EXECUTION COPY
AMENDMENT NO. 2 AND LIMITED WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 AND LIMITED WAIVER TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of September 14, 2005 among BRIGHTPOINT
NORTH AMERICA L.P., a Delaware limited partnership ("Brightpoint"), and WIRELESS
FULFILLMENT SERVICES LLC, a California limited liability company ("Wireless",
together with Brightpoint, the "Borrowers"), the other Credit Parties signatory
to the hereinafter defined Credit Agreement; GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation (in its individual capacity, "GE Capital"),
for itself, as Lender, and as Agent for Lenders ("Agent"), and the other Lenders
signatory to the hereinafter defined Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Borrowers, the other Credit Parties, Agent and Lenders
are party to that certain Amended and Restated Credit Agreement, dated as of
March 18, 2004 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement");
WHEREAS, on and subject to the terms and conditions hereof, the
Borrowers and the other Credit Parties have requested that Agent and Lenders,
and Agent and Lenders are willing to, amend certain provisions of the Credit
Agreement, all as set forth herein;
WHEREAS, on and subject to the terms and conditions hereof, the
Borrowers and the other Credit Parties have requested that Agent and Lenders,
and Agent and Lenders are willing to, grant a limited waiver of certain Defaults
or Events of Default under the Credit Agreement, all as set forth herein; and
WHEREAS, this Amendment shall constitute a Loan Document and these
Recitals shall be construed as part of this Amendment; capitalized terms used
herein without definition are so used as defined in Annex A to the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement shall be
amended as follows:
(a) Section 6.6 of the Credit Agreement is hereby amended by (i)
deleting the text "and" immediately preceding clause (b) therein and (ii)
inserting a new clause (c) at the conclusion thereof to read as follows:
"and (c) Guaranteed Indebtedness incurred for the
benefit of either (i) Brightpoint Asia Limited BVI, an
entity organized under the laws of the British Virgin
Islands ("Brightpoint Asia") or (ii) Brightpoint India
Private Limited, an entity organized under
the laws of India ("Brightpoint India") in the form of
Letters of Credit in an aggregate amount not to exceed
$20,000,000"
(b) Section 6.14 of the Credit Agreement is hereby amended as
follows:
(i) By deleting clause (g) therein in its entirety and
substituting therefor the following:
"(g) Borrowers may make intercompany loans and advances
to BPI ("BPI Intercompany Loans"); provided, that (i)
if prior to making any such proposed BPI Intercompany
Loans, (A) (x) there are no Revolving Credit Advances
outstanding and (y) Borrowers collectively shall have
Borrowing Availability of at least $35,000,000, then
such proposed BPI Intercompany Loans may be made in an
amount up to the amount of Borrowers' cash on hand or
(B) (x) there are outstanding Revolving Credit Advances
and (y) Borrowers collectively shall have both Average
30-Day Borrowing Availability and Borrowing
Availability of at least $35,000,000 after giving
effect to any such proposed BPI Intercompany Loans,
then such proposed BPI Intercompany Loans may be made
in an amount not to exceed $10,000,000 in the
aggregate; provided further, that for purposes of the
$10,000,000 limitation in this clause (g)(i)(B), BPI
Intercompany Loans shall not include those made
pursuant to clause (g)(i)(A), (ii) two (2) Business
Days prior to any such BPI Intercompany Loan the
applicable Borrower shall have delivered to Agent (A) a
notice in the form of Exhibit 6.14(b) hereto (a "BPI
Intercompany Loan Notice") and (B) an updated Borrowing
Base Certificate calculated as of such date and (iii)
on the date of any Revolving Credit Advance made under
this Agreement, to the extent that Borrowers have made
BPI Intercompany Loans in the period since the delivery
to Agent of the most recent Borrowing Base Certificate,
Borrowers shall provide to Agent an updated Borrowing
Base Certificate calculated as of such date"
(ii) By inserting in clause (h) the text "(excluding the
Supplemental Advance)" immediately following the text (A) "Average
30-Day Borrowing Availability" and (B) "Borrowing Availability", each
located in subclause (iii) thereof.
(c) Annex A to the Credit Agreement is hereby amended as follows:
(i) By (i) deleting in the definition of "Brightpoint Borrowing
Base" therein the text "and" at the conclusion of clause (a) thereof
and (ii) inserting in such definition the following text immediately
following clause (b) thereof:
"and (c) the Supplemental Advance"
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(ii) By deleting clause (a) to the definition of "Commitment
Termination Date" therein in its entirety and substituting therefor
the following:
"(a) September 14, 2008"
(iii) By inserting in the definition of "Letters of Credit"
therein the text "or BPI, to the extent permitted in Annex B"
immediately following the text "any Borrower" in both the second and
third lines thereof.
(iv) By inserting in the definition of "Material Adverse Effect"
therein the text "(excluding the Supplemental Advance)" immediately
following the text "Borrowing Availability" in the second sentence
thereof.
(v) By inserting in the definition of "Pledge Agreements" therein
the text ", the BPI Asia Pledge Agreement, the BPI India Pledge
Agreement" immediately following the text "Wireless Pledge Agreement"
in the fourth line thereof.
(vi) By inserting the following definitions in alphabetical order
therein:
"BPI Asia" has the meaning ascribed to it in Section
6.6(c).
"BPI Asia Pledge Agreement" means the Pledge Agreement
executed by Brightpoint International (Asia Pacific)
Pte. Ltd., an entity organized under the laws of
Singapore, in favor of Agent, on behalf of itself and
Lenders, pledging 65% (or such higher percentage that
would not result in material adverse tax consequences)
of the voting stock and 100% of the non-voting stock,
if any, of Brightpoint Asia held by it.
"BPI India" has the meaning ascribed to it in Section
6.6(c).
"BPI India Pledge Agreement" means the Pledge Agreement
executed by Brightpoint Holdings B.V., an entity
organized under the laws of the Netherlands, in favor
of Agent, on behalf of itself and Lenders, pledging 65%
(or such higher percentage that would not result in
material adverse tax consequences) of the voting stock
and 100% of the non-voting stock, if any, of
Brightpoint India held by it.
"Supplemental Advance" means an advance equal to the
amount set forth in the table below opposite the
applicable EBITDA amount of Borrowers and their
Subsidiaries then in effect for the most recent
12-month period for which Financial Statements have
been delivered to Agent pursuant to Annex E hereunder:
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----------------------------------------------------------------------
If EBITDA is Supplemental Advance
------------ --------------------
----------------------------------------------------------------------
greater than $25 million $25 million
----------------------------------------------------------------------
less than and equal to $25 million but
greater than $22,500,000 $20 million
----------------------------------------------------------------------
less than and equal to $22,500,000 million,
but greater than $20 million $15 million
----------------------------------------------------------------------
less than and equal to 20 million $0
----------------------------------------------------------------------
provided, that if any Default or Event of Default has
occurred and is continuing, the Supplemental Advance
shall be $0 until such time as such Default or Event of
Default is waived or cured; provided further, that,
notwithstanding the proviso above, for the three-day
period following a Default resulting solely from the
failure to deliver such Financial Statements, in
addition to any other remedy provided for in this
Agreement, the Supplemental Advance may be maintained
at its existing amount in Agent's sole discretion,
until such time as such Financial Statements shall be
delivered during such three-day period, whereupon the
Supplemental Advance shall be determined based on the
then current EBITDA amount.
(d) Annex B to the Credit Agreement is hereby amended as follows:
(i) By (A) inserting in clause (a) therein (I) the text "(or, as
long as Borrowers remain responsible for the payment in full of all
amounts drawn thereunder and all related fees, costs and expenses and
to the extent permitted under Section 6.6(c), for the account of BPI)"
immediately following the text "for such Borrower's account" in the
third and fourth lines thereof, (II) the text "(or, as permitted
above, BPI's account)" immediately following the text "for such
Borrower's account" in the sixth line thereof and (B) by deleting in
clause (a) therein the text "Twenty-Five Million Dollars
($25,000,000)" in the second sentence therein and substituting
therefor the text "Thirty-Five Million Dollars ($35,000,000)."
(ii) By (A) inserting in subclause (i) of clause (g) therein the
text "and BPI" immediately following the text "Borrowers" in the
second line thereof, (B) inserting in subclause (ii) of clause (g)
therein the text "and BPI" immediately following each instance the
text "Borrowers" is located therein and (C) inserting in subclause
(iii) of clause (g) therein the text "and BPI" immediately following
each instance the text "Borrowers" is located therein.
(e) Annex F to Credit Agreement is hereby amended as follows:
(i) By inserting in clause (a) therein the text "(excluding the
Supplemental Advance)" immediately following the text "Average 30-Day
Borrowing Availability" in the third line thereof; and
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(ii) By inserting in clause (b) therein the text "(excluding the
Supplemental Advance)" immediately following the text "Average 30-Day
Borrowing Availability" in the second line thereof.
(f) Annex G to the Credit Agreement is hereby amended by inserting
the following text at the conclusion of clause (a) therein:
"For purposes of this clause (a), the Supplemental
Advance shall be excluded from the calculation of
Borrowers' Borrowing Availability."
(g) Annex J to the Credit Agreement is hereby deleted in its entirety
and replaced by Annex J attached hereto.
2. Limited Waiver. Agent and Lenders hereby waive any Default or
Event of Default under Section 8.1(b) of the Credit Agreement, solely with
respect to Section 6.6 of the Credit Agreement, as a result of the Letter of
Credit issued by a Lender on June 23, 2005 and as amended on August 2, 2005.
Such waivers are only applicable and shall only be effective in the instances
and for the specific purposes of which made or given.
3. Representations and Warranties of Credit Parties. In order to
induce Agent and Lenders to enter into this Amendment, each Credit Party hereby
jointly and severally represents and warrants to Agent and Lenders that:
(a) Representations and Warranties. After giving effect to this
Amendment, no representation or warranty of any Credit Party contained in the
Credit Agreement or any of the other Loan Documents, including this Amendment,
shall be untrue or incorrect in any material respect as of the date hereof,
except to the extent that such representation or warranty expressly relates to
an earlier date.
(b) Authorization, etc. Each Credit Party has the power and authority
to execute, deliver and perform this Amendment. Each Credit Party has taken all
necessary action (including, without limitation, obtaining approval of its
stockholders, if necessary) to authorize its execution, delivery and performance
of this Amendment. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any other Person, is
required in connection with any Credit Party's execution, delivery and
performance of this Amendment, except for those already duly obtained. This
Amendment has been duly executed and delivered by each Credit Party and
constitutes the legal, valid and binding obligation of each Credit Party,
enforceable against it in accordance with its terms. No Credit Party's
execution, delivery or performance of this Amendment conflicts with, or
constitutes a violation or breach of, or constitutes a default under, or results
in the creation or imposition of any Lien upon the property of any Credit Party
by reason of the terms of (i) any contract, mortgage, lease, agreement,
indenture or instrument to which any Credit Party is a party or which is binding
upon it, (ii) any law or regulation or order or decree of any court applicable
to any Credit Party, or (iii) the certificate or articles of incorporation or
by-laws of any Credit Party.
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(c) No Default. No Default or Event of Default has occurred or is
continuing, or would result after giving effect hereto.
4. Conditions to Effectiveness. The effectiveness of this Amendment
is expressly conditioned upon the satisfaction, and delivery to Agent (on behalf
of itself and Lenders), of each condition set forth in this Section 4 on or
prior to the date hereof:
(a) Amendment. Duly executed originals of this Amendment from each
Credit Party and from the Lenders.
(b) Amendment Fee. In addition to any fees referenced to in clause
(c) of Section 8 herein, Borrowers shall pay to Agent, for the benefit of each
of the Lenders a party to this Amendment, an amendment fee in the amount of
$75,000.
(c) Assignment Agreements. Duly executed originals of (i) the
Assignment Agreement between Congress Financial Corporation (Central), as
assignor and National City Bank of Indiana, as assignee ("National City"), in
the amount of $11,666,666.67 and (ii) the Assignment Agreement between LaSalle
Business Credit, LLC, as assignor and LaSalle Bank National Association, as
assignee ("LaSalle"), in the amount of $15,555,555.55.
(d) Revolving Notes. Duly executed originals of the Revolving Notes
of (i) National City from each Borrower, reflecting the revised Revolving Loan
Commitment of National City and (ii) LaSalle from each Borrower, reflecting the
Revolving Loan Commitment of LaSalle, each dated as of the date hereof.
(e) Other Documents. All other agreements, certificates and other
documents as Agent may reasonably request to accomplish the purposes of this
Amendment.
5. Post-Closing Obligations. Within 30 Business Days from the
effectiveness of this Amendment, Agent shall have received the following, each
of which shall be on terms and conditions satisfactory to Agent in all respects:
(a) BPI Affiliate Pledge Agreements. Duly executed originals of (i)
the BPI Asia Pledge Agreement from Brightpoint International (Asia Pacific) Pte.
Ltd. and (ii) the BPI India Pledge Agreement from Brightpoint Holdings B.V.
(collectively, the "BPI Affiliate Pledge Agreements").
(b) Negative Pledge. Duly executed originals of a negative pledge
agreement from BPI Asia whereby BPI Asia will agree not to, and will not permit
any other Person to, create, assume, incur, or suffer to exist any lien, pledge,
charge or encumbrance of any kind on its assets, other than encumbrances created
by any Capital Leases of BPI Asia, involving the incurrence of an aggregate
amount of Capital Lease Obligations of not more than $500,000 outstanding at any
one time for all such encumbrances.
(c) Opinions of Counsel. Duly executed originals of local counsel
opinions from each jurisdiction requested by Agent, each addressed to Agent on
behalf of Lenders, each in form and substance reasonably satisfactory to Agent
and its counsel and including, without
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limitation, opinions regarding (i) the perfection of the liens under the BPI
Affiliate Pledge Agreements and (ii) the enforceability of the BPI Affiliate
Pledge Agreements.
(d) HSBC Release Letter. Duly executed originals of a release letter
from HSBC Bank (the "Prior Lender") confirming that (i) all letters of credit
issued or guaranteed by the Prior Lender shall have been indefeasibly cancelled
and returned, with all cash collateral held by Prior Lender in respect of such
letters of credit returned to BPI Asia, (ii) all liens upon any of the property
of BPI Asia in favor of the Prior Lender shall be terminated by the Prior Lender
immediately upon the completion of the actions and payments set forth in this
clause (d) and (iii) all of the fees, expenses and other obligations of BPI Asia
owing to the Prior Lender will be repaid in full.
(e) Additional Documentation. Duly executed originals of the
resolutions of the Board of Directors (or other applicable equivalent) of each
of BPI Asia and BPI India, approving and authorizing the execution, delivery and
performance of the BPI Affiliate Pledge Agreements to which it is a party and
the transactions to be consummated in connection therewith, certified as of the
effective date of such BPI Affiliate Pledge Agreements by its corporate
secretary (or other applicable equivalent) as being in full force and effect
without any modification or amendment, and such other agreements, certificates,
and other documents as Agent may reasonably request to effectuate the BPI
Affiliate Pledge Agreements.
6. Reference to and Effect on Loan Documents.
(a) Ratification. Except as specifically provided in this Amendment,
the Credit Agreement and the other Loan Documents shall remain in full force and
effect and each Credit Party hereby ratifies and confirms each such Loan
Document.
(b) No Waiver. Except as specifically provided in this Amendment, the
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver or forbearance of any right, power or remedy of Agent or any Lender under
the Credit Agreement or any of the other Loan Documents, or constitute a
consent, waiver or modification with respect to any provision of the Credit
Agreement or any of the other Loan Documents. Upon the effectiveness of this
Amendment each reference in (a) the Credit Agreement to "this Agreement,"
"hereunder," "hereof," or words of similar import and (b) any other Loan
Document to "the Agreement" shall, in each case and except as otherwise
specifically stated therein, mean and be a reference to the Credit Agreement as
amended hereby.
7. Affirmation of Guarantors. By its signature set forth below, each
Guarantor hereby confirms to Agent and Lenders that, after giving effect to the
foregoing Amendment and the transactions contemplated thereby, the Guaranty of
such Guarantor and each other Loan Document to which such Guarantor is a party
continues in full force and effect and is the legal, valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
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8. Miscellaneous.
(a) Successors and Assigns. This Amendment shall be binding on and
shall inure to the benefit of the Credit Parties, Agent and Lenders and their
respective successors and assigns, except as otherwise provided herein. No
Credit Party may assign, transfer, hypothecate or otherwise convey its rights,
benefits, obligations or duties hereunder without the prior express written
consent of Agent and Lenders. The terms and provisions of this Amendment are for
the purpose of defining the relative rights and obligations of the Credit
Parties, Agent and Lenders with respect to the transactions contemplated hereby
and there shall be no third party beneficiaries of any of the terms and
provisions of this Amendment.
(b) Entire Agreement. This Amendment, including all schedules and
other documents attached hereto or incorporated by reference herein or delivered
in connection herewith, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all other understandings,
oral or written, with respect to the subject matter hereof.
(c) Fees and Expenses. As provided in Section 11.3 of the Credit
Agreement, the Borrowers agree to pay on demand all fees, costs and expenses
incurred by Agent in connection with the preparation, execution and delivery of
this Amendment.
(d) 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.
(e) Severability. Wherever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
(f) Conflict of Terms. Except as otherwise provided in this
Amendment, if any provision contained in this Amendment is in conflict with, or
inconsistent with, any provision in any of the other Loan Documents, the
provision contained in this Amendment shall govern and control.
(g) Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Delivery of an executed signature page to this
Amendment by telecopy shall be effective as delivery of a manually executed
signature page to this Amendment.
(h) Incorporation of Credit Agreement. The provisions contained in
Sections 11.9 and 11.13 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety, except
with reference to this Amendment rather than the Credit Agreement.
(i) Acknowledgment. Each Credit Party hereby acknowledges its status
as a Credit Party and affirms its obligations under the Credit Agreement and
represents and warrants that there are no liabilities, claims, suits, debts,
liens, losses, causes of action, demands, rights,
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damages or costs, or expenses of any kind, character or nature whatsoever, known
or unknown, fixed or contingent (collectively, the "Claims"), which any Credit
Party may have or claim to have against Agent or any Lender, or any of their
respective affiliates, agents, employees, officers, directors, representatives,
attorneys, successors and assigns (collectively, the "Lender Released Parties"),
which might arise out of or be connected with any act of commission or omission
of the Lender Released Parties existing or occurring on or prior to the date of
this Amendment, including, without limitation, any Claims arising with respect
to the Obligations or any Loan Documents. In furtherance of the foregoing, each
Credit Party hereby releases, acquits and forever discharges the Lender Released
Parties from any and all Claims that any Credit Party may have or claim to have,
relating to or arising out of or in connection with the Obligations or any Loan
Documents or any other agreement or transaction contemplated thereby or any
action taken in connection therewith from the beginning of time up to and
including the date of the execution and delivery of this Amendment. Each Credit
Party further agrees forever to refrain from commencing, instituting or
prosecuting any lawsuit, action or other proceeding against any Lender Released
Parties with respect to any and all Claims which might arise out of or be
connected with any act of commission or omission of the Lender Released Parties
existing or occurring on or prior to the date of this Amendment, including,
without limitation, any Claims arising with respect to the Obligations or any
Loan Documents.
[signature pages follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered as of the day and year first above written.
BRIGHTPOINT NORTH AMERICA L.P.
By: BRIGHTPOINT NORTH AMERICA, INC.,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President &
Secretary
WIRELESS FULFILLMENT SERVICES LLC
By: BRIGHTPOINT, INC., its manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
General Counsel & Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Duly Authorized Signatory
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
NATIONAL CITY BANK OF INDIANA, as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
[S-1]
The following Persons are signatories to this Amendment in
their capacity as Credit Parties or Loan Parties and not as Borrowers.
BRIGHTPOINT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President, General Counsel &
Secretary
BRIGHTPOINT NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
BRIGHTPOINT INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
BRIGHTPOINT ACTIVATION SERVICES LLC
By: BRIGHTPOINT NORTH AMERICA L.P., its sole
member and sole manager
By: Brightpoint North America, Inc., its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President & Secretary
[S-2]
ANNEX J (FROM ANNEX A - REVOLVING LOAN COMMITMENTS DEFINITION)
TO
CREDIT AGREEMENT
LENDER REVOLVING LOAN COMMITMENT
------ -------------------------
General Electric Capital Corporation $35,000,000 (including a Swing
Line Commitment of $7,500,000)
LaSalle Bank National Association $15,555,555.55
National City Bank of Indiana $19,444,444.45
--------------
TOTAL $70,000,000.00
i
