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Exhibit 10.1
Execution Copy
AMENDMENT NO. 4
TO MULTICURRENCY CREDIT AGREEMENT
Dated as of April 16, 1998
THIS AMENDMENT NO. 4 TO MULTICURRENCY CREDIT AGREEMENT ("Amendment")
is made as of April 16, 1998 by and among BRIGHTPOINT, INC. ("Brightpoint"),
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
amended by that certain Waiver and Amendment No. 1 dated as of November 15,
1997, that certain Amendment No. 2 dated as of February 25, 1998, Amendment No.
3 dated as of March 20, 1998 and 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 the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 2
below, the Credit Agreement is hereby amended to the add the following thereto
immediately following Section 6.4:
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6.5 Corporate Restructuring. Notwithstanding anything to the contrary
contained in this Agreement, the Borrower and its Subsidiaries may effect a
restructuring of their corporate organization from the current organizational
structure as set forth in Schedule 6.5A to the organizational structure as set
forth in Schedule 6.5B (the "Tax Restructuring") provided that prior to the
transfer by any of the Borrower's subsidiaries assets or stock to the Borrower
or to any other Subsidiary, (a) BPI shall have pledged, pursuant to
documentation reasonably acceptable to the Administrative Agent (including,
without limitation, a pledge agreement or deed of pledge, corporate resolutions
and other corporate documentation certified by the applicable government or
corporate officials, and opinions of U.S. and Dutch counsel) 65% of the
outstanding capital stock of Brightpoint International Holdings B.V., (b)
Brightpoint International Holdings B.V. shall have pledged, pursuant to
documentation reasonably acceptable to the Administrative Agent (including,
without limitation, a pledge agreement or deed of pledge, corporate resolutions
and other corporate documentation certified by the applicable government or
corporate officials, and opinions of U.S. and Dutch counsel) 65% of the
outstanding capital stock of Brightpoint Holdings B.V., (c) Brightpoint shall
have pledged, pursuant to documentation reasonably acceptable to the
Administrative Agent (including, without limitation, a pledge agreement,
corporate resolutions and other corporate documentation certified by an officer
of Brightpoint and opinions of U.S. counsel) all of the outstanding capital
stock of Brightpoint Latin America Holdings and all of the membership interests
of Wireless Stockroom LLC, and (d) each of Brightpoint Latin America Holdings
and Wireless Stockroom LLC shall have executed and delivered 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. In connection with the Tax Restructuring, the
Administrative Agent is hereby authorized by each of the Lenders to (i) release
the Collateral which is subject to each of the following pledge agreements:
(a) that certain Equitable Share Charge dated as of June 24, 1997
executed by Brightpoint and Brightpoint EMA Limited in favor of the
Administrative Agent for the benefit of the Holders of Secured
Obligations pledging 20% and 45%, respectively, of the Capital Stock
of Brightpoint (UK) Limited to secure payment of the Secured
Obligations;
(b) that certain Share Mortgage dated as of June 24, 1997
executed by Brightpoint and Brightpoint International (Asia Pacific)
Pty Limited in favor of the Administrative Agent for the benefit of
the Holders of Secured Obligations, together with any Notice of
Identification delivered thereunder with respect to the Capital Stock
of Brightpoint Australia Pty Limited to secure payment of the Secured
Obligations;
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(c) that certain Equitable Share Charge dated as of June 24, 1997
executed by Brightpoint and Brightpoint International (Asia Pacific)
Pte Ltd in favor of the Administrative Agent for the benefit of the
Holders of Secured Obligations pledging 20% and 45%, respectively, of
the Capital Stock of Brightpoint China Limited to secure payment of
the Secured Obligations; and
(d) that certain Share Pledge Agreement dated as of November 15,
1997 executed by Brightpoint International Ltd in favor of the
Administrative Agent for the benefit of the Holders of Secured
Obligations pledging 65%, of the Capital Stock of Brightpoint Sweden
AG to secure payment of the Secured Obligations; and
(ii) execute such other consents or other documents as shall be acceptable
to the Administrative Agent and which are reasonably requested by
Brightpoint or its subsidiaries in connection with effecting the Tax
Restructuring.
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of the date hereof, 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 $5,000 working fee for the account of each Lender (individually
and not in the aggregate) paid in immediately available funds, to be
distributed to each Lender promptly upon the effectiveness of this
Amendment; and
(c) such other documents, instrzuments and agreements as the
Administrative Agent may reasonably request.
3. Representations and Warranties of the Borrowers. As of the
effectiveness of this Amendment, the Borrowers hereby represent and warrant:
(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 representations and warranties made in the Credit Agreement and
other Loan Documents, and agree that all such 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.
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(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 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.
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 and the transactions involved in effecting the
Tax Restructuring, (ii) agrees that neither this Amendment nor the Tax
Restructuring shall limit or diminish the obligations of such Guarantor under
the Credit Agreement
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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 are 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: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT (UK) LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT AUSTRALIA PTY. LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
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BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT EMA LIMITED,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT AUSTRALASIA PTY. LIMITED,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT INTERNATIONAL (ASIA PACIFIC)
PTE LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
BRIGHTPOINT F.S.C. INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
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RPS INDUSTRIES COMPANY LIMITED, as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name:
Title:
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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: /s/ Xxx X. Xxxxxx, Xx.
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Name: Xxx X. Xxxxxx, Xx.
Title: Vice President
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the Syndication Agent, an Issuing
Lender and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK BOSTON, N.A.
as a Lender
By: /s/ Xxxxxx X. XxxXxxxxxx
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Name: Xxxxxx X. XxxXxxxxxx
Title: Vice President
CORESTATES BANK, N.A.
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By: /s/ C. A. Black
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Name: C. A. Black
Title: Vice President
THE BANK OF NOVA SCOTIA
as a Lender
By: F.C.H. Xxxxx
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Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
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CREDIT LYONNAIS CHICAGO BRANCH
as a Lender
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: First Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Deputy General Manager
THE FUJI BANK, LIMITED
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
