SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT DATED JANUARY 31, 2020
Exhibit 10.90
Execution version
SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT DATED JANUARY 31, 2020
THIS SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT DATED JANUARY 31, 2020, (this “Seventh Amendment”) is entered into as of this 8th day of March, 2022 (the “Effective Date”), by and among Gerber Finance Inc., a New York corporation (“Lender”) EdgeBuilder, Inc., a Delaware Corporation and Glenbrook Building Supply, Inc., a Delaware corporation (individually, “Initial Borrower”) and, collectively, if more than one, the “Initial Borrowers”), and together with each other Person which, on or subsequent to the Closing Date, agrees in writing to become a “Borrower” hereunder, herein called, individually, a “Borrower” and, collectively, the “Borrowers,” and pending the inclusion by written agreement of any other such Person, besides each Initial Borrower, as a “Borrower” hereunder, all references herein to “Borrowers,” “each Borrower,” the “applicable Borrower,” “such Borrower” or any similar variations thereof (whether singular or plural) shall all mean and refer to the Initial Borrower or each one of them collectively) and Star Real Estate Holdings USA, Inc., a Delaware corporation, 000 Xxxx Xxxxxx, XXX, a Delaware limited liability company, 000 Xxxxxxxxx Xxxx, LLC, a Delaware limited liability company, 56 Mechanic Falls Road, LLC, a Delaware limited liability company, ATRM Holdings, Inc., a Minnesota corporation, KBS Builders, Inc., a Delaware corporation, and Star Equity Holdings, Inc., a Delaware corporation, (individually or collectively, as the context may require, “Guarantor”), each Borrower and Guarantor having an address at 00 Xxxxxx Xxx, Xxx Xxxxxxxxx, XX 00000.
RECITALS
A. Lender and Borrowers entered into a Loan and Security Agreement dated as of January 31, 2020, as amended by (i) First Amendment to Loan and Security Agreement dated March 5, 2020 and (ii) Second Amendment to Loan and Security Agreement dated July 1, 2020 and (iii) Third Amendment to Loan and Security Agreement dated February 26, 2021 and (iv) Fourth Amendment to Loan and Security Agreement dated July 30, 2021 and (v) Fifth Amendment to Loan and Security Agreement dated October 21, 2021 and (vi) Sixth Amendment to Loan and Security Agreement dated January 20, 2022 (as further amended, modified, restated or supplemented from time to time, the “Loan Agreement”).
B. The Loans are secured by, among other things, Guarantor’s guaranty by its execution of the Loan Agreement as a Corporate Credit Party (“Guaranty”).
C. ATRM Holdings, Inc. has executed an Amended and Restated Subordination Agreement dated January 31, 2020 and is a Subordinated Lender as defined in the Loan Agreement.
D. Star Equity Holdings, Inc. has executed an Amended and Restated Subordination Agreement dated July 30, 2021 and is a Subordinated Lender as defined in the Loan Agreement.
E. Star Procurement, LLC has executed an Amended and Restated Subordination Agreement dated January 31, 2020 and is a Subordinated Lender as defined in the Loan Agreement.
F. Borrowers have executed an Amended and Restated Note in the maximum principal amount of $4,000,000 dated July 30, 2021.
G. The parties have agreed to revise certain financial covenants set forth in the Loan Agreement.
Exhibit 10.90
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, in consideration of the Recitals above which are incorporated into and made a part of this Seventh Amendment and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. Lender, Borrowers and Guarantor reaffirm consent and agree to all of the terms and conditions of the Credit Documents defined in the Loan Agreement as binding, effective and enforceable according to their stated terms, except to the extent that such Credit Documents are hereby expressly modified by this Seventh Amendment.
2. In the case of any ambiguity or inconsistency between the Credit Documents and this Seventh Amendment, the language and interpretation of this Seventh Amendment is to be deemed binding and paramount.
3. Borrower, each Guarantor, each Credit Party and Lender agree (as to the extent they are not a party thereto acknowledge) that the Credit Documents are hereby amended as of the Effective Date as follows:
(a) Schedule III is hereby amended and restated to read as set forth on the attached Schedule III.
4. Capitalized terms used in this Seventh Amendment which are not otherwise defined herein have the meaning ascribed thereto in the Credit Documents.
5. The parties agree to sign, deliver and file any additional documents and take any other actions that may reasonably be required by Lender including, but not limited to, affidavits, resolutions, or certificates for a full and complete consummation of the matters covered by this Seventh Amendment.
6. Each of Borrowers, Guarantor and the Credit Parties on behalf of itself and its affiliates, heirs, successors and assigns (collectively, “Releasing Parties”), hereby releases and forever discharges Lender, any trustee of the Loans, any servicer of the Loans, each of their respective predecessors-in-interest and successors and assigns, together with the officers, directors, partners, employees, investors, certificate holders and agents of each of the foregoing (collectively, the “Lender Parties”), from all debts, accountings, bonds, warranties, representations, covenants, promises, contracts, controversies, agreements, claims, damages, judgments, executions, actions, inactions, liabilities, demands or causes of action of any nature, at law or in equity, known or unknown, which such Releasing Party has or had prior to and including the date hereof relating in any manner whatsoever to matters arising out of: (a) the Loans, including, without limitation, its funding, administration and servicing; (b) the Credit Documents; or (c) any reserve and/or escrow balances held by Lender or any servicers of the Loans.
7. Borrowers, Guarantor and the Credit Parties, jointly and severally, agree to reimburse, defend, indemnify and hold Lender harmless from and against any and all liabilities, claims, damages, penalties, reasonable expenditures, losses or charges (including, but not limited to, all reasonable legal fees and court costs), which may now or in the future be undertaken, suffered, paid, awarded, assessed or otherwise incurred as a result of or arising out of any fraudulent conduct of Borrowers, Guarantor or any Credit Party in connection with the Credit Documents or of any breach of any of the representations or warranties made in any material respect.
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Exhibit 10.90
8. This Seventh Amendment is binding upon, inures to the benefit of, and is enforceable by the heirs, personal representatives, successors and assigns of the parties. This Seventh Amendment is not assignable by a Borrower or Guarantor without the prior written consent of Lender.
9. To the extent that any provision of this Seventh Amendment is determined by any court or legislature to be invalid or unenforceable in whole or part either in a particular case or in all cases, such provision or part thereof is to be deemed surplusage. If that occurs, it does not have the effect of rendering any other provision of this Seventh Amendment invalid or unenforceable. This Seventh Amendment is to be construed and enforced as if such invalid or unenforceable provision or part thereof were omitted.
10. This Seventh Amendment may only be changed or amended by a written agreement signed by all of the parties hereto. By the execution of this Seventh Amendment, Lender is not to be deemed to consent to any future renewal or extension of the Loans. This Seventh Amendment is deemed to be part of and integrated into the Credit Documents.
11. THIS SEVENTH AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO THE CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
12. The parties to this Seventh Amendment acknowledge that each has had the opportunity to consult independent counsel of their own choice, and that each has relied upon such counsel's advice concerning this Seventh Amendment, the enforceability and interpretation of the terms contained in this Seventh Amendment and the consummation of the transactions and matters covered by this Seventh Amendment.
13. Borrowers agree to pay all attorneys’ fees and other costs incurred by Lender or otherwise payable in connection with this Seventh Amendment (in addition to those otherwise payable pursuant to the Credit Documents), which fees and costs are to be paid as of the date hereof.
14. This Seventh Amendment may be executed in any number of counterparts, each of which when so executed is deemed to be an original and all of which taken together constitute but one and the same agreement. Delivery of an executed counterpart of this Seventh Amendment by facsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Seventh Amendment. Any party delivering an executed counterpart of this Seventh Amendment by facsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Seventh Amendment but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Seventh Amendment.
15. BORROWERS, GUARANTOR, EACH OF THE CREDIT PARTIES AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS SEVENTH AMENDMENT, THE CREDIT DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
[Signatures appear on the following pages]
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Exhibit 10.90
IN WITNESS WHEREOF, the undersigned have caused this Sixth Amendment to be executed as of the Effective Date.
LENDER:
GERBER FINANCE, INC.
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
BORROWER:
EDGEBUILDER, INC.
By: /s/ Xxx Xxxxxxxxxx
Name: Xxx Xxxxxxxxxx
Title: Executive Chairman
GLENBROOK BUILDING SUPPLY, INC.
By: /s/ Xxx Xxxxxxxxxx
Name: Xxx Xxxxxxxxxx
Title: Executive Chairman
[Signatures to Seventh Amendment to Loan and Security Agreement dated January 31, 2020 --signatures continued on following page]
Exhibit 10.90
(signatures continued from previous page)
GUARANTOR:
STAR REAL ESTATE HOLDINGS USA, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
000 XXXX XXXXXX, LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
947 WATERFORD ROAD, LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
56 MECHANIC FALLS ROAD, LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
ATRM HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
KBS BUILDERS, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairment of the Board
[End of Signatures to Seventh Amendment to Loan and Security Agreement dated January 31, 2020- Consent signatures follow]
Exhibit 10.90
CONSENTS TO SEVENTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT DATED JANUARY 31, 2020
We hereby consent and agree to the attached terms of the Seventh Amendment to Loan and Security Agreement dated January 31, 2020.
ATRM HOLDINGS, INC.
(as Creditor pursuant to an Amended and Restated Subordination Agreement dated January 31, 2020)
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
STAR PROCUREMENT, LLC
(as Creditor pursuant to Amended and Restated Subordination Agreement dated January 31, 2020)
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Manager
(as Creditor pursuant to Amended and Restated Subordination Agreement dated July 30, 2021)
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman of the Board
[End of Signature Page to Consents to Seventh Amendment to Loan and Security Agreement Dated January 31, 2020]
Exhibit 10.90
SCHEDULE III FINANCIAL COVENANTS
1. Distributions. Borrowers shall make no distribution, transfer, payment, advance, or contribution ofcash or property which would constitute a Restricted Payment.
2. Minimum EBITDA. Borrowers shall not permit its EBITDA determined by Lender at (a) June 30, 2022 to be less than -0- or (b) fiscal year end December 31, 2022 to be less than $1,000,000. “EBITDA” shall mean, for any period, all earnings before all interest, financing fees and other costs incurred from financing provided by Lender, tax obligations and depreciation and amortization expense of the Borrowers for such period, all determined in conformity with GAAP on a basis consistent with the latest financial statements of the Borrowers, but shall exclude unrealized hedging gains and losses based upon material costs associated with Borrowers’ business/product offerings.
3. Net Cash Income. Borrowers shall maintain Net Cash Income determined by Lender at
(a) June 30, 2022 of not less than -0- and (b) fiscal year end December 31, 2022 of not less than
$1,000,000. “Net Cash Income” shall mean for any period, Net Income or (Net Loss) of the Borrowers for such period, plus Depreciation and Amortization all determined in conformity with GAAP on a basis consistent with the latest financial statements of the Borrowers.
