EXHIBIT 10.2
AMENDMENT 4
TO
AMENDED AND RESTATEDPLATINUM PLAN AGREEMENT (WITH INVOICE DISCOUNTING)
This Amendment 4 ("Amendment") dated March 29, 2004 is made to the AMENDED
AND RESTATED PLATINUM PLAN AGREEMENT (WITH INVOICE DISCOUNTING) by and among IBM
BELGIUM FINANCIAL SERVICES S.A., with a registered number of R.C. Brussels
451.673 with an address of Avenue du Bourget 42, BE- 1130 Brussels VAT BE
424300467 ("IBM GF" or "US"), SUPPLIERS DISTRIBUTORS S.A. with a registered
number of RC Liege 208795 with an address of Rue Louis Bleriot 5, B-4460
Grace-Hollogne, Belgium ("SDSA"), and BUSINESS SUPPLIES DISTRIBUTORS EUROPE BV a
Netherlands company registered in Maastricht with a Netherlands trade
registration number of HR Maastricht 14062763 with an address of Dalderhaag 13,
6136 Sittard, The Netherlands ("BSDE") (SDSA and BSDE collectively, "YOU"), PFS
WEB B.V a Netherlands company registered in Maastricht under the number 17109541
with a Belgian trade registration number of R.C. Liege 204162 ("PFS WEB B.V.")
(SDSA, BSDE and PFS Web B.V. collectively, the "LOAN PARTIES")
RECITALS:
A. The Loan Parties and IBM GF have entered into that certain AMENDED AND
RESTATED PLATINUM PLAN AGREEMENT (WITH INVOICE DISCOUNTING) dated as of March
29, 2002 (as amended and modified from time to time, the "Agreement");
B. The Loan Parties have requested and IBM GF has agreed to extend the
Agreement for twelve months;
C. The Loan Parties agree to certain financial covenants revisions by IBM
GF; 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, IBM GF and the Loan Parties 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 Section 4 hereof, the Agreement is hereby
amended as follows:
A. The Agreement is hereby amended as follows:
(a) Section 1.1 is hereby amended by adding the following definition:
"TERMINATION DATE": means March 29, 2005 or such other date
as to which IBM GF and the Loan Parties may agree from time
to time.
(b) Section 8.2.7 is hereby amended by deleting it in its entirety and
substituting, in lieu thereof, the following:
"FINANCIAL COVENANTS
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You agree to comply with the Financial Covenants, if any, set
out in the relevant supplements or the Schedule. You also
agree that you will not, without our consent, make any of the
following payments ("Restricted Payments") without our prior
written consent (i) declare or pay any dividend (other than
dividends payable solely in common stock of BSDE and/or SDSA
and the aggregate amount of such dividends under this
Agreement and the AIF does not cause you or Holdings to
violate such Financial Covenants or exceed Eight Hundred
Thousand Dollars ($800,000), without duplication, 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 BSDE and/or SDSA
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 BSDE and/or SDSA ; 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)), except as permitted by the
Amended and Restated Notes Payable Subordination Agreement.
(c) Section 10.1 is hereby amended by deleting it in its entirety and
substituting, in lieu thereof, the following:
"This Agreement will remain in force until the Termination
Date. However following the occurrence of an Event of Default
that we have not waived in writing we may by notice with
immediate effect terminate this Agreement. Upon any
termination of this Agreement we shall have all the rights
and remedies set out in Clause 9.2 until the complete
discharge of all the Loan Parties' obligations to us. Any
such termination shall not affect any right we have in
relation to the IBM Reimbursables and IBM Receivables or the
Receivables Rights and the Supplier Obligations and the
Product Rights.
B. The Schedule to the Agreement is hereby amended by deleting such
Schedule in its entirety and substituting, in lieu thereof, the Schedule
attached hereto. Such new Schedule shall be effective as of the date specified
in the new Schedule. The changes contained in the new Schedule include, without
limitation, the following:
CREDIT LINE: (euro)12,500,000
VAT RECEIVABLES: Deleted from Collateral Valuation
PREPAYMENT PERCENTAGE: (i) 80% of Eligible IBM Reimbursables (1) and (ii) 80% or
Eligible IBM Receivables
COLLATERAL VALUE OF STOCK-IN-TRADE: (A) 100% of paid for IBM Printing Systems
Division inventory (other than (a) machines which IBM Printing Systems Division
has declared obsolete at least 60 days prior to the date of determination and
(b) service parts) which (i) we have purchased the associated Supplier Invoice
from the Authorised Supplier on or after the Closing Date (ii) purchased
directly from IBM prior to the Closing Date and not subject to retention of
title, provided, however, we have a first priority security interest in such
inventory, (iii) is repurchasable under a repurchase agreement with the
Authorized Supplier and (iv) is secured and managed through a pledge with
Disposition, with coverage percentage acceptable to us (such acceptable
percentage to be determined by us within 60 days of the date this
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Schedule is executed)The value to be assigned to such inventory shall be based
upon the Supplier Invoice net of all applicable credit notes.
FINANCIAL COVENANT DEFINITIONS: Changed for net Profit After Tax, Revenue and
Working Capital Turnover.
FINANCIAL COVENANTS
SDSA and BSDE will be required, on a consolidated basis, to maintain the
following financial ratios, percentages and amounts on a year to date basis as
of the last day of the fiscal period under review (quarterly and annually) by us
and IBM Credit:
Covenant Covenant Requirement
(i) Debt to Tangible Net Worth Greater than Zero and Less than
7.0:1.0
(ii) Net Profit after Tax to Greater than 0.10 percent
Revenue
(iii) Working Capital Turnover (WCTO) Greater than Zero and Less than
43.0:1.0
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 and annually) by IBM Credit:
Covenant
Covenant Requirement Date as of
-------- ----------- ----------
(i) Minimum Tangible
Net Worth $18,000,000.00 03/31/04 and
beyond
SECTION 3. CONDITIONS OF EFFECTIVENESS OF CONSENT AND AMENDMENT. This Amendment
shall have been authorized, executed and delivered by each of the parties hereto
and IBM GF shall have received a copy of a fully executed Amendment.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each Loan Party makes to IBM GF the
following representations and warranties all of which are material and are made
to induce IBM GF 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. The execution and delivery of this
Amendment and the performance and observance of the covenants to be performed
and observed hereunder 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.
SECTION 4.3 LITIGATION. Except as has been disclosed by the Loan Party to IBM GF
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.
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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. Each of Holdings, SDI, PFSweb and PFS
hereby ratify and confirm their respective guaranties in favor of IBM GF and
agree that such guaranties remain in full force and effect and that the term
"Liabilities", as used therein include, without limitation the indebtedness
liabilities and obligations of SDSA and BSDE under the Agreement as amended
hereby. SDI hereby ratifies and confirms its Notes Payable Subordination
Agreement executed by SDI on March 29, 2002 and confirms such Notes Payable
Subordination Agreement remains in full force and effect.
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 BELGIUM FINANCIAL SERVICES S.A. SUPPLIERS DISTRIBUTORS S.A.
By:________________________________ By:_____________________________________
Print Name:________________________ Print Name:_____________________________
Title:_____________________________ Title:__________________________________
BUSINESS SUPPLIES DISTRIBUTORS PFS WEB B.V.
EUROPE BV
By:________________________________ By:_____________________________________
Print Name:________________________ Print Name:_____________________________
Title:_____________________________ Title:__________________________________
THE FOLLOWING PARTIES AGREE TO SECTION 6 AS APPLICABLE TO THEM.
SUPPLIES DISTRIBUTORS, INC. PRIORITY FULFILLMENT SERVICES, INC.
By:________________________________ By:_____________________________________
Print Name:________________________ Print Name:_____________________________
Title:_____________________________ Title:__________________________________
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BUSINESS SUPPLIES DISTRIBUTORS
HOLDINGS, LLC
By:________________________________
Print Name:________________________
Title:_____________________________
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