Attached files
file | filename |
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10-K - FORM 10-K - PFSWEB INC | d81080e10vk.htm |
EX-21 - EX-21 - PFSWEB INC | d81080exv21.htm |
EX-31.2 - EX-31.2 - PFSWEB INC | d81080exv31w2.htm |
EX-32.1 - EX-32.1 - PFSWEB INC | d81080exv32w1.htm |
EX-31.1 - EX-31.1 - PFSWEB INC | d81080exv31w1.htm |
EX-23.1 - EX-23.1 - PFSWEB INC | d81080exv23w1.htm |
Exhibit 10.96
CONSENT AND LIEN RELEASE
This CONSENT AND LIEN RELEASE (this Consent), is dated as of February 17, 2011, by
and between WELLS FARGO BANK, NATIONAL ASSOCIATION, acting through its Wells Fargo Business Credit
operating division, as successor-in-interest to Wachovia Bank, National Association, which in turn
was the successor-in-interest to Congress Financial Corporation (Lender), and ECOST.COM,
INC., a Delaware corporation (Borrower).
BACKGROUND STATEMENT:
WHEREAS, Borrower has entered into that certain Loan and Security Agreement, dated as of
August 3, 2004 (as amended by (i) that certain First Amendment to Loan and Security Agreement, by
and between Borrower and Lender; (ii) that certain Second Amendment to Loan and Security Agreement,
by and between Borrower and Lender; (iii) that certain Third Amendment to Loan and Security
Agreement, by and between Borrower and Lender; (iv) that certain Fourth Amendment to Loan and
Security Agreement, dated as of March 28, 2007, by and between Borrower and Lender; (v) that
certain Fifth Amendment to Loan and Security Agreement, dated as of January 6, 2009; and (vi) that
certain Sixth Amendment to Loan and Security Agreement, dated as of March __, 2010, and as modified
by that certain letter agreement dated as of November 29, 2005, and as further amended, restated,
supplemented or otherwise modified through the date hereof, the Loan Agreement),
whereunder Lender agreed to make extensions of credit from time to time to, or for the account of,
Borrower;
WHEREAS, pursuant to the terms of the Loan Agreement, Borrower desires to obtain the consent
to and approval of Lender of the sale and license of certain of Borrowers assets, more
particularly described on Exhibit A attached hereto and incorporated herein (the Asset
Purchase), to PC Mall, Inc., and Mall Acquisition 3, Inc., each, a Delaware corporation
(collectively, Purchaser), on the terms and in accordance with the provisions of that
certain Asset Purchase and License Agreement, dated as of February 17, 2011, by and between
Borrower and Purchaser (the Asset Purchase Agreement), subject to the terms and
conditions hereof; and
WHEREAS, Lender desires to provide its consent to and approval of the Asset Purchase, on the
terms and in accordance with the provisions of the Asset Purchase Agreement, subject to the terms
and conditions hereof.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, all capitalized terms
used herein have the meanings assigned to such terms in the Loan Agreement.
SECTION 2. Consent and Lien Release. Subject to the satisfaction of the conditions
precedent set forth in Section 3 of this Consent, Lender hereby (i) consents to and
approves (hereinafter, the Consent) the Borrowers sale and license of the assets more
particularly described on Exhibit A attached hereto and incorporated herein (the
Related Assets) to the Purchaser on the terms and in accordance with the provisions of
the Asset Purchase Agreement, and (ii) releases any and all liens previously granted by Borrower to
Lender upon the Related Assets (which, for the avoidance of doubt, does not include the Cash
Collateral (hereinafter defined)), and agrees to execute and deliver the modification of financing
statement substantially in the form attached hereto as Exhibit D and incorporated herein,
and any and all other lien release documents as Borrower may reasonably request in
order to evidence or otherwise give public notice to the release by Lender of its liens in
such assets; provided, however, that any and all such documents shall be prepared and recorded at
Borrowers expense.
SECTION 3. Conditions Precedent. This Consent shall become effective (the Consent
Effective Date) upon satisfaction of each of the following conditions:
(a) Each of Borrower and Lender shall have executed and delivered to Lender this Consent, and
such other documents as Lender may reasonably request;
(b) Borrower shall have furnished to Lender, in accordance with the wiring instructions set
forth on Exhibit C attached hereto and incorporated herein, payment of cash collateral in
the amount of $1,000,000.00 (the Cash Collateral), to secure the outstanding Letter of
Credit Accommodations.
(c) PFSweb, Inc. shall have executed and delivered a Reaffirmation of Guaranty in the form
attached to this Consent;
(d) Lender shall have received from the Borrower and the Purchaser, a duly executed and
effective Asset Purchase Agreement in substantially the form attached hereto as Exhibit B;
(e) No Default or Event of Default shall have occurred and be continuing;
(f) All legal matters incident to the transactions contemplated hereby shall be reasonably
satisfactory to counsel for Lender.
SECTION 4. Covenants. No later than two (2) days after the effective date of the
Asset Purchase Agreement, Borrower shall deliver to Lender, a borrowing base certificate, and any
other evidence satisfactory to Lender, in its sole discretion, detailing the assets and properties
owned by Borrower subsequent to the effectiveness of the transactions contemplated by the Asset
Purchase Agreement.
SECTION 5. Modification of Loan Agreement. From and after the Consent Effective Date,
the definition of Borrowing Base in Section 1 of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
Borrowing Base shall mean, at any time, the amount equal to the sum of:
(a) eighty-five percent (85%) of Eligible Accounts; plus
(b) upon satisfaction of the Inventory Subline Conditions, the least of:
(i) fifty-five percent (55%) of the Value of Eligible P&G Inventory;
(ii) eighty-five percent (85%) of the Appraised Inventory Value of Eligible P&G
Inventory; or
(iii) Two Hundred Fifty Thousand Dollars ($250,000); less
(c) any Reserves.
For purposes only of applying the sublimit on Revolving Loans based on Eligible
Inventory set forth in clause (b)(iii) above, Lender may treat the then undrawn amounts of
outstanding Letter of Credit Accommodations for the purpose of purchasing Eligible Inventory
as Revolving Loans to the extent Lender is in effect basing the issuance of the Letter of
Credit Accommodations on the Value or Appraised Inventory Value of the Eligible Inventory
being purchased with such Letter of Credit Accommodations. In determining the actual
amounts of such Letter of Credit Accommodations to be so treated for purposes of the
sublimit, the outstanding Revolving Loans and Reserves shall be attributed first to any
components of the lending formulas set forth above that are not subject to such sublimit,
before being attributed to the components of the lending formulas subject to such sublimit.
SECTION 6. Execution in Counterparts. This Consent may be executed in counterparts,
each of which when so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
SECTION 7. Costs and Expenses. Borrower hereby affirms its obligation under the Loan
Agreement to reimburse Lender for (i) all outstanding fees, costs, and expenses (including
reasonable attorneys fees) paid or incurred by Lender in connection with the administration of the
Loan Agreement, and (ii) all reasonable costs, internal charges and out-of-pocket expenses paid or
incurred by Lender in connection with the preparation, negotiation, execution and delivery of this
Consent, including but not limited to the attorneys fees and time charges of attorneys for Lender
with respect thereto.
SECTION 8. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE INTERNAL
CONFLICTS OF LAWS PROVISIONS THEREOF.
SECTION 9. Reaffirmation of Financing Agreements. The parties hereto agree and
acknowledge that (i) nothing contained in this Consent in any manner or respect limits or
terminates any of the provisions of the Loan Agreement or the other outstanding Financing
Agreements (as defined in the Loan Agreement) other than as expressly set forth herein and (ii) the
Loan Agreement and each of the other outstanding Financing Agreements remain and continue in full
force and effect and are hereby ratified and reaffirmed in all respects.
SECTION 10. Headings. Section headings in this Consent are included herein for
convenience of any reference only and shall not constitute a part of this Consent for any other
purposes.
SECTION 11. Release. BORROWER HEREBY ACKNOWLEDGES THAT AS OF THE DATE HEREOF IT HAS
NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER
THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY THE
OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM LENDER OR ITS
AFFILIATES, PARTICIPANTS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR
ATTORNEYS. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER AND
ITS AFFILIATES AND PARTICIPANTS, AND THEIR RESPECTIVE PREDECESSORS, AGENTS, OFFICERS, DIRECTORS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION,
DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR
IN PART ON OR BEFORE THE DATE THIS CONSENT IS EXECUTED, WHICH BORROWER MAY NOW OR HEREAFTER HAVE
AGAINST LENDER, ITS PREDECESSORS, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW
OR REGULATIONS, OR OTHERWISE, AND ARISING FROM THE LIABILITIES, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF
THIS CONSENT. BORROWER HEREBY COVENANTS AND AGREES NEVER TO INSTITUTE ANY ACTION OR SUIT AT LAW OR
IN EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID IN THE INSTITUTION OR PROSECUTION OF ANY
CLAIM, ACTION OR CAUSE OF ACTION, RIGHTS TO RECOVER DEBTS OR DEMANDS OF ANY NATURE AGAINST LENDER,
ITS AFFILIATES AND PARTICIPANTS, AND THEIR RESPECTIVE SUCCESSORS, AGENTS, ATTORNEYS, OFFICERS,
DIRECTORS, EMPLOYEES AND PERSONAL AND LEGAL REPRESENTATIVES ARISING ON OR BEFORE THE DATE HEREOF
OUT OF OR RELATED TO LENDERS ACTIONS, OMISSIONS, STATEMENTS, REQUESTS OR DEMANDS IN ADMINISTERING,
ENFORCING, MONITORING, COLLECTING OR ATTEMPTING TO COLLECT THE OBLIGATIONS OF BORROWER TO LENDER,
WHICH OBLIGATIONS WERE EVIDENCED BY THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS.
[Remainder of page intentionally left blank with separate signature page following.]
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed and delivered
as of the date first above written.
ECOST.COM, INC., a Delaware corporation |
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By: | ||||
Name: | ||||
Title: | ||||
WELLS FARGO BANK, NATIONAL ASSOCIATION, acting through its
Wells Fargo Business Credit operating division, as successor-in-interest to Wachovia Bank, National Association,
which in turn was the successor-in-interest to Congress Financial Corporation |
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By: | ||||
Name: | ||||
Title: |
Reaffirmation of Guaranty
The undersigned hereby (i) consents and agrees to the terms and provisions of the foregoing Consent
and each of the transactions contemplated thereby, and confirms and agrees that all references in
the Financing Agreements to the Loan Agreement shall mean the Loan Agreement, as modified by the
foregoing Consent, and (ii) agrees that that certain Guaranty, dated as of March 31, 2006 (the
Guaranty), executed by the undersigned, in favor of Lender, remains in full force and
effect and continues to be the legal, valid and binding obligation of the undersigned enforceable
against the undersigned in accordance with its terms.
Furthermore, the undersigned hereby agrees and acknowledges that (a) the Guaranty executed by the
undersigned is not subject to any claims, defenses or offsets, (b) nothing contained in the
foregoing Consent shall adversely affect any right or remedy of Lender under the Guaranty executed
by the undersigned or any other agreement executed by the undersigned in connection therewith, (c)
the execution and delivery of the foregoing Consent or any agreement entered into by Lender in
connection therewith shall in no way reduce, impair or discharge any obligations of the undersigned
pursuant to the Guaranty executed by the undersigned, and shall not constitute a waiver by Lender
of Lenders rights against the undersigned under the Guaranty executed by the undersigned, (d) the
consent of the undersigned is not required to the effectiveness of the foregoing Consent and (e) no
consent by the undersigned is required for the effectiveness of any future consent, amendment,
modification, forbearance or other action with respect to the Loan Agreement or any present or
future Financing Agreement (other than the Guaranty executed by the undersigned).
PFSWEB, INC. |
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By: | ||||
Name: | ||||
Title: | ||||