EXHIBIT 10.2
FIRST AMENDMENT TO LOAN AGREEMENT
This FIRST AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered into
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as of October 12, 2001, by and among CELLSTAR CORPORATION ("Parent"), each of
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Parent's Subsidiaries signatory hereto (together with Parent, each, an
individual "Borrower," and collectively, the "Borrowers"), and FOOTHILL CAPITAL
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CORPORATION, in its capacity as agent (the "Agent") for the Lenders (as defined
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below),
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders (as defined therein) and Agent have
entered into that certain Loan and Security Agreement dated as of September 28,
2001 (as the same may be further modified, amended, restated or supplemented
from time to time, the "Loan Agreement"), pursuant to which the Lenders have
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agreed to make loans and other financial accommodations to the Borrowers from
time to time; and
HEREAS, the Borrowers have requested that the Agent and the Lenders
increase the Maximum Revolver Amount to $85,000,000 in accordance with Section
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14.3 and 15.1 of the Loan Agreement, and the Agent and the Lenders have agreed
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to the requested amendment on the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that all capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Loan Agreement and further agree as follows:
1. Amendment to Section 1.1 of the Loan Agreement.
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(a) Section 1.1 of the Loan Agreement, "Definitions," is hereby
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modified and amended by inserting the following definitions in appropriate
alphabetical order therein (and by deleting therefrom any existing definitions
of any of the following):
"Commitment" means, with respect to each Lender, its Commitment, and,
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with respect to all Lenders, their Commitments, in each case as such Dollar
amounts are set forth beside such Lender's name under the applicable heading on
Schedule C-1 or on the signature page of the Assignment and Acceptance pursuant
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to which such Lender became a Lender hereunder in accordance with the provisions
of Section 14.1.
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"Fee Letter" means that certain fee letter, dated as of even date
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herewith, between Borrowers and Agent, in form and substance satisfactory to
Agent, together with any other fee letters which are entered into between Agent
and Borrowers after the date hereof.
"Lender" and "Lenders" have the respective meanings set forth in the
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preamble to this Agreement, and shall include any other Person made a party to
this Agreement in accordance with the provisions of Section 14.1.
"Maximum Revolver Amount" means $85,000,000.
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(b) Section 1.1 of the Loan Agreement, "Definitions," is hereby
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modified and amended by deleting the defined terms and definitions of
"Additional Commitment," "New Lender" and "Assumption Agreement" in their
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entirety.
2. Amendment to Section 2.1 of the Loan Agreement. Section 2.1 of the
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Loan Agreement, "Revolver Advances" is hereby modified and amended by deleting
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the reference to "$30,000,000" in subsection 2.1(a)(y)(i) in its entirety and
inserting "$42,500,000" in substitution thereof.
3. Amendment to Section 2.12 of the Loan Agreement. Section 2.12 of the
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Loan Agreement, "Letters of Credit" is hereby modified and amended by deleting
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the reference to "$10,000,000" in subsection 2.12(a)(ii) in its entirety and
inserting "$15,000,000" in substitution thereof.
4. Amendment to Section 7.13 of the Loan Agreement. Section 7.13 of the
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Loan Agreement, "Investments" is hereby modified and amended by deleting
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subsection 7.13(c) in its entirety and inserting the following in substitution
thereof:
"(c) the ownership of the Stock of any wholly-owned Subsidiary
created after the Closing Date; provided, if such new Subsidiary is a Domestic
Subsidiary at the time of its creation, it becomes a Borrower hereunder by
executing an amendment to this Agreement assuming all Obligations hereunder and
delivers to Agent all other documentation necessary to grant Agent a
first-priority perfected Lien on its assets and the parent of such new
Subsidiary executes and delivers a Stock Pledge Agreement to Agent pledging the
Stock of such new Subsidiary in favor of Agent, or, if such new Subsidiary is a
First Tier Foreign Subsidiary, at the time of its creation, Agent receives a
pledge of 65% of such First Tier Foreign Subsidiary's Stock,"
5. Amendment to Section 14.3 of the Loan Agreement. Section 14.3 of the
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Loan Agreement, "Additional Commitments" is hereby deleted in its entirety.
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6. Amendment to Section 15.1 of the Loan Agreement. Section 15.1 of the
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Loan Agreement, "Amendments and Waivers" is hereby modified and amended by
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deleting subsection 15.1(a) in its entirety and inserting the following in
substitution thereof:
"(a) increase or extend any Commitment of any Lender,"
7. No Other Amendments. Except as otherwise expressed herein, the
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execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agent or the Lenders under the Loan
Agreement or any of the other Loan Documents, nor constitute a waiver of any
provision of the Loan Agreement or any of the other Loan Documents. Except for
the amendment set forth above, the text of the Loan Agreement
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and all other Loan Documents shall remain unchanged and in full force and effect
and each Borrower hereby ratifies and confirms its obligations thereunder. This
Amendment shall not constitute a modification of the Loan Agreement or a course
of dealing with the Agent or the Lenders at variance with the Loan Agreement
such as to require further notice by the Agent or the Lenders to require strict
compliance with the terms of the Loan Agreement and the other Loan Documents in
the future, except as expressly set forth herein. Each Borrower acknowledges and
expressly agrees that the Agent and the Lenders reserve the right to, and do in
fact, require strict compliance with all terms and provisions of the Loan
Agreement and the other Loan Documents. The Borrowers have no knowledge of any
challenge to the Agent's or any Lenders' claims arising under the Loan
Documents, or to the effectiveness of the Loan Documents.
8. Conditions Precedent to Effectiveness. This Amendment shall become
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effective as of the date hereof when, and only when, the Agent shall have
received all of the following documents:
(a) fully executed and delivered counterparts of this Amendment by
the Borrowers, Lenders and Agent;
(b) a fully executed and delivered General Syndication Assignment and
Acceptance Agreement from the Lenders party thereto;
(c) a fully executed and delivered Fee Letter of even date herewith,
together with the fees payable thereunder; and
(d) such other information, documents, instruments or approvals as the
Agent or the Agent's counsel may reasonably require.
9. Representations and Warranties of Borrowers. Each Borrower represents
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and warrants to the Agent and the Lenders as follows:
(a) Each Borrower is a corporation or limited partnership organized or
formed, as the case may be, validly existing and in good standing under the laws
of the jurisdiction indicated on the signature pages hereto and in all other
jurisdictions in which the failure to be so qualified reasonably could be
expected to constitute a Material Adverse Change;
(b) The execution, delivery, and performance by each Borrower of this
Amendment and the Loan Documents to which it is a party, as amended hereby, are
within such Borrower's corporate or partnership authority, have been duly
authorized by all necessary corporate or partnership action and do not and will
not (i) violate any provision of federal, state, or local law or regulation
applicable to such Borrower, the Governing Documents of any Borrower, or any
order, judgment, or decree of any court or other Governmental Authority binding
on any Borrower, (ii) conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under any material contractual
obligation of any Borrower, (iii) result in or require the creation or
imposition of any Lien of any nature whatsoever upon any properties or assets of
any Borrower, other than Permitted Liens, or (iv) require any approval of any
Borrower's shareholders, partners, or members or any approval or consent of any
Person under any material contractual obligation of any Borrower;
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(c) The execution, delivery, and performance by each Borrower of this
Amendment and the Loan Documents to which it is a party, as amended hereby, do
not and will not require any registration with, consent, or approval of, or
notice to, or other action with or by, any Governmental Authority or other
Person;
(d) This Amendment and each other Loan Document to which each Borrower
is a party, and all other documents contemplated hereby and thereby, when
executed and delivered by each Borrower will be the legally valid and binding
obligations of such Borrower, enforceable against each Borrower in accordance
with their respective terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar
laws relating to or limiting creditors' rights generally; and
(e) No Default or Event of Default is existing.
10. Counterparts. This Amendment may be executed in multiple counterparts,
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each of which shall be deemed to be an original and all of which, taken
together, shall constitute one and the same agreement. In proving this Amendment
in any judicial proceedings, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such enforcement
is sought. Any signatures delivered by a party by facsimile transmission shall
be deemed an original signature hereto.
11. Reference to and Effect on the Loan Documents. Upon the effectiveness
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of this Amendment, on and after the date hereof each reference in the Loan
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Loan Agreement, and each reference in the other Loan Documents
to "the Loan Agreement" "thereunder", "thereof" or words of like import
referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as amended hereby.
12. Costs, Expenses and Taxes. Borrowers agree to pay on demand all
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reasonable costs and expenses in connection with the preparation, execution, and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities hereunder
and thereunder.
13. Governing Law. This Amendment shall be deemed to be made pursuant to
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the laws of the State of Georgia with respect to agreements made and to be
performed wholly in the State of Georgia, and shall be construed, interpreted,
performed and enforced in accordance therewith.
14. Loan Document. This Amendment shall be deemed to be a Loan Document for
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all purposes.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the day and year first written above.
CELLSTAR CORPORATION,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR, LTD.,
a Texas limited partnership
By: National Auto Center, Inc.
its General Partner
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
NATIONAL AUTO CENTER, INC.,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR AIR SERVICES, INC.,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
FIRST AMENDMENT TO LOAN AGREEMENT
Signature Page 1
CELLSTAR TELECOM, INC.,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR FINANCO, INC.,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
A&S AIR SERVICE, INC.,
a Delaware Corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR INTERNATIONAL CORPORATION/SA,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR FULFILLMENT, INC.,
a Delaware corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
FIRST AMENDMENT TO LOAN AGREEMENT
Signature Page 2
CELLSTAR INTERNATIONAL
CORPORATION/ASIA,
a Delaware Corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
AUDIOMEX EXPORT CORP.,
a Texas corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
NAC HOLDINGS, INC.,
a Nevada corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: President
CELLSTAR GLOBAL SATELLITE
SERVICES, LTD., a
Texas limited partnership
By: National Auto Center, Inc.
its General Partner
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
FIRST AMENDMENT TO LOAN AGREEMENT
Signature Page 3
CELLSTAR FULFILLMENT LTD.,
a Texas limited partnership
By: CellStar Fulfillment, Inc.
its General Partner
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
FLORIDA PROPERTIES, INC.,
a Texas corporation
/s/ XXXXXX XXXX XXXXXXXXX
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By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
and as a Lender
/s/ XXXXXXXX XXXXXXXXXX
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By: Xxxxxxxx XxXxxxxxxx
Title: Director, Loan Sales
Syndication
FIRST AMENDMENT TO LOAN AGREEMENT
Signature Page 4
