EXHIBIT 10.9
IBM BELGIUM FINANCIAL SERVICES S.A.
GUARANTY
(BY CORPORATION)
In consideration of credit and financing accommodations granted or to
be granted by IBM Belgium Financial Services S.A. with a registered number of
R.C. Brussels451.673 with an address of Square Victoria Xxxxxx 0,XX-0000
Xxxxxxxx VAT BE 424300467 ("IBM GF") to Business Supplies Distributors Europe
B.V. and Supplies Distributors S.A. (collectively the "Customer") under a
financing agreement between IBM GF and Customer, which is in the best interest
of PFSweb, Inc. ("Guarantor"), and for other good and valuable consideration
received, Guarantor guaranties to IBM GF and IBM Credit Corporation as agent for
IBM GF ("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 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 IBM GF and/or IBM Credit may sustain and expenses they 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 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 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 GF and/or 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 GF 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 GF to extend credit to Customer. 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 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 GF and/or IBM Credit need not exhaust their rights
or recourse against Customer or any other person or any security they may have
at any time before being entitled to payment from Guarantor.
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's and 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 GF.
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 GF to Customer in reliance on this Guaranty;
notices of any legal
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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 GF and 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 Guaranty.
Guarantor authorizes IBM GF and 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 Customer,
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 Customer, without prejudice to IBM GF's and/or 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 xxx 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 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 Customer with respect to any
such indebtedness of the Customer to IBM GF.
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 GF and/or 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 GF's: subsequent
increases or decreases in the credit line that IBM GF 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 GF and/or IBM
Credit, in their sole discretion, deem 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 Customer, 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 Customer. 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
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right to transfer or change the venue of any litigation brought against
Guarantor by IBM GF or IBM Credit in accordance with this paragraph.
Any delay by IBM GF or IBM Credit, or their successors, affiliates or
assigns in exercising any or all rights granted IBM GF and IBM Credit under this
Guaranty shall not operate as a waiver of those rights. Furthermore, any failure
by IBM GF or IBM Credit, their successors, affiliates or assigns, to exercise
any or all rights granted IBM GF and/or 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 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 GF, 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:
--------------------------- ---------------------------------
Name:
-------------------------------
Title:
(SEAL) ------------------------------
Date: September 27, 2001
Guarantor's Address:
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-------------------------------------
ATTEST:
-------------------------------------
(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 GF 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 27th day of
September, 2001.
PFSWEB, INC.
(SEAL) ---------------------------------
(Secretary)
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