Guaranty - PFSweb Inc. and IBM Credit Corp.
IBM CREDIT CORPORATION
AMENDED AND RESTATED GUARANTY
(BY CORPORATION)
PFSweb, Inc. ("Guarantor") executed a Guaranty dated September 27, 2001
(the "Prior Guaranty") in favor of IBM Credit Corporation, having an office
located at 4000 Executive Parkway, Third Floor, San Ramon, CA 94583 ("IBM
Credit"). IBM Credit and Guarantor wish to amend and restate the Prior Guaranty
on the terms and conditions set forth herein. In consideration of credit and
financing accommodations granted or to be granted by IBM Credit to Supplies
Distributors, Inc. (formerly BSD Acquisition Corp.) ("Customer") under a
financing agreement between IBM Credit and Customer, which is in the best
interest of 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 Amended and Restated
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 Amended and Restated 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 Amended and Restated Guaranty is assignable by IBM Credit, 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. Guarantor shall not assign this Amended and
Restated Guaranty or its obligations hereunder without the prior written consent
of IBM Credit.
If Customer hereafter is incorporated, acquired by a corporation,
dissolved, or otherwise undergoes any change in its management, ownership,
identity or organizational structure, this Amended and Restated 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 Amended and Restated
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 Amended and Restated Guaranty; notices of any legal proceedings against
Customer; notice and hearing as to any
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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. 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 Amended and Restated 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 Amended and Restated 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 Amended and Restated 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 Amended and Restated 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 Amended and Restated 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 Amended and
Restated Guaranty shall be deemed to have been made at IBM Credit's above
specified office. This Amended and Restated Guaranty and all obligations
pursuant thereto, shall be governed and controlled as to interpretation,
enforcement, validity, construction, and 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 Amended and
Restated Guaranty, agrees that all actions or proceedings arising directly or
indirectly in connection with, out of, related to or from this Amended and
Restated 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.
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Any delay by IBM Credit, or its successors or assigns in exercising any or
all rights granted IBM Credit under this Amended and Restated Guaranty shall not
operate as a waiver of those rights. Furthermore, any failure by IBM Credit, its
successors or assigns, to exercise any or all rights granted IBM Credit under
this Amended and Restated Guaranty shall not operate as a waiver of IBM Credit's
right to exercise any or all of them later.
Notwithstanding anything contained in any document to the contrary, it is
understood and agreed that the rights and claims of IBM Credit under the Prior
Guaranty continue hereunder and the obligations of Guarantor under the Prior
Guaranty constitute Liabilities hereunder.
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 AMENDED AND RESTATED 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: Thomas J. Madden
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Title: CFO
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(SEAL)
Date: March 29, 2002
Guarantor's Address:
500 North Central Exp.
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Suite 500
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Plano, TX 75074
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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 Supplies Distributors, Inc.
(formerly 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 Amended and Restated 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 29th day of March,
2002.
PFSWEB, INC.
(SEAL) -------------------------------------------
(Secretary)
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