EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of September 20, 2004 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 :
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WHEREAS, the Borrowers, 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. Section 8.1 of the Credit
Agreement is amended as follows:
(a) By deleting the number "$130,000,000" at the conclusion of
the second line in subsection (o) thereof and substituting therefor the number
"$110,000,000"; and
(b) By inserting the following proviso at the conclusion of
subsection (o) therein:
"provided further, for purposes of this quarterly Tangible Net
Worth calculation, such $110,000,000 threshold shall be
reduced in an amount equal to the purchase price of any issued
and outstanding shares of common Stock of BPI repurchased by
BPI on or after September 20, 2004".
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 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) Documentation. Duly executed originals of this Amendment
from each Credit Party and from Requisite Lenders.
(b) Other Documents. All other agreements, certificates and
other documents as Agent may 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
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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. 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.
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(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, 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/ Xxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Duly Authorized Signatory
LASALLE BUSINESS CREDIT, LLC,
as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: AVP
-----------------------------
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NATIONAL CITY BANK OF INDIANA, as
Lender
By: /s/ Xxxxx X. XxXxxxx
-------------------------------
Name: Xxxxx X. XxXxxxx
------------------------------
Title: Vice President
-----------------------------
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Lender
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------
Title: Senior Vice President
-----------------------------
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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
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