EXHIBIT 10.8
IBM CREDIT CORPORATION
COLLATERALIZED GUARANTY
In consideration of credit and financing accommodations granted or to
be granted by IBM Belgium Financial Services S.A. a registered number of R.C.,
Brussels 451.673 with an address of Square Victoria Regina 1,BE-1210 Brussels
VAT BE 424300467 ("IBM GF") to Business Supplies Distributors Europe B.V. and
Supplies Distributors S.A. (collectively the "Borrower"), which is in the best
interest of Priority Fulfillment Services, Inc. ("Guarantor"), and for other
good and valuable consideration received, Guarantor jointly and severally
guaranties to IBM GF and to IBM Credit Corporation as agent to IBM GF ("IBM
Credit"), from property held separately, jointly or in community, the prompt and
unconditional performance and payment by Borrower of any and all obligations,
liabilities, contracts, mortgages, notes, trust receipts, secured transactions,
inventory financing and security agreements, and commercial paper on which
Borrower is in any manner obligated, heretofore, now, or hereafter owned,
contracted or acquired by IBM GF ("Liabilities"), whether the Liabilities are
individual, joint, several, primary, secondary, direct, contingent or otherwise.
Guarantor also agrees to indemnify IBM GF and IBM Credit and hold IBM GF and IBM
Credit harmless against any losses it 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 Borrower.
Capitalized terms used herein without definition shall have the meaning
described thereto in the IBM Global Financing Platinum Plan (with Invoice
Discounting) between IBM GF and the Borrower (as amended, modified and
supplemented from time to time, the "Financing Agreement").
If Borrower fails to pay or perform any Liabilities to IBM GF when due, all
Liabilities to IBM GF 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 GF by Borrower, 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 GF and/or IBM Credit and
Borrower, 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, or the waiver of any default or event of
default under any financing agreement between IBM GF and/or IBM Credit and
Borrower, or the release or non-perfection of any security thereunder, any
change in Borrower's financial condition, or the interruption of business
relations between IBM GF and Borrower. 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 GF to extend
credit to Borrower. Guarantor acknowledges that its obligations hereunder are in
addition to and independent of any agreement or transaction between IBM GF
and/or IBM Credit and Borrower or any other person creating or reserving any
lien, encumbrance or security interest in any property of Borrower or any other
person as security for any obligation of Borrower. IBM GF and IBM Credit need
not exhaust its rights or recourse against Borrower or any other person or any
security IBM GF and IBM Credit may have at any time before being entitled to
payment from Guarantor.
To secure payment of all of Guarantor's current and future debts and obligations
to IBMGF, and to secure the Liabilities, whether under this Guaranty or any
other agreement between IBM GF and/or IBM Credit and Guarantor, whether direct
or contingent, Guarantor does assign, pledge and give to IBM GF a security
interest in all of Guarantor's personal property, whether now owned or hereafter
acquired or existing and wherever located, including the following: (a) all
inventory and equipment manufactured or sold by or bearing the trademark or
tradename of International Business Machines Corporation ("IBM") or any other
Authorized Supplier and all parts thereof, attachments, additions, accessories
and accessions thereto, all substitutions, repossessions, exchanges,
replacements and returns thereof, all price protection credits, rebates,
discounts and incentive payments relating to the foregoing, products thereof
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and documents therefor ("IBM Credit Inventory"); (b) all accounts, chattel
paper, instruments, negotiable documents, promissory notes, general intangibles
(including contract rights, software and licenses), deposit accounts, commercial
tort claims, intellectual property, investment property, pledged notes, letter
of credit rights, supporting obligations, obligations of any kind owing to
Guarantor, whether or not arising out of or in connection with the sale or lease
of goods or the rendering of services and all books, invoices, documents and
other records in any form evidencing or relating to any of the foregoing; (c)
all substitutions and replacements for all of the foregoing; and (d) all
products or proceeds of all of the foregoing (all of the above assets are
defined pursuant to the provisions of Article 9 of the Uniform Commercial Code
as in effect in the State of New York and are hereinafter referred to as the
"Collateral"). Collateral shall not include inventory and equipment of the
Guarantor that is not IBM Credit Inventory (as defined above). This security
interest is also granted to secure Guarantor's debts to all of IBM GF's
affiliates.
In connection with any working capital financing Guarantor receives from another
financial institution or commercial lender ("Lender"), Guarantor may request
that IBM GF and IBM Credit subordinate its interest in the Collateral (excluding
the IBM Credit Inventory) and IBM GF and IBM Credit will not unreasonably
withhold its consent provided that:
(1) No default or event of default exists;
(2) IBM GF, IBM Credit and Lender shall have entered into a
subordination agreement in form and substance satisfactory to IBM GF
and IBM Credit in all respects in its sole discretion;
(3) IBM Credit shall be satisfied that the IBM Credit Inventory shall
be segregated from the other property of Guarantor and its customers
and IBM GF and IBM Credit shall have a first perfected priority
security interest in the IBM Credit Inventory; and
(4) The books and records maintained on behalf of the Borrower shall be
kept separately from Guarantor's other books and records and Guarantor
shall have conspicuously noted on the Borrower's books and records that
such books and records are the property of Borrower.
IBM GF and IBM Credit shall have the right, but not the obligation, from time to
time, as IBM GF and/or IBM Credit in their sole discretion may determine, and
all without any advance notice to Guarantor, to: (a) examine the Collateral; (b)
appraise it as security; (c) verify its condition and nonuse; (d) verify that
all Collateral has been properly accounted for and this Agreement complied with,
and (e) assess, examine, check and make copies of any and all of Guarantor's
books, records and files.
If Guarantor does not comply with any of the terms of this Agreement, or
Guarantor fails to fulfill any obligation to IBM GF and/or IBM Credit or any of
IBM GF's and/or IBM Credit's affiliates under any other agreement between IBM GF
or IBM Credit and Guarantor or between Guarantor and any of IBM GF's or IBM
Credit's affiliates, or Guarantor becomes insolvent or ceases to do business as
a going concern, or a bankruptcy, insolvency proceeding, arrangement or
reorganization is filed by or against Guarantor, or any of Guarantor's property
is attached or seized, or a receiver is appointed for Guarantor, or Guarantor
commits any act which impairs the prospect of full performance or satisfaction
of Guarantor's obligations to IBM GF and/or IBM Credit, or Guarantor shall lose
any franchise, permission, license or right to conduct its business, or
Guarantor misrepresents its financial condition or organizational structure, or
whenever IBM GF deems the debt or Collateral to be insecure:
a) IBM GF or IBM Credit may call all or any part of the amount
Guarantor or Borrower owes IBM GF or IBM GF's affiliates due and
payable immediately, if permitted by applicable law, together with
court costs and all costs and expenses of IBM GF and IBM Credit's
repossession and collection activity, including, but not limited to
reasonable attorney's fees.
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b) Guarantor will hold and keep the Collateral in trust, in good order
and repair, for IBM GF and IBM Credit's benefit and shall not exhibit
or sell it.
c) Upon IBM GF and/or IBM Credit's demand, Guarantor will immediately
deliver the Collateral to IBM GF and/or IBM Credit, in good order and
repair, at a place reasonably convenient to IBM GF and IBM Credit,
together with all related documents; or IBM GF and/or IBM Credit may,
in their sole discretion and without demand, take immediate possession
of the Collateral, together with all related documents.
d) Guarantor waives and releases: (i) any and all claims and causes of
action which Guarantor may now or ever have against IBM GF and IBM
Credit as a result of any possession, repossession, collection or sale
by IBM GF and/or IBM Credit of any of the Collateral, notwithstanding
the effect of such possession, repossession, collection or sale upon
Guarantor's business; (ii) all rights of redemption from any such sale;
and (iii) the benefit of all valuation, appraisal and exemption laws.
If IBM GF or IBM Credit seeks to take possession of any of the
Collateral by replevin or other court process, Guarantor irrevocably
waives any notice, bonds, surety and security relating thereto required
by any statute, court rule or otherwise as an incident to such
possession and any demand for possession of the Collateral prior to the
commencement of any suit or action to recover possession thereof.
e) Guarantor appoints IBM GF and IBM Credit or any person IBM GF and/or
IBM Credit may delegate as its duly authorized Attorney-in-Fact
(without notifying Guarantor) to do, in IBM GF's and IBM Credit's sole
discretion, any of the following: (i) sell, assign, transfer, negotiate
or pledge any and all accounts, chattel paper, or contract rights; (ii)
endorse Guarantor's name on any and all notes, checks, drafts, or other
forms of exchange received as payment on any accounts, chattel paper
and contract rights, for deposit in IBM GF's and/or IBM Credit's
account; (iii) grant any extension, rebate or renewal on any and all
accounts, chattel paper or contract rights, or enter into any
settlement thereof; (iv) demand, collect and receive any and all
amounts due on accounts, chattel paper and contract rights; and (v)
exercise any and all rights Guarantor has in the Collateral.
f) In the event Guarantor brings any action or asserts any claim
against IBM GF and/or IBM Credit which arises out of this Agreement,
any other agreement or any of Guarantor's and IBM GF and/or IBM
Credit's business dealings, in which Guarantor does not prevail,
Guarantor agrees to pay IBM GF and IBM Credit all court costs and all
costs and expenses of IBM GF's and IBM Credit's defense of such action
of claim including, but not limited to, reasonable attorney's fees.
IBM GF and/or IBM Credit may also declare a default under this Agreement and
exercise any and all rights and remedies available herein, if, in IBM GF's
and/or IBM Credit's sole discretion, IBM GF or IBM Credit determines that the
Collateral has decreased in value, and Guarantor has been unable to either: (a)
provide IBM GF with additional Collateral in a form and substance satisfactory
to IBMGF; or (b) pay the Shortfall Amount as defined in the Financing Agreement.
IBM GF and IBM Credit have and will always possess all the rights and remedies
of a secured party under law, and IBM GF's and IBM Credit's rights and remedies
are and will always be cumulative. Guarantor acknowledges and agrees that the
Collateral is the subject of widely distributed standard price quotations and is
customarily sold in a recognized market. Guarantor agrees that a private sale by
IBM GF or IBM Credit of any of the Collateral to a dealer in those types of
Collateral is a commercially reasonable sale. Further, Guarantor agrees that IBM
GF's and/or IBM Credit's delivery of any of the Collateral to a distributor or
manufacturer, with a request that it repurchase Collateral, as provided in any
repurchase agreement with IBMGF, is a commercially reasonable disposition or
sale.
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Guarantor promises that (a) the Collateral is and shall remain free from all
claims and liens except IBM GF's and IBM Credit's; (b) Guarantor shall defend
the Collateral against all other claims and demands; and (c) Guarantor will
notify IBM Credit before it signs, or authorizes the signing of any financing
statement regardless of its coverage. Guarantor authorizes IBM Credit to file
with any filing office such financing statements, amendments, addenda and other
records showing IBM GF and IBM Credit as secured party and Guarantor as the
debtor and identifying IBM GF's and IBM Credit's security interest in the
Collateral that IBM GF and IBM Credit deems necessary to perfect and maintain
IBM GF's and IBM Credit's security interest in the Collateral. Guarantor will
execute any and all documents IBM GF and/or IBM Credit may request to confirm or
perfect IBM GF's and IBM Credit's title or security interest in the Collateral.
Guarantor represents and covenants that the first paragraph of this Guaranty
states the exact name of Guarantor as set forth in its charter or other
organizational record. Guarantor represents that it is duly organized under the
laws of the State of Delaware and the organization document creating Guarantor
has been filed in the appropriate office of such State. In addition, Guarantor's
organizational identification number assigned by its State of organization is as
follows: 2606094. Guarantor's principal place of business is located at 500
North Central Expressway, Plano, TX 75074 and Guarantor represents that its
business is conducted as a CORPORATION. Guarantor will not change its name,
location (as defined in Article 9 of the U.C.C.) or State of organization.
Guarantor shall provide IBM GF and IBM Credit at least thirty (30) days prior
written notice of any change in its form of ownership, management, and of any
change in its principal place of business, or any additions or discontinuances
of other business locations. The Collateral shall be kept at Guarantor's
principal place of business and at the following addresses:
PFS
4550 Quality Drive
Memphis, TN 38118
PFS
4638 Shelby Drive
Memphis, TN 38118
American Eagle Systems
30 Corporate Drive
Holtsville, New York 11742
until all sums owed IBM GF and IBM Credit are paid in full. Guarantor will
immediately notify IBM GF and IBM Credit if the Collateral is kept at any other
address. This paragraph is for IBM GF's and IBM Credit's informational purposes
only, and is not in any way or manner intended to limit the extent of IBM GF's
and/or IBM Credit's security interest in the Collateral. Guarantor and its
predecessors have done and do business only under the following names: priority
Fulfillment Services, Inc.; PFSweb, Inc..
Guarantor will pay all taxes, license fees, assessments and charges on the
Collateral when due. Guarantor will be responsible for any loss of Collateral
for any reason whatsoever. Guarantor will keep the Collateral insured for its
full insurable value against loss or damage by fire, wind, theft and for
combined additional coverage, including vandalism and malicious mischief, and
for other risks as IBM GF and/or IBM Credit may require. Guarantor will obtain
insurance under such terms and in amounts as IBM GF and/or IBM Credit may
specify, from time to time, in companies acceptable to IBM GF and/or IBM Credit,
with a loss-payee or mortgagee clause payable to IBM GF and IBM Credit to the
extent of any loss to the Collateral and containing a waiver of all defenses
against Guarantor that is acceptable to IBM GF and IBM Credit. Guarantor further
agrees to provide IBM GF and/or IBM Credit with written evidence of the required
insurance coverage and loss-payee or mortgagee clause. Guarantor assigns to IBM
GF and IBM Credit all sums not in excess of the unpaid debt owed IBM GF and IBM
Credit, and directs any insurance company to make payment directly to IBM Credit
to be applied to the unpaid debt owed IBM GF and/or IBM Credit. Guarantor
further grants IBM Credit an irrevocable power of attorney to endorse any draft
and sign and file all of the necessary papers, forms and documents to initiate
and
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settle any and all claims with respect to the Collateral. If Guarantor fails to
pay any of the above-referenced costs, charges or any insurance premiums, or if
it fails to insure the Collateral, IBM GF and/or IBM Credit may pay such costs,
charges or any insurance premiums, and the amounts paid shall be considered an
additional debt owed by Guarantor to IBM GF and/or IBM Credit. Guarantor will
promptly notify IBM Credit of any loss, theft or destruction of or damage to any
of the Collateral.
Guarantor will not rent, lease, lend, demonstrate, pledge, create a security
interest in, transfer or secrete any of the Collateral, or use the Collateral
for any purpose other than exhibition, without IBM Credit's prior written
consent.
This Guaranty is assignable, shall be construed liberally in IBM GF's and IBM
Credit's favor, and shall inure to the benefit of and bind IBM GF's, IBM
Credit's and Guarantor's respective successors, personal representatives and
assigns, and also benefit any of IBM GF and IBM Credit's existing or future
affiliates that may extend credit to Borrower.
If Borrower 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 Borrower or such resulting corporation, dissolved
corporation, or new or changed legal entity, or identity to IBM GF and IBM
Credit.
Guarantor waives: notice of the acceptance of this Guaranty, and of presentment,
demand and protest; notices of nonpayment, nonperformance and dishonor; notices
of amount of indebtedness of Borrower outstanding at any time; notices of the
number and amount of advances made by IBM GF to Borrower in reliance on this
Guaranty; notice of the financial condition of Borrower or any other guarantor
or any change therein; notice of the release of collateral for the Liabilities,
of any other guaranty, pledge or suretyship agreement or any collateral
therefor; notices of any legal proceedings or other efforts to collect against
Borrower; notice of any recoupment, setoff, administrative freeze on Borrower's
credit or assets; notice and any opportunity for a hearing as to any prejudgment
remedies; and any other demands and notices required by law. Guarantor further
waives all rights to assert against IBM GF and/or IBM Credit any right of
recoupment, setoff, and all claims, defenses, and counterclaims against IBM GF,
IBM Credit or Borrower, including any defense based on the lack of good faith.
To the extent permitted by law, Guarantor also waives any and all rights in and
notices or demands relating to any Collateral now or hereafter securing any of
the Liabilities. 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 GF and/or IBM Credit deems
best, all without advertisement or notice to Borrower, Guarantor, or any third
parties. Guarantor further authorizes IBM GF and IBM Credit to deal with the
proceeds of such Collateral as provided in IBM GF's agreement with Borrower,
without prejudice to IBM GF's claim for any deficiency and free from any right
or redemption on the part of Borrower, 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 Borrower 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 except as expressly permitted by the Financing
Agreement and provided no default or event of default exists. In addition, until
such time that the Liabilities are indefeasibly paid in full, Guarantor
irrevocably waives, for the benefit of IBM GF and 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 GF and
IBM Credit against the Borrower with respect to any such indebtedness of the
Borrower to IBMGF.
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Guarantor has made an independent investigation of the financial condition of
Borrower and gives this Guaranty based on that investigation and not upon any
representations made by IBM GF and/or IBM Credit. Guarantor acknowledges that it
has access to current and future Borrower financial information which will
enable Guarantor to continuously remain informed of Borrower's financial
condition. Guarantor also consents to and agrees that the obligations under this
Guaranty shall not be affected by IBM GF's subsequent increases or decreases in
the credit line that IBM GF may grant to Borrower; 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 IBM Credit's sole discretion, deems
proper; or purchases of all or any part of the Collateral for IBM GF's and/or
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 Borrower, whether such proceedings, actions
and/or claims are federal and/or state.
This Guaranty is submitted by Guarantor to IBM GF(for IBM GF's acceptance or
rejection thereof) at IBM GF's above specified office; as an offer by Guarantor
to guaranty the credit and financial accommodations provided by IBM GF to
Borrower. If accepted, this Guaranty shall be deemed to have been made at IBM
GF'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 GF 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 GF's and/or 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 GF and/or IBM Credit in accordance
with this paragraph.
Any delay by IBM GF and/or IBM Credit, or IBM GF's and/or IBM Credit's
successors, affiliates or assigns in exercising any or all rights granted IBM GF
and/or IBM Credit under this Guaranty shall not operate as a waiver of those
rights. Furthermore, any failure by IBM GF and/or IBM Credit, IBM GF's and/or
IBM Credit's successors, affiliates or assigns, to exercise any or all rights
granted IBM GF and IBM Credit under this Guaranty shall not operate as a waiver
of IBM GF's and/or 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 Borrower's Liabilities and can be varied only by a document signed by all of
the parties hereto.
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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 PRIORITY FULFILLMENT SERVICES, INC.
GUARANTOR
By:
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Print Name: Print Name:
-------------------------- -----------------------------
Title:
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Date:
(SEAL) ----------------------------------
Guarantor's Address:
------------------------
-----------, ---- ------
ATTEST:
- --------------------------------------
Secretary
Print Name:
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IBM BELGIUM FINANCIAL SERVICES S.A.
By:
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Print Name:
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Title:
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