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Exhibit 99.2
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 18, 2004
among
BRIGHTPOINT NORTH AMERICA L.P.
and
WIRELESS FULFILLMENT SERVICES LLC,
as Borrowers,
THE OTHER CREDIT PARTIES SIGNATORY HERETO,
as Credit Parties,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
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TABLE OF CONTENTS
Page
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1. A MOUNT AND TERMS OF CREDIT............................................................................. 2
1.1 Credit Facilities.............................................................................. 2
1.2 Letters of Credit.............................................................................. 6
1.3 Prepayments.................................................................................... 6
1.4 Use of Proceeds................................................................................ 7
1.5 Interest and Applicable Margins................................................................ 8
1.6 Eligible Accounts.............................................................................. 11
1.7 Eligible Inventory............................................................................. 13
1.8 Cash Management Systems........................................................................ 15
1.9 Fees........................................................................................... 15
1.10 Receipt of Payments............................................................................ 15
1.11 Application and Allocation of Payments......................................................... 15
1.12 Loan Account and Accounting.................................................................... 16
1.13 Indemnity...................................................................................... 17
1.14 Access......................................................................................... 18
1.15 Taxes.......................................................................................... 18
1.16 Capital Adequacy; Increased Costs; Illegality.................................................. 19
1.17 Single Loan.................................................................................... 21
1.18 Effect of Amendment and Restatement............................................................ 21
2. CONDITIONS PRECEDENT.................................................................................... 21
2.1 Conditions to the Initial Loans................................................................ 21
2.2 Further Conditions to Each Loan................................................................ 22
3. REPRESENTATIONS AND WARRANTIES.......................................................................... 23
3.1 Corporate Existence; Compliance with Law....................................................... 23
3.2 Executive Offices, Collateral Locations, FEIN.................................................. 23
3.3 Corporate Power, Authorization, Enforceable Obligations........................................ 23
3.4 Financial Statements and Projections........................................................... 24
3.5 Material Adverse Effect........................................................................ 25
3.6 Ownership of Property; Liens................................................................... 25
3.7 Labor Matters.................................................................................. 25
3.8 Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness...................... 26
3.9 Government Regulation.......................................................................... 26
3.10 Margin Regulations............................................................................. 26
3.11 Taxes.......................................................................................... 27
3.12 ERISA.......................................................................................... 27
3.13 No Litigation.................................................................................. 28
3.14 Brokers........................................................................................ 28
3.15 Intellectual Property.......................................................................... 28
3.16 Full Disclosure................................................................................ 28
3.17 Environmental Matters.......................................................................... 29
3.18 Insurance...................................................................................... 30
3.19 Deposit and Disbursement Accounts.............................................................. 30
3.20 Government Contracts........................................................................... 30
3.21 Customer and Trade Relations................................................................... 30
3.22 Agreements and Other Documents................................................................. 30
3.23 Solvency....................................................................................... 30
3.24 Status of Holding Companies.................................................................... 31
3.25 Certain Agreements............................................................................. 31
4. FINANCIAL STATEMENTS AND INFORMATION.................................................................... 31
4.1 Reports and Notices............................................................................ 31
4.2 Communication with Accountants................................................................. 31
5. AFFIRMATIVE COVENANTS................................................................................... 31
5.1 Maintenance of Existence and Conduct of Business............................................... 31
5.2 Payment of Charges............................................................................. 32
5.3 Books and Records.............................................................................. 32
5.4 Insurance; Damage to or Destruction of Collateral.............................................. 32
5.5 Compliance with Laws........................................................................... 34
5.6 Supplemental Disclosure........................................................................ 34
5.7 Intellectual Property.......................................................................... 34
5.8 Environmental Matters.......................................................................... 34
5.9 Landlords' Agreements, Mortgagee Agreements, Bailee Letters and Real Estate Purchases.......... 35
5.10 Further Assurances............................................................................. 36
5.11 Mortgages...................................................................................... 36
5.12 Major Agreements............................................................................... 36
6. NEGATIVE COVENANTS...................................................................................... 37
6.1 Mergers, Subsidiaries, Etc..................................................................... 37
6.2 Investments; Loans and Advances................................................................ 37
6.3 Indebtedness................................................................................... 37
6.4 Employee Loans and Affiliate Transactions...................................................... 39
6.5 Capital Structure and Business................................................................. 39
6.6 Guaranteed Indebtedness........................................................................ 39
6.7 Liens.......................................................................................... 39
6.8 Sale of Stock and Assets....................................................................... 40
6.9 ERISA.......................................................................................... 40
6.10 Financial Covenants............................................................................ 41
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6.11 Hazardous Materials............................................................................ 41
6.12 Sale-Leasebacks................................................................................ 41
6.13 Cancellation of Indebtedness................................................................... 41
6.14 Restricted Payments............................................................................ 41
6.15 Change of Corporate Name or Location; Change of Fiscal Year.................................... 42
6.16 No Impairment of Intercompany Transfers........................................................ 42
6.17 No Speculative Transactions.................................................................... 43
6.18 Leases; Real Estate Purchases.................................................................. 43
6.19 Certain Agreements............................................................................. 43
6.20 Holding Companies.............................................................................. 43
7. TERM.................................................................................................... 43
7.1 Termination.................................................................................... 43
7.2 Survival of Obligations Upon Termination of Financing Arrangements............................. 43
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES.................................................................. 44
8.1 Events of Default.............................................................................. 44
8.2 Remedies....................................................................................... 46
8.3 Waivers by Credit Parties...................................................................... 47
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT..................................................... 47
9.1 Assignment and Participations.................................................................. 47
9.2 Appointment of Agent........................................................................... 49
9.3 Agent's Reliance, Etc.......................................................................... 50
9.4 GE Capital and Affiliates...................................................................... 51
9.5 Lender Credit Decision......................................................................... 51
9.6 Indemnification................................................................................ 51
9.7 Successor Agent................................................................................ 52
9.8 Setoff and Sharing of Payments................................................................. 52
9.9 Advances; Payments; Non-Funding Lenders; Information; Actions in Concert....................... 53
10. SUCCESSORS AND ASSIGNS.................................................................................. 55
10.1 Successors and Assigns......................................................................... 55
11. MISCELLANEOUS........................................................................................... 56
11.1 Complete Agreement; Modification of Agreement.................................................. 56
11.2 Amendments and Waivers......................................................................... 56
11.3 Fees and Expenses.............................................................................. 58
11.4 No Waiver...................................................................................... 59
11.5 Remedies....................................................................................... 59
11.6 Severability................................................................................... 60
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11.7 Conflict of Terms.............................................................................. 60
11.8 Confidentiality................................................................................ 60
11.9 GOVERNING LAW.................................................................................. 60
11.10 Notices........................................................................................ 61
11.11 Section Titles................................................................................. 62
11.12 Counterparts................................................................................... 62
11.13 WAIVER OF JURY TRIAL........................................................................... 62
11.14 Press Releases and Related Matters............................................................. 62
11.15 Reinstatement.................................................................................. 62
11.16 Advice of Counsel.............................................................................. 63
11.17 No Strict Construction......................................................................... 63
12. CROSS-GUARANTY.......................................................................................... 63
12.1 Cross-Guaranty................................................................................. 63
12.2 Waivers by Borrowers........................................................................... 64
12.3 Benefit of Guaranty............................................................................ 64
12.4 Subordination of Subrogation, Etc.............................................................. 64
12.5 Election of Remedies........................................................................... 64
12.6 Limitation..................................................................................... 65
12.7 Contribution with Respect to Guaranty Obligations.............................................. 65
12.8 Liability Cumulative........................................................................... 66
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INDEX OF APPENDICES
Annex A (Recitals) - Definitions
Annex B (Section 1.2) - Letters of Credit
Annex C (Section 1.8) - Cash Management System
Annex D (Section 2.1(a)) - Closing Checklist
Annex E (Section 4.1(a)) - Financial Statements and Projections -- Reporting
Annex F (Section 4.1(b)) - Collateral Reports
Annex G (Section 6.10) - Financial Covenants
Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
Annex I (Section 11.10) - Notice Addresses
Annex J (from Annex A -
Commitments definition) Commitments as of Restatement Date
Exhibit 1.1(a)(i) - Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) - Form of Revolving Note
Exhibit 1.1(b)(ii) - Form of Swing Line Note
Exhibit 1.5(e) - Form of Notice of Conversion/Continuation
Exhibit 4.1(b) - Form of Borrowing Base Certificate
Exhibit 6.16 - Form of Subsidiary Guaranty
Exhibit 6.14(b) - Form of BPI Distribution Notice
Exhibit 9.1(a) - Form of Assignment Agreement
Exhibit B-1 - Application for Standby Letter of Credit
Exhibit B-2 - Application for Documentary Letter of Credit
Schedule 1.1 - Agent's Representatives
Disclosure Schedule 1.4 - Use of Proceeds
Disclosure Schedule 1.6 - Account Debtors with Common Directors
Disclosure Schedule 3.1 - Corporate Existence; Compliance with Law
Disclosure Schedule 3.2 - Executive Offices, Collateral Locations, FEIN
Disclosure Schedule 3.4(A) - Financial Statements
Disclosure Schedule 3.4(C) - Projections
Disclosure Schedule 3.6 - Ownership of Property; Liens
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates; Outstanding Stock and
Indebtedness
Disclosure Schedule 3.11 - Taxes
Disclosure Schedule 3.12 - ERISA
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Environmental Matters
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
Disclosure Schedule 3.20 - Government Contracts
Disclosure Schedule 3.22 - Agreements and Other Documents
Disclosure Schedule 5.1 - Maintenance of Existence and Conduct of Business
Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.4(a) - Employee Loan and Affiliate Transactions
Disclosure Schedule 6.7 - Liens
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This AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement"),
dated as of March 18, 2004 among BRIGHTPOINT NORTH AMERICA L.P., a Delaware
limited partnership ("Brightpoint"), and WIRELESS FULFILLMENT SERVICES LLC, a
California limited liability company ("Wireless") (Brightpoint and Wireless are
sometimes collectively referred to herein as the "Borrowers" and individually as
a "Borrower"); the other Credit Parties signatory hereto; GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation (in its individual capacity, "GE
Capital"), for itself, as Lender, and as Agent for Lenders, and the other
Lenders signatory hereto from time to time.
RECITALS
WHEREAS, Borrowers, the other Credit Parties hereto, Agent and
Lenders are party to that certain Credit Agreement dated as of October 31, 2001
(as amended prior to the date hereof, the "Prior Credit Agreement");
WHEREAS, Borrowers, Agent and Lenders have agreed to amend and
restate the Prior Credit Agreement for the purpose of (a) adjusting the pricing
terms set forth in the Prior Credit Agreement and (b) otherwise amending
portions of the Prior Credit Agreement under the terms and conditions set forth
herein.
WHEREAS, Borrowers have requested that Lenders continue the
revolving credit facilities in order to provide (a) financing for working
capital and capital expenditures of Borrowers, (b) funds for other general
corporate purposes of Borrowers and (c) funds for other purposes permitted
hereunder; and for these purposes, Lenders are willing to make certain loans and
other extensions of credit to Borrowers of up to such amount upon the terms and
conditions set forth herein; and
WHEREAS, Borrowers have agreed to secure all of their
obligations under the Loan Documents by granting to Agent, for the benefit of
Agent and Lenders, a security interest in and lien upon all of their existing
and after-acquired personal and real property; and
WHEREAS, Brightpoint Inc., a Delaware corporation ("BPI"),
Brightpoint North America, Inc., an Indiana corporation ("Brightpoint
Holdings"), Wireless Fulfillment Services Holdings, Inc., a Delaware corporation
("Wireless Holdings") and Brightpoint International Ltd., a Delaware corporation
("Brightpoint International") (BPI, Brightpoint Holdings, Wireless Holdings and
Brightpoint International are sometimes referred to herein as the "Holding
Companies" and individually as a "Holding Company") and Brightpoint Activation
Services LLC, an Indiana limited liability company ("BAS"), are each willing to
guarantee all of the obligations of Borrowers to Agent and Lenders under the
Loan Documents and (i) each of the Holding Companies are willing to pledge to
Agent, for the benefit of Agent and Lenders, all of the Stock of Brightpoint,
Wireless, Brightpoint Holdings, Wireless Holdings and Brightpoint International
to secure such guaranty and (ii) BAS is willing to grant to Agent, for the
benefit of Agent and Lenders, a security interest in and lien upon all of its
existing and after-acquired personal and real property to secure such guaranty;
and
WHEREAS, capitalized terms used in this Agreement shall have
the meanings ascribed to them in Annex A and, for purposes of this Agreement and
the other Loan Documents, the rules of construction set forth in Annex A shall
govern. All Annexes, Disclosure Schedules, Exhibits and other attachments
(collectively, "Appendices") hereto, or expressly identified to this Agreement,
are incorporated herein by reference, and taken together with this Agreement,
shall constitute but a single agreement. These Recitals shall be construed as
part of the Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter contained, and for other good and valuable
consideration, the parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1 Credit Facilities.
(a) Revolving Credit Facility.
(i) Subject to the terms and conditions hereof,
each Lender agrees to make available to Borrowers from time to time until the
Commitment Termination Date its Pro Rata Share of advances (each, a "Revolving
Credit Advance"). The Pro Rata Share of the Revolving Loan of any Lender shall
not at any time exceed its separate Revolving Loan Commitment. The obligations
of each Lender hereunder shall be several and not joint. Until the Commitment
Termination Date, Borrowers may borrow, repay and reborrow under this Section
1.1(a); provided that the amount of any Revolving Credit Advance to be made at
any time shall not exceed Borrowing Availability at such time. Borrowing
Availability may be reduced by Reserves imposed by Agent in its reasonable
credit judgment. Moreover, the sum of the Revolving Loan and Swing Line Loan
outstanding to any Borrower shall not exceed at any time that Borrower's
separate Borrowing Base. Until the Commitment Termination Date, Borrowers may
from time to time borrow, repay and reborrow under this Section 1.1(a). Each
Revolving Credit Advance shall be made on notice by Borrower Representative on
behalf of the applicable Borrower to one of the representatives of Agent
identified in Schedule 1.1 at the address specified therein. Any such notice
must be given no later than (1) 11:00 a.m. (Chicago time) on the Business Day of
the proposed Revolving Credit Advance, in the case of an Index Rate Loan, or (2)
11:00 a.m. (Chicago time on the date which is three (3) Business Days prior to
the proposed Revolving Credit Advance, in the case of a LIBOR Loan. Each such
notice (a "Notice of Revolving Credit Advance") must be given in writing (by
telecopy or overnight courier) substantially in the form of Exhibit 1.1(a)(i),
and shall include the information required in such Exhibit and such other
information as may be required by Agent. If any Borrower desires to have the
Revolving Credit Advances bear interest by reference to a LIBOR Rate, Borrower
Representative must comply with Section 1.5(e).
(ii) Except as provided in Section 1.12, each
Borrower shall execute and deliver to each Lender a note to evidence the
Revolving Loan Commitment of that Lender. Each note shall be in the principal
amount of the Revolving Loan Commitment of the applicable
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Lender, dated the Restatement Date and substantially in the form of Exhibit
1.1(a)(ii) (each a "Revolving Note" and, collectively, the "Revolving Notes").
Each Revolving Note shall represent the obligation of the applicable Borrower to
pay the amount of the applicable Lender's Revolving Loan Commitment or, if less,
such Lender's Pro Rata Share of the aggregate unpaid principal amount of all
Revolving Credit Advances to such Borrower together with interest thereon as
prescribed in Section 1.5. The entire unpaid balance of the aggregate Revolving
Loan and all other non-contingent Obligations shall be immediately due and
payable in full in immediately available funds on the Commitment Termination
Date.
(iii) Anything in this Agreement to the contrary
notwithstanding, at the request of Borrower Representative, in its discretion
Agent may (but shall have absolutely no obligation to), make Revolving Credit
Advances to Borrowers on behalf of Lenders in amounts that cause the outstanding
balance of the aggregate Revolving Loan to exceed the Aggregate Borrowing Base
(less the Swing Line Loan) or which cause the outstanding balance of the
Revolving Loan owing by any Borrower to exceed that Borrower's separate
Borrowing Base (less the Swing Line Loan advanced to that Borrower) (any such
excess Revolving Credit Advances are herein referred to collectively as
"Overadvances"); provided that (A) no such event or occurrence shall cause or
constitute a waiver of Agent's, Swing Line Lender's or Lenders' right to refuse
to make any further Overadvances, Swing Line Advances or Revolving Credit
Advances, or incur any Letter of Credit Obligations, as the case may be, at any
time that an Overadvance exists, and (B) no Overadvance shall result in a
Default or Event of Default based on Borrowers' failure to comply with Section
1.3(b)(i) for so long as Agent permits such Overadvance to be outstanding, but
solely with respect to the amount of such Overadvance. In addition, Overadvances
may be made even if the conditions to lending set forth in Section 2 have not
been met. All Overadvances shall constitute Index Rate Loans, shall bear
interest at the Default Rate and shall be payable on the earlier of (i) demand
or (ii) the Commitment Termination Date. Except as otherwise provided in Section
1.11(b), the authority of Agent to make Overadvances is limited to an aggregate
amount not to exceed $2,000,000 at any time, shall not cause the aggregate
Revolving Loan to exceed the Maximum Amount, and may be revoked prospectively by
a written notice to Agent signed by Lenders holding more than 50% of the
Revolving Loan Commitments.
(b) Swing Line Facility.
(i) Agent shall notify the Swing Line Lender
upon Agent's receipt of any Notice of Revolving Credit Advance. Subject to the
terms and conditions hereof, the Swing Line Lender may, in its discretion, make
available from time to time until the Commitment Termination Date advances
(each, a "Swing Line Advance") in accordance with any such notice. The
provisions of this Section 1.1(b) shall not relieve Lenders of their obligations
to make Revolving Credit Advances under Section 1.1(a); provided that if the
Swing Line Lender makes a Swing Line Advance pursuant to any such notice, such
Swing Line Advance shall be in lieu of any Revolving Credit Advance that
otherwise may be made by Revolving Credit Lenders pursuant to such notice. The
aggregate amount of Swing Line Advances outstanding shall not exceed at any time
the lesser of (A) the Swing Line Commitment and (B) the lesser of the Maximum
Amount and (except for Overadvances) the Aggregate Borrowing Base, in each case,
3
less the outstanding balance of the Revolving Loan at such time ("Swing Line
Availability"). Moreover, except for Overadvances, the Swing Line Loan
outstanding to any Borrower shall not exceed at any time that Borrower's
separate Borrowing Base less the Revolving Loan outstanding to such Borrower.
Until the Commitment Termination Date, Borrowers may from time to time borrow,
repay and reborrow under this Section 1.1(b). Each Swing Line Advance shall be
made pursuant to a Notice of Revolving Credit Advance delivered to Agent by
Borrower Representative on behalf of the applicable Borrower in accordance with
Section 1.1(a). Any such notice must be given no later than 11:00 a.m. (Chicago
time) on the Business Day of the proposed Swing Line Advance. Unless the Swing
Line Lender has received at least one Business Day's prior written notice from
Requisite Lenders instructing it not to make a Swing Line Advance, the Swing
Line Lender shall, notwithstanding the failure of any condition precedent set
forth in Sections 2.2, be entitled to fund that Swing Line Advance, and to have
each Lender make Revolving Credit Advances in accordance with Section
1.1(b)(iii) or purchase participating interests in accordance with Section
1.1(b)(iv). Notwithstanding any other provision of this Agreement or the other
Loan Documents, the Swing Line Loan shall constitute an Index Rate Loan.
Borrowers shall repay the aggregate outstanding principal amount of the Swing
Line Loan upon demand therefor by Agent.
(ii) Each Borrower shall execute and deliver to
the Swing Line Lender a promissory note to evidence the Swing Line Commitment.
Each note shall be in the principal amount of the Swing Line Commitment of the
Swing Line Lender, dated the Restatement Date and substantially in the form of
Exhibit 1.1(b)(ii) (each a "Swing Line Note" and, collectively, the "Swing Line
Notes"). Each Swing Line Note shall represent the obligation of each Borrower to
pay the amount of the Swing Line Commitment or, if less, the aggregate unpaid
principal amount of all Swing Line Advances made to such Borrower together with
interest thereon as prescribed in Section 1.5. The entire unpaid balance of the
Swing Line Loan and all other noncontingent Obligations shall be immediately due
and payable in full in immediately available funds on the Commitment Termination
Date if not sooner paid in full.
(iii) The Swing Line Lender, at any time and from
time to time in its sole and absolute discretion, but not less frequently than
weekly, may on behalf of any Borrower (and each Borrower hereby irrevocably
authorizes the Swing Line Lender to so act on its behalf) request each Lender
(including the Swing Line Lender) to make a Revolving Credit Advance to each
Borrower (which shall be an Index Rate Loan) in an amount equal to that Lender's
Pro Rata Share of the principal amount of the applicable Borrower's Swing Line
Loan (the "Refunded Swing Line Loan") outstanding on the date such notice is
given. Unless any of the events described in Sections 8.1(h) or 8.1(i) has
occurred (in which event the procedures of Section 1.1(b)(iv) shall apply) and
regardless of whether the conditions precedent set forth in this Agreement to
the making of a Revolving Credit Advance are then satisfied, each Lender shall
disburse directly to Agent, its Pro Rata Share of a Revolving Credit Advance on
behalf of the Swing Line Lender prior to 2:00 p.m. (Chicago time) in immediately
available funds on the Business Day next succeeding the date that notice is
given. The proceeds of those Revolving Credit Advances shall be immediately paid
to the Swing Line Lender and applied to repay the Refunded Swing Line Loan of
the applicable Borrower.
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(iv) If, prior to refunding a Swing Line Loan
with a Revolving Credit Advance pursuant to Section 1.1(b)(iii), one of the
events described in Sections 8.1(h) or 8.1(i) has occurred, then, subject to the
provisions of Section 1.1(b)(v) below, each Lender shall, on the date such
Revolving Credit Advance was to have been made for the benefit of the applicable
Borrower, purchase from the Swing Line Lender an undivided participation
interest in the Swing Line Loan to such Borrower in an amount equal to its Pro
Rata Share of such Swing Line Loan. Upon request, each Lender shall promptly
transfer to the Swing Line Lender, in immediately available funds, the amount of
its participation interest.
(v) Each Lender's obligation to make Revolving
Credit Advances in accordance with Section 1.1(b)(iii) and to purchase
participation interests in accordance with Section 1.1(b)(iv) shall be absolute
and unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right that such Lender
may have against the Swing Line Lender, any Borrower or any other Person for any
reason whatsoever; (B) the occurrence or continuance of any Default or Event of
Default; (C) any inability of any Borrower to satisfy the conditions precedent
to borrowing set forth in this Agreement at any time or (D) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If any Lender does not make available to Agent or the Swing Line
Lender, as applicable, the amount required pursuant to Sections 1.1(b)(iii) or
1.1(b)(iv), as the case may be, the Swing Line Lender shall be entitled to
recover such amount on demand from such Lender, together with interest thereon
for each day from the date of non-payment until such amount is paid in full at
the Federal Funds Rate for the first two Business Days and at the Index Rate
thereafter.
(c) Reliance on Notices; Appointment of Borrower
Representative. Agent shall be entitled to rely upon, and shall be fully
protected in relying upon, any Notice of Revolving Credit Advance, Notice of
Conversion/Continuation or similar notice believed by Agent to be genuine. Agent
may assume that each Person executing and delivering any notice in accordance
herewith was duly authorized, unless the responsible individual acting thereon
for Agent has actual knowledge to the contrary. Each Borrower hereby designates
Brightpoint as its representative and agent on its behalf for the purposes of
issuing Notices of Revolving Credit Advances and Notices of
Conversion/Continuation, giving instructions with respect to the disbursement of
the proceeds of the Loans, selecting interest rate options, requesting Letters
of Credit, giving and receiving all other notices and consents hereunder or
under any of the other Loan Documents and taking all other actions (including in
respect of compliance with covenants) on behalf of any Borrower or Borrowers
under the Loan Documents. Borrower Representative hereby accepts such
appointment. Agent and each Lender may regard any notice or other communication
pursuant to any Loan Document from Borrower Representative as a notice or
communication from all Borrowers, and may give any notice or communication
required or permitted to be given to any Borrower or Borrowers hereunder to
Borrower Representative on behalf of such Borrower or Borrowers. Each Borrower
agrees that each notice, election, representation and warranty, covenant,
agreement and undertaking made on its behalf by Borrower Representative shall be
deemed for all purposes to have been made by such Borrower
5
and shall be binding upon and enforceable against such Borrower to the same
extent as if the same had been made directly by such Borrower.
1.2 Letters of Credit. Subject to and in accordance with
the terms and conditions contained herein and in Annex B, Borrower
Representative, on behalf of the applicable Borrower, shall have the right to
request, and Lenders agree to incur, or purchase participations in, Letter of
Credit Obligations in respect of each Borrower.
1.3 Prepayments.
(a) Voluntary Reductions in Revolving Loan Commitments.
Borrowers may at any time on at least two (2) Business Days' prior written
notice by Borrower Representative to Agent permanently reduce (but not
terminate) the Revolving Loan Commitment; provided that (A) any such reductions
shall be in a minimum amount of $5,000,000 and integral multiples of $250,000 in
excess of such amount, (B) the Revolving Loan Commitment shall not be reduced to
an amount less than the amount of the Revolving Loan then outstanding, and (C)
after giving effect to such reductions, Borrowers shall comply with Section
1.3(b)(i). In addition, Borrowers may at any time on at least ten (10) days'
prior written notice by Borrower Representative to Agent terminate the Revolving
Loan Commitment; provided that upon such termination, all Loans and other
Obligations shall be immediately due and payable in full and all Letter of
Credit Obligations shall be cash collateralized or otherwise satisfied in
accordance with Annex B hereto. Any reduction or termination of the Revolving
Loan Commitment must be accompanied by the payment of any LIBOR funding breakage
costs in accordance with Section 1.13(b). Upon any such reduction or termination
of the Revolving Loan Commitment, each Borrower's right to request Revolving
Credit Advances, or request that Letter of Credit Obligations be incurred on its
behalf, or request Swing Line Advances, shall simultaneously be permanently
reduced or terminated, as the case may be; provided that a permanent reduction
of the Revolving Loan Commitment shall require a corresponding pro rata
reduction in the L/C Sublimit.
(b) Mandatory Prepayments.
(i) If at any time the aggregate outstanding
balances of the Revolving Loan and the Swing Line Loan exceed the lesser of (A)
the Maximum Amount and (B) the Aggregate Borrowing Base, Borrowers shall
immediately repay the aggregate outstanding Revolving Credit Advances to the
extent required to eliminate such excess. If any such excess remains after
repayment in full of the aggregate outstanding Revolving Credit Advances,
Borrowers shall provide cash collateral for the Letter of Credit Obligations in
the manner set forth in Annex B to the extent required to eliminate such excess.
Furthermore, if, at any time, the outstanding balance of the Revolving Loan of
any Borrower exceeds that Borrower's separate Borrowing Base less the
outstanding balance of the Swing Line Loan of that Borrower, the applicable
Borrower shall immediately repay its Revolving Credit Advances in the amount of
such excess (and, if necessary, shall provide cash collateral for its Letter of
Credit Obligations as described above). Notwithstanding the foregoing, any
Overadvance made pursuant to Section 1.1(a)(iii) shall be repaid in accordance
with Section 1.1(a)(iii).
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(ii) Immediately upon receipt by any Borrower of
proceeds of any asset disposition (excluding proceeds of asset dispositions
permitted by Section 6.8 (a)) or any sale of Stock of Brightpoint Holdings,
Wireless Holdings, BAS or any Borrower, Borrowers shall prepay the Loans in an
amount equal to all such proceeds, net of (A) commissions and other reasonable
and customary transaction costs, fees and expenses properly attributable to such
transaction and payable by Borrowers in connection therewith (in each case, paid
to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior
Liens on such asset (to the extent such Liens constitute Permitted Encumbrances
hereunder), if any, and (D) an appropriate reserve for income taxes in
accordance with GAAP in connection therewith. Any such prepayment shall be
applied in accordance with Section 1.3(c).
(iii) If any Loan Party issues Stock, no later
than the Business Day following the date of receipt of the proceeds thereof, all
Borrowers (in the case of an issuance by a Holding Company) or the issuing
Borrower shall prepay the Loans in an amount equal to all such proceeds, net of
underwriting discounts and commissions and other reasonable costs paid to
non-Affiliates in connection therewith. Any such prepayment shall be applied in
accordance with Section 1.3(c).
(c) Application of Certain Mandatory Prepayments. Any
prepayments made by any Borrower pursuant to Sections 1.3(b)(ii) or (b)(iii)
above shall be applied as follows: first, to Fees and reimbursable expenses of
Agent then due and payable pursuant to any of the Loan Documents; second, to
interest then due and payable on that Borrower's Swing Line Loan; third, to the
principal balance of the Swing Line Loan outstanding to that Borrower until the
same has been repaid in full; fourth, to interest then due and payable on
Revolving Credit Advances made to that Borrower; fifth, to the principal balance
of Revolving Credit Advances outstanding to that Borrower until the same has
been paid in full; sixth, to any Letter of Credit Obligations of such Borrower
to provide cash collateral therefor in the manner set forth in Annex B, until
all such Letter of Credit Obligations have been fully cash collateralized in the
manner set forth in Annex B; seventh, to interest then due and payable on the
Swing Line Loan of the other Borrower, pro rata; eighth, to the principal
balances of the Swing Line Loan outstanding to the other Borrower, pro rata,
until the same have been repaid in full; ninth, to interest then due and payable
on the Revolving Credit Advances outstanding to the other Borrower, pro rata;
tenth, to the principal balance of the Revolving Credit Advances made to the
other Borrower, pro rata, until the same has been paid in full, and last to any
Letter of Credit Obligations of the other Borrower, pro rata, to provide cash
collateral therefor in the manner set forth in Annex B, until all such Letter of
Credit Obligations have been fully cash collateralized. Neither the Revolving
Loan Commitment nor the Swing Line Commitment shall be permanently reduced by
the amount of any such prepayments.
(d) No Implied Consent. Nothing in this Section 1.3 shall
be construed to constitute Agent's or any Lender's consent to any transaction
that is not permitted by other provisions of this Agreement or the other Loan
Documents.
1.4 Use of Proceeds. Borrowers shall utilize the proceeds
of the Revolving Loan and the Swing Line Advances solely for the financing of
Borrowers' ordinary working
7
capital, capital expenditures and general corporate purposes. Disclosure
Schedule (1.4) contains a description of Borrowers' sources and uses of funds as
of the Restatement Date, including Loans and Letter of Credit Obligations to be
made or incurred on that date, and a funds flow memorandum detailing how funds
from each source are to be transferred to particular uses.
1.5 Interest and Applicable Margins.
(a) Borrowers shall pay interest to Agent, for the
ratable benefit of Lenders in accordance with the various Loans being made by
each Lender, in arrears on each applicable Interest Payment Date, at the
following rates: (i) with respect to the Revolving Credit Advances, the Index
Rate plus the Applicable Index Margin per annum or, at the election of Borrower
Representative, the Applicable LIBOR Rate plus the Applicable LIBOR Margin per
annum, based on the aggregate Revolving Credit Advances outstanding from time to
time; and (ii) with respect to the Swing Line Loan, the Index Rate plus the
Applicable Index Margin per annum.
As of the Restatement Date, the Applicable Margins are as
follows:
Applicable Index Margin 0.00%
Applicable LIBOR Margin 1.50%
Applicable L/C Margin 1.50%
Applicable Unused Line Fee Margin 0.375%
The Applicable Margins shall be adjusted (up or down)
prospectively on a quarterly basis as determined by Borrowers' consolidated
financial performance, commencing with the first day of the first calendar month
that occurs more than five (5) days after delivery of Borrowers' quarterly
Financial Statements to Lenders for the Fiscal Quarter ending March 31, 2004.
Adjustments in Applicable Margins shall be determined by reference to the
following grids:
IF FIXED CHARGE LEVEL OF
COVERAGE RATIO IS: APPLICABLE MARGINS:
----------------- ------------------
> 5.25:1.00 Level I
< or = 5.25:1.00, but > 4.25:1.00 Level II
< or = 4.25:1.00, but > 3.25:1.00 Level III
< or = 3.25:1.00, but > 1.00:1.00 Level IV
< or = 1.00:1.00 Level V
APPLICABLE MARGINS
--------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
------- -------- --------- -------- -------
Applicable Index Margin 0.00% 0.00% 0.25% 0.50% 1.00%
Applicable LIBOR Margin 1.25% 1.50% 1.75% 2.00% 2.50%
8
APPLICABLE MARGINS
--------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
------- -------- --------- -------- -------
Applicable L/C Margin 1.25% 1.50% 1.75% 2.00% 2.50%
Applicable Unused Line Fee Margin 0.25% 0.375 0.375 0.50% 0.50%
All adjustments in the Applicable Margins after March 31, 2004
shall be implemented quarterly on a prospective basis, for each calendar month
commencing at least five (5) days after the date of delivery to Lenders of the
quarterly unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the delivery of those
Financial Statements, Borrower Representative shall deliver to Agent and Lenders
a certificate, signed by its chief financial officer, setting forth in
reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins. Failure to timely deliver such Financial Statements shall,
in addition to any other remedy provided for in this Agreement, result in an
increase in the Applicable Margins to the highest level set forth in the
foregoing grid, until the first day of the first calendar month following the
delivery of those Financial Statements demonstrating that such an increase is
not required. If a Default or Event of Default has occurred and is continuing at
the time any reduction in the Applicable Margins is to be implemented, that
reduction shall be deferred until the first day of the first calendar month
following the date on which such Default or Event of Default is waived or cured.
(b) If any payment on any Loan becomes due and payable on
a day other than a Business Day, the maturity thereof will be extended to the
next succeeding Business Day (except as set forth in the definition of LIBOR
Period) and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum
basis and interest shall be made by Agent on the basis of a 360-day year, in
each case for the actual number of days occurring in the period for which such
interest and Fees are payable. The Index Rate is a floating rate determined for
each day. Each determination by Agent of an interest rate and Fees hereunder
shall be final, binding and conclusive on Borrowers, absent manifest error.
(d) So long as an Event of Default has occurred and is
continuing under Section 8.1(a), (h) or (i) or so long as any other Default or
Event of Default has occurred and is continuing and at the election of Agent (or
upon the written request of Requisite Lenders) confirmed by written notice from
Agent to Borrower Representative, the interest rates applicable to the Loans and
the Letter of Credit Fees shall be increased by two percentage points (2%) per
annum above the rates of interest or the rate of such Fees otherwise applicable
hereunder ("Default Rate"), and all outstanding Obligations shall bear interest
at the Default Rate applicable to such Obligations. Interest and Letter of
Credit Fees at the Default Rate shall accrue from the initial date of such
Default or Event of Default until that Default or Event of Default is cured or
waived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in
Section 2.2, Borrower Representative shall have the option to (i) request that
any Revolving Credit Advance be made as
9
a LIBOR Loan, (ii) convert at any time all or any part of outstanding Loans
(other than the Swing Line Loan) from Index Rate Loans to LIBOR Loans, (iii)
convert any LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR
breakage costs in accordance with Section 1.13(b) if such conversion is made
prior to the expiration of the LIBOR Period applicable thereto, or (iv) continue
all or any portion of any Loan (other than the Swing Line Loan) as a LIBOR Loan
upon the expiration of the applicable LIBOR Period and the succeeding LIBOR
Period of that continued Loan shall commence on the first day after the last day
of the LIBOR Period of the Loan to be continued. Any Loan or group of Loans
having the same proposed LIBOR Period to be made or continued as, or converted
into, a LIBOR Loan must be in a minimum amount of $5,000,000 and integral
multiples of $500,000 in excess of such amount. Any such election must be made
by 11:00 a.m. (Chicago time) on the 3rd Business Day prior to (1) the date of
any proposed Advance which is to bear interest at the LIBOR Rate, (2) the end of
each LIBOR Period with respect to any LIBOR Loans to be continued as such, or
(3) the date on which Borrower Representative wishes to convert any Index Rate
Loan to a LIBOR Loan for a LIBOR Period designated by Borrower Representative in
such election. If no election is received with respect to a LIBOR Loan by 11:00
a.m. (Chicago time) on the 3rd Business Day prior to the end of the LIBOR Period
with respect thereto (or if a Default or an Event of Default has occurred and is
continuing or if the additional conditions precedent set forth in Section 2.2
shall not have been satisfied), that LIBOR Loan shall be converted to an Index
Rate Loan at the end of its LIBOR Period. Borrower Representative must make such
election by notice to Agent in writing, by telecopy or overnight courier. In the
case of any conversion or continuation, such election must be made pursuant to a
written notice (a "Notice of Conversion/Continuation") in the form of Exhibit
1.5(e).
(f) Notwithstanding anything to the contrary set forth in
this Section 1.5, if a court of competent jurisdiction determines in a final
order that the rate of interest payable hereunder exceeds the highest rate of
interest permissible under law (the "Maximum Lawful Rate"), then so long as the
Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder
shall be equal to the Maximum Lawful Rate; provided, however, that if at any
time thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrowers shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had the
interest rate payable hereunder been (but for the operation of this paragraph)
the interest rate payable since the Restatement Date as otherwise provided in
this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of
interest and in the manner provided in Sections 1.5(a) through (e), unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall be
calculated at a daily rate equal to the Maximum Lawful Rate divided by the
number of days in the year in which such calculation is made. If,
notwithstanding the provisions of this Section 1.5(f), a court of competent
jurisdiction shall finally determine that a Lender has received interest
hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent
permitted by applicable law, promptly apply such excess in the
10
order specified in Section 1.11 and thereafter shall refund any excess to
Borrowers or as a court of competent jurisdiction may otherwise order.
1.6 Eligible Accounts. All of the Accounts owned by each
Borrower and reflected in the most recent Borrowing Base Certificate delivered
by each Borrower to Agent shall be "Eligible Accounts" for purposes of this
Agreement, except any Account to which any of the exclusionary criteria set
forth below applies. Agent shall have the right to establish, or modify or
eliminate Reserves against Eligible Accounts from time to time in its reasonable
credit judgment. In addition, Agent reserves the right, at any time and from
time to time after the Restatement Date, to adjust any of the criteria set forth
below, to establish new criteria and to adjust advance rates with respect to
Eligible Accounts, in its reasonable credit judgment, subject to the approval of
Supermajority Lenders in the case of adjustments, new criteria or changes in
advance rates or the elimination of Reserves which have the effect of making
more credit available. Eligible Accounts shall not include any Account of any
Borrower:
(a) that does not arise from the sale of goods or the
performance of services by such Borrower in the ordinary course of its business;
(b) (i) upon which such Borrower's right to receive
payment is not absolute or is contingent upon the fulfillment of any condition
whatsoever or (ii) as to which such Borrower is not able to bring suit or
otherwise enforce its remedies against the Account Debtor through judicial
process or (iii) if the Account represents a progress billing consisting of an
invoice for goods sold or used or services rendered pursuant to a contract under
which the Account Debtor's obligation to pay that invoice is subject to such
Borrower's completion of further performance under such contract or is subject
to the equitable lien of a surety bond issuer;
(c) in the event that any defense, counterclaim, setoff
or dispute is asserted as to such Account;
(d) that is not a true and correct statement of bona fide
indebtedness incurred in the amount of the Account for merchandise sold to or
services rendered and accepted by the applicable Account Debtor;
(e) with respect to which an invoice, in form and
substance previously approved by Agent or any other form reasonably acceptable
to Agent in form and substance, has not been sent to the applicable Account
Debtor;
(f) that (i) is not owned by such Borrower or (ii) is
subject to any right, claim, security interest or other interest of any other
Person, other than Liens in favor of Agent, on behalf of itself and Lenders;
(g) that arises from a sale to any director, officer,
other employee or Affiliate of any Credit Party, or to any entity that has any
common officer or director with any Credit Party (except for any Account Debtor
set forth on Disclosure Schedule (1.6));
11
(h) that is the obligation of an Account Debtor that is
the United States government or a political subdivision thereof, or any state,
county or municipality or department, agency or instrumentality thereof unless
Agent, in its sole discretion, has agreed to the contrary in writing and such
Borrower, if necessary or desirable, has complied with respect to such
obligation with the Federal Assignment of Claims Act of 1940, or any applicable
state, county or municipal law restricting assignment thereof;
(i) that is the obligation of an Account Debtor located
in a foreign country other than Canada (excluding the province of Newfoundland,
the Northwest Territories and the Territory of Nunavit) unless payment thereof
is assured by a letter of credit assigned and delivered to Agent, reasonably
satisfactory to Agent as to form, amount and issuer;
(j) to the extent such Borrower or any Subsidiary thereof
is liable for goods sold or services rendered by the applicable Account Debtor
to such Borrower or any Subsidiary thereof but only to the extent of the
potential offset;
(k) that arises with respect to goods that are delivered
on a ▇▇▇▇-and-hold, cash-on-delivery basis or placed on consignment, guaranteed
sale or other terms by reason of which the payment by the Account Debtor is or
may be conditional;
(l) that is in default; provided, that, without limiting
the generality of the foregoing, an Account shall be deemed in default upon the
occurrence of any of the following:
(i) the Account is not paid within the earlier
of: 60 days following its due date or 90 days following its original invoice
date;
(ii) the Account Debtor obligated upon such
Account suspends business, makes a general assignment for the benefit of
creditors or fails to pay its debts generally as they come due; or
(iii) a petition is filed by or against any
Account Debtor obligated upon such Account under any bankruptcy law or any other
federal, state or foreign (including any provincial) receivership, insolvency
relief or other law or laws for the relief of debtors;
(m) that is the obligation of an Account Debtor if 50% or
more of the Dollar amount of all Accounts owing by that Account Debtor are
ineligible under the criteria set forth in Section 1.6(l);
(n) as to which Agent's Lien thereon, on behalf of itself
and Lenders, is not a first priority perfected Lien;
(o) as to which any of the representations or warranties
in the Loan Documents are untrue;
12
(p) to the extent such Account is evidenced by a
judgment, Instrument or Chattel Paper;
(q) to the extent such Account exceeds any credit limit
established by Agent, in its reasonable credit judgment;
(r) to the extent that such Account, together with all
other Accounts owing by such Account Debtor and its Affiliates as of any date of
determination exceed 10% (or, in Agent's sole discretion, 15%) of all Eligible
Accounts;
(s) that is payable in any currency other than Dollars;
or
(t) that is otherwise unacceptable to Agent in its
reasonable credit judgment.
1.7 Eligible Inventory. All of the Inventory owned by the
Borrowers and reflected in the most recent Borrowing Base Certificate delivered
by each Borrower to Agent shall be "Eligible Inventory" for purposes of this
Agreement, except any Inventory to which any of the exclusionary criteria set
forth below applies. Agent shall have the right to establish, modify or
eliminate Reserves against Eligible Inventory from time to time in its
reasonable credit judgment. In addition, Agent reserves the right, at any time
and from time to time after the Restatement Date, to adjust of the criteria set
forth below, to establish new criteria and to adjust advance rates with respect
to Eligible Inventory, in its reasonable credit judgment, subject to the
approval of Supermajority Lenders in the case of adjustments, new criteria or
changes in advance rates or the elimination of Reserves which have the effect of
making more credit available. Eligible Inventory shall not include any Inventory
of any Borrower that:
(a) is not owned by such Borrower free and clear of all
Liens and rights of any other Person (including the rights of a purchaser that
has made progress payments and the rights of a surety that has issued a bond to
assure such Borrower's performance with respect to that Inventory), except the
Liens in favor of Agent, on behalf of itself and Lenders, and Permitted
Encumbrances in favor of landlords and bailees to the extent permitted in
Section 5.9 hereof (subject to Reserves established by Agent in accordance with
Section 5.9 hereof);
(b) (i) is not located on premises owned, leased or
rented by such Borrower and set forth in Disclosure Schedule (3.2), or (ii) is
stored at a leased location, unless Agent has given its prior consent thereto
and unless either (x) a reasonably satisfactory landlord waiver has been
delivered to Agent, or (y) Reserves reasonably satisfactory to Agent have been
established with respect thereto or (iii) is stored with a bailee or
warehouseman unless a reasonably satisfactory, acknowledged bailee letter has
been received by Agent and Reserves reasonably satisfactory to Agent have been
established with respect thereto, or (iv) is located at an owned location
subject to a mortgage in favor of a lender other than Agent unless a reasonably
satisfactory mortgagee waiver has been delivered to Agent, or (v) is located at
any site if the aggregate book value of Inventory at any such location is less
than $100,000;
(c) is placed on consignment or is in transit, except for
Inventory in transit between domestic locations of Credit Parties as to which
Agent's Liens have been perfected at
13
origin and destination and Inventory in transit to a purchaser, which Inventory
(i) is fully insured, (ii) is subject to a first priority security interest in
and lien upon such goods in favor of Agent (except for any possessor lien upon
such goods in the possession of a freight carrier or shipping company securing
only the freight charges for the transportation of such goods to such
Borrowers), (iii) if required by Agent, is evidenced or deliverable pursuant to
documents, notices, instruments, statements and bills of lading that have been
delivered to Agent or an agent acting on its behalf, and (iv) is otherwise
deemed to be "Eligible Inventory" hereunder;
(d) is covered by a negotiable document of title, unless
such document has been delivered to Agent with all necessary endorsements, free
and clear of all Liens except those in favor of Agent and Lenders;
(e) is excess, obsolete, slow moving (in excess of one
year's supply), unsalable, shopworn, seconds, damaged or unfit for sale;
(f) consists of display items or packing or shipping
materials, manufacturing supplies, work-in-process Inventory or replacement
parts;
(g) consists of goods which have been returned by the
buyer except for such goods which are in saleable "as new" condition in the
ordinary course of business;
(h) is not of a type held for sale in the ordinary course
of such Borrower's business;
(i) is not subject to a first priority lien in favor of
Agent on behalf of itself and Lenders, subject to Permitted Encumbrances as set
forth in clause (e) of the definition thereof (subject to reserves satisfactory
to Agent);
(j) breaches any of the representations or warranties
pertaining to Inventory set forth in the Loan Documents;
(k) consists of any costs associated with "freight-in"
charges;
(l) consists of Hazardous Materials or goods that can be
transported or sold only with licenses that are not readily available;
(m) is not covered by casualty insurance reasonably
acceptable to Agent;
(n) is that portion of total Inventory that is more than
sixty (60) days old and is in excess of the greater of (i) $2,500,000 or (ii)
the sum of Inventory (A) specifically reserved for by such Borrower in its
financial statements; (B) covered by an existing stock buy-back arrangement and
(C) covered by a then-existing purchase order; provided, that, in any event,
Eligible Inventory shall not include any Inventory of any Borrower that is more
than ninety (90) days old and not specifically reserved for by such Borrower in
its financial statements;
14
(o) is subject to any patent or trademark license
requiring the payment of royalties or fees or requiring the consent of the
licensee for a sale thereof by Agent; or
(p) is otherwise unacceptable to Agent in its reasonable
credit judgment.
1.8 Cash Management Systems. On or prior to the
Restatement Date, Borrowers will establish and will maintain until the
Termination Date, the cash management systems described in Annex C (the "Cash
Management Systems").
1.9 Fees.
(a) Borrowers shall pay to GE Capital, individually, the
Fees specified in the GE Capital Fee Letter, at the times specified for payment
therein.
(b) As additional compensation for the Lenders, Borrowers
shall pay to Agent, for the ratable benefit of such Lenders, in arrears, on the
first Business Day of each month prior to the Commitment Termination Date and on
the Commitment Termination Date, a Fee for Borrowers' non-use of available funds
in an amount equal to the Applicable Unused Line Fee Margin per annum
(calculated on the basis of a 360 day year for actual days elapsed) multiplied
by the difference between (x) the Maximum Amount (as it may be reduced from time
to time) and (y) the average for the period of the daily closing balances of the
aggregate Revolving Loan and the Swing Line Loan outstanding during the period
for which such Fee is due.
(c) Borrowers shall pay to Agent, for the ratable benefit
of Lenders, the Letter of Credit Fee as provided in Annex B.
1.10 Receipt of Payments. Borrowers shall make each
payment under this Agreement not later than 1:00 p.m. (Chicago time) on the day
when due in immediately available funds in Dollars to the Collection Account.
For purposes of computing interest and Fees and determining Borrowing
Availability as of any date, all payments shall be deemed received on the
Business Day on which immediately available funds therefor are received in the
Collection Account prior to 1:00 p.m. (Chicago time). Payments received after
1:00 p.m. Chicago time on any Business Day or on a day that is not a Business
Day shall be deemed to have been received on the following Business Day.
1.11 Application and Allocation of Payments.
(a) So long as no Default or Event of Default has
occurred and is continuing, (i) payments consisting of proceeds of Accounts
received in the ordinary course of business shall be applied, first, to the
Swing Line Loan and, second, the Revolving Loan; (ii) payments matching specific
scheduled payments then due shall be applied to those scheduled payments; (iii)
voluntary prepayments shall be applied as determined by Borrower Representative,
subject to the provisions of Section 1.3(a); and (iv) mandatory prepayments
shall be applied as set forth in Section 1.3(c). All payments and prepayments
applied to a particular Loan shall be applied ratably to the portion thereof
held by each Lender as determined by its Pro Rata Share. As to any other
payment, and as to all payments made when a Default or Event of Default has
occurred and
15
is continuing or following the Commitment Termination Date, each Borrower hereby
irrevocably waives the right to direct the application of any and all payments
received from or on behalf of such Borrower, and each Borrower hereby
irrevocably agrees that Agent shall have the continuing exclusive right to apply
any and all such payments against the Obligations of Borrowers as Agent may deem
advisable notwithstanding any previous entry by Agent in the Loan Account or any
other books and records. In the absence of a specific determination by Agent
with respect thereto, payments shall be applied to amounts then due and payable
in the following order: (1) to Fees and Agent's expenses reimbursable hereunder;
(2) to interest on the Swing Line Loan; (3) to principal payments on the Swing
Line Loan; (4) to interest on the other Loans, ratably in proportion to the
interest accrued as to each Loan; (5) to principal payments on the other Loans
and to provide cash collateral for Letter of Credit Obligations in the manner
described in Annex B, ratably to the aggregate, combined principal balance of
the other Loans and outstanding Letter of Credit Obligations; (6) to all other
Obligations other than Hedging Obligations, including expenses of Lenders to the
extent reimbursable under Section 11.3; and (7) to Hedging Obligations.
(b) Agent is authorized to, and at its sole election may,
charge to the Revolving Loan balance on behalf of each Borrower and cause to be
paid all Fees, expenses, Charges, costs (including insurance premiums in
accordance with Section 5.4(a)) and interest and principal, other than principal
of the Revolving Loan, owing by Borrowers under this Agreement or any of the
other Loan Documents if and to the extent Borrowers fail to pay promptly any
such amounts as and when due, even if the amount of such charges would exceed
Borrowing Availability at such time or would cause the balance of the Revolving
Loan and the Swing Line Loan to any Borrower to exceed such Borrower's separate
Borrowing Base after giving effect to such charges. At Agent's option and to the
extent permitted by law, any charges so made shall constitute part of the
Revolving Loan hereunder.
1.12 Loan Account and Accounting. Agent shall maintain a
loan account (the "Loan Account") on its books to record: all Advances, all
payments made by Borrowers, and all other debits and credits as provided in this
Agreement with respect to the Loans or any other Obligations. All entries in the
Loan Account shall be made in accordance with Agent's customary accounting
practices as in effect from time to time. The balance in the Loan Account, as
recorded on Agent's most recent printout or other written statement, shall,
absent manifest error, be presumptive evidence of the amounts due and owing to
Agent and Lenders by each Borrower; provided that any failure to so record or
any error in so recording shall not limit or otherwise affect any Borrower's
duty to pay the Obligations. Agent shall render to Borrower Representative a
monthly accounting of transactions with respect to the Loans setting forth the
balance of the Loan Account as to each Borrower for the immediately preceding
month. Unless Borrower Representative notifies Agent in writing of any objection
to any such accounting (specifically describing the basis for such objection),
within thirty (30) days after the date thereof, each and every such accounting
shall (absent manifest error) be deemed final, binding and conclusive on
Borrowers in all respects as to all matters reflected therein. Only those items
expressly objected to in such notice shall be deemed to be disputed by
Borrowers. Notwithstanding any provision herein contained to the contrary, any
Lender may elect (which
16
election may be revoked) to dispense with the issuance of Notes to that Lender
and may rely on the Loan Account as evidence of the amount of Obligations from
time to time owing to it.
1.13 Indemnity.
(a) Each Borrower shall jointly and severally indemnify
and hold harmless each of Agent, Lenders and their respective Affiliates, and
each such Person's respective officers, directors, employees, attorneys, agents
and representatives (each, an "Indemnified Person"), from and against any and
all suits, actions, proceedings, claims, damages, losses, liabilities and
expenses (including reasonable attorneys' fees and disbursements and other costs
of investigation or defense, including those incurred upon any appeal) that may
be instituted or asserted against or incurred by any such Indemnified Person as
the result of credit having been extended, suspended or terminated under this
Agreement and the other Loan Documents and the administration of such credit,
and in connection with or arising out of the transactions contemplated hereunder
and thereunder and any actions or failures to act in connection therewith,
including any and all Environmental Liabilities and legal costs and expenses
arising out of or incurred in connection with disputes between or among any
parties to any of the Loan Documents (collectively, "Indemnified Liabilities");
provided, that no such Borrower shall be liable for any indemnification to an
Indemnified Person to the extent that any such suit, action, proceeding, claim,
damage, loss, liability or expense results from that Indemnified Person's gross
negligence or willful misconduct. NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR
LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD
PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS
DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN
EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY
OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on
the terms provided herein, if (i) any LIBOR Loans are repaid in whole or in part
prior to the last day of any applicable LIBOR Period (whether that repayment is
made pursuant to any provision of this Agreement or any other Loan Document or
occurs as a result of acceleration, by operation of law or otherwise); (ii) any
Borrower shall default in payment when due of the principal amount of or
interest on any LIBOR Loan; (iii) any Borrower shall refuse to accept any
borrowing of, or shall request a termination of, any borrowing of, conversion
into or continuation of, LIBOR Loans after Borrower Representative has given
notice requesting the same in accordance herewith; or (iv) any Borrower shall
fail to make any prepayment of a LIBOR Loan after Borrower Representative has
given a notice thereof in accordance herewith, then Borrowers shall jointly and
severally indemnify and hold harmless each Lender from and against all losses,
costs and expenses resulting from or arising from any of the foregoing. Such
indemnification shall include any loss (including loss of margin) or expense
arising from the reemployment of funds obtained by it or from fees payable to
terminate deposits from which such funds were obtained. For the purpose of
calculating amounts payable to a Lender under this subsection, each Lender shall
be deemed to have actually funded its relevant LIBOR Loan through the purchase
of a deposit
17
bearing interest at the LIBOR Rate in an amount equal to the amount of that
LIBOR Loan and having a maturity comparable to the relevant LIBOR Period;
provided, that each Lender may fund each of its LIBOR Loans in any manner it
sees fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder. As promptly as practicable under the
circumstances, each Lender shall provide Borrower Representative with its
written calculation of all amounts payable pursuant to this Section 1.13(b), and
such calculation shall be binding on the parties hereto unless Borrower
Representative shall object in writing within ten (10) Business Days of receipt
thereof, specifying the basis for such objection in detail.
1.14 Access. Each Borrower shall, during normal business
hours, from time to time upon one Business Day's prior notice as frequently as
Agent determines to be appropriate: (a) provide Agent and any of its officers,
employees and agents access to its properties, facilities, advisors and
employees (including officers) of each Credit Party and to the Collateral, (b)
permit Agent, and any of its officers, employees and agents, to inspect, audit
and make extracts from any Borrower's books and records, and (c) permit Agent,
and its officers, employees and agents, to inspect, review, evaluate and make
test verifications and counts of the Accounts, Inventory and other Collateral of
any Borrower. If a Default or Event of Default has occurred and is continuing or
if access is necessary to preserve or protect the Collateral as determined by
Agent, each such Borrower shall provide such access to Agent and to each Lender
at all times and without advance notice. Furthermore, so long as any Event of
Default has occurred and is continuing, Borrowers shall provide Agent and each
Lender with access to their suppliers and customers. Each Borrower shall make
available to Agent and its counsel, as quickly as is possible under the
circumstances, originals or copies of all books and records that Agent may
reasonably request. Each Borrower shall deliver any document or instrument
necessary for Agent, as it may from time to time reasonably request, to obtain
records from any service bureau or other Person that maintains records for such
Borrower, and shall maintain duplicate records or supporting documentation on
media, including computer tapes and discs owned by such Borrower. Agent will
give Lenders at least five (5) days' prior written notice of regularly scheduled
audits. Representatives of other Lenders may accompany Agent's representatives
on regularly scheduled audits at no charge to Borrowers.
1.15 Taxes.
(a) Any and all payments by each Borrower hereunder
(including any payments made pursuant to Section 12) or under the Notes shall be
made, in accordance with this Section 1.15, free and clear of and without
deduction for any and all present or future Taxes. If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder (including any sum payable pursuant to Section 12) or under the Notes,
(i) the sum payable shall be increased as much as shall be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 1.15) Agent or Lenders, as
applicable, receive an amount equal to the sum they would have received had no
such deductions been made, (ii) such Borrower shall make such deductions, and
(iii) such Borrower shall pay the full amount deducted to the relevant taxing or
other authority in
18
accordance with applicable law. Within thirty (30) days after the date of any
payment of Taxes, Borrower Representative shall furnish to Agent the original or
a certified copy of a receipt evidencing payment thereof. Agent and Lenders
shall not be obligated to return or refund any amounts received pursuant to this
Section.
(b) Each Borrower that is a signatory hereto shall
jointly and severally indemnify and, within ten (10) days of demand therefor,
pay Agent and each Lender for the full amount of Taxes (including any Taxes
imposed by any jurisdiction on amounts payable under this Section 1.15) paid by
Agent or such Lender, as appropriate, and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally asserted.
(c) Each Lender organized under the laws of a
jurisdiction outside the United States (a "Foreign Lender") as to which payments
to be made under this Agreement or under the Notes are exempt from United States
withholding tax under an applicable statute or tax treaty shall provide to
Borrower Representative and Agent a properly completed and executed IRS Form
W-8ECI or Form W-8BEN or other applicable form, certificate or document
prescribed by the IRS or the United States certifying as to such Foreign
Lender's entitlement to such exemption (a "Certificate of Exemption"). Any
foreign Person that seeks to become a Lender under this Agreement shall provide
a Certificate of Exemption to Borrower Representative and Agent prior to
becoming a Lender hereunder. No foreign Person may become a Lender hereunder if
such Person fails to deliver a Certificate of Exemption in advance of becoming a
Lender.
1.16 Capital Adequacy; Increased Costs; Illegality.
(a) If any Lender shall have determined that any law,
treaty, governmental (or quasi-governmental) rule, regulation, guideline or
order regarding capital adequacy, reserve requirements or similar requirements
or compliance by any Lender with any request or directive regarding capital
adequacy, reserve requirements or similar requirements (whether or not having
the force of law), in each case, adopted after the Closing Date, from any
central bank or other Governmental Authority increases or would have the effect
of increasing the amount of capital, reserves or other funds required to be
maintained by such Lender and thereby reducing the rate of return on such
Lender's capital as a consequence of its obligations hereunder, then Borrowers
shall from time to time upon demand by such Lender (with a copy of such demand
to Agent) pay to Agent, for the account of such Lender, additional amounts
sufficient to compensate such Lender for such reduction. A certificate as to the
amount of that reduction and showing the basis of the computation thereof
submitted by such Lender to Borrower Representative and to Agent shall, absent
manifest error, be final, conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any
change in any law or regulation (or any change in the interpretation thereof) or
(ii) the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), in each case
adopted after the Closing Date, there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining any Loan, then
Borrowers shall from time to time, upon demand by such Lender (with a copy of
such demand to Agent),
19
pay to Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as to the amount
of such increased cost, submitted to Borrower Representative and to Agent by
such Lender, shall be conclusive and binding on Borrowers for all purposes,
absent manifest error. Each Lender agrees that, as promptly as practicable after
it becomes aware of any circumstances referred to above which would result in
any such increased cost, the affected Lender shall, to the extent not
inconsistent with such Lender's internal policies of general application, use
reasonable commercial efforts to minimize costs and expenses incurred by it and
payable to it by Borrowers pursuant to this Section 1.16(b).
(c) Notwithstanding anything to the contrary contained
herein, if the introduction of or any change in any law or regulation (or any
change in the interpretation thereof) shall make it unlawful, or any central
bank or other Governmental Authority shall assert that it is unlawful, for any
Lender to agree to make or to make or to continue to fund or maintain any LIBOR
Loan, then, unless that Lender is able to make or to continue to fund or to
maintain such LIBOR Loan at another branch or office of that Lender without, in
that Lender's opinion, adversely affecting it or its Loans or the income
obtained therefrom, on notice thereof and demand therefor by such Lender to
Borrower Representative through Agent, (i) the obligation of such Lender to
agree to make or to make or to continue to fund or maintain LIBOR Loans shall
terminate and (ii) each Borrower shall forthwith prepay in full all outstanding
LIBOR Loans owing by such Borrower to such Lender, together with interest
accrued thereon, unless Borrower Representative on behalf of such Borrower,
within five (5) Business Days after the delivery of such notice and demand,
converts all LIBOR Loans into Index Rate Loans.
(d) Within fifteen (15) days after receipt by Borrower
Representative of written notice and demand from any Lender (an "Affected
Lender") for payment of additional amounts or increased costs as provided in
Sections 1.15(a), 1.16(a) or 1.16(b), Borrower Representative may, at its
option, notify Agent and such Affected Lender of its intention to replace the
Affected Lender. So long as no Default or Event of Default has occurred and is
continuing, Borrower Representative, with the consent of Agent, may obtain, at
Borrowers' expense, a replacement Lender ("Replacement Lender") for the Affected
Lender, which Replacement Lender must be reasonably satisfactory to Agent. If
Borrowers obtain a Replacement Lender within ninety (90) days following notice
of their intention to do so, the Affected Lender must sell and assign its Loans
and Revolving Loan Commitments to such Replacement Lender for an amount equal to
the principal balance of all Loans held by the Affected Lender and all accrued
interest and Fees with respect thereto through the date of such sale; provided,
that Borrowers shall have reimbursed such Affected Lender for the additional
amounts or increased costs that it is entitled to receive under this Agreement
through the date of such sale and assignment. Notwithstanding the foregoing,
Borrowers shall not have the right to obtain a Replacement Lender if the
Affected Lender rescinds its demand for increased costs or additional amounts
within fifteen (15) days following its receipt of Borrowers' notice of intention
to replace such Affected Lender. Furthermore, if Borrowers give a notice of
intention to replace and do not so replace such Affected Lender within ninety
(90) days thereafter, Borrowers' rights under this Section 1.16(d) shall
terminate and Borrowers shall promptly pay all increased costs or
20
additional amounts demanded by such Affected Lender pursuant to Sections
1.15(a), 1.16(a) and 1.16(b).
1.17 Single Loan. All Loans to each Borrower and all of
the other Obligations of each Borrower arising under this Agreement and the
other Loan Documents shall constitute one general obligation of that Borrower
secured, until the Termination Date, by all of the Collateral.
1.18 Effect of Amendment and Restatement. This Agreement
amends and restates in its entirety the Prior Credit Agreement and, upon
effectiveness of this Agreement, the terms and provisions of the Prior Credit
Agreement shall, subject to this Section 1.18, be superseded hereby. All
references to "Credit Agreement" contained in the Loan Documents delivered in
connection with the Prior Credit Agreement shall be deemed to refer to this
Agreement. Notwithstanding the amendment and restatement of the Prior Agreement
by this Agreement, the Obligations outstanding under the Prior Agreement as of
the Restatement Date shall remain outstanding and constitute continuing
Obligations hereunder. Such outstanding Obligations and the Liens securing
payment thereof shall in all respects be continuing, and this Agreement shall
not be deemed to evidence or result in a novation or repayment and re-borrowing
of such Obligations. In furtherance of and without limiting the foregoing, from
and after the date hereof and except as expressly specified herein, the terms,
conditions, and covenants governing the Obligations outstanding under the Prior
Credit Agreement shall be solely as set forth in this Agreement, which shall
supersede the Prior Credit Agreement in its entirety.
2. CONDITIONS PRECEDENT
2.1 Conditions to the Initial Loans. No Lender shall be
obligated to make any Loan or incur any Letter of Credit Obligations on the
Restatement Date, or to take, fulfill, or perform any other action hereunder,
until the following conditions have been satisfied or provided for in a manner
satisfactory to Agent, or waived in writing by Agent and Lenders:
(a) Credit Agreement; Loan Documents. This Agreement or
counterparts hereof shall have been duly executed by, and delivered to,
Borrowers, each other Credit Party, Agent and Lenders; and Agent shall have
received such documents, instruments, agreements and legal opinions as Agent
shall reasonably request in connection with the transactions contemplated by
this Agreement and the other Loan Documents, including all those listed in the
Closing Checklist attached hereto as Annex D, each in form and substance
reasonably satisfactory to Agent.
(b) Approvals. Agent shall have received (i) satisfactory
evidence that the Credit Parties have obtained all required consents and
approvals of all Persons including all requisite Governmental Authorities, to
the execution, delivery and performance of this Agreement and the other Loan
Documents or (ii) an officer's certificate in form and substance reasonably
satisfactory to Agent affirming that no such consents or approvals are required.
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(c) Payment of Fees. Borrowers shall have paid the Fees
required to be paid on the Restatement Date in the respective amounts specified
in Section 1.9 (including the Fees specified in the GE Capital Fee Letter), and
shall have reimbursed Agent for all fees, costs and expenses of closing
presented as of the Restatement Date.
(d) Capital Structure: Other Indebtedness. The capital
structure of each Credit Party and the terms and conditions of all Indebtedness
of each Credit Party shall be acceptable to Agent in its sole discretion.
(e) Due Diligence. Agent shall have completed its
business and legal due diligence, including a roll forward of its previous
Collateral audit, with results reasonably satisfactory to Agent.
2.2 Further Conditions to Each Loan. Except as otherwise
expressly provided herein, no Lender shall be obligated to fund any Advance,
convert or continue any Loan as a LIBOR Loan or incur any Letter of Credit
Obligation, if, as of the date thereof:
(a) any representation or warranty by any Credit Party
contained herein or in any other Loan Document is untrue or incorrect as of such
date, except to the extent that such representation or warranty expressly
relates to an earlier date and except for changes therein expressly permitted or
expressly contemplated by this Agreement and Agent or Requisite Lenders have
determined not to make such Advance, convert or continue any Loan as LIBOR Loan
or incur such Letter of Credit Obligation as a result of the fact that such
warranty or representation is untrue or incorrect;
(b) any Default or Event of Default has occurred and is
continuing or would result after giving effect to any Advance (or the incurrence
of any Letter of Credit Obligation), and Agent or Requisite Lenders shall have
determined not to make any Advance, convert or continue any Loan as a LIBOR Loan
or incur any Letter of Credit Obligation as a result of that Default or Event of
Default; or
(c) after giving effect to any Advance (or the incurrence
of any Letter of Credit Obligations), (i) the outstanding principal amount of
the aggregate Revolving Loan would exceed the lesser of the Aggregate Borrowing
Base and the Maximum Amount, in each case, less the then outstanding principal
amount of the Swing Line Loan, or (ii) the outstanding principal amount of the
Revolving Loan of the applicable Borrower would exceed such Borrower's separate
Borrowing Base less the outstanding principal amount of the Swing Line Loan to
that Borrower.
The request and acceptance by any Borrower of the proceeds of any Advance, the
incurrence of any Letter of Credit Obligations or the conversion or continuation
of any Loan into, or as, a LIBOR Loan shall be deemed to constitute, as of the
date thereof, (i) a representation and warranty by Borrowers that the conditions
in this Section 2.2 have been satisfied and (ii) a reaffirmation by Borrowers of
the cross-guaranty provisions set forth in Section 12 and of the
22
granting and continuance of Agent's Liens, on behalf of itself and Lenders,
pursuant to the Collateral Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and to incur Letter of
Credit Obligations, the Credit Parties executing this Agreement, jointly and
severally, make the following representations and warranties to Agent and each
Lender with respect to all Credit Parties, each and all of which shall survive
the execution and delivery of this Agreement.
3.1 Corporate Existence; Compliance with Law. Each
Borrower and BAS (a) is a corporation, limited liability company or limited
partnership duly organized, validly existing and in good standing under the laws
of its respective jurisdiction of incorporation or organization set forth in
Disclosure Schedule (3.1); (b) is duly qualified to conduct business and is in
good standing in each other jurisdiction where its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not result in exposure to losses,
damages or liabilities in excess of $50,000; (c) has the requisite power and
authority and the legal right to own, pledge, mortgage or otherwise encumber and
operate its properties, to lease the property it operates under lease and to
conduct its business as now, heretofore and proposed to be conducted; (d)
subject to specific representations regarding Environmental Laws, has all
material licenses, permits, consents or approvals from or by, and has made all
material filings with, and has given all material notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct; (e) is in compliance with its charter and bylaws or
partnership or operating agreement, as applicable; and (f) subject to specific
representations set forth herein regarding ERISA, Environmental Laws, tax and
other laws, is in compliance with all applicable provisions of law, except where
the failure to comply, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
3.2 Executive Offices, Collateral Locations, FEIN. As of
the Restatement Date, each Credit Party's name as it appears in official filings
in its state of incorporation or organization, its state of incorporation or
organization, organization type, organization number, if any, issued by its
state of incorporation or organization, and the current location of each Credit
Party's chief executive office and the warehouses and premises at which any
Collateral is located are set forth in Disclosure Schedule (3.2), none of such
locations has changed within the twelve (12) months preceding the Restatement
Date and each Credit Party has only one state of incorporation or organization.
In addition, Disclosure Schedule (3.2) lists the federal employer identification
number of each Credit Party.
3.3 Corporate Power, Authorization, Enforceable
Obligations. The execution, delivery and performance by each Credit Party of the
Loan Documents to which it is a party and the creation of all Liens provided for
therein: (a) are within such Person's power; (b) have been duly authorized by
all necessary corporate, limited liability company or limited partnership
action; (c) do not contravene any provision of such Person's charter, bylaws or
23
partnership or operating agreement as applicable; (d) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which such Person or any of its
property is bound; (f) do not result in the creation or imposition of any Lien
upon any of the property of such Person other than those in favor of Agent, on
behalf of itself and Lenders, pursuant to the Loan Documents; and (g) do not
require the consent or approval of any Governmental Authority or any other
Person, except those referred to in Section 2.1(b), all of which will have been
duly obtained, made or complied with prior to the Restatement Date. Each of the
Loan Documents shall be duly executed and delivered by each Credit Party that is
a party thereto and each such Loan Document shall constitute a legal, valid and
binding obligation of such Credit Party enforceable against it in accordance
with its terms.
3.4 Financial Statements and Projections. Except for the
Projections, all Financial Statements concerning Borrowers and their respective
Subsidiaries that are referred to below have been prepared in accordance with
GAAP consistently applied throughout the periods covered (except as disclosed
therein and except, with respect to unaudited Financial Statements, for the
absence of footnotes and normal year-end audit adjustments) and present fairly
in all material respects the financial position of the Persons covered thereby
as at the dates thereof and the results of their operations and cash flows for
the periods then ended.
(a) Financial Statements. The following Financial
Statements attached hereto as Disclosure Schedule (3.4(a)) have been delivered
on or prior to the date hereof:
(i) The audited consolidated and consolidating
balance sheets at December 31, 2001 and December 31, 2002 and the related
statements of income and cash flows of BPI and its Subsidiaries for the Fiscal
Years then ended, certified by Ernst & Young LLP.
(ii) The unaudited balance sheet(s) at December
31, 2003 and the related statement(s) of income and cash flows of Borrowers for
the Fiscal Year then ended.
(b) Intentionally Omitted.
(c) Projections. The Projections delivered on the date
hereof and attached hereto as Disclosure Schedule (3.4(c)) have been prepared by
Borrowers in light of the past operations of their businesses, and reflect
projections for the one year period beginning on January 1, 2004 on a
month-by-month basis. The Projections are based upon the same accounting
principles as used in the preparation of the financial statements described
above and the estimates and assumptions stated therein, all of which Borrowers
believe to be reasonable and fair in light of current conditions and current
facts known to Borrowers and, as of the Restatement Date, reflect Borrowers'
good faith and reasonable estimates of the future financial performance of
Borrowers and of the other information projected therein for the period set
forth therein.
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3.5 Material Adverse Effect. Between December 31, 2002
and the Restatement Date: (a) no Loan Party has incurred any obligations,
contingent or noncontingent liabilities, liabilities for Charges, long-term
leases or unusual forward or long-term commitments that, alone or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, (b)
no contract, lease or other agreement or instrument has been entered into by any
Loan Party or has become binding upon any Loan Party's assets and no law or
regulation applicable to any Loan Party has been adopted that has had or could
reasonably be expected to have a Material Adverse Effect, and (c) no Loan Party
is in default and to the best of Borrowers' knowledge no third party is in
default under any material contract, lease or other agreement or instrument,
that alone or in the aggregate could reasonably be expected to have a Material
Adverse Effect. Between December 31, 2002 and the Restatement Date no event has
occurred, that alone or together with other events, could reasonably be expected
to have a Material Adverse Effect.
3.6 Ownership of Property; Liens. As of the Restatement
Date, the real estate ("Real Estate") listed in Disclosure Schedule (3.6)
constitutes all of the real property owned, leased, subleased, or used by any
Loan Party. Each Borrower owns good and marketable fee simple title to all of
its owned Real Estate, and valid and marketable leasehold interests in all of
its leased Real Estate, all as described on Disclosure Schedule (3.6), and
copies of all such leases or a summary of terms thereof reasonably satisfactory
to Agent have been delivered to Agent. Disclosure Schedule (3.6) further
describes any Real Estate with respect to which any Loan Party is a lessor,
sublessor or assignor as of the Restatement Date. Each Borrower also has good
and marketable title to, or valid leasehold interests in, all of its personal
property and assets. As of the Restatement Date, none of the properties and
assets of any Borrower are subject to any Liens other than Permitted
Encumbrances, and there are no facts, circumstances or conditions known to any
Credit Party that may result in any Liens (including Liens arising under
Environmental Laws) other than Permitted Encumbrances. Each Borrower has
received all deeds, assignments, waivers, consents, nondisturbance and
attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect such Borrower's right, title and interest in and to all such
Real Estate and other properties and assets. Disclosure Schedule (3.6) also
describes any purchase options, rights of first refusal or other similar
contractual rights pertaining to any Real Estate. As of the Restatement Date, no
portion of any Borrower's Real Estate has suffered any material damage by fire
or other casualty loss that has not heretofore been repaired and restored in all
material respects to its original condition or otherwise remedied. As of the
Restatement Date, all material permits required to have been issued or
appropriate to enable the Real Estate to be lawfully occupied and used for all
of the purposes for which it is currently occupied and used have been lawfully
issued and are in full force and effect.
3.7 Labor Matters. As of the Restatement Date (a) no
strikes or other material labor disputes against any Loan Party are pending or,
to any Loan Party's knowledge, threatened; (b) hours worked by and payment made
to employees of each Loan Party comply with the Fair Labor Standards Act and
each other federal, state, local or foreign law applicable to such matters; (c)
all payments due from any Loan Party for employee health and welfare insurance
have been paid or accrued as a liability on the books of such Loan Party; (d)
except as set forth in Disclosure Schedule (3.7), no Loan Party is a party to or
bound by any collective bargaining
25
agreement, management agreement, consulting agreement, employment agreement,
bonus, restricted stock, stock option, or stock appreciation plan or agreement
or any similar plan, agreement or arrangement (and true and complete copies of
any agreements described on Disclosure Schedule (3.7) have been delivered to
Agent); (e) there is no organizing activity involving any Borrower pending or,
to any Loan Party's knowledge, threatened by any labor union or group of
employees; (f) there are no representation proceedings pending or, to any Loan
Party's knowledge, threatened with the National Labor Relations Board, and no
labor organization or group of employees of any Loan Party has made a pending
demand for recognition; and (g) except as set forth in Disclosure Schedule
(3.7), there are no material complaints or charges against any Loan Party
pending or, to the knowledge of any Loan Party, threatened to be filed with any
Governmental Authority or arbitrator based on, arising out of, in connection
with, or otherwise relating to the employment or termination of employment by
any Loan Party of any individual.
3.8 Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Indebtedness. Except as set forth in Disclosure Schedule (3.8), as of
the Restatement Date, no Loan Party has any Subsidiaries, is engaged in any
joint venture or partnership with any other Person, or is an Affiliate of any
other Person. All of the issued and outstanding Stock of each Loan Party is
owned by each of the Stockholders and in the amounts set forth in Disclosure
Schedule (3.8). Except as set forth in Disclosure Schedule (3.8), there are no
outstanding rights to purchase, options, warrants or similar rights or
agreements pursuant to which any Loan Party may be required to issue, sell,
repurchase or redeem any of its Stock or other equity securities or any Stock or
other equity securities of its Subsidiaries. All outstanding Indebtedness and
Guaranteed Indebtedness of each Loan Party as of the Restatement Date (except
for the Obligations) is described in Section 6.3 (including Disclosure Schedule
(6.3)). Neither Brightpoint Holdings nor Wireless Holdings has any assets
(except Stock of their Subsidiaries) or any Indebtedness or Guaranteed
Indebtedness (except the Obligations).
3.9 Government Regulation. No Loan Party is an
"investment company" or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940. No Loan Party is subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, or any other
federal or state statute that restricts or limits its ability to incur
Indebtedness or to perform its obligations hereunder. The making of the Loans by
Lenders to Borrowers, the incurrence of the Letter of Credit Obligations on
behalf of Borrowers and the application of the proceeds thereof and repayment
thereof will not violate any provision of any such statute or any rule,
regulation or order issued by the Securities and Exchange Commission.
3.10 Margin Regulations. No Loan Party is engaged, nor
will it engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or "carrying" any
"margin stock" as such terms are defined in Regulation U of the Federal Reserve
Board as now and from time to time hereafter in effect (such securities being
referred to herein as "Margin Stock"). No Loan Party owns any Margin Stock, and
none of the proceeds of the Loans or other extensions of credit under this
Agreement will be used, directly or indirectly, for the purpose of purchasing or
carrying any Margin Stock, for the purpose of
26
reducing or retiring any Indebtedness that was originally incurred to purchase
or carry any Margin Stock or for any other purpose that might cause any of the
Loans or other extensions of credit under this Agreement to be considered a
"purpose credit" within the meaning of Regulations T, U or X of the Federal
Reserve Board. No Loan Party will take or permit to be taken any action that
might cause any Loan Document to violate any regulation of the Federal Reserve
Board.
3.11 Taxes. All tax returns, reports and statements,
including information returns, required by any Governmental Authority to be
filed by any Loan Party have been filed with the appropriate Governmental
Authority and all Charges have been paid prior to the date on which any fine,
penalty, interest or late charge may be added thereto for nonpayment thereof (or
any such fine, penalty, interest, late charge or loss has been paid), excluding
Charges or other amounts being contested in accordance with Section 5.2(b).
Proper and accurate amounts have been withheld by each Loan Party from its
respective employees for all periods in full and complete compliance with all
applicable federal, state, local and foreign laws and such withholdings have
been timely paid to the respective Governmental Authorities. Disclosure Schedule
(3.11) sets forth as of the Restatement Date those taxable years for which any
Loan Party's tax returns are currently being audited by the IRS or any other
applicable Governmental Authority, and any assessments or threatened assessments
in connection with such audit, or otherwise currently outstanding. Except as
described in Disclosure Schedule (3.11), no Loan Party has executed or filed
with the IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any Charges. None of the Loan Parties and their respective
predecessors are liable for any Charges: (a) under any agreement (including any
tax sharing agreements) or (b) to each Loan Party's knowledge, as a transferee.
As of the Restatement Date, no Loan Party has agreed or been requested to make
any adjustment under IRC Section 481(a), by reason of a change in accounting
method or otherwise, which would have a Material Adverse Effect.
3.12 ERISA.
(a) Disclosure Schedule (3.12) lists (i) all ERISA
Affiliates and (ii) all Plans and separately identifies all Pension Plans,
including Title IV Plans, Multiemployer Plans, and all Retiree Welfare Plans.
Copies of all such listed Plans, together with a copy of the latest IRS/DOL
5500-series form for each such Plan, as applicable, have been delivered to
Agent. Except with respect to Multiemployer Plans, each Qualified Plan has been
determined by the IRS to qualify under Section 401 of the IRC, the trusts
created thereunder have been determined to be exempt from tax under the
provisions of Section 501 of the IRC, and nothing has occurred that would cause
the loss of such qualification or tax-exempt status. Each Plan is in compliance
in all material respects with the applicable provisions of ERISA, the IRC and
its terms, including the timely filing of all reports required under the IRC or
ERISA. Neither any Loan Party nor ERISA Affiliate has failed to make any
contribution or pay any amount due as required by either Section 412 of the IRC
or Section 302 of ERISA or the terms of any such Plan. Except as set forth in
Disclosure Schedule (3.12), no "prohibited transaction," as defined in Section
406 of ERISA and Section 4975 of the IRC, has occurred with respect to any Plan,
that would subject any Loan
27
Party to a material tax on prohibited transactions imposed by Section 502(i) of
ERISA or Section 4975 of the IRC.
(b) Except as set forth in Disclosure Schedule (3.12):
(i) no Title IV Plan has any Unfunded Pension Liability; (ii) no ERISA Event has
occurred or is reasonably expected to occur; (iii) there are no pending, or to
the knowledge of any Loan Party, threatened claims (other than claims for
benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary or sponsor of any Plan;
(iv) no Loan Party or ERISA Affiliate has incurred or reasonably expects to
incur any liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; and (v) within the last five years no Title IV Plan of any
Loan Party or ERISA Affiliate has been terminated, whether or not in a "standard
termination" as that term is used in Section 4041(b)(1) of ERISA, nor has any
Title IV Plan of any Loan Party or any ERISA Affiliate (determined at any time
within the last five years) with Unfunded Pension Liabilities been transferred
outside of the "controlled group" (within the meaning of Section 4001(a)(14) of
ERISA) of any Loan Party or ERISA Affiliate (determined at such time).
3.13 No Litigation. No action, claim, lawsuit, demand,
investigation or proceeding is now pending or, to the knowledge of any Loan
Party, threatened against any Loan Party, before any Governmental Authority or
before any arbitrator or panel of arbitrators (collectively, "Litigation"), (a)
that challenges any Loan Party's right or power to enter into or perform any of
its obligations under the Loan Documents to which it is a party, or the validity
or enforceability of any Loan Document or any action taken thereunder, or (b)
that has a reasonable risk of being determined adversely to any Loan Party and
that, if so determined, could be reasonably be expected to have a Material
Adverse Effect. Except as set forth on Disclosure Schedule (3.13), as of the
Restatement Date there is no Litigation pending or, to any Loan Party's
knowledge, threatened, that seeks damages in excess of $250,000 or injunctive
relief against, or alleges criminal misconduct of, any Loan Party.
3.14 Brokers. No broker or finder brought about the
obtaining, making or closing of the Loans, and no Loan Party or Affiliate
thereof has any obligation to any Person in respect of any finder's or brokerage
fees in connection therewith.
3.15 Intellectual Property. As of the Restatement Date,
each Loan Party owns or has rights to use all Intellectual Property necessary to
continue to conduct its business as now or heretofore conducted by it or
proposed to be conducted by it, and each Patent, Trademark, Copyright and
License is listed, together with application or registration numbers, as
applicable, in Disclosure Schedule (3.15). Each Loan Party conducts its business
and affairs without infringement of or interference with any Intellectual
Property of any other Person in any material respect. Except as set forth in
Disclosure Schedule (3.15), no Loan Party is aware of any infringement claim by
any other Person with respect to any Intellectual Property.
3.16 Full Disclosure. No information contained in this
Agreement, any of the other Loan Documents, any Projections, Financial
Statements or Collateral Reports or other written reports from time to time
delivered hereunder or any written statement furnished by or on
28
behalf of any Credit Party to Agent or any Lender pursuant to the terms of this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading in light of the circumstances under
which they were made. The Liens granted to Agent, on behalf of itself and
Lenders, pursuant to the Collateral Documents will at all times be fully
perfected first priority Liens in and to the Collateral described therein,
subject, as to priority, only to Permitted Encumbrances.
3.17 Environmental Matters.
(a) Except as set forth in Disclosure Schedule (3.17), as
of the Restatement Date: (i) to the knowledge of any Credit Party, the Real
Estate is free of contamination from any Hazardous Material except for such
contamination that would not adversely impact the value or marketability of such
Real Estate and that would not result in Environmental Liabilities that could
reasonably be expected to exceed $100,000; (ii) no Loan Party has caused or
suffered to occur any Release of Hazardous Materials on, at, in, under, above,
to, from or about any of its Real Estate; (iii) the Loan Parties are and have
been in compliance with all Environmental Laws, except for such noncompliance
that would not result in Environmental Liabilities which could reasonably be
expected to exceed $100,000; (iv) the Loan Parties have obtained, and are in
compliance with, all Environmental Permits required by Environmental Laws for
the operations of their respective businesses as presently conducted or as
proposed to be conducted, except where the failure to so obtain or comply with
such Environmental Permits would not result in Environmental Liabilities that
could reasonably be expected to exceed $100,000, and all such Environmental
Permits are valid, uncontested and in good standing; (v) no Loan Party is
involved in operations or knows of any facts, circumstances or conditions,
including any Releases of Hazardous Materials, that are likely to result in any
Environmental Liabilities of such Loan Party which could reasonably be expected
to exceed $100,000, and no Loan Party has permitted any current or former tenant
or occupant of the Real Estate to engage in any such operations; (vi) there is
no Litigation arising under or related to any Environmental Laws, Environmental
Permits or Hazardous Material that seeks damages, penalties, fines, costs or
expenses in excess of $25,000 or injunctive relief against, or that alleges
criminal misconduct by, any Loan Party; (vii) no notice has been received by any
Loan Party identifying it as a "potentially responsible party" or requesting
information under CERCLA or analogous state statutes, and to the knowledge of
the Loan Parties, there are no facts, circumstances or conditions that may
result in any Loan Party being identified as a "potentially responsible party"
under CERCLA or analogous state statutes; and (viii) the Loan Parties have
provided to Agent copies of all existing environmental reports, reviews and
audits and all written information pertaining to actual or potential
Environmental Liabilities, in each case relating to any Loan Party.
(b) Each Loan Party hereby acknowledges and agrees that
Agent (i) is not now, and has not ever been, in control of any of the Real
Estate or any Loan Party's affairs, and (ii) does not have the capacity through
the provisions of the Loan Documents or otherwise to influence any Loan Party's
conduct with respect to the ownership, operation or management of any of its
Real Estate or compliance with Environmental Laws or Environmental Permits.
29
3.18 Insurance. Disclosure Schedule (3.18) lists all
insurance policies of any nature maintained, as of the Restatement Date, for
current occurrences by each Loan Party, as well as a summary of the terms of
each such policy.
3.19 Deposit and Disbursement Accounts. Disclosure
Schedule (3.19) lists all banks and other financial institutions at which any
Loan Party maintains deposit or other accounts as of the Restatement Date,
including any Disbursement Accounts, and such Schedule correctly identifies the
name, address and telephone number of each depository, the name in which the
account is held, a description of the purpose of the account, and the complete
account number therefor.
3.20 Government Contracts. Except as set forth in
Disclosure Schedule (3.20), as of the Restatement Date, no Loan Party is a party
to any contract or agreement with any Governmental Authority and no Loan Party's
Accounts are subject to the Federal Assignment of Claims Act (31 U.S.C. Section
3727) or any similar state or local law.
3.21 Customer and Trade Relations. As of the Restatement
Date, there exists no actual or, to the knowledge of any Loan Party, threatened
termination or cancellation of, or any material adverse modification or change
in: the business relationship of any Loan Party with any customer or group of
customers whose purchases during the preceding twelve (12) months caused them to
be ranked among the ten largest customers of such Loan Party; or the business
relationship of any Loan Party with any supplier material to its operations.
3.22 Agreements and Other Documents. As of the Restatement
Date, each Loan Party has provided to Agent or its counsel, on behalf of
Lenders, accurate and complete copies (or summaries) of all of the following
agreements or documents to which it is subject and each of which is listed in
Disclosure Schedule (3.22): supply agreements and purchase agreements not
terminable by such Loan Party within sixty (60) days following written notice
issued by such Loan Party and involving transactions in excess of $5,000,000 per
annum (excepting only contracts pursuant to which handsets and/or accessories
are purchased in the ordinary course of business by customers from any Credit
Party or its Affiliates); leases of Equipment having a remaining term of one
year or longer and requiring aggregate rental and other payments in excess of
$500,000 per annum; licenses and permits held by such Loan Party, the absence of
which could be reasonably likely to have a Material Adverse Effect; instruments
and documents evidencing any Indebtedness or Guaranteed Indebtedness of such
Loan Party and any Lien granted by such Loan Party with respect thereto; and
instruments and agreements evidencing the issuance of any equity securities,
warrants, rights or options to purchase equity securities of such Loan Party.
3.23 Solvency. Both before and after giving effect to (a)
the Loans and Letter of Credit Obligations to be made or incurred on the
Restatement Date or such other date as Loans and Letter of Credit Obligations
requested hereunder are made or incurred, (b) the disbursement of the proceeds
of such Loans pursuant to the instructions of Borrower Representative; and (c)
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the payment and accrual of all transaction costs in connection with the
foregoing, each Loan Party is and will be Solvent.
3.24 Status of Holding Companies. Prior to the Restatement
Date, none of the Holding Companies (other than BPI) will have engaged in any
business or incurred any Indebtedness or any other liabilities (except in
connection with their corporate formation).
3.25 Certain Agreements. Borrower Representative has
delivered to Agent true and complete copies, certified as such by an appropriate
officer of Borrower Representative of each of the Major Agreements.
4. FINANCIAL STATEMENTS AND INFORMATION
4.1 Reports and Notices.
(a) Each Borrower hereby agrees that from and after the
Restatement Date and until the Termination Date, it shall deliver to Agent or to
Agent and Lenders, as required, the Financial Statements, notices, Projections
and other information at the times, to the Persons and in the manner set forth
in Annex E.
(b) Each Borrower hereby agrees that, from and after the
Restatement Date and until the Termination Date, it shall deliver to Agent or to
Agent and Lenders, as required, the various Collateral Reports (including
Borrowing Base Certificates in the form of Exhibit 4.1(b)) at the times, to the
Persons and in the manner set forth in Annex F.
4.2 Communication with Accountants. Each Loan Party
executing this Agreement authorizes Agent, so long as a Default or an Event of
Default has occurred and is continuing, to communicate directly with its
independent certified public accountants, including Ernst & Young LLP, and
authorizes and, at Agent's request, shall instruct those accountants and
advisors to disclose and make available to Agent any and all Financial
Statements and other supporting financial documents, schedules and information
relating to any Loan Party (including copies of any issued management letters)
with respect to the business, financial condition and other affairs of any Loan
Party.
5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Credit Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
and until the Termination Date:
5.1 Maintenance of Existence and Conduct of Business.
Each Loan Party shall: do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and its rights and
franchises; continue to conduct its business substantially as now conducted or
as otherwise permitted hereunder; at all times maintain, preserve and protect
all of its assets and properties used or useful in the conduct of its business,
and keep the same in
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good repair, working order and condition in all material respects (taking into
consideration ordinary wear and tear) and from time to time make, or cause to be
made, all necessary or appropriate repairs, replacements and improvements
thereto consistent with industry practices; and transact business only in such
corporate and trade names as are set forth in Disclosure Schedule (5.1).
5.2 Payment of Charges.
(a) Subject to Section 5.2(b), each Loan Party shall pay
and discharge or cause to be paid and discharged promptly all Charges payable by
it, including (i) Charges imposed upon it, its income and profits, or any of its
property (real, personal or mixed) and all Charges with respect to tax, social
security and unemployment withholding with respect to its employees, (ii) lawful
claims for labor, materials, supplies and services or otherwise, and (iii) all
storage or rental charges payable to warehousemen or bailees, in each case,
before any thereof shall become past due.
(b) Each Loan Party may in good faith contest, by
appropriate proceedings, the validity or amount of any Charges, Taxes or claims
described in Section 5.2(a); provided, that (i) adequate reserves with respect
to such contest are maintained on the books of such Loan Party, in accordance
with GAAP; (ii) no Lien shall be imposed to secure payment of such Charges
(other than payments to warehousemen and/or bailees) that is superior to any of
the Liens securing the Obligations and such contest is maintained and prosecuted
continuously and with diligence and operates to suspend collection or
enforcement of such Charges; (iii) none of the Collateral becomes subject to
forfeiture or loss as a result of such contest; (iv) such Loan Party shall
promptly pay or discharge such contested Charges, Taxes or claims and all
additional charges, interest, penalties and expenses, if any, and shall deliver
to Agent evidence reasonably acceptable to Agent of such compliance, payment or
discharge, if such contest is terminated or discontinued adversely to such
Credit Party or the conditions set forth in this Section 5.2(b) are no longer
met; and (v) Agent has not advised Borrowers in writing that Agent reasonably
believes that nonpayment or nondischarge thereof could have or result in a
Material Adverse Effect.
5.3 Books and Records. Each Loan Party shall keep
adequate books and records with respect to its business activities in which
proper entries, reflecting all financial transactions, are made in accordance
with GAAP and on a basis consistent with the Financial Statements attached as
Disclosure Schedule (3.4(a)).
5.4 Insurance; Damage to or Destruction of Collateral.
(a) The Loan Parties shall, at their sole cost and
expense, maintain the policies of insurance described on Disclosure Schedule
(3.18) as in effect on the date hereof or otherwise in form and amounts and with
insurers reasonably acceptable to Agent. Such policies of insurance (or the loss
payable and additional insured endorsements delivered to Agent) shall contain
provisions pursuant to which the insurer agrees to provide thirty (30) days
prior written notice to Agent in the event of any non-renewal, cancellation or
amendment of any such
32
insurance policy. If any Loan Party at any time or times hereafter shall fail to
obtain or maintain any of the policies of insurance required above, or to pay
all premiums relating thereto, Agent may at any time or times thereafter obtain
and maintain such policies of insurance and pay such premiums and take any other
action with respect thereto that Agent deems advisable. Agent shall have no
obligation to obtain insurance for any Loan Party or pay any premiums therefor.
By doing so, Agent shall not be deemed to have waived any Default or Event of
Default arising from any Loan Party's failure to maintain such insurance or pay
any premiums therefor. All sums so disbursed, including reasonable attorneys'
fees, court costs and other charges related thereto, shall be payable on demand
by Borrowers to Agent and shall be additional Obligations hereunder secured by
the Collateral.
(b) Agent reserves the right at any time upon any change
in any Loan Party's risk profile (including any change in the product mix
maintained by any Loan Party or any laws affecting the potential liability of
such Loan Party) to require additional forms and limits of insurance to, in
Agent's opinion, adequately protect both Agent's and Lenders' interests in all
or any portion of the Collateral and to ensure that each Loan Party is protected
by insurance in amounts and with coverage customary for its industry. If
reasonably requested by Agent, each Loan Party shall deliver to Agent from time
to time a report of a reputable insurance broker, reasonably satisfactory to
Agent, with respect to its insurance policies.
(c) Each Borrower shall deliver to Agent, in form and
substance reasonably satisfactory to Agent, endorsements to (i) all "All Risk"
and business interruption insurance naming Agent, on behalf of itself and
Lenders, as loss payee, and (ii) all general liability and other liability
policies naming Agent, on behalf of itself and Lenders, as additional insured.
Each Borrower irrevocably makes, constitutes and appoints Agent (and all
officers, employees or agents designated by Agent), so long as any Default or
Event of Default has occurred and is continuing or the anticipated insurance
proceeds exceed $250,000, as such Borrower's true and lawful agent and
attorney-in-fact for the purpose of making, settling and adjusting claims under
such "All Risk" policies of insurance, endorsing the name of such Borrower on
any check or other item of payment for the proceeds of such "All Risk" policies
of insurance and for making all determinations and decisions with respect to
such "All Risk" policies of insurance. Agent shall have no duty to exercise any
rights or powers granted to it pursuant to the foregoing power-of-attorney.
Borrower Representative shall promptly notify Agent of any loss, damage, or
destruction to the Collateral in the amount of $250,000 or more, whether or not
covered by insurance. After deducting from such proceeds the expenses, if any,
incurred by Agent in the collection or handling thereof, Agent may, at its
option, apply such proceeds to the reduction of the Obligations in accordance
with Section 1.3(c); or permit or require the applicable Borrower to use such
money, or any part thereof, to replace, repair, restore or rebuild the
Collateral in a diligent and expeditious manner with materials and workmanship
of substantially the same quality as existed before the loss, damage or
destruction. Notwithstanding the foregoing, if the casualty giving rise to such
insurance proceeds could not reasonably be expected to have a Material Adverse
Effect and such insurance proceeds do not exceed $250,000 in the aggregate,
Agent shall permit the applicable Borrower to replace, restore, repair or
rebuild the property; provided that if such Borrower shall not have completed or
entered into binding agreements to complete such replacement, restoration,
repair or rebuilding within 120 days of such casualty,
33
Agent may apply such insurance proceeds to the Obligations in accordance with
Section 1.3(c). All insurance proceeds that are to be made available to any
Borrower to replace, repair, restore or rebuild the Collateral shall be applied
by Agent to reduce the outstanding principal balance of the Revolving Loan of
such Borrower (which application shall not result in a permanent reduction of
the Revolving Loan Commitment) and upon such application, Agent shall establish
a Reserve against the separate Borrowing Base of the affected Borrower in an
amount equal to the amount of such proceeds so applied. Thereafter, such funds
shall be made available to that Borrower to provide funds to replace, repair,
restore or rebuild the Collateral as follows: (i) Borrower Representative shall
request a Revolving Credit Advance be made to such Borrower in the amount
requested to be released; (ii) so long as the conditions set forth in Section
2.2 have been met, Lenders shall make such Revolving Credit Advance and the
Reserve established with respect to such insurance proceeds shall be reduced by
the amount of such Revolving Credit Advance. To the extent not used to replace,
repair, restore or rebuild the Collateral, such insurance proceeds shall be
applied in accordance with Section 1.3(c).
5.5 Compliance with Laws. Each Loan Party shall comply
with all federal, state, local and foreign laws and regulations applicable to
it, including those relating to FCC, ERISA labor laws and Environmental Laws and
Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.6 Supplemental Disclosure. From time to time as may be
reasonably requested by Agent (which request will not be made more frequently
than once each year absent the occurrence and continuance of a Default or an
Event of Default), the Credit Parties shall supplement each Disclosure Schedule
hereto, or any representation herein or in any other Loan Document, with respect
to any matter hereafter arising that, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described in such
Disclosure Schedule or as an exception to such representation or that is
necessary to correct any information in such Disclosure Schedule or
representation which has been rendered inaccurate thereby (and, in the case of
any supplements to any Disclosure Schedule, such Disclosure Schedule shall be
appropriately marked to show the changes made therein); provided that (a) no
such supplement to any such Disclosure Schedule or representation shall amend,
supplement or otherwise modify any Disclosure Schedule or representation, or be
or be deemed a waiver of any Default or Event of Default resulting from the
matters disclosed therein, except as consented to by Agent and Requisite Lenders
in writing, and (b) no supplement shall be required or permitted as to
representations and warranties that relate solely to the Restatement Date.
5.7 Intellectual Property. Each Loan Party will conduct
its business and affairs without infringement of or interference with any
Intellectual Property of any other Person in any material respect and shall
comply in all material respects with the terms of its Licenses.
5.8 Environmental Matters. Each Loan Party shall and
shall cause each Person within its control to: (a) conduct its operations and
keep and maintain its Real Estate in compliance with all Environmental Laws and
Environmental Permits other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and
34
all investigation, remediation, removal and response actions that are
appropriate or necessary to maintain the value and marketability of the Real
Estate or to otherwise comply with Environmental Laws and Environmental Permits
pertaining to the presence, generation, treatment, storage, use, disposal,
transportation or Release of any Hazardous Material on, at, in, under, above,
to, from or about any of its Real Estate; (c) notify Agent promptly after such
Loan Party becomes aware of any violation of Environmental Laws or Environmental
Permits or any Release on, at, in, under, above, to, from or about any Real
Estate that is reasonably likely to result in Environmental Liabilities in
excess of $100,000; and (d) promptly forward to Agent a copy of any order,
notice, request for information or any communication or report received by such
Loan Party in connection with any such violation or Release or any other matter
relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in Environmental Liabilities in excess of
$100,000, in each case whether or not the Environmental Protection Agency or any
Governmental Authority has taken or threatened any action in connection with any
such violation, Release or other matter. If Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Laws or
Environmental Permits by any Credit Party or any Environmental Liability arising
thereunder, or a Release of Hazardous Materials on, at, in, under, above, to,
from or about any of its Real Estate, that, in each case, could reasonably be
expected to have a Material Adverse Effect, then each Credit Party shall, upon
Agent's written request (i) cause the performance of such environmental audits
including subsurface sampling of soil and groundwater, and preparation of such
environmental reports, at Borrowers' expense, as Agent may from time to time
reasonably request, which shall be conducted by reputable environmental
consulting firms reasonably acceptable to Agent and shall be in form and
substance reasonably acceptable to Agent, and (ii) permit Agent or its
representatives to have access to all Real Estate for the purpose of conducting
such environmental audits and testing as Agent deems appropriate, including
subsurface sampling of soil and groundwater. Borrowers shall reimburse Agent for
the costs of such audits and tests and the same will constitute a part of the
Obligations secured hereunder.
5.9 Landlords' Agreements, Mortgagee Agreements, Bailee
Letters and Real Estate Purchases. Each Loan Party shall obtain a landlord's
agreement, mortgagee agreement or bailee letter, as applicable, from the lessor
of each leased property, mortgagee of owned property or bailee with respect to
any warehouse, processor or converter facility or other location where
Collateral is stored or located, which agreement or letter shall contain a
waiver or subordination of all Liens or claims that the landlord, mortgagee or
bailee may assert against the Collateral at that location, and shall otherwise
be reasonably satisfactory in form and substance to Agent. With respect to such
locations or warehouse space leased or owned as of the Restatement Date and
thereafter, if Agent has not received a landlord or mortgagee agreement or
bailee letter as of the Restatement Date (or, if later, as of the date such
location is acquired or leased), any Borrower's Eligible Inventory at that
location shall, in Agent's discretion, be excluded from the Borrowing Base or be
subject to such Reserves as may be established by Agent in its reasonable credit
judgment. After the Restatement Date, no real property or warehouse space shall
be leased by any Loan Party and no Inventory shall be shipped to a processor or
converter under arrangements established after the Restatement Date without the
prior written consent of Agent (which consent, in Agent's discretion, may be
conditioned upon the exclusion from the Borrowing Base of Eligible Inventory at
that location or the establishment of Reserves acceptable
35
to Agent) or, unless and until a reasonably satisfactory landlord agreement or
bailee letter, as appropriate, shall first have been obtained with respect to
such location. Each Loan Party shall timely and fully pay and perform its
obligations under all leases and other agreements with respect to each leased
location or public warehouse where any Collateral is or may be located. To the
extent otherwise permitted hereunder, if any Loan Party proposes to acquire a
fee ownership interest in Real Estate after the Restatement Date, it shall first
provide to Agent a mortgage or deed of trust granting Agent a first priority
Lien on such Real Estate, together with environmental audits, mortgage title
insurance commitment, real property survey, local counsel opinion(s), and, if
required by Agent, supplemental casualty insurance and flood insurance, and such
other documents, instruments or agreements reasonably requested by Agent, in
each case, in form and substance reasonably satisfactory to Agent.
5.10 Further Assurances. Each Credit Party executing this
Agreement agrees that it shall and shall cause each other Credit Party to, at
such Credit Party's expense and upon request of Agent, duly execute and deliver,
or cause to be duly executed and delivered, to Agent such further instruments
and do and cause to be done such further acts as may be necessary or proper in
the reasonable opinion of Agent to carry out more effectively the provisions and
purposes of this Agreement or any other Loan Document.
5.11 Mortgages. On or prior to the Restatement Date,
Borrowers shall execute and deliver to Agent Mortgages in form and substance
satisfactory to Agent, covering the Real Estate located in Indianapolis, Indiana
and Reno, Nevada (the "Mortgaged Properties") together with: (a) title insurance
policies, reasonably satisfactory in form and substance to Agent, in its sole
discretion; (b) evidence that counterparts of the Mortgages have been recorded
in all places to the extent necessary or desirable, in the judgment of Agent, to
create a valid and enforceable first priority lien (subject to Permitted
Encumbrances) on each Mortgaged Property in favor of Agent for the benefit of
itself and Lenders (or in favor of such other trustee as may be required or
desired under local law); and (c) an opinion of counsel in each state in which
any Mortgaged Property is located in form and substance and from counsel
reasonably satisfactory to Agent; provided, that with respect to the Real Estate
currently located in Reno, Nevada, Borrower shall deliver to Agent prior to
September 30, 2004, either (i) evidence of the extension of the existing lease
through the Commitment Termination Date or (ii) to the extent that Borrowers do
not extend or renew such lease and move the property located therein to a new
Real Estate location, a Mortgage in form and substance satisfactory to Agent
covering such Real Estate location, together with the items listed in clauses
(a)-(c) of this Section 5.11 and such other documents, instruments or agreements
reasonably required by Agent, in each case, in form and substance reasonably
satisfactory to Agent.
5.12 Major Agreements. No later than sixty (60) days prior
to the expiration of any Major Agreement, Borrower Representative shall notify
Agent in writing as to the likelihood the other Persons party to such Major
Agreement will agree to renew such Major Agreement. No later than thirty (30)
days prior to the expiration of any Major Agreement, Borrower Representative
shall provide a written report to the Agent on the status of renewal
negotiations and any expected changes to the Major Agreement.
36
6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
until the Termination Date:
6.1 Mergers, Subsidiaries, Etc. No Loan Party shall
directly or indirectly, by operation of law or otherwise, (a) form or acquire
any Subsidiary, or (b) merge with, consolidate with, acquire all or
substantially all of the assets or Stock of, or otherwise combine with or
acquire, any Person, except that any Borrower may merge with another Borrower,
provided that Borrower Representative shall be the survivor of any such merger
to which it is a party.
6.2 Investments; Loans and Advances. Except as otherwise
expressly permitted by this Section 6, no Loan Party shall make or permit to
exist any investment in, or make, accrue or permit to exist loans or advances of
money to, any Person, through the direct or indirect lending of money, holding
of securities or otherwise, except that: (a) Borrowers may hold investments
comprised of notes payable, or stock or other securities issued by Account
Debtors to any Borrower pursuant to negotiated agreements with respect to
settlement of such Account Debtor's Accounts in the ordinary course of business,
so long as the aggregate amount of such Accounts so settled by Borrowers does
not exceed $500,000; (b) each Loan Party may maintain its existing investments
in its Subsidiaries as of the Restatement Date; (c) Borrowers may make
intercompany loans and advances to BPI to the extent permitted by Section
6.14(g); and (d) so long as no Default or Event of Default has occurred and is
continuing and there is no outstanding Revolving Loan balance, Brightpoint may
make investments, subject to Control Letters in favor of Agent for the benefit
of Lenders or otherwise subject to a perfected security interest in favor of
Agent for the benefit of Lenders, in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within one year from the date of acquisition thereof, (ii) commercial
paper maturing no more than one year from the date of creation thereof and
currently having the highest rating obtainable from either Standard & Poor's
Ratings Group or ▇▇▇▇▇'▇ Investors Service, Inc., (iii) certificates of deposit,
maturing no more than one year from the date of creation thereof, issued by
commercial banks incorporated under the laws of the United States of America,
each having combined capital, surplus and undivided profits of not less than
$300,000,000 and having a senior unsecured rating of "A" or better by a
nationally recognized rating agency (an "A Rated Bank"), (iv) time deposits
maturing no more than thirty (30) days from the date of creation thereof with A
Rated Banks, (v) mutual funds that invest solely in one or more of the
investments described in clauses (i) through (iv) above, and (vi) money market
mutual funds having a rating of "AAA" or better by a nationally recognized
rating agency.
6.3 Indebtedness.
(a) No Loan Party shall create, incur, assume or permit
to exist any Indebtedness, except (without duplication) (i) Indebtedness secured
by purchase money security interests and Capital Leases permitted in Section
6.7(c), (ii) the Loans and the other Obligations, (iii) unfunded pension fund
and other employee benefit plan obligations and liabilities to the extent they
are permitted to remain unfunded under applicable law, (iv) Indebtedness
consisting
37
of intercompany loans and advances made by Brightpoint to Wireless; provided
that, (A) Wireless shall have executed and delivered to Brightpoint, on the
Closing Date, an Intercompany Note to evidence any such intercompany
Indebtedness, which Intercompany Note shall be pledged and delivered to Agent
pursuant to the Brightpoint Pledge Agreement as additional collateral security
for the Obligations; (B) each of Brightpoint and Wireless shall record all
intercompany transactions on its books and records in a manner satisfactory to
Agent; (C) the obligations under any such Intercompany Notes shall be
subordinated to the Obligations in a manner satisfactory to Agent; (D) at the
time any such intercompany loan or advance is made and after giving effect
thereto, each of Brightpoint and Wireless shall be Solvent; (E) no Event of
Default would occur and be continuing after giving effect to any such proposed
intercompany loan or repayment; and (F) until such time as Agent shall complete
an audit of Wireless' Inventory and Accounts, the aggregate amount of the
intercompany loans made on or after the Closing Date owing by Wireless to
Brightpoint shall at no time exceed the greater of (i) the Borrowing
Availability of Wireless or (ii) $1,500,000; provided, that upon the completion
of such audit by Agent, the aggregate amount of such intercompany loans shall at
no time exceed the Borrowing Availability of Wireless; provided further, that
from the date of completion of such audit by Agent, Wireless shall have twenty
(20) days to repay to Brightpoint any amount of such intercompany loans in
excess of the Borrowing Availability of Wireless, (v) existing Indebtedness
described in Disclosure Schedule (6.3) and refinancings thereof or amendments or
modifications thereto that do not have the effect of increasing the principal
amount thereof or changing the amortization thereof (other than to extend the
same) and that are otherwise on terms and conditions no less favorable to any
Loan Party, Agent or any Lender, as determined by Agent, than the terms of the
Indebtedness being refinanced, amended or modified, (vi) Indebtedness consisting
of intercompany loans and advances made by Brightpoint to BAS; provided that,
(A) BAS shall have executed and delivered to Brightpoint, prior to any such
intercompany loan or advance, an Intercompany Note to evidence any such
intercompany Indebtedness, which Intercompany Note shall be pledged and
delivered to Agent pursuant to the Brightpoint Pledge Agreement as additional
collateral security for the Obligations; (B) each of Brightpoint and BAS shall
record all intercompany transactions on its books and records in a manner
satisfactory to Agent; (C) the obligations under any such Intercompany Notes
shall be subordinated to the Obligations in a manner satisfactory to Agent; (D)
at the time any such intercompany loan or advance is made and after giving
effect thereto, each of Brightpoint and BAS shall be Solvent; (E) no Event of
Default would occur and be continuing after giving effect to any such proposed
intercompany loan or repayment; and (F) the aggregate amount of such
intercompany loans owing by BAS to Brightpoint shall at no time exceed
$1,000,000, and (vii) other unsecured Indebtedness not to exceed $250,000
outstanding at any time in the aggregate for all Loan Parties.
(b) No Loan Party shall, directly or indirectly,
voluntarily purchase, redeem, defease or prepay any principal of, premium, if
any, interest or other amount payable in respect of any Indebtedness, other than
(i) the Obligations; (ii) Indebtedness secured by a Permitted Encumbrance if the
asset securing such Indebtedness has been sold or otherwise disposed of in
accordance with Sections 6.8(b) or (c); (iii) Indebtedness permitted by Section
6.3(a)(v) upon any
38
refinancing thereof in accordance with Section 6.3(a)(v); and (iv) as otherwise
permitted in Section 6.14.
6.4 Employee Loans and Affiliate Transactions.
(a) No Loan Party shall enter into or be a party to any
transaction with any other Loan Party or any Affiliate thereof except in the
ordinary course of and pursuant to the reasonable requirements of such Loan
Party's business and upon fair and reasonable terms that are no less favorable
to such Loan Party than would be obtained in a comparable arm's length
transaction with a Person not an Affiliate of such Loan Party. In addition, if
any such transaction or series of related transactions involves payments in
excess of $250,000 in the aggregate, the terms of these transactions must be
disclosed in advance to Agent and Lenders. All such transactions existing as of
the date hereof are described in Disclosure Schedule (6.4(a)).
(b) No Loan Party shall enter into any lending or
borrowing transaction with any employees of any Loan Party, except loans to its
respective employees in the ordinary course of business consistent with past
practices for travel and entertainment expenses, relocation costs and similar
purposes up to a maximum of $100,000 to any employee and up to a maximum of
$250,000 in the aggregate at any one time outstanding.
6.5 Capital Structure and Business. No Loan Party shall
(a) make any changes in any of its business objectives, purposes or operations
that could in any way adversely affect the repayment of the Loans or any of the
other Obligations or could reasonably be expected to have or result in a
Material Adverse Effect, (b) make any change in its capital structure as
described in Disclosure Schedule (3.8), including the issuance or sale of any
shares of Stock, warrants or other securities convertible into Stock or any
revision of the terms of its outstanding Stock; provided that the Holding
Companies may issue or sell shares of their Stock for cash so long as (i) the
proceeds thereof are applied to the Obligations as required by Section
1.3(b)(iii), and (ii) no Change of Control occurs after giving effect thereto,
or (c) amend its charter or bylaws in a manner that would adversely affect Agent
or Lenders or such Loan Party's duty or ability to repay the Obligations. No
Loan Party shall engage in any business other than the businesses currently
engaged in by it.
6.6 Guaranteed Indebtedness. No Loan Party shall create,
incur, assume or permit to exist any Guaranteed Indebtedness except (a) by
endorsement of instruments or items of payment for deposit to the general
account of any Loan Party, and (b) for Guaranteed Indebtedness incurred for the
benefit of any other Loan Party if the primary obligation is expressly permitted
by this Agreement; provided that with respect to BAS, such Guaranteed
Indebtedness shall be (i) provided by Brightpoint pursuant to a limited
guaranty, substantially in the form of Exhibit 6.6 and (ii) in an amount not
exceeding, in the aggregate, $6,000,000; provided further, that no payment by
Brightpoint on such Guaranteed Indebtedness relating to BAS shall be made after
the occurrence of an Event of Default pursuant to Section 8.1(e).
6.7 Liens. No Loan Party shall create, incur, assume or
permit to exist any Lien on or with respect to its Accounts or any of its other
properties or assets (whether now
39
owned or hereafter acquired) except for (a) Permitted Encumbrances; (b) Liens in
existence on the date hereof and summarized on Disclosure Schedule (6.7)
securing the Indebtedness described on Disclosure Schedule (6.3) and permitted
refinancings, extensions and renewals thereof, including extensions or renewals
of any such Liens; provided that the principal amount of the Indebtedness so
secured is not increased and the Lien does not attach to any other property; (c)
Liens created after the date hereof by conditional sale or other title retention
agreements (including Capital Leases) or in connection with purchase money
Indebtedness with respect to Equipment and Fixtures acquired by any Loan Party
in the ordinary course of business, involving the incurrence of an aggregate
amount of purchase money Indebtedness and Capital Lease Obligations of not more
than $3,000,000 outstanding at any one time for all such Liens (provided that
such Liens attach only to the assets subject to such purchase money debt and
such Indebtedness is incurred within twenty (20) days following such purchase
and does not exceed 100% of the purchase price of the subject assets); and (d)
Liens with respect to the assets of BAS created after the date hereof by
conditional sale or other title retention agreements or by the granting of
security interests to third parties who sell to BAS (whether outright,
conditionally or through consignment or bailment) handsets or other property
with respect to which BAS provides services. In addition, no Loan Party shall
become a party to any agreement, note, indenture or instrument, or take any
other action, that would prohibit the creation of a Lien on any of its
properties or other assets in favor of Agent, on behalf of itself and Lenders,
as additional collateral for the Obligations, except operating leases, Capital
Leases or Licenses which prohibit Liens upon the assets that are subject
thereto.
6.8 Sale of Stock and Assets. No Loan Party shall sell,
transfer, convey, assign or otherwise dispose of any of its properties or other
assets, including the Stock of any of its Subsidiaries (whether in a public or a
private offering or otherwise) or any of its Accounts, other than (a) the sale
of Inventory in the ordinary course of business, and (b) the sale, transfer,
conveyance or other disposition by a Credit Party of Equipment and Fixtures that
are obsolete or no longer used or useful in such Credit Party's business and
having a sales price not exceeding $100,000 in any single transaction or
$250,000 in the aggregate in any Fiscal Year; and (c) other Equipment and
Fixtures having a value not exceeding $100,000 in any single transaction or
$250,000 in the aggregate in any Fiscal Year. With respect to any disposition of
assets or other properties permitted pursuant to clauses (b) and (c) above,
subject to Section 1.3(b), Agent agrees on reasonable prior written notice to
release its Lien on such assets or other properties in order to permit the
applicable Loan Party to effect such disposition and shall execute and deliver
to Borrowers, at Borrowers' expense, appropriate UCC-3 termination statements
and other releases as reasonably requested by Borrowers.
6.9 ERISA. No Loan Party shall, or shall cause or permit
any ERISA Affiliate to, cause or permit to occur (i) an event that could result
in the imposition of a Lien under Section 412 of the IRC or Section 302 or 4068
of ERISA or (ii) an ERISA Event to the extent such ERISA Event could reasonably
be expected to result in a liability of such Loan Party in excess of $100,000.
40
6.10 Financial Covenants. Borrowers shall not breach or
fail to comply with any of the Financial Covenants.
6.11 Hazardous Materials. No Loan Party shall cause or
permit a Release of any Hazardous Material on, at, in, under, above, to, from or
about any of the Real Estate where such Release would (a) violate in any
respect, or form the basis for any Environmental Liabilities under, any
Environmental Laws or Environmental Permits or (b) otherwise adversely impact
the value or marketability of any of the Real Estate or any of the Collateral,
other than such violations or Environmental Liabilities that could not
reasonably be expected to have a Material Adverse Effect.
6.12 Sale-Leasebacks. No Loan Party shall engage in any
sale-leaseback, synthetic lease or similar transaction involving any of its
assets.
6.13 Cancellation of Indebtedness. No Loan Party shall
cancel any claim or debt owing to it, except for reasonable consideration
negotiated on an arm's length basis and in the ordinary course of its business
consistent with past practices.
6.14 Restricted Payments. No Loan Party shall make any
Restricted Payment, except (a) intercompany loans and advances between Borrowers
or between Brightpoint and BAS to the extent permitted by Section 6.3, (b)
dividends and distributions by Subsidiaries of any Borrower paid to such
Borrower, (c) employee loans permitted under Section 6.4(b), (d) payments of
principal and interest of Intercompany Notes issued in accordance with Section
6.3 and this Section 6.14, (e) dividends or distributions to any Holding Company
by either Borrower to pay taxes (contemporaneously with, and in the same amount
of, such distributions or dividends) attributable to its ownership of Stock of
such Borrower, (f) payment by either Borrower to BPI to reimburse BPI for BPI
Allocated Expense; provided, that (i) such payments shall not exceed $1,500,000
(or such higher amount as Agent may agree, in its sole discretion) in the
aggregate for both Borrowers, collectively, in any Fiscal Quarter, (ii) such
payments shall not be paid at any time after the occurrence of a Default or
Event of Default, other than necessary expenses agreed to in writing by Agent;
(g) Borrowers may make intercompany loans and advances to BPI ("BPI Intercompany
Loans"); provided, that (i) if prior to making any such proposed BPI
Intercompany Loans, (A) there are no Revolving Credit Advances outstanding, such
proposed BPI Intercompany Loans may be made in an amount up to the amount of
Borrowers' cash on hand and (B) (x) there are outstanding Revolving Credit
Advances and (y) Borrowers collectively shall have both Average 30-Day Borrowing
Availability and Borrowing Availability of at least $12,500,000 after giving
effect to any such proposed BPI Intercompany Loans, such proposed BPI
Intercompany Loans may be made in an amount not to exceed $10,000,000 in the
aggregate; provided further, that for purposes of the $10,000,000 limitation in
this clause (g)(i)(B), BPI Intercompany Loans shall not include those made
pursuant to clause (g)(i)(A), (ii) two (2) Business Days prior to any such BPI
Intercompany Loan the applicable Borrower shall have delivered to Agent a notice
in the form of Exhibit 6.14(b) hereto (a "BPI Intercompany Loan Notice") and
(iii) on the date of any Revolving Credit Advance made hereunder, to the extent
that Borrowers have made BPI Intercompany Loans in the period since the delivery
to Agent of the most recent Borrowing Base Certificate, Borrowers shall provide
to
41
Agent an updated Borrowing Base Certificate calculated as of such date, and (h)
Borrowers may make payments to BPI in respect of expenses of BPI which are not
BPI Allocated Expenses; provided, (i) the BPI Unallocated Expense Balance shall
not increase by more than $1,700,000 any Fiscal Quarter, (ii) such payments
shall not be paid at any time after the occurrence of and during the continuance
of a Default or Event of Default and (iii) Borrowers collectively shall have
both Average 30-Day Borrowing Availability and Borrowing Availability of at
least $12,500,000 after giving effect to any such payment, provided, further
that no payment may be made pursuant to clause (g) or (h) hereof unless (i) BPI
shall have executed and delivered to Brightpoint, on or prior to the Closing
Date, an Intercompany Note to evidence any such BPI Intercompany Loans and BPI
Unallocated Expenses Balance, which Intercompany Note shall be pledged and
delivered to Agent pursuant to the Brightpoint Pledge Agreement or the Wireless
Pledge Agreement, as applicable, as additional collateral security for the
Obligations; (ii) each of Brightpoint or Wireless, as applicable, and BPI shall
record all intercompany transactions on its books and records in a manner
satisfactory to Agent; (iii) the obligations under any such Intercompany Note
shall be subordinated to the Obligations in a manner satisfactory to Agent; (iv)
at the time any such BPI Intercompany Loans are made or the BPI Unallocated
Expenses Balance is increased and after giving effect thereto, each Borrower and
BPI shall be Solvent; (v) no Event of Default would occur and be continuing
after giving effect to any such proposed intercompany transfer, and (vi) the
aggregate amount of all BPI Intercompany Loans made pursuant to clause (g)(i)(B)
and the BPI Unallocated Expense Balance shall at no time exceed $10,000,000. If
the aggregate outstanding amount of BPI Intercompany Loans made pursuant to
clause (g)(i)(B) and the BPI Unallocated Expenses Balance exceed $10,000,000 at
any time, BPI immediately shall repay the BPI Intercompany Loans or reduce the
BPI Unallocated Expense Balance so that the aggregate outstanding amount of such
intercompany loans and the BPI Unallocated Expense Balance is less than or equal
to $10,000,000.
6.15 Change of Corporate Name or Location; Change of
Fiscal Year. No Loan Party shall (a) change its name as it appears in official
filings in the state of its incorporation or organization, (b) change its chief
executive office, principal place of business, corporate offices or warehouses
or locations at which Collateral is held or stored, or the location of its
records concerning the Collateral, (c) change the type of entity it is, (d)
change its organization identification number, if any, issued by its state of
incorporation or organization, or (e) change its state of incorporation or
organization or incorporate or organize in any additional jurisdictions, in each
case without at least thirty (30) days prior written notice to Agent and after
Agent's written acknowledgment that any reasonable action requested by Agent in
connection therewith, including to continue the perfection of any Liens in favor
of Agent, on behalf of Lenders, in any Collateral, has been completed or taken,
and provided that any such new location shall be in the continental United
States. No Loan Party shall change its Fiscal Year.
6.16 No Impairment of Intercompany Transfers. No Loan
Party shall directly or indirectly enter into or become bound by any agreement,
instrument, indenture or other obligation (other than this Agreement and the
other Loan Documents) that could directly or indirectly restrict, prohibit or
require the consent of any Person with respect to the payment of
42
dividends or distributions or the making or repayment of intercompany loans by a
Subsidiary of any Borrower to any Borrower or between Borrowers.
6.17 No Speculative Transactions. No Loan Party shall
engage in any transaction involving commodity options, futures contracts or
similar transactions, except for Hedging Obligations.
6.18 Leases; Real Estate Purchases. No Loan Party shall
enter into any operating lease for Equipment or Real Estate, if the aggregate of
all operating lease payments payable in any year for Borrowers on a consolidated
basis would exceed $9,000,000. No Borrower shall purchase a fee simple ownership
interest in Real Estate with an aggregate purchase price in excess of $250,000.
6.19 Certain Agreements. No Credit Party shall change or
amend the terms of any of the Major Agreements without the prior written notice
of Agent. Borrower Representative shall notify Agent in writing of such proposed
change at least three (3) Business Days prior to such change taking effect,
which notice shall contain a statement made by Borrower Representative in good
faith that the proposed change is in the best business interest of the
Borrowers.
6.20 Holding Companies. None of the Holding Companies
other than BPI shall engage in any trade or business, or own any assets (other
than Stock of their Subsidiaries) or incur any Indebtedness or Guaranteed
Indebtedness (other than the Obligations).
7. TERM
7.1 Termination. The financing arrangements contemplated
hereby shall be in effect until the Commitment Termination Date, and the Loans
and all other Obligations shall be automatically due and payable in full on such
date.
7.2 Survival of Obligations Upon Termination of Financing
Arrangements. Except as otherwise expressly provided for in the Loan Documents,
no termination or cancellation (regardless of cause or procedure) of any
financing arrangement under this Agreement shall in any way affect or impair the
obligations, duties and liabilities of the Credit Parties or the rights of Agent
and Lenders relating to any unpaid portion of the Loans or any other
Obligations, due or not due, liquidated, contingent or unliquidated, or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is required after the Commitment Termination
Date. Except as otherwise expressly provided herein or in any other Loan
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon the Credit Parties, and all rights of Agent
and each Lender, all as contained in the Loan Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the
provisions of Section 11, the payment obligations under Sections 1.15
43
and 1.16, and the indemnities contained in the Loan Documents shall survive the
Termination Date.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
8.1 Events of Default. The occurrence of any one or more
of the following events (regardless of the reason therefor) shall constitute an
"Event of Default" hereunder:
(a) Any Borrower (i) fails to make any payment of
principal of, or interest on, or Fees owing in respect of, the Loans or any of
the other Obligations when due and payable, or (ii) fails to pay or reimburse
Agent or Lenders for any expense reimbursable hereunder or under any other Loan
Document within ten (10) days following Agent's demand for such reimbursement or
payment of expenses.
(b) Any Credit Party fails or neglects to perform, keep
or observe any of the provisions of Sections 1.4, 1.8, 5.4(a) or 6, or any of
the provisions set forth in Annexes C or G, respectively.
(c) Any Borrower fails or neglects to perform, keep or
observe any of the provisions of Section 4 or any provisions set forth in
Annexes E or F, respectively, and the same shall remain unremedied for three (3)
days or more.
(d) Any Credit Party fails or neglects to perform, keep
or observe any other provision of this Agreement or of any of the other Loan
Documents (other than any provision embodied in or covered by any other clause
of this Section 8.1) and the same shall remain unremedied for twenty (20) days
or more after the earlier of (i) the date of receipt by any Credit Party of
notice thereof from Agent and (ii) the date that any Credit Party had knowledge
thereof.
(e) A default or breach occurs under any other agreement,
document or instrument to which any Credit Party is a party that is not cured
within any applicable grace period therefor, and such default or breach (i)
involves the failure to make any payment when due in respect of any Indebtedness
or Guaranteed Indebtedness (other than the Obligations) of any Credit Party in
excess of $500,000 in the aggregate (including (x) undrawn committed or
available amounts and (y) amounts owing to all creditors under any combined or
syndicated credit arrangements), or (ii) causes, or permits any holder of such
Indebtedness or Guaranteed Indebtedness or a trustee to cause, Indebtedness or
Guaranteed Indebtedness or a portion thereof in excess of $500,000 in the
aggregate to become due prior to its stated maturity or prior to its regularly
scheduled dates of payment, or cash collateral in respect thereof to be
demanded, in each case, regardless of whether such default is waived, or such
right is exercised, by such holder or trustee.
(f) Any information contained in any Borrowing Base
Certificate is untrue or incorrect in any respect in the aggregate in any
Borrowing Base Certificate), or any representation or warranty herein or in any
Loan Document or in any written statement, report, financial statement or
certificate (other than a Borrowing Base Certificate) made or delivered to Agent
or
44
any Lender by any Credit Party is untrue or incorrect in any material respect as
of the date when made or deemed made.
(g) Assets of any Credit Party with a fair market value
of $250,000 or more are attached, seized, levied upon or subjected to a writ or
distress warrant, or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors of any Credit Party and such
condition continues for thirty (30) days or more.
(h) A case or proceeding is commenced against any Credit
Party seeking a decree or order in respect of such Credit Party (i) under the
Bankruptcy Code, or any other applicable federal, state or foreign bankruptcy or
other similar law, (ii) appointing a custodian, receiver, liquidator, assignee,
trustee or sequestrator (or similar official) for such Credit Party or for any
substantial part of any such Credit Party's assets, or (iii) ordering the
winding-up or liquidation of the affairs of such Credit Party, and such case or
proceeding shall remain undismissed or unstayed for sixty (60) days or more or a
decree or order granting the relief sought in such case or proceeding shall be
entered by a court of competent jurisdiction.
(i) Any Credit Party (i) files a petition seeking relief
under the Bankruptcy Code, or any other applicable federal, state or foreign
bankruptcy or other similar law, (ii) consents to or fails to contest in a
timely and appropriate manner the institution of proceedings thereunder or the
filing of any such petition or the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Credit Party or for any substantial part of any such Credit
Party's assets, (iii) makes an assignment for the benefit of creditors, (iv)
takes any action in furtherance of any of the foregoing; or (v) admits in
writing its inability to, or is generally unable to, pay its debts as such debts
become due.
(j) A final judgment or judgments for the payment of
money in excess of $250,000 in the aggregate at any time are outstanding against
one or more of the Credit Parties and the same are not, within thirty (30) days
after the entry thereof, discharged or execution thereof stayed or bonded
pending appeal, or such judgments are not discharged prior to the expiration of
any such stay.
(k) Any material provision of any Loan Document for any
reason ceases to be valid, binding and enforceable in accordance with its terms
(or any Credit Party shall challenge the enforceability of any Loan Document or
shall assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms),
or any Lien created under any Loan Document ceases to be a valid and perfected
first priority Lien (except as otherwise permitted herein or therein) in any of
the Collateral purported to be covered thereby.
(l) Any Change of Control occurs.
45
(m) Any event occurs, whether or not insured or
insurable, as a result of which revenue-producing activities cease or are
substantially curtailed at any facility of Borrowers generating more than 15% of
Borrowers' consolidated revenues for the Fiscal Year preceding such event and
such cessation or curtailment continues for more than thirty (30) days.
(n) Any default or breach by any Borrower occurs and is
continuing under any of the Major Agreements, any of the Major Agreements shall
be terminated for any reason, or any Major Agreement is not renewed within ten
(10) days prior to its expiration date.
(o) As of the last day of each Fiscal Quarter, BPI and
its Subsidiaries on a consolidated basis fail to have Tangible Net Worth equal
to or greater than $130,000,000; provided, for purposes of this quarterly
Tangible Net Worth calculation, the determination of Net Worth shall be adjusted
positively for losses or negatively for gains, as the case may be, based on the
occurrence of (i) any change to BPI's currency translation adjustment account
resulting from BPI's foreign investments, except any such change resulting from
the liquidation, sale, or other disposition (including joint ventures) of any
foreign operations to the extent such change is reflected in BPI's income
statement, and (ii) any write-down in the book value of BPI's preference shares
in Chinatron Group Holdings Limited resulting from a revaluation thereof.
8.2 Remedies.
(a) If any Default or Event of Default has occurred and
is continuing, Agent may (and at the written request of the Requisite Lenders
shall), without notice, suspend all or any portion of the Revolving Loan
facility with respect to additional Advances and/or the incurrence of additional
Letter of Credit Obligations, whereupon any additional Advances and additional
Letter of Credit Obligations shall be made or incurred in Agent's sole
discretion (or in the sole discretion of the Requisite Lenders, if such
suspension occurred at their direction) so long as such Default or Event of
Default is continuing. If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of Requisite Lenders shall),
without notice except as otherwise expressly provided herein, increase the rate
of interest applicable to the Loans and the Letter of Credit Fees up to the
Default Rate.
(b) If any Event of Default has occurred and is
continuing, Agent may (and at the written request of the Requisite Lenders
shall), without notice: (i) terminate all or any portion of the Revolving Loan
facility with respect to further Advances or the incurrence of further Letter of
Credit Obligations; (ii) declare all or any portion of the Obligations,
including all or any portion of any Loan to be forthwith due and payable, and
require that any or all of the Letter of Credit Obligations be cash
collateralized as provided in Annex B, all without presentment, demand, protest
or further notice of any kind, all of which are expressly waived by Borrowers
and each other Credit Party; or (iii) exercise any rights and remedies provided
to Agent under the Loan Documents or at law or equity, including all remedies
provided under the Code; provided, that upon the occurrence of an Event of
Default specified in Sections 8.1(h) or (i), the Revolving Loan facility shall
be immediately terminated and all of the Obligations, including the aggregate
46
Revolving Loan, shall become immediately due and payable without declaration,
notice or demand by any Person.
8.3 Waivers by Credit Parties. Except as otherwise
provided for in this Agreement or by applicable law, each Credit Party waives
(including for purposes of Section 12): (a) presentment, demand and protest and
notice of presentment, dishonor, notice of intent to accelerate, notice of
acceleration, protest, default, nonpayment, maturity, release, compromise,
settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any
time held by Agent on which any Credit Party may in any way be liable, and
hereby ratifies and confirms whatever Agent may do in this regard, (b) all
rights to notice and a hearing prior to Agent's taking possession or control of,
or to Agent's replevy, attachment or levy upon, the Collateral or any bond or
security that might be required by any court prior to allowing Agent to exercise
any of its remedies, and (c) the benefit of all valuation, appraisal, marshaling
and exemption laws.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1 Assignment and Participations.
(a) Subject to the terms of this Section 9.1, any Lender
may make an assignment to a Qualified Assignee of, or sell participations in, at
any time or times, the Loan Documents, Loans, Letter of Credit Obligations and
any Revolving Loan Commitment or any portion thereof or interest therein,
including any Lender's rights, title, interests, remedies, powers or duties
thereunder. Any assignment by a Lender shall: (i) require the consent of Agent
(which consent shall not be unreasonably withheld or delayed with respect to a
Qualified Assignee) and the execution of an assignment agreement (an "Assignment
Agreement") substantially in the form attached hereto as Exhibit 9.1(a) and
otherwise in form and substance reasonably satisfactory to, and acknowledged by,
Agent; (ii) be conditioned on such assignee Lender representing to the assigning
Lender and Agent that it is purchasing the applicable Loans to be assigned to it
for its own account, for investment purposes and not with a view to the
distribution thereof; (iii) after giving effect to any such partial assignment,
the assignee Lender shall have Revolving Loan Commitments in an amount at least
equal to $5,000,000 and the assigning Lender shall have retained Revolving Loan
Commitments in an amount at least equal to $5,000,000; (iv) include a payment to
Agent of an assignment fee of $3,500; and (v) so long as no Event of Default has
occurred and is continuing, require the consent of Borrower Representative,
which shall not be unreasonably withheld or delayed; provided that no such
consent shall be required for an assignment to a Qualified Assignee. In the case
of an assignment by a Lender under this Section 9.1, the assignee shall have, to
the extent of such assignment, the same rights, benefits and obligations as all
other Lenders hereunder. The assigning Lender shall be relieved of its
obligations hereunder with respect to its Revolving Loan Commitments or assigned
portion thereof from and after the date of such assignment. Each Borrower hereby
acknowledges and agrees that any assignment shall give rise to a direct
obligation of Borrowers to the assignee and that the assignee shall be
considered to be a "Lender". In all instances, each Lender's liability to make
Loans hereunder shall be several and not joint and shall be limited to
47
such Lender's Pro Rata Share of the applicable Revolving Loan Commitment. In the
event Agent or any Lender assigns or otherwise transfers all or any part of the
Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers
shall, upon the request of Agent or such Lender, execute new Notes in exchange
for the Notes, if any, being assigned. Notwithstanding the foregoing provisions
of this Section 9.1(a), any Lender may at any time pledge the Obligations held
by it and such Lender's rights under this Agreement and the other Loan Documents
to a Federal Reserve Bank, and any Lender that is an investment fund may assign
the Obligations held by it and such Lender's rights under this Agreement and the
other Loan Documents to another investment fund managed by the same investment
advisor; provided, that no such pledge to a Federal Reserve Bank shall release
such Lender from such Lender's obligations hereunder or under any other Loan
Document.
(b) Any participation by a Lender of all or any part of
its Revolving Loan Commitments shall be made with the understanding that all
amounts payable by Borrowers hereunder shall be determined as if that Lender had
not sold such participation, and that the holder of any such participation shall
not be entitled to require such Lender to take or omit to take any action
hereunder except actions directly affecting (i) any reduction in the principal
amount of, or interest rate or Fees payable with respect to, any Loan in which
such holder participates, (ii) any extension of the scheduled amortization of
the principal amount of any Loan in which such holder participates or the final
maturity date thereof, and (iii) any release of all or substantially all of the
Collateral (other than in accordance with the terms of this Agreement, the
Collateral Documents or the other Loan Documents). Solely for purposes of
Sections 1.13, 1.15, 1.16 and 9.8, each Borrower acknowledges and agrees that a
participation shall give rise to a direct obligation of Borrowers to the
participant and the participant shall be considered to be a "Lender". Except as
set forth in the preceding sentence no Borrower or Credit Party shall have any
obligation or duty to any participant. Neither Agent nor any Lender (other than
the Lender selling a participation) shall have any duty to any participant and
may continue to deal solely with the Lender selling a participation as if no
such sale had occurred.
(c) Except as expressly provided in this Section 9.1, no
Lender shall, as between Borrowers and that Lender, or Agent and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in, all or
any part of the Loans, the Notes or other Obligations owed to such Lender.
(d) Each Credit Party executing this Agreement shall
assist any Lender permitted to sell assignments or participations under this
Section 9.1 as reasonably required to enable the assigning or selling Lender to
effect any such assignment or participation, including the execution and
delivery of any and all agreements, notes and other documents and instruments as
shall be requested and, if requested by Agent, the preparation of informational
materials for, and the participation of management in meetings with, potential
assignees or participants. Each Credit Party executing this Agreement shall
certify the correctness, completeness and accuracy of all descriptions of the
Credit Parties and their respective affairs contained in any selling materials
provided by them and all other information provided by them and included in such
materials, except that any Projections delivered by Borrowers shall only be
certified by Borrowers as
48
having been prepared by Borrowers in compliance with the representations
contained in Section 3.4(c).
(e) Any Lender may furnish any information concerning
Credit Parties in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants); provided
that such Lender shall obtain from assignees or participants confidentiality
covenants substantially equivalent to those contained in Section 11.8.
(f) So long as no Event of Default has occurred and is
continuing, no Lender shall assign or sell participations in any portion of its
Loans or Revolving Loan Commitments to a potential Lender or participant, if, as
of the date of the proposed assignment or sale, the assignee Lender or
participant would be subject to capital adequacy or similar requirements under
Section 1.16(a), increased costs under Section 1.16(b), an inability to fund
LIBOR Loans under Section 1.16(c), or withholding taxes in accordance with
Section 1.15(a).
(g) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender"), may grant to a special purpose funding
vehicle (an "SPC"), identified as such in writing by the Granting Lender to
Agent and Borrowers, the option to provide to Borrowers all or any part of any
Loans that such Granting Lender would otherwise be obligated to make to
Borrowers pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make any Loan; and (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to
the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Revolving Loan Commitment of the Granting Lender to the same extent, and as if
such Loan were made by such Granting Lender. No SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). Any SPC may (i) with notice to,
but without the prior written consent of, Borrowers and Agent and without paying
any processing fee therefor assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented to by
Borrowers and Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC. This Section 9.1(g)
may not be amended without the prior written consent of each Granting Lender,
all or any of whose Loans are being funded by an SPC at the time of such
amendment. For the avoidance of doubt, the Granting Lender shall for all
purposes, including without limitation, the approval of any amendment or waiver
of any provision of any Loan Document or the obligation to pay any amount
otherwise payable by the Granting Lender under the Loan Documents, continue to
be the Lender of record hereunder.
9.2 Appointment of Agent. GE Capital is hereby appointed
to act on behalf of all Lenders as Agent under this Agreement and the other Loan
Documents. The provisions of this Section 9.2 are solely for the benefit of
Agent and Lenders and no Credit Party nor any other Person shall have any rights
as a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and the other Loan Documents, Agent
49
shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation toward or relationship of agency or trust
with or for any Credit Party or any other Person. Agent shall have no duties or
responsibilities except for those expressly set forth in this Agreement and the
other Loan Documents. The duties of Agent shall be mechanical and administrative
in nature and Agent shall not have, or be deemed to have, by reason of this
Agreement, any other Loan Document or otherwise a fiduciary relationship in
respect of any Lender. Except as expressly set forth in this Agreement and the
other Loan Documents, Agent shall not have any duty to disclose, and shall not
be liable for failure to disclose, any information relating to any Credit Party
or any of their respective Subsidiaries or any Account Debtor that is
communicated to or obtained by GE Capital or any of its Affiliates in any
capacity. Neither Agent nor any of its Affiliates nor any of their respective
officers, directors, employees, agents or representatives shall be liable to any
Lender for any action taken or omitted to be taken by it hereunder or under any
other Loan Document, or in connection herewith or therewith, except for damages
caused by its or their own gross negligence or willful misconduct.
If Agent shall request instructions from Requisite Lenders,
Supermajority Lenders or all affected Lenders with respect to any act or action
(including failure to act) in connection with this Agreement or any other Loan
Document, then Agent shall be entitled to refrain from such act or taking such
action unless and until Agent shall have received instructions from Requisite
Lenders, Supermajority Lenders or all affected Lenders, as the case may be, and
Agent shall not incur liability to any Person by reason of so refraining. Agent
shall be fully justified in failing or refusing to take any action hereunder or
under any other Loan Document (a) if such action would, in the opinion of Agent,
be contrary to law or the terms of this Agreement or any other Loan Document,
(b) if such action would, in the opinion of Agent, expose Agent to Environmental
Liabilities or (c) if Agent shall not first be indemnified to its satisfaction
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Without limiting the foregoing,
no Lender shall have any right of action whatsoever against Agent as a result of
Agent acting or refraining from acting hereunder or under any other Loan
Document in accordance with the instructions of Requisite Lenders, Supermajority
Lenders or all affected Lenders, as applicable.
9.3 Agent's Reliance, Etc. Neither Agent nor any of its
Affiliates nor any of their respective directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or the other Loan Documents, except for
damages caused by its or their own gross negligence or willful misconduct.
Without limiting the generality of the foregoing, Agent: (a) may treat the payee
of any Note as the holder thereof until Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form reasonably
satisfactory to Agent; (b) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations made in or in connection with this
Agreement or the other Loan Documents; (d) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of this Agreement or the other Loan Documents on the part of any
Credit Party or to
50
inspect the Collateral (including the books and records) of any Credit Party;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; and (f) shall incur no liability under or in respect of this
Agreement or the other Loan Documents by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy, telegram,
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
9.4 GE Capital and Affiliates. With respect to its
Revolving Loan Commitments hereunder, GE Capital shall have the same rights and
powers under this Agreement and the other Loan Documents as any other Lender and
may exercise the same as though it were not Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include GE Capital in its
individual capacity. GE Capital and its Affiliates may lend money to, invest in,
and generally engage in any kind of business with, any Credit Party, any of
their Affiliates and any Person who may do business with or own securities of
any Credit Party or any such Affiliate, all as if GE Capital were not Agent and
without any duty to account therefor to Lenders. GE Capital and its Affiliates
may accept fees and other consideration from any Credit Party for services in
connection with this Agreement or otherwise without having to account for the
same to Lenders. Each Lender acknowledges the potential conflict of interest
between GE Capital as a Lender holding disproportionate interests in the Loans
and GE Capital as Agent.
9.5 Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon Agent or any other Lender and
based on the Financial Statements referred to in Section 3.4(a) and such other
documents and information as it has deemed appropriate, made its own credit and
financial analysis of the Credit Parties and its own decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Each
Lender acknowledges the potential conflict of interest of each other Lender as a
result of Lenders holding disproportionate interests in the Loans, and expressly
consents to, and waives any claim based upon, such conflict of interest.
9.6 Indemnification. Lenders agree to indemnify Agent (to
the extent not reimbursed by Credit Parties and without limiting the obligations
of Borrowers hereunder), ratably according to their respective Pro Rata Shares,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against Agent in any way relating to or arising out of this Agreement or any
other Loan Document or any action taken or omitted to be taken by Agent in
connection therewith; provided, that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct. Without limiting the foregoing, each Lender
agrees to reimburse Agent promptly upon demand for its ratable share of any
out-of-pocket expenses
51
(including reasonable counsel fees) incurred by Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
and each other Loan Document, to the extent that Agent is not reimbursed for
such expenses by Credit Parties.
9.7 Successor Agent. Agent may resign at any time by
giving not less than thirty (30) days' prior written notice thereof to Lenders
and Borrower Representative. Upon any such resignation, the Requisite Lenders
shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Requisite Lenders and shall have accepted such
appointment within thirty (30) days after the resigning Agent's giving notice of
resignation, then the resigning Agent may, on behalf of Lenders, appoint a
successor Agent, which shall be a Lender, if a Lender is willing to accept such
appointment, or otherwise shall be a commercial bank or financial institution or
a subsidiary of a commercial bank or financial institution if such commercial
bank or financial institution is organized under the laws of the United States
of America or of any State thereof and has a combined capital and surplus of at
least $300,000,000. If no successor Agent has been appointed pursuant to the
foregoing, within thirty (30) days after the date such notice of resignation was
given by the resigning Agent, such resignation shall become effective and the
Requisite Lenders shall thereafter perform all the duties of Agent hereunder
until such time, if any, as the Requisite Lenders appoint a successor Agent as
provided above. Any successor Agent appointed by Requisite Lenders hereunder
shall be subject to the approval of Borrower Representative, such approval not
to be unreasonably withheld or delayed; provided that such approval shall not be
required if a Default or an Event of Default has occurred and is continuing.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the resigning Agent. Upon the earlier of the
acceptance of any appointment as Agent hereunder by a successor Agent or the
effective date of the resigning Agent's resignation, the resigning Agent shall
be discharged from its duties and obligations under this Agreement and the other
Loan Documents, except that any indemnity rights or other rights in favor of
such resigning Agent shall continue. After any resigning Agent's resignation
hereunder, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was acting as Agent under
this Agreement and the other Loan Documents.
9.8 Setoff and Sharing of Payments. In addition to any
rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
any Event of Default and subject to Section 9.9(f), each Lender is hereby
authorized at any time or from time to time, without prior notice to any Credit
Party or to any other Person (other than Agent), any such notice being hereby
expressly waived, to offset and to appropriate and to apply any and all balances
held by it at any of its offices for the account of any Borrower or Guarantor
(regardless of whether such balances are then due to such Borrower or Guarantor)
and any other properties or assets at any time held or owing by that Lender or
that holder to or for the credit or for the account of any Borrower or Guarantor
against and on account of any of the Obligations that are not paid when due;
provided that the Lender exercising such offset rights shall give notice thereof
to the affected Credit Party promptly after exercising such rights. Any Lender
exercising a right of setoff or otherwise receiving any
52
payment on account of the Obligations in excess of its Pro Rata Share thereof
shall purchase for cash (and the other Lenders or holders shall sell) such
participations in each such other Lender's or holder's Pro Rata Share of the
Obligations as would be necessary to cause such Lender to share the amount so
offset or otherwise received with each other Lender or holder in accordance with
their respective Pro Rata Shares (other than offset rights exercised by any
Lender with respect to Sections 1.13, 1.15 or 1.16). Each Lender's obligation
under this Section 9.8 shall be in addition to and not in limitation of its
obligations to purchase a participation in an amount equal to its Pro Rata Share
of the Swing Line Loans under Section 1.1. Each Credit Party that is a Borrower
or Guarantor agrees, to the fullest extent permitted by law, that (a) any Lender
may exercise its right to offset with respect to amounts in excess of its Pro
Rata Share of the Obligations and may sell participations in such amounts so
offset to other Lenders and holders and (b) any Lender so purchasing a
participation in the Loans made or other Obligations held by other Lenders or
holders may exercise all rights of offset, bankers' lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender or
holder were a direct holder of the Loans and the other Obligations in the amount
of such participation. Notwithstanding the foregoing, if all or any portion of
the offset amount or payment otherwise received is thereafter recovered from the
Lender that has exercised the right of offset, the purchase of participations by
that Lender shall be rescinded and the purchase price restored without interest.
9.9 Advances; Payments; Non-Funding Lenders; Information;
Actions in Concert.
(a) Advances; Payments.
(i) Lenders shall refund or participate in the
Swing Line Loan in accordance with clauses (iii) and (iv) of Section 1.1(c). If
the Swing Line Lender declines to make a Swing Line Loan or if Swing Line
Availability is zero, Agent shall notify Lenders, promptly after receipt of a
Notice of Revolving Credit Advance and in any event prior to 12:00 noon (Chicago
time) on the date such Notice of Revolving Advance is received, by telecopy,
telephone or other similar form of transmission. Each Lender shall make the
amount of such Lender's Pro Rata Share of such Revolving Credit Advance
available to Agent in same day funds by wire transfer to Agent's account as set
forth in Annex H not later than 2:00 p.m. (Chicago time) on the requested
funding date, in the case of an Index Rate Loan, and not later than 10:00 a.m.
(Chicago time) on the requested funding date, in the case of a LIBOR Loan. After
receipt of such wire transfers (or, in the Agent's sole discretion, before
receipt of such wire transfers), subject to the terms hereof, Agent shall make
the requested Revolving Credit Advance to the Borrower designated by Borrower
Representative in the Notice of Revolving Credit Advance. All payments by each
Lender shall be made without setoff, counterclaim or deduction of any kind.
(ii) On the 2nd Business Day of each calendar
week or more frequently at Agent's election (each, a "Settlement Date"), Agent
shall advise each Lender by telephone, or telecopy of the amount of such
Lender's Pro Rata Share of principal, interest and Fees paid for the benefit of
Lenders with respect to each applicable Loan. Provided that each Lender has
funded all payments or Advances required to be made by it and has purchased all
participations
53
required to be purchased by it under this Agreement and the other Loan Documents
as of such Settlement Date, Agent shall pay to each Lender such Lender's Pro
Rata Share of principal, interest and Fees paid by Borrowers since the previous
Settlement Date for the benefit of such Lender on the Loans held by it. To the
extent that any Lender (a "Non-Funding Lender") has failed to fund all such
payments and Advances or failed to fund the purchase of all such participations,
Agent shall be entitled to set off the funding short-fall against that
Non-Funding Lender's Pro Rata Share of all payments received from Borrowers.
Such payments shall be made by wire transfer to such Lender's account (as
specified by such Lender in Annex H or the applicable Assignment Agreement) not
later than 1:00 p.m. (Chicago time) on the next Business Day following each
Settlement Date.
(b) Availability of Lender's Pro Rata Share. Agent may
assume that each Lender will make its Pro Rata Share of each Revolving Credit
Advance available to Agent on each funding date. If such Pro Rata Share is not,
in fact, paid to Agent by such Lender when due, Agent will be entitled to
recover such amount on demand from such Lender without setoff, counterclaim or
deduction of any kind. If any Lender fails to pay the amount of its Pro Rata
Share forthwith upon Agent's demand, Agent shall promptly notify Borrower
Representative and Borrowers shall immediately repay such amount to Agent.
Nothing in this Section 9.9(b) or elsewhere in this Agreement or the other Loan
Documents shall be deemed to require Agent to advance funds on behalf of any
Lender or to relieve any Lender from its obligation to fulfill its Revolving
Loan Commitments hereunder or to prejudice any rights that Borrowers may have
against any Lender as a result of any default by such Lender hereunder. To the
extent that Agent advances funds to any Borrower on behalf of any Lender and is
not reimbursed therefor on the same Business Day as such Advance is made, Agent
shall be entitled to retain for its account all interest accrued on such Advance
until reimbursed by the applicable Lender.
(c) Return of Payments.
(i) If Agent pays an amount to a Lender under
this Agreement in the belief or expectation that a related payment has been or
will be received by Agent from Borrowers and such related payment is not
received by Agent, then Agent will be entitled to recover such amount from such
Lender on demand without setoff, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any
amount received by Agent under this Agreement must be returned to any Borrower
or paid to any other Person pursuant to any insolvency law or otherwise, then,
notwithstanding any other term or condition of this Agreement or any other Loan
Document, Agent will not be required to distribute any portion thereof to any
Lender. In addition, each Lender will repay to Agent on demand any portion of
such amount that Agent has distributed to such Lender, together with interest at
such rate, if any, as Agent is required to pay to any Borrower or such other
Person, without setoff, counterclaim or deduction of any kind.
(d) Non-Funding Lenders. The failure of any Non-Funding
Lender to make any Revolving Credit Advance or any payment required by it
hereunder or to purchase any
54
participation in any Swing Line Loan to be made or purchased by it on the date
specified therefor shall not relieve any other Lender (each such other Lender,
an "Other Lender") of its obligations to make such Advance or purchase such
participation on such date, but neither any Other Lender nor Agent shall be
responsible for the failure of any Non-Funding Lender to make an Advance,
purchase a participation or make any other payment required hereunder.
Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender
shall not have any voting or consent rights under or with respect to any Loan
Document or constitute a "Lender" (or be included in the calculation of
"Requisite Lenders" or "Supermajority Lenders" hereunder) for any voting or
consent rights under or with respect to any Loan Document. At Borrower
Representative's request, Agent or a Person reasonably acceptable to Agent shall
have the right with Agent's consent and in Agent's sole discretion (but shall
have no obligation) to purchase from any Non-Funding Lender, and each
Non-Funding Lender agrees that it shall, at Agent's request, sell and assign to
Agent or such Person, all of the Revolving Loan Commitments of that Non-Funding
Lender for an amount equal to the principal balance of all Loans held by such
Non-Funding Lender and all accrued interest and fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to
an executed Assignment Agreement.
(e) Dissemination of Information. Agent shall use
reasonable efforts to provide Lenders with any notice of Default or Event of
Default received by Agent from, or delivered by Agent to, any Credit Party, with
notice of any Event of Default of which Agent has actually become aware and with
notice of any action taken by Agent following any Event of Default; provided,
that Agent shall not be liable to any Lender for any failure to do so, except to
the extent that such failure is attributable to Agent's gross negligence or
willful misconduct. Lenders acknowledge that Borrowers are required to provide
Financial Statements and Collateral Reports to Lenders in accordance with
Annexes E and F hereto and agree that Agent shall have no duty to provide the
same to Lenders.
(f) Actions in Concert. Anything in this Agreement to the
contrary notwithstanding, each Lender hereby agrees with each other Lender that
no Lender shall take any action to protect or enforce its rights arising out of
this Agreement or the Notes (including exercising any rights of setoff) without
first obtaining the prior written consent of Agent and Requisite Lenders, it
being the intent of Lenders that any such action to protect or enforce rights
under this Agreement and the Notes shall be taken in concert and at the
direction or with the consent of Agent or Requisite Lenders.
10. SUCCESSORS AND ASSIGNS
10.1 Successors and Assigns. This Agreement and the other
Loan Documents shall be binding on and shall inure to the benefit of each Credit
Party, Agent, Lenders and their respective successors and assigns (including, in
the case of any Credit Party, a debtor-in-possession on behalf of such Credit
Party), except as otherwise provided herein or therein. No Credit Party may
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder or under any of the other Loan Documents without
the prior express written consent of Agent and Lenders. Any such purported
assignment, transfer, hypothecation or other
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conveyance by any Credit Party without the prior express written consent of
Agent and Lenders shall be void. The terms and provisions of this Agreement are
for the purpose of defining the relative rights and obligations of each Credit
Party, Agent and Lenders with respect to the transactions contemplated hereby
and no Person shall be a third party beneficiary of any of the terms and
provisions of this Agreement or any of the other Loan Documents.
11. MISCELLANEOUS
11.1 Complete Agreement; Modification of Agreement. The
Loan Documents constitute the complete agreement between the parties with
respect to the subject matter thereof and may not be modified, altered or
amended except as set forth in Section 11.2. Any letter of interest, commitment
letter, fee letter (other than the GE Capital Fee Letter) or confidentiality
agreement between any Credit Party and Agent or any Lender or any of their
respective Affiliates, predating this Agreement and relating to a financing of
substantially similar form, purpose or effect shall be superseded by this
Agreement.
11.2 Amendments and Waivers.
(a) Except for actions expressly permitted to be taken by
Agent, no amendment, modification, termination or waiver of any provision of
this Agreement or any other Loan Document, or any consent to any departure by
any Credit Party therefrom, shall in any event be effective unless the same
shall be in writing and signed by Agent and Borrowers, and by Requisite Lenders,
Supermajority Lenders or all affected Lenders, as applicable. Except as set
forth in clauses (b) and (c) below, all such amendments, modifications,
terminations or waivers requiring the consent of any Lenders shall require the
written consent of Requisite Lenders.
(b) No amendment, modification, termination or waiver of
or consent with respect to any provision of this Agreement that increases the
percentage advance rates set forth in the definition of the Brightpoint
Borrowing Base, or the Wireless Borrowing Base, or that makes less restrictive
the nondiscretionary criteria for exclusion from Eligible Accounts and Eligible
Inventory set forth in Sections 1.6 and 1.7, shall be effective unless the same
shall be in writing and signed by Agent, Supermajority Lenders and Borrowers. No
amendment, modification, termination or waiver of or consent with respect to any
provision of this Agreement that waives compliance with the conditions precedent
set forth in Section 2.2 to the making of any Loan or the incurrence of any
Letter of Credit Obligations shall be effective unless the same shall be in
writing and signed by Agent, Requisite Lenders and Borrowers. Notwithstanding
anything contained in this Agreement to the contrary, no waiver or consent with
respect to any Default or any Event of Default shall be effective for purposes
of the conditions precedent to the making of Loans or the incurrence of Letter
of Credit Obligations set forth in Section 2.2 unless the same shall be in
writing and signed by Agent, Requisite Lenders and Borrowers.
(c) No amendment, modification, termination or waiver
shall, unless in writing and signed by Agent and each Lender directly affected
thereby: (i) increase the principal amount of any Lender's Revolving Loan
Commitment (which action shall be deemed to directly
56
affect all Lenders; (ii) reduce the principal of, rate of interest on or Fees
payable with respect to any Loan or Letter of Credit Obligations of any affected
Lender; (iii) extend any scheduled payment date (other than payment dates of
mandatory prepayments under Section 1.3(b)(ii)-(iv)) or final maturity date of
the principal amount of any Loan of any affected Lender; (iv) waive, forgive,
defer, extend or postpone any payment of interest or Fees as to any affected
Lender; (v) release any Guaranty or, except as otherwise permitted herein or in
the other Loan Documents, release, or permit any Credit Party to sell or
otherwise dispose of, any Collateral with a value exceeding $3,000,000 in the
aggregate (which action shall be deemed to directly affect all Lenders); (vi)
change the percentage of the Revolving Loan Commitments or of the aggregate
unpaid principal amount of the Loans that shall be required for Lenders or any
of them to take any action hereunder; and (vii) amend or waive this Section 11.2
or the definitions of the terms "Requisite Lenders" or "Supermajority Lenders"
insofar as such definitions affect the substance of this Section 11.2.
Furthermore, no amendment, modification, termination or waiver affecting the
rights or duties of Agent or L/C Issuer under this Agreement or any other Loan
Document shall be effective unless in writing and signed by Agent or L/C Issuer,
as the case may be, in addition to Lenders required hereinabove to take such
action. Each amendment, modification, termination or waiver shall be effective
only in the specific instance and for the specific purpose for which it was
given. No amendment, modification, termination or waiver shall be required for
Agent to take additional Collateral pursuant to any Loan Document. No amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the holder of that Note. No notice
to or demand on any Credit Party in any case shall entitle such Credit Party or
any other Credit Party to any other or further notice or demand in similar or
other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 11.2 shall be binding upon each holder
of the Notes at the time outstanding and each future holder of the Notes.
(d) If, in connection with any proposed amendment,
modification, waiver or termination (a "Proposed Change"):
(i) requiring the consent of all affected
Lenders, the consent of Requisite Lenders is obtained, but the consent of other
Lenders whose consent is required is not obtained (any such Lender whose consent
is not obtained as described in this clause (i) and in clauses (ii), (iii) and
(iv) below being referred to as a "Non-Consenting Lender"),
(ii) requiring the consent of Supermajority
Lenders, the consent of Requisite Lenders is obtained, but the consent of
Supermajority Lenders is not obtained, or
(iii) requiring the consent of Requisite Lenders,
the consent of Lenders holding 51% or more of the aggregate Revolving
Commitments is obtained, but the consent of Requisite Lenders is not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower
Representative's request, Agent or a Person reasonably acceptable to Agent shall
have the right with Agent's consent and in Agent's sole discretion (but shall
have no obligation) to purchase from such Non-Consenting Lenders, and such
Non-Consenting Lenders agree that they shall, upon Agent's request, sell and
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assign to Agent or such Person, all of the Revolving Loan Commitments of such
Non-Consenting Lenders for an amount equal to the principal balance of all Loans
held by the Non-Consenting Lenders and all accrued interest and Fees with
respect thereto through the date of sale, such purchase and sale to be
consummated pursuant to an executed Assignment Agreement.
(e) Upon payment in full in cash and performance of all
of the Obligations (other than indemnification Obligations), termination of the
Revolving Loan Commitments and a release of all claims against Agent and
Lenders, and so long as no suits, actions, proceedings or claims are pending or
threatened against any Indemnified Person asserting any damages, losses or
liabilities that are Indemnified Liabilities, Agent shall deliver to Borrowers
termination statements, mortgage releases and other documents necessary or
appropriate to evidence the termination of the Liens securing payment of the
Obligations.
11.3 Fees and Expenses. Borrowers shall reimburse (i)
Agent for all fees, costs and expenses (including the reasonable fees and
expenses of all of its counsel, advisors, consultants and auditors) and (ii)
Agent (and, with respect to clauses (c) and (d) below, all Lenders) for all
fees, costs and expenses, including the reasonable fees, costs and expenses of
counsel or other advisors (including environmental and management consultants
and appraisers), incurred in connection with the negotiation and preparation of
the Loan Documents and incurred in connection with:
(a) the forwarding to Borrowers or any other Person on
behalf of Borrowers by Agent of the proceeds of any Loan (including a wire
transfer fee of $25 per wire transfer);
(b) any amendment, modification or waiver of, consent
with respect to, or termination of, any of the Loan Documents or advice in
connection with the syndication and administration of the Loans made pursuant
hereto or its rights hereunder or thereunder;
(c) any litigation, contest, dispute, suit, proceeding or
action (whether instituted by Agent, any Lender, any Borrower or any other
Person and whether as a party, witness or otherwise) in any way relating to the
Collateral, any of the Loan Documents or any other agreement to be executed or
delivered in connection herewith or therewith, including any litigation,
contest, dispute, suit, case, proceeding or action, and any appeal or review
thereof, in connection with a case commenced by or against any or all of the
Borrowers or any other Person that may be obligated to Agent by virtue of the
Loan Documents; including any such litigation, contest, dispute, suit,
proceeding or action arising in connection with any work-out or restructuring of
the Loans during the pendency of one or more Events of Default; provided that in
the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders; provided,
further, that no Person shall be entitled to reimbursement under this clause (c)
in respect of any litigation, contest, dispute, suit, proceeding or action to
the extent any of the foregoing results from such Person's gross negligence or
willful misconduct;
(d) any attempt to enforce any remedies of Agent against
any or all of the Credit Parties or any other Person that may be obligated to
Agent or any Lender by virtue of any
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of the Loan Documents, including any such attempt to enforce any such remedies
in the course of any work-out or restructuring of the Loans during the pendency
of one or more Events of Default; provided, that in the case of reimbursement of
counsel for Lenders other than Agent, such reimbursement shall be limited to one
counsel for all such Lenders;
(e) any workout or restructuring of the Loans during the
pendency of one or more Events of Default; and
(f) efforts to (i) monitor the Loans or any of the other
Obligations, (ii) evaluate, observe or assess any of the Credit Parties or their
respective affairs, and (iii) verify, protect, evaluate, assess, appraise,
collect, sell, liquidate or otherwise dispose of any of the Collateral;
including, as to each of clauses (a) through (f) above, all reasonable
attorneys' and other professional and service providers' fees arising from such
services and other advice, assistance or other representation, including those
in connection with any appellate proceedings, and all expenses, costs, charges
and other fees incurred by such counsel and others in connection with or
relating to any of the events or actions described in this Section 11.3, all of
which shall be payable, on demand, by Borrowers to Agent. Without limiting the
generality of the foregoing, such expenses, costs, charges and fees may include:
fees, costs and expenses of accountants, environmental advisors, appraisers,
investment bankers, management and other consultants and paralegals; court costs
and expenses; photocopying and duplication expenses; court reporter fees, costs
and expenses; long distance telephone charges; air express charges; telegram or
telecopy charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal or
other advisory services.
11.4 No Waiver. Agent's or any Lender's failure, at any
time or times, to require strict performance by the Credit Parties of any
provision of this Agreement or any other Loan Document shall not waive, affect
or diminish any right of Agent or such Lender thereafter to demand strict
compliance and performance herewith or therewith. Any suspension or waiver of an
Event of Default shall not suspend, waive or affect any other Event of Default
whether the same is prior or subsequent thereto and whether the same or of a
different type. Subject to the provisions of Section 11.2, none of the
undertakings, agreements, warranties, covenants and representations of any
Credit Party contained in this Agreement or any of the other Loan Documents and
no Default or Event of Default by any Credit Party shall be deemed to have been
suspended or waived by Agent or any Lender, unless such waiver or suspension is
by an instrument in writing signed by an officer of or other authorized employee
of Agent and the applicable required Lenders, and directed to Borrowers
specifying such suspension or waiver.
11.5 Remedies. Agent's and Lenders' rights and remedies
under this Agreement shall be cumulative and nonexclusive of any other rights
and remedies that Agent or any Lender may have under any other agreement,
including the other Loan Documents, by operation of law or otherwise. Recourse
to the Collateral shall not be required.
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11.6 Severability. Wherever possible, each provision of
this Agreement and the other Loan Documents shall be interpreted in such a
manner as to be effective and valid under applicable law, but if any provision
of this Agreement or any other Loan Document shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement or such other Loan
Document.
11.7 Conflict of Terms. Except as otherwise provided in
this Agreement or any of the other Loan Documents by specific reference to the
applicable provisions of this Agreement, if any provision contained in this
Agreement conflicts with any provision in any of the other Loan Documents, the
provision contained in this Agreement shall govern and control.
11.8 Confidentiality. Agent and each Lender agree to use
commercially reasonable efforts (equivalent to the efforts Agent or such Lender
applies to maintaining the confidentiality of its own confidential information)
to maintain as confidential all confidential information provided to them by the
Credit Parties and designated as confidential for a period of two (2) years
following receipt thereof, except that Agent and any Lender may disclose such
information (a) to Persons employed or engaged by Agent or such Lender in
evaluating, approving, structuring or administering the Loans and the Revolving
Loan Commitments; (b) to any bona fide assignee or participant or potential
assignee or participant that has agreed to comply with the covenant contained in
this Section 11.8 (and any such bona fide assignee or participant or potential
assignee or participant may disclose such information to Persons employed or
engaged by them as described in clause (a) above); (c) as required or requested
by any Governmental Authority or reasonably believed by Agent or such Lender to
be compelled by any court decree, subpoena or legal or administrative order or
process; (d) as, on the advice of Agent's or such Lender's counsel, is required
by law; (e) in connection with the exercise of any right or remedy under the
Loan Documents or in connection with any Litigation to which Agent or such
Lender is a party; or (f) that ceases to be confidential through no fault of
Agent or any Lender.
11.9 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
EACH CREDIT PARTY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN ▇▇▇▇ COUNTY, CITY OF CHICAGO, ILLINOIS SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE CREDIT
PARTIES, AGENT AND LENDERS PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS; PROVIDED, THAT AGENT, LENDERS AND THE CREDIT
PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
60
TO BE HEARD BY A COURT LOCATED OUTSIDE OF ▇▇▇▇ COUNTY; PROVIDED FURTHER, THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY
SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND EACH CREDIT PARTY HEREBY WAIVES ANY OBJECTION
THAT SUCH CREDIT PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET FORTH IN ANNEX I OF THIS
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN
THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
11.10 Notices. Except as otherwise provided herein,
whenever it is provided herein that any notice, demand, request, consent,
approval, declaration or other communication shall or may be given to or served
upon any of the parties by any other parties, or whenever any of the parties
desires to give or serve upon any other parties any communication with respect
to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and shall be deemed to
have been validly served, given or delivered: (a) upon the earlier of actual
receipt and three (3) Business Days after deposit in the United States Mail,
registered or certified mail, return receipt requested, with proper postage
prepaid; (b) upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery of
a copy by personal delivery or United States Mail as otherwise provided in this
Section 11.10); (c) one (1) Business Day after deposit with a reputable
overnight courier with all charges prepaid or (d) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party to be
notified and sent to the address or facsimile number indicated in Annex I or to
such other address (or facsimile number) as may be substituted by notice given
as herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to any Person (other than Borrower Representative or
Agent) designated in Annex I to receive copies shall in no way adversely affect
the effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
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11.11 Section Titles. The Section titles and Table of
Contents contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto.
11.12 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement.
11.13 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY CREDIT
PARTY ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
11.14 Press Releases and Related Matters. Each Credit Party
executing this Agreement agrees that neither it nor its Affiliates will in the
future issue any press releases or other public disclosure using the name of GE
Capital or its affiliates or referring to this Agreement or the other Loan
Documents without at least two (2) Business Days' prior notice to GE Capital and
without the prior written consent of GE Capital unless (and only to the extent
that) such Credit Party or Affiliate is required to do so under law and then, in
any event, such Credit Party or Affiliate will consult with GE Capital before
issuing such press release or other public disclosure. Each Credit Party
consents to the publication by Agent or any Lender of a tombstone or similar
advertising material relating to the financing transactions contemplated by this
Agreement. Agent reserves the right to provide to industry trade organizations
information necessary and customary for inclusion in league table measurements.
11.15 Reinstatement. This Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against any Borrower for liquidation or reorganization, should any Borrower
become insolvent or make an assignment for the benefit of any creditor or
creditors or should a receiver or trustee be appointed for all or any
significant part of any Borrower's assets, and shall continue to be effective or
to be reinstated, as the case may be, if at any time payment and performance of
the Obligations, or any part thereof, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or returned by any obligee
of the Obligations, whether as a "voidable preference," "fraudulent conveyance,"
or otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored
or returned, the Obligations shall be
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reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
11.16 Advice of Counsel. Each of the parties represents to
each other party hereto that it has discussed this Agreement and, specifically,
the provisions of Sections 11.9 and 11.13, with its counsel.
11.17 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
12. CROSS-GUARANTY
12.1 Cross-Guaranty. Each Borrower hereby agrees that such
Borrower is jointly and severally liable for, and hereby absolutely and
unconditionally guarantees to Agent and Lenders and their respective successors
and assigns, the full and prompt payment (whether at stated maturity, by
acceleration or otherwise) and performance of, all Obligations owed or hereafter
owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its
guaranty obligation hereunder is a continuing guaranty of payment and
performance and not of collection, that its obligations under this Section 12
shall not be discharged until payment and performance, in full, of the
Obligations has occurred, and that its obligations under this Section 12 shall
be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability
or any future amendment of, or change in, this Agreement, any other Loan
Document or any other agreement, document or instrument to which any Borrower is
or may become a party;
(b) the absence of any action to enforce this Agreement
(including this Section 12) or any other Loan Document or the waiver or consent
by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to
perfect its Lien against, any security for the Obligations or any action, or the
absence of any action, by Agent and Lenders in respect thereof (including the
release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor.
Each Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.
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12.2 Waivers by Borrowers. Each Borrower expressly waives
all rights it may have now or in the future under any statute, or at common law,
or at law or in equity, or otherwise, to compel Agent or Lenders to marshal
assets or to proceed in respect of the Obligations guaranteed hereunder against
any other Credit Party, any other party or against any security for the payment
and performance of the Obligations before proceeding against, or as a condition
to proceeding against, such Borrower. It is agreed among each Borrower, Agent
and Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this Section 12 and such waivers, Agent and Lenders would
decline to enter into this Agreement.
12.3 Benefit of Guaranty. Each Borrower agrees that the
provisions of this Section 12 are for the benefit of Agent and Lenders and their
respective successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between any other Borrower and Agent or Lenders, the
obligations of such other Borrower under the Loan Documents.
12.4 Subordination of Subrogation, Etc. Notwithstanding
anything to the contrary in this Agreement or in any other Loan Document, and
except as set forth in Section 12.7, each Borrower hereby expressly and
irrevocably subordinates to payment of the Obligations any and all rights at law
or in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off and any and all defenses available to a surety,
guarantor or accommodation co-obligor until the Obligations are indefeasibly
paid in full in cash. Each Borrower acknowledges and agrees that this
subordination is intended to benefit Agent and Lenders and shall not limit or
otherwise affect such Borrower's liability hereunder or the enforceability of
this Section 12, and that Agent, Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 12.4.
12.5 Election of Remedies. If Agent or any Lender may,
under applicable law, proceed to realize its benefits under any of the Loan
Documents giving Agent or such Lender a Lien upon any Collateral, whether owned
by any Borrower or by any other Person, either by judicial foreclosure or by
non-judicial sale or enforcement, Agent or any Lender may, at its sole option,
determine which of its remedies or rights it may pursue without affecting any of
its rights and remedies under this Section 12. If, in the exercise of any of its
rights and remedies, Agent or any Lender shall forfeit any of its rights or
remedies, including its right to enter a deficiency judgment against any
Borrower or any other Person, whether because of any applicable laws pertaining
to "election of remedies" or the like, each Borrower hereby consents to such
action by Agent or such Lender and waives any claim based upon such action, even
if such action by Agent or such Lender shall result in a full or partial loss of
any rights of subrogation that each Borrower might otherwise have had but for
such action by Agent or such Lender. Any election of remedies that results in
the denial or impairment of the right of Agent or any Lender to seek a
deficiency judgment against any Borrower shall not impair any other Borrower's
obligation to pay the full amount of the Obligations. In the event Agent or any
Lender shall bid at any foreclosure or trustee's sale or at any private sale
permitted by law or the Loan Documents, Agent or such Lender may bid all or less
than the amount of the Obligations and the amount of such bid need not be paid
by Agent or such Lender but shall be credited against the Obligations. The
amount of
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the successful bid at any such sale, whether Agent, Lender or any other party is
the successful bidder, shall be conclusively deemed to be the fair market value
of the Collateral and the difference between such bid amount and the remaining
balance of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this Section 12, notwithstanding that any present
or future law or court decision or ruling may have the effect of reducing the
amount of any deficiency claim to which Agent or any Lender might otherwise be
entitled but for such bidding at any such sale.
12.6 Limitation. Notwithstanding any provision herein
contained to the contrary, each Borrower's liability under this Section 12
(which liability is in any event in addition to amounts for which such Borrower
is primarily liable under Section 1) shall be limited to an amount not to exceed
as of any date of determination the greater of:
(a) the net amount of all Loans advanced to any other
Borrower under this Agreement and then re-loaned or otherwise transferred to, or
for the benefit of, such Borrower; and
(b) the amount that could be claimed by Agent and Lenders
from such Borrower under this Section 12 without rendering such claim voidable
or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law after taking into account, among other
things, such Borrower's right of contribution and indemnification from each
other Borrower under Section 12.7.
12.7 Contribution with Respect to Guaranty Obligations.
(a) To the extent that any Borrower shall make a payment
under this Section 12 of all or any of the Obligations (other than Loans made to
that Borrower for which it is primarily liable) (a "Guarantor Payment") that,
taking into account all other Guarantor Payments then previously or concurrently
made by any other Borrower, exceeds the amount that such Borrower would
otherwise have paid if each Borrower had paid the aggregate Obligations
satisfied by such Guarantor Payment in the same proportion that such Borrower's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Borrowers as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Obligations
and termination of the Revolving Loan Commitments, such Borrower shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Borrower for the amount of such excess, pro rata based
upon their respective Allocable Amounts in effect immediately prior to such
Guarantor Payment.
(b) As of any date of determination, the "Allocable
Amount" of any Borrower shall be equal to the maximum amount of the claim that
could then be recovered from such Borrower under this Section 12 without
rendering such claim voidable or avoidable under
65
Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state
Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar
statute or common law.
(c) This Section 12.7 is intended only to define the
relative rights of Borrowers and nothing set forth in this Section 12.7 is
intended to or shall impair the obligations of Borrowers, jointly and severally,
to pay any amounts as and when the same shall become due and payable in
accordance with the terms of this Agreement, including Section 12.1. Nothing
contained in this Section 12.7 shall limit the liability of any Borrower to pay
the Loans made directly or indirectly to that Borrower and accrued interest,
Fees and expenses with respect thereto for which such Borrower shall be
primarily liable.
(d) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets of the
Borrower to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Borrowers against
other Credit Parties under this Section 12.7 shall be exercisable upon the full
and indefeasible payment of the Obligations and the termination of the Revolving
Loan Commitments.
12.8 Liability Cumulative. The liability of Borrowers
under this Section 12 is in addition to and shall be cumulative with all
liabilities of each Borrower to Agent and Lenders under this Agreement and the
other Loan Documents to which such Borrower is a party or in respect of any
Obligations or obligation of the other Borrower, without any limitation as to
amount, unless the instrument or agreement evidencing or creating such other
liability specifically provides to the contrary.
66
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the date first written above.
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH
AMERICA, INC., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Duly Authorized Signatory
LASALLE BUSINESS CREDIT, LLC,
as Lender
By: /s/ ▇▇▇▇▇ Jamniziak
----------------------------------------
Name: ▇▇▇▇▇ Jamniziak
--------------------------------------
Title: Vice President
-------------------------------------
NATIONAL CITY BANK OF INDIANA, as
67
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Assistant Vice President
--------------------------------------
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: First Vice President
--------------------------------------
68
The following Persons are signatories to this Agreement in
their capacity as Credit Parties or Loan Parties and not as Borrowers.
BRIGHTPOINT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General
Counsel & Secretary
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
69
BRIGHTPOINT ACTIVATION SERVICES LLC
By: BRIGHTPOINT NORTH AMERICA, L.P.,
its sole member and sole manager
By: Brightpoint North America, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
70
ANNEX A (RECITALS)
TO
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have
(unless otherwise provided elsewhere in the Loan Documents) the following
respective meanings, and all references to Sections, Exhibits, Schedules or
Annexes in the following definitions shall refer to Sections, Exhibits,
Schedules or Annexes of or to the Agreement:
"Account Debtor" means any Person who may become obligated to
any Credit Party under, with respect to, or on account of, an Account, Chattel
Paper or General Intangibles (including a payment intangible).
"Accounting Changes" has the meaning ascribed thereto in Annex
G.
""Accounts" means all "accounts," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, including (a) all
accounts receivable, other receivables, book debts and other forms of
obligations (other than forms of obligations evidenced by Chattel Paper, or
Instruments), (including any such obligations that may be characterized as an
account or contract right under the Code), (b) all of each Credit Party's rights
in, to and under all purchase orders or receipts for goods or services, (c) all
of each Credit Party's rights to any goods represented by any of the foregoing
(including unpaid sellers' rights of rescission, replevin, reclamation and
stoppage in transit and rights to returned, reclaimed or repossessed goods), (d)
all rights to payment due to any Credit Party for property sold, leased,
licensed, assigned or otherwise disposed of, for a policy of insurance issued or
to be issued, for a secondary obligation incurred or to be incurred, for energy
provided or to be provided, for the use or hire of a vessel under a charter or
other contract, arising out of the use of a credit card or charge card, or for
services rendered or to be rendered by such Credit Party or in connection with
any other transaction (whether or not yet earned by performance on the part of
such Credit Party), (e) all health care insurance receivables and (f) all
collateral security and guaranties of any kind, given by any Account Debtor or
any other Person with respect to any of the foregoing.
"Advance" means any Revolving Credit Advance or Swing Line
Advance, as the context may require.
"Affiliate" means, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially, or as a
trustee, guardian or other fiduciary, 5% or more of the Stock having ordinary
voting power in the election of directors of such Person, (b) each Person that
controls, is controlled by or is under common control with such Person, (c) each
of such Person's officers, directors, joint venturers and partners and (d) in
the case of Borrowers, the immediate family members, spouses and lineal
descendants of individuals who are Affiliates of any Borrower. For the purposes
of this definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management
71
or policies, whether through the ownership of voting securities, by contract or
otherwise; provided, however, that the term "Affiliate" shall specifically
exclude Agent and each Lender.
"Agent" means GE Capital in its capacity as Agent for Lenders
or its successor appointed pursuant to Section 9.7.
"Aggregate Borrowing Base" means as of any date of
determination, an amount equal to (i) the sum of the Brightpoint Borrowing Base
and the Wireless Borrowing Base; less (ii) any Reserves except to the extent
already deducted therefrom.
"Agreement" means the Credit Agreement by and among Borrowers,
the other Credit Parties party thereto, GE Capital, as Agent and Lender and the
other Lenders from time to time party thereto, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Appendices" has the meaning ascribed to it in the recitals to
the Agreement.
"Applicable Index Margin" means the per annum interest rate
margin from time to time in effect and payable in addition to the Index Rate
applicable to the Revolving Loan, as determined by reference to Section 1.5(a).
"Applicable L/C Margin" means the per annum fee, from time to
time in effect, payable with respect to outstanding Letter of Credit Obligations
as determined by reference to Section 1.5(a).
"Applicable LIBOR Margin" means the per annum interest rate
from time to time in effect and payable in addition to the LIBOR Rate applicable
to the Revolving Loan, as determined by reference to Section 1.5(a).
"Applicable Margins" means collectively the Applicable L/C
Margin, the Applicable Unused Line Fee Margin, the Applicable Index Margin and
the Applicable LIBOR Margin.
"Applicable Unused Line Fee Margin" means the per annum fee,
from time to time in effect, payable in respect of Borrowers' non-use of
committed funds pursuant to Section 1.9(b), which fee is determined by reference
to Section 1.5(a).
"A Rated Bank" has the meaning ascribed to it in Section 6.2.
"Assignment Agreement" has the meaning ascribed to it in
Section 9.1(a).
"Average 30-Day Borrowing Availability" means as of any date
of determination, for either Borrower or both Borrowers, as applicable, the
arithmetic average of the Borrowing Availability during the thirty (30) days
then ended.
A-2
"Average 60-Day Borrowing Availability" means as of any date
of determination, for either Borrower or both Borrowers, as applicable, the
arithmetic average of the Borrowing Availability during the sixty (60) days then
ended.
"Bankruptcy Code" means the provisions of Title 11 of the
United States Code, 11 U.S.C. Sections 101 et seq.
"BAS" means Brightpoint Activation Services LLC, an Indiana
limited liability company.
"Blocked Accounts" has the meaning ascribed to it in Annex C.
"Borrower Representative" means Brightpoint in its capacity as
Borrower Representative pursuant to the provisions of Section 1.1(c).
"Borrower Security Agreement" means that certain security
agreement dated as of the Closing Date by and among Agent, on behalf of itself
and Lenders, and Borrowers
"Borrowers" and "Borrower" have the respective meanings
ascribed thereto in the preamble to the Agreement.
"Borrowing Availability" means as of any date of determination
(a) as to all Borrowers, the lesser of (i) the Maximum Amount and (ii) the
Aggregate Borrowing Base, in each case, less the sum of the aggregate Revolving
Loan and Swing Line Loan then outstanding, or (b) as to an individual Borrower,
the lesser of (i) the Maximum Amount less the sum of the Revolving Loan and
Swing Line Loan outstanding to all other Borrowers and (ii) that Borrower's
separate Borrowing Base, less the sum of the Revolving Loan and Swing Line Loan
outstanding to that Borrower; provided that an Overadvance in accordance with
Section 1.1(a)(iii) may cause the Revolving Loan and the Swing Line Loan to
exceed the Aggregate Borrowing Base or a Borrower's separate Borrowing Base by
the amount of such permitted Overadvance.
"Borrowing Base" means as the context may require, the
Brightpoint Borrowing Base, the Wireless Borrowing Base or any such Borrowing
Base.
"Borrowing Base Certificate" means a certificate to be
executed and delivered from time to time by each Borrower in the form attached
to the Agreement as Exhibit 4.1(b).
"BPI" means Brightpoint, Inc., a Delaware corporation.
"BPI Allocated Expenses" means with respect to any Borrower
for any fiscal period, those expenses accrued by BPI and allocated to such
Borrower for the purpose of being expensed and paid by such Borrower, which
allocation shall be determined in good faith by such Borrower by dividing such
Borrower's revenue by total revenue of BPI and its consolidated Subsidiaries and
multiplying by the amount of expenses incurred by BPI.
"BPI Intercompany Loans" has the meaning set forth in Section
6.14(g).
A-3
"BPI Pledge Agreement" means the Pledge Agreement dated as of
the Closing Date executed by BPI in favor of Agent, or behalf of itself and
Lenders, pledging the Stock of each of Brightpoint, Brightpoint Holdings and
Wireless Holdings.
"BPI Unallocated Expense Balance" means at any time, the
aggregate payments made after the Closing Date by Borrowers to BPI and payments
made by Borrowers to third parties on behalf of BPI other than those payments
made in respect to (i) BPI Allocated Expenses, (ii) BPI Intercompany Loans, and
(iii) dividends and distributions to pay taxes, less any cash payments made
after the Closing Date by BPI to Borrowers in order to reimburse Borrowers for
payments made by Borrowers with respect to such payment.
"Brightpoint" means Brightpoint North America L.P., a Delaware
limited partnership.
"Brightpoint Borrowing Base" means, as of any date of
determination by Agent, from time to time, an amount equal to the sum at such
time of:
(a) up to 85% of the book value of Brightpoint's Eligible
Accounts; and
(b) the lesser of (i) up to 60% of the book value of
Brightpoint's Eligible Inventory valued at the lower of cost
(determined on a first-in, first-out basis) or market, (ii) if
applicable, up to 85% of the Net Recovery Liquidation Value of
Brightpoint's Eligible Inventory, (iii) the amount determined pursuant
to clause (a) above and (iv) $30,000,000;
in each case, less any Reserves established by Agent at such time, Reserves for
duties, customs brokers, freight, taxes, insurance and other Charges and
expenses pertaining to such Inventory.
"Brightpoint Holdings" means Brightpoint North America, Inc.,
an Indiana corporation.
"Brightpoint Holdings Pledge Agreement" means the Pledge
Agreement dated as of the Closing Date executed by Brightpoint Holdings in favor
of Agent, on behalf of itself and Lenders, pledging all Stock of its
Subsidiaries and all Intercompany Notes owing to or held by it.
"Brightpoint International" means Brightpoint International
Ltd., a Delaware corporation.
"Brightpoint International Pledge Agreement" means the Pledge
Agreement dated as of the Closing Date executed by Brightpoint International in
favor of Agent, on behalf of itself and Lenders, pledging all Stock of Wireless
and all Intercompany Notes owing to or held by it.
"Brightpoint Pledge Agreement" means the Pledge Agreement
dated as of the Closing Date executed by Brightpoint in favor of Agent, on
behalf of itself and Lenders, pledging all Stock of its Subsidiaries, if any,
and all Intercompany Notes owing to or held by it.
A-4
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which banks are required or permitted to be closed in the States of
Illinois or New York and in reference to LIBOR Loans shall mean any such day
that is also a LIBOR Business Day.
"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of Indebtedness) by
such Person during any measuring period for any fixed assets or improvements or
for replacements, substitutions or additions thereto that have a useful life of
more than one year and that are required to be capitalized under GAAP.
"Capital Lease" means, with respect to any Person, any lease
of any property (whether real, personal or mixed) by such Person as lessee that,
in accordance with GAAP, would be required to be classified and accounted for as
a capital lease on a balance sheet of such Person.
"Capital Lease Obligation" means, with respect to any Capital
Lease of any Person, the amount of the obligation of the lessee thereunder that,
in accordance with GAAP, would appear on a balance sheet of such lessee in
respect of such Capital Lease.
"Cash Collateral Account" has the meaning ascribed to it Annex
B.
"Cash Equivalents" has the meaning ascribed to it in Annex B.
"Cash Management Systems" has the meaning ascribed to it in
Section 1.8.
"Change of Control" means any of the following: (a) any person
or group of persons (within the meaning of the Securities Exchange Act of 1934,)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934,) of 20% or more of the issued and outstanding shares of
capital Stock of BPI having the right to vote for the election of directors of
BPI under ordinary circumstances; (b) during any period of twelve consecutive
calendar months, individuals who at the beginning of such period constituted the
board of directors of BPI (together with any new directors whose election by the
board of directors of BPI or whose nomination for election by the Stockholders
of BPI was approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the directors
then in office; (c) BPI ceases to own and control, directly or indirectly, all
of the economic and voting rights associated with all of the outstanding capital
Stock of each Borrower; (d) BPI ceases to directly own and control all of the
economic and voting rights associated with all of the outstanding Stock of
Brightpoint Holdings, Wireless Holdings and Brightpoint International; (e) BPI
and Brightpoint Holdings cease to directly own and control all of the economic
and voting rights associated with all of the outstanding Stock of each
Brightpoint; (f) Brightpoint International and Wireless Holdings cease to
directly own and control all of the economic and voting rights associated with
all of the outstanding Stock of Wireless; or (g) Brightpoint ceases to directly
own
A-5
and control all of the economic and voting rights associated with all of the
outstanding Stock of BAS.
"Charges" means all federal, state, county, city, municipal,
local, foreign or other governmental taxes (including taxes owed to the PBGC at
the time due and payable), levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c)
the employees, payroll, income or gross receipts of any Credit Party, (d) any
Credit Party's ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party's business.
"Chattel Paper" means any "chattel paper," as such term is
defined in the Code, including electronic chattel paper, now owned or hereafter
acquired by any Credit Party, wherever located.
"Closing Date" means October 31, 2001.
"Closing Checklist" means the schedule, including all
appendices, exhibits or schedules thereto, listing certain documents and
information to be delivered in connection with the Agreement, the other Loan
Documents and the transactions contemplated thereunder, substantially in the
form attached hereto as Annex D.
"Code" means the Uniform Commercial Code as the same may, from
time to time, be enacted and in effect in the State of Illinois; provided, that
to the extent that the Code is used to define any term herein or in any other
Loan Document and such term is defined differently in different Articles or
Divisions of the Code, the definition of such term contained in Article or
Division 9 shall govern; provided further, that in the event that, by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of, or remedies with respect to, Agent's or any Lender's Lien on any
Collateral is governed by the Uniform Commercial Code as enacted and in effect
in a jurisdiction other than the State of Illinois, the term "Code" shall mean
the Uniform Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions thereof relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to such
provisions.
"Collateral" means the property covered by the Security
Agreements, the Mortgages and the other Collateral Documents and any other
property, real or personal, tangible or intangible, now existing or hereafter
acquired, that may at any time be or become subject to a security interest or
Lien in favor of Agent, on behalf of itself and Lenders, to secure the
Obligations.
"Collateral Documents" means the Security Agreements, the
Pledge Agreements, the Guaranties, the Mortgages, the Patent Security Agreement,
the Trademark Security Agreement, the Copyright Security Agreement and all
similar agreements entered into guaranteeing payment of, or granting a Lien upon
property as security for payment of, the Obligations.
A-6
"Collateral Reports" means the reports with respect to the
Collateral referred to in Annex F.
"Collection Account" means that certain account of Agent,
account number ▇▇▇-▇▇▇-▇▇ in the name of Agent at DeutscheBank Trust Company
Americas in New York, New York ABA No. 021 001 033, or such other account as may
be specified in writing by Agent as the "Collection Account.".
"Commitment Termination Date" means the earliest of (a) ▇▇▇▇▇
▇▇, ▇▇▇▇, (▇) the date of termination of Lenders' obligations to make Advances
and to incur Letter of Credit Obligations or permit existing Loans to remain
outstanding pursuant to Section 8.2(b), and (c) the date of indefeasible
prepayment in full by Borrowers of the Loans and the cancellation and return (or
stand-by guarantee) of all Letters of Credit or the cash collateralization of
all Letter of Credit Obligations pursuant to Annex B, and the permanent
reduction of all Revolving Loan Commitments to zero dollars ($0).
"Compliance Certificate" has the meaning ascribed to it in
Annex E.
"Concentration Accounts" has the meaning ascribed to it in
Annex C.
"Contracts" means all "contracts," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, in any event,
including all contracts, undertakings, or agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or interest, including
any agreement relating to the terms of payment or the terms of performance of
any Account.
"Control Letter" means a letter agreement between Agent and
(i) the issuer of uncertificated securities with respect to uncertificated
securities in the name of any Credit Party, (ii) a securities intermediary with
respect to securities, whether certificated or uncertificated, securities
entitlements and other financial assets held in a securities account in the name
of any Credit Party, (iii) a futures commission merchant or clearing house, as
applicable, with respect to commodity accounts and commodity contracts held by
any Credit Party, whereby, among other things, the issuer, securities
intermediary or futures commission merchant disclaims any security interest in
the applicable financial assets, acknowledges the Lien of Agent, on behalf of
itself and Lenders, on such financial assets, and agrees to follow the
instructions or entitlement orders of Agent without further consent by the
affected Credit Party.
"Copyright License" means any and all rights now owned or
hereafter acquired by any Credit Party under any written agreement granting any
right to use any Copyright or Copyright registration.
"Copyright Security Agreements" means the Copyright Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"Copyrights" means all of the following now owned or hereafter
adopted or acquired by any Credit Party: (a) all copyrights and General
Intangibles of like nature (whether
A-7
registered or unregistered), all registrations and recordings thereof, and all
applications in connection therewith, including all registrations, recordings
and applications in the United States Copyright Office or in any similar office
or agency of the United States, any state or territory thereof, or any other
country or any political subdivision thereof, and (b) all reissues, extensions
or renewals thereof.
"Credit Parties" means each Holding Company, each Borrower and
each of Borrowers' Subsidiaries including, without limitation, BAS.
"Default" means any event that, with the passage of time or
notice or both, would, unless cured or waived, become an Event of Default.
"Default Rate" has the meaning ascribed to it in Section
1.5(d).
"Deposit Accounts" means all "deposit accounts" as such term
is defined in the Code, now or hereafter held in the name of any Credit Party.
"Disbursement Accounts" has the meaning ascribed to it in
Annex C.
"Disclosure Schedules" means the Schedules prepared by
Borrowers and denominated as Disclosure Schedules (1.4) through (6.7) in the
Index to the Agreement.
"Documents" means all "documents," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located.
"Dollars" or "$" means lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any fiscal
period, without duplication, an amount equal to (a) consolidated net income of
such Person for such period determined in accordance with GAAP, minus (b) the
sum of (i) income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, (iv) any aggregate net gain (but not any
aggregate net loss) during such period arising from the sale, exchange or other
disposition of capital assets by such Person (including any fixed assets,
whether tangible or intangible, all inventory sold in conjunction with the
disposition of fixed assets and all securities), (v) any non-cash income
allocated to such Person from BPI, and (vi) any other non-cash gains that have
been added in determining consolidated net income, in each case to the extent
included in the calculation of consolidated net income of such Person for such
period in accordance with GAAP, but without duplication, plus (c) the sum of (i)
any provision for income taxes, (ii) Interest Expense, (iii) loss from
extraordinary items for such period to the extent agreed to by Agent, (iv) the
amount of non-cash charges (including depreciation and amortization) for such
period, (v) amortized debt discount for such period, and (vi) the amount of any
deduction to consolidated net income as the result of any grant to any members
of the management of such Person of any Stock, in each case to the extent
included in the calculation of consolidated net income of such Person for such
period in accordance with GAAP, but without duplication. For purposes of this
definition, the following items shall be excluded in determining consolidated
net income of a Person: (1) the income (or deficit) of any other Person accrued
prior to the date it became a
A-8
Subsidiary of, or was merged or consolidated into, such Person or any of such
Person's Subsidiaries; (2) the income (or deficit) of any other Person (other
than a Subsidiary) in which such Person has an ownership interest, except to the
extent any such income has actually been received by such Person in the form of
cash dividends or distributions; (3) the undistributed earnings of any
Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation or requirement of law
applicable to such Subsidiary; (4) any restoration to income of any contingency
reserve, except to the extent that provision for such reserve was made out of
income accrued during such period; (5) any write-up of any asset; (6) any net
gain from the collection of the proceeds of life insurance policies; (7) any net
gain arising from the acquisition of any securities, or the extinguishment,
under GAAP, of any Indebtedness, of such Person, (8) in the case of a successor
to such Person by consolidation or merger or as a transferee of its assets, any
earnings of such successor prior to such consolidation, merger or transfer of
assets, and (9) any deferred credit representing the excess of equity in any
Subsidiary of such Person at the date of acquisition of such Subsidiary over the
cost to such Person of the investment in such Subsidiary.
"Eligible Accounts" has the meaning ascribed to it in Section
1.6.
"Eligible Inventory" has the meaning ascribed to it in Section
1.7.
"Environmental Laws" means all applicable federal, state,
local and foreign laws, statutes, ordinances, codes, rules, standards and
regulations, now or hereafter in effect, and any applicable judicial or
administrative interpretation thereof, including any applicable judicial or
administrative order, consent decree, order or judgment, imposing liability or
standards of conduct for or relating to the regulation and protection of human
health, safety, the environment and natural resources (including ambient air,
surface water, groundwater, wetlands, land surface or subsurface strata,
wildlife, aquatic species and vegetation). Environmental Laws include the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. Sections 9601 et seq.) ("CERCLA"); the Hazardous Materials
Transportation Authorization Act of 1994 (49 U.S.C. Sections 5101 et seq.); the
Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sections 136 et
seq.); the Solid Waste Disposal Act (42 U.S.C. Sections 6901 et seq.); the Toxic
Substance Control Act (15 U.S.C. Sections 2601 et seq.); the Clean Air Act (42
U.S.C. Sections 7401 et seq.); the Federal Water Pollution Control Act (33
U.S.C. Sections 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C.
Sections 651 et seq.); and the Safe Drinking Water Act (42 U.S.C. Sections
300(f) et seq.), and any and all regulations promulgated thereunder, and all
analogous state, local and foreign counterparts or equivalents and any transfer
of ownership notification or approval statutes.
"Environmental Liabilities" means, with respect to any Person,
all liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all reasonable fees, disbursements and expenses of counsel, experts
and consultants), fines, penalties, sanctions and interest incurred as a result
of or related to any claim,
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suit, action, investigation, proceeding or demand by any Person, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute or common law, including any arising under or related to any
Environmental Laws, Environmental Permits, or in connection with any Release or
threatened Release or presence of a Hazardous Material whether on, at, in,
under, from or about or in the vicinity of any real or personal property.
"Environmental Permits" means all permits, licenses,
authorizations, certificates, approvals or registrations required by any
Governmental Authority under any Environmental Laws.
"Equipment" means all "equipment," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located
and, in any event, including all such Credit Party's machinery and equipment,
including processing equipment, conveyors, machine tools, data processing and
computer equipment, including embedded software and peripheral equipment and all
engineering, processing and manufacturing equipment, office machinery,
furniture, materials handling equipment, tools, attachments, accessories,
automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor
vehicles, rolling stock and other equipment of every kind and nature, trade
fixtures and fixtures not forming a part of real property, together with all
additions and accessions thereto, replacements therefor, all parts therefor, all
substitutes for any of the foregoing, fuel therefor, and all manuals, drawings,
instructions, warranties and rights with respect thereto, and all products and
proceeds thereof and condemnation awards and insurance proceeds with respect
thereto.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any regulations promulgated thereunder.
"ERISA Affiliate" means, with respect to any Credit Party, any
trade or business (whether or not incorporated) that, together with such Credit
Party, are treated as a single employer within the meaning of Sections 414(b),
(c), (m) or (o) of the IRC.
"ERISA Event" means, with respect to any Credit Party or any
ERISA Affiliate, (a) with respect to a Title IV Plan, any event described in
Section 4043(c) of ERISA for which notice to the PBGC has not been waived; (b)
the withdrawal of any Credit Party or ERISA Affiliate from a Title IV Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of any Credit Party or any ERISA Affiliate from
any Multiemployer Plan; (d) the filing of a notice of intent to terminate a
Title IV Plan in a distress termination described in Section 4041(c) of ERISA or
the treatment of a plan amendment as a termination under Section 4041 of ERISA;
(e) the institution of proceedings to terminate a Title IV Plan or Multiemployer
Plan by the PBGC; (f) with respect to a Title IV Plan, the existence of an
"accumulated funding deficiency" (as defined in Section 412 of the IRC or
Section 302 of ERISA) whether or not waived, or the failure to make by its due
date a required installment under Section 412(m) of the Code or the failure to
make any required contribution to a Multiemployer Plan; (g) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a
waiver of the minimum funding standard with respect to a Title IV Plan; (h) the
making of any
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amendment to any Title IV Plan which could result in the imposition of a lien or
the posting of a bond or other security; (i) with respect to a Title IV Plan an
event described in Section 4062(e) of ERISA; (j) any other event or condition
that might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Title IV Plan or Multiemployer Plan or for the imposition of liability under
Section 4069 or 4212(c) of ERISA; (k) the termination of a Multiemployer Plan
under Section 4041A of ERISA or the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or 4245 of ERISA; (l) the loss of a
Qualified Plan's qualification or tax exempt status; or (m) the termination of a
Plan described in Section 4064 of ERISA.
"Event of Default" has the meaning ascribed to it in Section
8.1.
"Fair Labor Standards Act" means the Fair Labor Standards Act,
29 U.S.C. Section 201 et seq.
"FCC" means the Federal Communications Commission (or any
successor agency, commission, bureau, department or other political subdivision
of the United States of America.
"Federal Funds Rate" means, for any day, a floating rate equal
to the weighted average of the rates on overnight Federal funds transactions
among members of the Federal Reserve System, as determined by Agent in its sole
discretion, which determination shall be final, binding and conclusive (absent
manifest error).
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fees" means any and all fees payable to Agent or any Lender
pursuant to the Agreement or any of the other Loan Documents.
"Financial Covenants" means the financial covenants set forth
in Annex G.
"Financial Statements" means the consolidated and
consolidating income statements, statements of cash flows and balance sheets of
Borrowers delivered in accordance with Section 3.4 and Annex E.
"Fiscal Month" means any of the monthly accounting periods of
Borrowers.
"Fiscal Quarter" means any of the quarterly accounting periods
of Borrowers, ending on March 31, June 30, September 30 and December 31 of each
year.
"Fiscal Year" means any of the annual accounting periods of
Borrowers ending on December 31 of each year.
"Fixed Charges" means, with respect to any Person for any
fiscal period, (a) the aggregate of all Interest Expense paid or accrued during
such period, plus (b) scheduled
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payments of principal with respect to Indebtedness during such period, plus (c)
Capital Expenditures.
"Fixed Charge Coverage Ratio" means, with respect to any
Person for any fiscal period, the ratio of Free Cash Flow to Fixed Charges.
"Fixtures" means all "fixtures" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party.
"Free Cash Flow" means, with respect to any Person for any
fiscal period, the aggregate of EBITDA minus taxes accrued or paid during such
period minus the increase in BPI Unallocated Expense Balance during such period.
"Funded Debt" means, with respect to any Person, without
duplication, all Indebtedness for borrowed money evidenced by notes, bonds,
debentures, or similar evidences of Indebtedness that by its terms matures more
than one year from, or is directly or indirectly renewable or extendible at such
Person's option under a revolving credit or similar agreement obligating the
lender or lenders to extend credit over a period of more than one year from the
date of creation thereof, and specifically including Capital Lease Obligations,
current maturities of long-term debt, revolving credit and short-term debt
extendible beyond one year at the option of the debtor, and also including, in
the case of Borrowers, the Obligations and, without duplication, Guaranteed
Indebtedness consisting of guaranties of Funded Debt of other Persons.
"GAAP" means generally accepted accounting principles in the
United States of America consistently applied, as such term is further defined
in Annex G to the Agreement.
"GE Capital" means General Electric Capital Corporation, a
Delaware corporation.
"GE Capital Fee Letter" means that certain letter, dated as of
March 18, 2004, between GE Capital and Borrowers with respect to certain Fees to
be paid from time to time by Borrowers to GE Capital.
"General Intangibles" means all "general intangibles," as such
term is defined in the Code, now owned or hereafter acquired by any Credit
Party, including all right, title and interest that such Credit Party may now or
hereafter have in or under any Contract, all payment intangibles, customer
lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor
and reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark License), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights,
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all liability, life, key man and business interruption insurance, and all
unearned premiums), uncertificated securities, chooses in action, deposit,
checking and other bank accounts, rights to receive tax refunds and other
payments, rights to receive dividends, distributions, cash, Instruments and
other property in respect of or in exchange for pledged Stock and Investment
Property, rights of indemnification, all books and records, correspondence,
credit files, invoices and other papers, including without limitation all tapes,
cards, computer runs and other papers and documents in the possession or under
the control of such Credit Party or any computer bureau or service company from
time to time acting for such Credit Party.
"Goods" means all "goods" as defined in the Code, now owned or
hereafter acquired by any Credit Party, wherever located, including embedded
software to the extent included in "goods" as defined in the Code.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, and any agency, department or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guaranteed Indebtedness" means as to any Person, any
obligation of such Person guaranteeing, providing comfort or otherwise
supporting any Indebtedness, lease, dividend, or other obligation ("primary
obligation") of any other Person (the "primary obligor") in any manner,
including any obligation or arrangement of such Person to (a) purchase or
repurchase any such primary obligation, (b) advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency or any balance sheet condition of the primary obligor, (c)
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, (d) protect the beneficiary of such
arrangement from loss (other than product warranties given in the ordinary
course of business) or (e) indemnify the owner of such primary obligation
against loss in respect thereof. The amount of any Guaranteed Indebtedness at
any time shall be deemed to be an amount equal to the lesser at such time of (x)
the stated or determinable amount of the primary obligation in respect of which
such Guaranteed Indebtedness is incurred and (y) the maximum amount for which
such Person may be liable pursuant to the terms of the instrument embodying such
Guaranteed Indebtedness, or, if not stated or determinable, the maximum
reasonably anticipated liability (assuming full performance) in respect thereof.
"Guaranties" means, collectively, the Holding Company
Guaranty, the Subsidiary Guaranty, and any other guaranty executed by any
Guarantor in favor of Agent and Lenders in respect of the Obligations.
"Guarantors" means each Holding Company and each other Person,
if any, that executes a guaranty or other similar agreement in favor of Agent,
for itself and the ratable benefit of Lenders, in connection with the
transactions contemplated by the Agreement and the other Loan Documents
including, without limitation, BAS.
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"Hazardous Material" means any substance, material or waste
that is regulated by, or forms the basis of liability now or hereafter under,
any Environmental Laws, including any material or substance that is (a) defined
as a "solid waste," "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste," "restricted hazardous waste,"
"pollutant," "contaminant," "hazardous constituent," "special waste," "toxic
substance" or other similar term or phrase under any Environmental Laws, or (b)
petroleum or any fraction or by-product thereof, asbestos, polychlorinated
biphenyls (PCB's), or any radioactive substance.
"Hedging Obligations" means up to $25,000,000 in notional
amount of obligations owed to Agent or any Lender under swap agreements (as such
term is defined in Section 101 of the Bankruptcy Code) and any other agreements
or arrangements designed to provide protection against fluctuations in interest
or currency exchange rates.
"Holding Company" and "Holding Companies" have the respective
meanings ascribed thereto in the preamble to the Agreement.
"Holding Company Guaranty" means that certain guaranty dated
as of the Closing Date by the Holding Companies of Borrower in favor of Agent,
on behalf of itself and Lenders.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property payment for which is deferred 6 months or
more, but excluding obligations to trade creditors incurred in the ordinary
course of business that are unsecured and not overdue by more than 6 months
unless being contested in good faith, (b) all reimbursement and other
obligations with respect to letters of credit, bankers' acceptances and surety
bonds, whether or not matured, (c) all obligations evidenced by notes, bonds,
debentures or similar instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations and the present
value (discounted at the Index Rate as in effect on the Closing Date) of future
rental payments under all synthetic leases, (f) all obligations of such Person
under commodity purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all obligations of
such Person under any foreign exchange contract, currency swap agreement,
interest rate swap, cap or collar agreement or other similar agreement or
arrangement designed to alter the risks of that Person arising from fluctuations
in currency values or interest rates, in each case whether contingent or
matured, (h) all Indebtedness referred to above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property or other assets (including accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, and (i) the
Obligations.
"Indemnified Liabilities" has the meaning ascribed to it in
Section 1.13.
"Indemnified Person" has the meaning ascribed to in Section
1.13.
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"Index Rate" means, for any day, a floating rate equal to the
higher of (i) the rate publicly quoted from time to time by The Wall Street
Journal as the "prime rate" (or, if The Wall Street Journal ceases quoting a
"prime rate", the highest per annum rate of interest published by the Federal
Reserve Board in Federal Reserve statistical release H.15 (519) entitled
"Selected Interest Rates" as the Bank prime loan rate or its equivalent), and
(ii) the Federal Funds Rate plus 50 basis points per annum. Each change in any
interest rate provided for in the Agreement based upon the Index Rate shall take
effect at the time of such change in the Index Rate.
"Index Rate Loan" means a Loan or portion thereof bearing
interest by reference to the Index Rate.
"Instruments" means all "instruments," as such term is defined
in the Code, now owned or hereafter acquired by any Credit Party, wherever
located, and, in any event, including all certificated securities, all
certificates of deposit, and all notes and other, without limitation, evidences
of indebtedness, other than instruments that constitute, or are a part of a
group of writings that constitute, Chattel Paper.
"Intellectual Property" means any and all Licenses, Patents,
Copyrights, Trademarks, and the goodwill associated with such Trademarks.
"Intercompany Notes" means demand notes to evidence any
intercompany Indebtedness owing at any time by any Credit Party to another
Credit Party, which Intercompany Notes shall be in form and substance
satisfactory to Agent.
"Interest Expense" means, with respect to any Person for any
fiscal period, interest expense (whether cash or non-cash) of such Person
determined in accordance with GAAP for the relevant period ended on such date,
including, interest expense with respect to any Funded Debt of such Person and
interest expense for the relevant period that has been capitalized on the
balance sheet of such Person.
"Interest Payment Date" means (a) as to any Index Rate Loan,
the first Business Day of each month to occur while such Loan is outstanding,
and (b) as to any LIBOR Loan, the last day of the applicable LIBOR Period;
provided that, in addition to the foregoing, each of (x) the date upon which all
of the Revolving Loan Commitments have been terminated and the Loans have been
paid in full and (y) the Commitment Termination Date shall be deemed to be an
"Interest Payment Date" with respect to any interest that has then accrued under
the Agreement.
"Inventory" means all "inventory," as such term is defined in
the Code, now owned or hereafter acquired by any Credit Party, wherever located,
and in any event including inventory, merchandise, goods and other personal
property that are held by or on behalf of any Credit Party for sale or lease or
are furnished or are to be furnished under a contract of service, or that
constitute raw materials, work in process, finished goods, returned goods, or
materials or supplies of any kind, nature or description used or consumed or to
be used or consumed in such
A-15
Credit Party's business or in the processing, production, packaging, promotion,
delivery or shipping of the same, including other supplies and embedded
software.
"Investment Property" means all "investment property" as such
term is defined in the Code now owned or hereafter acquired by any Credit Party,
wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities account
and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all commodity accounts
held by any Credit Party.
"IRC" means the Internal Revenue Code of 1986 and all
regulations promulgated thereunder.
"IRS" means the Internal Revenue Service.
"L/C Issuer" has the meaning ascribed to it in Annex B. "L/C
Sublimit" has the meaning ascribed to it in Annex B.
"Lease Expenses" means, with respect to any Person for any
fiscal period, the aggregate rental obligations of such Person determined in
accordance with GAAP which are payable in respect of such period under leases of
real or personal property (net of income from subleases thereof, but including
taxes, insurance, maintenance and similar expenses that the lessee is obligated
to pay under the terms of such leases), whether or not such obligations are
reflected as liabilities or commitments on a consolidated balance sheet of such
Person or in the notes thereto, excluding, however, any such obligations under
Capital Leases.
"Lenders" means GE Capital, the other Lenders named on the
signature pages of the Agreement, and, if any such Lender shall decide to assign
all or any portion of the Obligations, such term shall include any assignee of
such Lender.
"Letter of Credit Fee" has the meaning ascribed to it in Annex
B.
"Letter of Credit Obligations" means all outstanding
obligations incurred by Agent and Lenders at the request of Borrower
Representative, whether direct or indirect, contingent or otherwise, due or not
due, in connection with the issuance of Letters of Credit by Agent or another
L/C Issuer or the purchase of a participation as set forth in Annex B with
respect to any Letter of Credit. The amount of such Letter of Credit Obligations
shall equal the maximum amount that may be payable at such time or at any time
thereafter by Agent or Lenders thereupon or pursuant thereto.
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"Letters of Credit" means documentary or standby letters of
credit issued for the account of any Borrower by any L/C Issuer, and bankers'
acceptances issued by any Borrower, for which Agent and Lenders have incurred
Letter of Credit Obligations.
"LIBOR Business Day" means a Business Day on which banks in
the City of London are generally open for interbank or foreign exchange
transactions.
"LIBOR Loan" means a Loan or any portion thereof bearing
interest by reference to the LIBOR Rate.
"LIBOR Period" means, with respect to any LIBOR Loan, each
period commencing on a LIBOR Business Day selected by Borrower Representative
pursuant to the Agreement and ending one, two or three months thereafter, as
selected by Borrower Representative's irrevocable notice to Agent as set forth
in Section 1.5(e); provided, that the foregoing provision relating to LIBOR
Periods is subject to the following:
(a) if any LIBOR Period would otherwise end on a day that
is not a LIBOR Business Day, such LIBOR Period shall be extended to the
next succeeding LIBOR Business Day unless the result of such extension
would be to carry such LIBOR Period into another calendar month in
which event such LIBOR Period shall end on the immediately preceding
LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond
the Commitment Termination Date shall end two (2) LIBOR Business Days
prior to such date;
(c) any LIBOR Period that begins on the last LIBOR
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
LIBOR Period) shall end on the last LIBOR Business Day of a calendar
month;
(d) Borrower Representative shall select LIBOR Periods so
as not to require a payment or prepayment of any LIBOR Loan during a
LIBOR Period for such Loan; and
(e) Borrower Representative shall select LIBOR Periods so
that there shall be no more than 5 separate LIBOR Loans in existence at
any one time.
"LIBOR Rate" means for each LIBOR Period, a rate of interest
determined by Agent equal to:
(a) the offered rate for deposits in United States
Dollars for the applicable LIBOR Period that appears on Telerate Page
3750 as of 11:00 a.m. (London time), on the second full LIBOR Business
Day next preceding the first day of such LIBOR Period (unless such date
is not a Business Day, in which event the next succeeding Business Day
will be used); divided by
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(b) a number equal to 1.0 minus the aggregate (but
without duplication) of the rates (expressed as a decimal fraction) of
reserve requirements in effect on the day that is two (2) LIBOR
Business Days prior to the beginning of such LIBOR Period (including
basic, supplemental, marginal and emergency reserves under any
regulations of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as now and from
time to time in effect) for Eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of the Federal Reserve
Board that are required to be maintained by a member bank of the
Federal Reserve System.
If such interest rates shall cease to be available from
Telerate News Service (or its successor satisfactory to Agent), the LIBOR Rate
shall be determined from such financial reporting service or other information
as shall be mutually acceptable to Agent and Borrower Representative.
"License" means any Copyright License, Patent License,
Trademark License or other license of rights or interests now held or hereafter
acquired by any Credit Party.
"Lien" means any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, easement or encumbrance, or preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any lease or title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of, or agreement to give, any financing statement perfecting a security interest
under the Code or comparable law of any jurisdiction).
"Litigation" has the meaning ascribed to it in Section 3.13.
"Loan Account" has the meaning ascribed to it in Section 1.12.
"Loan Documents" means the Agreement, the Notes, the
Collateral Documents, the Master Standby Agreement, the Master Documentary
Agreement, and all other agreements, instruments, documents and certificates
identified in the Closing Checklist executed and delivered to, or in favor of,
Agent or any Lenders and including all other pledges, powers of attorney,
consents, assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Credit Party, or
any employee of any Credit Party, and delivered to Agent or any Lender in
connection with the Agreement or the transactions contemplated thereby. Any
reference in the Agreement or any other Loan Document to a Loan Document shall
include all appendices, exhibits or schedules thereto, and all amendments,
restatements, supplements or other modifications thereto, and shall refer to the
Agreement or such Loan Document as the same may be in effect at any and all
times such reference becomes operative.
"Loan Parties" means the Credit Parties other than BPI or
Brightpoint International.
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"Loans" means the Revolving Loan and the Swing Line Loan.
"Lock Boxes" has the meaning ascribed to it in Annex C.
"Margin Stock" has the meaning ascribed to in Section 3.10.
"Major Agreements" means any agreement or contract between any
Loan Party and any Person that provides for the distribution by the Loan Parties
of wireless communications handsets if, during the 180 calendar days immediately
preceding the Restatement Date not less than fifty percent (50%) of all wireless
communications handsets distributed by the Loan Parties were manufactured or
supplied to the Loan Parties by such Person.
"Master Documentary Agreement" means the Master Agreement for
Documentary Letters of Credit dated as of the Closing Date among Borrowers, as
Applicants, and GE Capital.
"Master Standby Agreement" means the Master Agreement for
Standby Letters of Credit dated as of the Closing Date among Borrowers, as
Applicants, and GE Capital, as issuer.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or financial or other condition
of any Credit Party, (b) any Borrower's or Credit Party's ability to pay any of
the Loans or any of the other Obligations in accordance with the terms of the
Agreement, (c) the Collateral or Agent's Liens, on behalf of itself and Lenders,
on the Collateral or the priority of such Liens, or (d) Agent's or any Lender's
rights and remedies under the Agreement and the other Loan Documents. Any event
or occurrence adverse to one or more Credit Parties which results or could
reasonably be expected to result in costs and/or liabilities or loss of
revenues, individually or in the aggregate, to any Credit Party in any 30-day
period in excess of the lesser of $10,000,000 and 20% of Borrowing Availability
as of any date of determination shall constitute a Material Adverse Effect.
"Maximum Amount" means, as of any date of determination, an
amount equal to the Revolving Loan Commitment of all Lenders as of that date.
"Mortgaged Properties" has the meaning assigned to it in
Section 5.11.
"Mortgages" means each of the mortgages, deeds of trust,
leasehold mortgages, leasehold deeds of trust, collateral assignments of leases
or other real estate security documents delivered by any Credit Party to Agent
on behalf of itself and Lenders with respect to the Mortgaged Properties, all in
form and substance reasonably satisfactory to Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Sections 3(37) or 4001(a)(3) of ERISA, and to which any Credit Party or ERISA
Affiliate is making, is obligated to make or has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of them.
"Net Recovery Liquidation Value" means, at any time, with
respect to any Inventory, the net liquidation value expressed as a percentage of
such Inventory as then most
A-19
recently determined, based on (i) an inventory appraisal performed by an
independent inventory appraisal firm satisfactory to the Agent and (ii) field
examinations by the Agent.
"Net Worth" means, with respect to any Person as of any date
of determination, the book value of the assets of such Person, minus the sum of
(a) reserves applicable thereto, and (b) all of such Person's liabilities on a
consolidated basis (including accrued and deferred income taxes), all as
determined in accordance with GAAP.
"Non-Funding Lender" has the meaning ascribed to it in Section
9.9(a)(ii).
"Notes" means, collectively, the Revolving Notes and the Swing
Line Notes.
"Notice of Conversion/Continuation" has the meaning ascribed
to it in Section 1.5(e).
"Notice of Revolving Credit Advance" has the meaning ascribed
to it in Section 1.1(a).
"Obligations" means all loans, advances, debts, liabilities
and obligations for the performance of covenants, tasks or duties or for payment
of monetary amounts (whether or not such performance is then required or
contingent, or such amounts are liquidated or determinable) owing by any Credit
Party to Agent or any Lender, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by
any note, agreement or other instrument, arising under the Agreement or any of
the other Loan Documents. This term includes all principal, interest (including
all interest that accrues after the commencement of any case or proceeding by or
against any Credit Party in bankruptcy, whether or not allowed in such case or
proceeding), Fees, Charges, expenses, attorneys' fees and any other sum
chargeable to any Credit Party under the Agreement or any of the other Loan
Documents. This term also includes the Hedging Obligations.
"Overadvance" has the meaning ascribed to it in Section
1.1(a)(iii).
"Patent License" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right with respect
to any invention on which a Patent is in existence.
"Patent Security Agreements" means the Patent Security
Agreements made in favor of Agent, on behalf of itself and Lenders, by each
applicable Credit Party.
"Patents" means all of the following in which any Credit Party
now holds or hereafter acquires any interest: (a) all letters patent of the
United States or of any other country, all registrations and recordings thereof,
and all applications for letters patent of the United States or of any other
country, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State, or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.
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"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a Plan described in Section 3(2) of
ERISA.
"Permitted Encumbrances" means the following encumbrances: (a)
Liens for taxes or assessments or other governmental Charges not yet due and
payable or which are being contested in accordance with Section 5.2(b); (b)
pledges or deposits of money securing statutory obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation (excluding Liens under ERISA); (c) pledges or deposits of
money securing bids, tenders, contracts (other than contracts for the payment of
money) or leases to which any Credit Party is a party as lessee made in the
ordinary course of business; (d) inchoate and unperfected workers', mechanics'
or similar liens arising in the ordinary course of business, so long as such
Liens attach only to Equipment, Fixtures and/or Real Estate; (e) carriers',
warehousemen's, suppliers' or other similar possessory liens arising in the
ordinary course of business and securing liabilities in an outstanding aggregate
amount not in excess of $100,000 at any time, so long as such Liens attach only
to Inventory; (f) deposits securing, or in lieu of, surety, appeal or customs
bonds in proceedings to which any Credit Party is a party; (g) any attachment or
judgment lien not constituting an Event of Default under Section 8.1(j); (h)
zoning restrictions, easements, licenses, or other restrictions on the use of
any Real Estate or other minor irregularities in title (including leasehold
title) thereto, so long as the same do not materially impair the use, value, or
marketability of such Real Estate; (i) presently existing or hereafter created
Liens in favor of Agent, on behalf of Lenders; and (j) Liens expressly permitted
under clauses (b) and (c) of Section 6.7 of the Agreement.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, public benefit corporation,
other entity or government (whether federal, state, county, city, municipal,
local, foreign, or otherwise, including any instrumentality, division, agency,
body or department thereof).
"Plan" means, at any time, an "employee benefit plan", as
defined in Section 3(3) of ERISA, that any Credit Party or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to or has
maintained, contributed to or had an obligation to contribute to at any time
within the past three (3) years on behalf of participants who are or were
employed by any Credit Party or ERISA Affiliate.
"Pledge Agreements" means, collectively, the BPI Pledge
Agreement, the Brightpoint Holdings Pledge Agreement, the Wireless Holdings
Pledge Agreement, the Brightpoint International Pledge Agreement, the
Brightpoint Pledge Agreement, the Wireless Pledge Agreement and any pledge
agreements entered into after the Restatement Date by any Credit Party (as
required by the Agreement or any other Loan Document).
"Prior Credit Agreement" has the meaning ascribed to it in the
Recitals hereto.
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"Proceeds" means "proceeds," as such term is defined in the
Code, including (a) any and all proceeds of any insurance, indemnity, warranty
or guaranty payable to any Credit Party from time to time with respect to any of
the Collateral, (b) any and all payments (in any form whatsoever) made or due
and payable to any Credit Party from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any Person acting under
color of governmental authority), (c) any claim of any Credit Party against
third parties (i) for past, present or future infringement of any Patent or
Patent License, or (ii) for past, present or future infringement or dilution of
any Copyright, Copyright License, Trademark or Trademark License, or for injury
to the goodwill associated with any Trademark or Trademark License, (d) any
recoveries by any Credit Party against third parties with respect to any
litigation or dispute concerning any of the Collateral, including claims arising
out of the loss or nonconformity of, interference with the use of, defects in,
or infringement of rights in, or damage to, Collateral, (e) all amounts
collected on, or distributed on account of, other Collateral, including
dividends, interest, distributions and Instruments with respect to Investment
Property and pledged Stock, and (f) any and all other amounts, rights to payment
or other property acquired upon the sale, lease, license, exchange or other
disposition of Collateral and all rights arising out of Collateral.
"Projections" means Borrowers' forecasted consolidated and
consolidating: (a) balance sheets; (b) profit and loss statements; (c) cash flow
statements; and (d) capitalization statements, all prepared on a Subsidiary by
Subsidiary or division-by-division basis, if applicable, and otherwise
consistent with the historical Financial Statements of the Borrowers, together
with appropriate supporting details and a statement of underlying assumptions.
"Pro Rata Share" means with respect to all matters relating to
any Lender, (a) the percentage obtained by dividing (i) the Revolving Loan
Commitment of that Lender by (ii) the aggregate Revolving Loan Commitments of
all Lenders, and (b) on and after the Commitment Termination Date, the
percentage obtained by dividing (i) the aggregate outstanding principal balance
of the Loans held by that Lender, by (ii) the outstanding principal balance of
the Loans held by all Lenders.
"Qualified Assignee" means (a) any Lender, any Affiliate of
any Lender and, with respect to any Lender that is an investment fund that
invests in commercial loans, any other investment fund that invests in
commercial loans and that is managed or advised by the same investment advisor
as such Lender or by an Affiliate of such investment advisor, and (b) any
commercial bank, savings and loan association or savings bank or any other
entity which is an "accredited investor" (as defined in Regulation D under the
Securities Act of 1933) which extends credit or buys loans as one of its
businesses, including insurance companies, mutual funds, lease financing
companies and commercial finance companies, in each case, which has a rating of
BBB or higher from S&P and a rating of Baa2 or higher from ▇▇▇▇▇'▇ at the date
that it becomes a Lender and which, through its applicable lending office, is
capable of lending to Borrowers without the imposition of any withholding or
similar taxes; provided that no Person determined by Agent to be acting in the
capacity of a vulture fund or distressed debt purchaser shall be a Qualified
Assignee, and no Person or Affiliate of such Person (other than a Person that
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is already a Lender) holding Subordinated Debt or Stock issued by any Credit
Party shall be a Qualified Assignee.
"Qualified Plan" means a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the IRC.
"Real Estate" has the meaning ascribed to it in Section 3.6.
"Refunded Swing Line Loan" has the meaning ascribed to it in
Section 1.1(c)(iii).
"Release" means any release, threatened release, spill,
emission, leaking, pumping, pouring, emitting, emptying, escape, injection,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of
Hazardous Material in the indoor or outdoor environment, including the movement
of Hazardous Material through or in the air, soil, surface water, ground water
or property.
"Requisite Lenders" means Lenders having (a) at least 66 2/3%
of the Revolving Loan Commitments of all Lenders, or (b) if the Revolving Loan
Commitments have been terminated, at least 66 2/3% of the aggregate outstanding
amount of all Loans.
"Reserves" means (a) reserves established by Agent from time
to time against Eligible Inventory pursuant to Section 5.9, (b) reserves
established pursuant to Section 5.4(c), and (c) such other reserves against
Eligible Accounts, Eligible Inventory or Borrowing Availability of any Borrower
that Agent may, in its reasonable credit judgment, establish from time to time.
Without limiting the generality of the foregoing, Reserves established to ensure
the payment of accrued Interest Expenses or Indebtedness shall be deemed to be a
reasonable exercise of Agent's credit judgment.
"Restricted Payment" means, with respect to any Credit Party
(a) the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other property or
assets in respect of Stock; (b) any payment on account of the purchase,
redemption, defeasance, sinking fund or other retirement of such Credit Party's
Stock or any other payment or distribution made in respect thereof, either
directly or indirectly; (c) any payment or prepayment of principal of, premium,
if any, or interest, fees or other charges on or with respect to, and any
redemption, purchase, retirement, defeasance, sinking fund or similar payment
and any claim for rescission with respect to, any Subordinated Debt; (d) any
payment made to redeem, purchase, repurchase or retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire Stock
of such Credit Party now or hereafter outstanding; (e) any payment of a claim
for the rescission of the purchase or sale of, or for material damages arising
from the purchase or sale of, any shares of such Credit Party's Stock or of a
claim for reimbursement, indemnification or contribution arising out of or
related to any such claim for damages or rescission; (f) any payment, loan,
contribution, or other transfer of funds or other property to any Stockholder of
such Credit Party other than payment of compensation in the ordinary course of
business to Stockholders who are employees of such
A-23
Person; and (g) any payment of management fees (or other fees of a similar
nature) by such Credit Party to any Stockholder of such Credit Party or its
Affiliates.
"Retiree Welfare Plan" means, at any time, a welfare plan
(within the meaning of Section 3(1) of ERISA) that provides for continuing
coverage or benefits for any participant or any beneficiary of a participant
after such participant's termination of employment, other than continuation
coverage provided pursuant to Section 4980B of the IRC or other similar state
law and at the sole expense of the participant or the beneficiary of the
participant.
"Revolving Credit Advance" has the meaning ascribed to it in
Section 1.1(a)(i).
"Revolving Loan" means, at any time, the sum of (i) the
aggregate amount of Revolving Credit Advances outstanding to Borrowers plus (ii)
the aggregate Letter of Credit Obligations incurred on behalf of Borrowers.
Unless the context otherwise requires, references to the outstanding principal
balance of the Revolving Loan shall include the outstanding balance of Letter of
Credit Obligations.
"Revolving Loan Commitment" means (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances or incur
Letter of Credit Obligations as set forth on Annex J to the Agreement or in the
most recent Assignment Agreement executed by such Lender and (b) as to all
Lenders, the aggregate commitment of all Lenders to make Revolving Credit
Advances or incur Letter of Credit Obligations, which aggregate commitment shall
be Seventy Million Dollars ($70,000,000) on the Restatement Date, and as such
amount may be adjusted, if at all, from time to time in accordance with the
Agreement.
"Revolving Note" has the meaning ascribed to it in Section
1.1(a)(ii).
"Security Agreements" means (i) the Borrower Security
Agreement and (ii) the Subsidiary Security Agreement.
"Software" means all "software" as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, other than software
embedded in any category of Goods, including all computer programs and all
supporting information provided in connection with a transaction related to any
program.
"Solvent" means, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person; (b) the present fair salable value of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature; and (d) such Person is not engaged in a business or transaction, and is
not about to engage in a business or transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities (such as litigation,
A-24
guaranties and pension plan liabilities) at any time shall be computed as the
amount that, in light of all the facts and circumstances existing at the time,
represents the amount that can be reasonably be expected to become an actual or
matured liability.
"Stock" means all shares, options, warrants, general or
limited partnership interests, membership interests or other equivalents
(regardless of how designated) of or in a corporation, partnership, limited
liability company or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934).
"Stockholder" means, with respect to any Person, each holder
of Stock of such Person.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which an aggregate of more than 50% of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of 50% or more of such Stock whether by proxy, agreement,
operation of law or otherwise, and (b) any partnership or limited liability
company in which such Person and/or one or more Subsidiaries of such Person
shall have an interest (whether in the form of voting or participation in
profits or capital contribution) of more than 50% or of which any such Person is
a general partner or may exercise the powers of a general partner. Unless the
context otherwise requires, each reference to a Subsidiary shall be a reference
to a Subsidiary of a Borrower.
"Subsidiary Guaranty" means that certain guaranty dated as of
July 7, 2003 by BAS in favor of Agent, on behalf of itself and Lenders.
"Subsidiary Security Agreement" means that certain security
agreement dated as of July 7, 2003 entered into by and among Agent, on behalf of
itself and Lenders, and each Subsidiary that is a signatory thereto including,
without limitation, BAS.
"Supermajority Lenders" means Lenders having (a) 85% or more
of the Revolving Loan Commitments of all Lenders, or (b) if the Revolving Loan
Commitments have been terminated, 85% or more of the aggregate outstanding
amount of the Revolving Loan (with the Swing Line Loan being attributed to the
Lender making such Loan) and Letter of Credit Obligations.
"Supporting Obligations" means all "supporting obligations" as
such term is defined in the Code, including letters of credit and guaranties
issued in support of Accounts, Chattel Paper, Documents, General Intangibles,
Instruments, or Investment Property.
A-25
"Swing Line Advance" has the meaning ascribed to it in Section
1.1(b)(i).
"Swing Line Availability" has the meaning ascribed to it in
Section 1.1(b)(i).
"Swing Line Commitment" means, as to the Swing Line Lender,
the commitment of the Swing Line Lender to make Swing Line Advances as set forth
on Annex J to the Agreement, which commitment constitutes a subfacility of the
Revolving Loan Commitment of the Swing Line Lender.
"Swing Line Lender" means GE Capital.
"Swing Line Loan" means, as the context may require, at any
time, the aggregate amount of Swing Line Advances outstanding to any Borrower or
to all Borrowers.
"Swing Line Note" has the meaning ascribed to it in Section
1.1(b)(ii).
"Tangible Net Worth" means, with respect to any Person at any
date, the Net Worth of such Person at such date; excluding, however, from the
determination of the total assets at such date, (a) all goodwill, capitalized
organizational expenses, capitalized research and development expenses,
trademarks, trade names, copyrights, patents, patent applications, licenses and
rights in any thereof, and other intangible items, (b) treasury Stock, and (c)
any write-up in the book value of any asset resulting from a revaluation
thereof.
"Taxes" means taxes, levies, imposts, deductions, Charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on or measured by the net income of Agent or a Lender by the jurisdictions under
the laws of which Agent and Lenders are organized or conduct business or any
political subdivision thereof.
"Termination Date" means the date on which (a) the Loans have
been indefeasibly repaid in full, (b) all other Obligations under the Agreement
and the other Loan Documents have been completely discharged (c) all Letter of
Credit Obligations have been cash collateralized, canceled or backed by standby
letters of credit in accordance with Annex B, and (d) none of Borrowers shall
have any further right to borrow any monies under the Agreement.
"Title IV Plan" means a Pension Plan (other than a
Multiemployer Plan), that is subject to Title IV of ERISA or Section 412 of the
IRC, and that any Credit Party or ERISA Affiliate maintains, contributes to or
has an obligation to contribute to on behalf of participants who are or were
employed by any of them.
"Trademark License" means rights under any written agreement
now owned or hereafter acquired by any Credit Party granting any right to use
any Trademark.
"Trademark Security Agreements" means the Trademark Security
Agreements made in favor of Agent, on behalf of Lenders, by each applicable
Credit Party.
A-26
"Trademarks" means all of the following now owned or hereafter
existing or adopted or acquired by any Credit Party: (a) all trademarks, trade
names, corporate names, business names, trade styles, service marks, logos,
other source or business identifiers, prints and labels on which any of the
foregoing have appeared or appear, designs and general intangibles of like
nature (whether registered or unregistered), all registrations and recordings
thereof, and all applications in connection therewith, including registrations,
recordings and applications in the United States Patent and Trademark Office or
in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof; (b) all
reissues, extensions or renewals thereof; and (c) all goodwill associated with
or symbolized by any of the foregoing.
"Unfunded Pension Liability" means, at any time, the aggregate
amount, if any, of the sum of (a) the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, all determined as of the most recent valuation date for each such
Title IV Plan using the actuarial assumptions for funding purposes in effect
under such Title IV Plan, and (b) for a period of five (5) years following a
transaction which might reasonably be expected to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by any
Credit Party or any ERISA Affiliate as a result of such transaction.
"Wireless" means Wireless Fulfillment Services LLC, a
California limited liability company.
"Wireless Borrowing Base" means, as of any date of
determination by Agent, from time to time, an amount equal to the sum at such
time of:
(a) up to 85% of the book value of Wireless' Eligible
Accounts; and
(b) the lesser of (i) up to 60% of the book value of
Wireless' Eligible Inventory valued at the lower of cost (determined on
a first-in, first-out basis) or market; (ii) if applicable, up to 85%
of the Net Recovery Liquidation Value of Wireless' Eligible Inventory
and (iii) the amount determined pursuant to clause (a) above, and (iv)
$30,000,000, less the amount determined within subsection (b) of the
definition of "Brightpoint Borrowing Base".
in each case, less any Reserves established by Agent at such time.
"Wireless Holdings" means Wireless Fulfillment Services
Holdings, Inc., a Delaware corporation.
"Wireless Holdings Pledge Agreement" means the Pledge
Agreement dated as of the Closing Date executed by Wireless Holdings in favor of
Agent, on behalf of itself and Lenders, pledging all Stock of its Subsidiaries
and all Intercompany Notes owing to or held by it.
A-27
"Wireless Pledge Agreement" means the Pledge Agreement dated
as of the Closing Date executed by Wireless in favor of Agent, on behalf of
itself and Lenders, pledging all Stock of its Subsidiaries, if any, and all
Intercompany Notes owing to or held by it.
Rules of construction with respect to accounting terms used in
the Agreement or the other Loan Documents shall be as set forth in Annex G. All
other undefined terms contained in any of the Loan Documents shall, unless the
context indicates otherwise, have the meanings provided for by the Code as in
effect in the State of Illinois to the extent the same are used or defined
therein; in the event that any term is defined differently in different Articles
or Divisions of the Code, the definition contained in Article or Division 9
shall control. Unless otherwise specified, references in the Agreement or any of
the Appendices to a Section, subsection or clause refer to such Section,
subsection or clause as contained in the Agreement. The words "herein," "hereof"
and "hereunder" and other words of similar import refer to the Agreement as a
whole, including all Annexes, Exhibits and Schedules, as the same may from time
to time be amended, restated, modified or supplemented, and not to any
particular section, subsection or clause contained in the Agreement or any such
Annex, Exhibit or Schedule.
Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter genders. The words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; the word "or" is not exclusive; references to Persons include their
respective successors and assigns (to the extent and only to the extent
permitted by the Loan Documents) or, in the case of governmental Persons,
Persons succeeding to the relevant functions of such Persons; and all references
to statutes and related regulations shall include any amendments of the same and
any successor statutes and regulations. Whenever any provision in any Loan
Document refers to the knowledge (or an analogous phrase) of any Credit Party,
such words are intended to signify that such Credit Party has actual knowledge
or awareness of a particular fact or circumstance or that such Credit Party, if
it had exercised reasonable diligence, would have known or been aware of such
fact or circumstance.
A-28
ANNEX B (SECTION 1.2)
TO
CREDIT AGREEMENT
LETTERS OF CREDIT
(a) Issuance. Subject to the terms and conditions of the
Agreement, Agent and Lenders agree to incur, from time to time prior to the
Commitment Termination Date, upon the request of Borrower Representative on
behalf of the applicable Borrower and for such Borrower's account, Letter of
Credit Obligations by causing Letters of Credit to be issued by GE Capital or a
Subsidiary thereof or a bank or other legally authorized Person selected by or
acceptable to Agent in its sole discretion (each, an "L/C Issuer") for such
Borrower's account and guaranteed by Agent; provided, that if the L/C Issuer is
a Lender, then such Letters of Credit shall not be guaranteed by Agent but
rather each Lender shall, subject to the terms and conditions hereinafter set
forth, purchase (or be deemed to have purchased) risk participations in all such
Letters of Credit issued with the written consent of Agent, as more fully
described in paragraph (b)(ii) below. The aggregate amount of all such Letter of
Credit Obligations shall not at any time exceed the least of (i) Twenty Five
Million Dollars ($25,000,000) (the "L/C Sublimit") and (ii) the Maximum Amount
less the aggregate outstanding principal balance of the Revolving Credit
Advances and the Swing Line Loan, and (iii) the Aggregate Borrowing Base less
the aggregate outstanding principal balance of the Revolving Credit Advances and
the Swing Line Loan. Furthermore, the aggregate amount of any Letter of Credit
Obligations incurred on behalf of any Borrower shall not at any time exceed such
Borrower's separate Borrowing Base less the aggregate principal balance of the
Revolving Credit Advances and the Swing Line Loan to such Borrower. No such
Letter of Credit shall have an expiry date that is more than one year following
the date of issuance thereof, unless otherwise determined by the Agent, in its
sole discretion (including with respect to customary evergreen provisions), and
neither Agent nor Lenders shall be under any obligation to incur Letter of
Credit Obligations in respect of, or purchase risk participations in, any Letter
of Credit having an expiry date that is later than the Commitment Termination
Date.
(b) (i) Advances Automatic; Participations. In the event
that Agent or any Lender shall make any payment on or pursuant to any Letter of
Credit Obligation, such payment shall then be deemed automatically to constitute
a Revolving Credit Advance to the applicable Borrower under Section 1.1(a) of
the Agreement regardless of whether a Default or Event of Default has occurred
and is continuing and notwithstanding any Borrower's failure to satisfy the
conditions precedent set forth in Section 2, and each Lender shall be obligated
to pay its Pro Rata Share thereof in accordance with the Agreement. The failure
of any Lender to make available to Agent for Agent's own account its Pro Rata
Share of any such Revolving Credit Advance or payment by Agent under or in
respect of a Letter of Credit shall not relieve any other Lender of its
obligation hereunder to make available to Agent its Pro Rata Share thereof, but
no Lender shall be responsible for the failure of any other Lender to make
available such other Lender's Pro Rata Share of any such payment.
B-1
(ii) If it shall be illegal or unlawful for any
Borrower to incur Revolving Credit Advances as contemplated by paragraph (b)(i)
above because of an Event of Default described in Sections 8.1(h) or (i) or
otherwise or if it shall be illegal or unlawful for any Lender to be deemed to
have assumed a ratable share of the reimbursement obligations owed to an L/C
Issuer, or if the L/C Issuer is a Lender, then (A) immediately and without
further action whatsoever, each Lender shall be deemed to have irrevocably and
unconditionally purchased from Agent (or such L/C Issuer, as the case may be) an
undivided interest and participation equal to such Lender's Pro Rata Share
(based on the Revolving Loan Commitments) of the Letter of Credit Obligations in
respect of all Letters of Credit then outstanding and (B) thereafter,
immediately upon issuance of any Letter of Credit, each Lender shall be deemed
to have irrevocably and unconditionally purchased from Agent (or such L/C
Issuer, as the case may be) an undivided interest and participation in such
Lender's Pro Rata Share (based on the Revolving Loan Commitments) of the Letter
of Credit Obligations with respect to such Letter of Credit on the date of such
issuance. Each Lender shall fund its participation in all payments or
disbursements made under the Letters of Credit in the same manner as provided in
the Agreement with respect to Revolving Credit Advances.
(c) Cash Collateral.
(i) If Borrowers are required to provide cash
collateral for any Letter of Credit Obligations pursuant to the Agreement prior
to the Commitment Termination Date, each Borrower will pay to Agent for the
ratable benefit of itself and Lenders cash or cash equivalents acceptable to
Agent ("Cash Equivalents") in an amount equal to 105% or of the maximum amount
then available to be drawn under each applicable Letter of Credit outstanding
for the benefit of such Borrower. Such funds or Cash Equivalents shall be held
by Agent in a cash collateral account (the "Cash Collateral Account") maintained
at a bank or financial institution acceptable to Agent. The Cash Collateral
Account shall be in the name of the applicable Borrower and shall be pledged to,
and subject to the control of, Agent, for the benefit of Agent and Lenders, in a
manner satisfactory to Agent. Each Borrower hereby pledges and grants to Agent,
on behalf of itself and Lenders, a security interest in all such funds and Cash
Equivalents held in the Cash Collateral Account from time to time and all
proceeds thereof, as security for the payment of all amounts due in respect of
the Letter of Credit Obligations and other Obligations, whether or not then due.
The Agreement, including this Annex B, shall constitute a security agreement
under applicable law.
(ii) If any Letter of Credit Obligations, whether
or not then due and payable, shall for any reason be outstanding on the
Commitment Termination Date, Borrowers shall either (A) provide cash collateral
therefor in the manner described above, or (B) cause all such Letters of Credit
and guaranties thereof, if any, to be canceled and returned, or (C) deliver a
stand-by letter (or letters) of credit in guaranty of such Letter of Credit
Obligations, which stand-by letter (or letters) of credit shall be of like tenor
and duration (plus thirty (30) additional days) as, and in an amount equal to
105% of, the aggregate maximum amount then available to be drawn under, the
Letters of Credit to which such outstanding Letter of Credit Obligations relate
and shall be issued by a Person, and shall be subject to such terms and
conditions, as are be satisfactory to Agent in its sole discretion.
B-2
(iii) From time to time after funds are deposited
in the Cash Collateral Account by any Borrower, whether before or after the
Commitment Termination Date, Agent may apply such funds or Cash Equivalents then
held in the Cash Collateral Account to the payment of any amounts, and in such
order as Agent may elect, as shall be or shall become due and payable by such
Borrower to Agent and Lenders with respect to such Letter of Credit Obligations
of such Borrower and, upon the satisfaction in full of all Letter of Credit
Obligations of such Borrower, to any other Obligations of any Borrower then due
and payable.
(iv) No Borrower nor any Person claiming on
behalf of or through any Borrower shall have any right to withdraw any of the
funds or Cash Equivalents held in the Cash Collateral Account, except that upon
the termination of all Letter of Credit Obligations and the payment of all
amounts payable by Borrowers to Agent and Lenders in respect thereof, any funds
remaining in the Cash Collateral Account shall be applied to other Obligations
then due and owing and upon payment in full of such Obligations, any remaining
amount shall be paid to Borrowers or as otherwise required by law. Interest
earned on deposits in the Cash Collateral Account shall be for the account of
Agent.
(d) Fees and Expenses. Borrowers agree to pay to Agent
for the benefit of Lenders, as compensation to such Lenders for Letter of Credit
Obligations incurred hereunder, (i) all costs and expenses incurred by Agent or
any Lender on account of such Letter of Credit Obligations, and (ii) for each
month during which any Letter of Credit Obligation shall remain outstanding, a
fee (the "Letter of Credit Fee") in an amount equal the Applicable L/C Margin
from time to time in effect multiplied by the maximum amount available from time
to time to be drawn under the applicable Letter of Credit. Such fee shall be
paid to Agent for the benefit of the Lenders in arrears, on the first day of
each month and on the Commitment Termination Date. In addition, Borrowers shall
pay to any L/C Issuer, on demand, such fees (including all per annum fees),
charges and expenses of such L/C Issuer in respect of the issuance, negotiation,
acceptance, amendment, transfer and payment of such Letter of Credit or
otherwise payable pursuant to the application and related documentation under
which such Letter of Credit is issued.
(e) Request for Incurrence of Letter of Credit
Obligations. Borrower Representative shall give Agent at least two (2) Business
Days' prior written notice requesting the incurrence of any Letter of Credit
Obligation. The notice shall be accompanied by the form of the Letter of Credit
(which shall be acceptable to the L/C Issuer) and a completed Application for
Standby Letter of Credit or Application and Agreement for Documentary Letter of
Credit or Application for Documentary Letter of Credit (as applicable) in the
form of Exhibit ▇-▇, ▇-▇ or B-3 attached hereto. Notwithstanding anything
contained herein to the contrary, Letter of Credit applications by Borrower
Representative and approvals by Agent and the L/C Issuer may be made and
transmitted pursuant to electronic codes and security measures mutually agreed
upon and established by and among Borrower Representative, Agent and the L/C
Issuer.
(f) Obligation Absolute. The obligation of Borrowers to
reimburse Agent and Lenders for payments made with respect to any Letter of
Credit Obligation shall be absolute, unconditional and irrevocable, without
necessity of presentment, demand, protest or other formalities, and the
obligations of each Lender to make payments to Agent with respect to Letters
B-3
of Credit shall be unconditional and irrevocable. Such obligations of Borrowers
and Lenders shall be paid strictly in accordance with the terms hereof under all
circumstances including the following:
(i) any lack of validity or enforceability of
any Letter of Credit or the Agreement or the other Loan
Documents or any other agreement;
(ii) the existence of any claim, setoff, defense
or other right that any Borrower or any of their respective
Affiliates or any Lender may at any time have against a
beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such transferee may be
acting), Agent, any Lender, or any other Person, whether in
connection with the Agreement, the Letter of Credit, the
transactions contemplated herein or therein or any unrelated
transaction (including any underlying transaction between any
Borrower or any of their respective Affiliates and the
beneficiary for which the Letter of Credit was procured);
(iii) any draft, demand, certificate or any other
document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect;
(iv) payment by Agent (except as otherwise
expressly provided in paragraph (g)(ii)(C) below) or any L/C
Issuer under any Letter of Credit or guaranty thereof against
presentation of a demand, draft or certificate or other
document that does not comply with the terms of such Letter of
Credit or such guaranty;
(v) any other circumstance or event whatsoever,
that is similar to any of the foregoing; or
(vi) the fact that a Default or an Event of
Default has occurred and is continuing.
(g) Indemnification; Nature of Lenders' Duties.
(i) In addition to amounts payable as elsewhere
provided in the Agreement, Borrowers hereby agree to pay and
to protect, indemnify, and save harmless Agent and each Lender
from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including
reasonable attorneys' fees and allocated costs of internal
counsel) that Agent or any Lender may incur or be subject to
as a consequence, direct or indirect, of (A) the issuance of
any Letter of Credit or guaranty thereof, or (B) the failure
of Agent or any Lender seeking indemnification or of any L/C
Issuer to honor a demand for payment under any Letter of
Credit or guaranty thereof as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure
or de facto government or Governmental Authority, in each case
other than to the extent solely as a result of the gross
negligence or willful misconduct of Agent or such Lender (as
finally determined by a court of competent jurisdiction).
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(ii) As between Agent and any Lender and Borrowers,
Borrowers assume all risks of the acts and omissions of, or misuse of any Letter
of Credit by beneficiaries, of any Letter of Credit. In furtherance and not in
limitation of the foregoing, to the fullest extent permitted by law, neither
Agent nor any Lender shall be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document issued by any
party in connection with the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective for any reason;
(C) failure of the beneficiary of any Letter of Credit to comply fully with
conditions required in order to demand payment under such Letter of Credit;
provided, that in the case of any payment by Agent under any Letter of Credit or
guaranty thereof, Agent shall be liable to the extent such payment was made
solely as a result of its gross negligence or willful misconduct (as finally
determined by a court of competent jurisdiction) in determining that the demand
for payment under such Letter of Credit or guaranty thereof complies on its face
with any applicable requirements for a demand for payment under such Letter of
Credit or guaranty thereof; (D) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they may be in cipher; (E) errors in interpretation of
technical terms; (F) any loss or delay in the transmission or otherwise of any
document required in order to make a payment under any Letter of Credit or
guaranty thereof or of the proceeds thereof; (G) the credit of the proceeds of
any drawing under any Letter of Credit or guaranty thereof; and (H) any
consequences arising from causes beyond the control of Agent or any Lender. None
of the above shall affect, impair, or prevent the vesting of any of Agent's or
any Lender's rights or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to
limit or to expand any waivers, covenants or indemnities made by Borrowers in
favor of any L/C Issuer in any letter of credit application, reimbursement
agreement or similar document, instrument or agreement between or among
Borrowers and such L/C Issuer, including an Application and Agreement For
Documentary Letter of Credit, a Master Documentary Agreement and a Master
Standby Agreement entered into with Agent.
B-5
ANNEX C (SECTION 1.8)
TO
CREDIT AGREEMENT
CASH MANAGEMENT SYSTEM
Each Borrower shall, and shall cause its Subsidiaries to,
establish and maintain the Cash Management Systems described below:
(a) On or before the Restatement Date and until the
Termination Date, each Borrower shall (i) establish lock boxes ("Lock Boxes") or
at Agent's discretion, blocked accounts ("Blocked Accounts") at one or more of
the banks set forth in Disclosure Schedule (3.19), and shall request in writing
and otherwise take such reasonable steps to ensure that all Account Debtors
forward payment directly to such Lock Boxes, and (ii) deposit and cause its
Subsidiaries to deposit or cause to be deposited promptly, and in any event no
later than the first Business Day after the date of receipt thereof, all cash,
checks, drafts or other similar items of payment relating to or constituting
payments made in respect of any and all Collateral (whether or not otherwise
delivered to a Lock Box) into one or more Blocked Accounts in such Borrower's
name or any such Subsidiary's name and at a bank identified in Disclosure
Schedule (3.19) (each, a "Relationship Bank"). On or before the Restatement
Date, each Borrower shall have established a concentration account in its name
(each a "Concentration Account" and collectively, the "Concentration Accounts")
at the bank or banks that shall be designated as the Concentration Account bank
for each such Borrower in Disclosure Schedule (3.19) (each a "Concentration
Account Bank" and collectively, the "Concentration Account Banks"), which banks
shall be reasonably satisfactory to Agent.
(b) Each Borrower may maintain, in its name, an account
(each a "Disbursement Account" and collectively, the "Disbursement Accounts") at
a bank reasonably acceptable to Agent into which Agent shall, from time to time,
deposit proceeds of Revolving Credit Advances and Swing Line Advances made to
such Borrower pursuant to Section 1.1 for use by such Borrower solely in
accordance with the provisions of Section 1.4.
(c) On or before the Restatement Date (or such later date
as Agent shall consent to in writing), each Concentration Account Bank, each
bank where a Disbursement Account is maintained and all other Relationship
Banks, shall have entered into tri-party blocked account agreements with Agent,
for the benefit of itself and Lenders, and the applicable Borrower and
Subsidiaries thereof, as applicable, in form and substance reasonably acceptable
to Agent, which shall become operative on or prior to the Restatement Date. Each
such blocked account agreement shall provide, among other things, that (i) all
items of payment deposited in such account and proceeds thereof deposited in the
applicable Concentration Account are held by such bank as agent or
bailee-in-possession for Agent, on behalf of itself and Lenders, (ii) the bank
executing such agreement has no rights of setoff or recoupment or any other
claim against
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such account, as the case may be, other than for payment of its service fees and
other charges directly related to the administration of such account and for
returned checks or other items of payment, and (iii) from and after the
Restatement Date (A) with respect to banks at which a Blocked Account is
maintained, such bank agrees to forward immediately all amounts in each Blocked
Account to such Borrower's Concentration Account Bank and to continue the
process of daily sweeps from such Blocked Account into the applicable
Concentration Account and (B) with respect to each Concentration Account Bank,
such bank agrees to immediately forward all amounts received in the applicable
Concentration Account to the Collection Account through daily sweeps from such
Concentration Account into the Collection Account. No Borrower shall, or shall
cause or permit any Subsidiary thereof to, accumulate or maintain cash in
Disbursement Accounts or payroll accounts as of any date of determination in
excess of checks outstanding against such accounts as of that date and amounts
necessary to meet minimum balance requirements.
(d) So long as no Default or Event of Default has
occurred and is continuing, Borrowers may amend Disclosure Schedule (3.19) to
add or replace a Relationship Bank, Lock Box or Blocked Account or to replace
any Concentration Account or any Disbursement Account; provided, that (i) Agent
shall have consented in writing in advance to the opening of such account or
Lock Box with the relevant bank and (ii) prior to the time of the opening of
such account or Lock Box, the applicable Borrower or its Subsidiaries, as
applicable, and such bank shall have executed and delivered to Agent a tri-party
blocked account agreement, in form and substance reasonably satisfactory to
Agent. Borrowers shall close any of their accounts (and establish replacement
accounts in accordance with the foregoing sentence) promptly and in any event
within thirty (30) days following notice from Agent that the creditworthiness of
any bank holding an account is no longer acceptable in Agent's reasonable
judgment, or as promptly as practicable and in any event within sixty (60) days
following notice from Agent that the operating performance, funds transfer or
availability procedures or performance with respect to accounts or Lock Boxes of
the bank holding such accounts or Agent's liability under any tri-party blocked
account agreement with such bank is no longer acceptable in Agent's reasonable
judgment.
(e) The Lock Boxes, Blocked Accounts, Disbursement
Accounts and the Concentration Accounts shall be cash collateral accounts, with
all cash, checks and other similar items of payment in such accounts securing
payment of the Loans and all other Obligations, and in which each Borrower and
each Subsidiary thereof shall have granted a Lien to Agent, on behalf of itself
and Lenders, pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall
be deemed received by Agent in accordance with Section 1.10 and shall be applied
(and allocated) by Agent in accordance with Section 1.11. In no event shall any
amount be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account.
(g) Each Borrower shall and shall cause its Affiliates,
officers, employees, agents, directors or other Persons acting for or in concert
with such Borrower (each a "Related
C-2
Person") to (i) hold in trust for Agent, for the benefit of itself and Lenders,
all checks, cash and other items of payment received by such Borrower or any
such Related Person, and (ii) within one (1) Business Day after receipt by such
Borrower or any such Related Person of any checks, cash or other items of
payment, deposit the same into a Blocked Account of such Borrower. Each Borrower
and each Related Person thereof acknowledges and agrees that all cash, checks or
other items of payment constituting proceeds of Collateral are part of the
Collateral. All proceeds of the sale or other disposition of any Collateral,
shall be deposited directly into the applicable Blocked Accounts.
C-3
ANNEX D (SECTION 2.1(a))
TO
CREDIT AGREEMENT
CLOSING CHECKLIST
In addition to, and not in limitation of, the conditions described in Section
2.1 of the Agreement, pursuant to Section 2.1(a), the following items must be
received by Agent in form and substance satisfactory to Agent on or prior to the
Restatement Date (each capitalized term used but not otherwise defined herein
shall have the meaning ascribed thereto in Annex A to the Agreement):
A. Appendices. All Appendices to the Agreement, in form
and substance satisfactory to Agent.
B. Revolving Notes and Swing Line Notes. Duly executed
originals of the Amended and Restated Revolving Notes and Amended and Restated
Swing Line Notes for each applicable Lender, dated the Restatement Date.
C. Security Agreement. Duly executed originals of the
Security Agreements, and all instruments, documents and agreements executed
pursuant thereto.
D. Insurance. Satisfactory evidence that the insurance
policies required by Section 5.4 are in full force and effect, together with
appropriate evidence showing loss payable and/or additional insured clauses or
endorsements, as requested by Agent, in favor of Agent, on behalf of Lenders.
E. Security Interests and Code Filings.
(a) Evidence satisfactory to Agent that Agent
(for the benefit of itself and Lenders) has a valid and perfected first priority
security interest in the Collateral, including (i) such documents duly executed
or authorized by each Credit Party (including financing statements under the
Code and other applicable documents under the laws of any jurisdiction with
respect to the perfection of Liens) as Agent may request in order to perfect its
security interests in the Collateral and (ii) copies of Code search reports
listing all effective financing statements that name any Credit Party as debtor,
together with copies of such financing statements, none of which shall cover the
Collateral, except for Permitted Encumbrances.
(b) Evidence satisfactory to Agent, including
copies, of all UCC-1 and other financing statements filed in favor of any Credit
Party with respect to each location, if any, at which Inventory may be
consigned.
(c) Control Letters from (i) all issuers of
uncertificated securities and financial assets held by each Borrower, (ii) all
securities intermediaries with respect to all securities accounts and securities
entitlements of each Borrower, and (iii) all futures commission
D-1
agents and clearing houses with respect to all commodities contracts and
commodities accounts held by any Borrower.
F. Intellectual Property Security Agreements. Duly
executed originals of Trademark Security Agreements, Copyright Security
Agreements and Patent Security Agreements, each dated the Closing Date (other
than the Amended and Restated Trademark Security Agreement of Brightpoint, which
shall be dated as of the Restatement Date) and signed by each Credit Party which
owns Trademarks, Copyrights and/or Patents, as applicable, all in form and
substance reasonably satisfactory to Agent, together with all instruments,
documents and agreements executed pursuant thereto.
G. Reaffirmation of Guaranties. Duly executed originals
of a reaffirmation of guaranty for each of (i) the Holding Company Guaranty, and
(ii) the Subsidiary Guaranty, each dated as of the Restatement Date.
H. Cash Management System; Blocked Account Agreements.
Evidence satisfactory to Agent that, as of the Restatement Date, Cash Management
Systems complying with Annex C to the Agreement have been established and are
currently being maintained in the manner set forth in such Annex C, together
with copies of duly executed tri-party blocked account and lock box agreements,
reasonably satisfactory to Agent, with the banks as required by Annex C.
I. Charter and Good Standing. For each Credit Party,
such Person's (a) charter and all amendments thereto, (b) good standing
certificates (including verification of tax status) in its state of
incorporation and (c) good standing certificates (including verification of tax
status) and certificates of qualification to conduct business in each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, each dated a recent date prior to the
Restatement Date and certified by the applicable Secretary of State or other
authorized Governmental Authority.
J. Bylaws and Resolutions. For each Credit Party, (a)
such Person's bylaws, together with all amendments thereto and (b) resolutions
of such Person's Board of Directors, approving and authorizing the execution,
delivery and performance of the Loan Documents to which such Person is a party
and the transactions to be consummated in connection therewith, each certified
as of the Restatement Date by such Person's corporate secretary or an assistant
secretary as being in full force and effect without any modification or
amendment.
K. Incumbency Certificates. For each Credit Party,
signature and incumbency certificates of the officers of each such Person
executing any of the Loan Documents, certified as of the Restatement Date by
such Person's corporate secretary or an assistant secretary as being true,
accurate, correct and complete.
L. Opinions of Counsel. Duly executed originals of
opinions of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Credit Parties, together with any
local counsel opinions reasonably requested by Agent, each in form and substance
reasonably satisfactory to Agent and its counsel,
D-2
dated the Restatement Date, and each accompanied by a letter addressed to such
counsel from the Credit Parties, authorizing and directing such counsel to
address its opinion to Agent, on behalf of Lenders, and to include in such
opinion an express statement to the effect that Agent and Lenders are authorized
to rely on such opinion.
M. Pledge Agreements. Duly executed originals of each of
the Pledge Agreements accompanied by (as applicable) (a) share certificates
representing all of the outstanding Stock being pledged pursuant to such Pledge
Agreement and stock powers for such share certificates executed in blank and (b)
the original Intercompany Notes and other instruments evidencing Indebtedness
being pledged pursuant to such Pledge Agreement, duly endorsed in blank.
N. Accountants' Letters. A letter from the Credit
Parties to their independent auditors authorizing the independent certified
public accountants of the Credit Parties to communicate with Agent in accordance
with Section 4.2.
O. Appointment of Agent for Service. An appointment of
CT Corporation as each Credit Party's agent for service of process.
P. Fee Letter. Duly executed originals of the GE Capital
Fee Letter.
Q. Officer's Certificate. Agent shall have received duly
executed originals of a certificate of the Chief Executive Officer and Chief
Financial Officer of each Borrower, dated the Restatement Date, stating that,
since December 31, 2002 (a) no event or condition has occurred or is existing
which could reasonably be expected to have a Material Adverse Effect; (b) there
has been no material adverse change in the industry in which any Borrower
operates; (c) no Litigation has been commenced which, if successful, would have
a Material Adverse Effect or could challenge any of the transactions
contemplated by the Agreement and the other Loan Documents; (d) there have been
no Restricted Payments made by any Credit Party; and (e) there has been no
material increase in liabilities, liquidated or contingent, and no material
decrease in assets of any Borrower or any of its Subsidiaries.
R. Waivers. Agent, on behalf of Lenders, shall have
received landlord waivers and consents, bailee letters and mortgagee agreements
in form and substance reasonably satisfactory to Agent, in each case as required
pursuant to Section 5.9.
S. Appraisals. Agent shall have received appraisals as
to all Equipment and as to each of the Mortgaged Properties, each of which shall
be in form and substance reasonably satisfactory to Agent.
T. Master Standby Agreement. A Master Agreement for
Standby Letters of Credit among Borrowers and GE Capital.
U. Master Documentary Agreement. A Master Agreement for
Documentary Letters of Credit among Borrowers and GE Capital.
D-3
V. Major Agreements. Certified copies of the Major
Agreements, the expiration dates of which shall be satisfactory to Agent.
W. Acknowledgements. Acknowledgements of Agent's
security interest by Nokia Mobile Phones, Inc. and other vendors as required by
Agent.
X. No-Offset Letters. No-offset letters executed by such
Account Debtors as required by Agent.
Y. Other Documents. Such other certificates, documents
and agreements respecting any Credit Party as Agent may, in its sole discretion,
request.
D-4
ANNEX E (SECTION 4.1(a))
TO
CREDIT AGREEMENT
FINANCIAL STATEMENTS AND PROJECTIONS -- REPORTING
Borrowers shall deliver or cause to be delivered to Agent or
to Agent and Lenders, as indicated, the following:
(a) Monthly Financials. To Agent and Lenders, within
thirty (30) days after the end of each Fiscal Month, financial information
regarding Borrowers and their Subsidiaries, certified by the Chief Financial
Officer of Borrower Representative, consisting of consolidated and consolidating
(i) unaudited balance sheets as of the close of such Fiscal Month and the
related statements of income and cash flows for that portion of the Fiscal Year
ending as of the close of such Fiscal Month; (ii) unaudited statements of income
and cash flows for such Fiscal Month, setting forth in comparative form the
figures for the corresponding period in the prior year and the figures contained
in the Projections for such Fiscal Year, all prepared in accordance with GAAP
(subject to the absence of footnotes and to normal year-end adjustments); and
(iii) a summary of the outstanding balance of all Intercompany Notes as of the
last day of that Fiscal Month. Such financial information shall be accompanied
by (A) a statement in reasonable detail (each, a "Compliance Certificate")
showing the calculations used in determining compliance with each Financial
Covenant that is tested on a monthly basis, and (B) the certification of the
Chief Financial Officer of Borrower Representative that (i) such financial
information presents fairly in accordance with GAAP (subject to the absence of
footnotes and to normal year-end adjustments) the financial position and results
of operations of Borrowers and their Subsidiaries, on a consolidated and
consolidating basis, in each case as at the end of such Fiscal Month and for
that portion of the Fiscal Year then ended and (ii) any other information
presented is true, correct and complete in all material respects and that there
was no Default or Event of Default in existence as of such time or, if a Default
or Event of Default has occurred and is continuing, describing the nature
thereof and all efforts undertaken to cure such Default or Event of Default.
(b) Quarterly Financials. To Agent and Lenders, within
forty-five (45) days after the end of each Fiscal Quarter, consolidated and
consolidating financial information regarding Borrowers and their Subsidiaries
and BPI and its Subsidiaries, certified by the Chief Financial Officer of
Borrower Representative, including (i) unaudited balance sheets as of the close
of such Fiscal Quarter and the related statements of income and cash flow for
that portion of the Fiscal Year ending as of the close of such Fiscal Quarter
and (ii) unaudited statements of income and cash flows for such Fiscal Quarter,
in each case setting forth in comparative form the figures for the corresponding
period in the prior year and the figures contained in the Projections for such
Fiscal Year, all prepared in accordance with GAAP (subject to the absence of
footnotes and to normal year-end adjustments). Such financial information shall
be accompanied by (A) a Compliance Certificate in respect of each of the
Financial Covenants that is tested on a quarterly basis and (B) the
certification of the Chief Financial Officer of Borrower Representative that (i)
such financial information presents fairly in accordance with GAAP (subject to
the absence of footnotes and to normal year-end adjustments) the financial
position, results of operations and
E-1
statements of cash flows of Borrowers and their Subsidiaries, on both a
consolidated and consolidating basis, as at the end of such Fiscal Quarter and
for that portion of the Fiscal Year then ended, (ii) any other information
presented is true, correct and complete in all material respects and that there
was no Default or Event of Default in existence as of such time or, if a Default
or Event of Default has occurred and is continuing, describing the nature
thereof and all efforts undertaken to cure such Default or Event of Default. In
addition, Borrowers shall deliver to Agent and Lenders, within forty-five (45)
days after the end of each Fiscal Quarter, a management discussion and analysis
that includes a comparison to budget for that Fiscal Quarter and a comparison of
performance for that Fiscal Quarter to the corresponding period in the prior
year. Furthermore, Borrowers shall deliver to Agent and Lenders within
forty-five (45) days after the end of each Fiscal Quarter, a statement in
reasonable detail showing the calculation used in determining compliance with
the Tangible Net Worth covenant of BPI and its Subsidiaries as set forth in
Section 8.1(o).
(c) Operating Budget. To Agent and Lenders, as soon as
available, but not later than thirty (30) days after the end of each Fiscal
Year, an annual operating budget for Borrowers, on a consolidated and
consolidating basis, approved by the Board of Directors of Borrowers, for the
following Fiscal Year, which (i) includes a statement of all of the material
assumptions on which such budget is based, (ii) includes monthly balance sheets,
income statements and statements of cash flows for the following year and (iii)
integrates sales, gross profits, operating expenses, operating profit, cash flow
projections and Borrowing Availability projections, all prepared on the same
basis and in similar detail as that on which operating results are reported (and
in the case of cash flow projections, representing management's good faith
estimates of future financial performance based on historical performance), and
including budgeted amounts for personnel, Capital Expenditures and facilities.
(d) Annual Audited Financials. To Agent and Lenders,
within ninety (90) days after the end of each Fiscal Year, audited Financial
Statements for Borrowers and their Subsidiaries on a consolidated and
(unaudited) consolidating basis and BPI and its Subsidiaries on a consolidated
basis, consisting of balance sheets and statements of income and retained
earnings and cash flows, setting forth in comparative form in each case the
figures for the previous Fiscal Year, which Financial Statements shall be
prepared in accordance with GAAP and certified without qualification, by an
independent certified public accounting firm of national standing or otherwise
acceptable to Agent. Such Financial Statements shall be accompanied by (i) a
statement prepared in reasonable detail showing the calculations used in
determining compliance with each of the Financial Covenants, (ii) a report from
such accounting firm to the effect that, in connection with their audit
examination, nothing has come to their attention to cause them to believe that a
Default or Event of Default has occurred (or specifying those Defaults and
Events of Default that they became aware of), it being understood that such
audit examination extended only to accounting matters and that no special
investigation was made with respect to the existence of Defaults or Events of
Default, (iii) a letter addressed to Agent, on behalf of itself and Lenders, in
form and substance reasonably satisfactory to Agent and subject to standard
qualifications required by nationally recognized accounting firms, signed by
such accounting firm acknowledging that Agent and Lenders are entitled to rely
upon such accounting firm's certification of such audited Financial Statements,
(iv) the annual letters to such
E-2
accountants in connection with their audit examination detailing contingent
liabilities and material litigation matters, and (v) the certification of the
Chief Executive Officer or Chief Financial Officer of Borrowers that all such
Financial Statements present fairly in accordance with GAAP the financial
position, results of operations and statements of cash flows of Borrowers and
their Subsidiaries on a consolidated and consolidating basis, as at the end of
such Fiscal Year and for the period then ended, and that there was no Default or
Event of Default in existence as of such time or, if a Default or Event of
Default has occurred and is continuing, describing the nature thereof and all
efforts undertaken to cure such Default or Event of Default.
(e) Reports on Internal Control. To Agent and Lenders,
within five (5) Business Days after receipt thereof by any Credit Party, copies
of all "Reports on Internal Control" received by such Credit Party from its
independent certified public accountants.
(f) Default Notices. To Agent and Lenders, as soon as
practicable, and in any event within five (5) Business Days after an executive
officer of any Borrower has actual knowledge of the existence of any Default,
Event of Default or other event that has had a Material Adverse Effect,
telephonic or telecopied notice specifying the nature of such Default or Event
of Default or other event, including the anticipated effect thereof, which
notice, if given telephonically, shall be promptly confirmed in writing on the
next Business Day.
(g) SEC Filings and Press Releases. To Agent and Lenders,
promptly upon their becoming available, copies of: (i) all Financial Statements,
reports, notices and proxy statements made publicly available by any Credit
Party to its security holders; (ii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any Credit Party with
any securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority; and (iii) all press releases and
other statements made available by any Credit Party to the public concerning
material changes or developments in the business of any such Person.
(h) Equity Notices. To Agent, as soon as practicable,
copies of all material written notices given or received by any Credit Party
with respect to any Stock of such Person.
(i) Supplemental Schedules. To Agent, supplemental
disclosures, if any, required by Section 5.6.
(j) Litigation. To Agent in writing, promptly upon
learning thereof, notice of any Litigation commenced or threatened against any
Credit Party that (i) seeks damages in excess of $250,000, (ii) seeks injunctive
relief, (iii) is asserted or instituted against any Plan, its fiduciaries or its
assets or against any Credit Party or ERISA Affiliate in connection with any
Plan, (iv) alleges criminal misconduct by any Credit Party, (v) alleges the
violation of any law regarding, or seeks remedies in connection with, any
Environmental Liabilities or (vi) involves any product recall.
(k) Insurance Notices. To Agent, disclosure of losses or
casualties required by Section 5.4.
E-3
(l) Lease Default Notices. To Agent, within two (2)
Business Days after receipt thereof, copies of (i) any and all default notices
received under or with respect to any leased location or public warehouse where
Collateral is located, and (ii) such other notices or documents as Agent may
reasonably request.
(m) Lease Amendments. To Agent, within two (2) Business
Days after receipt thereof, copies of all material amendments to real estate
leases.
(n) To Agent, promptly on receipt thereof, copies of all
notices received with respect to any Major Agreement.
(o) Other Documents. To Agent and Lenders, such other
financial and other information respecting any Credit Party's business or
financial condition as Agent or any Lender shall from time to time reasonably
request.
E-4
ANNEX F (SECTION 4.1(b))
TO
CREDIT AGREEMENT
COLLATERAL REPORTS
Borrowers shall deliver or cause to be delivered the
following:
(a) To Agent, upon its request, and in any event no less
frequently than 11:00 a.m. (Chicago time) on Wednesday of each week, provided
that if the Average 30-Day Borrowing Availability exceeds $25,000,000, Agent, in
its sole discretion, may request to be delivered on the fifth Business Day of
each month (together with a copy of all or any part of the following reports
requested by any Lender in writing after the Restatement Date), each of the
following reports, each of which shall be prepared by the applicable Borrower as
of the last day of the immediately preceding week or month, as applicable:
(i) a Borrowing Base Certificate with respect to
each Borrower, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable
discretion;
(ii) with respect to each Borrower, a summary of
Inventory by location and type with a supporting perpetual Inventory
report, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable
discretion; and
(iii) with respect to each Borrower, a monthly
trial balance showing Accounts outstanding aged from invoice date as
follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or
more, accompanied by such supporting detail and documentation as shall
be requested by Agent in its reasonable discretion.
(b) To Agent, on a weekly basis or at such more frequent
intervals as Agent may request from time to time, provided that if the Average
30-Day Borrowing Availability exceeds $25,000,000, on a monthly basis, in
Agent's sole discretion (together with a copy of all or any part of such
delivery requested by any Lender in writing after the Restatement Date),
collateral reports with respect to each Borrower, including all additions and
reductions (cash and non-cash) with respect to Accounts of such Borrower, in
each case accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion each of which shall be prepared
by the applicable Borrower as of the last day of the immediately preceding week
or month, as applicable;
(c) To Agent, at the time of delivery of each of the
monthly Financial Statements delivered pursuant to Annex E:
(i) a reconciliation of the Accounts trial
balance of each Borrower to such Borrower's most recent Borrowing Base
Certificate, general ledger and monthly Financial Statements delivered
pursuant to Annex E, in each case accompanied by such
F-1
supporting detail and documentation as shall be requested by Agent in
its reasonable discretion;
(ii) a reconciliation of the perpetual inventory
by location of each Borrower to such Borrower's most recent Borrowing
Base Certificate, general ledger and monthly Financial Statements
delivered pursuant to Annex E, in each case accompanied by such
supporting detail and documentation as shall be requested by Agent in
its reasonable discretion;
(iii) an aging of accounts payable and a
reconciliation of that accounts payable aging to each Borrower's
general ledger and monthly Financial Statements delivered pursuant to
Annex E, in each case accompanied by such supporting detail and
documentation as shall be requested by Agent in its reasonable
discretion;
(iv) a reconciliation of the outstanding Loans as
set forth in the monthly Loan Account statement provided by Agent to
each Borrower's general ledger and monthly Financial Statements
delivered pursuant to Annex E, in each case accompanied by such
supporting detail and documentation as shall be requested by Agent in
its reasonable discretion;
(d) To Agent, at the time of delivery of each of the
quarterly or annual Financial Statements delivered pursuant to Annex E, (i) a
listing of government contracts of each Borrower subject to the Federal
Assignment of Claims Act of 1940; and (ii) a list of any applications for the
registration of any Patent, Trademark or Copyright filed by any Credit Party
with the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency in the prior Fiscal Quarter;
(e) Each Borrower, at its own expense, shall deliver to
Agent the results of each physical verification, if any, that such Borrower or
any of its Subsidiaries may in their discretion have made, or caused any other
Person to have made on their behalf, of all or any portion of their Inventory
(and, if a Default or an Event of Default has occurred and is continuing, each
Borrower shall, upon the request of Agent, conduct, and deliver the results of,
such physical verifications as Agent may require);
(f) Each Borrower, at its own expense, shall deliver to
Agent such appraisals of its assets as Agent may request up to four times in any
Fiscal Year when no Default or Event of Default exists and at any time after the
occurrence and during the continuance of a Default or an Event of Default, such
appraisals to be conducted by an appraiser, and in form and substance reasonably
satisfactory to Agent;
(g) To Agent, on a weekly basis, or at such more frequent
intervals as Agent may request from time to time, a report showing all cash
payments between BPI and Borrowers and by Borrowers to third parties on behalf
of BPI. Such report shall in a form satisfactory to Agent and shall be recorded
to intercompany accounts set forth on each Borrower's balance sheet; and
F-2
(h) Such other reports, statements and reconciliations
with respect to the Borrowing Base, Collateral or Obligations of any or all
Credit Parties as Agent shall from time to time request in its reasonable
discretion.
F-3
ANNEX G (SECTION 6.10)
TO
CREDIT AGREEMENT
FINANCIAL COVENANTS
Borrowers shall not breach or fail to comply with any of the
following financial covenants, each of which shall be calculated in accordance
with GAAP consistently applied:
(a) Minimum Fixed Charge Coverage Ratio. At all times
while Borrowers' Borrowing Availability is below $12,500,000, Borrowers and
their Subsidiaries shall have on a consolidated basis a Fixed Charge Coverage
Ratio for the 12-month period then ended of not less than 1.00:1.00; provided,
that, at all times after either (i) Borrowers' Borrowing Availability first is
below $10,000,000 for three (3) consecutive Business Days or (ii) Borrowers'
Borrowing Availability first is below $9,500,000, Borrowers and their
Subsidiaries shall have on a consolidated basis a Fixed Charge Coverage Ratio
for the 12-month period then ended of not less than 1.25:1.00.
(b) Minimum Borrowing Availability. Borrowers shall
maintain at all times a Borrowing Availability of at least $7,000,00.
Unless otherwise specifically provided herein, any accounting
term used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP consistently applied. That certain items or computations
are explicitly modified by the phrase "in accordance with GAAP" shall in no way
be construed to limit the foregoing. If any "Accounting Changes" (as defined
below) occur and such changes result in a change in the calculation of the
financial covenants, standards or terms used in the Agreement or any other Loan
Document, then Borrowers, Agent and Lenders agree to enter into negotiations in
order to amend such provisions of the Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
Borrowers' and their Subsidiaries' financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made;
provided, however, that the agreement of Requisite Lenders to any required
amendments of such provisions shall be sufficient to bind all Lenders.
"Accounting Changes" means (i) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants (or successor thereto or any agency with similar functions), (ii)
changes in accounting principles concurred in by any Borrower's certified public
accountants; (iii) purchase accounting adjustments under A.P.B. 16 or 17 and
EITF 88-16, and the application of the accounting principles set forth in FASB
109, including the establishment of reserves pursuant thereto and any subsequent
reversal (in whole or in part) of such reserves; and (iv) the reversal of any
reserves established as a result of purchase accounting adjustments. All such
adjustments resulting from expenditures made subsequent to the Restatement Date
(including capitalization of costs and expenses or payment of pre-Restatement
Date liabilities) shall be treated as expenses in the period the expenditures
are made and deducted as part of the calculation of EBITDA in
G-1
such period. If Agent, Borrowers and Requisite Lenders agree upon the required
amendments, then after appropriate amendments have been executed and the
underlying Accounting Change with respect thereto has been implemented, any
reference to GAAP contained in the Agreement or in any other Loan Document
shall, only to the extent of such Accounting Change, refer to GAAP, consistently
applied after giving effect to the implementation of such Accounting Change. If
Agent, Borrowers and Requisite Lenders cannot agree upon the required amendments
within 30 days following the date of implementation of any Accounting Change,
then all Financial Statements delivered and all calculations of financial
covenants and other standards and terms in accordance with the Agreement and the
other Loan Documents shall be prepared, delivered and made without regard to the
underlying Accounting Change. For purposes of Section 8.1, a breach of a
Financial Covenant contained in this Annex G shall be deemed to have occurred as
of any date of determination by Agent or as of the last day of any specified
measurement period, regardless of when the Financial Statements reflecting such
breach are delivered to Agent.
G-2
ANNEX H (SECTION 9.9(a))
to
CREDIT AGREEMENT
WIRE TRANSFER INFORMATION
Name: General Electric Capital Corporation
Bank: DeutscheBank Trust Company Americas
New York, New York
ABA #: ▇▇▇▇▇▇▇▇▇
Account #: ▇▇▇▇▇▇▇▇
Account Name: GECC/CAF Depository
Reference: CFC 4302
H-1
ANNEX I (SECTION 11.10)
TO
CREDIT AGREEMENT
NOTICE ADDRESSES
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Brightpoint Account Manager
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(B) If to any Borrower, to Borrower Representative, at
Brightpoint North America L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
I-1
with copies to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
I-2
ANNEX J (FROM ANNEX A - REVOLVING LOAN COMMITMENTS DEFINITION)
to
CREDIT AGREEMENT
LENDER REVOLVING LOAN COMMITMENT
------ -------------------------
General Electric Capital Corporation $35,000,000 (including a Swing Line
Commitment of $7,500,000)
LaSalle Bank Credit, LLC $15,555,555.55
Congress Financial Corporation (Central) $11,666,666.67
National City Bank of Indiana $ 7,777,777.78
--------------
TOTAL $ 70,000,000
i
DISCLOSURE SCHEDULE 1.1
TO CREDIT AGREEMENT
Agent's Representatives
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Brightpoint Account Manager
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
DISCLOSURE SCHEDULE 1.4
TO CREDIT AGREEMENT
Sources and Uses; Funds Flow Memorandum
No Funds will be transferred under this Agreement on the Restatement Date.
DISCLOSURE SCHEDULE 1.6
TO CREDIT AGREEMENT
Account Debtors with Common Directors
None.
DISCLOSURE SCHEDULE 3.1
TO CREDIT AGREEMENT
Corporate Existence; Compliance with Law
BORROWERS AND BAS STATE OF ORGANIZATION
----------------- ---------------------
Brightpoint North America L.P. Delaware
Wireless Fulfillment Services LLC California
Brightpoint Activation Services LLC Indiana
DISCLOSURE SCHEDULE 3.2
TO CREDIT AGREEMENT
Executive Office, Collateral Locations, FEIN, etc.
STATE OF
INCORPORATION/ TYPE OF ORGANIZATION
CREDITOR PARTY'S NAME ORGANIZATION ORGANIZATION NUMBER CHIEF EXECUTIVE OFFICE COLLATERAL LOCATIONS FEIN
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Brightpoint North Delaware limited DE3307896 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇▇
America L.P. partnership ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Wireless Fulfillment California limited CA199704510054 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
Services LLC liability ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Richmond, California
company 94804
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Brightpoint, Inc. Delaware corporation DE2374964 501 Airtech Parkway None ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Brightpoint North Indiana corporation IN1998021347 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Inc. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Wireless Fulfillment Delaware corporation DE3147383 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ None ▇▇-▇▇▇▇▇▇▇
Services Holdings, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Inc.
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Brightpoint Delaware corporation DE2611549 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
International Ltd. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ None
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
Brightpoint Indiana limited IN2003033100210 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇-▇▇▇▇▇▇▇
Activation Services liability ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Plainfield, Indiana
LLC company 46168
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------- -------------- ------------ -------------- ------------------------- --------------------- -------------
DISCLOSURE SCHEDULE 3.4(A)
TO CREDIT AGREEMENT
Financial Statements
** This Schedule, which contains unaudited financial statements for Brightpoint
North America L.P. as of December 31, 2003, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information.
DISCLOSURE SCHEDULE 3.4(C)
TO CREDIT AGREEMENT
Projections
** This Schedule, which contains income statement and balance sheet forecasts by
month for 2004 for Brightpoint North America L.P., has been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information.
DISCLOSURE SCHEDULE 3.6
TO CREDIT AGREEMENT
Ownership of Property; Liens
Owned Real Estate
The Loan Parties do not currently own any Real Estate in fee simple.
Leased Real Estate
The Loan Parties listed below lease Real Estate as indicated:
1. Brightpoint North America L.P.: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇;
2. Brightpoint North America L.P.: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇;
and
3. Wireless Fulfillment Services LLC: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Purchase Options, etc.
There are no purchase options, rights of first refusal or other similar
contractual rights pertaining to any Real Estate, except as set forth in the
lease agreements and related documents.
** Portions of this document indicated by an ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information.
DISCLOSURE SCHEDULE 3.7
TO CREDIT AGREEMENT
Labor Matters
(d) The Borrowers have not created any stock option plans. However, certain of
their respective employees are permitted to participate in the BPI 1994 and 1996
Stock Option Plans, copies of which have been delivered to Agent prior to the
Restatement Date.
The Borrowers are parties to management agreements, consulting agreements,
employment agreements, stock option plans and similar plans in substantially the
forms provided to Agent prior to the Restatement Date. It is the Borrowers'
standard practice to require each employee to execute and delivery an employment
agreement. The following lists the Borrowers' current employees:
BRIGHTPOINT INDIANAPOLIS EMPLOYEE LIST
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ** 8/10/1998 12/1/2002 Sales Representative **
Indirect Sales 101101 ** 12/2/2002 12/2/2002 Sales Representative **
Indirect Sales 101101 ** 10/20/2003 10/20/2003 Sales Representative **
Indirect Sales 101101 ** 11/5/2001 12/1/2002 Sales Representative **
Indirect Sales 101101 ** 11/6/2000 4/28/2002 Sales Representative **
Indirect Sales 101101 ** 12/4/2000 4/28/2002 Sales Representative **
Indirect Sales 101101 ** 12/4/1999 9/1/2003 Account Manager **
Indirect Sales 101101 ** 10/23/2000 12/1/2002 Sales Representative **
Indirect Sales 101101 ** 9/2/2003 9/2/2003 Sales Representative **
Indirect Sales 101101 ** 3/17/1997 4/28/2002 Sales Representative **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ** 12/15/2003 12/15/2003 Sales Representative **
Indirect Sales 101101 ** 11/14/2000 8/4/2003 Vice President, Indirect Sales **
Indirect Sales 101101 ** 1/29/1993 4/29/2002 Returns Manager-Product Sales **
Indirect Sales 101101 ** 3/17/2003 3/17/2003 Product Sales Returns Assistant **
Indirect Sales 101101 ** 11/19/2001 11/19/2001 Product Sales Returns Assistant **
Indirect Sales 101101 ** 6/8/1998 4/16/2001 Administrative Assistant **
Indirect Sales 101101 ** 9/9/2002 9/15/2003 Sales Representative **
Indirect Sales 101101 ** 3/19/2001 12/1/2002 Sales Representative **
Carrier 101102 ** 3/2/1998 6/1/1999 Account Manager **
Carrier 101102 ** 9/23/1991 10/18/1999 VP Carrier Sales **
Carrier 101102 ** 7/19/1999 6/1/2002 Account Manager **
Carrier 101102 ** 1/24/2000 4/1/2002 Account Manager **
Carrier 101102 ** 11/5/2001 11/5/2001 Administrative Assistant **
Carrier 101102 ** 6/30/1997 11/1/1999 Account Manager **
Carrier 101102 ** 3/16/1998 3/16/1998 Account Manager **
Marketing 101104 ** 3/11/2002 9/15/2003 Web Analyst **
Marketing 101104 ** 6/2/2003 6/2/2003 Marketing Specialist **
Purchasing 101105 ** 12/10/2001 9/15/2003 Facilities Coordinator **
Purchasing 101105 ** 11/20/2000 2/23/2003 Inventory Management Supervisor **
Purchasing 101105 ** 3/25/2002 3/25/2002 Senior Buyer **
Purchasing 101105 ** 2/18/2002 2/18/2002 Financial Analyst **
Purchasing 101105 ** 11/15/1999 11/13/2001 Purchasing Coordinator **
Purchasing 101105 ** 9/17/2001 9/17/2001 Sr. Purchasing Director **
Purchasing 101105 ** 11/4/1996 1/1/1999 Director Purchasing **
Finance & Accounting 101105 ** 1/19/2004 1/19/2004 Financial Analyst Intern **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Retail Sales 101106 ** 7/28/1997 3/30/2003 Manager, Agent Sales **
Retail Sales 101106 ** 8/27/1990 3/30/2003 VP National Retail Sales **
Retail Sales 101106 ** 2/16/1998 3/30/2003 National Account Manager **
Customer Service 101107 ** 5/10/1999 3/3/2003 Customer Service Representative **
Customer Service 101107 ** 12/11/2000 1/1/2004 Customer Service Supervisor **
Customer Service 101107 ** 3/10/2003 1/1/2004 National Activation Rep **
Customer Service 101107 ** 2/4/2002 3/3/2003 Customer Service Representative **
Customer Service 101107 ** 3/10/2003 1/1/2004 National Activation Rep **
Customer Service 101107 ** 2/11/2002 1/1/2004 Customer Service Representative **
Customer Service 101107 ** 3/19/2001 1/1/2004 Activations Supervisor **
Customer Service 101107 ** 3/10/2003 1/1/2004 National Activation Rep **
Customer Service 101107 ** 1/6/2003 1/6/2003 Customer Service Representative **
Customer Service 101107 ** 3/10/2003 1/1/2004 National Activation Rep **
Customer Service 101107 ** 11/18/2002 1/1/2004 National Activation Rep **
Customer Service 101107 ** 11/4/2002 1/1/2004 National Activation Rep **
Customer Service 101107 ** 3/10/2003 1/1/2004 National Activation Rep **
Customer Service 101107 ** 12/16/2002 1/1/2004 National Activation Rep **
Customer Service 101107 ** 2/4/2002 1/1/2004 Activations Supervisor **
Customer Service 101107 ** 10/14/2002 3/3/2003 Customer Service Representative **
Customer Service 101107 ** 10/14/2002 1/1/2004 Activation Team Lead **
Customer Service 101107 ** 11/27/2000 11/11/2002 Customer Service Supervisor **
Credit 101107 ** 6/3/2002 1/19/2004 Nextel Collection Specialist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Customer Service 101107 ** 9/23/2002 1/1/2004 National Activation Rep **
Customer Service 101107 ** 3/10/2003 1/1/2004 Customer Service Representative **
Customer Service 101107 ** 3/10/2003 1/1/2004 National Activation Rep **
Customer Service 101107 ** 12/16/2002 11/10/2003 National Activations Representative **
Customer Service 101107 ** 2/12/2001 1/1/2004 National Activation Rep **
Customer Service 101107 ** 10/14/2002 10/14/2002 Order Processing Specialist **
Customer Service 101107 ** 12/31/2001 11/10/2002 Customer Service Representative **
Customer Service 101107 ** 8/12/2002 11/10/2002 Customer Service Representative **
Customer Service 101107 ** 4/26/1999 2/18/2002 Director of Contact Services **
National Accounts 101109 ** 2/4/2002 9/29/2003 Project Coordinator **
National Accounts 101109 ** 7/15/1996 3/30/2000 Project Manager **
National Accounts 101109 ** 8/3/1997 1/2/2002 Sr. Director-Logistics&Subscriber
Services **
National Accounts 101109 ** 1/16/1995 1/19/2003 National Accounts Manager **
National Accounts 101109 ** 1/28/2002 5/27/2002 National Accounts Manager **
National Accounts 101109 ** 9/8/1998 2/3/2003 National Accounts Manager **
National Accounts 101109 ** 10/23/2000 1/5/2004 Project Coordinator LSS **
National Accounts 101109 ** 7/14/2003 7/14/2003 Project manager **
National Accounts 101109 ** 4/20/1998 5/27/2002 National Accounts Manager **
National Accounts 101109 ** 9/8/2003 9/9/2003 National Accounts Program Coordinator **
Nextel Sales 101109 ** 12/31/2001 3/30/2003 National Account Project Coordinator **
National Accounts 101109 ** 4/21/1997 12/4/2000 Project Manager **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
National Accounts 101109 ** 9/18/2000 6/23/2002 VP National Accounts **
National Accounts 101109 ** 7/16/2001 2/25/2003 National Accounts Manager **
National Accounts 101109 ** 9/16/1996 7/10/2000 Director National Accounts Qwest **
National Accounts 101109 ** 12/14/1998 9/1/2002 Director National Accounts NAMS **
National Accounts 101109 ** 2/25/2002 1/5/2004 Project Coordinator **
National Accounts 101109 ** 7/24/2000 2/1/2004 Logistics & Subscriber Services **
National Accounts 101109 ** 4/21/2003 4/22/2003 National Accounts Manager **
National Accounts 101109 ** 1/31/2000 10/30/2001 Project Coordinator - Quest **
National Accounts 101109 ** 10/2/2000 1/21/2002 National Accounts Program Coordinator **
National Accounts 101109 ** 6/17/2002 1/5/2004 Project Coordinator **
National Accounts 101109 ** 3/26/2003 7/15/2003 National Account Manager **
Nextel Sales 101118 ** 2/7/2000 3/31/2003 National Accounts Project Coordinator **
Nextel Sales 101118 ** 10/4/1999 5/27/2002 Business Manager **
Nextel Sales 101118 ** 11/27/2000 11/27/2000 National Acct. Project Coordinator **
Nextel Sales 101118 ** 2/1/1999 8/17/2000 National Account Manager **
Continuous Improvement 101305 ** 12/15/1997 7/8/2003 Department Coordinator **
Continuous Improvement 101305 ** 8/17/1998 12/3/2000 Project Manager **
Facilities 101306 ** 2/17/2003 11/10/2003 Facilities Maintenance Assistant **
Facilities 101306 ** 9/24/2001 9/24/2001 Facilities Maintenance Assistant **
Facilities 101306 ** 1/1/2001 1/2/2001 Security and Safety Manager **
Facilities 101306 ** 3/30/2001 4/1/2002 Receptionist **
Facilities 101306 ** 1/31/2000 1/31/2000 Receptionist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Facilities 101306 ** 8/16/1999 2/3/2003 Receptionist **
Shipping 101311 ** 10/3/1995 1/20/2003 Sr Operations Manager **
Shipping 101311 ** 6/15/1998 8/20/2001 Sr. Operations Manager **
Quality Control 101311 ** 9/9/2002 6/23/2003 Director, Process & Resource Improvement **
Project Management 101311 ** 3/29/1999 11/10/2000 Software Engineer **
Project Management 101311 ** 3/29/1999 2/2/2004 Director of Indy Operations **
Facilities 101311 ** 3/31/1997 3/31/1997 Director of Administration **
Project Management 101311 ** 11/27/1995 11/10/2000 Technical Support Specialist **
Project Management 101311 ** 1/20/1997 9/25/2000 Industrial Engineer **
Project Management 101311 ** 3/2/1998 11/10/2000 Test Engineer **
Project Management 101311 ** 7/28/2003 7/28/2003 Technical Support Specialist **
Maintenance 101319 ** 1/10/2000 2/7/2000 Maintenance Mechanic **
Maintenance 101319 ** 9/5/2000 9/5/2000 Maintenance Mechanic **
Maintenance 101319 ** 9/17/2001 9/17/2001 Maintenance Mechanic **
Maintenance 101319 ** 12/2/1999 2/7/2000 Maintenance Manager **
Shipping 101322 ** 11/6/2000 3/1/2001 Cargo Shipping Specialist **
Shipping 101322 ** 1/15/1996 2/23/2001 Cargo Shipping Specialist TL **
Shipping 101322 ** 5/10/1999 2/16/2002 Cargo Shipping Specialist **
Shipping 101322 ** 11/20/2000 1/19/2004 Operations Specialist **
Shipping 101322 ** 6/16/2003 6/16/2003 Cargo Shipping Specialist - Shipping **
Shipping 101322 ** 7/17/2000 2/17/2002 Warehouse Specialist - Taper **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Shipping 101322 ** 6/3/1996 2/2/2004 Cargo Shipping Specialist TL **
Shipping 101322 ** 12/4/2000 2/17/2002 Warehouse Specialist - Dock **
Shipping 101322 ** 12/18/2000 6/17/2003 Cargo Shipping Specialist - Shipping **
Shipping 101322 ** 2/3/1997 2/16/2002 Warehouse Specialist TL **
Shipping 101322 ** 6/16/2003 6/16/2003 Cargo Shipping Specialist **
Shipping 101322 ** 12/4/2000 2/4/2002 Cargo Shipping Specialist **
Shipping 101322 ** 8/5/2002 8/5/2002 Cargo Shipping Specialist - Shipping **
Shipping 101322 ** 12/15/1997 2/16/2002 Operations Supervisor **
Shipping 101322 ** 11/30/1998 2/16/2002 Warehouse Specialist - Taper **
Shipping 101322 ** 5/5/2003 1/19/2004 Warehouse Specialist **
Shipping 101322 ** 11/6/2000 2/4/2002 Cargo Shipping Specialist **
Shipping 101322 ** 10/16/2000 8/18/2002 Cargo Shipping Specialist **
Shipping 101322 ** 10/20/1997 1/19/2004 Warehouse Specialist **
Shipping 101322 ** 8/5/2002 8/5/2002 Cargo Shipping Specialist - Shipping **
Shipping 101322 ** 8/5/2002 8/5/2002 Cargo Shipping Specialist **
Shipping 101322 ** 4/28/2003 1/19/2004 Cargo Shipping Specialist **
Shipping 101322 ** 7/24/2000 2/16/2002 Warehouse Specialist - Attend **
Shipping 101322 ** 4/5/1999 2/16/2002 Warehouse Specialist - Attend **
Shipping 101322 ** 8/19/2002 8/19/2002 Cargo Shipping Specialist **
Shipping 101322 ** 7/31/2000 2/16/2002 Cargo Shipping Specialist - Shipping **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Shipping 101322 ** 12/4/2000 8/5/2002 Cargo Shipping Specialist **
Shipping 101322 ** 10/26/1998 2/16/2002 Cargo Shipping Specialist TL **
Receiving 101323 ** 6/1/1999 1/5/2004 Receiving Specialist **
Receiving 101323 ** 12/20/1999 8/12/2002 Receiving TL **
Receiving 101323 ** 10/18/1999 2/16/2002 Operations Manager **
Receiving 101323 ** 9/19/2001 9/19/2001 Receiving Specialist **
Receiving 101323 ** 2/24/1997 10/13/2002 Operations Supervisor **
Receiving 101323 ** 9/17/2001 9/17/2001 Receiving Specialist **
Receiving 101323 ** 12/29/1999 1/5/2004 Team Lead - Receiving **
Receiving 101323 ** 3/10/1999 1/5/2004 Receiving Specialist **
Receiving 101323 ** 12/18/2000 2/16/2002 Receiving Specialist **
Receiving 101323 ** 6/22/1998 1/5/2004 Team Lead - Receiving **
Receiving 101323 ** 12/10/2001 2/18/2002 Receiving TL **
Receiving 101323 ** 5/26/1998 1/5/2004 Receiving Specialist **
Receiving 101323 ** 6/9/1997 1/5/2004 Receiving Specialist **
Receiving 101323 ** 12/2/2002 12/2/2002 Receiving Specialist **
Receiving 101323 ** 9/17/2001 9/17/2001 Receiving TL **
Receiving 101323 ** 7/5/2000 9/24/2001 Receiving Supervisor **
Receiving 101323 ** 5/4/1998 1/5/2004 Receiving Specialist **
Picking/Programming 101324 ** 11/24/2003 11/24/2003 Warehouse Specialist **
Picking/Programming 101324 ** 6/1/1999 2/16/2002 Warehouse Specialist **
Picking/Programming 101324 ** 2/22/1999 2/16/2002 Production Assembler **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Picking/Programming 101324 ** 6/16/2003 6/16/2003 Warehouse Specialist **
Picking/Programming 101324 ** 1/24/2000 5/12/2002 Warehouse Specialist **
Picking/Programming 101324 ** 2/7/2000 11/24/2002 Warehouse Specialist **
Picking/Programming 101324 ** 4/13/1998 2/16/2002 Production Assembler **
Picking/Programming 101324 ** 11/24/2003 2/14/2004 Warehouse Specialist **
Picking/Programming 101324 ** 8/21/2000 2/16/2002 Production Assembler **
Picking/Programming 101324 ** 6/9/2003 6/9/2003 Warehouse Specialist **
Picking/Programming 101324 ** 5/26/1998 2/16/2002 Production Assembler **
Picking/Programming 101324 ** 6/5/2000 2/16/2002 Warehouse Specialist **
Picking/Programming 101324 ** 11/17/2003 11/17/2003 Warehouse Specialist **
Picking/Programming 101324 ** 6/9/2003 7/28/2003 Warehouse Specialist **
Picking/Programming 101324 ** 3/20/2000 2/16/2002 Production Assembler **
Picking/Programming 101324 ** 8/19/1996 5/12/2002 Production Assembler **
Picking/Programming 101324 ** 4/28/2003 2/14/2004 Production Assembler **
Picking/Programming 101324 ** 6/16/2003 6/16/2003 Warehouse Specialist **
Picking/Programming 101324 ** 9/20/1999 2/16/2002 Operations Manager **
Picking/Programming 101324 ** 11/24/2003 2/5/2004 Warehouse Specialist TL **
Picking/Programming 101324 ** 11/24/2003 2/16/2004 Warehouse Specialist **
Picking/Programming 101324 ** 10/2/2000 2/14/2004 Warehouse Specialist **
Picking/Programming 101324 ** 8/19/2002 7/29/2003 Warehouse Specialist **
Picking/Programming 101324 ** 4/12/1999 2/14/2004 Warehouse Specialist - TL **
Picking/Programming 101324 ** 11/17/2003 11/17/2003 Warehouse Specialist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Picking/Programming 101324 ** 11/17/2003 11/17/2003 Warehouse Specialist **
Picking/Programming 101324 ** 2/22/1999 1/19/2004 Team Lead-Warehouse Specialist **
Picking/Programming 101324 ** 6/1/1998 2/16/2002 Operations Supervisor **
Picking/Programming 101324 ** 10/2/2000 4/21/2003 Warehouse Specialist **
Picking/Programming 101324 ** 3/30/1998 2/16/2002 Warehouse Specialist TL **
Picking/Programming 101324 ** 11/17/2003 11/17/2003 Warehouse Specialist **
Picking/Programming 101324 ** 11/24/2003 11/24/2003 Warehouse Specialist **
Picking/Programming 101324 ** 8/19/2002 8/17/2004 Team Lead-Warehouse Specialist **
Picking/Programming 101324 ** 9/30/2002 9/30/2002 Operations Supervisor **
Picking/Programming 101324 ** 11/12/2001 2/16/2002 Warehouse Specialist **
Picking/Programming 101324 ** 9/13/1999 1/19/2004 Warehouse Specialist **
Picking/Programming 101324 ** 11/24/2003 11/24/2003 Warehouse Specialist **
Picking/Programming 101324 ** 11/12/2001 5/12/2002 Warehouse Specialist **
Picking/Programming 101324 ** 6/15/1998 2/16/2002 Production Assembler **
Picking/Programming 101324 ** 3/29/1999 5/12/2002 Production Assembler **
Picking/Programming 101324 ** 9/16/2002 1/19/2004 Team Lead-Warehouse Specialist **
Picking/Programming 101324 ** 7/31/2000 2/16/2002 Warehouse Specialist **
Picking/Programming 101324 ** 11/18/2002 1/19/2004 Warehouse Specialist **
Picking/Programming 101324 ** 12/18/2000 2/16/2002 Production Assembler **
Picking/Programming 101324 ** 4/28/2003 4/28/2003 Warehouse Specialist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Picking/Programming 101324 ** 11/24/2003 11/24/2003 Warehouse Specialist **
Picking/Programming 101324 ** 5/5/2003 5/5/2003 Warehouse Specialist **
Picking/Programming 101324 ** 9/17/2001 1/19/2004 Team Lead-Warehouse Specialist **
Picking/Programming 101324 ** 12/20/1999 2/16/2002 Warehouse Specialist **
Kitting 101325 ** 10/27/1997 6/25/2001 Operations Manager **
IPW 101325 ** 4/5/1999 1/5/2004 Production Assembler **
IPW 101325 ** 10/16/2000 1/5/2004 Production Assembler **
IPW 101325 ** 10/30/2000 1/5/2004 Production Assembler **
IPW 101325 ** 3/1/1999 1/5/2004 Production Assembler **
IPW 101325 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101325 ** 2/1/1999 1/5/2004 Production Assembler **
IPW 101325 ** 12/15/1997 1/5/2004 Production Assembler **
IPW 101325 ** 10/16/2000 1/5/2004 Production Assembler **
IPW 101325 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101325 ** 3/1/1999 1/5/2004 Production Assembler **
IPW 101325 ** 8/5/2002 1/5/2004 Production Assembler **
IPW 101325 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101325 ** 6/16/2003 1/5/2004 Production Assembler **
Kitting 101325 ** 12/8/1997 1/6/2004 Production Coordinator **
Kitting 101325 ** 5/26/1998 1/5/2004 Kitting Team Lead **
Kitting 101325 ** 2/1/1999 1/5/2004 Kitting Team Lead **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Kitting 101325 ** 12/17/2001 1/5/2004 Kitting Team Lead **
Kitting 101325 ** 5/21/2001 9/4/2001 Operations Supervisor **
Kitting 101325 ** 4/7/2003 4/7/2003 Operations Supervisor **
IPW 101326 ** 3/29/1999 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
IPW 101326 ** 7/27/1998 1/5/2004 Production Assembler **
IPW 101326 ** 7/13/1998 1/5/2004 Production Assembler **
IPW 101326 ** 10/5/1998 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
Kitting 101326 ** 5/26/1998 1/7/2004 Kitting Team Lead **
IPW 101326 ** 6/21/1999 2/6/2004 Prod Assemb - TL **
IPW 101326 ** 10/16/2000 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 6/16/2003 Production Assembler **
IPW 101326 ** 4/12/1999 1/5/2004 Production Assembler **
Kitting 101326 ** 9/24/1998 2/16/2002 Production Coordinator **
IPW 101326 ** 4/5/1999 1/5/2004 Production Assembler **
Kitting 101326 ** 8/12/1996 1/6/2004 Kitting Team Lead **
Kitting 101326 ** 10/20/1997 1/5/2004 Kitting Team Lead **
Picking/Programming 101326 ** 12/27/1999 2/6/2004 Team Lead-Warehouse Specialist **
Kitting 101326 ** 10/14/2002 1/6/2004 Kitting Team Lead **
IPW 101326 ** 9/3/2002 1/5/2004 Production Assembler **
IPW 101326 ** 8/5/2002 1/5/2004 Production Assembler **
IPW 101326 ** 12/18/2000 9/15/2003 Production Assembler **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
IPW 101326 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 6/16/2003 Production Assembler **
IPW 101326 ** 12/15/1997 1/5/2004 Production Assembler **
IPW 101326 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101326 ** 11/6/2000 1/5/2004 Production Assembler **
IPW 101326 ** 10/16/2000 2/6/2004 Prod Assemb - TL **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101326 ** 3/29/1999 1/5/2004 Production Assembler **
IPW 101326 ** 10/18/1999 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/9/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
IPW 101326 ** 2/15/1999 1/5/2004 Production Assembler **
IPW 101326 ** 1/6/2003 1/5/2004 Production Assembler **
IPW 101326 ** 6/16/2003 1/5/2004 Production Assembler **
Inventory Control 101327 ** 6/7/1999 2/16/2002 Reverse Logistics & IC Manager **
Return Qualifiers 101327 ** 3/29/1999 1/19/2004 Operations Supervisor **
Inventory Control 101327 ** 2/21/2000 5/2/2000 Inventory Control TL **
Inventory Control 101327 ** 6/9/2003 9/15/2003 Inventory Control Specialist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Inventory Control 101327 ** 2/16/1998 9/15/2003 Inventory Control Specialist **
Inventory Control 101327 ** 11/12/2001 8/4/2003 Inventory Control TL **
Inventory Control 101327 ** 4/14/2003 4/14/2003 Inventory Control TL **
Inventory Control 101327 ** 5/27/2003 5/27/2003 Inventory Control Supervisor **
Inventory Control 101327 ** 11/6/2000 3/5/2002 Inventory Control Specialist **
Inventory Control 101327 ** 12/2/2002 12/2/2002 Inventory Control Specialist **
Material Handling 101339 ** 10/14/2002 2/12/2004 Material Handler-TL **
Material Handling 101339 ** 10/2/2000 2/12/2004 Material Handler **
Receiving 101339 ** 12/27/1999 1/5/2004 Receiving Specialist **
Receiving 101339 ** 8/11/1997 1/5/2004 Receiving Specialist **
Receiving 101339 ** 12/20/1999 1/5/2004 Receiving Specialist **
Receiving 101339 ** 12/8/1997 1/5/2004 Receiving Specialist **
Receiving 101339 ** 11/4/2002 1/5/2004 Receiving Specialist **
Receiving 101339 ** 9/30/2002 1/5/2004 Receiving Specialist **
Material Handling 101339 ** 4/28/2003 2/11/2004 Material Handler **
Material Handling 101339 ** 11/3/1997 2/12/2004 Material Handler **
Material Handling 101339 ** 5/30/2000 2/12/2004 Material Handler-TL **
Material Handling 101339 ** 12/13/1999 12/23/2002 Material Handler **
Material Handling 101339 ** 9/24/1998 2/12/2004 Material Handler **
Material Handling 101339 ** 6/23/2002 2/12/2004 Material Handler **
Material Handling 101339 ** 1/24/2000 1/12/2004 Team Lead - Material Handler **
Material Handling 101339 ** 11/18/2002 2/12/2004 Material Handler **
Returns Receiving 101342 ** 8/18/1997 1/19/2004 Returns Qualifier **
Returns Receiving 101342 ** 1/17/2000 1/19/2004 Returns Qualifier **
Returns Receiving 101342 ** 12/15/1997 1/19/2004 Returns Qualifier **
Receiving 101342 ** 4/20/1998 1/19/2004 Receiving Specialist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Receiving 101342 ** 10/14/2002 1/19/2004 Receiving Specialist **
Receiving 101342 ** 11/15/1999 1/19/2004 Receiving - TL **
Returns Receiving 101342 ** 12/9/2002 1/19/2004 Returns Qualifier **
Quality Control 101343 ** 12/17/2001 9/29/2003 QC Supervisor **
Quality Control 101343 ** 12/20/1999 8/11/2002 Quality Control Inspector **
Quality Control 101343 ** 10/7/2002 10/7/2002 Quality Control Inspector **
Quality Control 101343 ** 10/25/1999 7/8/2002 Quality Control Inspector **
Quality Control 101343 ** 7/15/1996 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 12/2/1996 2/16/2002 Quality Control Manager **
Quality Control 101343 ** 9/5/2000 3/18/2002 Quality Control Inspector **
Quality Control 101343 ** 11/15/1999 9/18/2000 Quality Control Inspector **
Quality Control 101343 ** 10/1/2001 8/18/2002 Quality Control Inspector **
Quality Control 101343 ** 12/18/2000 8/11/2002 Quality Control Inspector **
Quality Control 101343 ** 6/21/1999 2/16/2002 Quality Control Inspector **
Quality Control 101343 ** 11/19/2001 2/16/2002 Quality Control Supervisor **
Quality Control 101343 ** 2/10/1997 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 10/30/2000 3/17/2003 Quality Control Inspector **
Quality Control 101343 ** 12/17/2001 5/26/2002 Quality Control Inspector **
Quality Control 101343 ** 9/9/2002 9/9/2002 Quality Control Inspector **
Quality Control 101343 ** 12/13/1999 12/12/2001 Quality Control Inspector **
Quality Control 101343 ** 10/18/1999 2/16/2002 Quality Control Inspector **
Quality Control 101343 ** 8/2/1999 5/13/2002 Quality Control Inspector **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Quality Control 101343 ** 9/5/2000 2/16/2002 Quality Control Inspector **
Quality Control 101343 ** 6/1/1998 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 6/1/1999 7/28/2003 Quality Control Inspector **
Quality Control 101343 ** 6/1/1999 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 3/16/1998 2/16/2002 Quality Control Inspector **
Quality Control 101343 ** 10/27/1997 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 11/15/1999 11/26/2001 Quality Control Inspector **
Quality Control 101343 ** 8/19/1996 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 8/19/1996 10/8/2001 Quality Control Inspector **
Quality Control 101343 ** 9/16/2002 9/16/2002 Quality Control Inspector **
Returns Receiving 101353 ** 5/20/1996 1/20/2004 Returns Qualifier **
Returns Receiving 101353 ** 12/15/1997 1/19/2004 Returns Qualifier **
Return Qualifiers 101353 ** 8/2/1999 1/19/2004 Testing Techinician **
Return Qualifiers 101353 ** 12/6/1999 9/25/2000 Returns Qualifier **
Return Qualifiers 101353 ** 8/19/1996 6/21/1999 Returns Qualifier **
Return Qualifiers 101353 ** 6/21/1999 1/17/2000 Returns Qualifier **
Return Qualifiers 101353 ** 9/8/2003 9/8/2003 Returns Qualifier **
Returns Receiving 101353 ** 12/15/1997 1/20/2004 Returns Qualifier **
Returns Receiving 101353 ** 7/27/1998 1/19/2004 Returns Qualifier **
Returns Receiving 101353 ** 2/22/1999 1/19/2004 Returns Qualifier **
Returns Receiving 101353 ** 12/6/1999 1/19/2004 Returns Qualifier **
Return Qualifiers 101353 ** 12/15/1997 4/2/2001 Returns Qualifier TL **
Returns Receiving 101353 ** 4/20/1998 1/19/2004 Receiving Specialist **
Returns Receiving 101353 ** 5/17/1999 1/19/2004 Returns Qualifier **
Returns Receiving 101353 ** 5/22/2000 1/19/2004 Returns Qualifier **
Return Qualifiers 101353 ** 6/1/1999 1/19/2004 Returns Qualifier-TL **
Returns Receiving 101353 ** 3/8/1999 1/19/2004 Returns Qualifier **
Return Qualifiers 101353 ** 3/22/1999 2/16/2002 Returns Qualifier **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Return Qualifiers 101353 ** 8/3/1998 1/17/2000 Returns Qualifier **
Return Qualifiers 101353 ** 4/20/1998 1/18/2004 Returns - Supervisor **
Return Qualifiers 101353 ** 8/17/1998 2/16/2002 Returns Qualifier **
Return Qualifiers 101353 ** 8/19/1996 6/21/1999 Returns Qualifier **
Return Qualifiers 101353 ** 12/15/1997 9/2/2003 Returns Qualifier TL **
Return Qualifiers 101353 ** 4/28/1997 2/5/2004 Returns Qualifier-TL **
Return Qualifiers 101353 ** 4/13/1998 1/19/2004 Operations Development Analyst **
Return Qualifiers 101353 ** 10/11/1999 9/25/2000 Returns Qualifier **
Return Qualifiers 101353 ** 3/13/2000 5/12/2002 Returns Qualifier **
Return Qualifiers 101353 ** 4/5/1999 5/28/2002 Returns Qualifier **
Return Qualifiers 101353 ** 11/15/1999 5/12/2002 Returns Qualifier **
Return Qualifiers 101353 ** 12/15/1997 1/18/2004 Returns Qualifier **
Return Qualifiers 101353 ** 7/6/1999 7/12/1999 Returns Qualifier **
Administration 101400 ** 8/12/2002 1/1/2003 EVP Logistics & Subscriber Services **
Finance & Accounting 101400 ** 8/10/1998 2/1/2002 Chief Accounting Officer **
President 101400 ** 8/1/1994 1/1/2002 President NA **
National Accounts 101400 ** 7/10/2000 1/1/2004 VP Business Development **
Indirect Sales 101400 ** 12/20/1999 3/17/2002 Executive Assistant **
Administration 101400 ** 9/10/2001 1/1/2003 Executive Vice President - Operations **
Administration 101400 ** 1/20/1993 3/17/2002 EVP Sales & Marketing **
Administration 101400 ** 1/5/1998 3/17/2002 EVP Business Development **
Administration 101400 ** 10/23/2000 10/23/2000 Executive Assistant **
Administration 101400 ** 10/1/2003 10/1/2003 VP/CIO **
Finance & Accounting 101401 ** 10/8/2001 10/8/2001 Accountant **
Finance & Accounting 101401 ** 4/21/1997 12/8/2003 Staff Accountant **
Finance & Accounting 101401 ** 1/10/2000 4/28/2002 Financial Analyst **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Finance & Accounting 101401 ** 9/29/2003 9/30/2003 Staff Accountant **
Finance & Accounting 101401 ** 11/6/2000 12/8/2003 Senior Accounts Payable Specialist **
Finance & Accounting 101401 ** 1/19/2004 1/19/2004 Financial Analyst **
Finance & Accounting 101401 ** 12/3/2001 12/3/2001 Business Analyst **
Finance & Accounting 101401 ** 1/19/1998 7/21/2003 VP Controller **
JDE 101401 ** 10/27/1998 5/13/2002 Accounting Manager **
Finance & Accounting 101401 ** 2/17/2003 2/17/2003 Staff Accountant **
Finance & Accounting 101401 ** 9/29/2003 9/29/2003 Accounts Payable Supervisor **
Finance & Accounting 101401 ** 4/7/2003 4/7/2003 Freight Analyst **
Finance & Accounting 101401 ** 7/6/1999 1/1/2001 Senior Accounts Payable Specialist **
Finance & Accounting 101401 ** 3/13/2000 3/17/2002 Executive Assistant **
Channel Development 101401 ** 11/18/1996 7/1/2002 Financial Analyst **
Finance & Accounting 101401 ** 4/14/2003 4/14/2003 Financial Analyst **
Finance & Accounting 101401 ** 10/29/2002 10/29/2002 Accounts Payable Specialist **
Finance & Accounting 101401 ** 5/8/2001 5/8/2001 Accounting Manager **
Finance & Accounting 101401 ** 5/1/2000 9/1/2002 Disbursement Manager **
Finance & Accounting 101401 ** 10/28/2002 10/28/2002 Financial Analyst Inventory **
Finance & Accounting 101401 ** 7/28/2003 7/28/2003 Staff Accountant **
Finance & Accounting 101401 ** 3/30/1998 5/18/2001 Business Analysis Manager **
Finance & Accounting 101401 ** 9/10/2001 1/5/2004 Financial Analyst **
HR 101402 ** 2/21/2000 9/2/2003 Payroll & Benefits Manager **
HR 101402 ** 7/20/1998 9/2/2003 HR Assistant **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
▇▇ ▇▇▇▇▇▇ ** 9/1/2003 9/1/2003 Vice President, Human Resources **
HR 101402 ** 2/9/2000 2/9/2000 Executive Assistant **
HR 101402 ** 12/15/1997 2/5/2001 Employee Relations Manager **
Credit 101403 ** 5/24/1999 11/26/2001 Collection Specialist **
Credit 101403 ** 1/27/2003 1/27/2003 Cash Application Specialist **
Credit 101403 ** 6/19/2000 9/16/2002 Supervisor BP Collections **
Credit 101403 ** 12/6/1999 1/5/2004 BPNA Collections Supervisor **
Credit 101403 ** 7/24/2000 7/24/2000 Credit Specialist **
Credit 101403 ** 1/12/1995 2/14/2001 Sr. Cash Application Specialist **
Credit 101403 ** 5/12/2003 5/12/2003 Credit Analyst, Sr. **
Credit 101403 ** 10/17/2000 6/1/2001 Sr. Cash Application Specialist **
Credit 101403 ** 1/12/2004 1/12/2004 Credit Analyst **
Credit 101403 ** 3/17/2003 3/17/2003 Collection Specialist **
Credit 101403 ** 9/4/2001 1/5/2004 Mgr Collections & Accts Receivable **
Credit 101403 ** 6/4/2001 6/4/2001 Collection Specialist **
Credit 101403 ** 12/19/1994 1/1/2001 Sr. Cash Application Specialist **
Credit 101403 ** 8/23/1999 1/1/2004 Collection Specialist **
Credit 101403 ** 8/25/2003 1/1/2004 Cash Application Specialist **
Credit 101403 ** 9/5/2000 1/1/2001 File Clerk **
Credit 101403 ** 2/4/2002 9/15/2002 Cash Application Specialist **
Credit 101403 ** 3/8/2002 11/11/2002 Collection Specialist **
Credit 101403 ** 11/12/2001 11/12/2001 Collection Specialist **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Credit 101403 ** 9/16/2002 9/16/2002 Collection Specialist **
Credit 101403 ** 4/15/2002 4/15/2002 Reconciliation/RTM Specialist **
Credit 101403 ** 1/20/1997 8/25/1997 Credit Specialist **
Credit 101403 ** 6/19/2000 1/5/2004 Senior Collection Specialist **
Credit 101403 ** 6/24/2002 9/16/2002 Collection Specialist **
Credit 101403 ** 5/28/2002 5/29/2002 Collection Specialist **
Credit 101403 ** 4/5/1999 1/1/2004 Cash Application Specialist **
Credit 101403 ** 4/13/1998 11/22/1999 Credit Specialist **
Freight - Finance 101408 ** 3/10/1999 9/29/2003 Freight Specialist **
Freight - Finance 101408 ** 10/18/1999 8/18/2002 Transportation Planner Supervisor **
Freight - Finance 101408 ** 4/14/2003 4/14/2003 Sr. Logistics Manager **
Credit 101417 ** 10/23/2000 1/1/2004 Supervisor A/R & Acct Reconcilliation **
Credit 101417 ** 12/13/1999 1/19/2003 Reconciliation Specialist **
Nextel Credit 101417 ** 4/8/2002 4/8/2002 Collection Specialist **
Credit 101417 ** 12/20/1999 5/13/2002 Credit Specialist **
Nextel Credit 101417 ** 7/10/2000 5/27/2002 Collection Specialist **
Credit 101417 ** 3/12/2001 6/10/2002 Sr. Account Reconciliation Specialist **
Credit 101417 ** 6/30/2003 6/30/2003 Reconciliation Specialist **
Credit 101417 ** 1/28/2002 10/28/2002 Sr. Collection Specialist **
Credit 101423 ** 7/1/2002 7/1/2002 Collection Specialist **
Credit 101423 ** 2/12/2001 1/5/2004 BPNA COLLECTIONS MANAGER **
IT 101501 ** 5/26/1998 10/4/1999 Database Administrator **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
IT 101501 ** 5/30/2000 5/8/2001 Web Architect **
IT 101501 ** 7/23/2001 1/1/2002 Customer Integration Manager **
IT 101501 ** 2/7/2000 2/23/2002 Director Applications, Finance, HR **
IT 101501 ** 9/25/2000 1/6/2003 Manager - IT Applications Development **
IT 101501 ** 5/20/1996 2/6/2003 VP IT **
IT 101501 ** 5/15/2001 5/15/2001 Web Architect **
IT 101501 ** 3/9/1998 12/13/1999 Jr. Systems Admin-NT/Novell **
IT 101501 ** 7/24/2000 7/24/2000 Microsystems Specialist **
IT 101501 ** 3/24/2002 3/24/2002 Programmer/Analyst **
IT 101501 ** 3/6/2000 3/6/2000 Systems Administrator NT **
IT 101501 ** 5/20/1996 9/3/2001 Microsystems Specialist **
IT 101501 ** 10/25/1999 2/22/2002 Systems Programmer/Analyst **
IT 101501 ** 4/3/2000 1/6/2003 Manager - IT Applications Development **
IT 101501 ** 5/5/1997 12/13/1999 Systems Administrator NT **
IT 101501 ** 1/26/2004 1/26/2004 Business Analyst- Senior **
IT 101501 ** 2/15/1999 2/22/2002 Programmer/Analyst **
IT 101501 ** 3/26/2001 3/26/2001 Microsystems Specialist **
IT 101501 ** 8/18/1997 6/21/1999 Network Engineer **
IT 101501 ** 2/19/2001 2/19/2001 System Support Specialist **
IT 101501 ** 8/17/1998 2/22/2002 Lead Analyst **
IT 101501 ** 4/20/1998 10/22/2000 Lead Analyst **
IT 101501 ** 9/7/1999 7/24/2000 EDI Coordinator/Supervisor **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
IT 101501 ** 9/16/1996 8/6/2001 ERP Administrator **
IT 101501 ** 12/4/2000 3/17/2002 Executive Assistant **
IT 101501 ** 7/13/1998 9/15/1999 Programmer/Analyst **
IT 101501 ** 3/30/2001 3/30/2001 Systems Administrator **
IT 101501 ** 5/10/1999 6/12/2000 Network Technician **
IT 101501 ** 2/24/1997 6/21/1999 Network Support Coordinator **
IT 101501 ** 7/11/1999 2/22/2002 Director Applications **
IT 101501 ** 9/15/2003 9/15/2003 Director of Business Integration **
IT 101501 ** 6/15/1998 2/22/2002 Lead Analyst **
IT 101501 ** 12/31/2001 12/31/2001 Microsystems Specialist **
IT 101501 ** 1/28/2002 1/28/2002 Web Architect **
IT 101501 ** 10/26/2001 2/18/2002 Web Architect **
IT 101501 ** 9/23/2002 9/23/2002 IT Operations Manager **
IT 101501 ** 10/9/2000 1/6/2003 Manager - IT Web Development **
IT 101501 ** 10/16/2000 2/22/2002 Programmer/Analyst **
Resource Planning 101703 ** 12/18/2000 11/24/2002 Expeditor **
Resource Planning 101703 ** 3/16/1998 2/9/2001 Resource Planning Analyst **
Resource Planning 101703 ** 8/25/1997 12/9/2002 Resource Planning Analyst **
Resource Planning 101703 ** 11/8/1999 1/20/2003 Sr Manager of Tech & Resource Solutions **
Resource Planning 101703 ** 12/17/2001 10/14/2002 Resource Planning Analyst **
Resource Planning 101703 ** 11/8/1999 2/12/2001 Resource Planning Analyst **
Telesales Support 101801 ** 7/29/2002 1/2/2004 Telesales Representative **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Telesales Support 101801 ** 3/3/2003 3/3/2003 Workforce Coordinator **
Telesales Support 101801 ** 3/10/2003 1/2/2004 Telesales Representative **
Telesales Support 101801 ** 3/10/2003 1/2/2004 Telesales Representative **
Telesales Support 101801 ** 3/10/2003 1/2/2004 Telesales Representative **
BRIGHTPOINT INDIANAPOLIS EMPLOYEE LIST
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Facility Cost 108361 ** 11/20/2000 2/20/2004 Process Analyst **
Facility Cost 108361 ** 2/10/1997 3/1/2001 Sr. Director General Manager **
Shipping 108362 ** 9/17/2001 1/5/2004 Material Handler **
Shipping 108362 ** 5/24/1999 1/5/2004 Cargo Specialist-TL **
Shipping 108362 ** 3/17/1997 10/15/2001 Operations Manager **
Receiving & Putaway 108363 ** 9/25/2000 2/20/2004 Receiving TL **
Receiving & Putaway 108363 ** 6/19/2000 1/5/2004 Receiving Specialist **
Receiving & Putaway 108363 ** 2/3/2003 2/20/2004 Warehouse Specialist **
Receiving & Putaway 108363 ** 10/18/1999 1/20/2004 Operations Supervisor **
Receiving & Putaway 108363 ** 2/3/1999 9/20/1999 Receiving Specialist **
BSS Fulfillment 108363 ** 11/12/2001 2/20/2004 Warehouse Specialist **
Returns 108366 ** 5/1/2000 11/24/2003 Returns Qualifier **
Returns 108366 ** 2/22/1999 2/20/2004 Material Handler **
Returns 108366 ** 8/27/2001 1/5/2004 Warehouse Specialist **
Inventory Control 108367 ** 2/8/1999 2/20/2004 Invent Ctrl - TL **
Inventory Control 108367 ** 6/19/2000 2/20/2004 Material Handler **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Inventory Control 108367 ** 10/2/2000 2/20/2004 Material Handler **
Inventory Control 108367 ** 5/26/1998 1/5/2004 Invent Ctrl - TL **
Inventory Control 108367 ** 2/3/2003 2/21/2004 Warehouse Specialist **
Quality Control 108368 ** 1/24/2000 7/7/2002 Quality Control Inspector **
Quality Control 108368 ** 1/24/2000 1/5/2004 Quality Control Inspector **
Quality Control 108368 ** 6/5/2000 7/1/2002 Quality Control Inspector **
Quality Control 108368 ** 1/26/1998 1/5/2004 Quality Control Inspector **
Quality Control 108368 ** 1/8/2001 1/5/2004 Quality Control Inspector **
Kitting 108369 ** 1/27/2003 2/20/2004 Warehouse Specialist **
Kitting 108369 ** 2/3/2003 2/20/2004 Warehouse Specialist **
Warehouse 108369 ** 6/19/2000 1/7/2002 Receiving Specialist **
BSS Fulfillment 108394 ** 4/28/2003 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 10/23/2000 2/21/2004 Material Handler **
BSS Fulfillment 108394 ** 9/17/2001 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 5/27/2003 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 11/22/1999 2/20/2004 Material Handler **
BSS Fulfillment 108394 ** 5/27/2003 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 12/2/2002 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 6/11/2001 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 12/10/2001 2/20/2004 Warehouse Specialist **
Material Handler 108394 ** 2/15/1999 1/6/2004 Material Handler-TL **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
BSS Fulfillment 108394 ** 8/28/2000 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 11/20/2000 2/20/2004 Warehouse Specialist **
BSS Fulfillment 108394 ** 2/3/2003 2/20/2004 Warehouse Specialist **
BRIGHTPOINT ACTIVATION SERVICE EMPLOYEES LOCATED IN VARIOUS LOCATIONS
Channel Development 101115 ** 7/8/2002 1/1/2004 Regional Manager Southeast **
Channel Development 101115 ** 6/9/2003 6/9/2003 Regional Channel Development Rep **
Channel Development 101115 ** 10/29/2002 11/25/2003 Channel Development Regional Manager **
Channel Development 101115 ** 10/29/2002 2/21/2004 Regional Sales Representative **
Channel Development 101115 ** 7/7/2003 7/7/2003 Regional Manager Northeast **
Channel Development 101115 ** 12/8/2003 12/8/2003 Regional Channel Development Rep **
Channel Development 101115 ** 3/3/2003 3/3/2003 Regional Channel Development Rep **
Channel Development 101115 ** 7/5/2000 6/10/2002 Supervisor Channel Development **
Channel Development 101115 ** 9/15/2003 9/15/2003 Channel Development Field Representative **
Channel Development 101115 ** 5/29/2001 8/31/2002 Account Representative **
Channel Development 101115 ** 10/15/2001 10/1/2002 Account Representative **
Channel Development 101115 ** 7/8/2002 2/21/2004 Regional Channel Development Rep **
Channel Development 101115 ** 8/11/2003 2/21/2004 Regional Channel Development Rep **
Channel Development 101115 ** 7/7/2003 7/7/2003 Regional Channel Dvlpmt Manager **
Channel Development 101115 ** 10/27/2003 10/27/2003 Regional Channel Development Rep **
Channel Development 101115 ** 10/29/2002 10/29/2002 Regional Channel Development Rep **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Channel Development 101115 ** 12/15/2003 12/15/2003 Regional Channel Development Rep **
Channel Development 101115 ** 9/29/2003 9/29/2003 Regional Channel Development Rep **
Channel Development 101115 ** 1/29/2001 9/1/2003 Channel Development Field Representative **
Channel Development 101115 ** 12/2/2003 12/2/2003 Regional Sales Representative **
Channel Development 101115 ** 3/2/1998 2/1/2004 Sale Operation Manager **
Channel Development 101115 ** 7/8/2002 7/8/2002 Regional Channel Development Rep **
Channel Development 101115 ** 9/29/2003 9/29/2003 Regional Manager West **
Channel Development 101115 ** 12/8/2003 12/8/2003 Regional Sales Representative **
Channel Development 101115 ** 2/12/2002 1/2/2004 Regional Channel Development Rep **
Channel Development 101115 ** 10/29/2002 10/29/2002 Regional Channel Development Rep **
Channel Development 101115 ** 12/2/2003 2/21/2004 Regional Channel Development Rep **
Channel Development 101115 ** 8/27/2001 1/3/2004 Regional Manager South Central **
Channel Development 101115 ** 8/27/2001 10/27/2002 Regional Channel Dvlpmt Manager **
Channel Development 101115 ** 10/29/2002 10/29/2002 Regional Channel Development Rep **
Channel Development 101115 ** 6/9/2003 6/9/2003 Supervisor Channel Development **
Channel Development 101115 ** 1/20/2003 2/21/2004 Regional Channel Development Rep **
Channel Development 101115 ** 1/12/2004 2/21/2004 Regional Sales Representative **
Channel Development 101115 ** 5/12/2003 5/12/2003 Regional Channel Dvlpmt Manager **
Channel Development 101115 ** 11/17/2003 11/17/2003 Channel Development Field Representative **
Channel Development 101115 ** 7/7/2003 2/21/2004 Regional Channel Development Rep **
HIRE APPT START
DEPT DEPT. NAME DATE DATE TITLE REPORTS TO
---------------------- ------ ---- ---------- ---------- ---------------------------------------- ----------
Channel Development 101115 ** 10/25/1999 7/7/2002 CSR **
Channel Development 101115 ** 7/8/2002 7/8/2002 Regional Channel Development Rep **
Channel Development 101115 ** 7/22/1996 6/9/2002 Regional Channel Dvlpmt Manager **
Channel Development 101115 ** 1/2/2001 8/4/2003 Supervisor - Channel Dev. & Services **
Channel Development 101115 ** 7/7/2003 7/7/2003 Regional Channel Development Rep **
Channel Development 101115 ** 4/21/2003 2/21/2004 Channel Development Field Representative **
Last Updated on 3/1/2004 **
(g) Summary of open employment matters:
1. Cricket ▇▇▇▇ ▇. Brightpoint, Inc.; ICRC Complaint No. EMse01060355; EEOC
Charge No. 24FA10298. This complaint was filed with the Indiana Civil
Rights Commission ("ICRC") on June 22, 2001. ▇▇▇▇ is a former employee of
the Company. She alleges that the Company unlawfully terminated her
employment on the basis of her sex. We filed a position statement with the
ICRC on November 8, 2001. The ICRC recently contacted us to obtain
information in this matter and we will be responding on behalf of the
Company.
2. ▇▇▇▇▇ ▇▇▇ v. Brightpoint North America; EEOC Charge No. ▇▇▇-▇▇▇▇-▇▇▇▇▇.
This charge of race discrimination was filed with the EEOC on September
25, 2003, and was dismissed by the EEOC on December 18, 2003. Gee alleged
that he was not compensated in the same manner as similarly-situated
co-workers. Gee has until approximately March 18, 2004 to file a lawsuit
against the Company under Title VII. We have not been notified of any such
filing.
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇ v. Brightpoint North America; EEOC Charge No.
▇▇▇-▇▇▇▇-▇▇▇▇▇. This charge of race, color, sex discrimination and
retaliation was filed with the EEOC on or about October 20, 2003, and
amended in December, 2003. ▇▇▇▇▇ alleges that he was harassed and treated
different than white employees. He claims that the Company applied
disciplinary rules against him that were not applied against
non-minorities. The EEOC is investigating this matter.
4. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ v. Brightpoint North America; EEOC Charge No.
▇▇▇-▇▇▇▇-▇▇▇▇▇. This charge of race, color, sex discrimination and
retaliation was filed with the EEOC on or about October 20, 2003, and
amended in December of 2003. ▇▇▇▇▇▇ alleges that he has not been treated
in the same manner as similarly-situated co-workers. He also alleges
discrimination in assignment of overtime, vacation pay, and in
compensation. The EEOC is investigating this matter.
5. ▇▇▇▇ ▇▇▇▇▇ v. Brightpoint North America. ▇▇▇▇ ▇▇▇▇▇ was terminated by the
Company in November, 2003, from a commissioned sales position, as part of
a general reduction in force that affected the Company's Indianapolis and
Reno offices. The Company received a letter from ▇▇▇▇▇'▇ attorney on
November 13, 2003, alleging that ▇▇▇▇▇ was terminated for inappropriate
reasons. However, there is no assertion in the letter that the termination
was unlawful. ▇▇▇▇▇ has demanded a payment of $11,520 in exchange for the
separation and release agreement offered to him when he was terminated. We
are not aware of the filing of any legal action in this matter.
6. ▇▇▇▇ ▇▇▇▇▇▇▇ v. Brightpoint North America; EEOC Charge No. ▇▇▇-▇▇▇▇-▇▇▇▇▇.
This charge of sex discrimination was filed with the EEOC on November 3,
2003. ▇▇▇▇▇▇▇ alleges that he applied for a Quality Control position and
was not selected. He states that he believes he has been discriminated
against due to his sex because there are no male employees in the job he
seeks and because he trained the individual who was selected for the
position he wanted. The EEOC is investigating this matter.
7. ▇▇▇▇▇ ▇▇▇▇▇ v. Brightpoint North America; EEOC Charge No. ▇▇▇-▇▇▇▇-▇▇▇▇▇.
This charge of race and disability discrimination and retaliation was
filed with the EEOC on December 2, 2003. ▇▇▇▇▇ alleges that during her
employment she was subject to a hostile environment. She states that she
was terminated by the Company on October 6, 2003 and that this action was
discriminatory and retaliatory. The EEOC is investigating this matter.
8. ▇▇▇▇ ▇▇▇▇▇ v. Brightpoint North America; EEOC Charge No. ▇▇▇-▇▇▇▇-▇▇▇▇▇.
This charge of race discrimination and retaliation was filed with the EEOC
on February 27, 2004. ▇▇▇▇▇ alleges that she was terminated after she met
with a Human Resources representative to complain about race
discrimination. The EEOC is investigating this matter.
DISCLOSURE SCHEDULE 3.8
TO CREDIT AGREEMENT
Ventures, Subsidiaries and Affiliates; Outstanding Stock and Indebtedness
1. BRIGHTPOINT NORTH AMERICA, INC.
Authorized: 1,000 shares
Issued and Outstanding shares: 100 shares Brightpoint, Inc.
2. BRIGHTPOINT INTERNATIONAL LTD.
Authorized: 2,000 shares
Issued and Outstanding shares: 400 shares Brightpoint, Inc.
3. WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
Authorized: 3,000
Issued and Outstanding: 100 Shares Brightpoint, Inc.
4. WIRELESS FULFILLMENT SERVICES LLC
Wireless Fulfillment Services Holdings, Inc. Interest: 99%
Brightpoint International Ltd. Interest: 1%
5. BRIGHTPOINT NORTH AMERICA L.P.
General Partnership Interest held by Brightpoint North America, Inc.: 1%
Limited Partnership Interest held by Brightpoint, Inc.: 99%
6. BRIGHTPOINT ACTIVATION SERVICES LLC
Limited Liability Membership Interest held by Brightpoint North America L.P.:
100%
DISCLOSURE SCHEDULE 3.11
TO CREDIT AGREEMENT
Taxes
BPI has contested in good faith the assessment by the State of Indiana of
Indiana Sales/Use Tax in the amount of $86,449.53, plus interest of $9,686.61
and a penalty in the amount of $8,644.95, for the tax years 1996, 1997 and 1998.
Adequate reserves have been established by Brightpoint in accordance with GAAP.
BPI has agreed with the IRS to extend the statute of limitations for tax
periods ending December 31, 1999, December 31, 2000, and December 31, 2001, in
each case, through December 31, 2005.
DISCLOSURE SCHEDULE 3.12
TO CREDIT AGREEMENT
ERISA
(a)(1) - ERISA Affiliates
Brightpoint Holdings B.V. Brightpoint Unit Trust Eurocom Systems, S.A.
Brightpoint North America, Inc. Brightpoint New Zealand Limited Mega-Hertz SARL
Brightpoint International Ltd. Brightpoint Australasia Pty. Autocom SARL
Limited
Brightpoint Latin America, Inc. Brightpoint Philippines, Inc. Brightpoint Zimbabwe (Private)
Limited
Wireless Fulfillment Services Brightpoint Taiwan Limited Brightpoint (South Africa)
Holdings, Inc. (Proprietary) Limited
Brightpoint North America L.P. Brightpoint EMA B.V. Brightpoint (UK) Limited
Brightpoint do Brasil Ltda. Brightpoint France (SARL) Ericsson Alliance Proprietary
Limited
Brightpoint de Venezuela C.A. Brightpoint Sweden AB Brightpoint GmbH
Brightpoint de Mexico, S.A. Brightpoint Slovakia S.R.O. Brightpoint Norway
de C.V.
Brightpoint Solutions de Mexico, Brightpoint EMA Limited Axess Communication
S.A. de C.V. Sp. z. o.o.
Brightpoint B.V. Brightpoint Germany GmbH Brightpoint Asia Limited
Brightpoint de Colombia, Inc. Brightpoint Netherlands Holdings Brightpoint Taiwan
B.V.
Brightpoint International Holdings Brightpoint (Private) Limited Brightpoint International
B.V. (Asia Pacific) Pte. Ltd.
Brightpoint India Private Limited Winning Land Company Limited Advanced Portable Technologies
Pty Ltd
Wireless Fulfillment Services Brightpoint Australia Pty Ltd Brightpoint Activation Services
LLC LLC
(a)(ii) - ERISA Pension and Retiree Welfare Plans
Brightpoint, Inc. 401(k) Plan
DISCLOSURE SCHEDULE 3.13
TO CREDIT AGREEMENT
Litigation
None, save and except as to matters disclosed on Disclosure Schedule 3.7.
DISCLOSURE SCHEDULE 3.15
TO CREDIT AGREEMENT
Intellectual Property
The Borrowers either own or have the rights to use all the following
Intellectual Property:
COUNTRY SERIAL # REGISTRATION # ISSUED
------- -------- -------------- ------
Title
BRIGHTLINK U.S. 74/711,577 2,095,698 9/9/97
BRIGHTPOINT U.S. 75/591,726 2,353,363 5/30/00
BRIGHTPOINT & DESIGN U.S. 75/182,057 2,170,782 7/7/98
BRIGHTPOINT DIRECT U.S. 76/184,944
BRIGHTPOINT ONLINE U.S. 76/185,967 2,729,911 6/24/03
ECLIPSE LOGO U.S. 75/354,459 2,247,244 5/25/99
WIRELESS COMMUNICATION PRODUCT FULFILLMENT SYSTEM U.S. 08/871,873 6,029,143 2/22/00
PATENT
WIRELESS COMMUNICATION PRODUCT FULFILLMENT SYSTEM U.S. 09/483,714 6,393,408 5/21/02
PATENT
BRIGHTPOINT CREATIVE WIRELESS DISTRIBUTION CUSTOMER COMMITMENT U.S. 78/373,845 2/24/2004
CUSTOMIZED SERVICES
BRIGHTPOINT CREATIVE WIRELESS DISTRIBUTION CUSTOMER COMMITMENT U.S 78/368,830 2/17/2004
CUSTOMIZED SERVICES
BRIGHTPOINT YOUR SUCCESS IS OUR BUSINESS and Design U.S. 78/372,846 2/24/2004
BRIGHTPOINT YOUR SUCCESS IS OUR BUSINESS U.S. 78/368,682 2/16/2004
On June 6, 2003, BPI filed the Trademark/Service ▇▇▇▇ Applications listed below,
and BPI has given BAS the right to use such marks.
Title COUNTRY SERIAL #
----- ------- --------
ACCESSPOINT A BRIGHTPOINT DEALER NETWORK U.S. 78/259,403
(stylized or with design)
ACCESSPOINT U.S. 78/260,049
Brightpoint Holdings and Wireless Holdings do not own or use any Intellectual
Property.
DISCLOSURE SCHEDULE 3.17
TO CREDIT AGREEMENT
Environmental Matters
None.
DISCLOSURE SCHEDULE 3.18
TO CREDIT AGREEMENT
Insurance
See attached.
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information
SCHEDULE 3.18
INSURANCE
BRIGHTPOINT NORTH AMERICA SCHEDULE OF INSURANCE POLICIES 3/1/04
POLICY TERM LIMITS DEDUCTIBLE POLICY NUMBER INSURER
Boiler & Machinery 08/01/03-08/01/04 ** ** ** **
California Earthquake 04/23/03-04/23/04 ** ** ** **
California Workers Comp 08/01/03-08/01/04 ** ** ** **
Crime 08/01/03-08/01/04 ** ** ** **
Domestic Auto Liability 08/01/03-08/01/04 ** ** ** **
Domestic Liability 08/01/03-08/01/04 ** ** ** **
Domestic Workers Comp 08/01/03-08/01/04 ** ** ** **
Employment Practices Liab. 08/01/03-08/01/04 ** ** ** **
Fiduciary Liability 08/01/03-08/01/04 ** ** ** **
Foreign Liability 08/01/03-08/01/04 ** ** ** **
Foreign Terrorism 08/01/03-08/01/04 ** ** ** **
Kidnap & ▇▇▇▇▇▇ 08/01/03-08/01/06 ** ** ** **
Nevada Earthquake 08/01/03-08/01/04 ** ** ** **
Professional Liability 08/31/03-08/31/04 ** ** ** **
Property 08/01/03-08/01/04 ** ** ** **
Transportation 11/30/03-11/30/04 ** ** ** **
Travel Health & Accident 08/01/03-08/01/04 ** ** ** **
Umbrella Liability 08/01/03-08/01/04 ** ** ** **
**
NOTE: THE POLICIES REFERENCED ABOVE ARE SHOWN WITH BASE LIMITS AND DEDUCTIBLES.
SUBLIMITS MAY BE CONTAINED
WITHIN THESE POLICIES FOR SPECIFIC PORTIONS OF THE COVERAGE. SUMMARIZES OF THE
FOREGOING POLICIES HAVE BEEN PROVIDED TO AGENT.
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information
DISCLOSURE SCHEDULE 3.19
TO CREDIT AGREEMENT
Deposit & Disbursement Accounts
BRIGHTPOINT NORTH AMERICA L.P.
National City Bank of Indiana
** **
** **
** **
** **
** **
** **
** **
** **
LaSalle Bank - Chicago
** **
WIRELESS FULFILLMENT SERVICES LLC
National City Bank of Indiana
** **
** **
** **
** **
** **
** **
** **
Contacts
** **
DISCLOSURE SCHEDULE 3.20
TO CREDIT AGREEMENT
Government Contracts
Wireless sells wireless communications devices accessories to Government
Authorities from time to time in the ordinary course of its business.
DISCLOSURE SCHEDULE 3.22
TO CREDIT AGREEMENT
Agreements and Other Documents
The following supply and purchase agreements are not terminable by the
applicable Loan Party within 60 days prior written notice and involve
transactions in excess of $5,000,000 per annum (excepting only contracts
pursuant to which handsets and/or accessories are purchased in the ordinary
course of business by customers from any Loan Party or its Affiliates):
SUPPLIER NAME
LESSOR/VENDOR SUPPLIER CONTRACT
NAME DESCRIPTION
Alltel Customer Fulfillment Service Agreement by and between ALLTEL
Communications, Inc. and Brightpoint, dated as of July 13,
2001, as amended by that certain First Amendment to Customer
Fulfillment Services Agreement dated June 23, 2003 and Second
Amendment to Customer Fulfillment Services Agreement dated
October 13, 2003.
Sony Ericsson Standard Distribution Agreement by and between Sony Ericsson
Mobile Communications (USA) Inc. and Brightpoint,
dated June 1, 2002.
Kyocera Supply Agreement by and between Kyocera Wireless Corp. and
Brightpoint, dated as of September 4, 2001, as amended by that
certain First Amendment to Supply Agreement dated November 15,
2001, Second Amendment to Supply Agreement dated April 29,
2002 and Third Amendment to Supply Agreement dated September
5, 2003.
Nokia Distributor Agreement by and between Nokia Mobile Phones, Inc.
and Brightpoint, as assignee of Brightpoint, Inc., dated as of
December 22, 1999, as amended by that certain Amendment No. 1
to Distribution Agreement dated December 19, 2002 and Second
Amendment to Distribution Agreement dated December 27, 2003.
DISCLOSURE SCHEDULE 5.1
TO CREDIT AGREEMENT
Maintenance of Existence and Conduct of Business
Brightpoint transacts business under the following corporate and trade names:
- Brightpoint North America L.P.
- Brightpoint North America
- Brightpoint
Brightpoint Holdings transacts business under the following corporate name:
- Brightpoint North America, Inc.
Brightpoint International transacts business under the following corporate name:
- Brightpoint International Ltd.
Wireless transacts business under the following corporate and trade names:
- Wireless Fulfillment Services LLC
- Wireless Stockroom, Inc.
- Wireless Stockroom
- TracFone Wireless Accessories
- Alltel
- Sprint PCS Accessories Hotline
- Nextel Nextday Accessories
- STi Mobile
- Nextel Communications
Wireless Holdings transacts business under the following corporate and trade
names:
- Wireless Fulfillment Services Holdings, Inc.
- Brightpoint Subscriber Services
BAS transacts business under the following names:
- Brightpoint Activation Services LLC
- Brightpoint Activation Services
- Accesspoint a Brightpoint Dealer Network
** Portions of this document indicated by ** have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment of such omitted information
DISCLOSURE SCHEDULE 6.3
TO CREDIT AGREEMENT
Indebtedness
Existing Indebtedness includes:
I. Standby letter of credit - ** **
Standby letter of credit - ** **
--
Total **
II. Any Indebtedness secured by any of the Liens identified on Disclosure
Schedule 6.7 (except with respect to those Liens identified on Disclosure
Schedule 6.7 as already terminated or as being terminated on the
Restatement Date).
DISCLOSURE SCHEDULE 6.4(A)
TO CREDIT AGREEMENT
EMPLOYEE LOAN AND AFFILIATE TRANSACTIONS
Wireless
Brightpoint Fulfillment Eliminations Consolidation
----------- ----------- ------------ -------------
Intercompany receivable - BPI $ 18,605,727 $ -- ($ 8,854,438) $ 9,751,289
Intercompany receivable - Wireless $ 7,278,479 $ -- ($ 7,278,479) $ --
Intercompany payable - Brightpoint $ -- ($ 7,278,479) $ 7,278,479 $ --
Long-term intercompany receivable (payable) - BPI $ 76,882,948 $ 455,144 ($28,595,920) $ 48,742,172
------------ ------------ ------------ ------------
Total intercompany receivable - BPI $102,767,154 ($ 6,823,335) ($37,450,358) $ 58,493,461
DISCLOSURE SCHEDULE 6.7
TO CREDIT AGREEMENT
Liens
The following is a list of Liens on record as of the Closing Date.
I. The standby letters of credit disclosed in Schedule 6.3
II.
TYPE OF
DEBTOR SECURED PARTY FILING LOCATION COLLATERAL
------ ------------- ------ -------- ----------
1. BRIGHTPOINT, INC. CIT Communications Finance UCC Delaware - Leased equipment
Corporation Secretary of State
2. Brightpoint, Inc. Bank One, NA UCC Delaware - Certificate of
Secretary of State deposit accounts
▇▇▇-▇▇▇-▇▇▇▇▇▇▇ &
▇▇▇-▇▇▇-▇▇▇▇▇▇▇
3. Brightpoint, Inc. CIT Communications Finance UCC Delaware - Leased equipment
Corporation Secretary of State
4. Brightpoint, Inc. Dell Financial Services, L.P. UCC Delaware - Leased computer
Secretary of State equipment
5. Brightpoint, Inc. Konica Business Machines UCC Indiana - Copier
Secretary of State
6. Brightpoint, Inc. Conseco Finance Vendor UCC Indiana - 2 Copiers
Services Corporation Secretary of State
7. Brightpoint, Inc. Hewlett-Packard Company UCC Indiana - Leased equipment
Finance & Remarketing Division Secretary of State
8. Brightpoint, Inc. Nextel Finance Company UCC Indiana - Precautionary/non-security
Secretary of State interest bailment
of handsets and
accessories
9. Brightpoint, Inc. Hewlett-Packard Company UCC Indiana - Leased equipment
Finance & Remarketing Division Secretary of State
TYPE OF
DEBTOR SECURED PARTY FILING LOCATION COLLATERAL
------ ------------- ------ -------- ----------
10. Brightpoint, Inc. Newcourt Communications UCC Indiana - Leased equipment
Finance Corporation Secretary of State
11. Brightpoint, Inc. Tokyo Leasing (USA) Inc. UCC Indiana - Specific equipment
Secretary of State
12. Brightpoint, Inc. Agilent Technologies Finance & UCC Indiana - Leased equipment
Remarketing Division Secretary of State
13. Brightpoint, Inc. Agilent Technologies Finance & UCC Indiana - Leased equipment
Remarketing Division Secretary of State
14. Brightpoint, Inc. Agilent Technologies Finance & UCC Indiana - Leased equipment
Remarketing Division Secretary of State
Brightpoint, Inc. State of Indiana Tax ▇▇▇▇▇▇ County, State tax lien
Indiana for $1,415.00
15. BRIGHTPOINT NORTH ▇▇▇▇▇▇▇ Leasing Corporation UCC Delaware - Specific equipment
AMERICA L.P. Secretary of State
16. Brightpoint North ▇▇▇▇▇▇▇ Leasing Corporation UCC Delaware - Specific equipment
America L.P. Secretary of State
17. Brightpoint North Associated Materials Handling UCC Indiana - Specific equipment
America L.P. Industries, Inc. Secretary of State
18. Brightpoint North Bankers/Softech Division of UCC Indiana - Sun Server
America L.P. EAB Leasing Corp. Secretary of State Equipment
19. Brightpoint North Konica Business Machines UCC Nevada - Secretary Copier
America LP of State
20. Brightpoint North Konica Business Machines Fixture Washoe County, Copier
America LP Nevada
21. BRIGHTPOINT NORTH Bankers/Softech Division of UCC Indiana - Precautionary
AMERICA, INC. EAB Leasing Corp. Secretary of State filing against
leased equipment
TYPE OF
DEBTOR SECURED PARTY FILING LOCATION COLLATERAL
------ ------------- ------ -------- ----------
22. Brightpoint North Bankers/Softech Division of UCC Indiana - Computer Software
America, Inc. EAB Leasing Corp. Secretary of State
23. Brightpoint North Nextel Finance Company UCC Nevada - Secretary Precautionary/non-security
America, Inc. of State interest bailment
of handsets and
accessories
24. WIRELESS FULFILLMENT Nextel of California, Inc. UCC California - Precautionary/non-security
SERVICES LLC Secretary of State interest bailment
of handsets and
accessories
25. Wireless Fulfillment CIT Communications Finance UCC California - Leased equipment
Services LLC Corporation Secretary of State
26. Wireless Fulfillment CIT Communications Finance UCC California - Leased equipment
Services LLC Corporation Secretary of State
27. Wireless Fulfillment CIT Communications Finance UCC California - Leased equipment
Services LLC Corporation Secretary of State
