Exhibit 10.20.01
GE CAPITAL FINANCE PTY LIMITED
ACN 075 554 175
SECOND DEED OF VARIATION OF
FACILITY AGREEMENT
BRIGHTPOINT AUSTRALIA PTY LTD
ACN 000 000 000
(COMPANY)
MIDDLETONS
Lawyers
Xxxxx 00
00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
DX 000 Xxxxxx
Telephone: 00 0000 0000
Facsimile: 02 9513 2399
Ref: XXX.XXX.0000000
XXXXXX DEED OF VARIATION OF FACILITY AGREEMENT
DATE:
PARTIES:
GE: NAME: GE Capital Finance Pty Limited
ACN: 075 554 175
ADDRESS: Xxxxx 00, 000 Xxxxxx Xxxxxx, Xxxxxx XXX 0000
FAX: (00) 0000 0000
TEL: (00) 00000000
ATTENTION: Account Manager - Brightpoint Australia
COMPANY: NAME: Brightpoint Australia Pty Ltd
ACN: 000 000 000
ADDRESS: 0 Xxxxx Xxxxx, Xxxxxxx XXX 0000
FAX: (00) 0000 0000
TEL: (00) 0000 0000
ATTENTION: Chief Financial Officer
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1. VARIATION OF TRANSACTION DOCUMENTS
(a) The parties refer to the A$ Facility Agreement, dated 24 December 2002
as varied (FACILITY AGREEMENT).
(b) The Company acknowledges and agrees that:
(i) each transaction document to which it is a party has been duly
executed by it and delivered to GE, and is in full force and
effect;
(ii) its obligations under each transaction document to which it is a
party are valid, binding and enforceable against it in accordance
with their terms and it has no defence to the enforcement of such
obligations;
(iii) GE is and will be entitled to the rights, remedies and benefits
provided for under the transaction documents, applicable law or
otherwise.
(c) The parties agree that from the date of this Deed, the Facility
Agreement is amended in the manner described in Schedule 2.
(d) Except as expressly amended in the manner set out in this Deed, the
terms and conditions of the Facility Agreement continue unaffected,
and the obligations of each party under the transaction documents
continue in full force and effect.
(e) The obligors, by their execution of this Deed:
(i) acknowledge the variations to the Facility Agreement which are
effected by the execution of this Deed; and
(ii) confirm the validity of the Facility Agreement notwithstanding
the variations effected by this Deed.
2. CONDITIONS TO VARIATION
(a) On or before completion of this Deed, the Company must:
(i) ensure that GE receives every item listed in Schedule 1 in form
and substance satisfactory to GE; and
(ii) ensure that GE receives all other documents required by GE to
verify the items in Schedule 1 in form and substance satisfactory
to GE.
(b) The Company must ensure that the information contained in all
transaction documents listed in Schedule 1 is true, complete and not
misleading or deceptive and discloses all matters material to GE as at
the date of this Deed. GE must be satisfied as to those matters. GE is
entitled to rely on the items in Schedule 1 and the information
contained in them without further enquiry.
(c) The Company agrees to pay GE a non-refundable fee of $20,000.00 on the
date of this Deed.
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(d) Any transaction document required to be certified must be certified by
a secretary, director or other authorised officer of the relevant
entity as being true, complete and not misleading or deceptive as at
the time of certification and at the date of this agreement.
(e) GE agrees to notify the Company as soon as practicable after GE is
satisfied that the conditions are met.
3. GENERAL
3.1 NATURE OF OBLIGATIONS
(a) Any provision in this Deed which binds more than one person binds all
of those persons jointly and each of them severally.
(b) Each obligation imposed on a party by this Deed in favour of another
is a separate obligation.
3.2 NO ADVERSE CONSTRUCTION
This Deed is not to be construed to the disadvantage of a party because
that party was responsible for its preparation.
3.3 FURTHER ASSURANCES
The obligors, at their own expense and within a reasonable time of being
requested by GE to do so, must do all things and execute all documents that
are reasonably necessary to give full effect to this Deed.
3.4 SEVERABILITY
If any provision of this Deed offends any law applicable to it and is as a
consequence illegal, invalid or unenforceable then:
(a) where the offending provision can be read down so as to give it a
valid and enforceable operation of a partial nature, it must be read
down to the minimum extent necessary to achieve that result; and
(b) in any other case the offending provision must be severed from this
Deed, in which event the remaining provisions of the Deed operate as
if the severed provision had not been included.
3.5 SUCCESSORS AND ASSIGNS
This Deed binds and benefits the parties and their respective successors
and permitted assigns under the transaction documents.
3.6 COUNTERPARTS
If this Deed consists of a number of signed counterparts:
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(a) each is an original and all of the counterparts together constitute
the same document; and
(b) the counterpart is binding on that party whether or not any other
party has executed that or any other counterpart.
3.7 APPLICABLE LAW
This Deed is governed by the law in force in New South Wales. The obligors
and GE submit to the non-exclusive jurisdiction of the courts of New South
Wales.
3.8 COSTS
The Company agrees to pay or reimburse GE on demand for GE's reasonable
costs in connection with the negotiation, preparation, execution, stamping
and registration of this Deed, and GE being satisfied that the conditions
in clause 2 have been met.
4. INTERPRETATION AND DEFINITIONS
(a) GE means GE Capital Finance Pty Ltd.
(b) DEED means this Deed including the recitals, any schedules and any
annexures.
(c) This Deed is a transaction document for the purposes of the Facility
Agreement.
(d) Reference to the second deed of variation of facility agreement in the
Facility Agreement (as amended by this Deed) is a reference to this
Deed.
(e) Terms in italics in this Deed have the same meaning as in the Facility
Agreement, unless stated otherwise.
(f) In this Deed, unless the context requires otherwise:
(i) the singular includes the plural and vice versa;
(ii) gender includes the other genders;
(iii) the headings are used for convenience only and do not affect the
interpretation of this Deed;
(iv) other grammatical forms of defined words or expressions have
corresponding meanings;
(v) a reference to a document includes the document as modified from
time to time and any document replacing it;
(vi) a reference to a thing includes a part of that thing;
(vii) a reference to all or any part of a statute, rule, regulation or
ordinance (STATUTE) includes that statute as amended,
consolidated, re-enacted or replaced from time to time;
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(viii) wherever "include" or any form of that word is used, it must be
construed as if it were followed by "(without being limited to)";
(ix) money amounts are stated in Australian currency unless otherwise
specified; and
(x) a reference to any agency or body, if that agency or body ceases
to exist or is reconstituted, renamed or replaced or has its
powers or functions removed (DEFUNCT BODY), means the agency or
body that performs most closely the functions of the defunct
body.
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SCHEDULE 1 - CONDITIONS PRECEDENT TO THIS DEED
ITEM FORM
---- ----
1. Second deed of variation of facility agreement fully
signed by each obligor Original
2. Extract of minutes of a meeting of each obligor's board of
directors which evidences the resolutions: Certified Copy
(a) authorising the signing and delivery of transaction
documents to which the entity is a party and the
observance of obligations under those documents; and
(b) which acknowledge that the transaction documents (to
which the entity is a party) will benefit that
entity.
3. Authority to complete documents fully signed by each of
the obligors. Original
4. Searches in respect of all assets of the obligors on terms
acceptable to GE. Original
5. Payment of closing fee for second deed of variation of
facility agreement Original
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SCHEDULE 2 - VARIATIONS TO THE FACILITY AGREEMENT
In the Details section after the Parties, from the heading "Facilities", the
Details are replaced with the following:
FACILITY DESCRIPTION
-------- -----------
1. Revolving credit facility, including a letter of credit
sub-facility and the receivables facility.
FACILITY LIMIT:
A$50,000,000
LETTER OF CREDIT FACILITY LIMIT:
A$17,500,000 as a sub-limit of the facility limit.
MATURITY DATE:
3 years from the date of the second deed of variation of
facility agreement.
INTEREST RATE:
(a) When the fixed charge coverage ratio is less than 1.1:1 on
any interest payment date, the interest rate is the index
rate plus a margin of 1.85% per annum for each day of the
period from that interest payment date until the following
interest payment date;
(b) When the fixed charge coverage ratio is 1.1:1 or more on
any interest payment date, then:
(i) the interest rate is the index rate plus a margin of
1.85% per annum for each day of the period from that
interest payment date until the following interest
payment date if the sum of the average daily
(calculated by reference to the opening balance for
each day) current drawings and LC obligations in
respect of standby letters of credit for the calendar
month ending on that interest payment date is
$10,000,000 or less;
(ii) the interest rate is the index rate plus a margin of
1.60% per annum for each day of the period from that
interest payment date until the following interest
payment date if the sum of the average daily
(calculated by reference to the opening balance for
each day) current drawings and LC obligations in
respect of standby letters of credit for the calendar
month ending on that interest payment date is more
than $10,000,000 but less than $17,500,000;
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(iii) the interest rate is the index rate plus a margin of
1.35% per annum for each day of the period from that
interest payment date until the following interest
payment date if the sum of the average daily
(calculated by reference to the opening balance for
each day) current drawings and LC obligations in
respect of standby letters of credit for the calendar
month ending on that interest payment date is
$17,500,000 or more.
(c) At all times other than those set out in (a) and (b), the
interest rate is the index rate plus a margin of 1.85% per
annum.
PURPOSE:
Working capital.
FEES CLOSING FEE:
---- ------------
A$300,000 - see clause 7.1(a)
(receipt acknowledged)
UNUSED LINE FEE:
0.25% per annum on that part of the facility limit that is
unused (calculated on the basis of a 360 day year and actual
days elapsed) - see clause 7.1(b).
STANDBY LETTER OF CREDIT FEE:
(a) When the fixed charge coverage ratio is less than 1.1:1 on
any interest payment date, 1.85% per annum on the face
value amount of standby letters of credit issued
(calculated on the basis of a 360 day year and actual days
elapsed) for each day of the period from that interest
payment date until the following interest payment date plus
any charges assessed by the issuing bank, payable monthly
in arrears;
(b) When the fixed charge coverage ratio is 1.1:1 or more on
any interest payment date:
(i) 1.85% per annum on the face value amount of standby
letters of credit issued (calculated on the basis of a
360 day year and actual days elapsed) for each day of
the period from that interest payment date until the
following interest payment date if the sum (calculated
by reference to the opening balance for each day) of
the average current drawings and LC obligations in
respect of standby letters of credit and term letters
of credit for the calendar month ending on that
interest payment date is $10,000,000 or less plus any
charges assessed by the issuing bank payable monthly
in arrears;
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FACILITY DESCRIPTION
-------- -----------
(ii) 1.60% per annum on the face value amount of the
standby letters of credit issued (calculated on the
basis of a 360 day year and actual days elapsed) for
each day of the period from that interest payment date
until the following interest payment date if the sum
(calculated by reference to the opening balance for
each day) of the average current drawings and LC
obligations in respect of standby letters of credit
and term letters of credit for the calendar month
ending on that interest payment date is more than
$10,000,000 but less than $17,500,000 plus any charges
assessed by the issuing bank payable monthly in
arrears;
(iii) 1.35% per annum on the face value amount of the
standby letters of credit issued (calculated on the
basis of a 360 day year and actual days elapsed) for
each day of the period from that interest payment date
until the following interest payment date if the sum
(calculated by reference to the opening balance for
each day) of the average current drawings and LC
obligations in respect of standby letters of credit
and term letters of credit for the calendar month
ending on that interest payment date is $17,500,000 or
more plus any charges assessed by the issuing bank
payable monthly in arrears
- See clause 7.1(d)
TRADE LETTER OF CREDIT ISSUANCE FEE:
1.0% flat for each six month validity (or part thereof) on the
face value amount of trade letters of credit, payable at the end
of the month in which the trade letters of credit are issued
(subject to a minimum fee of A$100), plus any charges assessed
by the issuing bank - see clause 7.1(e).
TRADE LETTERS OF CREDIT AMENDMENT FEE:
An amendment fee of 1.0% flat (subject to a minimum fee of
A$100) for any amendment to any trade letters of credit in
which:
(a) there is an increase or decrease in the face value amount;
or
(b) the expiry date is extended beyond any six month validity,
on the increase in face value amount - see clause 7.1(f).
All other amendments would attract an amendment fee of A$100,
payable at the end of the month in which the amendments are
made, plus any charges assessed by the issuing bank.
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FACILITY DESCRIPTION
-------- -----------
TERM LETTER OF CREDIT FEE:
The term letter of credit fee is payable on any drawing under a
term letter of credit from the date of GE Capital's acceptance
of the drawing until the required maturity payment date and is
calculated as follows:
(a) When the fixed charge coverage ratio is less than
1.1:1 on any interest payment date, 1.85% per annum
(calculated on the basis of a 360-day year and actual
days elapsed) on the face value amount of the drawing
for each day of the period from that interest payment
date until the following interest payment date;
(b) When the fixed charge coverage ratio is 1.1:1 or more
on any interest payment date:
(i) 1.85% per annum (calculated on the basis of a
360-day year and actual days elapsed) on the face
value amount of the drawing for each day of the
period from that interest payment date until the
following interest payment date, if the sum
(calculated by reference to the opening balance
for each day) of the average current drawings and
LC obligations in respect of standby letters of
credit and term letters of credit for the
calendar month ending on that interest payment
date is $10,000,000 or less
(ii) 1.60% per annum (calculated on the basis of a
360-day year and actual days elapsed) on the face
value amount of the drawing for each day of the
period from that interest payment date until the
following interest payment date, if the sum
(calculated by reference to the opening balance
for each day) of the average current drawings and
LC obligations in respect of standby letters of
credit and term letters of credit for the
calendar month ending on that interest payment
date is more than $10,000,000 but less than
$17,500,000
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FACILITY DESCRIPTION
-------- -----------
(iii) 1.35% per annum (calculated on the basis of a
360-day year and actual days elapsed) on the face
value amount of the drawing for each day of the
period from that interest payment date until the
following interest payment date, if the sum
(calculated by reference to the opening balance
for each day) of the average current drawings and
LC obligations in respect of standby letters of
credit and term letters of credit for the
calendar month ending on that interest payment
date is $17,500,000 or more
see clause 7.1(g).
FIELD EXAMINATION FEE:
A$1,000 per person, per day for each field examination - see
clause 7.1(c).
EARLY TERMINATION FEE:
0.5% of the facility limit if the facility is cancelled or
terminated before the first anniversary of the date of the
second deed of variation of facility agreement.
2. Clause 7.1(d) is deleted and replaced with the following:
"(d) the standby letter of credit fee described in the
Details payable monthly in arrears."
3. Clause 7.1(g) is deleted and replaced with the following:
"(g) the term letter of credit fee described in the Details
payable monthly in arrears."
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EXECUTION
Executed as an agreement
SIGNED by
as attorney for GE CAPITAL FINANCE
PTY LTD under power of attorney dated
in the presence of:
/s/ XXXXX XXXXXXXX
-------------------------------------
Signature of witness
/S/ XXXXX XXXXXX - Executive Director
----------------------------------------
By signing this agreement as attorney
the attorney states that the attorney
has not received notice of revocation of
the power of attorney
Xxxxx Xxxxxxxx
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Name of witness (block letters)
000 Xxxxxx Xx. Xxxxxx
-------------------------------
Address of witness
Financier
-------------------------------
Occupation of witness
EXECUTED by BRIGHTPOINT AUSTRALIA
PTY LTD ACN 000 000 000 in accordance
with its Constitution in the
presence of:
/s/ XXXX X. XXXXXXXX
----------------------------------------
Director (Signature)
/s/ R. XXXXX XXXXXXXXXX
-------------------------------------
Director (Signature)
Xxxx X. Xxxxxxxx
----------------------------------------
Name (Print)
R. Xxxxx Xxxxxxxxxx
-------------------------------------
Name (Print)
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