<PAGE> 1
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: June 30, 1999
-----------------------
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 of (I.R.S. Employer Identification No.)
incorporation or organization
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 August 13, 1999: 53,351,000
shares
<PAGE> 2
BRIGHTPOINT, INC.
INDEX
<TABLE>
<CAPTION>
PAGE NO.
-------
<S> <C>
PART I. FINANCIAL INFORMATION
ITEM 1
Consolidated Statements of Operations
Three and Six Months Ended June 30, 1998 and 1999.............................3
Consolidated Balance Sheets
December 31, 1998 and June 30, 1999...........................................4
Consolidated Statements of Cash Flows
Six Months Ended June 30, 1998 and 1999.......................................5
Notes to Consolidated Financial Statements.............................................6
ITEM 2
Management's Discussion and Analysis of
Financial Condition and Results of Operations................................15
ITEM 3
Quantitative and Qualitative Disclosures
About Market Risk............................................................26
PART II. OTHER INFORMATION
ITEM 1
Legal Proceedings.....................................................................27
ITEM 4
Submission of Matters to a Vote of Security Holders...................................27
ITEM 6
Exhibits and Reports on Form 8-K......................................................27
Signatures..............................................................................................29
</TABLE>
<PAGE> 3
BRIGHTPOINT, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30 June 30
1998 1999 1998 1999
------------- -------------- ------------- ---------------
<S> <C> <C> <C> <C>
Revenue $ 329,813 $ 413,989 $ 673,146 $ 786,708
Cost of revenue 299,308 393,244 612,564 737,576
------------- -------------- ------------- ---------------
Gross profit 30,505 20,745 60,582 49,132
Selling, general and administrative expenses 14,601 36,284 29,258 63,271
Restructuring and other charges - 65,517 - 65,517
------------- -------------- ------------- ---------------
Income (loss) from operations 15,904 (81,056) 31,324 (79,656)
Net investment gain - - 572 -
Interest expense 3,027 3,812 6,439 7,100
------------- -------------- ------------- ---------------
Income (loss) before income taxes, minority interest
and accounting change 12,877 (84,868) 25,457 (86,756)
Income taxes 3,863 5,646 7,637 5,003
------------- -------------- ------------- ---------------
Income (loss) before minority interest and
accounting change 9,014 (90,514) 17,820 (91,759)
Minority interest (44) - (81) (33)
------------- -------------- ------------- ---------------
Income (loss) before accounting change 9,058 (90,514) 17,901 (91,726)
Cumulative effect of accounting change, net of tax - - - (14,065)
------------- -------------- ------------- ---------------
Net income (loss) $ 9,058 $ (90,514) $ 17,901 $ (105,791)
============= ============== ============= ===============
Basic per share:
Income (loss) before accounting change $ 0.17 $ (1.70) $ 0.35 $ (1.73)
Cumulative effect of accounting change, net of tax - - - (0.26)
------------- -------------- ------------- ---------------
Net income (loss) $ 0.17 $ (1.70) $ 0.35 $ (1.99)
============= ============== ============= ===============
Diluted per share:
Income (loss) before accounting change $ 0.17 $ (1.70) $ 0.33 $ (1.73)
Cumulative effect of accounting change, net of tax - - - (0.26)
------------- -------------- ------------- ---------------
Net income (loss) $ 0.17 $ (1.70) $ 0.33 $ (1.99)
============= ============== ============= ===============
Weighted average common shares outstanding:
Basic 51,979 53,304 51,597 53,176
============= ============== ============= ===============
Diluted 53,725 53,304 53,580 53,176
============= ============== ============= ===============
</TABLE>
See accompanying notes.
3
<PAGE> 4
BRIGHTPOINT, INC.
CONSOLIDATED BALANCE SHEETS
(AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
December 31, 1998 June 30, 1999
------------------- ----------------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 49,528 $ 39,015
Accounts receivable (less allowance for doubtful
accounts of $6,045 in 1998 and $4,681 in 1999) 278,947 210,277
Inventories 156,333 135,464
Other current assets 64,417 45,520
------------------- ----------------
Total current assets 549,225 430,276
Property and equipment 48,270 36,509
Goodwill and other intangibles 83,467 57,159
Other assets 33,488 13,577
------------------- ----------------
Total assets $ 714,450 $ 537,521
=================== ================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and accrued expenses $ 188,176 $ 161,559
------------------- ----------------
Total current liabilities 188,176 161,559
Long-term debt 286,706 243,260
Stockholders' equity:
Preferred stock, $0.01 par value: 1,000 shares
authorized; no shares issued or outstanding - -
Common stock, $0.01 par value: 100,000 shares
authorized; 52,821 and 53,335 issued and
outstanding in 1998 and 1999, respectively 528 533
Additional paid-in capital 184,366 189,659
Retained earnings (deficit) 63,067 (42,724)
Accumulated other comprehensive loss (8,393) (14,766)
------------------- ----------------
Total stockholders' equity 239,568 132,702
------------------- ----------------
Total liabilities and stockholders' equity $ 714,450 $ 537,521
=================== ================
</TABLE>
See accompanying notes.
4
<PAGE> 5
BRIGHTPOINT, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(AMOUNTS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended June 30
1998 1999
------------ ------------
<S> <C> <C>
OPERATING ACTIVITIES
Net income (loss) $ 17,901 $ (105,791)
Adjustments to reconcile net income (loss) to net cash
provided (used) by operating activities:
Depreciation and amortization 4,012 8,386
Amortization of debt discount 2,103 3,554
Cumulative effect of accounting change, net of tax -- 14,065
Net investment gain (572) --
Restructuring and other charges -- 84,972
Minority interest and deferred taxes (130) (33)
Changes in operating assets and liabilities, net of
effects from acquisitions:
Accounts receivable 31,606 38,836
Inventories (49,868) 9,233
Other current assets (2,975) (3,421)
Accounts payable and accrued expenses (27,098) (18,337)
------------ ------------
Net cash provided (used) by operating activities (25,021) 31,464
INVESTING ACTIVITIES
Capital expenditures (15,068) (5,685)
Sale of marketable securities, net of transaction costs 3,263 --
Purchase acquisitions, net of cash acquired (33,152) (5,860)
Decrease in funded contract financing receivables 7,072 12,351
Increase in other assets (13,632) (780)
------------ ------------
Net cash provided (used) by investing activities (51,517) 26
FINANCING ACTIVITIES
Net payments on revolving credit facility (66,565) (47,000)
Proceeds from issuance of convertible notes 166,088 --
Proceeds and tax benefits from exercise of stock options
and warrants 14,612 5,119
------------ ------------
Net cash provided (used) by financing activities 114,135 (41,881)
Effect of exchange rate changes on cash and cash equivalents (518) (122)
------------ ------------
Net increase (decrease) in cash and cash equivalents 37,079 (10,513)
Cash and cash equivalents at beginning of period 2,941 49,528
------------ ------------
Cash and cash equivalents at end of period $ 40,020 $ 39,015
============ ============
</TABLE>
See accompanying notes.
5
<PAGE> 6
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. Basis of Presentation
GENERAL
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. The preparation of financial statements requires management to
make estimates and assumptions that affect amounts reported in the financial
statements and accompanying notes. Actual results are likely to differ from
those estimates, but management does not believe such differences will
materially affect the Company's financial position or results of operations.
In the opinion of the Company, all adjustments considered necessary to
present fairly the consolidated financial statements have been included.
The consolidated financial statements include the accounts of the Company and
its subsidiaries. Intercompany accounts and transactions have been eliminated
in consolidation. Certain amounts in the 1998 consolidated financial
statements have been reclassified to conform to the 1999 presentation.
The consolidated balance sheet at December 31, 1998 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 unaudited
consolidated statements of operations for the three and six months ended June
30, 1999 and the unaudited consolidated statement of cash flows for the six
months ended June 30, 1999 are not necessarily indicative of the results and
cash flows 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, 1998.
NET INCOME (LOSS) PER SHARE
Basic net income (loss) per share is based on the weighted average number of
common shares outstanding during each period, and diluted net income (loss)
per share is based on the weighted average number of common shares and
dilutive common share equivalents outstanding during each period. The
Company's common share equivalents consist of shares of common stock issuable
upon exercise of outstanding stock options and stock warrants and conversion
of subordinated convertible notes. For the three and six month periods ended
June 30, 1999, none of the Company's stock options and stock warrants were
dilutive. The subordinated convertible notes were not dilutive for the three
and six month periods ended June 30, 1998 and 1999.
6
<PAGE> 7
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
1. Basis of Presentation (continued)
COMPREHENSIVE INCOME (LOSS)
In accordance with Statement of Financial Accounting Standards No. 130,
Reporting Comprehensive Income (SFAS No. 130), the Company is required to report
Comprehensive Income which is comprised of net income and other comprehensive
income. The statement requires unrealized gains or losses on the Company's
available-for-sale securities, unrealized gains or losses on derivative
financial instruments and currency translations of foreign investments, which
prior to adoption were reported separately in stockholders' equity, to be
included as components of "other comprehensive income." During the three months
ended June 30, 1998 and 1999, comprehensive income (loss) totaled $6,917,000 and
($86,479,000), respectively and during the six months ended June 30, 1998 and
1999 totaled $16,388,000 and ($112,164,000), respectively.
DERIVATIVE FINANCIAL INSTRUMENTS
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, Accounting for Derivative Instruments
and Hedging Activities (SFAS No. 133). On July 1, 1998, the Company adopted SFAS
No. 133 and such adoption did not have a material impact on the Company's net
income or stockholders' equity.
SFAS No. 133 requires that all derivative instruments be recorded on the balance
sheet at fair value. On the date derivative contracts are entered into, the
Company designates the derivative as either (i) a hedge of the fair value of a
recognized asset or liability or of an unrecognized firm commitment (fair value
hedge), (ii) a hedge of a forecasted transaction or of the variability of cash
flows to be received or paid related to a recognized asset or liability (cash
flow hedge) or (iii) a hedge of a net investment in a foreign operation (net
investment hedge).
Changes in the fair value of derivatives are recorded each period in current
earnings or other comprehensive income, depending on whether a derivative is
designated as part of a hedge transaction and, if it is, depending on the type
of hedge transaction. For fair value hedge transactions, changes in the fair
value of the derivative instrument are generally offset in the income statement
by changes in the fair value of the item being hedged. For cash-flow hedge
transactions, changes in the fair value of the derivative instrument are
reported in other comprehensive income. For net investment hedge transactions,
changes in the fair value are recorded as a component of the foreign currency
translation account which is also included in other comprehensive income. The
gains and losses on cash flow hedge transactions that are reported in other
comprehensive income are reclassified to earnings in the periods in which
earnings are impacted by the variability of the cash flows of the hedged item.
The impact of ineffective hedges is recognized in current period results of
operations.
7
<PAGE> 8
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
2. Restructuring and Other Charges
During the second quarter of 1999, the Company implemented a broad restructuring
plan (the Plan) which it believes will improve its position for long-term
success by eliminating or restructuring identified non-performing business
activities and improving the Company's cost structure. The Plan was approved by
the Company's Board of Directors on June 30, 1999 and included the disposal of
operations in the United Kingdom, Poland, Taiwan and Argentina; termination of
the Company's investments in two joint operations in China; disposal of its 67%
interest in a Hong Kong-based accessories company; downsizing of selected
operating subsidiaries and cost reduction initiatives in its regional and
corporate operations. In total, the Plan will result in a reduction in headcount
of approximately 350 employees. This headcount reduction occurred in most areas
of the Company, including marketing, operations and administration; however,
substantially all of the reductions occurred in the Company's foreign operating
divisions.
As a result of the Plan the Company recorded restructuring and other charges of
approximately $85 million during the three months ended June 30, 1999. These
charges were comprised of approximately $80.1 million in non-cash asset
impairments and write-offs and $4.9 million in costs that have been or will be
paid in cash. The non-cash asset impairments and write-offs (displayed below)
primarily represent losses incurred to write down certain assets of operations
affected by the Plan to their net realizable value (either in liquidation or
abandonment depending on the provisions of the Plan).
DESCRIPTION OF CHARGE AMOUNT
- ----------------------------------------------------------- -------------
(in millions)
NON-CASH:
Impairment of goodwill and investments in joint operations $ 40.1
Impairment of accounts receivable and inventories of
exited operations or activities 15.0
Impairment of fixed assets 6.4
Impairment of income tax assets 4.5
Expected loss on disposal of operations held for sale 3.5
Write-off of cumulative foreign currency translation adjustments 2.9
Other losses and impairments resulting from activities Exited 7.7
--------
Subtotal Non-Cash 80.1
--------
CASH:
Employee termination costs 2.6
Lease termination costs 1.4
Other exit costs .9
--------
Subtotal Cash 4.9
--------
Total $ 85.0
========
8
<PAGE> 9
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
2. Restructuring and Other Charges (continued)
The aforementioned charges have been recorded within the following captions in
the Consolidated Statements of Operations for the three and six months ended
June 30, 1999 (in millions):
Cost of revenue $ 7.4
Selling, general and administrative expenses 7.6
Restructuring and other charges 65.5
Income taxes 4.5
=========
$ 85.0
=========
The Company expects to complete all of the actions required by the Plan prior to
December 31, 1999. As of June 30, 1999 the Company had restructuring reserves of
approximately $3.9 million related to unpaid employee termination, lease
termination and other exit costs. As a result of the actions taken under the
Plan the Company had approximately $20.3 million in assets held for disposal as
of June 30, 1999 which are classified in the Consolidated Balance Sheets under
the caption "Other current assets."
3. Cumulative Effect of Accounting Change
In April 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-5, Reporting the Costs of Start-up Activities (SOP
98-5), which requires that such costs (as broadly defined in the Statement) be
expensed as incurred. SOP 98-5 became effective for years beginning after
December 15, 1998, and the initial application must be reported as the
cumulative effect of a change in accounting principle. The Company's application
of SOP 98-5 in the first quarter of 1999 resulted in the recording of a
cumulative effect of a change in accounting principle of approximately $14.1
million, net of the applicable income tax benefit. This charge represents the
unamortized portion of previously-capitalized organization, start-up,
pre-operating and integrated logistics services contract implementation costs
primarily incurred as a part of the Company's in-country expansion activities
and long-term contract activity from 1996 through 1998. The Company believes
that the on-going application of SOP 98-5 will not have a material adverse
effect on the Company's financial position, results of operations or cash flows.
9
<PAGE> 10
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
4. Acquisitions and Divestitures
During the six months ended June 30, 1999, the Company acquired Cellular
Services S.A., a provider of integrated logistics services to the wireless
communications industry in Brazil. This transaction was accounted for as a
purchase and accordingly the consolidated financial statements include the
operating results of this business from the effective date of acquisition. The
purchase price consisted of $3.8 million in cash, the assumption of certain
liabilities and contingent consideration of up to $20.5 million in cash based
upon the future operating results of this business over the next five years. The
resulting goodwill of approximately $4.8 million is being amortized over 30
years. In addition, during the second quarter of 1999, the Company completed the
sale of Wavetech Network Services Limited, a subsidiary of Wavetech Limited in
the United Kingdom. The Company had previously accounted for the estimated loss
on the sale of this business as a part of the purchase price in its 1998
acquisition of Wavetech Limited. The impact of the ultimate divestiture of this
business did not result in a material adjustment to the goodwill originally
recorded.
During the six months ended June 30, 1998, the Company made acquisitions of
businesses located in Brazil, the United Kingdom, the Netherlands, Germany,
Poland, United States, Taiwan, France, Mexico and New Zealand. Each of these
transactions was accounted for as a purchase and accordingly the consolidated
financial statements include the operating results of each business from the
effective date of its acquisition. The aggregate purchase price for these
businesses consisted of 398,008 unregistered shares of the Company's common
stock (valued at $5.1 million), $37.6 million in cash, the assumption of certain
liabilities and contingent consideration of up to $10.7 million in cash and $15
million in common stock based upon future operating results of the applicable
business during the two years following the acquisition.
The impact of the Company's acquisitions was not material in relation to the
Company's results of operations for the year ended December 31, 1998 and the six
months ended June 30, 1998 and 1999. Consequently, pro forma information is not
presented.
10
<PAGE> 11
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
5. Long-term Debt
On June 24, 1997, the Company entered into a $200 million five-year senior
secured revolving line of credit facility with The First National Bank of
Chicago and Bank One, Indiana, NA, as agent for a group of banks (collectively,
the Banks). On May 13, 1998, the Company and the Banks amended and restated this
agreement resulting in a $230 million facility with substantially the same
terms. On July 27, 1999, the Company and the Banks further amended and restated
this agreement resulting in an overall reduction in the facility to $175 million
(Restated Facility). The Restated Facility matures in June 2002 and generally
bears interest, at the Company's option, at (i) the greater of the agent bank's
corporate base rate plus a spread of 0 to 100 basis points and the Federal Funds
effective rate plus 0.50% or (ii) the rate at which deposits in United States
dollars or Eurocurrencies are offered by the agent bank to first-class banks in
the London interbank market plus a spread ranging from 140 to 250 basis points
(based on the Company's leverage ratio) plus a spread reserve, if any.
Borrowings by the Company's non-United States subsidiaries bear interest at
various rates based on the type and term of advance selected and the prevailing
interest rates of the country in which the subsidiary is domiciled.
At June 30, 1999 there was approximately $62.0 million outstanding under the
line of credit, of which $42.0 million was denominated in foreign currencies, at
interest rates ranging from 4.1% to 6.6% (a weighted average rate of 5.3%). In
addition there was an aggregate of $20.4 million in letters of credit issued.
All of the Company's assets located in the United States and 65% of the capital
stock of certain of the Company's subsidiaries domiciled outside of the United
States are pledged to the Banks as collateral for the Restated Facility, and the
Company is substantially prohibited from incurring additional indebtedness.
Funding under the Restated Facility is limited by an asset coverage test, which
is measured monthly. In addition to certain net worth and other financial
covenants, the Company's Restated Facility limits or prohibits the Company,
subject to certain exceptions, from declaring or paying cash dividends, making
capital distributions or other payments to stockholders, merging or
consolidating with another corporation, or selling portions of its assets.
On March 11, 1998, the Company completed the issuance of zero-coupon,
subordinated, convertible notes due in the year 2018 (the Bonds) with an
aggregate face value of $380 million ($1,000 per Bond) and a yield to maturity
of 4.00%. The Bonds are subordinated to all existing and future senior
indebtedness (as defined in the indenture pursuant to which the Bonds were
issued) of the Company and all other liabilities, including trade payables, of
the Company's subsidiaries. The Bonds resulted in gross proceeds to the Company
of approximately $172 million (issue price of $452.89 per Bond) and require no
periodic cash payments of interest. The proceeds were used to reduce borrowings
under the Company's revolving credit facility and to invest in highly-liquid,
short-term investments pending use in operations. At June 30, 1999, the Bonds
had an accreted value of $181 million.
11
<PAGE> 12
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
5. Long-term Debt (continued)
Each Bond is convertible at the option of the holder any time prior to maturity.
Upon conversion, the Company, at its option, will deliver to the holder 19.109
shares of common stock per Bond or cash equal to the market value of such
shares. On or after March 11, 2003, the Bonds may be redeemed at any time by the
Company for cash equal to the issue price plus accrued original discount through
the date of redemption. In addition, each Bond may be redeemed at the option of
the holder on March 11, 2003, 2008 or 2013. The purchase price for each Bond at
these redemption dates is approximately $552, $673 and $820, respectively, which
is equal to the issue price plus accrued original discount through the date of
redemption. The Company may elect at its option to pay for such redemption in
cash or common stock, or any combination thereof equaling the purchase price.
6. Net Investment Gain
During the first quarter of 1998, the Company realized a gain on the sale of a
marketable equity security, representing income of a non-recurring nature. The
net gain after related transaction costs was approximately $0.6 million in 1998.
Excluding the impact of the net investment gain and related income taxes, net
income for the first half of 1998 would have been $17.6 million or $0.33 per
share.
7. Foreign Currency Devaluation
On January 13, 1999, the Brazilian government allowed the value of its currency,
the Real, to float freely against other currencies. Between that date and June
30, 1999, the Real's exchange rate to the U.S. dollar has declined
significantly. During the first six months of 1999, the average exchange rate
for the Real was approximately 34% lower than the average exchange rate in the
first six months of 1998. As nearly all the Company's transactions in Brazil are
Real-denominated, translating the results of operations of the Company's
Brazilian subsidiary into U.S. Dollars at devalued exchange rates resulted in a
lower contribution to consolidated revenues and operating income. Based on the
Real exchange rate to the U.S. Dollar on June 30, 1999, the Company's currency
translation of the foreign investment in its Brazilian subsidiary from the Real
(functional currency) to the U.S. Dollar resulted in a devaluation of
approximately $5.2 million. Currency translation adjustments resulting from
translating assets and liabilities from the functional currency to the U.S.
dollar are included as a component of other comprehensive income (loss) in
stockholders' equity.
12
<PAGE> 13
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
8. Operating Segments
The Company operates in markets worldwide and has four reportable segments as
defined by Statement of Financial Accounting Standards No. 131, Disclosures
about Segments of an Enterprise and Related Information (SFAS No. 131). These
reportable segments represent the Company's four divisions: Asia-Pacific; North
America; Europe, Middle East and Africa; and Latin America. These divisions all
generate revenues from sales of wireless handsets and related accessories and
from fees generated from the provision of integrated logistics services.
However, the divisions are managed separately because they operate in different
regions of the world.
The Company evaluates the performance of, and allocates resources to, these
segments based on income (loss) from operations. As discussed in Note 2 to the
Consolidated Financial Statements, the Company's restructuring Plan resulted in
significant charges, which materially affected certain operating segments. A
summary of the Company's operations by segment with and without the
restructuring charges is presented below (in thousands):
<TABLE>
<CAPTION>
1998 1999
------------------------------------ ------------------------------------------------------
REVENUES FROM REVENUES FROM
EXTERNAL INCOME FROM EXTERNAL INCOME (LOSS) INCOME (LOSS)
CUSTOMERS OPERATIONS CUSTOMERS FROM OPERATIONS FROM OPERATIONS
----------------- ------------------ --------------- ----------------- ------------------
(including (excluding
restructuring restructuring
costs) costs)
<S> <C> <C> <C> <C> <C>
THREE MONTHS ENDED JUNE 30:
Asia-Pacific $ 107,333 $ 3,848 $ 100,276 $ (37,649) $ (1,442)
North America 92,268 5,528 164,211 3,680 3,680
Europe, Middle East and Africa 95,674 3,697 84,565 (43,590) (2,755)
Latin America 34,538 2,831 64,937 (3,497) (64)
---------- ----------- ------------ ----------- ------------
$ 329,813 $ 15,904 $ 413,989 $ (81,056) $ (581)
---------- ----------- ------------ ----------- ------------
SIX MONTHS ENDED JUNE 30:
Asia-Pacific $ 237,051 $ 9,916 $ 201,530 $ (39,688) $ (3,481)
North America 165,823 8,335 321,232 8,670 8,670
Europe, Middle East and Africa 201,933 8,313 157,046 (45,772) (4,937)
Latin America 68,339 4,760 106,900 (2,866) 567
---------- ----------- ------------ ----------- ------------
$ 673,146 $ 31,324 $ 786,708 $ (79,656) $ 819
========== =========== ============ =========== ============
</TABLE>
13
<PAGE> 14
BRIGHTPOINT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(UNAUDITED)
8. Operating Segments (continued)
DECEMBER 31, JUNE 30,
TOTAL SEGMENT ASSETS: 1998 1999
-------------- ----------
Asia-Pacific $ 161,449 $ 91,291
North America 247,687 259,857
Europe, Middle East and Africa 197,386 101,478
Latin America 107,928 84,895
-------------- ----------
$ 714,450 $ 537,521
============== ==========
14
<PAGE> 15
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
OVERVIEW AND RECENT DEVELOPMENTS
This discussion and analysis should be read in conjunction with the accompanying
consolidated financial statements and related notes. 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 Exhibit 99
and the Company's Annual Report on Form 10-K for the year ended December 31,
1998.
During the second quarter of 1999 the Company implemented a broad restructuring
plan (the Plan) which it believes will improve its position for long-term
success by eliminating or restructuring identified non-performing business
activities and improving the Company's cost structure. The Plan included the
disposal of operations in the United Kingdom, Poland, Taiwan and Argentina;
termination of the Company's investments in two joint operations in China;
disposal of its 67% interest in a Hong Kong-based accessories company;
downsizing of selected operating subsidiaries and cost reduction initiatives in
its regional and corporate operations. In total, the Plan called for a reduction
in headcount of approximately 350 employees. This headcount reduction occurred
in most areas of the Company, including marketing, operations and
administration; however, substantially all of the reductions occurred in the
Company's foreign operating divisions.
As a result of the Plan the Company recorded restructuring and other charges of
approximately $85 million during the three months ended June 30, 1999. These
charges were comprised of approximately $80.1 million in non-cash asset
impairments and write-offs and $4.9 million in employee termination, lease
termination and other exit costs that have been or will be paid in cash. The
non-cash asset impairments and write-offs primarily represent losses incurred to
write down certain assets of operations affected by the Plan to their net
realizable value. These assets include goodwill, investments in joint
operations, accounts receivable, inventories, fixed assets, and other assets
that relate to activities or operations being eliminated, downsized or
terminated.
The Company expects to complete all of the actions required by the Plan prior to
December 31, 1999. As of June 30, 1999 the Company had restructuring reserves of
approximately $3.9 million related to unpaid employee termination, lease
termination and other exit costs.
15
<PAGE> 16
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
OVERVIEW AND RECENT DEVELOPMENTS (CONTINUED)
The Company recorded in the first quarter of 1999 a cumulative effect adjustment
for a change in accounting principle. The change in accounting principle
resulted from the required adoption of American Institute of Certified Public
Accountants Statement of Position 98-5, Reporting the Costs of Start-up
Activities, which requires the write-off of the unamortized portion of the
Company's previously-capitalized organization, start-up, pre-operating and
integrated logistics services contract implementation costs. These costs were
incurred primarily as a part of the Company's in-country expansion and long-term
contract activity from 1996 through 1998 and were previously capitalized in
accordance with generally accepted accounting principles then in effect. The
adjustment for the write-off of these amounts of $14.1 million is shown net of
applicable taxes.
Also during the first quarter of 1999, the Company acquired all of the common
shares of Cellular Services S.A., a provider of integrated logistics services to
the wireless communications industry in Brazil. This transaction was accounted
for as a purchase and accordingly, the consolidated financial statements include
the operating results of this business from the effective date of acquisition.
RESULTS OF OPERATIONS
Because of the significance of the Plan discussed above, results of operations
have been delineated between results from recurring operations and results from
non-recurring operations. Additionally, the impacts of (i) the non-recurring
charges recorded in the second quarter of 1999, (ii) the cumulative effect of a
change in accounting principle recorded in the first quarter of 1999 and (iii) a
net investment gain recognized in the first quarter of 1998 are treated as
"Non-recurring Charges and Other Items" and not considered a part of recurring
or non-recurring operations for the purposes of this discussion.
As a result of the Plan, the Company has eliminated, or is in the process of
eliminating, operations in Argentina, Poland, Taiwan and the United Kingdom and
has terminated its two joint operations in China. Recurring operations include
all operations except those that have been eliminated or terminated and
non-recurring operations are those operations that have been terminated or will
be terminated pursuant to the Plan.
16
<PAGE> 17
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
RESULTS OF OPERATIONS (CONTINUED)
RECURRING OPERATIONS
Revenue
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
-------------------------------------------------------------------------------------
1998 1999 Change 1998 1999 Change
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Revenue $ 262,004 $ 370,564 41% $ 524,061 $ 684,442 31%
- --------------------------------------------------------------------------------------------------------
</TABLE>
Revenue from recurring operations in the quarter ended June 30, 1999 increased
41%, compared to revenue generated by recurring operations in the second quarter
of 1998. For the six months ended June 30, 1999, revenue from recurring
operations increased 31% from the same period in the prior year. The increase
was primarily due to continued strong demand for the Company's services and for
wireless handsets and accessories worldwide.
Revenue from Recurring Operations by Division:
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
------------------------------------------------ --------------------------------------------
1998 1999 1998 1999
------------------------------------------------ --------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Asia-Pacific $ 84,782 33% $ 64,871 18% $206,650 39% $121,078 18%
Europe, Middle East and
Africa 50,416 19% 76,545 21% 83,248 16% 135,233 20%
North America 92,268 35% 164,212 44% 165,823 32% 321,231 47%
Latin America 34,538 13% 64,936 17% 68,340 13% 106,900 15%
------------------------------------------------ --------------------------------------------
Total $ 262,004 100% $ 370,564 100% $524,061 100% $684,442 100%
================================================ ============================================
</TABLE>
For the three and six months ended June 30, 1999 the Company experienced revenue
growth from recurring operations in its North America, Latin America and Europe,
Middle East, and Africa divisions primarily resulting from strong worldwide
demand for the Company's products and services. Revenue in the Asia-Pacific
division declined when compared to the same periods of the prior year because
much of the China market was being served out of the Company's Hong Kong
operation (classified as recurring) in the first half of 1998, whereas from
January through June of 1999, the China market was being served from the
Company's joint operations in China (classified as non-recurring due to the
termination of these operations). For the periods subsequent to June 30, 1999,
the Company plans to meet the demand in China through its wholly-owned
operations in Hong Kong and China or from new joint operations, if and when
developed.
17
<PAGE> 18
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
RECURRING OPERATIONS (CONTINUED)
Revenue from Recurring Operations by Service Line:
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
------------------------------------------ -----------------------------------------
1998 1999 1998 1999
------------------------------------------ -----------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Wireless handset sales $ 199,360 76% $ 271,955 73% $ 420,666 80% $ 501,404 73%
Wireless accessory sales 26,902 10% 54,915 15% 46,913 9% 104,476 15%
Integrated logistics
services 35,742 14% 43,694 12% 56,482 11% 78,562 12%
------------------------------------------ -----------------------------------------
$ 262,004 100% $ 370,564 100% $ 524,061 100% $ 684,442 100%
------------------------------------------ -----------------------------------------
</TABLE>
Revenue from recurring operations for the three and six months ended June 30,
1999 as compared to the same period in 1998 includes a greater proportion of
revenues from integrated logistics services and wireless accessories sales as
the Company continues to develop and grow its service offerings and acquire new
customers in these areas.
Gross Profit
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
------------------------------------------- -----------------------------------------
1998 1999 Change 1998 1999 Change
- ------------------------------------------------------------------------- -----------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Gross profit $ 26,149 $ 29,331 12% $ 51,789 $ 55,760 8%
Gross margin 10.0% 7.9% 9.9% 8.1%
- ------------------------------------------------------------------------- -----------------------------------------
</TABLE>
Gross profit from recurring operations for the three and six months ended June
30, 1999 increased over the same period in 1998 due to the increases in revenue,
however overall gross margins were lower due to continued pressure on handset
margins and increased costs of revenue across all service lines (in total and as
a percent of revenue).
18
<PAGE> 19
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
RECURRING OPERATIONS (CONTINUED)
Selling, General and Administrative Expenses
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
--------------------------------------- ------------------------------------------
1998 1999 Change 1998 1999 Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Selling, general and
administrative expenses $ 11,238 $ 23,384 108% $ 23,831 $ 44,611 87%
As a percent of revenue 4.3% 6.3% 4.5% 6.5%
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
Selling, general and administrative expenses related to recurring operations for
the three and six months ended June 30, 1999 as compared to the same periods in
the prior year reflect the increased cost of serving current and anticipated
integrated logistics services customers. Increasing personnel costs was the
largest contributor to the increase in selling, general and administrative
costs. Personnel costs increased due to a 40% increase in headcount from
approximately 1,000 employees in the second quarter of 1998 to approximately
1,400 employees in the second quarter of 1999.
Income from Operations
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
--------------------------------------- -----------------------------------------
1998 1999 Change 1998 1999 Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Income from operations $ 14,911 $ 5,947 (60%) $ 27,958 $ 11,149 (60%)
As a percent of revenue 5.7% 1.6% 5.3% 1.6%
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
The decrease in income from operations and operating margin (income from
operations, as a percent of revenue) from recurring operations for the three and
six months ended June 30, 1999 compared to the same period in 1998 resulted
primarily from the decrease in gross margin and from the increase in selling,
general and administrative expenses as a percent of revenue, both of which are
discussed above.
Net Income from Recurring Operations
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
-------------------------------------- ----------------------------------------
1998 1999 Change 1998 1999 Change
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net income $ 8,749 $ 1,386 (84%) $ 16,154 $ 2,864 (82%)
Net income per share (diluted) $ 0.16 $ 0.03 (81%) $ 0.30 $ 0.05 (83%)
Weighted average shares outstanding
(diluted) 53,725 53,403 53,580 53,928
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
The decrease in net income from recurring operations for the three and six
months ended June 30, 1999 as compared to the same periods in 1998 resulted
primarily from the factors discussed above in the analyses of revenue, gross
profit and selling, general and administrative expense.
19
<PAGE> 20
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
RESULTS OF OPERATIONS (CONTINUED)
NON-RECURRING OPERATIONS
Revenue
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
- ------------------------------------------------------------------------------------------------------------------------
1998 1999 Change 1998 1999 Change
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Revenue $ 67,809 $ 43,425 (36%) $ 149,085 $ 102,266 (31%)
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
Revenue from non-recurring operations decreased for the three and six months
ended June 30, 1999 as compared to the same periods in the prior year primarily
as a result of the discontinuation of the Company's trading activities in the
fourth quarter of 1998.
Gross Profit (Loss)
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
------------------------------------------- ------------------------------------------
1998 1999 Change 1998 1999 Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <S> <C> <C> <C>
Gross profit (loss) $ 4,356 $ (1,189) (127%) $ 8,793 $ 769 (91%)
Gross margin 6.4% (2.7%) 5.9% 0.1%
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
Gross profit from non-recurring operations for the three and six months ended
June 30, 1999 decreased over the same period in 1998 due to significant
competitive pressures related to all lines of business within the operations
discontinued by the Company.
Selling, General and Administrative Expenses
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
-----------------------------------------------------------------------------------
1998 1999 Change 1998 1999 Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Selling, general and
administrative expenses $ 3,363 $ 5,339 59% $ 5,427 $ 11,099 105%
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
Selling, general and administrative expenses incurred in non-recurring
operations during the three and six months ended June 30, 1999 as compared to
the same periods in the prior year reflect the increased cost of serving
anticipated integrated logistics services customers and building infrastructure
for growth which did not materialize to anticipated levels.
20
<PAGE> 21
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
NON-RECURRING OPERATIONS (CONTINUED)
Net Income (Loss) from Non-recurring Operations
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
------------------------------------- ----------------------------------------
1998 1999 Change 1998 1999 Change
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <S>
Net income (loss) $ 309 $ (6,928) (2342%) $ 1,404 $ (9,618) (785%)
Net income (loss) per
share (diluted) $ 0.01 $ (0.13) (1400%) $ 0.03 $ (0.18) (700%)
Weighted average shares outstanding
(diluted) 53,725 53,304 53,580 53,176
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
The net losses generated by non-recurring operations for the three and six
months ended June 30, 1999 were due to declining revenues and gross margins as
well as increases in selling, general and administrative costs.
NON-RECURRING CHARGES AND OTHER ITEMS
In the first quarter of 1998, the Company realized a net gain on the sale of
marketable equity securities, representing income of a non-recurring nature of
$572,000 ($343,000 after applicable taxes).
As discussed above the Company recorded in the first quarter of 1999 a
cumulative effect adjustment for a change in accounting principle. The
adjustment for the write-off of these amounts of $14.1 million ($0.26 per
diluted share) is shown net of applicable taxes.
As also discussed above, the Company recorded non-recurring charges in the
second quarter of 1999 of approximately $85 million resulting from actions taken
in accordance with the Plan. These non-recurring charges, classified as "Cost of
revenue", included the write-down of inventories ($7.4 million) to their
estimated net realizable value pursuant to the Plan; the write-down of accounts
receivable ($7.6 million) to their estimated net realizable value which is
classified as "Selling, general and administrative expenses"; and the impairment
of tax assets ($4.5 million) that are classified as "Income taxes" in the
Consolidated Statements of Operations for the three and six months ended June
30, 1999. The remainder of the non-recurring charges ($65.5 million) incurred
pursuant to the Plan (see Note 2 to the Consolidated Financial Statements) has
been classified as "Restructuring and other charges" in the Consolidated
Statements of Operations for the three and six months ended June 30, 1999.
21
<PAGE> 22
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
LIQUIDITY AND CAPITAL RESOURCES
December 31, 1998 June 30, 1999
- --------------------------------------------------------------------------------
Cash and cash equivalents $ 49,528 $ 39,015
Working capital $ 361,049 $ 268,717
Current ratio 2.92 : 1 2.66 : 1
- --------------------------------------------------------------------------------
Historically, the Company's primary cash requirements have been to fund
increased levels of accounts receivable and inventories. The Company has
satisfied its working capital requirements principally through cash flow from
operations, vendor financing, bank borrowings and the issuance of equity and
debt securities. The decrease in working capital was primarily the result of a
decrease in accounts receivable and inventories partially offset by a decrease
in accounts payable.
Net cash provided by operating activities was $31.5 million for the six months
ended June 30, 1999 as compared to cash used by operating activities of $25.0
million in the comparable prior period. The increase in net cash provided by
operating activities was primarily attributable to a decrease in accounts
receivable and inventories partially offset by a reduction in the Company's
earnings for the period. Net cash provided by investing activities for the six
months ended June 30, 1999 was nominally positive as compared to cash used by
investing activities of $51.5 million in the comparable prior period. The change
between periods is primarily comprised of a reduction in the amounts of cash
expended for acquisition activities and capital expenditures, as well as, an
increase in funds provided by the Company's contract financing activity during
the six months ended June 30, 1999. The net cash used by financing activities
for the six months ended June 30, 1999 was primarily the result of payments on
the Company's line of credit partially offset by proceeds from the exercise of
stock options. The net cash provided by financing activities for the six months
ended June 30, 1998 was primarily due to the issuance of the Bonds discussed
below and proceeds from the exercise of stock options.
On July 27, 1999, the Company closed on the Restated Facility with its senior
lenders. The Restated Facility provides the Company, based upon a
newly-instituted borrowing base calculation, with a maximum borrowing capacity
of up to $175 million, a reduction from the prior maximum of $230 million.
Interest rates under the Restated Facility, excluding fees, range from 140 basis
points to 250 basis points above LIBOR, depending on certain leverage ratios
which is approximately 112.5 basis points higher than the interest rates under
the previous facility. See Note 5 to the Consolidated Financial Statements and
Exhibit 10.2 to this Quarterly Report on Form 10-Q.
22
<PAGE> 23
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
LIQUIDITY AND CAPITAL RESOURCES (CONTINUED)
On March 11, 1998, the Company completed the sale of zero-coupon, subordinated,
convertible notes (the "Bonds") with an aggregate principal amount at maturity
of $380.0 million ($1,000 face value per Bond). The Bonds are due in the year
2018, have a yield to maturity of 4.00% and are convertible into the Company's
common stock at a rate of 19.109 shares per bond. The placement of the Bonds
resulted in gross proceeds to the Company of approximately $172 million. The
proceeds were used to reduce borrowings under the Company's revolving credit
facility and to invest in highly-liquid, short-term investments pending use in
operations. The Bonds are subordinated to all existing and future Senior
Indebtedness (as defined in the Bond's indenture) of the Company and all other
liabilities, including trade payables, of the Company's subsidiaries.
Through 1998 the Company generated a 5-year compounded annual growth rate in
revenue and net income in excess of 60% and 80% respectively. In order to fund
the working capital necessary for this level of growth, the Company successfully
raised during this five year period over $500 million of capital through the end
of 1998 using a combination of both debt and equity instruments. The Company
believes that to maintain growth in the future, it could be necessary to raise
additional capital while maintaining appropriate leverage ratios.
YEAR 2000 UPDATE
OVERVIEW AND BACKGROUND
The Company has implemented its Year 2000 readiness project (the Project) to
address its information technology as well as non-information technology systems
(e.g., telephones, alarm systems, copy machines, elevators, etc.) which have
embedded technology (collectively referred to as Systems). Additionally, the
Project includes the assessment of the Year 2000 readiness of the Company's
significant suppliers and customers.
STATUS OF THE PROJECT
The Project is divided into four separate phases - Planning and Awareness,
Inventory, Assessment, and Remediation.
The Planning and Awareness phase began in June 1998 and has been completed. This
phase included: (i) development and approval of the Project charter, (ii)
formation of a Project management team to carry out the Project charter, (iii)
identification and assessment of overall Project risks and (iv) development of a
Project budget.
The Inventory phase began in August 1998 and has been completed. This phase
included: (i) identification of significant Systems to be assessed and (ii)
identification of all significant suppliers and customers.
23
<PAGE> 24
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
YEAR 2000 UPDATE (CONTINUED)
The Assessment phase began in September 1998 and has been completed. This phase
includes certain procedures with respect to existing Systems and with respect to
the Year 2000 readiness of significant suppliers and customers. With respect to
existing Systems, this phase is complete and included: (i) contacting vendors of
significant Systems to assess the Year 2000 readiness of those Systems, (ii)
testing of the assertions made by the vendors of significant Systems, (iii)
determination of the extent to which remediation will be required to ensure Year
2000 readiness and (iv) development of contingency plans to the extent
considered necessary. With respect to significant suppliers and customers, this
phase is complete and includes contacting significant suppliers and customers,
either directly or through the use of a questionnaire and follow-up
correspondence in order to understand their state of Year 2000 readiness and
assessment of assertions made by these significant suppliers and customers. The
Company's assessment identified certain systems that were not currently Year
2000 compliant and these systems entered the remediation phase. The procedures
performed during the Assessment phase are continuing to be performed with
respect to new Systems. In addition, the Company will continue to monitor the
Year 2000 compliance status of its significant suppliers and customers.
The Remediation phase began concurrently with the Assessment phase and has been
completed with respect to items identified as non-compliant in the Assessment
phase. The activities undertaken during this phase included: (i) repairing,
replacing or reprogramming all significant Systems that were not Year 2000
compliant; (ii) validation and testing of remediated Systems; and (iii)
establishment and completion of action plans to address any Year 2000 issues
with significant customers or suppliers that came to our attention.
To date, none of the Company's other information technology projects or
initiatives have been significantly delayed or materially affected due to the
implementation of the Project.
COSTS
The Company utilized primarily internal resources to carry out the Project.
Costs incurred to complete the Project were expensed in the period incurred and
were not material to the Company's results of operations, financial position or
cash flows in the period.
RISKS AND CONTINGENCIES
The Company believes that the Project met its Year 2000 objectives in a timely
manner and has developed contingency plans as a result of this Project. However,
notwithstanding work performed in the Assessment phase, the ability of suppliers
and customers with which the Company interacts to timely convert their systems
to be Year 2000 compliant is uncertain and outside of the control of the
Company. The Company conducts operations in various countries worldwide which
may not be Year 2000 compliant because of many factors, including, but not
limited to, lack of resources and lack of attention to the Year 2000 issue.
Disruptions in the economy generally, including, but not limited to, the
disruption or failure of the infrastructure, resulting from Year 2000 issues
could also have an adverse affect on the Company's operations. Such failures
could materially and adversely affect the Company's results of operations,
liquidity and financial position.
24
<PAGE> 25
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONTINUED)
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
YEAR 2000 UPDATE (CONTINUED)
RISKS AND CONTINGENCIES (CONTINUED)
The Company is dependent on wireless equipment manufacturers for supply of
wireless handsets and accessories. Additionally, demand for the Company's
products by the Company's customers is dependent on the ability of network
operators to provide wireless network services to the end-users of those
products. Failure in the products and/or systems of the wireless equipment
manufacturers or network operators, including those resulting from a lack of
Year 2000 compliance, could have a material adverse effect on the Company.
The Company's contingency plans will be continually updated as new information
becomes available regarding the progress of vendors, suppliers and customers on
their Year 2000 projects. The Company intends to continue evaluating its
contingency plans to ensure completeness and effectiveness. There can be no
assurance that third parties on which the Company relies will succeed in their
Year 2000 compliance efforts or that failure by a third party would not have a
material adverse effect on the Company's results of operations or financial
condition.
25
<PAGE> 26
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
FINANCIAL MARKET RISK MANAGEMENT
The Company is exposed to financial market risks, including changes in interest
rates and foreign currency exchange rates. To mitigate interest rate risks, the
Company utilizes interest rate swaps to convert certain portions of its variable
rate debt to fixed interest rates. To mitigate foreign currency exchange rate
risks, the Company utilizes derivative financial instruments under a risk
management program approved by the Company's Board of Directors. The Company
does not use derivative instruments for speculative or trading purposes.
The Company is exposed to changes in interest rates on its variable interest
rate revolving line of credit. A 10% increase in short-term borrowing rates
during the first six months of 1999 would have resulted in a nominal increase in
interest expense as well as a nominal increase in the fair value of the
Company's interest rate swaps at June 30, 1999.
A substantial majority of the Company's revenue and expenses are transacted in
markets worldwide and are denominated in currencies other than the U.S. Dollar.
Accordingly, the Company's future results could be adversely affected by a
variety of factors, including changes in a specific country's political,
economic or regulatory conditions and trade protection measures.
The Company's foreign currency risk management program is designed to reduce but
not eliminate unanticipated fluctuations in earnings, cash flows, and the value
of foreign investments caused by volatility in currency exchange rates by
hedging, where believed to be cost-effective, significant exposures with foreign
currency exchange contracts, options and foreign currency borrowings. The
Company's hedging programs reduce, but do not eliminate, the impact of foreign
exchange rate movements. An adverse change (defined as a 10% strengthening of
the U.S. Dollar) in all exchange rates would not have materially impacted the
Company's results of operations for the six months ended June 30, 1999. The same
adverse change in exchange rates would result in a $4 million increase in the
fair value of the Company's cash flow and net investment hedges open at June 30,
1999. The majority of this fair value increase would offset currency
devaluations from translating the Company's foreign investments from functional
currencies to the U.S. Dollar. The Company's sensitivity analysis of foreign
exchange rate movements does not factor in a potential change in revenue levels
or local currency prices of its products sold or services provided. Actual
results may differ materially from those discussed above.
26
<PAGE> 27
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Brightpoint and four executive officers, two of which are also directors of the
Company, have been named as defendants in four actions filed in June and July
1999, in the United States District Court for the Southern District of Indiana
entitled Sakhrani et al. v. Brightpoint, Inc., et al., Cause No. IP
99-0870-C-H/G; Clark et al. v. Brightpoint, Inc., et al., Cause No. IP
99-0943-C-H/G; Sendermair et al. v. Brightpoint, Inc., et al., Cause No. IP
99-1138-C-H/G; and, Desrosiers, et al. v. Brightpoint, Inc., et al., Cause No.
IP 99-1157-C-H/G. These actions purport to assert claims under sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5, based on
allegations that false and misleading statements were rendered and/or statements
were omitted concerning the current and future financial condition and business
prospects of the Company. The cases involve a purported class of purchasers of
Brightpoint stock during the period October 2, 1998 through March 10, 1999. The
Company and the individual defendants intend to vigorously defend these actions.
The actions are at an early stage; defandants' responses are not yet due and
motions to consolidate the cases are pending.
Item 4. Submission of Matters to a Vote of Security Holders
An Annual Meeting of Stockholders was held on May 18, 1999 to elect three (3)
Class II directors, to amend the 1994 Stock Option Plan and to adopt the
Brightpoint, Inc. 1999 Employee Stock Purchase Plan.
The three (3) Class II directors are to hold office until the Annual Meeting of
Stockholders to be held in 2002 and until their respective successors have been
duly elected and qualified. The results of the vote to elect the three (3) Class
II directors were as follows:
Robert J. Laikin received 49,589,644 votes for and 707,778 votes
withheld, Robert F. Wagner received 49,590,018 votes for and
707,404 votes withheld and Rollin M. Dick received 49,590,018
votes for and 707,404 votes withheld.
The amendment of the Company's 1994 Stock Option Plan was to increase the number
of shares of common stock reserved from 8,200,000 to 10,500,000. The results of
the vote to increase the common stock reserved were as follows:
The Amendment received 12,859,327 votes for, 11,445,199 votes
against, 148,661 votes abstained and 25,844,235 broker non-votes.
The purpose of the adoption of the Company's 1999 Employee Stock Purchase Plan
was to adopt, approve and reserve 2,000,000 shares of common stock for the plan.
The results of the vote were as follows:
The Amendment received 22,088,595 votes for, 2,242,252 votes
against, 122,340 votes abstained and 25,844,235 broker non-votes.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
The list of exhibits is hereby incorporated by reference to the
Exhibit Index on page 30 of this report.
27
<PAGE> 28
PART II. OTHER INFORMATION (CONTINUED)
Item 6. Exhibits and Reports on Form 8-K (continued)
(b) Reports on Form 8-K
On June 11, 1999 the Company filed a Form 8-K with the Securities and
Exchange Commission reporting under Item 5 - Other Events, the press
release announcing that a complaint for a class action alleging
violations of Sections 10 (b) and 20 (a) of the Securities Exchange Act
of 1934 has been filed against the Company and certain of its officers
and directors in the United States District Court for the Southern
District of Indiana.
28
<PAGE> 29
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 August 16, 1999 /s/ Phillip A. Bounsall
----------------------------- -------------------------------
Phillip A. Bounsall
Executive Vice President,
Chief Financial Officer
(Principal Financial Officer)
Date August 16, 1999 /s/ John P. Delaney
----------------------------- -------------------------------
John P. Delaney
Vice President, Corporate
Controller (Chief
Accounting Officer)
29
<PAGE> 30
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
(10.1) Fourth Amendment to Multicurrency Agreement dated May 13, 1998
(10.2) Second Amended and Restated Multicurrency Credit Agreement dated May
13, 1998 and amended and restated as of July 27, 1999
(10.3) Amended and Restated Agreement between the Company and Robert J. Laikin
dated July 1, 1999
(10.4) Amended and Restated Agreement between the Company and J. Mark Howell
dated July 1, 1999
(10.5) Amended and Restated Agreement between the Company and Phillip A.
Bounsall dated July 1, 1999
(10.6) Amended and Restated Agreement between the Company and Steven E. Fivel
dated July 1, 1999
(11) Statement Re: Computation of Earnings Per Share
(27) Financial Data Schedule for the Six Months ended June 30, 1999
(99) Cautionary Statements
30
<PAGE> 1
EXHIBIT 10.1
AMENDMENT AND WAIVER NO. 4
TO
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MAY 13, 1998
THIS AMENDMENT AND WAIVER NO. 4 TO AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ("Amendment") is made as of June 29, 1999 by and
among BRIGHTPOINT, INC., BRIGHTPOINT INTERNATIONAL LTD. (collectively, the
"Borrowers"), the guarantors from time to time party thereto (the "Guarantors"),
the financial institutions listed on the signature pages hereof as lenders (the
"Lenders"), BANK ONE, INDIANA, NATIONAL ASSOCIATION, in its individual capacity
as a Lender and as syndication agent (the "Syndication Agent") and as successor
to NBD Bank, N.A. in its individual capacity as a Lender and as administrative
agent (the "Administrative Agent"; and together with the Syndication Agent, the
"Agent") on behalf of the Lenders under that certain Amended and Restated
Multicurrency Credit Agreement dated as of May 13, 1998 by and among the
Borrowers, the Guarantors, the Lenders and the Agent, as amended by Amendment
No. 1 thereto dated as of October 19, 1998, Amendment No. 2 thereto dated as of
September 30, 1998 and Amendment No. 3 thereto dated as of January 1, 1999 (as
amended, modified or restated, the "Credit Agreement"). Defined terms used
herein and not otherwise defined herein shall have the meaning given to them in
the Credit Agreement.
WITNESSETH
WHEREAS, the Borrowers, the Guarantors, the Lenders and the
Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders amend
the Credit Agreement in certain respects and waive certain requirements of the
Credit Agreement for a period; and
WHEREAS, the Lenders and the Agent are willing to amend the
Credit Agreement and waive certain requirements of the Credit Agreement for a
period all on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Guarantors, the Lenders and the Agent have agreed to the
following amendment and waiver to the Credit Agreement.
<PAGE> 2
1. AMENDMENT TO CREDIT AGREEMENT. SECTION 2.8(B) OF THE CREDIT
AGREEMENT IS AMENDED TO DELETE THE TERMS THEREOF IN THEIR ENTIRETY AND TO
SUBSTITUTE THE FOLLOWING THEREFOR:
(b) Applicable Margins, Applicable Letter of Credit Fee and
Applicable Facility Fee. As used in this Section 2.8(b) and in this
Agreement "Applicable Margins", "Applicable Facility Fee" and
"Applicable Letter of Credit Fee" shall mean the Applicable Floating
Rate Margin and/or Applicable Fixed Rate Margin, with respect to Loans
and the Applicable Facility Fee and/or Applicable Letter of Credit Fee,
with respect to fees payable as the case may be. The Applicable Margins
shall be determined by reference to the following:
<TABLE>
<CAPTION>
Applicable Facility Fee Applicable Fixed Applicable Applicable Letter of
Rate Margin Floating Rate Credit Fee
Margin
- ----------------------- ---------------- ------------- --------------------
<S> <C> <C> <C>
0.35% 1.90% 0.25% 1.90%
</TABLE>
2. Limited Waivers; Reservation of Rights after Waiver Period. For
purposes of this Agreement, the term "Waiver Period" means the period from the
date of the effectiveness of this Amendment through the earliest of: (i) July
31, 1999; (ii) the date of execution of a further amendment to the Credit
Agreement and/or an amended and restated Credit Agreement; and (iii) the date on
which (a) any Borrower requests an Advance, Letter of Credit, Swing Line Loan or
Alternate Currency Advance which, if made would increase the aggregate amount of
the Revolving Credit Obligations plus the Alternate Currency Loans above
$150,000,000 or (b) any Borrower requests any Alternate Currency Loan from ABN
AMRO Bank N.V. which, if made, would increase the aggregate amount of Alternate
Currency Loans made by ABN AMRO Bank, N.V. above $16,300,000. Upon the
effectiveness of this Agreement, during the Waiver Period the Lenders hereby
waive any and all Defaults or Events of Defaults which may occur under the
Credit Agreement solely as a result of the transactions, discontinued operations
and charges described in the letter from Brightpoint to the Lenders dated as of
June 23, 1999, including, without limitation, violation of the terms of Sections
6.3(B) and 6.4 (but not clauses (E) or (F) thereof) (the "Specified Defaults")
provided the aggregate amount of the charges taken in connection therewith shall
not exceed $95,000,000 and the cash portion of the charges taken in connection
therewith do not exceed $8,000,000; provided however, that nothing herein shall
(A) operate as a waiver of the provisions of Section 6.4(E) (Domestic Asset
Coverage Ratio) or Section 6.4(F) (Capital Expenditures) or (B) affect the
requirement that the Borrowers meet the conditions precedent set forth in
Section 4.2; provided, further, it is expressly understood and agreed that if
the Waiver Period ends for any reason and the Borrowers and the Lenders shall
not have entered into a further amendment to the Credit Agreement and/or amended
and restated the Credit Agreement, from and after such time the Agent and the
Lenders shall be entitled to exercise all of the rights and remedies provided in
the Credit Agreement and Loan Documents as set forth therein as a result of the
Specified Defaults, including, without limitation, accelerating
2
<PAGE> 3
all of the Obligations, demanding payment of the Obligations, instituting the
default rate of interest, exercising all enforcement rights with respect to the
Collateral and/or refusing to fund any Advances or make any other financial
accommodations to the Borrowers. From and after such time, pursuant to the
provisions of Section 8.4 of the Credit Agreement, (a) no delay or omission of
the Lenders or the Agent to exercise any right under the Loan Documents shall
impair any such right or be construed to be a waiver of the Specified Defaults
or an acquiescence therein, and (b) the making of any Advances or other
financial accommodation notwithstanding the existence of the Specified Defaults
or the inability of the Borrower to satisfy the conditions precedent to such
Advances or financial accommodations shall not constitute any waiver or
acquiescence. Any further waiver, amendment or other variation of the terms,
conditions or provisions of the Credit Agreement or the other Loan Documents
whatsoever, whether in connection with the Specified Defaults or otherwise, is
valid only if in writing signed by the Lenders required pursuant to Section 8.3,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law as a result of the Specified Defaults
are hereby reserved on behalf of the Agent and the Lenders if, prior to July 31,
1999, the Borrowers and the Lenders shall not have entered into a further
amendment to the Credit Agreement and/or amended and restated the Credit
Agreement.
3. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the date hereof, as applicable, if, and only if,
the Administrative Agent shall have received each of the following:
(a) duly executed originals of this Amendment from the
Borrowers, the Guarantors and the Required Lenders;
(b) In addition to any separate fee agreed to between
Brightpoint and the Agent for the Agent's account, Brightpoint shall
have paid to the Administrative Agent for the ratable benefit of the
Lenders which have approved this Amendment in writing prior to 5:00
(Chicago time) on Tuesday, June 29, 1999 an amendment fee equal to
0.125% of such Lenders' Revolving Loan Commitment and, if applicable,
Alternate Currency Commitment; and
(c) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
4. Bank One, Indiana, National Association as successor to NBD Bank,
N.A.. For all purposes under the Credit Agreement and the other Loan Documents,
Bank One Indiana, National Association has succeeded NBD Bank, N.A. All
references in the Credit Agreement and the other Loan Documents to NBD Bank,
N.A. shall be a reference to Bank One, Indiana, National Association.
5. Representations and Warranties of the Borrowers. The Borrowers
hereby represent and warrant as follows:
3
<PAGE> 4
(a) This Amendment and the Credit Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Borrowers and are enforceable against the Borrowers in accordance with their
terms.
(b) Upon the effectiveness of this Amendment, (i) no Default or
Unmatured Default has occurred and is continuing and (ii) the Borrowers hereby
reaffirm all covenants, representations and warranties made in the Credit
Agreement and other Loan Documents, to the extent the same are not amended
hereby, and agree that all such covenants, representations and warranties shall
be deemed to have been remade as of the effective date of this Amendment.
6. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import shall mean and be a reference to the
Credit Agreement, as amended previously and as amended hereby.
(b) Except as specifically amended and waived above, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent or any of the Lenders, nor
constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
7. Costs and Expenses. The Borrowers agree to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses charged
to the Administrative Agent) incurred by the Administrative Agent in connection
with the preparation, arrangement, execution and enforcement of this Amendment.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAW PROVISIONS)
OF THE STATE OF ILLINOIS.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A facsimile signature page hereto sent to the Administrative Agent
or the Administrative Agent's counsel shall be effective
4
<PAGE> 5
as a counterpart signature provided each party executing such a facsimile
counterpart agrees to deliver originals to the Administrative Agent thereof.
11. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Amendment, the Credit Agreement
and the other Loan Documents. In the event an ambiguity or question of intent or
interpretation arises, this Amendment, the Credit Agreement and the other Loan
Documents shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Amendment, the Credit
Agreement or any of the other Loan Documents.
12. Reaffirmation of Guaranties and other Loan Documents. Each of the
Guarantors, without in any way establishing a course of dealing, as evidenced by
its signature below, hereby consents to the execution and delivery of this
Amendment by the parties hereto, (ii) agrees that this Amendment shall not limit
or diminish the obligations of such Guarantor under the Credit Agreement or any
other Loan Documents, (iii) reaffirms its obligations under the Credit Agreement
and other Loan Documents, and (iv) agrees that such obligations remain in full
force and effect and is hereby ratified and confirmed.
[Remainder of this Page Intentionally Blank]
5
<PAGE> 6
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
BRIGHTPOINT, INC.
as a Borrower and Guarantor
By:
----------------------------------------
Name:
Title:
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By:
----------------------------------------
Name:
Title:
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the as the Administrative Agent, the
Swing Line Lender, the Syndication Agent,
an Issuing Lender and as a Lender
By:
----------------------------------------
Name:
Title:
<PAGE> 7
ABN AMRO BANK N.V.
as an Alternate Currency Lender
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
BANK BOSTON, N.A.
as a Lender and an Alternate Currency Lender
By:
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
as a Lender
By:
----------------------------------------
Name:
Title:
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By:
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
as a Lender
By:
----------------------------------------
Name:
Title:
<PAGE> 8
THE PROVIDENT BANK, as a Lender
By:
----------------------------------------
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By:
----------------------------------------
Name:
Title:
THE FUJI BANK, LIMITED
as a Lender
By:
----------------------------------------
Name:
Title:
NATIONAL CITY BANK OF INDIANA
as a Lender
By:
----------------------------------------
Name:
Title:
<PAGE> 1
- --------------------------------------------------------------------------------
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 27, 1999
(Originally Dated as of June 24, 1997; First Restatement Date: May 13, 1998)
among
BRIGHTPOINT, INC.
and
BRIGHTPOINT INTERNATIONAL LTD.,
AS BORROWERS AND GUARANTORS,
THE OTHER GUARANTORS FROM TIME TO TIME PARTY HERETO,
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME
PARTY HERETO, AS LENDERS,
BANK ONE, INDIANA, NATIONAL ASSOCIATION,
as Administrative Agent
- --------------------------------------------------------------------------------
SIDLEY & AUSTIN
One First National Plaza
Chicago, Illinois 60603
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I: DEFINITIONS...........................................................................................2
1.1 Certain Defined Terms...............................................................................2
1.2 Supplemental Disclosure............................................................................40
1.3 Currency Equivalents...............................................................................41
1.4 Amendment and Restatement of Original Credit Agreement.............................................41
1.5 Redesignation of the Original Administrative Agent.................................................41
ARTICLE II: THE CREDITS.........................................................................................42
2.1 Revolving Loans to Brightpoint and BPI.............................................................42
2.2 Swing Line Loans...................................................................................42
2.3 Alternate Currency Facility........................................................................44
2.4 Conversion of Alternate Currency Credits; Risk Sharing by All Lenders in
Alternate Currency Credits.....................................................................47
2.5 Optional Payments; Mandatory Prepayments...........................................................52
(A) Optional Payments.........................................................................52
(B) Mandatory Prepayments.....................................................................53
2.6 Reduction of Commitments...........................................................................53
2.7 Method of Borrowing................................................................................53
2.8 Method of Selecting Types and Interest Periods for Advances; Determination of Applicable Margins...54
(a) Method of Selecting Types and Interest Periods for Advances...............................54
(b) Determination of Applicable Margins, Applicable Letter of Credit Fee and
Applicable Facility Fee.................................................................55
2.9 Minimum Amount of Each Advance.....................................................................56
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.......................................................................56
(A) Right to Convert..........................................................................56
(B) Automatic Conversion and Continuation.....................................................57
(C) No Conversion Post-Default or Post-Unmatured Default......................................57
(D) Conversion/Continuation Notice............................................................57
2.11 Default Rate......................................................................................57
2.12 Method of Payment.................................................................................57
2.13 Notes, Telephonic Notices.........................................................................58
2.14 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest and
Fee Basis; Taxes; Loan and Control Accounts....................................................59
(A) Promise to Pay............................................................................59
(B) Interest Payment Dates....................................................................59
(C) Fees......................................................................................59
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
(D) Interest and Fee Basis....................................................................60
(E) Taxes.....................................................................................60
(F) Loan Account..............................................................................65
(G) Control Account...........................................................................65
(H) Entries Binding...........................................................................65
2.15 Notification of Advances, Interest Rates, Prepayments, Aggregate Revolving
Loan Commitment Reductions and Initial Borrowing Base Adjustment...............................65
2.16 Lending Installations.............................................................................66
2.17 Non-Receipt of Funds by the Administrative Agent..................................................66
2.18 Termination Date..................................................................................66
2.19 Replacement of Certain Lenders....................................................................66
2.20 Letter of Credit Facility.........................................................................67
2.21 Facility Letter of Credit Participation...........................................................68
2.22 Reimbursement Obligation..........................................................................69
2.23 Cash Collateral...................................................................................70
2.24 Facility Letter of Credit Fees....................................................................70
2.25 Indemnification; Exoneration......................................................................71
2.26 Judgment Currency.................................................................................72
2.27 Market Disruption; Deposits Unavailable, Interest Rate Unascertainable or Inadequate;
Impracticability...............................................................................73
2.28 Rounding and Other Consequential Changes..........................................................74
ARTICLE III: CHANGE IN CIRCUMSTANCES............................................................................74
3.1 Yield Protection...................................................................................74
3.2 Changes in Capital Adequacy Regulations............................................................75
3.3 Availability of Types of Advances..................................................................76
3.4 Funding Indemnification............................................................................76
3.5 Lender Statements; Survival of Indemnity...........................................................76
ARTICLE IV: CONDITIONS PRECEDENT................................................................................77
4.1 Effectiveness of this Agreement....................................................................77
4.2 Each Advance and Letter of Credit..................................................................77
4.3 Conditions Precedent to Initial Borrowing by each Subsidiary Borrower..............................78
ARTICLE V: REPRESENTATIONS AND WARRANTIES.......................................................................79
5.1 Organization; Powers...............................................................................79
5.2 Authority..........................................................................................79
5.3 No Conflict; Governmental Consents.................................................................80
5.4 Financial Statements...............................................................................80
5.5 No Material Adverse Change.........................................................................81
5.6 Taxes..............................................................................................81
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
(A) Tax Examinations..........................................................................81
(B) Payment of Taxes..........................................................................81
5.7 Litigation; Loss Contingencies and Violations......................................................81
5.8 Subsidiaries.......................................................................................82
5.9 ERISA..............................................................................................82
5.10 Accuracy of Information...........................................................................83
5.11 Securities Activities.............................................................................83
5.12 Material Agreements...............................................................................83
5.13 Compliance with Laws..............................................................................83
5.14 Assets and Properties.............................................................................84
5.15 Statutory Indebtedness Restrictions...............................................................84
5.16 Post-Retirement Benefits..........................................................................84
5.17 Insurance.........................................................................................84
5.18 Contingent Obligations............................................................................84
5.19 Restricted Junior Payments........................................................................85
5.20 Labor Matters.....................................................................................85
5.21 Environmental Matters.............................................................................85
5.22 Foreign Employee Benefit Matters..................................................................86
5.23 Year 2000 Issues..................................................................................86
ARTICLE VI: COVENANTS...........................................................................................87
6.1 Reporting..........................................................................................87
(A) Financial Reporting.......................................................................87
(B) Notice of Default.........................................................................88
(C) Lawsuits..................................................................................89
(D) Insurance.................................................................................89
(E) ERISA Notices.............................................................................89
(F) Labor Matters.............................................................................91
(G) Other Indebtedness........................................................................91
(H) Other Reports.............................................................................92
(I) Environmental Notices.....................................................................92
(J) Borrowing Base Certificate................................................................92
(K) Other Information.........................................................................92
6.2 Affirmative Covenants..............................................................................92
(A) Existence, Etc............................................................................92
(B) Powers....................................................................................93
(C) Compliance with Laws, Etc.................................................................93
(D) Payment of Taxes and Claims; Tax Consolidation............................................93
(E) Insurance.................................................................................93
(F) Inspection of Property; Books and Records; Discussions....................................94
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
(G) Insurance and Condemnation Proceeds.......................................................94
(H) ERISA Compliance..........................................................................95
(I) Maintenance of Property...................................................................95
(J) Environmental Compliance..................................................................95
(K) Use of Proceeds...........................................................................95
(L) Foreign Employee Benefit Compliance.......................................................95
(M) Additional Guarantors/Pledge of Capital Stock.............................................96
(N) Year 2000 Issues..........................................................................96
6.3 Negative Covenants.................................................................................96
(A) Indebtedness; Subsidiary Indebtedness.....................................................96
(B) Sales of Assets...........................................................................98
(C) Liens.....................................................................................98
(D) Investments...............................................................................99
(E) Contingent Obligations...................................................................100
(F) Restricted Junior Payments...............................................................100
(G) Conduct of Business; Subsidiaries; Acquisitions..........................................101
(H) Transactions with Shareholders and Affiliates............................................102
(I) Restriction on Fundamental Changes.......................................................102
(J) Sales and Leasebacks.....................................................................102
(K) Margin Regulations.......................................................................102
(L) ERISA....................................................................................103
(M) Issuance of Equity Interests.............................................................103
(N) Organizational Documents.................................................................103
(O) Other Indebtedness.......................................................................103
(P) Fiscal Year..............................................................................104
(Q) Hedging Obligations......................................................................104
6.4 Financial Covenants...............................................................................104
(A) Defined Terms for Financial Covenants....................................................104
(B) Fixed Charge Coverage Ratio..............................................................106
(C) Minimum Consolidated Book Equity.........................................................107
(D) Maximum Adjusted Leverage and Senior Debt Ratios........................................107
ARTICLE VII: DEFAULTS..........................................................................................109
7.1 Defaults..........................................................................................109
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES................................112
8.1 Remedies..........................................................................................112
(a) Termination of Commitments; Acceleration.................................................112
(b) Rescission...............................................................................112
(c) Enforcement..............................................................................113
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
8.2 Defaulting Lender.................................................................................113
8.3 Amendments........................................................................................114
8.4 Preservation of Rights............................................................................115
ARTICLE IX: GUARANTEE..........................................................................................116
9.1 Guarantee; Modifications to Obligations...........................................................116
9.2 Waivers...........................................................................................116
9.3 Guarantee Unconditional...........................................................................116
9.4 Extensions and Other Modifications of Obligations.................................................117
9.5 No Marshalling; Reinstatement of Guarantee........................................................118
9.6 Agreement to Pay Obligations; Currency Issues.....................................................118
9.7 Subordination of Subrogation......................................................................119
9.8 Election of Remedies..............................................................................119
9.9 Limitation........................................................................................120
9.9 Contribution with Respect to Guaranty Obligations.................................................120
9.10 Liability Cumulative.............................................................................121
9.11 No Revocation; Term of Guarantee.................................................................121
ARTICLE X: GENERAL PROVISIONS..................................................................................122
10.1 Survival of Representations......................................................................122
10.2 Governmental Regulation..........................................................................122
10.3 Performance of Obligations.......................................................................122
10.4 Headings.........................................................................................123
10.5 Entire Agreement.................................................................................123
10.6 Several Obligations; Benefits of this Agreement..................................................123
10.7 Expenses; Indemnification........................................................................123
(A) Expenses.................................................................................123
(B) Indemnity................................................................................124
(C) Waiver of Certain Claims; Settlement of Claims...........................................125
(D) Survival of Agreements...................................................................125
10.8 Numbers of Documents.............................................................................125
10.9 Accounting.......................................................................................126
10.10 Severability of Provisions......................................................................126
10.11 Nonliability of Lenders.........................................................................126
10.12 GOVERNING LAW...................................................................................126
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.........................................126
(A) EXCLUSIVE JURISDICTION...................................................................126
(B) OTHER JURISDICTIONS......................................................................127
(C) SERVICE OF PROCESS; VENUE................................................................127
(D) WAIVER OF JURY TRIAL.....................................................................128
(E) WAIVER OF BOND...........................................................................128
</TABLE>
<PAGE> 7
<TABLE>
<S> <C>
(F) ADVICE OF COUNSEL........................................................................128
10.14 Subordination of Intercompany Indebtedness......................................................128
10.15 No Strict Construction..........................................................................130
ARTICLE XI: THE ADMINISTRATIVE AGENT...........................................................................130
11.1 Appointment; Nature of Relationship..............................................................130
11.2 Powers...........................................................................................130
11.3 General Immunity.................................................................................130
11.4 No Responsibility for Loans, Creditworthiness, Collateral, Recitals, Etc.........................131
11.5 Action on Instructions of Lenders................................................................131
11.6 Employment of Agents and Counsel.................................................................131
11.7 Reliance on Documents; Counsel...................................................................131
11.8 The Administrative Agent's Reimbursement and Indemnification.....................................132
11.9 Rights as a Lender...............................................................................132
11.10 Lender Credit Decision..........................................................................132
11.11 Successor Administrative Agent..................................................................133
11.12 Collateral Documents............................................................................133
11.13. No Duties Imposed Upon Arranger................................................................133
ARTICLE XII: SETOFF; RATABLE PAYMENTS..........................................................................134
12.1 Setoff...........................................................................................134
12.2 Ratable Payments.................................................................................134
12.3 Application of Payments..........................................................................134
12.4 Relations Among Lenders..........................................................................135
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................................136
13.1 Successors and Assigns...........................................................................136
13.2 Participations...................................................................................136
(A) Permitted Participants; Effect...........................................................136
(B) Voting Rights............................................................................137
(C) Benefit of Setoff........................................................................137
13.3 Assignments......................................................................................137
(A) Permitted Assignments....................................................................137
(B) Effect; Effective Date...................................................................138
(C) The Register.............................................................................138
13.4 Confidentiality..................................................................................138
13.5 Dissemination of Information.....................................................................139
ARTICLE XIV: NOTICES...........................................................................................140
14.1 Giving Notice....................................................................................140
14.2 Change of Address................................................................................140
ARTICLE XV: COUNTERPARTS.......................................................................................140
</TABLE>
<PAGE> 8
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Form of Alternate Currency Addendum (Definitions)
EXHIBIT B -- Form of Compliance Certificate
(Definitions, ?? 4.2, 6.1(A)(iv))
EXHIBIT C -- Form of Guarantor Assumption Letter
(Definitions)
EXHIBIT D -- Commitments
(Definitions)
EXHIBIT E -- Form of Master Revolving Note
(Definitions)
EXHIBIT F -- Form of Individual Revolving Note
(Definitions)
EXHIBIT G -- Form of Swing Line Loan Note
(Definitions)
EXHIBIT H -- Form of Assignment Agreement
(?? 2.17, 13.3)
EXHIBIT I -- Form of Officer's Certificate
(?? 4.2, 6.1(A)(iv))
EXHIBIT J -- Borrowing Base Certificate
(Definitions)
<PAGE> 9
SCHEDULES
Schedule 1.1.1 -- Existing Letters of Credit (Definitions)
Schedule 1.1.2 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.3 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.4 -- Permitted Existing Investments (Definitions)
Schedule 1.1.5 -- Permitted Existing Liens (Definitions)
Schedule 1.1.6 -- Alternate Currency Addenda (Definitions)
Schedule 2.3 -- Forced-Draw Provisions re: Alternate Currency Letters
of Credit (?2.3 and ?2.4)
Schedule 5.3 -- Conflicts; Governmental Consents (? 5.3)
Schedule 5.4(A) -- Financial Statements (?5.4 (A))
Schedule 5.7 -- Litigation; Loss Contingencies (? 5.7)
Schedule 5.8 -- Subsidiaries (? 5.8)
Schedule 5.17 -- Insurance (?? 5.17, 6.2(E))
Schedule 5.20 -- Labor Matters; Compensation Agreements (? 5.20)
Schedule 5.21 -- Environmental Matters (? 5.21)
Schedule 6.3(F) -- Permitted Restricted Junior Payments (? 6.3(F))
<PAGE> 10
SECOND AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
This Second Amended and Restated Multicurrency Credit Agreement dated
as of July 27, 1999 is entered into among BRIGHTPOINT, INC., a Delaware
corporation, BRIGHTPOINT INTERNATIONAL LTD., a Delaware corporation, any
Subsidiary Borrowers (as defined herein) which are now or may hereafter become a
party to an Alternate Currency Addendum from time to time, the Guarantors (as
defined herein) which are now or may hereafter become a party hereto from time
to time, the financial institutions from time to time a party hereto as LENDERS,
whether by execution of this Agreement or an assignment and acceptance pursuant
to Section 13.3 and BANK ONE, INDIANA, NATIONAL ASSOCIATION, in its capacity as
Administrative Agent for itself and the other Lenders to amend and restate the
"Original Credit Agreement" (as defined below), which is hereby amended and
restated in its entirety. The parties hereto agree as follows:
WITNESSETH:
WHEREAS, the Borrowers have requested and the Administrative Agent and
the Lenders have agreed to amend the Original Credit Agreement (as defined
below);
WHEREAS, the Borrowers, the Lenders and the Administrative Agent have
agreed to enter into this Agreement in order to (i) amend and restate the
Original Credit Agreement in its entirety; (ii) re-evidence the Obligations,
which shall be repayable in accordance with the terms of this Agreement; and
(iii) set forth the terms and conditions under which the Lenders will, from time
to time, make loans and extend other financial accommodations to or for the
benefit of the Borrowers; and
WHEREAS, it is the intention of the parties to this Agreement that this
Agreement not constitute a novation and that, from and after the Closing Date,
the Original Credit Agreement shall be amended and restated hereby and all
references herein to "hereunder," "hereof," or words of like import and all
references in any other Loan Document to the "Credit Agreement" or words of like
import shall mean and be a reference to the Original Credit Agreement as amended
and restated hereby (and any section references to the Original Credit Agreement
shall refer to the applicable equivalent provision set forth herein although the
section number thereof may have changed);
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrowers by the Lenders and the
Administrative Agent, the parties hereto agree as follows:
<PAGE> 11
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined in other
sections of this Agreement, the following terms used in this Agreement shall
have the following meanings, applicable both to the singular and the plural
forms of the terms defined:
As used in this Agreement:
"ACCOUNT DEBTOR" means the account debtor or obligor with respect to
any of the Receivables and/or the prospective purchaser with respect to any
contract right, and/or any party who enters into or proposes to enter into any
contract or other arrangement with a Borrower.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which a
Borrower or any Subsidiary of a Borrower (i) acquires any going business or all
or substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as of the most recent transaction in
a series of transactions) at least a majority (in number of vote) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power), of
the membership, ownership or other equity interests in a limited liability
company or of the outstanding partnership interests of a partnership.
"AC BUYING LENDER" is defined in Section 2.4(f).
"AC SELLING LENDER" is defined in Section 2.4(f).
"ADMINISTRATIVE AGENT" means Bank One in its capacity as contractual
representative for itself and the Lenders pursuant to Article XI hereof and any
successor Administrative Agent appointed pursuant to Article XI hereof. All
references in any of the other Loan Documents to an "Agent" or the "Agents"
shall be a reference to the Administrative Agent.
"ADVANCE" means a borrowing consisting of simultaneous Revolving Loans
of the same Type made to a Borrower by each of the Lenders pursuant to Section
2.1, and for, in the case of Eurocurrency Rate Advances, the same currency and
the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.19 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under
2
<PAGE> 12
the Securities Exchange Act) of greater than ten percent (10%) or more of any
class of voting Capital Stock (or other voting interests) of the controlled
Person or possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether
through ownership of Equity Interests, by contract or otherwise. In addition,
each director of a Borrower or any Subsidiary of a Borrower shall be deemed to
be an Affiliate of each Borrower.
"AGREED CURRENCIES" means (i) Dollars; (ii) so long as such currencies
remain Eligible Currencies, Sterling, Hong Kong Dollars, Australian Dollars,
French Francs, Deutsche Marks, Canadian Dollars, Swiss Francs, Japanese Yen,
Dutch Guilders, Italian Lire and Swedish Kroner; (iii) euro only for so long as
euro is and remains an Eligible Currency; and (iv) any other Eligible Currency
which Brightpoint requests the Administrative Agent to include as an Agreed
Currency hereunder and which is acceptable to one-hundred percent (100%) of the
Lenders; provided that the Administrative Agent shall promptly notify each
Lender of each such request and each Lender shall be deemed not to have agreed
to each such request unless its written consent thereto has been received by the
Administrative Agent within ten (10) Business Days from the date of such
notification by the Administrative Agent to such Lender.
"AGGREGATE COMMITMENT" means, at any time, the sum of the Revolving
Loan Commitments plus the Alternate Currency Commitments, as adjusted from time
to time pursuant to the terms hereof. The initial Aggregate Commitment is One
Hundred Seventy-Five Million and 00/100 Dollars ($175,000,000).
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as adjusted from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is
One Hundred Fifty-Two Million, One Hundred Seventy-Three Thousand Nine Hundred
Thirteen and 00/100 Dollars ($152,173,913.00).
"AGREEMENT" means this Amended and Restated Multicurrency Credit
Agreement, as it may be amended, restated or otherwise modified and in effect
from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect as of the date of this Agreement in the United States,
applied in a manner consistent with that used by Brightpoint and its
consolidated Subsidiaries in the preparation of its audited consolidated
financial statements for the year ended December 31, 1998. If any changes in
generally accepted accounting principles are hereafter required or permitted and
are adopted by Brightpoint or any of its Subsidiaries with the agreement of its
independent certified public accountants and such changes result in a change in
the method of calculation of any of the financial covenants, restrictions or
standards herein or in the related definitions or terms used therein ("Covenant
Accounting Changes"), the parties hereto agree to enter into negotiations, in
good faith, in order to amend such provisions in a credit neutral manner so as
to reflect equitably
3
<PAGE> 13
such changes with the desired result that the criteria for evaluating
Brightpoint's consolidated financial condition shall be the same after such
changes as if such changes had not been made; provided, however, that no
Covenant Accounting Change shall be given effect in such calculations until such
provisions are amended in a manner reasonably satisfactory to the Required
Lenders. If such amendment is entered into, all references in this Agreement to
Agreement Accounting Principles shall mean generally accepted accounting
principles as of the date of such amendment applied in a manner consistent with
that used by Brightpoint and its consolidated Subsidiaries in the preparation of
its audited consolidated financial statements for the year ended December 31,
1998 except as agreed in connection with the Covenant Accounting Changes set
forth in such an amendment and together with any changes in generally accepted
accounting principles after the date of such amendment which are not Covenant
Accounting Changes.
"ALTERNATE BASE RATE" means, for any day, a fluctuating interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) as shall be in
effect from time to time, which rate per annum shall at all times be equal to
the greatest of (a) the Prime Rate in effect on such day; and (b) the sum of
one-half of one percent (0.50%) and the Federal Funds Effective Rate in effect
on such day. For purposes hereof, "PRIME RATE" shall mean the rate of interest
per annum publicly announced from time to time by Bank One as its prime rate (it
being acknowledged that such announced rate may not necessarily be the lowest
rate charged by Bank One to any of its customers) in effect at its principal
office in Indianapolis, Indiana; each change in the Prime Rate shall be
effective on the date such change is publicly announced as being effective.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, for any day, a fluctuating interest
rate per annum equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Bank One from three Federal funds brokers of recognized
standing selected by the Administrative Agent. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms hereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change.
"ALTERNATE CURRENCY" means any currency which Brightpoint requests the
Alternate Currency Lender to include as an Alternate Currency hereunder and
which is acceptable to the Alternate Currency Lender; provided, that no such
currency shall be an Alternate Currency hereunder until an Alternate Currency
Addendum establishing such currency as an Alternate Currency has been executed
by a Subsidiary Borrower and the Alternate Currency Lender and
4
<PAGE> 14
acknowledged by Brightpoint and each Guarantor. If, after the Alternate Currency
Lender agrees to make Alternate Currency Loans in an Alternate Currency,
currency control or other exchange regulations are imposed in the country in
which such Alternate Currency is issued with the result that different types of
such currency are introduced, such country's currency is, in the determination
of the Alternate Currency Lender, no longer readily available or freely traded
or as to which, in the determination of the Alternate Currency Lender, an
Equivalent Amount is not readily calculable, then the Alternate Currency Lender
shall promptly notify the Lenders and Brightpoint, such country's currency shall
no longer be an Alternate Currency until such time as the Alternate Currency
Lender agrees to reinstate such country's currency as an Alternate Currency and
promptly, but in any event within five (5) Business Days of receipt of such
notice from the Alternate Currency Lender, the Subsidiary Borrowers with respect
to such Alternate Currency shall repay all Loans in such affected currency or
convert such Loans into Loans in Dollars or another Alternate Currency as
applicable, subject to the other terms contained in Article II. The commencement
of the third stage of European Economic and Monetary Union shall not constitute
the imposition of currency control or exchange regulations.
"ALTERNATE CURRENCY ADDENDUM" means (a) the Alternate Currency Addenda
entered into prior to the date hereof and attached hereto as Schedule 1.1.6 and
(b) any other addendum substantially in the form of Exhibit A entered into by
one or more of the Subsidiary Borrowers and the Alternate Currency Lender and
acknowledged by Brightpoint and each Guarantor.
"ALTERNATE CURRENCY AVAILABILITY" means, at any particular time, the
lesser of (a) the amount by which the aggregate of the Alternate Currency
Commitments of the Alternate Currency Lenders exceeds the Alternate Currency
Obligations and (b) the Amount Available for Borrowing at such time.
"ALTERNATE CURRENCY COMMITMENT(S)" means, with respect to each
Alternate Currency Lender, the obligation of the Alternate Currency Lender to
make Alternate Currency Loans or issue Alternate Currency Letters of Credit
under Section 2.3 and to purchase Revolving Loans and participations in Letters
of Credit under Section 2.4 not exceeding (a) for each such Alternate Currency
Lender the amount reflected for such Alternate Currency Lender in Exhibit D
hereto as its Alternate Currency Commitment and (b) for all of the Alternate
Currency Lenders, the Dollar Amount of the Maximum Aggregate Alternate Currency
Amount, as such amount may be modified from time to time pursuant to the terms
of this Agreement. Notwithstanding anything in the Agreement to the contrary,
references in the Agreement to "the Alternate Currency Commitment" shall instead
be to the applicable Alternate Currency Commitment of the applicable Alternate
Currency Lender or the Alternate Currency Commitments of all of the Alternate
Currency Lenders, as appropriate, notwithstanding the singular use of the term
herein.
"ALTERNATE CURRENCY CREDIT" means either an Alternate Currency Loan or
an Alternate Currency Letter of Credit, or both.
5
<PAGE> 15
"ALTERNATE CURRENCY DOCUMENTS" means any Alternate Currency Addendum
and, with respect to the Alternate Currency Loans to be made to or Alternate
Currency Letters of Credit to be issued for the account of the applicable
Subsidiary Borrower party thereto, such other loan documentation such as a loan
agreement, overdraft agreement or credit agreement, indenture, promissory note,
letter of credit application or other instrument or document evidencing the
Alternate Currency Loans to be made to or Alternate Currency Letters of Credit
issued for the account of such Subsidiary Borrower by the Alternate Currency
Lender, in each case, in form and substance acceptable to the Alternate Currency
Lender.
"ALTERNATE CURRENCY LENDER(S)" means (i) ABN AMRO Bank N.V., (ii)
BankBoston, N.A., (iii) any additional Alternate Currency Lender party to this
Agreement pursuant to the terms of Section 2.3(k), and, (iv) after any
Conversion Date, any Lender who has purchased Alternate Currency Credits under
Section 2.4(f). If any agency or Affiliate of any of the Alternate Currency
Lenders shall be a party to an Alternate Currency Addendum, such agency or
Affiliate shall, to the extent of any commitment extended and any Alternate
Currency Loans made or Alternate Currency Letters of Credit issued by it, have
all the rights of an Alternate Currency Lender hereunder; provided, however,
that the named Alternate Currency Lender shall to the exclusion of such agency
or Affiliate, continue to have all the voting and consensual rights vested in it
by the terms hereof. Notwithstanding anything in the Agreement to the contrary,
references in the Agreement to "the Alternate Currency Lender" shall instead be
to each of the applicable Alternate Currency Lender or applicable Alternate
Currency Lenders, as appropriate, notwithstanding the singular use of the term
herein.
"ALTERNATE CURRENCY LETTER OF CREDIT" means any letter of credit issued
for the account of a Subsidiary Borrower by the Alternate Currency Lender or one
of its Affiliates pursuant to Section 2.3, an Alternate Currency Addendum and
any other Alternate Currency Documents.
"ALTERNATE CURRENCY LOAN" means any loan denominated in an Alternate
Currency made by the Alternate Currency Lender to a Subsidiary Borrower pursuant
to Section 2.3, an Alternate Currency Addendum and any other Alternate Currency
Documents and shall include any reimbursement obligations of a Subsidiary
Borrower arising out of the presentment, honor and drawing of any Alternate
Currency Letter of Credit.
"ALTERNATE CURRENCY OBLIGATIONS" means, at any particular time, the sum
of the outstanding principal amount of the Alternate Currency Loans at such time
plus the face amount of any undrawn Alternate Currency Letters of Credit.
"AMOUNT AVAILABLE FOR BORROWING" means, at any time, the lesser of
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<PAGE> 16
(1) the Borrowing Base at such time minus the Dollar Amount of the sum
of (a) the Revolving Credit Obligations and (b) the Alternate Currency
Obligations at such time; and
(2) the sum of (a) the amount by which the aggregate of the Alternate
Currency Commitments of the Alternate Currency Lenders exceeds the Alternate
Currency Obligations and (b) the amount by which the Aggregate Revolving Loan
Commitment exceeds the Dollar Amount of the Revolving Credit Obligations.
"APPLICABLE FACILITY FEE" as at any date of determination, shall be the
rate per annum then applicable in the determination of the amount payable under
Section 2.14(C) with respect to the Aggregate Revolving Loan Commitment and the
Alternate Currency Commitment, determined in accordance with the provisions of
Section 2.8(b).
"APPLICABLE FIXED RATE MARGIN" as at any date of determination, shall
be the rate per annum then applicable to Eurocurrency Rate Loans, determined in
accordance with the provisions of Section 2.8(b).
"APPLICABLE FLOATING RATE MARGIN" as at any date of determination,
shall be the rate per annum then applicable to Base Rate Loans, determined in
accordance with the provisions of Section 2.8(b).
"APPLICABLE LETTER OF CREDIT FEE" as at any date of determination,
shall be the rate per annum then applicable in the determination of the amount
payable under Section 2.24 with respect to Facility Letters of Credit,
determined in accordance with the provisions of Section 2.8(b).
"APPLICABLE MARGIN(S)" is defined in Section 2.8(b).
"ARRANGER" means Banc One Capital Markets, Inc.
"AUSTRALIAN DOLLARS" means the lawful money of Australia.
"AUTHORIZED OFFICER" means any of the chief operating officer, chief
financial officer, controller and treasurer of a Borrower, acting singly.
"BANK ONE" means Bank One, Indiana, National Association, in its
individual capacity.
"BASE RATE" means, for any day for any Loan, a rate per annum equal to
(i) the Alternate Base Rate for such day plus (ii) the Applicable Floating Rate
Margin applicable to such Loan, changing when and as the Alternate Base Rate
changes.
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<PAGE> 17
"BASE RATE ADVANCE" means an Advance which bears interest at the Base
Rate.
"BASE RATE LOAN" means a Loan, or portion thereof, which bears interest
at the Base Rate.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan) in respect of which Brightpoint or
any other member of the Controlled Group is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BLAH" is defined in the definition of Eligible Inventory below.
"BORROWER" means, as applicable, Brightpoint, BPI and any Subsidiary
Borrower and their respective successors and assigns.
"BORROWING BASE" means, as of any date of calculation and subject to
the Initial Borrowing Base Adjustment, an amount, as set forth on the most
current Borrowing Base Certificate delivered to the Administrative Agent, equal
to the sum of: (i) up to eighty-five percent (85%) of the Gross Amount of
Eligible Receivables; plus (ii) the lesser of (a) up to fifty percent (50%) of
the Gross Amount of Eligible Inventory and (b) $70,000,000.
"BORROWING BASE CERTIFICATE" means a certificate, in substantially the
form of Exhibit J attached hereto and made a part hereof, setting forth the
Borrowing Base and the component calculations thereof.
"BORROWING DATE" means a date on which an Advance, an Alternate
Currency Credit or a Swing Line Loan is made hereunder.
"BORROWING NOTICE" is defined in Section 2.8 hereof.
"BPI" means Brightpoint International Ltd., a Delaware corporation and
a wholly-owned Subsidiary of Brightpoint, and its successors and assigns,
including a debtor-in-possession on behalf of Brightpoint International Ltd.
"BRIGHTPOINT" means Brightpoint, Inc., a Delaware corporation, and its
successors and assigns, including a debtor-in-possession on behalf of
Brightpoint, Inc.
"BRIGHTPOINT BV1" means Brightpoint International Holdings, B.V., a
private limited liability company formed under the laws of the Netherlands.
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<PAGE> 18
"BRIGHTPOINT BV2" means Brightpoint Holdings B.V., a private limited
liability company formed under the laws of the Netherlands.
"BUSINESS ACTIVITY REPORT" means (A) a Notice of Business Activities
Report from the State of Minnesota, Department of Revenue, (B) a Notice of
Business Activities Report from the State of New Jersey, Division of Taxation or
(C) any similar report required by any other State relating to the ability of
Brightpoint to enforce its accounts receivable claims against account debtors
located in any such state.
"BUSINESS DAY" means, except as otherwise agreed between the Alternate
Currency Lender and any Applicable Subsidiary Borrower provided under the
applicable Alternate Currency Documents with respect to Alternate Currency
Credits made to such Subsidiary Borrower: (i) with respect to any borrowing,
payment or rate selection of Alternate Currency Credits or Revolving Loans
(other than Revolving Loans denominated in euro) bearing interest at the Fixed
Rate, a day (other than a Saturday or Sunday) on which banks are open for
business in Indianapolis, Indiana and on which dealings in United States Dollars
and the other Agreed Currencies or Alternate Currencies are carried on in the
relevant interbank market; (ii) with respect to any borrowing, payment or rate
selection of Revolving Loans denominated in euro, a day (other than a Saturday
or Sunday) on which a suitable clearing or settlement system for euro is open
for business, as determined by the Administrative Agent; and (iii) for all other
purposes a day (other than a Saturday or Sunday) on which banks are open for
business in Indianapolis, Indiana.
"CALCULATION DATE" means (i) with respect to any Revolving Loan or
Facility Letter of Credit in any currency other than Dollars, the Business Day
of the making of such Revolving Loan or the issuance of the Facility Letter of
Credit with respect to the Agreed Currency in which such Revolving Loan is being
made or Facility Letter of Credit is being issued; (ii) with respect to any
Alternate Currency Credit, the Business Day of the making of such Alternate
Currency Credit with respect to the Alternate Currency in which such Alternate
Currency Credit is being made; (iii) with respect to Revolving Loans and
Facility Letters of Credit, any other Business Day selected at the option of the
Administrative Agent or at the direction of the Required Lenders; (iv) with
respect to Alternate Currency Credits for any Alternate Currency, any other
Business Day selected at the option of the Alternate Currency Lender; and (v) on
the date any Conversion Notice is given pursuant to Section 2.4(b); provided,
with respect to any option exercised pursuant to clause (iii) or (iv) above,
without the consent of the Administrative Agent or Alternate Currency Lender
required to calculate the applicable Exchange Rate, the Calculation Date
selected shall not be earlier than the second (2nd) Business Day following
exercise of such option.
"CANADIAN DOLLARS" means the lawful money of Canada.
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<PAGE> 19
"CAPITAL EXPENDITURES" is defined in Section 6.4(A) hereof.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (howsoever
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing person, in
each such case regardless of class or designation.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States or the
government of any member of the European Union; (ii) domestic and Eurocurrency
certificates of deposit and time deposits, bankers' acceptances and Base rate
certificates of deposit issued by any commercial bank organized under the laws
of the United States, any state thereof, the District of Columbia, or its
branches or agencies or the laws of any member of the European Union and having
capital and surplus in an aggregate amount not less than $500,000,000 (fully
protected against currency fluctuations for any such deposits with a term of
more than ten (10) days); (iii) shares of money market, mutual or similar funds
having net assets in excess of $500,000,000 maturing or being due or payable in
full not more than one hundred eighty (180) days after any Borrower's
acquisition thereof and the investments of which are limited to investment grade
securities (i.e., securities rated at least Baa by Moody's Investors Service,
Inc. or at least BBB by Standard & Poor's Ratings Group) or shares of similar
funds of similar credit quality in Europe approved for such purposes by the
Administrative Agent in its sole discretion and (iv) commercial paper of United
States and foreign banks and bank holding companies and their subsidiaries and
United States and foreign finance, commercial, industrial or utility companies
which, at the time of acquisition, are rated A-1 (or better) by Standard &
Poor's Ratings Group or P-1 (or better) by Moody's Investors Services, Inc. or
commercial paper of British banks of similar credit quality approved for such
purposes by the Administrative Agent in its sole discretion; provided that the
maturities of such Cash Equivalents shall not exceed 365 days.
"CHANGE" is defined in Section 3.2 hereof.
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<PAGE> 20
"CHANGE OF CONTROL" means any of the following:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 20% or more of the combined voting
power of Brightpoint's Capital Stock ordinarily having the right to
vote at an election of directors;
(ii) during any period of 12 consecutive calendar months,
individuals:
(a) who were directors of Brightpoint on the
first day of such period, or
(b) whose election or nomination for election to
the board of directors of Brightpoint was
recommended or approved by at least a
majority of the directors then still in
office who were directors of Brightpoint on
the first day of such period, or whose
election or nomination for election was so
approved,
shall cease to constitute a majority of the board of directors of
Brightpoint;
(iii) Brightpoint consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of
its property to any Person, or any corporation consolidates with or
merges into Brightpoint, in either event pursuant to a transaction in
which the outstanding Capital Stock of Brightpoint is reclassified or
changed into or exchanged for cash, securities or other property;
(iv) Brightpoint shall cease to own, of record and
beneficially, with sole voting and dispositive power, 100% of the
outstanding shares of Capital Stock of BPI or shall cease to have the
power, directly or indirectly, to elect all of the members of the board
of directors of BPI;
(v) BPI shall cease to own of record and beneficially, with
sole voting and dispositive power, 100% of the outstanding shares of
Capital Stock of Brightpoint BV1 ordinarily having the right to vote at
an election of directors or shall cease to have the power, directly or
indirectly, to elect a majority of the board of directors of
Brightpoint BV1;
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(vi) Brightpoint BV1 shall cease to own of record and
beneficially, with sole voting and dispositive power, 100% of the
outstanding shares of Capital Stock of Brightpoint BV2 ordinarily
having the right to vote at an election of directors or shall cease to
have the power, directly or indirectly, to elect a majority of the
board of directors of Brightpoint BV2; and
(vii) Other than as a result of a transaction otherwise
expressly permitted by the terms of this Agreement, Brightpoint shall
cease to own of record and beneficially, either directly or indirectly,
with sole voting and dispositive power, at least 80% of the outstanding
shares of Capital Stock of each other Material Subsidiary (other than
those specified in clauses (iii) through (v)) ordinarily having the
right to vote at an election of directors or shall cease to have the
power, directly or indirectly, to elect a majority of the board of
directors of each such Material Subsidiary.
"CLOSING DATE" means the date on which the conditions for effectiveness
of this Agreement shall have taken effect and the Original Agreement shall, by
the terms hereof, no longer be of any force or effect.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by a Borrower or any of its Subsidiaries in or upon which a
security interest, lien or mortgage is granted to the Administrative Agent, for
the benefit of the Lenders, to secure all of the Secured Obligations, whether
under the Security Agreements, under the Trademark Security Agreement, under the
Pledge Agreements, under any of the other Collateral Documents or under any of
the other Loan Documents.
"COLLATERAL DOCUMENTS" means all agreements, instruments and documents
executed in connection with this Agreement, including, without limitation the
Security Agreements, the Trademark Security Agreement, the Pledge Agreements and
all other security agreements, loan agreements, notes, guarantees, mortgages,
subordination agreements, pledges, powers of attorney, consents, assignments,
contracts, leases, financing statements and all other written matter whether
heretofore, now, or hereafter executed by or on behalf of a Borrower or any
Subsidiary of a Borrower and delivered to the Administrative Agent or any of the
Lenders, together with all agreements and documents referred to therein or
contemplated thereby.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
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"COMMITMENT" means, for each Lender, such Lender's Revolving Loan
Commitment, for the Alternate Currency Lender, its Alternate Currency Commitment
and for the Swing Line Lender, its Swing Line Loan Commitment. The Commitments
shall automatically and permanently terminate on the Termination Date.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit B delivered to the Administrative Agent and each Lender by
Brightpoint pursuant to the provisions of this Agreement and covering, among
other things, its calculation of the Applicable Margins, Applicable Facility
Fee, Applicable Letter of Credit Fee, its compliance with the financial
covenants contained in Section 6.4 and certain other provisions of this
Agreement.
"CONSOLIDATED BOOK EQUITY" is defined in Section 6.4(A) hereof.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received.
"CONTINGENT PURCHASE PRICE OBLIGATION", as applied to any Person, means
any Contractual Obligation of such Person incurred in connection with an
Acquisition pursuant to which such Person is obligated to pay additional
consideration to the applicable seller in the form of an earnout, milestone
payment, contingent purchase price payment, or other similar performance based
compensation relating to post-Acquisition financial or operating performance of
the business acquired.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any
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case in writing, to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as Brightpoint; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with Brightpoint; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as Brightpoint, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.10(D) hereof.
"CONVERSION DATE" is defined in Section 2.4(b).
"CONVERSION ELECTION" is defined in Section 2.4(a).
"CONVERSION EVENT" is defined in Section 2.4(a).
"CONVERSION NOTICE" means any notice of a Conversion Election or other
Conversion Event given by the Administrative Agent or the Alternate Currency
Lender pursuant to the terms of Section 2.4(b).
"CONVERTED LOANS" means any one or more Loans converted to Dollars from
any currency other than Dollars pursuant to the terms of Section 2.4(b).
"CURE LOAN" is defined in Section 8.2 hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of business
for amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
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other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of assets or property of any Borrower
taken as a whole or materially impair the use thereof in the operation
of the businesses taken as a whole, and (B) all Liens securing bonds to
stay judgments or in connection with appeals that do not secure at any
time an aggregate amount exceeding $1,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of real property which do not interfere with
the ordinary conduct of the business of any Borrower or any Subsidiary
of any Borrower;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against any
Borrower or any Subsidiary of any Borrower which do not constitute a
Default under Section 7.1(h);
(vi) Liens arising from leases, subleases or licenses granted
to others which do not interfere in any material respect with the
business of any Borrower or any Subsidiary of any Borrower; and
(vii) any interest or title of the lessor in the property
subject to any operating lease entered into by any Borrower or any
Subsidiary of any Borrower in the ordinary course of business.
"DEFAULT" means an event described in Article VII hereof.
"DEUTSCHE MARKS" or "DM" means the lawful money of the Republic of
Germany.
"DISQUALIFIED SUBSIDIARY" means any Subsidiary of Brightpoint other
than (i) BPI, (ii) Brightpoint BV1, (iii) any Subsidiary of Brightpoint BV1 or
(iv) any Subsidiary Borrower.
"DISQUALIFIED SUBSIDIARY INVESTMENT" means the sum of (a) all
intercompany loans made on or after the Original Closing Date from any Borrower
to any Disqualified Subsidiary of Brightpoint; (b) all Investments made on or
after the Original Closing Date by any Borrower in
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any Disqualified Subsidiary of Brightpoint; and (c) an amount equal to the net
benefit derived by the Disqualified Subsidiaries of Brightpoint resulting from
any non-arms length transactions between the Borrowers, on the one hand, and
such Disqualified Subsidiaries, on the other hand.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" or "$" means the lawful money of the United States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars, calculated on the
basis of the then applicable Exchange Rate.
"DOMESTIC SUBSIDIARY" shall mean a Subsidiary of the Borrower formed
pursuant to the laws of any state of the United States, the District of Columbia
or any territory of the United States.
"DUTCH GUILDERS" means the lawful money of The Netherlands.
"EBITDA" is defined in Section 6.4(A) hereof.
"ELIGIBLE CURRENCY" means any currency other than Dollars that is
readily available, freely traded, in which deposits are customarily offered to
banks in the London interbank market, convertible into Dollars in the
international interbank market and as to which an Equivalent Amount may be
readily calculated. If, after the designation by the Lenders of any currency as
an Agreed Currency, currency control or other exchange regulations are imposed
in the country in which such currency is issued with the result that different
types of such currency are introduced, such country's currency is, in the
determination of the Administrative Agent, no longer readily available or freely
traded or as to which, in the determination of the Administrative Agent, an
Equivalent Amount is not readily calculable, then the Administrative Agent shall
promptly notify the Lenders and Brightpoint, such country's currency shall no
longer be an Agreed Currency until such time as all of the Lenders agree to
reinstate such country's currency as an Agreed Currency and promptly, but in any
event within five (5) Business Days of receipt of such notice from the
Administrative Agent, the Borrowers with respect to such Agreed Currency shall
repay all Loans in such affected currency or convert such Loans into Loans in
Dollars or another Agreed Currency as applicable, subject to the other terms
contained in Article II. The commencement of the third stage of European
Economic and Monetary Union shall not constitute the imposition of currency
control or exchange regulations.
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"ELIGIBLE INVENTORY" means Inventory of Brightpoint and Brightpoint
Latin America Holdings, Inc. ("BLAH") which is held for sale or lease or
furnished under any contract of service by Brightpoint or BLAH which is not
rendered ineligible by the provisions set forth herein. Brightpoint and BLAH
each understands and agrees that the standards of ineligibility may be revised
from time to time by the Administrative Agent in its reasonable credit judgment,
exercised individually or at the direction of the Required Lenders (which credit
judgment shall be exercised in a manner that is not arbitrary or capricious and
shall be exercised in a manner not inconsistent with the manner in which the
initial ineligibility standards were determined); provided, without the consent
of the Required Lenders, the Administrative Agent shall not be permitted to
revise the ineligibility criteria set forth below in any manner which would
increase the Amount Available for Borrowing. The following Inventory is
ineligible and shall not be included in Eligible Inventory:
(i) (to the extent not provided for by reserves described in
the definition of the Gross Amount of Eligible Inventory) Inventory
which is obsolete, not in good condition, not either currently usable
or currently saleable in the ordinary course of Brightpoint's business
or does not meet all material standards imposed by any Governmental
Authority having regulatory authority over such item of Inventory, its
use or its sale;
(ii) Inventory which the Administrative Agent determines, in
the exercise of its reasonable discretion, exercised individually or at
the direction of the Required Lenders (which discretion shall not be
exercised in a manner that is arbitrary or capricious and shall be
exercised in a manner not inconsistent with the manner in which the
initial ineligibility standards were determined), to be unacceptable
due to age, type, category and/or quantity;
(iii) Inventory consisting of packaging material and
supplies;
(iv) Inventory which (a) is consigned to a third party for
sale or (b) is on consignment from a third party to Brightpoint for
sale;
(v) Inventory consisting of phone equipment which is not
compatible with the cellular or portable phone systems in the United
States of America;
(vi) Inventory which consists of goods in transit;
(vii) Inventory which is subject to a Lien in favor of any
Person other than the Administrative Agent;
(viii) Inventory with respect to which the Administrative
Agent does not have a first and valid fully-perfected security
interest;
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(ix) Inventory which is not located either (a) on
Brightpoint's or BLAH's owned premises in the United States listed on
Schedule 2 to the Security Agreement or (b) in other owned or leased
premises, warehouses or with bailees in the United States not listed on
Schedule 2 to the Security Agreement permitted to be established under
the Security Agreement, in each case in connection with which the
Administrative Agent shall have received landlord, mortgagee, bailee
and/or warehousemen's access and lien waiver agreements, as applicable,
in each case in form and substance reasonably acceptable to the
Administrative Agent;
(x) Inventory which is evidenced by a Receivable; and
(xi) Inventory which is not in full conformity with the
representations and warranties made by Brightpoint and BLAH to the
Administrative Agent with respect thereto whether contained in this
Agreement or the Security Agreement.
Without limiting the foregoing, (i) Inventory of Brightpoint or BLAH which is
acquired pursuant to a Permitted Acquisition shall be treated as Eligible
Inventory only if the Administrative Agent, acting individually or at the
direction of the Required Lenders, after concluding any due diligence reasonably
deemed necessary, shall be satisfied as to the condition thereof and that such
Inventory would not otherwise be ineligible under the ineligibility standards
set forth herein (including, without limitation, each of perfection and priority
of the Administrative Agent's security interests in such Inventory) and (ii)
Inventory acquired pursuant to such Permitted Acquisition may be deemed Eligible
Inventory from and after such Permitted Acquisition if the foregoing
determinations have been made to the Administrative Agent's satisfaction.
"ELIGIBLE RECEIVABLES" means Receivables created by Brightpoint and
BLAH in the ordinary course of its business arising out of the sale of goods or
rendition of services by Brightpoint or BLAH, which Receivables are not rendered
ineligible by the provisions set forth herein. Brightpoint and BLAH each
understands and agrees that the standards of ineligibility may be revised from
time to time by the Administrative Agent in its reasonable credit judgment,
exercised individually or at the direction of the Required Lenders (which credit
judgment shall be exercised in a manner that is not arbitrary or capricious and
shall be exercised in a manner not inconsistent with the manner in which the
initial ineligibility standards were determined); provided, without the consent
of the Required Lenders, the Administrative Agent shall not be permitted to
revise the ineligibility criteria set forth below in any manner which would
increase the Amount Available for Borrowing. The following Receivables are
ineligible and shall not be included in Eligible Receivables:
(i) Receivables which remain unpaid ninety (90)days after the
due date or one-hundred-twenty (120) days after the date of the
original applicable invoice ("AGED RECEIVABLES");
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(ii) all Receivables owing by a single Account Debtor
(including a Receivable which is not an Aged Receivable if fifty
percent (50%) or more of the balance owing by such Account Debtor,
calculated without taking into account any credit balances of such
Account Debtor, remains unpaid ninety (90) days after the due date or
one-hundred-twenty days (120) after the date of the original applicable
invoice or is otherwise ineligible for any reason;
(iii) Receivables with respect to which the Account Debtor is
a director, officer, employee, Subsidiary or Affiliate of Brightpoint;
(iv) Receivables with respect to which the Account Debtor is
(a) any federal Governmental Authority, the United States of America,
or, in each case, any department, agency or instrumentality thereof,
unless with respect to any such Account, Brightpoint or BLAH has
complied to the Administrative Agent's satisfaction with the provisions
of the Federal Assignment of Claims Act or other applicable statutes,
including, without limitation, executing and delivering to
Administrative Agent all statements of assignment and/or notification
which are in form and substance acceptable to Administrative Agent and
which are deemed necessary by Administrative Agent to effectuate the
assignment to the Administrative Agent of such Accounts on behalf of
the Lenders or (b) any state, county or municipal Governmental
Authority or any agency or instrumentality thereof;
(v) Receivables not denominated in U.S. Dollars or with
respect to which the Account Debtor is not a resident of the United
States unless the Account Debtor has supplied Brightpoint or BLAH with
an irrevocable letter of credit, issued by a financial institution
satisfactory to the Administrative Agent, sufficient to cover such
Receivable in form and substance satisfactory to the Administrative
Agent;
(vi) Receivables with respect to which the Account Debtor has
(a) asserted a counterclaim, (b) a right of setoff or (c) a receivable
owing from Brightpoint or BLAH but only to the extent of such
counterclaim, setoff or receivable;
(vii) Receivables for which the prospect of payment or
performance by the Account Debtor is or will be impaired as determined
by the Administrative Agent in the exercise of its reasonable credit
judgment, exercised individually or at the direction of the Required
Lenders (which credit judgment shall not be exercised in a manner that
is arbitrary or capricious and shall be exercised in a manner not
inconsistent with the manner in which the initial ineligibility
standards were determined);
(viii) Receivables with respect to which the Administrative
Agent does not have a first and valid fully perfected and enforceable
security interest;
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(ix) Receivables with respect to which the Account Debtor is
the subject of bankruptcy or a similar insolvency proceeding or has
made an assignment for the benefit of creditors or whose assets have
been conveyed to a receiver, trustee or assignee for the benefit of
creditors;
(x) Receivables with respect to which the Account Debtor's
obligation to pay the Receivable is conditional upon the Account
Debtor's approval or is otherwise subject to any repurchase obligation
or return right, as with sales made on a bill-and-hold, guaranteed
sale, sale-and-return, sale on approval (except with respect to
Receivables in connection with which Account Debtors are entitled to
return Inventory on the basis of the quality of such Inventory) or
consignment basis;
(xi) Receivables with respect to which the Account Debtor is
located in New Jersey or Minnesota (or any other jurisdiction which
adopts a statute or other requirement with respect to which any Person
that obtains business from within such jurisdiction or is otherwise
subject to such jurisdiction's tax law requiring such Person to file a
Business Activity Report or make any other required filings in a timely
manner in order to enforce its claims in such jurisdiction's courts or
arising under such jurisdiction's laws); provided, however, such
Receivables shall nonetheless be eligible if Brightpoint or BLAH has
filed a Business Activity Report (or other applicable report) with the
applicable state office or is qualified to do business in such
jurisdiction and, at the time the Receivable was created, was qualified
to do business in such jurisdiction or had on file with the applicable
state office a current Business Activity Report (or other applicable
report);
(xii) Receivables with respect to which the Account Debtor's
obligation does not constitute its legal, valid and binding obligation,
enforceable against it in accordance with its terms;
(xiii) Receivables with respect to which Brightpoint or BLAH
has not yet shipped the applicable goods, performed the applicable
service or issued the applicable invoice;
(xiv) Receivables with respect to which Brightpoint requires
cash or delivery;
(xv) any Receivable which is not in conformity with the
representations and warranties made by Brightpoint or BLAH to the
Administrative Agent with respect thereto whether contained in this
Agreement or the Security Agreement;
(xvi) Receivables in connection with which Brightpoint or BLAH
has not complied with all material requirements contained in the
charter and by-laws or other organizational or governing documents of
Brightpoint and BLAH, and any law, rule or regulation, or determination
of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon Brightpoint or BLAH or any of its
property or
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to which Brightpoint or BLAH or any of its property is subject,
including, without limitation, all laws, rules, regulations and orders
of any Governmental Authority or judicial authority relating to truth
in lending, billing practices, fair credit reporting, equal credit
opportunity, debt collection practices and consumer debtor protection,
applicable to such Receivable (or any related contracts) or affecting
the collectability of such Receivables; and
(xvii) Receivables in connection with which Brightpoint or
BLAH or any other party to such Receivable, is in default in the
performance or observance of any of the terms thereof in any material
respect.
Without limiting the foregoing, (i) Receivables of Brightpoint or BLAH which are
acquired pursuant to a Permitted Acquisition shall be treated as Eligible
Receivables only if the Administrative Agent, acting individually or at the
direction of the Required Lenders, after concluding any due diligence reasonably
deemed necessary, shall be satisfied as to the quality and creditworthiness
thereof and that such Receivables would not otherwise be ineligible under the
ineligibility standards set forth herein (including, without limitation, lack of
perfection and priority of the Administrative Agent's security interests in such
Receivables) but for the fact that they were acquired by Brightpoint or BLAH
outside of the ordinary course of business and (ii) Receivables acquired
pursuant to such Permitted Acquisition may be deemed Eligible Receivables from
and after such Permitted Acquisition if the foregoing determinations have been
made to the Administrative Agent's satisfaction.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ? 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ? 651 et seq., and the Resource Conservation and Recovery Act of 1976,
42 U.S.C. ? 6901 et seq., in each case including any amendments thereto, any
successor statutes, and any regulations or guidance promulgated thereunder, and
any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for
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environmental reasons, including, but not limited to, any so-called "Industrial
Site Recovery Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the present and future (i) equipment,
including, without limitation, machinery, manufacturing, distribution, selling,
data processing and office equipment, assembly systems, tools, molds, dies,
fixtures, appliances, furniture, furnishings, vehicles, vessels, aircraft,
aircraft engines, and trade fixtures, (ii) other tangible personal property
(other than the Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof
owned by Brightpoint or any of the other Borrowers.
"EQUITY INTERESTS" means Capital Stock and all warrants, options
purchase rights, conversion or exchange rights, other rights to acquire Capital
Stock and all voting rights, calls or claims of any character with respect
thereto (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date means the equivalent in such currency of such amount of
Dollars, calculated on the basis of the then applicable Exchange Rate rounded up
to the nearest incremental amount of such currency as determined by the
Administrative Agent from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Advance for any specified Eurocurrency Interest Period:
(a) for any Eurocurrency Rate Advance in any Agreed Currency
other than euro, either:
(i) the rate of interest per annum equal to the rate
for deposits in the applicable Agreed Currency in the
approximate amount of the pro rata share of the Administrative
Agent of such Eurocurrency Rate Advance with a maturity
approximately equal to such Interest Period which appears on
Telerate Page 3740 or Telerate Page 3750, as applicable, or,
if there is more than one such rate, the
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average of such rates rounded to the nearest 1/100 of 1%, as
of 11:00 a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period or
(ii) if no such rate of interest appears on Telerate
Page 3740 or Telerate Page 3750, as applicable, for any
specified Interest Period, the rate at which deposits in the
applicable Agreed Currency are offered by the Administrative
Agent to first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Interest Period, in the
approximate amount of the Pro Rata Share of Bank One of such
Eurocurrency Rate Advance and having a maturity approximately
equal to such Interest Period; and
(b) with respect to any Eurocurrency Rate Advance in euro for
any Interest Period, the interest rate per annum equal to the rate
determined by the Administrative Agent, as of 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period,
to be the rate at which deposits in euro appear on that page of the
Bloomberg's or Reuters' Screen which displays British Bankers
Association Interest Settlement Rates for deposits in euro for such
Interest Period or, if such page or service shall cease to be
available, such other page or such other service (as the case may be)
for the purpose of displaying British Bankers Association Interest
Settlement Rates for euro as the Administrative Agent, in its
discretion, shall select; provided, that if no such rate is displayed
for euro and the relevant Interest Period and there is no euro
alternative service on which two or more such quotations for euro are
displayed, then Eurocurrency Base Rate shall be an interest rate per
annum equal to rate per annum at which deposits in euro are offered by
the Administrative Agent for that Interest Period to prime banks in the
London interbank market on or about 11:00 a.m. (London time) on the
date which is two (2) Business Days prior to the first day of such
Interest Period.
The terms "Telerate Page 3740" and "Telerate Page 3750" mean the
display designated as "Page 3740" and "Page 3750", as applicable, on
the Associated Press-Dow Jones Telerate Service (or such other page as
may replace Page 3740 or Page 3750, as applicable, on the Associated
Press-Dow Jones Telerate Service or such other service as may be
nominated by the British Bankers' Association as the information vendor
for the purpose of displaying British Bankers' Association interest
rate settlement rates for the relevant Agreed Currency). Any
Eurocurrency Base Rate determined on the basis of the rate displayed on
Telerate Page 3740 or Telerate Page 3750, or on the Bloomberg's or
Reuter's Screen, in accordance with the foregoing provisions of this
subparagraph shall be subject to corrections, if any, made in such rate
and displayed by the Associated Press-Dow Jones Telerate Service, or
Bloomberg's or Reuters, as applicable, within one hour of the time when
such rate is first displayed by such service.
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"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent means, for
each of the Agreed Currencies, the office, branch or affiliate of the
Administrative Agent, specified as the "EUROCURRENCY PAYMENT ADDRESS" for such
currency on the signature page for each Lender hereto or such other office,
branch, affiliate or correspondent bank of the Administrative Agent, as it may
from time to time specify to the Borrowers and each Lender as its Eurocurrency
Payment Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Advance
for the relevant Interest Period, the sum of (a) (i) the Eurocurrency Base Rate
divided by (ii) one minus the Reserve Requirement (expressed as a decimal)
applicable to such Interest Period plus (b) the percentage determined in
accordance with Section 2.8(b) to be the Applicable Fixed Rate Margin in
connection with Eurocurrency Rate Loans.
"EUROCURRENCY RATE ADVANCE" means an Advance which bears interest at
the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurocurrency Rate.
"EXCHANGE RATE" means with respect to any Eligible Currency or
Alternate Currency on a particular date, the rate at which such Eligible
Currency or Alternate Currency may be exchanged into Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent or the Alternate Currency Lender, as applicable, in the
London interbank market (or other market where the Administrative Agent's or the
Alternate Currency Lender's foreign currency exchange operations in respect of
such Eligible Currency or Alternate Currency, respectively, are then being
conducted) for such Eligible Currency or Alternate Currency, respectively, at or
about 1:00 p.m. local time, on such date for the purchase of Dollars with such
Eligible Currency or Alternate Currency for delivery two (2) Business Days
later; provided, however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent or Alternate
Currency Lender, as applicable, may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error.
"EXISTING LETTERS OF CREDIT" means the letters of credit issued prior
to the Original Closing Date by Bank One, Indiana, N.A. for the account of one
or more of the Borrowers and listed on Schedule 1.1.1 and the letters of credit
issued prior to the Closing Date pursuant to the Original Credit Agreement and
listed on Schedule 1.1.1.
"FACILITY LETTER(S) OF CREDIT" means (i) the Existing Letters of Credit
and (ii) the letters of credit to be issued by one of the Issuing Lenders
pursuant to Section 2.20 hereof.
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"FEDERAL FUNDS EFFECTIVE RATE" is defined in the definition of
Alternate Base Rate above.
"FEES" is defined in Section 6.4(A) hereof.
"FIXED CHARGE COVERAGE RATIO" is defined in Section 6.4(C) hereof.
"FIXED RATE LOANS" means any Loan which bears interest at a fixed
interest rate for the applicable Interest Period determined by reference to the
Eurocurrency Rate or, for Alternate Currency Loans, by reference to the
applicable fixed rate of interest agreed to between the Alternate Currency
Lender and the applicable Subsidiary Borrower.
"FLOATING RATE LOANS" means any Loan which bears interest at a
fluctuating interest rate determined by reference to the Alternate Base Rate or,
for Alternate Currency Loans, by reference to the applicable floating rate of
interest agreed to between the Alternate Currency Lender and the applicable
Subsidiary Borrower.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of Brightpoint, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit
of employees of Brightpoint, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA,
and (iii) under applicable local law, is required to be funded through a trust
or other funding vehicle.
"FRENCH FRANCS" or "FF" means the lawful money of the Republic of
France.
"GLOBAL TRADING BUSINESS" means the business of the Borrower and/or its
Subsidiaries of buying products from sources other than manufacturers or network
operators and selling to customers other than network operators, their dealers
or their other representatives.
"GOVERNMENTAL ACTS" is defined in Section 2.25(a) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
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"GROSS AMOUNT OF ELIGIBLE INVENTORY" means Eligible Inventory valued at
the lower of cost determined on a first-in-first-out basis (determined in
accordance with Agreement Accounting Principles, consistently applied) or market
value less (i) the value of reserves which have been recorded by Brightpoint
with respect to obsolete, slow-moving or excess Inventory and (ii) such other
reserves as the Administrative Agent elects to establish in accordance with its
reasonable credit judgment (which credit judgment shall be exercised in a manner
that is not arbitrary or capricious and shall be exercised in a manner not
inconsistent with the manner in which the initial reserves were determined).
"GROSS AMOUNT OF ELIGIBLE RECEIVABLES" means the outstanding face
amount of Eligible Receivables, determined in accordance with Agreement
Accounting Principles, consistently applied, less (i) all finance charges, late
fees and other fees that are unearned, (ii) the value of any accrual which has
been recorded by Brightpoint with respect to downward price adjustments, (iii) a
warranty reserve in an amount reasonably sufficient for purposes of meeting
Brightpoint's warranty obligations or warranty sharing obligations; and (iv)
such other reserves as the Administrative Agent elects to establish in
accordance with its reasonable credit judgment (which credit judgment shall be
exercised in a manner that is not arbitrary or capricious and shall be exercised
in a manner not inconsistent with the manner in which the initial reserves were
determined).
"GROSS NEGLIGENCE" means recklessness, the absence of the slightest
care or the complete disregard of consequences. Gross Negligence does not mean
the absence of ordinary care or diligence, or an inadvertent act or inadvertent
failure to act. If the term "gross negligence" is used with respect to the
Administrative Agent, the Arranger or any Lender or any Indemnitee in any of the
other Loan Documents, it shall have the meaning set forth herein.
"GUARANTOR ASSUMPTION LETTER" means a letter of a Domestic Subsidiary
of Brightpoint addressed to the Lenders substantially in the form of Exhibit C
hereto pursuant to which such Domestic Subsidiary agrees to become a "Guarantor"
and agrees to be bound by the terms hereof.
"GUARANTORS" shall mean (a) with respect to all of the Secured
Obligations, Brightpoint, BPI, BLAH, Brightpoint North America, Inc., Wireless
Fulfillment Services LLC and each Domestic Subsidiary of Brightpoint which
becomes a Guarantor pursuant to the terms of Section 6.2(M) and (b) with respect
to the Secured Obligations made to the Subsidiary Borrowers, each such
Subsidiary Borrower to the extent not prohibited by applicable law.
"HEDGING AGREEMENTS" is defined in Section 6.3(Q).
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor),
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<PAGE> 36
under (i) any and all agreements, devices or arrangements designed to protect at
least one of the parties thereto from the fluctuations of interest rates,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect of
its Loans (including, if applicable, any agency or Affiliate of the Alternate
Currency Lender utilized for making Alternate Currency Loans), (ii) each of the
Issuing Lenders and the Alternate Currency Lender in respect of Reimbursement
Obligations and other Obligations relating to its Facility Letters of Credit
(including, if applicable, any agency or Affiliate of the Alternate Currency
Lender utilized for issuing any Alternate Currency Letters of Credit), (iii) the
Administrative Agent, the Arranger, the Swing Line Lender and the Issuing
Lenders in respect of all other present and future obligations and liabilities
of any Borrower or any of their subsidiaries of every type and description
arising under or in connection with this Agreement or any other Loan Document,
(iv) each Indemnitee in respect of the obligations and liabilities of any
Borrower to such Person hereunder or under any of the Loan Documents, (v) each
Lender (or any agency or Affiliate thereof) in respect of all Hedging
Obligations of any Borrower or any of their Subsidiaries to such lender (or
agency or Affiliate thereof) and (vi) their respective successors, transferees
and assigns.
"HONG KONG DOLLARS" or "HK$" means the lawful money of Hong Kong.
"INDEBTEDNESS" of any Person means (i) any indebtedness of such Person,
contingent or otherwise, (a) in respect of borrowed money including all
principal, interest, fees and expenses with respect thereto (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or (b) evidenced by bonds, notes, acceptances, debentures or
other instruments or letters of credit (or reimbursement obligations with
respect thereto, including, in the case of the Borrowers, Reimbursement
Obligations under the Letters of Credit) or representing the balance deferred
and unpaid of the purchase price of any property (including pursuant to
Capitalized Leases) or services, if and to the extent any of the foregoing
indebtedness would appear as a liability upon a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles (except that any
such balance that constitutes a trade payable and/or an accrued liability
arising in the ordinary course of business shall not be considered Indebtedness
and except that accounts payable in an amount not to exceed in the aggregate
$250,000 of the nature described above shall also not be considered
Indebtedness); (ii) to the extent not otherwise included, (a) interest accruing
after the commencement of any bankruptcy, insolvency, receivership or similar
proceedings and other interest that would have accrued but for the commencement
of such proceedings, (b) any Capitalized Lease Obligations,
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<PAGE> 37
(c) obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
Person, and (d) Contingent Obligations (exclusive of whether such items would
appear upon such balance sheet). The amount of Indebtedness of any Person at any
date shall be without duplication (i) the outstanding balance at such date of
all unconditional obligations as described above and the maximum liability of
any such Contingent Obligations at such date and (ii) in the case of
Indebtedness of others secured by a Lien to which the property or assets owned
or held by such Person is subject, the lesser of the fair market value at such
date of any asset subject to a Lien securing the Indebtedness of others and the
amount of the Indebtedness secured. Notwithstanding anything herein to the
contrary, if any Contingent Obligations of Brightpoint or any of its
Subsidiaries related to liabilities of any other of Brightpoint and its
Subsidiaries (the "Originator") and such liabilities would not be considered
Indebtedness of such Originator, then the Contingent Obligation of the other
Person with respect to such liabilities shall also not be considered
Indebtedness.
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
"INDEMNITEES" is defined in Section 10.7(B) hereof.
"INDENTURE" means that certain Indenture dated as of March 11, 1998 by
and between Brightpoint and Chase Manhattan Bank, as trustee, pursuant to which
the LYONS were issued, as amended, supplemented or modified in accordance with
Section 6.3(R) hereof.
"INITIAL BORROWING BASE ADJUSTMENT" means an adjustment in the advance
rates and eligibility criteria set forth in the definitions of "Borrowing Base,"
"Eligible Inventory," "Eligible Receivables," "Gross Amount of Eligible
Inventory" and "Gross Amount of Eligible Receivables" made by the Administrative
Agent by written notice to the Borrowers and the Lenders as a result of the
report of the Administrative Agent's collateral auditing staff after an audit,
to be concluded on or prior to September 15, 1999, of the Borrower's and BLAH's
Receivables and Inventory and books and records, such adjustments to be made if
the information obtained by such collateral auditing staff differs in any
material respect from the information previously supplied to the Administrative
Agent or the assumptions used by the Administrative Agent in establishing the
initial advance rates and eligibility criteria set forth in this Agreement.
"INTERCOMPANY LOANS" is defined in Section 6.3(A)(c).
"INTEREST EXPENSE" is defined in Section 6.4(A) hereof.
"INTEREST EXPENSE COVERAGE RATIO" is defined in Section 6.4(B) hereof.
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"INTEREST PERIOD" means, with respect to a Eurocurrency Rate Loan, a
period of one (1), two (2), three (3) or six (6) months commencing on a Business
Day selected by the applicable Borrower pursuant to this Agreement. Such
Interest Period shall end on (but exclude) the day which corresponds numerically
to such date one, two, three or six months thereafter; provided, however, that
if there is no such numerically corresponding day in such next, second, third or
sixth succeeding month, such Interest Period shall end on the last Business Day
of such next, second, third or sixth succeeding month. If an Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day, provided, however, that if said
next succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"INVENTORY" means any and all goods, including, without limitation,
goods in transit, wheresoever located, whether now owned or hereafter acquired
by Brightpoint or BPI which are held for sale or lease, furnished under any
contract of service or held as raw materials, work in process or supplies, and
all materials used or consumed in the business of Brightpoint or BPI, and shall
include such property the sale or other disposition of which has given rise to
Receivables and which has been returned to or repossessed or stopped in transit
by Brightpoint or BPI. Notwithstanding anything herein to the contrary,
"Inventory" shall not include any goods which are consigned to Brightpoint or
BPI by any third party.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Equity Interest, notes, debentures or
other securities, or of a beneficial interest in any Equity Interest, notes,
debentures or other securities, issued by any other Person, (ii) any purchase by
that Person of all or substantially all of the assets of a business conducted by
another Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items in each case made or
incurred in the ordinary course of business) or capital contribution by that
Person to any other Person, including all Indebtedness to such Person arising
from a sale of property by such Person other than in the ordinary course of its
business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING LENDER" means, as the context may require, (i) Bank One (or
its predecessors) with respect to Facility Letters of Credit issued by it
pursuant to this Agreement, (ii) Bank One, with respect to the Existing Letters
of Credit, (iii) any other Lender that becomes an Issuing Lender, pursuant to
Section 2.20, with respect to Facility Letters of Credit issued by such Lender,
(iv) the Alternate Currency Lender with respect to the issuance of Alternate
Currency Letters of Credit or (v) collectively, all the foregoing.
"ITALIAN LIRE" means the lawful money of Italy.
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"JAPANESE YEN" means the lawful money of Japan.
"L/C DRAFT" means a draft drawn on an Issuing Lender pursuant to a
Facility Letter of Credit.
"L/C INTEREST" is defined in Section 2.21.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Facility Letters of Credit, (ii) the face amount of all outstanding L/C
Drafts corresponding to the Facility Letters of Credit, which L/C Drafts have
been accepted by the Issuing Lender, (iii) the aggregate outstanding amount of
all Reimbursement Obligations with respect to the Facility Letters of Credit at
such time and (iv) the aggregate face amount of all Facility Letters of Credit
requested by any Borrower but not yet issued (unless the request for an unissued
Facility Letter of Credit has been denied).
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement, including the Issuing Lenders, the Alternate Currency Lender
and the Swing Line Lender and their respective successors and assigns. Each
reference in this Agreement to any Lender shall, to the extent applicable, be
deemed to be a reference to the Alternate Currency Lender.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, Subsidiary or affiliate of such Lender
or the Administrative Agent.
"LETTER(S) OF CREDIT" means (i) the Facility Letters of Credit and (ii)
the Alternate Currency Letters of Credit.
"LEVERAGE RATIO" means the ratio of (i) the sum of (a) Indebtedness of
Brightpoint and its consolidated Subsidiaries for borrowed money and (b)
Capitalized Lease Obligations to (ii) EBITDA. The Leverage Ratio shall be
calculated, in each case, determined as of the last day of each fiscal quarter
based upon (A) for Indebtedness (including Permitted Subordinated Indebtedness)
and Capitalized Lease Obligations, Indebtedness and Capitalized Lease
Obligations as of the last day of each such fiscal quarter; and (B) for EBITDA,
the actual amount for the preceding fiscal two-quarter period ending on such day
multiplied by two (2); provided, however, there shall be excluded from the
calculation of EBITDA, the EBITDA attributable to Brightpoint and its
Subsidiaries' discontinued Global Trading Business.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential
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arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"LOAN(S)" means, (i) with respect to a Lender, such Lender's portion of
any Advance made pursuant to Section 2.1, (ii) with respect to the Swing Line
Lender, its Swing Line Loans, (iii) with respect to the Alternate Currency
Lender, its Alternate Currency Loans, and (iv) collectively all Loans, whether
Revolving Loans, Alternate Currency Loans or Swing Line Loans and whether made
or continued as or converted to Floating Rate Loans or Fixed Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.14(F) hereof.
"LOAN DOCUMENTS" means this Agreement, the Alternate Currency
Documents, the Notes, the Collateral Documents and all other documents,
instruments and agreements executed in connection therewith or contemplated
thereby, including the letter agreements regarding fees among the Administrative
Agent, the Arranger and Brightpoint and between the Administrative Agent and the
Borrower, in each case as the same may be amended, restated or otherwise
modified and in effect from time to time.
"LYONS"? means those certain Liquid Yield Option? Notes due 2018 (Zero
Coupon -- Subordinated), issued by Brightpoint pursuant to the Indenture, as the
same may be amended, supplemented or modified in accordance with Section 6.3(R)
hereof.
"MANAGEMENT" means those Persons listed on Schedule 1.1.5 under such
heading.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of Brightpoint and its Subsidiaries taken as a whole,
(b) the ability of any Borrower to perform its respective obligations under the
Loan Documents in any material respect, or (c) the ability of the Lenders or the
Administrative Agent to enforce in any material respect the Obligations or their
rights with respect to the Collateral other than any such inability resulting
form the Gross Negligence or willful misconduct of any Lender or the
Administrative Agent.
"MATERIAL SUBSIDIARY" shall mean a direct or indirect Subsidiary of
Brightpoint the consolidated total assets (directly and together with its
Subsidiaries) of which are, at any time, greater than $3,000,000; provided that
Brightpoint JBA, L.L.C. shall not be considered a "Material Subsidiary"
hereunder so long as such Subsidiary engages in no other activity other than
owning, directly or indirectly, an interest in a jet engine aircraft.
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"MAXIMUM EUROCURRENCY AMOUNT" means One-Hundred Twenty-Five Million and
00/100 Dollars ($125,000,000).
"MAXIMUM AGGREGATE ALTERNATE CURRENCY AMOUNT" means Twenty-Two Million
Eight Hundred Twenty-Six Thousand Eighty Seven and 00/100 Dollars
($22,826,087.00).
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
lesser of (A) the Aggregate Revolving Loan Commitment at such time and (B) the
Borrowing Base at such time.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either Brightpoint or any member of the Controlled Group.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"NET INCOME" is defined in Section 6.4(A) hereof.
"NON PRO RATA LOAN" is defined in Section 8.2 hereof.
"NOTES" means the Revolving Notes, any notes issued to evidence the
Alternate Currency Loans, and the Swing Line Loan Note.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
"OBLIGATIONS" means all Loans, Alternate Currency Loans, reimbursement
obligations with respect to Facility Letters of Credit and Alternate Currency
Letters of Credit, advances, debts, liabilities, obligations, covenants and
duties owing by any of the Borrowers, Subsidiary Borrowers or Guarantors to the
Administrative Agent, the Arranger, any of the Lenders, the Alternate Currency
Lender, the Issuing Lenders, the Swing Line Lender, any Affiliate of any of the
foregoing or any Indemnitee, of any kind or nature, present or future, arising
under this Agreement, the Notes, the Collateral Documents, any other Loan
Document, whether or not evidenced by any note, guaranty or other instrument,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all interest, charges,
expenses, fees, attorneys' fees and disbursements, paralegals' fees (in each
case whether or not allowed), and any other sum
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chargeable to any of the Borrowers or Guarantors under this Agreement or any
other Loan Document.
"ORIGINAL ADMINISTRATIVE AGENT" means NBD Bank, N.A. (as successor to
The First National Bank of Chicago), in its capacity as the "Administrative
Agent" under the Original Credit Agreement.
"ORIGINAL CLOSING DATE" means May 13, 1998.
"ORIGINAL CREDIT AGREEMENT" means the Amended and Restated
Multicurrency Credit Agreement dated as of May 13, 1998 (which amended and
restated the Multicurrency Credit Agreement dated as of June 24, 1997) among
Brightpoint, BPI, certain subsidiaries of Brightpoint, and the Administrative
Agent, as the same was amended prior to the date hereof by Amendments 1 through
4 thereto.
"OTHER TAXES" is defined in Section 2.14(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June,
September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in Section 6.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrowers and all other Subsidiaries of Brightpoint
identified as such on Schedule 1.1.2 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrowers and all other Subsidiaries of Brightpoint identified as such on
Schedule 1.1.3 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrowers
and all other Subsidiaries of Brightpoint identified as such on Schedule 1.1.4
to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrowers
or all other Subsidiaries of Brightpoint identified as such on Schedule 1.1.5 to
this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" is defined in Section 6.3(A)
hereof.
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"PERMITTED SUBORDINATED INDEBTEDNESS" means the Indebtedness evidenced
by the LYONS.
"PERSON" means any natural person, corporation, firm, company, joint
venture, partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which Brightpoint or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means: (i) that certain Pledge Agreement dated as
of the Original Closing Date executed by Brightpoint in favor of the
Administrative Agent for the benefit of the Holders of Secured Obligations
pledging 100% of the Capital Stock of BPI to secure payment of the Secured
Obligations; (ii) that certain Pledge Agreement dated as of April 17, 1998
executed by Brightpoint in favor of the Administrative Agent for the benefit of
the Holders of Secured Obligations pledging 100% of the Capital Stock of
Brightpoint Latin America Holdings, Inc., an Indiana corporation, 100% of the
Capital Stock of Wireless Fulfillment Services LLC and the Capital Stock of any
other "Pledged Subsidiary" set forth therein from time to time to secure payment
of the Secured Obligations; (iii) that certain Pledge of Shares dated April 17,
1998 executed by BPI in favor of the Administrative Agent for the benefit of the
Holders of Secured Obligations pledging 65% of the Capital Stock of Brightpoint
BV1 to secure payment of the Secured Obligations; (iv) that certain Pledge of
Shares dated April 17, 1998 executed by Brightpoint BV1 in favor of the
Administrative Agent for the benefit of the Holders of Secured Obligations
pledging 65% of the Capital Stock of Brightpoint BV2 to secure payment of the
Secured Obligations; and (v) any other pledge agreements subsequently executed
by Brightpoint or any of its Subsidiaries to secure the Secured Obligations,
together in each case with all documents, instruments and agreements executed in
connection therewith or contemplated thereby.
"PRIME RATE" is defined in the definition of Alternate Base Rate above.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (A) such Lender's Revolving Loan Commitment, or, with
respect to the Alternate Currency Lender, its Alternate Currency Commitment, at
such time (as adjusted from time to time in accordance with the provisions of
this Agreement) by (B) the Aggregate Commitment of the Lenders at such time;
provided, however, if all of the Commitments are terminated pursuant to the
terms of this Agreement, then "Pro Rata Share" means the percentage obtained by
dividing (x) the sum of all of such Lender's Loans and L/C Obligations by (y)
the aggregate amount of all Loans and L/C Obligations.
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"PURCHASERS" is defined in Section 13.3(A) hereof.
"RATE OPTION" means the applicable Fixed Rate or Floating Rate.
"RC BUYING LENDER" is defined in Section 2.4(f).
"RC SELLING LENDER" is defined in Section 2.4(f).
"REALLOCATED SHARE" is defined in Section 2.4(f).
"RECEIVABLE(S)" means and includes all of Brightpoint's or BPI's
presently existing and hereafter arising or acquired accounts, accounts
receivable, and all present and future rights of Brightpoint or BPI to payment
for goods sold or leased or for services rendered (except those evidenced by
instruments or chattel paper), whether or not they have been earned by
performance, including, without limitation, all rights in any merchandise or
goods which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"REGISTER" is defined in Section 13.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying Margin
Stock applicable to member banks of the Federal Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 2.22 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment,
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including the movement of Contaminants through or in the air, soil, surface
water or groundwater.
"RENTALS" is defined in Section 6.4(A) hereof.
"REPLACEMENT LENDER" is defined in Section 2.19 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs; provided, however, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are at least sixty-six and two-thirds percent (66-2/3%), provided,
however, that, if any of the Lenders shall have failed to fund its Revolving
Credit Share of any Loan requested by any Borrower which such Lenders are
obligated to fund under the terms of this Agreement and any such failure has not
been cured, then for so long as such failure continues, "REQUIRED LENDERS" means
Lenders (excluding all Lenders whose failure to fund such Loans have not been so
cured) whose Pro Rata Shares represent at least sixty-six and two-thirds percent
(66-2/3%) of the aggregate Pro Rata Shares of such non-defaulting Lenders;
provided, further, however, that, if the Commitments have been terminated
pursuant to the terms of this Agreement, "REQUIRED LENDERS" means Lenders
(without regard to such Lenders' performance of their respective obligations
hereunder) whose aggregate ratable shares (stated as a percentage) of the
aggregate outstanding principal balance of all Loans and L/C Obligations are at
least sixty-six and two-thirds percent (66-2/3%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or Permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVE REQUIREMENT" means the maximum reserve requirement, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) with respect to
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"Eurocurrency liabilities" or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurocurrency
Rate Loans is determined or category of extensions of credit or other assets
which includes loans by a non-United States office of any Lender to United
States residents.
"RESET DATE" is defined in Section 1.3.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any ownership, membership or
other Equity Interest in Brightpoint now or hereafter outstanding, except a
dividend payable solely in additional interests of the same type, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any ownership, membership or other
Equity Interest in Brightpoint or any such interests or shares of any class of
Capital Stock of Brightpoint now or hereafter outstanding, (iii) any payment or
prepayment of principal of, premium, if any, or interest, fees or other charges
on or with respect to, and any redemption, purchase, retirement, defeasance,
sinking fund or similar payment and any claim for rescission with respect to any
Permitted Subordinated Indebtedness, (iv) any payment made to redeem, purchase,
repurchase or retire, or to obtain the surrender of, any outstanding options or
other rights to acquire any ownership, membership or other Equity Interests in
Brightpoint, (v) any payment of a claim for the rescission of the purchase or
sale of, or for material damages arising from the purchase or sale of any
Permitted Subordinated Indebtedness or any ownership, membership or other Equity
Interests in Brightpoint or of a claim for reimbursement, indemnification or
contribution arising out of or related to any such claim for damages or
rescission and (vi) any payment of management fees (or other fees of a similar
nature) by Brightpoint to any holder of ownership, membership or other Equity
Interests in Brightpoint or any member of management of Brightpoint or their
Affiliates.
"RESTRUCTURING PLAN" means the restructuring plan announced on June 30,
1999 by Brightpoint, including, (i) elimination or restructuring of certain
non-performing business activities, which will include disposal of operations in
the United Kingdom, restructuring of operations in China (including exiting from
two operating agreements), sale of the Hong-Kong based accessories company,
disposal of operations in Argentina and Poland, reduction of the scope of
business in Taiwan, closing of the distribution center in the Netherlands, (ii)
and improving the cost structure in Brightpoint and its Subsidiaries'
businesses.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
lesser of (a) the amount by which the Aggregate Revolving Loan Commitment
exceeds the Dollar Amount of the Revolving Credit Obligations and (b) the Amount
Available for Borrowing at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time,
plus (ii) the L/C Obligations at such time plus (iii) the outstanding principal
amount of the Swing Line Loans at such time.
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"REVOLVING CREDIT SHARE" means, with respect to any Lender, the
percentage obtained by dividing (A) such Revolving Lender's Revolving Loan
Commitment at such time by (B) the Aggregate Revolving Loan Commitment at such
time.
"REVOLVING LOAN" is defined in Section 2.1.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Facility
Letters of Credit Swing Line Loans and Alternate Currency Credits under Section
2.4 not exceeding the Dollar Amount set forth on Exhibit D to this Agreement
opposite its name thereon under the heading "Revolving Loan Commitment" or in
the assignment and acceptance by which it became a Lender, as such amount may be
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable assignment and acceptance.
"REVOLVING NOTE" means (a) the master promissory note, in substantially
the form of Exhibit E hereto, duly executed by a Borrower and issued to the
Administrative Agent on behalf of all of the Lenders which have made or
purchased Revolving Loans in the amount of the Aggregate Revolving Loan
Commitment, including any amendment, restatement, modification, renewal or
replacement of such Revolving Note and (b) any individual promissory note issued
by each of Brightpoint and BPI to any Lender requesting such individual
promissory note and in substantially the form of Exhibit F hereto, duly executed
by a Borrower and payable to the order of a Lender in the amount of its
Revolving Loan Commitment (or, if to the Alternate Currency Lender in respect of
a purchase thereby of any Revolving Credit Obligations pursuant to Section 2.4,
in the aggregate amount of the Revolving Credit Obligations so purchased,
including any amendment, restatement, modification, renewal or replacement of
such Revolving Note.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 3.2 hereof.
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and (ii)
all Hedging Obligations owing to one or more of the Lenders (or any agency or
Affiliate thereof).
"SECURITY AGREEMENTS" means (a) those certain Security Agreements dated
as of the Original Closing Date executed by Brightpoint and BPI, respectively,
in favor of the Administrative Agent for the benefit of the Holders of Secured
Obligations as amended, restated or otherwise modified from time to time and (b)
those security agreements, in substantially the same form as the Security
Agreement executed by Brightpoint, executed by any Material Subsidiary which is
a Domestic Subsidiary pursuant to the terms of Section 6.2(M).
"SINGLE EMPLOYER PLAN" means a Plan maintained by Brightpoint or any
member of the Controlled Group for employees of Brightpoint or any member of the
Controlled Group.
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"STERLING" means the lawful money of the United Kingdom.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding Capital Stock having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one or
more of its Subsidiaries or by such Person and one or more of its Subsidiaries,
or (ii) any company, partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a direct
or indirect Subsidiary of Brightpoint.
"SUBSIDIARY BORROWER" means each direct or indirect Subsidiary of
Brightpoint named as such on the signature pages of an Alternate Currency
Addendum and duly designated by Brightpoint pursuant to Section 2.3(f) hereof to
request Alternate Currency Loans or Alternate Currency Letters of Credit;
provided no Subsidiary may be a Subsidiary Borrower if less than 80% of the
combined voting power of such Subsidiary's Capital Stock ordinarily having the
right to vote at an election of directors of such Subsidiary is owned of record
and beneficially directly or indirectly by Brightpoint, Brightpoint shall have
the power, directly or indirectly to elect a majority of the board of directors
of such Subsidiary and such Subsidiary shall have delivered such documents,
instruments and agreements as may be required pursuant to the terms of this
Agreement.
"SWEDISH KRONER" means the lawful money of Sweden.
"SWING LINE LENDER" means Bank One and any replacement Administrative
Agent that elects to be a Swing Line Lender.
"SWING LINE LOAN" means (a) any Swing Line Loan made pursuant to the
Original Credit Agreement and outstanding on the Closing Date and (b) a loan
made available to either of the Borrowers by the Swing Line Lender pursuant to
Section 2.2.
"SWING LINE LOAN COMMITMENT" means the obligation of the Swing Line
Lender to make Swing Line Loans up to a maximum principal amount of $5,000,000
at any one time outstanding.
"SWING LINE LOAN NOTE" means a the Swing Line Loan Note in
substantially the form of Exhibit F hereto executed by Brightpoint as of the
Original Closing Date and payable to the order of the Swing Line Lender in the
amount, if any, of its Swing Line Loan Commitment.
"SWISS FRANCS"means the lawful money of Switzerland.
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"TAXES" is defined in Section 2.14(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) June 23, 2002 or (b) the
date of termination of the Commitments pursuant to Section 2.6 or Section 8.1.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of Brightpoint or any member of the Controlled
Group from a Benefit Plan during a plan year in which Brightpoint or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of Brightpoint or any member of the Controlled Group; (iii)
the imposition of an obligation on Brightpoint or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Benefit Plan; or (vi) the partial or complete
withdrawal of Brightpoint or any member of the Controlled Group from a
Multiemployer Plan.
"TOTAL CAPITAL" means, at a particular date, the sum of (a)
Consolidated Book Equity on such date plus (b) the aggregate outstanding
principal balance of the LYONS on such date. Unless otherwise specified herein,
Total Capital shall be determined based upon the financial statements most
recently delivered pursuant to the terms of Section 6.1(A).
"TRADEMARK SECURITY AGREEMENT" means that certain Trademark Security
Agreement dated as of the Original Closing Date executed by Brightpoint in favor
of the Administrative Agent for the benefit of the Holders of Secured
Obligations as amended, restated or otherwise modified from time to time.
"TRANSFEREE" is defined in Section 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Base Rate Loan
or a Eurocurrency Rate Loan.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"YEAR 2000 ISSUES" means the anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as it
affects the business, operations, and financial condition of the
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Borrower, or the Borrower and its Subsidiaries and of the Borrower's and its
Subsidiaries' customers, suppliers and vendors.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with United States generally accepted
accounting principles in existence as of the date hereof.
1.2 Supplemental Disclosure. At any time at the request of the
Administrative Agent and at such additional times as Brightpoint determines,
Brightpoint shall supplement each schedule or representation herein or in the
other Loan Documents with respect to any matter hereafter arising which, if
existing or occurring at the date of this Agreement, would have been required to
be set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such schedule
or representation which has been rendered inaccurate thereby. If any such
supplement to such schedule or representation discloses the existence or
occurrence of events, facts or circumstances which are restricted or prohibited
by the terms of this Agreement or any other Loan Documents, such supplement to
such schedule or representation shall not be deemed an amendment thereof unless
expressly consented to in writing by Administrative Agent and the Required
Lenders, and no such amendments, except as the same may be consented to in a
writing which expressly includes a waiver, shall be or be deemed a waiver by the
Administrative Agent or any Lender of any Default disclosed therein. Any items
disclosed in any such supplemental disclosures shall be included in the
calculation of any limits, baskets or similar restrictions contained in this
Agreement or any of the other Loan Documents.
1.3 Currency Equivalents. Not later than 12:00 noon, Indianapolis time
or local time, as applicable, on each Calculation Date, the Administrative Agent
and the Alternate Currency Lender, as applicable, shall (i) determine the
Exchange Rate as of such Calculation Date with respect to each Agreed Currency
and each Alternate Currency as to which an Alternate Currency Addendum is in
effect and (ii) give notice thereof to Brightpoint and the Lenders. The Exchange
Rates so determined shall become effective immediately with respect to any new
Loans being made or Letters of Credit being issued on any Calculation Date and
otherwise on the fifth Business Day immediately following the relevant
Calculation Date (a "RESET DATE"), shall remain effective until the next
succeeding Reset Date and shall during the period of their effectiveness be
employed in making any computation of currency equivalents required to be made
under this Agreement (other than any computation required under Section 2.26).
1.4 Amendment and Restatement of Original Credit Agreement. The parties
to this Agreement agree that, upon (i) the execution and delivery by each of the
parties hereto of this Agreement and (ii) satisfaction of the conditions set
forth in Sections 4.1 and 4.2, the terms and provisions of the Original Credit
Agreement shall be and hereby are amended, superseded and restated in their
entirety by the terms and provisions of this Agreement. This Agreement is not
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intended to and shall not constitute a novation. All Loans made and Secured
Obligations incurred under the Original Credit Agreement which are outstanding
on the Closing Date shall continue as Loans and Obligations under (and shall be
governed by the terms of) this Agreement. Without limiting the foregoing, (a)
all Existing Letters of Credit (as defined in the Original Credit Agreement) and
the Letters of Credit issued for the account of the Borrowers under the Original
Credit Agreement which remain outstanding on the Effective Date shall continue
as Facility Letters of Credit under (and shall be governed by the terms of) this
Agreement and (b) all Secured Obligations consisting of Hedging Obligations
incurred under Hedging Agreements with any Lender or any Affiliate of any Lender
which are outstanding on the Closing Date shall continue as Secured Obligations
under this Agreement and the other Loan Documents.
1.5 Redesignation of the Original Administrative Agent. Bank One has
succeeded to the position of NBD Bank, N.A. with respect to its rights and
responsibilities hereunder as the Administrative Agent. Notwithstanding anything
in the Original Credit Agreement or elsewhere to the contrary, Bank One shall
replace NBD Bank, N.A. as the Administrative Agent under this Agreement, such
replacement shall be deemed to have occurred in accordance with and in
satisfaction of all the requirements with respect thereto set forth in the
Original Credit Agreement and elsewhere, and consent is hereby expressly given
to such replacement.
ARTICLE II: THE CREDITS
2.1 Revolving Loans to Brightpoint and BPI. Upon the satisfaction of
the conditions precedent set forth in Sections 4.1 and 4.2 hereof, from and
including the date of this Agreement and prior to the Termination Date, each
Lender with a Revolving Loan Commitment severally and not jointly agrees, on the
terms and conditions set forth in this Agreement, to make revolving loans to
Brightpoint and/or BPI from time to time, in an Agreed Currency, in a Dollar
Amount not to exceed such Lender's Revolving Credit Share of the Dollar Amount
of the Revolving Credit Availability at such time (each individually, a
"REVOLVING LOAN" and, collectively, the "REVOLVING LOANS"); provided, that, if
any Advance made (or to be made) would, but for this provision, be capable of
being made either in euro or in an applicable National Currency Unit, such
Advance shall be made in euro; and provided further that at no time shall the
Dollar Amount of the Revolving Credit Obligations in Agreed Currencies other
than Dollars exceed the Maximum Eurocurrency Amount other than as a result of
currency fluctuations and then only to the extent permitted in Section 2.5(B).
Each Advance under this Section 2.1 shall consist of Revolving Loans made by
each such Lender ratably in proportion to such Lender's respective Revolving
Credit Share. Subject to the terms of this Agreement, Brightpoint and BPI may
borrow, repay and reborrow at any time prior to the Termination Date. The
Revolving Loans made on the Closing Date shall initially be Base Rate Loans and
thereafter may be continued as Base Rate Loans or converted into Eurocurrency
Rate Loans in the manner provided in Section 2.10 and subject to the other
conditions and limitations therein set forth and set forth in this Article II.
On the Termination Date, the outstanding principal balance of the Revolving
Loans
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shall be paid in full by the applicable Borrower and prior to the Termination
Date prepayments of the Revolving Loans shall be made if and to the extent
required in Section 2.5.
2.2 Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Sections 4.1 and 4.2, from
and including the date of this Agreement and prior to the Termination Date, the
Swing Line Lender agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans in Dollars to Brightpoint from time to time
in an amount not to exceed the lesser of (i) its Swing Line Loan Commitment
minus the outstanding principal balance of all Swing Line Loans then
outstanding; and (ii) the Revolving Credit Availability at such time. Each Swing
Line Loan shall be in a minimum amount of not less than $100,000 (or such lesser
amount as may be agreed to by the Swing Line Lender) or an integral multiple of
$100,000 (or such lesser amount as may be agreed to by the Swing Line Lender) in
excess thereof, and all interest payable on the Swing Line Loans shall be
payable to the Swing Line Lender for its sole account.
(b) Borrowing Notice. Brightpoint shall deliver to the
Administrative Agent a Borrowing Notice signed by it not later than 12:00 noon.
(Indianapolis time) on the Borrowing Date of each Swing Line Loan specifying (i)
the applicable Borrowing Date (which shall be a Business Day) and (ii) the
aggregate amount of the requested Swing Line Loan. The Swing Line Loans shall at
all times be Base Rate Loans.
(c) Making of Swing Line Loans. Not later than 3:00 p.m.
(Indianapolis time) on the applicable Borrowing Date, the Swing Line Lender
shall make available its Swing Line Loan in funds immediately available to
Brightpoint.
(d) Repayment of Swing Line Loans. The Swing Line Loans shall
be evidenced by a Swing Line Loan Note and each Swing Line Loan shall be paid in
full by Brightpoint on or before the fifth Business Day after the Borrowing Date
for such Swing Line Loan. Outstanding Swing Line Loans may be repaid from the
proceeds of Revolving Loans or Swing Line Loans. Any repayment of a Swing Line
Loan shall be accompanied by accrued interest thereon and shall be in the
minimum amount of $100,000 (or such lesser amount as may be agreed to by the
Swing Line Lender) and in increments of $100,000 (or such lesser amount as may
be agreed to by the Swing Line Lender) in excess thereof or the full amount of
such Swing Line Loan. The Administrative Agent (i) may at any time in its sole
discretion with respect to any outstanding Swing Line Loan, or (ii) shall on the
fifth Business Day after the Borrowing Date of any outstanding Swing Line Loan
(notwithstanding the minimum amount of Base Rate Advances as provided in Section
2.9), require each Lender (including the Swing Line Bank) to make a Revolving
Loan in the amount of such Lender's Revolving Credit Share of such Swing Line
Loan, for the purpose of repaying such Swing Line Loan. Unless the
Administrative Agent shall have been notified in writing by the Required Lenders
prior to its making any Swing Line Loan, that the applicable conditions
precedent set forth in Article IV have not then been satisfied, each Lender's
obligation to make Revolving Loans pursuant to Section 2.1 and this Section
2.2(d), to
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purchase such loans pursuant to Section 2.4(f) or to repay such Swing Line Loan
shall be unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including the occurrence or continuance of a
Default. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.2(d), the
Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender hereunder
until the Administrative Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied. In addition to the foregoing, if for
any reason any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 2.2(d), such Lender shall be deemed, at the option
of the Administrative Agent, to have unconditionally and irrevocably purchased
from the applicable Swing Line Lender, without recourse or warranty, an
undivided interest in and participation in the applicable Swing Line Loan in the
amount of the Loan such Lender was required to make pursuant to this Section
2.2(d) and such interest and participation may be recovered from such Lender
together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand by the Administrative Agent
and ending on the date such obligation is fully satisfied.
2.3 Alternate Currency Facility.
(a) General Terms. Brightpoint and the Alternate Currency
Lender may, in their respective discretion, from time to time agree that one or
more Subsidiary Borrowers may borrow (or receive other financial
accommodations), subject to the terms of this Agreement and the applicable
Alternate Currency Documents, Alternate Currency Loans (including having letters
of credit issued for its account) on a revolving basis from the Alternate
Currency Lender (or any Affiliate, branch or agency thereof and designated
thereby) by delivering an Alternate Currency Addendum to the Administrative
Agent, executed by such Subsidiary Borrower and the Alternate Currency Lender.
(b) Alternate Currency Loans/Alternate Currency Letters of
Credit; Procedures. Upon the satisfaction of the conditions precedent set forth
in Sections 4.1, 4.2 and 4.3 hereof and set forth in the applicable Alternate
Currency Documents, from and including the later of the date of this Agreement
and the date of execution of the applicable Alternate Currency Addendum and
prior to the Termination Date (unless an earlier Termination Date shall be
specified in the applicable Alternate Currency Documents), the Alternate
Currency Lender agrees on the terms and conditions set forth in this Agreement
and in the applicable Alternate Currency Documents, to make Alternate Currency
Loans to or to issue one or more Alternate Currency Letters of Credit for the
account of any Subsidiary Borrower identified in an Alternate Currency Addendum
to which such Alternate Currency Lender is a party from time to time in the
applicable Alternate Currency, such Alternate Currency Credit in an amount not
to exceed the lesser of (i) the Alternate Currency Commitment of such Alternate
Currency Lender minus the aggregate Dollar Amount of all of such Alternate
Currency Lender's outstanding Alternate Currency
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Obligations at such time and (ii) the Alternate Currency Availability at such
time. Procedures for making Alternate Currency Credits, with respect to any
Subsidiary Borrower, shall be established pursuant to the Alternate Currency
Documents applicable to such Subsidiary Borrower and the applicable Alternate
Currency. Subject to the terms of this Agreement and the applicable Alternate
Currency Documents, the Subsidiary Borrowers may borrow, repay and reborrow at
any time prior to the Termination Date. On the Termination Date, the outstanding
principal balance of the Alternate Currency Credits shall be paid in full by the
applicable Subsidiary Borrower and prior to the Termination Date prepayments of
the Alternate Currency Credits shall be made by the applicable Subsidiary
Borrower if and to the extent required in Section 2.3(h). It shall be the
obligation of all Alternate Currency Lenders to monitor all Alternate Currency
Loans made by each of the Alternate Currency Lenders so as to ensure compliance
with the various provisions of this Agreement pursuant to which maximum amounts
are established for the Alternate Currency Loans, including, without limitation,
the provisions set forth in Section 2.3(d).
(c) Alternate Currency Addenda. Each Alternate Currency
Addendum shall set forth (i) the true legal identity and notice information with
respect to the applicable Subsidiary Borrower, (ii) the Alternate Currency
Lender's local notice information (or that of its Affiliate, branch or agency
which is acting on behalf of the Alternate Currency Lender), and (iii) the
Alternate Currency applicable thereto, and (iv) the maximum amount (expressed in
Dollars and without duplication) of the Alternate Currency Credit available from
the Alternate Currency Lender with respect to such Alternate Currency Addendum
(as the same may be reduced from time to time pursuant to Section 2.3(j)).
(d) Limitations on Alternate Currency Loans/Alternate Currency
Letters of Credit. No Alternate Currency Loan may be made and no Alternate
Currency Letter of Credit shall be issued if at the time of the making or
issuance thereof (i) an Exchange Rate with respect to the applicable Alternate
Currency cannot be determined, (ii) with respect to the proposed issuance of an
Alternate Currency Letter of Credit, such Alternate Currency Letter of Credit
would, if issued, expire later than the Termination Date, or (iii) after giving
effect thereto, (A) the Dollar Amount of the Alternate Currency Obligations for
such Alternate Currency would exceed the maximum amount specified as the maximum
amount for such Alternate Currency in the applicable Alternate Currency Addendum
or (B) the Dollar Amount of the Alternate Currency Obligations for all Alternate
Currencies would exceed the Maximum Aggregate Alternate Currency Amount other
than as a result of currency fluctuations and then only to the extent permitted
in Section 2.3(h). Additionally, no Alternate Currency Letter of Credit may be
issued unless such Alternate Currency Letter of Credit contains language
substantially similar to the language set forth on Schedule 2.3 regarding a
forced-draw of such Alternate Currency Letter of Credit upon the occurrence of a
Conversion Event with respect to the applicable Subsidiary Borrower and the
Alternate Currency Lender shall be obligated to give notice to the beneficiary
of
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<PAGE> 55
such Alternate Currency Letter of Credit implementing the forced-draw provision
upon the occurrence of such a Conversion Event.
(e) Reporting by Alternate Currency Lender. The Alternate
Currency Lender shall furnish to the Administrative Agent, not less frequently
than monthly, and at any other time at the reasonable request of the
Administrative Agent, a statement setting forth the outstanding Alternate
Currency Credits made or issued and repaid or expired during the period since
the last such report under such Alternate Currency Addendum.
(f) Subsidiary Borrowers. Brightpoint may at any time or from
time to time, with the consent of the Administrative Agent, which consent shall
not be unreasonably withheld, and of the Alternate Currency Lender, in its
discretion, cause any Subsidiary to be a "SUBSIDIARY BORROWER" hereunder by
delivery to the Administrative Agent of (1) a duly completed Alternate Currency
Addendum, executed by such Subsidiary and the Alternate Currency Lender, with
the written consent of Brightpoint at the foot thereof (2) to the extent not
prohibited by applicable law, a duly completed Guarantor Assumption Letter,
executed by such Subsidiary, and (3) any other Alternate Currency Documents or
such other instruments or documents as may be reasonably required by the
Administrative Agent. Upon such execution, delivery and consent, such Subsidiary
shall for all purposes be a Subsidiary Borrower under this Agreement.
(g) Payments; Enforcement. Notwithstanding anything in this
Agreement to the contrary, prior to a Conversion Date, principal, interest and
fees payable on the Alternate Currency Obligations shall be payable to the
Alternate Currency Lender for its own account and at the times (other than
prepayments necessitated by Section 2.3(h) below) and places set forth in the
applicable Alternate Currency Documents.
(h) Mandatory Prepayments of Alternate Currency Loans. If on
any Reset Date or the date of the making of any Alternate Currency Credit (after
giving effect to any Alternate Currency Credit to be made or issued or repaid or
expired on such date), the Dollar Amount of all Alternate Currency Obligations
under any Alternate Currency Addendum exceeds 105% of the aggregate Alternate
Currency Commitment with respect thereto, the applicable Subsidiary Borrower
shall on such Reset Date or on the date of such borrowing prepay Alternate
Currency Loans, or make a cash collateral deposit to the Alternate Currency
Lender in anticipation of and to be applied against any reimbursement obligation
which may arise in respect of any Alternate Currency Letter of Credit, in an
aggregate amount such that after giving effect thereto the Dollar Amount of all
such Alternate Currency Obligations (less any such cash collateral being held)
is less than or equal to the aggregate Alternate Currency Commitment with
respect thereto.
(i) Termination of Subsidiary Borrowers. So long as the
principal of and interest on any Alternate Currency Loans made to any Subsidiary
Borrower shall have been repaid
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<PAGE> 56
or paid in full, no outstanding Alternate Currency Letters of Credit exist with
respect to such Subsidiary Borrower, and all other obligations of such
Subsidiary Borrower under any applicable Alternate Currency Documents and
subject shall have been fully performed, Brightpoint may, by notice (subject to
any prior notice requirements under the applicable alternate Currency documents)
to the Alternate Currency Lender and the Administrative Agent (which shall
promptly notify the Lenders thereof), terminate such Subsidiary Borrower's
status as a "Subsidiary Borrower"; provided, however, without the prior approval
of all of the Lenders, no such termination shall operate as a release of a
Pledge Agreement executed by such Subsidiary Borrower, if any, or with respect
to the Capital Stock of such Subsidiary Borrower.
(j) Reduction of Alternate Currency Commitment. Brightpoint
may permanently reduce the Alternate Currency Commitment in whole, or in part,
in an aggregate minimum and integral amounts of $1,000,000 upon at least three
(3) Business Days' written notice to the Alternate Currency Lender and the
Administrative Agent, which notice shall specify the amount of such reduction;
provided, however, that the amount of the Alternate Currency Commitment may not
be reduced below the aggregate principal amount of the outstanding Alternate
Currency Obligations.
(k) Additional Alternate Currency Lenders. Brightpoint may, upon 15
Business Days' prior written notice to the Administrative Agent and with the
prior written consent of the Administrative Agent, add to the Alternate Currency
Lenders one or more additional Lenders who have agreed to make Alternate
Currency Credit available to one or more of the Borrower's Subsidiaries. Any
such Lender shall execute and deliver to the Administrative Agent, an addendum
to Exhibit D (a "COMMITMENT ADDENDUM"), in form and substance reasonably
acceptable to the Administrative Agent, evidencing (i) the agreement of such
Lender to become an Alternate Currency Lender, (ii) such Alternate Currency
Lender's applicable notice address and (iii) the Alternate Currency Commitment
of such Lender; provided in no event shall the aggregate of the Alternate
Currency Commitments of all of the Alternate Currency Lenders exceed the Maximum
Aggregate Alternate Currency Amount at such time. Upon the execution and
delivery to the Administrative Agent of such Commitment Addendum and subject to
the Administrative Agent's consent: (1) the new Alternate Currency Lender shall
be deemed automatically to have become a party hereto as an Alternate Currency
Lender, (2) the terms of Exhibit D shall be automatically amended to reflect
such Alternate Currency Lender's Alternate Currency Commitment, (3) such
Alternate Currency Lender agrees, as evidenced by its execution of such
Commitment Addendum, that it shall, for all purposes, be an Alternate Currency
Lender party to this Agreement and any other Loan Documents and shall have all
the rights and obligations of an Alternate Currency Lender hereunder and
thereunder and (4) the Aggregate Commitment shall be automatically increased by
the amount the Alternate Currency Commitment of such Alternate Currency Lender.
The Administrative Agent shall promptly provide a copy of the Commitment
Addendum to each of the Lenders.
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<PAGE> 57
2.4. Conversion of Alternate Currency Credits; Risk Sharing by All
Lenders in Alternate Currency Credits.
(a) Conversion Events. For purposes of this Agreement,
"CONVERSION EVENT" means the occurrence of any one or more of the following:
(1) with respect to all Alternate Currency Credits,
automatically upon the occurrence of any termination of the Commitments
or acceleration of the Obligations pursuant to Section 8.1(a), without
any election or action on the part of the Lenders, the Administrative
Agent or the Alternate Currency Lender;
(2) with respect to the Alternate Currency Credits of any
particular Subsidiary Borrower, automatically upon the occurrence of
any Default described in Section 7.1(f), 7.1(g) or 7.1(i) with respect
to such Subsidiary Borrower, without any election or action on the part
of the Administrative Agent, Alternate Currency Lender or any other
Lender;
(3) with respect to the Alternate Currency Credits of any
particular Subsidiary Borrower, upon the occurrence of any default
under the applicable Alternate Currency Documents relating to the
payment of principal or interest of the related Alternate Currency
Credits;
(4) with respect to all Alternate Currency Credits, upon (a)
the occurrence of any Default and (b) the election by the Required
Lenders (any election under clause (3)(B) or this clause (4) being
sometimes referred to as a "CONVERSION ELECTION").
(b) Redenomination of Loans in Dollars Upon a Conversion
Event.
(1) Immediately upon the occurrence of any Conversion Event
under Section 2.4(a)(1), all Loans denominated in any currency other
than Dollars shall automatically, without any election or action on the
part of the Administrative Agent, the Alternate Currency Lender or any
other Lender be converted to and redenominated in Dollars and shall be
deemed to be "CONVERTED LOANS" for purposes of this Section 2.4.
(2) Immediately upon the occurrence of any Conversion Event
under Section 2.4(a)(2), the Alternate Currency Credits of the
particular Subsidiary Borrower affected thereby shall automatically,
without any election or action on the part of the Administrative Agent,
the Alternate Currency Lender or any other Lender be converted to and
redenominated in Dollars and shall be deemed to be "CONVERTED LOANS"
for purposes of this Section 2.4.
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<PAGE> 58
(3) Upon the occurrence of any Conversion Election under
Section 2.4(a)(3), if such election is made by the Alternate Currency
Lender for any particular Alternate Currency Credits, the Alternate
Currency Lender shall advise the Administrative Agent in writing of its
election, which notice shall state that it is a ?CONVERSION NOTICE? and
shall specify the Subsidiary Borrower the Alternate Currency Credits of
which are to be converted. Promptly upon receipt of such written
notice, the Administrative Agent shall give a Conversion Notice to
Brightpoint. On the date of the receipt by Brightpoint of such
Conversion Notice, the Alternate Currency Loans of such Subsidiary
Borrower shall automatically, without any further election or action in
the part of the Administrative Agent or the Alternate Currency Lender
or any other Lender be converted to and redenominated in Dollars and
shall be deemed to be "CONVERTED LOANS" for purposes of this Section
2.4.
(4) Upon the occurrence of any Conversion Election under
Section 2.4(a)(4), if such election is made by the Required Lenders,
the Required Lenders shall advise the Administrative Agent in writing
of their election, which notice shall state that it is a ?CONVERSION
NOTICE?. Promptly upon receipt of such written notice, the
Administrative Agent shall give a Conversion Notice to Brightpoint and
the Alternate Currency Lender. On the date of the receipt by
Brightpoint of such Conversion Notice, all Loans denominated in any
currency other than Dollars shall automatically, without any further
election or action in the part of the Administrative Agent or any
Lender be converted to and redenominated in Dollars and shall be deemed
to be "CONVERTED LOANS" for purposes of this Section 2.4.
The date of any conversions hereunder shall be referred to as the
"CONVERSION DATE".
(c) Exchange Rate for Conversions. Any Conversion Date (or as
soon thereafter as reasonably practicable if such conversion occurred
automatically and at a time when the Alternate Currency Lender was not made
aware of the circumstances giving rise thereto) shall be a Calculation Date for
any currencies in which Converted Loans were denominated and the Administrative
Agent for Revolving Loans which are Converted Loans and the Alternate Currency
Lender shall (i) determine the Exchange Rate as of such Calculation Date with
respect to each currency in which Converted Loans were denominated and (ii) give
notice thereof to Brightpoint, the Administrative Agent and the other Lenders.
The Exchange Rate so determined shall be the Exchange Rate applicable with
respect to all Converted Loans initially denominated in such currency.
(d) Payments in Dollars After Conversion; Conversion of
Accrued Interest; Conversion of Alternate Currency Letters of Credit into
Alternate Currency Loans and Termination of Alternate Currency Commitment;
Termination of Obligations to Make Revolving
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<PAGE> 59
Loans in Currencies Other than Dollars. Notwithstanding anything in this
Agreement or any of the other Loan Documents to the contrary, from and after any
Conversion Date, all payments with respect to the applicable Converted Loans,
whether principal, interest or otherwise, shall be made by the applicable
Subsidiary Borrower or other Borrowers in Dollars. Accrued and unpaid interest
with respect to any Converted Loan shall, effective on the Conversion Date
applicable thereto, be converted into and redenominated in Dollars at the
Exchange Rate determined pursuant to clause (c) above. Upon the occurrence of
any Conversion Event with respect to the Alternate Currency Credits to any
Subsidiary Borrower, (i) the Alternate Currency Lender shall implement the
forced-draw provision set forth on Schedule 2.3 hereto of any outstanding
undrawn Alternate Currency Letter of Credit issued for the account of such
Subsidiary Borrower, and, if the beneficiary of such Alternate Currency Letter
of Credit draws thereon, then the reimbursement obligation arising out of such
draw and owing to the Alternate Currency Lender by the applicable Subsidiary
Borrower shall be considered a Converted Loan for purposes of this Section 2.4,
and (ii) the Alternate Currency Commitment to such Subsidiary Borrower shall be
automatically terminated. From and after the occurrence of any Conversion Event
with respect to Revolving Loans, any Revolving Loans made thereafter shall only
be made in Dollars and the Borrowers shall have no option to select Agreed
Currencies for Revolving Loans.
(e) Interest Rates for Converted Loans; Breakage Costs.
Notwithstanding anything in this Agreement or any of the other Loan Documents to
the contrary, the Converted Loans shall initially be Base Rate Loans on the
Conversion Date (and the Borrower shall be liable for all amounts pursuant to
Section 3.4 as a result of the conversion prior to the end of the applicable
Interest Period) and thereafter may be continued as Base Rate Loans or converted
into Eurocurrency Rate Loans denominated in Dollars in the manner provided in
Section 2.10 and subject to the other conditions and limitations therein set
forth and set forth in this Article II.
(f) Reallocation of Shares; Assignment of Loans.
(1) Definitions. For purposes of this Section 2.4(f) the
following terms shall have the following meanings:
"AC SELLING LENDER" means the Alternate Currency
Lender (or any Affiliate, branch or agency thereof) which made
Alternate Currency Loans which have become Converted Loans and
which are being assigned and sold pursuant to the terms of
this Section 2.4(f).
"AC BUYING LENDER" shall mean each Lender which is
required to purchase any Converted Loan pursuant to the terms
of this Section 2.4(f) upon the occurrence of any Conversion
Event.
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<PAGE> 60
"RC SELLING LENDER" means each Lender whose
Reallocated Share is a lesser percentage than its Revolving
Credit Share immediately prior to the Conversion Event and
whose Revolving Loans and Revolving Loan Commitment under the
Agreement is being reduced as a result of this Section 2.4(f).
"RC BUYING LENDER" means each Lender whose
Reallocated Share is a greater percentage than its Revolving
Credit Share immediately prior to the Conversion Event and
whose Revolving Loans and Revolving Loan Commitment under this
Agreement is being increased as a result of this Section
2.4(f).
(2) Required Assignments and Acceptances Upon the Occurrence
of any Conversion Event.
(I) Effective on any Conversion Date, each of the
Lenders agrees to effect purchases and assignments of all the
Converted Loans and the Revolving Loans (whether or not
converted) such that after such purchases and assignments each
Lender has its Pro Rata Share of all Loans and Letters of
Credit other than any Alternate Currency Credits which have
not become Converted Loans.
(II) Effective on any Conversion Date each RC Selling
Lender and the AC Selling Lender (the "SELLING LENDERS"),
hereby sells, grants, assigns and conveys to each RC Buying
Lender and AC Buying Lender (the "BUYING LENDERS"),
respectively, without recourse, warranty, or representation of
any kind, except as specifically provided herein, an undivided
percentage in such Selling Lender's right, title and interest
in and to its outstanding Revolving Loans, L/C Obligations and
Revolving Loan Commitment, in the case of the RC Selling
Lenders and to its Alternate Currency Credits which are
Converted Loans, in the case of the AC Selling Lenders, in the
respective Dollar amounts (except as set forth in clause (IV)
below) and percentages necessary so that, from and after such
sale, each such Selling Lender's and Buying Lender's
outstanding Loans, L/C Obligations and Commitments shall equal
its Pro Rata Share of the outstanding Loans, L/C Obligations
and Commitments under this Agreement (other than Alternate
Currency Credits and the Alternate Currency Commitment in
connection with which no Conversion Event has occurred).
(III) Effective on any Conversion Date, each RC
Buying Lender and each AC Buying Lender (the "BUYING LENDERS")
hereby purchases and accepts such grant, assignment and
conveyance from the Selling Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the portion of
the outstanding Loans, Letter of Credit Obligations and
Commitment purchased hereby shall equal the respective Dollar
amount (except as set forth in clause (IV) below) necessary
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<PAGE> 61
so that, from and after such payments, each Buying Lender's
outstanding Loans, Letter of Credit Obligations and Commitment
shall equal such Buying Lender's Pro Rata Share of the
outstanding Loans, L/C Obligations and Commitments under this
Agreement (other than Alternate Currency Credits and the
Alternate Currency Commitment in connection with which no
Conversion Event has occurred). Except as set forth in clause
(IV) below, such amount shall be payable by the Buying Lenders
in Dollars on the applicable Conversion Date by wire transfer
of immediately available funds to the Administrative Agent.
The Administrative Agent, in turn, shall wire transfer any
such funds received to the Selling Lenders, in same day funds,
for the sole account of the Selling Lenders.
(IV) Notwithstanding anything herein to the contrary,
if on any Conversion Date the Revolving Loans in currencies
other than Dollars are not Converted Loans, then the following
terms shall apply to the purchase and sale of such Revolving
Loans under this Section 2.4(f):
(a) the purchase price when paid by the RC
Buying Lenders for such sales shall be in the Agreed
Currency or Agreed Currencies in which such Revolving
Loans have been made;
(b) the purchase price shall be paid as
follows: (i) with respect to all Floating Rate Loans
made by the Selling RC Lenders outstanding on the
Conversion Date, the Buying RC Lenders shall each pay
the Administrative Agent for the account of the
Selling RC Lenders, on the Conversion Date, an amount
equal to its purchased percentage of all such
Floating Rate Loans; and (ii) with respect to each
Fixed Rate Loan made by the Selling RC Lenders
outstanding on the Conversion Date, (a) on the last
day of the Interest Period therefor or (b) on the
date on which any such Fixed Rate Loan either becomes
due (by acceleration or otherwise) or is prepaid (the
date as described in the foregoing clauses (a) or (b)
being hereinafter referred to as the "RC PAYMENT
DATE"), each of the RC Buying Lenders shall pay the
Administrative Agent for the account of the RC
Selling Lenders an amount equal to its purchased
percentage of such Fixed Rate Loan. In the event
interest for the period from the Conversion Date to
but not including the RC Payment Date is not paid by
the applicable Borrower with respect to any Fixed
Rate Loan sold by the Selling RC Lenders to Buying RC
Lenders hereunder, the Buying RC Lenders shall pay to
the Administrative Agent for the account of the
Selling RC Lenders interest for such period on its
portion of such Fixed Rate Loans at the applicable
Fixed Rate provided by this Agreement.
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(V) Each Selling Lender hereby represents and
warrants to each Buying Lender that such Selling Lender owns
the Loans, Letter of Credit Obligations and the Commitment
being sold and assigned hereby for its own account and has not
sold, transferred or encumbered any or all of its interest in
such Loans, Letter of Credit Obligations or Commitment, except
for participations which will be extinguished upon payment to
Selling Lender of an amount equal to the portion of the
outstanding Loans and Letter of Credit Obligations being sold
by such Selling Lender.
(VI) From and after a Conversion Event and upon
consummation of the purchases and assignments set forth
herein, each reference in this Agreement to a Lender's
Revolving Credit Share shall be to such Lender's Pro Rata
Share.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. Upon not less than one (1) Business Days prior
notice to the Administrative Agent, which notice shall be given not later than
12:00 noon Indianapolis time or local time, as applicable), the Borrowers may
from time to time repay or prepay, without penalty or premium all or any part of
outstanding Floating Rate Advances. Subject to payment of all amounts payable
pursuant to Section 3.4 and upon not less than one (1) Business Days prior
notice to the Administrative Agent, which notice shall be given not later than
12:00 noon (Indianapolis time or local time as applicable), the Borrowers may
from time to time repay or prepay all (but not part)of any Fixed Rate Advances.
Unless the aggregate outstanding principal balance of the applicable Loans is to
be prepaid in full, voluntary prepayments of the Loans shall be in the same
aggregate minimum amounts and integral multiples in excess of such amounts as
are required for borrowings of Loans of the same Type and in the same currency
as set forth in Section 2.9.
(B) Mandatory Prepayments. (i) If on any Reset Date or the date of any
borrowing (of any Eurocurrency Rate Loan after giving effect to any Eurocurrency
Rate Loans to be made or prepaid on such date), (a) the Dollar Amount of all
Revolving Loan Obligations exceeds 105% of the Aggregate Revolving Loan
Commitments or (b) the Dollar Amount of all Eurocurrency Rate Loans in Agreed
Currencies other than Dollars exceeds 105% of the Maximum Eurocurrency Amount,
the Borrowers shall on such Reset Date or on the date of such borrowing prepay
Revolving Loans in an aggregate amount such that after giving effect thereof (y)
the Dollar Amount of all Revolving Loan Obligations is less than or equal to the
Aggregate Revolving Loan Commitments and (z) the Dollar Amount of all
Eurocurrency Rate Loans in Agreed Currencies other than Dollars is less than or
equal to the Maximum Eurocurrency Amount.
(ii) If at any time the Dollar Amount of the Revolving Credit
Obligations plus the Alternate Currency Obligations exceeds (other than as a
result of currency fluctuations and then only to the extent permitted in Section
2.3(h)) the Borrowing Base at such time, the Borrowers
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shall immediately make a prepayment of the Alternate Currency Loans or the
Revolving Loans in an amount sufficient to eliminate such excess; provided,
however, that if such excess is solely the result of the Initial Borrowing Base
Adjustment, no such repayment shall be required for 30 days following the date
on which the Administrative Agent gives notice to the Borrowers and Lenders of
such Initial Borrowing Base Adjustment.
2.6 Reduction of Commitments. Brightpoint may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders having Revolving Loan Commitments, in an aggregate minimum and integral
amounts of $3,000,000, upon at least three (3) Business Days' prior written
notice to the Administrative Agent, which notice shall specify the amount of any
such reduction; provided, however, that the amount of the Aggregate Revolving
Loan Commitment may not be reduced below the aggregate principal amount of the
outstanding Revolving Credit Obligations. All accrued facility fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder.
2.7 Method of Borrowing. The Administrative Agent shall notify each
Lender having Revolving Loan Commitments by 1:00 p.m.(Indianapolis time) of each
Advance on the Borrowing Date of each Base Rate Advance, three Business Days
before the Borrowing Date of each Eurocurrency Rate Advance in Dollars and four
Business Days before the Borrowing Date for each Eurocurrency Rate Advance in an
Agreed Currency other than Dollars and, not later than 2:00 p.m. (Indianapolis
time) on each Borrowing Date, each Lender having Revolving Credit Commitments
shall make available its Revolving Loan or Loans, in funds immediately available
in Indianapolis, Indiana to the Administrative Agent at its address specified
pursuant to Article XIV hereof unless the Administrative Agent has notified the
Lenders that such Loan is to be made available to the applicable Borrower at the
Administrative Agent's Eurocurrency Payment Office, in which case each Lender
shall make available its Revolving Loan or Loans, in funds immediately available
to the Administrative Agent at its Eurocurrency Payment Office not later than
1:00 p.m. (local time in the city of the Administrative Agent's Eurocurrency
Payment Office) in the Agreed Currency designated by the Administrative Agent.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the applicable Borrower.
2.8 Method of Selecting Types and Interest Periods for Advances;
Determination of Applicable Margins. The Advances may be Floating Rate Advances
or Fixed Rate Advances, or a combination thereof, selected by the applicable
Borrower in accordance with this Article II. The applicable Borrower may select,
in accordance with this Article II, Rate Options and Interest Periods applicable
to portions of the Revolving Loans; provided all Swing Line Loans shall be
Floating Rate Loans bearing interest at the Base Rate.
(a) Method of Selecting Types and Interest Periods for
Advances. The applicable Borrower shall select the Type of Advance and,
in the case of each Fixed Rate Advance, the Interest Period and Agreed
Currency applicable to each Advance from time to time.
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The applicable Borrower shall give the Administrative Agent irrevocable
notice (a "BORROWING NOTICE") (i) not later than 11:00 a.m.
(Indianapolis time or local time for Eurocurrency Rate Advances
denominated in an Agreed Currency other than Dollars) (i) on the
Borrowing Date of each Base Rate Advance; (ii) three Business Days
before the Borrowing Date for each Eurocurrency Rate Advance in
Dollars; and (iii) four Business Days before the Borrowing Date for
each Eurocurrency Rate Advance in an Agreed Currency other than
Dollars, specifying: (i) the Borrowing Date (which shall be a Business
Day) of such Advance; (ii) the aggregate amount of such Advance; (iii)
the Type of Advance selected; and (iv) in the case of each Eurocurrency
Rate Advance, the Interest Period and Agreed Currency applicable
thereto. Each Advance in an Agreed Currency other than Dollars must be
a Eurocurrency Rate Advance. There shall be no more than ten (10)
Interest Periods in effect with respect to all of the Revolving Loans
at any time (with Interest Periods for the same term but in different
currencies or to different Borrowers being treated as separate Interest
Periods). The Borrowers shall select Interest Periods so that, to the
best of the Borrowers' knowledge, it will not be necessary to prepay
all or any portion of any Fixed Rate Advance prior to the last day of
the applicable Interest Period in order to make mandatory prepayments
as required pursuant to the terms hereof. Each Floating Rate Advance
shall bear interest from and including the date of the making of such
Advance to (but not including) the date of repayment thereof at the
Base Rate, changing when and as such Base Rate changes. Each Fixed Rate
Advance shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the last day
of such Interest Period at the interest rate determined as applicable
to such Fixed Rate Advance. All Obligations (other than Advances) shall
bear interest from and including the date such amount is payable under
the terms of this Agreement or the other Loan Documents to (but not
including) the date of repayment thereof at the Base Rate, changing
when and as such Base Rate changes. Changes in the rate of interest on
that portion of any Advance maintained as a Floating Rate Loan or such
other Obligations will take effect simultaneously with each change in
the applicable Floating Rate.
(b) Determination of Applicable Margins, Applicable Letter of
Credit Fee and Applicable Facility Fee.
(i) Definitions. As used in this Section 2.8(b) and in this
Agreement, the following terms shall have the following meanings:
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<PAGE> 65
"Applicable Margins", "Applicable Facility Fee" and
"Applicable Letter of Credit Fee" shall mean the Applicable
Floating Rate Margin and/or Applicable Fixed Rate Margin, with
respect to Loans and the Applicable Facility Fee and/or
Applicable Letter of Credit Fee, with respect to fees payable
as the case may be. The Applicable Margins shall be
determined, in accordance with the provisions of this Section
2.8(b), by reference to the following:
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------
Level I Level II Level III Level IV Level V Level VI
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Leverage Ratio # 3.50 to 1.00 # 4.00 to # 4.50 to 1.00 # 5.00 to 1.00 #5.50 to 1.00 and >5.50 to 1.00 or
1.00 and and and > 5.00 to 1.00 a negative
> 3.50 to 1.00 > 4.00 to 1.00 > 4.50 to 1.00 Leverage Ratio
- --------------------------------------------------------------------------------------------------------------------------------
Applicable Facility
Fee 0.35% 0.35% 0.35% 0.50% 0.50% 0.50%
- --------------------------------------------------------------------------------------------------------------------------------
Applicable Fixed
Rate Margin 1.40% 1.65% 1.90% 2.00% 2.25% 2.50%
- --------------------------------------------------------------------------------------------------------------------------------
Applicable
Floating Rate
Margin 0% 0% 0.25% 0.50% 0.75% 1.00%
- --------------------------------------------------------------------------------------------------------------------------------
Applicable Letter
of Credit Fee 1.40% 1.65% 1.90% 2.00% 2.25% 2.50%
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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(ii) Determination of Applicable Margins, Applicable Letter of
Credit Fee and Applicable Facility Fee.
(A) The Applicable Margin in respect of any Loan, the
Applicable Letter of Credit Fee payable under Section 2.24 and the
Applicable Facility Fee payable under Section 2.14(C) shall be
determined by reference to the table set forth in clause (i) above, as
applicable, on the basis of the Leverage Ratio (calculated as provided
in the definition thereof) determined by reference to the most recent
financial statements delivered pursuant to Section 6.1(A)(ii) or
6.1(A)(iii); provided, however, for the period from the Closing Date
until the Applicable Margins, Applicable Letter of Credit Fee and
Applicable Facility Fee are first adjusted pursuant to clause (B)
below, it shall be assumed that the Leverage Ratio is at Level VI.
(B) Upon receipt of the financial statements delivered
pursuant to Section 6.1(A)(ii) or Section 6.1(A)(iii), as applicable,
the Applicable Margins for all outstanding Loans, the Applicable Letter
of Credit Fee and Applicable Facility Fee shall be adjusted, such
adjustment being effective on the fifth (5th) Business Day after
receipt of such financial statements and the Compliance Certificate to
be delivered in connection therewith; provided, however, if the
Borrowers shall not have timely delivered such financial statements in
accordance with Section 6.1(A)(ii) or Section 6.1(A)(iii), as
applicable, beginning with the date upon which such financial
statements should have been delivered and continuing until such
financial statements are delivered, it shall be assumed for purposes of
determining the Applicable Margins, the Applicable Facility Fee and the
Applicable Letter of Credit Fee that the Leverage Ratio was greater
than 5.50 to 1.0.
2.9 Minimum Amount of Each Advance. Each Eurocurrency Rate Advance
shall be in the minimum amount of $1,000,000 or the Equivalent Amount of any
Agreed Currency other than Dollars (and in multiples of $250,000 or the
Equivalent Amount of any Agreed Currency other than Dollars if in excess
thereof). Each Base Rate Advance shall be in the minimum amount of $500,000 (and
in multiples of $250,000 if in excess thereof), provided, however, that any Base
Rate Advance may be in the amount of the unused Aggregate Revolving Loan
Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(A) Right to Convert. The Borrowers may elect from time to time,
subject to the provisions of Section 2.8, this Section 2.10, to convert all or
any part of a Loan (other than a Swing Line Loan) of any Type into any other
Type or Types of Loans; provided that any Conversion of any Fixed Rate Advance
shall be made on, and only on, the last day of the Interest Period applicable
thereto.
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(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Fixed Rate Loans. Fixed Rate Loans shall continue as Fixed Rate
Loans until the end of the then applicable Interest Period therefor, at which
time such Fixed Rate Loans (other than Fixed Rate Loans in an Agreed Currency
other than Dollars) shall be automatically converted into Floating Rate Loans
unless the applicable Borrower shall have given the Administrative Agent notice
in accordance with Section 2.10(D) requesting that, at the end of such Interest
Period, such Fixed Rate Loans continue as a Fixed Rate Loan. Fixed Rate Loans in
an Agreed Currency other than Dollars shall automatically continue as Fixed Rate
Loans with an Interest Period of one (1) month unless the applicable Borrower
notifies the Administrative Agent otherwise as provided herein.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(A) or Section
2.10(B), no Loan may be converted into or continued as a Fixed Rate Loan (other
than a Eurocurrency Rate Loan in an Agreed Currency other than Dollars for an
Interest Period only of one month) except with the consent of the Required
Lenders when any Default or Unmatured Default has occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the
Administrative Agent irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of
each Conversion of a Floating Rate Loan into a Fixed Rate Loan or continuation
of a Fixed Rate Loan (i) for Eurocurrency Loans denominated in Dollars, not
later than 12:00 noon (Indianapolis) three Business Days prior to the date of
the requested Conversion or continuation and (ii) for Eurocurrency Loans
denominated in an Agreed Currency other than Dollars, not later than 11:00
(local time) four Business Days prior to the date of the requested Conversion or
continuation, in either case specifying: (1) the requested date (which shall be
a Business Day) of such Conversion or continuation; (2) the amount and Type of
the Loan to be converted or continued; and (3) the amounts of Fixed Rate Loan(s)
into which such Loan is to be converted or continued and the duration of the
Interest Periods applicable thereto. If no such notice is given with respect to
a Eurocurrency Rate Loan in an Agreed Currency other than Dollars, the Interest
Period applicable to the automatic continuation of such Loan shall be one month.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, at the option of the Administrative Agent or at the direction of the
Required Lenders, (i) the interest rate(s) applicable to the Obligations and the
letter of credit fee payable under Section 2.24 with respect to Facility Letters
of Credit shall be equal to the Base Rate plus the highest Applicable Margin
with respect to Base Rate Loans as set forth in Section 2.8 plus two percent
(2.00%) per annum and (ii) the Applicable Letter of Credit Fee shall be
increased by two percent (2.00%) per annum.
2.12 Method of Payment. All payments of principal, interest, and fees
hereunder, other than such payments which are due to the Alternate Currency
Lender, shall be made, without
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setoff, deduction or counterclaim, to the Administrative Agent (i) at the
Administrative Agent's office in Indianapolis, Indiana in immediately available
funds with respect to Advances denominated in Dollars and (ii) at the
Administrative Agent's Eurocurrency Payment Office in immediately available
funds with respect to any Eurocurrency Rate Advance denominated in an Agreed
Currency other than Dollars, in each case, or at any other Lending Installation
of the Administrative Agent specified in writing (by 9:00 a.m. (Indianapolis
time) on the day before the date when due) by the Administrative Agent to the
Borrower, by 12:00 noon local time in Indianapolis with respect to Advances
denominated in Dollars and 12:00 noon local time at the applicable payment
office with respect to Advances denominated in an Agreed Currency other than
Dollars on the date when due and shall be made ratably among the applicable
Lenders with respect to Advances in proportion to their Revolving Credit Shares
(unless such amount is not to be shared ratably in accordance with the other
terms hereof). Each Advance shall be repaid or prepaid in the currency in which
it was made in the amount borrowed and interest payable thereon shall be paid in
such currency. Each payment delivered to the Administrative Agent for the
account of any Lender shall be delivered promptly by the Administrative Agent to
such Lender in the same type of funds which the Administrative Agent received at
its address specified pursuant to Article XIV or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender. The
Borrowers authorize the Administrative Agent to charge any account of any
Borrower maintained with Bank One, as applicable, for each payment of principal,
interest and fees as it becomes due hereunder. Notwithstanding the foregoing
provisions of this Section, if, after the making of any Advance in any currency
other than Dollars, currency control or exchange regulations are imposed in the
country in which such currency is issued with the result that different types of
such currency (the "NEW CURRENCY") are introduced and the type of currency in
which the Advance was made (the "ORIGINAL CURRENCY") no longer exists or the
applicable Borrower is not able to make payment to the Administrative Agent for
the account of the applicable Lenders in such Original Currency, then all
payments to be made by the applicable Borrower hereunder or under the Notes in
such Original Currency shall be made in such amount and such type of the New
Currency or Dollars as shall be equivalent to the amount of such payment
otherwise due hereunder or under the Notes in the Original Currency as
determined as of the date of repayment, it being the intention of the parties
hereto that the Borrowers take all risks of the imposition of any such currency
control or exchange regulations. For purposes of this Section 2.12, the
commencement of the third stage of European Economic and Monetary Union shall
not constitute the imposition of currency control or exchange regulations.
2.13 Notes, Telephonic Notices. The Administrative Agent is authorized
to record the principal amount of each of the Loans and each repayment with
respect to Loans on the schedule attached to the master Note issued to evidence
the Revolving Loans; in the event any Note is issued to any individual Lender,
such Lender is authorized to record the principal amount of each of its Loans
and each repayment with respect to its Loans on the schedule attached to its
Note; and the Swing Line Lender is authorized to record the principal amount of
each Swing Line Loan
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and each repayment with respect to such Loans on the schedules attached to the
Swing Line Loan Note; provided, however, in each such case that the failure to
so record shall not affect the applicable Borrower's obligations under any such
Note. In the event that any Note is issued to any individual Lender, such Lender
shall provide notice to that effect to the Administrative Agent and the
Administrative Agent shall make a notation on the master Note reflecting such
issuance. The Administrative Agent will hold the Notes issued to them on behalf
of other Lenders and will make the Notes available for inspection by the
applicable Borrower or any Lender during normal business hours upon prior
reasonable notice therefor. The Borrowers authorize the Lenders and the
Administrative Agent to extend Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be acting on
behalf of one or more of the Borrowers. The Borrowers agree to deliver promptly
to the Administrative Agent a written confirmation, signed by an Authorized
Officer, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, (i) the telephonic notice shall govern absent manifest error and (ii)
the Administrative Agent or the Lender, as applicable, shall promptly notify the
Authorizing Officer who provided such confirmation of such difference.
2.14 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. Each of the Borrowers unconditionally promises to
pay when due the principal amount of each Loan made to it and all other
Obligations incurred by it, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the Notes.
(B) Interest Payment Dates. Interest accrued on each Base Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, on any date on which the Base Rate Loan is prepaid,
whether due to acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurocurrency Rate Loan
shall be payable on the last day of its applicable Interest Period and on any
date on which the Eurocurrency Rate Loan is prepaid, whether by acceleration or
otherwise, and at maturity; provided, interest accrued on each Eurocurrency Rate
Loan having an Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest Period. Interest
accrued on the principal balance of all other Obligations shall be payable in
arrears (i) upon repayment thereof in full or in part, (ii) if not theretofore
paid in full, at the time such other Obligation becomes due and payable (whether
by acceleration or otherwise) and (iii) if not theretofore paid in full, on
demand, commencing on the first such day following the date such Obligation
became payable pursuant to the terms of this Agreement or the other Loan
Documents.
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(C) Fees. (i) Brightpoint shall pay to the Administrative Agent, for
the account of the Lenders in accordance with their Pro Rata Shares, a
non-refundable facility fee accruing at the rate of the Applicable Facility Fee
per annum from and after the Closing Date until the Termination Date on the
Aggregate Commitment in effect from time to time. Such facility fees payable
under this clause (C) shall be payable in advance (a) for the period from the
Closing Date to September 30, 1999, payable on the Closing Date, and (b)
thereafter quarterly in advance on each Payment Date commencing September 30,
1999. In addition, on the Closing Date, Brightpoint shall pay to the
Administrative Agent for the account of the Lenders in accordance with their Pro
Rata Shares, the accrued and unpaid facility fees under the Original Credit
Agreement through to the Closing Date.
(ii) Brightpoint agrees to pay or cause the appropriate Subsidiary to
pay to the Administrative Agent the administrative agent's fee set forth in the
letter agreement between the Administrative Agent and Brightpoint dated April
16, 1997.
(D) Interest and Fee Basis. Interest on Eurocurrency Rate Loans and
fees shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest on Base Rate Loans shall be calculated for actual days elapsed on the
basis of a 365/366-day year. Interest shall be payable for the day an Obligation
is incurred but not for the day of any payment on the amount paid if payment is
received prior to 1:00 p.m. local time in Indianapolis with respect to Advances
denominated in Dollars and 12:00 noon local time at the place of payment in the
Administrative Agent's applicable payment office with respect to Advances
denominated in an Agreed Currency other than Dollars. If any payment of
principal of or interest on a Loan or any payment of any other Obligations shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment; provided, however, if such extension of payment would cause
payment of principal or interest on any Fixed Rate Loan to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(E) Taxes.
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(i) Any and all payments by any of the Borrowers or Guarantors
hereunder (whether in respect of principal, interest, fees or
otherwise) shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions,
charges or withholdings or any interest, penalties and liabilities with
respect thereto including those arising after the date hereof as a
result of the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of a Governmental Authority or
any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and
the Administrative Agent, such taxes (including income taxes, franchise
taxes and branch profit taxes) as are imposed on or measured by such
Lender's or Administrative Agent's, as the case may be, net income by
the United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or Administrative
Agent, as the case may be, is organized (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings, and liabilities
which the Administrative Agent or a Lender determines to be applicable
to this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "TAXES"). Subject to Section 2.14(E)(vii), if any of the
Borrowers or Guarantors shall be required by law to deduct or withhold
any Taxes from or in respect of any sum payable hereunder or under the
other Loan Documents to any Lender or the Administrative Agent, (i) the
sum payable shall be increased as may be necessary so that after making
all required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this Section
2.14(E)) such Lender or Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) such Borrower or Guarantor
shall make such deductions or withholdings, and (iii) such Borrower or
Guarantor shall pay the full amount deducted or withheld to the
relevant taxation authority or other authority in accordance with
applicable law. If a withholding tax of the United States of America or
any other Governmental Authority shall be or become applicable (y)
after the date of this Agreement, to such payments by either of the
Borrowers made to the Lending Installation or any other office that a
Lender may claim as its Lending Installation, or (z) after such
Lender's selection and designation of any other Lending Installation,
to such payments made to such other Lending Installation, such Lender
shall use reasonable efforts to make, fund and maintain its affected
Loans through another Lending Installation of such Lender in another
jurisdiction so as to reduce the Borrowers' liability hereunder, if the
making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the good faith judgment of
such Lender, otherwise adversely affect such Loans, or obligations
under the Revolving Loan Commitments or such Lender. A payment may be
made by Brightpoint or by the Subsidiary that is the Borrower with
respect to the Loan that gives rise to such payment.
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(ii) In addition, Brightpoint agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "OTHER TAXES").
(iii) Subject to Section 2.14(E)(vii), Brightpoint indemnifies
each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any Governmental Authority on amounts payable under
this Section 2.14(E)) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest,
and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date
such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section
2.14(E) submitted to Brightpoint and the Administrative Agent (if a
Lender is so submitting) by such Lender or the Administrative Agent
shall show in reasonable detail the amount payable and the calculations
used to determine such amount and shall, absent manifest error, be
final, conclusive and binding upon all parties hereto. With respect to
such deduction or withholding for or on account of any Taxes and to
confirm that all such Taxes have been paid to the appropriate
Governmental Authorities, Brightpoint shall promptly (and in any event
not later than thirty (30) days after receipt) furnish to each Lender
and the Administrative Agent such certificates, receipts and other
documents as may be required (in the judgment of such Lender or the
Administrative Agent) to establish any tax credit to which such Lender
or the Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by any Borrower or Guarantor, such Borrower or
Guarantor shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement
of either of the Borrowers or Guarantor hereunder, the agreements and
obligations of the Borrowers and Guarantor contained in this Section
2.14(E) shall survive the payment in full of all Obligations hereunder,
the termination of the Letters of Credit and the termination of this
Agreement.
(vi) Without limiting the obligations of the Borrowers and
Guarantors under this Section 2.14(E) (except as expressly provided by
clause (vii) below), each Lender that has
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a Revolving Loan Commitment that is not created or organized under the
laws of the United States of America or a political subdivision thereof
(each a "NON-U.S. LENDER") shall deliver to Brightpoint and the
Administrative Agent on or before the Closing Date, or, if later, the
date on which such Lender becomes a Lender pursuant to Section 13.3
hereof, (and from time to time thereafter upon the request of
Brightpoint or the Administrative Agent, but only for so long as such
Non-U.S. Lender is legally entitled to do so), either (1)(x) two (2)
duly completed copies of either (A) IRS Form W-8BEN (or, if delivered
on or before December 31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI
(or, if delivered on or before December 31, 1999, IRS Form 4224), or in
either case an applicable successor form, and (y) for periods prior to
January 1, 2000, a duly completed copy of IRS Form W-8 or W-9 or
applicable successor form; or (2) in the case of a Non-U.S. Lender that
is not legally entitled to deliver either form listed in clause
(vi)(1)(x), (x) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (A) a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of Brightpoint, any other Borrower or any
Guarantor within the meaning of Section 881(c)(3)(B) of the Code, or
(C) a controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "EXEMPTION CERTIFICATE") and (y) two (2) duly completed
copies of IRS Form W-8BEN or applicable successor form. Each such
Lender further agrees to deliver to Brightpoint and the Administrative
Agent from time to time a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender in a form
satisfactory to Brightpoint and the Administrative Agent, before or
promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to Brightpoint and
the Administrative Agent pursuant to this Section 2.14(E)(vi). Further,
each Lender which delivers a form or certificate pursuant to this
clause (vi) covenants and agrees to deliver to Brightpoint and the
Administrative Agent within fifteen (15) days prior to the expiration
of such form, for so long as this Agreement is still in effect, another
such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or
forms required under the Code or the applicable regulations promulgated
thereunder).
Each such certificate shall certify pursuant to this Section
2.14(E)(vi) as to one of the following:
(a) that such Lender is capable of receiving payments
of interest hereunder without deduction or withholding of
United States of America federal income tax;
(b) that such Lender is not capable of receiving
payments of interest hereunder without deduction or
withholding of the applicable
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income tax as specified therein but is capable of recovering
the full amount of any such deduction or withholding from a
source other than the Borrowers and the Guarantors and will
not seek any such recovery from the Borrowers or the
Guarantors; or
(c) that, as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
interpretation or application thereof by a Governmental
Authority after the date such Lender became a party hereto,
such Lender is not capable of receiving payments of interest
hereunder without deduction or withholding of applicable
income tax as specified therein and that it is not capable of
recovering the full amount of the same from a source other
than the Borrowers and the Guarantors.
Each Lender shall promptly furnish to Brightpoint or the
Administrative Agent such additional documents as may be reasonably
required by Brightpoint or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender.
A Borrower shall provide such information and take such action
as a Lender may reasonably request without undue expense to such
Borrower to enable the Lender to comply with the foregoing provisions
of this clause (vi).
(vii) Notwithstanding any other provision of this Section
2.14(E), no Borrower shall be obligated to gross up any payments to any
Lender pursuant to Section 2.14(E)(i), or to indemnify any Lender
pursuant to Section 2.14(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure
of such Lender to deliver to Brightpoint the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 2.14(E)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by
the Lender being untrue or inaccurate on the date delivered in any
material respect, or (z) the Lender designating a successor Lending
Installation at which it maintains its Loans which has the effect of
causing such Lender to become obligated for tax payments in excess of
those in effect immediately prior to such designation; provided,
however, that the applicable Borrower shall be obligated to gross up
any payments to any such Lender pursuant to Section 2.14(E)(i), and to
indemnify any such Lender pursuant to Section 2.14(E)(iii), in respect
of United States federal withholding taxes if (x) any such failure to
deliver a form or forms or an Exemption Certificate or the failure of
such form or forms or exemption certificate to establish a complete
exemption from U.S. federal withholding tax or inaccuracy or untruth
contained
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therein resulted from a change in any applicable statute, treaty,
regulation or other applicable law or any interpretation of any of the
foregoing occurring after the date hereof, which change rendered such
Lender no longer legally entitled to deliver such form or forms or
Exemption Certificate or otherwise ineligible for a complete exemption
from U.S. federal withholding tax, or rendered the information or the
certifications made in such form or forms or Exemption Certificate
untrue or inaccurate in any material respect, (ii) the redesignation of
the Lender's Lending Installation was made at the request of
Brightpoint or another Borrower or (iii) the obligation to gross up
payments to any such Lender pursuant to Section 2.14(E)(i), or to
indemnify any such Lender pursuant to Section 2.14(E)(iii), is with
respect to a Purchaser that becomes a Purchaser as a result of an
assignment made at the request of the Borrower.
(viii) Each Lender and the Administrative Agent agree that if
it shall become aware that it is entitled to receive a refund in
respect of Taxes or Other Taxes as to which it has been indemnified by
Brightpoint or any other Borrower pursuant to this Section 2.14(E), it
shall promptly notify Brightpoint of the availability of such refund
and at the request of Brightpoint will apply for such refund; provided,
however the failure to provide such notice shall not relieve
Brightpoint or any other Borrower of any of their Obligations
hereunder. Upon receipt of such refund, the Lender or Administrative
Agent agrees to pay such refund to the applicable Borrower along with
any interest actually received from the taxing authority, net of all
out-of-pocket expenses of such Lender or Administrative Agent incurred
with respect to such refund.
(F) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Obligations of each of the Borrowers to such Lender owing to such Lender from
time to time, including the amount of principal and interest payable paid to
such Lender from time to time hereunder and under the Notes.
(G) Control Account. The Register maintained by the Administrative
Agent pursuant to Section 13.3(C) shall include a control account, and a
Subsidiary account for each Lender and each Borrower, in which accounts (taken
together) shall be recorded (i) the date and amount of each Advance made
hereunder, the type and currency of each Loan comprising such Advance, the
Borrower of such Advance, and any Interest Period applicable thereto, (ii) the
effective date and amount of each assignment and acceptance delivered to and
accepted by it and the parties thereto pursuant to Section 13.3, (iii) the
amount of any principal or interest due and payable or to become due and payable
from any Borrower to each Lender hereunder or under the Notes, (iv) the amount
of any sum received by the Administrative Agent from each of the Borrowers
hereunder and each Lender's share thereof, and (v) all other appropriate debits
and credits as provided in this Agreement, including, without limitation, all
fees, charges, expenses and interest.
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(H) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error,
unless the Borrowers object to information contained in the Register and each
Loan Account within thirty (30) days of the Borrowers' receipt of such
information.
2.15 Notification of Advances, Interest Rates, Prepayments, Aggregate
Revolving Loan Commitment Reductions and Initial Borrowing Base Adjustment.
(a) Promptly after receipt thereof, the Administrative Agent will
notify each applicable Lender of the contents of each Aggregate Revolving Loan
Commitment reduction notice, Borrowing Notice for Revolving Loans,
Continuation/Conversion Notice with respect to Revolving Loans, and repayment
notice received by it hereunder. The Administrative Agent will notify each
applicable Lender of the interest rate applicable to each Eurocurrency Rate Loan
promptly upon determination of such interest rate, the Administrative Agent will
give each applicable Lender prompt notice of each change in the Alternate Base
Rate.
(b) Following completion of its initial collateral audit of the
Borrowing Base, which shall be completed on or prior to September 15, 1999, the
Administrative Agent shall notify the Lenders of the results of that collateral
audit and the Administrative Agent's proposed Initial Borrowing Base Adjustment.
Subject to the provisions of Section 11.5, in the event that the Required
Lenders request, in writing, that the Administrative Agent implement an
adjustment to the Borrowing Base as a result of such collateral audit that would
reduce the Amount Available for Borrowing by more than the Initial Borrowing
Base Adjustment recommended by the Administrative Agent, the Administrative
Agent shall implement the Initial Borrowing Base Adjustment so requested by the
Required Lenders.
2.16 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or
facsimile notice to the Administrative Agent and the Borrowers, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Administrative Agent. Unless the
applicable Borrower or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the
Administrative Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of a Borrower, a payment of principal, interest or fees to the
Administrative Agent for the account of the Lenders, that it does not intend to
make such payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower,
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as the case may be, has not in fact made such payment to the Administrative
Agent, the recipient of such payment shall, on demand by the Administrative
Agent, repay to the Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Administrative Agent until the
date the Administrative Agent recovers such amount at a rate per annum equal to
(i) in the case of payment by a Lender, the Federal Funds Effective Rate for
such day or (ii) in the case of payment by a Borrower, the interest rate
applicable to the relevant Loan.
2.18 Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement on the
Termination Date, until all of the Obligations (other than contingent indemnity
and reimbursement obligations) shall have been fully and indefeasibly paid and
satisfied, all financing arrangements among the Borrowers and the Lenders shall
have been terminated (other than under Hedging Agreements) and all of the
Letters of Credit shall have expired, been canceled or terminated, all of the
rights and remedies under this Agreement and the other Loan Documents shall
survive and the Administrative Agent shall be entitled to retain its security
interest in and to all existing and future Collateral for the benefit of itself
and the Holders of Secured Obligations.
2.19 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Revolving Credit Share of any
Advance requested by either Brightpoint or BPI which such Lender is obligated to
fund under the terms of this Agreement and which failure has not been cured,
(ii) requested compensation from any Borrower under Sections 2.14(E)4, 3.1 or
3.2 to recover Taxes, Other Taxes or other additional costs incurred by such
Lender which are not being incurred generally by the other Lenders, (iii)
delivered a notice pursuant to Section 3.3 claiming that such Lender is unable
to extend Eurocurrency Rate Loans to any Borrower for reasons not generally
applicable to the other Lenders or (iv) has invoked Section 10.2, then, in any
such case, any Borrower or the Administrative Agent may make written demand on
such Affected Lender (with a copy to the Administrative Agent in the case of a
demand by any Borrower and a copy to the Borrowers in the case of a demand by
the Administrative Agent) for the Affected Lender to assign, and such Affected
Lender shall use its best efforts to assign pursuant to one or more duly
executed assignment and acceptance agreements in substantially the form of
Exhibit H five (5) Business Days after the date of such demand, to one or more
financial institutions that comply with the provisions of Section 13.3(A) (and,
if selected by the Borrowers is reasonably acceptable to the Administrative
Agent) which any Borrower or the Administrative Agent, as the case may be, shall
have engaged for such purpose ("REPLACEMENT LENDER"), all of such Affected
Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Revolving Loan Commitment, all
Loans owing to it, all of its participation interests in existing Facility
Letters of Credit, and its obligation to participate in Facility Letters of
Credit and Swing Line Loans hereunder) in accordance with Section 12.3. The
Administrative Agent agrees, upon the occurrence of such events with respect to
an Affected Lender and upon the written request of any
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Borrower, to use its reasonable efforts to obtain the commitments from one or
more financial institutions qualified to act as a Replacement Lender. Further,
with respect to such assignment the Affected Lender shall have concurrently
received, in cash, all amounts due and owing to the Affected Lender hereunder or
under any other Loan Document, including, without limitation, the aggregate
outstanding principal amount of the Loans owed to such Lender, together with
accrued interest thereon through the date of such assignment, amounts payable
under Sections 2.14(E), 3.1, and 3.2 with respect to such Affected Lender and
compensation payable under Section 2.14(C) in the event of any replacement of
any Affected Lender under clause (ii) or clause (iii) of this Section 2.19;
provided that upon such Affected Lender's replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14(E), 3.1, 3.2, 3.4, and 10.7, as well as to any fees
accrued for its account hereunder and not yet paid, and shall continue to be
obligated under Section 11.8. Upon the replacement of any Affected Lender
pursuant to this Section 2.19, the provisions of Section 8.2 shall continue to
apply with respect to Advances which are then outstanding with respect to which
the Affected Lender failed to fund its Revolving Credit Share and which failure
has not been cured.
2.20 Letter of Credit Facility. Upon receipt of duly executed
applications therefor, and such other documents, instructions and agreements as
such Issuing Lender may reasonably require, and subject to the provisions of
Article IV, the Administrative Agent shall, or any other Lender in its sole
discretion may, issue letters of credit denominated in Dollars or in any Agreed
Currency for the account of Brightpoint or BPI, on terms as are satisfactory to
such Issuing Lender; provided, however, that no Facility Letter of Credit will
be issued for the account of Brightpoint or BPI by an Issuing Lender if on the
date of issuance, before or after taking such Facility Letter of Credit into
account, (i) the Dollar Amount of the Revolving Credit Obligations at such time
would exceed the Aggregate Revolving Loan Commitments at such time or (ii) the
aggregate outstanding Dollar Amount of the L/C Obligations exceeds Thirty
Million and 00/100 Dollars ($30,000,000); and provided, further, that no
Facility Letter of Credit shall be issued which has an expiration date more than
one year after the date of issuance of such Facility Letter of Credit or an
expiration date later than the date which is five (5) Business Days immediately
preceding the Termination Date; provided, further, that although such letters of
credit were issued prior to the date of this Agreement, effective on the Closing
Date all Existing Letters of Credit shall be treated as Facility Letters of
Credit hereunder. Each Facility Letter of Credit may, upon the request of the
applicable Borrower, include a provision whereby such Facility Letter of Credit
shall be renewed automatically for additional consecutive periods of 12 months
or less (but not beyond the date that is five Business Days prior to the
Termination Date) unless the Issuing Lender notifies the beneficiary thereof at
least 30 days prior to the then-applicable expiry date that such Facility Letter
of Credit will not be renewed. Prior to issuing any Facility Letter of Credit,
the applicable Issuing Lender shall request and the Administrative Agent shall
provide confirmation that the request for such Facility Letter of Credit
complies with the provisions of this Section 2.20. If the Administrative Agent
notifies the applicable Issuing Lender that it is authorized to issue such
Facility Letter of Credit, and the conditions described in Article IV have
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been satisfied, then such Issuing Lender shall issue such Facility Letter of
Credit as requested. The applicable Issuing Lender shall give the Administrative
Agent and each Lender prompt notice of the issuance of any such Facility Letter
of Credit by it. Each Issuing Lender shall furnish to the Administrative Agent
and each Lender on the first Business Day of each month a written report, with
respect to each outstanding Facility Letter of Credit issued by such Issuing
Lender, summarizing whether such Facility Letter of Credit is a standby or
commercial Facility Letter of Credit, the maximum amount available to be drawn
thereon, and the beneficiary and the issuance and expiration dates thereof.
Together with each such monthly report each Issuing Lender shall provide the
Administrative Agent a copy of each Facility Letter of Credit issued by such
Issuing Bank during the previous month.
2.21 Facility Letter of Credit Participation. Immediately on the
Closing Date with respect to the Existing Letters of Credit and upon the
issuance of each Facility Letter of Credit by any Issuing Lender hereunder, each
Lender that has a Revolving Loan Commitment shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from the
applicable Issuing Lender an undivided interest and participation in and to such
Facility Letter of Credit, the obligations of the applicable Borrower in respect
thereof, and the liability of the applicable Issuing Lender thereunder
(collectively, an "L/C INTEREST") in an amount equal to the amount available for
drawing under such Facility Letter of Credit multiplied by such Lender's
Revolving Credit Share.
The applicable Issuing Lender will notify the Administrative Agent
promptly upon presentation to it of an L/C Draft or upon any other draw under a
Facility Letter of Credit and the Administrative Agent will promptly notify each
Lender that has a Revolving Loan Commitment. On or before the Business Day on
which the applicable Issuing Lender makes payment of each such L/C Draft or any
other draw on a Facility Letter of Credit, on demand of the Issuing Lender
received by each Lender that has a Revolving Loan Commitment not later than 1:00
p.m. (Indianapolis time) on such Business Day, each Lender shall make payment on
such Business Day to the Administrative Agent for the account of the applicable
Issuing Lender, in immediately available funds in the applicable currency in an
amount equal to such Lender's Revolving Credit Share of the amount of such
payment or draw.
Upon the Administrative Agent's receipt of funds as a result of an
Issuing Lender's payment on an L/C Draft or any other draw on a Facility Letter
of Credit issued by an Issuing Lender, the Administrative Agent shall promptly
pay such funds to the Issuing Lender. The obligation of each Lender that has a
Revolving Loan Commitment to pay the Administrative Agent for the account of the
applicable Issuing Lender under this Section 2.21 shall be unconditional,
continuing, irrevocable and absolute. In the event that any such Lender fails to
make payment to the Administrative Agent of any amount due under this Section
2.21, the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent
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on behalf of the applicable Issuing Lender receives such payment from such
Lender or such obligation is otherwise fully satisfied; provided, however, that
nothing contained in this sentence shall relieve such Lender of its obligation
to reimburse the Administrative Agent for such amount in accordance with this
Section 2.21.
2.22 Reimbursement Obligation. Each of the Borrowers agrees
unconditionally, irrevocably and absolutely upon receipt of notice from the
Administrative Agent or the applicable Issuing Lender to pay immediately to the
Administrative Agent, for the account of the applicable Issuing Lender or the
account of the Lenders, as the case may be, the amount of each advance which may
be drawn under or pursuant to a Facility Letter of Credit issued for its account
or an L/C Draft related thereto (such obligation of each of the Borrowers to
reimburse the Issuing Lender or the Administrative Agent for an advance made
under a Facility Letter of Credit or L/C Draft being hereinafter referred to as
a "REIMBURSEMENT OBLIGATION" with respect to such Facility Letter of Credit or
L/C Draft), each such payment to be made by the applicable Borrower to the
Administrative Agent no later than 2:00 p.m. (Indianapolis time) on the Business
Day on which the applicable Issuing Lender makes payment of each such L/C Draft
or, in the case of any other draw on a Facility Letter of Credit, 2:00 p.m.
(Indianapolis time) on the date specified in a demand by the Administrative
Agent and such payment shall be made in the applicable currency in which such
Facility Letter of Credit was issued. Any Issuing Lender may direct the
Administrative Agent to make such demand with respect to Facility Letters of
Credit issued by such Issuing Lender. If any Borrower at any time fails to repay
a Reimbursement Obligation pursuant to this Section 2.22, such Borrower shall be
deemed to have elected to borrow a Revolving Loan from the applicable Lenders,
as of the date of the Advance giving rise to the Reimbursement Obligation equal
in amount to the amount of the unpaid Reimbursement Obligation. Such Revolving
Loan shall be made as of the date of the payment giving rise to such
Reimbursement Obligation, automatically, without notice and without any
requirement to satisfy the conditions precedent otherwise applicable to an
Advance of Revolving Loans if such Borrower shall have failed to make such
payment to the Administrative Agent for the account of the applicable Issuing
Lender prior to such time. Such Revolving Loans shall constitute a Base Rate
Advance, the proceeds of which Advance shall be used to repay such Reimbursement
Obligation. If, for any reason, such Borrower fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for any reason,
the Lenders are unable to make or have no obligation to make a Revolving Loan,
then such Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to a Base Rate Advance.
2.23 Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Facility Letter of Credit, after the occurrence and
during the continuance of Default, each Borrower shall, upon the Administrative
Agent's demand, deliver to the Administrative Agent for the benefit of the
Lenders, cash, or other collateral of a type satisfactory to the Required
Lenders, having a value, as determined by such Lenders, equal to the aggregate
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outstanding L/C Obligations of such Borrower. Any such collateral shall be held
by the Administrative Agent in a separate account appropriately designated as a
cash collateral account in relation to this Agreement and the Facility Letters
of Credit and retained by the Administrative Agent for the benefit of the
Lenders as collateral security for the Borrowers' obligations in respect of this
Agreement and each of the Facility Letters of Credit and L/C Drafts. Such
amounts shall be applied to reimburse the Administrative Agent or each Issuing
Lender, as applicable, for drawings or payments under or pursuant to Facility
Letters of Credit or L/C Drafts, or if no such reimbursement is required, to
payment of such of the other Obligations as the Administrative Agent shall
determine. If no Default shall be continuing, amounts remaining in any cash
collateral account established pursuant to this Section 2.23 which are not to be
applied to reimburse the Administrative Agent for amounts actually paid or to be
paid by the Administrative Agent in respect of a Facility Letter of Credit or
L/C Draft, shall be returned to the applicable Borrower (after deduction of the
Administrative Agent's expenses incurred in connection with such cash collateral
account).
2.24 Facility Letter of Credit Fees. Each of the Borrowers agrees to
pay (i) quarterly, in arrears, on each Payment Date to the Administrative Agent
for the ratable benefit of the Lenders having Revolving Loan Commitments, except
as set forth in Section 8.2, a letter of credit fee ("LETTER OF CREDIT FEE") in
the amount of the Applicable Letter of Credit Fee Rate per annum on the
aggregate average daily outstanding Dollar Amount available for drawing under
all of the Facility Letters of Credit issued for its account, and (ii) to the
Administrative Agent for the benefit of the Issuing Lenders, a fronting fee of
one-eighth of one percent (0.125%) per annum on the aggregate average daily
outstanding Dollar Amount available for drawing under all of the Facility
Letters of Credit issued for its account payable quarterly, in arrears, on each
Payment Date, plus all customary fees and other issuance, amendment, document
examination, negotiation and presentment expenses and related charges in
connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by the Issuing Lender with respect to standby and
commercial Facility Letters of Credit, including, without limitation, standard
commissions with respect to commercial Facility Letters of Credit, payable at
the time of invoice of such amounts.
2.25 Indemnification; Exoneration. (a) In addition to amounts payable
as elsewhere provided in this Agreement, each Borrower with respect to Facility
Letters of Credit issued for its account agrees to protect, indemnify, pay and
save harmless the Administrative Agent, each Issuing Lender and each Lender from
and against any and all liabilities and costs which the Administrative Agent,
any Issuing Lender or any Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Facility Letter of Credit other
than, in the case of the Issuing Lender, as a result of its Gross Negligence or
willful misconduct, as determined by the final judgment of a court of competent
jurisdiction, or (ii) the failure of the Issuing Lender of a Facility Letter of
Credit to honor a drawing under such Facility Letter of Credit as a result of
any act or omission, whether rightful or wrongful, of any present or future de
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jure or de facto Governmental Authority (all such acts or omissions herein
called "GOVERNMENTAL ACTS").
(b) As among the Borrowers, the Lenders, the Issuing Lenders and the
Administrative Agent, the Borrowers assume all risks of the acts and omissions
of, or misuse of such Facility Letter of Credit by, the beneficiary of any
Facility Letter of Credit. In furtherance and not in limitation of the
foregoing, subject to the provisions of the Facility Letter of Credit
applications and Facility Letter of Credit reimbursement agreements executed by
the applicable Borrower at the time of request for any Facility Letter of
Credit, the Issuing Lender of a Facility Letter of Credit, the Administrative
Agent and the Lenders shall not be responsible (in the absence of Gross
Negligence or willful misconduct in connection therewith, as determined by the
final judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
the Facility Letters of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) for failure of the beneficiary
of a Facility Letter of Credit to comply duly with conditions required in order
to draw upon such Facility Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, or other similar form of teletransmission or otherwise;
(v) for errors in interpretation of technical trade terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Facility Letter of Credit or of the proceeds thereof; (vii)
for the misapplication by the beneficiary of a Facility Letter of Credit of the
proceeds of any drawing under such Facility Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Administrative Agent,
the Issuing Lender and the Lenders including, without limitation, any
Governmental Acts. None of the above shall affect, impair, or prevent the
vesting of any of the Issuing Lender's rights or powers under this Section 2.25.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by an Issuing
Lender under or in connection with Facility Letters of Credit issued on behalf
of either Brightpoint or BPI or any related certificates shall not, in the
absence of Gross Negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, put the Issuing Lender, the
Administrative Agent or any Lender under any resulting liability to any Borrower
or relieve any Borrower of any of its obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 2.25 shall survive the
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payment in full of principal and interest hereunder, the termination of the
Facility Letters of Credit and the termination of this Agreement.
2.26 Judgment Currency. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from a Borrower hereunder or
under any of the Notes in the currency expressed to be payable herein or under
the Notes (the "SPECIFIED CURRENCY") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's principal office in
Indianapolis, Indiana on the Business Day preceding that on which the final,
non-appealable judgment is given. The obligations of the applicable Borrower in
respect of any sum due to any Lender or the Administrative Agent hereunder or
under any Note shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, the applicable Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 12.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the applicable Borrower. Without prejudice to the
survival of any of the other agreements of the Borrowers hereunder, the
agreements and obligations of the Borrowers in this Section 2.26 shall survive
the termination of this Agreement and the payment of all other amounts owing
hereunder.
2.27 Market Disruption; Deposits Unavailable, Interest Rate
Unascertainable or Inadequate; Impracticability. Notwithstanding the
satisfaction of all conditions referred to in Article II with respect to any
Advance in any currency other than Dollars, if there shall occur on or prior to
the date of such Advance any event which results in a currency no longer
qualifying as an Eligible Currency or any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which would in the reasonable opinion of the Administrative
Agent or the Required Lenders make it impracticable for the Eurocurrency Rate
Loans comprising such Advance to be denominated in the currency specified by the
applicable Borrower, then the Administrative Agent shall forthwith give notice
thereof to Brightpoint and the Lenders, and such Loans shall not be denominated
in such currency but shall
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be made on such Borrowing Date as Base Rate Loans in Dollars, in an aggregate
principal amount equal to the Dollar Amount of the aggregate principal amount
specified in the related Borrowing Notice unless the applicable Borrower
notifies the Administrative Agent at least one Business Day before such date
that (i) it elects not to borrow on such date or (ii) with respect to
Eurocurrency Rate Loans it elects to borrow on such date in a different
currency, as the case may be, in which the denomination of such Loans would in
the opinion of the Administrative Agent and the Required Lenders be practicable
and in an aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Borrowing Notice. If, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Rate Advance the Administrative Agent shall
have determined (i) that deposits in the applicable currency in the principal
amounts of the Loans comprising such Advance are not generally available in the
London interbank market or any other market in which the Lenders shall be
funding such Loans, (ii) that the rates at which such deposits in the applicable
currency are being offered will not adequately and fairly reflect the cost to
the Required Lenders of making or maintaining their Eurocurrency Rate Loans
during such Interest Period or (iii) that reasonable means do not exist for
ascertaining the Eurocurrency Rate, the Administrative Agent shall, as soon as
practicable thereafter, give telecopy notice of such determination to
Brightpoint and the applicable Lenders. In the event of any such determination,
until the Administrative Agent shall have advised Brightpoint and the applicable
Lenders that the circumstances giving rise to such notice no longer exist, any
request by a Borrower for a Eurocurrency Rate Advance pursuant to Section 2.7
shall be of no force and effect and shall be denied by the Administrative Agent,
and any request by a Borrower for a Eurocurrency Rate Advance denominated in
Dollars pursuant to Section 2.7 shall be deemed to be a request for a Base Rate
Advance. Each determination by the Administrative Agent hereunder shall be
presumed correct in the absence of facts indicating that such determination is
erroneous (it being understood that the Borrower shall not have access to the
internal records of the Administrative Agent or any Lender for the purpose of
confirming such determination).
2.28. Rounding and Other Consequential Changes. With effect on and
after the date hereof:
(i) without prejudice to any method of conversion or rounding prescribed by
any legislative measures of the Council of the European Union, each
reference in this Agreement to a fixed amount or to fixed amounts in a
National Currency Unit to be paid to or by the Administrative Agent
shall, notwithstanding any other provision of this Agreement, be
replaced by a reference to such comparable and convenient fixed amount
or fixed amounts in the euro as the Administrative Agent may from time
to time specify; and
(ii) the Administrative Agent may notify the other parties to this Agreement
of any modifications to this Agreement which the Administrative Agent
(acting reasonably and after consultation with the other parties to
this Agreement) determines to be necessary as
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a result of the commencement of the third stage of the European
Economic and Monetary Union. Notwithstanding any other provision of
this Agreement, any modifications of which the Administrative Agent so
notifies the other parties shall take effect in accordance with the
terms of such notification. So far as possible, such modifications
shall be such as to put the parties in the same position as if the euro
implementation date had not occurred. However, if and to the extent
that the Administrative Agent determines that it is not possible to put
the parties in such position, the Administrative Agent may give
priority to putting the Administrative Agent, the Arranger and the
Lenders into such position.
ARTICLE III: CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(i) subjects any Lender (each reference in this Section 3.1 to
a Lender being in its capacity as a Lender, Alternate Currency Lender,
Swing Line Lender or an Issuing Lender, or all of the foregoing) or any
applicable Lending Installation to any tax, duty, charge or withholding
on or from payments due from either of the Borrowers (excluding
taxation imposed by the United States of America or any Governmental
Authority of the jurisdiction under the laws of which such Lender is
organized, on the overall net income of any Lender or applicable
Lending Installation), or changes the basis of taxation of payments to
any Lender in respect of its Loans, its L/C Interests, the Letters of
Credit or other amounts due it hereunder, provided however that this
clause (i) shall not apply with respect to any Taxes to which Section
2.14(E) applies, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation with
respect to its Eurocurrency Rate Loans, Alternate Currency Loans, L/C
Interests or the Letters of Credit (other than reserves and assessments
taken into account in calculating the Eurocurrency Rate), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining the Eurocurrency Rate Loans,
Alternate Currency Loans, the L/C Interests or the Letters of
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Credit or reduces any amount received by any Lender or any applicable
Lending Installation in connection with Alternate Currency Loans,
Eurocurrency Rate Loans or Letters of Credit, or requires any Lender or
any applicable Lending Installation to make any payment calculated by
reference to the amount of Loans or L/C Interests held or interest
received by it or by reference to the Letters of Credit, by an amount
deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests or Letters of Credit or
to reduce any amount received under this Agreement, then, within 15 days after
receipt by Brightpoint of written demand by such Lender pursuant to Section 3.5,
Brightpoint shall pay or cause the appropriate Subsidiary to pay such Lender
that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans, L/C Interests, Letters of Credit and its Revolving Loan
Commitment.
3.2 Changes in Capital Adequacy Regulations. If a Lender (each
reference in this Section 3.2 to a Lender being in its capacity as a Lender,
Alternate Currency Lender, Swing Line Lender or an Issuing Lender, or all of the
foregoing) determines (i) the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a "Change" (as
defined below), and (ii) such increase in capital will result in an increase in
the cost to such Lender of maintaining its Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within 15 days after
receipt by Brightpoint of written demand by such Lender pursuant to Section 3.5,
Brightpoint shall pay or cause the appropriate Subsidiary to pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Loans, its L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "CHANGE" means (i) any change after the date
of this Agreement in the "Risk-Based Capital Guidelines" (as defined below)
excluding, for the avoidance of doubt, the effect of any phasing in of such
Risk-Based Capital Guidelines or any other capital requirements passed prior to
the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement and having general applicability to all banks and
financial institutions within the jurisdiction in which such Lender operates
which affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"RISK-BASED CAPITAL GUIDELINES" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
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"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurocurrency Rate Loans or Alternate Currency Credits at
a suitable Lending Installation would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, or (ii) the
Required Lenders determine that (x) deposits of a type, currency and maturity
appropriate to match fund Fixed Rate Advances are not available or (y) the
interest rate applicable to a Eurocurrency Rate Advance does not accurately
reflect the cost of making or maintaining such a Eurocurrency Rate Advance, then
the Administrative Agent or Alternate Currency Lender, as the case may be, shall
suspend the availability of Eurocurrency Rate Advances or Alternate Currency
Credits and, in the case of any occurrence set forth in clause (i), require any
Eurocurrency Rate Advances to be repaid or, at the option of Brightpoint,
converted to Base Rate Advances.
3.4 Funding Indemnification. If (i) any payment of a Fixed Rate Loan or
other Alternate Currency Loan occurs on a date which is not the last day of the
applicable Interest Period or any Loan in any currency is converted to a Loan in
any other currency on a date which is not the last day of the applicable
Interest Period, whether because of acceleration, prepayment, or otherwise, or
(ii) a Fixed Rate Loan or other Alternate Currency Loan is not made or continued
on the date specified by the applicable Borrower for any reason other than
default by the Lenders, the applicable Borrower agrees to compensate and
indemnify each Lender, on demand, for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Fixed Rate Advance.
3.5 Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an Alternate Lending Installation with respect to
its Fixed Rate Loans to reduce any liability of Brightpoint or BPI to such
Lender under Sections 3.1 and 3.2 or to avoid the unavailability of a Type of
Advance under Section 3.3, so long as such designation is not disadvantageous to
such Lender. Each Lender requiring compensation pursuant to Section 2.14(E) or
to this Article III shall use its reasonable efforts to notify Brightpoint and
the Administrative Agent in writing of any Change, law, policy, rule, guideline
or directive giving rise to such demand for compensation not later than ninety
(90) days following the date upon which the responsible account officer of such
Lender knows or should have known of such Change, law, policy, rule, guideline
or directive; provided, that failure to give such notice shall not affect any
obligations of the Borrowers hereunder with respect thereto. Any demand for
compensation pursuant to this Article III shall be in writing and shall state
the amount due, if any, under Section 3.1, 3.2 or 3.4 and shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount. Such written demand shall be rebuttably presumed correct for all
purposes. Determination of amounts payable under such Sections in connection
with a Fixed Rate Loan shall be calculated as though each Lender funded its
Fixed Rate Loan through the
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purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Fixed Rate applicable to such
Loan, whether in fact that is the case or not. The obligations of the Borrowers
under Sections 3.1, 3.2 and 3.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE IV: CONDITIONS PRECEDENT
4.1 Effectiveness of this Agreement. The terms of this Agreement shall
not be effective and the Lenders shall not be required to make the Loans
hereunder or issue any Letters of Credit hereunder unless:
(a) the Borrowers have furnished to the Administrative Agent,
with sufficient copies for the Lenders, such documents as the
Administrative Agent or any Lender or its counsel may have reasonably
requested, including, without limitation, an initial Borrowing Base
Certificate, a preliminary compliance certificate for the fiscal
quarter ended June 30, 1999 and corporate documentation and opinions of
counsel;
(b) Brightpoint shall have paid to the Administrative Agent,
for the account of each of the Lenders which has signed this Agreement
prior to 5:00 p.m. (Chicago time) on the date hereof in accordance with
their Pro Rata Shares, a fee in an amount equal to 12.5 basis points of
the Aggregate Commitment and such other Closing fees as made be agreed
to between the Borrowers and the Administrative Agent or Arranger; and
(c) this Agreement shall have been executed by the
Administrative Agent, the Alternate Currency Lenders, the Required
Lenders, the Borrowers and the Guarantors and each of the entities
parties to any of the Pledge Agreements as pledgors shall have entered
into reaffirmations of such Pledge Agreements.
4.2 Each Advance and Letter of Credit. Except as expressly provided in
Sections 2.2, 2.4 and 2.22 with respect to the purchase of Loans, participations
in Loans or making of Loans to repay Swing Line Loans, the Lenders shall not be
required to make any Advance and the Issuing Lender shall not be required to
issue any Letter of Credit, unless on the applicable Borrowing Date, or in the
case of a Letter of Credit, the date on which the Letter of Credit is to be
issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in Article V
are true and correct in all material respects as of such Borrowing
Date, except for representations and warranties made with reference to
a specific date which representations and warranties
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shall be true and correct in all material respects as of such date, and
except for amendments to the Schedules made pursuant to the provisions
of Section 1.3.
Each Borrowing Notice with respect to each such Advance and the letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrowers that the conditions contained in
Sections 4.2(i) and (ii) will have been satisfied as of the date of such Advance
or the issuance of such Letter of Credit. Any Lender may require a duly
completed officer's certificate in substantially the form of Exhibit H hereto
and/or a duly completed compliance certificate in substantially the form of
Exhibit A hereto as a condition to making an Advance; provided, however, no such
officer's certificate or compliance certificate shall be required without at
least 3 Business Days' prior notice unless the Lender requesting such
certificate has a good faith basis for believing that the conditions contained
in Section 4.2(i) and (ii) cannot be met in connection with any such borrowing.
4.3 Conditions Precedent to Initial Borrowing by each Subsidiary
Borrower. The obligation of the Alternate Currency Lender to make an Alternate
Currency Credit on the occasion of the first borrowing by each Subsidiary
Borrower is subject to the satisfaction of the condition that the Administrative
Agent shall have received the following:
(a) an Alternate Currency Addendum for such Subsidiary
Borrower duly executed by the Alternate Currency Lenders and the applicable
Subsidiary Borrower and acknowledged by Brightpoint;
(b) any other Alternate Currency Documents reasonably
requested by the Administrative Agent with respect to such proposed Alternate
Currency Credits;
(c) all other documents as shall reasonably demonstrate the
existence of such Subsidiary Borrower, the corporate power and authority of such
Subsidiary Borrower to enter into the applicable Alternate Currency Documents,
to borrow the applicable Alternate Currency Loans and the validity of the
foregoing.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and the other financial accommodations
to the Borrowers and in order to induce the Issuing Lender to issue the Letters
of Credit described herein, each of the Borrowers represents and warrants as
follows to each Lender and the Administrative Agent as of the Closing Date and
thereafter on each date as required by Section 4.2:
5.1 Organization; Powers. Each of the Borrowers and each of their
respective Subsidiaries (i) is a duly organized corporation validly existing and
in good standing under the
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laws of the jurisdiction of its organization, (ii) is duly qualified to do
business as a foreign company or corporation and is in good standing under the
laws of each jurisdiction in which failure to be so qualified and in good
standing could have a Material Adverse Effect, (iii) has, in the case of
Brightpoint, timely filed and maintained effective (unless exempt from the
requirements for filing) a current Business Activity Report with the appropriate
Governmental Authority in the States in which it is required to do so and (iv)
has all requisite power and authority to own, operate and encumber its property
and to conduct its business as presently conducted and as proposed to be
conducted in connection with and following the consummation of the transactions
contemplated by this Agreement.
5.2 Authority.
(A) Each of the Borrowers and each of their respective Subsidiaries has
the requisite power and authority (i) to execute, deliver and perform each of
the Loan Documents which have been executed by it as required by this Agreement
and (ii) to file the Loan Documents which must be filed by it with any
Governmental Authority.
(B) The execution, delivery, performance and filing, as the case may
be, of each of the Loan Documents which must be executed or filed by either of
the Borrowers or any other Subsidiary of Brightpoint which have been executed or
filed as required by this Agreement and to which either of the Borrowers or any
other Subsidiary of Brightpoint is party, and the consummation of the
transactions contemplated thereby, have been duly approved, to the extent
required, by the respective boards of managers or directors, as applicable, and,
if necessary, the members or shareholders or workers' councils of any Borrower
or Subsidiary, as applicable, and such approvals have not been rescinded. No
other action or proceedings on the part of any Borrower or any other Person are
necessary to consummate such transactions.
(C) Each of the Loan Documents to which either of the Borrowers or any
other Subsidiary of Brightpoint is a party has been duly executed, delivered or
filed, as the case may be, by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditor's rights generally), is in full force and
effect and no material term or condition thereof has been amended, modified or
waived from the terms and conditions contained in the Loan Documents delivered
to the Administrative Agent pursuant to Section 4.1 without the prior written
consent of the Required Lenders, and each of the Borrowers or each other
Subsidiary of Brightpoint have, and, to the best of such Borrower's or
Subsidiary's knowledge, all other parties thereto have performed and complied
with all the terms, provisions, agreements and conditions set forth therein and
required to be performed or complied with by such parties, and no unmatured
default, default or breach of any covenant by any such party exists thereunder.
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5.3 No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which either of the Borrowers or
any other Subsidiary of Brightpoint is a party do not and will not (i) conflict
with the documents of organization or governance of such Borrower or Subsidiary
(ii) constitute tortious interference with any Contractual Obligation of any
Person or conflict with, result in a breach of or constitute (with or without
notice or lapse of time or both) a default under any Requirement of Law
(including, without limitation, any Environmental Property Transfer Act) or
Contractual Obligation of any Borrower or any such Subsidiary, or require
termination of any Contractual Obligation, except such interference, breach,
default or termination which individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect or to subject the
Administrative Agent, the Arranger, any of the Lenders or the Issuing Lender to
any liability, (iii) with respect to the Loan Documents, result in or require
the creation or imposition of any Lien whatsoever upon any of the property or
assets of any Borrower or any such Subsidiary, other than Liens permitted by the
Loan Documents, or (iv) require any approval of the Borrower's or any such
Subsidiary's members, shareholders, workers' council or other similar
constituent group except such as have been obtained. The execution, delivery and
performance of each of the Loan Documents to which any Borrower or any other
Subsidiary is a party do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by any Governmental
Authority, including under any Environmental Property Transfer Act.
5.4 Financial Statements. The historical and forecasted financial
statements (the "Statements") of Brightpoint and its Subsidiaries, copies of
which are attached hereto as Schedule 5.4, (i) with respect to the historical
Statements, (a) were prepared in accordance with generally accepted accounting
principles consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, (b) fairly present the consolidated financial
position of Brightpoint and its Subsidiaries as of the date thereof and
consolidated results of operations for the period covered thereby; and (c) show
all material indebtedness and other liabilities, direct or contingent, of
Brightpoint and its consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Contingent Obligations; and (ii)
with respect to the forecasted Statements, the projections and assumptions
expressed therein were prepared in good faith and represent management's opinion
based on the information available to Brightpoint at the time so furnished.
5.5 No Material Adverse Change. (a) Except as described in
Brightpoint's press release issued June 30, 1999, from March 31, 1999 up to the
Closing Date, there has occurred no change in the business, properties,
condition (financial or otherwise) or results of operations of Brightpoint and
its Subsidiaries taken as a whole or any other event which has had or is
reasonably likely to have a Material Adverse Effect.
(b) Since the Closing Date, there has occurred no change in the
business, properties, condition (financial or otherwise) or results of
operations of Brightpoint and its Subsidiaries taken
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as a whole or any other event which has had or is reasonably likely to have a
Material Adverse Effect.
5.6 Taxes.
(A) Tax Examinations. All deficiencies which have been asserted against
Brightpoint or any of Brightpoint's Subsidiaries as a result of any federal,
state, local or foreign tax examination for each taxable year in respect of
which an examination has been conducted have been fully paid or finally settled
or are being contested in good faith, and as of the Closing Date no issue has
been raised by any taxing authority in any such examination which, by
application of similar principles, reasonably can be expected to result in
assertion by such taxing authority of a material deficiency for any other year
not so examined which has not been reserved for in Brightpoint's consolidated
financial statements to the extent, if any, required by Agreement Accounting
Principles. Except as permitted pursuant to Section 6.2(D), neither Brightpoint
nor any of Brightpoint's Subsidiaries anticipates any material tax liability
with respect to the years which have not been closed pursuant to applicable law.
(B) Payment of Taxes. All tax returns and reports of each of
Brightpoint, BPI and Brightpoint's other Subsidiaries required to be filed have
been timely filed, and all taxes, assessments, fees and other governmental
charges thereupon and upon their respective property, assets, income and
franchises which are shown in such returns or reports to be due and payable have
been paid except those items which are being contested in good faith and have
been reserved for in accordance with Agreement Accounting Principles.
Brightpoint has no knowledge of any proposed tax assessment against Brightpoint,
BPI, or any of Brightpoint's other Subsidiaries that will have or is reasonably
likely to have a Material Adverse Effect.
5.7 Litigation; Loss Contingencies and Violations. Except for Permitted
Existing Contingent Obligations and as set forth in Schedules 5.7 to this
Agreement, there is no action, suit, proceeding, investigation of which
Brightpoint has knowledge or arbitration before or by any Governmental Authority
or private arbitrator pending or, to the knowledge of Brightpoint or any of its
Subsidiaries, threatened against Brightpoint or any of its Subsidiaries or any
property of any of them (i) challenging the validity or the enforceability of
any material provision of the Loan Documents or (ii) which will have or is
reasonably likely to have a Material Adverse Effect. There is no material loss
contingency within the meaning of Agreement Accounting Principles which has not
been reflected in the consolidated financial statements of Brightpoint prepared
and delivered pursuant to Section 6.1(A) for the fiscal period during which such
material loss contingency was incurred. Neither Brightpoint nor any of its
Subsidiaries is (A) in violation of any applicable Requirements of Law which
violation will have or is reasonably likely to have a Material Adverse Effect,
or (B) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation
of any court or Governmental Authority which will have or is reasonably likely
to have a Material Adverse Effect.
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5.8 Subsidiaries. Schedule 5.8 to this Agreement (i) contains a
description (both narratively and in flow chart form) of the corporate structure
of Brightpoint, Brightpoint's Subsidiaries and any other Person in which
Brightpoint or any of its Subsidiaries holds an equity interest; and (ii)
accurately sets forth (A) the correct legal name, the jurisdiction of
organization or incorporation and the jurisdictions in which each Borrower and
the direct and indirect Subsidiaries of Brightpoint is qualified to transact
business as a foreign company or corporation, (B) the authorized, issued and
outstanding shares of each class of Capital Stock of each entity referred to
above that is a corporation and the owners of such shares (both as of the
Closing Date and on a fully-diluted basis), and (C) a summary of the direct and
indirect ownership, membership, partnership, joint venture, or other equity
interests, if any, of Brightpoint and each Subsidiary of Brightpoint in any
Person that is not a corporation.
5.9 ERISA. No Benefit Plan has incurred any accumulated funding
deficiency (as defined in Sections 302(a)(2) of ERISA and 412(a) of the Code)
whether or not waived. Neither Brightpoint nor any member of the Controlled
Group has incurred any liability to the PBGC which remains outstanding other
than the payment of premiums, and there are no premium payments which have
become due which are unpaid. Schedule B to the most recent annual report filed
with the IRS with respect to each Benefit Plan and furnished to the lenders is
complete and accurate. Since the date of each such Schedule B, there has been no
material adverse change in the funding status or financial condition of the
Benefit Plan relating to such Schedule B. Neither Brightpoint nor any member of
the Controlled Group has (i) failed to make a required contribution or payment
to a Multiemployer Plan or (ii) made a complete or partial withdrawal under
Sections 4203 or 4205 of ERISA from a Multiemployer Plan. Neither Brightpoint
nor any member of the Controlled Group has failed to make a required installment
or any other required payment under Section 412 of the Code on or before the due
date for such installment or other payment. Neither Brightpoint nor any member
of the Controlled Group is required to provide security to a Benefit Plan under
Section 401(a)(29) of the Code due to a Plan amendment that results in an
increase in current liability for the plan year. Neither Brightpoint nor any of
its Subsidiaries maintains or contributes to any employee welfare benefit plan
within the meaning of Section 3(1) of ERISA which provides benefits to employees
after termination of employment other than as required by Section 601 of ERISA.
Each Plan which is intended to be qualified under Section 401(a) of the Code as
currently in effect is so qualified, and each trust related to any such Plan is
exempt from federal income tax under Section 501(a) of the Code as currently in
effect. Brightpoint and all Subsidiaries are in compliance in all material
respects with the responsibilities, obligations and duties imposed on them by
ERISA and the Code with respect to all Plans. Neither Brightpoint nor any of its
Subsidiaries nor any fiduciary of any Plan has engaged in a nonexempt prohibited
transaction described in Sections 406 of ERISA or 4975 of the Code which could
reasonably be expected to subject Brightpoint to liability individually or in
the aggregate in excess of $250,000. Neither Brightpoint nor any member of the
Controlled Group has taken or failed to take any action which would constitute
or result in a Termination
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Event, which action or inaction could reasonably be expected to subject
Brightpoint nor any of its Subsidiaries to liability in excess of $250,000.
Neither Brightpoint nor any Subsidiary is subject to any liability under
Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA and no other member of the
Controlled Group is subject to any liability under Sections 4063, 4064, 4069,
4204 or 4212(c) of ERISA which could reasonably be expected to subject
Brightpoint to or any of its Subsidiaries liability individually or in the
aggregate in excess of $250,000. Neither Brightpoint nor any of its Subsidiaries
has, by reason of the transactions contemplated hereby, any obligation to make
any payment to any employee pursuant to any Plan or existing contract or
arrangement.
5.10 Accuracy of Information. The information, exhibits and reports
furnished by or on behalf of Brightpoint and any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents, including, without limitation, the
Confidential Information Memorandum reviewed by Brightpoint (provided that
except as set forth in Section 5.4, no representation or warranty is made with
respect to the forward looking information contained therein), the
representations and warranties of Brightpoint and its Subsidiaries contained in
the Loan Documents, and all certificates and documents delivered to the
Administrative Agent and the Lenders pursuant to the terms thereof do not
contain as of the date furnished any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
herein or therein, in light of the circumstances under which they were made, not
misleading.
5.11 Securities Activities. Neither Brightpoint nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
5.12 Material Agreements. Neither Brightpoint nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
contractual or corporate restriction which will have or is reasonably likely to
have a Material Adverse Effect. Neither Brightpoint nor any of its Subsidiaries
has received notice or has knowledge that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation, in
each case, except where such default or defaults, if any, will not have or are
not reasonably likely to have a Material Adverse Effect.
5.13 Compliance with Laws. Brightpoint and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate will have or is reasonably likely to have a Material Adverse Effect.
5.14 Assets and Properties. Brightpoint and each of its Subsidiaries
has good and marketable title to all of its assets and properties (tangible and
intangible, real or personal) owned
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by it or a valid leasehold interest in all of its leased assets (except insofar
as marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free and
clear of all Liens, except Liens securing the Obligations and Liens permitted
under Section 6.3(C). Substantially all of the assets and properties owned by,
leased to or used by Brightpoint and/or each such Subsidiary of Brightpoint are
in adequate operating condition and repair, ordinary wear and tear excepted.
Except for Liens granted to the Administrative Agent for the benefit of the
Administrative Agent and the Holders of Secured Obligations, neither this
Agreement nor any other Loan Document, nor any transaction contemplated under
any such agreement, will affect any right, title or interest of Brightpoint or
such Subsidiary in and to any of such assets in a manner that will have or is
reasonably likely to have a Material Adverse Effect.
5.15 Statutory Indebtedness Restrictions. Neither Brightpoint, nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal, state, local or foreign
statute or regulation which limits its ability to incur indebtedness or its
ability to consummate the transactions contemplated hereby.
5.16 Post-Retirement Benefits. As of the Closing Date, Brightpoint and
its Subsidiaries have no expected cost of post-retirement medical and insurance
benefits payable by Brightpoint or its Subsidiaries to its employees and former
employees, as estimated by Brightpoint in accordance with Financial Accounting
Standards Board Statement No. 106.
5.17 Insurance. Schedule 5.17 to this Agreement accurately sets forth
as of the Closing Date all insurance policies and programs currently in effect
with respect to the respective properties and assets and business of Brightpoint
and its Subsidiaries, specifying for each such policy and program, (i) the
amount thereof, (ii) the risks insured against thereby, (iii) the name of the
insurer and each insured party thereunder, (iv) the policy or other
identification number thereof, (v) the expiration date thereof, (vi) the annual
premium with respect thereto and (vii) describes any reserves, relating to any
self-insurance program that is in effect. Such insurance policies and programs
reflect coverage that is reasonably consistent with prudent industry practice.
5.18 Contingent Obligations. Except for Permitted Existing Contingent
Obligations, neither Brightpoint nor any of its Subsidiaries has any Contingent
Obligation, contingent liability, long-term lease, synthetic lease or
commitment, not reflected in the financial statements attached hereto as Exhibit
I or otherwise disclosed to the Administrative Agent and the Lenders in the
other Schedules to this Agreement, which could reasonably be expected to subject
Brightpoint nor any of its Subsidiaries to liability individually or in the
aggregate in excess of (a) twenty percent (20%) of Total Capital with respect to
Contingent Purchase Price Obligations requiring cash payments or (b) $1,000,000
for other amounts.
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5.19 Restricted Junior Payments. Neither Brightpoint nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made or set
apart any sum or properties for any Restricted Junior Payment or agreed to do
so, except to the extent permitted pursuant to Section 6.3(F) of this Agreement.
5.20 Labor Matters.
(A) There are on the Closing Date no collective bargaining agreements,
other labor agreements or Multiemployer Plans covering any of the employees of
Brightpoint or any of its Subsidiaries. As of the Closing Date, no labor
disputes, strikes or walkouts affecting the operations of Brightpoint or any of
its Subsidiaries, is pending, or, to Brightpoint's knowledge, threatened,
planned or contemplated.
(B) Set forth in Schedule 5.20 to this Agreement is a list, as of the
Closing Date, of all material consulting agreements, executive compensation
plans, deferred compensation agreements, employee pension plans or retirement
plans, employee profit sharing plans, employee stock purchase and stock option
plans, severance plans, group life insurance, hospitalization insurance or other
plans or arrangements of Brightpoint and its Subsidiaries providing for benefits
for employees of Brightpoint or its Subsidiaries.
5.21 Environmental Matters. (a) Except as disclosed on Schedule 5.21:
(i) the operations of Brightpoint and its Subsidiaries comply
in all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) Brightpoint and its Subsidiaries have all material
permits, licenses or other authorizations required under Environmental,
Health or Safety Requirements of Law and are in material compliance
with such permits;
(iii) neither Brightpoint, any of its Subsidiaries nor any of
their respective present property or operations, or, to the best of,
Brightpoint's or any of its Subsidiaries' knowledge, any of their
respective past property or operations, are subject to or the subject
of, any investigation known to Brightpoint or any of its Subsidiaries,
any judicial or administrative proceeding, order, judgment, decree,
settlement or other agreement respecting: (A) any material violation of
Environmental, Health or Safety Requirements of Law; (B) any material
remedial action; or (C) any material claims or liabilities arising from
the Release or threatened Release of a Contaminant into the
environment;
(iv) there is not now, nor to the best of Brightpoint's or any
of its Subsidiaries' knowledge has there ever been on or in the
property of Brightpoint or any of its Subsidiaries any material
landfill, waste pile, underground storage tanks, aboveground
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storage tanks, surface impoundment or hazardous waste storage facility
of any kind, polychlorinated biphenyls (PCBs) used in hydraulic oils,
electric transformers or other equipment, or asbestos-containing
material; and
(v) neither Brightpoint nor any of its Subsidiaries has any
material Contingent Obligation or material contingent liability in
connection with any Release or threatened Release of a Contaminant into
the environment.
(b) For purposes of this Section 5.21 "material" means any
noncompliance or basis for liability which could reasonably be likely to subject
Brightpoint to liability individually or in the aggregate in excess of $250,000.
5.22 Foreign Employee Benefit Matters. To the best of Brightpoint's and
its Subsidiaries' knowledge after diligent inquiry of all relevant Persons: (a)
each Foreign Employee Benefit Plan is in compliance in all respects with all
laws, regulations and rules applicable thereto and the respective requirements
of the governing documents for such Plan, except for any non-compliance the
consequences of which, in the aggregate, would not result in a material
obligation to pay money; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed the current fair
market value of the assets held in the trusts or similar funding vehicles for
such Plans or reasonable reserves have been established in accordance with
prudent business practices or as required by Agreement Accounting Principles
with respect to any shortfall; (c) with respect to any Foreign Employee Benefit
Plan maintained or contributed to by Brightpoint or any Subsidiary or any member
of its Controlled Group (other than a Foreign Pension Plan), reasonable reserves
have been established in accordance with prudent business practice or where
required by ordinary accounting practices in the jurisdiction in which such Plan
is maintained; and (d) there are no actions, suits or claims (other than routine
claims for benefits) pending or, to the knowledge of Brightpoint and its
Subsidiaries, threatened against Brightpoint or any Subsidiary of it or any
ERISA Affiliate with respect to any Foreign Employee Benefit Plan.
5.23. Year 2000 Issues. Each of the Borrower and its Subsidiaries has
made a full and complete assessment of the Year 2000 Issues and has a realistic
and achievable program for remediating the Year 2000 Issues on a timely basis.
Based on this assessment and program, the Borrower does not reasonably
anticipate any Material Adverse Effect as a result of Year 2000 Issues.
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ARTICLE VI: COVENANTS
Each of the Borrowers covenants and agrees that so long as any
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity and reimbursement obligations),
unless the Required Lenders shall otherwise give prior written consent:
6.1 Reporting. The Borrowers shall:
(A) Financial Reporting. Furnish to the Administrative Agent (which
will furnish copies of the following to the Lenders):
(i) Monthly Reports. As soon as practicable, and in any event
within thirty (30) days after the end of each calendar month (other
than March, June, September and December), the consolidated and
consolidating balance sheets of Brightpoint and its Subsidiaries as at
the end of such period, the related consolidated and consolidating
statements of income of Brightpoint and its Subsidiaries for such
fiscal period and for the period from the beginning of the then current
fiscal year to the end of such fiscal period, certified by the chief
financial officer of Brightpoint on behalf of Brightpoint as fairly
presenting in all material respects the consolidated and, as
applicable, consolidating financial position of Brightpoint and its
Subsidiaries as at the dates indicated and the results of their
operations for the periods indicated in accordance with Agreement
Accounting Principles (excluding the impact of not having a cash flow
statement), subject to normal year end adjustments.
(ii) Quarterly Reports. As soon as practicable, and in any
event within forty-five (45) days after the end of the first three
fiscal quarters in each fiscal year beginning with the fiscal quarter
ending June 30, 1999, the consolidated and consolidating balance sheets
of Brightpoint and its Subsidiaries as at the end of such period, the
related consolidated and consolidating statements of income and the
related consolidated statement of stockholders' equity and cash flow of
Brightpoint and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current fiscal year to the end of
such fiscal quarter, certified by the chief financial officer of
Brightpoint on behalf of Brightpoint as fairly presenting in all
material respects the consolidated and, as applicable, consolidating
financial position of Brightpoint and its Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the
periods indicated in accordance with Agreement Accounting Principles,
subject to normal year end adjustments.
(iii) Annual Reports. As soon as practicable, and in any event
within one hundred twenty (120) days after the end of each fiscal year,
(a) the consolidated and consolidating
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balance sheet of Brightpoint and its Subsidiaries as at the end of such
fiscal year and the related consolidated and consolidating statements
of income and the related consolidated statement of stockholders'
equity and cash flow of Brightpoint and its Subsidiaries for such
fiscal year, and, in comparative form the corresponding figures for the
previous fiscal year, (b) a schedule from Brightpoint setting forth for
each item in clause (a) hereof, the corresponding figures from the
consolidated financial budget for the current fiscal year delivered
pursuant to Section 6.1(A)(v), and (c) an audit report on the items
(other than the consolidating financial statements) listed in clause
(a) hereof of independent certified public accountants of recognized
national standing, which audit report shall be unqualified and shall
state that such financial statements fairly present in all material
respects the consolidated financial position of Brightpoint and its
Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with
Agreement Accounting Principles and that the examination by such
accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards.
The deliveries made pursuant to this clause (iii) shall be accompanied
by (y) the report on internal controls prepared by the above-referenced
accountants and (z) a certificate of such accountants that, in the
course of their examination necessary for their certification of the
foregoing (such examination utilizing only their customary audit
procedures without any necessity of conducting extra procedures for
purposes of this certificates), they have obtained no knowledge of any
Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(iv) Officer's Certificate. Together with each delivery of any
financial statement pursuant to clauses (ii) and (iii) of this Section
6.1(A), (a) an Officer's Certificate of Brightpoint, substantially in
the form of Exhibit H attached hereto and made a part hereof, stating
that no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof and (b)
a Compliance Certificate, substantially in the form of Exhibit A
attached hereto and made a part hereof, signed by Brightpoint's chief
financial officer or treasurer, setting forth Brightpoint's
calculations for the period then ended for Section 2.5(B) and for
Section 2.8(b) and which demonstrate compliance, when applicable, with
the provisions of Section 6.4.
(v) Budgets. As soon as practicable and in any event not later
than thirty (30) days following the beginning of each fiscal year
beginning with the fiscal year beginning January 1, 2000, a copy of the
budget (including a budgeted balance sheet and income statement) of
Brightpoint for the upcoming fiscal year prepared in such detail as
shall be reasonably satisfactory to the Administrative Agent.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of Brightpoint or BPI obtaining knowledge
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(i) of any condition or event which constitutes a Default or Unmatured Default,
or becoming aware that any Lender or Administrative Agent has given any written
notice with respect to a claimed Default or Unmatured Default under this
Agreement, or (ii) that any Person has given any written notice to Brightpoint
or any Subsidiary of Brightpoint or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section 7.1(e),
deliver to the Administrative Agent and the Lenders an Officer's Certificate
specifying (a) the nature and period of existence of any such claimed default,
Default, Unmatured Default, condition or event, (b) the notice given or action
taken by such Person in connection therewith, and (c) what action Brightpoint
has taken, is taking and proposes to take with respect thereto.
(C) Lawsuits. (i) Promptly upon Brightpoint obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting Brightpoint or any of its
Subsidiaries or any property of Brightpoint or any of its Subsidiaries not
previously disclosed pursuant to Section 5.7, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in
Brightpoint's reasonable judgment, Brightpoint or any of its Subsidiaries to
liability in an amount aggregating $1,000,000 or more, give written notice
thereof to the Administrative Agent on behalf of the Lenders and provide such
other information as may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters; and (ii) in
addition to the requirements set forth in clause (i) of this Section 6.1(C),
upon request of the Administrative Agent or the Required Lenders, promptly give
written notice of the status of any action, suit, proceeding, governmental
investigation or arbitration disclosed on Schedule 5.7 or covered by a report
delivered pursuant to clause (i) above and provide such other information as may
be reasonably available to it that would not result in loss of any
attorney-client privilege by disclosure to the Lenders to enable each Lender and
the Administrative Agent and its counsel to evaluate such matters.
(D) Insurance. As soon as practicable and in any event within one
hundred twenty (120) days of the end of each fiscal year commencing with fiscal
year ending December 31, 1999, deliver to the Administrative Agent and the
Lenders (i) a report in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders outlining all material insurance coverage
maintained as of the date of such report by Brightpoint and its Subsidiaries and
the duration of such coverage and (ii) an insurance broker's statement that all
premiums with respect to such coverage have been paid when due.
(E) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at Brightpoint's expense, the following
information and notices as soon as reasonably possible, and in any event:
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(i) (a) within ten (10) Business Days after any Borrower
obtains knowledge that a Termination Event has occurred, a written
statement of the chief financial officer of Brightpoint describing such
Termination Event and the action, if any, which Brightpoint has taken,
is taking or proposes to take with respect thereto, and when known, any
action taken or threatened by the IRS, DOL or PBGC with respect thereto
and (b) within ten (10) Business Days after any member of the
Controlled Group obtains knowledge that a Termination Event has
occurred which could reasonably be expected to subject Brightpoint to
or any of its Subsidiaries liability individually or in the aggregate
in excess of $100,000, a written statement of the chief financial
officer of Brightpoint describing such Termination Event and the
action, if any, which the member of the Controlled Group has taken, is
taking or proposes to take with respect thereto, and when known, any
action taken or threatened by the IRS, DOL or PBGC with respect
thereto;
(ii) within ten (10) Business Days after Brightpoint or any
of its Subsidiaries obtains knowledge that a prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer of Brightpoint
describing such transaction and the action which Brightpoint or such
Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within ten (10) Business Days after any material
increase in the benefits of any existing Plan or the establishment of
any new Benefit Plan or the commencement of, or obligation to commence,
contributions to any Benefit Plan or Multiemployer Plan to which
Brightpoint or any member of the Controlled Group was not previously
contributing, notification of such increase, establishment,
commencement or obligation to commence and the amount of such
contributions;
(iv) within ten (10) Business Days after Brightpoint or any
of its Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under Section
401(a) of the Code, copies of each such letter;
(v) within thirty (30) Business Days after the
establishment of any Foreign Employee Benefit Plan or the commencement
of, or obligation to commence, contributions to any Foreign Employee
Benefit Plan to which Brightpoint or any Subsidiary was not previously
contributing, notification of such establishment, commencement or
obligation to commence and the amount of such contributions;
(vi) within ten (10) Business Days after the filing thereof
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by Brightpoint or a
member of the Controlled Group with respect to such request;
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(vii) within ten (10) Business Days after receipt by
Brightpoint or any member of the Controlled Group of the PBGC's
intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(viii) within ten (10) Business Days after receipt by
Brightpoint or any member of the Controlled Group of a notice from a
Multiemployer Plan regarding the imposition of withdrawal liability,
copies of each such notice;
(ix) within ten (10) Business Days after Brightpoint or any
member of the Controlled Group fails to make a required installment or
any other required payment under Section 412 of the Internal Revenue
Code on or before the due date for such installment or payment, a
notification of such failure; and
(x) within ten (10) Business Days after Brightpoint or any
member of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer
Plan, or (c) the PBGC has instituted or will institute proceedings
under Section 4042 of ERISA to terminate a Multiemployer Plan.
For purposes of this Section 6.1(E), Brightpoint, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the Administrator of any Plan of which the Borrower or any member of the
Controlled Group or such Subsidiary is the plan sponsor.
(F) Labor Matters. Notify the Administrative Agent and the Lenders in
writing, promptly upon Brightpoint's or any of its Subsidiaries' learning
thereof, of (i) any labor dispute to which Brightpoint or any of its
Subsidiaries may become a party, including, without limitation, any strikes,
lockouts or other disputes relating to such Persons' plants and other facilities
and (ii) any Worker Adjustment and Retraining Notification Act liability
incurred with respect to the Closing of any plant or other facility of
Brightpoint or any of its Subsidiaries where, in the case of (i) or (ii), such
is reasonably likely to have a Material Adverse Effect.
(G) Other Indebtedness. Deliver to the Administrative Agent (i) a copy
of each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officers' certificate) delivered by or on
behalf of Brightpoint or any of its Subsidiaries to the holders of Indebtedness
for money borrowed with respect to Indebtedness the outstanding principal
balance of which is at least $1,000,000 pursuant to the terms of the agreements
governing such Indebtedness, such delivery to be made at the same time and by
the same means as such notice or other communication is delivered to such
holders, and (ii) a copy of each notice or other communication received by
Brightpoint or any of its Subsidiaries from the holders of Indebtedness for
money borrowed with respect to Indebtedness the outstanding
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principal balance of which is at least $1,000,000 pursuant to the terms of such
Indebtedness, such delivery to be made promptly after such notice or other
communication is received by Brightpoint or the applicable Subsidiary.
(H) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of all 10-Ks, 10-Qs and 8-Ks filed
with the Commission by Brightpoint, and all notifications received from the
Commission by Brightpoint or its Subsidiaries pursuant to the Securities
Exchange Act and the rules promulgated thereunder.
(I) Environmental Notices. As soon as possible and in any event within
ten (10) days after receipt by Brightpoint or any of its Subsidiaries, a copy of
(i) any notice or claim to the effect that Brightpoint or any of its
Subsidiaries is or may be liable to any Person as a result of the Release by
Brightpoint, any of its Subsidiaries, or any other Person of any Contaminant
into the environment, and (ii) any notice alleging any violation of any
Environmental, Health or Safety Requirements of Law by Brightpoint or any of its
Subsidiaries if, in either case, such notice or claim relates to an event which
could reasonably be expected to subject Brightpoint or any of its Subsidiaries
to liability individually or in the aggregate in excess of $250,000.
(J) Borrowing Base Certificate. As soon as practicable, and in any
event within fifteen (15) days after the close of each calendar month (and more
often if requested by the Administrative Agent or the Required Lenders),
Brightpoint shall provide the Administrative Agent and the Lenders with a
Borrowing Base Certificate, together with such supporting documents as the
Administrative Agent deems desirable, all certified as being true and correct by
the chief financial officer or treasurer of Brightpoint. Brightpoint may update
the Borrowing Base Certificate and supporting documents more frequently than
monthly and the most recently delivered Borrowing Base Certificate shall be the
applicable Borrowing Base Certificate for purposes of determining the Borrowing
Base at any time.
(K) Other Information. Within a reasonable period of time following
receipt of a request therefor from the Administrative Agent, prepare and deliver
to the Administrative Agent and the Lenders such other information with respect
to Brightpoint, any of its Subsidiaries, or the Collateral, including, without
limitation, schedules identifying and describing the Collateral and any
dispositions thereof, as from time to time may be reasonably requested by the
Administrative Agent.
6.2 Affirmative Covenants.
(A) Existence, Etc. Brightpoint shall, and shall cause each of its
Subsidiaries to, at all times maintain its existence and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses except that any Subsidiary of Brightpoint
may merge with or liquidate into Brightpoint or any other Subsidiary of
Brightpoint,
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provided that the surviving entity expressly assumes any liabilities, if any, of
either of such Subsidiaries with respect to the Obligations pursuant to an
assumption agreement reasonably satisfactory to the Administrative Agent;
provided further that the consolidated net worth of the surviving corporation is
not less than the consolidated net worth of the Subsidiary with any liability
with respect to the Obligations immediately prior to such merger; and provided
further, if the corporation being merged out of existence or liquidated is a
party to a Pledge Agreement or an Alternate Currency Addendum (or the Capital
Stock of which is the subject of a Pledge Agreement), the surviving entity shall
execute and deliver such documents, instruments, agreements and opinions in
connection therewith as shall be required by the Administrative Agent in
connection with any such Pledge Agreement and the Alternate Currency Credits
(and all accrued interest in connection therewith) of such entity shall be
repaid in full as of the date of such liquidation or merger.
(B) Powers. Brightpoint shall, and shall cause each of its Subsidiaries
to qualify and remain qualified to do business in each jurisdiction in which the
nature of its business requires it to be so qualified and where the failure to
be so qualified will have or is reasonably likely to have a Material Adverse
Effect.
(C) Compliance with Laws, Etc. Brightpoint shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all Permits necessary for
its operations and maintain such Permits in good standing unless failure to
comply or obtain could not reasonably be anticipated to have a Material Adverse
Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. Brightpoint shall
pay, and cause each of its Subsidiaries to pay, (i) all taxes, assessments and
other governmental charges imposed upon it or on any of its properties or assets
or in respect of any of its franchises, business, income or property before any
penalty or interest accrues thereon, and (ii) all claims (including, without
limitation, claims for labor, services, materials and supplies) for sums which
have become due and payable and which by law have or may become a Lien (other
than a Lien permitted by Section 6.3(C)) upon any of Brightpoint's or such
Subsidiary's property or assets, prior to the time when any penalty or fine
shall be incurred with respect thereto; provided, however, that no such taxes,
assessments and governmental charges referred to in clause (i) above or claims
referred to in clause (ii) above (and interest, penalties or fines relating
thereto) need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with Agreement
Accounting Principles shall have been made therefor. Brightpoint will not permit
any of its Subsidiaries to file or consent to the filing of any consolidated
income tax return with any Person other than Brightpoint or any of its
Subsidiaries.
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(E) Insurance. Brightpoint shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on Schedule 5.17 to this
Agreement or substantially similar policies and programs or other policies and
programs as reflect coverage that is reasonably consistent with prudent industry
practice, but in any event which will include receivables insurance on
substantially the same terms as maintained as of the Closing Date. Brightpoint
shall deliver to the Administrative Agent endorsements (y) to all "All Risk"
physical damage insurance policies on all of Brightpoint's and BPI's domestic
tangible real and personal property and assets and business interruption
insurance policies naming the Administrative Agent loss payee, and (z) to all
general liability and other liability policies naming the Administrative Agent
an additional insured. In the event Brightpoint, at any time or times hereafter
shall fail to obtain or maintain any of the policies or insurance required
herein or to pay any premium in whole or in part relating thereto, then the
Administrative Agent, without waiving or releasing any obligations or resulting
Default hereunder, may at any time or times thereafter (but shall be under no
obligation to do so) obtain and maintain such policies of insurance and pay such
premiums and take any other action with respect thereto which the Administrative
Agent deems advisable. All sums so disbursed by the Administrative Agent shall
constitute part of the Obligations, payable as provided in this Agreement.
(F) Inspection of Property; Books and Records; Discussions. Brightpoint
shall permit, and cause each of Brightpoint's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent,
Alternate Currency Lender or any other Lender to visit and inspect any of the
properties of Brightpoint or any of its Subsidiaries, to examine, audit, check
and make copies of their respective financial and accounting records, books,
journals, orders, receipts and any non-privileged correspondence and other data
relating to their respective businesses or the transactions contemplated hereby
(including, without limitation, in connection with environmental compliance,
hazard or liability), and to discuss their affairs, finances and accounts with
their officers and independent certified public accountants, all upon reasonable
notice and at such reasonable times during normal business hours, as often as
may be reasonably requested; provided each of the Lenders shall, so long as no
Default or Unmatured Default has occurred and is continuing, coordinate its
visits or inspections through the Administrative Agent. To the extent reasonably
practicable, any such inspection with respect to a Subsidiary Borrower will be
coordinated with an Authorized Officer of Brightpoint. Brightpoint shall keep
and maintain, and cause each of Brightpoint's Subsidiaries to keep and maintain,
in all material respects, proper books of record and account in which entries in
conformity with Agreement Accounting Principles shall be made of all dealings
and transactions in relation to their respective businesses and activities,
including, without limitation, transactions and other dealings with respect to
the Collateral. If a Default has occurred and is continuing, Brightpoint, upon
the Administrative Agent's request, shall turn over copies of any such records
to the Administrative Agent or its representatives.
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(G) Insurance and Condemnation Proceeds. Brightpoint and BPI shall
direct (and, if applicable, shall cause their Subsidiaries to direct) all
insurers under policies of property damage, boiler and machinery, business
interruption insurance, credit insurance and payors of any condemnation claim or
award relating to the Collateral to pay all proceeds (the "PROCEEDS") payable
under such policies or with respect to such claim or award for any loss with
respect to the Collateral directly to the Administrative Agent, for the benefit
of the Administrative Agent and the Holders of the Secured Obligations;
provided, however, unless a Default or Unmatured Default shall have occurred and
be continuing, the Administrative Agent shall remit all Proceeds to Brightpoint.
Each such policy shall contain a long-form loss-payable endorsement naming the
Administrative Agent as loss payee, which endorsement shall be in form and
substance acceptable to the Administrative Agent. Promptly after the receipt of
any Proceeds (other than from credit insurance, which shall be applied to reduce
the outstanding Receivables), Brightpoint shall repair or replace the Collateral
or other assets the loss or damage of which gave rise to such Proceeds,
provided, however, that upon the earlier to occur of (a) 120 days after
Brightpoint receives such Proceeds or (b) the occurrence of a Default or an
Unmatured Default, Brightpoint shall return any Proceeds not so used to repair
or replace such Collateral or other assets at such time to the Administrative
Agent. The Administrative Agent shall apply the same to the principal amount of
the Revolving Loans outstanding at the time of such receipt or hold them as cash
collateral for the Obligations.
(H) ERISA Compliance. Brightpoint shall, and shall cause each of its
domestic Subsidiaries to, establish, maintain and operate all Plans to comply in
all material respects with the provisions of ERISA, the Code, all other
applicable laws, and the regulations and interpretations thereunder and the
respective requirements of the governing documents for such Plans.
(I) Maintenance of Property. Brightpoint shall cause all property used
or useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in adequate condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of Brightpoint may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section 6.2(I) shall prevent Brightpoint from discontinuing
the operation or maintenance of any of such property if such discontinuance is,
in the judgment of Brightpoint, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any respect to the
Administrative Agent or the Lenders.
(J) Environmental Compliance. Brightpoint and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject
Brightpoint and its Subsidiaries to liability, individually or in the aggregate,
in excess of $250,000.
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(K) Use of Proceeds. The Borrowers shall use the proceeds of the Loans
to pay transaction costs in connection with the transactions evidenced by the
Loan Documents, to refinance existing indebtedness of Brightpoint and its
Subsidiaries and to provide funds for the working capital needs and other
general corporate purposes of the Borrowers and their Subsidiaries. Brightpoint
will not, nor will it permit any Subsidiary to, use any of the proceeds of the
Loans to purchase or carry any "Margin Stock" or to make any Acquisition, other
than any Permitted Acquisition pursuant to Section 6.3(G).
(L) Foreign Employee Benefit Compliance. Brightpoint shall, and shall
cause each of its Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Foreign Employee Benefit Plans to comply in all material respects
with all laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Plans, except for failures to
comply which, in the aggregate, would not result in a material obligation to pay
money.
(M) Additional Guarantors/Pledge of Capital Stock. (i) Brightpoint will
(a) deliver an agreement evidencing the pledge, to the Administrative Agent, for
the benefit of the Holders of Secured Obligations, of all of the Capital Stock
of each Material Subsidiary which is a Domestic Subsidiary, within 30 days after
such Subsidiary has become a Material Subsidiary and (b) cause each Material
Subsidiary which is a Domestic Subsidiary, within 30 days after becoming a
Material Subsidiary, to execute and deliver to the Administrative Agent (1) a
Guarantor Assumption Letter pursuant to which it agrees to be bound by the
provisions of Article IX, (2) a Security Agreement, together, if applicable,
with trademark or patent security agreements, and (c) deliver and cause such
Subsidiaries to deliver corporate resolutions, opinions of counsel, stock
certificates, stock powers, UCC financing statements and such other corporate
documentation as the Administrative Agent may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent.
(ii) Brightpoint shall deliver an agreement evidencing the pledge, to
the Administrative Agent, for the benefit of the Holders of Secured Obligations,
of 65% of the Capital Stock of each Material Subsidiary which is not a Domestic
Subsidiary and which is not a Subsidiary of Brightpoint BV1, within 60 days
after such Subsidiary has become a Material Subsidiary, together with corporate
resolutions, opinions of counsel, stock certificates, stock powers and such
other corporate documentation as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory to the Administrative
Agent; provided, however, in the event that any such Material Subsidiary is
wholly-owned by a Domestic Subsidiary, in connection with which all of the
requirements of clause (i) above have been satisfied and the activities of which
are limited to owning the stock of its Subsidiaries, then, the Administrative
Agent, at its option, may waive the requirement for the pledge of such Material
Subsidiary's stock under this clause (ii).
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(N) Year 2000 Issues. The Borrower shall and shall cause each of its
Subsidiaries to take all actions reasonably necessary to assure that the Year
2000 Issues will not have a Material Adverse Effect.
6.3 Negative Covenants.
(A) Indebtedness; Subsidiary Indebtedness. Neither Brightpoint nor any
of its Subsidiaries shall directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to any
Indebtedness, except:
(a) the Obligations;
(b) Permitted Existing Indebtedness, and any extension,
renewal, refunding or refinancing thereof, provided that any such
extension, renewal, refunding or refinancing is in an aggregate
principal amount not greater than the principal amount of and interest,
fees and expenses accrued on, such Permitted Existing Indebtedness
outstanding at the time thereof and is on terms (including, without
limitation, maturity, amortization, interest rate, premiums, fees,
covenants, subordination, events of default, and remedies) not
materially less favorable to the obligor or adverse to the Lenders than
the terms of such Permitted Existing Indebtedness and the obligor(s)
with respect to which are not altered;
(c) Indebtedness arising from intercompany loans
("INTERCOMPANY LOANS") from (1) Brightpoint, BPI or any other
Subsidiary of Brightpoint to any Borrower, (2) any Subsidiary to any
other Subsidiary or (3) any Borrower to any Subsidiary of Brightpoint
which is not a Borrower provided the aggregate Disqualified Subsidiary
Investment does not exceed seventeen and one-half percent (17.5%) of
Total Capital at any time, and provided further that all such
Indebtedness to Brightpoint or BPI is evidenced by notes (or other
evidence of indebtedness acceptable to the Administrative Agent) which
are pledged to the Administrative Agent under the Security Agreements;
(d) Indebtedness in respect of Hedging Agreements permitted
under Section 6.3(Q) including guarantying such Indebtedness;
(e) secured or unsecured purchase money Indebtedness
(including Capitalized Leases) incurred by Brightpoint or any of its
Subsidiaries after the Closing Date to finance the acquisition of fixed
assets, if: (1) at the time of such incurrence, no Default or Unmatured
Default has occurred and is continuing or would result from such
incurrence; (2) such Indebtedness has a scheduled maturity and is not
due on demand; (3) the aggregate outstanding amount at any time does
not exceed two and one-half percent (2.50%) of Total Capital; and (4)
any Lien securing such Indebtedness is permitted under
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Section 6.3(C) (such Indebtedness being referred to herein as
"PERMITTED PURCHASE MONEY INDEBTEDNESS");
(f) Indebtedness with respect to surety, appeal and
performance bonds obtained by Brightpoint or any of its Subsidiaries in
the ordinary course of business;
(g) Indebtedness constituting Contingent Obligations permitted
by Section 6.3(E);
(h) unsecured Indebtedness and other liabilities incurred in
the ordinary course of business and consistent with past practice, but
not incurred through the borrowing of money or the obtaining of credit
(other than customary trade terms); and
(i) Permitted Subordinated Indebtedness in an aggregate
original issued principal amount not greater than $180,000,000 provided
(A) the LYONS and the indenture are in form and substance reasonably
satisfactory to the Administrative Agent and (B) all of the net cash
proceeds from each issuance of LYONS are paid to the Administrative
Agent to repay the outstanding principal amount of the Loans (provided
net cash proceeds in excess of the outstanding principal balance of the
Loans need not be paid to the Administrative Agent), with the payments
being made (1) on the date of the closing of the LYONS transaction in
an amount equal to the principal amount of all outstanding Floating
Rate Loans and (2) thereafter at the end of each Interest Period with
respect to maturing Fixed Rate Loans; and
(j) other unsecured Indebtedness provided such other
Indebtedness does not exceed in the aggregate outstanding at any time
two and one-half percent (2.50%)of Total Capital.
(B) Sales of Assets. Neither Brightpoint nor any of its Subsidiaries
shall sell, assign, transfer, lease, convey or otherwise dispose of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except:
(i) sales of Inventory in the ordinary course of business;
(ii) the disposition of obsolete Equipment in the ordinary
course of business;
(iii) sales, assignments, transfers, leases, conveyances or
other dispositions of property with respect to the discontinued
businesses (United Kingdom, Hong Kong based accessories company,
Argentina and Poland), with respect to the reduction in scope of the
business in Taiwan and with respect to the closing of the distribution
center in the Netherlands, all in connection with the Restructuring
Plan; and
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(iv) other sales, assignments, transfers, leases, conveyances
or other dispositions of other assets if such transaction (a) is for
all cash consideration with respect to any Collateral which is sold,
(b) is for not less than fair market value, and (c) when combined with
all such other sales, assignments, transfers, conveyances or other
dispositions (i) in the immediately preceding twelve-month period
represents the disposition of not greater than two and one-half percent
(2.50%) of Brightpoint's Total Capital as of the beginning of such
12-month period and (ii) in the period from the Original Closing Date
to the date of such transaction represents the disposition of not
greater than seven and one-half percent (7.50%)of the sum of (a)
Brightpoint's consolidated net worth as of December 31, 1997 and (b)
the original outstanding principal balance of the LYONS; and
(C) Liens. Neither Brightpoint nor any of its Subsidiaries shall
directly or indirectly create, incur, assume, permit or suffer to exist any Lien
on or with respect to any of their respective property or assets except:
(i) Liens created by the Loan Documents;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens; and
(iv) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject at
the time of the acquisition thereof by Brightpoint or one of its
Subsidiaries) securing Permitted Purchase Money Indebtedness; provided
that such Liens shall not apply to any property of Brightpoint or its
Subsidiaries other than that purchased or subject to such Capitalized
Lease.
In addition, neither Brightpoint nor any or its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent for the benefit of itself and
the Holders of Secured Obligations, as additional collateral for the
Obligations; provided that any agreement, note, indenture or other instrument in
connection with Permitted Purchase Money Indebtedness (including Leases) may
prohibit the creation of a Lien in favor of the Administrative Agent for the
benefit of itself and the Holders of the Secured Obligations on the items of
property obtained with the proceeds of such Permitted Purchase Money
Indebtedness.
(D) Investments. Except for Permitted Existing Investments in an amount
not greater than the amount thereof on the Closing Date and except to the extent
permitted pursuant to paragraph (G) below, neither Brightpoint nor any of its
Subsidiaries shall directly or indirectly make or own any Investment except:
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(i) Investments in Cash Equivalents;
(ii) Investments received in connection with the bankruptcy
or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(iii) Investments consisting of deposit accounts maintained by
Brightpoint and its Subsidiaries in connection with its cash management
system in the ordinary course of business and consistent with past
practice;
(iv) Investments consisting of Indebtedness permitted
pursuant to Section 6.3(A)(c) or other Investments in any Disqualified
Subsidiary; provided the Disqualified Subsidiary Investment shall not
exceed seventeen and one-half percent (17.50%) of Total Capital at any
time; and
(v) [Intentionally Omitted]; and
(vi) [Intentionally Omitted]; and
(vii) other Investments in any Person, including in connection
with Permitted Acquisitions, provided the aggregate purchase price for
such Permitted Acquisitions and the aggregate amount of such other
Investments during any fiscal year does not exceed three and one-half
percent (3.5%) of Total Capital determined based upon the financial
statements most recently delivered pursuant to the terms of Section
6.1(A).
(E) Contingent Obligations. Neither Brightpoint nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, contingent liability, long-term lease,
synthetic lease, commitment or Contractual Obligation, not reflected in the
financial statements attached hereto as Exhibit I, except: (i) as set forth on
Schedule 5.18, (ii) recourse obligations resulting from endorsement of
negotiable instruments for collection in the ordinary course of business; (iii)
Permitted Existing Contingent Obligations and any extensions, renewals or
replacements thereof, provided that any such extension, renewal or replacement
is not greater than the Indebtedness under, and shall be on terms no less
favorable to Brightpoint or such Subsidiary than the terms of, the Permitted
Existing Contingent Obligation being extended, renewed or replaced; (iv)
obligations, warranties, and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of Brightpoint
or such Subsidiary; (v) Contingent Obligations of Brightpoint or any of its
Subsidiaries with respect to any Indebtedness permitted by this Agreement; (vi)
Contingent Obligations with respect to surety, appeal and performance bonds
obtained by Brightpoint or any Subsidiary in the ordinary course of business;
(vii) [intentionally
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omitted]; and (viii) additional Contingent Obligations, liabilities and the like
which do not exceed $1,000,000 in the aggregate at any time.
(F) Restricted Junior Payments. Neither Brightpoint nor any of its
Subsidiaries shall declare or make any Restricted Junior Payment, except:
(i) payments made in connection with the repurchase of
Capital Stock or other Equity Interests in Brightpoint or any of its
Subsidiaries from any Person in connection with the termination
(voluntarily or involuntarily) of such Person's employment with
Brightpoint or any of its Subsidiaries which, in the aggregate, exceed
the aggregate amount received by Brightpoint or any of its Subsidiaries
from the contemporaneous resale or reissuance of such interests by not
more than $1,000,000; and
(ii) payments of customary and reasonable fees and expense
reimbursements to members of the board of directors of Brightpoint and
any Subsidiary;
(iii) Restricted Junior Payments made by any Subsidiary of
Brightpoint to Brightpoint or any other Subsidiary of Brightpoint; and
(iv) Restricted Junior Payments as set forth on Schedule
6.3(F);
provided, however, that the Restricted Junior Payments described in clause (i)
shall not be permitted if either a Default or an Unmatured Default shall have
occurred and be continuing at the date of declaration or payment thereof or
would result therefrom.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither
Brightpoint nor any of its Subsidiaries shall engage in any business other than
the businesses engaged in by them on the date hereof and any business or
activities which are substantially similar, related or incidental thereto.
Brightpoint shall not permit Brightpoint BV1, Brightpoint BV2 or Brightpoint
Latin America Holdings, Inc. to engage, either directly or indirectly in any
operating business enterprise but shall solely own the Capital Stock of their
respective Subsidiaries. Brightpoint shall not and shall not permit any of its
Subsidiaries to enter into any transaction or series of transactions in which it
acquires all or any significant portion of the assets (including, without
limitation, the Capital Stock thereof) of another Person unless such purchase
meets the following requirements (each such purchase constituting a "PERMITTED
ACQUISITION"):
(1) prior to each such purchase, Brightpoint shall deliver to
the Administrative Agent and the Lenders a certificate from one of
Brightpoint's Authorized Officers certifying that no Default or
Unmatured Default shall have occurred and be continuing or would result
from such transaction or transactions or the incurrence of any
Indebtedness in connection therewith; provided, that the Administrative
Agent, in its sole discretion
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or at the request of the Required Lenders, may require that Brightpoint
deliver to the Administrative Agent and the Lenders a certificate from
one of Brightpoint's Authorized Officers demonstrating to the
satisfaction of the Administrative Agent and the Required Lenders that
after giving effect to such transaction or transactions and the
incurrence of any Indebtedness permitted by Section 6.3(A) in
connection therewith on a pro forma basis as if such acquisition and
such incurrence of Indebtedness had occurred on the first day of the
twelve-month period ending on the last day of Brightpoint's most
recently completed fiscal quarter, Brightpoint would have been in
compliance with all provisions of Section 6.4 at all times during such
twelve-month period;
(2) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and involves the purchase
of a business line similar, related or incidental to that of
Brightpoint's and its Subsidiaries as of the Closing Date; and
(3) the aggregate purchase price (including assumed
liabilities) in connection with all such transactions shall be
permitted under and pursuant to the terms of Section 6.3(D)(vii).
(H) Transactions with Shareholders and Affiliates. Neither Brightpoint
nor any of its Subsidiaries shall directly or indirectly (i) except as permitted
in Section 6.3(F), pay any fees or compensation to Management or any other
employees who are holders of Capital Stock or other Equity Interests in
Brightpoint or any of its Subsidiaries, other than wages, salaries and bonuses
of employees in the ordinary course and consistent with past practices; (ii)
enter into or permit to exist any transaction (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder or holders of any Capital Stock or other Equity
Interests in Brightpoint, or with any Affiliate of Brightpoint, on terms that
are less favorable to Brightpoint or its Subsidiaries, as applicable, than those
that might be obtained in an arm's length transaction at the time from Persons
who are not such a holder or Affiliate; or (iii) enter into or permit to exist
any such non-arm's length transaction between any Borrower and any Disqualified
Subsidiary if as a result thereof the Disqualified Subsidiary Investment would
at any time exceed seventeen and one-half percent (17.5%) of Consolidated Book
Equity.
(I) Restriction on Fundamental Changes. Neither Brightpoint nor any of
its Subsidiaries shall enter into any merger or consolidation, or liquidate,
wind-up or dissolve (or suffer any liquidation or dissolution), or convey,
lease, sell, transfer or otherwise dispose of, in one transaction or series of
transactions, all or substantially all of Brightpoint's or any such Subsidiary's
business or property, whether now or hereafter acquired, except transactions
permitted under Section 6.3(B) and except that any Subsidiary of Brightpoint or
BPI may merge with or liquidate into Brightpoint or BPI or any other Subsidiary
of Brightpoint, provided that the surviving entity expressly assumes any
liabilities, if any, of either of such Subsidiaries with respect to the
Obligations pursuant to an assumption agreement reasonably satisfactory to the
Administrative Agent and provided further that the consolidated net worth of the
surviving
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corporation is not less than the consolidated net worth of the Subsidiary with
any liability with respect to the Obligations immediately prior to such merger.
(J) Sales and Leasebacks. Neither Brightpoint nor any of its
Subsidiaries shall become liable, directly, by assumption or by Contingent
Obligation, with respect to any lease, whether an Operating Lease or a
Capitalized Lease, of any property (whether real or personal or mixed) (i) which
it or one of its Subsidiaries sold or transferred or is to sell or transfer to
any other Person, or (ii) which it or one of its Subsidiaries intends to use for
substantially the same purposes as any other property which has been or is to be
sold or transferred by it or one of its Subsidiaries to any other Person in
connection with such lease, unless in either case the sale involved is not
prohibited under Section 6.3(B) and the lease involved is not prohibited under
Section 6.3(A).
(K) Margin Regulations. Neither the Borrower nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
(L) ERISA. Brightpoint shall not (i) engage, or permit any of its
Subsidiaries to engage, in any prohibited transaction described in Sections 406
of ERISA or 4975 of the Code for which a statutory or class exemption is not
available or a private exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Internal Revenue Code),
with respect to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail,
to pay timely required contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any liability of
Brightpoint or any Controlled Group member under Title IV of ERISA;
(v) fail to make any contribution or payment to any
Multiemployer Plan which Brightpoint or any Controlled Group member may
be required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto;
(vi) fail, or permit any Controlled Group member to fail,
to pay any required installment or any other payment required under
Section 412 of the Internal Revenue Code on or before the due date for
such installment or other payment; or
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(vii) amend, or permit any Controlled Group member to amend, a
Plan resulting in an increase in current liability for the plan year
such that Brightpoint or any Controlled group member is required to
provide security to such Plan under Section 401(a)(29) of the Code.
(M) Issuance of Equity Interests. Neither Brightpoint nor any of its
Subsidiaries shall issue any ownership, membership or other equity interests
after the date of this Agreement if such issuance causes a Change of Control to
occur.
(N) Organizational Documents. Neither Brightpoint nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective organizational documents as in effect on
the date hereof in any manner adverse to the interests of the Lenders without
the prior written consent of the Required Lenders.
(O) Other Indebtedness. Neither Brightpoint nor any of its Subsidiaries
shall amend, supplement or otherwise modify the terms of any Indebtedness (other
than the Obligations and other than Intercompany Loans) permitted under Section
6.3(A) in any way that would not be materially less advantageous to Brightpoint
or such Subsidiary or materially adverse to the Lenders, including, without
limitation, with respect to amount, maturity, amortization, interest rate,
premiums, fees, covenants, subordination, events of default and remedies.
(P) Fiscal Year. Neither Brightpoint nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
(Q) Hedging Obligations. Brightpoint shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements other than interest
rate, foreign currency or commodity exchange, swap, collar, cap, leveraged
derivative or similar agreements pursuant to which Brightpoint or any of its
Subsidiaries have hedged its or their actual interest rate, foreign currency or
commodity exposure (such hedging agreements are sometimes referred to herein as
"HEDGING AGREEMENTS"). In the event a Lender elects to enter into any Hedging
Agreements with Brightpoint or any of its Subsidiaries, the obligations of
Brightpoint or such Subsidiary with respect to such Hedging Agreements shall be
Secured Obligations secured by the Collateral.
(R) Subordinated Indebtedness. Brightpoint shall not and shall not
permit any Subsidiary to, amend, supplement or modify the terms of any Permitted
Subordinated Indebtedness, including without limitation, the LYONS or the
Indenture, or make any payment required as a result of an amendment or change
thereto other than amendments, supplements or modifications which (i) decrease
the rate of interest payable on the Permitted Subordinated Indebtedness, (ii)
provide for the payment in kind in lieu of cash of any portion of the interest
on the Permitted
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Subordinated Indebtedness, (iii) provide for the extension of the maturity date
with respect to any principal or interest payment to be made under the
instruments evidencing Permitted Subordinated Indebtedness, (iv) provide more
flexibility to Brightpoint or its Subsidiaries in connection with any financial
covenants, (v) waive any defaults existing in connection with the Permitted
Subordinated Indebtedness, and (vi) do not adversely affect in any respect the
interests of the Administrative Agent or the Lenders.
6.4 Financial Covenants. Brightpoint shall comply with the following:
(A) Defined Terms for Financial Covenants. The following terms used in
this Agreement shall have the following meanings (such meanings to be
applicable, except to the extent otherwise indicated in a definition of a
particular term, both to the singular and the plural forms of the terms
defined):
"ACCOUNTING ADJUSTMENT" means the amount recorded by the Borrower in
the first fiscal quarter of 1999 as a cumulative adjustment for a change in
accounting principle resulting from the required adoption of American Institute
of Certified Public Accountants Statement of Position 98-5, Reporting the Costs
of Start-up Activities, which requires the write-off of unamortized
pre-operating and organizational costs that were previously capitalized, which
amount, net of tax and after earnings from continuing operations shall not
exceed $15,000,000.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and Permitted Purchase Money Indebtedness) by Brightpoint and
its Subsidiaries during that period that, in conformity with Agreement
Accounting Principles, are required to be included in or reflected by the
property, plant, equipment or similar fixed asset accounts reflected in the
consolidated balance sheet of Brightpoint and its Subsidiaries other than with
respect to the acquisition of inventory in the ordinary course of business.
"CONSOLIDATED BOOK EQUITY" shall mean, at a particular date, all
amounts which would be included under consolidated book equity for Brightpoint
and its Subsidiaries determined on a consolidated basis in accordance with
Agreement Accounting Principles.
"DISTRIBUTOR CHARGE" means the $8,000,000 amount recorded by the
Borrower in the fiscal quarter ending December 31, 1998 as a result of
impairment in the value of assets resulting from the Borrower's prior business
dealings with other distributors.
"EBITDA" means, for any period, on a consolidated basis for Brightpoint
and its consolidated Subsidiaries, the sum of the amounts for such period,
without duplication, of (i) Net Income, plus (ii) charges against income for
foreign income taxes or U.S. income taxes to the extent deducted in computing
Net Income, plus (iii) Interest Expense to the extent deducted in
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computing Net Income, plus (iv) depreciation expense to the extent deducted in
computing Net Income, plus (v) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the extent
deducted in computing Net Income, plus (vi) other non-cash charges (including,
without duplication, any effect of any write-up in the value of Inventory
attributable to purchase accounting) in accordance with Agreement Accounting
Principles to the extent deducted in computing Net Income, plus (vii) income
attributable to minority interests to the extent excluded from Net Income, minus
(viii) interest income, minus (ix) Net Extraordinary Gains. As used herein "NET
EXTRAORDINARY GAINS" shall mean the sum of, but only if positive, extraordinary
gains (and any nonrecurring unusual gains arising in or outside of the ordinary
course of business not included in extraordinary gains determined in accordance
with Agreement Accounting Principles which have been included in the
determination of Net Income) minus extraordinary losses (and any nonrecurring
unusual losses arising in or outside of the ordinary course of business not
included in extraordinary losses determined in accordance with Agreement
Accounting Principles).
"INTEREST EXPENSE" means, for any period, the consolidated total
interest expense of Brightpoint and its Subsidiaries, determined on a
consolidated basis, whether paid or accrued, but without duplication (including
the interest component of Capitalized Leases), but excluding interest expense
not payable in cash (including amortization of discount), all as determined in
conformity with Agreement Accounting Principles.
"NET INCOME" means, for any period, the net earnings (or loss) after
taxes of Brightpoint and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property but does not include any
amounts payable under Capitalized Leases of such Person.
(B) Fixed Charge Coverage Ratio. Brightpoint shall maintain a
ratio ("FIXED CHARGE COVERAGE RATIO") of:
(i) the sum of the amounts of (a) EBITDA plus (b)
Rentals to the extent deducted in computing Net Income minus
(c) Capital Expenditures to
(ii) the sum of the amounts of (a) total Interest
Expense (to the extent deducted in computing Net Income) net
of Interest Expense (to the extent deducted in computing Net
Income) with respect to the LYONS, plus (b) Rentals to the
extent deducted in computing Net Income, plus (c) scheduled
amortization of the principal portion of all Indebtedness of
Brightpoint and its Subsidiaries, plus
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(d) charges against income for foreign income taxes or U.S.
income taxes to the extent deducted in computing Net Income;
plus (e) the aggregate amount of Restricted Junior Payments;
plus (c) the aggregate amount of cash payments made in
connection with Contingent Purchase Price Obligations
as of the end of each of the quarters set forth below to be less than:
(A) 1.25 to 1.00 for the fiscal quarter ending June 30,
1999;
(B) 1.25 to 1.00 for the fiscal quarter ending September
30, 1999;
(C) 1.10 to 1.00 for the fiscal quarter ending December
31, 1999;
(D) 1.15 to 1.00 for the fiscal quarter ending March 31,
2000; and
(E) 1.25 to 1.00 for each fiscal quarter thereafter.
In each case the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four-quarter period ending on such day and
EBITDA shall be calculated as set forth in Section 6.4(D)(3)below.
(C) Minimum Consolidated Book Equity. Brightpoint shall not permit its
Consolidated Book Equity at any time to be less than the sum of (a)
$115,000,000, plus (b) fifty percent (50%) of Net Income (if positive)
calculated separately for each fiscal quarter ending on and after September 30,
1999, plus (c) seventy-five percent (75%) of the net cash proceeds resulting
from the issuance by Brightpoint of any of its Capital Stock.
(D) Maximum Adjusted Leverage and Senior Debt Ratios.
(1) Brightpoint shall not permit the ratio ("ADJUSTED LEVERAGE RATIO")
of (i) the sum of (a) Indebtedness of Brightpoint and its consolidated
Subsidiaries for borrowed money and (b) Capitalized Lease Obligations to (ii)
EBITDA as at the end of any of the quarters set forth below to be greater than:
(A) 5.00 to 1.00 for the fiscal quarter ending June 30,
1999;
(B) 5.25 to 1.00 for the fiscal quarter ending September
30, 1999;
(C) 6.00 to 1.00 for the fiscal quarter ending December
31, 1999;
(D) 5.25 to 1.00 for the fiscal quarter ending March 31,
2000;
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(E) 5.00 to 1.00 for the fiscal quarter ending June 30,
2000; and
(F) 4.50 to 1.00 for each fiscal quarter thereafter.
The Adjusted Leverage Ratio shall be calculated as set forth in clause (3)
below.
(2) Brightpoint shall not permit the ratio ("SENIOR DEBT RATIO") of (i)
the sum of (a) Indebtedness other than the Permitted Subordinated Indebtedness
of Brightpoint and its consolidated Subsidiaries for borrowed money and (b)
Capitalized Lease Obligations to (ii) EBITDA as at the end of any of the
quarters set forth below to be greater than:
(A) 2.75 to 1.00 for each fiscal quarter commencing with the
fiscal quarter ending June 30, 1999 through the fiscal quarter ending
December 31, 1999; and
(B) 2.50 to 1.00 for each fiscal quarter thereafter.
The Senior Debt Ratio shall be calculated as set forth in clause (3) below.
(3) The Adjusted Leverage Ratio and Senior Debt Ratio shall be
calculated, in each case, determined as of the last day of each fiscal quarter
based upon (A) for Indebtedness (including Permitted Subordinated Indebtedness
for the Adjusted Leverage Ratio and excluding Permitted Subordinated
Indebtedness for the Senior Debt Ratio) and Capitalized Lease Obligations,
Indebtedness and Capitalized Lease Obligations as of the last day of each such
fiscal quarter; and (B) for EBITDA, the amount for the four-quarter period
ending on such day (2); provided, however:
(i) there shall be excluded from the calculation of
EBITDA, the EBITDA attributable to the Borrower and its Subsidiaries'
(a) discontinued Global Trading Business and (b) businesses
discontinued in connection with the Restructuring Plan (United Kingdom,
Hong Kong based accessories company, Argentina and Poland);
(ii) for the fiscal quarters ending June 30, 1999 through
the quarter ending September 30, 1999, the Borrower shall be permitted
to add back to EBITDA the $17,750,000 one-time charge taken by the
Borrower in the fiscal quarter ending December 31, 1998 relating to the
discontinuation or elimination of the Borrower and its Subsidiaries'
Global Trading Business;
(iii) for the fiscal quarters ending June 30, 1999 through
the fiscal quarter ending September 30, 1999, the Borrower shall be
permitted to add back to EBITDA the $8,000,000 one-time Distributor
Charge taken by the Borrower in the fiscal quarter ending December 31,
1998;
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(iv) for the fiscal quarters ending March 31, 1999 through
December 31, 1999, the Borrower shall be permitted to add back to
EBITDA the $14,065,000 one-time Accounting Adjustment taken by the
Borrower in the fiscal quarter ending March 31, 1999; and
(v) for the fiscal quarters ending June 30, 1999 through
the quarter ending September 30, 2000, the Borrower shall be permitted
to add back to EBITDA the lesser of (a) $90,000,000 and (b) the charges
taken by the Borrower in the fiscal quarter ending June 30, 1999,
September 30, 1999 and December 31, 1999 relating to the Restructuring
Plan; provided, however, (i) the aggregate cash portion of the charges
taken in connection therewith shall not exceed $8,000,000 and (ii) the
aggregate amount of the charges taken by the Borrower in the fiscal
quarters ending September 30, 1999 and December 31, 1999 shall not
exceed $7,500,000.
ARTICLE VII: DEFAULTS
7.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(a) Failure to Make Payments When Due. Any Borrower shall (i) fail to
pay when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within five (5) days of the date when due any of
the other Obligations under this Agreement or the other Loan Documents.
(b) Breach of Certain Covenants. Any Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on such Borrower under Sections 6.1 (other than clauses (A), (D), (E), (F) or
(H) thereof), 6.2(K), 6.2(M), 6.3 or 6.4.
(c) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by any Borrower or Guarantor to the Administrative
Agent or any Lender herein or by Brightpoint or any of its Subsidiaries in any
of the other Loan Documents or in any statement or certificate at any time given
by any such Person pursuant to any of the Loan Documents shall be false or
misleading in any material respect on the date as of which made (or deemed
made).
(d) Other Defaults. Any Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (a), (b) or (c) of this Section 7.1), or Brightpoint or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for ten (10) days after the earlier to occur of (i) notice from the
Administrative Agent or
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any Lender to Brightpoint of such Default and (ii) Brightpoint or any of its
Subsidiaries knew of such default or should have known of such default
exercising reasonable diligence.
(e) Default as to Other Indebtedness. Brightpoint or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with respect
to any Indebtedness (other than the Obligations) the outstanding principal
amount of which Indebtedness is in excess of $2,500,000; or any breach, default
or event of default shall occur, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any such Indebtedness, if the
effect thereof is to cause an acceleration, mandatory redemption, a requirement
that Brightpoint or any such Subsidiary offer to purchase such Indebtedness or
other required repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or require a
redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by Brightpoint or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against Brightpoint
or any of its Subsidiaries and the petition shall not be dismissed,
stayed, bonded or discharged within sixty (60) days after commencement
of the case; or a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of Brightpoint or any of its
Subsidiaries in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal,
state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over
Brightpoint or any of its Subsidiaries or over all or a substantial
part of the property of Brightpoint or any of its Subsidiaries shall be
entered; or an interim receiver, trustee or other custodian of
Brightpoint or any of its Subsidiaries or of all or a substantial part
of the property of Brightpoint or any of its Subsidiaries shall be
appointed or a warrant of attachment, execution or similar process
against any substantial part of the property of Brightpoint or any of
its Subsidiaries shall be issued and any such event shall not be
stayed, dismissed, bonded or discharged within sixty (60) days after
entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. Brightpoint or
any of its Subsidiaries shall (i) commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (ii)
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such
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law, (iii) consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property, (iv)
make any assignment for the benefit of creditors or (v) take any corporate
action to authorize any of the foregoing.
(h) Judgments and Attachments. Any money judgment(s), writ or warrant
of attachment, or similar process against any of Brightpoint or any of its
Subsidiaries or any of their respective assets involving in any single case or
in the aggregate an amount in excess of $2,500,000 is (are) entered and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days or in any event later than fifteen (15) days prior to the date of any
proposed sale thereunder.
(i) Dissolution. Any order, judgment or decree shall be entered against
Brightpoint or any of its Subsidiaries decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of sixty (60) days; or Brightpoint or any of its Subsidiaries shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement unless the dissolving entity is a limited liability company which
elects to continue its existence.
(j) Loan Documents; Failure of Security. At any time, for any reason,
(i) any Loan Document as a whole that materially affects the ability of the
Administrative Agent, or any of the Lenders to enforce the Obligations or
enforce their rights against the Collateral ceases to be in full force and
effect or any of Brightpoint or any of its Subsidiaries party thereto seeks to
repudiate its obligations thereunder and the Liens intended to be created
thereby are, or any of Brightpoint or any such Subsidiary seeks to render such
Liens, invalid and unperfected, or (ii) Liens on Collateral with a fair market
value in excess of $2,000,000 in favor of the Administrative Agent contemplated
by the Loan Documents shall, at any time, for any reason, be invalidated or
otherwise cease to be in full force and effect, or such Liens shall not have the
priority contemplated by this Agreement or the Loan Documents.
(k) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject Brightpoint or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$1,000,000.
(l) Waiver of Minimum Funding Standard. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either Brightpoint or any Controlled
Group member to liability individually or in the aggregate in excess of
$250,000.
(m) Change of Control. A Change of Control shall occur.
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(n) Hedging Agreements. Nonpayment by Brightpoint or any of its
Subsidiaries of any obligation under any Hedging Agreements entered into with
any Lender or any Affiliate of any Lender on the date such payment is due or the
breach by Brightpoint or any of its Subsidiaries of any other term, provision or
condition contained in any such Hedging Agreements which breach remains
unremedied for five (5) days.
(o) Environmental Matters. Brightpoint or any of its Subsidiaries shall
be the subject of any proceeding or investigation pertaining to (i) the Release
by Brightpoint or any of its Subsidiaries of any Contaminant into the
environment, (ii) the liability of any of Brightpoint or any of its Subsidiaries
arising from the Release by any other Person of any Contaminant into the
environment, or (iii) any violation of any Environmental, Health or Safety
Requirements of Law by Brightpoint or any of its Subsidiaries, which, in any
case, has or is reasonably likely to subject Brightpoint or any of its
Subsidiaries to liability individually or in the aggregate in excess of
$250,000.
(p) Guarantor Revocation. Any guarantor of the Obligations shall
terminate or revoke or refuse to perform any of its payment obligations under
the applicable guarantee agreement or breach any of the other terms of such
guarantee agreement which breach remains unremedied for five (5) days.
A Default shall be deemed "continuing" until waived in writing in
accordance with Section 8.3.
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
8.1 Remedies
(a) Termination of Commitments; Acceleration. If any Default described
in Section 7.1(f) or 7.1(g) occurs with respect to either of the Borrowers, the
obligations of the Lenders to make Loans hereunder and the obligation of the
Administrative Agent or any Issuing Lender to issue Letters of Credit hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative
Agent, any Lender or any Issuing Lender. If any other Default occurs, the
Required Lenders may (i) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation of the Issuing Lenders to issue Letters
of Credit hereunder, or (ii) declare the Obligations to be due and payable, or
both, and upon any declaration under clause (ii), the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrowers expressly waive.
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(b) Rescission. If at any time after termination of the Lenders'
obligations to make Loans or acceleration of the maturity of the Loans,
Borrowers shall pay all arrears of interest and all payments on account of
principal of the Loans and Reimbursement Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Defaults and Unmatured Defaults (other than nonpayment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be waived pursuant to Section 8.3, then upon the written
consent of the Required Lenders and written notice to Borrowers, the termination
of Lenders' respective obligations to make Loans and the respective Lenders' and
the Issuing Lenders' obligations to participate in or issue Letters of Credit or
the aforesaid acceleration and its consequences may be rescinded and annulled;
but such action shall not affect any subsequent Default or Unmatured Default or
impair any right or remedy consequent thereon. The provisions of the preceding
sentence are intended merely to bind the Lenders and the Issuing Lenders to a
decision which may be made at the election of the Required Lenders; they are not
intended to benefit Borrowers and do not give Borrowers the right to require the
Lenders to rescind or annul any termination of the aforesaid obligations of the
Lenders or Issuing Lenders or any acceleration hereunder, even if the conditions
set forth herein are met.
(c) Enforcement. The Borrowers acknowledge that in the event the
Borrowers fail to perform, observe or discharge any of their respective
obligations or liabilities under this Agreement or any other Loan Document, any
remedy of law may prove to be inadequate relief to the Administrative Agent, the
Issuing Lenders and the Lenders; therefore, Borrowers agree that the
Administrative Agent, the Issuing Lenders and the Lenders shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving actual damages.
8.2 Defaulting Lender. In the event that any Lender fails to fund its
Revolving Credit Share of any Advance requested or deemed requested by either
Brightpoint or BPI which such Lender is obligated to fund under the terms of
this Agreement (the funded portion of such Advance being hereinafter referred to
as a "NON PRO RATA LOAN"), until the earlier of such Lender's cure of such
failure and the termination of the Commitments, the proceeds of all amounts
thereafter repaid to the Administrative Agent by the Borrowers and otherwise
required to be applied to such Lender's share of all other Obligations pursuant
to the terms of this Agreement shall be advanced to the Borrowers by the
Administrative Agent ("CURE LOANS") on behalf of such Lender to cure, in full or
in part, such failure by such Lender, but shall nevertheless be deemed to have
been paid to such Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 8.2 shall apply
only with respect to the proceeds of payments of Obligations and shall
not affect the conversion or continuation of Loans pursuant to Section
2.8;
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(ii) any such Lender shall be deemed to have cured its
failure to fund its Revolving Credit Share of any Advance at such time
as an amount equal to such Lender's original Revolving Credit Share of
the requested principal portion of such Advance is fully funded to the
applicable Borrower, whether made by such Lender itself or by operation
of the terms of this Section 8.2, and whether or not the Non Pro Rata
Loan with respect thereto has been repaid, converted or continued;
(iii) amounts advanced to either Brightpoint or BPI to cure,
in full or in part, any such Lender's failure to fund its Revolving
Credit Share of any Advance shall bear interest at the rate applicable
to Base Rate Loans in effect from time to time, and for all other
purposes of this Agreement shall be treated as if they were Base Rate
Loans;
(iv) regardless of whether or not a Default has occurred or
is continuing, and notwithstanding the instructions of the applicable
Borrower as to its desired application, all repayments of principal
which, in accordance with the other terms of this Agreement, would be
applied to the outstanding Base Rate Loans shall be applied first,
ratably to all Base Rate Loans constituting Non Pro Rata Loans, second,
ratably to Base Rate Loans other than those constituting Non Pro Rata
Loans or Cure Loans and, third, ratably to Base Rate Loans constituting
Cure Loans;
(v) for so long as and until the earlier of any such
Lender's cure of the failure to fund its Revolving Credit Share of any
Advance and the termination of the Commitments, the term "Required
Lenders" for purposes of this Agreement shall mean Lenders (excluding
all Lenders whose failure to fund their respective Revolving Credit
Shares of such Advance have not been so cured) whose Pro Rata Shares
represent at least sixty-six and two-thirds (66-2/3%) of the aggregate
Pro Rata Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to
fund its Revolving Credit Share of any Advance is cured in accordance
with Section 8.2(ii), (A) such Lender shall not be entitled to any
facility fees with respect to its Commitments and (B) such Lender shall
not be entitled to any letter of credit fees, which facility fees and
letter of credit fees shall accrue in favor of the non-defaulting
Lenders, shall be allocated among such performing Lenders ratably based
upon their relative Revolving Loan Commitments.
8.3 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any
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provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrowers hereunder or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of each
Lender affected thereby:
(i) Postpone or extend the Termination Date or any other
date fixed for any payment of principal of, or interest on, the Loans,
the Reimbursement Obligations or any fees or other amounts payable to
such Lender (except with respect to (a) any modifications of the
provisions relating to prepayments of Loans and other Obligations and
(b) a waiver of the application of the default rate of interest
pursuant to Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters.
(iv) Increase the amount of the Revolving Loan Commitment
of any Lender or, with respect to the Alternate Currency Lender, the
Alternate Currency Commitment, hereunder (except with respect to an
increase in any sublimits for any Types of Loans within the Commitments
and except with respect to an increase in the amount, or other
modification to the terms or components, of the Borrowing Base within
the Commitments).
(v) Permit any Borrower to assign its rights under this
Agreement.
(vi) Amend this Section 8.3.
(vii) Other than (a) in connection with transactions
permitted under the terms of this Agreement, (b) pursuant to the terms
of Section 6.25 and (c) the release of any Subsidiary Borrower under
the Original Credit Agreement from its guaranty of the Obligations
under such Agreement, release any Guarantor from its obligations under
Article IX, release any other guarantor of all or any part of the
Obligations or release all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. No amendment of any provision of this Agreement relating to any Issuing
Lender shall be effective without the written consent of the Administrative
Agent and each of the Issuing Lenders. No amendment of any provision of this
Agreement relative to the Swing Line Lender shall be effective without the
written consent of the Swing Line Lenders. No amendment of any provision of this
Agreement relating to the Alternate Currency Credits or any Alternate Currency
Addendum shall be effective without the
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written consent of the Alternate Currency Lender. The Administrative Agent may
waive payment of the fee required under Section 13.3(B) without obtaining the
consent of any of the Lenders. Notwithstanding anything herein to the contrary,
the Administrative Agent (acting reasonably and after consultation with other
parties hereto) may by reasonable prior notice to the other parties hereto amend
this Agreement unilaterally for the exclusive purpose of effectuating changes
hereto which are necessary to the integration of the making of Revolving Loans
hereunder in euro and only in a manner which shall not deteriorate the position
of the Administrative Agent or Lender from its respective prior position.
8.4 Preservation of Rights. No delay or omission of the Lenders, the
Issuing Lenders, the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Loan or the issuance of a Letter
of Credit notwithstanding the existence of a Default or the inability of the
Borrowers to satisfy the conditions precedent to such Loan or issuance of such
Letter of Credit shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.3, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent, the Issuing Lenders and the Lenders until the Obligations have been paid
in full.
ARTICLE IX: GUARANTEE
9.1 Guarantee; Modifications to Obligations. In order to induce the
Lenders to extend credit hereunder and the Issuing Banks to issue the Letters of
Credit hereunder, each Guarantor fully and unconditionally guarantees, as a
primary obligor and not merely as a surety, jointly with the other Guarantors
and severally, the Obligations (including, without limitation, interest accruing
hereunder after the commencement of any case under the United States Bankruptcy
Code, whether or not allowed as a claim in such case); provided, however, the
guaranty hereunder by each Guarantor which is a Subsidiary Borrower shall be
limited to the Obligations of the Subsidiary Borrowers. Each Guarantor further
agrees that the Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee (?GUARANTEE?) hereunder notwithstanding any such extension or
renewal of any Obligation.
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9.2 Waivers. Each Guarantor waives presentment to, demand of payment
from and protest to any Borrower of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Guarantors hereunder shall not be affected by the failure
of any Lender (including the Alternate Currency Lender), any Issuing Bank or the
Administrative Agent to assert any claim or demand or to enforce any right or
remedy against any Borrower or any other Guarantor under the provisions of this
Agreement or any of the other Loan Documents or otherwise, or, except as
specifically provided therein, by any rescission, waiver, amendment or
modification of any of the terms or provisions of this Agreement, any of the
other Loan Documents or any other agreement. Each Guarantor further agrees that
its Guarantee hereunder constitutes a promise of payment when due and not merely
of collection, and waives any right to require that resort be had by any Lender
or any Issuing Bank to any balance of any deposit account or credit on the books
of any Lender or any Issuing Bank in favor of any Subsidiary Borrower or any
other person.
9.3 Guarantee Unconditional. Each Guarantor agrees that its obligations
under this Guarantee shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or
subordination of any of the Obligations or any of the Loan Documents;
(ii) the absence of any attempt by, or on behalf of, any
Lender, any Issuing Bank or the Administrative Agent to collect, or to
take any other action to enforce, all or any part of the Obligations
whether from or against any Borrower, any other guarantor of the
Obligations or any other Person;
(iii) the election of any remedy by, or on behalf of, any
Lender, any Issuing Bank or the Administrative Agent with respect to
all or any part of the Obligations;
(iv) the waiver, consent, extension, forbearance or
granting of any indulgence by, or on behalf of, any Lender, any Issuing
Bank or the Administrative Agent with respect to any provision of any
of the Loan Documents;
(v) the failure of the Administrative Agent to take any
steps to perfect and maintain its security interest in, or to preserve
its rights to, any security or collateral for the Obligations;
(vi) the election by, or on behalf of, any one or more of
the Lenders or Issuing Banks, in any proceeding instituted under
Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et
seq.) (the "BANKRUPTCY CODE"), of the application of Section 1111(b)(2)
of the Bankruptcy Code;
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(vii) any borrowing or grant of a security interest by any
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy
Code;
(viii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of any of the Lenders, any of
the Issuing Banks or the Administrative Agent for repayment of all or
any part of the Obligations; or
(ix) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of any Borrower or any
Guarantor.
The obligations of the Guarantors hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise.
9.4 Extensions and Other Modifications of Obligations. The Lenders and
Issuing Banks, either themselves or acting through the Administrative Agent, are
authorized, without notice or demand and without affecting the liability of any
Guarantor hereunder, from time to time, (a) to renew, extend, accelerate or
otherwise change the time for payment of, or other terms relating to, all or any
part of the Obligations, or to otherwise modify, amend or change the terms of
any of the Loan Documents; (b) to accept partial payments on all or any part of
the Obligations; (c) to take and hold security or collateral for the payment of
all or any part of the Obligations, this Guarantee, or any other guaranties of
all or any part of the Obligations, (d) to exchange, enforce, waive and release
any such security or collateral; (e) to apply such security or collateral and
direct the order or manner of sale thereof as in their discretion they may
determine; or (f) to settle, release, exchange, enforce, waive, compromise or
collect or otherwise liquidate all or any part of the Obligations, this
Guarantee, any other guaranty of all or any part of the Obligations, and any
security or collateral for the Obligations or for any such guaranty.
9.5 No Marshalling; Reinstatement of Guarantee. The Guarantors consent
and agree that none of the Lenders, Issuing Banks nor the Administrative Agent
nor any Person acting for or on behalf of the Lenders, Issuing Banks or the
Administrative Agent shall be under any obligation to marshall any assets in
favor of any Guarantor or against or in payment of any or all of the
Obligations. The Guarantors further agree that, to the extent that any Borrower,
any Guarantor or any other guarantor of all or any part of the Obligations makes
a payment or payments to any Lender, any Issuing Bank or the Administrative
Agent, or any Lender, any Issuing Bank or the Administrative Agent receives any
proceeds of collateral for all or any part of the Obligations, which payment or
payments or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to such
Borrower, such Guarantor, such other guarantor or any other Person, or their
respective estates, trustees,
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receivers or any other party, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or repayment,
the part of the Obligations which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the time
immediately preceding such initial payment, reduction or satisfaction.
9.6 Agreement to Pay Obligations; Currency Issues. In furtherance of
the foregoing and not in limitation of any other right which the Administrative
Agent or any Lender may have at law or in equity against the Guarantors by
virtue hereof, upon the failure of any Borrower to pay any of the Obligations
when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor promises to and will,
upon receipt of written demand by the Administrative Agent, forthwith pay, or
cause to be paid, in cash, the amount of such unpaid Obligations; provided,
however, the payment Obligations hereunder by each Guarantor which is a
Subsidiary Borrower shall be limited to the Obligations of the Subsidiary
Borrowers. The Guarantors further agree, jointly and severally, that if payment
in respect of any of the Obligations owed to the Administrative Agent, any
Lender or any Issuing Bank shall be due in a currency other than Dollars and/or
at a place of payment other than Indianapolis, Indiana and if, by reason of any
Change, disruption of currency or foreign exchange markets, war or civil
disturbance or other event, payment of such Obligations in such currency or such
place of payment shall be impossible or, in the judgment of such Lender, the
Administrative Agent or Issuing Bank, not consistent with the protection of its
rights or interests, then, at the election of such Lender, the Administrative
Agent or Issuing Bank, the Guarantors shall make payment of such Obligation in
Dollars (based upon the applicable Exchange Rate in effect on the date of
payment) and/or in Indianapolis, Indiana, and shall indemnify such Lender or
Issuing Bank against any losses or expenses that it shall sustain as a result of
such alternative payment.
9.7 Subordination of Subrogation. Until the Obligations have been
indefeasibly paid in full in cash, the Guarantors (i) shall have no right of
subrogation with respect to such Obligations and (ii) waive any right to enforce
any remedy which the Lenders, Issuing Banks or the Administrative Agent (or any
of them) now have or may hereafter have against any Borrower, any endorser or
any guarantor of all or any part of the Obligations or any other Person, and the
Guarantors waive any benefit of, and any right to participate in, any security
or collateral given to the Lenders, the Issuing Banks and the Administrative
Agent (or any of them) to secure the payment or performance of all or any part
of the Obligations or any other liability of the Borrowers and the Subsidiary
Borrowers to the Lenders or Issuing Banks. Should any Guarantor have the right,
notwithstanding the foregoing to exercise its subrogation rights, except as set
forth in Section 9.9, each Guarantor hereby expressly and irrevocably
subordinates to payment of the Secured Obligations any and all rights at law or
in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off and any and all defenses available to a surety,
guarantor or accommodation co-obligor until the Secured Obligations are
indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees that
this subordination is intended to benefit
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the Administrative Agent, the Lenders and the other Holders of Secured
Obligations and shall not limit or otherwise affect such Guarantor's liability
hereunder or the enforceability of this Article IX, and that Administrative
Agent, the Lenders and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this
Section 9.7.
9.8 Election of Remedies. If the Administrative Agent or any Lender
may, under applicable law, proceed to realize its benefits under any of the Loan
Documents giving the Administrative Agent or such Lender a Lien upon any
Collateral, whether owned by any Borrower or by any other Person, either by
judicial foreclosure or by non-judicial sale or enforcement, the Administrative
Agent or any Lender may, at its sole option, determine which of its remedies or
rights it may pursue without affecting any of its rights and remedies under this
Article IX. If, in the exercise of any of its rights and remedies, the
Administrative Agent or any Lender shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any Borrower or any
other Person, whether because of any applicable laws pertaining to "election of
remedies" or the like, each Guarantor hereby consents to such action by the
Administrative Agent or such Lender and waives any claim based upon such action,
even if such action by the Administrative Agent or such Lender shall result in a
full or partial loss of any rights of subrogation which each Guarantor might
otherwise have had but for such action by the Administrative Agent or such
Lender. Any election of remedies which results in the denial or impairment of
the right of the Administrative Agent or any Lender to seek a deficiency
judgment against any Borrower or any other Guarantor shall not impair any other
Guarantor's obligation to pay the full amount of the Obligations guaranteed by
it under this Article IX. In the event the Administrative Agent or any Lender
shall bid at any foreclosure or trustee's sale or at any private sale permitted
by law or the Loan Documents, the Administrative Agent or any Lender may bid all
or less than the amount of the Obligations and the amount of such bid need not
be paid by the Administrative Agent or such Lender but shall be credited against
the Obligations. The amount of the successful bid at any such sale, whether by
the Administrative Agent, any Lender or any other party is the successful
bidder, shall be conclusively deemed to be the fair market value of the
Collateral and the difference between such bid amount and the remaining balance
of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this Article IX (subject to the limitations
contained in Section 9.1 with respect to the Obligations guaranteed by the
non-U.S. Guarantors), notwithstanding that any present or future law or court
decision or ruling may have the effect of reducing the amount of any deficiency
claim to which the Administrative Agent or any Lender might otherwise be
entitled but for such bidding at any such sale.
9.9 Limitation. Notwithstanding any provision herein contained to the
contrary, each Guarantor's liability under this Article IX (which liability is
in any event in addition to amounts for which such entity may be primarily
liable as a Borrower or otherwise) shall be limited to an amount not to exceed
as of any date of determination the greater of:
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(a) the net amount of all Loans advanced to any other Borrower
under this Agreement and then re-loaned or otherwise transferred to, or
for the benefit of, such Guarantor; and
(b) the amount which could be claimed by the Administrative
Agent and the Lenders from such Guarantor under this Article IX without
rendering such claim voidable or avoidable under Section 548 of Chapter
11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law after taking into account, among other things,
such Guarantor's right of contribution and indemnification from each
other Guarantor under Section 9.9.
9.9 Contribution with Respect to Guaranty Obligations.
(a) To the extent that any Guarantor shall make a payment
under this Article IX of all or any of the Secured Obligations (other than Loans
made to that Guarantor as a Borrower for which it is primarily liable) (a
"GUARANTOR PAYMENT") which, taking into account all other Guarantor Payments
then previously or concurrently made by any other Guarantor, exceeds the amount
which such Guarantor would otherwise have paid if each Guarantor had paid the
aggregate Obligations satisfied by such Guarantor Payment in the same proportion
that such Guarantor's "Allocable Amount" (as defined below) (as determined
immediately prior to such Guarantor Payment) bore to the aggregate Allocable
Amounts of each of the Guarantors as determined immediately prior to the making
of such Guarantor Payment, then, following indefeasible payment in full in cash
of the Obligations and termination of the Commitments, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "ALLOCABLE AMOUNT" of
any Guarantor shall be equal to the maximum amount of the claim which could then
be recovered from such Guarantor under this Article IX without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform
Fraudulent Conveyance Act or similar statute or common law.
(c) This Section 9.9 is intended only to define the relative
rights of the Guarantors and nothing set forth in this Section 9.9 is intended
to or shall impair the obligations of the Guarantors, jointly and severally, to
pay any amounts as and when the same shall become due and payable in accordance
with the terms of this Agreement, including Section 9.1. Nothing contained in
this Section 9.9 shall limit the liability of any Borrower to pay the Loans made
directly or indirectly to that Borrower and accrued interest, fees and expenses
with respect thereto for which such Borrower shall be primarily liable.
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(d) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets of the
Guarantor to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other
Borrowers or Guarantors under this Section 9.9 shall be exercisable upon the
full and indefeasible payment of the Secured Obligations and the termination of
the Commitments.
9.10 Liability Cumulative. The liability of the Guarantors under this
Article IX is in addition to and shall be cumulative with all liabilities of
each Guarantor or Borrower to the Administrative Agent and the Lenders under
this Agreement and the other Loan Documents to which such Guarantor or Borrower
is a party or in respect of any Obligations or obligation of any other Guarantor
or Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
9.11 No Revocation; Term of Guarantee. This Guarantee shall continue in
full force and effect and may not be terminated or otherwise revoked until the
Secured Obligations shall have been fully and indefeasibly paid (in cash) and
discharged and this Agreement and all financing arrangements among the
Borrowers, the Subsidiary Borrowers, the Guarantors, the Lenders, the
Administrative Agent and the Issuing Lenders shall have been terminated. If,
notwithstanding the foregoing, the Guarantors (or any of them) shall have any
right under applicable law to terminate or revoke this Guarantee, the Guarantors
agree that such termination or revocation shall not be effective until a written
notice of such revocation or termination, specifically referring hereto, signed
by the Guarantors, is actually received by the Administrative Agent. Such notice
shall not affect the right and power of any of the Lenders, any of the Issuing
Lenders or the Administrative Agent to enforce rights arising prior to receipt
thereof by the Administrative Agent. If any Lender or the Administrative Agent
grants loans or takes other action, or any Issuing Bank issues Facility Letters
of Credit, after a Guarantor terminates or revokes this Guarantee but before the
Administrative Agent receives such written notice, the rights of such Lender or
Issuing Bank with respect thereto shall be the same as if such termination or
revocation had not occurred. The provisions of this Article IX shall remain in
full force and effect, notwithstanding any termination of this Agreement, until
the Secured Obligations shall have been fully and indefeasibly paid (in cash)
and discharged.
ARTICLE X: GENERAL PROVISIONS
10.1 Survival of Representations. All representations and warranties of
the Borrowers and Guarantors contained in this Agreement shall survive delivery
of the Notes and the making of the Loans herein contemplated.
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10.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrowers and neither the Administrative Agent nor any Issuing Lender shall
be obligated to issue any Facility Letter of Credit for the account of any
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3 Performance of Obligations. Each of the Borrowers agrees that the
Administrative Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against any Collateral and (ii) after the occurrence and
during the continuance of a Default make any other payment or perform any act
required of any Borrower under any Loan Document or take any other action which
the Administrative Agent in its discretion deems necessary or desirable to
protect or preserve the Collateral, including, without limitation, any action to
(y) effect any repairs or obtain any insurance called for by the terms of any of
the Loan Documents and to pay all or any part of the premiums therefor and the
costs thereof and (z) pay any rents payable by any Borrower which are more than
30 days past due, or as to which the landlord has given notice of termination,
under any lease. The Administrative Agent shall use its best efforts to give the
applicable Borrower notice of any action taken under this Section 10.3 prior to
the taking of such action or promptly thereafter provided the failure to give
such notice shall not affect the applicable Borrower's obligations in respect
thereof. Each of the Borrowers agrees to pay the Administrative Agent, upon
demand, the principal amount of all funds advanced by the Administrative Agent
under this Section 10.3, together with interest thereon at the rate from time to
time applicable to Base Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If any Borrower fails to
make payment in respect of any such advance under this Section 10.3 within one
(1) Business Day after the date such Borrower receives written demand therefor
from the Administrative Agent, the Administrative Agent shall promptly notify
each Lender and each Lender agrees that it shall thereupon make available to the
Administrative Agent, in Dollars in immediately available funds, the amount
equal to such Lender's Pro Rata Share of such advance. If such funds are not
made available to the Administrative Agent by such Lender within one (1)
Business Day after the Administrative Agent's demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Effective Federal Funds Rate for
each day during the period commencing on the date of such demand and ending on
the date such amount is received. The failure of any Lender to make available to
the Administrative Agent its Pro Rata Share of any such unreimbursed advance
under this Section 10.3 shall neither relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such advance on the date such payment is to be made nor increase
the obligation of any other Lender to make such payment to the Administrative
Agent. All outstanding principal of, and interest on, advances made under this
Section 10.3 shall constitute Obligations secured by the Collateral until paid
in full by the Borrowers.
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10.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Guarantors, the Administrative Agent
and the Lenders and supersede all prior agreements and understandings relating
to the subject matter thereof. Upon the Closing Date, the terms of this
Agreement shall be the operative terms and the Original Credit Agreement shall
have no further force and effect.
10.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other. The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns.
10.7 Expenses; Indemnification.
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(A) Expenses. The Borrowers shall reimburse the Administrative Agent
and the Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Administrative Agent or the Arranger, which
attorneys and paralegals may be employees of the Administrative Agent or the
Arranger) paid or incurred by the Administrative Agent or Arranger in connection
with the preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents. Each of the
Borrowers also agrees to reimburse the Administrative Agent, the Lenders and the
Issuing Lenders for any costs, internal charges and out-of-pocket expenses
(including attorneys' and paralegals' fees and time charges of attorneys and
paralegals for the Administrative Agent, the Lenders and the Issuing Lenders,
which attorneys and paralegals may be employees of the Administrative Agent, the
Lenders or the Issuing Lenders) paid or incurred by the Administrative Agent,
any Lender or any Issuing Lender in connection with the collection of the
Obligations and enforcement of the Loan Documents. In addition to expenses set
forth above, each of the Borrowers agrees to reimburse the Administrative Agent,
promptly after the request therefor, for each audit, collateral analysis or
other business analysis performed by or for the benefit of the Lenders in
connection with this Agreement or the other Loan Documents in an amount equal to
the Administrative Agent?s then customary charges for each person employed to
perform such audit or analysis, plus all costs and expenses (including without
limitation, travel expenses) incurred by the Administrative Agent in the
performance of such audit or analysis; provided, however, other than in
connection with the initial collateral audit being conducted to establish the
Borrowing Base, the Borrowers shall not be obligated to so reimburse the
Administrative Agent in an amount in excess of $8,000 for any of such audits,
collateral analyses or other business analyses conducted at a time when no
Default or Unmatured Default has occurred and is continuing. If requested to do
so by the Required Lenders, the Administrative Agent shall be required to
conduct such collateral audits on an annual basis or when a Default or Unmatured
Default has occurred and is continuing. The Administrative Agent shall provide
the Borrowers with a detailed statement of all reimbursements requested under
this Section 10.7(A).
(B) Indemnity. Each of the Borrowers and Guarantors further agrees to
defend, protect, indemnify, and hold harmless the Administrative Agent, the
Arranger, each and all of the Lenders, each and all of the Issuing Lenders, the
Swing Loan Lender and each of their respective Affiliates, and each of such
Administrative Agent's, Arranger's, Lender's, Issuing Lender's or Affiliate's
respective officers, directors, employees, attorneys and agents (including,
without limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in Article IV)
(collectively, the "INDEMNITEES") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection with
any investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of:
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(i) this Agreement, the other Loan Documents, or any act,
event or transaction related or attendant thereto or to the Stock
Acquisition, the making of the Loans, and the issuance of and
participation in Letters of Credit hereunder, the management of such
Loans or Letters of Credit, the use or intended use of the proceeds of
the Loans or Letters of Credit hereunder, or any of the other
transactions contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements of Law
arising from or in connection with the past, present or future
operations of Brightpoint, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of
Brightpoint or its Subsidiaries, the presence of asbestos-containing
materials at any respective property of Brightpoint or its Subsidiaries
or the Release or threatened Release of any Contaminant into the
environment (collectively, the "INDEMNIFIED MATTERS");
provided, however, the Borrowers and Guarantors shall have no obligation to an
Indemnitee hereunder with respect to (i) Indemnified Matters caused solely by or
resulting solely from the willful misconduct or Gross Negligence of such
Indemnitee, as determined by the final non-appealable judgment of a court of
competent jurisdiction or (ii) Indemnified Matters arising solely out of a
dispute between any Lender and the Administrative Agent. If the undertaking to
indemnify, pay and hold harmless set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrowers
and Guarantors shall contribute the maximum portion which it is permitted to pay
and satisfy under applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. Each of the
Borrowers and each of the Guarantors agrees to assert no claim against any of
the Indemnitees on any theory of liability for consequential damages, indirect
damages, exemplary damages, punitive damages or any other similar theory of
damages howsoever categorized. No settlement shall be entered into by
Brightpoint or any if its Subsidiaries with respect to any claim, litigation,
arbitration or other proceeding relating to or arising out of the transaction
evidenced by this Agreement or the other Loan Documents (whether or not the
Administrative Agent, any Lender, any Issuing Lender or
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any Indemnitee is a party thereto) unless such settlement releases all
Indemnitees from any and all liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers and Guarantors under this Section 10.7 shall survive the termination
of this Agreement.
10.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.
10.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11 Nonliability of Lenders. The relationship among the Borrowers and
the Lenders, Issuing Lenders, the Swing Line Lender and the Administrative Agent
shall be solely that of borrower and lender. Neither the Administrative Agent
nor any Lender nor any Issuing Lender shall have any fiduciary responsibilities
to the Borrowers or to the Guarantors. Neither the Administrative Agent, nor any
Lender, nor any Issuing Lender undertakes any responsibility to the Borrowers or
the Guarantors to review or inform the Borrowers or Guarantors of any matter in
connection with any phase of the Borrowers' or Guarantors' business or
operations.
10.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT,
ON BEHALF OF ITSELF, THE LENDERS AND THE ISSUING LENDERS, AT CHICAGO, ILLINOIS
BY ACKNOWLEDGING AND AGREEING TO IT THERE. THIS AGREEMENT SHALL BE GOVERNED BY
AND INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735
ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS. WITHOUT LIMITING THE FOREGOING, ANY
DISPUTE BETWEEN ANY BORROWER OR ANY GUARANTOR AND THE ADMINISTRATIVE AGENT, ANY
LENDER, ANY ISSUING LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS, AND WHETHER
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ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
10.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE BORROWERS AND GUARANTORS AGREES
THAT THE ADMINISTRATIVE AGENT, ANY LENDER, ANY ISSUING LENDER OR ANY HOLDER OF
SECURED OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST ANY BORROWER OR ANY
GUARANTOR OR ANY BORROWER'S OR GUARANTOR'S PROPERTY IN A COURT IN ANY LOCATION
TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER SUCH BORROWER OR
GUARANTOR OR (2) REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE SECURED
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PERSON. EACH OF THE BORROWERS AND GUARANTORS AGREES THAT IT WILL NOT ASSERT
ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT UNDER THIS CLAUSE (B) BY
SUCH PERSON TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON ALL OF WHICH PERMISSIVE COUNTERCLAIMS MAY BE BROUGHT ONLY IN THE
JURISDICTION SET FORTH IN CLAUSE (A) ABOVE. EACH OF THE BORROWERS AND GUARANTORS
WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH
PERSON HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
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(C) SERVICE OF PROCESS; VENUE. EACH OF THE BORROWERS AND GUARANTORS
WAIVES PERSONAL SERVICE OF PROCESS UPON IT AND, AS ADDITIONAL SECURITY FOR THE
SECURED OBLIGATIONS, IRREVOCABLY APPOINTS CT CORPORATION SYSTEM THEIR AGENT FOR
THE PURPOSE OF ACCEPTING SERVICE OF PROCESS ISSUED BY ANY COURT. EACH OF THE
BORROWERS AND GUARANTORS IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE BORROWERS AND GUARANTORS WAIVES THE
POSTING OF ANY BOND OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH
ANY JUDICIAL PROCESS OR PROCEEDING TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS OR TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 10.13, WITH ITS COUNSEL.
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10.14 Subordination of Intercompany Indebtedness. Each of the Borrowers
and Guarantors agrees that any and all claims of such Borrower or Guarantor
against any other Borrower, any Guarantor, any endorser, obligor or any other
guarantor of all or any part of the Secured Obligations, or against any of its
properties shall be subordinate and subject in right of payment to the prior
payment, in full and in cash, of all Secured Obligations. Notwithstanding any
right of any Borrower or Guarantor to ask, demand, sue for, take or receive any
payment from any other Borrower or any Guarantor, all rights, liens and security
interests of any Borrower or Guarantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Borrower or any Guarantor
(whether constituting part of Collateral given to any Holder of Secured
Obligations or the Administrative Agent to secure payment of all or any part of
the Secured Obligations or otherwise) shall be and are subordinated to the
rights of the Holders of Secured Obligations and the Administrative Agent in
those assets. No Borrower or Guarantor shall have any right to possession of any
such asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Secured Obligations (other than
contingent indemnity obligations) shall have been fully paid and satisfied and
all financing arrangements among the Borrowers, Guarantors and the Holders of
Secured Obligations have been terminated. If all or any part of the assets of
any Borrower or Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Borrower or
Guarantor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding, or if the business of
any Borrower or Guarantor is dissolved or if substantially all of the assets of
any Borrower or Guarantor are sold, then, and in any such event, any payment or
distribution of any kind or character, either in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
indebtedness of any such Borrower or Guarantor to any other Borrower or
Guarantor ("INTERCOMPANY INDEBTEDNESS") shall be paid or delivered directly to
the Administrative Agent for application on any of the Secured Obligations, due
or to become due, until such Secured Obligations (other than contingent
indemnity obligations) shall have first been fully paid and satisfied. The
Borrowers and the Guarantors irrevocably authorize and empower the
Administrative Agent to demand, sue for, collect and receive every such payment
or distribution and give acquittance therefor and to make and present for and on
behalf of the applicable Borrower or Guarantor such proofs of claim and take
such other action, in the Administrative Agent's own name or in the name of the
applicable Borrower or Guarantor or otherwise, as the Administrative Agent may
deem necessary or advisable for the enforcement of this Section 10.14. The
Administrative Agent may vote such proofs of claim in any such proceeding,
receive and collect any and all dividends or other payments or disbursements
made thereon in whatever form the same may be paid or issued and apply the same
on account of any of the Secured Obligations. Should any payment, distribution,
security or instrument or proceeds thereof be received by any Borrower or
Guarantor upon or with respect to the Intercompany Indebtedness prior to the
satisfaction of all of the Secured Obligations (other than contingent indemnity
obligations) and the termination of all financing arrangements among the
Borrowers, the Guarantors and the Holders of Secured Obligations, the
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applicable Borrower or Guarantor shall receive and hold the same in trust, as
trustee, for the benefit of the Holders of Secured Obligations and shall
forthwith deliver the same to the Administrative Agent, for the benefit of the
Holders of Secured Obligations, in precisely the form received (except for the
endorsement or assignment of the Borrower where necessary), for application to
any of the Secured Obligations, due or not due, and, until so delivered, the
same shall be held in trust by the Borrower or Guarantor, as applicable, as the
property of the Holders of Secured Obligations. If any Borrower or Guarantor
fails to make any such endorsement or assignment to the Administrative Agent,
the Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. The Borrowers and Guarantors agree that until the
Secured Obligations (other than the contingent indemnity obligations) have been
paid in full (in cash) and satisfied and all financing arrangements among the
Borrowers, Guarantors and the Holders of Secured Obligations have been
terminated, the Borrowers and Guarantors will not assign or transfer to any
Person (other than the Administrative Agent) any claim such Borrower or
Guarantor has or may have against any other Borrower or Guarantor.
10.15 No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
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ARTICLE XI: THE ADMINISTRATIVE AGENT
11.1 Appointment; Nature of Relationship. Bank One is appointed by the
Lenders (each reference in this Article XI to a Lender being in its capacity
either as a Lender or an Issuing Lender or a Swing Line Lender, or any or all of
the foregoing) as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XI. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Lender by reason of this Agreement and that the Administrative Agent is merely
acting as the representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Administrative Agent
(i) does not assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders agrees to assert no
claim against the Administrative Agent on any agency theory or any other theory
of liability for breach of fiduciary duty, all of which claims each Lender
waives.
11.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
11.3 General Immunity. Neither the Administrative Agent nor any of its
respective directors, officers, agents or employees shall be liable to either of
the Borrowers, the Guarantors, the Lenders or any Lender for any action taken or
omitted to be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith except to the extent such action or inaction
is found in a final non-appealable judgment by a court of competent jurisdiction
to have arisen solely from the Gross Negligence or willful misconduct of such
Person.
11.4 No Responsibility for Loans, Creditworthiness, Collateral,
Recitals, Etc. Neither the Administrative Agent nor any of its respective
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the
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performance or observance of any of the covenants or agreements of any obligor
under any Loan Document; (iii) the satisfaction of any condition specified in
Article IV; (iv) the existence or possible existence of any Default or (v) the
validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith. The Administrative
Agent shall not be responsible to any Lender for any recitals, statements,
representations or warranties herein or in any of the other Loan Documents, for
the perfection or priority of any of the Liens on any of the Collateral, or for
the execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents or the transactions contemplated thereby, or for the financial
condition of any Guarantor of any or all of the Obligations, Brightpoint or any
of its Subsidiaries.
11.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (except with respect to actions that
require the consent of all of the Lenders as provided in Section 8.3), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all Holders of Secured Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
11.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact, and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement among the
Administrative Agent and the Lenders, as the case may be, and all matters
pertaining to its duties hereunder and under any other Loan Document.
11.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8 The Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the Borrowers or
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Guarantors for which the Administrative Agent is entitled to reimbursement or
indemnification by the Borrowers or Guarantors under the Loan Documents, (ii)
for any other expenses incurred by the Administrative Agent on behalf of the
Lenders, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents including as a result of a dispute among
the Lenders or between any Lender and the Administrative Agent, and (iii) for
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
including as a result of a dispute among the Lenders or between any Lender and
the Administrative Agent, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have arisen solely from the
Gross Negligence or willful misconduct of the Administrative Agent.
11.9 Rights as a Lender. With respect to its Commitments, Loans made by
it, the Notes issued to it in its individual capacity and Facility Letters of
Credit issued by it as an Issuing Lender, the Administrative Agent shall have
the same rights and powers hereunder and under any other Loan Document as any
Lender and may exercise the same as through it were not the Administrative
Agent, and the term "Lender" or "Lenders" or "Issuing Lender" or "Issuing
Lenders", as applicable, shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
may accept deposits from, lend money to, enter into Hedging Agreements and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with Brightpoint or any of its Subsidiaries in which such Person is not
prohibited hereby from engaging with any other Person.
11.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by Brightpoint, the
Borrowers and the Guarantors and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents.
11.11 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrowers. Upon any such resignation, the Required Lenders shall have the right
to appoint, on behalf of the Borrowers and the Lenders, a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty days after the retiring Administrative Agent's giving notice of
resignation, then the retiring
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Administrative Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. Notwithstanding anything herein to the contrary,
so long as no Default has occurred and is continuing, each such successor
Administrative Agent shall be subject to approval by Brightpoint, which approval
shall not be unreasonably withheld. Such successor Administrative Agent shall be
a commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XI shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
11.12 Collateral Documents. Each Lender authorizes the Administrative
Agent to enter into each of the Collateral Documents to which it is a party and
to take all action contemplated by such documents. Each Lender agrees that no
Lender shall have the right individually to seek to realize upon the security
granted by any Collateral Document, it being understood and agreed that such
rights and remedies may be exercised solely by the Administrative Agent for the
benefit of the Holders of Secured Obligations upon the terms of the Collateral
Documents.
11.13. No Duties Imposed Upon Arranger. None of the Persons identified
on the cover page to this Agreement, the signature pages to this Agreement or
otherwise in this Agreement as an "Arranger"shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders identified on the cover page to this Agreement, the signature pages
to this Agreement or otherwise in this Agreements as an "Arranger" shall have or
be deemed to have any fiduciary duty to or fiduciary relationship with any
Lender. In addition to the agreements set forth in Section 11.10, each of the
Lenders acknowledges that it has not relied, and will not rely, on any of the
Lenders so identified in deciding to enter into this Agreement or in taking or
not taking action hereunder.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders or Issuing Lenders under applicable law, if any Default occurs and
is continuing, any indebtedness from any Lender or Issuing Lender to any of the
Borrowers or Guarantors (including all account balances, whether provisional or
final and whether or not collected or available) may be offset and applied
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toward the payment of the Obligations owing to such Lender, such Issuing Lender
and the other Obligations, whether or not the Obligations, or any part hereof,
shall then be due.
12.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 3.1, 3.2 or 3.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
12.3 Application of Payments. Subject to the provisions of Section 8.2,
the Administrative Agent shall, unless otherwise specified at the direction of
the Required Lenders which direction shall be consistent with the last sentence
of this Section 12.3, apply all payments and prepayments in respect of any
Obligations and all proceeds of Collateral in the following order:
(A) first, to pay interest on and then principal of any
portion of the Loans which the Administrative Agent may have advanced
on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the Borrower or Guarantor;
(B) second, to pay interest on and then principal of any
advance made under Section 10.3 for which the Administrative Agent has
not then been paid by the Borrowers or the Guarantors or reimbursed by
the Lenders;
(C) third, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders and
Issuing Lender;
(E) fifth, to pay interest due in respect of Loans and L/C
Obligations;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans and Reimbursement Obligations and Hedging
Obligations in such order as the Administrative Agent may determine in
its sole discretion;
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(G) seventh, to provide required cash collateral if any
pursuant to Section 2.21; and
(H) eighth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Borrowers, all principal payments in respect
of Loans shall be applied first, to repay outstanding Floating Rate Loans, and
then to repay outstanding Fixed Rate Loans with those Fixed Rate Loans which
have earlier expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods. The order of priority set forth in this Section
12.3 and the related provisions of this Agreement are set forth solely to
determine the rights and priorities of the Administrative Agent, the Lenders,
the Issuing Lender and other Holders of Secured Obligations as among themselves.
The order of priority set forth in clauses (D) through (H) of this Section 12.3
may at any time and from time to time be changed by the Required Lenders without
necessity of notice to or consent of or approval by the Borrowers, the
Guarantors, or any other Person. The order of priority set forth in clauses (A)
through (C) of this Section 12.3 may be changed only with the prior written
consent of the Administrative Agent. The Administrative Agent agrees that any
payment which is made by BPI by reason of its independent payment obligation to
pay the amount of the Secured Obligations pursuant to and contained in the
Pledge of Shares by and between BPI and the Administrative Agent dated April 17,
1998, shall be applied by the Administrative Agent against the Secured
Obligations as set forth in this Section 12.3.
12.4 Relations Among Lenders.
(a) Except with respect to the exercise of set-off rights of any Lender
in accordance with Section 12.1, the proceeds of which are applied in accordance
with this Agreement, and each Lender agrees that it will not take any action,
nor institute any actions or proceedings, against any Borrower, any Guarantor or
any other obligor hereunder or with respect to any Collateral or Loan Document,
without the prior written consent of the Required Lenders or, as may be provided
in this Agreement or the other Loan Documents, at the direction of the
Administrative Agent.
(b) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth herein
in case of the Administrative Agent) authorized to act for, any other Lender.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers, the
Guarantors and the Lenders and their
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respective successors and assigns, except that (i) none of the Borrowers or
Guarantors shall have the right to assign their rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 13.3 hereof. Notwithstanding clause (ii) of this Section 13.1, any
Lender may at any time, without the consent of any Borrower, any Guarantor or
the Administrative Agent, assign all or any portion of its rights under this
Agreement and Notes, if any, issued to it to a Federal Reserve Bank; provided,
however, that no such assignment shall release the transferor Lender from its
obligations hereunder. The Administrative Agent may treat the payee of any Note
issued to any individual Lender as the owner thereof for all purposes hereof
unless and until such payee complies with Section 13.3 hereof in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Administrative Agent. Any assignee or transferee
of a Note or of an interest in the Loans agrees by acceptance thereof to be
bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of any Note, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Note or of
any Note or Notes issued in exchange therefor.
13.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in
this Section 13.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Commitment of such Lender, any L/C
Interest of such Lender or any other interest of such Lender under the Loan
Documents on a pro-rata or non-pro-rata basis; provided that without the prior
written consent of the Administrative Agent, the amount of such participation
shall not be for less than $5,000,000. Notice of such participation to
Brightpoint and the Administrative Agent shall be required prior to any
participation becoming effective with respect to a Participant which is not a
Lender or an Affiliate thereof. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Borrowers and Guarantors under this
Agreement shall be determined as if such Lender had not sold such participating
interests, and the Borrowers, Guarantors and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents except that, for
purposes of Article III hereof, the Participants shall be entitled to the same
rights as if they were Lenders; provided however that no Participant shall be
entitled to receive any greater payment under such Article III than the Lender
would have been entitled to receive with respect to the rights participated.
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(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which requires the consent of all of the Lenders under Section 8.3.
(C) Benefit of Setoff. The Borrowers and the Guarantors agree that each
Participant shall be deemed to have the right of setoff provided in Section 12.1
hereof in respect to its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 12.1 hereof with
respect to the amount of participating interests sold to each Participant except
to the extent such Participant exercises its right of set off. The Lenders agree
to share with each Participant, and each Participant, by exercising the right of
setoff provided in Section 12.1 hereof, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
13.3 Assignments.
(A) Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, any
Commitments, any Loans owing to it, all of its interests as Issuing Lender with
respect to Letters of Credit, all of its participation interests in Existing
Letters of Credit and Swing Line Loans, and its obligation to participate in
additional Facility Letters of Credit, Alternate Currency Credits and Swing Line
Loans hereunder) in accordance with the provisions of this Section 13.3. Such
assignment shall be substantially in the form of Exhibit H hereto and, without
the prior consent of the Administrative Agent, shall not be permitted hereunder
unless such assignment is either for all of such Lender's rights and obligations
under the Loan Documents or involves Loans and Commitments in an aggregate
amount of at least $5,000,000. Notice to the Administrative Agent and
Brightpoint and consent of Brightpoint and the Administrative Agent (which
consents will not be unreasonably withheld) shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender
or an Affiliate thereof; provided, however, no consent of Brightpoint shall be
required for any assignment to become effective at a time when a Default has
occurred and is continuing. Notwithstanding anything in this Section 13.3 to the
contrary, any Lender may at any time, without the consent of Brightpoint or the
Administrative Agent, assign all or any portion of its rights under this
Agreement to a Federal Reserve Bank; provided, however, that no such assignment
to a Federal Reserve Bank shall release the transferor Lender from its
obligations hereunder.
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(B) Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as Appendix
I to Exhibit H hereto (a "NOTICE OF ASSIGNMENT"), together with any consent
required by Section 13.3(A) hereof, and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment, Loans and L/C Obligations under the applicable assignment agreement
are "plan assets" as defined under ERISA and that the rights and interests of
the Purchaser in and under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such Purchaser, if
not already a Lender, shall for all purposes be a Lender party to this Agreement
and any other Loan Documents executed by the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no consent or action by either of
the Borrowers, Guarantors or the Lenders and no further consent or action by the
Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Commitments, Loans and Letter of Credit
participations assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 13.3(B), if requested by the
transferor Lender or Purchaser, the transferor Lender, the Administrative Agent
and the Borrowers shall make appropriate arrangements so that replacement Notes
are issued to such transferor Lender and new Notes or, as appropriate,
replacement Notes, are issued to such Purchaser, in each case in principal
amounts reflecting their Commitments, as adjusted pursuant to such assignment
provided if no such request is made, the master Note(s) shall reflect their
Commitments, as adjusted pursuant to such assignment.
(C) The Register. The Administrative Agent shall maintain at its
address referred to in Section 14.1 a copy of each assignment delivered to and
accepted by it pursuant to this Section 13.3 and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Commitments of
and principal amount of the Loans owing to, each Lender from time to time and
whether such Lender is an original Lender or the assignee of another Lender
pursuant to an assignment under this Section 13.3. The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
Brightpoint and each of its Subsidiaries, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrowers or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
13.4 Confidentiality. Subject to Section 13.5, the Administrative Agent
and the Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by Brightpoint in
accordance with such Person's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
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practices. Each of the Administrative Agent and the Lenders agrees that it will
not make use of any such confidential information for personal gain or for
transactions other than those contemplated by this Agreement, except to the
extent that such information (i) was or becomes generally available to the
public other than as a result of disclosure by the Administrative Agent or such
Lender, or (ii) was or becomes available on a nonconfidential basis from a
source other than Brightpoint and its Subsidiaries provided that such source is
not bound by a confidentiality agreement known to the Administrative Agent or
such Lender; provided, however, that the Administrative Agent and any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any Governmental Authority to which the Administrative Agent or such Lender is
subject or in connection with an examination of the Administrative Agent or such
Lender by any such Governmental Authority; (B) pursuant to subpoena or other
court process; (C) when required to do so in accordance with the provisions of
any applicable requirement of law; (D) to the extent reasonably required in
connection with any litigation or proceeding to which the Administrative Agent,
any Lender or their respective affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Loan Document; (F) to the Administrative Agent's or such
Lender's independent auditors, accountants, attorneys and other professional
advisors; (G) to any affiliate of the Administrative Agent or such Lender, or to
any prospective Transferee, provided that such affiliate or prospective
Transferee agrees to keep such information confidential to the same extent
required of the Administrative Agent and the Lenders hereunder; and (H) as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which Brightpoint or any of its Subsidiaries is party or is
deemed party with the Administrative Agent or such Lender. In any event, the
Administrative Agent and the Lenders may make disclosure reasonably required by
a prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process and shall require any such
Transferee or prospective Transferee to agree (and require any of its
Transferees to agree) to comply with this Section 13.4. In no event shall the
Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Borrowers or Guarantors; provided, however, each
prospective Transferee shall be required to agree that if it does not become a
participant or assignee it shall return all materials furnished to it by or on
behalf of the Borrowers or Guarantors in connection with this Agreement.
13.5 Dissemination of Information. Each of the Borrowers and Guarantors
authorizes each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning Brightpoint and its Subsidiaries and the
Collateral; provided that prior to any such disclosure, such prospective
Transferee shall agree to preserve in accordance with Section 13.4 the
confidentiality of any confidential information described therein.
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ARTICLE XIV: NOTICES
14.1 Giving Notice. Except as otherwise permitted by Section 2.11 or
the Alternate Currency Addendum with respect to borrowing notices, all notices
and other communications provided to any party hereto under this Agreement or
any other Loan Documents shall be in writing or by telex or by facsimile and
addressed or delivered to such party, with respect to any Borrower or any
Guarantor, in care of Brightpoint at the address set forth below, and for any
other party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid, shall be deemed
given when received; any notice, if transmitted by telex or facsimile, shall be
deemed given when transmitted (answerback confirmed in the case of telexes); or,
if by courier, one (1) Business Day after deposit with a reputable overnight
carrier services, with all charges paid. Notices to any Borrower or any
Guarantor shall be addressed as follows:
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, IN 46278
Attention: Brian D. Smith and Steven E. Fivel
Phone: 317/297-6100
Facsimile: 317/387-5479
14.2 Change of Address. Either of the Borrowers, Guarantors, the
Administrative Agent and any Lender may each change the address for service of
notice upon it by a notice in writing to the other parties hereto.
ARTICLE XV: COUNTERPARTS
This Agreement and any amendments, waivers, consents or supplements may
be executed in any number of counterparts, all of which taken together shall
constitute one agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. Delivery of an executed signature
page hereof or thereof by facsimile transmission shall be effective as delivery
of a manually signed counterpart. This Agreement shall be effective when it has
been executed by the Borrowers, the Guarantors, the Administrative Agent and the
Lenders and each party as notified the Administrative Agent by telex or
telephone, that it has taken such action.
144
<PAGE> 154
IN WITNESS WHEREOF, the Borrowers, the Guarantors, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
BRIGHTPOINT, INC., as a Borrower and Guarantor
By: /s/ Steven E. Fivel
--------------------------------------------
Name: Steven E. Fivel
---------------------------------------
Title: Executive Vice President, General
--------------------------------------
Counsel and Secretary
--------------------------------------
BRIGHTPOINT INTERNATIONAL LTD., as a Borrower
and Guarantor
By: /s/ Steven E. Fivel
--------------------------------------------
Name: Steven E. Fivel
---------------------------------------
Title: Executive Vice President, Secretary
--------------------------------------
BRIGHTPOINT LATIN AMERICA, INC., as a Guarantor
By: /s/ Steven E. Fivel
--------------------------------------------
Name: Steven E. Fivel
---------------------------------------
Title: Vice President, General Counsel
--------------------------------------
and Secretary
--------------------------------------
WIRELESS FULFILLMENT SERVICES LLC, as a
Guarantor
By: BRIGHTPOINT, INC., its managing member
By: /s/ Steven E. Fivel
-----------------------------------
Name: Steven E. Fivel
------------------------------
Title: Vice President and Secretary
-----------------------------
BRIGHTPOINT AUSTRALIA PTY LIMITED, as a
Subsidiary Borrower and a Guarantor
By: /s/ Steven E. Fivel
--------------------------------------------
Name: Steven E. Fivel
---------------------------------------
Title: Director
--------------------------------------
S-1
<PAGE> 155
BRIGHTPOINT CHINA LIMITED, as a Subsidiary
Borrower and a Guarantor
By: /s/ Steven E. Fivel
---------------------------------------
Name: Steven E. Fivel
----------------------------------
Title: Director
---------------------------------
WINNING LAND COMPANY LIMITED, as a Subsidiary
Borrower and a Guarantor
By: /s/ Steven E. Fivel
---------------------------------------
Name: Steven E. Fivel
----------------------------------
Title: Director
---------------------------------
S-2
<PAGE> 156
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the Administrative Agent, the Swing Line
Lender, an Issuing Lender and as a Lender
By: /s/ Scott A. Dvornik
---------------------------------------
Name: Scott A. Dvornik
----------------------------------
Title: Vice President
---------------------------------
NOTICE ADDRESS:
Corporate Banking
One Indiana Square
Suite IN1-7028
Indianapolis, IN 46266
Attention: William Herrick
Telephone No.: 317/266-5937
Facsimile No.: 317/266-6042
PAYMENT ADDRESS FOR DOLLARS: Same as above
Eurocurrency Payment Address: Same as above
S-3
<PAGE> 157
ABN AMRO BANK N.V.
as the Alternate Currency Lender
By: /s/ Laurie D. Flom
---------------------------------------
Name: Laurie D. Flom
----------------------------------
Title: Group Vice President
---------------------------------
By: /s/ Wesley P. Pascavis
---------------------------------------
Name: Wesley P. Pascavis
----------------------------------
Title: Group Vice President
---------------------------------
NOTICE ADDRESS:
135 South LaSalle Street
Chicago, IL 60674-9135
Attention: Wesley Pascavis
Telephone No.: (312) 904-2267
Facsimile No.:(312) 606-8425
S-4
<PAGE> 158
BANK BOSTON, N.A.
as a Lender
By: /s/ Janet Twomey
---------------------------------------
Name: Janet Twomey
----------------------------------
Title: Vice President
---------------------------------
NOTICE ADDRESS:
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Attention: Janet Twomey
Telephone No.: (617) 434-3069
Facsimile No.: (617) 434-1574
PAYMENT ADDRESS FOR DOLLARS:
ABA #: 011 000390
Ref: Brightpoint
Attention: Comm. Loan Svcs. Adm - #49
EUROCURRENCY PAYMENT ADDRESS:
Same as Above
S-5
<PAGE> 159
FIRST UNION NATIONAL BANK
as a Lender
By: /s/ Thomas M. Harper
---------------------------------------
Name: Thomas M. Harper
----------------------------------
Title: Vice President
---------------------------------
NOTICE ADDRESS:
1345 Chestnut Street
Philadelphia, PA 19107-PA4843
Telephone No.: (215) 786-5213
Facsimile No.: (215) 786-2877
PAYMENT ADDRESS FOR DOLLARS:
Same as Above
EUROCURRENCY PAYMENT ADDRESS:
Same as Above
S-6
<PAGE> 160
SUNTRUST BANK OF CENTRAL FLORIDA, NATIONAL
ASSOCIATION as a Lender
By: /s/ Christopher A. Black
---------------------------------------
Name: Christopher A. Black
----------------------------------
Title: Director
---------------------------------
NOTICE ADDRESS:
SunTrust Bank of Central Florida, National
Association
10 W. Market Street
500 Market Tower
Indianapolis, IN 46204
Attention: Christopher Black
Telephone No.: (317) 464-5248
Facsimile No.: (317) 464-5249
PAYMENT ADDRESS FOR DOLLARS:
ABA #: 063 102152
Commercial Loans Operations
Account #: 9215004320
For further credit to Brightpoint
Ref: 1045425802
EUROCURRENCY PAYMENT ADDRESS:
Same as Above
S-7
<PAGE> 161
THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F.C.H. Ashby
---------------------------------------
Name: F.C.H. Ashby
----------------------------------
Title: Senior Manager Loan Operations
---------------------------------
NOTICE ADDRESS:
600 Peachtree Street N.E.
Suite 2700
Atlanta, GA 30308
Attention: Shannon Dancila
Telephone No.: (404) 877-1557
Facsimile No.: (404) 888-8998
PAYMENT ADDRESS FOR DOLLARS:
ABA #: 260 02532
Credit Bank of Nova Scotia, Atlanta
Account: 0606634
Ref: Brightpoint
EUROCURRENCY PAYMENT ADDRESS:
Same as Above
S-8
<PAGE> 162
THE PROVIDENT BANK, as a Lender
By: /s/ Christopher W. Caniff
---------------------------------------
Name: Christopher W. Caniff
----------------------------------
Title: Vice President
---------------------------------
NOTICE ADDRESS:
The Provident Bank
20 N. Meridian Street
Suite 400
Indianapolis, IN 46204
Attention: Chris Caniff
Telephone No.: 317/822-1100
Facsimile No.: 317/822-9800
PAYMENT ADDRESS FOR DOLLARS:
ABA #: 042000424
Ref: Brightpoint
Attention: Dee Preyer
EUROCURRENCY PAYMENT ADDRESS:
Deutsche Bank Ag
Account Number: 9582610
Swift Code: Deutdef
S-9
<PAGE> 163
THE BANK OF TOKYO-MITSUBISHI, LTD. CHICAGO
BRANCH
as a Lender
By: /s/ Hisashi Miyashiro
---------------------------------------
Name: Hisashi Miyashiro
----------------------------------
Title: Deputy General Manager
---------------------------------
NOTICE ADDRESS:
227 West Monroe Street
Suite 2300
Chicago, IL 60606
Attention: Christopher Jones
Telephone No.: (312) 696-4656
Facsimile No.: (312) 696-4535
PAYMENT ADDRESS FOR DOLLARS:
ABA #: 071002341
Account Number: 1525720230
Account: Bank of Tokyo-Mitsubishi Ltd. Chicago
Attn: Loan Administration
Ref: Brightpoint
EUROCURRENCY PAYMENT ADDRESS:
Same as Above
S-10
<PAGE> 164
THE FUJI BANK, LIMITED
as a Lender
By: /s/ Tetsuo Kamatsu
------------------------------------------
Name: Tetsuo Kamatsu
-------------------------------------
Title: Senior Vice President & Group Head
------------------------------------
NOTICE ADDRESS:
225 West Wacker Drive
Suite 2000
Chicago, IL 60606
Attention: James R. Fayen
Telephone No.: (312) 621-0397
Facsimile No.: (312) 621-3386
PAYMENT ADDRESS FOR DOLLARS:
The Fuji Bank, Limited - New York Branch
ABA # 026-009-700
Account No.: 515060
Ref: Brightpoint
Attention: Loan Administration
EUROCURRENCY PAYMENT ADDRESS:
Same as Above
S-11
<PAGE> 165
NATIONAL CITY BANK OF INDIANA
as a Lender
By: /s/ Ed G.Watson, Jr.
---------------------------------------
Name: Ed G.Watson, Jr.
----------------------------------
Title: Senior Vice President
---------------------------------
NOTICE ADDRESS:
National City Bank of Indiana
One National City Center
Suite 200E
Indianapolis, IN 46255
Attention: Tom Groh
Telephone No.: (317) 267-7422
Facsimile No.: (317) 267-6249
PAYMENT ADDRESS FOR DOLLARS:
National City Bank of Indiana
One National City Center
Indianapolis, IN 46255
ABA #: 0740-0006-5
Ref: G/L #151804
Attention: Commercial Loan Operations
For further credit to: Brightpoint
EUROCURRENCY PAYMENT ADDRESS:
Same as above
S-12
<PAGE> 166
SCHEDULE 1.1.1
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Existing Letters of Credit
For Brightpoint, Inc.:
1. $8,000,000 standby letter of credit issued by Bank One, Indiana,
National Association, with expiry date of September 30, 1999.
Beneficiary is Nokia (HK) Ltd.
2. $7,500,000 standby letter of credit issued by Bank One, Indiana,
National Association, with expiry date of January 15, 2000. Beneficiary
is American International Specialty Lines Insurance Co.
3. $2,000,000 standby letter of credit issued by ABN AMRO Bank, with
expiry date of August 16, 1999. Beneficiary is Nokia (HK) Ltd.
4. $2,000,000 standby letter of credit issued by Bank One, Indiana,
National Association, with expiry date of September 30, 1999.
Beneficiary is Nokia (HK) Ltd.
5. $750,000 standby letter of credit issued by Bank One, Indiana, National
Association, with expiry date of September 30, 1999. Beneficiary is
Nokia (HK) Ltd.
6. $167,488 commercial letter of credit issued by Bank One, Indiana,
National Association, with expiry date of August 16, 1999. Beneficiary
is Kyocera Corporation.
<PAGE> 167
SCHEDULE 1.1.2
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Permitted Existing Contingent Obligations
The Permitted Existing Obligations consist of the various contingent obligations
incurred in connection with the acquisition of the companies set forth on
Exhibit A attached hereto, but only to the extent such amounts do not exceed the
limits set forth in Section 5.18 of the Second Amended and Restated Credit
Agreement for Contingent Purchase Price Obligations. The contingent payments are
based on the performance of the companies that were acquired. Exhibit A sets
forth the maximum additional cash payment required if certain performance
criteria are met. The performance criteria vary for each acquisition and are set
forth in the acquisition documents.
<PAGE> 168
EXHIBIT A
TO SCHEDULE 1.1.2 TO
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
(EARNOUT CONSIDERATION)
<TABLE>
<CAPTION>
COMPANY CASH
LOCATION CONSIDERATION
-------- -------------
<S> <C>
CellDirect - New Zealand $ 135,000
Function Communications - Taiwan $ 3,149,000
Axess Communications - Netherlands $ 6,000,000
CT3 - Venezuela $ 7,490,000
Cellular Services - Brazil $ 20,000,000
-------------
TOTAL $ 36,774,000
</TABLE>
<PAGE> 169
SCHEDULE 1.1.3
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Permitted Existing Indebtedness
Brightpoint Sweden Aktiebolag SEK 15,000,000 (approx. US $1,798,000) bank
overdraft facility with Skandinaviska Enskilda Banken (Sweden). Secured with a
Brightpoint, Inc. guarantee and maturing on 12/31/99.
Brightpoint do Brasil Ltda. BRL 2,000,000 (approx. US $1,099,000) vendor support
line of credit with Banco Industrial do Brasil S.A. (Brazil). Maturing on
07/30/99.
<PAGE> 170
SCHEDULE 1.1.4
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Permitted Existing Investments
<TABLE>
<CAPTION>
ENTITIES INVESTOR COST
- -------- -------- -------------
<S> <C> <C>
Brightpoint FSC, Inc. Brightpoint, Inc. $ 3,081
Brightpoint North America, Inc. Brightpoint, Inc. 1,000
Brightpoint JBA, LLC Brightpoint, Inc. 0
Brightpoint International Ltd. Brightpoint, Inc. 165,819,000
Brightpoint Global Access, Inc. Brightpoint, Inc. 0
Wireless Fulfillment Services LLC Brightpoint, Inc./ 1,700,000
Brightpoint International Ltd.
Brightpoint Latin America Holdings, Inc. Brightpoint, Inc. 73,280,000
EURO-PHONE Sp. z o.o. Brightpoint, Inc./ 0
Brightpoint International Ltd.
JB Associates, LLC Brightpoint JBA, LLC 0
Brightpoint International Holdings B.V. Brightpoint International Ltd. 0
Brightpoint Middle East FZE Brightpoint International Ltd. 0
Brightpoint do Brasil Ltda. Brightpoint Latin America Holdings, Inc. 18,085,000
Brightpoint de Venezuela C.A. Brightpoint Latin America Holdings, Inc. 18,630,000
Brightpoint de Argentina S.A. Brightpoint Latin America Holdings, Inc. 0
Brightpoint de Mexico S.A. de C.V. Brightpoint Latin America Holdings, Inc. 16,568,000
Servicios Brightpoint de Mexico S.A. de C.V. Brightpoint Latin America Holdings, Inc. 0
Brightpoint Solutions de Mexico S.A. de C.V. Brightpoint Latin America Holdings, Inc. 0
Brightpoint Holdings B.V. Brightpoint International Holdings B.V. 165,819,000
Brightpoint (France) SARL Brightpoint Holdings B.V. 8,068,000
Eurocom Systems Brightpoint Holdings B.V. 0
Brightpoint Sweden Aktiebolag Brightpoint Holdings B.V. 10,535,000
</TABLE>
<PAGE> 171
<TABLE>
<CAPTION>
ENTITIES INVESTOR COST
- -------- -------- -------------
<S> <C> <C>
Brightpoint Germany GmbH Brightpoint Holdings B.V. $ 7,550,000
Brightpoint B.V. Brightpoint Holdings B.V. 12,687,000
Brightpoint (Ireland) Limited Brightpoint Holdings B.V. 16,190,000
Brightpoint EMA Limited Brightpoint Holdings B.V. 0
Brightpoint Polska Sp. z o.o. Brightpoint Holdings B.V. 0
Brightpoint Netherlands Holdings B.V. Brightpoint Holdings B.V. 12,687,000
Brightpoint Holdings Belgium Brightpoint Holdings B.V. 16,000
Brightpoint Unit Trust Brightpoint Holdings B.V. 0
Brightpoint New Zealand Limited Brightpoint Holdings B.V. 1,795,000
Brightpoint Australasia Pty. Limited Brightpoint Holdings B.V. 0
Brightpoint India Private Limited Brightpoint Holdings B.V. 0
Brightpoint China Limited Brightpoint Holdings B.V. 37,503,000
Brightpoint International (Asia Pacific)
Pte Ltd Brightpoint Holdings B.V. 0
Brightpoint Philippines, Inc. Brightpoint Holdings B.V. 3,480,000
Winning Land Company Limited Brightpoint Holdings B.V. 0
Brightpoint Taiwan Limited Brightpoint Holdings B.V. 11,133,000
Brightpoint GmbH Brightpoint Germany GmbH 6,055,000
Axess Communications Sp. z o.o. Brightpoint B.V. 0
Brightpoint (South Africa) (Proprietary)
Limited Brightpoint EMA Limited 9,978,000
Brightpoint (UK) Limited Brightpoint EMA Limited 16,958,000
Brightpoint Australia Pty Ltd Brightpoint International (Asia 23,365,000
Pacific) Pte Ltd
R.P.S. Industries Company Ltd. Brightpoint International (Asia 350,000
Pacific) Pte Ltd
UK Finco Limited Partnership Brightpoint (UK) Limited/ 0
Brightpoint Netherlands Holdings B.V.
</TABLE>
<PAGE> 172
<TABLE>
<CAPTION>
ENTITIES INVESTOR COST
- -------- -------- -------------
<S> <C> <C>
Brightpoint Zimbabwe (Private) Limited Brightpoint (South Africa) $ 172,000
(Proprietary) Limited
Brightpoint Taiwan Winning Land Company Limited 0
Brightpoint Norway Brightpoint Sweden Aktiebolag 0
Brightpoint International Trading Brightpoint China Limited 0
(Shanghai) Co., Ltd.
</TABLE>
<PAGE> 173
SCHEDULE 1.1.5
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Permitted Existing Liens
Those matters described on Exhibits attached hereto and made a part hereof for
all purposes.
<PAGE> 174
SCHEDULE 1.1.6
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Existing Alternate Currency Addenda
The following Alternate Currency Addenda are attached hereto and made a part
hereof for all purposes.
Brightpoint Australia Pty Limited
Brightpoint China Limited
Winning Land Company Limited
<PAGE> 175
SCHEDULE 5.17 - EXHIBIT A
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
<TABLE>
<CAPTION>
Location Coverage Policy Dates Broker
<S> <C> <C> <C> <C>
BRIGHTPOINT NA GL 3533-38-69 8/1/98-8/1/99 Consolidated
6402 Corporate N. Dr. WC 7163-74-31 " "
Indianapolis, IN Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT NA GL 3533-38-69 8/1/98-8/1/99 Consolidated
5728 W. 71st St. WC 7163-74-31 " "
Indianapolis, IN Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT NA GL 3533-38-69 8/1/98-8/1/99 Consolidated
8210 Allison Avenue WC 7163-74-31 " "
Indianapolis, IN Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT NA GL 3533-38-69 8/1/98-8/1/99 Consolidated
6049 Lakeside Blvd WC 7163-74-31 " "
Indianapolis, IN Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT NA GL 3533-38-69 8/1/98-8/1/99 Consolidated
2996 Samuel Drive WC 7163-74-31 " "
Bensalem, PA Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT NA GL 3522-38-69 8/1/98-8/1/99 Consolidated
1450 W. Greg St, Ste.#104 WC WORKERS COMPENSATION IS HANDLED BY THE NEVADA STATE FUND
Sparks, NV Auto (97) 7322-54-77 8/1/98-8/1/99 Consolidated
Property 3533-38-69 " "
BRIGHTPOINT/WIRELESS ST GL 3533-38-69 8/1/98-8/1/99 Consolidated
65 Koch Rd. Ste. A&D-K WC 7163-74-31 " "
Corte Madera, CA Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT/WIRELESS ST GL 3533-38-69 8/1/98-8/1/99 Consolidated
5725 Paradise Drive WC 7163-74-31 " "
Corte Madera, CA Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT/WIRELESS ST GL 3533-38-69 8/1/98-8/1/99 Consolidated
15 Koch Rd., #A WC 7163-74-31 " "
Corte Madera, CA Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT/WIRELESS ST GL 3533-38-69 8/1/98-8/1/99 Consolidated
100 Meadowcreek Dr WC 7163-74-31 " "
Corte Madera, CA Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
BRIGHTPOINT LA GL 3533-38-69 8/1/98-8/1/99 Consolidated
1572-3 N.W. 82nd St. WC 7163-74-31 " "
Miami, FL Auto (97) 7322-54-77 " "
Property 3533-38-69 " "
<CAPTION>
Location Carrier Limits Premium
<S> <C> <C> <C>
BRIGHTPOINT NA Federal Insurance Co $1M $ 70,290.00
6402 Corporate N. Dr. Chubb Group $1M $ 78,147.00
Indianapolis, IN " $1M $ 3,750.00
Federal Insurance Co $225M Blanket $140,200.00
BRIGHTPOINT NA Federal Insurance Co $1M incl
5728 W. 71st St. Chubb Group $1M incl
Indianapolis, IN " $1M incl
Federal Insurance Co $225M Blanket incl
BRIGHTPOINT NA Federal Insurance Co $1M incl
8210 Allison Avenue Chubb Group $1M incl
Indianapolis, IN " $1M incl
Federal Insurance Co $225M Blanket incl
BRIGHTPOINT NA Federal Insurance Co $1M incl
6049 Lakeside Blvd Chubb Group $1M incl
Indianapolis, IN " $1M incl
Federal Insurance Co $225M Blanket incl
BRIGHTPOINT NA Federal Insurance Co $1M incl
2996 Samuel Drive Chubb Group $1M incl
Bensalem, PA " $1M incl
Federal Insurance Co $225M Blanket incl
BRIGHTPOINT NA Federal Insurance Co $1M incl
1450 W. Greg St, Ste.#104 STATUTORY incl
Sparks, NV Chubb Group $1M incl
Federal Insurance Co $225M Blanket incl
BRIGHTPOINT/WIRELESS ST Federal Insurance Co $1M incl
65 Koch Rd. Ste. A&D-K Chubb Group $1M incl
Corte Madera, CA " $1M incl
Federal Insurance Group $225M Blanket incl
BRIGHTPOINT/WIRELESS ST Federal Insurance Group $1M incl
5725 Paradise Drive Chubb Group $1M incl
Corte Madera, CA " $1M incl
Federal Insurance Group $225M Blanket incl
BRIGHTPOINT/WIRELESS ST Federal Insurance Group $1M incl
15 Koch Rd., #A Chubb Group $1M incl
Corte Madera, CA " $1M incl
Federal Insurance Group $225M Blanket incl
BRIGHTPOINT/WIRELESS ST Federal Insurance Group $1M incl
100 Meadowcreek Dr Chubb Group $1M incl
Corte Madera, CA " $1M incl
Federal Insurance Group $225M Blanket incl
BRIGHTPOINT LA Federal Insurance Co $1M incl
1572-3 N.W. 82nd St. Chubb Group $1M incl
Miami, FL " $1M incl
Federal Insurance Co $225M Blanket incl
</TABLE>
NOTE: THE PROPERTY POLICY CONTAINS A $20 MILLION BLANKET SUBLIMIT FOR BUSINESS
INTERRUPTION COVERAGE AT ALL LOCATIONS ON THIS SCHEDULE.
NOTE: DOMESTIC CREDIT RISK INSURANCE IS PROVIDED BY AMERICAN CREDIT INDEMNITY
UNDER POLICY NUMBER 352529R WITH EFFECTIVE DATES 4/1/99 THROUGH 3/31/00
AND A $25 MILLION LIMIT
<PAGE> 176
SCHEDULE 5.17
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Insurance
The Insurance is described on Exhibit A attached hereto and made a part hereof
for all purposes.
<PAGE> 177
SCHEDULE 5.20
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Labor Matters; Compensation
Material Consulting Agreements:
1. Lucent Technologies
2. SunGard Recovery Services Inc.
Benefit Plans:
1. 1994 Stock Option Plan of Brightpoint, Inc.
2. 1996 Stock Option Plan of Brightpoint, Inc.
3. Non-Employee Directors Stock Option Plan
4. Brightpoint, Inc. Employee Savings Plan (401(k))
5. Employee Group Life Plan
6. Employee Health Plan
7. Employee Stock Purchase Plan
The following employees have a base salary equal to or greater than $200,000:
1. Andre Cunha 7. Robert Schumacher
2. Paul Fanelli 8. Dave Taylor
3. J. Mark Howell 9. Bruce Thomlinson
4. Robert J. Laikin 10. Anders Torstensson
5. Eric Leung Chi Kong 11. Segall Weate
6. Phillip Bounsall 12. Albert Wu
<PAGE> 178
SCHEDULE 5.21
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Environmental Matters
NONE
<PAGE> 179
SCHEDULE 5.3
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Conflicts and Governmental Consents
NONE
<PAGE> 180
SCHEDULE 5.4(A)
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Financial Statements
See attached.
<PAGE> 181
SCHEDULE 5.7
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Litigation and Loss Contingencies
Brightpoint is a defendant in two cases filed in June, 1999,
in the United States District Court for the Southern District of Indiana
entitled Sakhrani et al. v. Brightpoint, Inc., et al., Cause No. IP
99-0870-C-H/G and Clark et al. v. Brightpoint, Inc., et al., Cause No. IP
99-0943-C-H/G. Both cases purport to assert claims under Section 10(b) of the
Securities Exchange Act of 1934 and SEC Rule 10b-5 based on allegations that
defendants rendered false and misleading statements and/or omissions concerning
the present and future financial condition and business prospects of the
company. The cases purport to be brought on behalf of a class consisting of
purchasers of Brightpoint stock during the period October 2, 1998 through March
10, 1999. Also named as defendants are certain officers and directors of
Brightpoint, Inc. who are alleged to be liable as "controlling persons" under
Section 20(a) of the 1934 Act. Defendants' response to these complaints is not
yet due.
<PAGE> 182
SCHEDULE 5.8
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
<TABLE>
<CAPTION>
%
ENTITIES JURISDICTION INVESTOR OWNED
- -------- ------------ -------- -----
<S> <C> <C> <C>
Brightpoint FSC, Inc. Barbados Brightpoint, Inc. 100%
Brightpoint North America, Inc. Indiana Brightpoint, Inc. 100%
Brightpoint JBA, LLC Indiana Brightpoint, Inc. 100%
Brightpoint International Ltd. Delaware Brightpoint, Inc. 100%
Brightpoint Global Access, Inc. Indiana Brightpoint, Inc. 100%
Wireless Fulfillment Services LLC California Brightpoint, Inc./ 99%
Brightpoint International Ltd. 1%
Brightpoint Latin America Holdings, Inc. Indiana Brightpoint, Inc. 100%
EURO-PHONE Sp. z o.o. Poland Brightpoint, Inc./ 1%
Brightpoint International Ltd. 99%
JB Associates, LLC Brightpoint JBA, LLC 50%
Brightpoint International Holdings B.V. Netherlands Brightpoint International Ltd. 100%
Brightpoint Middle East FZE Jebel Ali Brightpoint International Ltd. 100%
Brightpoint do Brasil Ltda. Brazil Brightpoint Latin America 100%
Holdings, Inc.
Brightpoint de Venezuela C.A. Venezuela Brightpoint Latin America 100%
Holdings, Inc.
Brightpoint de Argentina S.A. Argentina Brightpoint Latin America 100%
Holdings, Inc.
Brightpoint de Mexico S.A. de C.V. Mexico Brightpoint Latin America 100%
Holdings, Inc.
Servicios Brightpoint de Mexico Mexico Brightpoint Latin America 100%
S.A. de C.V. Holdings, Inc.
Brightpoint Solutions de Mexico Mexico Brightpoint Latin America 100%
S.A. de C.V. Holdings, Inc.
Brightpoint Holdings B.V. Netherlands Brightpoint International 100%
Holdings B.V.
</TABLE>
<PAGE> 183
<TABLE>
<CAPTION>
%
ENTITIES JURISDICTION INVESTOR OWNED
- -------- ------------ -------- -----
<S> <C> <C> <C>
Brightpoint (France) SARL France Brightpoint Holdings B.V. 100%
Eurocom Systems France Brightpoint Holdings B.V. 100%
Brightpoint Sweden Aktiebolag Sweden Brightpoint Holdings B.V. 100%
Brightpoint Germany GmbH Germany Brightpoint Holdings B.V. 100%
Brightpoint B.V. Netherlands Brightpoint Holdings B.V. 100%
Brightpoint (Ireland) Limited Ireland Brightpoint Holdings B.V. 100%
Brightpoint EMA Limited United Kingdom Brightpoint Holdings B.V. 100%
Brightpoint Polska Sp. z o.o. Poland Brightpoint Holdings B.V. 100%
Brightpoint Netherlands Holdings B.V. Netherlands Brightpoint Holdings B.V. 100%
Brightpoint Holdings Belgium Belgium Brightpoint Holdings B.V. 100%
Brightpoint Unit Trust Australia Brightpoint Holdings B.V. 100%
Brightpoint New Zealand Limited New Zealand Brightpoint Holdings B.V. 100%
Brightpoint Australasia Pty. Limited Australia Brightpoint Holdings B.V. 100%
Brightpoint India Private Limited India Brightpoint Holdings B.V. 100%
Brightpoint China Limited Hong Kong Brightpoint Holdings B.V. 100%
Brightpoint International (Asia Pacific)
Pte Ltd Singapore Brightpoint Holdings B.V. 100%
Brightpoint Philippines, Inc. Philippines Brightpoint Holdings B.V./ 100%
Various Directors
Winning Land Company Limited Taiwan Brightpoint Holdings B.V. 100%
Brightpoint Taiwan Limited Taiwan Brightpoint Holdings B.V. 100%
Brightpoint GmbH Germany Brightpoint Germany GmbH 100%
Axess Communications Sp. z o.o. Poland Brightpoint B.V. 100%
Brightpoint (South Africa) (Proprietary)
Limited South Africa Brightpoint EMA Limited 100%
Brightpoint (UK) Limited United Kingdom Brightpoint EMA Limited 100%
Brightpoint Australia Pty Ltd Australia Brightpoint International (Asia 100%
Pacific) Pte Ltd
</TABLE>
<PAGE> 184
<TABLE>
<CAPTION>
%
ENTITIES JURISDICTION INVESTOR OWNED
- -------- ------------ -------- -----
<S> <C> <C> <C>
R.P.S. Industries Company Ltd. Hong Kong Brightpoint International (Asia 67%
Pacific) Pte Ltd
UK Finco Limited Partnership United Kingdom Brightpoint (UK) Limited/ 100%
Brightpoint Netherlands Holdings B.V.
Brightpoint Zimbabwe (Private) Limited Zimbabwe Brightpoint (South Africa) 55%
(Proprietary) Limited
Brightpoint Taiwan Taiwan Winning Land Company Limited 100%
Brightpoint Norway Norway Brightpoint Sweden Aktiebolag 100%
Brightpoint International Trading Hong Kong Brightpoint China Limited 100%
(Shanghai) Co., Ltd.
</TABLE>
<PAGE> 185
SCHEDULE 6.3(F)
TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
Permitted Restricted Junior Payments
*Capitalized terms used herein and not otherwise defined shall have the same
meanings ascribed to them in the Amended and Restated Multicurrency Credit
Agreement.
1. Any employee stock option or stock-based compensation plans, of
Brightpoint, BPI, any Subsidiary Borrower, and any Guarantor, now
existing or hereafter implemented from time to time in the ordinary
course of business, as any of the same may be amended from time to time
and at any time.
2. Those amounts, if any, which may become due and payable to former
shareholders (collectively, the "Allied Shareholders") of any of 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 ,
the "Allied Companies"), arising pursuant to or in connection with any
undertaking by Brightpoint, Inc. to indemnify and hold harmless the
Allied Shareholders from and against any tax obligations or liabilities
which may be asserted or imposed against any of the Allied Shareholders
on account of income earned by any of the Allied Companies prior to
June 7, 1996.
3. Any issuance of stock by Brightpoint as payment for, or pursuant to the
conversion of, the LYONS(TM).
<PAGE> 1
EXHIBIT 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of July 1, 1999
between BRIGHTPOINT, INC., a Delaware corporation (the "Employer" or the
"Company"), and Robert J. Laikin (the "Employee").
WHEREAS, the Employer and the Employee entered into an
employment agreement (the "Employment Agreement") on December 1, 1996, which
has been amended from time to time since such date;
WHEREAS, Employer and Employee wish to amend the Employment
Agreement further and to restate such Employment Agreement to include all
amendments made to date;
NOW, THEREFORE, the Employer and Employee hereby amend and
restate the Employment Agreement to read in its entirety as follows:
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Employee as its
Chairman of the Board and Chief Executive Officer and to be assured of his
services as such on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
1. Term. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer for a five-year period commencing
effective as of the date of this Agreement (the "Effective Date") (such period
being herein referred to as the "Initial Term," and any year commencing on the
Effective Date or any anniversary of the Effective Date being hereinafter
referred to as an "Employment Year"). After the Initial Term, this Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than thirty days
prior to the expiration of the Initial Term or any Renewal Term, either the
Employee or the Company give written notice that employment will not be renewed
("Notice of Non-Renewal"), whereupon (i) if the Employee gives the Notice of
Non-Renewal, the term of the Employee's employment shall terminate upon the
expiration of the Initial Term or the then current Renewal Term, as the case
may be, or (ii) if the Company gives the Notice of Non-Renewal or terminates
this Agreement without Cause, the term of the Employee's employment shall be
for a final five (5) year period (the "Final Renewal
<PAGE> 2
Term"), commencing effective at the date of the Notice of Non-Renewal, unless
sooner terminated pursuant to Section 6 hereof.
2. Employee Duties.
A. During the term of this Agreement, the Employee
shall have the duties and responsibilities of Chairman of the Board and Chief
Executive Officer of the Employer, reporting directly to the Board of Directors
of the Employer (the "Board"). It is understood that such duties and
responsibilities shall be reasonably related to the Employee's position.
B. The Employee shall devote substantially all of
his business time, attention, knowledge and skills faithfully, diligently and
to the best of his ability, in furtherance of the business and activities of
the Company. The principal place of performance by the Employee of his duties
hereunder shall be the Company's principal executive offices or such other
place as the Board shall determine, although the Employee may be required to
travel outside of the area where the Company's principal executive offices are
located in connection with the business of the Company.
3. Compensation.
A. During the term of this Agreement, the Employer
shall pay the Employee a salary (the "Salary") at a rate of $350,000 per annum
in respect of each Employment Year, payable in equal monthly installments on
the first day of each month, or at such other times as may mutually be agreed
upon between the Employer and the Employee. Such Salary may be increased from
time to time at the discretion of the Board.
B. In addition to the foregoing, the Employee shall
be entitled to such other cash bonuses and such other compensation in the form
of stock, stock options or other property or rights as may from time to time be
awarded to him by the Board during or in respect of his employment hereunder.
4. Benefits.
A. During the term of this Agreement, the Employee
shall have the right to receive or participate in all benefits and plans which
the Company may from time to time institute during such period for its
employees and for which the Employee is eligible. Nothing paid to the Employee
under any plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of the salary or any other obligation
payable to the Employee pursuant to this Agreement.
B. During the term of this Agreement, the Employee
will be entitled to the number of paid holidays,
-2-
<PAGE> 3
personal days off, vacation days and sick leave days in each calendar year as
are determined by the Company from time to time. Such vacation may be taken in
the Employee's discretion with the prior approval of the Employee, and at such
time or times as are not inconsistent with the reasonable business needs of the
Company.
5. Travel Expenses. All travel and other expenses
incident to the rendering of services reasonably incurred on behalf of the
Company by the Employee during the term of this Agreement shall be paid by the
Employer provided that such expenses are preapproved by the President of the
Company. If any such expenses are paid in the first instance by the Employee,
the Employer shall reimburse him therefor on presentation of appropriate
receipts for any such expenses.
6. Termination. Employee's employment under this
Agreement may be terminated without any breach of this Agreement only on the
following circumstances:
6.1. Death. The Employee's employment under this
Agreement shall terminate upon his death.
6.2. Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, the Employee shall have been
absent from his duties under this Agreement for 150 calendar days during any
calendar year, the Employer may terminate the Employee's employment under this
Agreement.
6.3. Cause. The Employer may terminate the
Employee's employment under this Agreement for Cause. For purposes of this
Agreement, the Employer shall have "Cause" to terminate the Employee's
employment under this Agreement upon (a) the willful and continued failure by
the Employee to substantially perform his duties under this Agreement (other
than any such failure resulting from the Employee's incapacity due to physical
or mental illness) after demand for substantial performance is delivered by the
Employer, in writing, specifically identifying the manner in which the Employer
believes the Employee has not substantially performed his duties and the
Employee fails to perform as required within 15 days after such demand is made,
(b) the willful engaging by the Employee in criminal misconduct (including
embezzlement and criminal fraud) which is materially injurious to the Employer,
monetarily or otherwise or (c) the conviction of the Employee of a felony. For
purposes of this paragraph, no act, or failure to act, on the Employee's part
shall be considered "willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Employer.
-3-
<PAGE> 4
Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of
the Board (other than the Employee) at a meeting of the Board called and held
for such purpose (after reasonable written notice to the Employee and an
opportunity for him, together with his counsel, to be heard before the Board),
finding that in the good faith opinion of the Board, the Employee was guilty of
conduct set forth above in clause (a), (b) or (c), and specifying the
particulars thereof in detail.
6.4. Termination by the Employee for Good Reason,
Upon a Change of Control or Because of Ill Health. The Employee may terminate
his employment under this Agreement (a) for Good Reason (as hereinafter
defined), (b) at any time within twelve months after a Change of Control, or
(c) if his health should become impaired to any extent that makes the continued
performance of his duties under this Agreement hazardous to his physical or
mental health or his life, provided that, in the latter case, the Employee
shall have furnished the Employer with a written statement from a qualified
doctor to such effect and provided, further, that at the Employer's request and
expense the Employee shall submit to an examination by a doctor selected by the
Employer and such doctor shall have concurred in the conclusion of the
Employee's doctor.
6.4.1. Good Reason. For purposes of this
Agreement, "Good Reason" shall mean (a) any assignment to the Employee of any
duties or reporting obligations other than those contemplated by, or any
limitation of the powers of the Employee in any respect not contemplated by,
this Agreement, (b) failure by the Employer to comply with its material
obligations and agreements contained in this Agreement, or (c) failure of the
Employer to obtain the assumption of the agreement to perform this Agreement by
any successor as contemplated in Section 9(f) of this Agreement. With respect
to the matters set forth in clauses (a), (b) and (c) of this paragraph, the
Employee must give the Employer 30 days prior written notice of his intent to
terminate this Agreement as a result of any breach or alleged breach of the
applicable provision and the Employer shall have the right to cure any such
breach or alleged breach within such 30 day period.
6.4.2. Change of Control. For purposes of this
Agreement, a "Change of Control" shall be deemed to occur, unless previously
consented to in writing by the Employee, upon (a) individuals who, as of the
date hereof, constitute the Board of Directors of the Employer (the "Incumbent
Board") ceasing for any reason to constitute at least a majority of the Board
of Directors of the Employer (the "Board"); provided, however, that any
individual becoming a director subsequent to the date hereof
-4-
<PAGE> 5
whose election, or nomination for election by the Employer's shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) or other actual or threatened solicitation of
proxies or consents by or on behalf of a person other than the Board; (b) the
acquisition of beneficial ownership (as determined pursuant to Rule 13d-3
promulgated under the Exchange Act) of 15% or more of the voting securities of
the Employer by any person, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) not affiliated with the Employee or
the Employer; provided, however, that no Change of Control shall be deemed to
have occurred for purposes of this Agreement if such person, entity or group
acquires beneficial ownership of 15% or more of the voting securities of the
Employer (i) as a result of a combination of the Employer or a wholly-owned
subsidiary of the Employer with such person, entity or group or another entity
owned or controlled by such person, entity or group (whether effected by a
merger, consolidation, sale of assets or exchange of stock or otherwise) (a
"Combination") and (ii) (x) executive officers of the Employer (as designated
by the Board for purposes of Section 16 of the Exchange Act) immediately prior
to the Combination constitute not less than 50% of the executive officers of
the Employer for a period of not less than six (6) months after the Combination
(for purposes of calculating the executive officers of the Employer after the
Combination, those executive officers who are terminated by the Employer for
Cause or who terminate their employment without Good Reason shall be excluded
from the calculation entirely), and (y) the members of the Incumbent Board
immediately prior to the Combination constitute not less than 50% of the
membership of the Board after the Combination and (z) after the Combination,
more than 35% of the voting securities of the Employer is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners of the outstanding voting
securities of the Employer immediately prior to the Combination, it being
understood that while the existence of a Change in Control pursuant to this
Section 6.4.2(b) may not be ascertainable for six (6) months after the
Combination, if it is ultimately determined that such Combination constituted a
Change in Control, the date of the Change of Control shall be the effective
date of the Combination; (c) the commencement of a proxy contest against the
management for the election of a majority of the Board of the Employer if the
group conducting the proxy contest owns, has or gains the power to vote at
least 15% of the voting securities of the Employer; (d) the consummation of a
reorganization, merger or consolidation, or the sale, transfer or conveyance of
all or substantially all of the assets of the
-5-
<PAGE> 6
Employer to any person or entity not affiliated with the Employee or the
Employer unless, following such reorganization, merger, consolidation, sale,
transfer or conveyance, the conditions set forth in clause (b)(ii) above are
present; or (e) the complete liquidation or dissolution of the Employer.
7. Notice of Termination.
Any termination of the Employee's employment by the Employer
or by the Employee (other than termination by reason of the Employee's death)
shall be communicated by written Notice of Termination to the other party of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
8. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's
employment is terminated by his death, the date of his death, (b) if the
Employee's employment is terminated pursuant to Section 6.2 above, the date on
which the Notice of Termination is given, (c) if the Employee's employment is
terminated pursuant to Section 6.3 above, the date specified on the Notice of
Termination after the expiration of any cure periods and (d) if the Employee's
employment is terminated for any other reason, the date on which a Notice of
Termination is given after the expiration of any cure periods.
9. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason
of his death, the Employer shall pay to such person as he shall designate in
notice filed with the Employer, or if no such person shall be designated, to his
estate as a lump sum benefit, his full Salary to the date of his death in
addition to any payments to the Employee's spouse, beneficiaries or estate may
be entitled to receive pursuant to any pension or employee benefit plan or life
insurance policy or similar plan or policy then maintained by the Employer, and
such payments shall, assuming the Employer is in compliance with the provisions
of this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
the Employee shall continue to
-6-
<PAGE> 7
receive his Salary until the Employee's employment is terminated pursuant to
Section 6.2 of this Agreement, or until the Employee terminates his employment
pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After
termination, the Employee shall be paid, in equal monthly installments, 100% of
his Salary, at the rate in effect at the time Notice of Termination is given,
for one year, and thereafter for one additional year at an annual rate equal to
50% of the Salary which would have been in effect under this Agreement, plus, in
each case, any disability payments otherwise payable by or pursuant to plans
provided by the Employer. To the extent physically and mentally capable of so
doing without potentially impairing or damaging his health, the Employee shall
provide consulting services to the Employer during the period that he is
receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for
Cause, the Employer shall pay the Employee his full Salary through the Date of
Termination, at the rate in effect at the time Notice of Termination is given,
and the Employer shall, assuming the Employer is in compliance with the
provisions of this Agreement, have no further obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall
terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3
hereof (it being understood that a purported termination pursuant to Section 6.2
or 6.3 hereof which is disputed and finally determined not to have been proper
shall be a termination by the Employer in breach of this Agreement), including
as a result of a Change of Control, or (B) the Employee shall terminate his
employment for Good Reason or at any time within twelve months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in
lieu of any further payments pursuant to Section 3 of this Agreement), Severance
Pay (as hereinafter defined), payable on the first day following the Date of
Termination, as follows:
(A) if the Employee, without Good Reason, terminates
his employment at any time within twelve months after a Change of Control
(provided that if the Change of Control is pursuant to Section 6.4.2(b) of this
Agreement, it is ascertainable on the date of such Termination that such Change
of
-7-
<PAGE> 8
Control has occurred), or if, prior to and not as a result of a Change of
Control, the Employee's employment is terminated either by the Employee for Good
Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a
lump sum amount equal to the highest of (a) $1,250,000 or (b) total compensation
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) received or earned by the Employee from the Employer during
the twelve months prior to the Termination Date, multiplied by five (5), or
(B) if after or as a result of a Change of Control,
the Employee's employment is terminated either by the Employee for Good Reason
or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to ten (10) times: (i) the total compensation, (including the value
of all perquisites, such as health and life insurance and car allowance, etc.)
and (ii) the value of all stock options, granted to Employee by the Employer,
during the twelve (12) months prior to such Date of Termination (in case of
either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be
entitled as result of the termination of his employment under this Agreement,
including all legal fees and expenses incurred by him in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
The amount (if any) payable pursuant to this Section
9(d) (the "Severance Total") shall be increased by an amount (the "Increase")
sufficient so that after the payment by the Employee of (A) any income taxes on
the Increase and (B) any excise tax on the sum of (I) the Severance Total and
(II) the Increase, the Employee shall have received an amount (net of such
taxes) equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover any excise and income taxes payable on said amount) and shall
not be required to repay to the Employer any amount which is ultimately and
finally determined by the Internal Revenue Service (or an appropriate court) to
have been in excess of the amount permitted to be received without incurring
such excise tax, and Employer agrees to use its best efforts to support the
Employee's position that such amounts are not subject to excise tax in any
dispute with the Internal Revenue Service or in any other administrative or
judicial proceedings.
(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an investment bank
reasonably acceptable to both Company and Employee. The fees for such valuation
will be paid by the Company.
-8-
<PAGE> 9
(e) The Employee shall not be required to mitigate the amount
of any payment provided for in this Section 9 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 9 be
reduced by any compensation earned by the Employee as the result of employment
by another employer or business or by profits earned by the Employee from any
other source at any time before and after the Date of Termination.
(f) The Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such Agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Employer" shall mean the Employer and
any successor to its business and/or assets which executes the Agreement or
which otherwise becomes bound by the terms and conditions of this Agreement by
operation of law.
(g) (A) Upon the occurrence of a Change of Control, or (B) if
in breach of this Agreement, the Employer shall terminate the Employee's
employment other than pursuant to Sections 6.2 or 6.3 hereof (it being
understood that a purported termination pursuant to Section 6.2 or 6.3 hereof
which is disputed and finally determined not to have been proper shall be a
termination by the Employer in breach of this Agreement), or (C) if the Employee
shall terminate his employment for Good Reason at any time, then notwithstanding
the vesting and exercisability schedule in any stock option agreement between
the Employer and Employee, all unvested stock options granted by the Employer to
the Employee pursuant to such agreement shall immediately vest and become
exercisable and shall remain exercisable for not less than 180 days thereafter.
10. Confidentiality; Noncompetition.
(a) The Employer and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique and
extraordinary and, as a result of such employment, the Employee will be in
possession of confidential information relating to the business practices of the
Company. The term "confidential information" shall mean any and all information
(verbal and written) relating to the Company or any
-9-
<PAGE> 10
of its affiliates, or any of their respective activities, other than such
information which can be shown by the Employee to be in the public domain (such
information not being deemed to be in the public domain merely because it is
embraced by more general information which is in the public domain) other than
as the result of breach of the provisions of this Section 10(a), including, but
not limited to, information relating to: trade secrets, personnel lists,
financial information, research projects, services used, pricing, customers,
customer lists and prospects, product sourcing, marketing and selling and
servicing. The Employee agrees that he will not, during or for a period of two
years after the termination of employment, directly or indirectly, use,
communicate, disclose or disseminate to any person, firm or corporation any
confidential information regarding the clients, customers or business practices
of the Company acquired by the Employee during his employment by Employer,
without the prior written consent of Employer; provided, however, that the
Employee understands that Employee will be prohibited from misappropriating any
trade secret (as defined for purposes of Indiana law) at any time during or
after the termination of employment.
(b) The Employee hereby agrees that he shall not, during the
period of his employment and for a period of two (2) years following such
employment, directly or indirectly, within any county (or adjacent county) in
any State within the United States or territory outside the United States in
which the Company is engaged in business during the period of the Employee's
employment or on the date of termination of the Employee's employment, engage,
have an interest in or render any services to any business (whether as owner,
manager, operator, licensor, licensee, lender, partner, stockholder, joint
venturer, employee, consultant or otherwise) competitive with the Company's
business activities.
(c) The Employee hereby agrees that he shall not, during the
period of his employment and for a period of two (2) years following such
employment, directly or indirectly, take any action which constitutes an
interference with or a disruption of any of the Company's business activities
including, without limitation, the solicitations of the Company's customers, or
persons listed on the personnel lists of the Company. At no time during the term
of this Agreement, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of subparagraphs
10(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor,
-10-
<PAGE> 11
licensee or customer who has been previously contacted by either a
representative of the Company, including the Employee, (but only those suppliers
existing during the time of the Employee's employment by the Company, or at the
termination of his employment), to discontinue or alter his, her or its
relationship with the Company.
(e) Upon the termination of the Employee's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
(f) (i) The Employee agrees that all processes, technologies
and inventions ("Inventions"), including new contributions, improvements, ideas
and discoveries, whether patentable or not, conceived, developed, invented or
made by him during his employment by Employer shall belong to the Company,
provided that such Inventions grew out of the Employee's work with the Company
are related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Employee shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventorship;
(ii) If any Invention is described in a patent application
or is disclosed to third parties, directly or indirectly, by the Employee within
two years after the termination of his employment by the Company, it is to be
presumed that the Invention was conceived or made during the period of the
Employee's employment by the Company; and
(iii) The Employee agrees that he will not assert any
rights to any Invention as having been made or acquired by him prior to the date
of this Agreement, except for Inventions, if any, disclosed to the Company in
writing prior to the date hereof.
(g) The Company shall be the sole owner of all products and
proceeds of the Employee's services hereunder, including, but not limited to,
all materials, ideas, concepts, formats, suggestions, developments,
arrangements, packages, programs and other intellectual properties that the
Employee may acquire, obtain, develop or create in connection with and during
the term of the Employee's employment hereunder, free and clear of any claims by
the Employee (or anyone claiming under the Employee) of any kind or character
whatsoever (other than the
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Employee's right to receive payments hereunder). The Employee shall, at the
request of the Company, execute such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or defend its right, or
title and interest in or to any such properties.
(h) The parties hereto hereby acknowledge and agree that (i)
the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 10, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Company shall
be entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach.
(i) The parties hereto hereby acknowledge that, in addition to
any other remedies the Company may have under Section 10(h) hereof, the Company
shall have the right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals, increments or
other benefits (collectively, "Benefits") derived or received by the Employee as
the result of any transactions constituting a breach of any of the provisions of
Section 10, and the Employee hereby agrees to account for any pay over such
Benefits to the Company.
(j) Each of the rights and remedies enumerated in Section
10(h) and 10(i) shall be independent of the other, and shall be severally
enforceable, and all of such rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity.
(k) If any provision contained in this Section 10 is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(l) If any provision contained in this Section 10 is found to
be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(m) It is the intent of the parties hereto that the covenants
contained in this Section 10 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is
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hereby agreed that if any of the provisions of this Section 10 shall be
adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by limiting and
reducing it so as to be enforceable to the extent permissible, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other jurisdiction.
11. Indemnification. The Employer shall indemnify and hold
harmless the Employee against any and all expenses reasonably incurred by him in
connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been
an employee, officer or director of the Company, whether or not he continues to
be such an employee, officer or director at the time of incurring such expenses,
except insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted.
12. General. This Agreement is further governed by the
following provisions:
(a) Notices. All notices relating to this Agreement shall
be in writing and shall be either personally delivered, sent by telecopy
(receipt confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
To the Employer:
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, IN 46278
Attention: Robert J. Laikin
To the Employee:
J. Mark Howell
1013 Summer Hill
Carmel, IN 46032
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With, in either case, a copy in the same manner to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
(b) Parties in Interest. Employee may not delegate his duties
or assign his rights hereunder. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of the Employee by the Employer and contains all of
the covenants and agreements between the parties with respect to such employment
in any manner whatsoever. Any modification or termination of this Agreement will
be effective only if it is in writing signed by the party to be charged.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana. Employee agrees
to and hereby does submit to jurisdiction before any state or federal court of
record in Marion County, Indiana, or in the state and county in which such
violation may occur, at Employer's election.
(e) Warranty. Employee hereby warrants and represents as
follows:
(i) That the execution of this Agreement and the discharge
of Employee's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between Employee and any other party or
parties.
(ii) Employee has ideas, information and know-how relating
to the type of business conducted by Employer, and Employee's disclosure of such
ideas, information and know-how to Employer will not conflict with or violate
the rights of any third party or parties.
(f) Severability. In the event that any term or condition in
this Agreement shall for any reason be held by a court of competent jurisdiction
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or condition of
this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable term or condition had never been contained herein.
(g) Execution in Counterparts. This Agreement may be executed
by the parties in one or more counterparts, each
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of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement, and shall become effective when one or
more counterparts has been signed by each of the parties hereto and delivered to
each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
-------------------------------------
Name: Robert J. Laikin
Title: Chief Executive Officer
/s/ J. Mark Howell
----------------------------------------
J. Mark Howell
<PAGE> 1
EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of July 1, 1999
between BRIGHTPOINT, INC., a Delaware corporation (the "Employer" or the
"Company"), and J. Mark Howell (the "Employee").
WHEREAS, the Employer and the Employee entered into an
employment agreement (the "Employment Agreement") on December 1, 1996, which has
been amended from time to time since such date;
WHEREAS, Employer and Employee wish to amend the Employment
Agreement further and to restate such Employment Agreement to include all
amendments made to date;
NOW, THEREFORE, the Employer and Employee hereby amend and
restate the Employment Agreement to read in its entirety as follows:
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Employee as its
President and Chief Operating Officer and to be assured of his services as such
on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on
such terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
1. Term. Employer hereby agrees to employ Employee, and
Employee hereby agrees to serve Employer, for a five-year period commencing
effective as of the date of this Agreement (the "Effective Date") (such period
being herein referred to as the "Initial Term," and any year commencing on the
Effective Date or any anniversary of the Effective Date being hereinafter
referred to as an "Employment Year"). After the Initial Term, this Agreement
shall be renewable automatically for successive one year periods (each such
period being referred to as a "Renewal Term"), unless, more than thirty days
prior to the expiration of the Initial Term or any Renewal Term, either the
Employee or the Company give written notice that employment will not be renewed
("Notice of Non-Renewal"), whereupon (i) if the Employee gives the Notice of
Non-Renewal, the term of the Employee's employment shall terminate upon the
expiration of the Initial Term or the then current Renewal Term, as the case may
be, or (ii) if the Company gives the Notice of Non-Renewal or terminates this
Agreement without Cause, the term of the Employee's employment shall be for a
final five (5) year period (the "Final Renewal
<PAGE> 2
Term"), commencing effective at the date of the Notice of Non-Renewal, unless
sooner terminated pursuant to Section 6 hereof.
2. Employee Duties.
A. During the term of this Agreement, the Employee shall
have the duties and responsibilities of President and Chief Operating Officer of
the Employer, reporting directly to the Chairman of the Board of Employer and
the Board of Directors of the Employer (the "Board"). It is understood that such
duties and responsibilities shall be reasonably related to the Employee's
position.
B. The Employee shall devote substantially all of his
business time, attention, knowledge and skills faithfully, diligently and to the
best of his ability, in furtherance of the business and activities of the
Company. The principal place of performance by the Employee of his duties
hereunder shall be the Company's principal executive offices or such other place
as the Board shall determine, although the Employee may be required to travel
outside of the area where the Company's principal executive offices are located
in connection with the business of the Company.
3. Compensation.
A. During the term of this Agreement, the Employer shall
pay the Employee a salary (the "Salary") at a rate of $250,000 per annum in
respect of each Employment Year, payable in equal monthly installments on the
first day of each month, or at such other times as may mutually be agreed upon
between the Employer and the Employee. Such Salary may be increased from time to
time at the discretion of the Board.
B. In addition to the foregoing, the Employee shall be
entitled to such other cash bonuses and such other compensation in the form of
stock, stock options or other property or rights as may from time to time be
awarded to him by the Board during or in respect of his employment hereunder.
4. Benefits.
A. During the term of this Agreement, the Employee shall
have the right to receive or participate in all benefits and plans which the
Company may from time to time institute during such period for its employees and
for which the Employee is eligible. Nothing paid to the Employee under any plan
or arrangement presently in effect or made available in the future shall be
deemed to be in lieu of the salary or any other obligation payable to the
Employee pursuant to this Agreement.
B. During the term of this Agreement, the Employee will be
entitled to the number of paid holidays,
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<PAGE> 3
personal days off, vacation days and sick leave days in each calendar year as
are determined by the Company from time to time. Such vacation may be taken in
the Employee's discretion with the prior approval of the Employee, and at such
time or times as are not inconsistent with the reasonable business needs of the
Company.
5. Travel Expenses. All travel and other expenses incident to
the rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer
provided that such expenses are preapproved by the President of the Company. If
any such expenses are paid in the first instance by the Employee, the Employer
shall reimburse him therefor on presentation of appropriate receipts for any
such expenses.
6. Termination. Employee's employment under this Agreement may
be terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement
shall terminate upon his death.
6.2. Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, the Employee shall have been
absent from his duties under this Agreement for 150 calendar days during any
calendar year, the Employer may terminate the Employee's employment under this
Agreement.
6.3. Cause. The Employer may terminate the Employee's
employment under this Agreement for Cause. For purposes of this Agreement, the
Employer shall have "Cause" to terminate the Employee's employment under this
Agreement upon (a) the willful and continued failure by the Employee to
substantially perform his duties under this Agreement (other than any such
failure resulting from the Employee's incapacity due to physical or mental
illness) after demand for substantial performance is delivered by the Employer,
in writing, specifically identifying the manner in which the Employer believes
the Employee has not substantially performed his duties and the Employee fails
to perform as required within 15 days after such demand is made, (b) the willful
engaging by the Employee in criminal misconduct (including embezzlement and
criminal fraud) which is materially injurious to the Employer, monetarily or
otherwise or (c) the conviction of the Employee of a felony. For purposes of
this paragraph, no act, or failure to act, on the Employee's part shall be
considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in the best
interest of the Employer.
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<PAGE> 4
Notwithstanding the foregoing, the Employee shall not be
deemed to have been terminated for Cause unless and until there shall have been
delivered to the Employee a copy of a resolution, duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board (other than the Employee) at a meeting of the Board called and held for
such purpose (after reasonable written notice to the Employee and an opportunity
for him, together with his counsel, to be heard before the Board), finding that
in the good faith opinion of the Board, the Employee was guilty of conduct set
forth above in clause (a), (b) or (c), and specifying the particulars thereof in
detail.
6.4. Termination by the Employee for Good Reason, Upon a
Change of Control or Because of Ill Health. The Employee may terminate his
employment under this Agreement (a) for Good Reason (as hereinafter defined),
(b) at any time within twelve months after a Change of Control, or (c) if his
health should become impaired to any extent that makes the continued performance
of his duties under this Agreement hazardous to his physical or mental health or
his life, provided that, in the latter case, the Employee shall have furnished
the Employer with a written statement from a qualified doctor to such effect and
provided, further, that at the Employer's request and expense the Employee shall
submit to an examination by a doctor selected by the Employer and such doctor
shall have concurred in the conclusion of the Employee's doctor.
6.4.1. Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (a) any assignment to the Employee of any duties or
reporting obligations other than those contemplated by, or any limitation of the
powers of the Employee in any respect not contemplated by, this Agreement, (b)
failure by the Employer to comply with its material obligations and agreements
contained in this Agreement, or (c) failure of the Employer to obtain the
assumption of the agreement to perform this Agreement by any successor as
contemplated in Section 9(f) of this Agreement. With respect to the matters set
forth in clauses (a), (b) and (c) of this paragraph, the Employee must give the
Employer 30 days prior written notice of his intent to terminate this Agreement
as a result of any breach or alleged breach of the applicable provision and the
Employer shall have the right to cure any such breach or alleged breach within
such 30 day period.
6.4.2. Change of Control. For purposes of this
Agreement, a "Change of Control" shall be deemed to occur, unless previously
consented to in writing by the Employee, upon (a) individuals who, as of the
date hereof, constitute the Board of Directors of the Employer (the "Incumbent
Board") ceasing for any reason to constitute at least a majority of the Board of
Directors of the Employer (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof
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<PAGE> 5
whose election, or nomination for election by the Employer's shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board; (b) the acquisition
of beneficial ownership (as determined pursuant to Rule 13d-3 promulgated under
the Exchange Act) of 15% or more of the voting securities of the Employer by any
person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) not affiliated with the Employee or the Employer; provided,
however, that no Change of Control shall be deemed to have occurred for purposes
of this Agreement if such person, entity or group acquires beneficial ownership
of 15% or more of the voting securities of the Employer (i) as a result of a
combination of the Employer or a wholly-owned subsidiary of the Employer with
such person, entity or group or another entity owned or controlled by such
person, entity or group (whether effected by a merger, consolidation, sale of
assets or exchange of stock or otherwise) (a "Combination") and (ii) (x)
executive officers of the Employer (as designated by the Board for purposes of
Section 16 of the Exchange Act) immediately prior to the Combination constitute
not less than 50% of the executive officers of the Employer for a period of not
less than six (6) months after the Combination (for purposes of calculating the
executive officers of the Employer after the Combination, those executive
officers who are terminated by the Employer for Cause or who terminate their
employment without Good Reason shall be excluded from the calculation entirely),
and (y) the members of the Incumbent Board immediately prior to the Combination
constitute not less than 50% of the membership of the Board after the
Combination and (z) after the Combination, more than 35% of the voting
securities of the Employer is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners of the outstanding voting securities of the Employer
immediately prior to the Combination, it being understood that while the
existence of a Change in Control pursuant to this Section 6.4.2(b) may not be
ascertainable for six (6) months after the Combination, if it is ultimately
determined that such Combination constituted a Change in Control, the date of
the Change of Control shall be the effective date of the Combination; (c) the
commencement of a proxy contest against the management for the election of a
majority of the Board of the Employer if the group conducting the proxy contest
owns, has or gains the power to vote at least 15% of the voting securities of
the Employer; (d) the consummation of a reorganization, merger or consolidation,
or the sale, transfer or conveyance of all or substantially all of the assets of
the
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<PAGE> 6
Employer to any person or entity not affiliated with the Employee or the
Employer unless, following such reorganization, merger, consolidation, sale,
transfer or conveyance, the conditions set forth in clause (b)(ii) above are
present; or (e) the complete liquidation or dissolution of the Employer.
7. Notice of Termination.
Any termination of the Employee's employment by the Employer
or by the Employee (other than termination by reason of the Employee's death)
shall be communicated by written Notice of Termination to the other party of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
8. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's
employment is terminated by his death, the date of his death, (b) if the
Employee's employment is terminated pursuant to Section 6.2 above, the date on
which the Notice of Termination is given, (c) if the Employee's employment is
terminated pursuant to Section 6.3 above, the date specified on the Notice of
Termination after the expiration of any cure periods and (d) if the Employee's
employment is terminated for any other reason, the date on which a Notice of
Termination is given after the expiration of any cure periods.
9. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason
of his death, the Employer shall pay to such person as he shall designate in
notice filed with the Employer, or if no such person shall be designated, to his
estate as a lump sum benefit, his full Salary to the date of his death in
addition to any payments to the Employee's spouse, beneficiaries or estate may
be entitled to receive pursuant to any pension or employee benefit plan or life
insurance policy or similar plan or policy then maintained by the Employer, and
such payments shall, assuming the Employer is in compliance with the provisions
of this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his
duties hereunder as a result of incapacity due to physical or mental illness,
the Employee shall continue to
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<PAGE> 7
receive his Salary until the Employee's employment is terminated pursuant to
Section 6.2 of this Agreement, or until the Employee terminates his employment
pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After
termination, the Employee shall be paid, in equal monthly installments, 100% of
his Salary, at the rate in effect at the time Notice of Termination is given,
for one year, and thereafter for one additional year at an annual rate equal to
50% of the Salary which would have been in effect under this Agreement, plus, in
each case, any disability payments otherwise payable by or pursuant to plans
provided by the Employer. To the extent physically and mentally capable of so
doing without potentially impairing or damaging his health, the Employee shall
provide consulting services to the Employer during the period that he is
receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for
Cause, the Employer shall pay the Employee his full Salary through the Date of
Termination, at the rate in effect at the time Notice of Termination is given,
and the Employer shall, assuming the Employer is in compliance with the
provisions of this Agreement, have no further obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall
terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3
hereof (it being understood that a purported termination pursuant to Section 6.2
or 6.3 hereof which is disputed and finally determined not to have been proper
shall be a termination by the Employer in breach of this Agreement), including
as a result of a Change of Control, or (B) the Employee shall terminate his
employment for Good Reason or at any time within twelve months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in
lieu of any further payments pursuant to Section 3 of this Agreement), Severance
Pay (as hereinafter defined), payable on the first day following the Date of
Termination, as follows:
(A) if the Employee, without Good Reason, terminates
his employment at any time within twelve months after a Change of Control
(provided that if the Change of Control is pursuant to Section 6.4.2(b) of this
Agreement, it is ascertainable on the date of such Termination that such Change
of
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<PAGE> 8
Control has occurred), or if, prior to and not as a result of a Change of
Control, the Employee's employment is terminated either by the Employee for Good
Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a
lump sum amount equal to the highest of (a) $1,250,000 or (b) total compensation
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) received or earned by the Employee from the Employer during
the twelve months prior to the Termination Date, multiplied by five (5), or
(B) if after or as a result of a Change of Control,
the Employee's employment is terminated either by the Employee for Good Reason
or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to ten (10) times: (i) the total compensation, (including the value
of all perquisites, such as health and life insurance and car allowance, etc.)
and (ii) the value of all stock options, granted to Employee by the Employer,
during the twelve (12) months prior to such Date of Termination (in case of
either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be
entitled as result of the termination of his employment under this Agreement,
including all legal fees and expenses incurred by him in contesting or disputing
any such termination or in seeking to obtain or enforce any right or benefit
provided by this Agreement.
The amount (if any) payable pursuant to this Section
9(d) (the "Severance Total") shall be increased by an amount (the "Increase")
sufficient so that after the payment by the Employee of (A) any income taxes on
the Increase and (B) any excise tax on the sum of (I) the Severance Total and
(II) the Increase, the Employee shall have received an amount (net of such
taxes) equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover any excise and income taxes payable on said amount) and shall
not be required to repay to the Employer any amount which is ultimately and
finally determined by the Internal Revenue Service (or an appropriate court) to
have been in excess of the amount permitted to be received without incurring
such excise tax, and Employer agrees to use its best efforts to support the
Employee's position that such amounts are not subject to excise tax in any
dispute with the Internal Revenue Service or in any other administrative or
judicial proceedings.
(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an investment bank
reasonably acceptable to both Company and Employee. The fees for such valuation
will be paid by the Company.
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<PAGE> 9
(e) The Employee shall not be required to mitigate the amount
of any payment provided for in this Section 9 by seeking other employment or
otherwise, nor shall the amount of any payment provided for in this Section 9 be
reduced by any compensation earned by the Employee as the result of employment
by another employer or business or by profits earned by the Employee from any
other source at any time before and after the Date of Termination.
(f) The Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such Agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as he would be entitled to hereunder if he terminated his employment for
Good Reason, except for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Employer" shall mean the Employer and
any successor to its business and/or assets which executes the Agreement or
which otherwise becomes bound by the terms and conditions of this Agreement by
operation of law.
(g) (A) Upon the occurrence of a Change of Control, or (B) if
in breach of this Agreement, the Employer shall terminate the Employee's
employment other than pursuant to Sections 6.2 or 6.3 hereof (it being
understood that a purported termination pursuant to Section 6.2 or 6.3 hereof
which is disputed and finally determined not to have been proper shall be a
termination by the Employer in breach of this Agreement), or (C) if the Employee
shall terminate his employment for Good Reason at any time, then notwithstanding
the vesting and exercisability schedule in any stock option agreement between
the Employer and Employee, all unvested stock options granted by the Employer to
the Employee pursuant to such agreement shall immediately vest and become
exercisable and shall remain exercisable for not less than 180 days thereafter.
10. Confidentiality; Noncompetition.
(a) The Employer and the Employee acknowledge that the
services to be performed by the Employee under this Agreement are unique and
extraordinary and, as a result of such employment, the Employee will be in
possession of confidential information relating to the business practices of the
Company. The term "confidential information" shall mean any and all information
(verbal and written) relating to the Company or any
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of its affiliates, or any of their respective activities, other than such
information which can be shown by the Employee to be in the public domain (such
information not being deemed to be in the public domain merely because it is
embraced by more general information which is in the public domain) other than
as the result of breach of the provisions of this Section 10(a), including, but
not limited to, information relating to: trade secrets, personnel lists,
financial information, research projects, services used, pricing, customers,
customer lists and prospects, product sourcing, marketing and selling and
servicing. The Employee agrees that he will not, during or for a period of two
years after the termination of employment, directly or indirectly, use,
communicate, disclose or disseminate to any person, firm or corporation any
confidential information regarding the clients, customers or business practices
of the Company acquired by the Employee during his employment by Employer,
without the prior written consent of Employer; provided, however, that the
Employee understands that Employee will be prohibited from misappropriating any
trade secret (as defined for purposes of Indiana law) at any time during or
after the termination of employment.
(b) The Employee hereby agrees that he shall not, during the
period of his employment and for a period of two (2) years following such
employment, directly or indirectly, within any county (or adjacent county) in
any State within the United States or territory outside the United States in
which the Company is engaged in business during the period of the Employee's
employment or on the date of termination of the Employee's employment, engage,
have an interest in or render any services to any business (whether as owner,
manager, operator, licensor, licensee, lender, partner, stockholder, joint
venturer, employee, consultant or otherwise) competitive with the Company's
business activities.
(c) The Employee hereby agrees that he shall not, during the
period of his employment and for a period of two (2) years following such
employment, directly or indirectly, take any action which constitutes an
interference with or a disruption of any of the Company's business activities
including, without limitation, the solicitations of the Company's customers, or
persons listed on the personnel lists of the Company. At no time during the term
of this Agreement, or thereafter shall the Employee directly or indirectly,
disparage the commercial, business or financial reputation of the Company.
(d) For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of subparagraphs
10(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor,
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<PAGE> 11
licensee or customer who has been previously contacted by either a
representative of the Company, including the Employee, (but only those suppliers
existing during the time of the Employee's employment by the Company, or at the
termination of his employment), to discontinue or alter his, her or its
relationship with the Company.
(e) Upon the termination of the Employee's employment for any
reason whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
(f) (i) The Employee agrees that all processes, technologies
and inventions ("Inventions"), including new contributions, improvements, ideas
and discoveries, whether patentable or not, conceived, developed, invented or
made by him during his employment by Employer shall belong to the Company,
provided that such Inventions grew out of the Employee's work with the Company
are related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Employee shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventorship;
(ii) If any Invention is described in a patent application
or is disclosed to third parties, directly or indirectly, by the Employee within
two years after the termination of his employment by the Company, it is to be
presumed that the Invention was conceived or made during the period of the
Employee's employment by the Company; and
(iii) The Employee agrees that he will not assert any
rights to any Invention as having been made or acquired by him prior to the date
of this Agreement, except for Inventions, if any, disclosed to the Company in
writing prior to the date hereof.
(g) The Company shall be the sole owner of all products and
proceeds of the Employee's services hereunder, including, but not limited to,
all materials, ideas, concepts, formats, suggestions, developments,
arrangements, packages, programs and other intellectual properties that the
Employee may acquire, obtain, develop or create in connection with and during
the term of the Employee's employment hereunder, free and clear of any claims by
the Employee (or anyone claiming under the Employee) of any kind or character
whatsoever (other than the
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<PAGE> 12
Employee's right to receive payments hereunder). The Employee shall, at the
request of the Company, execute such assignments, certificates or other
instruments as the Company may from time to time deem necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or defend its right, or
title and interest in or to any such properties.
(h) The parties hereto hereby acknowledge and agree that (i)
the Company would be irreparably injured in the event of a breach by the
Employee of any of his obligations under this Section 10, (ii) monetary damages
would not be an adequate remedy for any such breach, and (iii) the Company shall
be entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach.
(i) The parties hereto hereby acknowledge that, in addition to
any other remedies the Company may have under Section 10(h) hereof, the Company
shall have the right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals, increments or
other benefits (collectively, "Benefits") derived or received by the Employee as
the result of any transactions constituting a breach of any of the provisions of
Section 10, and the Employee hereby agrees to account for any pay over such
Benefits to the Company.
(j) Each of the rights and remedies enumerated in Section
10(h) and 10(i) shall be independent of the other, and shall be severally
enforceable, and all of such rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity.
(k) If any provision contained in this Section 10 is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
(l) If any provision contained in this Section 10 is found to
be unenforceable by reason of the extent, duration or scope thereof, or
otherwise, then the court making such determination shall have the right to
reduce such extent, duration, scope or other provision and in its reduced form
any such restriction shall thereafter be enforceable as contemplated hereby.
(m) It is the intent of the parties hereto that the covenants
contained in this Section 10 shall be enforced to the fullest extent permissible
under the laws and public policies of each jurisdiction in which enforcement is
sought (the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is
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<PAGE> 13
hereby agreed that if any of the provisions of this Section 10 shall be
adjudicated to be invalid or unenforceable for any reason whatsoever, said
provision shall be (only with respect to the operation thereof in the particular
jurisdiction in which such adjudication is made) construed by limiting and
reducing it so as to be enforceable to the extent permissible, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of said provision in any other jurisdiction.
11. Indemnification. The Employer shall indemnify and hold
harmless the Employee against any and all expenses reasonably incurred by him in
connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been
an employee, officer or director of the Company, whether or not he continues to
be such an employee, officer or director at the time of incurring such expenses,
except insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted.
12. General. This Agreement is further governed by the
following provisions:
(a) Notices. All notices relating to this Agreement shall
be in writing and shall be either personally delivered, sent by telecopy
(receipt confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
To the Employer:
Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, IN 46278
Attention: Robert J. Laikin
To the Employee:
J. Mark Howell
1013 Summer Hill
Carmel, IN 46032
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<PAGE> 14
With, in either case, a copy in the same manner to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
(b) Parties in Interest. Employee may not delegate his duties
or assign his rights hereunder. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement supersedes any and all
other agreements, either oral or in writing, between the parties hereto with
respect to the employment of the Employee by the Employer and contains all of
the covenants and agreements between the parties with respect to such employment
in any manner whatsoever. Any modification or termination of this Agreement will
be effective only if it is in writing signed by the party to be charged.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana. Employee agrees
to and hereby does submit to jurisdiction before any state or federal court of
record in Marion County, Indiana, or in the state and county in which such
violation may occur, at Employer's election.
(e) Warranty. Employee hereby warrants and represents as
follows:
(i) That the execution of this Agreement and the discharge
of Employee's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between Employee and any other party or
parties.
(ii) Employee has ideas, information and know-how relating
to the type of business conducted by Employer, and Employee's disclosure of such
ideas, information and know-how to Employer will not conflict with or violate
the rights of any third party or parties.
(f) Severability. In the event that any term or condition in
this Agreement shall for any reason be held by a court of competent jurisdiction
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other term or condition of
this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable term or condition had never been contained herein.
(g) Execution in Counterparts. This Agreement may be executed
by the parties in one or more counterparts, each
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of which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement, and shall become effective when one or
more counterparts has been signed by each of the parties hereto and delivered to
each of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ Robert J. Laikin
-------------------------------------
Name: Robert J. Laikin
Title: Chief Executive Officer
/s/ J. Mark Howell
----------------------------------------
J. Mark Howell
<PAGE> 1
EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of July 1, 1999 between
BRIGHTPOINT, INC., a Delaware corporation (the "Employer" or the "Company"), and
PHILLIP A. BOUNSALL (the "Employee").
WHEREAS, the Employer has employed the Employee as its Executive Vice
President, Treasurer and Chief Financial Officer since October 14, 1996 and on
January 1, 1997 entered into an employment agreement with Employee, which
employment agreement was amended by letter agreement dated July 16, 1998 (as
amended, the "Employment Agreement");
WHEREAS, Employer and Employee wish to amend the Employment Agreement
further and to restate such Employment Agreement to include all amendments made
to date;
NOW, THEREFORE, the Employer and Employee hereby amend and restate the
Employment Agreement to read in its entirety as follows:
W I T N E S S E T H :
WHEREAS, the Employer desires to employ the Employee as its Executive
Vice President, Treasurer and Chief Financial Officer, to be assured of his
services as such on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such
terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and intending to be legally bound hereby, the Employer
and the Employee hereby agree as follows:
I. Term. Employer hereby agrees to employ Employee, and Employee hereby
agrees to serve Employer for a three-year period commencing effective as of the
date of this Agreement (the "Effective Date") (such period being herein referred
to as the "Initial Term," and any year commencing on the Effective Date or any
anniversary of the Effective Date being hereinafter referred to as an
"Employment Year"). After the Initial Term and on the last day of any Employment
Year thereafter, this Agreement shall be automatically renewed for successive
one year periods (each such period being referred to as a "Renewal Term"),
unless, more than ninety (90) days prior to the expiration of the Initial Term
or any Renewal Term, either the Executive or the Company gives written notice
that employment will not be renewed ("Notice of Non-Renewal"), whereupon (i) if
the Executive gives the Notice of Non-Renewal, the term of the Executive's
employment shall terminate upon the expiration of the Initial Term or the then
current Renewal Term, as the case may be, or (ii) if the Company gives the
Notice of Non-Renewal or terminates this Agreement without Cause, the term of
the Executive's employment shall be for a final three (3) year period (the
"Final Renewal Term"), commencing effective at the date of the Notice of
Non-Renewal, unless sooner terminated pursuant to Section 6 hereof.
<PAGE> 2
II. Employee Duties.
A. During the term of this Agreement, the Employee shall have the
duties and responsibilities attached hereto as Exhibit A, reporting directly to
the President of Employer and the Board of Directors of the Employer (the
"Board"). It is understood that such duties and responsibilities shall be
reasonably related to the Employee's position.
B. The Employee shall devote substantially all of his business time,
attention, knowledge and skills faithfully, diligently and to the best of his
ability, in furtherance of the business and activities of the Company. The
principal place of performance by the Employee of his duties hereunder shall be
the Company's principal executive offices, although the Employee may be required
to travel outside of the area where the Company's principal executive offices
are located in connection with the business of the Company.
III. Compensation.
A. During the term of this Agreement, the Employer shall pay the
Employee a salary (the "Salary") at a rate of $225,000 per annum in respect of
each Employment Year, payable in equal monthly installments on the first day of
each month, or at such other times as may mutually be agreed upon between the
Employer and the Employee. Such Salary may be increased from time to time at the
discretion of the Board.
B. In addition to the foregoing, the Employee shall be entitled to such
other cash bonuses and such other compensation in the form of stock, stock
options or other property or rights as may from time to time be awarded to him
by the Board during or in respect of his employment hereunder.
IV. Benefits.
A. During the term of this Agreement, the Employee shall have the right
to receive or participate in all existing and future benefits and plans which
the Company may from time to time institute during such period for its executive
officers (the "Executive Officers") and for which the Employee is eligible.
Nothing paid to the Employee under any plan or arrangement presently in effect
or made available in the future shall be deemed to be in lieu of the salary or
any other obligation payable to the Employee pursuant to this Agreement.
B. During the term of this Agreement, the Employee will be entitled to
the number of paid holidays, personal days off, paid vacation days and sick
leave days in each calendar year as are determined by the Company from time to
time. Such paid vacation may be taken in the Employee's discretion with the
prior approval of the Employer, and at such time or times as are not
inconsistent with the reasonable business needs of the Company.
V. Travel Expenses. All travel and other expenses incident to the
rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer
provided that such expenses are incurred in accordance with the Company's
policies. If any such expenses are paid in the first instance by the
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<PAGE> 3
Employee, Employer shall reimburse him therefor on presentation of appropriate
receipts for any such expenses.
VI. Termination. Employee's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement shall
terminate upon his death.
6.2. Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
under this Agreement for 180 consecutive calendar days during any calendar year,
the Employer may terminate the Employee's employment under this Agreement.
6.3. Cause. The Employer may terminate the Employee's employment under
this Agreement for Cause. For purposes of this Agreement, the Employer shall
have "Cause" to terminate the Employee's employment under this Agreement upon
(a) the willful and continued failure by the Employee to substantially perform
his duties under this Agreement (other than any such failure resulting from the
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by the Employer, in writing, specifically
identifying the manner in which the Employer believes the Employee has not
substantially performed his duties and the Employee fails to perform as required
within 30 days after such demand is made, (b) the willful engaging by the
Employee in criminal misconduct (including embezzlement and criminal fraud)
which is materially injurious to the Employer, monetarily or otherwise or (c)
the conviction of the Employee of a felony and the expiration of the time to
appeal such conviction. For purposes of this paragraph, no act, or failure to
act, on the Employee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without reasonable belief that
his action or omission was in the best interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
the Employee a copy of a resolution, duly adopted by the affirmative vote of not
less than three-quarters of the entire membership of the Board (other than the
Employee) at a meeting of the Board called and held for such purpose (after
reasonable written notice to the Employee and an opportunity for him, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, the Employee was guilty of conduct set forth above in
clause (a), (b) or (c), and specifying the particulars thereof in detail.
6.4. Termination by the Employee for Good Reason, Upon a Change of
Control or Because of Ill Health. The Employee may terminate his employment
under this Agreement (a) for Good Reason (as hereinafter defined), (b) at any
time within twelve months after a Change of Control, or (c) if his health should
become impaired to any extent that makes the continued performance of his duties
under this Agreement hazardous to his physical or mental health or his life,
provided that, in the latter case, the Employee shall have furnished the
Employer with a written statement from a qualified doctor to such effect and
provided, further,
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<PAGE> 4
that at the Employer's request and expense the Employee shall submit to an
examination by a doctor selected by the Employer and such doctor shall have
concurred in the conclusion of the Employee's doctor; provided if the Employer's
doctor does not concur, the Employee's and Employer's doctors shall select a
third physician whose determination shall be binding.
6.4.1. Good Reason. For purposes of this Agreement, "Good Reason"
shall mean (a) any assignment to the Employee of any duties or reporting
obligations other than those contemplated by, or any limitation of the powers of
the Employee in any respect not contemplated by, this Agreement, (b) failure by
the Employer to comply with its obligations and agreements contained in this
Agreement, (c) failure of the Employer to obtain the assumption of the agreement
to perform this Agreement by any successor as contemplated in Section 9(g) of
this Agreement. With respect to the matters set forth in clauses (a), (b) and
(c) of this paragraph, the Employee must give the Employer 30 days prior written
notice of his intent to terminate this Agreement as a result of any breach or
alleged breach of the applicable provision and the Employer shall have the right
to cure any such breach or alleged breach within such 30 day period.
6.4.2. Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously consented to in
writing by the Employee, upon (a) individuals who, as of the date hereof,
constitute the Board of Directors of the Employer (the "Incumbent Board")
ceasing for any reason to constitute at least a majority of the Board of
Directors of the Employer (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Employer's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs in connection with a Combination, as defined below, or as a result
of either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board; (b) the acquisition of beneficial ownership (as determined pursuant to
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the voting
securities of the Employer by any person, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) not affiliated with the
Employee or the Employer; provided, however, that no Change of Control shall be
deemed to have occurred for purposes of this Agreement if such person, entity or
group acquires beneficial ownership of 15% or more of the voting securities of
the Employer (i) as a result of a combination of the Employer or a wholly-owned
subsidiary of the Employer with such person, entity or group or another entity
owned or controlled by such person, entity or group (whether effected by a
merger, consolidation, sale of assets or exchange of stock or otherwise) (a
"Combination") and (ii) (x) executive officers of the Employer (as designated by
the Board for purposes of Section 16 of the Exchange Act) immediately prior to
the Combination constitute not less than 50% of the executive officers of the
Employer for a period of not less than six (6) months after the Combination (for
purposes of calculating the executive officers of the Employer after the
Combination, those executive officers who are terminated by the Employer for
Cause or who terminate their employment without Good Reason shall be excluded
from the calculation entirely), and (y) the members of the Incumbent
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<PAGE> 5
Board immediately prior to the Combination constitute not less than 50% of the
membership of the Board after the Combination and (z) after the Combination,
more than 35% of the voting securities of the Employer is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals
and entities who were the beneficial owners of the outstanding voting securities
of the Employer immediately prior to the Combination, it being understood that
while the existence of a Change in Control pursuant to this Section 6.4.2(b) may
not be ascertainable for six (6) months after the Combination, if it is
ultimately determined that such Combination constituted a Change in Control, the
date of the Change of Control shall be the effective date of the Combination;
(c) the commencement of a proxy contest against the management for the election
of a majority of the Board of the Employer if the group conducting the proxy
contest owns, has or gains the power to vote at least 15% of the voting
securities of the Employer; (d) the consummation of a reorganization, merger or
consolidation, or the sale, transfer or conveyance of all or substantially all
of the assets of the Employer to any person or entity not affiliated with the
Employee or the Employer unless, following such reorganization, merger,
consolidation, sale, transfer or conveyance, the conditions set forth in clause
(b)(ii) above are present; or (e) the complete liquidation or dissolution of the
Employer.
VII. Notice of Termination.
Any termination of the Employee's employment by the Employer or by the
Employee (other than termination by reason of the Employee's death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
VIII. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's employment
is terminated by his death, the date of his death, (b) if the Employee's
employment is terminated pursuant to Section 6.2 above, the date on which the
Notice of Termination is given, (c) if the Employee's employment is terminated
pursuant to Section 6.3 above, the date specified on the Notice of Termination
after the expiration of any cure periods and (d) if the Employee's employment is
terminated for any other reason, the date on which a Notice of Termination is
given after the expiration of any cure periods.
IX. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason of his
death, the Employer shall pay to such person as he shall designate in writing
filed with the Employer, or if no such person shall be designated, to his estate
as a lump sum benefit, his full Salary to the date of his death in addition to
any payments the Employee's spouse, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan or life insurance
policy or similar plan or policy then maintained by the Employer, and such
payments shall, assuming the Employer is in compliance with the provisions of
this Agreement, fully discharge the Employer's
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obligations with respect to Section 3 of this Agreement, but all other
obligations of the Employer under this Agreement, including the obligations to
indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Employee shall continue to receive his Salary until the Employee's employment is
terminated pursuant to Section 6.2 of this Agreement, or until the Employee
terminates his employment pursuant to Section 6.4(c) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Salary, at the rate in effect at the time
Notice of Termination is given, for one year, and thereafter for one additional
year at an annual rate equal to 50% of the Salary which would have been in
effect under this Agreement, plus, in each case, any disability payments
otherwise payable by or pursuant to plans provided by the Employer to its
executive officers. To the extent physically and mentally capable of so doing
without potentially impairing or damaging his health, the Employee shall provide
consulting services to the Employer during the period that he is receiving
payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or
terminated by the Employee without Good Reason prior to or more than twelve
months after, a Change of Control, the Employer shall pay the Employee his full
Salary through the Date of Termination, at the rate in effect at the time Notice
of Termination is given, and the Employer shall, assuming the Employer is in
compliance with the provisions of this Agreement, have no further obligations
with respect to Section 3 of this Agreement, but all other obligations of the
Employer under this Agreement, including the obligations to indemnify, defend
and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate
the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it
being understood that a purported termination pursuant to Section 6.2 or 6.3
hereof which is disputed and finally determined not to have been proper shall be
a termination by the Employer in breach of this Agreement), including as a
result of a Change of Control, or (B) the Employee shall terminate his
employment for Good Reason or at any time within twelve months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of
any further payments pursuant to Section 3 of this Agreement), Severance Pay (as
hereinafter defined), payable on the first day following the Date of
Termination, as follows:
(A) if the Employee, without Good Reason, terminates his
employment at any time within twelve months after a Change of Control (provided
that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement,
it is ascertainable on the date of such Termination that such Change of Control
has occurred), or if, prior to and not as a result of a Change of Control, the
Employee's employment is terminated either by the Employee
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for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3
hereof, a lump sum amount equal to the highest of (a) $675,000 or (b) total
compensation (including the value of all perquisites, such as health and life
insurance and car allowance, etc.) received or earned by the Employee from the
Employer during the twelve months prior to the Termination Date, multiplied by
three (3), or
(B) if after or as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to six (6) times: (i) the total compensation received or earned
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) and (ii) the value of all stock options granted to the
Employee by the Employer, during the twelve (12) months prior to such Date of
Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be entitled as a
matter of law or equity as result of the termination of his employment under
this Agreement, including all costs and expense and expenses incurred by him
(including attorneys fees) in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by this Agreement.
(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an investment bank
reasonably acceptable to both Company and Employee. The fees for such valuation
will be paid by the Company.
(e) The amount (if any) payable pursuant to this Section 9(d) (the
"Severance Total") shall be increased by an amount (the "Increase") sufficient
so that after the payment by the Employee of (A) any income taxes on the
Increase and (B) any excise tax on the sum of (I) the Severance Total and (II)
the Increase, the Employee shall have received an amount (net of such taxes)
equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover any excise and income taxes payable as aforesaid) and shall
not be required to repay to the Employer any amount which is ultimately and
finally determined by the Internal Revenue Service (or an appropriate court) to
have been in excess of the amount permitted to be received without incurring
such excise tax, and Employer agrees to use its best efforts to support the
Employee's position that such amounts are not subject to excise tax in any
dispute with the Internal Revenue Service or in any other administrative or
judicial proceedings.
(f) The Employee shall not be required to mitigate the amount of any
payment provided for in this Section 9 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 9 be reduced by
any compensation earned by the Employee as the result of employment by another
employer or business or by profits earned by the Employee from any other source
at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Employee, to
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<PAGE> 8
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Employer would be required to perform it if no such
succession had taken place. Failure of the Employer to obtain such Agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to compensation from the Employer in
the same amount and on the same terms as he would be entitled to under Section
9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
"Employer" shall mean the Employer and any successor to its business and/or
assets which executes the Agreement or which otherwise becomes bound by the
terms and conditions of this Agreement by operation of law.
(h) (A) Upon the occurrence of a Change of Control, or (B) if in breach
of this Agreement, the Employer shall terminate the Employee's employment other
than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a
purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed
and finally determined not to have been proper shall be a termination by the
Employer in breach of this Agreement), or (C) if the Employee shall terminate
his employment for Good Reason at any time, then notwithstanding the vesting and
exercisability schedule in any stock option agreement between Employer and
Employee, all unvested stock options granted by the Employer to the Employee
pursuant to such agreement shall immediately vest and become exercisable and
shall remain exercisable for not less than 180 days thereafter.
X. Confidentiality; Noncompetition.
A. The Employer and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 10(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, directly or indirectly, use, communicate, disclose or disseminate to
any person, firm or corporation any confidential information regarding the
clients, customers or business practices of the Company acquired by the Employee
during his employment by Employer, without the prior written consent of
Employer; provided, however, that the Employee understands that Employee will be
prohibited from misappropriating any trade secret (as defined for purposes of
Indiana law) at any time during or after the termination of employment.
B. The Employee hereby agrees that he shall not, during the period of
his employment and for a period of two (2) years following such employment,
directly or indirectly, within any county (or adjacent county) in any State
within the United States or territory outside
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<PAGE> 9
the United States in which the Company is engaged in business during the period
of the Employee's employment or on the date of termination of the Employee's
employment, engage, have an interest in or render any services to any business
(whether as owner, manager, operator, licensor, licensee, lender, partner,
stockholder, joint venturer, employee, consultant or otherwise) competitive with
the Company's principal business activities. Notwithstanding the foregoing,
Employee shall be permitted to own (as a passive investment) not more than 5% of
any class of securities which is publicly traded; provided, however that said 5%
limitation shall apply to the aggregate holdings of Employee and those of all
other persons and entities with whom Employee has agreed to act for the purpose
of acquiring, holding, voting or disposing of such securities.
C. The Employee hereby agrees that he shall not, during the period of
his employment and for a period of two (2) years following such employment,
directly or indirectly, take any action which constitutes an interference with
or a disruption of any of the Company's business activities including, without
limitation, the solicitations of the Company's customers, or persons listed on
the personnel lists of the Company. At no time during the term of this
Agreement, or thereafter shall the Employee directly or indirectly, disparage
the commercial, business or financial reputation of the Company.
D. For purposes of clarification, but not of limitation, the Employee
hereby acknowledges and agrees that the provisions of subparagraphs 10(b) and
(c) above shall serve as a prohibition against him, during the period referred
to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Employee's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
F. 1. The Employee agrees that all processes, technologies and
inventions ("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by him during his employment by Employer shall belong to the Company, provided
that such Inventions grew out of the Employee's work with the Company, are
related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Employee shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventorship;
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<PAGE> 10
2. If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Employee within two
years after the termination of his employment by the Company, it is to be
presumed that the Invention was conceived or made during the period of the
Employee's employment by the Company; and
3. The Employee agrees that he will not assert any rights to any
Invention as having been made or acquired by him prior to the date of this
Agreement, except for Inventions, if any, disclosed to the Company in writing
prior to the date hereof.
G. The Company shall be the sole owner of all products and proceeds of
the Employee's services hereunder, including, but not limited to, all materials,
ideas, concepts, formats, suggestions, developments, arrangements, packages,
programs and other intellectual properties that the Employee may acquire,
obtain, develop or create in connection with and during the term of the
Employee's employment hereunder, free and clear of any claims by the Employee
(or anyone claiming under the Employee) of any kind or character whatsoever
(other than the Employee's right to receive payments hereunder). The Employee
shall, at the request of the Company, execute such assignments, certificates or
other instruments as the Company may from time to time deem necessary or
desirable to evidence, establish, maintain, perfect, protect, enforce or defend
its right, or title and interest in or to any such properties.
H. The parties hereto hereby acknowledge and agree that (i) the Company
would be irreparably injured in the event of a breach by the Employee of any of
his obligations under this Section 10, (ii) monetary damages would not be an
adequate remedy for any such breach, and (iii) the Company shall be entitled to
injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach.
I. The parties hereto hereby acknowledge that, in addition to any other
remedies the Company may have under Section 10(h) hereof, the Company shall have
the right and remedy to require the Employee to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by the Employee as the
result of any transactions constituting a breach of any of the provisions of
Section 10, and the Employee hereby agrees to account for and pay over such
Benefits to the Company.
J. Each of the rights and remedies enumerated in Section 10(h) and
10(i) shall be independent of the other, and shall be severally enforceable, and
all of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
K. If any provision contained in this Section 10 is hereafter construed
to be invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to the
invalid portions.
L. If any provision contained in this Section 10 is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court making such
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determination shall have the right to reduce such extent, duration, scope or
other provision and in its reduced form any such restriction shall thereafter be
enforceable as contemplated hereby.
M. It is the intent of the parties hereto that the covenants contained
in this Section 10 shall be enforced to the fullest extent permissible under the
laws and public policies of each jurisdiction in which enforcement is sought
(the Employee hereby acknowledging that said restrictions are reasonably
necessary for the protection of the Company). Accordingly, it is hereby agreed
that if any of the provisions of this Section 10 shall be adjudicated to be
invalid or unenforceable for any reason whatsoever, said provision shall be
(only with respect to the operation thereof in the particular jurisdiction in
which such adjudication is made) construed by limiting and reducing it so as to
be enforceable to the extent permissible, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of said
provision in any other jurisdiction.
XI. Indemnification. The Employer shall indemnify and hold harmless the
Employee against any and all expenses reasonably incurred by him in connection
with or arising out of (a) the defense of any action, suit or proceeding in
which he is a party, or (b) any claim asserted or threatened against him, in
either case by reason of or relating to his being or having been an employee,
officer or director of the Company, whether or not he continues to be such an
employee, officer or director at the time of incurring such expenses, except
insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted.
XII. General. This Agreement is further governed by the following
provisions:
A. Notices. All notices relating to this Agreement shall be in writing
and shall be either personally delivered, sent by telecopy (receipt confirmed)
or mailed by certified mail, return receipt requested, to be delivered at such
address as is indicated below, or at such other address or to the attention of
such other person as the recipient has specified by prior written notice to the
sending party. Notice shall be effective when so personally delivered, one
business day after being sent by telecopy or five days after being mailed.
To the Employer: Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, Indiana 46278
To the Employee: Phillip A. Bounsall
13842 Berenger Lane
Carmel, Indiana 46032
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With, in either case, a copy in the same manner to:
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
B. Parties in Interest. Employee may not delegate his duties or assign
his rights hereunder. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
C. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever. Any modification or termination of this Agreement will be
effective only if it is in writing signed by the party to be charged.
D. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana. Employee agrees to and hereby
does submit to jurisdiction before any state or federal court of record in
Marion County, Indiana, or in the state and county in which such violation may
occur, at Employer's election.
E. Warranty. Employee hereby warrants and represents as follows:
1. That the execution of this Agreement and the discharge of
Employee's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between Employee and any other party or
parties.
2. Employee has ideas, information and know-how relating to the
type of business conducted by Employer, and Employee's disclosure of such ideas,
information and know-how to Employer will not conflict with or violate the
rights of any third party or parties.
F. Severability. In the event that any term or condition in this
Agreement shall for any reason be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or condition of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable term or condition had never been contained herein.
G. Execution in Counterparts. This Agreement may be executed by the
parties in one or more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ J. Mark Howell
---------------------------------------
J. Mark Howell, President & COO
/s/ Phillip A. Bounsall
---------------------------------------
Phillip A. Bounsall
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EXHIBIT "A"
DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Executive Vice President and
Chief Financial Officer include, but are not limited to, the following:
1. Management of the corporate finance staff including Corporate
Controller, Vice President of Corporate Finance, Director of Internal
Audit, and the staff reporting thereto.
2. Development and implementation of strategies relating to accounting and
reporting, capital structure, and corporate finance activities.
3. Management of relationships with independent auditors, investment
banks, commercial banks and securities counsel.
4. External reporting, including SEC reporting and compliance.
5. Maintenance and development of adequate and appropriate levels of
capital.
6. Negotiation of material contracts.
7. Strategic planning.
8. Participation in Executive Committee activities.
9. Investor relations and communications with analysts.
10. Risk management.
11. Development and implementation of federal, state and foreign tax
strategies.
12. Other duties consistent with the position of Executive Vice President,
Treasurer and Chief Financial Officer that may be assigned from time to
time by the President & COO, CEO or board of directors.
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EXHIBIT 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED AGREEMENT dated as of July 1, 1999 between
BRIGHTPOINT, INC., a Delaware corporation (the "Employer" or the "Company"), and
STEVEN E. FIVEL (the "Employee").
WHEREAS, the Employer and the Employee entered into an employment
agreement (the "Employment Agreement") on January 6, 1997, which was amended by
letter agreement dated July 16, 1998;
WHEREAS, Employer and Employee wish to amend the Employment Agreement
further and to restate such Employment Agreement to include all amendments made
to date;
NOW, THEREFORE, the Employer and Employee hereby amend and restate the
Employment Agreement to read in its entirety as follows:
WITNESSETH:
WHEREAS, the Employer desires to employ the Employee as its Executive
Vice President, General Counsel and Secretary to be assured of his services as
such on the terms and conditions hereinafter set forth; and
WHEREAS, the Employee is willing to accept such employment on such
terms and conditions;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and intending to be legally bound hereby, the
Employer and the Employee hereby agree as follows:
I. Term. Employer hereby agrees to employ Employee, and Employee
hereby agrees to serve Employer for a three-year period commencing effective as
of the date of this Agreement (the "Effective Date") (such period being herein
referred to as the "Initial Term," and any year commencing on the Effective Date
or any anniversary of the Effective Date being hereinafter referred to as an
"Employment Year"). After the Initial Term and on the last day of any Employment
Year thereafter, this Agreement shall be automatically renewed for successive
one year periods (each such period being referred to as a "Renewal Term"),
unless, more than ninety (90) days prior to the expiration of the Initial Term
or any Renewal Term, either the Executive or the Company gives written notice
that employment will not be renewed ("Notice of Non-Renewal"), whereupon (i) if
the Executive gives the Notice of Non-Renewal, the term of the Executive's
employment shall terminate upon the expiration of the Initial Term or the then
current Renewal Term, as the case may be, or (ii) if the Company gives the
Notice of Non-Renewal or terminates this Agreement without Cause, the term of
the Executive's employment shall be for a final three (3) year period (the
"Final Renewal Term"), commencing effective at the date of the Notice of
Non-Renewal, unless sooner terminated pursuant to Section 6 hereof.
<PAGE> 2
II. Employee Duties.
A. During the term of this Agreement, the Employee shall have the
duties and responsibilities attached hereto as Exhibit A, reporting directly to
the President of Employer and the Board of Directors of the Employer (the
"Board"). It is understood that such duties and responsibilities shall be
reasonably related to the Employee's position.
B. The Employee shall devote substantially all of his business time,
attention, knowledge and skills faithfully, diligently and to the best of his
ability, in furtherance of the business and activities of the Company. The
principal place of performance by the Employee of his duties hereunder shall be
the Company's principal executive offices, although the Employee may be required
to travel outside of the area where the Company's principal executive offices
are located in connection with the business of the Company.
III. Compensation.
A. During the term of this Agreement, the Employer shall pay the
Employee a salary (the "Salary") at a rate of $175,000 per annum in respect of
each Employment Year, payable in equal monthly installments on the first day of
each month, or at such other times as may mutually be agreed upon between the
Employer and the Employee. Such Salary may be increased from time to time at the
discretion of the Board.
B. In addition to the foregoing, the Employee shall be entitled to
such other cash bonuses and such other compensation in the form of stock, stock
options or other property or rights as may from time to time be awarded to him
by the Board during or in respect of his employment hereunder.
IV. Benefits.
A. During the term of this Agreement, the Employee shall have the
right to receive or participate in all existing and future benefits and plans
which the Company may from time to time institute during such period for its
executive officers (the "Executive Officers") and for which the Employee is
eligible. Nothing paid to the Employee under any plan or arrangement presently
in effect or made available in the future shall be deemed to be in lieu of the
salary or any other obligation payable to the Employee pursuant to this
Agreement.
B. During the term of this Agreement, the Employee will be entitled
to the number of paid holidays, personal days off, paid vacation days and sick
leave days in each calendar year as are determined by the Company from time to
time. Such paid vacation may be taken in the Employee's discretion with the
prior approval of the Employer, and at such time or times as are not
inconsistent with the reasonable business needs of the Company.
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V. Travel Expenses. All travel and other expenses incident to the
rendering of services reasonably incurred on behalf of the Company by the
Employee during the term of this Agreement shall be paid by the Employer
provided that such expenses are incurred in accordance with the Company's
policies. If any such expenses are paid in the first instance by the Employee,
the Employer shall reimburse him therefor on presentation of appropriate
receipts for any such expenses.
VI. Termination. Employee's employment under this Agreement may be
terminated without any breach of this Agreement only on the following
circumstances:
6.1. Death. The Employee's employment under this Agreement shall
terminate upon his death.
6.2. Disability. If, as a result of the Employee's incapacity due to
physical or mental illness, the Employee shall have been absent from his duties
under this Agreement for 180 consecutive calendar days during any calendar year,
the Employer may terminate the Employee's employment under this Agreement.
6.3. Cause. The Employer may terminate the Employee's employment under
this Agreement for Cause. For purposes of this Agreement, the Employer shall
have "Cause" to terminate the Employee's employment under this Agreement upon
(a) the willful and continued failure by the Employee to substantially perform
his duties under this Agreement (other than any such failure resulting from the
Employee's incapacity due to physical or mental illness) after demand for
substantial performance is delivered by the Employer, in writing, specifically
identifying the manner in which the Employer believes the Employee has not
substantially performed his duties and the Employee fails to perform as required
within 30 days after such demand is made, (b) the willful engaging by the
Employee in criminal misconduct (including embezzlement and criminal fraud)
which is materially injurious to the Employer, monetarily or otherwise or (c)
the conviction of the Employee of a felony and the expiration of the time to
appeal such conviction. For purposes of this paragraph, no act, or failure to
act, on the Employee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without reasonable belief that
his action or omission was in the best interest of the Employer.
Notwithstanding the foregoing, the Employee shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to the Employee a copy of a resolution, duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Board (other than
the Employee) at a meeting of the Board called and held for such purpose (after
reasonable written notice to the Employee and an opportunity for him, together
with his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, the Employee was guilty of conduct set forth above in
clause (a), (b) or (c), and specifying the particulars thereof in detail.
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6.4. Termination by the Employee for Good Reason, Upon a Change of
Control or Because of Ill Health. The Employee may terminate his employment
under this Agreement (a) for Good Reason (as hereinafter defined), (b) at any
time within twelve months after a Change of Control, or (c) if his health should
become impaired to any extent that makes the continued performance of his duties
under this Agreement hazardous to his physical or mental health or his life,
provided that, in the latter case, the Employee shall have furnished the
Employer with a written statement from a qualified doctor to such effect and
provided, further, that at the Employer's request and expense the Employee shall
submit to an examination by a doctor selected by the Employer and such doctor
shall have concurred in the conclusion of the Employee's doctor; provided if the
Employer's doctor does not concur, the Employee's and Employer's doctors shall
select a third physician whose determination shall be binding.
6.4.1. Good Reason. For purposes of this Agreement, "Good
Reason" shall mean (a) any assignment to the Employee of any duties or reporting
obligations other than those contemplated by, or any limitation of the powers of
the Employee in any respect not contemplated by, this Agreement, (b) failure by
the Employer to comply with its obligations and agreements contained in this
Agreement, (c) failure of the Employer to obtain the assumption of the agreement
to perform this Agreement by any successor as contemplated in Section 9(g) of
this Agreement. With respect to the matters set forth in clauses (a), (b) and
(c) of this paragraph, the Employee must give the Employer 30 days prior written
notice of his intent to terminate this Agreement as a result of any breach or
alleged breach of the applicable provision and the Employer shall have the right
to cure any such breach or alleged breach within such 30 day period.
6.4.2. Change of Control. For purposes of this Agreement, a
"Change of Control" shall be deemed to occur, unless previously consented to in
writing by the Employee, upon (a) individuals who, as of the date hereof,
constitute the Board of Directors of the Employer (the "Incumbent Board")
ceasing for any reason to constitute at least a majority of the Board of
Directors of the Employer (the "Board"); provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Employer's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs in connection with a Combination, as defined below, or as a result
of either an actual or threatened election contest (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the
Board; (b) the acquisition of beneficial ownership (as determined pursuant to
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the voting
securities of the Employer by any person, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) not affiliated with the
Employee or the Employer; provided, however, that no Change of Control shall be
deemed to have occurred for purposes of this
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<PAGE> 5
Agreement if such person, entity or group acquires beneficial ownership of 15%
or more of the voting securities of the Employer (i) as a result of a
combination of the Employer or a wholly-owned subsidiary of the Employer with
such person, entity or group or another entity owned or controlled by such
person, entity or group (whether effected by a merger, consolidation, sale of
assets or exchange of stock or otherwise) (a "Combination") and (ii) (x)
executive officers of the Employer (as designated by the Board for purposes of
Section 16 of the Exchange Act) immediately prior to the Combination constitute
not less than 50% of the executive officers of the Employer for a period of not
less than six (6) months after the Combination (for purposes of calculating the
executive officers of the Employer after the Combination, those executive
officers who are terminated by the Employer for Cause or who terminate their
employment without Good Reason shall be excluded from the calculation entirely),
and (y) the members of the Incumbent Board immediately prior to the Combination
constitute not less than 50% of the membership of the Board after the
Combination and (z) after the Combination, more than 35% of the voting
securities of the Employer is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who were the
beneficial owners of the outstanding voting securities of the Employer
immediately prior to the Combination, it being understood that while the
existence of a Change in Control pursuant to this Section 6.4.2(b) may not be
ascertainable for six (6) months after the Combination, if it is ultimately
determined that such Combination constituted a Change in Control, the date of
the Change of Control shall be the effective date of the Combination; (c) the
commencement of a proxy contest against the management for the election of a
majority of the Board of the Employer if the group conducting the proxy contest
owns, has or gains the power to vote at least 15% of the voting securities of
the Employer; (d) the consummation of a reorganization, merger or consolidation,
or the sale, transfer or conveyance of all or substantially all of the assets of
the Employer to any person or entity not affiliated with the Employee or the
Employer unless, following such reorganization, merger, consolidation, sale,
transfer or conveyance, the conditions set forth in clause (b)(ii) above are
present; or (e) the complete liquidation or dissolution of the Employer.
VII. Notice of Termination.
Any termination of the Employee's employment by the Employer or by the
Employee (other than termination by reason of the Employee's death) shall be
communicated by written Notice of Termination to the other party of this
Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean
a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated.
VIII. Date of Termination.
The "Date of Termination" shall mean (a) if the Employee's employment
is terminated by his death, the date of his death, (b) if the Employee's
employment is terminated
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<PAGE> 6
pursuant to Section 6.2 above, the date on which the Notice of Termination is
given, (c) if the Employee's employment is terminated pursuant to Section 6.3
above, the date specified on the Notice of Termination after the expiration of
any cure periods and (d) if the Employee's employment is terminated for any
other reason, the date on which a Notice of Termination is given after the
expiration of any cure periods.
IX. Compensation Upon Termination or During Disability.
(a) If the Employee's employment shall be terminated by reason of his
death, the Employer shall pay to such person as he shall designate in writing
filed with the Employer, or if no such person shall be designated, to his estate
as a lump sum benefit, his full Salary to the date of his death in addition to
any payments the Employee's spouse, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan or life insurance
policy or similar plan or policy then maintained by the Employer, and such
payments shall, assuming the Employer is in compliance with the provisions of
this Agreement, fully discharge the Employer's obligations with respect to
Section 3 of this Agreement, but all other obligations of the Employer under
this Agreement, including the obligations to indemnify, defend and hold harmless
the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, the
Employee shall continue to receive his Salary until the Employee's employment is
terminated pursuant to Section 6.2 of this Agreement, or until the Employee
terminates his employment pursuant to Section 6.4(c) of this Agreement,
whichever first occurs. After termination, the Employee shall be paid, in equal
monthly installments, 100% of his Salary, at the rate in effect at the time
Notice of Termination is given, for one year, and thereafter for one additional
year at an annual rate equal to 50% of the Salary which would have been in
effect under this Agreement, plus, in each case, any disability payments
otherwise payable by or pursuant to plans provided by the Employer to its
executive officers. To the extent physically and mentally capable of so doing
without potentially impairing or damaging his health, the Employee shall provide
consulting services to the Employer during the period that he is receiving
payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or
terminated by the Employee without Good Reason prior to or more than twelve
months after, a Change of Control, the Employer shall pay the Employee his full
Salary through the Date of Termination, at the rate in effect at the time Notice
of Termination is given, and the Employer shall, assuming the Employer is in
compliance with the provisions of this Agreement, have no further obligations
with respect to Section 3 of this Agreement, but all other obligations of the
Employer under this Agreement, including the obligations to indemnify, defend
and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate
the
-6-
<PAGE> 7
Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it
being understood that a purported termination pursuant to Section 6.2 or 6.3
hereof which is disputed and finally determined not to have been proper shall be
a termination by the Employer in breach of this Agreement), including as a
result of a Change of Control, or (B) the Employee shall terminate his
employment for Good Reason or at any time within twelve months after a Change of
Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu
of any further payments pursuant to Section 3 of this Agreement), Severance Pay
(as hereinafter defined), payable on the first day following the Date of
Termination, as follows:
(A) if the Employee, without Good Reason, terminates his
employment at any time within twelve months after a Change of Control (provided
that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement,
it is ascertainable on the date of such Termination that such Change of Control
has occurred), or if, prior to and not as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to the highest of (a) $525,000 or (b) total compensation (including
the value of all perquisites, such as health and life insurance and car
allowance, etc.) received or earned by the Employee from the Employer during the
twelve months prior to the Termination Date, multiplied by three (3), or
(B) if after or as a result of a Change of Control, the
Employee's employment is terminated either by the Employee for Good Reason or by
the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum
amount equal to six (6) times: (i) the total compensation received or earned
(including the value of all perquisites, such as health and life insurance and
car allowance, etc.) and (ii) the value of all stock options granted to the
Employee by the Employer, during the twelve (12) months prior to such Date of
Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and
(iii) all other damages to which the Employee may be entitled as
a matter of law or equity as result of the termination of his employment under
this Agreement, including all costs and expense and expenses incurred by him
(including attorneys fees) in contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit provided by this Agreement.
(iv) The value of the stock options described above will be
determined using a Black-Scholes valuation methodology by an investment bank
reasonably acceptable to
-7-
<PAGE> 8
both Company and Employee. The fees for such valuation will be paid by the
Company.
(e) The amount (if any) payable pursuant to this Section 9(d) (the
"Severance Total") shall be increased by an amount (the "Increase") sufficient
so that after the payment by the Employee of (A) any income taxes on the
Increase and (B) any excise tax on the sum of (I) the Severance Total and (II)
the Increase, the Employee shall have received an amount (net of such taxes)
equal to the Severance Total. The Employee shall be entitled to receive
initially the entire Severance Total (together with any such additional payments
required to cover any excise and income taxes payable as aforesaid) and shall
not be required to repay to the Employer any amount which is ultimately and
finally determined by the Internal Revenue Service (or an appropriate court) to
have been in excess of the amount permitted to be received without incurring
such excise tax, and Employer agrees to use its best efforts to support the
Employee's position that such amounts are not subject to excise tax in any
dispute with the Internal Revenue Service or in any other administrative or
judicial proceedings.
(f) The Employee shall not be required to mitigate the amount of any
payment provided for in this Section 9 by seeking other employment or otherwise,
nor shall the amount of any payment provided for in this Section 9 be reduced by
any compensation earned by the Employee as the result of employment by another
employer or business or by profits earned by the Employee from any other source
at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Employee, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
Failure of the Employer to obtain such Agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Employer in the same amount and on the same
terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his
employment for Good Reason, except for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the Date
of Termination. As used in this Agreement, "Employer" shall mean the Employer
and any successor to its business and/or assets which executes the Agreement or
which otherwise becomes bound by the terms and conditions of this Agreement by
operation of law.
(h) (A) Upon the occurrence of a Change of Control, or (B) if in
breach of this Agreement, the Employer shall terminate the Employee's employment
other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a
purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed
and finally determined not to have been proper shall be a termination by the
Employer in breach of this Agreement), or (C) if the Employee shall terminate
his employment for Good Reason at any time, then notwithstanding the vesting and
exercisability schedule in any stock option agreement between Employer and
Employee, all unvested stock
-8-
<PAGE> 9
options granted by the Employer to the Employee pursuant to such agreement shall
immediately vest and become exercisable and shall remain exercisable for not
less than 180 days thereafter.
X. Confidentiality; Noncompetition.
A. The Employer and the Employee acknowledge that the services to be
performed by the Employee under this Agreement are unique and extraordinary and,
as a result of such employment, the Employee will be in possession of
confidential information relating to the business practices of the Company. The
term "confidential information" shall mean any and all information (verbal and
written) relating to the Company or any of its affiliates, or any of their
respective activities, other than such information which can be shown by the
Employee to be in the public domain (such information not being deemed to be in
the public domain merely because it is embraced by more general information
which is in the public domain) other than as the result of breach of the
provisions of this Section 10(a), including, but not limited to, information
relating to: trade secrets, personnel lists, financial information, research
projects, services used, pricing, customers, customer lists and prospects,
product sourcing, marketing and selling and servicing. The Employee agrees that
he will not, during or for a period of two years after the termination of
employment, directly or indirectly, use, communicate, disclose or disseminate to
any person, firm or corporation any confidential information regarding the
clients, customers or business practices of the Company acquired by the Employee
during his employment by Employer, without the prior written consent of
Employer; provided, however, that the Employee understands that Employee will be
prohibited from misappropriating any trade secret (as defined for purposes of
Indiana law) at any time during or after the termination of employment.
B. The Employee hereby agrees that he shall not, during the period
of his employment and for a period of two (2) years following such employment,
directly or indirectly, within any county (or adjacent county) in any State
within the United States or territory outside the United States in which the
Company is engaged in business during the period of the Employee's employment or
on the date of termination of the Employee's employment, engage, have an
interest in or render any services to any business (whether as owner, manager,
operator, licensor, licensee, lender, partner, stockholder, joint venturer,
employee, consultant or otherwise) competitive with the Company's principal
business activities. Notwithstanding the foregoing, Employee shall be permitted
to own (as a passive investment) not more than 5% of any class of securities
which is publicly traded; provided, however that said 5% limitation shall apply
to the aggregate holdings of Employee and those of all other persons and
entities with whom Employee has agreed to act for the purpose of acquiring,
holding, voting or disposing of such securities.
C. The Employee hereby agrees that he shall not, during the period
of his employment and for a period of two (2) years following such employment,
directly or indirectly, take any action which constitutes an interference with
or a disruption of any of the Company's
-9-
<PAGE> 10
business activities including, without limitation, the solicitations of the
Company's customers, or persons listed on the personnel lists of the Company. At
no time during the term of this Agreement, or thereafter shall the Employee
directly or indirectly, disparage the commercial, business or financial
reputation of the Company.
D. For purposes of clarification, but not of limitation, the
Employee hereby acknowledges and agrees that the provisions of subparagraphs
10(b) and (c) above shall serve as a prohibition against him, during the period
referred to therein, directly or indirectly, hiring, offering to hire, enticing,
soliciting or in any other manner persuading or attempting to persuade any
officer, employee, agent, lessor, lessee, licensor, licensee or customer who has
been previously contacted by either a representative of the Company, including
the Employee, (but only those suppliers existing during the time of the
Employee's employment by the Company, or at the termination of his employment),
to discontinue or alter his, her or its relationship with the Company.
E. Upon the termination of the Employee's employment for any reason
whatsoever, all documents, records, notebooks, equipment, price lists,
specifications, programs, customer and prospective customer lists and other
materials which refer or relate to any aspect of the business of the Company
which are in the possession of the Employee including all copies thereof, shall
be promptly returned to the Company.
F. 1. The Employee agrees that all processes, technologies and
inventions ("Inventions"), including new contributions, improvements, ideas and
discoveries, whether patentable or not, conceived, developed, invented or made
by him during his employment by Employer shall belong to the Company, provided
that such Inventions grew out of the Employee's work with the Company, are
related in any manner to the business (commercial or experimental) of the
Company or are conceived or made on the Company's time or with the use of the
Company's facilities or materials. The Employee shall further: (a) promptly
disclose such Inventions to the Company; (b) assign to the Company, without
additional compensation, all patent and other rights to such Inventions for the
United States and foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of his inventorship;
2. If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the Employee within two
years after the termination of his employment by the Company, it is to be
presumed that the Invention was conceived or made during the period of the
Employee's employment by the Company; and
3. The Employee agrees that he will not assert any rights to
any Invention as having been made or acquired by him prior to the date of this
Agreement, except for Inventions, if any, disclosed to the Company in writing
prior to the date hereof.
-10-
<PAGE> 11
G. The Company shall be the sole owner of all products and proceeds
of the Employee's services hereunder, including, but not limited to, all
materials, ideas, concepts, formats, suggestions, developments, arrangements,
packages, programs and other intellectual properties that the Employee may
acquire, obtain, develop or create in connection with and during the term of the
Employee's employment hereunder, free and clear of any claims by the Employee
(or anyone claiming under the Employee) of any kind or character whatsoever
(other than the Employee's right to receive payments hereunder). The Employee
shall, at the request of the Company, execute such assignments, certificates or
other instruments as the Company may from time to time deem necessary or
desirable to evidence, establish, maintain, perfect, protect, enforce or defend
its right, or title and interest in or to any such properties.
H. The parties hereto hereby acknowledge and agree that (i) the
Company would be irreparably injured in the event of a breach by the Employee of
any of his obligations under this Section 10, (ii) monetary damages would not be
an adequate remedy for any such breach, and (iii) the Company shall be entitled
to injunctive relief, in addition to any other remedy which it may have, in the
event of any such breach.
I. The parties hereto hereby acknowledge that, in addition to any
other remedies the Company may have under Section 10(h) hereof, the Company
shall have the right and remedy to require the Employee to account for and pay
over to the Company all compensation, profits, monies, accruals, increments or
other benefits (collectively, "Benefits") derived or received by the Employee as
the result of any transactions constituting a breach of any of the provisions of
Section 10, and the Employee hereby agrees to account for and pay over such
Benefits to the Company.
J. Each of the rights and remedies enumerated in Section 10(h) and
10(i) shall be independent of the other, and shall be severally enforceable, and
all of such rights and remedies shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
K. If any provision contained in this Section 10 is hereafter
construed to be invalid or unenforceable, the same shall not affect the
remainder of the covenant or covenants, which shall be given full effect,
without regard to the invalid portions.
L. If any provision contained in this Section 10 is found to be
unenforceable by reason of the extent, duration or scope thereof, or otherwise,
then the court making such determination shall have the right to reduce such
extent, duration, scope or other provision and in its reduced form any such
restriction shall thereafter be enforceable as contemplated hereby.
M. It is the intent of the parties hereto that the covenants
contained in this Section 10 shall be enforced to the fullest extent permissible
under the laws and public policies of
-11-
<PAGE> 12
each jurisdiction in which enforcement is sought (the Employee hereby
acknowledging that said restrictions are reasonably necessary for the protection
of the Company). Accordingly, it is hereby agreed that if any of the provisions
of this Section 10 shall be adjudicated to be invalid or unenforceable for any
reason whatsoever, said provision shall be (only with respect to the operation
thereof in the particular jurisdiction in which such adjudication is made)
construed by limiting and reducing it so as to be enforceable to the extent
permissible, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of said provision in any other
jurisdiction.
XI. Indemnification. The Employer shall indemnify and hold harmless
the Employee against any and all expenses reasonably incurred by him in
connection with or arising out of (a) the defense of any action, suit or
proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been
an employee, officer or director of the Company, whether or not he continues to
be such an employee, officer or director at the time of incurring such expenses,
except insofar as such indemnification is prohibited by law. Such expenses shall
include, without limitation, the fees and disbursements of attorneys, amounts of
judgments and amounts of any settlements, provided that such expenses are agreed
to in advance by the Employer. The foregoing indemnification obligation is
independent of any similar obligation provided in the Employer's Certificate of
Incorporation or Bylaws, and shall apply with respect to any matters
attributable to periods prior to the Effective Date, and to matters attributable
to his employment hereunder, without regard to when asserted.
XII. General. This Agreement is further governed by the following
provisions:
A. Notices. All notices relating to this Agreement shall be in
writing and shall be either personally delivered, sent by telecopy (receipt
confirmed) or mailed by certified mail, return receipt requested, to be
delivered at such address as is indicated below, or at such other address or to
the attention of such other person as the recipient has specified by prior
written notice to the sending party. Notice shall be effective when so
personally delivered, one business day after being sent by telecopy or five days
after being mailed.
To the Employer: Brightpoint, Inc.
6402 Corporate Drive
Indianapolis, Indiana 46278
To the Employee: Steven E. Fivel
1436 Gwynmere Run
Carmel, Indiana 46032
With, in either case, a copy in the same manner to:
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<PAGE> 13
Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
B. Parties in Interest. Employee may not delegate his duties or
assign his rights hereunder. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
C. Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of the Employee by the Employer and contains all of the
covenants and agreements between the parties with respect to such employment in
any manner whatsoever. Any modification or termination of this Agreement will be
effective only if it is in writing signed by the party to be charged.
D. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Indiana. Employee agrees to and
hereby does submit to jurisdiction before any state or federal court of record
in Marion County, Indiana, or in the state and county in which such violation
may occur, at Employer's election.
E. Warranty. Employee hereby warrants and represents as follows:
1. That the execution of this Agreement and the discharge of
Employee's obligations hereunder will not breach or conflict with any other
contract, agreement, or understanding between Employee and any other party or
parties.
2. Employee has ideas, information and know-how relating to the
type of business conducted by Employer, and Employee's disclosure of such ideas,
information and know-how to Employer will not conflict with or violate the
rights of any third party or parties.
F. Severability. In the event that any term or condition in this
Agreement shall for any reason be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other term or condition of this
Agreement, but this Agreement shall be construed as if such invalid or illegal
or unenforceable term or condition had never been contained herein.
G. Execution in Counterparts. This Agreement may be executed by the
parties in one or more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
BRIGHTPOINT, INC.
By: /s/ J. Mark Howell
------------------------------------
J. Mark Howell, President & COO
/s/ Steven E. Fivel
------------------------------------
Steven E. Fivel
14
<PAGE> 15
EXHIBIT "A"
DUTIES AND RESPONSIBILITIES
Legal representation of the Company, its affiliates, subsidiaries, successors
and assigns, in all legal matters. Approval and appointment of outside counsel
to represent the Company in any and all legal matters. Maintenance of the
corporate minute books and records of the Company, its affiliates, subsidiaries,
successors and assigns. Including, but not limited to, the following duties and
responsibilities:
CORPORATE STRATEGIES Assists in the definition and develops corporate
strategies, policies, procedures and programs. Provides counsel and
guidance on legal implications of all matters to the Board of
Directors and members of executive management of the Company. Converts
Company strategies and policies into specific objectives and monitors
the accomplishment of such objectives.
LEGAL ISSUES. Reconciles and determines the legal position in major legal
matters. Reviews, evaluates and analyzes other obligations of the
Company, and advises the Company with the legal risk associated with
such contracts and obligations prior to the Company becoming a party
or otherwise becoming legally bound. Assesses the merits of potential
litigation matters or actual court cases filed against the Company and
approves settlement of such court cases.
BUDGET. Determines the budget for the Legal Department and monitors the
administration of the current budget. Evaluates the legal risks to
which the Company may be exposed in order to allow these risks to be
accurately reflected in the Company's financial statements.
BOARD OF DIRECTORS. Advises the Board of Directors and other members of the
Company's executive management of the impact on the activities and
proposed activities of the Company of proposed local, state and
Federal laws and regulations and judicial and administrative
decisions.
POLICIES AND RECORDS. Provides legal consulting in policy development and
training with regard to preventative law. Guides and directs the
preparation and maintenance of the records of the Company.
SPECIAL PROJECTS. Undertakes special projects as assigned dependent upon
knowledge or experience.
CLIENTS. Advises clients, in keeping with the Company's values, strategies,
goals and principles, with respect to all legal aspects of matter
management.
OUTSIDE AGENCIES. Represents the Company in dealings with outside law
firms, government representatives and agencies, independent technical
experts and others in the legal profession.
-15-
<PAGE> 1
Exhibit (11) Statement Re: Computation of Earnings Per Share
(Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended June 30 Six Months Ended June 30
1998 1999 1998 1999
---------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
Basic:
Weighted average shares outstanding 51,979 53,304 51,597 53,176
========== ========== ========== ===========
Income (loss) before income taxes, minority
interest and accounting change $ 12,877 $ (84,868) $ 25,457 $ (86,756)
Deduct income taxes 3,863 5,646 7,637 5,003
Add minority interest (44) - (81) (33)
Deduct cumulative effect of accounting change,
net of tax - - - 14,065
---------- ---------- ---------- -----------
Net income (loss) $ 9,058 $ (90,514) $ 17,901 $ (105,791)
========== ========== ========== ===========
Per share amount $ 0.17 $ (1.70) $ 0.35 $ (1.99)
========== ========== ========== ===========
Diluted:
Weighted average shares outstanding 51,979 53,304 51,597 53,176
Net effect of dilutive stock options and warrants-
based on the treasury stock method using
average market price 1,746 - 1,983 -
---------- ---------- ---------- -----------
Total weighted average shares outstanding 53,725 53,304 53,580 53,176
========== ========== ========== ===========
Income (loss) before income taxes, minority
interest and accounting change $ 12,877 $ (84,868) $ 25,457 $ (86,756)
Deduct income taxes 3,863 5,646 7,637 5,003
Add minority interest (44) - (81) (33)
Deduct cumulative effect of accounting change,
net of tax - - - 14,065
---------- ---------- ---------- -----------
Net income (loss) $ 9,058 $ (90,514) $ 17,901 $ (105,791)
========== ========== ========== ===========
Per share amount $ 0.17 $ (1.70) $ 0.33 $ (1.99)
========== ========== ========== ===========
</TABLE>
31
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE FORM
10-Q FOR THE QUARTER ENDED JUNE 30, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<CASH> 39,015
<SECURITIES> 0
<RECEIVABLES> 214,958
<ALLOWANCES> 4,681
<INVENTORY> 135,464
<CURRENT-ASSETS> 430,276
<PP&E> 36,509
<DEPRECIATION> 0
<TOTAL-ASSETS> 537,521
<CURRENT-LIABILITIES> 161,559
<BONDS> 243,260
0
0
<COMMON> 533
<OTHER-SE> 132,169
<TOTAL-LIABILITY-AND-EQUITY> 537,521
<SALES> 786,708
<TOTAL-REVENUES> 786,708
<CGS> 737,576
<TOTAL-COSTS> 737,576
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,100
<INCOME-PRETAX> (86,756)
<INCOME-TAX> 5,003
<INCOME-CONTINUING> (91,726)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> (14,065)
<NET-INCOME> (105,791)
<EPS-BASIC> (1.99)
<EPS-DILUTED> (1.99)
</TABLE>
<PAGE> 1
EXHIBIT 99
CAUTIONARY STATEMENTS
Certain statements in this Form 10-Q and in the documents incorporated by
reference herein constitute "forward-looking statements" within the meaning of
the Private Securities Litigation Reform Act of 1995. Such forward-looking
statements involve known and unknown risks, uncertainties and other factors
which may cause the actual results, performance or achievements of the Company
to be materially different from any future results, performance or achievements
expressed or implied by such forward-looking statements. Such factors include,
among others, the following: the ability to hire and retain key personnel;
successful completion and integration of future acquisitions; relationships with
and dependence on third-party wireless communications equipment manufacturers
and suppliers, network operators and other providers of wireless communications
logistics services; uncertainties relating to business and economic conditions
in markets in which the Company operates; uncertainties relating to government
and regulatory policies and other political risks; uncertainties relating to
customer plans and commitments; dependence on the wireless communications
industry; pricing and availability of wireless communications equipment
materials and inventories; rapid technological developments and obsolescence in
the wireless communications industry; potential performance issues with
suppliers and customers; governmental export and import policies; global trade
policies; worldwide political stability and economic growth; the highly
competitive environment in which the Company operates; potential entry of new,
well-capitalized competitors into the Company's markets; changes in the
Company's capital structure and cost of capital; the Company's continued
ability, through sales growth, to absorb the increasing costs incurred and to be
incurred in connection with its expansion activities and provision of integrated
logistics services; uncertainties inherent in international operations; foreign
currency fluctuations; and failure of the Company or critical third parties with
which the Company does business to be Year 2000 compliant. The words "believe,"
"expect," "anticipate," "intend," and "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 of the
statement was made.
33
