Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 3 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of October 18, 2006 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" and each a "Borrower"), 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.
WITNESSETH:
WHEREAS, Brightpoint, Wireless, the other Credit Parties, Agent and
Lenders are party to that certain Amended and Restated Credit Agreement, dated
as of March 18, 2004 (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; and
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. Amendments to Credit Agreement. Subject to the terms and conditions set
forth herein, the Credit Agreement shall be amended as follows:
(a) Section 1.5 of the Credit Agreement is hereby amended by deleting the
Applicable Margin grids located in clause (a) thereof and substituting therefor
the following:
"
IF FIXED CHARGE LEVEL OF
COVERAGE RATIO IS: APPLICABLE MARGINS:
--------------------------------- -------------------
> 3.00:1.00 Level I
< or = 3.00:1.00, but > 2.00:1.00 Level II
< or = 2.00:1.00, but > 1.00:1.00 Level III
< or = 1.00:1.00 Level IV
APPLICABLE MARGINS
----------------------------------------
XXXXX X XXXXX XX XXXXX XXX XXXXX XX
------- -------- --------- --------
Applicable Index Margin 0.00% 0.00% 0.25% 0.50%
Applicable LIBOR Margin 1.25% 1.50% 1.75% 2.00%
Applicable L/C Margin 1.25% 1.50% 1.75% 2.00%
Applicable Unused Line Fee Margin 0.25% 0.375% 0.375% 0.50%
Notwithstanding anything in this Agreement to the contrary, the grids set forth
above shall be effective as of October 18, 2006 and any adjustments in the
Applicable Margins as of such date resulting from such revised grids shall be
based on the quarterly Financial Statements most recently delivered."
(b) New Section 1.19 is hereby inserted immediately following Section 1.18
of Credit Agreement to read as follows:
"1.19 Increases in Aggregate Commitments. Upon the written consent
of Agent, Borrowers may, at their option from time to time, seek to
increase the aggregate Revolving Loan Commitments by up to
$40,000,000 (each increase shall be in a minimum amount of
$10,000,000 or if less, then equal to the remaining amount of the
$40,00,000 aggregate limit). After receiving such prior written
consent of Agent, Borrower Representative may offer such increase in
the aggregate Revolving Loan Commitments to any of the existing
Lenders and/or to other banks, financial institutions or other
entities acceptable to Agent on a non pro-rata basis in such amounts
as determined by Borrowers and Agent; provided, that neither Agent
nor any Lender shall have any obligation to extend such additional
Revolving Loan Commitment. No increase in the aggregate Revolving
Loan Commitments shall become effective until (a) Borrowers and each
existing or new Lender extending such incremental commitment amount
shall have executed and delivered to Agent an agreement in writing
in form and substance reasonably acceptable to Agent pursuant to
which such Lender states its Revolving Loan Commitment amount and
agrees to assume and accept the obligations and rights of a Lender
hereunder, (b) Borrowers shall have demonstrated pro forma
compliance with the Financial Covenants and (c) Borrower
Representative has provided Agent with such certificates, opinions
and other documents as Agent may request. In conjunction with any
such increase, the Lenders (new or existing) shall accept (and the
existing Lenders shall make) an assignment at par of an interest in
the Loans and Letter of Credit Obligations outstanding at the time
of such aggregate Revolving Loan Commitment increase such that,
after giving effect thereto, all Loans and Letter of Credit
Obligations are held by the Lenders on a pro-rata basis. Borrowers
-2-
shall make any payments under Section 1.13(b) resulting from such
assignments."
(c) Section 5.10 of Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"5.10 Further Assurances. (a) 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.
(b) Each Loan Party shall (i) cause each Person, upon its becoming a
Subsidiary of such Loan Party (provided that this shall not be
construed to constitute consent by Agent or any of the Lenders to
any acquisition or other transaction not expressly permitted by the
terms of this Agreement), promptly to guaranty the Obligations and
to grant to Agent, for the benefit of Agent and Lenders, a security
interest in the real, personal and mixed property of such Subsidiary
to secure the Obligations and (ii) pledge, or cause to be pledged,
to Agent, for the benefit of Agent and Lenders, all of the Stock and
any intercompany Indebtedness of such Subsidiary to secure the
Obligations. The documentation for such guaranty, security and
pledge shall be substantially similar to the Loan Documents executed
concurrently herewith with such modifications as are reasonably
requested by Agent."
(d) Section 6.3 of Credit Agreement is hereby amended by (i) renumbering
clause (a)(vii) therein as new clause (a)(viii) and (ii) adding new clause
(a)(vii) immediately following subclause (a)(vi) to read as follows:
"(vii) Indebtedness consisting of intercompany loans and advances
made by any Borrower to any additional Loan Party (other than the
Holding Companies, BAS and the other Borrower) consented to by
Agents and Requisite Lenders and that has delivered such
documentation as required pursuant to Section 5.10; provided that,
(A) such Loan Party shall have executed and delivered to such
Borrower, 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 applicable Pledge Agreement as additional collateral
security for the Obligations; (B) such Borrower and such Loan Party
shall each record all intercompany
-3-
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, such Loan Party and such Borrower
shall each 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 the intercompany
loans and advances owing by any such Loan Party to Borrowers shall
at no time exceed $1,000,000,"
(e) Section 6.6 of the Credit Agreement is hereby amended by deleting the
text "$20,000,000" in clause (c) thereof and substituting therefor the text
"$25,000,000".
(f) Section 6.14 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"6.14 Restricted Payments. No Loan Party shall make any Restricted
Payment, except (a) intercompany loans and advances between
Borrowers, between Brightpoint and BAS or between Borrowers and
other Loan Parties, in each case 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 Borrowers
collectively shall have both Average 30-Day Borrowing Availability
and Borrowing Availability of at least $15,000,000 (excluding the
Supplemental Advance) after giving effect to any such proposed BPI
Intercompany Loan; provided further, to the extent that any
Revolving Credit Advances shall be outstanding after giving effect
to any such proposed BPI Intercompany Loan, two (2) Business Days
prior to any such BPI Intercompany Loan the applicable Borrower
shall have delivered to Agent (A) a notice in the form of Exhibit
6.14(b) hereto (a "BPI Intercompany Loan
-4-
Notice") and (B) an updated Borrowing Base Certificate calculated as
of such date."
(g) Annex A to the Credit Agreement is hereby amended as follows:
(i) By deleting the definition of "Average 60-Day Borrowing
Availability" therein in its entirety.
(ii) By deleting the definition of "BPI Unallocated Expense Balance"
therein in its entirety.
(iii) By deleting clause (a) to the definition of "Commitment
Termination Date" therein in its entirety and substituting therefor the
following:
"(a) September 14, 2009"
(iv) By deleting the definition of "Free Cash Flow" in its entirety
and substituting therefor the following:
"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.
(h) Annex B to the Credit Agreement is hereby amended by deleting in
clause (a) therein the text "Thirty-Five Million Dollars ($35,000,000)" in the
second sentence therein and substituting therefor the text "Forty Million
Dollars ($40,000,000)".
2. 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
-5-
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.
(c) No Default. No Default or Event of Default has occurred or is
continuing, or would result after giving effect hereto.
3. Conditions to Effectiveness. The effectiveness of this Amendment is
expressly conditioned upon the satisfaction, and delivery to Agent (on behalf of
itself and Lenders), of each condition set forth in this Section 3 on or prior
to the date hereof:
(a) Amendment. Duly executed originals of this Amendment from each Credit
Party and from the Lenders.
(b) Amendment Fee. In addition to any fees referenced either in clause (c)
of Section 6 herein or the fee letter between Borrowers and Agent dated as of
the date hereof, Borrowers shall pay to Agent, for the pro-rata benefit of each
of the Lenders a party to this Amendment, an amendment fee in the amount of
$50,000.
(c) Other Documents. All other agreements, certificates and other
documents as Agent any reasonably request to accomplish the purposes of this
Amendment.
4. 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.
5. 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, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
-6-
6. 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.
(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.
(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,
-7-
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]
-8-
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 Canon
--------------------------------------------
Title: Duly Authorized Signatory
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: First Vice President
NATIONAL CITY BANK, as Lender
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
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
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/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
