FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.24
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of June 30, 2008, by
and between STARTEK, INC., a Delaware corporation and STARTEK USA, INC., a Colorado 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 June 30, 2003, 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 (a) is hereby deleted in its entirety, and the following substituted therefor:
"(a) Line of Credit. Subject to the terms and conditions of this Agreement, Bank
hereby agrees to make advances to Borrower from time to time up to and including June 30, 2009, not
to exceed at any time the aggregate principal amount of Ten Million Dollars ($10,000,000.00) (“Line
of Credit”), the proceeds of which shall be used to finance Borrower’s working capital
requirements, general corporate purposes, acquisitions and stock repurchases. Borrower’s
obligation to repay advances under the Line of Credit shall be evidenced by a promissory note dated
as of June 30, 2008 (“Line of Credit Note”), all terms of which are incorporated herein by this
reference.”
2. The following is hereby added to the Credit Agreement as Section 1.2 (c):
“(c) Unused Commitment Fee. Borrower shall pay to Bank, for each fiscal quarter that
Borrower’s Tangible Net Worth is less than $110,000,000, an unused commitment fee in an amount
equal to one eighth of one percent (.125%) per annum (computed on the basis of a 360-day year,
actual days elapsed) of the average daily unused amount of the Line of Credit, which fee shall be
calculated on a quarterly basis by Bank and shall be due and payable by Borrower in arrears within
ten (10) days after each billing is sent by Bank.”
3. The following is hereby added to the Credit Agreement as Section 1.4:
“SECTION 1.4. COLLATERAL.
As security for all indebtedness and other obligations of Borrower to Bank subject hereto,
Borrower hereby grants to Bank security interests of first priority in all Borrower’s accounts
receivable, other rights to payment, and general intangibles.
All of the foregoing shall be evidenced by and subject to the terms of such security agreements,
financing statements, deeds or mortgages, and other documents as Bank shall reasonably require, all
in form and substance satisfactory to Bank. Borrower shall pay to Bank immediately upon demand the
full amount of all charges, costs and expenses (to include fees paid to third parties and all
allocated costs of Bank personnel), expended or 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.”
4. Section 4.9 (a) is hereby deleted in its entirety, and the following substituted therefor:
“(a) Tangible Net Worth measured at the end of each fiscal quarter, with “Tangible Net Worth”
defined as the aggregate of total stockholders’ equity plus subordinated debt less any intangible
assets, not at any time less than $105,000,000.00 through December 31, 2007 and shall increase (but
never decrease) at each subsequent fiscal quarter end by an amount equal to 25% of net income (but
only if positive) for each fiscal quarter then ended.”
5. Bank is aware that Borrower is in breach of Section 4.9(b) of the Credit Agreement for the
period ending June 30, 2008, which requires that Borrower not have a net loss for such period.
Bank has decided to waive its default rights with respect to this breach for the period ending June
30, 2008. This waiver applies only to this specific instance. It is not a waiver of any
subsequent breach of the same provision of the Agreement, nor is it a waiver of any breach of any
other provision of the Agreement. Bank reserves all of the rights, powers and remedies available
to Bank under the Credit Agreement and any related documents, including the right to cease making
advances and the right to accelerate any indebtedness, if any subsequent breach of the same
provision or any other provision of the Agreement should occur.
6. Section 4.9 (b) is hereby deleted in its entirety, without substitution.
7. Section 4.9 (c) is hereby renumbered as Section 4.9 (b).
8. Section 5.2 is hereby deleted in its entirety, and the following substituted therefor:
“SECTION 5.2. OTHER INDEBTEDNESS. Create, incur, assume or permit to exist any
indebtedness or liabilities resulting from borrowings, loans or advances, whether secured or
unsecured, matured or unmatured, liquidated or unliquidated, joint or several, that exceeds
$5,000,000.00 in the aggregate during the term of the loan, except (a) the liabilities of Borrower
to Bank, and (b) any other liabilities of Borrower existing as of, and disclosed to Bank prior to,
the date hereof.”
9. Section 5.5 is hereby deleted in its entirety, and the following substituted therefor:
“SECTION 5.5. LOANS, ADVANCES, INVESTMENTS. Make any loans or advances to or investments
in any person or entity in excess of $5,000,000.00 during the term of the loan, except any of the
foregoing existing as of, and disclosed to Bank prior to, the date hereof. This excludes current
trading or investment for sale portfolio.”
10. Section 5.7 is hereby deleted in its entirety, and the following substituted therefor:
“SECTION 5.7 PLEDGE OF ASSETS. Mortgage, pledge, grant or permit to exist a security
interest in, or lien upon, all or any portion of Borrower’s assets now owned or hereafter acquired
that exceeds $5,000,000.00 in the aggregate during the term of the loan, except any of the
foregoing in favor of Bank or which is existing as of, and disclosed to Bank in writing prior to,
the date hereof. Borrower shall allow no person or entity a security interest in, or lien upon,
its accounts receivable or inventory without prior written consent of Bank.”
11. In consideration of the changes set forth herein and as a condition to the effectiveness
hereof, immediately upon signing this Amendment, Borrower shall pay to Bank a non-refundable
amendment fee of $5,000.00.
12. 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.
13. 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.
| STARTEK, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | ||||
| By: | /s/ Xxxxxx X. Church | |||
| Xxxxxx X. Church, Vice President/Controller | ||||
| STARTEK USA, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | ||||
| By: | /s/ Xxxxxx X. Church | |||
| Xxxxxx X. Church, Vice President/Controller | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx, Vice President | ||||
| XXXXX FARGO | REVOLVING LINE OF CREDIT NOTE | |
| $10,000,000.00 | Denver, Colorado | |
| June, 30, 2008 |
FOR VALUE RECEIVED, the undersigned STARTEK, INC. and STARTEK USA, INC. (“Borrower”) promises to
pay to the order of XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Bank”) at its office at Colorado
RCBO, 0000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000, or at such other place as the holder
hereof may designate, in lawful money of the United States of America and in immediately available
funds, the principal sum of $10,000,000.00, or so much thereof as may be advanced and be
outstanding, with interest thereon, to be computed on each advance from the date of its
disbursement as set forth herein.
1. DEFINITIONS:
As used herein, the following terms shall have the meanings set forth after each, and any
other term defined in this Note shall have the meaning set forth at the place defined:
1.1 “Business Day” means any day except a Saturday, Sunday or any other day on which commercial
banks in Colorado are authorized or required by law to close.
1.2 “Fixed Rate Term” means a period commencing on a Business Day and continuing for 1, 2 or 3
months, as designated by Borrower, during which all or a portion of the outstanding principal
balance of this Note bears interest determined in relation to LIBOR; provided however, that no
Fixed Rate Term may be selected for a principal amount less than $100,000.00; and provided
further, that no Fixed Rate Term shall extend beyond the scheduled maturity date hereof. If any
Fixed Rate Term would end on a day which is not a Business Day, then such Fixed Rate Term shall be
extended to the next succeeding Business Day.
1.3 “LIBOR” means the rate per annum (rounded upward, if necessary, to the nearest whole 1/8 of
1%) determined by dividing Base LIBOR by a percentage equal to 100% less any LIBOR Reserve
Percentage.
(a) “Base LIBOR” means the rate per annum for United States dollar deposits quoted by Bank
as the Inter-Bank Market Offered Rate, with the understanding that such rate is quoted by
Bank for the purpose of calculating effective rates of interest for loans making reference
thereto, on the first day of a Fixed Rate Term for delivery of funds on said date for a
period of time approximately equal to the number of days in such Fixed Rate Term and in an
amount approximately equal to the principal amount to which such Fixed Rate Term applies.
Borrower understands and agrees that Bank may base its quotation of the Inter-Bank Market
Offered Rate upon such offers or other market indicators of the Inter-Bank Market as Bank
in its discretion deems appropriate including, but not limited to, the rate offered for
U.S. dollar deposits on the London Inter-Bank Market.
(b) “LIBOR Reserve Percentage” means the reserve percentage prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for “Eurocurrency Liabilities”
(as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by Bank for
expected changes in such reserve percentage during the applicable Fixed Rate Term.
1.4 “Prime Rate” means at any time the rate of interest most recently announced within Bank at its
principal office as its Prime Rate, with the understanding that the Prime Rate is one of Bank’s
base rates and serves as the basis upon which effective rates of interest are calculated for those
loans making reference thereto, and is evidenced by the recording thereof after its announcement
in such internal publication or publications as Bank may designate.
2. INTEREST:
2.1 Interest. The outstanding principal balance of this Note shall bear interest (computed
on the basis of a 360-day year, actual days elapsed) either (a) at a fluctuating rate per annum
1.00000% below the Prime Rate in effect from time to time, or (b) at a fixed rate per annum
determined by Bank to be 1.50000% above LIBOR in effect on the first day of the applicable Fixed
Rate Term. When interest is determined in relation to the Prime Rate, each change in the rate of
interest hereunder shall become effective on the date each Prime Rate change is announced within
Bank. With respect to each LIBOR selection option selected hereunder, Bank is hereby authorized to
note the date, principal amount, interest rate and Fixed Rate Term applicable thereto and any
payments made thereon on Bank’s books and records (either manually or by electronic entry) and/or
on any schedule attached to this Note, which notations shall be prima facie evidence of the
accuracy of the information noted.
2.2 Selection of Interest Rate Options. At any time any portion of this Note bears
interest determined in relation to LIBOR, it may be continued by Borrower at the end of the Fixed
Rate Term applicable thereto so that all or a portion thereof bears interest determined in
relation to the Prime Rate or to LIBOR for a new Fixed Rate Term designated by Borrower. At any
time any portion of this Note bears interest determined in relation to the Prime Rate, Borrower
may convert all or a portion thereof so that it bears interest determined in relation to LIBOR for
a Fixed Rate Term designated by Borrower. At such time as Borrower requests an advance hereunder
or wishes to select a LIBOR option for all or a portion of the outstanding principal balance
hereof, and at the end of each Fixed Rate Term, Borrower shall give Bank notice specifying: (a)
the interest rate option selected by Borrower; (b) the principal amount subject thereto; and (c)
for each LIBOR selection, the length of the applicable Fixed Rate Term. Any such notice may be
given by telephone (or such other electronic method as Bank may permit) so long as, with respect
to each LIBOR selection, (i) if requested by Bank, Borrower provides to Bank written confirmation
thereof not later than 3 Business Days after such notice is given, and (ii) such notice is given
to Bank prior to 10:00 a.m. on the first day of the Fixed Rate Term, or at a later time during any
Business Day if Bank, at it’s sole option but without obligation to do so, accepts Borrower’s
notice and quotes a fixed rate to Borrower. If Borrower does not immediately accept a fixed rate
when quoted by Bank, the quoted rate shall expire and any subsequent LIBOR request from Borrower
shall be subject to a redetermination by Bank of the applicable fixed rate. If no specific
designation of interest is made at the time any advance is requested hereunder or at the end of
any Fixed Rate Term, Borrower shall be deemed to have made a Prime Rate interest selection for
such advance or the principal amount to which such Fixed Rate Term applied.
2.3 Taxes and Regulatory Costs. Borrower shall pay to Bank immediately upon demand, in
addition to any other amounts due or to become due hereunder, any and all (a) withholdings,
interest equalization taxes, stamp taxes or other taxes (except income and franchise taxes)
imposed by any domestic or foreign governmental authority and related in any manner to LIBOR, and
(b) future, supplemental, emergency or other changes in the LIBOR Reserve Percentage, assessment
rates imposed by the Federal Deposit Insurance Corporation, or similar requirements or costs
imposed by any domestic or foreign governmental authority or resulting from compliance by Bank
with any request or directive (whether or not having the force of law) from any central bank or
other governmental authority and related in any manner to LIBOR to the extent they are not
included in the calculation of LIBOR. In determining which of the foregoing are attributable to
any LIBOR option available to Borrower hereunder, any reasonable allocation made by Bank among its
operations shall be conclusive and binding upon Borrower.
2.4 Payment of Interest. Interest accrued on this Note shall be payable on the last day of
each month, commencing July 31, 2008.
2.5 Default Interest. From and after the maturity date of this Note, or such earlier date
as all principal owing hereunder becomes due and payable by acceleration or otherwise, the
outstanding principal balance of this Note shall bear interest until paid in full at an increased
rate per annum (computed on the basis of a 360-day year, actual days elapsed) equal to 4% above
the rate of interest from time to time applicable to this Note.
3. BORROWING AND REPAYMENT:
3.1 Borrowing and Repayment. Borrower may from time to time during the term of this Note
borrow, partially or wholly repay its outstanding borrowings, and reborrow, subject to all of the
limitations, terms and conditions of this Note and of the Credit Agreement between Borrower and
Bank defined below; provided however, that the total outstanding borrowings under this Note shall
not at any time exceed the principal amount stated above. The unpaid principal balance of this
obligation at any time shall be the total amounts advanced hereunder by the holder hereof less the
amount of principal payments made hereon by or for Borrower, which balance may be endorsed hereon
from time to time by the holder. The outstanding principal balance of this Note shall be due and
payable in full on June 30, 2009.
3.2 Advances. Advances hereunder, to the total amount of the principal sum available
hereunder, may be made by the holder at the oral or written request of (a) A. Xxxxxxxx Xxxxx,
Xxxxxx X. Church, or Xxxxx X. Xxxxxx, any one acting alone, who are authorized to request advances
and direct the disposition of any advances until written notice of the revocation of such
authority is received by the holder at the office designated above, or (b) any person, with
respect to advances deposited to the credit of any deposit account of Borrower, which advances,
when so deposited, shall be conclusively presumed to have been made to or for the benefit of
Borrower regardless of the fact that persons other than those authorized to request advances may
have authority to draw against such account. The holder shall have no obligation to determine
whether any person requesting an advance is or has been authorized by Borrower.
3.3 Application of Payments. Each payment made on this Note shall be credited first, to
any interest then due and second, to the outstanding principal balance hereof. All payments
credited to principal shall be applied first, to the outstanding principal balance of this Note
which bears interest determined in relation to the Prime Rate, if any, and second, to the
outstanding principal balance of this Note which bears interest determined in relation to LIBOR,
with such payments applied to the oldest Fixed Rate Term first.
4. PREPAYMENT:
4.1 Prime Rate. Borrower may prepay principal on any portion of this Note which bears
interest determined in relation to the Prime Rate at any time, in any amount and without penalty.
4.2 LIBOR. Borrower may prepay principal on any portion of this Note which bears interest
determined in relation to LIBOR at any time and in the minimum amount of $100,000.00; provided
however, that if the outstanding principal balance of such portion of this Note is less than said
amount, the minimum prepayment amount shall be the entire outstanding principal balance thereof.
In consideration of Bank providing this prepayment option to Borrower, or if any such portion of
this Note shall become due and payable at any time prior to the last day of the Fixed Rate Term
applicable thereto by acceleration or otherwise, Borrower shall pay to Bank immediately upon
demand a fee which is the sum of the discounted monthly differences for each month from the month
of prepayment through the month in which such Fixed Rate Term matures, calculated as follows for
each such month:
(a) Determine the amount of interest which would have accrued each month on the
amount prepaid at the interest rate applicable to such amount had it remained outstanding
until the last day of the Fixed Rate Term applicable thereto.
(b) Subtract from the amount determined in (a) above the amount of interest which
would have accrued for the same month on the amount prepaid for the remaining term of such
Fixed Rate Term at LIBOR in effect on the date of prepayment for new loans made for such
term and in a principal amount equal to the amount prepaid.
(c) If the result obtained in (b) for any month is greater than zero, discount that
difference by LIBOR used in (b) above.
Borrower acknowledges that prepayment of such amount may result in Bank incurring additional
costs, expenses and/or liabilities, and that it is difficult to ascertain the full extent of such
costs, expenses and/or liabilities. Borrower, therefore, agrees to pay the above-described
prepayment fee and agrees that said amount represents a reasonable estimate of the prepayment
costs, expenses and/or liabilities of Bank. If Borrower fails to pay any prepayment fee when due,
the amount of such prepayment fee shall thereafter bear interest until paid at a rate per annum
2.000% above the Prime Rate in effect from time to time (computed on the basis of a 360-day year,
actual days elapsed).
5. EVENTS OF DEFAULT:
This Note is made pursuant to and is subject to the terms and conditions of that certain
Credit Agreement between Borrower and Bank dated as of June 30, 2003, as amended from time to time
(the “Credit Agreement”). Any default in the payment or performance of any obligation under this
Note, or any defined event of default under the Credit Agreement, shall constitute an “Event of
Default” under this Note.
6. MISCELLANEOUS:
6.1 Remedies. Upon the occurrence of any Event of Default, the holder of this Note, at the
holder’s option, may declare all sums of principal and interest outstanding hereunder to be
immediately due and payable without presentment, demand, notice of nonperformance, notice of
protest, protest or notice of dishonor, all of which are expressly waived by Borrower, and the
obligation, if any, of the holder to extend any further credit hereunder shall immediately cease
and terminate. Borrower shall pay to the holder immediately upon demand the full amount of all
payments, advances, charges, costs and expenses, including reasonable attorneys’ fees (to include
outside counsel fees and all allocated costs of the holder’s in-house counsel), expended or
incurred by the holder in connection with the enforcement of the holder’s rights and/or the
collection of any amounts which become due to the holder under this Note, and the prosecution or
defense of any action in any way related to this Note, including without limitation, any action
for declaratory relief, whether incurred at the trial or appellate level, in an arbitration
proceeding or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or
motion brought by Bank or any other person) relating to Borrower or any other person or entity.
6.2 Obligations Joint and Several. Should more than one person or entity sign this Note as
a Borrower, the obligations of each such Borrower shall be joint and several.
6.3 Governing Law. This Note shall be governed by and construed in accordance with the
laws of the State of Colorado.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.
| STARTEK, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | ||||
| By: | /s/ Xxxxxx X. Church | |||
| Xxxxxx X. Church, Vice President/Controller | ||||
|
STARTEK USA, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | ||||
| By: | /s/ Xxxxxx X. Church | |||
| Xxxxxx X. Church, Vice President/Controller | ||||
ADDENDUM TO PROMISSORY NOTE
(PRIME/LIBOR PRICING ADJUSTMENTS)
(PRIME/LIBOR PRICING ADJUSTMENTS)
THIS ADDENDUM is attached to and made a part of that certain promissory note executed by
STARTEK, INC. and STARTEK USA, INC. (“Borrower”) and payable to XXXXX FARGO BANK, NATIONAL
ASSOCIATION (“Bank”), or order, dated as of June 30, 2008, in the principal amount of Ten Million
Dollars ($10,000,000.00) (the “Note”).
The following provisions are hereby incorporated into the Note to reflect the interest rate
adjustments agreed to by Bank and Borrower:
INTEREST RATE ADJUSTMENTS:
(a) Initial Interest Rates. The initial interest rates applicable to this Note shall
be the rates set forth in the “Interest” paragraph herein.
(b) Interest Rate Adjustments. In addition to any interest rate adjustments resulting
from changes in the Prime Rate, Bank shall adjust the Prime Rate and LIBOR margins used to
determine the rates of interest applicable to this Note on a quarterly basis, commencing with
Borrower’s fiscal quarter ending June 30, 2008, if required to reflect a change in Borrower’s ratio
of Total Tangible Net Worth (as defined in the Credit Agreement referenced herein), in accordance
with the following grid:
| Applicable | Applicable | Unused | ||||||||||
| Prime Rate | LIBOR | Commitment | ||||||||||
| Total Tangible Net Worth | Margin | Margin | Fee | |||||||||
$110,000,000.00 or greater |
-1.00 | % | 1.50 | % | None | |||||||
less than $110,000,000.00 |
-.75 | % | 1.75 | % | .125 | % | ||||||
Each such adjustment shall be effective on the first Business Day of Borrower’s fiscal quarter
following the quarter during which Bank receives and reviews Borrower’s most current fiscal
quarter-end financial statements in accordance with any requirements established by Bank for the
preparation and delivery thereof.
IN WITNESS WHEREOF, this Addendum has been executed as of the same date as the Note.
| STARTEK, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | ||||
| By: | /s/ Xxxxxx X. Church | |||
| Xxxxxx X. Church, Vice President/Controller | ||||
| STARTEK USA, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | ||||
| By: | /s/ Xxxxxx X. Church | |||
| Xxxxxx X. Church, Vice President/Controller | ||||
