EXHIBIT 10.2
THIRD AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
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This THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of July 31, 1996, is among NATIONAL AUTO CENTER, INC., a
Texas corporation (the "Borrower"), CELLSTAR CORPORATION, a Delaware corporation
(the "Parent"), 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"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association ("TCB"), as agent for itself and the other Banks and as issuer of
Letters of Credit under the Agreement (in such capacity, together with its
successors in such capacity, the "Agent").
RECITALS:
A. The Borrower, the Parent, the Banks and the Agent have entered into
that certain Amended and Restated Loan Agreement dated as of July 20, 1995, as
amended by that certain First Amendment to Amended and Restated Loan Agreement
dated as of February 29, 1996, and as further amended by that certain Second
Amendment to Amended and Restated Loan Agreement dated as of July 31, 1996 (the
"Agreement").
B. The Borrower, the Parent, the Agent and the Banks 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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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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Amendment
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Section 2.1 Debt. Effective as of the date hereof, subsection (b) of
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Section 10.1 of the Agreement is hereby amended to read in its entirety as
follows:
(b) Debt of the Foreign Subsidiaries, Debt of the Foreign
Affiliates, and Guarantees by the Borrower, the Parent or CellStar,
Ltd. of any Debt or other obligations of any of the Foreign
Subsidiaries or the Foreign Affiliates, all incurred when no Default
exists or would result therefrom, provided that the aggregate amount
of all such Debt and obligations (including such Debt existing on the
date hereof and described on Schedule 2 hereto) outstanding at any
time shall not exceed $30,000,000; and
ARTICLE III
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Conditions Precedent
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Section 3.1 Conditions. The effectiveness of this Amendment is subject to
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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 and Parent agree 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 and Parent each
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hereby represent and warrant to the Agent 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, 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 such Loan Documents to the Agreement shall mean a reference to the
Agreement as amended hereby.
Section 5.3 Expenses of the Agent. Each Company agrees to pay on demand
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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
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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. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
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EXECUTED PURSUANT HERETO 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 Parent, the Agent and the Banks
and their respective
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successors and assigns, except neither the Borrower nor the
Parent shall 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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NATIONAL AUTO CENTER, INC.
By: /S/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
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PARENT:
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CELLSTAR CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
AGENT AND BANKS:
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent and as a Bank
By: /s/ Xxxxx X. Xxxx
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Name: /s/ Xxxxx X. Xxxx
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Title: Vice President
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NATIONAL CITY BANK
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
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Title: V.P
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NBD BANK
By: /s/ Xxxxxxx X. XxXxxxxxx
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Name: Xxxxxxx X. XxXxxxxxx
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Title: Vice President
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BANK OF SCOTLAND
By: /s/ Xxxxxxxxx X. Omffrey
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Name: Xxxxxxxxx X. Omffrey
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Title: Vice President
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XXXXXX XXXXXXXXX XX XXXXX,
XXXXXXX AGENCY
By: 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.
CELLSTAR, LTD.
By: National Auto Center, Inc.,
General Partner
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
CELLSTAR FULFILLMENT, LTD.
By: CellStar Fulfillment, Inc.,
General Partner
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
CELLSTAR FULFILLMENT, INC.
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
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NAC HOLDINGS, INC.
By: R X. Xxxxx
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Xxxxxx Xxxx Xxxxxxxxx
President
AUDIOMEX EXPORT CORPORATION
By: Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
CELLSTAR INTERNATIONAL CORPORATION/ASIA
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
CELLSTAR AIR SERVICES, INC.
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
A & S AIR SERVICES, INC.
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
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CELLSTAR INTERNATIONAL
CORPORATION/SA
By: R X. Xxxxx
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Xxxxxxx X. Xxxxx
Executive Vice President
CELLSTAR WEST, INC.
By: Xxxxxx X. Xxxxxxxxx
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Xxxxxx Xxxx Xxxxxxxxx
Vice President
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