SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit 10.7
SEVENTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), is dated as
of March 29, 2011, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting through its Xxxxx
Fargo Business Credit operating division (as successor to Wachovia Bank, National Association
which, in turn, was successor to Congress Financial Corporation (Southwest)) (“Lender”),
and SUPPLIES DISTRIBUTORS, INC., a Delaware corporation (“Borrower”).
WITNESSETH:
WHEREAS, Borrower and Lender entered into that certain Loan and Security Agreement, dated as
of March 29, 2002 (as amended by (i) that certain First Amendment to Loan and Security Agreement,
dated as of April 20, 2004, by and between Borrower and Lender; (ii) that certain Second Amendment
to Loan and Security Agreement, dated as of December 21, 2004, by and between Borrower and Lender;
(iii) that certain Third Amendment to Loan and Security Agreement, dated as of June 24, 2005, by
and between Borrower and Lender; (iv) that certain Fourth Amendment to Loan and Security Agreement,
dated as of April 17, 2006, by and between Borrower and Lender; (v) that certain Fifth Amendment to
Loan and Security Agreement, dated as of March 28, 2007, and (vi) that certain Sixth Amendment to
Loan and Security Agreement, dated as of January 6, 2009, and as further amended, restated,
supplemented or otherwise modified through the date hereof, the “Loan Agreement”)),
whereunder Lender agreed to make extensions of credit from time to time to, or for the account of,
Borrower;
WHEREAS, the parties hereto desire to make certain amendments to the Loan Agreement, subject
to the terms hereof;
NOW THEREFORE, in consideration of the premises and of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, all capitalized terms
used herein have the meanings assigned to such terms in the Loan Agreement, as amended hereby.
SECTION 2. Amendments. Upon the Amendment Effective Date (as hereinafter defined),
the Loan Agreement shall be amended as follows:
(a) Clause (m) of the definition of “Eligible Borrower Accounts” contained in
Section 1.1 of the Loan Agreement is hereby deleted in its entirety and replaced with the
following:
“(m) such Accounts of a single account debtor or its affiliates do not constitute more
than thirty-five percent (35%) of all otherwise Eligible Accounts (but the portion of the
Accounts not in excess of such percentage may be deemed Eligible Borrower Accounts);
provided, that notwithstanding the foregoing, with respect to Accounts of
Staples, Inc., and its subsidiaries and affiliates, such Accounts shall be Eligible Borrower
Accounts if they do not constitute more than forty percent (40%) of all otherwise Eligible
Accounts (but the portion of the Accounts not in excess of such percentage may be deemed
Eligible Borrower Accounts).”
(b) The reference to “$4,250,000” in Section 9.9(g) of the Loan Agreement is hereby
deleted in its entirety and replaced with “$3,500,000”.
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(c) The reference to “$1,500,000” in Section 9.11(c)(i) is hereby deleted in its
entirety and replaced with “$1,000,000”.
(d) Section 12.1(a) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“(a) This Agreement and the other Financing Agreements shall become effective as of the
Closing Date and shall continue in full force and effect for a term ending on the earlier to
occur of (i) March 31, 2014, or (ii) the date on which the parties to the IBM Master
Distributor Agreement (or any similar agreement reached with Infoprint Solutions Company LLC
(“Infoprint”)) shall no longer operate under the terms of such agreement and/or IBM
or Infoprint, as applicable, no longer supplies products pursuant to such agreement to
Borrower (the “Renewal Date”), and from year to year thereafter, unless sooner
terminated pursuant to the terms hereof; provided, that Lender may, at its
option, extend the Renewal Date by giving Borrower notice thereof at least sixty (60) days
prior to the Renewal Date. Lender or Borrower (subject at all times to Lender’s right to
extend the Renewal Date as provided above) may terminate this Agreement and the other
Financing Agreements effective on the Renewal Date or on the anniversary of the Renewal Date
in any year by giving to the other party at least sixty (60) days’ prior, written notice;
provided, that this Agreement and all other Financing Agreements must be
terminated simultaneously. In furtherance of the foregoing, on or before the proposed
effective date of termination or non-renewal of this Agreement and the other Financing
Agreements, Borrower shall pay to Lender, in full, all outstanding and unpaid Obligations
and shall furnish cash collateral to Lender in such amounts as Lender determines are
reasonably necessary to secure Lender from loss, cost, damage or expense, including
attorneys’ fees and legal expenses, in connection with any contingent Obligations, checks or
other payments provisionally credited to the Obligations and/or as to which Lender has not
yet received final and indefeasible payment. Such payments in respect of the Obligations
and cash collateral shall be remitted by wire transfer in Federal funds to such bank account
of Lender as Lender may, in its discretion, designate in writing to Borrower for such
purpose. Interest shall be due until and including the next business day, if the amounts so
paid by Borrower to the bank account designated by Lender are received in such bank account
later than 12:00 noon, Dallas, Texas time.”
(e) Section 12.1(c) of the Loan Agreement is hereby deleted in its entirety and
replaced with the following:
“(c) If for any reason this Agreement is terminated prior to the end of the then
current term or renewal term of this Agreement, in view of the impracticality and extreme
difficulty of ascertaining actual damages and by mutual agreement of the parties as to a
reasonable calculation of Lender’s lost profits as a result thereof, Borrower agrees to pay
to Lender, upon the effective date of such termination, an early termination fee in the
amount set forth below if such termination is effective in the period indicated:
| Amount | Period | |||
(1)
|
0.50% of Maximum Credit | From March 29, 2011, to and including March 28, 2012; | ||
(2)
|
0.25% of Maximum Credit | From March 29, 2012, to and including March 29, 2013; and | ||
(3)
|
Zero (0) | From March 30, 2013, and thereafter. |
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Such early termination fee shall be presumed to be the amount of damages sustained by Lender
as a result of such early termination and Borrower agrees that it is reasonable under the
circumstances currently existing. In addition, Lender shall be entitled to such early
termination fee upon the occurrence of any Event of Default described in Sections
10.1(g) and 10.1(h) of the Loan Agreement, even if Lender does not exercise its
right to terminate this Agreement, but elects, at its option, to provide financing to
Borrower or permit the use of cash collateral under the United States Bankruptcy Code. The
early termination fee provided for in this Section 12.1 shall be deemed included in
the Obligations. Notwithstanding anything contained herein to the contrary, the early
termination fee shall not apply to any early termination as the result of a complete
refinancing of the Loans by Xxxxx Fargo Bank, National Association.”
SECTION 3. Representations, Warranties and Covenants of Borrower. Borrower represents
and warrants to Lender, and agrees that:
(a) the representations and warranties contained in the Loan Agreement (as amended hereby) and
the other outstanding Financing Agreements are true and correct in all material respects at and as
of the date hereof as though made on and as of the date hereof, except (i) to the extent
specifically made with regard to a particular date and (ii) for such changes as are a result of any
act or omission specifically permitted under the Loan Agreement (or under any Loan Document), or as
otherwise specifically permitted by Lender;
(b) on the Amendment Effective Date, after giving effect to this Amendment, no Event of
Default will have occurred and be continuing;
(c) the execution, delivery and performance of this Amendment have been duly authorized by all
necessary action on the part of, and duly executed and delivered by, Borrower, and this Amendment
is a legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance
with its terms, except as the enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors’ rights
generally and general principles of equity (regardless of whether such enforcement is sought in a
proceeding in equity or at law); and
(d) the execution, delivery and performance of this Amendment do not conflict with or result
in a breach by Borrower of any term of any material contract, loan agreement, indenture or other
agreement or instrument to which Borrower is a party or is subject.
SECTION 4. Conditions Precedent to Effectiveness of Amendment. This Amendment shall
become effective (the “Amendment Effective Date”) upon satisfaction of each of the
following conditions:
(a) Each of Borrower and Lender shall have executed and delivered to Lender this Amendment,
and such other documents as Lender may reasonably request;
(b) Borrower shall have paid to Lender the extension fee required to be paid to Lender
pursuant to the terms of Section 5 of this Amendment;
(c) (i) Each of PFSweb, PFS, and Holdings shall have executed and delivered a Reaffirmation of
Guarantee in the form attached to this Amendment, (ii) PFS shall have executed and delivered a
Reaffirmation of Subordination Agreement and a Reaffirmation of Security Agreement, in each case,
in the form attached to this Amendment, and (iii) Holdings shall have executed and delivered a
Reaffirmation of Security Agreement in the form attached to this Amendment;
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(d) No Event of Default shall have occurred and be continuing; and
(e) All legal matters incident to the transactions contemplated hereby shall be reasonably
satisfactory to counsel for Lender.
SECTION 5. Extension Fee. On the date hereof, Lender shall have fully earned a fee in
an amount equal to $30,000.00, for the amendments set forth herein, which fee shall be fully due
and payable on the date of execution hereof. Lender hereby is expressly authorized by Borrower to
(i) charge such amount to Borrower’s loan account, and (ii) designate such amount as a Revolving
Loan under the Loan Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in counterparts,
each of which when so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument. Delivery of an executed
counterpart of this Amendment by telefacsimile, “.pdf file” or other electronic method of
transmission shall be equally as effective as delivery of an originally executed counterpart of
this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile,
“.pdf file” or other electronic method of transmission also shall deliver an originally executed
counterpart of this Amendment but the failure to deliver an originally executed counterpart shall
not affect the validity, enforceability, and binding effect of this Amendment.
SECTION 7. Costs and Expenses. Borrower hereby affirms its obligation under
Section 9.16 of the Loan Agreement to reimburse Lender for all expenses (including
reasonable attorneys’ fees) paid or incurred by Lender in connection with the preparation,
negotiation, execution and delivery of this Amendment.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE INTERNAL
CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 9. Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and assigns.
SECTION 10. Effect of Amendment; Reaffirmation of Financing Agreements. The parties
hereto agree and acknowledge that (a) nothing contained in this Amendment in any manner or respect
limits or terminates any of the provisions of the Loan Agreement or the other outstanding Financing
Agreements other than as expressly set forth herein and (b) the Loan Agreement (as amended hereby)
and each of the other outstanding Financing Agreements remain and continue in full force and effect
and are hereby ratified and reaffirmed in all respects. Upon the effectiveness of this Amendment,
each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words
of similar import shall mean and be a reference to the Loan Agreement, as amended hereby.
SECTION 11. Headings. Section headings in this Amendment are included herein for
convenience of any reference only and shall not constitute a part of this Amendment for any other
purposes.
SECTION 12. Release. BORROWER HEREBY ACKNOWLEDGES THAT AS OF THE DATE HEREOF IT HAS
NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER
THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE
OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER, ITS
AFFILIATES AND PARTICIPANTS, OR ANY OF
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THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR ATTORNEYS. BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER, ITS AFFILIATES AND PARTICIPANTS,
AND THEIR RESPECTIVE PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND
LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED,
FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR
BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH BORROWER MAY NOW OR HEREAFTER HAVE AGAINST LENDER
AND ITS PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR
REGULATIONS, OR OTHERWISE, AND ARISING FROM THE LIABILITIES, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE LOAN AGREEMENT OR OTHER FINANCING AGREEMENTS, AND NEGOTIATION FOR AND EXECUTION
OF THIS AMENDMENT. BORROWER HEREBY COVENANTS AND AGREES NEVER TO INSTITUTE ANY ACTION OR SUIT AT
LAW OR IN EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID IN THE INSTITUTION OR PROSECUTION OF
ANY CLAIM, ACTION OR CAUSE OF ACTION, RIGHTS TO RECOVER DEBTS OR DEMANDS OF ANY NATURE AGAINST
LENDER, ITS AFFILIATES AND PARTICIPANTS, OR THEIR RESPECTIVE SUCCESSORS, AGENTS, ATTORNEYS,
OFFICERS, DIRECTORS, EMPLOYEES, AND PERSONAL AND LEGAL REPRESENTATIVES ARISING ON OR BEFORE THE
DATE HEREOF OUT OF OR RELATED TO LENDER’S ACTIONS, OMISSIONS, STATEMENTS, REQUESTS OR DEMANDS IN
ADMINISTERING, ENFORCING, MONITORING, COLLECTING OR ATTEMPTING TO COLLECT THE OBLIGATIONS OF
BORROWER TO LENDER, WHICH OBLIGATIONS WERE EVIDENCED BY THE LOAN AGREEMENT AND THE OTHER FINANCING
AGREEMENTS.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered
as of the date first above written.
SUPPLIES DISTRIBUTORS, INC., a Delaware corporation, as Borrower |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, through its
Xxxxx Fargo Business Credit operating division,
as successor to Wachovia Bank, National Association
which, in turn, was successor to Congress Financial
Corporation (Southwest), as Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Seventh Amendment to
Loan and Security Agreement
Loan and Security Agreement
Reaffirmation of Guarantee
Each of the undersigned hereby (i) consents and agrees to the terms and provisions of the
foregoing Amendment and each of the transactions contemplated thereby, and confirms and agrees that
all references in the Financing Agreements to the “Loan Agreement” shall mean the Loan Agreement as
amended by the foregoing Amendment, and (ii) agrees that that certain Guarantee, dated as of March
29, 2002 (the “Guarantee”), executed by the undersigned, in favor of Lender, remains in
full force and effect and continues to be the legal, valid and binding obligation of the
undersigned enforceable against the undersigned in accordance with its terms.
Furthermore, each of the undersigned hereby agrees and acknowledges that (a) the Guarantee
executed by the undersigned is not subject to any claims, defenses or offsets, (b) nothing
contained in the foregoing Amendment shall adversely affect any right or remedy of Lender under the
Guarantee executed by the undersigned or any other agreement executed by the undersigned in
connection therewith, (c) the execution and delivery of the foregoing Amendment or any agreement
entered into by Lender in connection therewith shall in no way reduce, impair or discharge any
obligations of the undersigned pursuant to the Guarantee executed by the undersigned, and shall not
constitute a waiver by Lender of Lender’s rights against the undersigned under the Guarantee
executed by the undersigned, (d) the consent of the undersigned is not required to the
effectiveness of the foregoing Amendment and (e) no consent by the undersigned is required for the
effectiveness of any future amendment, modification, forbearance or other action with respect to
the Loan Agreement or any present or future Financing Agreement (other than the Guarantee executed
by the undersigned).
PFSWEB, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
PRIORITY FULFILLMENT SERVICES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Reaffirmation of Guarantee
Reaffirmation of Subordination Agreement
The undersigned hereby (i) consents and agrees to the terms and provisions of the foregoing
Amendment and each of the transactions contemplated thereby, and confirms and agrees that all
references in the Financing Agreements to the “Loan Agreement” shall mean the Loan Agreement as
amended by the foregoing Amendment, and (ii) agrees that that certain Notes Payable Subordination
Agreement, dated as of March 29, 2002 (as amended through the date hereof, the “Subordination
Agreement”), executed by the undersigned, acknowledged by Borrower, and accepted by Lender,
remains in full force and effect and continues to be the legal, valid and binding obligation of the
undersigned enforceable against the undersigned in accordance with its terms.
Furthermore, the undersigned hereby agrees and acknowledges that (i) the Subordination
Agreement is not subject to any claims, defenses or offsets, (ii) nothing contained in the
foregoing Amendment shall adversely affect any right or remedy of Lender under the Subordination
Agreement or any other agreement executed by the undersigned in connection therewith, (iii) the
execution and delivery of the foregoing Amendment or any agreement entered into by Lender in
connection therewith shall in no way reduce, impair or discharge any obligations of the undersigned
pursuant to the Subordination Agreement, and shall not constitute a waiver by Lender of Lender’s
rights against the undersigned under the Subordination Agreement, (iv) the consent of the
undersigned is not required to the effectiveness of the foregoing Amendment and (v) no consent by
the undersigned, in its capacity as a subordinated creditor of Borrower, is required for the
effectiveness of any future amendment, modification, forbearance or other action with respect to
the Loan Agreement or any present or future document executed in connection therewith (other than
the Subordination Agreement).
PRIORITY FULFILLMENT SERVICES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Reaffirmation of Subordination Agreement
Reaffirmation of Security Agreement
The undersigned (“Pledgor”) hereby (i) consents and agrees to the terms and provisions
of the foregoing Amendment and each of the transactions contemplated thereby and confirms and
agrees that all references in the Financing Agreements to the “Loan Agreement” shall mean the Loan
Agreement as amended by the foregoing Amendment and (ii) agrees that the General Security
Agreement, dated as of March 29, 2002, as amended, executed by Pledgor for the benefit of Lender
(the “Security Agreement”), remains in full force and effect and continues to be the legal,
valid and binding obligation of Pledgor enforceable against Pledgor in accordance with its terms.
Furthermore, Pledgor hereby agrees and acknowledges that (a) the Security Agreement is not
subject to any claims, defenses or offsets, (b) nothing contained in the foregoing Amendment shall
adversely affect any right or remedy of Lender under the Security Agreement or any agreement
executed by Pledgor in connection therewith, (c) the execution and delivery of the foregoing
Amendment or any agreement entered into by Lender in connection therewith shall in no way reduce,
impair or discharge any obligations of Pledgor pursuant to the Security Agreement and shall not
constitute a waiver by Lender of any of Lender’s rights under the Security Agreement, (d) the
consent of Pledgor is not required to the effectiveness of the foregoing Amendment and (e) no
consent by Pledgor is required for the effectiveness of any future amendment, modification,
forbearance or other action with respect to the Loan Agreement or any present or future Financing
Agreement (other than the Security Agreement executed by Pledgor).
|
PRIORITY FULFILLMENT SERVICES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Reaffirmation of Security Agreement
Reaffirmation of Security Agreement
The undersigned (“Pledgor”) hereby (i) consents and agrees to the terms and provisions
of the foregoing Amendment and each of the transactions contemplated thereby and confirms and
agrees that all references in the Financing Agreements to the “Loan Agreement” shall mean the Loan
Agreement as amended by the foregoing Amendment and (ii) agrees that the General Security
Agreement, dated as of March 29, 2002, as amended, executed by Pledgor for the benefit of Lender
(the “Security Agreement”), remains in full force and effect and continues to be the legal,
valid and binding obligation of Pledgor enforceable against Pledgor in accordance with its terms.
Furthermore, Pledgor hereby agrees and acknowledges that (a) the Security Agreement is not
subject to any claims, defenses or offsets, (b) nothing contained in the foregoing Amendment shall
adversely affect any right or remedy of Lender under the Security Agreement or any agreement
executed by Pledgor in connection therewith, (c) the execution and delivery of the foregoing
Amendment or any agreement entered into by Lender in connection therewith shall in no way reduce,
impair or discharge any obligations of Pledgor pursuant to the Security Agreement and shall not
constitute a waiver by Lender of any of Lender’s rights under the Security Agreement, (d) the
consent of Pledgor is not required to the effectiveness of the foregoing Amendment and (e) no
consent by Pledgor is required for the effectiveness of any future amendment, modification,
forbearance or other action with respect to the Loan Agreement or any present or future Financing
Agreement (other than the Security Agreement executed by Pledgor).
| BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Reaffirmation of Security Agreement
