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EXHIBIT 10.18
CONSENT AND AMENDMENT NO. 4
TO
LOAN AND SECURITY AGREEMENT
THIS CONSENT AND AMENDMENT NO. 4 ("Amendment") is entered into as of
June 7, 1999, by and among Let's Talk Cellular & Wireless, Inc., a corporation
organized under the laws of the State of Florida ("LTC"), Telephone Warehouse,
Inc., a corporation organized under the laws of the State of Delaware ("TWI"),
Cellular Warehouse Inc., a corporation organized under the laws of the State of
Georgia ("CWI"), Cellular USA, a corporation organized under the laws of the
State of Nevada ("USA") and Sosebee Enterprises, Inc., a corporation organized
under the laws of the State of Georgia ("SEI") (LTC, TWI, CWI, USA, SEI and
NCI, each a "Borrower" and jointly and severally, the "Borrowers"), the
undersigned financial institutions (each, a "Lender" and collectively, the
"Lenders") and The Chase Manhattan Bank, a corporation organized under the laws
of the State of New York ("Chase") as agent for Lenders (Chase in such
capacity, the "Agent").
BACKGROUND
Borrowers, Agent and Lenders are parties to a Loan and Security
Agreement dated as of April 2, 1998 (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement"), pursuant to which
Agent and Lenders provide Borrowers with certain financial accommodations.
Borrowers have requested that Agent and Lenders amend certain
provisions of the Loan Agreement and consent to Borrowers' use of certain
proceeds to purchase additional Inventory and Agent and Lenders are willing to
do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by Agent
and Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. CONSENT. Agent and Lenders hereby consent to the use by Borrowers
of the proceeds of (1) the sale by National Cellular Incorporated ("NCI") of
certain of its inventory and other assets to National Cellular Investors, L.P.
on or about March 22, 1999 and (ii) the sale by LTC of certain of its store
leases, furniture, improvements, fixtures and other assets at such store
locations for the purchase of additional Inventory.
3. AMENDMENTS TO LOAN AGREEMENT. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
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(a) The following defined terms are added to Section 1.2 of
the Loan Agreement in their appropriate alphabetical order:
"AMENDMENT NO. 4" shall mean Amendment No. 4 to this
Agreement dated as of June , 1999.
"AMENDMENT NO. 4 EFFECTIVE DATE" shall mean the date on which
all of the conditions precedent contained in Section 4 of Amendment
No. 4 shall have been satisfied.
(b) Section 2.1 (y)(ii)(B) of the Loan Agreement is hereby
amended in its entirety to provide as follows:
"(B) (a) $6,500,000 for the period beginning on
April 30, 1999 and ending on June 29, 1999, (b) $6,750,000 for the
period beginning June 30, 1999 and ending on July 30, 1999, (c)
$7,000,000 for the period beginning July 31, 1999 and ending on August
30, 1999, (d) $7,500,00 for the period beginning August 31, 1999 and
ending on December 30, 1999 and (e) $6,000,000 from and after December
31, 1999."
(c) Section 2.2(h) of the Loan Agreement is amended in its
entirety to provide as follows:
"2.2(h) REDUCTION PERIOD. Borrowers shall reduce all
outstanding Revolving Advances to not more than $9,000,000 and not
permit outstanding Revolving Advances to be more than $9,000,000 for
the period of March 1, 2000 through and including April 15, 2000."
(d) The second sentence of Section 9.2 of the Loan Agreement
is hereby amended by adding the following at the end thereof:
"including, without limitation, a reconciliation of all sums
remitted to H.I.G. Capital LLC ("HIGLLC") with respect to Receivables
sold or transferred by LTC to HIGLLC pursuant to an Assignment of
Account Receivables dated this date between LTC and HIGLLC
("Assignment Agreement")."
4. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
upon satisfaction of the following conditions precedent: Agent shall have
received (1) four (4) copies of this Amendment executed by each Borrower and
each Lender, (ii) a non-refundable waiver and amendment fee in the amount of
$50,000 and all legal fees, (iii) a duly executed copy of each of the
Assignment Agreement in form and substance satisfactory to Agent and the
Agreement dated this date among Agent, Lenders, LTC and HIGLLC in form and
substance satisfactory to Agent, Lenders and their counsel and (iv) such other
certificates, instruments, documents, agreements and opinions of counsel as may
be required by Agent, Lenders or their
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counsel, each of which shall be in form and substance satisfactory to Agent,
Lenders and their counsel.
5. CONSULTANTS. Borrowers agree to pay Agent for all costs incurred by
Agent in arranging for a consultant to meet with management of Borrowers and
all costs incurred by consultant in connection with assessing and reviewing
Borrowers' operating budget for fiscal 2000.
6. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent and
warrant as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and are
enforceable against Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrowers
hereby reaffirm all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade
as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrowers have no defense, counterclaim or offset with
respect to the Loan Agreement.
7. EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement, and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of
Lender, nor constitute a waiver of any provision of the Loan Agreement, or any
other documents, instruments or agreements executed and/or delivered under or
in connection therewith.
8. GOVERNING LAW. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
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9. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
10. COUNTERPARTS. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed an original and all
of which when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first written above.
LET'S TALK CELLULAR & WIRELESS, INC.
By: /s/ Daniel Cammarata
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Name: DANIEL CAMMARATA
Title: Chief Financial Officer
TELEPHONE WAREHOUSE, INC.
By: /s/ Daniel Cammarata
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Name: DANIEL CAMMARATA
Title: Chief Financial Officer
CELLULAR WAREHOUSE, INC.
By: /s/ Daniel Cammarata
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Name: DANIEL CAMMARATA
Title: Chief Financial Officer
CELLULAR USA
By: /s/ Daniel Cammarata
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Name: DANIEL CAMMARATA
Title: Chief Financial Officer
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SOSEBEE ENTERPRISES, INC.
By: /s/ Daniel Cammarata
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Name: Daniel Cammarata
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, as Agent and a
Lender
By: /s/ Paula C. Cummings
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Name: Paula C. Cummings
Title: Vice President
Commitment Percentage: 25%
NATIONSBANK, N.A., Lender
By: /s/ Oscar A. Bruni, Jr.
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Name: Oscar A. Bruni, Jr.
Title: Vice President
Commitment Percentage: 25%
IBJ WHITEHALL BANK & TRUST COMPANY,
Lender
By: /s/ Patricia G. McCormack
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Name: Patricia G. McCormack
Title: Director
Commitment Percentage: 25%
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES, Lender
By: /s/ Hugh E. Johnson
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Name: Hugh E. Johnson
Title: Vice President
Commitment Percentage: 25%
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