"Financial Statements": the consolidated and consolidating balance sheets
(including, without limitation, securities such as stocks and investment bonds),
statements of operations, statements of cash flows and statements of changes in
shareholder's equity for the period specified, prepared in accordance with GAAP
and consistent with prior practices.
"Floor Plan Lender": any Person who now or hereinafter provides inventory
financing to Borrower, provided that such Person executes an Intercreditor
Agreement (as defined in Section 5.1 of this Agreement) or a subordination
agreement with IBM Credit each in form and substance satisfactory to IBM Credit.
"Free Financing Period": for each Product Advance, the period, if any, in which
IBM Credit does not charge Borrower a financing charge. IBM Credit shall
calculate the Borrower's Free Financing Period utilizing a methodology that is
consistent with the methodologies used for similarly situated customers of IBM
Credit. The Borrower understands that IBM Credit may not offer, may change or
may cease to offer a Free Financing Period for the Borrower's purchases of
"Free Financing Period Exclusion Fee": as defined in Attachment A.
"GAAP": generally accepted accounting principles in the United States as in
effect from time to time.
"General Intangibles": all "general intangibles" as such term is defined in the
U.C.C and, in any event, including, without limitation, with respect to the
Borrower, (a) all tax refunds, claims for tax refunds, and tax credits, (b) all
permits, licenses, approvals, authorizations, consents, variances and
certifications of any Governmental Authority, (c) all claims, tort claims and
causes of action, (d) all property, casualty, liability, and other insurance of
any kind or character, and all insurance claims and insurance refund claims, (e)
all payment intangibles, (f) all lists, books, records, recorded knowledge,
ledgers, files (whether in printed form or stored electronically), designs,
blueprints, data, specifications, engineering reports, manuals, computer
records, computer programs and computer software (including source codes), (g)
all Internet domain names and web sites and related licenses and agreements, and
(h) all contracts, agreements, instruments and indentures in any form, and
portions thereof, to which Borrower is a party or under which Borrower has any
right, title or interest or to which Borrower or any property of Borrower is
subject, as the same may from time to time be amended, supplemented or otherwise
modified, including, without limitation, (i) all rights of Borrower to receive
moneys due and to become due to it thereunder or in connection therewith, (ii)
all rights of Borrower to damages arising thereunder and (iii) all rights of
Borrower to perform and to exercise all remedies thereunder.
"Governmental Authority": any nation or government, any state or other political
subdivision thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled (through stock or capital
ownership or otherwise) by any of the foregoing.
"Guarantor": means Holdings, PFSweb, PFS and any other party that delivers a
guaranty in favor of IBM Credit.
"Hazardous Substances": all substances, wastes or materials, to the extent
subject to regulation as "hazardous substances" or "hazardous waste" under any
"Holdings": as defined in the caption and a direct subsidiary of PFS and IFP.
"Holdings Stock Pledge Agreement": as defined in Section 5.1(R).
"IBM Credit": as defined in the caption.
"Indebtedness": with respect to any Person, (1) all obligations of such Person
for borrowed money or for the deferred purchase price of property or services
(other than trade liabilities incurred in the ordinary course of
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