Loan and Security Agreement [Amendment No. 1] - Priority Fulfillment Services Inc., Priority Fulfillment Services of Canada Inc. and Comerica Bank
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (herein called this
"Amendment") made as of the 11th day of September, 2003 by and between Priority
Fulfillment Services, Inc. ("Priority"), Priority Fulfillment Services of
Canada, Inc. ("Priority Canada"; Priority and Priority Canada are sometimes
collectively referred to herein as "Borrowers", and each individually as
"Borrower") and Comerica Bank (successor by merger to Comerica Bank-California
("Bank"),
W I T N E S S E T H:
WHEREAS, Borrowers and Bank have entered into that certain Loan and
Security Agreement dated as of March 28, 2003 (as from time to time amended or
modified, the "Original Agreement") for the purposes and consideration therein
expressed, pursuant to which Bank became obligated to make loans to Borrowers as
therein provided; and
WHEREAS, Borrowers and Bank desire to amend the Original Agreement to
provide for term loans and for the other purposes set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Bank to Borrowers, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
Section 1.1 Terms Defined in the Original Agreement. Unless the context
otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
Section 1.2. Other Defined Terms. Unless the context otherwise
requires, the following terms when used in this Amendment shall have the
meanings assigned to them in this Section 1.2.
"Amendment" means this First Amendment to Loan and Security
Agreement.
"Loan Agreement" means the Original Agreement as amended
hereby.
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ARTICLE II.
Amendments to Original Agreement
Section 2.1. Defined Terms.
(a) The definition of "Committed Revolving Line" in Exhibit A to the
Original Agreement is hereby amended in its entirety to read as follows:
"Committed Revolving Line" means a Credit Extension of up to
$5,000,000 (inclusive of any amounts outstanding under the Letters of
Credit Sublimit).
(b) The following definitions are hereby added to Exhibit A to the
Original Agreement following the definition of "Equipment":
"Equipment Advance" has the meaning set forth in Section
2.1A(b).
"Equipment Line" means Equipment Advances of up to $2,500,000.
"Equipment Maturity Date" means September 10, 2006.
(c) The following definitions are hereby added to Exhibit A to the
Original Agreement immediately following the definition of "Trademarks":
"Tranche A" has the meaning assigned in Section 2.1A(b)(i).
"Tranche B" has the meaning assigned in Section 2.1A(b)(i).
"Tranche A Equipment Advance" or "Tranche A Equipment
Advances" means any Equipment Advance(s) made under Tranche A.
"Tranche B Equipment Advance" or "Tranche B Equipment
Advances" means any Equipment Advance(s) made under Tranche B.
"Tranche A Availability End Date" means March 10, 2004.
"Tranche B Availability End Date" means September 10, 2004.
Section 2.2. Equipment Advances. The following Section 2.1A is hereby
added to the Original Agreement immediately following Section 2.1:
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2.1A Equipment Advances.
(a) Promise to Pay. Borrowers promise to pay to Bank, in
lawful money of the United States of America, the aggregate unpaid
principal amount of all Equipment Advances made by Bank to Borrowers,
together with interest on the unpaid principal amount of such Equipment
Advances at rates in accordance with the terms hereof.
(b) Equipment Advances.
(i) Subject to and upon the terms and conditions of this
Agreement, Bank agrees to make advances (each an "Equipment Advance"
and, collectively, the "Equipment Advances") under the Equipment Line
to Borrowers. The first Equipment Advance shall be used to refinance
Priority's existing equipment leases, including buyout provisions, with
various creditors (the "First Equipment Advance"). Each subsequent
Equipment Advance shall be advanced in two tranches, Tranche A and
Tranche B. Each Borrower may request Equipment Advances under Tranche A
at any time from the date hereof through the Tranche A Availability End
Date. Each Borrower may request Equipment Advances under Tranche B at
any time from the Tranche A Availability End Date through the Tranche B
Availability End Date. Neither the amount of any individual Equipment
Advance, nor the aggregate remaining outstanding principal balance of
Equipment Advances shall exceed the Equipment Line and the aggregate
amount of Tranche A Equipment Advances and Tranche B Equipment Advances
shall not exceed $1,000,000. Each Equipment Advance (other than the
First Equipment Advance) shall not exceed 80% of the invoice amount of
equipment and software approved by Bank from time to time (which the
applicable Borrower shall, in any case, have purchased within 90 days
of the date of the corresponding Equipment Advance), including taxes,
shipping, warranty charges, freight discounts and installation expense
(collectively, "Soft Costs"); provided that (i) the aggregate amount of
Equipment Advances (excluding the First Equipment Advance) made with
respect to Soft Costs shall not exceed $200,000, and (ii) the aggregate
amount of Equipment Advances (excluding the First Equipment Advance)
with respect to Soft Costs shall not exceed twenty percent (20%) of the
aggregate principal amount of Equipment Advances (excluding the First
Equipment Advance).
(ii) Interest shall accrue from the date of each Equipment
Advance at the rate specified in Section 2.3(a), and shall be payable
in accordance with Section 2.3(c). The First Equipment Advance shall be
payable in 30 equal installments of principal, plus all accrued
interest, beginning on October 1, 2003, and continuing on the same day
of each month thereafter until March 1, 2006, at which time all amounts
due in connection with the First Equipment Advance shall be immediately
due and payable. Any Equipment Advances that are outstanding under
Tranche A on the Tranche A Availability End Date shall be payable in 30
equal monthly installments of principal, plus all accrued interest,
beginning on April 1, 2004, and continuing on the same day of each
month thereafter through the Equipment Maturity Date at which time all
amounts due in connection with Tranche A Equipment Advances made under
this Section 2.1A(b) shall be immediately due and payable. Any
Equipment Advances that are outstanding under Tranche B on the Tranche
B Availability End Date shall be payable in 24 equal monthly
installments of
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principal, plus all accrued interest, beginning on October 1, 2004 and
continuing on the same day of each month thereafter through the
Equipment Maturity Date, at which time all amounts due in connection
with Tranche B Equipment Advance made under this Section 2.1A(b) shall
be immediately due and payable. Equipment Advances, once repaid, may
not be reborrowed. Borrowers may prepay any Equipment Advances without
penalty or premium.
(iii) When a Borrower desires to obtain an Equipment Advance,
such Borrower shall notify Bank (which notice shall be irrevocable) by
facsimile transmission to be received no later than 3:00 p.m (Pacific
time). The notice shall be signed by a Responsible Officer or its
designee and include a copy of the invoice for any Equipment to be
financed.
Section 2.3. Interest Rate. The following sentence is hereby added to
Section 2.3(a) of the Original Agreement:
Except as set forth in Section 2.3(b), the Equipment Advances
shall bear interest, on the outstanding daily balance thereof, at a
rate equal to 1.5% above the Prime Rate.
Section 2.4. Equipment Line. The following Section 2.7 is hereby added
to the Original Agreement:
2.7. Equipment Line Following Termination of
Committed Revolving Line . In the event all Advances are paid in full
and the Committed Revolving Line is terminated prior to the payment in
full of the Equipment Advances, unless Borrowers comply with the
requirements of either clause (a) or (b) of this Section 2.7, this
Agreement will remain in full force and effect (except as to the
availability of the Committed Revolving Line) and Bank's security
interest in the Collateral will continue to secure Borrowers'
obligations under the Equipment Line.
(a) Borrowers may, at their option, pay to Bank in
full all amounts outstanding (all unpaid principal and accrued interest
through the date of payoff) under the Equipment Line, whereupon (i)
Borrowers' rights to receive, and Bank's obligations to make, Equipment
Advances under the Equipment Line shall automatically terminate, (ii)
Bank shall release its security interests in the Collateral, and (iii)
this Agreement shall terminate (subject to Section 12.7 hereof); or
(b) Borrowers may, at their option, concurrently with
the termination of the Committed Revolving Line, deposit with Bank (or
an Affiliate of Bank) an amount equal to the aggregate principal
balance of the Equipment Advances then outstanding (the "Additional
Cash Collateral") and execute a pledge and security agreement in favor
of Bank, in form and substance satisfactory to Bank, pursuant to which
Borrowers shall grant a first priority security interest in favor of
Bank in the Additional Cash Collateral. Upon receipt of the Additional
Cash Collateral and executed pledge and security agreement, Bank will
release its security interest in all Collateral other than the
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Additional Cash Collateral and all of the covenants contained in
Articles 6 and 7 hereof (other than 6.1, 6.2(b)-(g) and 6.4) shall
terminate and be of no further force or effect. Bank agrees that it
will, from time to time upon written request by Borrowers, release its
security interest on, and distribute in accordance with Borrowers'
written directions, Additional Cash Collateral in an amount equal to
the amount by which the Additional Cash Collateral exceeds the
aggregate outstanding principal balance of the Equipment Line as of the
date of such request. When all Equipment Advances and other Obligations
have been paid in full, Bank shall release its security interest in any
remaining Additional Cash Collateral.
Section 2.5. Financial Covenants. Section 6.7 of the Original Agreement
is hereby amended by adding the following subsection (c):
(c) Minimum Cash. A balance of Cash at Bank and Cash at Bank's
affiliates covered by a control agreement of not less than $1,250,000.
Section 2.6. Exhibits. Exhibit E to the Original Agreement is hereby
amended in its entirety to read as set forth in Exhibit E attached hereto.
ARTICLE III.
Conditions of Effectiveness
Section 3.1. Effective Date. This Amendment shall become effective as
of the date first above written when and only when (i) Bank shall have received,
at Bank's office, a counterpart of this Amendment executed and delivered by
Borrowers, (ii) Borrowers shall have paid Bank, in good and immediately
available funds, a facility fee in the amount of $2,500 with respect to the
Equipment Line, and (iii) Bank shall have received an executed payoff letter
from the various equipment creditors of Priority, in form and substance
satisfactory to Bank, for the termination of Priority's existing Equipment
leases with such creditors.
ARTICLE IV.
Representations and Warranties
Section 4.1. Representations and Warranties of Borrowers. In order to
induce Bank to enter into this Amendment, each Borrower represents and warrants
to Bank that:
(a) The representations and warranties contained in Article 5
of the Original Agreement are true and correct at and as of the time of
the effectiveness hereof.
(b) Each Borrower is duly authorized to execute and deliver
this Amendment and is and will continue to be duly authorized to borrow
and to perform its obligations under the Loan Agreement. Each Borrower
has duly taken all corporate action necessary
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to authorize the execution and delivery of this Amendment and to
authorize the performance of the obligations of such Borrower
hereunder.
(c) The execution and delivery by Borrowers of this Amendment,
the performance by Borrowers of their obligations hereunder and the
consummation of the transactions contemplated hereby do not and will
not conflict with any provision of law, statute, rule or regulation or
of the organizational documents of Borrowers, or of any material
agreement, judgment, license, order or permit applicable to or binding
upon Borrowers, or result in the creation of any lien, charge or
encumbrance upon any assets or properties of Borrowers. Except for
those which have been duly obtained, no consent, approval,
authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by
Borrowers of this Amendment or to consummate the transactions
contemplated hereby.
(d) When duly executed and delivered, each of this Amendment
and the Loan Agreement will be a legal and binding instrument and
agreement of Borrowers, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency and similar laws applying
to creditors' rights generally and by principles of equity applying to
creditors' rights generally.
ARTICLE V
Miscellaneous
Section 5.1. Ratification of Agreements. The Original Agreement as
hereby amended is hereby ratified and confirmed in all respects. Any reference
to the Loan Agreement in any Loan Document shall be deemed to be a reference to
the Original Agreement as hereby amended. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of Bank under the Loan
Agreement or any other Loan Document nor constitute a waiver of any provision of
the Loan Agreement or any other Loan Document.
Section 5.2. Survival of Agreements. All representations, warranties,
covenants and agreements of Borrowers herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Advances and Equipment Advances, and
shall further survive until all of the Obligations are paid in full. All
statements and agreements contained in any certificate or instrument delivered
by Borrowers hereunder or under the Loan Agreement to Bank shall be deemed to
constitute representations and warranties by, or agreements and covenants of,
Borrowers under this Amendment and under the Loan Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Loan Agreement pertaining to Loan Documents apply hereto.
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Section 5.4. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California and any
applicable laws of the United States of America in all respects, including
construction, validity and performance.
Section 5.5. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
PRIORITY FULFILLMENT SERVICES, INC.
By:
--------------------------------
Name:
Title:
PRIORITY FULFILLMENT SERVICES OF
CANADA, INC.
By:
--------------------------------
Name:
Title:
COMERICA BANK (successor by merger
with Comerica Bank-California)
By:
--------------------------------
Name:
Title:
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CONSENT AND AGREEMENT
PFSWEB, INC., a Delaware corporation, hereby consents to the provisions
of this Amendment and the transactions contemplated herein, and hereby ratifies
and confirms the Guaranty dated as of March 28, 2003 made by it for the benefit
of Bank, and agrees that its obligations and covenants thereunder are unimpaired
hereby and shall remain in full force and effect.
PFSWEB, INC.
By:
--------------------------------
Name:
Title:
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EXHIBIT E
COMPLIANCE CERTIFICATE
TO: COMERICA BANK - CALIFORNIA
FROM: PRIORITY FULFILLMENT SERVICES, INC. and PRIORITY FULFILLMENT SERVICES
OF CANADA, INC.
The undersigned authorized officer of Priority Fulfillment Services, Inc. and
Priority Fulfillment Services of Canada, Inc. (collectively, "Borrowers") hereby
certifies that in accordance with the terms and conditions of the Loan and
Security Agreement between Borrowers and Bank (the "Agreement"), (i) Borrowers
are in complete compliance for the period ending __________ with all required
covenants, including without limitation the ongoing registration of intellectual
property rights in accordance with Section 6.8, except as noted below and (ii)
all representations and warranties of Borrowers stated in the Agreement are true
and correct in all material respects as of the date hereof. Attached herewith
are the required documents supporting the above certification. The Officer
further certifies that these are prepared in accordance with Generally Accepted
Accounting Principles (GAAP) and are consistently applied from one period to the
next except as explained in an accompanying letter or footnotes.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
<Table>
<Caption>
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
<S> <C> <C>
Monthly financial statements Monthly within 35 days Yes No
Annual (CPA Audited) of Guarantor FYE within 90 days Yes No
Annual (CPA Audited) of BSD FYE within 90 days Yes No
10Q of Guarantor Quarterly within 45 days Yes No
10K of Guarantor FYE within 90 days Yes No
A/R & A/P Agings, Borrowing Base Cert. Monthly within 30 days* Yes No
A/R Audit Initial and Semi-Annual Yes No
IP Report Quarterly within 30 days Yes No
ACTUAL
------
Adjusted Tangible Net Worth $21,000,000 $___________ Yes No
</Table>
* Weekly during any period that Adjusted Tangible Net Worth is less than
$21,000,000
<Table>
<Caption>
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
<S> <C> <C> <C>
Maintain on a Monthly Basis:
Minimum Tangible Net Worth $19,000,000 $___________ Yes No
Minimum Liquidity 1.50 : 1.00 _____ : 1.00 Yes No
Minimum Cash $1,250,000 $___________ Yes No
</Table>
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
------------------------------------------------
SIGNATURE
------------------------------------------------
TITLE
------------------------------------------------
DATE
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BANK USE ONLY
Received By:
---------------------------------
AUTHORIZED SIGNER
Date:
----------------------------------------
Verified:
------------------------------------
AUTHORIZED SIGNER
Date:
----------------------------------------
Compliance Status Yes No
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