EXHIBIT 99.1
AMENDMENT NO. 2 TO CREDIT AGREEMENT
AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 27, 2002 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 the Lenders are
party to that certain Credit Agreement, dated as of October 31, 2001 (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,
the other Credit Parties, Agent and Lenders wish to amend certain provisions of
the Credit Agreement.
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. Subject to the conditions set forth in
Section 3 hereof, the Credit Agreement is hereby amended as follows:
(a) Section 8.1 of the Credit Agreement is amended by deleting subsection
(o) thereof in its entirety and replacing such subsection with the following new
subsection (o):
"(o) As of the last day of each Fiscal Quarter, BPI and its Subsidiaries on
a consolidated basis fail to have Tangible Net Worth equal to or greater
than $75,000,000; provided, for purposes of this quarterly Tangible Net
Worth calculation, the determination of Net Worth shall be adjusted
positively for losses or negatively for gains, as the case may be, based on
the occurrence after August 31, 2002 of (i) any gains or losses resulting
from BPI's repurchase
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or restructure of XXXXX, (ii) any comprehensive income or deficit resulting
from BPI's currency translation of its foreign investments and (iii) any
write-down in the book value of BPI's preference shares in Chinatron Group
Holdings Limited resulting from a revaluation thereof."
(b) Annex A to the Credit Agreement is amended as follows:
(i) The definition of "Fixed Charge Coverage Ratio" contained
therein is deleted and replaced in its entirety with the following:
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any fiscal period, the ratio of Free Cash Flow to Fixed Charges.
(ii) The following definitions are added thereto in alphabetical
order among the definitions appearing therein:
"Net Worth" means, with respect to any Person as of any date of
determination, the book value of the assets of such Person, minus the
sum of (a) reserves applicable thereto, and (b) all of such Person's
liabilities on a consolidated basis (including accrued and deferred
income taxes), all as determined in accordance with GAAP.
"Tangible Net Worth" means, with respect to any Person at any date,
the Net Worth of such Person at such date; excluding, however, from
the determination of the total assets at such date, (a) all goodwill,
capitalized organizational expenses, capitalized research and
development expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses and rights in any thereof, and other
intangible items, (b) treasury Stock, and (c) any write-up in the book
value of any asset resulting from a revaluation thereof.
(c) Annex E to the Credit Agreement is amended by adding the following
language to the conclusion of section (b) thereof:
"Furthermore, Borrowers shall deliver to Agent and Lenders within 45
days after the end of each Fiscal Quarter, a statement in reasonable
detail showing the calculation used in determining compliance with the
Tangible Net Worth covenant of BPI and its Subsidiaries as set forth
in Section 8.1(o)."
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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 of each condition set forth in this
Section 3 on or prior to the date hereof:
(a) Amendment. Agent shall have received (on behalf of itself and Lenders)
duly executed originals of this Amendment from each Credit Party and from each
of the Lenders.
(b) Other Documents. All other agreements, certificates, opinions 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.
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(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 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
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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.
(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
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES LLC
BY: BRIGHTPOINT, INC., its manager
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: /s/ Xxxxx Xxxx
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Title: Duly Authorized Signatory
LASALLE BUSINESS CREDIT, INC.,
as Lender
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Vice President
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NATIONAL CITY BANK OF INDIANA, as Lender
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Vice President
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CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Lender
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title:
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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
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel & Secretary
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Secretary
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