EXHIBIT 10.4
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of March 29, 2005, by and between STAR SOLUTIONS OF DELAWARE, INC., a
Delaware corporation ("Borrower"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION
("Bank").
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms
and conditions of that certain Credit Agreement between Borrower and Bank dated
as of February 28, 2005, as amended from time to time ("Credit Agreement").
WHEREAS, Bank and Borrower have agreed to certain changes in the terms
and conditions set forth in the Credit Agreement and have agreed to amend the
Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:
1. Section 1.1. (b) is hereby deleted in its entirety, and the
following substituted therefor:
" (b) Limitation on Borrowings. Outstanding borrowings under the Line
of Credit, to a maximum of the principal amount set forth above, shall not at
any time exceed an aggregate of eighty percent (80%) of Borrower's eligible
accounts receivable, plus the amount of $350,000.00 from March 29, 2005 through
April 15, 2005. All of the foregoing shall be determined by Bank upon receipt
and review of all collateral reports required hereunder and such other documents
and collateral information as Bank may from time to time require. Borrower
acknowledges that said borrowing base was established by Bank with the
understanding that, among other items, the aggregate of all returns, rebates,
discounts, credits and allowances for the immediately preceding three (3) months
at all times shall be less than five percent (5%) of Borrower's gross sales for
said period. If such dilution of Borrower's accounts for the immediately
preceding three (3) months at any time exceeds five percent (5%) of Borrower's
gross sales for said period, or if there at any time exists any other matters,
events, conditions or contingencies which Bank reasonably believes may affect
payment of any portion of Borrower's accounts, Bank, in its sole discretion, may
reduce the foregoing advance rate against eligible accounts receivable to a
percentage appropriate to reflect such additional dilution and/or establish
additional reserves against Borrower's eligible accounts receivable.
As used herein, "eligible accounts receivable" shall consist solely of
trade accounts created in the ordinary course of Borrower's business, upon which
Borrower's right to receive payment is absolute and not contingent upon the
fulfillment of any condition whatsoever, and in which Bank has a perfected
security interest of first priority, and shall not include:
(i) any account which is more than ninety (90) days past due;
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(ii) that portion of any account for which there exists any
right of setoff, defense or discount (except regular discounts allowed
in the ordinary course of business to promote prompt payment) or for
which any defense or counterclaim has been asserted;
(iii) any account which represents an obligation of any state
or municipal government or of the United States government or any
political subdivision thereof (except accounts which represent
obligations of the United States government and for which the
assignment provisions of the Federal Assignment of Claims Act, as
amended or recodified from time to time, have been complied with to
Bank's satisfaction);
(iv) any account which represents an obligation of an account
debtor located in a foreign country;
(v) any account which arises from the sale or lease to or
performance of services for, or represents an obligation of, an
employee, affiliate, partner, member, parent or subsidiary of Borrower;
(vi) that portion of any account, which represents interim or
progress xxxxxxxx or retention rights on the part of the account
debtor;
(vii) any account which represents an obligation of any
account debtor when twenty percent (20%) or more of Borrower's accounts
from such account debtor are not eligible pursuant to (i) above;
(viii) that portion of any account from an account debtor
which represents the amount by which Borrower's total accounts from
said account debtor exceeds twenty-five percent (25%) of Borrower's
total accounts;
(ix) any account deemed ineligible by Bank when Bank, in its
sole discretion, deems the creditworthiness or financial condition of
the account debtor, or the industry in which the account debtor is
engaged, to be unsatisfactory.
(x) that portion of any account from Standard Insurance or
Washington Mutual which represents the amount by which Borrower's total
accounts from said account debtor exceeds forty percent (40%) of
Borrower's total accounts; "
2. Section 1.3. is hereby deleted in its entirety, and the
following substituted therefor:
"SECTION 1.3. COLLATERAL.
As security for all indebtedness of Borrower to Bank subject hereto,
Borrower hereby grants to Bank security interests of first priority in all
Borrower's accounts receivable and other rights to payment, general intangibles,
inventory and equipment.
As security for all indebtedness of Borrower to Bank subject hereto,
Borrower shall cause PWI Technologies, Inc. to grant to Bank security interests
of first priority in all accounts receivable and other rights to payment,
general intangibles, inventory and equipment.
All of the foregoing shall be evidenced by and subject to the terms of such
security agreements, financing statements, deeds of trust or mortgages, and
other documents as Bank shall
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reasonably require, all in form and substance satisfactory to Bank. Borrower
shall reimburse Bank immediately upon demand for all costs and expenses incurred
by Bank in connection with any of the foregoing security, including without
limitation, filing and recording fees and costs of appraisals, audits and title
insurance."
3. Section 4.3 (e) is hereby deleted in its entirety, and the following
substituted therefor: " (e) not later than 60 days after and as of the end of
each quarter end, a 10 Q report; "
4. The following is hereby added to the Credit Agreement as Section 4.3
(f):
" (f) from time to time such other information as Bank may
reasonably request. "
5. Section 4.9. is hereby deleted in its entirety, and the following
substituted therefor:
" SECTION 4.9. FINANCIAL CONDITION. Maintain Borrower's financial
condition as follows using generally accepted accounting principles consistently
applied and used consistently with prior practices (except to the extent
modified by the definitions herein), with compliance determined commencing with
Borrower's financial statements for the period ending March 31, 2005:
(a) Tangible Net Worth at any time greater than zero as of March 31,
2006; $450,000.00 as of June 30, 2006; $750,000.00 as of September 30, 2006 and
$1,000,000.00 as of December 31, 2006, with "Tangible Net Worth" defined as the
aggregate of total stockholders' equity plus subordinated debt less any
intangible assets.
(b) Total Funded Debt to Annualized EBITDA as of fiscal quarters ending
March 31, 2005, June 30, 2005 and September 30, 2005, not greater than 2.25 to
1.0, with "Funded Debt" defined as the sum of all obligations for borrowed money
(including subordinated debt) plus all capital lease obligations, and with
"EBITDA" defined as net profit before tax plus interest expense (net of
capitalized interest expense), depreciation expense and amortization expense on
an annualized basis, with the March 31, 2005, calculation to be revised to
include adjustments for elimination, as approved by Bank in Bank's discretion.
(c) Total Funded Debt to EBITDA as of the end of each fiscal quarter, on
a rolling four quarter basis, commencing as of fiscal quarter ending December
31, 2005, not greater than 2.25 to 1.0, with "Funded Debt" as defined above, and
with "EBITDA" defined as net profit before tax plus interest expense (net of
capitalized interest expense), depreciation expense and amortization expense,
with the December 31, 2005, calculation to be revised to include adjustments for
elimination, as approved by Bank in Bank's discretion.
(d) Net income after taxes not less than $1,000,000.00 on an annual
basis, determined as of each fiscal year end. "
6. Section 5.4. is hereby deleted in its entirety, and the following
substituted therefor:
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"SECTION 5.4. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into or
consolidate with any other entity; make any substantial change in the nature of
Borrower's business as conducted as of the date hereof; acquire all or
substantially all of the assets of any other entity other than PWI Technologies,
Inc.; nor sell, lease, transfer or otherwise dispose of all or a substantial or
material portion of Borrower's assets except in the ordinary course of its
business."
7. Except as specifically provided herein, all terms and conditions of
the Credit Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Credit Agreement shall have the same
meaning when used in this Amendment. This Amendment and the Credit Agreement
shall be read together, as one document.
8. Borrower hereby remakes all representations and warranties contained
in the Credit Agreement and reaffirms all covenants set forth therein. Borrower
further certifies that as of the date of this Amendment there exists no Event of
Default as defined in the Credit Agreement, nor any condition, act or event
which with the giving of notice or the passage of time or both would constitute
any such Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
XXXXX FARGO BANK,
STAR SOLUTIONS OF NATIONAL ASSOCIATION
DELAWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, III By: /s/ Xxxxxx Xxxxx
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Xxxxxx X. Xxxxxxx, III, Xxxxxx Xxxxx, Relationship Manager
Chief Executive Officer
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