1
EXHIBIT 10.38
AMENDMENT NO. 2
TO
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MAY 13, 1998
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT ("Amendment") is made as of September 30, 1998 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 syndication agent (the "Syndication Agent"), and NBD BANK,
N.A., 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 Amended and Restated Multicurrency
Credit Agreement dated as of May 13, 1998 by and among the Borrowers, the
Guarantors, the Lenders and the Agents, as amended by Amendment No. 1 thereto
dated as of October 19, 1998 (as 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 amendment to the Credit Agreement.
1. Amendment to Credit Agreement. Effective as of September 30, 1998 and
subject to the satisfaction of the conditions precedent set forth in Section 2
below, Section 6.4(F) the Credit Agreement is hereby amended to delete the
figure "$25,000,000" in clause (a) thereof and to substitute the figure
"$31,000,000" therefor.
2
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of September 30, 1998, 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. 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.
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
3
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.
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.
4
IN WITNESS WHEREOF, this Amendment has been duly executed as Signature
Page Brightpoint, Inc. Amendment to Credit Agreement of the day and year first
above written.
BRIGHTPOINT, INC.
as a Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
--------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
NBD BANK, N.A.
as the Administrative Agent, a Lender and the Swing
Line Lender
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK ONE, INDIANA, NATIONAL
ASSOCIATION
as the Syndication Agent, an Issuing Lender and as a
Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
5
ABN AMRO BANK N.V.
as an Alternate Currency Lender
By: /s/ Xxxx X. Honda
------------------
Name: Xxxx X. Honda
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK BOSTON, N.A.
as a Lender and an Alternate Currency Lender
By: /s/ Xxxxx Xxxxxx
-----------------
Name: Xxxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By: /s/ Xxxxxxxxxxx X. Black
-------------------------
Name: Xxxxxxxxxxx X. Black
Title: First Vice President
THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F.C.H. Xxxxx
-----------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
6
CREDIT LYONNAIS CHICAGO BRANCH
as a Lender
By: /s/ Xxxxx Xxxxx
-----------------
Name: Xxxxx Xxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxx
Title: Deputy General Manager
THE FUJI BANK, LIMITED
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
