EXHIBIT 10.11
THIRD AMENDMENT TO
CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 11, 1998, is among CELLSTAR CORPORATION, a Delaware corporation (the
"Borrower"), each of the banks or other lending institutions which is or may
from time to time become a signatory to the Agreement (hereinafter defined) or
any successor or permitted assignee thereof (each a "Bank" and collectively, the
"Banks"), THE FIRST NATIONAL BANK OF CHICAGO and NATIONAL CITY BANK, as co-
agents ("Co-Agents"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (formerly
known as Texas Commerce Bank National Association), a national banking
association ("Chase"), as agent for itself and the other Banks, as issuer of
Letters of Credit under the Agreement, and as the swing line lender (in such
capacity, together with its successors in such capacity, the "Agent").
RECITALS:
A. The Borrower, the Banks, the Co-Agents and the Agent have entered into
that certain Credit Agreement dated as of October 15, 1997, as amended by that
certain First Amendment to Credit Agreement dated as of February 20, 1998, and
as further amended by that certain Second Amendment to Credit Agreement dated as
of July 24, 1998 (as amended, the "Agreement").
B. The Borrower, the Banks, the Co-Agents and the Agent now desire to
amend the Agreement to modify the covenant restricting Debt and as otherwise
provided herein.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II
Amendment
Section 2.1 Amendment to Definition of Debt. Effective as of July 1,
1998, clause (e) of the definition of "Debt" set forth in Section 1.1 of the
Agreement is hereby amended to read as follows:
(e) all Debt or other obligations of others Guaranteed by such Person,
except Guarantees by the Borrower or any Subsidiary of any obligations of
any other
Subsidiary which obligations do not otherwise constitute Debt, provided
that each payment under any such Guarantee shall be treated as either a
loan or a capital contribution, as appropriate, to a Subsidiary and any
such loans or capital contributions to Subsidiaries other than Guarantors
shall be subject to the limitations set forth in subsections (F) and (H) of
Section 10.5(i),
Section 2.2 Amendment to Debt Covenant. Effective as of July 1, 1998,
subsection (c) of Section 10.1 of the Agreement is hereby amended to read as
follows:
(c) Debt of the Foreign Subsidiaries, Debt of the Foreign
Affiliates, and Guarantees by the Borrower or any Subsidiary of any Debt of
any of the Foreign Subsidiaries or the Foreign Affiliates, all incurred
when no Default exists or would result therefrom, provided that the
aggregate amount of all such Debt (including such Debt existing on the date
hereof and described on Schedule 8.9 hereto, but excluding such Debt of the
Foreign Subsidiaries and such Debt of the Foreign Affiliates to the
Borrower or any Subsidiary permitted under Section 10.5(i)) outstanding at
any time shall not exceed $20,000,000, it being understood that trade
payables of the Borrower and the Subsidiaries for the purchase of goods or
materials in the ordinary course of business and Guarantees thereof are not
prohibited or limited by this Section 10.1;
ARTICLE III
Conditions Precedent
Section 3.1 Conditions. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties contained herein and in all other Loan Documents, as amended
hereby, shall be true and correct as of the date hereof as if made on the
date hereof.
(b) No Default. No Default shall have occurred and be continuing.
(c) Corporate Matters. All corporate proceedings taken in
connection with the transactions contemplated by this Amendment and all
documents, instruments, and other legal matters incident thereto shall be
satisfactory to the Agent and its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx
P.C.
ARTICLE IV
Ratifications, Representations and Warranties
Section 4.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement and the other Loan
Documents are ratified and confirmed and shall continue in full force
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and effect. Borrower agrees that the Agreement, as amended hereby, and the other
Loan Documents shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms.
Section 4.2 Representations and Warranties. Borrower hereby represents
and warrants to the Agent and the Banks that (1) the execution, delivery, and
performance by the Borrower and the Guarantors of this Amendment and compliance
with the terms and provisions hereof have been duly authorized by all requisite
action on the part of each such Person and do not and will not (a) violate or
conflict with, or result in a breach of, or require any consent under (i) the
articles of incorporation, certificate of incorporation, bylaws, partnership
agreement or other organizational documents of any such Person, (ii) any
applicable law, rule, or regulation or any order, writ, injunction, or decree of
any Governmental Authority or arbitrator, or (iii) any material agreement or
instrument to which any such Person is a party or by which any of them or any of
their property is bound or subject, (2) the representations and warranties
contained in the Agreement, as amended hereby, and any other Loan Document are
true and correct on and as of the date hereof as though made on and as of the
date hereof, and (3) no Default has occurred and is continuing.
ARTICLE V
Miscellaneous
Section 5.1 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
shall survive the execution and delivery of this Amendment, and no investigation
by the Agent or any Bank or any closing shall affect the representations and
warranties or the right of the Agent or any Bank to rely upon them.
Section 5.2 Reference to Agreement. Each of the Loan Documents, including
the Agreement and any and all other agreements, documents, or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Agreement shall mean a reference to the
Agreement as amended hereby.
Section 5.3 Expenses of the Agent. Borrower agrees to pay on demand all
costs and expenses incurred by the Agent in connection with the preparation,
negotiation, and execution of this Amendment and any and all amendments,
modifications, and supplements thereto, including without limitation the costs
and fees of the Agent's legal counsel, and all costs and expenses incurred by
the Agent in connection with the enforcement or preservation of any rights under
the Agreement, as amended hereby, or any other Loan Document, including without
limitation the costs and fees of the Agent's legal counsel.
Section 5.4 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.5 APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THE OTHER LOAN DOCUMENTS, THIS AMENDMENT AND
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ALL OTHER LOAN DOCUMENTS SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE
IN DALLAS, DALLAS COUNTY, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Section 5.6 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Borrower, the Banks, the Co-Agents and the
Agent and their respective successors and assigns, except the Borrower shall not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Agent.
Section 5.7 Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
Section 5.8 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 5.9 Release of Claims. The Borrower and the Guarantors each
hereby acknowledge and agree that none of them has any and there are no claims
or offsets against or defenses or counterclaims to the terms and provisions of
or the obligations of the Borrower, any Guarantor or any Subsidiary created or
evidenced by the Agreement or any of the other Loan Documents, and to the extent
any such claims, offsets, defenses or counterclaims exist, Borrower and the
Guarantors each hereby waives, and hereby release the Agent and each of the
Banks from, any and all claims, offsets, defenses and counterclaims, whether
known or unknown, such waiver and release being with full knowledge and
understanding of the circumstances and effects of such waiver and release and
after having consulted legal counsel with respect thereto.
Section 5.10 ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER INSTRUMENTS,
DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS
AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO REGARDING
THIS AMENDMENT AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS
AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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Executed as of the date first written above.
BORROWER:
CELLSTAR CORPORATION
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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AGENTS AND BANKS:
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION (formerly known as
Texas Commerce Bank National Association), as
Agent and as a Bank
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
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Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Bank
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Vice President
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NATIONAL CITY BANK,
as a Co-Agent and a Bank
By: /s/ XXX GUERBACH
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Name: Xxx Guerbach
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX XXXXXXXXX
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Name: Xxxxxx Xxxxxxxxx
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Title: Senior Vice President
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THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By:
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Name:
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Title:
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XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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Each of the undersigned Guarantors hereby (a) consents and agrees to this
Amendment, and (b) agrees that its Guaranty shall continue to be the legal,
valid and binding obligation of such Guarantor enforceable against such
Guarantor in accordance with its terms.
NATIONAL AUTO CENTER, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR, LTD.
By: National Auto Center, Inc.,
General Partner
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR FULFILLMENT, LTD.
By: CellStar Fulfillment, Inc.,
General Partner
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR WEST, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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ACC-CELLSTAR, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR FINANCO, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR FULFILLMENT, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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NAC HOLDINGS, INC.
By: /s/ XXXXXX XXXX XXXXXXXXX
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Xxxxxx Xxxx Xxxxxxxxx
President
CELLSTAR INTERNATIONAL CORPORATION/
ASIA
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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AUDIOMEX EXPORT CORP.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR INTERNATIONAL
CORPORATION/SA
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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CELLSTAR AIR SERVICES, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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A & S AIR SERVICE, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Senior Vice President & CFO
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