EXHIBIT 10.2
FIFTH AMENDMENT TO
CREDIT AGREEMENT
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This FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
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April 8, 1999, is among CELLSTAR CORPORATION, a Delaware corporation (the
"Borrower"), each of the banks or other lending institutions which is or may
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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
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"Banks"), THE FIRST NATIONAL BANK OF CHICAGO and NATIONAL CITY BANK, as co-
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agents ("Co-Agents"), and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION (formerly
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known as Texas Commerce Bank National Association), a national banking
association ("Chase"), as agent for itself and the other Banks, as issuer of
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Letters of Credit under the Agreement, and as the swing line lender (in such
capacity, together with its successors in such capacity, the "Agent").
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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 (i) that certain First Amendment to
Credit Agreement dated as of February 20, 1998, (ii) that certain
Second Amendment to Credit Agreement dated as of July 24, 1998,
(iii) that certain Third Amendment to Credit Agreement dated as
of September 11, 1998, and (iv) that certain Fourth Amendment to
Credit Agreement dated as of March 5, 1999 (as amended, the
"Agreement").
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B. The Borrower, the Banks, the Co-Agents and the Agent now
desire to amend the Agreement as 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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1.1 Definitions. Capitalized terms used in this Amendment, to the
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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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2.1 Removal of Fuji Bank. Effective as of and from the date hereof,
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(a) The Fuji Bank, Limited, Houston Agency ("Fuji Bank") is hereby
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removed as a Bank and shall no longer be party to the Agreement and
any other Loan Document; (b) the
Commitment of Fuji Bank under the Agreement is hereby terminated; and
(c) Fuji Bank shall be released from any further duty, liability and
obligation of any nature whatsoever under the Agreement and any other
Loan Document. Notwithstanding the foregoing, the indemnity
obligations under Section 14.2 of the Agreement and all other
obligations which survive the termination of the Agreement and any
other Loan Document shall survive the removal of Fuji Bank and the
termination of its Commitment thereunder.
2.2 Remaining Banks. The Commitments of the Banks other than Fuji
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Bank shall remain unchanged, and the respective Commitment Percentages
and pro rata shares of such Banks shall be adjusted accordingly
effective as of the date hereof. As of the date hereof, Fuji Bank
shall be deemed to have sold and transferred to each of the other
Banks and each of such other Banks shall be deemed irrevocable and
unconditionally to have purchased and received from Fuji Bank (to the
extent of such other Bank's Commitment Percentage, as adjusted in
accordance with this Section), without recourse or warranty, Fuji
Bank's participation share under Section 3.3 of the Agreement in all
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Letters of Credit outstanding on the date hereof and related rights.
2.3 Waiver of Notice. The Agent and the Banks hereby waive any
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notice required under Section 2.10 of the Agreement for a reduction
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of the Commitments pursuant to this Amendment.
2.4 Definition of "Commitment". Effective as of the date hereof, the
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definition of "Commitment" set forth in Section 1.1 of the Agreement
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is hereby amended to read in its entirety as follows:
"Commitment" means, as to each Bank, the obligation of such Bank to
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make Advances pursuant to Sections 2.1 and 2.2 and issue or participate in
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Letters of Credit pursuant to Sections 3.1 and 3.3 in an aggregate
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principal amount at any time outstanding up to but not exceeding the amount
set forth below opposite the name of such Bank under the heading
"Commitment":
Bank Commitment
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Chase Bank of Texas, National $25,000,000 (including a $5,000,000
Association Swing Line Commitment)
The First National Bank of Chicago $25,000,000
National City Bank $25,000,000
Credit Lyonnais New York Branch $20,000,000
▇▇▇▇▇ Fargo Bank (Texas), National $20,000,000
Association
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, or the Commitment amount assigned or retained pursuant to an Assignment
and Acceptance, or the Commitment amount for such Bank specified in
documentation executed pursuant to Section 2.12; in each case, as such
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amount may be reduced pursuant to Section 2.10 or terminated pursuant to
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Section 2.10 or Section 12.2.
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2.5 Definition of "Companies Cash Flow". Effective as of February
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28, 1999, the proviso at the end of subparagraph (b) of the definition
of "Companies Cash Flow" set forth in Section 1.1 of the Agreement is
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hereby amended to read as follows:
provided, however, that in calculating Companies Cash Flow (i) changes in
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the allowance for doubtful accounts shall not be treated as a non-cash item
for purposes of such calculation, and (ii) special charges in the aggregate
amount of $20,382,000 recorded in the quarter ending November 30, 1998, for
the settlement of the shareholder lawsuit and a charge taken as part of
Borrower's strategic repositioning, shall be excluded from the calculation
of Companies Cash Flow.
2.6 Reduction or Termination of Commitment. Effective as of the date
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hereof, the last sentence of Section 2.10 of the Agreement is hereby
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amended to read as follows:
The Commitments may not be reinstated after they have been terminated
or reduced, except for the Commitment Increase pursuant to Section
2.12.
2.7 Commitment Increase. Effective as of the date hereof, Article
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II of the Agreement is hereby amended to add the following Section
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2.12 to the end thereof, which Section 2.12 shall read in its entirety
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as follows:
Section 2.12. Commitment Increase. The parties hereto understand
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that the Borrower may seek one or more financial institutions to take a
Commitment or Commitments in the aggregate amount of $20,000,000 (the
"Commitment Increase"). The Commitment Increase may be taken by any
existing Bank hereunder by increasing the Commitment of such existing Bank
(each an "Increasing Bank") or by a new Bank added as a party hereto (each
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an "Additional Bank"), subject to the conditions hereinafter specified.
For purposes of the foregoing, Agent may, from time to time, (i) admit
Additional Banks hereunder, or (ii) at the request of any Increasing Bank,
increase the Commitment of such Increasing Bank, subject to the following
conditions:
(a) each Additional Bank shall be an Eligible Assignee;
(b) Borrower shall execute (i) a new Note payable to the
order of each Additional Bank, or (ii) a replacement
Note payable to the order of each Increasing Bank;
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(c) Borrower and Agent shall execute appropriate
documentation to add each Additional Bank as a party to
this Agreement, whereupon such Additional Bank shall
have all of the rights and obligations of a Bank
hereunder and under the other Loan Documents;
(d) Each Additional Bank and each Increasing Bank shall
pay to the Agent for the account of the other Banks an
amount equal to its Percentage Commitment of
outstanding Advances, and such amount so paid shall
constitute an Advance by such Additional Bank or
Increasing Bank under its Note and a payment of
principal to the other Banks under their respective
Notes, and the outstanding principal balances of the
respective Notes shall be increased or reduced
accordingly;
(e) After giving effect to the admission of any
Additional Bank or the increase in the Commitment of
any Increasing Bank, the aggregate amount of the
Commitments shall not exceed $135,000,000; and
(f) No admission of any Additional Bank shall increase
the Commitment of any existing Bank.
Upon and as of the date of the addition of any Additional Bank to the
Agreement or the increase of the Commitment of any Increasing Bank, (i) the
Commitments of the other Banks shall remain unchanged, and the respective
Commitment Percentages and pro rata shares of such Banks shall be adjusted
accordingly, and (ii) each of the other Banks shall be deemed to have sold
and transferred to such Additional Bank or such Increasing Bank, as the
case may be, and such Additional Bank or Increasing Bank shall be deemed
irrevocably and unconditionally to have purchased and received from each
such other Banks (on a pro rata basis, based on such other Banks'
respective Commitment Percentages, as adjusted in accordance with this
Section) a portion of such other Banks' participation shares under Section
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3.3 in all Letters of Credit outstanding on such date and related rights,
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in an aggregate amount equal to such Additional Bank's or such Increasing
Bank's Commitment Percentage of such outstanding Letters of Credit. The
addition of any Additional Bank or the increase of the Commitment of an
Increasing Bank and the effects thereof as described in this Section shall
occur automatically upon satisfaction of the conditions specified above,
without the necessity for further documentation to be executed by the other
Banks. Neither Agent nor any Co-Agent nor any Bank shall have any
obligation to find or arrange for any Additional Bank, and no Bank shall
have any obligation to increase its Commitment.
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ARTICLE III
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Conditions Precedent
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3.1 Conditions. The effectiveness of this Amendment is subject to the
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satisfaction of the following conditions precedent:
(a) Interest and Fees. The Borrower shall pay to the
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Agent for the account of Fuji Bank all accrued interest
owing to Fuji Bank hereunder, all accrued fees on the
amount of Fuji Bank's Commitment which is terminated by
this Amendment, and all other amounts owing to Fuji
Bank under the Agreement other than the principal
amount of outstanding Advances.
(b) Outstanding Advances. The Banks shall pay to the
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Agent for the account of Fuji Bank their respective
Commitment Percentages (as adjusted pursuant to Section
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2.2 hereof) of outstanding Advances made by Fuji Bank.
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All amounts so paid shall constitute Advances by the
Banks and shall increase the outstanding principal
balances of their respective Notes accordingly.
(c) Note. Fuji Bank shall return to the Agent, for
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delivery to the Borrower, the original Note payable to
Fuji Bank, which Note shall be marked "cancelled."
(d) Representations and Warranties. The representations
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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.
(e) No Default. No Default shall have occurred and be
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continuing.
(f) Corporate Matters. All corporate proceedings taken
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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,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
(g) Additional Documentation. The Agent shall have
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received such additional approvals, opinions, or
documents as
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the Agent or its legal counsel, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ P.C., may reasonably request.
ARTICLE IV
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Ratifications, Representations and Warranties
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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.
4.2 Representations and Warranties. Borrower hereby represents and
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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
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Miscellaneous
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5.1 Survival of Representations and Warranties. All representations
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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.
5.2 Reference to Agreement. Each of the Loan Documents, including
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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
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such Loan Documents to the Agreement shall mean a reference to the
Agreement as amended hereby.
5.3 Expenses of the Agent. Borrower agrees to pay on demand all costs
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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.
5.4 Severability. Any provision of this Amendment held by a court of
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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.
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.
5.6 Successors and Assigns. This Amendment is binding upon and shall
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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.
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 .
5.8 Headings. The headings, captions, and arrangements used in this
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Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
5.9 Release of Claims. The Borrower and the Guarantors each hereby
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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,
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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.
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.
[REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURE PAGES FOLLOW.]
Executed as of the date first written above.
BORROWER:
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CELLSTAR CORPORATION
By:________________________________
Name:___________________________
Title:__________________________
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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:___________________________________________
Name:______________________________________
Title:_____________________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as a Co-Agent and a Bank
By:___________________________________________
Name:______________________________________
Title:_____________________________________
NATIONAL CITY BANK,
as a Co-Agent and a Bank
By:___________________________________________
Name:______________________________________
Title:_____________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:___________________________________________
Name:______________________________________
Title:_____________________________________
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THE FUJI BANK, LIMITED,
HOUSTON AGENCY
By:___________________________________
Name:______________________________
Title:_____________________________
▇▇▇▇▇ FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:___________________________________
Name:______________________________
Title:_____________________________
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:___________________________________
Name:______________________________
Title:_____________________________
CELLSTAR, LTD.
BY: National Auto Center, Inc.,
General Partner
By:___________________________________
Name:______________________________
Title:_____________________________
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CELLSTAR FULFILLMENT, LTD.
By: Cellstar Fulfillment, Inc.,
General Partner
By:______________________________
Name:_________________________
Title:________________________
CELLSTAR WEST, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
ACC-CELLSTAR, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
CELLSTAR FINANCO, INC.
By:___________________________________
Name:______________________________
Title:_____________________________
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CELLSTAR FULFILLMENT, INC.
By:_____________________________
Name:________________________
Title:_______________________
NAC HOLDINGS, INC.
By:_____________________________
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
CELLSTAR INTERNATIONAL CORPORATION/
ASIA
By:_____________________________
Name:________________________
Title:_______________________
AUDIOMEX EXPORT CORP.
By:_____________________________
Name:_________________________
Title:________________________
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
CORPORATION/SA
By:_____________________________
Name:_________________________
Title:________________________
CELLSTAR AIR SERVICES, INC.
By:_____________________________
Name:_________________________
Title:________________________
A & S AIR SERVICE, INC.
By:_____________________________
Name:_________________________
Title:________________________
CELLSTAR TELECOM, INC.
By:_____________________________
Name:_________________________
Title:________________________
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FLORIDA PROPERTIES, INC.
By:_______________________________
Name:___________________________
Title:__________________________
CELLSTAR GLOBAL SATELLITE
SERVICE, LTD.
By: National Auto Center, Inc.,
General Partner
By:__________________________
Name:______________________
Title:_____________________
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