as provided
under this Lease; or
B. Tenant fails to observe or perform any of its other covenants,
agreements or obligations hereunder, and such failure is not cured within
fifteen (15) days after Landlord's written notice to Tenant of such failure;
provided, however, that if the nature of Tenant's obligation is such that more
than fifteen (15) days are required for performance, then Tenant will not be in
breach if Tenant commences performance within such 15 day period and thereafter
diligently prosecutes the same to completion; or
C. Tenant, Tenant's assignee, subtenant, guarantor, or occupant of the
Premises becomes insolvent, makes a transfer in fraud of its creditors, makes a
transfer for the benefit of its creditors, is the subject of a bankruptcy
petition, is adjudged bankrupt or insolvent in proceedings filed against Tenant,
a receiver, trustee, or custodian is appointed for all or substantially all of
Tenant's assets, fails to pay its debts as they become due, convenes a meeting
of all or a portion of its creditors, or performs any acts of bankruptcy or
insolvency, including the selling of its assets to pay creditors; or
D. Tenant has abandoned the Premises as defined in paragraph 16 above.
E. Tenant fails to take possession of the Premises within thirty (30) days
of receiving notice by Landlord that the Premises are available.
20. REMEDIES OF LANDLORD
20.01 Nothing contained herein shall constitute a waiver of Landlord's
right to recover damages by reason of Landlord's efforts to mitigate the damage
to it by Tenant's default; nor shall anything in this Section adversely affect
Landlord's right, as in this Lease elsewhere provided, to indemnification
against liability for injury or damages to persons or property occurring prior
to a termination of this Lease.
20.02 All cure periods provided herein shall run concurrently with any
periods provided by law.
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20.03 In the event of default, as designated herein above, in addition to
any other rights or remedies provided for herein or at law or in equity,
Landlord, at its sole option, shall have the following rights:
A. The right to declare the term of this Lease ended and reenter the
Premises and take possession thereof, and to terminate all of the rights of
Tenant in and to the Premises.
B. The right, without declaring the term of this Lease ended, to reenter
the Premises and to occupy the same, or any portion there of, for and on account
of the Tenant as hereinafter provided, and Tenant shall be liable for and pay to
Landlord on demand all such expenses as Landlord may have paid, assumed or
incurred in recovering possession of the Premises, including costs, expenses,
attorney's fees and expenditures placing the same in good order, or preparing or
altering the same for reletting, and all other expenses, commissions and charges
paid by the Landlord in connection with reletting the Premises. Any such
reletting may be for the remainder of the term of this Lease or for a longer or
shorter period. Such reletting shall be for such rent and on such other terms
and conditions as Landlord, in its sole discretion, deems appropriate. Landlord
may execute any lease made pursuant to the terms hereof either in the Landlord's
own name or in the name of Tenant or assume Tenant's interest in any existing
subleases to any tenant of the Premises, as Landlord may see fit, and Tenant
shall have no right or authority whatsoever to collect any rent from such
tenants, subtenants, of the Premises. In any case, and whether or not the
Premises or any part thereof is relet, Tenant, until the end of the Lease term
shall be liable to Landlord for an amount equal to the amount due as Rent
hereunder, less net proceeds, if any of any reletting effected for the account
of Tenant. Landlord reserves the right to bring such actions for the recovery of
any deficits remaining unpaid by the Tenant to the Landlord hereunder as
Landlord may deem advisable from time to time without being obligated to await
the end of the term of the Lease. Commencement of maintenance of one or more
actions by the Landlord in this connection shall not bar the Landlord from
bringing any subsequent actions for further accruals. In no event shall Tenant
be entitled to any excess rent received by Landlord over and above that which
Tenant is obligated to pay hereunder; or
C. The right, even though it may have relet all or any portion of the
Premises in accordance with the provisions of subsection B. above, to thereafter
at any time elect to terminate this Lease for such previous default on the part
of the Tenant, and to terminate all the rights of Tenant in and to the Premises.
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20.04 Pursuant to the rights of re-entry provided above, Landlord may
remove all persons from the Premises and may, but shall not be obligated to,
remove all property therefrom, and may, but shall not be obligated to, enforce
any rights Landlord may have against said property or store the same in any
public or private warehouse or elsewhere at the cost and for the account of
Tenant or the owner or owners thereof. Tenant agrees to hold Landlord free and
harmless from any liability whatsoever for the removal and/or storage of any
such property, whether of Tenant or any third party whomsoever. Such action by
the Landlord shall not be deemed to have terminated this Lease.
20.05 If Tenant breaches this Lease and abandons the Premises before the
end of the term, or if its right of possession is terminated by Landlord because
of Tenant's breach of this Lease, then this Lease may be terminated by Landlord
at its option. On such Termination Landlord may recover from Tenant, in addition
to the remedies permitted at law:
A. The worth, at the time of the award, of the unpaid Base Monthly Rents
and Additional Rents which had been earned at the time this Lease is terminated.
B. The worth, at the time of the award, of the amount by which the unpaid
Base Monthly Rents and Additional Rents which would have been earned after the
date of termination of this Lease until the time of award exceeds the amount of
the loss of rents that Tenant proves could be reasonably avoided;
C. The worth, at the time of the award, of the amount by which the unpaid
Base Monthly Rent and Additional Rents for the balance of the Lease Term after
the time of award exceeds the amount of such rental loss for such period as the
Tenant proves could have been reasonably avoided; and
D. Any other amount, and court costs, necessary to compensate Landlord for
all detriment proximately caused by Tenant's breach of its obligations under
this Lease, or which in the ordinary course of events would be likely to result
therefrom. The detriment proximately caused by Tenant's breach will include,
without limitation, (i) expenses for cleaning, repairing or restoring the
Premises, (ii) expenses for altering, remodeling or otherwise improving the
Premises for the purpose of reletting the Premises, (iii) brokers' fees and
commissions, advertising costs and other expenses of reletting the Premises,
(iv) costs of carrying the Premises such as taxes, insurance premiums, utilities
and security precautions, (v) expenses of retaking possession of the Premises,
(vi) reasonable attorney's fees and court costs, (vii) any unearned brokerage
commissions paid in connection with this Lease, (viii) reimbursement of any
previously waived Base
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Rent, Additional Rent, free rent or reduced rental rate, and (ix) any concession
made or paid by Landlord to the benefit of Tenant in consideration of this Lease
including, but not limited to, any moving allowances, contributions or payments
by Landlord for tenant improvements or build-out allowances or assumptions by
Landlord of any of the Tenant's previous lease obligations.
20.06 In any action brought by the Landlord to enforce any of its rights
under or arising from this Lease, Landlord shall be entitled to receive its
costs and legal expenses including reasonable attorneys' fees, whether or not
such action is prosecuted to judgment.
20.07 The waiver by Landlord of any breach or default of Tenant hereunder
shall not be a waiver of any preceding or subsequent breach of the same or any
other term. Acceptance of any Rent payment shall not be construed to be a waiver
of the Landlord of any preceding breach of the Tenant.
20.08 All past due amounts owed by Tenant under the terms of this Lease
shall bear interest at twelve percent per annum unless otherwise stated.
21. SURRENDER OF LEASE NOT MERGER
21.01 The voluntary or other surrender of this Lease by Tenant, or mutual
cancellation thereof, will not work a merger and will, at the option of
Landlord, terminate all or any existing transfers, or may, at the option of
Landlord, operate as an assignment to it of any or all of such transfers.
22. ATTORNEYS FEES/COLLECTION CHARGES
22.01 In the event of any legal action or proceeding between the parties
hereto, reasonable attorneys' fees and expenses of the prevailing party in any
such action or proceeding will be added to the judgment therein. Should Landlord
be named as defendant in any suit brought against Tenant in connection with or
arising out of Tenant's occupancy hereunder, Tenant will pay to Landlord its
costs and expenses incurred in such suit, including reasonable attorney's fees,
except to the extent Landlord is named as a defendant as a result of its alleged
gross negligence or intentional misconduct.
22.02 If Landlord utilizes the services of any attorney at law for the
purpose of collecting any rent due and unpaid by Tenant after ten (10) days
written notice to Tenant of such nonpayment of rent or in connection with any
other breach of this Lease by Tenant, Tenant agrees to pay Landlord reasonable
attorneys' fees as determined by Landlord for such services,
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regardless of the fact that no legal action may be commenced or filed by
Landlord
23. CONDEMNATION
23.01 If twenty-five percent (25%) or more of the square footage of the
Premises is taken for any public or quasi-public purpose by any lawful
government power or authority, by exercise of the right of appropriation,
reverse condemnation, condemnation or eminent domain, or sold to prevent such
taking, and if the remaining portion of the Premises will not be reasonably
adequate for the operation of Tenant's business after Landlord completes such
repairs or alterations as Landlord elects to make, either Tenant or the Landlord
may at its option terminate this Lease by notifying the other party hereto of
such election in writing within twenty (20) days after such taking. Tenant will
not because of such taking assert any claim against the Landlord or the taking
authority for any compensation because of such taking, and Landlord will be
entitled to receive the entire amount of any award without deduction for any
estate of interest of Tenant. If less than twenty-five percent (25%) of the
Premises is taken, Landlord at its option may terminate this Lease. If Landlord
does not so elect, Landlord will promptly proceed to restore the Premises to
substantially its same condition prior to such partial taking, allowing for any
reasonable effects of such taking, and a proportionate allowance based on the
loss of square footage will be made to Tenant for the rent corresponding to the
time during which, and to the part of the Premises, which, Tenant is deprived on
account of such taking and restoration.
24. RULES AND REGULATIONS
24.01 Tenant will faithfully observe and comply with any reasonable Rules
and Regulations promulgated by Landlord for the Project and Landlord reserves
the right to reasonably modify and amend them as it deems necessary. Landlord
will not be responsible to Tenant for the nonperformance by any other Tenant or
occupant of the Project of any of said Rules and Regulations. Such Rules and
Regulations shall apply to all tenants of the Project.
24.02 In the event that Tenant fails to cure any violations of such Rules
and Regulations following ten (10) days written notice by Landlord, such failure
to cure shall be deemed a material breach of this Lease by Tenant.
25. ESTOPPEL CERTIFICATE
25.01 Each party (the "Nonrequesting Party") will execute and deliver to
the other party (the "Requesting Party")
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<PAGE>
within ten (10) business days of the Requesting Party's written demand, a
statement in writing certifying that this Lease is in full force and effect, and
that the Base Monthly Rent and Additional Rent payable hereunder is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification) and the date to which rent and other charges are paid, if any, and
acknowledging that there are not, to the Non-Requesting Party's knowledge, any
uncured defaults on the part of the Requesting Party hereunder or specifying
such defaults if they are claimed and such other matters as the Requesting Party
may reasonably request. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrancer of the Premises. The Non-Requesting
Party's failure to deliver such statement within such time shall be conclusive
upon the Non-Requesting Party that (1) this Lease is in full force and effect,
without modification except as may be represented by the Requesting Party; (2)
there are no known uncured defaults in the Requesting Party's performance and
(3) not more than one (1) month's rents has been paid in advance. Tenant shall
provide a copy of the demand to Landlord's counsel, Walther, Key, Maupin, Oats,
Cox, Klaich & LeGoy, 3500 Lakeside Court, Suite 200, Reno, Nevada 89509, and
agrees that any such demand shall only be provided as a result of a requirement
from a third party for Tenant's audit and financing purposes.
26. SALE BY LANDLORD
26.01 In the event of a sale or conveyance by Landlord of the Project the
same shall operate to release Landlord from any liability upon any of the
covenants or conditions, expressed or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility of
the successor in interest of Landlord in and to this Lease. This Lease will not
be affected by any such sale, and Tenant agrees to attorn to the purchaser or
assignee.
27. NOTICES
27.01 All notices, statements, demands, requests, consents, approvals,
authorizations, offers, agreements, appointments, or designations under this
Lease by either party to the other will be in writing and will be considered
sufficiently given and served upon the other party if sent by certified or
registered mail, return receipt requested, postage prepaid, delivered
personally, or by a national overnight delivery service and addressed as
indicated in 1.03 and 1.04.
28. WAIVER
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<PAGE>
28.01 The failure of Landlord to insist in any one or more cases upon the
strict performance of any term, covenant or condition of the Lease will not be
construed as a waiver of a subsequent breach of the same or any other covenant,
term or condition; nor shall any delay or omission by Landlord to seek a remedy
for any breach of this Lease be deemed a waiver by Landlord of its remedies or
rights with respect to such a breach.
29. HOLDOVER
29.01 If Tenant remains in the Premises after the Lease Expiration date
with the consent of the Landlord, and has not given prior written notice to
Landlord, such continuance of possession by Tenant will be deemed to be a
month-to-month tenancy at the sufferance of Landlord terminable on thirty (30)
day notice at any time by either party. All provisions of this Lease, except
those pertaining to term and rent, will apply to the month-to-month tenancy.
Tenant will pay a new Base Monthly Rent in an amount equal to 150% of the base
monthly rent payable for the last full calendar month during the regular term of
this Lease.
30. DEFAULT OF LANDLORD/LIMITATION OF LIABILITY
30.01 In the event of any default by Landlord hereunder, Tenant agrees to
give notice of such default, by registered mail, to Landlord at Landlord's
Notice Address as stated in 1.04 and to offer Landlord a reasonable opportunity
to cure the default. In the event of any actual or alleged failure, breach or
default hereunder by Landlord, Tenant's sole and exclusive remedy will be
against Landlord's interest in the Project, and Landlord, its directors,
officers, employees and any partner of Landlord will not be sued, be subject to
service or process, or have a judgement obtained against him in connection with
any alleged breach or default, and no writ of execution will be levied against
the assets of any partner, shareholder or officer of Landlord. The covenants and
agreements are enforceable by Landlord and also by any partner, shareholder or
officer of Landlord.
31. SUBORDINATION
31.01 Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, and at the election of
Landlord or any mortgagee with a lien on the Project or any ground lessor with
respect to the Project, this Lease will be subject and subordinate at all times
to (a) all ground leases or underlying leases which may now exist or hereafter
be executed affecting the Project, and (b) the lien of any mortgage or deed of
trust which may now exist or hereafter be executed in any amount for which the
Project, ground leases or underlying leases, or Landlord's interest or estate in
any of said
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<PAGE>
items is specified as security. In the event that any ground lease or underlying
lease terminates for any reason or any mortgage or deed of trust is foreclosed
or a conveyance in lieu of foreclosure is made for any reason, Tenant will,
notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord, at the option of such successor in interest.
Tenant covenants and agrees to execute and deliver to Landlord any document or
instrument reasonably requested by Landlord or its ground lessor, mortgagee or
beneficiary under a deed of trust evidencing such subordination of this Lease
with respect to any such ground lease or underlying leases or the lien of any
such mortgage or deed of trust. If Tenant fails to respond to such request,
Landlord shall provide Tenant with an additional request for such documentation,
and a ten (10) business day period of time to respond. Tenant hereby irrevocably
appoints Landlord as attorney-in-fact of Tenant to execute, deliver and record
any such document in the name and on behalf of Tenant, in the event Tenant has
failed to execute and deliver such document or instrument within the time
periods specified and provision of the requested form of document or instrument
to Tenant consistent with the terms of this Article 31. Landlord and Tenant
acknowledge that the present lienholder of the Project does not currently
require the execution of a subordination and nondisturbance agreement.
32. DEPOSIT AGREEMENT
32.01 Landlord and Tenant hereby agree that Landlord will be entitled to
immediately endorse and cash Tenant's good faith rent . It is further agreed and
understood that such action will not guarantee acceptance of this Lease by
Landlord, but, in the event Landlord does not accept this Lease, such deposit
will be promptly refunded in full to Tenant. This Lease will be effective only
after Tenant has received a copy fully executed by both Landlord and Tenant.
33. GOVERNING LAW
33.01 This Lease is governed by and construed in accordance with the laws
of the State of Nevada, and venue of any suit will be in the county where the
Premises are located unless the Premises are not located in Nevada in which case
the venue will be Washoe County in the State of Nevada.
34. NEGOTIATED TERMS
34.01 This Lease is the result of the negotiations of the parties and has
been agreed to by both Landlord and Tenant after prolonged discussion.
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<PAGE>
35. SEVERABILITY
35.01 If any provision of this Lease is found to be unenforceable, all
other provisions shall remain in full force and effect.
36. BROKERS
36.01 Each party (the "Representing Party") warrants to the other party
that it has had no dealings with any broker or agent in connection with this
Lease, except --None-- and covenants to pay, hold harmless and indemnify the
other party from and against any and all cost, expense or liability for any
compensation, commissions and charges claimed by any broker or agent as a result
of the Representing Party, other than any identified above, with respect to this
Lease or its negotiation.
37. QUIET POSSESSION
37.01 Tenant, upon paying the rentals and other payments herein required
from Tenant, and upon Tenant's performance of all of the terms, covenants and
conditions of this Lease on its part to be kept and performed, may quietly have,
hold and enjoy the Premises during the Term of this Lease without disturbance
from Landlord or from any other person claiming through Landlord.
38. MISCELLANEOUS PROVISIONS
38.01 Whenever the singular number is used in this Lease and when required
by the context, the same will include the plural, and the masculine gender will
include the feminine and neuter genders, and the word "person" will include
corporation, firm, partnership, or association. If there is more than one
Tenant, the obligations imposed upon Tenant under this Lease will be joint and
several.
38.02 The headings or titles to paragraphs of this Lease are not a part of
this Lease and will have no effect upon the construction or interpretation of
any part of this Lease.
38.03 This instrument contains all of the agreements and conditions made
between the parties to this Lease. Tenant acknowledges that neither Landlord nor
Landlord's agents have made any representation or warranty as to the suitability
of the Premises to the conduct of Tenant's business. Any agreements, warranties
or representations not expressly contained herein will in no way bind either
Landlord or Tenant, and Landlord and Tenant expressly waive all claims for
damages by reason of any statement, representation, warranty, promise or
agreement, if any, not
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<PAGE>
contained in this Lease.
38.04 Time is of the essence of each term and provision of this Lease.
38.05 Except as otherwise expressly stated, each payment required to be
made by Tenant is in addition to and not in substitution for other payments to
be made by Tenant.
38.06 Subject to Article 18, the terms and provisions of this Lease are
binding upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of Landlord and Tenant.
38.07 All covenants and agreements to be performed by Tenant under any of
the terms of this Lease will be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent.
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<PAGE>
38.08 In consideration of Landlord's covenants and agreements hereunder,
Tenant hereby covenants and agrees not to disclose any terms, covenants or
conditions of this Lease to any other party without the prior written consent of
Landlord.
38.09 Tenant agrees it will provide to Landlord such financial information
as Landlord may reasonably request for the purpose of obtaining construction
and/or permanent financing for the Premises.
38.10 If Tenant shall request Landlord's consent and Landlord shall fail or
refuse to give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent; Tenant's sole remedy shall be an action
for specific performance or injunction, and such remedy shall be available only
in those cases where Landlord has expressly agreed in writing not to
unreasonably withhold its consent or where as a matter of law Landlord may not
unreasonably withhold its consent.
38.11 Whenever a day is appointed herein on which, or a period of time is
appointed in which, either party is required to do or complete any act, matter
or thing, the time for the doing or completion thereof shall be extended by a
period of time equal to the number of days on or during which such party is
prevented from, or is reasonably interfered with, the doing or completion of
such act, matter or thing because of labor disputes, civil commotion, war,
warlike operation, sabotage, governmental regulations or control, fire or other
casualty, inability to obtain materials, or to obtain fuel or energy, weather or
other acts of God, or other causes beyond such party's reasonable control
(financial inability excepted); provided, however, that nothing contained herein
shall excuse Tenant from the prompt payment of any Rent or charge required of
Tenant hereunder.
38.12 No slot machine or other gambling game shall be permitted on the
Premises without the prior written consent of Landlord. The Premises shall not
be used for any "adult bookstore" or "adult motion picture theater" as said
terms are defined in NRS 278.0221, or any similar use, notwithstanding any local
zoning codes or ordinances or any other provisions of law to the contrary
permitting such use.
39. CHANGE ORDERS. In the event Tenant requests and\or approves changes in the
scope the work being provided by or through Landlord Tenant agrees to pay all
the direct and indirect costs of additional work at the time it gives such
approval. In the event that the aggregate cost of additional work provided under
this Lease is ten thousand dollars ($10,000.00) or more, or in excess of two
months rent, whichever is less, then Landlord may accept payment of one half of
the cost of additional work at the time of approval of said change order by the
Tenant, and payment of the balance to be paid at the time the additional work is
substantially completed.
40. SPECIAL PROVISIONS
40.01 Special provisions of this Lease number 41 through 42 and Exhibits
"A", "B", "C", "D", and "F" are attached hereto and made a part hereof. If none,
so state in the following space: .
41. OPTIONS TO EXTEND LEASE TERM:
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<PAGE>
41.01 Tenant is hereby granted two (2) options (the "Options") to extend
the Lease Term for an additional term of five (5) years each (the "Extensions"),
the first beginning on March 1, 2002, and expiring on February 28, 2007, (unless
terminated sooner pursuant to any other terms or provisions of the Lease), and
the second beginning on March 1, 2007, and expiring on February 28, 2012,
(unless terminated sooner pursuant to any other terms or provisions of the
Lease), on all of the same terms and conditions as set forth in the Lease, but
at an adjusted rent as set forth in Section 41.02 below (and without any
additional options to extend the Lease Term after the expiration of the
Extensions). The Options may be exercised by Tenant only by delivery of written
notice to Landlord, which notice must be received by Landlord at least one
hundred eighty (180) days before the expiration of the original Lease Term or
the first Option term set forth in Section 1.06 above. If Tenant fails to timely
deliver such written notice, or if this Lease is terminated pursuant to any
other terms or provision of this Lease prior to the expiration of the original
Lease Term or the first Option term, the Options shall lapse, and Tenant shall
have no right to extend the Lease Term. The Options shall be exercisable by
Tenant on the express conditions that (i) at the time of delivery of Tenant's
notice of its election to exercise the Option, and at all times prior to the
commencement of the Extension, Tenant shall not be in default under this Lease,
(ii) Tenant has not previously been in default (whether or not any such default
has been timely cured) under this Lease on more than three (3) occasions during
the Lease Term, and (iii) Tenant has not assigned this Lease nor sublet all or
any part of the Premises, it being understood that the Option is personal to the
original named Tenant under this Lease. In the event of any such assignment or
sublease, the Option shall lapse and shall be null and void and of no further
force or effect.
41.02 The rental at the beginning of each of these Option periods shall be
at the then "Fair Market" rate, and said rental rates shall be adjusted at the
end of the first 30 months of each Option period by the increase in the Consumer
Price Index, hereafter called CPI, over the preceding thirty (30) month period.
The CPI shall mean the average for "all items" shown on the U. S. City Average
for Urban Wage Earners and Clerical Workers (including Single Workers), all
items, groups, sub-groups and special groups of items as promulgated by the
Bureau of Labor Statistics of the U. S. Department of Labor. In no event,
however, shall the rental during the Option period be less than the Base Rent
due during the previous lease term.
42. OPTION TO MOVE TO A LARGER FACILITY. At any time during the lease term,
provided Tenant is not in default of this lease, Tenant shall have the Option to
Move to a larger facility owned by Landlord provided Tenant gives Landlord a
minimum of one hundred eighty (180) days prior written notice of its desire to
do so; that the larger space is a minimum of 50% larger than the space covered
in this Lease, i.e., a minimum of 97,632 square feet; and that Landlord has such
larger space available for lease. The present lease would automatically
terminate upon commencement of the new lease for the larger facility.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year indicated by Landlord's execution date as written below.
Individuals signing on behalf of a Tenant warrant that they have the
authority to bind their principals. In the event that Tenant is a corporation,
Tenant shall deliver to Landlord, concurrently with the execution and delivery
of this Lease, a certified copy of corporate resolutions adopted by Tenant
authorizing said corporation to enter into and perform the Lease and authorizing
the execution and delivery of the Lease on behalf of the corporation by the
parties executing and delivering this Lease. THIS LEASE, WHETHER OR NOT EXECUTED
BY TENANT, IS SUBJECT TO ACCEPTANCE AND EXECUTION BY LANDLORD, ACTING ITSELF OR
BY ITS AGENT ACTING THROUGH ITS PRESIDENT, VICE PRESIDENT, OR ITS DIRECTOR OF
LEASING AND MARKETING.
Landlord: DP Operating Partnership,
L.P., a Delaware
partnership
Tenant: Brightpoint, Inc., a Delaware
corporation
By: _______________________________
Michael C. Dermody
Its: President
Date: ______________________________
(Execution Date)
By: _______________________________
Its: _______________________________
Date: ______________________________
(Execution Date)
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<PAGE>
Exhibit "A"
-----------
Premises
[SITE PLAN DEPICTING PREMISES AND PROJECT]
<PAGE>
EXHIBIT "B"
-----------
LANDLORD'S WORK
[PLANS DEPICTING LANDLORD'S WORK]
<PAGE>
Exhibit C
(Tenant Questionnaire)
TENANT QUESTIONNAIRE REGARDING USE OF
PREMISES AT 1450 East Greg Street, Sparks, Nevada 89431
Yes No
1. Will any manufacturing process be done on the subject [ ] [ ]
premises?
2. Do you or your company intend to use any internal
combustion engines greater than 50 hp at the subject
premises? [ ] [ ]
3. Do you or your company intend to use processes that
involve mixing, blending, or processing any solvents,
adhesives, paints or coatings? [ ] [ ]
4. Will your operation at the premises create any dusts or
smoke? [ ] [ ]
5. At the subject premises, will you or your company
refine any liquids or solids? Reclaim any metals? [ ] [ ]
6. Will you or your company plate or coat anything at the
subject premises? [ ] [ ]
7. Will any process be used on the Premises which requires
equipment for the heating of materials (i.e., boilers,
furnaces, broilers, baking ovens, etc.)? [ ] [ ]
8. Will you handle or store solvents or motor fuels on the
premises? [ ] [ ]
9. Will you use or store any acids at the premises? [ ] [ ]
10. Will you or your company use any chemical processes at
the premises? [ ] [ ]
11. Will you or your company use any solvents for clean up? [ ] [ ]
12. Is your business a dry cleaner, restaurant, body shop,
gasoline station, printer or part coater? [ ] [ ]
13. Will you or your company use any process which requires
lead or melting or soldering with lead or lead alloys? [ ] [ ]
14. Do you or your company have a Hazardous Materials
Management plan? [ ] [ ]
If you have marked "Yes" to any of the questions as to processes, chemicals,
including types and quantities, to be used on the Premises, please give a more
detailed explanation below and on a second page if necessary.
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Name of person completing form:_________________________________________________
Company name and address:_______________________________________________________
________________________________________________________________________________
Exhibit "C" to lease dated December 20, 1996,
by and between by and between DP Operating
Partnership, L.P. and Brightpoint, Inc.
<PAGE>
EXHIBIT "D"
RULES AND REGULATIONS
It is further agreed that the following rules and regulations shall be and are
hereby made a part of this Lease, and the Tenant agrees that its employees and
agents, or any others permitted by the Tenant to occupy or enter said Premises,
will at all times abide by said rules and regulations and that a default in the
performance and observance thereof shall operate the same as any other defaults
herein:
1. The sidewalks, entries, and driveways shall not be obstructed by the
Tenant, or its agents, or used by them for any purpose other than ingress
and egress to and from their Premises. Landlord may remove any such
obstruction or thing (unauthorized by Landlord) without notice or
obligation to Tenant.
2. Tenant shall not place any movable objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped area or other areas
outside of said Premises, or on the roof of said Premises.
3. No person shall disturb the occupants of this or adjoining Buildings or
Premises by the use of any radio or musical instrument or by the making of
loud or improper noises.
4. Parking any type of recreational vehicles is specifically prohibited. No
vehicle of any type shall be stored in the parking areas at any time. In
the event that a vehicle is disabled, it shall be removed within 48 hours.
There shall be no "For Sale" or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated parking
areas in conformation with all signs and other markings.
5. Lessee shall not use, keep or permit to be used or to be kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises
to be occupied or used in a manner offensive or objectionable to Lessor or
other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other Lessees or those having
business therein. Lessee shall maintain the leased Premises free from mice,
bugs, and ants attracted by food, water or storage materials.
6. Lessor reserves the right to exclude or expel from the complex any person
who in the judgment of the Lessor, is intoxicated or under the influence of
liquor or drugs or who shall in any manner do any act in violation of the
Rules and Regulations of the said project.
7. Lessee shall give Lessor prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment or any dangerous or hazardous
condition existing on the property.
8. No outside storage of pallets, boxes, cartons, drums or any other
containers or materials used in shipping or transport of goods is allowed.
Tenant shall place all refuse in proper receptacles provided by Tenant at
Tenant's expense on the Premises or inside enclosures (if any) provided by
Landlord for the Building, and shall keep sidewalks and driveways outside
the Building and lobbies, corridor stairwells, ducts or shafts of the
Building free of all refuse.
9. All moveable trash receptacles provided by the trash disposal firm must be
kept in the trash enclosure areas where provided for that purpose.
<PAGE>
RULES AND REGULATIONS
Page 2.
10. The Landlord reserves the right to make such other and further reasonable
rules and regulations as in its judgment may from time to time be needful
and desirable for the safety, care and cleanliness of the Premises and for
the preservation of good order therein.
11. Lessee shall not use any method of heating or air conditioning other than
that supplied by Lessor without the consent of Lessor.
12. No person shall go on the roof without Lessor's permission.
13. All goods, including material used to store goods, delivered to the
Premises of Lessee shall be immediately moved into the Premises and shall
not be left in parking or receiving areas overnight.
14. Tenants shall not do or permit anything to be done in their Premises or
bring or keep anything therein which will in any way obstruct or interfere
with the rights of other Tenants. or do, or permit anything to be done in
their Premises which shall, in the judgement of the Landlord or its
manager, in any way injure or annoy them, or conflict with the laws
relating to fire, or with the regulations of the fire department or with
any insurance policy upon the Building or any part thereof or any contents
therein or conflict with any of the of the Rules and Ordinances of the
public Building or health authorities.
15. All electrical equipment used by Tenants shall be U.L. approved. Nothing
shall be done or permitted in Tenant's Premises, and nothing shall be
brought into or kept in the Premises which would impair or interfere with
any of the Building services or the proper and economic heating, cooling,
cleaning or other servicing of the Building or the Premises. Tenant's
computers and other equipment are hereby expressly allowed.
16. Tenants shall not install or operate any steam or gas engine or boiler, or
carry on any mechanical business in the Building. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not
be brought into the Building. Tenants shall not use any other method of
heating than that supplied by Landlord.
17. Tenants shall not remove any carpet, or wall coverings, window blinds, or
window draperies in their Premises without the prior written approval from
Landlord.
18. No animals, birds or pets (other than seeing-eye dogs) of any kind shall be
allowed in Tenant's Premises or Building.
19. The water closets, urinals, waste lines, vents or flues of the Building
shall not be used for any purpose other than those for which they were
constructed, and no rubbish, acids, vapors, newspapers or other such
substances of any kind shall be thrown into them. The expense caused by any
breakage, stoppage or damage resulting from a violation of this rule by any
Tenant, its employees, visitors, guests or licensees, shall be paid by
Tenant.
<PAGE>
RULES AND REGULATIONS
Page 3.
20. All decorating, carpentry work, or any labor required for the installation
of Tenant's (a) equipment, such as an alarm system, computer,
telephone/telegraph equipment, lines, cables or other electrical devices;
or (b) furnishings or other property shall be performed at Tenants expense,
and will not require Landlord's prior verbal or written approval. Should
any such work require alterations that affect the heating, ventilation, air
conditioning, plumbing, electrical or mechanical systems of the Building,
the roof, or the structure of the Building, Landlord's prior written
approval will be required. Structural changes are defined as changes that
affect a vital and substantial portion of the Premises, changing its
characteristic appearance, fundamental purpose of its erection or uses, or
a change of such a nature as to affect the very realty itself,
extraordinary in scope and effect, or unusual in expenditure.
21. The Premises shall not be used or permitted to be used for residential,
lodging or sleeping purposes.
22. Except as permitted by landlord, Tenant shall not mark upon, paint signs
upon, cut, drill into, drive nails or screws into, or in any way deface the
walls, ceilings, partitions or floors of their Premises or of the Building,
and the repair cost of any defacement, damage, or injury caused by Tenant,
its agents or employees shall be paid for by the Tenant.
23. The cost of repairing any damage to the public partitions of the Building
or the public facilities, or to any facilities used in common with other
tenants, caused by any Tenant or the employees, licensees, agents or
invitees of the Tenant, shall be paid by such Tenant.
24. Landlord reserves the right to restrict or prohibit canvassing, soliciting
or peddling in the Building.
Exhibit "D" to lease dated December 20, 1996,
by and between by and between DP Operating
Partnership, L.P. and Brightpoint, Inc.
____________________________________________
DP Operating Partnership, L.P.
____________________________________________
Brightpoint, Inc.
<PAGE>
Exhibit "F"
Sign Criteria
Exhibit "F" to lease dated December 20, 1996,
by and between by and between DP Operating
Partnership, L.P. and Brightpoint, Inc.
Exhibit (11) Statement Re: Computation of Earnings Per Share
(000's omitted, except per share data)
Three Months Ended
March 31
1996 1997
------- -------
Primary:
Average shares outstanding 19,899 22,003
Net effect of stock options and warrants - based
on the treasury stock method using average
market price 621 1,184
------- -------
Totals 20,520 23,187
======= =======
Historical income before income taxes and
minority interest $ 4,067 $ 8,215
Deduct pro forma income taxes 1,590 2,443
Deduct minority interest -- 356
------- -------
Pro forma net income (A) $ 2,477 $ 5,416
======= =======
Per share amount $ 0.12 $ 0.23
======= =======
Fully diluted:
Average shares outstanding 19,899 22,003
Net effect of stock options and warrants - based
on the treasury stock method using the higher
of the quarter end market price or average
market price 696 1,184
------- -------
Totals 20,595 23,187
======= =======
Historical income before income taxes and
minority interest $ 4,067 $ 8,215
Deduct pro forma income taxes 1,590 2,443
Deduct minority interest -- 356
------- -------
Pro forma net income (A) $ 2,477 $ 5,416
======= =======
Per share amount $ 0.12 $ 0.23
======= =======
(A) 1996 includes a provision for income taxes as if Allied Communications had
been subject to income taxes for the entire period presented.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
QUARTERLY FORM 10-Q FOR THE PERIOD ENDED MARCH 31, 1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> MAR-31-1997
<CASH> 19,153
<SECURITIES> 0
<RECEIVABLES> 111,985
<ALLOWANCES> 1,063
<INVENTORY> 105,790
<CURRENT-ASSETS> 244,073
<PP&E> 14,185
<DEPRECIATION> 1,788
<TOTAL-ASSETS> 276,258
<CURRENT-LIABILITIES> 72,300
<BONDS> 0
221
0
<COMMON> 0
<OTHER-SE> 100,277
<TOTAL-LIABILITY-AND-EQUITY> 276,258
<SALES> 199,169
<TOTAL-REVENUES> 199,169
<CGS> 183,167
<TOTAL-COSTS> 183,167
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,123
<INCOME-PRETAX> 8,215
<INCOME-TAX> 2,443
<INCOME-CONTINUING> 5,416
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,416
<EPS-PRIMARY> .23
<EPS-DILUTED> .23
</TABLE>
Exhibit 99
CAUTIONARY STATEMENTS
From time to time, the Company may publish, verbally or in written form,
forward-looking statements relating to such matters as anticipated financial
performance, business prospects, industry technological developments, new
services, research and development activities and similar matters. In fact, this
Form 10-Q (or any other periodic reporting documents required by the 1934 Act)
may contain forward-looking statements reflecting the current views of the
Company concerning potential future events or developments. The Private
Securities Litigation Reform Act of 1995 (the "Act") provides a "safe harbor"
for forward-looking statements. These Cautionary Statements are being made
pursuant to the provisions of the Act and with the intention of obtaining the
benefits of the "safe harbor" provisions of the Act. In order to comply with the
terms of the "safe harbor" provisions, the Company cautions investors that any
forward-looking statements made by the Company are not guarantees of future
performance and that a variety of factors could cause the Company's actual
results and experience to differ materially from the anticipated results or
other expectations expressed in the Company's forward-looking statements. The
risks and uncertainties which may affect the operations, performance,
development and results of the Company's business include, but are not limited
to, the following: ability to hire and retain key personnel; successful
integration of future acquisitions; relationships with and dependence on third
party wireless communication equipment suppliers; uncertainties relating to
economic conditions in markets throughout the world in which the Company
operates; uncertainties relating to government and regulatory policies;
uncertainties relating to customer plans and commitments; the Company's
dependence on the wireless communications industry; the pricing and availability
of wireless communications equipment, materials and inventories; technological
developments and obsolescence in the wireless communications industry;
performance issues with the Company's suppliers and customers; governmental
export and import policies; global trade policies; worldwide political
stability and economic growth; regulatory uncertainties; rapid technology
changes; the highly competitive environment in which the Company operates; the
entry of new, well-capitalized competitors into the Company's markets; changes
in the Company's capital structure and cost of capital; and uncertainties
inherent in international operations and foreign currency fluctuations. The
words "believe", "expect", "anticipate", "project", "plan" and similar
expressions identify forward-looking statements. Readers are cautioned not to
place undue reliance on these forward-looking statements, which speak only as of
the date the statement was made.
