Exhibit 10.32
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
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This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of December 20, 2000, is among CELLSTAR CORPORATION, a
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Delaware corporation (the "Borrower"), each of the banks or other lending
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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"), BANK ONE, NA (formerly known as
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The First National Bank of Chicago), as syndication agent (the "Syndication
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Agent"), NATIONAL CITY BANK, as documentation agent (the "Documentation Agent"),
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THE CHASE MANHATTAN BANK (successor by merger to Chase Bank of Texas, National
Association, formerly known as Texas Commerce Bank National Association), a New
York banking corporation ("Chase"), as agent for itself and the other Banks, as
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issuer of Letters of Credit under the Agreement, and as the swing line lender
(in such capacities, together with its successors in such capacities, the
"Administrative Agent"), and as alternate currency agent (in such capacity,
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together with its successors in such capacity, the "Alternate Currency Agent").
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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, as amended by that certain First Amendment to Amended and Restated Credit
Agreement dated as of November 23, 1999, as further amended by that certain
Second Amendment to Amended and Restated Credit Agreement dated as of July 12,
2000, and as further amended by that certain Third Amendment to Amended and
Restated Credit Agreement dated as of November 10, 2000 (the "Agreement").
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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
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1.1 Definitions. Capitalized terms used in this Amendment, to the extent
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not otherwise defined herein, shall have the same meanings as in the Agreement,
as amended hereby.
ARTICLE II
Amendments
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2.1 Compliance Certificate. Effective as of the date hereof, subsection
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(d) of Section 9.1 of the Agreement is hereby amended to read in its entirety as
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follows:
(d) Compliance Certificate. (i) Concurrently with the delivery of
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each of the financial statements referred to in subsections 9.1(a) and (b),
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a Compliance Certificate showing calculation of the financial covenants,
and (ii) unless the appropriate parties hereto have entered into an
amendment to this Agreement on or before February 5, 2001, pursuant to
which Borrower has demonstrated that it is and will be in compliance with
all covenants, terms and provisions of this Agreement as amended by such
amendment, or the Obligations have been refinanced on or before such date,
Borrower will furnish to the Agent and each Bank on or before February 5,
2001, a Compliance Certificate showing calculation of the financial
covenants as of November 30, 2000 and that Borrower and the Subsidiaries
are in compliance with all terms, covenants and provisions of this
Agreement, provided that Borrower acknowledges that the Agent and the Banks
do not and shall not have any commitment or obligation to enter into any
such amendment or refinancing, and none of the Banks or the Agent have made
any representation or warranty regarding any such amendment or refinancing
to Borrower or any other Person;
2.2 Dominion of Funds. Effective as of the date hereof, Article IX of the
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Credit Agreement is hereby amended to add Section 9.13 to the end thereof, which
Section 9.13 shall read in its entirety as follows:
Section 9.13 Dominion of Funds. (a) On or before February 5, 2001,
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the Borrower will cause the Administrative Agent to be given full dominion
over the cash of the Borrower and the Domestic Subsidiaries by means of a
lockbox arrangement and other appropriate documentation and arrangements
which provide for payment of accounts receivable of the Borrower and the
Domestic Subsidiaries by the account debtors to the Administrative Agent
for daily application to pay down the outstanding Advances. Without in any
way limiting the foregoing, appropriate depository accounts, including
without limitation one or more accounts subject to withdrawal by the
Administrative Agent only ("Dominion Accounts") and one or more controlled
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disbursement accounts, shall be established with the Administrative Agent
and appropriate instructions and other agreements shall be executed with
regard to the lockbox arrangement and such accounts maintained with the
Administrative Agent. Amounts so paid down may be reborrowed under this
Agreement subject to the terms and conditions set forth in this Agreement,
as amended in accordance with subsection (c) of this Section, and the
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Borrowing Base reports delivered hereunder. For purposes of such dominion
of funds arrangements, including daily paydowns and reborrowings, Borrower
may be required to deliver Borrowing Base reports on a more frequent basis
than is currently required.
(b) Without in any way limiting the foregoing, on or before February
5, 2001, the Borrower shall, at its own cost and expense, arrange or cause
to be arranged for remittances on all Accounts (as defined in the Borrower
Security Agreement and each Guarantor Security Agreement) to be made
directly to one or more lockboxes designated by the Administrative Agent in
such manner as the Administrative Agent may direct. All remittances on all
Accounts processed through such lockbox(es) shall be promptly deposited in
one or more Dominion Accounts designated by the Administrative Agent. All
remittances and payments that are deposited in accordance with the
foregoing will be promptly applied by the Administrative Agent to reduce
the outstanding balance of the Advances, subject to the continued accrual
of interest on the outstanding Advances to which such remittances and
payments are applied for one (1) Business Day (or two Business Days in the
case of remittances and payments received after 12:00 noon) and in any
event subject to final collection in cash of the item deposited. Subject to
the terms and conditions of this Agreement, as amended in accordance with
subsection (c) of this
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Section, Advances may be made for the purpose of crediting one or more
controlled disbursement accounts in amounts sufficient to permit payment of
checks, drafts, wire transfer requests and other items issued by Borrower
or a Domestic Subsidiary, as applicable, and presented for payment against
such accounts, and to pay charge backs or other debits affecting the
amounts available in the Dominion Accounts.
(c) In connection with establishing the foregoing dominion of funds
arrangements, the Borrower, the Administrative Agent and the Banks shall
execute and deliver and cause to be executed and delivered, on or before
February 5, 2001, such additional amendments to this Credit Agreement and
to any other Loan Documents as the Administrative Agent may require and
shall execute and deliver and cause to be executed and delivered such other
documents and agreements as the Administrative Agent may require.
Amendments to this Agreement may include such provisions as may be
necessary to provide for Advances to credit any controlled disbursement
account, subject to the terms and conditions of this Agreement as amended,
and to provide for arrangements between the Administrative Agent and the
Banks with respect to making Advances and payments, including periodic
settlements. The Borrower shall deliver or cause to be delivered to the
Administrative Agent such information as the Administrative Agent may
require to establish the dominion of funds arrangements in accordance with
this Section and shall cooperate in all respects in the establishment of
such dominion of funds arrangements and all related documents and
arrangements.
2.3 Companies Interest Coverage Ratio. Effective as of the date hereof,
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each reference to the date "October 31, 2000" appearing in Section 11.3 of the
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Agreement is hereby amended to read "November 30, 2000."
ARTICLE III
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) Amendment Fee. Borrower shall have paid to the Administrative
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Agent, for the account of each Bank that executes and delivers this
Amendment, an amendment fee in an amount equal to the Commitment of each
such Bank multiplied by 12.5 basis points.
(b) 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.
(c) No Default. No Default shall have occurred and be continuing.
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(d) 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 Administrative Agent and its legal counsel, Xxxxx Xxxxxxx & Xxxx
LLP.
(e) Additional Documentation. The Administrative Agent shall have
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received such additional approvals, opinions, or documents as the
Administrative Agent or its legal counsel, Xxxxx Liddell & Xxxx LLP, may
reasonably request.
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ARTICLE IV
Ratifications, Representations and Warranties
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4.1 Ratifications. The terms and provisions set forth in this Amendment
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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 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
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5.1 Survival of Representations and Warranties. All representations and
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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
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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
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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.
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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 CONTAINED IN
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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 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
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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. This Amendment shall not be effective unless and until the Agent,
the requisite Banks, the Borrower and the Guarantors have each executed and
delivered a counterpart hereof; provided, however that execution and delivery by
Holdings shall not be required for effectiveness of this Amendment, but Holdings
shall execute and deliver this Amendment no later than January 31, 2001, and
failure to do so by such date shall constitute an Event of Default under the
Agreement.
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 defenses,
counterclaims, offsets, cross-complaints, claims or demands of any kind or
nature whatsoever to or against the Administrative Agent, the Alternate Currency
Agent, the Syndication Agent, the Documentation Agent, any of the Banks or 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 that neither the Borrower nor any of the Guarantors has any right
to seek affirmative relief or damages of any kind or nature from the
Administrative Agent, the Alternate Currency Agent, the Syndication Agent, the
Documentation Agent or any of the Banks. To the extent any such defenses,
counterclaims, offsets, cross-complaints, claims, demands or rights exist,
Borrower and the Guarantors each hereby waives, and hereby knowingly and
voluntarily releases and forever discharges the Administrative Agent, the
Alternate Currency Agent, the Syndication Agent, the Documentation Agent, each
of the Banks and their respective predecessors, officers, directors, agents,
attorneys, employees, successors and assigns, from all possible claims, demands,
actions, causes of action, defenses, counterclaims, offsets, cross-complaints,
damages, costs, expenses and liabilities whatsoever, 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
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AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT EMBODY
THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
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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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CELLSTAR CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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AGENTS AND BANKS:
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THE CHASE MANHATTAN BANK (successor by merger
to 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
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Xxxxx X. Xxxx
Vice President
BANK ONE, NA (formerly known as The First
National Bank of Chicago), as Syndication
Agent and as a Bank
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
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Title: Vice President
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NATIONAL CITY BANK,
as Documentation Agent and as a Bank
By: /s/ XXX XXXXXXX
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Name: Xxx Xxxxxxx
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXXXX XXX
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Name: Xxxxxx Xxx
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Title: Sr. Vice President
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XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
(formerly known as Xxxxx Fargo Bank (Texas),
National Association)
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
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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.
NATIONAL AUTO CENTER, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR, LTD.
By: National Auto Center, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR FULFILLMENT, LTD.
By: CellStar Fulfillment, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR FINANCO, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR FULFILLMENT, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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NAC HOLDINGS, INC.
By: /s/ XXXXXX XXXX XXXXXXXXX
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Xxxxxx Xxxx Xxxxxxxxx
President
CELLSTAR INTERNATIONAL CORPORATION/ASIA
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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AUDIOMEX EXPORT CORP.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR INTERNATIONAL CORPORATION/SA
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR AIR SERVICES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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A & S AIR SERVICE, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR TELECOM, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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FLORIDA PROPERTIES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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CELLSTAR GLOBAL SATELLITE SERVICE, LTD.
By: National Auto Center, Inc.,
General Partner
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: Sr. Vice President
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