EXHIBIT 10.31
FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
-----------------------------
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of November 23, 1999, 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, as syndication agent (the "Syndication Agent"), NATIONAL CITY BANK, as
-----------------
documentation agent (the "Documentation Agent"), CHASE BANK OF TEXAS, NATIONAL
-------------------
ASSOCIATION (formerly known as Texas Commerce Bank National Association), a
national banking association ("CBT"), 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
"Administrative Agent"), and THE CHASE MANHATTAN BANK, as alternate currency
---------------------
agent (in such capacity, together with its successors in such capacity, the
"Alternate Currency Agent").
-------------------------
RECITALS:
A. The Borrower, the Banks, the Syndication Agent, the Documentation
Agent, the Administrative Agent and the Alternate Currency Agent have entered
into that certain Amended and Restated Credit Agreement dated as of August 2,
1999 (the "Agreement").
---------
B. The Borrower, the Banks, the Syndication Agent, the Documentation
Agent, the Administrative Agent and the Alternate Currency 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
---------
Definitions
-----------
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
----------
Amendments
----------
2.1 Amendment to Section 10.5(i)(F). Effective as of the date hereof, the
-------------------------------
dollar amount "$20,000,000" appearing in Section 10.5(i)(F) of the Agreement is
hereby amended to read "$15,000,000".
2.2 Amendment to Section 10.5(i)(H). Effective as of the date hereof, the
-------------------------------
dollar amount "$80,000,000" appearing in Section 10.5(i)(H) of the Agreement is
hereby amended to read "$100,000,000".
ARTICLE III
-----------
Conditions Precedent
--------------------
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 Administrative Agent and its legal counsel, Xxxxxxxx Xxxxxxxx &
Xxxxxx P.C.
(d) Additional Documentation. The Administrative Agent shall have
------------------------
received such additional approvals, opinions, or documents as the
Administrative Agent or its legal counsel, Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.,
may reasonably request.
ARTICLE IV
----------
Ratifications, Representations and Warranties
---------------------------------------------
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.
-2-
4.2 Representations and Warranties. Borrower hereby represents and
------------------------------
warrants to the Administrative 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
-------------
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
Administrative Agent or any Bank or any closing shall affect the representations
and warranties or the right of the Administrative Agent or any Bank to rely upon
them.
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.
5.3 Expenses of the Administrative Agent. Borrower agrees to pay on
------------------------------------
demand all costs and expenses incurred by the Administrative 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 Administrative Agent's legal counsel, and
all costs and expenses incurred by the Administrative 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 Administrative Agent's legal counsel.
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.
5.5 APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN
--------------
THE OTHER LOAN DOCUMENTS, THIS AMENDMENT AND ALL OTHER
-3-
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
----------------------
inure to the benefit of the Borrower, the Banks, the Syndication Agent, the
Documentation Agent, the Administrative Agent and the Alternate Currency 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 Administrative Agent.
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.
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.
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 Administrative Agent, the
Alternate Currency Agent, the Syndication Agent, the Documentation 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.
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.
-4-
Executed as of the date first written above.
BORROWER:
--------
CELLSTAR CORPORATION
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
AGENTS AND BANKS:
----------------
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION (formerly known as
Texas Commerce Bank National Association), as
Administrative Agent and as a Bank
By: \s\ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent and as a Bank
By: \s\ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
NATIONAL CITY BANK,
as Documentation Agent and as a Bank
By: \s\ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: Vice President
-5-
THE CHASE MANHATTAN BANK,
as Alternate Currency Agent and as a Bank
By: \s\ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: \s\ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
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\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
-6-
CELLSTAR, LTD.
By: National Auto Center, Inc.,
General Partner
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
CELLSTAR FULFILLMENT, LTD.
By: CellStar Fulfillment, Inc.,
General Partner
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
CELLSTAR WEST, INC.
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
ACC-CELLSTAR, INC.
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
-7-
CELLSTAR FINANCO, INC.
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
CELLSTAR FULFILLMENT, INC.
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
NAC HOLDINGS, INC.
By: \s\ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: President
CELLSTAR INTERNATIONAL CORPORATION/
ASIA
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
AUDIOMEX EXPORT CORP.
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
-8-
CELLSTAR INTERNATIONAL
CORPORATION/SA
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
CELLSTAR AIR SERVICES, INC.
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
A & S AIR SERVICE, INC.
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
CELLSTAR TELECOM, INC.
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
-9-
FLORIDA PROPERTIES, INC.
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
CELLSTAR GLOBAL SATELLITE
SERVICE, LTD.
By: National Auto Center, Inc.,
General Partner
By:\s\ Xxxxxx Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxx Xxxxxxxxx
Title: Vice President
-10-
