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EXECUTION COPY
AMENDMENT NO. 2
TO MULTICURRENCY CREDIT AGREEMENT
Dated as of February 25, 1998
THIS AMENDMENT NO. 2 TO MULTICURRENCY CREDIT AGREEMENT ("AMENDMENT") is
made as of February 25, 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 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, Brightpoint has informed the Lenders of its intention to issue
certain Liquid Yield Option (TM) Notes ("XXXXX"(TM));
WHEREAS, the Borrowers have requested that the Lenders amend the Credit
Agreement in respect of the proposed issuance of the XXXXX; 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 as follows:
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1.1 Section 1.1 of the Credit Agreement is hereby amended to add the
following definitions thereto in the appropriate alphabetical order:
"INDENTURE" means that certain Indenture by and between Brightpoint and
the "Trustee" party thereto, pursuant to which the XXXXX shall be issued, as
amended, supplemented or modified in accordance with Section 6.3 (R) hereof.
"XXXXX"(TM) means those certain Liquid Yield Option(TM) Notes due 2018
(Zero Coupon -- Subordinated), issued by Brightpoint pursuant to the Indenture,
as the same may be amended, supplemented or modified in accordance with Section
6.3 (R) hereof.
"PERMITTED SUBORDINATED INDEBTEDNESS" means the Indebtedness evidenced by
the XXXXX.
1.2 Section 6.3 (A) of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (h) thereof, inserting the text
set forth below immediately after clause (h) thereof, and restating the
existing clause (i) as a new clause (j):
"(i) Permitted Subordinated Indebtedness in an aggregate original
issued principal amount not greater than $180,000,000 provided (A) the XXXXX
and the Indenture are in form and substance reasonably satisfactory to the
Agents and (B) all of the net cash proceeds from each issuance of XXXXX are
paid to the Administrative Agent to repay the outstanding principal amount of
the Loans (provided net cash proceeds in excess of the outstanding principal
balance of the Loans need not be paid to the Adminstrative Agent), with the
payments being made (1) on the date of the closing of the XXXXX transaction in
an amount equal to the principal amount of all outstanding Floating Rate Loans
and (2) thereafter at the end of each Interest Period with respect to maturing
Fixed Rate Loans; and".
1.3 A new Section 6.3 (R) shall be inserted immediately after Section
6.3 (Q) of the Credit Agreement and shall read in its entirety as follows:
(R) Subordinated Indebtedness. Brightpoint shall not and shall not
permit any Subsidiary to, amend, supplement or modify the terms of any
Permitted Subordinated Indebtedness, including without limitation, the XXXXX or
the Indenture, or make any payment required as a result of an amendment or
change thereto other than amendments, supplements or modifications which (i)
decrease the rate of interest payable on the Permitted Subordinated
Indebtedness, (ii) provide for the payment in kind in lieu of cash of any
portion of the interest on the Permitted Subordinated Indebtedness, (iii)
provide for the extension of the maturity date with respect to any principal or
interest payment to be made under the instruments evidencing Permitted
Subordinated Indebtedness, (iv) provide more flexibility to Brightpoint or its
Subsidiaries in connection with any financial covenants, (v) waive any defaults
existing in connection with the Permitted Subordinated Indebtedness, and (vi)
do not adversely affect in any respect the interests of the Administrative
Agent or the Lenders.
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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 duly executed originals of this Amendment from the
Borrowers, the Guarantors and the Required Lenders.
3. Representations and Warranties of the Borrowers. As of the
effectiveness of this Amendment and after giving effect to the issuance of the
XXXXX and the application of the proceeds thereof, 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.
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 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.
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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. A facsimile transmission of a counterpart hereof transmitted to
the Administrative Agent or its counsel shall be effective as an original.
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: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: E.V.P., General Counsel and Secretary
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: E.V.P., General Counsel and Secretary
BRIGHTPOINT (UK) LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
BRIGHTPOINT AUSTRALIA PTY. LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
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BRIGHTPOINT EMA LIMITED,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
BRIGHTPOINT AUSTRALASIA PTY. LIMITED,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
BRIGHTPOINT INTERNATIONAL (ASIA PACIFIC)
PTE LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
BRIGHTPOINT F.S.C. INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
RPS INDUSTRIES COMPANY LIMITED, as a
Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
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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:
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Name:
Title:
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By: /s/ C.A. Black
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Name: Xxxxxxxxxxx X. Black
Title: Vice President
THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F.C.E. Xxxxx
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Name: F.C.E. 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:
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Name:
Title:
