Exhibit 10.4
FOURTH AMENDMENT
TO LOAN AGREEMENT
This FOURTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is
effective as of May 9th, 2002 and entered into this 29th day of July, 2002, by
and among CELLSTAR CORPORATION, a Delaware corporation ("Parent"), each of
Parent's Subsidiaries signatory hereto (together with Parent, each an individual
"Borrower," and collectively, the "Borrowers"), the lenders signatory hereto
(the "Lenders"), and FOOTHILL CAPITAL CORPORATION, in its capacity as agent (the
"Agent") for the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders and the Agent have entered
into that certain Loan and Security Agreement dated as of September 28, 2001, as
amended by that certain First Amendment to Loan Agreement dated as of October
12, 2001, as further amended by that certain Second Amendment to Loan Agreement
dated as of February 11, 2002, and as further amended by that certain Third
Amendment and Waiver to Loan Agreement dated as of May 9, 2002 (as the same may
be further modified, amended, restated or supplemented from time to time, the
"Loan Agreement"), pursuant to which the Lenders have agreed to make loans and
other financial accommodations to the Borrowers from time to time; and
WHEREAS, prior to the date hereof, the Agent and the Lenders
amended the Loan Agreement and/or made such necessary waivers to permit the
Borrowers to implement the Restructuring Plan (as defined in the Loan Agreement)
and;
WHEREAS, the Borrowers have requested that the Agent and the
Lenders amend the Loan Agreement to exclude the Restructuring Expenses (as
defined in the Loan Agreement) from the definition of Fixed Charge Coverage
Ratio; and
WHEREAS, the Agent and the Lenders have agreed to the
requested amendment on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree that all capitalized terms
not otherwise defined herein shall have the meanings ascribed to such terms in
the Loan Agreement and further agree as follows:
1. Amendment to Section 1.1 of the Loan Agreement. Section 1.1 of
the Loan Agreement, "Definitions," is hereby modified and amended by deleting
the existing definition of "Fixed Charge Coverage Ratio" and inserting the
following definition in substitution thereof:
""Fixed Charge Coverage Ratio" means, with respect to any
Person during any fiscal period and without duplication, the ratio for such
Person during such fiscal period, of (a) EBITDA, minus (i) cash capital
expenditures, minus (ii) tax expense (excluding amounts to be
offset by any net operating losses) for such Person during such fiscal period,
plus cash tax refunds received in such period, plus (iii) Restructuring Expenses
incurred during such fiscal period, to (b) (i) principal payments made by such
Person on any Indebtedness during such fiscal period (other than refinancings
permitted by Section 7.1(d), payments on Advances, payments on revolving loans
under any Permitted Foreign Subsidiary Credit Facility to the extent available
to be reborrowed under such facility or cash collateral is released as a result
thereof, payments under any Permitted Foreign Subsidiary Credit Facility with an
initial term, including any permitted extensions thereof, of six (6) months or
less, cash payments on the Convertible Subordinated Debt required by Section
6.16, and refinancings of debt of a Foreign Subsidiary with the proceeds of a
credit facility obtained by another Foreign Subsidiary within the same non-U.S.
geographic region) and (ii) cash interest expense minus cash interest income
during such fiscal period."
2. No Other Amendments or Waivers. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Agent or the Lenders under the Loan Agreement or any of
the other Loan Documents, nor constitute a waiver of any provision of the Loan
Agreement or any of the other Loan Documents. Except for the amendment set forth
above, the text of the Loan Agreement and all other Loan Documents shall remain
unchanged and in full force and effect and each Borrower hereby ratifies and
confirms its obligations thereunder. This Amendment shall not constitute a
modification of the Loan Agreement or a course of dealing with the Agent or the
Lenders at variance with the Loan Agreement such as to require further notice by
the Agent or the Lenders to require strict compliance with the terms of the Loan
Agreement and the other Loan Documents in the future, except as expressly set
forth herein. Each Borrower acknowledges and expressly agrees that the Agent and
the Lenders reserve the right to, and do in fact, require strict compliance with
all terms and provisions of the Loan Agreement and the other Loan Documents. The
Borrowers have no knowledge of any challenge to the Agent's or any Lenders'
claims arising under the Loan Documents, or to the effectiveness of the Loan
Documents.
3. Conditions Precedent to Effectiveness. This Amendment shall become
effective as of the date hereof when, and only when, the Agent shall have
received each of the following:
(a) fully executed and delivered counterparts of this Amendment by
the Borrowers, the Lenders and the Agent; and
(b) such other information, documents, instruments or approvals as
the Agent or the Agent's counsel may reasonably require.
4. Representations and Warranties of Borrowers. Each Borrower represents
and warrants to the Agent and the Lenders as follows:
(a) Each Borrower is a corporation or limited partnership organized
or formed, as the case may be, validly existing and in good standing under the
laws of the jurisdiction indicated on the signature pages hereto and in all
other jurisdictions in which the failure to be so qualified reasonably could be
expected to constitute a Material Adverse Change;
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(b) The execution, delivery, and performance by each Borrower of this
Amendment and the Loan Documents to which it is a party, as amended hereby, are
within such Borrower's corporate or partnership authority, have been duly
authorized by all necessary corporate or partnership action and do not and will
not (i) violate any provision of federal, state, or local law or regulation
applicable to such Borrower, the Governing Documents of any Borrower, or any
order, judgment, or decree of any court or other Governmental Authority binding
on any Borrower, (ii) conflict with, result in a breach of, or constitute (with
due notice or lapse of time or both) a default under any material contractual
obligation of any Borrower, (iii) result in or require the creation or
imposition of any Lien of any nature whatsoever upon any properties or assets of
any Borrower, other than Permitted Liens, or (iv) require any approval of any
Borrower's shareholders, partners, or members or any approval or consent of any
Person under any material contractual obligation of any Borrower;
(c) The execution, delivery, and performance by each Borrower of this
Amendment and the Loan Documents to which it is a party, as amended hereby, do
not and will not require any registration with, consent, or approval of, or
notice to, or other action with or by, any Governmental Authority or other
Person;
(d) This Amendment and each other Loan Document to which each Borrower
is a party, and all other documents contemplated hereby and thereby, when
executed and delivered by each Borrower will be the legally valid and binding
obligations of such Borrower, enforceable against each Borrower in accordance
with their respective terms, except as enforcement may be limited by equitable
principles or by bankruptcy, insolvency, reorganization, moratorium, or similar
laws relating to or limiting creditors' rights generally; and
(e) No Default or Event of Default is existing.
5. Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which, taken
together, shall constitute one and the same agreement. In proving this Amendment
in any judicial proceedings, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such enforcement
is sought. Any signatures delivered by a party by facsimile transmission shall
be deemed an original signature hereto.
6. Reference to and Effect on the Loan Documents. Upon the effectiveness
of this Amendment, on and after the date hereof each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof" or words of like import
referring to the Loan Agreement, and each reference in the other Loan Documents
to "the Loan Agreement" "thereunder," "thereof" or words of like import
referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as amended hereby.
7. Costs, Expenses and Taxes. The Borrowers agree to pay on demand all
reasonable costs and expenses in connection with the preparation, execution, and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent with respect thereto and with
respect to advising the Agent as to its rights and responsibilities hereunder
and thereunder.
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8. Governing Law. This Amendment shall be deemed to be made pursuant to
the laws of the State of Georgia with respect to agreements made and to be
performed wholly in the State of Georgia, and shall be construed, interpreted,
performed and enforced in accordance therewith, without reference to the
conflict or choice of laws provisions thereof.
9. Loan Document. This Amendment shall be deemed to be a Loan Document
for all purposes.
[The remainder of the page is intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the day and year first written above.
BORROWERS: CELLSTAR CORPORATION,
a Delaware corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
---------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR, LTD., a Texas limited
partnership
By: National Auto Center, Inc.
its General Partner
/s/ Xxxxxx Xxxx Xxxxxxxxx
---------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
NATIONAL AUTO CENTER, INC., a Delaware
corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
---------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR AIR SERVICES, INC., a Delaware
corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
---------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
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CELLSTAR TELECOM, INC.,
a Delaware corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR FINANCO, INC., a Delaware
corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
A&S AIR SERVICE, INC., a Delaware
Corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR INTERNATIONAL CORPORATION/SA,
a Delaware corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
CELLSTAR FULFILLMENT, INC., a Delaware
corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
-------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
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CELLSTAR INTERNATIONAL CORPORATION/ASIA,
a Delaware Corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
----------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
AUDIOMEX EXPORT CORP.,
a Texas corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
----------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
NAC HOLDINGS, INC., a Nevada corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
----------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: President
CELLSTAR GLOBAL SATELLITE SERVICES, LTD.,
a Texas limited partnership
By: National Auto Center, Inc.
Its: General Partner
/s/ Xxxxxx Xxxx Xxxxxxxxx
----------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
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CELLSTAR FULFILLMENT LTD., a Texas
limited partnership
By: CellStar Fulfillment, Inc.
its General Partner
/s/ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
FLORIDA PROPERTIES, INC.,
a Texas corporation
/s/ Xxxxxx Xxxx Xxxxxxxxx
--------------------------------------
By: Xxxxxx Xxxx Xxxxxxxxx
Title: Sr. VP and General Counsel
AGENT AND LENDERS: FOOTHILL CAPITAL
CORPORATION, a California corporation,
as Agent and as a Lender
/s/ Xxxxxx Xxxxxxx
--------------------------------------
By: Xxxxxx Xxxxxxx
-------------------------------
Title: Vice President
-------------------------------
FLEET CAPITAL CORPORATION , as a Lender
/s/ E. Xxxxx Xxxxxxxxxx
--------------------------------------
By: E. Xxxxx Xxxxxxxxxx
-------------------------------
Title: Vice President
-------------------------------
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TEXTRON FINANCIAL CORPORATION, as a
Lender
/s/ Xxxxxxx X. Xxxxx
------------------------------------
By: Xxxxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
-----------------------------
PNC BANK NATIONAL ASSOCIATION, as a
Lender
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
-----------------------------
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