EXHIBIT 10.2
GUARANTY
THIS GUARANTY (this "Guaranty"), made and entered into this ___ day of
August, 2004, by PFSWeb, Inc., a Delaware corporation (hereinafter referred to
as "Guarantor") in favor of Industrial Developments International, Inc., a
Delaware corporation (hereinafter called "Landlord") and any subsequent owner or
holder of the Lease (as hereinafter defined).
R E C I T A L S :
Landlord has entered into an Industrial Lease Agreement ("Lease") with
Priority Fulfillment Services, Inc., a Delaware corporation ("Tenant"), in
which Guarantor has a direct or indirect financial interest or
affiliation, which Lease was executed by Tenant on August __, 2004, and
provides for the leasing to Tenant of approximately 434,900 square feet of
space located in Building E, Airways Distribution Center, DeSoto County,
Mississippi; and
Landlord will not enter into the Lease unless Guarantor guarantees the
obligations of Tenant under the Lease as set forth herein; and
Guarantor derives benefits from the Lease to Tenant.
NOW THEREFORE, as a material inducement to Landlord to enter into the
Lease with Tenant, and for other good and valuable consideration, the receipt
and sufficiency of all of which are hereby acknowledged and confessed, Guarantor
does hereby, irrevocably and unconditionally, warrant and represent unto and
covenant and agree with Landlord as follows:
1. Guaranty - Guarantor hereby unconditionally guarantees the full,
faithful and punctual payment of all rent, additional rent and other amounts due
to Landlord under the Lease by Tenant and the full, faithful and punctual
performance by Tenant of all the terms, provisions and conditions of the Lease,
together with interest or late charges on all of the foregoing as provided in
the Lease and all other costs and expenses of collection (all of the foregoing
sometimes hereinafter referred to as the "Obligations").
2. No Discharge - This Guaranty by Guarantor shall continue for the
benefit of Landlord notwithstanding (a) any extension, modification, amendment
or alteration of the Lease entered into by Tenant, (b) any assignment of the
Lease, with or without the consent of Landlord, (c) any bankruptcy,
reorganization, or insolvency of Tenant or any successor or assignee thereof, or
(d) any release, extension or modification of the liability of Tenant or any
other party liable under the Lease or any other guaranty of the Lease. This
Guaranty shall in all respects be a continuing, absolute and unconditional
guaranty of payment and performance and shall remain in full force and effect
notwithstanding, without limitation, the death or incompetency of Guarantor or
Tenant, or any proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of
Guarantor or Tenant or by any defense which Tenant may have by reason of the
order, decree or decision of any court or administrative body resulting from any
such proceeding.
3. Primarily Liable - This Guaranty is a guaranty of payment and not of
collection. The liability of Guarantor under this Guaranty shall be joint and
several and primary and direct and in addition to any right of action which
shall accrue to Landlord under the Lease. Landlord shall have the right, at its
option, to proceed against Guarantor (or any one or more parties constituting
Guarantor) without having commenced any action, or having obtained any judgment,
against Tenant or any other party liable under the Lease or any other guaranty
of the Lease.
4. Default - In the event of a default by Tenant under the Lease, Landlord
shall have the right to enforce its rights, powers and remedies under the Lease,
any other guaranty of the Lease, and under this Guaranty and all rights, powers
and remedies available to Landlord shall be non-exclusive and cumulative of all
other rights, powers and remedies under the Lease, any other guaranty of the
Lease or under this Guaranty or by law or in equity. The obligations of
Guarantor hereunder are independent of the obligations of Tenant or any other
guarantor, and Landlord may proceed directly to enforce all rights under this
Guaranty without proceeding against or joining Tenant, any other guarantor or
any other person or entity. Until all of the
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Obligations have been performed and paid in full, Guarantor shall have no right
of subrogation to Landlord, and Guarantor hereby waives any rights to enforce
any remedy which Landlord may have against Tenant.
5. Waivers - Guarantor expressly waives and agrees not to assert or take
advantage of: (a) the defense of the statute of limitations in any action
hereunder or in any action for collection of the Obligations, (b) any defense
that may arise by reason of the failure of the Landlord to file or enforce a
claim against Guarantor or Tenant in bankruptcy or in any other proceeding, (c)
any defense based on the failure of Landlord to give notice to Guarantor of the
creation, existence or incurring of any new obligations or on the action or
non-action of any person or entity in connection with the Obligations, (d) any
duty on the part of Landlord to disclose to Guarantor any facts it may know or
may hereafter acquire regarding Tenant, (e) any defense based on lack of
diligence on the part of Landlord in the collection of any and all of the
Obligations, or (f) any demand for payment, presentment, notice of protest or
dishonor, notice of acceptance of this Guaranty and any and all other notices or
demands to which Guarantor might otherwise be entitled by law.
6. Subordination; Waiver of Subrogation; Preference and Fraudulent
Transfer Indemnity. After a default under the Lease, any indebtedness
(including, without limitation, interest obligations but excluding trade
receivables and trade payables accruing in the ordinary course of business for
fair value) of Tenant to Guarantor now or hereafter existing shall be deferred,
postponed and subordinated to the Obligations. Subject to the limitation on
survival hereinafter set forth, Guarantor hereby unconditionally and irrevocably
agrees that (a) Guarantor will not at any time assert against Tenant (or
Tenant's estate in the event Tenant becomes bankrupt or becomes the subject of
any case or proceeding under the bankruptcy laws of the United States of
America) any right or claim to indemnification, reimbursement, contribution or
payment for or with respect to any and all amounts Guarantor may pay or be
obligated to pay Landlord, including, without limitation, any and all
Obligations which Guarantor may perform, satisfy or discharge, under or with
respect to this Guaranty; (b) Guarantor waives and releases all such rights and
claims and any other rights and claims to indemnification, reimbursement,
contribution or payment which Guarantor, or any of them, may have now or at any
time against Tenant (or Tenant's estate in the event Tenant becomes bankrupt or
becomes the subject of any case or proceeding under any bankruptcy laws); (c)
Guarantor shall have no right of subrogation, and Guarantor waives any right to
enforce any remedy which Landlord now has or may hereafter have against Tenant;
(d) Guarantor waives any benefit of, and any right to participate in, any
security now or hereafter held by Landlord; and (e) Guarantor waives any defense
based upon an election of remedies by Landlord which destroys or otherwise
impairs any subrogation rights of Guarantor or the right of Guarantor to proceed
against Tenant for reimbursement. The waivers hereunder shall continue and
survive only until the ninety first (91st) day after the Obligations are
satisfied in full, provided Tenant has not filed a petition or had a petition
filed against it under any present or future section or chapter of the United
States Bankruptcy Code during the ninety (90) day period following the date on
which the Obligations are so satisfied in full (in which event the same shall
survive without limitation). Guarantor further hereby unconditionally and
irrevocably agrees and guarantees (on a joint and several basis) to make full
and prompt payment to Landlord of any of the Obligations or other sums paid to
Landlord pursuant to the Lease which Landlord is subsequently ordered or
required to pay or disgorge on the grounds that such payments constituted an
avoidable preference or a fraudulent transfer under applicable bankruptcy,
insolvency or fraudulent transfer laws; and Guarantor shall fully and promptly
indemnify Landlord for all costs (including, without limitation, attorney's
fees) incurred by Landlord in defense of such claims of avoidable preference or
fraudulent transfer.
7. Choice of Law - This Guaranty is to be performed in the State of
Mississippi and shall be governed by and construed in accordance with the laws
of the State of Mississippi, without regard to its conflicts laws or choice of
law rules.
8. Time of Essence - Time is of the essence of this Guaranty.
9. Notices - Wherever any notice or other communication is required or
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by hand, or by nationally-recognized overnight express
delivery service, by U. S. registered or certified mail, return receipt
requested, postage prepaid to the
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addresses set out below or at such other addresses as are specified by written
notice delivered in accordance herewith:
Landlord: Industrial Developments International, Inc.
c/o IDI, Inc.
3424 Peachtree Road, N.E., Suite 1500
Atlanta, Georgia 30326
Attn: Manager - Lease Administration
Guarantor: PFSWeb, Inc.
500 North Central Expressway
Plano, Texas 74074
Attn: Chief Financial Officer
with a copy to: PFSWeb, Inc.
500 North Central Expressway
Plano, Texas 74074
Attn: General Manager
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given (a) on the date of delivery, if delivered by hand; or (b) on
the date mailed if sent by overnight express delivery or if sent by U.S. mail.
Such notices shall be deemed received (a) on the date of delivery, if delivered
by hand or overnight express delivery service; or (b) on the date indicated on
the return receipt if mailed. If any notice mailed is properly addressed but
returned for any reason, such notice shall be deemed to be effective notice and
to be given on the date of mailing.
10. Authority - If Guarantor is not a natural person, Guarantor
shall cause its corporate secretary or general partner, as applicable, to
execute the certificate attached hereto as Exhibit A. Guarantor is authorized by
all required corporate or partnership action to enter into this Guaranty and the
individual(s) signing this Guaranty on behalf of Guarantor are each authorized
to bind Guarantor to its terms.
11. Successors and Assigns - This Guaranty shall be binding upon and
inure to the benefit of the parties hereto and their heirs, legal
representatives, successors and assigns.
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IN WITNESS WHEREOF, Guarantor has executed under seal and delivered
this Guaranty to Landlord on the date and year above first written.
GUARANTOR:
PFSWEB, INC., a Delaware corporation
By: ___________________________
Name: _________________________
Title: ________________________
Attest: _______________________
Name: _________________________
Title: ________________________
[CORPORATE SEAL]
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EXHIBIT A
CERTIFICATE OF AUTHORITY
CORPORATION
The undersigned, Secretary of PFSWeb, Inc., a Delaware corporation
("Guarantor"), hereby certifies as follows to Industrial Developments
International, Inc., a Delaware corporation ("Landlord"), in connection with the
execution of a Guaranty by Guarantor (the "Guaranty) of that certain Industrial
Lease Agreement dated August __, 2004 between Landlord and Priority Fulfillment
Services, Inc. ("Tenant") (the "Lease") relating to the lease of approximately
434,900 square feet within Building E, at Airways Distribution Center, DeSoto
County, Mississippi (the "Premises"):
1. Guarantor is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and duly qualified to do business in
the State of Mississippi.
2. That the following named persons, acting individually, are each
authorized and empowered to negotiate and execute, on behalf of Guarantor, a
Guaranty of the Lease and that the signature opposite the name of each
individual is an authentic signature:
____________________ ____________________ _____________________
(name) (title) (signature)
____________________ ____________________ _____________________
(name) (title) (signature)
____________________ ____________________ _____________________
(name) (title) (signature)
3. That the foregoing authority was conferred upon the person(s) named
above by the Board of Directors of Guarantor, at a duly convened meeting held
_____________, 20___.
________________________________
Secretary
[CORPORATE SEAL]