Amendment No. 3 to Second Amended and Restated Multicurrency Credit Agreement among Brightpoint, Inc., Brightpoint International Ltd., and Bank One, Indiana, N.A.
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This amendment updates the multicurrency credit agreement between Brightpoint, Inc., Brightpoint International Ltd., their guarantors, and a group of lenders led by Bank One, Indiana. The changes revise definitions, payment restrictions, and financial ratio requirements. The amendment becomes effective once certain fees are paid and documents are delivered. The parties reaffirm their obligations under the original agreement, and all other terms remain in effect unless specifically changed by this amendment.
EX-10.1 2 c58448ex10-1.txt AMENDMENT NO. 3 TO MULTICURRENCY CREDIT AGREEMENT 1 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: 2 "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 2 3 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. 3 4 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. 4 5 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] 5 6 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 Manager 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 7 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/ Rahul Sawhney ------------------------------ Name: Rahul Sawhney Title: Vice President 8 ABN AMRO BANK N.V., as the Alternate Currency Lender By: /s/ Laurie D. Flom ----------------------------- Name: Laurie D. Flom Title: Senior Vice President By: /s/ Mary L. Honda ----------------------------- Name: Mary L. Honda Title: Group Vice President 9 FLEET NATIONAL BANK as a Lender By: ----------------------------- Name: Title: 10 FIRST UNION NATIONAL BANK, as a Lender By: ----------------------------- Name: Title: 11 SUNTRUST BANK (Successor to SUNTRUST BANK OF CENTRAL FLORIDA, NATIONAL ASSOCIATION), as a Lender By: /s/ Molly J. Drennan ----------------------------- Name: Molly J. Drennan Title: Director 12 THE BANK OF NOVA SCOTIA, as a Lender By: /s/ F.C.H. Ashby ----------------------------- Name: F.C.H. Ashby Title: Senior Manager Loan Operations 13 THE PROVIDENT BANK, as a Lender By: /s/ Robert C. Olds ----------------------------- Name: Robert C. Olds Title: Vice President 14 THE BANK OF TOKYO-MITSUBISHI, LTD. CHICAGO BRANCH, as a Lender By: /s/ Hisashi Miyashiro ----------------------------- Name: Hisashi Miyashiro Title: Deputy General Manager 15 THE FUJI BANK, LIMITED, as a Lender By: /s/ Peter L. Chinnici ----------------------------- Name: Peter L. Chinnici Title: Senior Vice President & Group Head 16 NATIONAL CITY BANK OF INDIANA, as a Lender By: /s/ Thomas R. Groh ----------------------------- Name: Thomas R. Groh Title: Assistant Vice President 17 NATIONAL BANK OF CANADA, as a Lender By: /s/ Thomas E. Roberts ----------------------------- Name: Thomas E. Roberts Title: Vice President 18 EXHIBIT J Form of Borrowing Base Certificate Attached 19 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
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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: 3
