EXHIBIT 10.1
FIRST AMENDMENT TO
CREDIT AGREEMENT
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This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
February 20, 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 ("TCB"), 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 (the "Agreement").
B. The Borrower, the Banks, the Co-Agents and the Agent now desire to
amend the Agreement to modify the covenant restricting mergers and acquisitions
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
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Definitions
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Section 1.1. Definitions. Capitalized terms used in this Amendment, to
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the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
ARTICLE II
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Amendments
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Section 2.1. Amendment to Covenant Restricting Mergers, Etc. Effective as
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of the date hereof, subsection (1) of Section 10.3 of the Agreement is hereby
amended to read in its entirety as follows:
(1) the Borrower or any Subsidiary shall be permitted to become a
party to a merger or consolidation or acquire all or any part of the assets
of any
Person or any shares or other beneficial ownership of any Person, so long
as (a) no Default is existing or would result therefrom, (b) the Borrower
has given the Agent at least 20 days prior notice of such merger,
consolidation or acquisition, (c) the total cash and non-cash consideration
paid and Debt assumed or incurred by the Borrower or any Subsidiary in
connection with all such mergers, consolidations or acquisitions (i) shall
not exceed $30,000,000 for any single transaction and (ii) shall not exceed
$50,000,000 in the aggregate for any fiscal year, and (d) the Borrower or
such Subsidiary, as the case may be, is the surviving corporation in such
merger or consolidation;
ARTICLE III
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Conditions Precedent
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Section 3.1. Conditions. The effectiveness of this Amendment is subject
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to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. The representations and
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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.
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(c) Corporate Matters. All corporate proceedings taken in connection
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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
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Ratifications, Representations and Warranties
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Section 4.1. Ratifications. The terms and provisions set forth in this
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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 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
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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
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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
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Miscellaneous
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Section 5.1. Survival of Representations and Warranties. All
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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,
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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
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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
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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
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CONTAINED IN THE OTHER LOAN DOCUMENTS, THIS AMENDMENT AND 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
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shall inure to the benefit of the Borrower, the Banks, the Co-Agents and the
Agent and their respective
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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
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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
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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
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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,
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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.
Executed as of the date first written above.
BORROWER:
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CELLSTAR CORPORATION
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Sr. Vice President and CFO
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AGENTS AND BANKS:
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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 X. XXXXX
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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NATIONAL CITY BANK,
as a Co-Agent and a Bank
By: /s/ XXX XXXXXX
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Name: Xxx Xxxxxx
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
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Title: Executive Vice President
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THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By: /s/ P.C. XXXXXXXX III
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Name: Xxxxxx X. Xxxxxxxx III
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Title: Vice President & Manager
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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: Sr. Vice President and CFO
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CELLSTAR, LTD.
By: National Auto Center, Inc.,
General Partner
By: /s/ XXXX X. XXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxx
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Title: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and CFO
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NAC HOLDINGS, INC.
By: /s/ XXXXXX XXXX XXXXXXXXX
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Name: Xxxxxx Xxxx Xxxxxxxxx
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Title: President
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CELLSTAR INTERNATIONAL CORPORATION/
ASIA
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
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Title: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and 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: Sr. Vice President and CFO
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