EXHIBIT 10.1
AMENDMENT NO. 4
TO
AGREEMENT FOR INVENTORY FINANCING
This Amendment No. 4 ("Amendment") to the Agreement for Inventory
Financing is made as of March 29, 2004 by and among IBM CREDIT LLC, a Delaware
limited liability company, formerly IBM Credit Corporation ("IBM Credit"),
BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC, a limited liability company duly
organized under the laws of the state of Delaware ("Holdings"), SUPPLIES
DISTRIBUTORS, INC. (formerly known as BSD Acquisition Corp.), a corporation duly
organized under the laws of the state of Delaware ("Borrower"), PRIORITY
FULFILLMENT SERVICES, INC., a corporation duly organized under the laws of the
state of Delaware ("PFS") and PFSWEB, INC., a corporation duly organized under
the laws of the state of Delaware ("PFSweb") (Borrower, Holdings, PFS, PFSweb,
and any other entity that executes this Agreement or any Other Document,
including without limitation all Guarantors, are each individually referred to
as a "Loan Party" and collectively referred to as "Loan Parties").
RECITALS:
A. Each Loan Party and IBM Credit have entered into that certain Agreement
for Inventory Financing dated as of March 29, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Agreement"); and
D. The parties have agreed to modify the Agreement as more specifically
set forth below, upon and subject to the terms and conditions set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower, the other Loan Parties and IBM Credit hereby agree as
follows:
SECTION 1. DEFINITIONS. All capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Agreement.
SECTION 2. AMENDMENT.
Subject to the satisfaction of the conditions precedents set forth in
Section 3 hereof, the Agreement is hereby amended as follows:
A. Section 1 of the Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:
" `Credit Reduction Date': shall mean the date that is the earlier of (a)
July 1, 2004 and (b) the date IBM Credit delivers a Participation Notice."
" `Participation': sale by IBM Credit to another financial institution of
an undivided interest, of certain Obligations owed by Borrower to IBM Credit
pursuant to a Participation Agreement."
" "Participation Agreement': an agreement in form and substance
satisfactory to IBM Credit whereby IBM Credit sells a Participation to another
financial institution."
" `Participation Notice': a written notice sent by IBM Credit to Borrower
that an undivided interest of certain obligations owed by Borrower to IBM Credit
has been sold by IBM Credit to a financial institution pursuant to a
Participation Agreement."
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B. Section 1 of the Agreement is hereby amended by amending the definition
of "Amended and Restated Notes Payable Subordination Agreement" to read in its
entirety as follows:
" `Amended and Restated Notes Payable Subordination Agreement': the Third
Amended and Restated Notes Payable Subordination Agreement dated March 29, 2004
executed by PFS in favor of IBM Credit."
C. Section 1 of the Agreement is hereby amended by amending the definition
of "Termination Date" to read in its entirety as follows:
" `Termination Date': shall mean March 29, 2005 or such other date as IBM
Credit and the Borrower may agree to from time to time in writing."
D. Section 1 of the Agreement is hereby amended by amending the definition
of "Shortfall Amount" to read in its entirety as follows:
" `Shortfall Amount`: as defined in Section 2.6."
E. Section 2.1 of the Agreement is hereby amended by inserting the
following sentence at the end of this section:
"Notwithstanding the foregoing, Borrower agrees that if the Credit Line
has been increased due to a Participation, and thereafter the amount of any
Participation is reduced or any Participation Agreement expires or is terminated
for any reason, including, without limitation, through or as a result of any
actions or failure on the part of IBM Credit, including, without limitation, any
breach of IBM Credit's legal or contractual obligations, the Credit Line shall
be reduced, upon forty-five (45) days written notice by IBM Credit to Borrower,
by an amount equal to the amount that is no longer subject to a Participation
Agreement as determined by IBM Credit. Nothing herein shall impose any
obligation on IBM Credit to sell participations in any Obligations hereunder or
to enter into any Participation Agreement and IBM Credit shall have no liability
for its failure to do so."
F. Section 8.6 of the Agreement is hereby amended by amending this Section
to read in its entirety as follows:
"8.6. RESTRICTED PAYMENTS. Borrower will not, directly or indirectly make
any of the following payments ("Restricted Payments") without prior written
consent from IBM Credit, which shall not be unreasonably withheld: (i) declare
or pay any dividend (other than dividends payable solely in common stock of
Borrower and cash dividends not to exceed Eight Hundred Thousand Dollars
($800,000) to be paid in fiscal year 2004 for which consent is hereby given) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of Borrower or any
warrants, options or rights to purchase any such capital stock or Equity
Interests, whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of Borrower; or (ii) make any optional payment or prepayment
on or redemption (including, without limitation, by making payments to a sinking
or analogous fund) or repurchase of any Indebtedness (other than the Obligations
or payments of the revolving loans made by Congress made in the ordinary course
administration thereof pursuant to the Congress Credit Agreement)), except as
permitted by the Amended and Restated Notes Payable Subordination Agreement."
G. Attachment A to the Agreement is hereby amended by deleting such
Attachment A in its entirety and substituting, in lieu thereof, the Attachment A
attached hereto. Such new Attachment A shall be effective as of the date
specified in the new Attachment A. The changes contained in the new Attachment A
include, without limitation, the following:
Section II (A) of Attachment A is hereby amended by amending the Credit
Line to read in its entirety as follows:
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(A) Credit Line: (i) Twenty Seven Million Five Hundred Thousand Dollars
($27,500,000) for the period from the date hereof until the Credit Reduction
Date and (ii) on and after the Credit Reduction Date, the Credit Line shall be
Twenty Two Million Five Hundred Thousand Dollars ($22,500,000). Notwithstanding
the foregoing if on or after the Credit Reduction Date, IBM Credit sells a
Participation to another financial institution pursuant to a Participation
Agreement and sends a Participation Notice (including, without limitation, any
Participation Notice sent on the Credit Reduction Date) to Borrower, then the
Credit Line will be increased (effective as of the date set forth in the
Participation Notice) by the amount set forth in Participation Notice (so long
as the Participation Agreement remains in full force and effect) but in no event
shall the Credit Line exceed Twenty Seven Million Five Hundred Thousand Dollars
($27,500,000). In the event that the amount of any Participation is reduced or
any Participation Agreement expires or is terminated for any reason, the Credit
Line shall be reduced, upon forty-five (45) days written notice to Borrower, by
an amount equal to the amount that is no longer subject to a Participation
Agreement as determined by IBM Credit pursuant to Section 2.1 of the Agreement
SECTION 3. CONDITIONS OF EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective upon the receipt by IBM Credit of (i) this Amendment shall have been
authorized, executed and delivered by each of the parties hereto and IBM Credit
shall have received a copy of a fully executed Amendment, (ii) the Third Amended
and Restated Notes Payable Subordination Agreement executed by PFS, and (iii) an
amendment to the Subordinated Demand Note dated March 29, 2002 issued in favor
of IBM Credit and Congress Financial Corporation (Southwest) to change the
amount of the Subordinated Demand Note to Seven Million Dollars ($7,000,000). .
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Loan Party makes to IBM Credit
the following representations and warranties all of which are material and are
made to induce IBM Credit to enter into this Amendment.
SECTION 4.1 ACCURACY AND COMPLETENESS OF WARRANTIES AND REPRESENTATIONS. All
representations made by the Loan Party in the Agreement were true and accurate
and complete in every respect as of the date made, and, as amended by this
Amendment, all representations made by the Loan Party in the Agreement are true,
accurate and complete in every material respect as of the date hereof, and do
not fail to disclose any material fact necessary to make representations not
misleading.
SECTION 4.2 VIOLATION OF OTHER AGREEMENTS AND CONSENT. The execution and
delivery of this Amendment and the performance and observance of the covenants
to be performed and observed hereunder (a) do not violate or cause any Loan
Party not to be in compliance with the terms of any agreement to which such Loan
Party is a party, and (b) require the consent of any Person.
SECTION 4.3 LITIGATION. Except as has been disclosed by the Loan Party to IBM
Credit in writing, there is no litigation, proceeding, investigation or labor
dispute pending or threatened against any Loan Party, which, if adversely
determined, would materially adversely affect the Loan Party's ability to
perform such Loan Party's obligations under the Agreement and the other
documents, instruments and agreements executed in connection therewith or
pursuant hereto.
SECTION 4.4 ENFORCEABILITY OF AMENDMENT. This Amendment has been duly
authorized, executed and delivered by each Loan Party and is enforceable against
each Loan Party in accordance with its terms.
SECTION 5. RATIFICATION OF AGREEMENT. Except as specifically amended hereby, all
of the provisions of the Agreement shall remain unamended and in full force and
effect. Each Loan Party hereby ratifies, confirms and agrees that the Agreement,
as amended hereby, represents a valid and enforceable obligation of such Loan
Party, and is not subject to any claims, offsets or defenses.
SECTION 6. RATIFICATION OF GUARANTY AND NOTES PAYABLE SUBORDINATION AGREEMENT.
Each of Holdings, PFSweb and PFS hereby ratify and confirm their respective
guaranties in favor of IBM Credit and agree that such guaranties remain in full
force and effect and that the term "Liabilities", as used
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therein include, without limitation the indebtedness liabilities and obligations
of the Borrower under the Agreement as amended hereby.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by and interpreted in
accordance with the laws which govern the Agreement.
SECTION 8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement.
IN WITNESS WHEREOF, each Loan Party has read this entire Amendment, and
has caused its authorized representatives to execute this Amendment and has
caused its corporate seal, if any, to be affixed hereto as of the date first
written above.
IBM CREDIT LLC SUPPLIES DISTRIBUTORS, INC.
By:________________________________ By:_____________________________________
Print Name:________________________ Print Name:_____________________________
Title:_____________________________ Title:__________________________________
BUSINESS SUPPLIES DISTRIBUTORS PRIORITY FULFILLMENT SERVICES, INC.
HOLDINGS, LLC
By: __________________ as Managing
Member
By:________________________________ By:_____________________________________
Print Name:________________________ Print Name:_____________________________
Title:_____________________________ Title:__________________________________
PFSWEB, INC.
By:_____________________________________
Print Name:_____________________________
Title:__________________________________
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ATTACHMENT A ("ATTACHMENT A") TO AGREEMENT FOR INVENTORY FINANCING ("AGREEMENT")
DATED MARCH 29, 2002
EFFECTIVE DATE OF THIS ATTACHMENT A: March 26, 2004
SECTION I. BORROWER/LOAN PARTIES:
(A) BORROWER: ORGANIZATION NO. (ASSIGNED BY STATE OF ORG).
Supplies Distributors, Inc. 3416326
(B) ADDITIONAL LOAN PARTIES:
Business Supplies
Distributors Holdings, LLC 3410894
Priority Fulfillment
Services, Inc. 2606094
PFSweb, Inc. 3062550
SECTION II. FEES, RATES AND REPAYMENT TERMS:
(A) Credit Line: (i) Twenty Seven Million Five Hundred Thousand Dollars
($27,500,000) for the period from the date hereof until the Credit
Reduction Date and (ii) on and after the Credit Reduction Date, the
Credit Line shall be Twenty Two Million Five Hundred Thousand
Dollars ($22,500,000). Notwithstanding the foregoing if on or after
the Credit Reduction Date, IBM Credit sells a Participation to
another financial institution pursuant to a Participation Agreement
and sends a Participation Notice (including, without limitation, any
Participation Notice sent on the Credit Reduction Date) to Borrower,
then the Credit Line will be increased (effective as of the date set
forth in the Participation Notice) by the amount set forth in
Participation Notice (so long as the Participation Agreement remains
in full force and effect) but in no event shall the Credit Line
exceed Twenty Seven Million Five Hundred Thousand Dollars
($27,500,000).
In the event that the amount of any Participation is reduced or any
Participation Agreement expires or is terminated for any reason, the
Credit Line shall be reduced, upon forty-five (45) days written
notice by IBM Credit to Borrower, by an amount equal to the amount
that is no longer subject to a Participation Agreement as determined
by IBM Credit pursuant to Section 2.1 of the Agreement
(B) Borrowing Base:
(i) 100% of the Borrower's inventory in the Borrower's possession as
of the date of determination as reflected in the Borrower's most
recent Collateral Management Report constituting Products (other
than service parts) financed through a Product Advance by IBM
Credit, so long as (1) IBM Credit has a first priority security
interest in such Products; (2) such Products are in new and
un-opened boxes, and (3) Borrower provides a detailed listing of
inventory to IBM Credit and Authorized Supplier provides a quarterly
evaluation of such inventory. The value to be assigned to such
inventory shall be based upon the Authorized Supplier's evaluation
of the inventory, acceptable to IBM Credit in its sole discretion,
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(ii) 80% of price protection payments, credits, discounts, incentive
payments, rebated and refunds relating to IBM Products ("Accounts")
in the aggregate not to exceed Two Million Five Hundred Thousand
Dollars ($2,500,000.00) provided that (i) Borrower obtains (and
provides to IBM Credit along with the monthly Collateral Management
Report required under Section 7.1 (O)) from IBM written confirmation
(a) acknowledging the obligation of IBM to pay such amount or that
they have received the billing from the Borrower, (b) stating the
date the amount is due to be paid and (c) IBM waiving its right to
setoff such amounts owed to Borrower with any amount Borrower may
owe to IBM, (ii) such Accounts do not remain unpaid for more than
sixty (60) days from the date the obligation of IBM occurred; and
(iii) such Accounts are delivered directly to IBM Credit.
(C) Product Financing Charge: Prime Rate plus 1.0%
(D) Product Financing Period: 90 days
(E) Collateral Insurance Amount: Twenty Seven Million Five Hundred
Thousand Dollars ($27,500,000.00)
(F) PRO Finance Charge: Prime Rate plus 1.0%
(G) Delinquency Fee Rate: Prime Rate plus 6.500%
(I) Free Financing Period Exclusion Fee: Product Advance multiplied by
0.25%
(J) Other Charges:
(i) Monthly Service Fee: $1,000.00
(ii) Annual Renewal Fee: $15,000.00
SECTION III. FINANCIAL COVENANTS:
(A) Definitions: The following terms shall have the following respective
meanings in this Attachment. All amounts shall be determined in accordance with
generally accepted accounting principles (GAAP).
"Consolidated Net Income" shall mean, for any period, the net income (or
loss), after taxes, of Borrower on a consolidated basis for such period
determined in accordance with GAAP.
"Current" shall mean within the ongoing twelve month period.
"Current Assets" shall mean assets that are cash, restricted cash
applicable to cash received into a lockbox from collections of trade
accounts receivable or expected to become cash within the ongoing twelve
months.
"Current Liabilities" shall mean payment obligations resulting from past
or current transactions that require settlement within the ongoing twelve
month period. All indebtedness to IBM Credit and Congress shall be
considered a Current Liability for purposes of determining compliance with
the Financial Covenants. All subordinated indebtedness shall not be
considered current liabilities.
"EBITDA" shall mean, for any period (determined on a consolidated basis in
accordance with GAAP), (a) the Consolidated Net Income of Borrower for
such period, plus (b) each of the following to the extent reflected as an
expense in the determination of such Consolidated Net Income: (i) the
Borrower's provisions for taxes based on income for such period; (ii)
Interest Expense for such period; and (iii) depreciation and amortization
of tangible and intangible assets of Borrower for such period.
"Fixed Charges" shall mean, for any period, an amount equal to the sum,
without duplication, of the amounts for such as determined for the
Borrower on a consolidated basis, of (i) scheduled repayments of principal
of all Indebtedness (as reduced by repayments thereon previously made),
(ii) Interest Expense, (iii) capital expenditures (iv) dividends, (v)
leasehold improvement expenditures and (vi) all provisions for U.S. and
non U.S. Federal, state and local taxes.
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"Fixed Charge Coverage Ratio" shall mean the ratio as of the last day of
any fiscal period of (i) EBITDA as of the last day of such fiscal period
to (ii) Fixed Charges.
"Interest Expense" shall mean, for any period, the aggregate consolidated
interest expense of Borrower during such period in respect of Indebtedness
determined on a consolidated basis in accordance with GAAP, including,
without limitation, amortization of original issue discount on any
Indebtedness and of all fees payable in connection with the incurrence of
such Indebtedness (to the extent included in interest expense), the
interest portion of any deferred payment obligation and the interest
component of any capital lease obligations.
"Long Term" shall mean beyond the ongoing twelve month period.
"Long Term Assets" shall mean assets that take longer than a year to be
converted to cash. They are divided into four categories: tangible assets,
investments, intangibles and other.
"Long Term Debt" shall mean payment obligations of indebtedness which
mature more than twelve months from the date of determination, or mature
within twelve months from such date but are renewable or extendible at the
option of the debtor to a date more than twelve months from the date of
determination.
"Net Profit after Tax" shall mean Revenue plus all other income, minus all
costs, including applicable taxes.
"Revenue" shall mean the monetary expression of the aggregate of products
or services transferred by an enterprise to its customers for which said
customers have paid or are obligated to pay, plus other income as allowed.
"Subordinated Debt" shall mean Borrower's indebtedness to third parties as
evidenced by an executed Notes Payable Subordination Agreement in favor of
IBM Credit.
"Tangible Net Worth" shall mean Total Net Worth minus goodwill.
"Total Assets" shall mean the total of Current Assets and Long Term
Assets. For the purpose of calculating Total Assets for Borrower, the
accumulated earnings and foreign currency translation adjustments
applicable to Borrower's Canadian and European subsidiaries are excluded.
"Total Liabilities" shall mean the Current Liabilities and Long Term Debt
less Subordinated Debt, resulting from past or current transactions, that
require settlement in the future.
"Total Net Worth" (the amount of owner's or stockholder's ownership in an
enterprise) is equal to Total Assets minus Total Liabilities. For the
purpose of calculating Total Net Worth of Borrower, following shall be
excluded (i) accumulated earnings and foreign currency translation
adjustments applicable to Borrower's Canadian and European subsidiaries
and (ii) all income and losses applicable to foreign currency adjustments
for each period but not excluding such foreign currency adjustments for
annual periods that must comply with GAAP.
"Working Capital" shall mean Current Assets minus Current Liabilities.
(B) 1. Borrower will be required to maintain the following financial
ratios, percentages and amounts as of the last day of the fiscal period under
review (quarterly, annually) by IBM Credit:
Covenant Covenant Requirement
(i) Revenue on an Annual Basis* (i.e. Greater than Zero and
the current fiscal year-to-date Equal to or Less than
Revenue annualized) to Working 43.0:1.0
Capital
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* Annualized Revenue from
intercompany sales are excluded
from this calculation.
(ii) Net Profit after Tax to Revenue** Equal to or Greater than 0.20
percent
**Excluding all income and losses
applicable to (a) 100% ownership in
Canadian and European subsidiaries
and (b) foreign currency adjustments
for each period but not excluding
such foreign currency adjustments
for annual periods that must comply
with GAAP and excluding revenue from
intercompany sales.
(iii) Total Liabilities to Tangible Net Greater than Zero and Equal to or
Worth*** Less than 7.0:1.0
***Accumulated earnings and foreign
currency translation adjustments
applicable to Borrower's Canadian
and European subsidiaries are
excluded from calculation of
Borrower's Total Assets and Total
Net Worth.
2. Business Supplies Distributors Holdings, LLC will be required to maintain the
following financial ratios, percentages and amounts as of the last day of the
fiscal period under review (quarterly, annually) by IBM Credit:
Covenant Covenant Requirement
(i) Revenue on an Annual Basis (i.e. Greater than Zero and Equal to or
the current fiscal year-to-date Less than 43.0:1.0
Revenue annualized) to Working
Capital
(ii) Net Profit after Tax to Revenue* Equal to or Greater than 0.15
percent
*Excluding all (a) income and
losses applicable to foreign
currency adjustments for each
period but not excluding such
foreign currency adjustments for
annual periods that must comply
with GAAP and (b) revenue from
intercompany sales.
(iii) Total Liabilities to Tangible Net Greater than Zero and Equal to
Worth or Less than 8.0:1.0
3. PFSweb, Inc. will be required to maintain the following financial
ratios, percentages and amounts as of the last day of the fiscal period under
review (quarterly, annually) by IBM Credit:
Covenant
Covenant Requirement As of Date
- -------- ----------- ----------
Minimum Tangible Net $18,000,000.00 03/31/03 and
Worth thereafter
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