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EXHIBIT 10.1
AMENDMENT AND WAIVER NO. 4
TO
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MAY 13, 1998
THIS AMENDMENT AND WAIVER NO. 4 TO AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT ("Amendment") is made as of June 29, 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 as successor
to 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
"Agent") 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 Agent, as amended by Amendment
No. 1 thereto dated as of October 19, 1998, Amendment No. 2 thereto dated as of
September 30, 1998 and Amendment ▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ (▇▇
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
Agent are parties to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Lenders amend
the Credit Agreement in certain respects and waive certain requirements of the
Credit Agreement for a period; and
WHEREAS, the Lenders and the Agent are willing to amend the
Credit Agreement and waive certain requirements of the Credit Agreement for a
period all 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 Agent have agreed to the
following amendment and waiver to the Credit Agreement.
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1. AMENDMENT TO CREDIT AGREEMENT. SECTION 2.8(B) OF THE CREDIT
AGREEMENT IS AMENDED TO DELETE THE TERMS THEREOF IN THEIR ENTIRETY AND TO
SUBSTITUTE THE FOLLOWING THEREFOR:
(b) Applicable Margins, Applicable Letter of Credit Fee and
Applicable Facility Fee. As used in this Section 2.8(b) and in this
Agreement "Applicable Margins", "Applicable Facility Fee" and
"Applicable Letter of Credit Fee" shall mean the Applicable Floating
Rate Margin and/or Applicable Fixed Rate Margin, with respect to Loans
and the Applicable Facility Fee and/or Applicable Letter of Credit Fee,
with respect to fees payable as the case may be. The Applicable Margins
shall be determined by reference to the following:
Applicable Facility Fee Applicable Fixed Applicable Applicable Letter of
Rate Margin Floating Rate Credit Fee
Margin
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0.35% 1.90% 0.25% 1.90%
2. Limited Waivers; Reservation of Rights after Waiver Period. For
purposes of this Agreement, the term "Waiver Period" means the period from the
date of the effectiveness of this Amendment through the earliest of: (i) July
31, 1999; (ii) the date of execution of a further amendment to the Credit
Agreement and/or an amended and restated Credit Agreement; and (iii) the date on
which (a) any Borrower requests an Advance, Letter of Credit, Swing Line Loan or
Alternate Currency Advance which, if made would increase the aggregate amount of
the Revolving Credit Obligations plus the Alternate Currency Loans above
$150,000,000 or (b) any Borrower requests any Alternate Currency Loan from ABN
AMRO Bank N.V. which, if made, would increase the aggregate amount of Alternate
Currency Loans made by ABN AMRO Bank, N.V. above $16,300,000. Upon the
effectiveness of this Agreement, during the Waiver Period the Lenders hereby
waive any and all Defaults or Events of Defaults which may occur under the
Credit Agreement solely as a result of the transactions, discontinued operations
and charges described in the letter from Brightpoint to the Lenders dated as of
June 23, 1999, including, without limitation, violation of the terms of Sections
6.3(B) and 6.4 (but not clauses (E) or (F) thereof) (the "Specified Defaults")
provided the aggregate amount of the charges taken in connection therewith shall
not exceed $95,000,000 and the cash portion of the charges taken in connection
therewith do not exceed $8,000,000; provided however, that nothing herein shall
(A) operate as a waiver of the provisions of Section 6.4(E) (Domestic Asset
Coverage Ratio) or Section 6.4(F) (Capital Expenditures) or (B) affect the
requirement that the Borrowers meet the conditions precedent set forth in
Section 4.2; provided, further, it is expressly understood and agreed that if
the Waiver Period ends for any reason and the Borrowers and the Lenders shall
not have entered into a further amendment to the Credit Agreement and/or amended
and restated the Credit Agreement, from and after such time the Agent and the
Lenders shall be entitled to exercise all of the rights and remedies provided in
the Credit Agreement and Loan Documents as set forth therein as a result of the
Specified Defaults, including, without limitation, accelerating
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all of the Obligations, demanding payment of the Obligations, instituting the
default rate of interest, exercising all enforcement rights with respect to the
Collateral and/or refusing to fund any Advances or make any other financial
accommodations to the Borrowers. From and after such time, pursuant to the
provisions of Section 8.4 of the Credit Agreement, (a) no delay or omission of
the Lenders or the Agent to exercise any right under the Loan Documents shall
impair any such right or be construed to be a waiver of the Specified Defaults
or an acquiescence therein, and (b) the making of any Advances or other
financial accommodation notwithstanding the existence of the Specified Defaults
or the inability of the Borrower to satisfy the conditions precedent to such
Advances or financial accommodations shall not constitute any waiver or
acquiescence. Any further waiver, amendment or other variation of the terms,
conditions or provisions of the Credit Agreement or the other Loan Documents
whatsoever, whether in connection with the Specified Defaults or otherwise, is
valid only if in writing signed by the Lenders required pursuant to Section 8.3,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law as a result of the Specified Defaults
are hereby reserved on behalf of the Agent and the Lenders if, prior to July 31,
1999, the Borrowers and the Lenders shall not have entered into a further
amendment to the Credit Agreement and/or amended and restated the Credit
Agreement.
3. Conditions of Effectiveness. This Amendment shall become effective
and be deemed effective as of the date hereof, 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) In addition to any separate fee agreed to between
Brightpoint and the Agent for the Agent's account, Brightpoint shall
have paid to the Administrative Agent for the ratable benefit of the
Lenders which have approved this Amendment in writing prior to 5:00
(Chicago time) on Tuesday, June 29, 1999 an amendment fee equal to
0.125% of such Lenders' Revolving Loan Commitment and, if applicable,
Alternate Currency Commitment; and
(c) such other documents, instruments and agreements as the
Administrative Agent may reasonably request.
4. Bank One, Indiana, National Association as successor to NBD Bank,
N.A.. For all purposes under the Credit Agreement and the other Loan Documents,
Bank One Indiana, National Association has succeeded NBD Bank, N.A. All
references in the Credit Agreement and the other Loan Documents to NBD Bank,
N.A. shall be a reference to Bank One, Indiana, National Association.
5. Representations and Warranties of the Borrowers. The Borrowers
hereby represent and warrant as follows:
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(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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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
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as a counterpart signature provided each party executing such a facsimile
counterpart agrees to deliver originals to the Administrative Agent thereof.
11. 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.
12. 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:
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Name:
Title:
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By:
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Name:
Title:
BANK ONE, INDIANA, NATIONAL ASSOCIATION
as the as the Administrative Agent, the
Swing Line Lender, the Syndication Agent,
an Issuing Lender and as a Lender
By:
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Name:
Title:
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ABN AMRO BANK N.V.
as an Alternate Currency Lender
By:
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Name:
Title:
By:
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Name:
Title:
BANK BOSTON, N.A.
as a Lender and an Alternate Currency Lender
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
as a Lender
By:
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Name:
Title:
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
as a Lender
By:
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Name:
Title:
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THE PROVIDENT BANK, as a Lender
By:
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Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By:
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Name:
Title:
THE FUJI BANK, LIMITED
as a Lender
By:
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Name:
Title:
NATIONAL CITY BANK OF INDIANA
as a Lender
By:
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Name:
Title: