EXHIBIT 99.3
EXECUTION COPY
AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 21, 2001 among BRIGHTPOINT NORTH AMERICA L.P., a Delaware
limited partnership ("Brightpoint"), and WIRELESS FULFILLMENT SERVICES LLC, a
California limited liability company ("Wireless", together with Brightpoint, the
"Borrowers"), the other Credit Parties signatory to the hereinafter defined
Credit Agreement; GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation
(in its individual capacity, "GE Capital"), for itself, as Lender, and as Agent
for Lenders ("Agent"), and the other Lenders signatory to the hereinafter
defined Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrowers, the other Credit Parties, Agent and the Lenders
are party to that certain Credit Agreement, dated as of October 31, 2001 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, on and subject to the terms and conditions hereof, the
Borrowers and the other Credit Parties have requested that Agent and Lenders,
and Agent and Lenders are willing to, amend certain provisions of the Credit
Agreement, all as set forth herein;
WHEREAS, on and subject to the terms and conditions hereof, the
Borrowers and the other Credit Parties have requested that Agent and Lenders,
and Agent and Lenders are willing to, permanently waive a certain closing
delivery required under the Credit Agreement, all as set forth herein;
WHEREAS, this Amendment shall constitute a Loan Document and these
Recitals shall be construed as part of this Amendment; capitalized terms used
herein without definition are so used as defined in Annex A to the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Amendment.
(a) Section 1.5 of the Credit Agreement is amended by deleting in its
entirety the grid located in subsection (a) thereof relating to adjustments in
Applicable Margins and replacing such grid with the following:
IF FIXED CHARGE IF BOTH BORROWING AVAILABILITY AND LEVEL OF
COVERAGE RATIO IS: AVERAGE BORROWING 60-DAY AVAILABILITY ARE: APPLICABLE MARGINS:
---------------------------------------- --------------------------------------------------------------- --------------------
greater than 1.40:1.00 greater than or equal to $30,000,000 Level I
---------------------------------------- --------------------------------------------------------------- --------------------
1.40:1.00, but greater than 1.25:1.00 less than $30,000,000, but greater than or equal to $25,000,000 Level II
---------------------------------------- --------------------------------------------------------------- --------------------
greater than 0.90:1.00 less than $25,000,000, but greater than or equal to $20,000,000 Level III
---------------------------------------- --------------------------------------------------------------- --------------------
Not applicable less than $20,000,000, but greater than or equal to $15,000,000 Level IV
---------------------------------------- --------------------------------------------------------------- --------------------
Not applicable less than $15,000,000 Level V
---------------------------------------- --------------------------------------------------------------- --------------------
(b) Section 1.10 of the Credit Agreement is amended by deleting the
Section in its entirety and replacing such Section with the following new
Section 1.10:
"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."
(c) Section 5.11 of the Credit Agreement is amended by deleting the
number "60" in the first line thereof and replacing such number with the number
"90".
(d) Section 6.3 of the Credit Agreement is amended by deleting
subsection (a)(iv)(F) in its entirety and replacing such subsection with the
following:
"(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 20 days to repay to Brightpoint any amount
of such intercompany loans in excess of the Borrowing Availability of
Wireless."
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(e) Section 6.14 of the Credit Agreement is amended by deleting the
phrase "giving to any such XXXXX Distribtion" in subsection (d)(ii)(B) thereof
and replacing it with the phrase "giving effect to any such XXXXX Distribution".
(f) Section 11.2 of the Credit Agreement is amended by deleting the
number "$5,000,000" contained in subsection (c)(v) thereof and replacing such
number with the number "$3,000,000."
(g) The definition of "Requisite Lenders" contained in Annex A to the
Credit Agreement is amended by deleting each reference to "more than" and
replacing each such reference with a reference to "at least."
(h) The definition of "Revolving Loan Commitment" contained in Annex A
to the Credit Agreement is deleted and replaced in its entirety with the
following:
"Revolving Loan Commitment" means (a) as to any Lender, the aggregate
commitment of such Lender to make Revolving Credit Advances or incur
Letter of Credit Obligations as set forth on Annex J to the Agreement
or in the most recent Assignment Agreement executed by such Lender and
(b) as to all Lenders, the aggregate commitment of all Lenders to make
Revolving Credit Advances or incur Letter of Credit Obligations, which
aggregate commitment shall be Eighty Million Dollars ($80,000,000) on
the Closing Date and Ninety Million Dollars ($90,000,000) on December
__, 2001, and as such amount may be adjusted, if at all, from time to
time in accordance with the Agreement.
(i) The definition of "Supermajority Lenders" contained in Annex A to
the Credit Agreement is amended by deleting each reference to "80%" and
replacing each such reference with a reference to "85%."
(j) The definition of "Wireless Borrowing Base" contained in Annex A to
the Credit Agreement is amended by deleting the reference therein to
"Brightpoint's Eligible Inventory" in subsection (b) and replacing therewith the
phrase "Wireless' Eligible Inventory".
(k) Paragraph (a) contained in Annex F to the Credit Agreement is
deleted and replaced in its entirety with 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
Closing Date), each of the following reports, each of which shall be
prepared by the
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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."
(l) Paragraph (b) contained in Annex F to the Credit Agreement is
deleted and replaced in its entirety with the following:
"(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 Closing
Date), collateral reports with respect to each Borrower, including all
additions and reductions (cash and non-cash) with respect to Accounts
of such Borrower, in each case accompanied by such supporting detail
and documentation as shall be requested by Agent in its reasonable
discretion each of which shall be prepared by the applicable Borrower
as of the last day of the immediately preceding week or month, as
applicable;"
(m) Paragraph (f) contained in Annex F to the Credit Agreement is
deleted and replaced in its entirety with the following:
"(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;"
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(n) Paragraph (g) contained in Annex F to the Credit Agreement is
deleted and replaced in its entirety with the following:
"(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 be in a form satisfactory to Agent and shall
be recorded to intercompany accounts set forth on each Borrower's
balance sheet; and"
(o) Annex J to the Credit Agreement is deleted in its entirety and
replaced by Annex J attached hereto.
2. Waiver. Agent and Lenders hereby permanently waive the closing
condition located in Section R within Annex D to the Credit Agreement requiring
the delivery to Agent of an executed accountant's letter. Such waiver is only
applicable and shall only be effective for the specific purpose for which made.
3. Representations and Warranties of Credit Parties. In order to induce
Agent and Lenders to enter into this Amendment, each Credit Party hereby jointly
and severally represents and warrants to Agent and Lenders that:
(a) Representations and Warranties. After giving effect to this
Amendment, no representation or warranty of any Credit Party contained in the
Credit Agreement or any of the other Loan Documents, including this Amendment,
shall be untrue or incorrect in any material respect as of the date hereof,
except to the extent that such representation or warranty expressly relates to
an earlier date.
(b) Authorization, etc. Each Credit Party has the power and authority
to execute, deliver and perform this Amendment. Each Credit Party has taken all
necessary action (including, without limitation, obtaining approval of its
stockholders, if necessary) to authorize its execution, delivery and performance
of this Amendment. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any other Person, is
required in connection with any Credit Party's execution, delivery and
performance of this Amendment, except for those already duly obtained. This
Amendment has been duly executed and delivered by each Credit Party and
constitutes the legal, valid and binding obligation of each Credit Party,
enforceable against it in accordance with its terms. No Credit Party's
execution, delivery or performance of this Amendment conflicts with, or
constitutes a violation or breach of, or constitutes a default under, or results
in the creation or imposition of any Lien upon the property of any Credit Party
by reason of the terms of (i) any contract, mortgage, lease, agreement,
indenture or instrument to which any Credit Party is a party or which is binding
upon it, (ii) any law or regulation or order or decree of any court applicable
to any Credit Party, or (iii) the certificate or articles of incorporation or
by-laws of any Credit Party.
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(c) No Default. No Default or Event of Default has occurred or is
continuing, or would result after giving effect hereto.
4. Conditions to Effectiveness. The effectiveness of this Amendment is
expressly conditioned upon the satisfaction of each condition set forth in this
Section 4 on or prior to the date hereof:
(a) Documentation. Agent shall have received (on behalf of itself and
Lenders) duly executed originals of this Amendment from each Credit Party and
from each of the Lenders.
(b) Assignment Agreement. Agent shall have received duly executed
originals of the Assignment Agreement between GE Capital and Congress Financial
Corporation (Central) ("Congress") in the amount of $5,000,000.
(c) Revolving Notes. The Borrowers shall have delivered to Agent duly
executed originals of the Revolving Notes of Congress and the Revolving Notes of
GE Capital, reflecting the revised Revolving Loan Commitment of GE Capital, each
dated as of the date hereof.
(d) No Default. No Default or Event of Default shall have occurred and
be continuing, or would result after giving effect hereto.
5. Reference to and Effect on Loan Documents.
(a) Ratification. Except as specifically provided in this Amendment,
the Credit Agreement and the other Loan Documents shall remain in full force and
effect and each Credit Party hereby ratifies and confirms each such Loan
Document.
(b) No Waiver. Except as specifically provided in this Amendment, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver or forbearance of any right, power or remedy of Agent or any Lender under
the Credit Agreement or any of the other Loan Documents, or constitute a
consent, waiver or modification with respect to any provision of the Credit
Agreement or any of the other Loan Documents. Upon the effectiveness of this
Amendment each reference in (a) the Credit Agreement to "this Agreement,"
"hereunder," "hereof," or words of similar import and (b) any other Loan
Document to "the Agreement" shall, in each case and except as otherwise
specifically stated therein, mean and be a reference to the Credit Agreement as
amended hereby.
6 Affirmation of Guarantors. By its signature set forth below, each
Guarantor hereby confirms to Agent and Lenders that, after giving effect to the
foregoing Amendment and the transactions contemplated thereby, the Guaranty of
such Guarantor and each other Loan Document to which such Guarantor is a party
continues in full force and effect and is the legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy,
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insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
7 Miscellaneous.
(a) Successors and Assigns. This Amendment shall be binding on and
shall inure to the benefit of the Credit Parties, Agent and Lenders and their
respective successors and assigns, except as otherwise provided herein. No
Credit Party may assign, transfer, hypothecate or otherwise convey its rights,
benefits, obligations or duties hereunder without the prior express written
consent of Agent and Lenders. The terms and provisions of this Amendment are for
the purpose of defining the relative rights and obligations of the Credit
Parties, Agent and Lenders with respect to the transactions contemplated hereby
and there shall be no third party beneficiaries of any of the terms and
provisions of this Amendment.
(b) Entire Agreement. This Amendment, including all schedules and other
documents attached hereto or incorporated by reference herein or delivered in
connection herewith, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all other understandings,
oral or written, with respect to the subject matter hereof.
(c) Fees and Expenses. As provided in Section 11.3 of the Credit
Agreement, the Borrowers agree to pay on demand all fees, costs and expenses
incurred by Agent in connection with the preparation, execution and delivery of
this Amendment. Furthermore, the Borrowers agree to pay to Agent on behalf of
Congress such fees, costs and expenses required to be paid by the Borrowers
pursuant to the GE Capital Fee Letter and Agent agrees to pay to Congress such
fees, costs and expenses required to be paid by Agent pursuant to that certain
commitment letter from Congress to GE Capital dated November 16, 2001.
(d) Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
(e) Severability. Wherever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
(f) Conflict of Terms. Except as otherwise provided in this Amendment,
if any provision contained in this Amendment is in conflict with, or
inconsistent with, any provision in any of the other Loan Documents, the
provision contained in this Amendment shall govern and control.
(g) Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed signature page to this
Amendment by telecopy shall be effective as delivery of a manually executed
signature page to this Amendment.
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(h) Incorporation of Credit Agreement. The provisions contained in
Sections 11.9 and 11.13 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety, except
with reference to this Amendment rather than the Credit Agreement.
(i) Acknowledgment. Each Credit Party hereby acknowledges its status as
a Credit Party and affirms its obligations under the Credit Agreement and
represents and warrants that there are no liabilities, claims, suits, debts,
liens, losses, causes of action, demands, rights, damages or costs, or expenses
of any kind, character or nature whatsoever, known or unknown, fixed or
contingent (collectively, the "Claims"), which any Credit Party may have or
claim to have against Agent or any Lender, or any of their respective
affiliates, agents, employees, officers, directors, representatives, attorneys,
successors and assigns (collectively, the "Lender Released Parties"), which
might arise out of or be connected with any act of commission or omission of the
Lender Released Parties existing or occurring on or prior to the date of this
Amendment, including, without limitation, any Claims arising with respect to the
Obligations or any Loan Documents. In furtherance of the foregoing, each Credit
Party hereby releases, acquits and forever discharges the Lender Released
Parties from any and all Claims that any Credit Party may have or claim to have,
relating to or arising out of or in connection with the Obligations or any Loan
Documents or any other agreement or transaction contemplated thereby or any
action taken in connection therewith from the beginning of time up to and
including the date of the execution and delivery of this Amendment. Each Credit
Party further agrees forever to refrain from commencing, instituting or
prosecuting any lawsuit, action or other proceeding against any Lender Released
Parties with respect to any and all Claims which might arise out of or be
connected with any act of commission or omission of the Lender Released Parties
existing or occurring on or prior to the date of this Amendment, including,
without limitation, any Claims arising with respect to the Obligations or any
Loan Documents.
[signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as of
the day and year first above written.
BRIGHTPOINT NORTH AMERICA L.P.
BY: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General Counsel
& Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Title: Duly Authorized Signatory
LASALLE BUSINESS CREDIT, INC.,
as Lender
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
NATIONAL CITY BANK OF INDIANA, as Lender
By: /s/ Xxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
CONGRESS FINANCIAL CORPORATION (CENTRAL), as Lender
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
The following Persons are signatories to this Amendment in their
capacity as Credit Parties or Loan Parties and not as Borrowers.
BRIGHTPOINT, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General Counsel
& Secretary
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
ANNEX J (FROM ANNEX A - REVOLVING LOAN COMMITMENTS DEFINITION)
to
CREDIT AGREEMENT
LENDER REVOLVING LOAN COMMITMENT
------ -------------------------
General Electric Capital Corporation $45,000,000 (including a Swing Line
Commitment of $10,000,000)
LaSalle Business Credit, Inc. $20,000,000
Congress Financial Corporation (Central) $15,000,000
National City Bank of Indiana $10,000,000
----------
TOTAL $90,000,000
i
REVOLVING NOTE
Chicago, Illinois
$15,000,000
December __, 2001
FOR VALUE RECEIVED, the undersigned, BRIGHTPOINT NORTH AMERICA L.P., a
Delaware limited partnership ("Borrower"), HEREBY PROMISES TO PAY to the order
of CONGRESS FINANCIAL CORPORATION (CENTRAL) ("Lender"), at the offices of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, or at such other place as Agent may designate from time
to time in writing, in lawful money of the United States of America and in
immediately available funds, the amount of FIFTEEN MILLION DOLLARS AND NO CENTS
($15,000,000) or, if less, the aggregate unpaid amount of all Revolving Credit
Advances made to the undersigned under the "Credit Agreement" (as hereinafter
defined). All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in Annex A thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to
that certain Credit Agreement dated as of October 31, 2001 by and among
Borrower, the other Person named therein as Borrower, the other Persons named
therein as Credit Parties, Agent, Lender and the other Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), and is entitled to the benefit and security
of the Credit Agreement, the Security Agreement and all of the other Loan
Documents referred to therein. Reference is hereby made to the Credit Agreement
for a statement of all of the terms and conditions under which the Loans
evidenced hereby are made and are to be repaid. The date and amount of each
Revolving Credit Advance made by Lenders to Borrowers, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note may, as provided in the Credit Agreement, and without demand, notice or
legal process of any kind, be declared, and immediately shall become, due and
payable.
Time is of the essence of this Revolving Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not
be assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By:_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
REVOLVING NOTE
Chicago, Illinois
$15,000,000
December __, 2001
FOR VALUE RECEIVED, the undersigned, WIRELESS FULFILLMENT SERVICES LLC,
a California limited liability company ("Borrower"), HEREBY PROMISES TO PAY to
the order of CONGRESS FINANCIAL CORPORATION (CENTRAL) ("Lender"), at the offices
of GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, or at such other place as Agent may designate from time
to time in writing, in lawful money of the United States of America and in
immediately available funds, the amount of FIFTEEN MILLION DOLLARS AND NO CENTS
($15,000,000) or, if less, the aggregate unpaid amount of all Revolving Credit
Advances made to the undersigned under the "Credit Agreement" (as hereinafter
defined). All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in Annex A thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to
that certain Credit Agreement dated as of October 31, 2001 by and among
Borrower, the other Person named therein as Borrower, the other Persons named
therein as Credit Parties, Agent, Lender and the other Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), and is entitled to the benefit and security
of the Credit Agreement, the Security Agreement and all of the other Loan
Documents referred to therein. Reference is hereby made to the Credit Agreement
for a statement of all of the terms and conditions under which the Loans
evidenced hereby are made and are to be repaid. The date and amount of each
Revolving Credit Advance made by Lenders to Borrowers, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note may, as provided in the Credit Agreement, and without demand, notice or
legal process of any kind, be declared, and immediately shall become, due and
payable.
Time is of the essence of this Revolving Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not
be assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE.
WIRELESS FULFILLMENT SERVICES LLC
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
REVOLVING NOTE
Chicago, Illinois
$45,000,000
December __, 2001
FOR VALUE RECEIVED, the undersigned, BRIGHTPOINT NORTH AMERICA L.P., a
Delaware limited partnership ("Borrower"), HEREBY PROMISES TO PAY to the order
of GENERAL ELECTRIC CAPITAL CORPORATION ("Lender"), at the offices of GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for Lenders
("Agent"), at its address at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, or at such other place as Agent may designate from time to time
in writing, in lawful money of the United States of America and in immediately
available funds, the amount of FORTY FIVE MILLION DOLLARS AND NO CENTS
($45,000,000) or, if less, the aggregate unpaid amount of all Revolving Credit
Advances made to the undersigned under the "Credit Agreement" (as hereinafter
defined). All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in Annex A thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to
that certain Credit Agreement dated as of October 31, 2001 by and among
Borrower, the other Person named therein as Borrower, the other Persons named
therein as Credit Parties, Agent, Lender and the other Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), and is entitled to the benefit and security
of the Credit Agreement, the Security Agreement and all of the other Loan
Documents referred to therein. Reference is hereby made to the Credit Agreement
for a statement of all of the terms and conditions under which the Loans
evidenced hereby are made and are to be repaid. The date and amount of each
Revolving Credit Advance made by Lenders to Borrowers, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note may, as provided in the Credit Agreement, and without demand, notice or
legal process of any kind, be declared, and immediately shall become, due and
payable.
Time is of the essence of this Revolving Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not
be assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE.
This Revolving Note issued on the date hereof (the "Replacement Note")
is issued in replacement of and substitution for, but not in novation of, the
Revolving Note issued prior to the date hereof (the "Replaced Note"), and the
Revolving Loan evidenced by the Replaced Note is continuing and is evidenced by
the Replacement Note.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: ___________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President &
Secretary
REVOLVING NOTE
Chicago, Illinois
$45,000,000
December __, 2001
FOR VALUE RECEIVED, the undersigned, WIRELESS FULFILLMENT SERVICES LLC,
a California limited liability company ("Borrower"), HEREBY PROMISES TO PAY to
the order of GENERAL ELECTRIC CAPITAL CORPORATION ("Lender"), at the offices of
GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent for
Lenders ("Agent"), at its address at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, or at such other place as Agent may designate from time
to time in writing, in lawful money of the United States of America and in
immediately available funds, the amount of FORTY FIVE MILLION DOLLARS AND NO
CENTS ($45,000,000) or, if less, the aggregate unpaid amount of all Revolving
Credit Advances made to the undersigned under the "Credit Agreement" (as
hereinafter defined). All capitalized terms used but not otherwise defined
herein have the meanings given to them in the Credit Agreement or in Annex A
thereto.
This Revolving Note is one of the Revolving Notes issued pursuant to
that certain Credit Agreement dated as of October 31, 2001 by and among
Borrower, the other Person named therein as Borrower, the other Persons named
therein as Credit Parties, Agent, Lender and the other Persons signatory thereto
from time to time as Lenders (including all annexes, exhibits and schedules
thereto, and as from time to time amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), and is entitled to the benefit and security
of the Credit Agreement, the Security Agreement and all of the other Loan
Documents referred to therein. Reference is hereby made to the Credit Agreement
for a statement of all of the terms and conditions under which the Loans
evidenced hereby are made and are to be repaid. The date and amount of each
Revolving Credit Advance made by Lenders to Borrowers, the rates of interest
applicable thereto and each payment made on account of the principal thereof,
shall be recorded by Agent on its books; provided that the failure of Agent to
make any such recordation shall not affect the obligations of Borrower to make a
payment when due of any amount owing under the Credit Agreement or this Note in
respect of the Revolving Credit Advances made by Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby shall be
payable in the amounts and on the dates specified in the Credit Agreement, the
terms of which are hereby incorporated herein by reference. Interest thereon
shall be paid until such principal amount is paid in full at such interest rates
and at such times, and pursuant to such calculations, as are specified in the
Credit Agreement.
If any payment on this Revolving Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of any Event of Default, this Revolving
Note may, as provided in the Credit Agreement, and without demand, notice or
legal process of any kind, be declared, and immediately shall become, due and
payable.
Time is of the essence of this Revolving Note. Demand, presentment,
protest and notice of nonpayment and protest are hereby waived by Borrower.
Except as provided in the Credit Agreement, this Revolving Note may not
be assigned by Lender to any Person.
THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE.
This Revolving Note issued on the date hereof (the "Replacement Note")
is issued in replacement of and substitution for, but not in novation of, the
Revolving Note issued prior to the date hereof (the "Replaced Note"), and the
Revolving Loan evidenced by the Replaced Note is continuing and is evidenced by
the Replacement Note.
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: ________________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
