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EXHIBIT 10.37
EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MAY 13, 1998
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED MULTICURRENCY CREDIT
AGREEMENT ("Amendment") is made as of October 19, 1998 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, 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 amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of October 19, 1998 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 hereby amended to delete
the defined terms "Aggregate Commitment," "Alternate Currency Availability,"
"Alternate Currency Commitment," "Alternate Currency Lender" and "Maximum
Alternate Currency Amount" therefrom in their entirety and to substitute the
following therefor:
"AGGREGATE COMMITMENT" means, at any time, the sum of the Revolving
Loan Commitments plus the Alternate Currency Commitments, as adjusted from
time to time pursuant to the terms hereof. The initial Aggregate Commitment
is Two Hundred Thirty Million and 00/100 Dollars ($230,000,000); which
amount shall be automatically increased by the addition of one or more
Alternate Currency Lenders pursuant to the terms of Section 2.3(k), provided
in no event shall such amount exceed the sum of the Aggregate Revolving Loan
Commitment plus the Maximum Aggregate Alternate Currency Commitment.
"ALTERNATE CURRENCY AVAILABILITY" means, at any particular time, the
amount by which the aggregate of the Alternate Currency Commitments of the
Alternate Currency Lenders exceeds the Alternate Currency Obligations.
"ALTERNATE CURRENCY COMMITMENT(S)" means, with respect to each
Alternate Currency Lender, the obligation of the Alternate Currency Lender
to make Alternate Currency Loans or issue Alternate Currency Letters of
Credit under Section 2.3 and to purchase Revolving Loans and participations
in Letters of Credit under Section 2.4 not exceeding (a) for each such
Alternate Currency Lender the amount reflected for such Alternate Currency
Lender in Exhibit D hereto as its Alternate Currency Commitment and (b) for
all of the Alternate Currency Lenders, the Dollar Amount of the Maximum
Aggregate Alternate Currency Amount, as such amount may be modified from
time to time pursuant to the terms of this Agreement. Notwithstanding
anything in the Agreement to the contrary, references in the Agreement to
"the Alternate Currency Commitment" shall instead be to the applicable
Alternate Currency Commitment of the applicable Alternate Currency Lender or
the Alternate Currency Commitments of all of the Alternate Currency Lenders,
as appropriate, notwithstanding the singular use of the term herein.
"ALTERNATE CURRENCY LENDER(S)" means (i) ABN AMRO Bank N.V., (ii)
BankBoston, N.A., (iii) any additional Alternate Currency Lender party to
this Agreement pursuant to the terms of Section 2.3(k), and, (iv) after any
Conversion Date, any Lender who has purchased Alternate Currency Credits
under Section 2.4(f). If any agency or Affiliate of any of the Alternate
Currency Lenders shall be a party to an Alternate Currency Addendum, such
agency or Affiliate shall, to the extent of any commitment extended and any
Alternate Currency Loans made or Alternate Currency Letters of Credit issued
by it, have all the rights of an Alternate Currency Lender hereunder;
provided, however, that the named Alternate Currency Lender shall to the
exclusion of such agency or Affiliate, continue to have all the voting and
consensual rights vested in it by the terms hereof. Notwithstanding anything
in the Agreement to the contrary, references in
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the Agreement to "the Alternate Currency Lender" shall instead be to each of
the applicable Alternate Currency Lender or applicable Alternate Currency
Lenders, as appropriate, notwithstanding the singular use of the term
herein.
"MAXIMUM AGGREGATE ALTERNATE CURRENCY AMOUNT" means Thirty-Five Million
and 00/100 Dollars ($35,000,000).
1.2. Section 1.1 of the Credit Agreement is further amended to add the
following definition in the applicable alphabetical location:
"GLOBAL TRADING BUSINESS" means the business of the Borrower and/or its
Subsidiaries of buying products from sources other than manufacturers or
network operators and selling to customers other than network operators,
their dealers or their other representatives.
1.3. Section 2.3(b) of the Credit Agreement is hereby amended to delete
the terms thereof in their entirety and to substitute the following therefor:
(b) Alternate Currency Loans/Alternate Currency Letters of
Credit; Procedures. Upon the satisfaction of the conditions precedent set
forth in Sections 4.1, 4.2 and 4.3 hereof and set forth in the applicable
Alternate Currency Documents, from and including the later of the date of
this Agreement and the date of execution of the applicable Alternate
Currency Addendum and prior to the Termination Date (unless an earlier
Termination Date shall be specified in the applicable Alternate Currency
Documents), the Alternate Currency Lender agrees on the terms and conditions
set forth in this Agreement and in the applicable Alternate Currency
Documents, to make Alternate Currency Loans to or to issue one or more
Alternate Currency Letters of Credit for the account of any Subsidiary
Borrower identified in an Alternate Currency Addendum to which such
Alternate Currency Lender is a party from time to time in the applicable
Alternate Currency, such Alternate Currency Credit in an amount not to
exceed the lesser of (i) the Alternate Currency Commitment of such Alternate
Currency Lender minus the aggregate Dollar Amount of all of such Alternate
Currency Lender's outstanding Alternate Currency Obligations at such time
and (ii) the Alternate Currency Availability at such time. Procedures for
making Alternate Currency Credits, with respect to any Subsidiary Borrower,
shall be established pursuant to the Alternate Currency Documents applicable
to such Subsidiary Borrower and the applicable Alternate Currency. Subject
to the terms of this Agreement and the applicable Alternate Currency
Documents, the Subsidiary Borrowers may borrow, repay and reborrow at any
time prior to the Termination Date. On the Termination Date, the outstanding
principal balance of the Alternate Currency Credits shall be paid in full by
the applicable Subsidiary Borrower and prior to the Termination Date
prepayments of the Alternate Currency Credits shall be made by the
applicable Subsidiary Borrower if and to the extent required in Section
2.3(h). It shall be the obligation of all Alternate Currency Lenders to
monitor all Alternate Currency Loans made by each of the Alternate Currency
Lenders so as to ensure compliance with the
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various provisions of this Agreement pursuant to which maximum amounts are
established for the Alternate Currency Loans, including, without limitation,
the provisions set forth in Section 2.3(d).
1.4. Section 2.3 of the Agreement is amended to add the following at
the end thereof:
(k) Additional Alternate Currency Lenders. Brightpoint may, upon 15
Business Days' prior written notice to the Administrative Agent and with the
prior written consent of the Administrative Agent, add to the Alternate
Currency Lenders one or more additional Lenders who have agreed to make
Alternate Currency Credit available to one or more of the Borrower's
Subsidiaries. Any such Lender shall execute and deliver to the
Administrative Agent, an addendum to Exhibit D (a "COMMITMENT Addendum"), in
form and substance reasonably acceptable to the Administrative Agent,
evidencing (i) the agreement of such Lender to become an Alternate Currency
Lender, (ii) such Alternate Currency Lender's applicable notice address and
(iii) the Alternate Currency Commitment of such Lender; provided in no event
shall the aggregate of the Alternate Currency Commitments of all of the
Alternate Currency Lenders exceed the Maximum Aggregate Alternate Currency
Amount at such time. Upon the execution and delivery to the Administrative
Agent of such Commitment Addendum and subject to the Administrative Agent's
consent: (1) the new Alternate Currency Lender shall be deemed automatically
to have become a party hereto as an Alternate Currency Lender, (2) the terms
of Exhibit D shall be automatically amended to reflect such Alternate
Currency Lender's Alternate Currency Commitment, (3) such Alternate Currency
Lender agrees, as evidenced by its execution of such Commitment Addendum,
that it shall, for all purposes, be an Alternate Currency Lender party to
this Agreement and any other Loan Documents and shall have all the rights
and obligations of an Alternate Currency Lender hereunder and thereunder and
(4) the Aggregate Commitment shall be automatically increased by the amount
the Alternate Currency Commitment of such Alternate Currency Lender. The
Administrative Agent shall promptly provide a copy of the Commitment
Addendum to each of the Lenders.
1.5. Section 6.4 (D)(1) of the Credit Agreement is amended to delete
the last sentence thereof in its entirety and to substitute the following
therefor:
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
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 lesser of (a) $20,000,000 and (b) the one-
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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.
1.6 Section 6.4 (D)(2) of the Credit Agreement is amended to delete
the last sentence thereof in its entirety and to substitute the following
therefor:
The Senior Debt Ratio shall be calculated, in each case, determined as of
the last day of each fiscal quarter based upon (A) for Indebtedness and
Capitalized Lease Obligations, Indebtedness (other than the Permitted
Subordinated Indebtedness) and Capitalized Lease Obligations as of the last
day of each such fiscal quarter; and (B) for EBITDA, the actual amount for
the 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 lesser of (a) $20,000,000 and (b) the 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.
1.7. Exhibit D to the Credit Agreement is hereby amended to delete the
terms thereof in their entirety and to substitute the Exhibit D attached hereto
therefor.
2. Conditions of Effectiveness. This Amendment shall become effective and
be deemed effective as of October 19, 1998, 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, BankBoston, N.A. and the Required Lenders; and
(b) 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, 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. Signature Page Brightpoint, Inc. Amendment to
Credit Agreement
BRIGHTPOINT, INC.
as a Borrower and Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
BRIGHTPOINT INTERNATIONAL LTD.
as a Borrower and Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
NBD BANK, N.A.
as the Administrative Agent, a Lender and the Swing
Line Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK ONE, INDIANA, NATIONAL
ASSOCIATION
as the Syndication Agent, an Issuing Lender and as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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ABN AMRO BANK N.V.
as an Alternate Currency Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President and Director
BANK BOSTON, N.A.
as a Lender and an Alternate Currency Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CORESTATES BANK, N.A.
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
SUNTRUST BANK OF CENTRAL FLORIDA,
NATIONAL ASSOCIATION
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
as a Lender
By: /s/ F.C.H. ▇▇▇▇▇
------------------
Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
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CREDIT LYONNAIS CHICAGO BRANCH
as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
CHICAGO BRANCH
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Deputy General Manager
THE FUJI BANK, LIMITED
as a Lender
By: /s/ Tetsuo Kamatsu
--------------------
Name: Tetsuo Kamatsu
Title: Joint General Manager
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EXHIBIT D
TO
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
Commitments
------------------------------- ----------------------------- ----------------------------- ------------------------------
Revolving Loan Alternate Currency
Commitment Loan Commitment Total Commitment
Lender (in millions) (in millions) (in millions)
------------------------------- ----------------------------- ----------------------------- ------------------------------
First Chicago-Admin Agt. $30 -- $30
------------------------------- ----------------------------- ----------------------------- ------------------------------
Bank One - Synd. Agt $30 -- $30
------------------------------- ----------------------------- ----------------------------- ------------------------------
Corestates $22 -- $22
------------------------------- ----------------------------- ----------------------------- ------------------------------
Sun Trust Bank $22 -- $22
------------------------------- ----------------------------- ----------------------------- ------------------------------
Bank of Nova Scotia $22 -- $22
------------------------------- ----------------------------- ----------------------------- ------------------------------
Bank of Tokyo-Mitsubishi $22 -- $22
------------------------------- ----------------------------- ----------------------------- ------------------------------
Credit Lyonnais $22 -- $22
------------------------------- ----------------------------- ----------------------------- ------------------------------
Bank of Boston $15 $5 $20
------------------------------- ----------------------------- ----------------------------- ------------------------------
Fuji Bank $15 -- $15
------------------------------- ----------------------------- ----------------------------- ------------------------------
ABN AMRO Bank -- $25 $25
------------------------------- ----------------------------- ----------------------------- ------------------------------
Totals $200 $30(1) $230(2)
------------------------------- ----------------------------- ----------------------------- ------------------------------
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(1)Note that pursuant to the terms of Section 2.3(k) additional Alternate
Currency Lenders may be added increasing this amount to the Maximum
Aggregate Alternate Currency Amount.
(2)Note that pursuant to the terms of the definition of Aggregate Commitment and
Section 2.3(k), this number may increase in the event of a new Alternate
Currency Commitment.