EXHIBIT 10.31
AMENDED AND RESTATED PAYMENT TERMS AGREEMENT
THIS AMENDED AND RESTATED PAYMENT TERMS AGREEMENT (the "Agreement") is
made as of April 23, 2004, by and among MOTOROLA, INC., a Delaware corporation,
in its capacity as agent for itself and the other Motorola Parties (in such
capacity, "Motorola"), BRIGHTSTAR CORP., a Delaware corporation ("Brightstar"),
and the other persons and entities whose names appear on the signature pages of
this Agreement.
Preliminary Statements
(a) Motorola, Inc., Brightstar and certain other persons and entities
entered into a letter agreement dated June 18, 2001 (the "Original Payment Terms
Agreement"), regarding 30-day payment terms then being provided by Motorola,
Inc. to Brightstar and certain of its subsidiaries or affiliates.
(b) The Original Payment Terms Agreement was amended by (i) an Omnibus
Amendment made as of May 24, 2002, by and among Motorola, Inc., Brightstar and
the other parties thereto, and (ii) an Amendment and Consent to Falcon
Transactions dated as of December 30, 2003, by and among Motorola, Inc.,
Brightstar and the other parties thereto.
(c) The parties to this Agreement desire to further amend the Original
Payment Terms Agreement and to restate it in its entirety as so further amended.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree to amend and restate the
Original Payment Terms Agreement in its entirety as follows:
1. Definitions. The following terms have the following meanings as used in
this Agreement:
"Agent" means PNC Bank, National Association, in its capacity as Agent for
the Lenders under the PNC Credit Agreement.
"Brightstar Documents" means, collectively, all agreements of any of the
Brightstar Parties between, among or in favor of any of the Motorola Parties, as
any of those agreements may be amended, restated, supplemented or otherwise
modified from time to time, including, without limitation: (a) the Amended and
Restated Payment Terms Agreement, dated as of April 23, 2004, by and among
Brightstar Corp., Motorola, Inc., in its capacity as agent for itself and the
other Motorola Parties, and the other persons and entities that are parties
thereto (the "Payment Terms Agreement"); (a) the Amended and Restated
Distribution Agreement, effective as of October 9, 2003, between Brightstar
Corp. and Motorola, Inc. (the "Brightstar Distribution Agreement"); (a) the
United States Distribution Agreement for Cellular Phones and Accessories,
effective as of October 1, 2003, between Motorola, Inc. and Brightstar US, Inc.
(the "Brightstar US Distribution Agreement"); (a) the Distribution Agreement,
dated as of July 30, 2001, between Brightstar de Mexico S.A. de C.V. and
Motorola de Mexico, S.A. (the "Brightstar Mexico Distribution Agreement"); (a)
the Amended and Restated Unconditional Guaranty, dated
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as of April 23, 2004, by Brightstar Corp. in favor of Motorola, Inc., in its
capacity as agent for itself and the other Motorola Parties (the "Brightstar
Guaranty"); (a) the Amended and Restated Security Agreement, dated as of April
23, 2004, by Brightstar Corp. in favor of Motorola, Inc., in its capacity as
agent for itself and the other Motorola Parties (the "Brightstar Security
Agreement"); (a) the Amended and Restated Personal Guaranty, dated as of April
23, 2004, by Xxxx X. Xxxxxx and Xxxxxxxx Xxxxxx in favor of Motorola, Inc., in
its capacity as agent for itself and the other Motorola Parties (the "Xxxxxx
Guaranty"); (a) the Amended and Restated Personal Guaranty, dated as of April
23, 2004, by Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxxxx in favor of Motorola, Inc.,
in its capacity as agent for itself and the other Motorola Parties (the
"Xxxxxxxx Guaranty"); (a) the Amended and Restated Stock Pledge and Security
Agreement, dated as of April 23, 2004, by Xxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx
in favor of Motorola, Inc., in its capacity as agent for itself and the other
Motorola Parties (the "Xxxxxx/Xxxxxxxx Pledge"); (a) the Amended and Restated
Stock Pledge and Security Agreement, dated as of April 23, 2004, by Brightstar
Corp. in favor of Motorola, Inc., in its capacity as agent for itself and the
other Motorola Parties (the "Brightstar US Pledge"); (a) the Amended and
Restated Unconditional Guaranty, dated as of April 23, 2004, by Brightstar US,
Inc. in favor of Motorola, Inc., in its capacity as agent for itself and the
other Motorola Parties (the "Brightstar US Guaranty"); (a) the Amended and
Restated Security Agreement, dated as of April 23, 2004, by Brightstar US, Inc.
in favor of Motorola, Inc., in its capacity as agent for itself and the other
Motorola Parties (the "Brightstar US Security Agreement"); (a) the Amended and
Restated Stock Pledge Agreement, dated as of April 23, 2004, by Xxxxxx Xxxxxx in
favor of Motorola, Inc., in its capacity as agent for itself and the other
Motorola Parties (the "Xxxxxx Pledge"); (a) the Stock Pledge and Security
Agreement, dated as of April 23, 2004, by Brightstar Corp. in favor of Motorola,
Inc., in its capacity as agent for itself and the other Motorola Parties (the
"Foreign Subsidiary Pledge"); (a) the Unconditional Guaranty, dated as of April
23, 2004, by the Foreign Subsidiaries (as defined therein) in favor of Motorola,
Inc., in its capacity as agent for itself and the other Motorola Parties (the
"Foreign Subsidiary Guaranty"); (a) the Security Agreement, dated as of April
23, 2004, by the Foreign Subsidiaries (as defined therein) in favor of Motorola,
Inc., in its capacity as agent for itself and the other Motorola Parties (the
"Foreign Subsidiary Security Agreement"); and (a) the Limited Security
Agreement, dated as of April 23, 2004, by the Foreign Subsidiaries (as defined
therein) in favor of Motorola, Inc., in its capacity as agent for itself and the
other Motorola Parties (the "Foreign Subsidiary Limited Security Agreement").
"Brightstar Obligations" means all obligations of any of the Brightstar
Parties to any of the Motorola Parties, however created, arising or evidenced,
whether direct or indirect, absolute or contingent, now existing or hereafter
arising or acquired, including, without limitation: (a) all obligations of any
of the Brightstar Parties under any of the Brightstar Documents; (b) the payment
of any invoices that any of the Motorola Parties has rendered or may render in
the future against any of the Brightstar Parties; (c) the payment of any
contracts or other evidences of indebtedness that any of the Brightstar Parties
may deliver to any of the Motorola Parties for goods or services; (d) the
payment of any applicable taxes of any kind that may arise out of or relate to
clause (a), (b) or (c) that may be levied against any of the Motorola Parties by
a proper taxing authority; (e) the payment of any interest, penalty or late
charge that may arise out of or relate to the failure of any of the Brightstar
Parties to pay any of the Motorola Parties, whether (i) assessed by any of the
Motorola Parties against any of the Brightstar Parties as part of the normal
collection practices of any of the Motorola Parties; or (ii) assessed by others
against any of the Motorola Parties; (f) the payment of principal, interest and
any other amounts due or to
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become due, whether by acceleration or otherwise, under all other obligations of
any of the Brightstar Parties to any of the Motorola Parties, and (g) the
payment of any costs or expenses incurred by any of the Motorola Parties in
collecting all or any portion of the foregoing or in obtaining, preserving,
perfecting and enforcing any security interest granted by any of the Brightstar
Parties or in maintaining, preserving and collecting the property subject to any
such security interest.
"Brightstar Parties" means, collectively, (a) Brightstar Corp., (b) any
past, present or future direct or indirect Subsidiary or affiliate of Brightstar
Corp., (c) Xxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx and Xxxxxx Xxxxxx; and (d) any
person or entity that now or hereafter owns 10% or more of the outstanding stock
having ordinary voting power to elect a majority of the board of directors of
Brightstar.
"Business Day" shall mean any day other than a Saturday, Sunday or U.S.
legal holiday.
"Certificate of Designation" means Brightstar Corp.'s Certificate of
Designation of the Powers, Preferences and Relative, Participating Optional and
Other Special Rights of 8.0% Senior Cumulative Convertible Preferred Stock,
Series A, and Qualifications, Limitations and Restrictions Thereof.
"Collateral" means all property, personal or real, with respect to which a
Lien has been granted to or for the benefit of Motorola or any of the Motorola
Parties pursuant to any of the Brightstar Documents or which otherwise secures
the payment or performance of any of the Brightstar Obligations.
"Debt" means any of the following: (1) indebtedness or liability for
borrowed money; (2) obligations evidenced by bonds, debentures, notes or other
similar instruments; (3) obligations for the deferred purchase price of property
or services (including, without limitation, trade payables), or arising out of
non-compete agreements entered into in connection with asset or equity
acquisitions; (4) obligations as lessee under capital leases; (5) current
liabilities in respect of unfunded vested benefits under employee benefit plans;
(6) obligations under letters of credit or acceptance facilities; (7) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business) and other contingent obligations to purchase, to provide
funds for payment, to supply funds to invest in any person, or otherwise to
assure a creditor against loss; and (8) obligations secured by a Lien, whether
or not the obligations have been assumed.
"Default" means an event or condition the occurrence of which would, with
the lapse of time or the giving of notice or both, become an Event of Default.
"Event of Default" has the meaning specified in Section 9 of this
Agreement.
"Foreign Subsidiary" means any direct or indirect Subsidiary of Brightstar
now or hereafter created that is organized outside of the United States of
America and its territories (including, without limitation, Brightstar Puerto
Rico, Inc.), together with any and all successors and assigns of each of the
foregoing.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority,
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or other security agreement or preferential arrangement, charge or encumbrance
of any kind or nature whatsoever, including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction to evidence any of the foregoing.
"Motorola Parties" means, collectively, Motorola, Inc. and any of its
Subsidiaries or affiliates (including, without limitation, Motorola Industrial,
Ltda. and Motorola de Mexico, S.A.).
"Notes" means Brightstar Corp.'s 10.5% Convertible Senior Subordinated
Notes due December 31, 2008.
"Permitted Debt" means any of the following: (1) accrued expenses and
current trade payables incurred in the ordinary course of business of the
Brightstar Parties (provided, that such accrued expenses and current trade
accounts payable are unsecured); (2) Debt to Motorola or any of the Motorola
Parties; (3) Debt under the PNC Credit Agreement (provided, that the aggregate
outstanding principal amount of such Debt does not exceed $70,000,000 at any
time); (4) Debt under the Notes; (5) unsecured Debt under lines of credit with
one or more U.S. financial institutions (provided, that the aggregate
outstanding principal amount of such debt does not exceed $50,000,000 at any
time during the six month period following the date of this Agreement and does
not exceed $30,000,000 at any time thereafter); (6) unsecured Debt under lines
of credit with one or more foreign financial institutions (provided, that the
aggregate outstanding principal amount of such debt does not exceed $10,000,000
at any time); and (7) other Debt approved in advance by Motorola in writing.
"Permitted Liens" means any of the following: (1) Liens for taxes,
assessments or governmental charges not delinquent or being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with GAAP are maintained on the Brightstar Parties' books; (2) Liens
arising out of deposits in connection with workers' compensation, unemployment
insurance, old age pensions or other social security or retirement benefits
legislation; (3) deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds, and other obligations of like nature arising in the ordinary
course of the Brightstar Parties' business; (4) Liens imposed by law, such as
mechanics', workers', materialmen's, carriers' or other like Liens (excluding,
however, any Lien in favor of a landlord) arising in the ordinary course of the
Brightstar Parties' business which secure the payment of obligations which are
not past due or which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
are maintained on the Brightstar Parties' books; (5) rights of way, zoning
restrictions, easements and similar encumbrances affecting the Brightstar
Parties' real property which do not materially interfere with the use of such
property; (6) Liens in favor of Motorola or any of the Motorola Parties; and (7)
Liens securing Debt under the PNC Credit Agreement, but only so long as such
Liens are expressly permitted by the terms of the PNC Intercreditor Agreement.
"PNC Credit Agreement" means that certain Revolving Credit and Security
Agreement, dated as of April 23, 2004 (as the same may be amended, restated,
supplemented or otherwise
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modified from time to time), among Brightstar Corp., Brightstar US, Inc.,
Brightstar Puerto Rico, Inc., the financial institutions from time to time party
thereto, and PNC Bank, National Association, as agent, and any credit agreement
relating to loans and advances that are used to refinance and indefeasibly pay
in full the Lender Indebtedness (as defined in the PNC Intercreditor Agreement)
as permitted by Section 16(a) of the PNC Intercreditor Agreement.
"PNC Intercreditor Agreement" means that certain Intercreditor Agreement
dated as of April 23, 2004 (as the same may be amended, restated, supplemented
or otherwise modified from time to time), between Motorola and the Agent.
"Purchase Agreement" means the Purchase Agreement, dated as of December
30, 2003, and entered into by and among Brightstar Corp., certain of its
subsidiaries as guarantors and the purchasers signatory thereto regarding the
Notes.
"Subsidiary" means any corporation or other entity of which an aggregate
of more than 50% of the outstanding stock having ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether, at the time, capital stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time, directly or indirectly, owned legally or
beneficially by Brightstar or one or more subsidiaries of Brightstar, or with
respect to which Brightstar or any subsidiary thereof has the right to vote or
designate the vote of 50% or more of such capital stock whether by proxy,
agreement, operation of law or otherwise, and (b) any partnership or limited
liability company in which Brightstar and/or one or more of its subsidiaries
shall have an interest (whether in the form of voting or participation in
profits or capital contribution) of more than 50% or of which Brightstar or any
subsidiary thereof is a general partner or may exercise the powers of a general
partner.
2. Amendment and Restatement; Guaranties and Liens Unimpaired. This
Agreement amends, restates and replaces the Original Payment Terms Agreement in
its entirety. It is the intention and understanding of the parties that (a) this
Agreement shall continue the obligations under the Original Payment Terms
Agreement (and any Brightstar Obligations represented, guarantied or secured
thereby) and shall not act as a novation of the Original Payment Terms Agreement
(or any Brightstar Obligations represented, guarantied or secured thereby), (b)
all guaranties and all security interests, pledges and other liens guarantying
or securing the Original Payment Terms Agreement (or any Brightstar Obligations
represented, guarantied or secured thereby) shall remain in full force and
effect and shall guarantee and secure this Agreement (and all Brightstar
Obligations represented, guarantied or secured thereby), and (c) the priority of
all guaranties and all security interests, pledges and other liens guarantying
or securing any obligations under the Original Payment Terms Agreement (or any
Brightstar Obligations represented, guarantied or secured thereby) shall not be
impaired by the execution, delivery or performance of this Agreement.
3. Credit Line. As reflected in the Brightstar Distribution Agreement,
Motorola has agreed to establish a Credit Line that Motorola determines is
appropriate based upon standard credit industry criteria that help determine the
creditworthiness of Brightstar, the amount of which Credit Line is communicated
to Brightstar in writing by Motorola from time to time, and pursuant to which
Credit Line the Brightstar Parties may be permitted to purchase Products (as
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defined in the Brightstar Distribution Agreement) from the Motorola Parties on
30-day payment terms. To the extent Motorola allows (in its sole discretion) the
outstanding amount of the Brightstar Obligations to exceed the Credit Line,
Motorola has the right to require the Brightstar Parties to prepay the amount
that exceeds the Credit Line upon demand. The Brightstar Parties agree that
Motorola continues to have the right to change the Credit Line from time to time
in its sole discretion and that the fact that Motorola may have previously
allowed the outstanding amount of the Brightstar Obligations to have exceed the
Credit Line in effect at the time (or may in its discretion permit it to exceed
the Credit Line in effect in the future) in no way obligates Motorola to do so
again or impairs Motorola's right to change the Credit Line to any amount
selected by Motorola in its discretion. The Credit Line does not represent a
commitment or obligation on the part of Motorola or any of the Motorola Parties
to lend, or in any way extend credit terms, to the Brightstar Parties.
4. Representations and Warranties. Each of the Brightstar Parties
represents and warrants to Motorola (for its benefit and for the benefit of each
of the Motorola Parties) as follows:
(a) Organization, Enforceability, and no Conflicts. (i) If it is not
a natural person, it is duly organized, validly existing and in good standing in
the jurisdiction of its organization and in all other jurisdictions in which it
is required to be qualified to do business as a foreign organization or entity
and, whether or not a natural person, has full power and authority, and has
obtained all licenses and permits (and has filed all registrations), necessary
for the operation of its business; (ii) the execution, delivery and performance
by such Brightstar Party of the Brightstar Documents to which it is a party (and
any documents or transactions contemplated thereby) are within its power and
authority, have been duly authorized by all necessary action on its part and do
not violate or conflict with, or require any consent under, (A) if it is not a
natural person, the certificate of incorporation, by-laws, or any other
agreement or document relating to the existence of such Brightstar Party or its
authority to act, (B) any agreement or instrument to which such Brightstar Party
is a party or by which it or any of its properties is bound, (C) any court
order, judicial proceeding or any administrative or arbitral order or decree, or
(D) any applicable law, rule or regulation; (iii) no authorization, approval or
consent of or by, and no notice to or filing or registration with, any
governmental authority or any other person is necessary for such Brightstar
Party to enter into the Brightstar Documents to which it is a party (or any
document or transaction contemplated thereby) or to perform its obligations with
respect to each of the foregoing; and (iv) each of the Brightstar Documents to
which it is a party (and any documents or transactions contemplated thereby) is
the legal, valid and binding obligations of such Brightstar Party, enforceable
against such Brightstar Party in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforceability of creditors' rights
generally and subject to the discretion of courts in applying equitable remedies
(b) Financial Statements. All financial statements of such
Brightstar Party which have been furnished to Motorola fairly present the
financial condition of such Brightstar Party, as of the dates reflected on the
financial statements, and fairly present the results of its operations for the
period covered thereby, all in accordance with GAAP, except for the omission of
footnotes in interim financial statements and subject to normal year-end
adjustments. As of the date of this Agreement, there has been no material
adverse change in the financial condition
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or results from operations, as the case may be, of such Brightstar Party since
the dates of the most recent financial statements of such Brightstar Party
submitted to Motorola.
(c) Litigation. There is no pending or threatened action or
proceeding affecting such Brightstar Party or any of its properties before any
court, governmental agency or arbitrator which, if adversely determined to such
Brightstar Party, could materially and adversely affect the financial condition
or business prospects of such Brightstar Party or the rights of Motorola or any
of the Motorola Parties under any of the Brightstar Documents.
(d) Existing Debt. It has no Debt other than Permitted Debt.
(e) Stock and Records. All outstanding capital stock of such
Brightstar Party was and is properly issued, and all books and records of such
Brightstar Party, including but not limited to its minute books, by-laws and
books of account, are accurate and complete in all material respects. Such
Brightstar Party is not obligated on or after the date of this Agreement to
redeem or otherwise acquire, or pay any dividends or make any other
distributions in respect of, any of its stock.
(f) Negative Pledges. Such Brightstar Party is not a party to or
bound by any indenture, contract or other instrument or agreement that prohibits
the creation, incurrence or existence of any Lien in favor of Motorola upon any
of the Collateral.
(g) Title to Property; Liens. Such Brightstar Party has good and
marketable title to all assets and other property purported to be owned by it,
subject to no other Liens except for Permitted Liens.
(h) Survival of Representations. All representations and warranties
made by each Brightstar Party in this Section 4 shall survive the execution and
delivery of this Agreement.
5. Affirmative Covenants. So long as any Brightstar Obligations remain
unpaid or any of the Brightstar Documents remain in effect, each of the
Brightstar Parties covenants to, and agrees with, Motorola (for its benefit and
for the benefit of each of the Motorola Parties) as follows:
(a) Compliance with Laws. Such Brightstar Party shall comply in all
material respects with all applicable laws, rules, regulations and orders
affecting it or its properties.
(b) Books and Records; Inspection; Bank Audits. Such Brightstar
Party shall: (1) maintain complete and accurate books and financial records in
accordance with GAAP (except that interim financial statements need not contain
footnotes and may be subject to normal year-end audit adjustments); (2) during
normal working hours permit Motorola and persons designated by it to visit and
inspect its properties and to conduct any audits thereon, to inspect its books
and financial records (including its journals, orders, receipts and
correspondence which relates to its accounts receivable), and to discuss its
affairs, finances and accounts receivable and operations with its directors,
officers, employees and agents and its independent public accountants; and (3)
permit Motorola and persons designated by it to perform audits of such books and
financial records when and as requested by Motorola.
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(c) Reporting Requirements. Such Brightstar Party shall furnish to
Motorola:
(i) Monthly Statements. As soon as available and in any event
within 30 days after the end of each month of each fiscal year of such
Brightstar Party, an internally prepared balance sheet of such Brightstar
Party as of the end of such month and internally prepared income
statements and statements of cash flow as of the end of such month for
such month and for the fiscal year-to-date, each certified by the chief
financial officer of such Brightstar Party;
(ii) Preliminary Year-End Statements. As soon as available and
in any event within 30 days after the end of each fiscal year of such
Brightstar Party, internally prepared year-end financial statements
(including, without limitation, a balance sheet, income statement,
statement of cash flow and statement of retained earnings) as of the end
of such fiscal year certified by the chief financial officer of such
Brightstar Party;
(iii) Audited Year-End Statements. As soon as available and in
any event within 90 days after the end of each fiscal year of such
Brightstar Party, final audited financial statements (as described above
but including a statement of changes in financial position) as of the end
of such fiscal year of such Brightstar Party prepared by independent
certified accountants reasonably satisfactory to Motorola and a copy of
any management, operation or other letter or correspondence from such
accountant to such Brightstar Party in connection therewith;
(iv) Inventory and Receivables Reports. As soon as available
and in any event within 5 days after the end of each month of each fiscal
year of such Brightstar Party, an inventory and receivables aging report
in form and substance reasonably acceptable to Motorola.
(v) Projections. As soon as available and in any event within
60 days after the end of each fiscal year of such Brightstar Party,
detailed monthly projections of such Brightstar Party' earnings for the
next fiscal year; and
(vi) Other. Such other information respecting the condition or
operations, financial or otherwise, of such Brightstar Party as Motorola
may reasonably request from time to time.
All financial statements described in clauses (i), (ii) and (iii) above
shall be prepared in accordance with GAAP on a basis consistent with the
financial statements of such Brightstar Party delivered to Motorola for the
period ending most immediately prior to the date of this Agreement, except that
unaudited financial statements shall be subject to normal year-end audit
adjustments and need not contain footnotes.
(d) Preservation of Business and Corporate Existence. Such
Brightstar Party shall: (1) carry on and conduct its principal business
substantially as it is now being conducted; (2) maintain in good standing its
existence and its right to transact business in those jurisdictions in which it
is now or may after the date of this Agreement be doing business; and (3)
maintain all licenses, permits and registrations necessary to the conduct of its
business, except where the failure to so maintain its right to transact business
or to maintain such licenses, permits or
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registrations would not materially and adversely affect the actual or
prospective business, financial condition or operations of such Brightstar Party
or the rights of Motorola or any of the Motorola Parties under any of the
Brightstar Documents.
(e) Insurance. Such Brightstar Party shall keep insured at all times
with financially sound and reputable insurers which are reasonably satisfactory
to Motorola (1) all of its property of an insurable nature, including, without
limitation, all real estate, equipment, fixtures and inventories, against fire
and other casualties in such a manner and to the extent that like properties are
usually insured by others owning properties of a similar character in a similar
locality or as otherwise required by Motorola, with the proceeds of such
casualty insurance payable solely to Motorola (except to the extent payable to
the Agent under the PNC Credit Agreement), and (2) against liability on account
of damage to persons or property (including product liability insurance and all
insurance required under all applicable worker's compensation laws) caused by
such Brightstar Party or its officers, directors, employees, agents or
contractors in such a manner and to the extent that like risks are usually
insured by others conducting similar businesses in the places where such
Brightstar Party conducts business or as otherwise required by Motorola, with
Motorola being named as an additional insured under such liability policies.
Such Brightstar Party shall cause the insurers under all of its insurance
policies to provide Motorola at least 30 days prior written notice of the
termination of any such policy before such termination shall be effective and to
agree to such other matters in respect of any such casualty insurance as
provided in Motorola's loss payee endorsement provided to such Brightstar Party.
In addition, such Brightstar Party will, upon request of Motorola at any time,
furnish a written summary of the amount and type of insurance carried, the names
of the insurers and the policy numbers, and deliver to Motorola certificates
with respect thereto.
(f) Maintenance of Properties and Leases. Such Brightstar Party
shall: (a) maintain, preserve and keep its properties and every part thereof in
good repair, working order and condition (except for such properties as such
Brightstar Party in good faith determines are not useful in the conduct of its
business); (b) from time to time make all necessary and customary repairs,
renewals, replacements, additions and improvements thereto so that at all times
the efficiency shall be fully preserved and maintained; and (c) maintain all
leases of real or personal property in good standing, free of any defaults by
such Brightstar Party thereunder.
(g) Payment of Taxes. Such Brightstar Party shall pay and discharge,
before they become delinquent, all taxes, assessments and other governmental
charges imposed upon its properties, or any part thereof, or upon the income or
profits therefrom and all claims for labor, materials or supplies which if
unpaid might be or become a Lien or charge upon any of its property, except such
items as it is in good faith appropriately contesting and as to which adequate
reserves have been provided to Motorola's satisfaction. Upon request by
Motorola, such Brightstar Party shall certify its compliance with the foregoing
requirements.
(h) Notice of Default. Such Brightstar Party shall give prompt
notice in writing to Motorola of any breach of any of the representations,
warranties or covenants in any of the Brightstar Documents or any development or
the occurrence of any event, financial or otherwise, which constitutes a Default
or an Event of Default or which constitutes a material default under any other
agreement to which such Brightstar Party is a party or which may
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materially and adversely affect the business, properties or affairs of such
Brightstar Party or its ability to pay and perform its obligations under the
Brightstar Documents.
(i) Notices Relating to Falcon Transactions. Such Brightstar Party
shall deliver to Motorola, immediately upon receipt thereof, a copy of any (i)
notice of any default or event of default under the Purchase Agreement (or the
Notes), (ii) notice of any event or condition that would require (with the
passage of time or the giving of such notice) any of the Brightstar Parties to
purchase, redeem or retire all or any portion of the Notes or the stock issued
under the Certificate of Designation (including, without limitation, any notice
of Change of Control or Excess Proceeds Offer (as such terms are defined in the
Purchase Agreement)) and any notice of Change of Control (as such term is
defined in the Certificate of Designations), and (iii) any blockage notice or
other notice or communication received by any of the Brightstar Parties from the
holders of "Senior Obligations" or "Guarantor Senior Obligations" (as such terms
are defined in the Purchase Agreement).
(j) Landlord Agreements. To the extent any of the Collateral owned
by such Brightstar Party is now or hereafter located on property that is not
owned by such Brightstar Party, such Brightstar Party shall obtain an agreement
from the owner of the property where such Collateral is located in form and
substance reasonably acceptable to Motorola whereby the owner of such property
waives any Lien for unpaid rent (or similar charges) and agrees to give Motorola
access to such property to remove any Collateral located thereon.
6. Negative Covenants. So long as any Brightstar Obligations remain unpaid
or any of the Brightstar Documents remain in effect, each of the Brightstar
Parties covenants to, and agrees with, Motorola (for its benefit and for the
benefit of each of the Motorola Parties) as follows:
(a) Liens. Such Brightstar Party shall not create or suffer to exist
any Lien, except for Permitted Liens, upon or with respect to any of its
properties, whether such Brightstar Party owns or has an interest in such
properties on the date hereof or at any time thereafter; provided, this
restriction shall apply with respect to a Brightstar Party that is an natural
person only with respect to a Lien on an asset in which such Brightstar Party
has granted a Lien to Motorola.
(b) Debt. Such Brightstar Party (if not a natural person) shall not
create or suffer to exist any Debt, except for Permitted Debt.
(c) Structure; Disposition of Assets. Such Brightstar Party shall
not (i) merge or consolidate with or otherwise acquire, or be acquired by, any
other person or entity, or (ii) sell, lease, factor, endorse or otherwise
transfer all or any part of its properties, real or personal, other than the
sale of inventory in the ordinary course of its business; provided, that, so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, any Foreign Subsidiary may factor its accounts receivable in
the ordinary course of business, but only on the condition that (i) such
Brightstar Party gives Motorola written notice of its intent to factor accounts
receivable at least 5 Business Days prior to each such transaction and (ii) all
proceeds from each such transaction are paid or deposited directly by the buyer
of such accounts receivable into a deposit account over which Motorola has
control and, so long as the foregoing
Amended and Restated Payment Terms Agreement - Page 10
conditions are satisfied and Motorola has not activated its exclusive control
over such account, such Foreign Subsidiary may thereafter use the proceeds of
such transaction in the conduct of its business in the ordinary course of
business.
(d) Sale-Leasebacks; Subsidiaries; New Business. Such Brightstar
Party shall not enter into any sale and leaseback transaction with respect to
any of its properties or create or acquire any Subsidiary, or manufacture any
goods, render any services or otherwise enter into any business that is not
substantially similar to that existing on the Closing Date; provided, that, so
long as no Default or Event of Default has occurred and is continuing or would
result therefrom, Brightstar may create or acquire additional Subsidiaries, but
only on the condition that (i) Brightstar gives Motorola written notice of its
intent to create or acquire such new Subsidiary at least 30 calendar days prior
to such new Subsidiary's creation or acquisition and (ii) such new Subsidiary
executes a joinder agreement in form and substance reasonably satisfactory to
Motorola by which such new Subsidiary becomes a party to this Agreement and
enters into other agreements similar to the Brightstar Documents to which
similarly situated Brightstar Parties are parties (including, without
limitation, a guaranty, security agreement and/or stock pledge agreement) within
10 Business Days after such new Subsidiary is created or acquired.
(e) Issuance of Securities. Such Brightstar Parties shall not issue
any capital stock, create any new class of stock or issue any other securities,
except that Brightstar Corp. may issue (a) shares of Convertible Preferred Stock
(as defined in the Certificate of Designation), (b) the Conversion Shares (as
defined in the Certificate of Designation), and (c) options granted to employees
(other than Xxxx Xxxxxxx Xxxxxx or Xxxxx X. Xxxxxxxx) which shall not exceed 10%
of Brightstar Corp.'s outstanding capital stock and voting rights.
(f) Conflicting Agreements. Such Brightstar Party shall not enter
into any agreement any term or condition of which conflicts with any provision
of the Brightstar Documents.
(g) Changes in Accounting Principles; Fiscal Year. Such Brightstar
Party shall not make any change in its principles or methods of accounting as
currently in effect, except such changes as are required by GAAP, nor change its
fiscal year.
(h) Transactions With Affiliates. Such Brightstar Party shall not
enter into or be a party to any transaction or arrangement, including without
limitation, the purchase, sale or exchange of property of any kind or the
rendering of any service, with any Affiliate, except in the ordinary course of
and pursuant to the reasonable requirements of such Brightstar Party's business
and upon fair and reasonable terms substantially as favorable to such Brightstar
Party as those which would be obtained in a comparable arms-length transaction
with a non-Affiliate.
(i) Payments on Preferred Stock. Such Brightstar Party agrees that
no (i) dividend or distribution; (ii) "Liquidation Payment"; (iii) "Change of
Control Offer"; or (iv) payment of any "Change of Control Price" (as each of
those terms are defined in the Certificate of Designation) shall be made
pursuant to the Certificate of Designation if a Default or Event of Default
under any of the Brightstar Documents has occurred and is continuing or
Amended and Restated Payment Terms Agreement - Page 11
would result from any of the foregoing unless and until such Default or Event of
Default has been cured or expressly waived by Motorola.
(j) Other Payments and Distributions. Such Brightstar Party shall
not: (i) pay any dividends on or make any other distributions in respect of any
stock or other equity interests of such Brightstar Party or redeem or otherwise
acquire any such stock or other equity interests (including, without limitation,
the "Convertible Preferred Stock", and the "Conversion Shares", as each of those
terms are defined in the Purchase Agreement) or (ii) make any payment or
prepayment of the principal of, premium, if any, or interest, fees or other
charges on or with respect to, or any redemption, purchase, retirement,
defeasance, sinking fund or similar payment with respect to, any indebtedness or
other obligation that is by its terms subordinate to any of the Brightstar
Obligations (including, without limitation, the Notes); provided, that so long
as no Default or Event of Default under any of the Brightstar Documents has
occurred and is continuing or would result therefrom, Brightstar may, to the
extent not otherwise prohibited by the terms thereof, (w) make regularly
scheduled payments of interest on (and, at maturity, may pay the principal of)
the Notes, (x) pay the dividends provided for in Section (c) of the Certificate
of Designation, (y) pay the dividends provided for in Sections 2.4(a)(ii) and
7.5(c)(ii) of the Purchase Agreement and (z) receive payments with respect to
transfer pricing markups, management fees and loans or advances from the other
Brightstar Parties, but only on the condition that all such payments are paid or
deposited directly by the Brightstar Party making the payment into a deposit
account over which Motorola has control.
7. Collection Account. So long as any Brightstar Obligations remain unpaid
or any of the Brightstar Documents remain in effect, each of the Brightstar
Parties covenants to, and agrees with, Motorola (for its benefit and for the
benefit of each of the Motorola Parties) as follows:
(a) Collection of Receivables. Until the authority of any of the
Brightstar Parties to do so is terminated by Motorola (which authority Motorola
may, subject to the terms of the PNC Intercreditor Agreement, terminate at any
time following the occurrence of a Default or an Event of Default), each of the
Brightstar Parties will, at its sole cost and expense, continue to collect its
accounts receivable and shall deposit in a Collection Account on the date of
receipt thereof, all checks, drafts, notes, money orders, acceptances, cash and
other items received in the collection of its accounts receivable.
(b) Establishment of Collection Accounts. Except to the extent that
the proceeds of any of the accounts receivable of the Brightstar Parties and any
other Collateral is required to be deposited in a Blocked Account pursuant to
(and as that term is defined in) the PNC Credit Agreement, all such proceeds
shall be deposited by the Brightstar Parties into deposit accounts
(collectively, "Collection Accounts") established at a bank or banks (each such
bank, a "Collection Account Bank") pursuant to an arrangement with such
Collection Account Bank as may be selected by the Brightstar Parties and be
acceptable to Motorola. The relevant Brightstar Parties, Motorola and each
Collection Account Bank shall enter into a deposit account control agreement in
form and substance satisfactory to Motorola (including a waiver or subordination
of any Lien or offset right by the Collection Account Bank) with respect to each
Collection Account pursuant to which Motorola will acquire "control" of such
Collection Account within the meaning of Article 9 of the Uniform Commercial
Code or the equivalent
Amended and Restated Payment Terms Agreement - Page 12
under other applicable law. To the extent that the proceeds of any accounts
receivable of the Brightstar Parties or other Collateral are required to be
deposited in a Blocked Account under (and as that term is defined in) the PNC
Credit Agreement, the Brightstar Parties shall take whatever steps are necessary
for Motorola to have "control" over such Blocked Account along with the Agent.
8. Additional Brightstar Parties. If there are any current or future
Brightstar Parties that are not a party to this Agreement, each of the
Brightstar Parties that is a party to this Agreement shall cause such current or
future Brightstar Parties to become a party to this Agreement by signing a
joinder agreement in form and substance reasonably acceptable to Motorola and
shall further cause such current or future Brightstar Parties to enter into
other agreements similar to the Brightstar Documents to which similarly situated
Brightstar Parties are parties (including, without limitation, a guaranty,
security agreement and/or stock pledge agreement).
9. Events of Default. Motorola and each of the Brightstar Parties hereby
agree that notwithstanding any provision in any of the Brightstar Documents
defining or specifying what constitutes a default or "Event of Default" (whether
or not such a term is defined therein), "Event of Default" for purposes of this
Agreement and each of the other Brightstar Documents shall be defined as
follows:
(a) any Brightstar Party fails to perform or observe any term,
covenant or other provision in any of the Brightstar Documents (other than any
term, covenant or provision addressed in any of the following subsections of
this Section 9) in accordance with its terms, and such Brightstar Party fails to
cure such default within 30 days after Motorola gives such Brightstar Party
written notice specifying in reasonable detail the nature of such default (such
30-day cure period to be in lieu of any such period that may otherwise be
applicable to such default);
(b) the occurrence or existence of any event or condition described
in Section 21 of the Brightstar Distribution Agreement or Section 19 of the
Brightstar US Distribution Agreement which continues beyond any applicable grace
period specified in such provision;
(c) the default or failure in the timely payment of any of the
Brightstar Obligations;
(d) any representation or warranty made or furnished by or on behalf
of any of the Brightstar Parties in connection with any of the Brightstar
Documents proves to have been incorrect, incomplete or misleading in any
material respect when made or furnished, or any such representation or warranty
becomes incorrect, incomplete or misleading in any material respect and the
relevant Brightstar Party fails to give Motorola prompt written notice thereof;
(e) any Brightstar Party fails to make any payment (in any amount)
with respect to any monetary obligation owed to a person other than Motorola or
any of the Motorola Parties, the aggregate outstanding balance of which monetary
obligation is, at the time, in excess of $1,000,000, or to perform or observe
any other obligation or term in respect of such monetary obligation and, as a
result of any such failure, the holder of such monetary obligation accelerates
Amended and Restated Payment Terms Agreement - Page 13
(or is entitled to accelerate) the maturity thereof or requires (or is entitled
to require) such Brightstar Party or some other person to purchase or otherwise
acquire such monetary obligation;
(f) any sale (other than sales of inventory in the ordinary course
of business), lease, factoring, endorsement, encumbrance or other transfer of
any property in which Motorola or any Motorola Party has a security interest
without the prior written consent of Motorola;
(g) any issuance of stock by any Brightstar Party other than in
strict compliance with the terms of the Brightstar Documents;
(h) the dissolution of, termination of existence of, or loss of good
standing by any Brightstar Party that is not a natural person or any Brightstar
Party that is a natural person dies or is judicially declared incompetent;
(i) any Brightstar Party ceases to be solvent or suffers the
appointment of a receiver, trustee, custodian or similar fiduciary or makes an
assignment for the benefit of creditors; or any petition for an order for relief
is filed by or against any Brightstar Party under the federal Bankruptcy Code or
any similar state insolvency statute (except, in the case of a petition filed
against a Brightstar Party, if such proceeding is dismissed within 60 days after
the petition is filed, unless prior thereto an order for relief is entered under
the federal Bankruptcy Code or any similar state insolvency statute); or any
Brightstar Party makes any offer of settlement, extension or composition to its
unsecured creditors generally;
(j) the assertion or making of any seizure, vesting or intervention
by or under authority of any government by which the management of any
Brightstar Party is displaced or their authority in the conduct of the business
of such Brightstar Party is curtailed;
(k) any Brightstar Party challenges or contests in any action, suit
or proceeding the validity or enforceability of any of the Brightstar Documents,
the legality or enforceability of any of the Brightstar Obligations or the
perfection or priority of any security interest granted to Motorola or to any
Motorola Party;
(l) any Guarantor (as defined below) revokes or attempts to revoke
(in whole or in part) such Guarantor's Guaranty (as defined below), or
repudiates (in whole or in part) such Guarantor's liability thereunder or is in
default under the terms thereof or dies or is judicially declared incompetent;
(m) any writ of garnishment, levy or attachment is issued against
any property of, or debts due, any Brightstar Party or one or more judgments,
decrees or orders for the payment of money in excess of $1,000,000 in the
aggregate is rendered against any Brightstar Party and (i) enforcement
proceedings shall have been commenced by a creditor upon such judgment, (ii)
there shall have been any period of thirty (30) consecutive days during which a
stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, shall not be in effect, or (iii) any such judgment results in the
creation of a Lien upon any of the Collateral (other than a Permitted Lien);
(n) Motorola ceases to have a duly perfected security interest in
any Collateral or, except as expressly permitted by the Brightstar Documents or
a specific written consent from
Amended and Restated Payment Terms Agreement - Page 14
or written agreement of Motorola, any Collateral becomes subject to any Lien
(other than a Permitted Lien) and/or the security interest of Motorola ceases to
have priority over all other Liens in any Collateral, except to the extent
provided for in the PNC Intercreditor Agreement;
(o) the occurrence of any loss, theft, substantial damage to or
destruction of any Collateral not fully covered by insurance or as to which
insurance proceeds are not remitted to Motorola within 30 days of the loss
(except to the extent required to be given to the Agent under the PNC Credit
Agreement);
(p) the occurrence of any "Change in Control" as defined either (i)
in the Purchase Agreement or (ii) the Certificate of Designation;
(q) any amendment to the Purchase Agreement or the Certificate of
Designation;
(r) in Motorola's reasonable judgment, there occurs any material
adverse change in the business prospects or financial condition of any
Brightstar Party; or
(s) Motorola otherwise deems itself insecure or believes in good
faith that the prospects of payment or other performance of any of the
Brightstar Obligations is impaired.
A Default or Event of Default under any of the Brightstar Documents shall
constitute a Default or Event of Default for purposes of all of the Brightstar
Documents. Upon the occurrence of any Default or Event of Default, Motorola
shall have and may exercise any and all remedies provided for by any of the
Brightstar Documents or by applicable law.
10. Termination of Credit Line; Acceleration. Upon or after the occurrence
and during the continuation of any Default, Motorola may declare the Credit Line
to be terminated, whereupon the same shall forthwith terminate, or, if Motorola
so elects, reduce Credit Line by such amounts as Motorola elects in its sole and
absolute discretion from time to time. Upon or after the occurrence and during
the continuation of any Event of Default, Motorola may declare the Brightstar
Obligations to be forthwith due and payable, whereupon the Brightstar
Obligations shall become and be forthwith due and payable, without presentment,
protest or further notice or demand of any kind, all of which are waived by each
of the Brightstar Parties. If, notwithstanding the foregoing, after the
occurrence and during the continuation of any Default or Event of Default, as
the case may be, Motorola elects (any such election to be in Motorola's sole and
absolute discretion) to permit additional purchases of Products from any of the
Motorola Parties under the Credit Line or to not accelerate all or any of the
Brightstar Obligations, any such election shall not preclude Motorola from
electing thereafter (in its sole and absolute discretion) to not permit any such
additional purchases or to accelerate all or any of the Brightstar Obligations,
as the case may be.
11. Remedies. Upon or after the occurrence and during the continuation of
any Event of Default, Motorola has and may, subject to the terms of the PNC
Intercreditor Agreement, exercise from time to time the following rights and
remedies:
(a) All of the rights and remedies of a secured party under the
Uniform Commercial Code or under other applicable law, and all other legal and
equitable rights to which
Amended and Restated Payment Terms Agreement - Page 15
Motorola may be entitled, all of which rights and remedies shall be cumulative,
and none of which shall be exclusive, and all of which shall be in addition to
any other rights or remedies contained in the Brightstar Documents.
(b) The right to take immediate possession of the Collateral, and
(i) to require the Brightstar Parties to assemble the Collateral, at their
expense, and make it available to Motorola at a place designated by Motorola
which is reasonably convenient to both parties, and (ii) to enter upon and use
any premises in which the Brightstar Parties have an ownership, leasehold or
other interest, or wherever any of the Collateral shall be located, and to
store, remove, abandon, manufacture, sell, dispose of or otherwise use all or
any part of the Collateral on such premises without the payment of rent or any
other fees to the Brightstar Parties or any other person for the use of such
premises or such Collateral.
(c) The right to sell or otherwise dispose of all or any inventory
or equipment in its then condition, or after any further manufacturing or
processing thereof, at public or private sale or sales, with such notice as may
be required by law, in lots or in bulk, for cash or on credit, all as Motorola,
in its sole discretion, may deem advisable. The Brightstar Parties agree that
not less than 10 days prior written notice of any public or private sale or
other disposition of such Collateral shall be reasonable notice thereof, and
such sale shall be at such locations as Motorola may designate in such notice.
Motorola has the right to conduct such sales on the premises of the Brightstar
Parties, without charge therefor, and such sales may be adjourned from time to
time in accordance with applicable law. Motorola has the right to sell, lease or
otherwise dispose of such Collateral, or any part thereof, for cash, credit or
any combination thereof, and Motorola may purchase all or any part of such
Collateral at public or, if permitted by law, private sale and, in lieu of
actual payment of such purchase price, may set-off or credit the amount of such
price against the Brightstar Obligations.
(d) Motorola is granted a license or other right to use, without
charge, all of the labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks and advertising matter, or any property of a
similar nature of the Brightstar Parties as it pertains to the Collateral or any
other property of the Brightstar Parties, in storing, removing, transporting,
manufacturing, advertising, selling or otherwise using the Collateral, and the
rights of the Brightstar Parties in and under such property shall inure to
Motorola's benefit.
(e) The proceeds realized from the sale of any Collateral may be
applied, after Motorola is in receipt of good funds, as follows: first, to the
reasonable costs, expenses and attorneys' fees and expenses incurred by Motorola
for collection and for acquisition, completion, manufacture, protection,
removal, storage, sale and delivery of the Collateral; second, to any fees, if
any, or expenses due Motorola under the Brightstar Documents; third, to
interest, if any, due upon any of the Brightstar Obligations; and fourth, to the
principal of the Brightstar Obligations; or in such other manner as Motorola may
elect in its sole discretion. If any deficiency shall arise, the Brightstar
Parties shall remain liable therefor in accordance with the terms of the
Brightstar Documents. Any surplus remaining after payment in full of the
Brightstar Obligations may be returned to the Brightstar Parties or to whomever
may be legally entitled thereto.
Amended and Restated Payment Terms Agreement - Page 16
12. Right of Set-off. Upon or after the occurrence and during the
continuation of any Event of Default, and subject to the terms of the PNC
Intercreditor Agreement, Motorola is authorized at any time and from time to
time, without notice to the Brightstar Parties (any such notice being waived by
the Brightstar Parties), to set off and apply any and all funds at any time held
and other indebtedness at any time owing by any of the Motorola Parties to or
for the credit or the account of any of the Brightstar Parties against any and
all of the Brightstar Obligations irrespective of whether or not Motorola has
made any demand under the Brightstar Documents and although such Brightstar
Obligations may be unmatured. The rights of Motorola under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) that Motorola may have.
13. Reaffirmation of Transaction Documents. Each of the Brightstar Parties
reaffirms its obligations under each of the Brightstar Documents to which it is
a party or by which it is bound, and represents, warrants and covenants to
Motorola (for its benefit and for the benefit of each of the Motorola Parties),
as a material inducement to Motorola to enter into this Agreement and the
transactions contemplated hereby, that: (a) such Brightstar Party has no (and,
in any event, hereby waives any) defense, claim or right of setoff in respect of
any of the Brightstar Documents or the actions or inactions of Motorola or any
Motorola Party; and (b) all representations and warranties made by such
Brightstar Party in the Brightstar Documents are true and complete on the date
hereof as if made on the date hereof.
14. Consent of Guarantors and Pledgors. To induce Motorola to enter into
this Agreement, each of the Brightstar Parties that has provided a guaranty
covering or is otherwise ever deemed to be a surety for any of the Brightstar
Obligations (each such Brightstar Party being a "Guarantor" and each guaranty or
other document by which such Brightstar Party is or is ever deemed to be a
surety being a "Guaranty") and each of the Brightstar Parties that has pledged
or granted a security interest in any of its assets to secure payment or
performance of any of the Brightstar Obligations (each such Brightstar Party
being a "Pledgor" and each document by which such security interest is evidenced
being a "Pledge Agreement"), each Guarantor and Pledgor: (a) consents to
Motorola, Brightstar and the other persons and entities whose names appears on
the signature pages to this Agreement entering into this Amendment; (b) agrees
that the execution, delivery and performance of this Agreement (and any
documents or transactions contemplated thereby) shall not discharge, limit or
otherwise impair the obligations of such Guarantor under such Guarantor's
Guaranty or the security interest granted by such Pledgor under such Pledgor's
Pledge Agreement; (c) agrees that such Guarantor's Guaranty and such Pledgor's
Pledge Agreement is and remains in full force and effect and is enforceable
against such Guarantor or such Pledgor, as applicable, in accordance with its
terms (except to the extent modified by or in connection with this Agreement);
(d) waives any defense, claim or right of setoff such Guarantor or Pledgor may
have in respect of such Guarantor's Guaranty, such Pledgor's Pledge Agreement,
the other Brightstar Documents or the actions or inactions of Motorola or any
Motorola Party; and (e) agrees that Motorola has no duty to give such Guarantor
or Pledgor notice of or obtain such Guarantor's or such Pledgor's consent to the
transactions described in this Agreement, and that Motorola's giving of notice
to such Guarantor or such Pledgor and obtaining such Guarantor's or such
Pledgor's consent in this instance shall not impose any similar or other duty
upon Motorola in any future matter or transaction.
Amended and Restated Payment Terms Agreement - Page 17
15. Further Assurances. Each of the Brightstar Parties also agrees to do
or refrain from doing any and all such further acts and things, and to execute
and deliver such additional conveyances, assignments, agreements and
instruments, as Motorola may at any time request in connection with the
administration and enforcement of this Agreement or any of the other Brightstar
Documents, or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto Motorola its respective rights and remedies
hereunder. Without limiting the foregoing, each of the Brightstar Parties that
is organized under the laws of a jurisdiction outside of the United States of
America and its territories agrees to enter into additional conveyances,
assignments, agreements and instruments (whether governed by the laws of its
jurisdiction of organization or other jurisdictions) that may be requested by
Motorola in order to carry out the intent of this Agreement and the other
Brightstar Documents.
16. Amendments and Waivers. No waivers, amendments or modifications of any
provision of this Agreement or any of the other Brightstar Documents shall be
valid unless in writing and signed by an officer of Motorola. No waiver by
Motorola of any Default or Event of Default shall operate as a waiver of any
other Default or Event of Default or of the same Default or Event of Default on
a future occasion. Neither the failure of, nor any delay by, Motorola in
exercising any right, power or privilege granted pursuant to this Agreement or
any of the other Brightstar Documents shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege.
17. Assignment. All rights of Motorola hereunder are freely assignable, in
whole or in part, and shall inure to the benefit of and be enforceable by
Motorola, its successors, assigns and affiliates. No Brightstar Party shall not
assign its rights and interest hereunder without the prior written consent of
Motorola, and any attempt by any Brightstar Party to assign without Motorola's
prior written consent is null and void. Any assignment shall not release such
Brightstar Party from the Brightstar Obligations. This Agreement shall be
binding upon each Brightstar Party and its successors and assigns.
18. Severability. If any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective but only
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
19. Captions. The captions contained herein are inserted for convenience
only and shall not affect the meaning or interpretation of this Agreement or any
provision hereof. The use of the plural shall also mean the singular, and vice
versa.
20. Binding Contract. Motorola and each Brightstar Party by execution of
this Agreement, agree that each party is bound by all terms and provisions of
this Agreement.
21. Construction. This document shall be construed without regard to any
presumption or rule requiring construction against the party causing such
document or any portion thereof to be drafted.
22. Governing Law. This Agreement shall be governed by the laws of the
State of Florida without regard to any choice of law rule thereof.
Amended and Restated Payment Terms Agreement - Page 18
23. Counterparts; Fax Signatures. This Agreement may be executed in one or
more counterparts and by different parties thereto, all of which counterparts,
when taken together, shall constitute but one agreement. This Agreement may be
validly executed and delivered by facsimile or other electronic transmission and
any such execution or delivery shall be fully effective as if executed and
delivered in person.
[Signature pages follow]
Amended and Restated Payment Terms Agreement - Page 19
IN WITNESS WHEREOF, the parties have entered into this Agreement effective
as of the date first above written.
MOTOROLA, INC., AS AGENT FOR ITSELF AND THE
OTHER MOTOROLA PARTIES
BY: /s/ XXXXXX X. STRAWD
----------------------------------------
NAME: XXXXXX X. STRAWD
TITLE: CFO-DLS
BRIGHTSTAR CORP.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENTS & CEO
BRIGHTSTAR US, INC.
BY: /s/ XXXXXX XXXXXX
----------------------------------------
NAME: XXXXXX XXXXXX
TITLE: PRESIDENT
/s/ XXXX X. XXXXXX
--------------------------------------------
XXXX X. XXXXXX, AN INDIVIDUAL
/s/ XXXXX X. XXXXXXXX
--------------------------------------------
XXXXX X. XXXXXXXX, AN INDIVIDUAL
/s/ XXXXXX XXXXXXXX
--------------------------------------------
XXXXXX XXXXXXXX, AN INDIVIDUAL
/s/ XXXXXX XXXXXX
--------------------------------------------
XXXXXX XXXXXX, AN INDIVIDUAL
BRIGHTSTAR DE ARGENTINA, S.A.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR DO BRASIL, LTDA.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
Amended and Restated Payment Terms Agreement - Page 20
BRIGHTSTAR CORP. CHILE, LTDA.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR DOMINICANA, S.A.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR ECUADOR, LTDA.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR EL SALVADOR S.A. DE C.V.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR GUATEMALA, C.A.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR DE MEXICO S.A. DE C.V.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR DE PARAGUAY, S. DE X.X.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
Amended and Restated Payment Terms Agreement - Page 00
XXXXXXXXXX XXXX, X.X.X.
BY: /s/ XXXXXXX XXXXXX
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NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR PUERTO RICO, INC.
BY: /s/ XXXXXXX XXXXXX
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NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR URUGUAY, S.A.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR DE VENEZUELA, C.A.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
BRIGHTSTAR PROVEEDOR DE SOLUCIONES
TECNOLOGICAS S.A.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
SOLUCIONES INTELIGENTES PARA EL XXXXXXX
MOVIL, S.A. DE C.V.
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
NAME: XXXXXXX XXXXXX
TITLE: PRESIDENT
Amended and Restated Payment Terms Agreement - Page 22
