EXHIBIT 10.1
SECOND AMENDMENT TO
CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of July 24, 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
(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 Covenant Restricting Debt. Effective as of
June 1, 1998, the amount "$10,000,000" appearing in subsection (c) of Section
10.1 of the Agreement is hereby amended to read "$20,000,000".
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 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.
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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 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.
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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.
Executed as of the date first written above.
BORROWER:
CELLSTAR CORPORATION
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. 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
-----------------------------------
Name: Xxxxx X. Xxxx
------------------------------
Title: V.P.
-----------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Bank
By:/s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: Vice President
-----------------------------
NATIONAL CITY BANK,
as a Co-Agent and a Bank
By:/s/ XXX XXXXXX
-----------------------------------
Name: Xxx Xxxxxx
------------------------------
Title: V.P.
-----------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ XXXXXX XXXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
------------------------------
Title: Senior Vice President
-----------------------------
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THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By:/s/ XXXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------
Title: Vice President & Manager
-----------------------------
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:/s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Vice President
-----------------------------
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
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
CELLSTAR, LTD.
By: National Auto Center, Inc.,
General Partner
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
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CELLSTAR FULFILLMENT, LTD.
By: CellStar Fulfillment, Inc.,
General Partner
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
CELLSTAR WEST, INC.
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
ACC-CELLSTAR, INC.
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
CELLSTAR FINANCO, INC.
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
CELLSTAR FULFILLMENT, INC.
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
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NAC HOLDINGS, INC.
By:/s/ XXXXXX XXXX XXXXXXXXX
-----------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
------------------------------
Title: President
-----------------------------
CELLSTAR INTERNATIONAL CORPORATION/
ASIA
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
AUDIOMEX EXPORT CORP.
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
CELLSTAR INTERNATIONAL
CORPORATION/SA
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
CELLSTAR AIR SERVICES, INC.
By:/s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
------------------------------
Title: Sr. Vice President & CFO
-----------------------------
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