AMENDMENT 11 TO AMENDED AND RESTATED PLATINUM PLAN AGREEMENT (WITH INVOICE DISCOUNTING)
Exhibit 10.3
This Amendment 11 (“Amendment”) dated March 31, 2011 is made to the AMENDED AND RESTATED
PLATINUM PLAN AGREEMENT (WITH INVOICE DISCOUNTING) by and among IBM BELGIUM FINANCIAL SERVICES
B.V.B.A.., with a registered number of R.C. Brussels 451.673 with an address of Xxxxxx xx Xxxxxxx
00, XX- 0000 Xxxxxxxx VAT BE 424300467 (“IBM GF” or “us”), Suppliers Distributors S.A. with a
registered number of RC Liege 208795 with an address of Xxx Xxxxx Xxxxxxx 0, X-0000
Xxxxx-Xxxxxxxx, Xxxxxxx (“SDSA” or “you”), and PFS Web B.V. SPRL a company registered in The
Netherlands, having the statutory seat in Amsterdam under the number 17109541, and having the
administration and direction seat in Grace Hollogne, with a Belgian trade registration number of
R.C. Liege 204162, VAT BE 466681054 (“PFS Web B.V.”) (SDSA 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 31, 2012 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:
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“ Financial Covenants
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 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 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 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 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. However, as long as you are not in violation with any such
Financial Covenants prior to or subsequent to the following transactions, (i) SDSA may pay cash
dividends in an amount not to exceed 100% of its prior year earnings, to Supplies Distributors,
Inc. in calendar year 2011.”
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: €16,000,000
VAT Receivables: Included in Collateral Valuation
Prepayment Percentage: (i) 80% of Eligible Infoprint or IBM Reimbursables no older than 90 days,
(ii) 80% of Eligible Infoprint or IBM Receivables and (iii) 80% of Eligible VAT Receivables.
Collateral Value of Stock-in-Trade: (A) 100% of paid for IBM Printing Systems Division
or InfoPrint Solution Company inventory other than (a) machines which IBM Printing Systems Division
or Infoprint Solution Company 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 or
InfoPrint Solution Company 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 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 COVENANTS
SDSA 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
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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 Revenue | Greater than 0.10 percent | ||
(iii)
|
Working Capital Turnover (WCTO) | Greater than Zero and Less than 37.0:1.0 |
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 | 03/31/11 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 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 BVBA/ SPRL. | SUPPLIERS DISTRIBUTORS S.A. | |||||||||
By:
|
By: | |||||||||
| Print Name: | Print Name: | |||||||||
| Title: | Title: | |||||||||
| BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC |
PFS WEB B.V. SPRL | |||||||||
By:
|
By: | |||||||||
| Print Name: | Print Name: | |||||||||
| Title: | Title: | |||||||||
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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: | |||||||||
| BUSINESS SUPPLIES DISTRIBUTORS HOLDINGS, LLC | ||||||||||
By: |
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| Print Name: | ||||||||||
| Title: | ||||||||||
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