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EXHIBIT-10.22
WAIVER AND AMENDMENT NO. 1
TO MULTICURRENCY CREDIT AGREEMENT
Dated as of November 15, 1997
THIS WAIVER AND AMENDMENT NO. 1 TO MULTICURRENCY CREDIT
AGREEMENT ("Amendment") is made as of November 15, 1997 by and among
BRIGHTPOINT, INC., BRIGHTPOINT INTERNATIONAL LTD., the subsidiary borrowers from
time to time party thereto (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 syndication
agent (the "Syndication Agent"), and THE FIRST NATIONAL BANK OF CHICAGO, in its
individual capacity as a Lender and as administrative agent (the "Administrative
Agent"; and together with the Syndication Agent, the "Agents") on behalf of the
Lenders under that certain Multicurrency Credit Agreement dated as of June 24,
1997 by and among the Borrowers, the Guarantors, the Lenders and the Agents, as
modified by the letter agreement dated August 8, 1997 (as so modified, and as
further amended, modified 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
Agents 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 Agents 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 Agents have agreed to the
following amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of October 31, 1997 and
subject to the satisfaction of the conditions precedent set forth in Section 3
below, the Credit Agreement is hereby amended as follows:
1.1 Section 1.1 of the Credit Agreement is hereby amended
to add the following definitions thereto in the appropriate alphabetical order:
"Domestic Subsidiary" shall mean a Subsidiary formed pursuant to the
laws of any state of the United States.
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"Material Subsidiary" shall mean a direct or indirect Subsidiary of the
Company whose consolidated total assets (directly and together with its
Subsidiaries) are, at any time, greater than $1,000,000.
1.2. Section 6.2(M) of the Credit Agreement is hereby
amended and as so amended and restated shall read in its entirety as follows:
"(M) Additional Guarantors/Pledge of Capital Stock. (a) Brightpoint
will cause each Material Subsidiary which is a Domestic Subsidiary and which is
not a Subsidiary Borrower, within 30 days after becoming a Material Subsidiary,
to execute and deliver to the Administrative Agent a Guarantor Assumption Letter
pursuant to which it agrees to be bound by the provisions of Article IX,
together with corporate resolutions and such other corporate documentation as
the Administrative Agent may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent.
(b) Brightpoint shall deliver an agreement evidencing the pledge, to
the Administrative Agent, for the benefit of the Holders of Secured Obligations,
of 65% of the Capital Stock of each Material Subsidiary which is not a Domestic
Subsidiary and which is not a Subsidiary Borrower, within 60 days after such
Subsidiary has become a Material Subsidiary, together with corporate resolutions
and such other corporate documentation as the Administrative Agent may
reasonably request, all in form and substance reasonably satisfactory to the
Administrative Agent."
1.3 Clause (vii) of Section 6.3(E) of the Credit Agreement is
hereby amended by replacing the dollar amount "$10,000,000" with the dollar
amount "$20,000,000".
1.4. Section 6.3(G) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(G) Conduct of Business; Subsidiaries; Acquisitions. Neither
Brightpoint nor any of its Subsidiaries shall engage in any business other than
the businesses engaged in by them on the date hereof and any business or
activities which are substantially similar, related or incidental thereto.
Brightpoint shall not and shall not permit any of its Subsidiaries to enter into
any transaction or series of transactions in which it acquires all or any
significant portion of the assets (including, without limitation, the Capital
Stock thereof) of another Person unless such purchase meets the following
requirements (each such purchase constituting a "PERMITTED ACQUISITION"):
(1) prior to each such purchase, Brightpoint shall deliver to
the Administrative Agent and the Lenders a certificate from one of
Brightpoint's Authorized Officers certifying that no Default or
Unmatured Default shall have occurred and be continuing or would result
from such transaction or transactions or the incurrence of any
Indebtedness in connection therewith; provided, that the Administrative
Agent, in its sole discretion or at the request of the Required
Lenders, may require that Brightpoint deliver to the Administrative
Agent and the Lenders a certificate from one of Brightpoint's
Authorized Officers demonstrating to the satisfaction of the
Administrative Agent and the Required Lenders that after giving effect
to such transaction or transactions and the incurrence of any
Indebtedness permitted by Section 6.3(A) in connection therewith on a
pro forma basis as if such acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of Brightpoint's most recently completed fiscal
quarter, Brightpoint would have been in compliance with all provisions
of Section 6.4 at all times during such twelve-month period;
(2) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and involves the purchase
of a business line similar, related or incidental to that of
Brightpoint's and its Subsidiaries as of the Closing Date; and
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(3) the aggregate purchase price (including assumed
liabilities) in connection with all such transactions during any twelve
month period shall not exceed:
(A) for any single transaction or series of related
transactions, $10,000,000; provided not more than $5,000,000
of such amount shall be consideration paid in cash or Cash
Equivalents; and
(B) for all transactions during the twelve-month
period ending on the date of such transaction, $20,000,000;
provided not more than $10,000,000 of such amount shall be
consideration paid in cash or Cash Equivalents."
1.4. Section 6.4(F) of the Credit Agreement is hereby
amended to read in its entirety as follows:
"(F) Capital Expenditures. Brightpoint will not, nor will it permit any
Subsidiary to, expend, or be committed to expend, for Capital Expenditures
during any one fiscal year in the aggregate for Brightpoint and its Subsidiaries
in excess of (a) $20,000,000 for the fiscal year ending December 31, 1997, (b)
$20,000,000 for the fiscal year ending December 31, 1998 and (c) for each fiscal
year thereafter the sum of (i) $20,000,000 plus (ii) the product of $2,000,000
multiplied by the number of complete fiscal years after December 31, 1998."
2. Limited Waivers. Upon the effectiveness of this Amendment, the
Lenders hereby waive:
(a) the Default or Defaults, if any, arising out of any breach
by the Borrowers of Section 6.4(F) or Section 6.2(G) of the Credit
Agreement which may have occurred prior to the effectiveness of this
Amendment; provided, that, if this Amendment had been effective at the
time of such Default, the circumstances causing such Default would not
then cause a Default;
(b) the Default arising out of the breach by the Borrowers of
Section 6.2(N) of the Credit Agreement by reason of the failure of
Brightpoint International Ltd. to pledge of 65% of the Capital Stock of
Brightpoint Sweden AB to the Administrative Agent, for the benefit of
the Holders of Secured Obligations, on or prior to October 31, 1997;
and
(c) the Default arising out of the breach by the Borrowers of
Section 6.2(G) of the Credit Agreement arising out of the failure of
Brightpoint to deliver, prior to the acquisition by Brightpoint China
Limited of Legend International (Asia) Limited, a certificate from one
of Brightpoint's Authorized Officers certifying that no Default or
Unmatured Default shall have occurred and be continuing or would result
from such transaction or transactions or the incurrence of any
Indebtedness in connection therewith.
3. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of October 31, 1997, if, and only if, the
Administrative Agent shall have received each of the following:
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(a) duly executed originals of this Amendment from the
Borrowers, the Guarantors and the Required Lenders;
(b) a duly executed original of the Share Pledge Agreement
between Brightpoint International Ltd. and The First National Bank of
Chicago, as Administrative Agent, evidencing the pledge of 65% of the
Capital Stock of Brightpoint Sweden AB to the Administrative Agent, for
the benefit of the Holders of Secured Obligations, together with such
other documentation necessary to effectuate such pledge;
(c) a certificate from one of Brightpoint's Authorized
Officers certifying that no Default or Unmatured Default has occurred
and is continuing or will result from the acquisition by Brightpoint
China Limited of Legend International (Asia) Limited or the incurrence
of Indebtedness, if any, in connection therewith; and
(d) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
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, 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 Agent) incurred by the Administrative Agent in connection
with the preparation, arrangement, execution and enforcement of this Amendment.
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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.
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.
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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:___________________________
Name:
Title:
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By:___________________________
Name:
Title:
BRIGHTPOINT (UK) LIMITED,
as a Subsidiary Borrower and
Guarantor
By:___________________________
Name:
Title:
BRIGHTPOINT AUSTRALIA PTY. LIMITED,
as a Subsidiary Borrower and
Guarantor
By:___________________________
Name:
Title:
BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and
Guarantor
By:___________________________
Name:
Title:
Signature Page Brightpoint, Inc.
Amendment to Credit Agreement
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BRIGHTPOINT EMA LIMITED,
as a Guarantor
By:___________________________
Name:
Title:
BRIGHTPOINT AUSTRALASIA PTY. LIMITED,
as a Guarantor
By:___________________________
Name:
Title:
BRIGHTPOINT INTERNATIONAL (ASIA PACIFIC)
PTE LTD., as a Guarantor
By:___________________________
Name:
Title:
BRIGHTPOINT F.S.C. INC., as a Guarantor
By:___________________________
Name:
Title:
RPS INDUSTRIES COMPANY LIMITED, as a Guarantor
By:___________________________
Name:
Title:
Signature Page Brightpoint, Inc.
Amendment to Credit Agreement
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THE FIRST NATIONAL BANK OF CHICAGO
as the Administrative Agent, an
Issuing Lender, the Swing Line
Lender, an Alternate Currency Agent
and as a Lender
By:___________________________
Name:
Title:
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the Syndication Agent, an Issuing
Lender and as a Lender
By:___________________________
Name:
Title:
BANK BOSTON, N.A.
as a Lender
By:___________________________
Name:
Title:
CORESTATES BANK, N.A.
as a Lender
By:___________________________
Name:
Title:
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By:___________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
as a Lender
By:___________________________
Name:
Title:
Signature Page Brightpoint, Inc.
Amendment to Credit Agreement
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CREDIT LYONNAIS CHICAGO BRANCH
as a Lender
By:___________________________
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By:___________________________
Name:
Title:
THE FUJI BANK, LIMITED
as a Lender
By:___________________________
Name:
Title:
Signature Page Brightpoint, Inc.
Amendment to Credit Agreement
