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EXECUTION COPY
AMENDMENT NO. 3
TO
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 27, 1999
THIS AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED MULTICURRENCY
CREDIT AGREEMENT ("Amendment") is made as of October 27, 2000 by and among
BRIGHTPOINT, INC., BRIGHTPOINT INTERNATIONAL LTD. (collectively, the
"Borrowers"), the guarantors from time to time party thereto (the "Guarantors"),
the financial institutions listed on the signature pages hereof as lenders (the
"Lenders"), BANK ONE, INDIANA, NATIONAL ASSOCIATION, in its individual capacity
as a Lender and as administrative agent (the "Administrative Agent") on behalf
of the Lenders under that certain Second Amended and Restated Multicurrency
Credit Agreement dated as of July 27, 1999 by and among the Borrowers, the
Guarantors, the Lenders and the Administrative Agent as amended by Amendment No.
1 thereto dated as of March 30, 2000 and Amendment No. 2 thereto dated as of
June 28, 2000 (as so amended and as further amended, modified, supplemented or
restated, the "Credit Agreement"). Defined terms used herein and not otherwise
defined herein shall have the meaning given to them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrowers, the Guarantors, the Lenders and the
Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders amend the
Credit Agreement in certain respects; and
WHEREAS, the Lenders and the Administrative Agent are willing to amend
the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrowers, the Guarantors, the Lenders and the Administrative Agent have agreed
to the following amendment to the Credit Agreement.
1. Amendment to Credit Agreement. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended as follows:
1.1. Section 1.1 of the Credit Agreement is amended to delete the
definition of "Borrowing Base" therein in its entirety and to substitute the
following therefor:
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"BORROWING BASE" means, as of any date of calculation and subject to
the Initial Borrowing Base Adjustment, an amount, as set forth on the most
current Borrowing Base Certificate delivered to the Administrative Agent, equal
to the sum of: (i) up to eighty-five percent (85%) of the Gross Amount of
Eligible Receivables; plus (ii) the lesser of (a) up to fifty percent (50%) of
the Gross Amount of Eligible Inventory and (b) $70,000,000; plus (iii) the
Dollar Amount of all cash or Cash Equivalents pledged as security for the
Secured Facility Letters of Credit.
1.2. Section 6.3 of the Credit Agreement is hereby amended to delete the
terms of Clause (F) thereof in their entirety and to substitute the following
therefor:
(F) Restricted Junior Payments. Neither Brightpoint nor any of its
Subsidiaries shall declare or make any Restricted Junior Payment, except:
(i) payments made in connection with the repurchase of Capital Stock
or other Equity Interests in Brightpoint or any of its Subsidiaries from
any Person in connection with the termination (voluntarily or
involuntarily) of such Person's employment with Brightpoint or any of its
Subsidiaries which, in the aggregate, exceed the aggregate amount received
by Brightpoint or any of its Subsidiaries from the contemporaneous resale
or reissuance of such interests by not more than $1,000,000;
(ii) payments of customary and reasonable fees and expense
reimbursements to members of the board of directors of Brightpoint and any
Subsidiary;
(iii) Restricted Junior Payments made by any Subsidiary of Brightpoint
to Brightpoint or any other Subsidiary of Brightpoint;
(iv) Restricted Junior Payments as set forth on Schedule 6.3(F); and
(v) Restricted Junior Payments consisting of simultaneous or a series
of prepayments or redemptions of the LYONS in an aggregate amount for such
prepayments or redemptions not to exceed $40,000,000 in aggregate purchase
price (without regard to the face amount of the LYONS being purchased and
without including in such calculation commissions or fees payable in
connection with such prepayments or redemptions provided such commissions
and fees do not exceed $1,500,000 in the aggregate);
provided, however, that the Restricted Junior Payments described in
clauses (i) and (v) shall not be permitted if either a Default or an
Unmatured Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom.
1.3. Section 6.4 of the Credit Agreement is hereby amended to delete the
terms of Clause (D)(1) thereof in their entirety and to substitute the following
therefor:
(1) Brightpoint shall not permit the ratio ("Adjusted Leverage
Ratio") of (i) the sum of (a) Indebtedness of Brightpoint and its
consolidated Subsidiaries for borrowed money, plus (b) Capitalized Lease
Obligations minus (c) the lesser of (i) the
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Dollar Amount of all cash or Cash Equivalents pledged as security for the
Secured Facility Letters of Credit and (ii) the aggregate amount available
for drawing under the Secured Facility Letters of Credit to (ii) EBITDA as
at the end of any of the fiscal quarter to be greater than (A) 4.50 to 1.00
for each fiscal quarter which ends prior to the date of consummation of any
Restricted Junior Payment permitted pursuant to Section 6.3(F)(v) and (B)
4.25 to 1.00 for each fiscal quarter which ends on or after the date of
consummation of any Restricted Junior Payment permitted pursuant to Section
6.3(F)(V). The Adjusted Leverage Ratio shall be calculated as set forth in
clause (3) below.
1.4. Exhibit J to the Credit Agreement is amended to delete the terms
thereof in their entirety and to substitute the like-lettered Exhibit to this
Amendment therefor.
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of October 27, 2000, if, and only if, the Administrative
Agent shall have received each of the following:
(a) duly executed originals of this Amendment from the Borrowers, the
Guarantors and the Required Lenders;
(b) a fee in the amount of 12.5 basis points multiplied by the
Commitment of each Lender which has approved the terms of this Amendment on
or prior to 5:00 p.m. (Indianapolis time) on Monday, October 23, 2000,
payable to the Administrative Agent for the account of such Lenders;
(c) the separate fee agreed to between Brightpoint, the Administrative
Agent and the Arranger payable to the Administrative Agent in accordance
with the letter agreement entered into with respect thereto;
(d) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
3. Representations and Warranties of the Borrowers. The Borrowers hereby
represent and warrant as follows:
(a) This Amendment and the Credit Agreement as previously executed and
as amended hereby, constitute legal, valid and binding obligations of the
Borrowers and are enforceable against the Borrowers in accordance with
their terms.
(b) Upon the effectiveness of this Amendment, (i) no Default or
Unmatured Default has occurred and is continuing and (ii) the Borrowers
hereby reaffirm all covenants, representations and warranties made in the
Credit Agreement and other Loan Documents, to the extent the same are not
amended hereby, and agree that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective date of
this Amendment.
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4. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement, as amended previously and as amended
hereby.
(b) Except as specifically amended and waived above, the Credit
Agreement and all other documents, instruments and agreements executed
and/or delivered in connection therewith shall remain in full force and
effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent or any of the Lenders, nor
constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in
connection therewith.
5. Costs and Expenses. The Borrowers agree to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses charged
to the Administrative Agent) incurred by the Administrative Agent in connection
with the preparation, arrangement, execution and enforcement of this Amendment.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws (as opposed to the conflict of law provisions)
of the State of Illinois.
7. 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.
8. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A facsimile signature page hereto sent to the Administrative Agent
or the Administrative Agent's counsel shall be effective as a counterpart
signature provided each party executing such a facsimile counterpart agrees to
deliver originals to the Administrative Agent thereof.
9. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Amendment, the Credit Agreement and the
other Loan Documents. In the event an ambiguity or question of intent or
interpretation arises, this Amendment, the Credit Agreement and the other Loan
Documents shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Amendment, the Credit
Agreement or any of the other Loan Documents.
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10. Reaffirmation of Guaranties and other Loan Documents. Each of the
Guarantors, without in any way establishing a course of dealing, as evidenced by
its signature below, hereby consents to the execution and delivery of this
Amendment by the parties hereto, (ii) agrees that this Amendment shall not limit
or diminish the obligations of such Guarantor under the Credit Agreement or any
other Loan Documents, (iii) reaffirms its obligations under the Credit Agreement
and other Loan Documents, and (iv) agrees that such obligations remain in full
force and effect and is hereby ratified and confirmed.
[Remainder of this Page Intentionally Blank]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
BRIGHTPOINT, INC.,
as a Borrower and Guarantor
By: /s/ Steven E. Fivel
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Name: Steven E. Fivel
Title: Executive Vice President,
General Counsel and Secretary
BRIGHTPOINT INTERNATIONAL LTD.,
as a Borrower and Guarantor
By: /s/ Steven E. Fivel
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Name: Steven E. Fivel
Title: Executive Vice President, Secretary
BRIGHTPOINT LATIN AMERICA, INC.,
as a Guarantor
By: /s/ Steven E. Fivel
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Name: Steven E. Fivel
Title: Executive Vice President,
General Counsel and Secretary
WIRELESS FULFILLMENT SERVICES LLC,
as a Guarantor
By: BRIGHTPOINT, INC., its Manager
By: /s/ Steven E. Fivel
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Name: Steven E. Fivel
Title: Executive Vice President,
General Counsel and Secretary
BRIGHTPOINT AUSTRALIA PTY LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Steven E. Fivel
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Name: Steven E. Fivel
Title: Director
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BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Steven E. Fivel
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Name: Steven E. Fivel
Title: Director
BANK ONE, INDIANA, NATIONAL
ASSOCIATION, as the
Administrative Agent, the Swing
Line Lender, an Issuing Lender
and as a Lender
By: /s/ Rahul Sawhney
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Name: Rahul Sawhney
Title: Vice President
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ABN AMRO BANK N.V.,
as the Alternate Currency Lender
By: /s/ Laurie D. Flom
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Name: Laurie D. Flom
Title: Senior Vice President
By: /s/ Mary L. Honda
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Name: Mary L. Honda
Title: Group Vice President
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FLEET NATIONAL BANK
as a Lender
By:
-----------------------------
Name:
Title:
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FIRST UNION NATIONAL BANK,
as a Lender
By:
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Name:
Title:
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SUNTRUST BANK (Successor to SUNTRUST BANK OF
CENTRAL FLORIDA, NATIONAL ASSOCIATION), as
a Lender
By: /s/ Molly J. Drennan
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Name: Molly J. Drennan
Title: Director
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THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ F.C.H. Ashby
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Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
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THE PROVIDENT BANK,
as a Lender
By: /s/ Robert C. Olds
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Name: Robert C. Olds
Title: Vice President
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THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH,
as a Lender
By: /s/ Hisashi Miyashiro
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Name: Hisashi Miyashiro
Title: Deputy General Manager
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THE FUJI BANK, LIMITED,
as a Lender
By: /s/ Peter L. Chinnici
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Name: Peter L. Chinnici
Title: Senior Vice President &
Group Head
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NATIONAL CITY BANK OF INDIANA,
as a Lender
By: /s/ Thomas R. Groh
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Name: Thomas R. Groh
Title: Assistant Vice President
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NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Thomas E. Roberts
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Name: Thomas E. Roberts
Title: Vice President
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EXHIBIT J
Form of Borrowing Base Certificate
Attached
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BORROWING BASE CERTIFICATE
TO: Bank One, Indiana, National Association, as Administrative Agent
Corporate Banking
One Indiana Square
Suite IN1-7028
Indianapolis, IN 46266
Attention: William Herrick
I. RECEIVABLE CALCULATIONS
<TABLE>
<S> <C>
A. ELIGIBLE RECEIVABLES
1. Face Amount of All Receivables $_____________
2. Less: Receivables aged over 90 days from
due date or 120 from invoice date ($____________)
3. Less: Receivables owing from one
Account Debtor if cross-aged
(50% cross-age test) ($____________)
4. Less: Affiliate Receivables ($____________)
5. Less: Non-Complying Federal
Governmental Receivables ($____________)
6. Less: State and Municipal Receivables ($____________)
7. Less: Foreign Receivables ($____________)
8. Less: Receivables subject to
offset or counterclaim ($____________)
9. Less: Other Ineligible Receivables ($____________)
10. Total of Ineligible Receivables (Sum of Lines (A)(2)
through (A)(9)) ($____________)
11. ELIGIBLE RECEIVABLES (LINE (A)(1) MINUS (A)(10) $_____________
B. GROSS AMOUNT OF ELIGIBLE RECEIVABLES
1. Eligible Receivables (Item (A)(11) above) $_____________
2. Less: all finance charges, late fees and other fees that are unearned ($____________)
</TABLE>
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<TABLE>
<S> <C>
3. Less: value of any accrual which has been recorded by
Brightpoint with respect to downward price adjustments ($____________)
4. Less: Warranty reserve ($____________)
5. Less: Administrative Agent reserves, if any ($____________)
6. GROSS AMOUNT OF ELIGIBLE RECEIVABLES (SUM OF (B)(1) THROUGH
(B)(5)) $_____________
C. AVAILABILITY FROM ELIGIBLE RECEIVABLES
(85% OF LINE (B)(6)) = $_____________
II. INVENTORY CALCULATIONS
A. ELIGIBLE INVENTORY
1. Total Inventory (Lower of FIFO or Market) $_____________
2. Less: Obsolete inventory ($____________)
3. Less: Disqualified inventory (determined by Administrative
Agent to be ineligible due to age, type, category
and/or quantity) ($____________)
4. Less: Packaging materials and supplied ($____________)
5. Less: Consigned inventory ($____________)
6. Less: Equipment not compatible with U.S. phone
systems ($____________)
7. Less: Goods in transit ($____________)
8. Less: Inventory at non-permissible locations ($____________)
9. Less: Other Ineligible Inventory ($____________)
10. Total of Ineligible Inventory (Sum of Lines (A)(2)
through (A)(9)) ($____________)
11. ELIGIBLE INVENTORY (LINE (A)(1) MINUS (A)(10) $_____________
B. GROSS AMOUNT OF ELIGIBLE INVENTORY
1. Eligible Inventory (Item (A)(11) above) $_____________
2. Less: Reserves for obsolete, slow-moving or
excess Inventory ($____________)
</TABLE>
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<TABLE>
<S> <C>
3. Less: Administrative Agent reserves, if any ($____________)
4. GROSS AMOUNT OF ELIGIBLE INVENTORY
((B)(1) MINUS SUM OF (B)(2) AND (B)(3)) $_____________
C. AVAILABILITY FROM ELIGIBLE INVENTORY
(LESSER OF $70,000,000 AND 50% OF LINE (B)(4)) = $_____________
III. COLLATERAL SECURING FACILITY L/CS
A. Dollar Amount of all cash or Cash Equivalents
pledged as security for the Secured Facility Letters of Credit $_____________
III. BORROWING BASE (SUM OF (I)(C) + (II)(C) + III(A))= $_____________
</TABLE>
Pursuant to, and in accordance with, the terms and provisions of that
certain Second Amended and Restated Multicurrency Credit Agreement (as the same
may from time to time be amended, modified, supplemented or restated, the
"Credit Agreement") dated as of July 27, 1999, among Brightpoint, Inc.,
Brightpoint International Ltd., the Guarantors from time to time party thereto,
the financial institutions from time to time party thereto as Lenders and Bank
One, Indiana, National Association, as Administrative Agent, the undersigned, is
executing and delivering to the Administrative Agent this Borrowing Base
Certificate accompanied by supporting data (collectively referred to as
"Certificate"). The undersigned warrants and represents to the Administrative
Agent and the Lenders that this Certificate is true, correct, and based on
information contained in the undersigned's own records. The undersigned, by the
execution of this Certificate, hereby ratifies, confirms and affirms all of the
terms, conditions and provisions of the Credit Agreement, and further certifies
on the date of this certificate, that the undersigned is in compliance with said
Credit Agreement.
Date:
-------------, -----
BRIGHTPOINT, INC.
By:
-----------------------
Name:
Title:
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