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EXHIBIT 10.32
AMENDMENT NO. 4
TO
SECOND AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF JULY 27, 1999
THIS AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED MULTICURRENCY
CREDIT AGREEMENT ("Amendment") is made as of December 27, 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 by Amendment No.
1 thereto dated as of March 30, 2000, Amendment No. 2 thereto dated as of June
28, 2000 and Amendment No. 3 thereto dated as of October 27, 2000 (as so amended
and as further amended, modified, supplemented 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:
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1.1. Section 1.1 of the Credit Agreement is amended to delete the phrase
"$50,000,000" now appearing in the definition of "Permitted Receivables
Financing" and to substitute the following therefor: "$75,000,000".
1.2. Section 6.3(D) of the Credit Agreement is amended (i) to delete the
"and" at the end of clause (iv) thereof; (ii) to delete the period (".") at the
end of clause (v) thereof and to substitute the following therefor: "; and"; and
(iii) to insert the following new clause (vi) at the end thereof:
(vi) Investments in the Guarantors and in each other Domestic
Subsidiary of Brightpoint which shall become a Guarantor pursuant to
the terms of Section 6.2(M).
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of December 27, 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;
(b) an amendment fee in the amount of $2,500 for each Lender which
has delivered an executed signature page to this Amendment to the
Administrative Agent (or its counsel) on or prior to 5:00 p.m.
(Indianapolis time) on Wednesday, December 27, 2000, which amendment fee
shall be paid to the Administrative Agent for the account of each such
Lender;
(c) the separate fee agreed to between Brightpoint, the
Administrative Agent and the Arranger payable to the Administrative Agent
in accordance with the letter agreement entered into with respect thereto;
(d) 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.
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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 (including, without limitation, 735 ILCS
105/5-1 et seq., but otherwise without regard 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.
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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.
[Remainder of this Page Intentionally Blank]
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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: Executive Vice President, 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: Executive Vice President, Secretary
BRIGHTPOINT LATIN AMERICA, INC.,
as a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President, General
Counsel and Secretary
WIRELESS FULFILLMENT SERVICES LLC,
as a Guarantor
By: BRIGHTPOINT, INC., its Manager
By: /s/ Xxxxxx X. Xxxxx
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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
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Name: Xxxxxx X. Xxxxx
Title: Director
SIGNATURE PAGE TO AMENDMENT XX. 0
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XXXXXXXXXXX XXXXX LIMITED,
as a Subsidiary Borrower and a Guarantor
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director
BANK ONE, INDIANA, NATIONAL ASSOCIATION,
as the Administrative Agent, the Swing Line
Lender, an Issuing Lender and as a Lender
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 4
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ABN AMRO BANK N.V.,
as the Alternate Currency Lender
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President,
Diversified Industries Central
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
Title: Officer
SIGNATURE PAGE TO AMENDMENT NO. 4
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FLEET NATIONAL BANK
as a Lender
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Director
SIGNATURE PAGE TO AMENDMENT NO. 4
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FIRST UNION NATIONAL BANK,
as a Lender
By:
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Name:
Title:
SIGNATURE PAGE TO AMENDMENT XX. 0
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XXXXXXXX XXXX (Successor to SUNTRUST BANK OF
CENTRAL FLORIDA,
NATIONAL ASSOCIATION),
as a Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Director
SIGNATURE PAGE TO AMENDMENT XX. 0
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XXX XXXX XX XXXX XXXXXX,
as a Lender
By: /s/ A.S. Xxxxxxxxxx
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Name: A.S. Xxxxxxxxxx
Title: Sr. Team Leader - Loan
Operations
SIGNATURE PAGE TO AMENDMENT NO. 4
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THE PROVIDENT BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 4
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THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Deputy General Manager
SIGNATURE PAGE TO AMENDMENT XX. 0
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XXX XXXX XXXX, LIMITED,
as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President & Senior
Team Leader
SIGNATURE PAGE TO AMENDMENT NO. 4
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NATIONAL CITY BANK OF INDIANA,
as a Lender
By: /s/ Xxx X. Xxxxxx, Xx.
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Name: Xxx X. Xxxxxx, Xx.
Title: Senior Vice President
SIGNATURE PAGE TO AMENDMENT NO. 4
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NATIONAL BANK OF CANADA,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO AMENDMENT NO. 4
