Guaranty - IBM Credit Corp., BSD Acquisition Corp. and PFSweb Inc.
IBM CREDIT CORPORATION
GUARANTY
(BY CORPORATION)
In consideration of credit and financing accommodations granted or to
be granted by IBM Credit Corporation with an office located at 4000 Executive
Parkway, Third Floor, San Ramon, CA 94583 ("IBM Credit") to BSD Acquisition
Corp. ("Customer") under a financing agreement between IBM Credit and Customer,
which is in the best interest of PFSweb, Inc. ("Guarantor"), and for other good
and valuable consideration received, Guarantor guaranties to IBM Credit the
prompt and unconditional performance and payment by Customer of any and all
obligations, liabilities, contracts, mortgages, notes, trust receipts, secured
transactions, inventory financing and security agreements, and commercial paper
on which Customer is in any manner obligated, heretofore, now, or hereafter
owned, contracted or acquired by IBM Credit ("Liabilities"), whether the
Liabilities are individual, joint, several, primary, secondary, direct,
contingent or otherwise. Guarantor also agrees to indemnify IBM Credit and hold
IBM Credit harmless against any losses IBM Credit may sustain and expenses it
may incur, suffer or be liable for as a result of or in any way arising out of,
following, or consequential to any transactions with or for the benefit of
Customer.
If Customer fails to pay or perform any Liabilities to IBM Credit when
due, all Liabilities to IBM Credit shall then be deemed to have become
immediately due and payable, and Guarantor shall then pay upon demand the full
amount of all sums owed to IBM Credit by Customer, together with all expenses,
including reasonable attorney's fees.
The liability of Guarantor is direct and unconditional and shall not be
affected by any extension, renewal or other change in the terms of payment of
any security agreement or any other agreement between IBM Credit and Customer,
or any change in the manner, place or terms of payment or performance thereof,
or the release, settlement or compromise of or with any party liable for the
payment or performance thereof, the release or non-perfection of any security
thereunder, any change in Customer's financial condition, or the interruption of
business relations between IBM Credit and Customer. This Guaranty is and shall
be deemed to be a continuing guaranty and shall remain in full force and effect
until the indefeasible payment in full of the Liabilities and any other amounts
payable under this Guaranty and the cessation of all obligations of IBM Credit
to extend credit to Customer. Guarantor acknowledges that its obligations
hereunder are in addition to and independent of any agreement or transaction
between IBM Credit and Customer or any other person creating or reserving any
lien, encumbrance or security interest in any property of Customer or any other
person as security for any obligation of Customer. IBM Credit need not exhaust
its rights or recourse against Customer or any other person or any security it
may have at any time before being entitled to payment from Guarantor.
This Guaranty is assignable, shall be construed liberally in IBM
Credit's favor, and shall inure to the benefit of and bind IBM Credit's and
Guarantor's respective successors, personal representatives and assigns, and
also benefit any of IBM Credit's existing or future affiliates that may extend
credit to Customer.
If Customer hereafter is incorporated, acquired by a corporation,
dissolved, or otherwise undergoes any change in its management, ownership,
identity or organizational structure, this Guaranty shall continue to extend to
any Liabilities of the Customer or such resulting corporation, dissolved
corporation, or new or changed legal entity or identity to IBM Credit.
Guarantor waives: notice of the acceptance of this Guaranty, and of
presentment, demand and protest; notices of nonpayment, nonperformance, any
right of contribution from other guarantors, and dishonor; notices of amount of
indebtedness of Customer outstanding at any time; notices of the number and
amount of advances made by IBM Credit to Customer in reliance on this Guaranty;
notices of any legal proceedings against Customer; notice and hearing as to any
prejudgment remedies; and any other demands and notices required by law.
Guarantor further waives all rights of set-off and all counterclaims against IBM
Credit or Customer.
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Guarantor also waives any and all rights in and notices or demands relating to
any collateral now or hereafter securing any of the Liabilities, including, but
not limited to, all rights, notices or demands relating, whether directly or
indirectly, to the sale or other disposition of any or all of such collateral or
the manner of such sale or other disposition. All waivers by Guarantor herein
shall survive any termination or revocation of this Guaranty. Guarantor
authorizes IBM Credit to sell at public or private sale or otherwise realize
upon the collateral now or hereafter securing any of the Liabilities, in such
manner and upon such terms and conditions as IBM Credit deems best, all without
advertisement or notice to Customer, Guarantor, or any third parties. Guarantor
further authorizes IBM Credit to deal with the proceeds of such collateral as
provided in IBM Credit's agreement with Customer, without prejudice to IBM
Credit's claim for any deficiency and free from any right or redemption on the
part of Customer, Guarantor or any third parties, which right or redemption is
hereby waived together with every formality prescribed by custom or by law in
relation to any such sale or other realization.
Guarantor further agrees that all of its right, title and interest in,
to and under any loans, notes, debts and all other liabilities and obligations
whatsoever owed by Customer to Guarantor, whether heretofore or hereafter
created or incurred and for whatever amount, and all security therefor, shall be
now and hereafter at all times fully subordinated to all Liabilities. Guarantor
will not ask, demand or sue for, or take or receive payment of, all or any part
of such loans, notes, debts or any other liabilities or obligations whatsoever
or any security therefor, until and unless all of the Liabilities are paid,
performed and fully satisfied.
Until such time the Liabilities are indefeasibly paid in full, the
Guarantor hereby irrevocably waives for the benefit of IBM Credit, any and all
rights which it presently has, or may hereafter have, whether by virtue of any
payment or payments hereunder or otherwise, to be subrogated to the rights of
IBM Credit against the Customer with respect to any such indebtedness of the
Customer to IBM Credit.
Guarantor has made an independent investigation of the financial
condition of Customer and gives this Guaranty based on that investigation and
not upon any representations made by IBM Credit. Guarantor acknowledges that it
has access to current and future Customer financial information which will
enable Guarantor to continuously remain informed of Customer's financial
condition. Guarantor also consents to and agrees that the obligations under this
Guaranty shall not be affected by IBM Credit's: subsequent increases or
decreases in the credit line that IBM Credit may grant to Customer;
substitutions, exchanges or releases of all or any part of the collateral now or
hereafter securing any of the Liabilities; sales or other dispositions of any or
all of the collateral now or hereafter securing any of the Liabilities without
demands, advertisement or notice of the time or place of the sales or other
dispositions; realizing on the collateral to the extent IBM Credit, in its sole
discretion, deems proper; or purchases of all or any part of the collateral for
IBM Credit's own account.
This Guaranty and any and all obligations, liabilities, terms and
provisions herein shall survive any and all bankruptcy or insolvency
proceedings, actions and/or claims brought by or against Customer, whether such
proceedings, actions and/or claims are federal and/or state.
This Guaranty is submitted by Guarantor to IBM Credit (for IBM Credit's
acceptance or rejection thereof) at IBM Credit's above specified office; as an
offer by Guarantor to guaranty the credit and financial accommodations provided
by IBM Credit to Customer. If accepted, this Guaranty shall be deemed to have
been made at IBM Credit's above specified office. This Guaranty and all
obligations pursuant thereto, shall be governed and controlled as to
interpretation, enforcement, validity, construction, effect and in all other
respects by the laws of the State of New York without giving effect to the
principles of conflicts of laws. Guarantor, to induce IBM Credit to accept this
Guaranty, agrees that all actions or proceedings arising directly or indirectly
in connection with, out of, related to or from this Guaranty may be litigated,
at IBM Credit's sole discretion and election, in courts within the State of New
York. Guarantor consents and submits to the jurisdiction of any local, state or
federal court located within that state. Guarantor waives any right to transfer
or change the venue of any litigation brought against Guarantor by IBM Credit in
accordance with this paragraph.
Any delay by IBM Credit, or its successors, affiliates or assigns in
exercising any or all rights granted IBM Credit under this Guaranty shall not
operate as a waiver of those rights. Furthermore, any failure by IBM
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Credit, its successors, affiliates or assigns, to exercise any or all rights
granted IBM Credit under this Guaranty shall not operate as a waiver of IBM
Credit's right to exercise any or all of them later.
This document contains the full agreement of the parties concerning the
guaranty of Customer's Liabilities and can be varied only by a document signed
by all the parties hereto.
THE PARTIES AGREE THAT ANY ACTION, SUIT OR PROCEEDING RELATING DIRECTLY
OR INDIRECTLY TO THIS GUARANTY OR THE RELATIONSHIP BETWEEN IBM CREDIT AND
GUARANTOR, WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT
A JURY. THUS, THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH
ACTION, SUIT OR PROCEEDING.
WITNESS: PFSWEB, INC.
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(Print Name ) By:
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Name:
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Title:
(SEAL) ---------------------------
Date: September ____, 2001
Guarantor's Address:
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ATTEST:
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(Secretary)
(Print Name)
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SECRETARY'S CERTIFICATE
I hereby certify that I am the Secretary of the following named
corporation and that execution of the above Guaranty was ratified, approved and
confirmed by the Shareholders at a meeting, if necessary, and pursuant to a
resolution of the Board of Directors of the corporation at a meeting of the
Board of Directors duly called, and which is currently in effect, which
resolution was duly presented, seconded and adopted and reads as follows:
"BE IT RESOLVED that any officer of this corporation is hereby
authorized to execute a guaranty of the obligations of BSD Acquisition Corp.
("Customer") to IBM Credit Corporation on behalf of the corporation, which
instrument may contain such terms as the above named persons may see fit
including, but not limited to a waiver of notice of acceptance of this guaranty;
presentment; demand; protest; notices of nonpayment, nonperformance, dishonor,
the amount of indebtedness of Customer outstanding at any time, any legal
proceedings against Customer, and any other demands and notices required by law;
any right of contribution from other guarantors; and all set-offs and
counterclaims."
IN WITNESS WHEREOF and as Secretary of the named corporation I have
hereunto set my hand and affixed the corporate seal on this ______ day of
September , 2001.
PFSWEB, INC.
(SEAL) ------------------------
(Secretary)
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