Agreement For Inventory Financing [Amendment] - IBM Credit Corp., Business Supplies Distributors Holding LLC, Supplies Distributors Inc., Priority Fulfillment Services Inc., PFSweb Inc. and Inventory Financing Partners LLC
AMENDMENT
TO
AGREEMENT FOR INVENTORY FINANCING
This Amendment ("Amendment") to the Agreement for Inventory Financing is
made as of March 28, 2003 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, IFP, 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. Borrower and IBM Credit have entered into that certain Agreement for
Inventory Financing ("AIF") dated as of March 29, 2002 (the "Agreement");
B. Borrower has requested and IBM Credit agrees to extend the Termination
Date of the Agreement;
C. Borrower agrees to certain financial covenants revisions by IBM Credit;
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 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 Section 4 hereof, the Agreement is hereby
amended as follows:
A. The AIF is hereby amended as follows:
(a) The definition of "Termination Date" in Section 1.1 of the Agreement is
hereby amended by deleting it in its entirety and substituting, in lieu thereof,
the following definition:
""Termination Date": shall mean March 29, 2004 or such other date as IBM Credit
and the Customer may agree to from time to time in writing."
(b) Section 8.6 is hereby amended in its entirety to read 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
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stock of Borrower and dividends not to exceed $600,000 to be paid in fiscal year
2003 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."
B. Attachment A to the AIF 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:
(a) The following definitions of "Total Assets" and "Total Net Worth" in
Section IV of Attachment A are amended in their entirety to read as follows:
"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 should be excluded.
"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, the 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.
(b) Section IV of Attachment A is amended and restated by replacing the
applicable subsections to read as follows:
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 (monthly, quarterly, annually) by IBM Credit:
<Table>
<Caption>
Covenant
Covenant Requirement
-------- -----------
<S> <C>
(ii) Net Profit after Tax to Revenue** Equal to or Greater than
**Excluding all income and losses applicable to 0.20 percent
(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.
</Table>
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 (monthly, quarterly, annually) by IBM
Credit:
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<PAGE>
<Table>
<Caption>
Covenant
Covenant Requirement
-------- -----------
<S> <C>
(ii) Net Profit after Tax to Revenue* Equal to or Greater than
*Excluding all (a) income and losses applicable 0.15 percent
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.
(iv) Cash Flow from Operations per quarter Greater than $0
</Table>
C. Attachment C-1 to the AIF is hereby amended by deleting such Attachment
C-1 in its entirety and substituting, in lieu thereof, the Attachment C-1
attached hereto. Such new Attachment C-1 shall be effective as of the date
specified in the new Attachment C-1. The changes contained in the new Attachment
C-1 include, without limitation, the following:
Section I of Attachment C-1 is amended and restated by replacing the
applicable subsections to read as follows:
"I. FINANCIAL COVENANTS:
SUPPLIES DISTRIBUTORS, INC.
<Table>
<Caption>
Covenant Covenant Requirement Covenant Actual
-------- -------------------- ---------------
<S> <C> <C>
(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.
</Table>
BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC
<Table>
<Caption>
<S> <C> <C>
Covenant Covenant Requirement Covenant Actual
-------- -------------------- ---------------
(ii) Net Profit after Tax to Revenue* Equal to or Greater
*Excluding all (a) income and losses than 0.15 percent
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.
(iv) Cash Flow from Operations per Greater than $0
quarter
</Table>
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<PAGE>
SECTION 3. CONDITIONS OF EFFECTIVENESS OF CONSENT AND AMENDMENT.
(a) 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.
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. 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
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 therein include,
without limitation the indebtedness liabilities and obligations of the Borrower
under the Agreement as amended hereby. PFS hereby ratifies and confirms its
Notes Payable Subordination Agreement executed by PFS on November 12, 2002 in
favor of IBM Credit and confirms such 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.
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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.
<Table>
<S> <C>
IBM CREDIT LLC SUPPLIES DISTRIBUTORS, INC.
By: By:
------------------------------ ------------------------------
Print Name: Print Name:
---------------------- ----------------------
Title: Title:
--------------------------- ---------------------------
</Table>
<Table>
<S> <C>
BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC PRIORITY FULFILLMENT SERVICES, INC.
By: __________________ as Managing Member
By: By:
---------------------------------------- ------------------------------
Print Name: Print Name:
-------------------------------- ----------------------
Title: Title:
------------------------------------- ---------------------------
</Table>
PFSWEB, INC.
By:
--------------------------------------
Print Name:
------------------------------
Title:
-----------------------------------
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