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EXHIBIT 10.39
EXECUTION COPY
AMENDMENT NO. 3
TO
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MAY 13, 1998
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT ("Amendment") is made as of January 1, 1999 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 and Amendment No. 2 thereto dated as of September 30, 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 the date hereof
(provided the amendments set forth in Sections 1.1, 1.4, 1.5 and 1.6 below shall
be effective as of March 25, 1999), 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 ADD THE FOLLOWING
DEFINITION IN THE APPLICABLE ALPHABETICAL LOCATION:
"LEVERAGE RATIO" means the ratio of (i) the sum of (a) Indebtedness of
Brightpoint and its consolidated Subsidiaries for borrowed money and (b)
Capitalized Lease Obligations to (ii) EBITDA. The Leverage Ratio shall be
calculated, in each case, determined as of the last day of each fiscal
quarter based upon (A) for Indebtedness (including Permitted Subordinated
Indebtedness) and Capitalized Lease Obligations, Indebtedness and
Capitalized Lease Obligations as of the last day of each such fiscal
quarter; and (B) for EBITDA, the actual amount for the preceding fiscal
two-quarter period ending on such day multiplied by two (2); provided,
however,(i) there shall be excluded from the calculation of EBITDA, the
EBITDA attributable to the Borrower and its Subsidiaries' discontinued
Global Trading Business; and (ii) for the fiscal quarters ending December
31, 1998 and March 31, 1999, the Borrower shall be permitted to add back to
EBITDA the $17,750,000 one-time charge taken by the Borrower in the quarter
ending December 31, 1998 relating to the discontinuation or elimination of
the Borrower and its Subsidiaries' Global Trading Business.
1.2 SECTION 1.1 OF THE CREDIT AGREEMENT IS FURTHER AMENDED TO ADD AT THE
END OF THE DEFINITION OF "GUARANTORS" THEREIN THE PHRASE "TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW".
1.3 SECTION 2.3(f) OF THE CREDIT AGREEMENT IS AMENDED TO ADD AT THE
BEGINNING OF CLAUSE (2) THEREOF THE PHRASE "TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW,".
1.4 SECTION 2.8(b)(i) OF THE CREDIT AGREEMENT IS AMENDED TO DELETE THE
TABLE CONTAINED THEREIN IN ITS ENTIRETY AND TO SUBSTITUTE THE FOLLOWING
THEREFOR:
-------------- ---------------- ----------------- ------------- ---------------
Level I Level II Level III Level IV Level V
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Leverage Ratio > 4.00 to < 4.00 to < 3.00 to 1.00 < 2.00 to < 1.00 to 1.00
- - -
1.00 1.00 and and 1.00 and
> 3.00 to 1.00 > 2.00 to 1.00 > 1.00 to
1.00
----------------------- -------------- ---------------- ----------------- ------------- ---------------
Applicable
Facility 0.25% 0.20% 0.15% 0.125% 0.10%
Fee
----------------------- -------------- ---------------- ----------------- ------------- ---------------
Applicable
Fixed 1.375% 1.175% 0.975% 0.75% 0.65%
Rate Margin
----------------------- -------------- ---------------- ----------------- ------------- ---------------
Applicable
----------------------- -------------- ---------------- ----------------- ------------- ---------------
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-------------- ---------------- ----------------- ------------- ---------------
Level I Level II Level III Level IV Level V
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Floating Rate 0% 0% 0% 0% 0%
Margin
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Applicable
Letter of 1.375% 1.175% .975% 0.75% 0.65%
Credit Fee
----------------------- -------------- ---------------- ----------------- ------------- ---------------
1.5 SECTION 2.8(b)(i) OF THE CREDIT AGREEMENT IS FURTHER AMENDED TO DELETE
THE DEFINITION OF LEVERAGE RATIO CONTAINED IMMEDIATELY FOLLOWING THE TABLE
THEREIN IN ITS ENTIRETY.
1.6 SECTION 2.8(b)(ii)(A) OF THE CREDIT AGREEMENT IS AMENDED TO DELETE THE
PHRASE "(CALCULATED AS PROVIDED IN SECTION 6.4(D))" IN THE FIRST SENTENCE
THEREOF IN ITS ENTIRETY AND TO SUBSTITUTE THE PHRASE "(CALCULATED AS SET FORTH
IN THE DEFINITION THEREOF)" IN PLACE THEREOF.
1.7 SECTION 6.4(A) OF THE CREDIT AGREEMENT IS AMENDED TO ADD THE FOLLOWING
DEFINITIONS THERETO IN THE APPLICABLE ALPHABETICAL LOCATIONS:
"ACCOUNTING ADJUSTMENT" means the amount recorded by the Borrower in
the first fiscal quarter of 1999 as a cumulative adjustment for a change in
accounting principle resulting from the required adoption of American
Institute of Certified Public Accountants Statement of Position 98-5,
Reporting the Costs of Start-up Activities, which requires the write-off of
unamortized pre-operating and organizational costs that were previously
capitalized, which amount, net of tax and after earnings from continuing
operations shall not exceed $15,000,000.
"DISTRIBUTOR CHARGE" means the amount recorded by the Borrower in the
fiscal quarter ending December 31, 1998 as a result of impairment in the
value of assets resulting from the Borrower's prior business dealings with
other distributors in an amount not to exceed $8,000,000.
1.8 SECTION 6.4 (B) OF THE CREDIT AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
(B) Fixed Charge Coverage Ratio. Brightpoint shall maintain a ratio
("FIXED CHARGE COVERAGE RATIO") of:
(i) the sum of the amounts of Net Income, plus (b) charges against
income for foreign income taxes or U.S. income taxes to the extent
deducted in computing Net Income, plus (c) Interest Expense to the
extent deducted in computing Net Income plus (d) Rentals to the extent
deducted in computing Net Income plus (e) for the quarters ending March
31, 1999 through December 31, 1999, the lesser of (i) $15,000,000 and
(ii) the amount of the one-time Accounting Adjustment taken
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by the Borrower in the quarter ending March 31, 1999, plus (f) for the
quarters ending December 31, 1998 through September 30, 1999, the
$17,750,000 one-time charge taken by the Borrower in the quarter ending
December 31, 1998 relating to the discontinuation or elimination of the
Borrower and its Subsidiaries' Global Trading Business and plus (g) for
the quarters ending December 31, 1998 through September 30, 1999, the
lesser of (i) $8,000,000 and (ii) the amount of the one-time
Distributor Charge taken by the Borrower in the quarter ending December
31, 1998 to
(ii) the sum of the amounts of (a) Interest Expense to the extent
deducted in computing Net Income, plus (b) Rentals to the extent
deducted in computing Net Income, plus (c) scheduled amortization of
the principal portion of all Indebtedness of Brightpoint and its
Subsidiaries
during such period of at least 3.25 to 1.00 as of the end of each fiscal
quarter. In each case the Fixed Charge Coverage Ratio shall be determined as
of the last day of each fiscal quarter for the four-quarter period ending on
such day.
1.9 SECTION 6.4(D) OF THE CREDIT AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
(D) Maximum Adjusted Leverage and Senior Debt Ratios.
(1) Brightpoint shall not permit the ratio ("ADJUSTED LEVERAGE RATIO")
of (i) the sum of (a) Indebtedness of Brightpoint and its consolidated
Subsidiaries for borrowed money and (b) Capitalized Lease Obligations to
(ii) EBITDA to be greater than 5.00 to 1.00 at the end of each fiscal
quarter ending on or after January 1, 1999. The Adjusted Leverage Ratio
shall be calculated as set forth in clause (3) below.
(2) Brightpoint shall not permit the ratio ("SENIOR DEBT RATIO") of
(i) the sum of (a) Indebtedness other than the Permitted Subordinated
Indebtedness of Brightpoint and its consolidated Subsidiaries for borrowed
money and (b) Capitalized Lease Obligations to (ii) EBITDA to be greater
than 3.00 to 1.00 at the end of each fiscal quarter ending on or after
January 1, 1999. The Senior Debt Ratio shall be calculated as set forth in
clause (3) below.
(3) The Adjusted Leverage Ratio and Senior Debt Ratio shall be
calculated, in each case, determined as of the last day of each fiscal
quarter based upon (A) for Indebtedness (including Permitted Subordinated
Indebtedness for the Adjusted Leverage Ratio and excluding Permitted
Subordinated Indebtedness for the Senior Debt Ratio) and Capitalized Lease
Obligations, Indebtedness and Capitalized Lease Obligations as of the last
day of each such fiscal quarter; and (B) for EBITDA, the amount for the
four-quarter period ending on such day (2); provided, however,(i) there
shall be excluded from the calculation of EBITDA, the EBITDA attributable to
the Borrower and its Subsidiaries' discontinued Global Trading Business;
(ii) for the fiscal quarters ending
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December 31, 1998 through the quarter ending September 30, 1999, the
Borrower shall be permitted to add back to EBITDA the $17,750,000 one-time
charge taken by the Borrower in the fiscal quarter ending December 31, 1998
relating to the discontinuation or elimination of the Borrower and its
Subsidiaries' Global Trading Business; (iii) for the fiscal quarters ending
December 31, 1998 through the fiscal quarter ending September 30, 1999, the
Borrower shall be permitted to add back to EBITDA an amount equal to the
lesser of (a) $8,000,000 and (b) the amount of the one-time Distributor
Charge taken by the Borrower in the fiscal quarter ending December 31, 1998;
and (iv) for the fiscal quarters ending March 31, 1999 through December 31,
1999, the Borrower shall be permitted to add back to EBITDA the lesser of
(a) $15,000,000 and (b) the amount of the one-time Accounting Adjustment
taken by the Borrower in the fiscal quarter ending March 31, 1999.
1.10 EXHIBIT A TO THE CREDIT AGREEMENT IS AMENDED TO ADD IN THE LAST
SENTENCE OF SECTION 2 THEREOF AFTER THE PHRASE "A SUBSIDIARY BORROWER AND" THE
PHRASE ", TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW,".
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of January 1, 1999 or March 25, 1999, as applicable, 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) the Borrower shall have paid to the Administrative Agent, for the
account of each Lender which has executed this Amendment on or prior to 5:00
p.m. (Indianapolis time) on March 25, 1999, an amendment fee equal to 0.075%
of each such Lenders' Revolving Loan Commitment; and
(c) 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 (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.
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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.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
NBD BANK, N.A.
as the Administrative Agent, a Lender and the Swing Line
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the Syndication Agent, an Issuing Lender and as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
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ABN AMRO BANK N.V.
as an Alternate Currency Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President and Managing Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK BOSTON, N.A.
as a Lender and an Alternate Currency Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST UNION NATIONAL BANK
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Title: Director
THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F.C.H. ▇▇▇▇▇
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Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
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CREDIT LYONNAIS CHICAGO BRANCH
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Deputy General Manager
THE FUJI BANK, LIMITED
as a Lender
By:
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Name:
Title:
NATIONAL CITY BANK OF INDIANA
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
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