GUARANTY
Exhibit 10.07
XXXXXXXX
Xxxxx 00, 0000
Xxxxxxxx Capital Finance Corporation (Western)
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Re: XXXXX.XXX, INC., a Delaware corporation (“Borrower”)
Ladies and Gentlemen:
Wachovia Capital Finance Corporation (Western) (“Lender”) and Borrower have entered
into certain financing arrangements pursuant to which Lender may make loans and advances and
provide other financial accommodations to Borrower as set forth in the Loan and Security Agreement,
dated August 3, 2004 as amended, by and between Borrower and Lender (as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, the
“Loan Agreement”), and other agreements, documents and instruments referred to therein or
at any time executed and/or delivered in connection therewith or related thereto, including, but
not limited to, this Guaranty (all of the foregoing, together with the Loan Agreement, as the same
now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the “Financing Agreements”).
Due to the close business and financial relationships between Borrower and the undersigned
(“Guarantor”), in consideration of the benefits which will accrue to Guarantor and as an
inducement for and in consideration of Lender making loans and advances and providing other
financial accommodations to Borrower pursuant to the Loan Agreement and the other Financing
Agreements, Guarantor hereby agrees in favor of Lender as follows:
1. Guaranty.
(a) Guarantor absolutely and unconditionally guarantees and agrees to be liable for the full
and indefeasible payment and performance when due of the following (all of which are collectively
referred to herein as the “Guaranteed Obligations”): (i) all obligations, liabilities and
indebtedness of any kind, nature and description of Borrower to Lender and/or its affiliates,
including principal, interest, charges, fees, costs and expenses, however evidenced, whether as
principal, surety, endorser, guarantor or otherwise, whether arising under the Loan Agreement, the
other Financing Agreements or otherwise, whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of the Loan Agreement or after the
commencement of any case with respect to Borrower under the United States Bankruptcy Code or any
similar statute (including, without limitation, the payment of interest and other amounts, which
would accrue and become due but for the commencement of such case, whether or not such amounts are
allowed or allowable in whole or in part in any such case and including loans, interest, fees,
charges and expenses related thereto and all other obligations of Borrower or its successors to
Lender arising after the commencement of such
case), whether direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, and however acquired by
Lender and (ii) all expenses (including, without limitation, attorneys’ fees and legal expenses)
incurred by Lender in connection with the preparation, execution, delivery, recording,
administration, collection, liquidation, enforcement and defense of Borrower’s obligations,
liabilities and indebtedness as aforesaid to Lender, the rights of Lender in any collateral or
under this Guaranty and all other Financing Agreements or in any way involving claims by or against
Lender directly or indirectly arising out of or related to the relationships between Borrower,
Guarantor or any other Obligor (as hereinafter defined) and Lender, whether such expenses are
incurred before, during or after the initial or any renewal term of the Loan Agreement and the
other Financing Agreements or after the commencement of any case with respect to Borrower or
Guarantor under the United States Bankruptcy Code or any similar statute.
(b) This Guaranty is a guaranty of payment and not of collection. Guarantor agrees that
Lender need not attempt to collect any Guaranteed Obligations from Borrower, Guarantor or any other
Obligor or to realize upon any collateral, but may require Guarantor to make immediate payment of
all of the Guaranteed Obligations to Lender when due, whether by maturity, acceleration or
otherwise, or at any time thereafter. Lender may apply any amounts received in respect of the
Guaranteed Obligations to any of the Guaranteed Obligations, in whole or in part (including
attorneys’ fees and legal expenses incurred by Lender with respect thereto or otherwise chargeable
to Borrower or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office of Lender from time to time on
demand as Guaranteed Obligations become due. Guarantor shall make all payments to Lender on the
Guaranteed Obligations free and clear of, and without deduction or withholding for or on account
of, any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more successive or concurrent actions
may be brought hereon against Guarantor either in the same action in which Borrower or any other
Obligor is sued or in separate actions. In the event any claim or action, or action on any
judgment, based on this Guaranty is brought against Guarantor, Guarantor agrees not to deduct,
set-off, or seek any counterclaim for or recoup any amounts which are or may be owed by Lender to
Guarantor.
2. Waivers and Consents.
(a) Notice of acceptance of this Guaranty, the making of loans and advances and providing
other financial accommodations to Borrower and presentment, demand, protest, notice of protest,
notice of nonpayment or default and all other notices to which Borrower or Guarantor is entitled
are hereby waived by Guarantor. Guarantor also waives notice of and hereby consents to, (i) any
amendment, modification, supplement, extension, renewal, or restatement of the Loan Agreement and
any of the other Financing Agreements, including, without limitation, extensions of time of payment
of or increase or decrease in the amount of any of the Guaranteed Obligations, the interest rate,
fees, other charges, or any collateral, and the guaranty made herein shall apply to the Loan
Agreement and the other Financing Agreements and the Guaranteed Obligations as so amended,
modified, supplemented, renewed, restated or extended, increased or decreased, (ii) the taking,
exchange, surrender and releasing of collateral or guarantees now or at any time held by or
available to Lender for the obligations of Borrower
or any other party at any time liable on or in respect of the Guaranteed Obligations or who is
the owner of any property which is security for the Guaranteed Obligations (individually, an
“Obligor” and collectively, the “Obligors”), (iii) the exercise of, or refraining
from the exercise of any rights against Borrower or any other Obligor or any collateral, (iv) the
settlement, compromise or release of, or the waiver of any default with respect to, any of the
Guaranteed Obligations and (v) any financing by Lender of Borrower under Section 364 of the United
States Bankruptcy Code or consent to the use of cash collateral by Lender under Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Bankruptcy Code. Guarantor agrees that the amount of the Guaranteed Obligations
shall not be diminished and the liability of Guarantor hereunder shall not be otherwise impaired or
affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part of the Guaranteed
Obligations shall affect, impair or be a defense to this Guaranty, nor shall any other circumstance
which might otherwise constitute a defense available to or legal or equitable discharge of Borrower
in respect of any of the Guaranteed Obligations, or Guarantor in respect of this Guaranty, affect,
impair or be a defense to this Guaranty. Without limitation of the foregoing, the liability of
Guarantor hereunder shall not be discharged or impaired in any respect by reason of any failure by
Lender to perfect or continue perfection of any lien or security interest in any collateral or any
delay by Lender in perfecting any such lien or security interest. As to interest, fees and
expenses, whether arising before or after the commencement of any case with respect to Borrower
under the United States Bankruptcy Code or any similar statute, Guarantor shall be liable therefor,
even if Borrower’s liability for such amounts does not, or ceases to, exist by operation of law.
Guarantor acknowledges that Lender has not made any representations to Guarantor with respect to
Borrower, any other Obligor or otherwise in connection with the execution and delivery by Guarantor
of this Guaranty and Guarantor is not in any respect relying upon Lender or any statements by
Lender in connection with this Guaranty.
(c) Guarantor hereby irrevocably and unconditionally waives and relinquishes all statutory,
contractual, common law, equitable and all other claims against Borrower, any collateral for the
Guaranteed Obligations or other assets of Borrower or any other Obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other recourse in respect to
sums paid or payable to Lender by Guarantor hereunder and Guarantor hereby further irrevocably and
unconditionally waives and relinquishes any and all other benefits which Guarantor might otherwise
directly or indirectly receive or be entitled to receive by reason of any amounts paid by or
collected or due from Guarantor, Borrower or any other Obligor upon the Guaranteed Obligations or
realized from their property.
(d) Guarantor hereby irrevocably and unconditionally waives and relinquishes any right to
revoke this Guaranty that Guarantor may now have or hereafter acquire.
(e) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, in accordance with Section 2856 of the California Civil Code, Guarantor hereby
irrevocably and unconditionally waives all rights and defenses arising out of an election of
remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with
respect to security for a Guaranteed Obligation, has destroyed Guarantor’s rights of
subrogation and reimbursement against Borrower by operation of Section 580d of the California
Code of Civil Procedure or otherwise.
(f) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, in accordance with Section 2856 of the California Civil Code, Guarantor waives all rights
and defenses that Guarantor may have because the Guaranteed Obligations are secured by real
property. This means, among other things: (i) Lender may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by Borrower; and (ii) if Lender
forecloses on any real property collateral pledged by Borrower: (A) the amount of the Guaranteed
Obligations may be reduced only by the price for which that collateral is sold at the foreclosure
sale, even if the collateral is worth more than the sale price and (B) the Lender may collect from
Guarantor even if Lender, by foreclosing on the real property collateral, has destroyed any right
Guarantor may have to collect from Borrower. This is an unconditional and irrevocable waiver of
any rights and defenses Guarantor may have because the Guaranteed Obligations are secured by real
property. These rights and defenses include, but are not limited to, any rights or defenses based
upon Sections 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
(g) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor hereby irrevocably and unconditionally waives and relinquishes, to the maximum
extent such waiver or relinquishment is permitted by applicable law, any and all rights, claims and
defenses arising directly or indirectly under Sections 2787 through 2855, inclusive, of the
California Civil Code and Sections 580a, 580b, 580c, 580d and 726 of the California Code of Civil
Procedure or any similar laws of any other jurisdiction.
3. Subordination. Payment of all amounts now or hereafter owed to Guarantor by
Borrower or any other Obligor is hereby subordinated in right of payment to the indefeasible
payment in full to Lender of the Guaranteed Obligations and all such amounts and any security and
guarantees therefor are hereby assigned to Lender as security for the Guaranteed Obligations.
4. Acceleration. Notwithstanding anything to the contrary contained herein or any of
the terms of any of the other Financing Agreements, the liability of Guarantor for the entire
Guaranteed Obligations shall mature and become immediately due and payable, even if the liability
of Borrower or any other Obligor therefor does not, upon the occurrence of any act, condition or
event which constitutes an Event of Default as such term is defined in the Loan Agreement.
5. Account Stated. The books and records of Lender showing the account between Lender
and Borrower shall be admissible in evidence in any action or proceeding against or involving
Guarantor as prima facie proof of the items therein set forth, and the monthly
statements of Lender rendered to Borrower, to the extent to which no written objection is made
within thirty (30) days from the date of sending thereof to Borrower, shall be deemed conclusively
correct and constitute an account stated between Lender and Borrower and be binding on Guarantor.
6. Termination. This Guaranty is continuing, unlimited, absolute and unconditional.
All Guaranteed Obligations shall be conclusively presumed to have been created in reliance on this
Guaranty. This Guaranty may not be terminated and shall continue so long as the Loan Agreement
shall be in effect (whether during its original term or any renewal, substitution or extension
thereof) or any Guaranteed Obligations shall be outstanding.
7. Reinstatement. If after receipt of any payment of, or proceeds of collateral
applied to the payment of, any of the Guaranteed Obligations, Lender is required to surrender or
return such payment or proceeds to any Person for any reason, then the Guaranteed Obligations
intended to be satisfied by such payment or proceeds shall be reinstated and continue and this
Guaranty shall continue in full force and effect as if such payment or proceeds had not been
received by Lender. Guarantor shall be liable to pay to Lender, and does indemnify and hold Lender
harmless for the amount of any payments or proceeds surrendered or returned. This Section 7 shall
remain effective notwithstanding any contrary action which may be taken by Lender in reliance upon
such payment or proceeds. This Section 7 shall survive the termination of this Guaranty.
8. Amendments and Waivers. Neither this Guaranty nor any provision hereof shall be
amended, modified, waived or discharged orally or by course of conduct, but only by a written
agreement signed by an authorized officer of Lender. Lender shall not by any act, delay, omission
or otherwise be deemed to have expressly or impliedly waived any of its rights, powers and/or
remedies unless such waiver shall be in writing and signed by an authorized officer of Lender. Any
such waiver shall be enforceable only to the extent specifically set forth therein. A waiver by
Lender of any right, power and/or remedy on any one occasion shall not be construed as a bar to or
waiver of any such right, power and/or remedy which Lender would otherwise have on any future
occasion, whether similar in kind or otherwise.
9. Corporate Existence, Power and Authority. Guarantor is a corporation duly
organized and in good standing under the laws of its state or other jurisdiction of incorporation
and is duly qualified as a foreign corporation and in good standing in all states or other
jurisdictions where the nature and extent of the business transacted by it or the ownership of
assets makes such qualification necessary, except for those jurisdictions in which the failure to
so qualify would not have a material adverse effect on the financial condition, results of
operation or businesses of Guarantor or the rights of Lender hereunder or under any of the other
Financing Agreements. The execution, delivery and performance of this Guaranty is within the
corporate powers of Guarantor, have been duly authorized and are not in contravention of law or the
terms of the certificates of incorporation, by-laws, or other organizational documentation of
Guarantor, or any indenture, agreement or undertaking to which Guarantor is a party or by which
Guarantor or its property are bound. This Guaranty constitutes the legal, valid and binding
obligation of Guarantor enforceable in accordance with its terms.
10. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Guaranty and any dispute arising out
of the relationship between Guarantor and Lender, whether in contract, tort, equity or otherwise,
shall be governed by the internal laws of the State of California (without giving effect to
principles of conflicts of law).
(b) Guarantor hereby irrevocably consents and submits to the non-exclusive jurisdiction of the
Courts of the State of California and the United States District Court for the Central District of
California and waives any objection based on venue or forum non conveniens
with respect to any action instituted therein arising under this Guaranty or any of the other
Financing Agreements or in any way connected with or related or incidental to the dealings of
Guarantor and Lender in respect of this Guaranty or any of the other Financing Agreements or the
transactions related hereto or thereto, in each case whether now existing or hereafter arising and
whether in contract, tort, equity or otherwise, and agrees that any dispute arising out of the
relationship between Guarantor or Borrower and Lender or the conduct of any such persons in
connection with this Guaranty, the other Financing Agreements or otherwise shall be heard only in
the courts described above (except that Lender shall have the right to bring any action or
proceeding against Guarantor or its property in the courts of any other jurisdiction which Lender
deems necessary or appropriate in order to realize on any collateral at any time granted by
Borrower or Guarantor to Lender or to otherwise enforce its rights against Guarantor or its
property).
(c) Guarantor hereby waives personal service of any and all process upon it and consents that
all such service of process may be made by certified mail (return receipt requested) directed to
its address set forth on the signature pages hereof and service so made shall be deemed to be
completed five (5) days after the same shall have been so deposited in the U.S. mails, or, at
Lender’s option, by service upon Guarantor in any other manner provided under the rules of any such
courts. Within thirty (30) days after such service, Guarantor shall appear in answer to such
process, failing which Guarantor shall be deemed in default and judgment may be entered by Lender
against Guarantor for the amount of the claim and other relief requested.
(d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION (i) ARISING UNDER THIS GUARANTY OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF
THIS GUARANTY OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT GUARANTOR OR LENDER MAY
FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF GUARANTOR AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) If any action or proceeding is filed in a court of the State of California by or against
any party hereto in connection with any of the transactions contemplated by this Guaranty, (a) the
court shall, and is hereby directed to, make a general reference pursuant to California Code of
Civil Procedure Section 638 to a referee or referees to hear and determine all of the issues in
such action or proceeding (whether of fact or of law) and to report a statement of decision,
provided that at the option of Lender, any such issues pertaining to a ‘provisional
remedy’ as defined in California Code of Civil Procedure Section 1281.8 shall be heard and
determined by the court, and (b) Guarantor shall be solely responsible to pay all fees and expenses
of any referee appointed in such action or proceeding.
(f) Lender shall not have any liability to Guarantor (whether in tort, contract, equity or
otherwise) for losses suffered by Guarantor in connection with, arising out of, or in any way
related to the transactions or relationships contemplated by this Guaranty, or any act, omission or
event occurring in connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Lender that the losses were the result of acts or omissions
constituting gross negligence or willful misconduct. In any such litigation, Lender shall be
entitled to the benefit of the rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of the Loan Agreement and the other
Financing Agreements.
11. Notices. All notices, requests and demands hereunder shall be in writing and (a)
made to Lender at its address set forth above and to Guarantor at its chief executive office set
forth below, or to such other address as either party may designate by written notice to the other
in accordance with this provision, and (b) deemed to have been given or made: if delivered in
person, immediately upon delivery; if by telex, telegram or facsimile transmission, immediately
upon sending and upon confirmation of receipt; if by nationally recognized overnight courier
service with instructions to deliver the next business day, one (1) business day after sending; and
if by certified mail, return receipt requested, five (5) days after mailing.
12. Partial Invalidity. If any provision of this Guaranty is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this Guaranty as a whole,
but this Guaranty shall be construed as though it did not contain the particular provision held to
be invalid or unenforceable and the rights and obligations of the parties shall be construed and
enforced only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guaranty represents the entire agreement and understanding
of this parties concerning the subject matter hereof, and supersedes all other prior agreements,
understandings, negotiations and discussions, representations, warranties, commitments, proposals,
offers and contracts concerning the subject matter hereof, whether oral or written.
14. Successors and Assigns. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Lender and its successors, endorsees,
transferees and assigns. The liquidation, dissolution or termination of Guarantor shall not
terminate this Guaranty as to such entity or as to Guarantor.
15. Construction. All references to the term “Guarantor” wherever used herein shall
mean Guarantor and its successors and assigns (including, without limitation, any receiver, trustee
or custodian for Guarantor or any of its assets or Guarantor in its capacity as debtor or
debtor-in-possession under the United States Bankruptcy Code). All references to the term “Lender”
wherever used herein shall mean Lender and its successors and assigns and all references to the
term “Borrower” wherever used herein shall mean Borrower and its successors and assigns (including,
without limitation, any receiver, trustee or custodian for Borrower or any
of its assets or Borrower in its capacity as debtor or debtor-in-possession under the United
States Bankruptcy Code). All references to the term “Person” or “person” wherever used herein
shall mean any individual, sole proprietorship, partnership, corporation (including, without
limitation, any corporation which elects subchapter S status under the Internal Revenue Code of
1986, as amended), limited liability company, limited liability partnership, business trust,
unincorporated association, joint stock corporation, trust, joint venture or other entity or any
government or any agency or instrumentality or political subdivision thereof. All references to
the plural shall also mean the singular and to the singular shall also mean the plural.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the day and year
first above written.
| ATTEST: | PFSWEB, INC., a Delaware corporation | |||||
| By: | ||||||
| Name: | ||||||
[CORPORATE SEAL]
|
Title: | |||||
| Chief Executive Xxxxxx | ||||||
| 000 Xxxxx Xxxxxxx Xxxxxxxxxx | ||||||
| Xxxxx 000 | ||||||
| Xxxxx, XX 00000 | ||||||
