1
Exhibit 10.1
AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 27, 1999
THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ("Amendment") is made as of March 30, 2000 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 administrative agent (the "Administrative Agent") on behalf
of the Lenders under that certain Second Amended and Restated Multicurrency
Credit Agreement dated as of July 27, 1999 by and among the Borrowers, the
Guarantors, the Lenders and the Administrative Agent (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
Administrative Agent 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 Administrative Agent 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 Administrative Agent have agreed
to the following amendment to the Credit Agreement.
1. Amendment 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:
1.1. Section 1.1 of the Credit Agreement is amended to delete the word
"and" at the end of clause (xvi) of the definition of "Eligible Receivable", to
delete the period at the end of clause (xvii) of such definition, and to
substitute the words ";and", and to add the following new clause (xviii) to such
definition after clause (xvii):
2
(xviii) any Foreign Receivable that is the subject of a
Permitted Receivables Financing.
1.2. Section 1.1 of the Credit Agreement is further amended to add the
following sentence at the end of the definition of "Indebtedness":
Notwithstanding anything herein to the contrary, any Permitted
Receivables Financing with respect to which Brightpoint or any of its
Subsidiaries (i) is obligated to make any payment to another Person or
repurchase or exchange any Foreign Receivable which is subject to such
Permitted Receivables Financing as a result of the failure of any such
Foreign Receivable to be paid in full, (ii) is obligated to make any
payment to another Person or repurchase or exchange any such Foreign
Receivable as a result of an actual breach of representation or
warranty with respect thereto (the intention being not to pick up any
contingent liability for breaches but only those where the contingency
has occurred and there is a current obligation) or (iii) otherwise has
recourse liability, shall be considered Indebtedness.
1.3. Section 1.1 of the Credit Agreement is further amended to add the
following definitions in the applicable alphabetical location:
"FOREIGN RECEIVABLE" means (a) a presently existing or
hereafter arising or acquired Receivable of Brightpoint Latin American
Holdings, Inc., an Indiana corporation which Receivables are not
included as Eligible Receivables in the Borrowing Base and (b) a
presently existing or hereafter arising or acquired Receivable of
Brightpoint do Brasil Ltda., a Brazilian corporation, Brightpoint de
Venezuela C.A., a Venezuelan corporation, Brightpoint de Mexico S.A. de
C.V., a Mexican corporation, Servicios Brightpoint de Mexico S.A. de
C.V., a Mexican corporation, Brightpoint Solutions de Mexico S.A. de
C.V., a Mexican corporation, Brightpoint (France) SARL, a French
corporation, Eurocom Systems, a French corporation, Brightpoint Sweden
Aktiebolag, a Swedish corporation, Brightpoint Germany GmbH, a German
corporation, Brightpoint (Ireland) Limited, an Irish corporation,
Brightpoint New Zealand Limited, a New Zealand corporation, Brightpoint
China Limited, a Hong Kong corporation, Brightpoint Philippines, Inc.,
a Philippines corporation, Brightpoint (South Africa) (Proprietary)
Limited, a South African corporation, or Brightpoint Australia Pty
Ltd., an Australian corporation.
"PERMITTED RECEIVABLES FINANCING" means the sale, financing or
factoring of Foreign Receivables in an aggregate amount (based on the
face amount of such Foreign Receivables) not to exceed $35,000,000 at
any one time or from time to time (after deduction of the amount of
such Foreign Receivables which from time to time have either been
collected or written off in accordance with the applicable Subsidiary's
credit and collection policy).
1.4. Section 6.3(A) of the Credit Agreement is amended to delete the
word "and" at the end of clause (i) thereof, to replace the period at the end of
clause (j) thereof with the words "; and" and to add the following new clause
(k) thereto after clause (j) thereof:
2
3
(k) any Permitted Receivables Financing.
1.5. Section 6.3(B) of the Credit Agreement is amended to delete the
word "and" at the end of clause (iii) thereof, to add the words "not covered by
clause (v) below" in the second line of clause (iv) thereof after the words
"other assets", and to add the following new clause (v) thereto after clause
(iv) thereof:
(v) any Permitted Receivables Financing that would
constitute a sale, assignment, transfer, conveyance or other
disposition of property.
1.6. Section 6.3(C) of the Credit Agreement is amended to delete the
word "and" at the end of clause (iii) thereof, to replace the period at the end
of clause (iv) thereof with the words ";and", and to add the following new
clause (v) thereto after clause (iv) thereof:
(v) any Liens on any Foreign Receivables that are
subject to a Permitted Receivables Financing.
1.7. Section 11.12 of the Credit Agreement is amended to add the
following at the end thereof:
Upon any sale or transfer of Collateral or of a Subsidiary which is
expressly permitted pursuant to the terms of any Loan Document, or
consented to in writing by the Required Lenders or all of the Lenders,
as applicable, and upon at least five Business Days' prior written
request by Brightpoint, the Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of the Liens granted to the
Administrative Agent for the benefit of the Lenders herein or pursuant
hereto upon the Collateral that was sold or transferred and release the
applicable Guarantor from its obligation hereunder; provided, however,
that (i) the Administrative Agent shall not be required to execute any
such document on terms which, in the Administrative Agent's opinion,
would expose the Administrative Agent to liability or create any
obligation or entail any consequence other than the release of such
Liens without recourse or warranty, and (ii) such release shall not in
any manner discharge, affect or impair the Obligations or any Liens
upon (or obligations of the Borrowers or any Subsidiary in respect of)
all interests retained by the Borrowers or any Subsidiary, including
(without limitation) the proceeds of the sale, all of which shall
continue to constitute part of the Collateral.
2. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of March 30, 2000, 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
4
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 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
4
5
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.
5
6
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
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Secretary
BRIGHTPOINT INTERNATIONAL LTD.,
as a Borrower and Guarantor
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Secretary
BRIGHTPOINT LATIN AMERICA, INC.,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Secretary
WIRELESS FULFILLMENT SERVICES LLC,
as a Guarantor
By: BRIGHTPOINT, INC., its Managing Member
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Secretary
BRIGHTPOINT AUSTRALIA PTY LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BRIGHTPOINT CHINA LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Director
6
7
WINNING LAND COMPANY, LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Director
BANK ONE, INDIANA, NATIONAL
ASSOCIATION, as the Administrative Agent,
the Swing Lender, an Issuing Lender
and as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
ABN AMRO BANK N.V.,
as the Alternate Currency Lender
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Group Vice President and Director
By: /s/ Xxxxxx Comfort
-------------------------
Name: Xxxxxx Comfort
Title: Group Vice President
FLEET NATIONAL BANK
as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
7
8
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: V.P. and Director
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ F.C.H. Xxxxx
-----------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
THE PROVIDENT BANK,
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
THE FUJI BANK, LIMITED,
as a Lender
By:
---------------------
Name:
Title:
8
9
NATIONAL CITY BANK OF INDIANA,
as a Lender
By: /s/ Xxxxxx X. Xxxx
----------------------
Name: Xxxxxx X. Xxxx
Title: Corporate Banking Officer
NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
9
