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EXHIBIT 10.1
AMENDMENT NO. 2
TO
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 27, 1999
THIS AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED MULTICURRENCY
CREDIT AGREEMENT ("Amendment") is made as of June 28, 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 (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
definitions of Borrower, Holders of Secured Obligations, Issuing Lender and
Permitted Receivables Financing therein in their entirety and to substitute the
following therefor:
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"BORROWER" means, as applicable, Brightpoint, BPI, Brightpoint BV2 and
any Subsidiary Borrower and their respective successors and assigns.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall refer to (i) each Lender in respect
of its Loans (including, if applicable, any agency or Affiliate of the
Alternate Currency Lender utilized for making Alternate Currency Loans),
(ii) each of the Issuing Lenders and the Alternate Currency Lender in
respect of Reimbursement Obligations and other Obligations relating to its
Facility Letters of Credit (including, if applicable, any agency or
Affiliate of the Issuing Lenders or Alternate Currency Lender utilized for
issuing any Letters of Credit or Alternate Currency Letters of Credit),
(iii) the Administrative Agent, the Arranger, the Swing Line Lender and the
Issuing Lenders in respect of all other present and future obligations and
liabilities of any Borrower or any of their subsidiaries of every type and
description arising under or in connection with this Agreement or any other
Loan Document, (iv) each Indemnitee in respect of the obligations and
liabilities of any Borrower to such Person hereunder or under any of the
Loan Documents, (v) each Lender (or any agency or Affiliate thereof) in
respect of all Hedging Obligations of any Borrower or any of their
Subsidiaries to such lender (or agency or Affiliate thereof) and (vi) their
respective successors, transferees and assigns.
"ISSUING LENDER" means, as the context may require, (i) Bank One (or
its predecessors) (directly or through one or more if its Affiliates) with
respect to Facility Letters of Credit issued by it or its Affiliates
pursuant to this Agreement, (ii) Bank One, with respect to the Existing
Letters of Credit, (iii) any other Lender (directly or through one or more
of its Affiliates) that becomes an Issuing Lender, pursuant to Section
2.20, with respect to Facility Letters of Credit issued by such Lender,
(iv) the Alternate Currency Lender or any of its Affiliates with respect to
the issuance of Alternate Currency Letters of Credit or (v) collectively,
all the foregoing.
"PERMITTED RECEIVABLES FINANCING" means the sale, financing or
factoring of Foreign Receivables in an aggregate amount (based on the face
amount of such Foreign Receivables) not to exceed $50,000,000 at any one
time or from time to time (after deduction of the amount of such Foreign
Receivables which from time to time have either been collected or written
off in accordance with the applicable Subsidiary's credit and collection
policy).
1.2. Section 1.1 of the Credit Agreement is further amended to add the
following definition in the applicable alphabetical location.
"SECURED FACILITY LETTERS OF CREDIT" means a Letter of Credit issued
for the account of Brightpoint BV2 under the provisions of Section 2.20 and
for which collateral has been granted pursuant to the provisions of Section
6.3(C)(vi).
1.3. Section 2.20 of the Credit Agreement is hereby amended to delete the
terms thereof in their entirety and to substitute the following therefor:
2.20 Letter of Credit Facility; Limitation of Brightpoint BV2 Status.
Upon receipt of duly executed applications therefor, and such other
documents, instructions and agreements as such Issuing Lender may
reasonably require, and subject to the
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provisions of Article IV, the Administrative Agent shall, or any other
Lender in its sole discretion may, issue letters of credit denominated in
Dollars or in any Agreed Currency for the account of Brightpoint, BPI or
Brightpoint BV2, on terms as are satisfactory to such Issuing Lender;
provided, however, that no Facility Letter of Credit will be issued for the
account of Brightpoint, BPI or Brightpoint BV2 by an Issuing Lender if on
the date of issuance, before or after taking such Facility Letter of Credit
into account, (i) the Dollar Amount of the Revolving Credit Obligations at
such time would exceed the Aggregate Revolving Loan Commitments at such
time or (ii) the aggregate outstanding Dollar Amount of the L/C Obligations
exceeds Sixty Million and 00/100 Dollars ($60,000,000); and provided,
further, that no Facility Letter of Credit shall be issued which has an
expiration date more than one year after the date of issuance of such
Facility Letter of Credit or an expiration date later than the date which
is five (5) Business Days immediately preceding the Termination Date;
provided, further, that although such letters of credit were issued prior
to the date of this Agreement, effective on the Closing Date all Existing
Letters of Credit shall be treated as Facility Letters of Credit hereunder.
In addition to the foregoing and notwithstanding anything else herein to
the contrary, with respect to Facility Letters of Credit to be issued for
the account of Brightpoint BV2, no such Facility Letter of Credit will be
issued by an Issuing Lender unless (1) prior to such date Brightpoint BV2
has satisfied all of the conditions contained in Section 3 of Amendment No.
2 to this Agreement dated as of June 28, 2000 and (2) the Dollar Amount of
such Facility Letter of Credit together with all other Facility Letters of
Credit issued for the account of Brightpoint BV2 does not exceed the Dollar
Amount of all Collateral maintained by the applicable Issuing Lender for
such Facility Letters of Credit. Each Facility Letter of Credit may, upon
the request of the applicable Borrower, include a provision whereby such
Facility Letter of Credit shall be renewed automatically for additional
consecutive periods of 12 months or less (but not beyond the date that is
five Business Days prior to the Termination Date) unless the Issuing Lender
notifies the beneficiary thereof at least 30 days prior to the
then-applicable expiry date that such Facility Letter of Credit will not be
renewed. Prior to issuing any Facility Letter of Credit, the applicable
Issuing Lender shall request and the Administrative Agent shall provide
confirmation that the request for such Facility Letter of Credit complies
with the provisions of this Section 2.20. If the Administrative Agent
notifies the applicable Issuing Lender that it is authorized to issue such
Facility Letter of Credit, and the conditions described in Article IV have
been satisfied, then such Issuing Lender shall issue such Facility Letter
of Credit as requested. The applicable Issuing Lender shall give the
Administrative Agent and each Lender prompt notice of the issuance of any
such Facility Letter of Credit by it. Each Issuing Lender shall furnish to
the Administrative Agent and each Lender on the first Business Day of each
month a written report, with respect to each outstanding Facility Letter of
Credit issued by such Issuing Lender, summarizing whether such Facility
Letter of Credit is a standby or commercial Facility Letter of Credit, the
maximum amount available to be drawn thereon, the beneficiary and the
issuance and expiration dates thereof and, if such Letter of Credit is a
Secured Facility Letter of Credit, a written description of the Collateral
maintained with respect thereto. Together with each such monthly report
each Issuing Lender shall provide the Administrative Agent a copy of each
Facility Letter of Credit issued by such Issuing Bank during the previous
month. Notwithstanding anything in this Agreement to the contrary,
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Brightpoint BV2 shall be included as a Borrower under this Agreement solely
for the purpose of the issuance of Facility Letters of Credit for its
account under this Section 2.20 and shall not be entitled to borrow Loans
or Alternate Currency Loans.
1.4. Sections 2.22 and 2.23 of the Credit Agreement are hereby amended to
delete the terms thereon in their entirety and to substitute the following
therefor:
2.22 Reimbursement Obligation. Each of the Borrowers agrees
unconditionally, irrevocably and absolutely upon receipt of notice from the
Administrative Agent or the applicable Issuing Lender to pay immediately to
the Administrative Agent, for the account of the applicable Issuing Lender
or the account of the Lenders, as the case may be, the amount of each
advance which may be drawn under or pursuant to a Facility Letter of Credit
issued for its account or an L/C Draft related thereto (such obligation of
each of the Borrowers to reimburse the Issuing Lender or the Administrative
Agent for an advance made under a Facility Letter of Credit or L/C Draft
being hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect
to such Facility Letter of Credit or L/C Draft), each such payment to be
made by the applicable Borrower to the Administrative Agent no later than
2:00 p.m. (Indianapolis time) on the Business Day on which the applicable
Issuing Lender makes payment of each such L/C Draft or, in the case of any
other draw on a Facility Letter of Credit, 2:00 p.m. (Indianapolis time) on
the date specified in a demand by the Administrative Agent and such payment
shall be made in the applicable currency in which such Facility Letter of
Credit was issued. Any Issuing Lender may direct the Administrative Agent
to make such demand with respect to Facility Letters of Credit issued by
such Issuing Lender.
(a) If any Borrower (other than Brightpoint BV2) at any time
fails to repay a Reimbursement Obligation pursuant to this Section
2.22, such Borrower shall be deemed to have elected to borrow a
Revolving Loan from the applicable Lenders, as of the date of the
Advance giving rise to the Reimbursement Obligation equal in amount to
the amount of the unpaid Reimbursement Obligation. Such Revolving Loan
shall be made as of the date of the payment giving rise to such
Reimbursement Obligation, automatically, without notice and without
any requirement to satisfy the conditions precedent otherwise
applicable to an Advance of Revolving Loans if such Borrower shall
have failed to make such payment to the Administrative Agent for the
account of the applicable Issuing Lender prior to such time. Such
Revolving Loans shall constitute a Base Rate Advance, the proceeds of
which Advance shall be used to repay such Reimbursement Obligation.
If, for any reason, such Borrower fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises and, for
any reason, the Lenders are unable to make or have no obligation to
make a Revolving Loan, then such Reimbursement Obligation shall bear
interest from and after such day, until paid in full, at the interest
rate applicable to a Base Rate Advance.
(b) If Brightpoint BV2 at any time fails to repay a Reimbursement
Obligation pursuant to this Section 2.22, Brightpoint BV2 shall be
deemed to have authorized the applicable Issuing Lender to liquidate
any Collateral held as
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security for the Secured Facility Letters of Credit in an amount equal
to the amount of the unpaid Reimbursement Obligation (or as close
thereto as is reasonably practicable given the types and maturities of
Collateral held) and to apply the proceeds thereof to the repayment of
such Reimbursement Obligation. Such liquidation and application shall
be made as of the date of the payment giving rise to such
Reimbursement Obligation, automatically and without notice if
Brightpoint BV2 shall have failed to make such payment to the
Administrative Agent for the account of the applicable Issuing Lender
prior to such time. If, for any reason, Brightpoint BV2 fails to repay
a Reimbursement Obligation on the day such Reimbursement Obligation
arises and, for any reason, the applicable Issuing Lender is unable to
liquidate Collateral for application to such Reimbursement
Obligations, then , Brightpoint, as a guarantor of such Obligations,
shall be deemed to have elected to borrow a Revolving Loan from the
applicable Lenders, as of the date of the Advance giving rise to the
Reimbursement Obligation equal in amount to the amount of the unpaid
Reimbursement Obligation. Such Revolving Loan shall be made as of the
date of the payment giving rise to such Reimbursement Obligation,
automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of
Revolving Loans. Such Revolving Loans shall constitute a Base Rate
Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, Brightpoint BV2 fails to
repay a Reimbursement Obligation on the day such Reimbursement
Obligation arises and, for any reason the applicable Issuing Lender is
unable to liquidate Collateral for application to such Reimbursement
Obligations and, for any reason, the Lenders are unable to make or
have no obligation to make a Revolving Loan to Brightpoint, then such
Reimbursement Obligation shall bear interest from and after such day,
until paid in full, at the interest rate applicable to a Base Rate
Advance.
2.23 Cash Collateral. (a) Post-Default Collateral. Notwithstanding
anything to the contrary herein or in any application for a Facility Letter
of Credit, after the occurrence and during the continuance of Default, each
Borrower shall, upon the Administrative Agent's demand, deliver to the
Administrative Agent for the benefit of the Lenders, cash, or other
collateral of a type satisfactory to the Required Lenders, having a value,
as determined by such Lenders, equal to the aggregate outstanding L/C
Obligations of such Borrower. Any such collateral shall be held by the
Administrative Agent in a separate account appropriately designated as a
cash collateral account in relation to this Agreement and the Facility
Letters of Credit and retained by the Administrative Agent for the benefit
of the Lenders as collateral security for the Borrowers' obligations in
respect of this Agreement and each of the Facility Letters of Credit and
L/C Drafts. Such amounts shall be applied to reimburse the Administrative
Agent or each Issuing Lender, as applicable, for drawings or payments under
or pursuant to Facility Letters of Credit or L/C Drafts, or if no such
reimbursement is required, to payment of such of the other Obligations as
the Administrative Agent shall determine. If no Default shall be
continuing, amounts remaining in any cash collateral account established
pursuant to this Section 2.23 which are not to be applied to
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reimburse the Administrative Agent for amounts actually paid or to be paid
by the Administrative Agent in respect of a Facility Letter of Credit or
L/C Draft, shall be returned to the applicable Borrower (after deduction of
the Administrative Agent's expenses incurred in connection with such cash
collateral account).
(b) Brightpoint BV2 Collateral. Notwithstanding anything to the
contrary herein or in any application for a Facility Letter of Credit,
Brightpoint BV2 shall deliver to the applicable Issuing Lender (or to the
Administrative Agent) for the benefit of the Lenders, cash, or other Cash
Equivalents of a type satisfactory to the Administrative Agent, having a
value, at all times, equal to the aggregate outstanding L/C Obligations of
Brightpoint BV2. Any such collateral shall be held by the Administrative
Agent (or the applicable Issuing Lender) in a separate account
appropriately designated as a cash collateral account in relation to this
Agreement and the Facility Letters of Credit issued for the account of
Brightpoint BV2 and retained by the Administrative Agent (or the applicable
Issuing Lender) for the benefit of the Lenders as collateral security for
Brightpoint BV2's obligations in respect of this Agreement and each of the
Facility Letters of Credit issued for its account and L/C Drafts related
thereto. Such amounts shall be applied to reimburse the Administrative
Agent or each Issuing Lender, as applicable, for drawings or payments under
or pursuant to Facility Letters of Credit issued for the account of
Brightpoint BV2 or L/C Drafts thereunder.
1.5. Section 6.1(A) of the Credit Agreement is amended to delete the terms
of clauses (i) thereof in its entirety and to substitute the following therefor:
(i) [Intentionally Omitted].
1.6. Section 6.1(A) of the Credit Agreement is further amended to insert
the phrase ", chief accounting officer or treasurer" immediately after the
phrase "chief financial officer" contained in clause (ii) thereof.
1.7. Section 6.1(A) of the Credit Agreement is further amended to insert
the phrase ", chief accounting officer" immediately after the phrase "chief
financial officer" contained in clause (iv) thereof.
1.8. Section 6.1(J) of the Credit of the Credit Agreement is amended to
insert the phrase ", chief accounting officer" immediately after the phrase
"chief financial officer" contained therein.
1.9. Section 6.3(A) of the Credit Agreement is amended to delete clause (j)
thereof in its entirety and to substitute the following therefor:
(j) other Indebtedness provided such other Indebtedness does not
exceed in the aggregate outstanding at any time five percent
(5.00%) of Total Capital; and
1.10. Section 6.3(B) is amended to delete the terms of clause (iv) thereof
in its entirety and to substitute the following therefor:
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(iv) other sales, assignments, transfers, leases, conveyances or
other dispositions of other assets not covered by clause (v) below if
such transaction (a) is for all cash consideration with respect to any
Collateral which is sold, (b) is for not less than fair market value,
and (c) when combined with all such other sales, assignments,
transfers, conveyances or other dispositions (i) in the immediately
preceding twelve-month period represents the disposition of not
greater than five percent (5.00%) of Brightpoint's Total Capital as of
the beginning of such 12-month period and (ii) in the period from the
Original Closing Date to the date of such transaction represents the
disposition of not greater than seven and one-half percent (7.50%) of
the sum of (a) Brightpoint's consolidated net worth as of December 31,
1997 and (b) the original outstanding principal balance of the LYONS;
and
1.11. Section 6.3(C) of the Credit Agreement is amended to delete the terms
thereof in their entirety and to substitute the following therefor:
(C) Liens. Neither Brightpoint nor any of its Subsidiaries shall
directly or indirectly create, incur, assume, permit or suffer to exist any
Lien on or with respect to any of their respective property or assets
except:
(i) Liens created by the Loan Documents;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
(iv) purchase money Liens (including the interest of a lessor under a
Capitalized Lease and Liens to which any property is subject at the time of
the acquisition thereof by Brightpoint or one of its Subsidiaries) securing
Permitted Purchase Money Indebtedness; provided that such Liens shall not
apply to any property of Brightpoint or its Subsidiaries other than that
purchased or subject to such Capitalized Lease;
(v) any Liens on any Foreign Receivables that are subject to a
Permitted Receivables Financing;
(vi) Liens on cash or Cash Equivalents of Brightpoint BV2 to secure
Facility Letters of Credit issued for the account of Brightpoint BV2
pursuant to Section 2.20; and
(vii) Liens on assets of Subsidiaries which are not Domestic
Subsidiaries (other than stock of Subsidiaries) to secure other
Indebtedness, provided (a) such Indebtedness is incurred in compliance with
the terms of Section 6.3(A) and (b) the aggregate outstanding principal
balance of Indebtedness secured by such Liens does not at any time exceed
five percent (5.00%) of Total Capital.
In addition, neither Brightpoint nor any or its Subsidiaries shall
become a party to any agreement, note, indenture or other instrument, or
take any other action, which would prohibit the creation of a Lien or
require the sharing of a Lien on any of its properties or other assets in
favor of the Administrative Agent for the benefit of itself and the Holders
of Secured Obligations, as additional collateral for the Obligations;
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provided that any agreement, note, indenture or other instrument in
connection with Permitted Purchase Money Indebtedness (including Leases)
may prohibit the creation of a Lien in favor of the Administrative Agent
for the benefit of itself and the Holders of the Secured Obligations on the
items of property obtained with the proceeds of such Permitted Purchase
Money Indebtedness.
1.12. Section 6.3(D) of the Credit Agreement is amended to delete the terms
thereof in their entirety and to substitute the following therefor:
(D) Investments. Except for Permitted Existing Investments in an
amount not greater than the amount thereof on the Closing Date and except
to the extent permitted pursuant to paragraph (G) below, neither
Brightpoint nor any of its Subsidiaries shall directly or indirectly make
or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(iii) Investments consisting of deposit accounts maintained by
Brightpoint and its Subsidiaries in connection with its cash
management system in the ordinary course of business and consistent
with past practice;
(iv) Investments consisting of Indebtedness permitted pursuant to
Section 6.3(A)(c) or other Investments in any Disqualified Subsidiary;
provided the Disqualified Subsidiary Investment shall not exceed
seventeen and one-half percent (17.50%) of Total Capital at any time;
and
(v) other Investments in any Person, including in connection with
Permitted Acquisitions, provided the aggregate purchase price for such
Permitted Acquisitions and the aggregate amount of such other
Investments during any fiscal year does not exceed five percent (5.0%)
of Total Capital determined based upon the financial statements most
recently delivered pursuant to the terms of Section 6.1(A).
1.13. Section 6.3(E) of the Credit Agreement is amended to delete clause
(vii) thereof in its entirety and to substitute the following therefor:
(vii) Contingent Obligations consisting of guaranties by Brightpoint
of all of its Subsidiaries' obligations with respect to and in
connection with Permitted Receivables Financings;
1.14. Section 6.3(G) of the Credit Agreement is amended to delete the
second sentence thereof in its entirety and to substitute the following
therefor:
Other than in connection with the Facility Letters of Credit issued
for the account of Brightpoint BV2 in accordance with the terms hereof,
Brightpoint shall not permit Brightpoint BV1 or Brightpoint BV2 to engage,
either directly or indirectly in any
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operating business enterprise but shall solely own the Capital Stock of
their respective Subsidiaries.
1.15. Section 6.3(G)(3) of the Credit Agreement is amended to delete the
reference to Section 6.3(D)(vii) therein and to substitute a reference to
Section 6.3(D)(v) therefor.
1.16. Section 6.4(D) of the Credit Agreement is amended to delete the lead
in language in clause (1) thereof in its 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 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 quarters set forth below to be greater than:
1.17. Section 6.4(D) of the Credit Agreement is further amended to delete
the lead in language in clause (2) thereof in its entirety and to substitute the
following therefor:
(2) Brightpoint shall not permit the ratio ("SENIOR DEBT RATIO") of
(i) the sum of (a) Indebtedness other than the Permitted Subordinated
Indebtedness of Brightpoint and its consolidated Subsidiaries for borrowed
money plus (b) Capitalized Lease Obligations minus (c) the lesser of (i)
the 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 quarters set forth below to be greater
than:
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of June 28, 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; and
(b) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
3. Conditions to Facility Letters of Credit for Brightpoint BV2. The
provisions of this Amendment enabling Brightpoint BV2 to have issued for its
account Facility Letters of Credit pursuant to Section 2.20 of the Credit
Agreement shall become effective if, and only if and when, the Administrative
Agent shall have received each of the following:
(a) a joinder agreement in form and substance acceptable to the
Administrative Agent duly executed by Brightpoint BV2 and the
Administrative Agent pursuant to which Brightpoint BV2 becomes a party to
the Credit Agreement, acknowledged and agreed to by each of the other
Borrowers and Guarantors;
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(b) a duly completed Guarantor Assumption Letter;
(c) an opinion of counsel to Brightpoint BV2 in form and substance
reasonably acceptable to the Administrative Agent with respect to, among
other things: due authorization, execution and delivery; enforceability; no
conflict; and perfection of security interests;
(d) corporate documentation and other documentation in form and
substance reasonably acceptable to the Administrative Agent; and
(e) each of the entities parties to any of the Pledge Agreements as
pledgors shall have entered into reaffirmations of such Pledge Agreements
4. 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.
5. 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.
6. 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
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Agent) incurred by the Administrative Agent in connection with the preparation,
arrangement, execution and enforcement of this Amendment.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
11
<PAGE> 12
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
---------------
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
---------------
Name: Steven E. Fivel
Title: Executive Vice President,
Secretary
BRIGHTPOINT LATIN AMERICA, INC.,
as a Guarantor
By: /s/ Steven E. Fivel
---------------
Name: Steven E. Fivel
Title: Executive Vice President, General
Counsel and Secretary
WIRELESS FULFILLMENT SERVICES LLC,
as a Guarantor
By: BRIGHTPOINT, INC., its Managing Member
By: /s/ Steven E. Fivel
---------------
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
---------------
Name: Steven E. Fivel
Title: Director
<PAGE> 13
BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Steven E. Fivel
---------------
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/ Scott A. Dvornik
----------------
Name: Scott A. Dvornik
Title: Vice President
<PAGE> 14
ABN AMRO BANK N.V.,
as the Alternate Currency Lender
By: /s/ Wesley P. Pascavis
------------------
Name: Wesley P. Pascavis
Title: Senior Vice President and Managing
Director
By: /s/ David E. Collignon
------------------
Name: David E. Collignon
Title: Vice President
<PAGE> 15
FLEET NATIONAL BANK
as a Lender
By: /s/ Harvey H. Thayer, Jr.
---------------------
Name: Harvey H. Thayer, Jr.
Title: Managing Director
<PAGE> 16
FIRST UNION NATIONAL BANK,
as a Lender
By:
---------------------------
Name:
Title:
<PAGE> 17
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
as a Lender
By:
---------------------------
Name:
Title:
<PAGE> 18
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ N. Bell
-----------
Name: N. Bell
Title: Assistant Agent
<PAGE> 19
THE PROVIDENT BANK,
as a Lender
By:
---------------------------
Name:
Title:
<PAGE> 20
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH,
as a Lender
By:
---------------------------
Name:
Title:
<PAGE> 21
THE FUJI BANK, LIMITED,
as a Lender
By: /s/ James Fayen
---------------
Name: James Fayen
Title: Senior Vice President & Senior
Team Leader
<PAGE> 22
NATIONAL CITY BANK OF INDIANA,
as a Lender
By: /s/ Thomas R. Groh
------------------
Name: Thomas R. Groh
Title: Corp. Banking Officer
<PAGE> 23
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Thomas E. Roberts
---------------------
Name: Thomas E. Roberts
Title: Vice President
