exv10w1









Exhibit 10.1




THIRD AMENDMENT





     THIS THIRD AMENDMENT (this “Amendment”) dated as of March 12, 2009 to the Credit
Agreement referenced below is by and among BRIGHTPOINT, INC., an Indiana corporation (the
“Parent”), BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited partnership (“Bright
North America”), BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands company (“Bright
BVI”), BRIGHTPOINT HOLDINGS B.V., a Netherlands company (“Bright Netherlands”),
BRIGHTPOINT AUSTRALIA PTY. LTD., an Australian company (“Bright Australia”), BRIGHTPOINT
EUROPE A/S, a Danish company (“Bright Denmark Telecom”, and together with the Parent,
Bright North America, Bright BVI, Bright Netherlands, Bright Australia and Bright Denmark
Administration, collectively, the “Borrowers”), the Guarantors identified on the signature
pages hereto, the Lenders identified on the signature pages hereto and BANK OF AMERICA, N.A., in
its capacity as Administrative Agent (in such capacity, the “Administrative Agent”).



WITNESSETH




     WHEREAS, revolving credit and term loan facilities have been extended to the Borrowers
pursuant to the Credit Agreement (as amended, modified, supplemented, increased and extended from
time to time, the “Credit Agreement”) dated as of February 16, 2007 among the Borrowers,
the Guarantors identified therein, the Lenders identified therein and the Administrative Agent;



     WHEREAS, the Borrowers have requested certain modifications to the Credit Agreement; and



     WHEREAS, the Required Lenders have approved the requested modifications on the terms and
conditions set forth herein.



     NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Defined Terms. Capitalized terms used herein but not otherwise defined herein
shall have the meanings provided to such terms in the Credit Agreement.



     2. Amendments. The Credit Agreement is amended in the following respects:




(a) The definition of “Material Foreign Subsidiary” in Section 1.01 is amended to
read as follows:




“Material Foreign Subsidiary” means any Foreign Subsidiary (other than a
Foreign Guarantor) that has (a) gross profits that exceed fifteen percent (15%) of
total gross profits of the Parent and its Subsidiaries on a consolidated basis for
the immediately preceding fiscal quarter or (b) assets with a book value that
exceeds fifteen percent (15%) of the book value of the total assets of the Parent
and its Subsidiaries on a consolidated basis at any time;




     provided that at all times the Loan Parties shall have (x) aggregate
gross profits that exceed 50% (or, if the Consolidated Leverage Ratio as of the end
of the most recent fiscal quarter is greater than or equal to 2.0:1.0, 65%) of total
gross profits of the Parent and its Subsidiaries on a consolidated basis as of the
last day of either of the two immediately preceding fiscal quarters and (y)
aggregate assets with a book value that



 









 







exceeds 50% (or, if the Consolidated Leverage Ratio as of the end of the most
recent fiscal quarter is greater than or equal to 2.0:1.0, 60%) of the book value of
the total assets of the Parent and its Subsidiaries on a consolidated basis as of
the last day of either of the two immediately preceding fiscal quarters, and, to the
extent necessary to meet such requirement, the Parent shall designate one or more
Foreign Subsidiaries as Material Foreign Subsidiaries (notwithstanding that such
Foreign Subsidiaries would not otherwise meet the tests set forth in clauses (a) and
(b) above) such that immediately after such designation the Loan Parties will
satisfy such requirement.




(b) Section 7.02(c) is amended to read as follows:




(c) within forty-five days after the end of the second and fourth fiscal quarter of
each fiscal year of the Parent, a certificate from a Responsible Officer of the
Parent containing the information set forth on Exhibit 7.02(c) with respect to
certain types of property acquired by any Foreign Loan Party since the date of the
prior certificate (or, in the case of the first certificate, since the Closing
Date), as such Exhibit may be updated from time to time by the Administrative Agent
by notice to the Parent (it being understood that if any Collateral Document
executed by a Foreign Loan Party requires delivery of such information on a more
frequent basis, then this Section 7.02(c) shall control and such requirement in such
Collateral Document shall be of no force and effect);



     3. Conditions Precedent. This Amendment shall be effective as of the date hereof upon
satisfaction of each of the following conditions precedent:




     (a) receipt by the Administrative Agent of counterparts of this Amendment executed by
the Borrowers, the Guarantors, the Required Lenders and the Administrative Agent;




     (b) payment by the Borrower to the Administrative Agent, for the account of each Lender
that executes this Amendment, of an amendment fee equal to 5 basis points (0.05%) on the
Revolving Commitment and outstanding Term Loan of such Lender.



     4. Amendment is a “Loan Document”. This Amendment is a Loan Document.



     5. Reaffirmation of Representations and Warranties. Each Loan Party represents and
warrants that, after giving effect to this Amendment, (a) the representations and warranties set
forth in the Loan Documents are true and correct in all material respects as of the date hereof
(except those that expressly relate to an earlier period) and (b) no Default exists.



     6. Reaffirmation of Obligations. Each Borrower and Guarantor (a) acknowledges and
consents to all of the terms and conditions of this Amendment, (b) affirms all of its obligations
under the Loan Documents and (c) agrees that this Amendment and all documents executed in
connection herewith do not operate to reduce or discharge such Borrower’s or such Guarantor’s
obligations under the Loan Documents.



     7. Reaffirmation of Security Interests. Each Loan Party (a) affirms that each of the
Liens granted in or pursuant to the Loan Documents are valid and subsisting and (b) agrees that
this Amendment shall in no manner impair or otherwise adversely effect any of the Liens granted in
or pursuant to the Loan Documents.



     8. No Other Changes. Except as modified hereby, all of the terms and provisions of
the Loan Documents shall remain in full force and effect.



 









 





     9. Counterparts; Facsimile Delivery. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for more than one such
counterpart. Delivery of an executed counterpart of this Amendment by facsimile or electronic mail
shall be effective as an original.



     10. Governing Law. This Amendment shall be deemed to be a contract made under, and
for all purposes shall be construed in accordance with, the laws of the State of New York.



[SIGNATURE PAGES FOLLOW]





 









 








     IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Third
Amendment to be duly executed and delivered as of the date first above written.



	 	 	 
	DOMESTIC BORROWERS:

	 	BRIGHTPOINT, INC., an Indiana corporation






	 	 	 	 	 
	 	By:  	                       /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 



	 	 	 	 	 
	 	BRIGHTPOINT NORTH AMERICA L.P., a Delaware limited partnership

 	 
	 	By:  	Brightpoint North America, Inc., its general partner
 	 
	 	 	 	 
	 	By:  	               /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 



	 	 	 
	FOREIGN BORROWERS:

	 	BRIGHTPOINT PHILIPPINES LIMITED, a British Virgin Islands company






	 	 	 	 	 
	 	By:  	                    /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Director 	 
	 
	 	BRIGHTPOINT HOLDINGS B.V., a Netherlands company

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Managing Director 	 
	 	 	 
	 	By:  	                       /s/ F.A. Ishaak
 	 
	 	 	Name:  	Fortis Intertrust (Netherlands) B.V. 	 
	 	 	Title:  	Managing Director 	 
	 



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	SIGNED by STEVEN E. FIVEL as
	 	)	 	 	 		 	 	 	 
	attorney for BRIGHTPOINT 
	 	)	 	 	 	






/s/ Steven E. Fivel 
By executing this agreement the

 attorney states that the attorney 
has received no notice of 
revocation of the power of 
attorney	 	 	 	 
	AUSTRALIA PTY LTD under power 
	 	)	 	 	 	 	 	 	 
	of attorney dated February 16, 2007
	 	)	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 
	in the presence of:
	 	)	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 
	/s/ Nancy Conger
	 	)	 	 	 	 	 	 	 
	Signature of witness
	 	)	 	 	 	 	 	 	 
	NANCY CONGER
	 	)	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 
	
	 	)	 	 	 	 	 	 	 
	Name of witness (block letters)
	 	)	 	 	 	 	 	 	 
	 
	 	)	 	 	 	 	 	 	 






	 	 	 	 	 
	 	BRIGHTPOINT EUROPE A/S, a Danish company

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Director 	 
	 



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	DOMESTIC GUARANTORS:

	 	2601 METROPOLIS CORP., an Indiana corporation
	 

	 	BPGH LLC, an Indiana limited liability company
	 

	 	BRIGHTPOINT GLOBAL HOLDINGS II, INC., an Indiana corporation
	 

	 	BRIGHTPOINT INTERNATIONAL LTD, a Delaware corporation
	 

	 	BRIGHTPOINT NORTH AMERICA, INC., an Indiana corporation
	 

	 	BRIGHTPOINT LATIN AMERICA, INC., an Indiana corporation
	 

	 	BRIGHTPOINT THAILAND, INC., an Indiana corporation
	 

	 	WIRELESS FULFILLMENT SERVICES HOLDINGS, INC.,
	 

	 	a Delaware corporation






	 	 	 	 	 
	 	By:  	                 /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 
	 	BRIGHTPOINT ACTIVATION SERVICES LLC,

an Indiana limited liability company

 	 
	 	By:  	Brightpoint North America L.P., its Manager
 	 
	 	 	 
	 	By:  	         Brightpoint North America, Inc., its general partner
 	 
	 	 	 	 
	 	By:  	                              /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 
	 	BRIGHTPOINT SERVICES, LLC, an Indiana limited liability company

 	 
	 	By:  	Brightpoint, Inc., its Manager
 	 
	 	 	 
	 	By:  	                        /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 
	 	TRIO INDUSTRIES, INC., a Texas corporation

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 



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	 	WIRELESS FULFILLMENT SERVICES LLC,

a California limited liability company

 	 
	 	By:  	Brightpoint, Inc., its Manager
 	 
	 	 	 
	 	By:  	                        /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 
	 	BRIGHTPOINT DISTRIBUTION LLC, an Indiana limited liability company

 	 
	 	By:  	Brightpoint North America L.P., its sole Member
 	 
	 	 	 
	 	By:  	         Brightpoint North America, Inc., its general partner
 	 
	 	 	 
	 	By:  	                               /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Executive Vice President, General Counsel & Secretary 	 
	 



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	FOREIGN
GUARANTORS:

	 	BRIGHTPOINT SINGAPORE PTE LTD,
	 

	 	a company formed under the laws of Singapore,






	 	 	 	 	 
	 	 	 
	 	By:  	                      /s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Director 	 
	 
	 	BRIGHTPOINT GERMANY GMBH,

a company formed under the laws of Germany

 	 
	 	By:  	/s/ Torben Pedersen
 	 
	 	 	Name:  	Torben Pedersen 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                        /s/ Alexander Koprda
 	 
	 	 	Name:  	Alexander Koprda 	 
	 	 	Title:  	Director 	 
	 
	 	BRIGHTPOINT DENMARK A/S,

a company formed under the laws of Denmark

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Director 	 
	 
	 	BRIGHTPOINT SMART PHONE A/S,

a company formed under the laws of Denmark

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Director 	 
	 
	 	BRIGHTPOINT INTERNATIONAL A/S,

a company formed under the laws of Denmark

 	 
	 	By:  	/s/ Steven E. Fivel
 	 
	 	 	Name:  	Steven E. Fivel 	 
	 	 	Title:  	Director 	 
	 
	 	BRIGHTPOINT NETHERLANDS BV,

a company formed under the laws of The Netherlands

 	 
	 	By:  	/s/ Dave Stolk
 	 
	 	 	Name:  	Dave Stolk 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Alex Wendt
 	 
	 	 	Name:  	Alex Wendt 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



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	ADMINISTRATIVE
AGENT:

	 	BANK OF AMERICA, N.A., as Administrative Agent






	 	 	 	 	 
	 	By:  	                        /s/ Anthea Del Bianco
 	 
	 	 	Name:  	Anthea Del Bianco 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 
	DANISH SWING
LINE LENDER:

	 	BANC OF AMERICA SECURITIES LIMITED






	 	 	 	 	 
	 	By:  	                        /s/ Dilys Robertson
 	 
	 	 	Name:  	Dilys Robertson 	 
	 	 	Title:  	Senior Vice President 	 
	 



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	LENDERS:

	 	BANK OF AMERICA, N.A.






	 	 	 	 	 
	 	 	 
	 	By:  	                           /s/ Debra E. Delvecchio
 	 
	 	 	Name:  	Debra E. Delvecchio 	 
	 	 	Title:  	Managing Director 	 
	 
	 	ABN AMRO BANK N.V.

 	 
	 	By:  	/s/ David Carrington
 	 
	 	 	Name:  	David Carrington 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	                      /s/ Suneel Gill
 	 
	 	 	Name:  	Suneel Gill 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	NORDEA BANK FINLAND PLC ACTION THROUGH ITS NEW YORK ANS CAYMAN ISLANDS
BRANCHES

 	 
	 	By:  	/s/ Henrik M. Steffensen
 	 
	 	 	Name:  	Henrik M. Steffensen 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	 	 
	 	By:  	                      /s/ Gerald E. Chelius
 	 
	 	 	Name:  	Gerald E. Chelius 	 
	 	 	Title:  	SVP Credit 	 
	 
	 	CITIBANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	/s/ Tyler J. McCarthy
 	 
	 	 	Name:  	Tyler J. McCarthy 	 
	 	 	Title:  	Director 	 
	 
	 	BANK DNB NORD A/S

 	 
	 	By:  	/s/ Jesper Clemmensen
 	 
	 	 	Name:  	Jesper Clemmensen 	 
	 	 	Title:  	SRM 	 
	 
	 	 	 
	 	By:  	                       /s/ Dan Christensen
 	 
	 	 	Name:  	Dan Christensen 	 
	 	 	Title:  	SVP 	 
	 
	 	FIFTH THIRD BANK, INC.

 	 
	 	By:  	/s/ David O’Neal
 	 
	 	 	Name:  	David O’Neal 	 
	 	 	Title:  	Vice President 	 
	 



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	 	GENERAL ELECTRIC CAPITAL CORPORATION

 	 
	 	By:  	/s/ Jeff Skinner
 	 
	 	 	Name:  	Jeff Skinner 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 
	 	WELLS FARGO BANK, N.A.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH

 	 
	 	By:  	/s/ Evelyn Thierry
 	 
	 	 	Name:  	Evelyn Thierry 	 
	 	 	Title:  	Vice President 	 
	 
	 	 	 
	 	By:  	                         /s/ Erin Morrissey
 	 
	 	 	Name:  	Erin Morrissey 	 
	 	 	Title:  	Vice President 	 
	 
	 	NATIONAL CITY BANK

 	 
	 	By:  	/s/ David G. McNeely
 	 
	 	 	Name:  	David G. McNeely 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., CHICAGO BRANCH

 	 
	 	By:  	/s/ Chistine Howatt
 	 
	 	 	Name:  	Christine Howatt 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	NYKREDIT BANK A/S

 	 
	 	By:  	/s/ Ricco Flade
 	 
	 	 	Name:  	Ricco Flade 	 
	 	 	Title:  	Associate 	 
	 
	 	 	 
	 	By:  	                       /s/ Jorn Christiansen
 	 
	 	 	Name:  	Jorn Christiansen 	 
	 	 	Title:  	SVP 	 
	 
	 	HSH NORDBANK AG COPENHAGEN BRANCH

 	 
	 	By:  	/s/ Annette Foght-Sorensen
 	 
	 	 	Name:  	Annette Foght-Sorensen 	 
	 	 	Title:  	Senior Credit Analyst 	 
	 
	 	BMO CAPITAL MARKETS FINANCING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: