Exhibit 10.46
FIFTEENTH AMENDMENT AND WAIVER TO
LOAN AGREEMENT
This FIFTEENTH AMENDMENT AND WAIVER
TO LOAN AGREEMENT (this “ Amendment ”) is dated
as of February 10, 2006, 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 WELLS FARGO FOOTHILL, INC. , in its capacity as agent
for the Lenders (the “ Agent ”).
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, as
further amended by that certain Third Amendment and Waiver to Loan
Agreement dated as of May 9, 2002, as further amended by that
certain Fourth Amendment to Loan Agreement effective as of
May 9, 2002, as further amended by that certain Fifth
Amendment to Loan Agreement dated as of November 13, 2002, as
further amended by that certain Sixth Amendment to Loan Agreement
dated as of February 6, 2003, as further amended by that
certain Seventh Amendment to Loan Agreement dated as of
February 28, 2003, as further amended by that certain Eighth
Amendment and Waiver to Loan and Security Agreement dated as of
May 31, 2003, as further amended by that certain Consent and
Waiver and Ninth Amendment to Loan and Security Agreement dated as
of February 24, 2004, as further amended by that certain Tenth
Amendment to Loan Agreement dated as of March 31, 2004, as
further amended by that certain Eleventh Amendment and Waiver to
Loan Agreement dated as of August 31, 2004, as further amended
by that certain Twelfth Amendment and Waiver to Loan Agreement
dated as of February 10, 2005, as further amended by that
certain Thirteenth Amendment and Waiver to Loan Agreement dated as
of May 13, 2005, and as further amended by that certain
Fourteenth Amendment and Waiver to Loan Agreement dated as of
October 7, 2005 (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;
WHEREAS, the Borrowers have
requested that the Agent and the Lenders amend and waive certain
terms of the Loan Agreement; and
WHEREAS, the Agent and the Lenders
have agreed to the requested amendments and waivers 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. Amendments 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 “ EBITDA
” set forth therein and inserting the following definition in
substitution thereof:
““ EBITDA ”
means, with respect to any Person during any fiscal period,
(a) net earnings (or loss), minus (b) extraordinary
gains, plus (c)(i) extraordinary losses, plus (ii) with
respect only to the EBITDA calculation for the quarter ended
November 30, 2005, losses resulting from discontinuation of
operations incurred during the fiscal quarter ended
November 30, 2005, in an amount not to exceed $3,000,000,
(iii) all non-cash expenses not associated with Collateral,
(iv) interest expense (including factoring costs associated
with sale of Accounts), (v) income taxes, and
(vi) depreciation and amortization for such period, as
determined in accordance with GAAP.”
2. Waivers .
(a) Subject to the terms and
conditions set forth herein, the Agent and the Lenders hereby waive
compliance with, and waive the Defaults and Events of Default
arising under the Loan Agreement applicable to, Borrowers’
failure to maintain the required Minimum EBITDA for the quarter
ended November 30, 2005 and as required under
Section 7.20(a) of the Loan Agreement.
(b) In no event shall the waivers
set forth above waive any other requirement or hinder, restrict or
otherwise modify the rights and remedies of the Agent and the
Lenders following the occurrence of any other failure to comply
with Section 7.20, or the occurrence of any Default or Event
of Default under the Loan Agreement.
3. No Other Amendments or
Waivers . Except as set forth in Section 2 above, 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
amendments and waivers 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 th
