FIFTH AMENDMENT TO CREDIT AGREEMENT
BRIGHTPOINT, INC., a Delaware corporation (the "Company"), the banks
listed on the signature pages hereof (each individually a "Bank" and
collectively the "Banks") and BANK ONE, INDIANAPOLIS, NATIONAL ASSOCIATION, a
national banking association with its principal office in Indianapolis, Indiana,
as agent for the Banks (in such capacity the "Agent" and in its individual
capacity "Bank One") agree as follows:
1. CONTEXT. This Fifth Amendment is made in the context of the following agreed
statement of facts:
a. The Company, the Banks and the Agent are parties to a Credit
Agreement dated June 13, 1995, as amended by a First Amendment to
Credit Agreement dated as of September 15, 1995, a Second Amendment to
Credit Agreement dated as of January 19, 1996, a Third Amendment to
Credit Agreement dated as of June 7, 1996, and a Fourth Amendment to
Credit Agreement dated as of June 28, 1996 (collectively, the
"Agreement").
b. The Company has requested that the Banks (i) modify certain
affirmative and negative covenants to permit the Company to guarantee
certain indebtedness and to permit the Company's Subsidiary,
International, to enter into certain indebtedness, and (ii) to waive
the Company's noncompliance with its Fixed Charge Coverage Covenant,
and other covenants, as of September 30, 1996.
c. The Banks have agreed to such requests, subject to certain terms and
conditions, and the parties have executed this document (this "Fifth
Amendment") to give effect to their agreement.
2. DEFINITIONS. Terms used in this Fifth Amendment with their initial letters
capitalized are used as defined in the Agreement, unless otherwise defined
herein.
a. Amended Definition. The definition of "Funded Debt" in Section 1 of
the Agreement is hereby amended to restate clauses (d) and (e) of such
definition as follows:
"(d) to the extent not already included in clause (a) above,
all guaranties and other obligations (contingent or otherwise)
of the Company and its Subsidiaries, calculated on a
consolidated basis, to assure a creditor against loss
(including, without limitation, letters of responsibility or
comfort letters, arrangements to purchase or repurchase
property or obligations, to pay for property, goods or
services whether or not delivered or rendered, to maintain
working capital, equity capital or other financial statement
condition of, or to lend or contribute to or invest in a third
party) in respect of obligations of such third party, provided
however, that the guaranty by the Company of the line of
credit obligations of International shall be included in the
calculation of Funded Debt at the principal amount of the debt
outstanding on the date of calculation and not at the face
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amount of the guaranty; (e) to the extent not already included
in clauses (a) or (d) above, all consolidated obligations of
the Company and its Subsidiaries for extensions of credit
including the face amount of letters of credit issued for the
account of the Company or any Subsidiary, whether or not
representing obligations for borrowed money (for purposes of
this clause (e), Subsidiary shall include subsidiaries of
International),"
b. New Definition. A new definition is added to Section 1 of the
Agreement to read as follows:
o Fifth Amendment. "Fifth Amendment" means the written
amendment to this Agreement entitled "Fifth Amendment to
Credit Agreement" and dated effective as of October 11,
1996.
3. AMENDMENT TO FINANCIAL COVENANTS. Section 5.g(iii) of the Agreement is hereby
amended and restated in its entirety as follows:
(iii) Fixed Charge Coverage. At the end of each fiscal quarter, for the
four consecutive fiscal quarters ending as of such fiscal quarter end,
from the date of the Fifth Amendment and until December 30, 1996, the
Company shall maintain a fixed charge coverage ratio of not less than
1.25 to 1.0. At December 31, 1996, and at each fiscal quarter
thereafter until December 30, 1997, the Company shall maintain a fixed
charge coverage ratio of not less than 1.35 to 1.0. At December 31,
1997, and at each fiscal quarter thereafter, the Company shall maintain
a fixed charge coverage ratio of not less than 1.50 to 1.0. For
purposes of this covenant, the phrase "fixed charge coverage ratio"
means, for any relevant period, the ratio of the sum of net income plus
depreciation, amortization and interest expense plus cash taxes paid
over the sum of payments made on term debt during the period for which
the ratio is being calculated, including current capital lease payments
but excluding any payments made on account of the Loan, plus interest
expense, plus expenditures for fixed assets not funded with borrowed
funds, plus dividends paid, plus cash taxes paid; provided that for
purposes of this covenant, net income shall not be reduced by the
expenses incurred by the Company related to the Allied transaction in a
maximum sum of $2,500,000.00.
4. AMENDMENTS TO NEGATIVE COVENANTS. Section 6 of the Agreement is amended as
follows:
a. Section 6.c. of the Agreement is hereby amended and restated in
its entirety as follows:
c. Guaranties. The Company shall not be, and shall not permit
any Subsidiary to be, a guarantor or surety of, or otherwise
be responsible in any manner with respect to any undertaking
of any other person or entity, whether by guaranty agreement
or by agreement to purchase any obligations, stock, assets,
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goods or services, or to supply or advance any funds, assets,
goods or services or otherwise except for:
(i) guaranties in favor of the Banks or the Agent on
behalf of the Banks;
(ii) the guaranty by the Company of certain debt of
International or a subsidiary of International, in an
aggregate amount not to exceed $25,000,000 plus
interest and costs of collection;
(iii) guaranties by endorsement of instruments for deposit
made in the ordinary course of business;
(iv) guaranties by International in favor of its
subsidiaries; and
(v) those specific existing guaranties listed on the
"Schedule of Exceptions" attached as Exhibit "D".
b. Subsections (iv) and (vi) of Section 6.d. of the Agreement are
amended and restated in their entirety as follows:
(iv) loans, advances or guaranties from the Company to or
on behalf of International not in excess of the
aggregate principal amount of $30,000,000.00,
including any guaranty by the Company for
indebtedness of any subsidiary of International and
provided that any Letters of Credit issued for the
account of the Company but on behalf of International
shall be included in the amount of loans, advances or
guaranties for purposes of this subsection;
(vi) loans and advances from International to any
subsidiaries of International and a Shareholder Note
dated July 1, 1996 owed to International from Xxxx
Xxxxxx and Xxxx X. Xxxxxxx-Xxxxxx, with a present
principal balance of $1,106,000.00;
c. Section 6.e. of the Agreement is hereby amended to increase the
amount of Two Million Dollars in the second sentence of such Subsection
to "Five Million Dollars ($5,000,000.00)", which amount shall exclude
the acquisition of Hatadicorp Pty. Ltd of Australia by a subsidiary of
International, which acquisition is specifically consented to by the
Banks.
d. Section 6.k. of the Agreement is hereby amended and restated in its
entirety as follows:
k. Lease Obligations. The Company shall not incur, and shall
not permit any Subsidiary to incur, obligations under any
operating leases if as a result, the aggregate payment
obligations of the Company and its Subsidiaries under all such
leases in any fiscal year would exceed $1,000,000; except:
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(i) an operating lease for computer equipment, software,
and certain furniture and fixtures in a total
aggregate amount not to exceed $5,000,000 to be
entered into prior to December 31, 1996; and
(ii) those existing obligations disclosed on the "Schedule
of Exceptions" attached as Exhibit "D".
e. Section 6.l. of the Agreement is hereby amended and restated in its
entirety as follows:
l. Debt. The Company shall not incur or permit to exist, and
shall not permit any Subsidiary to incur or permit to exist,
any Indebtedness in excess of the aggregate amount of
$2,000,000.00 at any time outstanding, except for:
(i) Indebtedness owed to the Banks under this Agreement;
(ii) Rate Hedging Obligations with any Bank;
(iii) Indebtedness of International or a subsidiary of
International in an aggregate amount not to exceed
$25,000,000.00 under a revolving line of credit or
for the purchase of Hatadicorp Pty. Ltd;
(iv) the Company's guaranties of the Indebtedness of
International or a subsidiary of International, which
guaranties shall not exceed in the aggregate
$25,000,000.00 plus interest and costs of collection;
(v) the operating lease obligations permitted to be
incurred under Section 6.k. hereof;
(vi) to the extent not already included above, the
Indebtedness permitted under Section 6.d. hereof; and
(vii) those existing obligations disclosed on the "Schedule
of Exceptions" attached as Exhibit "D".
5. WAIVER OF NONCOMPLIANCE WITH FINANCIAL COVENANT. The Banks acknowledge that
the Company was not in compliance with the Fixed Charge Coverage Ratio set forth
in Section 5.g.(iii) at September 30, 1996. The Banks hereby waive such
noncompliance at such date and waive their right to exercise remedies available
under the Agreement as the result of the Company's failure to maintain its Fixed
Charge Coverage Ratio at required levels. Such waiver shall not constitute any
agreement or waiver on the part of the Banks to any further or other default or
noncompliance on the part of the Company or any Subsidiary.
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6. WAIVER OF CONSOLIDATING FINANCIAL STATEMENTS OF ACQUISITION. The Company has
informed the Banks that the assets and liabilities of Acquisition have been or
will be transferred to the books and records of the Company and that, as of
September 30, 1996, there will be no separate books and records of Acquisition.
The Banks waive the remedies available under the Agreement for the failure of
the Company to comply with the provisions of Section 5.b(ii) with respect to
furnishing the consolidating financial statements of Acquisition for the months
ending September 30, 1996, October 31, 1996 and November 30, 1996; provided that
the Company agrees to take all action necessary to effect the merger of
Acquisition into the Company on or before December 31, 1996, and provided
further that the Company will provide (A) a written certification to the Banks
that Acquisition has no assets or business operations which are not reflected in
the financial statements of the Company, which certification will accompany each
of the financial statements furnished to the Banks pursuant to the Agreement
prior to the merger of Acquisition into the Company, and (B) written notice to
the Banks when the merger has been completed accompanied by copies of the
Articles of Merger, or comparable appropriate documents, certified by the
Secretary of State of Delaware. The Company acknowledges that if the merger of
Acquisition into the Company is not completed by December 31, 1996, the Company
shall comply with the provisions of Section 5.b(ii) which provisions require the
consolidating financial statements of Acquisition.
7. CONDITIONS PRECEDENT. As conditions precedent to the effectiveness of this
Fifth Amendment, the Agent shall have received, each duly executed and in form
and substance satisfactory to the Banks, the following:
a. This Fifth Amendment, and
b. Such other documents as may be reasonably required by the Agent or
the Banks.
8. REPRESENTATIONS AND WARRANTIES. To induce the Banks and the Agent to enter
into this Fifth Amendment, the Company represents and warrants, as of the date
of this Fifth Amendment, and except as otherwise provided in this Fifth
Amendment, that no Event of Default or Unmatured Event of Default has occurred
or is continuing and that the representations and warranties contained in
Section 3 of the Agreement are true and correct, except that the representations
contained in Section 3.d. refer to the latest financial statements furnished to
the Banks by the Company pursuant to the requirements of the Agreement.
9. REAFFIRMATION OF THE AGREEMENT. Except as amended by this Fifth Amendment,
all terms and conditions of the Agreement shall remain unchanged and in full
force and effect and the Obligations of the Company shall continue to be secured
and guaranteed as therein provided until payment and performance in full of all
Obligations.
10. COUNTERPARTS. This Fifth Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company, the Agent and the Banks, by their
respective duly authorized officers, have executed this Fifth Amendment to
Credit Agreement with effect as of October 11, 1996.
BRIGHTPOINT, INC.
By /s/ J. Xxxx Xxxxxx
----------------------------------------------------
J. Xxxx Xxxxxx, President and
Chief Operating Officer
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: President and Chief Operating Officer
Fax: (000) 000-0000
[BALANCE OF PAGE INTENTIONALLY BLANK]
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BANK ONE, INDIANAPOLIS, NATIONAL
ASSOCIATION Individually and as Agent
By /s/ Xxxxx X. Xxxxx
-----------------------------------------------------
Xxxxx X. Xxxxx, Vice President and
Senior Relationship Manager
PERCENTAGE: 41.5%
Address: Bank One Center/Tower
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Manager, Metropolitan Department B
Fax: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
By
-----------------------------------------------------
-----------------------------------------------------
Printed Name & Title
PERCENTAGE: 26.0%
Address: One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx
Fax: (000) 000-0000
22
BANK ONE, INDIANAPOLIS, NATIONAL
ASSOCIATION Individually and as Agent
By /s/
-----------------------------------------------------
Xxxxx X. Xxxxx, Vice President and
Senior Relationship Manager
PERCENTAGE: 41.5%
Address: Bank One Center/Tower
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Manager, Metropolitan Department B
Fax: (000) 000-0000
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxx X. Xxxxx
-----------------------------------------------------
Xxxx X. Xxxxx V.P.
-----------------------------------------------------
Printed Name & Title
PERCENTAGE: 26.0%
Address: One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx
Fax: (000) 000-0000
00
XXXXXXXX XXXX, XXXXXXX XXXXXXX, N.A.
By /s/ C. A. Black
------------------------------------------------------
Xxxxxxxxxxx X. Black, V.P.
------------------------------------------------------
Printed Name & Title
PERCENTAGE: 19.0%
Address: SunTrust Bank, Central Florida, N.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Vice President
Fax: (000) 000-0000
CORESTATES BANK, N.A.
By
------------------------------------------------------
------------------------------------------------------
Printed Name & Title
PERCENTAGE: 13.5%
Address: CoreStates Bank, N.A.
0000 Xxxxxx Xxxx
Plymouth Meeting, Pennsylvania 19462
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
SS-87748-4
00
XXXXXXXX XXXX, XXXXXXX XXXXXXX, N.A.
By
------------------------------------------------------
------------------------------------------------------
Printed Name & Title
PERCENTAGE: 19.0%
Address: SunTrust Bank, Central Florida, N.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Vice President
Fax: (000) 000-0000
CORESTATES BANK, N.A.
By /s/ Xxxxxxx Xxxxxxxx
------------------------------------------------------
Xxxxxxx Xxxxxxxx, VP
------------------------------------------------------
Printed Name & Title
PERCENTAGE: 13.5%
Address: CoreStates Bank, N.A.
0000 Xxxxxx Xxxx
Plymouth Meeting, Pennsylvania 19462
Attn: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
SS-87748-4
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