Exhibit 10.14
PROMISSORY NOTE
$9,400,000 New York, New York
March 18, 2002
This Promissory Note (this "NOTE") is executed and delivered by SCIENT,
INC., a Delaware corporation, with its principal place of business at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("BORROWER"), to the order of INMARK CAPITAL CORP.
and its successor and assigns ("INMARK").
1. DEFINITIONS.
"ANCILLARY AGREEMENTS" shall mean this Note, the Security Agreement,
the Guaranties, the Guarantor Pledge Agreements and/or any and all other
documents, instruments and agreements entered into in connection herewith or
therewith.
"CHANGE OF CONTROL" means the occurrence of any of the following: (a)
any Person or two or more Persons (other than any existing investor in Borrower
or any affiliate of such investor) acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Interests of the Borrower (or other securities convertible
into such Voting Interests) representing 20% or more of the combined voting
power of all Voting Interests of the Borrower; or (b) during any period of up to
24 consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of the
Borrower shall cease for any reason to constitute a majority of the board of
directors of the Borrower; or (c) any Person or two or more Persons (other than
any existing investor in Borrower or any affiliate of such investor) acting in
concert shall have acquired by contract or otherwise, or shall have entered into
a contract or arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a controlling
influence over the management or policies of the Borrower.
"COLLATERAL" shall mean and include Guarantor Collateral and any other
collateral pledged by Borrower or any Guarantor to Inmark from time to time to
secure any of the Obligations pursuant to any Ancillary Agreement.
"CONTRACT RATE" shall mean the Prime Rate plus one percent (1%).
"DEFAULT RATE" means the greater of (a) the Prime Rate plus ten percent
(10%) and (b) fifteen percent (15%).
"DEPOSIT ACCOUNT" shall have the meaning ascribed to the term in
Section 4 hereof.
"EQUITY INTERESTS" shall mean shares of capital stock of (or other
ownership or profit interest in) Borrower, warrants, options, or other rights
for the purchase or other acquisition from Borrower of shares of capital stock
of (or other ownership or profit interest in) Borrower, securities convertible
into or exchangeable for shares of capital stock of (or other ownership or
profit interest in) Borrower, or warrants, options or other rights for the
purchase or other acquisition from Borrower of such shares (or such other
interests), and other ownership or profit interests in Borrower (including,
without limitation, partnerships, member, or trust interest therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are authorized or otherwise existing on any date of
determination.
"EVENT OF DEFAULT" shall have the meaning ascribed to the term in
Section 10 hereof.
"EXCESS COLLATERAL AMOUNT" shall have the meaning ascribed to the term
in Section 2 hereof.
"FOOTHILL" shall mean Foothill Capital Corporation.
"GUARANTOR" shall mean any and all Persons who may from time to time
execute in favor of Inmark a Guaranty.
"GUARANTOR COLLATERAL" shall mean the collateral pledged by a Guarantor
to Inmark as security for such Guarantor's Guaranty of a Loan as set forth on
Schedule A attached hereto and made a part hereof.
"GUARANTOR COLLATERAL AVAILABILITY" shall mean, with respect to the
Guarantor Collateral pledged by a Guarantor in connection with a Guaranty as
security for an individual Loan, the sum of (a) in the case of cash, 100% of the
amount of all cash deposited by such Guarantor with North Fork Bank in an
account pledged by such Guarantor to Inmark pursuant to a Guarantor Pledge
Agreement in connection with such Guarantor's Guaranty, (b) in the case of
letters of credit, 100% of the face amount of any letter of credit in form and
substance reasonably satisfactory to Inmark the original of which is in Inmark's
possession issued by a bank reasonably acceptable to Inmark naming such
Guarantor as applicant and Inmark as beneficiary thereunder in connection with
such Guarantor's Guaranty, (c) in the case of certificates of deposit, 100% of
the amount of all certificates of deposit maintained by such Guarantor with
North Fork Bank pledged by such Guarantor to Inmark pursuant to a Guarantor
Pledge Agreement in connection with such Guarantor's Guaranty, (d) in the case
of United States treasury bills, 90% of the market value (as determined by
Inmark) of all treasury bills maintained by such Guarantor in a securities
account established with North Fork Bank or any of its affiliates and pledged by
such Guarantor to Inmark pursuant to a Guarantor Pledge Agreement in connection
with such Guarantor's Guaranty, and (e) in the case of all other marketable
securities, the percentage of such marketable securities maintained by such
Guarantor in a securities account established with North Fork Bank or any of its
affiliates and pledged by such Guarantor to Inmark pursuant to a Guarantor
Pledge Agreement in
-2-
connection with such Guarantor's Guaranty reasonably determined by Inmark as an
appropriate percentage of availability against such Guarantor Collateral
delivered, which percentage may be adjusted from time to time by Inmark based on
changes in condition of such Guarantor Collateral. Notwithstanding anything
contained herein to the contrary, in no event shall the Guarantor Collateral
Availability with respect to any Loan exceed the principal stated amount of the
applicable Guarantor's liability under the Guaranty relating to such Loan.
"GUARANTOR PLEDGE AGREEMENT" shall mean one or more pledge and security
agreements or such other security agreements as may be required by Inmark
covering the Guarantor Collateral to be pledged by a Guarantor to Inmark as
security for the Obligations with respect to the Loans guaranteed by such
Guarantor, each in form and substance reasonably satisfactory to Inmark and its
counsel.
"GUARANTY" shall mean one or more guaranties executed by a Guarantor
which guarantees the payment and performance of the principal amount (but not
any interest, fees, or other charges or amounts) of a Loan.
"▇▇▇▇ COLLATERAL" shall have the meaning ascribed to the term in
Section 2 hereof.
"▇▇▇▇ LOANS" shall have the meaning ascribed to the term in Section 2
hereof.
"LOANS" shall have the meaning ascribed to the term in Section 3
hereof.
"LOAN EVENT OF DEFAULT" shall have the meaning ascribed to the term in
Section 10 hereof.
"MATURITY DATE" shall have the meaning ascribed to the term in Section
2 hereof.
"MAXIMUM LINE AMOUNT" shall have the meaning ascribed to the term in
Section 2 hereof.
"NET PROCEEDS" shall mean with respect to any Payment Event, (a) the
cash proceeds received by Borrower and its subsidiaries in respect of such
Payment Event, including any cash received in respect of any non-cash proceeds,
but only as and when received, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses paid by Borrower and its subsidiaries to third parties in
connection with such Payment Event, and (ii) the amount of all taxes paid (or
reasonably estimated to be payable) by Borrower and its subsidiaries, and (iii)
the amount of any reserves established by Borrower and its subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in cash during the
year that such Payment Event occurred or the next succeeding year and that are
directly attributable to such Payment Event (as determined reasonably and in
good faith by the chief financial officer of Borrower). In the case of Net
Proceeds denominated in a currency other than dollars, the amount of such Net
Proceeds shall be the dollar equivalent thereof based upon the exchange rates
prevailing at the time.
-3-
"OBLIGATIONS" means and includes all Loans, advances, debts,
liabilities, obligations, covenants and duties owing by Borrower to Inmark (or
any Person that directly or indirectly controls or is controlled by or is under
common control with Inmark) of every kind and description (whether or not
evidenced by this Note or any other instrument and whether or not for the
payment of money or the performance or non-performance of any act), direct or
indirect, absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, whether existing by operation of law or otherwise
now existing or hereafter arising including, without limitation, all interest,
charges or any other payments Borrower is required to make by law or otherwise
arising under or as a result of this Note and the other Ancillary Agreements,
together with all reasonable expenses and reasonable attorneys' fees chargeable
to Borrower's account or incurred by Inmark in connection with Borrower's
account whether provided for herein or in any other Ancillary Agreement.
"PAYMENT EVENT" shall mean (a) the issuance of Equity Interests, or (b)
a Change of Control.
"PERSON" shall mean an individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PRIME RATE" shall mean at any time the interest rate used by North
Fork Bank as its prime rate.
"PRIME COLLATERAL" shall mean Guarantor Collateral described in clauses
(a), (b), (c), and (d) of the definition of "Guarantor Collateral Availability."
"PRO RATA" shall mean, at the date of determination with respect to any
Guarantor, the percentage obtained by dividing (a) the aggregate outstanding
principal amount of Loans made by Lender based upon such Guarantor's Guarantor
Collateral Availability by (b) the aggregate outstanding principal amount of all
Loans.
"SECURITY AGREEMENT" shall mean the Security Agreement dated as of the
date hereof by and between Borrower and Inmark (as amended, modified and
supplemented from time to time).
"TAXES" shall have the meaning ascribed to the term in Section 8
hereof.
"VOTING INTERESTS" shall mean shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even if the right so to vote has been suspended by the happening of such a
contingency.
-4-
2. PAYMENT. FOR VALUE RECEIVED, Borrower hereby promises to pay
to the order of Inmark Capital Corp., at Inmark's offices located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or at such other place as Inmark may from time to
time designate to Borrower in writing, the principal sum of NINE MILLION FOUR
HUNDRED THOUSAND AND 00/100 DOLLARS ($9,400,000) (the "MAXIMUM LINE AMOUNT"), or
such other amount as may be due and owing to Inmark pursuant to this Note and
the Security Agreement, as follows:
(a) the entire principal balance hereunder shall be due
and payable on the earlier of (i) March 18, 2004, and (ii) at Inmark's option
following the occurrence and during the continuance of an Event of Default (the
"MATURITY DATE"); and
(b) interest on the unpaid principal amount of this Note,
from time to time outstanding, shall be payable in arrears on the first day of
each month during the term of this Note, at a rate of interest per annum equal
to the Contract Rate. Interest shall be computed on the basis of the actual
number of days elapsed over a 360-day year.
Upon the occurrence and during the continuance of an Event of Default,
the entire outstanding balance of this Note shall bear interest at the Default
Rate. Upon the occurrence and during the continuance of a Loan Event of Default,
the entire outstanding balance of the affected Loan shall bear interest at the
Default Rate. In no event shall interest hereunder be in excess of the maximum
interest rate permitted by law.
Borrower shall have the right to prepay the outstanding aggregate
principal amount of the Loans in whole or in part together with accrued interest
to the date of prepayment on the aggregate principal amount prepaid subject to
the payment of the amount set forth in Section 5(b). Borrower shall prepay the
Loans in an amount equal to all Net Proceeds, unless such prepayment requirement
is waived in writing by each of the Guarantors.
Inmark shall apply the proceeds from payments made by the Borrower
hereunder to the repayment of all Loans on a Pro Rata basis, provided, however,
that at any time the Guarantor Collateral Availability with respect to the
Guarantor Collateral pledged by ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the "▇▇▇▇ COLLATERAL") exceeds
$5,000,000 (such excess being referred to as the "EXCESS COLLATERAL AMOUNT"),
Inmark shall apply the proceeds from payments made by the Borrower hereunder to
the principal amount of the Loans outstanding as follows: first, to the
repayment of the Loans attributable to Guarantor Collateral Availability with
respect to the ▇▇▇▇ Collateral (the "▇▇▇▇ LOANS") in an aggregate amount equal
to the Excess Collateral Amount, and second, to the repayment of all Loans on a
Pro Rata basis.
Upon any payment of Loans under this Note, Inmark shall release
Guarantor Collateral to the extent the Guarantor Collateral Availability with
respect to any Loan exceeds the outstanding principal balance of such Loan. Such
release will be effected as a release of specific Guarantor Collateral, a
substitution of new Guarantor Collateral for the current Guarantor Collateral,
or otherwise, as appropriate.
-5-
In the event the outstanding principal balance of any Loan shall at any
time exceed the Guarantor Collateral Availability applicable to such Loan, then
Borrower shall make a mandatory prepayment of such Loan in an amount equal to
such excess or provide additional collateral to Inmark satisfactory to Inmark in
its sole discretion.
3. LOANS.
(a) Subject to the terms and conditions set forth herein,
from the date of this Note until the Maturity Date, Inmark will from time to
time make loans to Borrower (each, a "LOAN" and collectively the "LOANS") in an
amount equal to the Guarantor Collateral Availability applicable to such Loan
then being requested by Borrower, but in no event shall the aggregate principal
amount of all Loans exceed the Maximum Line Amount. Payments with respect to the
Loans permanently reduce the Maximum Line Amount. Each individual Loan shall be
guaranteed by a Guarantor and secured severally (not jointly) by an individual
pledge of Guarantor Collateral, as more particularly described on Schedule A
attached hereto and made a part hereof. Schedule A may, from time to time
hereafter, be modified to include additional Guarantors, descriptions of
Guarantor Collateral and Guarantor Collateral Availability (as then in effect).
(b) Notwithstanding the foregoing, no Loans shall be made
available to Borrower unless each and every one of the following conditions
shall have been satisfied as reasonably determined by Inmark:
(1) no Event of Default or Loan Event of Default shall exist at
the time of or would exist after giving effect to the making of any such Loan;
(2) each Guarantor upon whose Guarantor Collateral Inmark has been
requested to make one or more Loans shall have (i) executed and delivered to
Inmark a Guaranty and a Guarantor Pledge Agreement with respect to such
Guarantor Collateral, and (ii) shall have taken all such action as shall be
reasonably required by Inmark to perfect Inmark's security interest in the
Guarantor Collateral covered by the aforementioned Guarantor Pledge Agreement,
including without limitation causing the applicable financial intermediary
holding any such Guarantor Collateral to enter into one or more control
agreements in favor of Inmark covering such Guarantor Collateral, each of which
shall be in form and substance reasonably satisfactory to Inmark and its
counsel;
(3) Inmark shall at all times be satisfied with the type, credit
quality, liquidity, stability and diversification of Guarantor Collateral,
provided, however, that Inmark shall at all times be deemed satisfied with the
type, credit quality, liquidity, stability and diversification of any Guarantor
Collateral which is Prime Collateral; and
(4) Borrower shall have executed the Security Agreement granting
to Inmark a security interest in Borrower's assets as collateral security for
the Obligations and shall
-6-
have taken all action required by Inmark to perfect Inmark's security interest
in such assets.
4. DEPOSIT ACCOUNT. Borrower hereby (i) acknowledges that it has
established a deposit account with North Fork Bank (the "DEPOSIT ACCOUNT") on or
prior to the date of this Note, (ii) represents, warrants and covenants to
Inmark that Borrower shall maintain a balance in the Deposit Account sufficient
at all times to cover (1) the aggregate amount of the loan origination fee due
and payable during such calendar year, (2) the interest payment due and payable
on the first day of the following month (which amount shall be calculated based
on an amount outstanding equal to the Maximum Line and, in calculating the
Contract Rate, the Prime Rate as determined on the last day of the immediately
preceding month) and (3) all other amounts (excluding the principal amount of
the Loans) due and payable to Inmark hereunder and (iii) authorizes and directs
Inmark and North Fork Bank to debit the Deposit Account as and when any and all
interest and other amounts are due and payable hereunder.
5. LOAN ORIGINATION FEE. Borrower shall pay to Inmark an annual
loan origination fee in an amount equal to 1.5% (one and one-half percent) of
the Maximum Line Amount which Loan origination fee shall be deemed earned on the
date hereof and on each anniversary thereof. Each such loan origination fee
shall be payable subject to acceleration upon the occurrence of an Event of
Default or Loan Event of Default (a) with respect to the first year of the term
of this Note, in six equal monthly installments with the initial payment payable
on the date of execution of this Note and the remaining five payments payable on
the first day of each month thereafter, and (b) with respect to each subsequent
year, in six equal monthly installments with the initial monthly payment payable
on the anniversary date of this Note and the remaining five payments payable on
the first day of each month thereafter.
6. MONTHLY REPORTS. During the first two (2) months hereafter,
Borrower shall provide Inmark weekly updates of cash receipts and disbursements,
including an opening and closing balance of available cash. On and after the
third month following the date hereof, provide to Inmark a cash receipt and
disbursement report on a monthly basis (or such other basis as shall be
requested by Inmark from time to time). Each of the foregoing reports shall
contain a variance analysis from the schedule initially delivered by Borrower to
Inmark hereunder.
7. COSTS AND EXPENSES; INDEMNIFICATION.
(a) Borrower shall pay all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
incurred by Inmark or an authorized affiliate of Inmark in connection with the
enforcement of this Note and any of the other Ancillary Agreements and the
collection of amounts payable hereunder. All costs and expenses (including,
without limitation, reasonable attorneys' fees and disbursements) incurred by
Inmark (i) in all efforts made to enforce payment of any Obligation or effect
collection of any Collateral, or (ii) in connection with the entering into,
modification, amendment, administration and enforcement of this Note, any
-7-
Ancillary Agreement or any consents or waivers hereunder, or (iii) in
instituting, maintaining, preserving, enforcing and foreclosing on Inmark's
security interest in or lien on any of the Collateral, whether through judicial
proceedings or otherwise, or (iv) in defending or prosecuting any actions or
proceedings arising out of or relating to Inmark's transactions with Borrower,
or (v) in connection with any advice given to Inmark with respect to its rights
and obligations under this Note, the Ancillary Agreements and all related
agreements, shall be added to the principal balance of this Note and shall be
part of the Obligations. Borrower and Inmark each acknowledge that each
Guarantor shall only be liable for the aggregate original principal amount of
Loans made by Lender to Borrower based on such Guarantor's Guarantor Collateral
Availability in accordance with the terms of the Guaranty relating to such
Guarantor.
(b) Borrower hereby indemnifies Inmark and its officers,
directors, affiliates, employees and agents, which indemnity shall survive the
termination of this Note and the other Ancillary Agreements, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, reasonable attorneys' fees and
disbursements) which may be imposed on, incurred by, or asserted against Inmark
in any litigation, proceeding or investigation (including any litigation,
proceeding or investigation arising out of any environmental laws) instituted or
conducted by any governmental agency or instrumentality or any other person or
entity with respect to any aspect of, or any transaction contemplated by, or
referred to in, or any matter related to, this Note or the other Ancillary
Agreements, whether or not Inmark is a party thereto, except to the extent that
any of the foregoing arises out of the gross (not mere) negligence or willful
misconduct of Inmark.
8. TAXES. Each payment hereunder shall be made free and clear
of, and without deduction or withholding for, any Taxes (as hereafter defined).
"TAXES" shall mean and include, without limitation, taxes, duties, levies,
imposts or other charges of a similar nature other than taxes on overall net
income or receipts and franchise taxes (imposed in lieu of net income taxes),
except as required by law. In the event that any deduction or withholding for
Taxes shall be so required, Borrower shall pay such additional amounts as may be
necessary so that the net amount of such payment, after reduction by the amount
of such Taxes, is equal to the amount that Borrower was obligated to pay absent
the requirement to deduct such Taxes.
9. WAIVERS. Borrower hereby waives presentment, demand,
protest, notice of dishonor, and any other notice of any kind.
10. DEFAULT; REMEDIES.
(a) Upon the occurrence of any one or more of the
following events (each, an "EVENT OF DEFAULT"), any obligation of Inmark to make
a Loan shall be terminated and Inmark may, by written notice to Borrower,
declare the Obligations, including all principal, interest and any other amounts
owing hereunder, to be forthwith due and payable, whereupon such amounts,
subject to the Guarantors' cure rights set
-8-
forth in Section 9 of each Guarantor's Guaranty, shall become forthwith due and
payable together with all other amounts payable by Borrower under this Note and
the other Ancillary Agreements, without presentment, demand, protest or any
other notice of any kind, all of which, except as otherwise provided herein or
in any other Ancillary Agreement, are expressly waived; provided, however, if
any of the events set forth in clause (ii) below shall occur, then without any
notice to Borrower or any Guarantor or any other act by Inmark, such amounts
shall become forthwith due and payable, all without presentment, demand, protest
or notice of any kind or the right to cure, all of which are expressly waived:
(i) any representation or warranty made by Borrower in connection
with this Note or any other Ancillary Agreement to which Borrower is a party
shall prove to be incorrect when made and such incorrectness could reasonably be
expected to have a material adverse effect on the benefits, interest, rights or
remedies of Inmark under any Ancillary Agreement and on Borrower's ability to
pay or perform the Obligations; or
(ii) Borrower (1) shall not, or be unable to, or shall admit in
writing its inability to, pay its debts as such debts become due, or (2) shall
make an assignment for the benefit of creditors or petition or apply to any
tribunal for the appointment of a custodian, receiver, trustee or the like for a
substantial part of its assets or properties, domestic or foreign, or (3) shall
voluntarily commence any proceeding, or shall acquiesce to or fail to have
dismissed within forty-five (45) days any petition filed against it in any
involuntary case, under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether foreign or domestic and whether now or hereinafter in
effect, or (4) shall suffer any custodianship, receivership, trusteeship,
seizure, forfeiture or divestiture of all or a substantial part of its assets,
or (5) shall suspend, dissolve, liquidate or otherwise discontinue its usual
business, or (6) shall permit or suffer to exist an order of attachment or
comparable arrangement in respect of all or a substantial portion of its assets,
or (7) shall take any step, measure or action whatsoever for the purpose of
effecting or facilitating any of the foregoing in any way; or
(iii) the Borrower shall fail to perform or observe in any material
respect any term, covenant or agreement contained in this Note or any other
Ancillary Agreement to which Borrower is a party on (other than the Loan Event
of Default described in Section 9(b)(i) hereof) its part to be performed or
observed, in each case which is not cured within any applicable cure period,
following the earlier to occur of (i) the Borrower obtaining actual knowledge of
such failure or (ii) the Borrower receiving notice from Inmark of such failure;
or
(iv) one or more final, unappealable judgments, decrees or
arbitration awards shall be entered against Borrower involving an aggregate
liability (to the extent not covered by independent third-party insurance) of
$250,000 or more and the same shall remain unsatisfied, unvacated and unstayed
pending appeal for a period of 30 days after the entry thereof; or
-9-
(v) the Borrower shall fail to pay or discharge when due all
taxes, assessments and governmental charges or levies imposed upon it unless
same are not delinquent; or
(vi) any Collateral (other than Guarantor Collateral) is subjected
to levy of execution, attachment, distraint or other judicial process, or any
Collateral (other than Guarantor Collateral) is the subject of a claim (other
than by Inmark and Foothill) of a lien, security interest or other right or
interest in or to any of the Collateral (other than Guarantor Collateral) which
is not released or discharged within thirty (30) days; or
(vii) the security interests Inmark has been granted in the
Collateral (other than Guarantor Collateral) by the Borrower or any Guarantor
for any reason ceases to be or is not a valid and perfected lien having a first
priority interest subject only to the liens of Foothill provided that no later
than three (3) days following the date of this Note, Borrower shall deliver to
Inmark an intercreditor agreement in form and substance reasonably satisfactory
to Inmark executed by Foothill pursuant to which Foothill subordinates its liens
in the Collateral to the Liens in favor of Inmark and its assignees; or
(viii) the termination of the Deposit Account.
Notwithstanding any provision in this Note or in any other Ancillary Agreement,
to the contrary, upon any Event of Default, Inmark shall not pursue its rights
and remedies against the Guarantors pursuant to the Guaranties or the Guarantor
Pledge Agreements unless Inmark pursues and exercises such rights and remedies
Pro Rata with respect to all Guarantors.
(b) Upon the occurrence of any one or more of the
following events (each, an "LOAN EVENT OF DEFAULT"), Inmark may, by written
notice to Borrower, declare the Obligations related to the Loan to which such
Loan Event of Default relates, including all principal, interest and any other
amounts owing with respect to such Loan, to be forthwith due and payable,
whereupon such amounts, subject to the Guarantors' rights of cure set forth in
Section 9 of each Guarantor's Guaranty, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are expressly waived:
(i) Borrower (A) shall fail to make any payment (other than any
such amount comprising costs, expenses or indemnified amounts to be paid
pursuant to Section 7 hereof) under a Loan within two business days after the
same becomes due or (B) shall fail to pay costs, expenses or indemnified amounts
requested to be paid pursuant to Section 7 hereof within ten business days after
the same becomes due and payable; or
(ii) any representation or warranty made by any Guarantor in
connection with a Guaranty or any other Ancillary Agreement shall prove to be
incorrect when made and such incorrectness could reasonably be expected to have
a material adverse effect on the benefits, interest, rights or remedies of
Inmark under any Ancillary Agreement; or
-10-
(iii) (A) any termination or lapse of any Guaranty or any other
Ancillary Agreement executed and delivered to Inmark by any Guarantor in
connection with a Loan or such Guaranty or other Ancillary Agreement is no
longer in full force and effect for any reason, or (B) any Guarantor challenges
the validity of or its liability under any Guaranty or any other Ancillary
Agreement, or (C) a Guarantor shall fail to perform or observe in any material
respect any term, covenant, or agreement contained in a Guaranty or any other
Ancillary Agreement on its part to be performed or observed, in each case which
is not cured within any applicable cure period; or
(iv) any Guarantor (1) shall not, or be unable to, or shall admit
in writing such Guarantor's inability to, pay its debts as such debts become
due, or (2) shall make an assignment for the benefit of creditors or petition or
apply to any tribunal for the appointment of a custodian, receiver, trustee or
the like for a substantial part of such Guarantor's assets or properties,
domestic or foreign, or (3) shall voluntarily commence any proceeding, or shall
acquiesce to or fail to have dismissed within forty-five (45) days any petition
filed against such Guarantor in any involuntary case, under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether foreign or domestic and whether now
or hereinafter in effect, or (4) shall suffer any custodianship, receivership,
trusteeship, seizure, forfeiture or divestiture of all or a substantial part of
such Guarantor's assets, or (5) shall permit or suffer to exist an order of
attachment or comparable arrangement in respect of all or a substantial portion
of such Guarantor's assets, or (6) shall take any step, measure or action
whatsoever for the purpose of effecting or facilitating any of the foregoing in
any way; or
(v) Guarantor Collateral is subjected to levy of execution,
attachment, distraint or other judicial process, or Guarantor Collateral is the
subject of a claim (other than by Inmark) of a lien, security interest or other
right or interest in or to the Guarantor Collateral; or
(vi) any letter of credit consisting of Guarantor Collateral shall
expire fewer than forty-five (45) days after the Maturity Date. Notwithstanding
any provision in this Note, in any Guaranty or in any other Ancillary Agreement,
to the contrary, upon any Loan Event of Default, Inmark shall only have rights
or remedies with respect to the affected Loan.
11. NOTICES. All notices, requests, demands and other
communications provided for under this Note shall be in writing and shall be (a)
personally delivered, (b) sent by first class United States mail, (c) sent by
overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to Borrower, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy
to ▇▇▇▇▇▇▇▇▇
-11-
Traurig, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to Inmark, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 11. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
12. SUCCESSORS AND ASSIGNS. The rights of Inmark under this Note
shall inure to the benefit of the successors and assigns of Inmark. Inmark may,
with the written consent of Borrower (which shall not be unreasonably withheld),
assign this Note in whole or in part; provided, however, that Inmark may assign
this Note in whole (but not in part) to North Fork Bank without the consent of
Borrower. The holder of this Note may grant one or more participations in its
interest as holder of this Note.
13. GOVERNING LAW; JURISDICTION, VENUE; WAIVER OF JURY TRIAL.
This Note shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The parties hereto
hereby (i) consent to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Note; (ii) waive any argument that venue in any such
forum is not convenient, (iii) agree that any litigation initiated by Inmark or
Borrower in connection with this Note shall be venued in the United States
District Court of the Southern District of New York and, to the extent such
venue cannot be obtained, in any court having situs within the County of New
York, State of New York; and (iv) agree that a final judgment in any such suit,
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
BORROWER WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE OF PROCESS
UPON BORROWER MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO BORROWER AT THE BORROWER'S ADDRESS SET FORTH IN SECTION
11 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5) BUSINESS DAYS
AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS NOTE, ANY OF
THE OTHER ANCILLARY AGREEMENTS OR ANY OF THE OBLIGATIONS.
-12-
14. BROKER'S FEE. Upon the closing of the transactions
contemplated herein, Borrower authorizes Inmark to use the proceeds of the Loans
to pay directly to ITF Global Partners a broker's fee in the amount of $75,000.
15. MISCELLANEOUS. Any provision of this Note or any other
document related hereto may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by Borrower and Inmark. The rights, powers
and remedies of Inmark hereunder are cumulative and in addition to all rights,
powers and remedies provided under any and all agreements between Borrower and
Inmark relating hereto, at law, in equity or otherwise. Neither any delay nor
any omission by Inmark to exercise any right, power or remedy shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise thereof or any exercise of any other right, power or
remedy. The headings and captions contained herein are for convenience and shall
not control or affect the meaning or construction of any provision hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-13-
IN WITNESS WHEREOF, the parties hereto have executed this Promissory
Note as of the day and year first above written.
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name:
Title:
Agreed:
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇)
: ss.:
COUNTY OF New York)
On the 14th day of March, 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is the
Chairman of Scient, Inc., the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of the board of
directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. O1CA5032224
Qualified in Queens, County
Certificate Filed in New York County
Commission Expires August 22, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.:
COUNTY OF NEW YORK)
On the 15 day of March, 2002, before me personally came Miles ▇.
▇▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is
the President of Inmark Capital Corp., the corporation described in and which
executed the above instrument; and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Notary Public
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of New York
No. O1HA4995575
Qualified in Nassau County
Commission Expires April 27, 2002
-15-
SCHEDULE A
SCHEDULE OF LOANS
GUARANTOR
COLLATERAL
GUARANTOR DATE OF LOAN AMOUNT OF LOAN COLLATERAL AVAILABILITY
--------- ------------ -------------- ---------- ------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ March 18, 2002 $2,115,560.07 $5,001,331.37 in cash on 100%
deposit in account
#8016018593 with North
Fork Bank
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ March 18, 2002 $ 211,788.74 $300,000 in cash on 100%
deposit in account
#8016018601 with North
Fork Bank
▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant $100,000 in cash on 100%
deposit in account
#8016018619 with North
Fork Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ $250,000 in cash on 100%
deposit in account
#8016018650 with North
Fork Bank
▇▇▇▇▇ & Company, L.P. Letter of Credit in the 100%
face amount of $625,000
issued by JPMorgan Chase
Bank
-16-
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this "Agreement") dated as of March 18,
2002 among Inmark Capital Corp. ("Lender"), Foothill Capital Corporation, as
agent for itself and various other lenders ("Foothill"), Scient, Inc.
("Borrower") and Scient Enterprises, Inc., formerly known as Scient Corporation
("SE") (Borrower and SE, each a "Debtor" and collectively, "Debtors").
BACKGROUND
As an inducement for Lender to provide a secured credit facility in
favor of Borrower, Foothill has agreed to enter into this Agreement to provide
for the subordination of the "Liens" in assets of Debtors granted to Foothill to
the "Liens" in assets of Debtors granted to Lender.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1. General Terms. For purposes of this Agreement, the
following terms shall have the following meanings:
"Borrower" shall have the meaning set forth in the background
paragraph to this Agreement.
"Collateral" shall mean all of the property and interests in
property, tangible or intangible, real or personal, now owned or hereafter
acquired by any Debtor in or upon which a Creditor at any time has a Lien, and
including, without limitation, all proceeds and products of such property and
interests in property, but excluding the Foothill Cash Collateral.
"Creditor Agreements" shall mean, collectively, the Lending
Agreements and the Foothill Agreements.
"Creditors" shall mean, collectively, Lender and Foothill and
their respective heirs, administrators, executors, successors and assigns.
"Debtor(s)" shall mean each Debtor and each of their
respective successors and assigns.
"Documents" shall have the meaning given to the term
"Ancillary Agreements" in the Note.
"Foothill Agreements" shall mean all promissory notes,
agreements, documents and instruments now or at any time hereafter executed
and/or delivered by any Debtor or any other Person to, with or in favor of
Foothill in connection with or related to a credit facility
established by Foothill in favor of SE, as all of the foregoing now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"Foothill Cash Collateral" means all cash collateral now owned
or hereafter acquired by Foothill in or upon which Foothill at any time has a
Lien, and including without limitation, any proceeds thereof.
"Lender" shall have the meaning set forth in the introductory
paragraph to this Agreement.
"Lending Agreements" shall mean collectively, the Note, the
Revolving Loan Documents and the other Documents, each as from time to time in
effect.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security interest, encumbrance
(including, but not limited to, easements, rights of way and the like), lien
(statutory or other), security agreement or transfer intended as security,
including without limitation, any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease or any financing lease
having substantially the same economic effect as any of the foregoing.
"Note" shall mean the Promissory Note dated as of March 18,
2002 by and between Borrower and Lender, as the same may be amended,
supplemented, modified or restated from time to time.
"Person" shall mean an individual, a partnership, a
corporation (including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture, a limited liability company, a
limited liability partnership or other entity or a government or any agency,
instrumentality or political subdivision thereof.
"Revolving Loan Documents" shall mean any and all promissory
notes, agreements, documents and instruments at any time hereafter executed
and/or delivered by any Debtor or any other Person to, with or in favor of the
Lender in connection with or relating to a revolving loan facility established
by Lender in favor of Borrower, as all of the foregoing may thereafter be
amended, modified, supplemented, extended, renewed, restated or replaced.
"Secured Lender Remedies" shall mean any action which results
in the sale, foreclosure, realization upon, or a liquidation of any of the
Collateral, including, without limitation, the exercise or any of the rights or
remedies of a "secured party" under Article 9 of the Uniform Commercial Code,
such as, without limitation, the notification of account debtors.
"Senior Indebtedness" shall mean all Obligations of any kind
owed by any Debtor to Lender from time to time under or pursuant to any of the
Lending Agreements including, without limitation, all principal, interest
accruing thereon, charges, expenses, fees and other sums (including all
interest, charges, expenses, fees and other sums accruing after commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Debtor) chargeable to Debtors by Lender, and
reimbursement, indemnity or other obligations due and payable to Lender. Senior
Indebtedness shall continue to constitute Senior Indebtedness, notwithstanding
the fact that such
2
Senior Indebtedness or any claim for such Senior Indebtedness is subordinated,
avoided or disallowed under the federal Bankruptcy Code or other applicable law.
Senior Indebtedness shall also include any indebtedness of any Debtor incurred
in connection with a refinancing of the Senior Indebtedness under the Lending
Agreements if the terms and conditions of the agreements, documents and
instruments related to such refinancing, taken as a whole, are not materially
more onerous to Foothill than those set forth in the Lending Agreements, as in
effect on the date hereof.
1.2. Other Terms. Capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
1.3. Certain Matters of Construction. The terms "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or
subdivision. Any pronoun used shall be deemed to cover all genders. Wherever
appropriate in the context, terms used herein in the singular also include the
plural and vice versa. All references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
Except as expressly set forth herein, all references to any instruments or
agreements, including, without limitation, references to any of the Creditor
Agreements shall include any and all modifications or amendments thereto and any
and all extensions or renewals thereof.
2. Intercreditor Provisions
2.1. Acknowledgment of Lien. Each Creditor hereby agrees
and acknowledges that the other Creditor has been granted a Lien upon the
Collateral. Lender hereby agrees and acknowledges that Foothill has been granted
a Lien upon the Foothill Cash Collateral.
2.2. Priority. Notwithstanding the order or time of
attachment, or the order, time or manner of perfection, or the order or time of
filing or recordation of any document or instrument, or other method of
perfecting a Lien in favor of each Creditor in any Collateral, and
notwithstanding any conflicting terms or conditions which may be contained in
any of the Creditor Agreements, the Liens upon the Collateral of Lender have and
shall have priority over the Liens upon the Collateral of Foothill and such
Liens of Foothill are and shall be, in all respects, subject and subordinate to
the Liens of Lender therein to the full extent of the Senior Indebtedness
outstanding from time to time. Foothill shall not take any action to foreclose
or realize upon the Collateral until such time as the Senior Indebtedness shall
have been paid in full in cash and the Loan Agreement irrevocably terminated.
2.3. No Alteration of Priority. The Lien priorities
provided in Section 2.2 hereof shall not be altered or otherwise affected by any
amendment, modification, supplement, extension, renewal, restatement or
refinancing of any Senior Indebtedness or any indebtedness payable under the
Foothill Agreements, nor by any action or inaction which either Creditor may
take or fail to take in respect of the Collateral.
2.4. Perfection. Each Creditor shall be solely responsible
for perfecting and maintaining the perfection of its Lien in and to each item
constituting the Collateral in which such Creditor has been granted a Lien. The
foregoing provisions of this Agreement are intended solely to govern the
respective Lien priorities as between the Creditors and shall not impose on
3
Lender any obligations in respect of the disposition of proceeds of foreclosure
on any Collateral which would conflict with prior perfected claims therein in
favor of any other Person. Each Creditor agrees that it will not contest the
validity, perfection, priority or enforceability of the Liens of the other
Creditor in the Collateral and that as between Lender and Foothill, the terms of
this Agreement shall govern even if part or all of the Senior Indebtedness or
the Liens of Lender securing payment and performance thereof are avoided,
disallowed, set aside or otherwise invalidated in any judicial proceeding or
otherwise.
2.5. Management of Collateral. Lender shall have the
exclusive right to manage, perform and enforce the terms of the Lending
Agreements with respect to the Collateral and to exercise and enforce all
privileges and rights thereunder according to its discretion and the exercise of
its business judgment, including, without limitation, the exclusive right to
enforce or settle insurance claims, take or retake control or possession of such
Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or
liquidate such Collateral. In connection therewith, Foothill waives any and all
rights to affect the method or challenge the appropriateness of any action by
Lender.
2.6. Sale of Collateral. Notwithstanding anything to the
contrary contained in any of the Creditor Agreements, until such time as the
Senior Indebtedness shall have been paid in full in cash and the Lending
Agreements shall have been irrevocably terminated, only Lender shall have the
right to restrict or permit, or approve or disapprove, the sale, transfer or
other disposition of Collateral. Foothill will, promptly upon the request of
Lender, release or otherwise terminate its Liens upon the Collateral, to the
extent such Collateral is sold or otherwise disposed of either by Lender, its
agents or any Debtor with the consent of Lender, and Foothill will promptly
deliver such release documents as Lender may require in connection therewith;
provided, however, that Foothill shall retain its Lien upon the proceeds of such
Collateral.
2.7. Secured Lender Remedies. In no event shall Foothill
exercise any Secured Lender Remedies until such time as the Senior Indebtedness
shall have been paid in full in cash and the Lending Agreements irrevocably
terminated; nor shall Foothill join in, solicit any other person to, or act to
cause the commencement of, any case involving any Debtor under any state or
federal bankruptcy or insolvency laws or seek the appointment of a receiver for
the affairs or property of any Debtor until such time as the Senior Indebtedness
shall have been paid in full in cash and the Lending Agreements shall have been
irrevocably terminated. In the event Foothill shall receive any payment or
distribution of any kind representing proceeds of any Collateral as to which its
Lien in the Collateral is or is required to be subordinated to the Lien of
Lender, before the Senior Indebtedness shall have been paid in full in cash and
the Lending Agreements irrevocably terminated, such sums shall be held in trust
by Foothill for the benefit and on account of Lender and such amounts shall be
paid to Lender for application to the then unpaid Senior Indebtedness under the
Lending Agreements.
2.8. Section 9-611 Notice and Waiver of Marshaling.
Foothill and Lender acknowledge that this Agreement shall constitute notice of
their respective interests in the Collateral as provided by Section 9-611 of the
UCC and each hereby waive any right to compel any marshaling of any of the
Collateral.
4
3. Miscellaneous.
3.1. Survival of Rights. The right of Lender to enforce
the provisions of this Agreement shall not be prejudiced or impaired by any act
or omitted act of any Debtor or Lender, including forbearance, waiver, consent,
compromise, amendment, extension, renewal, or taking or release of security in
respect of any Senior Indebtedness or noncompliance by any Debtor with such
provisions, regardless of the actual or imputed knowledge of Lender.
3.2. Amendments to Lending Agreements. Nothing contained
in this Agreement, or in any other agreement or instrument binding upon any of
the parties hereto, shall in any manner limit or restrict the ability of Lender
from increasing or changing the terms of the loans under the Lending Agreements,
or to otherwise waive, amend or modify the terms and conditions of the Lending
Agreements, in such manner as Lender and any Debtor shall mutually determine.
Foothill hereby consents to any and all such waivers, amendments, modifications
and compromises, and any other renewals, extensions, indulgences, releases of
collateral or other accommodations granted by Lender to any Debtor from time to
time, and agrees that none of such actions shall in any manner affect or impair
the relative Lien priorities and subordination established by this Agreement in
respect of the indebtedness payable under the Foothill Agreements.
3.3. Bankruptcy Financing Issues. This Agreement shall
continue in full force and effect after the filing of any petition ("Petition")
by or against any Debtor under the United States Bankruptcy Code (the "Code")
and all converted or succeeding cases in respect thereof. All references herein
to a Debtor shall be deemed to apply to such Debtor as debtor-in-possession and
to a trustee for such Debtor. If any Debtor shall become subject to a proceeding
under the Code, and if Lender shall desire to permit the use of cash collateral
(other than the Foothill Cash Collateral) or to provide post-petition financing
from Lender to such Debtor under the Code, Foothill agrees as follows: (1)
adequate notice to Foothill shall be deemed to have been provided for such
post-petition financing if Foothill receives notice thereof at least three (3)
Business Days (or such shorter notice as is given to Lender) prior to the
earlier of (a) any hearing on a request to approve such post-petition financing
or (b) the date of entry of an order approving the same; and (2) no objection
will be raised by Foothill to any such use of cash collateral (other than the
Foothill Cash Collateral) or such post-petition financing from Lender.
3.4. Insurance Proceeds. Proceeds of the Collateral
include insurance proceeds, and therefore, notwithstanding the terms set forth
in the Lending Agreements or Foothill Agreements, the priorities set forth in
Section 2.2 govern the ultimate disposition of casualty insurance proceeds.
Lender, as the holder of a senior security interest on the Collateral insured
shall have the sole and exclusive right, as against Foothill, to adjust
settlement of insurance claims in the event of any covered loss, theft or
destruction of such Collateral. All proceeds of such insurance shall inure to
Lender, to the extent of Lender's claim, and Foothill shall cooperate (if
necessary) in a reasonable manner in effecting the payment of insurance proceeds
to Lender. In the event Lender, in its sole discretion or pursuant to agreement
with any Debtor, permits such Debtor to utilize the proceeds of insurance to
replace Collateral, the consent of Lender thereto shall be deemed to include the
consent of Foothill.
5
3.5. Receipt of Agreements. Foothill hereby acknowledges
that it has delivered to Lender a correct and complete copy of the Foothill
Agreements as in effect on the date hereof. Foothill, solely for the purposes of
this Agreement, hereby acknowledges receipt of a correct and complete copy of
each of the Lending Agreements as in effect on the date hereof.
3.6. No Amendment of Foothill Agreements. So long as the
Loan Agreement remains in effect, no Debtor nor Foothill shall enter into any
amendment to or modification of any Foothill Agreements which relates to or
affects the principal amount, interest rate, payment terms, or any other
material covenant or agreement of such Debtor thereunder or in respect thereof,
without the prior written consent of Lender.
3.7. Notice of Default and Certain Events. Lender and
Foothill shall undertake in good faith to notify the other of the occurrence of
any of the following as applicable:
(a) the obtaining of actual knowledge of the
occurrence of any default under the Foothill Agreement;
(b) the acceleration of any Senior Indebtedness
or of any of the indebtedness payable under the Foothill Agreements;
(c) the granting by Lender of any waiver of any
Event of Default under the Loan Agreement or the granting by Foothill of any
waiver of any "default" or "event of default" under the Foothill Agreements;
(d) The payment in full by Debtors (whether as a
result of refinancing or otherwise) of all Senior Indebtedness; or
(e) the sale or liquidation of, or realization
upon, the Collateral.
The failure of any party to give such notice shall not affect the
relative Lien priorities as provided in this Agreement.
3.8. Notices. Any notice or other communication required
or permitted pursuant to this Agreement shall be deemed given (a) when
personally delivered to any officer of the party to whom it is addressed, (b) on
the earlier of actual receipt thereof or three (3) days following posting
thereof by certified or registered mail, postage prepaid, (c) upon actual
receipt thereof when sent by a recognized overnight delivery service or (d) upon
actual receipt thereof when sent by telecopier to the number set forth below
with electronic confirmation of receipt, in each case addressed to each party at
its address or telecopier number set forth below or at such other address or
telecopier number as has been furnished in writing by a party to the other by
like notice:
If to Lender: Inmark Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attention: Client Services Department
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
6
with a copy to: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to Foothill: Foothill Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Jeffer, Mangels, ▇▇▇▇▇▇ & Marmaro LLP
2121 Avenue of the Stars, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Debtors: Scient, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
3.9. Binding Effect; Other. This Agreement shall be a
continuing agreement, shall be binding upon and shall inure to the benefit of
the parties hereto from time to time and their respective successors and
assigns, shall be irrevocable and shall remain in full force and effect until
the Senior Indebtedness shall have been satisfied or paid in full in cash and
the Loan Agreement shall have been irrevocably terminated, but shall continue to
be effective, or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any amount paid by or on behalf of Debtors with regard to
the Senior Indebtedness is rescinded or must otherwise be restored or returned
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Debtor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee, custodian, or similar officer, for any Debtor or
any substantial part of its property, or otherwise, all as though such payments
had not been made. No action which Lender or any Debtor may take or refrain from
taking with respect to the Senior Indebtedness, including any amendments
thereto, shall affect the provisions of this Agreement or the obligations of
Foothill. Any waiver or amendment hereunder must be evidenced by a signed
writing of the party to be
7
bound thereby, and shall only be effective in the specific instance. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The headings in this Agreement are for convenience of
reference only, and shall not alter or otherwise affect the meaning hereof.
4. Representations and Warranties. (a) Foothill represents and
warrants to Lender that Foothill is the holder of the Liens which secure or will
secure the indebtedness payable under the Foothill Agreements. Foothill agrees
that it shall not assign or transfer any of the Liens without (i) prior notice
being given to Lender and (ii) such assignment or transfer being made expressly
subject to the terms of this Agreement. Foothill agrees upon Lender's request to
execute and file an amendment to any financing statement or mortgage, trust deed
or other encumbrance now on file which covers Collateral to the effect that the
same is subject to the terms of this Agreement, and agrees to so ▇▇▇▇ any
extension of such financing statements, or any financing statement or mortgage,
trust deed or other encumbrance filed by Foothill on Collateral in the future.
Foothill further warrants to Lender that it has full right, power and authority
to enter into this Agreement and, to the extent Foothill is an agent or trustee
for other parties, that this Agreement shall fully bind all such other parties.
(b) Foothill represents and warrants that no Debtor has
any obligations or liabilities whatsoever due and owing to Foothill other than
the obligations and liabilities arising from outstanding L/C's and L/C
Guaranties (as such terms are defined in the Foothill Agreements), and fees and
costs arising from and as provided in the Foothill Agreements.
(c) Lender represents and warrants to Foothill that
Lender is the holder of the Liens which secure or will secure the Senior
Indebtedness. Lender agrees that it shall not assign or transfer any of the
Liens without (i) prior notice being given to Foothill and (ii) such assignment
or transfer being made expressly subject to the terms and provisions of this
Agreement. Lender further warrants to Foothill that it has full right, power and
authority to enter into this Agreement and, to the extent Lender is an agent or
trustee for other parties, that this Agreement shall fully bind all such other
parties.
5. Refinancing. In the event that the Senior Indebtedness are
refinanced in full, Foothill agrees at the request of such refinancing party to
enter into an intercreditor agreement on terms substantially similar to this
Agreement.
6. Proceedings. ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST
FOOTHILL OR ANY DEBTOR WITH RESPECT TO THIS AGREEMENT OR ANY RELATED AGREEMENT
MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN STATE OF NEW YORK,
UNITED STATES OF AMERICA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
PARTY THERETO ACCEPTS FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER
TO BRING PROCEEDINGS AGAINST FOOTHILL OR ANY DEBTOR IN ANY COURTS
8
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY FOOTHILL OR ANY DEBTOR
AGAINST LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY
ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT OR ANY RELATED
AGREEMENT, SHALL BE BROUGHT ONLY IN A COURT LOCATED IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇; PROVIDED THAT NOTWITHSTANDING THE FOREGOING, IF IN ANY
JUDICIAL PROCEEDING BY OR AGAINST FOOTHILL OR ANY DEBTOR THAT IS BROUGHT IN ANY
OTHER COURT SUCH COURT DETERMINES THAT LENDER IS AN INDISPENSABLE PARTY,
FOOTHILL OR SUCH DEBTOR SHALL BE ENTITLED TO JOIN OR INCLUDE EACH PARTY HERETO
IN SUCH PROCEEDINGS IN SUCH OTHER COURT. FOOTHILL AND EACH DEBTOR WAIVE ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREUNDER AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON
FORUM NON CONVENIENS.
7. Waiver Of Jury Trial. EACH PARTY HERETO HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY CREDITOR OR ANY
DEBTOR OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENTS OR AGREEMENT EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH, OR
THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND
EACH PARTY HERETO HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT JURY, AND THAT ANY OF
THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
8. Debtors' Acknowledgement. Each Debtor agrees that (i) nothing
contained in this Agreement shall be deemed to amend, modify, supercede or
otherwise alter the terms of the respective agreements between any Debtor and
each Creditor and (ii) this Agreement is solely for the benefit of the Creditors
and shall not give any Debtor, any of their respective successors or assigns or
any other Person any rights vis-a-vis any Creditor.
9. Counterparts; Facsimile. This Agreement may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
9
IN WITNESS WHEREOF, the undersigned have entered into this
Agreement as of this 18 day of March, 2002.
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
FOOTHILL CAPITAL CORPORATION, as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
SCIENT ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss.:
COUNTY OF NEW YORK )
On the 15th day of March, 2002, before me personally came Miles ▇.
▇▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is
the President of Inmark Capital Corp., the corporation described in and which
executed the above instrument; and that he was authorized to sign his name
thereto.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Notary Public ▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of New York
No. 01HA4995575
Qualified in Nassau County
Commission Expires April 27, 2002
STATE OF CALIFORNIA)
: ss.:
COUNTY OF LOS ANGELES)
On the 12th day of March, 2002, before me personally came ▇▇▇▇▇▇▇▇
▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that s/he is
the Vice President of Foothill Capital Corporation, the corporation described in
and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said corporation.
/s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Notary Public ▇. ▇▇▇▇▇ ▇▇▇▇▇
Commission #1299221
Notary Public - California
Los Angeles County
My Comm. Expires Apr. 1, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇)
: ss.:
COUNTY OF NEW YORK)
On the 14th day of March, 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇ to me known, who, being by me duly sworn did depose and say that s/he is
the Chairman of Scient, Inc., the corporation described in and which executed
the above instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
11
STATE OF New York )
: ss.:
COUNTY OF New York )
On the 14th day of March, 2002, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that s/he is
the Asst. Treas. of Scient Enterprises, Inc., the corporation described in and
which executed the above instrument; and that s/he signed her/his name thereto
by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. OICA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
12
ASSIGNMENT OF LOANS, LIENS
AND LOAN DOCUMENTS
THIS ASSIGNMENT OF LOANS, LIENS AND LOAN DOCUMENTS (this "Agreement")
dated as of March 18, 2002 among INMARK CAPITAL CORP. ("Assignor"), NORTH FORK
BANK ("Assignee"), SCIENT, INC. ("Borrower"), SCIENT ENTERPRISES, INC. ("SE"),
IXL ENTERPRISES, INC. ("IXL"), IXL, INC. ("IXL Sub"), ▇▇▇▇▇ & COMPANY, L.P.
("▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇").
BACKGROUND
Borrower has entered into and delivered to Assignor (i) a Promissory
Note dated as of the date hereof in favor of Assignor in the original principal
amount of $9,400,000 (as same has or may be amended from time to time, the
"Note") and (ii) a Security Agreement dated as of the date hereof ("Borrower
Security Agreement") pursuant to which Borrower granted Assignor a security
interest in Borrower's assets in accordance with the terms thereof. Borrower is
indebted to Assignor pursuant to (i) the Note, (ii) the Borrower Security
Agreement and (iii) all other agreements, instruments and documents, including,
without limitation, the Ancillary Agreements, executed and/or delivered in
connection therewith ((i), (ii) and (iii) collectively, the "Borrower Loan
Documents").
Each of SE, IXL and IXL Sub (each a "Subsidiary Guarantor" and
collectively, "Subsidiary Guarantors") has entered into and delivered to
Assignor (i) a Guaranty dated as of the date hereof (the "Subsidiary Guaranty")
guaranteeing all of the obligations of Borrower under the Note and (ii) a
Security Agreement dated as of the date hereof (each a "Subsidiary Security
Agreements") pursuant to which each Subsidiary Guarantor granted Assignor a
security interest in such Subsidiary Guarantor's assets in accordance with the
terms thereof. Each Subsidiary Guarantor is indebted to Assignor pursuant to (i)
its respective Subsidiary Guaranty, (ii) its respective Subsidiary Security
Agreement and (iii) all other agreements, instruments and documents executed
and/or delivered in connection therewith ((i), (ii) and (iii) collectively, the
"Subsidiary Loan Documents").
Each of Kelso, Howe, Mucchetti, Formant and ▇▇▇▇▇▇▇▇▇ (each a
"Principal Guarantor" and collectively, "Principal Guarantors") has entered into
a delivered to Assignor a Guaranty dated as of the date hereof (each a
"Principal Guaranty") guaranteeing certain of the obligations of Borrower under
the Note in accordance with the terms thereof. Each of ▇▇▇▇, Mucchetti and
Formant has entered into and delivered to Assignor a Pledge and Security
Agreement (each a "Principal Pledge Agreement") pursuant to which such Principal
Guarantor pledged to Assignor the collateral described therein on the terms and
conditions set forth therein. Each Principal Guarantor is indebted to Assignor
pursuant to (i) its respective Principal Guaranty, (ii) as applicable, its
respective Principal Pledge Agreement and (iii) all other agreements,
instruments and documents executed and/or delivered in connection therewith
((i), (ii) and (iii) collectively, the "Principal Loan Documents") (the Borrower
Loan Documents, the Subsidiary Loan Documents and the Principal Loan Documents,
collectively, the "Loan Documents").
Assignor has agreed to sell and assign all of its respective right,
title, and interest in and to the Loans (as defined in the Note) and the Loan
Documents to Assignee and Assignee has agreed to purchase the Loans and the Loan
Documents from Assignor on the terms and conditions herein contained.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
A. Definitions. Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Note.
B. Assignment and Assumption.
1. As of the date hereof, Assignor hereby TRANSFERS,
ASSIGNS, SELLS, GRANTS and CONVEYS, WITHOUT RECOURSE, REPRESENTATION OR WARRANTY
OF ANY NATURE WHATSOEVER (except as expressly set forth in Section C.1 of this
Agreement) unto Assignee all of Assignor's right, title, and interest in and to
the Loans and the Loan Documents, together with all attendant liens, rights,
title, assignments and interests (including security interests), pertaining to
or arising from the Loan Documents (the "Assigned Rights").
2. Assignee hereby PURCHASES all of the Assigned Rights
and ASSUMES all of Assignor's obligations under and with respect to the Loans
and the Loan Documents as of the date hereof (including, without limitation, all
of Assignor's commitments, if any, and the obligations owing to Assignor
thereunder).
C. Representations and Warranties.
1. Assignor represents and warrants that (i) the
Assigned Rights are free and clear of any lien or encumbrance created by
Assignor; (ii) this Agreement has been duly authorized, executed and delivered
by Assignor, and is the legal, valid and binding obligation of Assignor
enforceable in accordance with its terms; (iii) it has title to the Assigned
Rights and (iv) it has not previously assigned, sold or hypothecated any
interest that it may have in the Assigned Rights or the Loan Documents.
2. Assignor makes no representation or warranty and
assumes no responsibility with respect to (A) any statements, warranties or
representations made by Borrower, any Subsidiary Guarantor or any Principal
Guarantor in or in connection with the Note, any other Loan Document or any
other instrument or document furnished pursuant thereto, (B) the legality,
validity, enforceability, genuineness, sufficiency or value of the Note, any
other Loan Document or any other instrument or document furnished pursuant
thereto; (C) the occurrence or existence of any defaults or events of default
under the Note or any other Loan Document; or (D) the financial condition of
Borrower, any Subsidiary Guarantor or any Principal Guarantor or the performance
or observance by Borrower, any Subsidiary Guarantor or any Principal Guarantor
or any other obligor of any of its obligations under any Loan Document or any
other instrument or document furnished pursuant thereto.
3. Assignee hereby acknowledges that it is taking the
Loan Documents as is, without recourse to Assignor, without the benefit of any
representations or warranties from Assignor, except as expressly stated in
Section C.1 above.
4. Assignee represents and warrants that this Agreement
has been duly authorized, executed and delivered by it, and is the legal, valid
and binding obligation of the Assignee enforceable in accordance with its terms.
D. No Further Obligations. As of the date hereof (a) Assignee
shall be a party to the Loan Documents and, to the extent provided herein, shall
have the rights and obligations under the Loan Documents of Assignor thereunder
and (b) Assignor shall and hereby does assign to Assignee all of its rights,
under the Note and the other Loan Documents.
E. Consent to Assignment. Borrower, each Subsidiary Guarantor and
each Principal Guarantor consents to this Assignment and agrees to be bound by
its terms and conditions to the extent applicable to it. Borrower acknowledges
that all references to "Inmark" in Section 7 of the Note shall apply to each of
Assignor and Assignee, as applicable.
F. Notices. As of the date hereof, all notices, requests, demands
and other communications provided for under the Loan Documents that were to be
sent to Assignor shall be sent to Assignee in accordance with the terms of each
Loan Document at Assignee's address or telecopier number as set forth below:
North Fork Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Aris Haigian, Esq., Telecopier: 212-245-3009;
G. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The parties hereto
hereby (i) consent to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Agreement; (ii) waive any argument that venue in any
such forum is not convenient, (iii) agree that any litigation initiated by any
party hereto in connection with this Agreement shall be venued in the United
States District Court of the Southern District of New York and, to the extent
such venue cannot be obtained, in any court having situs within the County of
New York, State of New York; and (iv) agree that a final judgment in any such
suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED ON OR PERTAINING TO THIS AGREEMENT.
H. Counterparts; Facsimile. This Agreement may be executed in one
or more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
instrument. Any signature delivered by facsimile transmission shall be deemed an
original signature hereto.
This Agreement has been executed by the parties hereto on the date
first written above.
INMARK CAPITAL CORP., as Assignor
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
NORTH FORK BANK, as Assignee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
[ADDITIONAL SIGNATURES TO ASSIGNMENT OF LOANS,
LIENS AND LOAN DOCUMENTS TO FOLLOW]
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
SCIENT ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
IXL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
IXL ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
[ADDITIONAL SIGNATURES TO ASSIGNMENT OF
LOANS, LIENS AND LOAN DOCUMENTS]
▇▇▇▇▇ & COMPANY, L.P.
By: ▇▇▇▇▇ & Companies, Inc., its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
Title: Vice President & General Counsel
[ADDITIONAL SIGNATURE TO ASSIGNMENT OF
LOANS, LIENS AND LOAN DOCUMENTS]
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
[ADDITIONAL SIGNATURE TO ASSIGNMENT OF
LOANS, LIENS AND LOAN DOCUMENTS]
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[ADDITIONAL SIGNATURE TO ASSIGNMENT OF
LOANS, LIENS AND LOAN DOCUMENTS]
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ Formant
[ADDITIONAL SIGNATURE TO ASSIGNMENT OF
LOANS, LIENS AND LOAN DOCUMENTS]
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[ADDITIONAL SIGNATURE TO ASSIGNMENT OF
LOANS, LIENS AND LOAN DOCUMENTS]
March 18, 2002
North Fork Bank
(as assignee of Inmark Capital Corp.)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to a certain Promissory Note dated as of the date
hereof (as amended, modified, restated or supplemented from time to time, the
"Note") made by the undersigned in favor of North Fork Bank (as assignee of
Inmark Capital Corp.) ("Lender"). All capitalized terms used herein which are
not defined shall have the meanings given to them in the Note.
Lender is hereby authorized to disburse the proceeds of the initial
Loans as set forth on Schedule I hereto.
Very truly yours,
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
SCHEDULE I
1. Bank: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: 052033325
Account Name: International Technologies & Finance
Amount: $75,000.00
Purpose: Payment of broker's fee
2. Bank: PNC Bank, New Jersey
ABA Routing No.: 0312076070
Account No.: 8019327261
Account Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC Attorney Business
Account
Reference: Scient, Inc.
Amount: $68,029.50
Purpose: Payment of legal fees (which is net of on
account payments previously made by Borrower
in the amount of $25,000 and includes an on
account payment to cover estimated
post-closing fees and disbursements relating
to the term loan facility and the accounts
receivable purchase facility)
3. Bank: Citibank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA Routing No.: ▇▇▇▇▇▇▇▇▇
Account No.: 187-07341 6
Account Name: ▇▇▇▇ ▇▇▇▇▇▇▇, P.C., Attorney Regular
Checking Account
Reference: Scient, Inc.
Amount: $22,500
Purpose: Payment of legal fees
2
4. Bank: ▇▇▇▇▇ Fargo, San Francisco, CA
ABA Routing No: ▇▇▇-▇▇▇-▇▇▇
Account No.: 4761-060284
Account Name: Scient
Amount: $2,001,301.37
Purpose: Net loan proceeds to Borrower
5. Funding of the Deposit Account in an amount equal to the total loan
origination fee due and payable during the 2002 calendar year plus the
interest payment due and payable on April 1, 2002 in accordance with the
Note.
Amount: $160,517.94
6. Amount: $23,500.00
Purpose: Payment to Lender of loan origination
fee due and payable on the closing
date which amount shall be charged to
the Deposit Account (paid from amount
funded into the Deposit Account in
item 5 above)
3
SECURITY AGREEMENT
To: Inmark Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
1. This Security Agreement (this "Agreement") is executed in
connection with (i) that certain Promissory Note dated as of the date hereof
made by Scient, Inc. in favor of you (as amended, modified, restated or
supplemented from time to time, the "Note") and (ii) that certain Guaranty dated
as of the date hereof made by us in favor of you. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Note.
2. To secure the payment of all Obligations, we hereby grant to
you a continuing security interest in all of our assets now owned or at any time
hereafter acquired by us, or in which we now have or at any time in the future
may acquire any right, title or interest, including, without limitation, all of
our accounts, inventory, equipment, goods, documents, instruments (including,
without limitation, promissory notes), contract rights, general intangibles
(including, without limitation, payment intangibles), chattel paper, supporting
obligations, investment property, deposit accounts, letter-of-credit rights,
trademarks and tradestyles in which we now have or hereafter may acquire any
right, title or interest, all proceeds and products thereof (including, without
limitation, proceeds of insurance) and all additions, accessions and
substitutions thereto or therefor (all of the foregoing, collectively, the
"Collateral").
3. We hereby warrant and covenant to you that: (a) we are a
company validly existing, in good standing and formed under the laws of the
State of Delaware with an organization identification number of 34116155 and we
will not reincorporate under the laws of any other jurisdiction; (b) we are the
lawful owner of the Collateral and have the sole right to grant a security
interest therein and will defend the Collateral against all claims and demands
of all persons and entities; (c) we will keep the Collateral free and clear of
all attachments, levies, taxes, liens, security interests and encumbrances of
every kind and nature (other than Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation); (d) we will at our own cost and expense
keep the Collateral in good state of repair and will not waste or destroy the
same or any part thereof; (e) we will not without your prior written consent,
sell, exchange, lease or otherwise dispose of the Collateral or any of our
rights therein or permit any lien or security interest to attach to same, except
that created by this Agreement, Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation; (f) we will insure the Collateral in your
name against loss or damage by fire, theft, burglary, pilferage, loss in transit
and such other hazards as you shall specify in amounts and under policies by
insurers acceptable to you and all premiums thereon shall be paid by us and the
policies delivered to you. If we fail to do so, you may procure such insurance
and the cost thereof shall constitute Obligations; (g) we will at all times
allow you or your representatives free access to and the right of inspection of
the Collateral; and (h) we hereby indemnify and save you harmless from all loss,
costs, damage, liability and/or expense, including reasonable attorneys' fees,
that you may sustain or incur to enforce payment, performance or fulfillment of
any of the Obligations and/or in the enforcement of this Agreement, the Note
and/or the other Ancillary Agreements or in the prosecution or defense of any
action or proceeding either against you or us concerning any matter growing out
of or in connection with this Agreement, the Note, the other Ancillary
Agreements and/or any of the Obligations and/or any of the Collateral.
"Permitted Liens" shall mean (a) liens of carriers, warehousemen, artisans,
bailees, mechanics and materialmen incurred in the ordinary course of business
securing sums not overdue; (b) liens incurred in the ordinary course of business
in connection with worker's compensation, unemployment insurance or other forms
of governmental insurance or benefits, relating to employees, securing sums (i)
not overdue or (ii) being diligently contested in good faith provided that
adequate reserves with respect thereto are maintained on our books in conformity
with generally accepted accounting principles, (c) liens for taxes (i) not yet
due or (ii) being diligently contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of the company in conformity with generally accepted accounting principles;
provided, that, the lien shall have no effect on the priority of your liens or
the value of the assets in which you have a Lien, (e) zoning restrictions,
easements, licenses, or other restrictions on the use of real property or other
minor irregularities in title thereto, so long as the same do not materially
impair the use, value or marketability of such real estate and (f) the liens set
forth in Schedule A attached hereto.
4. Upon the occurrence and during the continuance of any Event of
Default, you may declare all Obligations immediately due and payable and you
shall have the remedies of a secured party provided in the Uniform Commercial
Code as in effect in the State of New York, this Agreement and other applicable
law. Upon the occurrence and during the continuance of any Event of Default, you
will have the right, at all times, to take possession of the Collateral and to
maintain such possession on our premises or to remove the Collateral or any part
thereof to such other premises as you may desire. Upon the occurrence and during
the continuance of any Event of Default, and upon your request, we shall
assemble the Collateral and make it available to you at a place reasonably
designated by you. If any notification of intended disposition of any Collateral
is required by law, such notification, if mailed, shall be deemed properly and
reasonably given if mailed at least ten days before such disposition, postage
prepaid,
addressed to us either at our address shown herein or at any address appearing
on your records for us. Any proceeds of any disposition of any of the Collateral
shall be applied by you to the payment of all expenses in connection with the
sale of the Collateral, including reasonable attorneys' fees and other legal
expenses and disbursements and the reasonable expense of retaking, holding,
preparing for sale, selling, and the like, and any balance of such proceeds may
be applied by you toward the payment of the Obligations in such order of
application as you may elect, and we shall be liable for any deficiency.
5. If we default in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on our part to
be performed or fulfilled under or pursuant to this Agreement, you may, at your
option without waiving your right to enforce this Agreement according to its
terms, immediately or at any time thereafter and without notice to us, perform
or fulfill the same or cause the performance or fulfillment of the same for our
account and at our sole cost and expense, and the cost and expense thereof
(including reasonable attorneys' fees) shall be added to the Obligations and
shall be payable on demand with interest thereon at the Default Rate.
6. We appoint you, any of your officers, employees or any other
person or entity whom you may designate as our attorney, with power to execute
such documents in our behalf and to supply any omitted information and correct
patent errors in any documents executed by us or on our behalf and to do all
other things you deem necessary to carry out this Agreement. We hereby ratify
and approve all acts of the attorney and neither you nor the attorney will be
liable for any acts of commission or omission, nor for any error of judgment or
mistake of fact or law. This power being coupled with an interest, is
irrevocable so long as any Obligations remains unpaid.
7. No delay or failure on your part in exercising any right,
privilege or option hereunder shall operate as a waiver of such or of any other
right, privilege, remedy or option, and no waiver whatever shall be valid unless
in writing, signed by you and then only to the extent therein set forth, and no
waiver by you of any default shall operate as a waiver of any other default or
of the same default on a future occasion. Your books and records containing
entries with respect to the Obligations shall be admissible in evidence in any
action or proceeding, shall be binding upon us for the purpose of establishing
the items therein set forth and shall constitute prima facie proof thereof
absent manifest error. You shall have the right to enforce any one or more of
the remedies available to you, successively, alternately or concurrently. We
authorize you to file one or more financing or continuation statements and
amendments thereto relating to the Collateral. We shall execute all such other
documents and/or instruments as may be required or deemed necessary by you for
purposes of affecting or continuing your security interest in the Collateral.
8. This Agreement shall be governed by and construed in
accordance with the substantive laws (other than conflict laws) of the State of
New York. The parties hereto hereby (i) consent to the personal jurisdiction of
the state and federal courts located in the County of New York, State of New
York in connection with any controversy related to this Agreement; (ii) waive
any argument that venue in any such forum is not convenient, (iii) agree that
any litigation initiated by us or you in connection with this Agreement shall be
venued in the United States District Court of the Southern District of New York
and, to the extent such venue cannot be obtained, in any court having situs
within the County of New York, State of New York; and (iv) agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. WE WAIVE PERSONAL SERVICE OR PROCESS AND CONSENT THAT SERVICE
OF PROCESS UPON US MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO US AT OUR ADDRESS SET FORTH BENEATH OUR SIGNATURE HEREIN,
AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE
SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT, ANY OF THE
OBLIGATIONS OR ANY OF THE COLLATERAL.
9. All of the rights, remedies, options, privileges and elections
given to you hereunder shall inure to the benefit of your successors and
assigns. The term "you" as herein used shall include your company, any parent of
your company, any of your subsidiaries and any co-subsidiaries of your parent,
whether now existing or hereafter created or acquired, and all of the terms,
conditions, promises, covenants, provisions and warranties of this Agreement
shall inure to the benefit of and shall bind the representatives, successors and
assigns of each of us and them. You may, with our written consent (which shall
not be unreasonably withheld), assign this Agreement and the liens granted
hereunder; provided, however, that you may assign this Agreement and the liens
granted hereunder to North Fork Bank without our consent.
10. This Agreement shall be in writing and shall be (a) personally
delivered, (b) sent by first class United States mail, (c) sent by overnight
courier of national reputation, or (d) transmitted by telecopy, in each case
addressed or telecopied to the party to whom notice is being given at its
address or telecopier number as set forth below:
(i) if to us, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇ Traurig, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
-2-
(ii) if to you, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 10. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-3-
11. This Agreement may be executed in one or more counterparts,
each of which taken together shall constitute one and the same instrument. This
Agreement may also be executed via facsimile, which shall be deemed an original.
Very truly yours,
IXL ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
Dated as of: March 18, 2002
ACKNOWLEDGED:
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 14th day of March, 2002, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is
the Asst. Treasurer of iXL Enterprises, Inc., the corporation described in and
which executed the above instrument; and that he signed his name thereto by
order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 0ICA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
-4-
SCHEDULE A
Tax lien filed by the State of Georgia and ▇▇▇▇▇▇ County in ▇▇▇▇▇▇ County,
Georgia on November 14, 2001 in the amount of $202.25.
-5-
SECURITY AGREEMENT
To: Inmark Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
1. This Security Agreement (this "Agreement") is executed in
connection with (i) that certain Promissory Note dated as of the date hereof
made by Scient, Inc. in favor of you (as amended, modified, restated or
supplemented from time to time, the "Note") and (ii) that certain Guaranty dated
as of the date hereof made by us in favor of you. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Note.
2. To secure the payment of all Obligations, we hereby grant to
you a continuing security interest in all of our assets now owned or at any time
hereafter acquired by us, or in which we now have or at any time in the future
may acquire any right, title or interest, including, without limitation, all of
our accounts, inventory, equipment, goods, documents, instruments (including,
without limitation, promissory notes), contract rights, general intangibles
(including, without limitation, payment intangibles), chattel paper, supporting
obligations, investment property, deposit accounts, letter-of-credit rights,
trademarks and tradestyles in which we now have or hereafter may acquire any
right, title or interest, all proceeds and products thereof (including, without
limitation, proceeds of insurance) and all additions, accessions and
substitutions thereto or therefor (all of the foregoing, collectively, the
"Collateral").
3. We hereby warrant and covenant to you that: (a) we are a
company validly existing, in good standing and formed under the laws of the
State of Delaware with an organization identification number of 2673257 and we
will not reincorporate under the laws of any other jurisdiction; (b) we are the
lawful owner of the Collateral and have the sole right to grant a security
interest therein and will defend the Collateral against all claims and demands
of all persons and entities; (c) we will keep the Collateral free and clear of
all attachments, levies, taxes, liens, security interests and encumbrances of
every kind and nature (other than Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation); (d) we will at our own cost and expense
keep the Collateral in good state of repair and will not waste or destroy the
same or any part thereof; (e) we will not without your prior written consent,
sell, exchange, lease or otherwise dispose of the Collateral or any of our
rights therein or permit any lien or security interest to attach to same, except
that created by this Agreement, Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation; (f) we will insure the Collateral in your
name against loss or damage by fire, theft, burglary, pilferage, loss in transit
and such other hazards as you shall specify in amounts and under policies by
insurers acceptable to you and all premiums thereon shall be paid by us and the
policies delivered to you. If we fail to do so, you may procure such insurance
and the cost thereof shall constitute Obligations; (g) we will at all times
allow you or your representatives free access to and the right of inspection of
the Collateral; and (h) we hereby indemnify and save you harmless from all loss,
costs, damage, liability and/or expense, including reasonable attorneys' fees,
that you may sustain or incur to enforce payment, performance or fulfillment of
any of the Obligations and/or in the enforcement of this Agreement, the Note
and/or the other Ancillary Agreements or in the prosecution or defense of any
action or proceeding either against you or us concerning any matter growing out
of or in connection with this Agreement, the Note, the other Ancillary
Agreements and/or any of the Obligations and/or any of the Collateral.
"Permitted Liens" shall mean (a) liens of carriers, warehousemen, artisans,
bailees, mechanics and materialmen incurred in the ordinary course of business
securing sums not overdue; (b) liens incurred in the ordinary course of business
in connection with worker's compensation, unemployment insurance or other forms
of governmental insurance or benefits, relating to employees, securing sums (i)
not overdue or (ii) being diligently contested in good faith provided that
adequate reserves with respect thereto are maintained on our books in conformity
with generally accepted accounting principles, (c) liens for taxes (i) not yet
due or (ii) being diligently contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of the company in conformity with generally accepted accounting principles;
provided, that, the lien shall have no effect on the priority of your liens or
the value of the assets in which you have a Lien, (e) zoning restrictions,
easements, licenses, or other restrictions on the use of real property or other
minor irregularities in title thereto, so long as the same do not materially
impair the use, value or marketability of such real estate and (f) the liens set
forth in Schedule A attached hereto.
4. Upon the occurrence and during the continuance of any Event
of Default, you may declare all Obligations immediately due and payable and you
shall have the remedies of a secured party provided in the Uniform Commercial
Code as in effect in the State of New York, this Agreement and other applicable
law. Upon the occurrence and during the continuance of any Event of Default, you
will have the right, at all times, to take possession of the Collateral and to
maintain such possession on our premises or to remove the Collateral or any part
thereof to such other premises as you may desire. Upon the occurrence and during
the continuance of any Event of Default, and upon your request, we shall
assemble the Collateral and make it available to you at a place reasonably
designated by you. If any notification of intended disposition of any Collateral
is required by law, such notification, if mailed, shall be deemed properly and
reasonably given if mailed at least ten days before such disposition, postage
prepaid,
addressed to us either at our address shown herein or at any address appearing
on your records for us. Any proceeds of any disposition of any of the Collateral
shall be applied by you to the payment of all expenses in connection with the
sale of the Collateral, including reasonable attorneys' fees and other legal
expenses and disbursements and the reasonable expense of retaking, holding,
preparing for sale, selling, and the like, and any balance of such proceeds may
be applied by you toward the payment of the Obligations in such order of
application as you may elect, and we shall be liable for any deficiency.
5. If we default in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on our part to
be performed or fulfilled under or pursuant to this Agreement, you may, at your
option without waiving your right to enforce this Agreement according to its
terms, immediately or at any time thereafter and without notice to us, perform
or fulfill the same or cause the performance or fulfillment of the same for our
account and at our sole cost and expense, and the cost and expense thereof
(including reasonable attorneys' fees) shall be added to the Obligations and
shall be payable on demand with interest thereon at the Default Rate.
6. We appoint you, any of your officers, employees or any other
person or entity whom you may designate as our attorney, with power to execute
such documents in our behalf and to supply any omitted information and correct
patent errors in any documents executed by us or on our behalf and to do all
other things you deem necessary to carry out this Agreement. We hereby ratify
and approve all acts of the attorney and neither you nor the attorney will be
liable for any acts of commission or omission, nor for any error of judgment or
mistake of fact or law. This power being coupled with an interest, is
irrevocable so long as any Obligations remains unpaid.
7. No delay or failure on your part in exercising any right,
privilege or option hereunder shall operate as a waiver of such or of any other
right, privilege, remedy or option, and no waiver whatever shall be valid unless
in writing, signed by you and then only to the extent therein set forth, and no
waiver by you of any default shall operate as a waiver of any other default or
of the same default on a future occasion. Your books and records containing
entries with respect to the Obligations shall be admissible in evidence in any
action or proceeding, shall be binding upon us for the purpose of establishing
the items therein set forth and shall constitute prima facie proof thereof
absent manifest error. You shall have the right to enforce any one or more of
the remedies available to you, successively, alternately or concurrently. We
authorize you to file one or more financing or continuation statements and
amendments thereto relating to the Collateral. We shall execute all such other
documents and/or instruments as may be required or deemed necessary by you for
purposes of affecting or continuing your security interest in the Collateral.
8. This Agreement shall be governed by and construed in
accordance with the substantive laws (other than conflict laws) of the State of
New York. The parties hereto hereby (i) consent to the personal jurisdiction of
the state and federal courts located in the County of New York, State of New
York in connection with any controversy related to this Agreement; (ii) waive
any argument that venue in any such forum is not convenient, (iii) agree that
any litigation initiated by us or you in connection with this Agreement shall be
venued in the United States District Court of the Southern District of New York
and, to the extent such venue cannot be obtained, in any court having situs
within the County of New York, State of New York; and (iv) agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. WE WAIVE PERSONAL SERVICE OR PROCESS AND CONSENT THAT SERVICE
OF PROCESS UPON US MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO US AT OUR ADDRESS SET FORTH BENEATH OUR SIGNATURE HEREIN,
AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE
SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT, ANY OF THE
OBLIGATIONS OR ANY OF THE COLLATERAL.
9. All of the rights, remedies, options, privileges and elections
given to you hereunder shall inure to the benefit of your successors and
assigns. The term "you" as herein used shall include your company, any parent of
your company, any of your subsidiaries and any co-subsidiaries of your parent,
whether now existing or hereafter created or acquired, and all of the terms,
conditions, promises, covenants, provisions and warranties of this Agreement
shall inure to the benefit of and shall bind the representatives, successors and
assigns of each of us and them. You may, with our written consent (which shall
not be unreasonably withheld), assign this Agreement and the liens granted
hereunder; provided, however, that you may assign this Agreement and the liens
granted hereunder to North Fork Bank without our consent.
10. This Agreement shall be in writing and shall be (a) personally
delivered, (b) sent by first class United States mail, (c) sent by overnight
courier of national reputation, or (d) transmitted by telecopy, in each case
addressed or telecopied to the party to whom notice is being given at its
address or telecopier number as set forth below:
(i) if to us, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇ Traurig, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
-2-
(ii) if to you, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 10. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-3-
11. This Agreement may be executed in one or more counterparts,
each of which taken together shall constitute one and the same instrument. This
Agreement may also be executed via facsimile, which shall be deemed an original.
Very truly yours,
IXL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
Dated as of: March 18, 2002
ACKNOWLEDGED:
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 14th day of March, 2002, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is
the Asst. Treasurer of iXL, Inc., the corporation described in and which
executed the above instrument; and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 0ICA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
-4-
SCHEDULE A
1. Tax lien filed by the State of Georgia and ▇▇▇▇▇▇ County in ▇▇▇▇▇▇
County, Georgia on November 14, 2001 in the amount of $61,938.74.
2. Tax lien filed by the City of Atlanta, Georgia in ▇▇▇▇▇▇ County,
Georgia on November 14, 2001 in the amount of $136,775.63.
-5-
SECURITY AGREEMENT
To: Inmark Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
1. This Security Agreement (this "Agreement") is executed in
connection with (i) that certain Promissory Note dated as of the date hereof
made by Scient, Inc. in favor of you (as amended, modified, restated or
supplemented from time to time, the "Note") and (ii) that certain Guaranty dated
as of the date hereof made by us in favor of you. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Note.
2. To secure the payment of all Obligations, we hereby grant to
you a continuing security interest in all of our assets now owned or at any time
hereafter acquired by us, or in which we now have or at any time in the future
may acquire any right, title or interest, including, without limitation, all of
our accounts, inventory, equipment, goods, documents, instruments (including,
without limitation, promissory notes), contract rights, general intangibles
(including, without limitation, payment intangibles), chattel paper, supporting
obligations, investment property, deposit accounts, letter-of-credit rights,
trademarks and tradestyles in which we now have or hereafter may acquire any
right, title or interest, all proceeds and products thereof (including, without
limitation, proceeds of insurance) and all additions, accessions and
substitutions thereto or therefor (all of the foregoing, collectively, the
"Collateral").
3. We hereby warrant and covenant to you that: (a) we are a
company validly existing, in good standing and formed under the laws of the
State of Delaware with an organization identification number of 3001397 and we
will not reincorporate under the laws of any other jurisdiction; (b) we are the
lawful owner of the Collateral and have the sole right to grant a security
interest therein and will defend the Collateral against all claims and demands
of all persons and entities; (c) we will keep the Collateral free and clear of
all attachments, levies, taxes, liens, security interests and encumbrances of
every kind and nature (other than Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation); (d) we will at our own cost and expense
keep the Collateral in good state of repair and will not waste or destroy the
same or any part thereof; (e) we will not without your prior written consent,
sell, exchange, lease or otherwise dispose of the Collateral or any of our
rights therein or permit any lien or security interest to attach to same, except
that created by this Agreement, Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation; (f) we will insure the Collateral in your
name against loss or damage by fire, theft, burglary, pilferage, loss in transit
and such other hazards as you shall specify in amounts and under policies by
insurers acceptable to you and all premiums thereon shall be paid by us and the
policies delivered to you. If we fail to do so, you may procure such insurance
and the cost thereof shall constitute Obligations; (g) we will at all times
allow you or your representatives free access to and the right of inspection of
the Collateral; and (h) we hereby indemnify and save you harmless from all loss,
costs, damage, liability and/or expense, including reasonable attorneys' fees,
that you may sustain or incur to enforce payment, performance or fulfillment of
any of the Obligations and/or in the enforcement of this Agreement, the Note
and/or the other Ancillary Agreements or in the prosecution or defense of any
action or proceeding either against you or us concerning any matter growing out
of or in connection with this Agreement, the Note, the other Ancillary
Agreements and/or any of the Obligations and/or any of the Collateral.
"Permitted Liens" shall mean (a) liens of carriers, warehousemen, artisans,
bailees, mechanics and materialmen incurred in the ordinary course of business
securing sums not overdue; (b) liens incurred in the ordinary course of business
in connection with worker's compensation, unemployment insurance or other forms
of governmental insurance or benefits, relating to employees, securing sums (i)
not overdue or (ii) being diligently contested in good faith provided that
adequate reserves with respect thereto are maintained on our books in conformity
with generally accepted accounting principles, (c) liens for taxes (i) not yet
due or (ii) being diligently contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of the company in conformity with generally accepted accounting principles;
provided, that, the lien shall have no effect on the priority of your liens or
the value of the assets in which you have a Lien and (e) zoning restrictions,
easements, licenses, or other restrictions on the use of real property or other
minor irregularities in title thereto, so long as the same do not materially
impair the use, value or marketability of such real estate.
4. Upon the occurrence and during the continuance of any Event of
Default, you may declare all Obligations immediately due and payable and you
shall have the remedies of a secured party provided in the Uniform Commercial
Code as in effect in the State of New York, this Agreement and other applicable
law. Upon the occurrence and during the continuance of any Event of Default, you
will have the right, at all times, to take possession of the Collateral and to
maintain such possession on our premises or to remove the Collateral or any part
thereof to such other premises as you may desire. Upon the occurrence and during
the continuance of any Event of Default, and upon your request, we shall
assemble the Collateral and make it available to you at a place reasonably
designated by you. If any notification of intended disposition of any Collateral
is required by law, such notification, if mailed, shall be deemed properly and
reasonably given if mailed at least ten days before such disposition, postage
prepaid, addressed to us either at our address shown herein or at any address
appearing on your records for us. Any proceeds of any
disposition of any of the Collateral shall be applied by you to the payment of
all expenses in connection with the sale of the Collateral, including reasonable
attorneys' fees and other legal expenses and disbursements and the reasonable
expense of retaking, holding, preparing for sale, selling, and the like, and any
balance of such proceeds may be applied by you toward the payment of the
Obligations in such order of application as you may elect, and we shall be
liable for any deficiency.
5. If we default in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on our part to
be performed or fulfilled under or pursuant to this Agreement, you may, at your
option without waiving your right to enforce this Agreement according to its
terms, immediately or at any time thereafter and without notice to us, perform
or fulfill the same or cause the performance or fulfillment of the same for our
account and at our sole cost and expense, and the cost and expense thereof
(including reasonable attorneys' fees) shall be added to the Obligations and
shall be payable on demand with interest thereon at the Default Rate.
6. We appoint you, any of your officers, employees or any other
person or entity whom you may designate as our attorney, with power to execute
such documents in our behalf and to supply any omitted information and correct
patent errors in any documents executed by us or on our behalf and to do all
other things you deem necessary to carry out this Agreement. We hereby ratify
and approve all acts of the attorney and neither you nor the attorney will be
liable for any acts of commission or omission, nor for any error of judgment or
mistake of fact or law. This power being coupled with an interest, is
irrevocable so long as any Obligations remains unpaid.
7. No delay or failure on your part in exercising any right,
privilege or option hereunder shall operate as a waiver of such or of any other
right, privilege, remedy or option, and no waiver whatever shall be valid unless
in writing, signed by you and then only to the extent therein set forth, and no
waiver by you of any default shall operate as a waiver of any other default or
of the same default on a future occasion. Your books and records containing
entries with respect to the Obligations shall be admissible in evidence in any
action or proceeding, shall be binding upon us for the purpose of establishing
the items therein set forth and shall constitute prima facie proof thereof
absent manifest error. You shall have the right to enforce any one or more of
the remedies available to you, successively, alternately or concurrently. We
authorize you to file one or more financing or continuation statements and
amendments thereto relating to the Collateral. We shall execute all such other
documents and/or instruments as may be required or deemed necessary by you for
purposes of affecting or continuing your security interest in the Collateral.
8. This Agreement shall be governed by and construed in
accordance with the substantive laws (other than conflict laws) of the State of
New York. The parties hereto hereby (i) consent to the personal jurisdiction of
the state and federal courts located in the County of New York, State of New
York in connection with any controversy related to this Agreement; (ii) waive
any argument that venue in any such forum is not convenient, (iii) agree that
any litigation initiated by us or you in connection with this Agreement shall be
venued in the United States District Court of the Southern District of New York
and, to the extent such venue cannot be obtained, in any court having situs
within the County of New York, State of New York; and (iv) agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. WE WAIVE PERSONAL SERVICE OR PROCESS AND CONSENT THAT SERVICE
OF PROCESS UPON US MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO US AT OUR ADDRESS SET FORTH BENEATH OUR SIGNATURE HEREIN,
AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE
SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT, ANY OF THE
OBLIGATIONS OR ANY OF THE COLLATERAL.
9. All of the rights, remedies, options, privileges and elections
given to you hereunder shall inure to the benefit of your successors and
assigns. The term "you" as herein used shall include your company, any parent of
your company, any of your subsidiaries and any co-subsidiaries of your parent,
whether now existing or hereafter created or acquired, and all of the terms,
conditions, promises, covenants, provisions and warranties of this Agreement
shall inure to the benefit of and shall bind the representatives, successors and
assigns of each of us and them. You may, with our written consent (which shall
not be unreasonably withheld), assign this Agreement and the liens granted
hereunder; provided, however, that you may assign this Agreement and the liens
granted hereunder to North Fork Bank without our consent.
10. This Agreement shall be in writing and shall be (a) personally
delivered, (b) sent by first class United States mail, (c) sent by overnight
courier of national reputation, or (d) transmitted by telecopy, in each case
addressed or telecopied to the party to whom notice is being given at its
address or telecopier number as set forth below:
(i) if to us, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇ Traurig, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
-2-
(ii) if to you, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 10. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-3-
11. This Agreement may be executed in one or more counterparts,
each of which taken together shall constitute one and the same instrument. This
Agreement may also be executed via facsimile, which shall be deemed an original.
Very truly yours,
SCIENT ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
Dated as of: March 18, 2002
ACKNOWLEDGED:
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 14TH day of March, 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that
he is the Asst. Treasurer of Scient Enterprises, Inc., the corporation described
in and which executed the above instrument; and that he signed his name thereto
by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 0ICA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
-4-
SECURITY AGREEMENT
To: Inmark Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
1. This Security Agreement (this "Agreement") is executed in
connection with that certain Promissory Note dated as of the date hereof made by
Scient, Inc. in favor of you (as amended, modified, restated or supplemented
from time to time, the "Note") Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Note.
2. To secure the payment of all Obligations, we hereby grant to
you a continuing security interest in all of our assets now owned or at any time
hereafter acquired by us, or in which we now have or at any time in the future
may acquire any right, title or interest, including, without limitation, all of
our accounts, inventory, equipment, goods, documents, instruments (including,
without limitation, promissory notes), contract rights, general intangibles
(including, without limitation, payment intangibles), chattel paper, supporting
obligations, investment property, deposit accounts, letter-of-credit rights,
trademarks and tradestyles in which we now have or hereafter may acquire any
right, title or interest, all proceeds and products thereof (including, without
limitation, proceeds of insurance) and all additions, accessions and
substitutions thereto or therefor (all of the foregoing, collectively, the
"Collateral").
3. We hereby warrant and covenant to you that: (a) we are a
company validly existing, in good standing and formed under the laws of the
State of Delaware with an organization identification number of 3419676 and we
will not reincorporate under the laws of any other jurisdiction; (b) we are the
lawful owner of the Collateral and have the sole right to grant a security
interest therein and will defend the Collateral against all claims and demands
of all persons and entities; (c) we will keep the Collateral free and clear of
all attachments, levies, taxes, liens, security interests and encumbrances of
every kind and nature (other than Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation); (d) we will at our own cost and expense
keep the Collateral in good state of repair and will not waste or destroy the
same or any part thereof; (e) we will not without your prior written consent,
sell, exchange, lease or otherwise dispose of the Collateral or any of our
rights therein or permit any lien or security interest to attach to same, except
that created by this Agreement, Permitted Liens (as defined herein) and the
liens of Foothill Capital Corporation; (f) we will insure the Collateral in your
name against loss or damage by fire, theft, burglary, pilferage, loss in transit
and such other hazards as you shall specify in amounts and under policies by
insurers acceptable to you and all premiums thereon shall be paid by us and the
policies delivered to you. If we fail to do so, you may procure such insurance
and the cost thereof shall constitute Obligations; (g) we will at all times
allow you or your representatives free access to and the right of inspection of
the Collateral; and (h) we hereby indemnify and save you harmless from all loss,
costs, damage, liability and/or expense, including reasonable attorneys' fees,
that you may sustain or incur to enforce payment, performance or fulfillment of
any of the Obligations and/or in the enforcement of this Agreement, the Note
and/or the other Ancillary Agreements or in the prosecution or defense of any
action or proceeding either against you or us concerning any matter growing out
of or in connection with this Agreement, the Note, the other Ancillary
Agreements and/or any of the Obligations and/or any of the Collateral.
"Permitted Liens" shall mean (a) liens of carriers, warehousemen, artisans,
bailees, mechanics and materialmen incurred in the ordinary course of business
securing sums not overdue; (b) liens incurred in the ordinary course of business
in connection with worker's compensation, unemployment insurance or other forms
of governmental insurance or benefits, relating to employees, securing sums (i)
not overdue or (ii) being diligently contested in good faith provided that
adequate reserves with respect thereto are maintained on our books in conformity
with generally accepted accounting principles, (c) liens for taxes (i) not yet
due or (ii) being diligently contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of the company in conformity with generally accepted accounting principles;
provided, that, the lien shall have no effect on the priority of your liens or
the value of the assets in which you have a Lien and (e) zoning restrictions,
easements, licenses, or other restrictions on the use of real property or other
minor irregularities in title thereto, so long as the same do not materially
impair the use, value or marketability of such real estate.
4. Upon the occurrence and during the continuance of any Event of
Default, you may declare all Obligations immediately due and payable and you
shall have the remedies of a secured party provided in the Uniform Commercial
Code as in effect in the State of New York, this Agreement and other applicable
law. Upon the occurrence and during the continuance of any Event of Default, you
will have the right, at all times, to take possession of the Collateral and to
maintain such possession on our premises or to remove the Collateral or any part
thereof to such other premises as you may desire. Upon the occurrence and during
the continuance of any Event of Default, and upon your request, we shall
assemble the Collateral and make it available to you at a place reasonably
designated by you. If any notification of intended disposition of any Collateral
is required by law, such notification, if mailed, shall be deemed properly and
reasonably given if mailed at least ten days before such disposition, postage
prepaid, addressed to us either at our address shown herein or at any address
appearing on your records for us. Any proceeds of any disposition of any of the
Collateral shall be applied by you to the payment of all expenses in connection
with the sale of the Collateral,
including reasonable attorneys' fees and other legal expenses and disbursements
and the reasonable expense of retaking, holding, preparing for sale, selling,
and the like, and any balance of such proceeds may be applied by you toward the
payment of the Obligations in such order of application as you may elect, and we
shall be liable for any deficiency.
5. If we default in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on our part to
be performed or fulfilled under or pursuant to this Agreement, you may, at your
option without waiving your right to enforce this Agreement according to its
terms, immediately or at any time thereafter and without notice to us, perform
or fulfill the same or cause the performance or fulfillment of the same for our
account and at our sole cost and expense, and the cost and expense thereof
(including reasonable attorneys' fees) shall be added to the Obligations and
shall be payable on demand with interest thereon at the Default Rate.
6. We appoint you, any of your officers, employees or any other
person or entity whom you may designate as our attorney, with power to execute
such documents in our behalf and to supply any omitted information and correct
patent errors in any documents executed by us or on our behalf and to do all
other things you deem necessary to carry out this Agreement. We hereby ratify
and approve all acts of the attorney and neither you nor the attorney will be
liable for any acts of commission or omission, nor for any error of judgment or
mistake of fact or law. This power being coupled with an interest, is
irrevocable so long as any Obligations remains unpaid.
7. No delay or failure on your part in exercising any right,
privilege or option hereunder shall operate as a waiver of such or of any other
right, privilege, remedy or option, and no waiver whatever shall be valid unless
in writing, signed by you and then only to the extent therein set forth, and no
waiver by you of any default shall operate as a waiver of any other default or
of the same default on a future occasion. Your books and records containing
entries with respect to the Obligations shall be admissible in evidence in any
action or proceeding, shall be binding upon us for the purpose of establishing
the items therein set forth and shall constitute prima facie proof thereof
absent manifest error. You shall have the right to enforce any one or more of
the remedies available to you, successively, alternately or concurrently. We
authorize you to file one or more financing or continuation statements and
amendments thereto relating to the Collateral. We shall execute all such other
documents and/or instruments as may be required or deemed necessary by you for
purposes of affecting or continuing your security interest in the Collateral.
8. This Agreement shall be governed by and construed in
accordance with the substantive laws (other than conflict laws) of the State of
New York. The parties hereto hereby (i) consent to the personal jurisdiction of
the state and federal courts located in the County of New York, State of New
York in connection with any controversy related to this Agreement; (ii) waive
any argument that venue in any such forum is not convenient, (iii) agree that
any litigation initiated by us or you in connection with this Agreement shall be
venued in the United States District Court of the Southern District of New York
and, to the extent such venue cannot be obtained, in any court having situs
within the County of New York, State of New York; and (iv) agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. WE WAIVE PERSONAL SERVICE OR PROCESS AND CONSENT THAT SERVICE
OF PROCESS UPON US MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO US AT OUR ADDRESS SET FORTH BENEATH OUR SIGNATURE HEREIN,
AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE
SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS AGREEMENT, ANY OF THE
OBLIGATIONS OR ANY OF THE COLLATERAL.
9. All of the rights, remedies, options, privileges and elections
given to you hereunder shall inure to the benefit of your successors and
assigns. The term "you" as herein used shall include your company, any parent of
your company, any of your subsidiaries and any co-subsidiaries of your parent,
whether now existing or hereafter created or acquired, and all of the terms,
conditions, promises, covenants, provisions and warranties of this Agreement
shall inure to the benefit of and shall bind the representatives, successors and
assigns of each of us and them. You may, with our written consent (which shall
not be unreasonably withheld), assign this Agreement and the liens granted
hereunder; provided, however, that you may assign this Agreement and the liens
granted hereunder to North Fork Bank without our consent.
10. This Agreement shall be in writing and shall be (a) personally
delivered, (b) sent by first class United States mail, (c) sent by overnight
courier of national reputation, or (d) transmitted by telecopy, in each case
addressed or telecopied to the party to whom notice is being given at its
address or telecopier number as set forth below:
(i) if to us, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇ Traurig, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
-2-
(ii) if to you, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 10. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-3-
11. This Agreement may be executed in one or more counterparts,
each of which taken together shall constitute one and the same instrument. This
Agreement may also be executed via facsimile, which shall be deemed an original.
Very truly yours,
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
Dated as of: March 18, 2002
ACKNOWLEDGED:
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 14TH day of March, 2002, before me personally came
▇▇▇▇▇▇ ▇. ▇▇▇▇ to me known, who, being by me duly sworn did depose and say that
he is the Chairman of Scient, Inc., the corporation described in and which
executed the above instrument; and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 0ICA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
-4-
GUARANTY
(Corporate)
New York, New York March 18, 2002
This Guaranty is executed in connection with that certain Promissory
Note dated as of the date hereof made by Scient, Inc. ("Borrower") in favor of
Inmark Capital Corp. ("Inmark") (as amended, modified, restated or supplemented
from time to time, the "Note"). Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Note.
FOR VALUE RECEIVED, and in consideration of one or more Loans made from
time to time and at any time to or for the account of Borrower by Inmark
pursuant to the Note, and for other good and valuable consideration, and to
induce Inmark to make such Loans, each of the undersigned guarantors (each a
"Guarantor" and jointly and severally, "Guarantors"), jointly and severally,
unconditionally guaranties to Inmark, its successors, endorsees and assigns, the
prompt payment when due (whether by acceleration or otherwise) of all present
and future obligations and liabilities of any and all kinds of Borrower to
Inmark and of all instruments of any nature evidencing or relating to any such
obligations and liabilities upon which Borrower or one or more parties and
Borrower is or may become liable to Inmark, whether incurred by Borrower as
maker, endorser, drawer, acceptor, guarantor, accommodation party or otherwise,
and whether due or to become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired by Inmark, whether arising
under, out of, or in connection with the Note or any other Ancillary Agreement,
or otherwise (all of which are herein collectively referred to as the
"Obligations"), and irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing any of the
Obligations or of any collateral therefor or of the existence or extent of such
collateral, and irrespective of the allowability, allowance or disallowance of
any or all of the Obligations in any case commenced by or against Borrower under
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, including, without limitation, obligations or
indebtedness of Borrower for post-petition interest, fees, costs and charges
that would have accrued or been added to the Obligations but for the
commencement of such case. In furtherance of the foregoing, each Guarantor
hereby agrees as follows:
1. No Impairment. Inmark may at any time and from time to time,
either before or after the maturity thereof, without notice to or further
consent of any Guarantor, extend the time of payment of, exchange or surrender
any collateral for, renew or extend any of the Obligations or increase or
decrease the interest rate thereon, and may also make any agreement with
Borrower or with any other party to or person liable on any of the Obligations,
or interested therein, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between Inmark and Borrower or any such
other party or person, or make any election of rights Inmark may deem desirable
under the United States Bankruptcy Code, as amended, or any other federal or
state bankruptcy, reorganization, moratorium or insolvency law relating to or
affecting the enforcement of creditors' rights generally (any of the foregoing,
an "Insolvency Law") without in any way impairing or affecting this Guaranty.
This instrument shall be effective regardless of the subsequent incorporation,
merger or consolidation of Borrower, or any change in the
composition, nature, personnel or location of Borrower and shall extend to any
successor entity to Borrower, including a debtor in possession or the like under
any Insolvency Law.
2. Guaranty Absolute. Each Guarantor guarantees that the
Obligations will be paid strictly in accordance with the terms of the Note
and/or any other Ancillary Agreement, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Borrower with respect thereto. Each Guarantor acknowledges that
(i) no oral representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made by Inmark to
induce such Guarantor to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions of the Note.
The liability of each Guarantor under this Guaranty shall be absolute and
unconditional, in accordance with its terms, and shall remain in full force and
effect without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence, renewal, extension,
amendment or modification of or addition, consent or supplement to or deletion
from or any other action or inaction under or in respect of the Note or any
other Ancillary Agreement or any assignment or transfer of any thereof, (b) any
lack of validity or enforceability of the Note or any other Ancillary Agreement
or any assignment or transfer of any thereof, (c) any furnishing of any
additional security to Inmark or its assignees or any acceptance thereof or any
release of any security by Inmark or its assignees, (d) any limitation on any
party's liability or obligation under the Note or any other Ancillary Agreement
or any assignment or transfer of any thereof or any invalidity or
unenforceability, in whole or in part, of any such document, instrument or
agreement or any term thereof, (e) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to Borrower, or any action taken with respect to this Guaranty by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Guarantor shall have notice or knowledge of any of the foregoing, (f) any
exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security,
for all or any of the Obligations or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, such Guarantor.
Any amounts due from any Guarantor to Inmark shall bear interest until such
amounts are paid in full at the Default Rate. Obligations include post-petition
interest whether or not allowed or allowable.
3. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. Inmark shall be under no obligation to institute suit, exercise
rights or remedies or take any other action against Borrower or any other person
liable with respect to any of the Obligations or resort to any collateral
security held by it to secure any of the Obligations as a condition precedent to
each Guarantor being obligated to perform as agreed herein and each Guarantor
hereby waives any and all rights which it may have by statute or otherwise which
would require Inmark to do any of the foregoing. Each Guarantor further consents
and agrees that Inmark shall be under no obligation to marshal any assets in
favor of any Guarantor, or against or in payment of any or all of the
Obligations. Each Guarantor hereby waives all suretyship defenses and any rights
to interpose any defense, counterclaim or offset of any nature and description
which such Guarantor may have or which may exist between and among Inmark,
Borrower and/or such Guarantor with respect to such Guarantor's obligations
under this Guaranty, or which Borrower may assert on the underlying debt,
including but not limited to failure of consideration, breach of warranty,
20
fraud, payment (other than cash payment in full of the Obligations), statute of
frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction,
and usury.
(b) Each Guarantor further waives to the fullest extent
allowable under the law (i) notice of the acceptance of this Guaranty, of the
making of any such loans or extensions of credit, and of all notices and demands
of any kind to which such Guarantor may be entitled, including, without
limitation, notice of adverse change in Borrower's financial condition or of any
other fact which might materially increase the risk of such Guarantor and (ii)
presentment to or demand of payment from anyone whomsoever liable upon any of
the Obligations, protest, notices of presentment, non-payment or protest and
notice of any sale of collateral security or any default of any sort.
(c) Notwithstanding any payment or payments made by any
Guarantor hereunder, or any setoff or application of funds of any Guarantor by
Inmark, each Guarantor shall not be entitled to be subrogated to any of the
rights of Inmark against Borrower or against any collateral or guarantee or
right of offset held by Inmark for the payment of the Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from
Borrower in respect of payments made by such Guarantor hereunder, until all
amounts owing to Inmark by Borrower on account of the Obligations are
indefeasibly paid in full. If, notwithstanding the foregoing, any amount shall
be paid to any Guarantor on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full and the Note and the
other Ancillary Agreements shall not have been terminated, such amount shall be
held by such Guarantor in trust for Inmark, segregated from other funds of such
Guarantor, and shall forthwith upon, and in any event within two (2) business
days of, receipt by such Guarantor, be turned over to Inmark in the exact form
received by such Guarantor (duly endorsed by such Guarantor to Inmark, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as Inmark may determine, subject to the provisions of the Note and
the other Ancillary Agreements. Any and all present and future debts and
obligations of Borrower to any of the Guarantors are hereby waived and postponed
in favor of, and subordinated to the full payment and performance of, all
present and future debts and obligations of Borrower to Inmark.
4. Representations and Warranties. Each Guarantor hereby
represents and warrants (all of which representations and warranties shall
survive until all Obligations are indefeasibly satisfied in full and the
Ancillary Agreements have been irrevocably terminated), that:
(a) Corporate Status. Such Guarantor is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has full power, authority and legal right to
own its property and assets and to transact the business in which it is
engaged.
(b) Authority and Execution. Such Guarantor has full
power, authority and legal right to execute and deliver, and to perform
its obligations under, this Guaranty and has taken all necessary
corporate and legal action to authorize the execution, delivery and
performance of this Guaranty.
30
(c) Legal, Valid and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of such Guarantor
enforceable in accordance with its terms, except as enforceability may
be limited by applicable Insolvency Law.
(d) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law applicable to
such Guarantor or any material contract, agreement or instrument to
which such Guarantor is a party or by which such Guarantor or any
property of such Guarantor is bound or result in the creation or
imposition of any mortgage, lien or other encumbrance other than to
Inmark on any of the property or assets of such Guarantor pursuant to
the provisions of any of the foregoing.
(e) Consents or Approvals. No consent that has not been
obtained of any other person or entity (including, without limitation,
any creditor of such Guarantor) and no consent, license, permit,
approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is
required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty.
(f) Litigation. No litigation, arbitration, investigation
or administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to
the best knowledge of such Guarantor, threatened (i) with respect to
this Guaranty or any of the transactions contemplated by this Guaranty
or (ii) against or affecting such Guarantor, or any of property or
assets of such Guarantor, which, if adversely determined, would have a
material adverse effect on the business, operations, assets or
condition, financial or otherwise, of such Guarantor except for the
litigation set forth in Schedule A attached hereto which if adversely
determined may result in a judgment against such Guarantor in excess of
$1,000,000.
(g) Material Adverse Change. Since December 31, 2001,
there has been no material adverse change in the assets or condition,
financial or otherwise, of such Guarantor.
(h) Financial Benefit. Such Guarantor has derived or
expects to derive a financial or other advantage from each and every
loan, advance or extension of credit made under the Loan Agreement or
other Obligation incurred by Borrower to Inmark.
The foregoing representations and warranties (other than that set forth
in paragraph (g) above) shall be deemed to have been made by each Guarantor on
the date of each borrowing by Borrower under the Note on and as of such date of
such borrowing as though made hereunder on and as of such date.
5. Acceleration. (a) If any breach of any covenant or condition
or other event of default shall occur and be continuing under any agreement made
by Borrower or any Guarantor to Inmark, or either Borrower or any Guarantor
should at any time become insolvent, or make a general assignment, or if a
proceeding in or under any Insolvency Law shall be filed or commenced by, or in
respect of, any Guarantor, or if a notice of any lien, levy, or assessment is
40
filed of record with respect to any assets of any Guarantor by the United States
of America or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon any assets of any Guarantor in Inmark's possession or
control, or otherwise, any and all Obligations shall for purposes hereof, at
Inmark's option, be deemed due and payable without notice notwithstanding that
any such Obligation is not then due and payable by Borrower.
(b) Each Guarantor will promptly notify Inmark of any
default by such Guarantor in the performance or observance of any term or
condition of any agreement to which such Guarantor is a party if the effect of
such default is to cause, or permit the holder of any obligation under such
agreement to cause, such obligation to become due prior to its stated maturity
and, if such an event occurs, Inmark shall have the right to accelerate the
Guarantors' obligations hereunder.
6. Payments from Guarantor. Inmark, in its sole and absolute
discretion, with or without notice to any Guarantor, may apply on account of the
Obligations any payment from such Guarantor, or amounts realized from any
security for the Obligations, or may deposit any and all such amounts realized
in a non-interest bearing cash collateral deposit account to be maintained as
security for the Obligations.
7. Costs. Each Guarantor shall pay on demand, all costs, fees and
expenses (including reasonable expenses for legal services of every kind)
relating or incidental to the enforcement or protection of the rights of Inmark
hereunder or under any of the Obligations.
8. No Termination. This is a continuing irrevocable guaranty and
shall remain in full force and effect and be binding upon each Guarantor, and
each Guarantor's successors and assigns, until all of the Obligations have been
indefeasibly paid in full and the Note and the other Ancillary Agreements have
been irrevocably terminated. If any of the present or future Obligations are
guarantied by persons, partnerships or corporations in addition to Guarantors,
the death, release or discharge in whole or in part or the bankruptcy, merger,
consolidation, incorporation, liquidation or dissolution of one or more of them
shall not discharge or affect the liabilities of the Guarantors under this
Guaranty.
9. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if Inmark receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Inmark, the Guarantors' obligations to Inmark shall
be reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to Inmark, which payment shall be
due on demand.
10. Books and Records. The books and records of Inmark showing the
account between Inmark and Borrower shall be admissible in evidence in any
action or proceeding, shall be binding upon each Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof absent manifest error.
50
11. No Waiver. No failure on the part of Inmark to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by Inmark of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to Inmark or allowed it by law or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by Inmark at any time and
from time to time.
12. Waiver of Jury Trial. EACH GUARANTOR DOES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO. EACH GUARANTOR DOES HEREBY
CERTIFY THAT NO REPRESENTATIVE OR AGENT OF INMARK HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT INMARK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
13. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. Each Guarantor hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in any
such forum is not convenient, (iii) agrees that any litigation initiated by
Inmark or any Guarantor in connection with this Guaranty shall be venued in the
United States District Court of the Southern District of New York and, to the
extent such venue cannot be obtained, in any court having situs within the
County of New York, State of New York; and (iv) agrees that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. EACH GUARANTOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE
OF PROCESS UPON SUCH GUARANTOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO SUCH GUARANTOR AT SUCH GUARANTOR'S ADDRESS
SET FORTH BENEATH THE SIGNATURE OF SUCH GUARANTOR HEREIN, AND SERVICE SO MADE
SHALL BE DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN
SO MAILED. EACH GUARANTOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS GUARANTY OR ANY OF THE OBLIGATIONS.
14. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
60
15. Amendments, Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by any Guarantor therefrom shall
in any event be effective unless the same shall be in writing executed by such
Guarantor and Inmark.
16. Notice. All notices, requests, demands and other
communications provided for under this Guaranty shall be in writing and shall be
(a) personally delivered, (b) sent by first class United States mail, (c) sent
by overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to any Guarantor, at the address and telecopier number
set forth beneath the signature of such Guarantor herein; and
(ii) if to Inmark, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 17. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
17. Successors. Inmark may, from time to time, without notice to
any Guarantor, sell, assign, transfer or otherwise dispose of all or any part of
the Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, Inmark may assign, or grant participations to, one
or more banks, financial institutions or other entities all or any part of any
of the Obligations. In each such event, Inmark, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Obligations shall have the right to enforce this Guaranty, by
legal action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
right. Inmark shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Inmark has not
disposed of, sold, assigned, or otherwise transferred.
18. Release. Nothing except cash payment in full of the
Obligations shall release any Guarantor from liability under this Guaranty.
19. Counterparts; Facsimile. This Guaranty may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Guaranty may
also be executed via facsimile, which shall be deemed an original.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
70
IN WITNESS WHEREOF, this Guaranty has been executed by each Guarantor
as of the day and year first above written.
IXL ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
IXL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
SCIENT ENTERPRISES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Asst. Treasurer
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
): ss.:
COUNTY OF NEW YORK )
On the 14th day of March., 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇ to me known, who being by me duly sworn, did depose and
say s/he is the Asst. Treas. of iXL Enterprises, Inc, the corporation
described in and which executed the foregoing instrument; and that s/he signed
her/his name thereto by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
): ss.:
COUNTY OF NEW YORK )
On the 14th day of March, 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇ to me known, who being by me duly sworn, did depose and
say s/he is the Asst. Treas. of iXL, Inc., the corporation described in and
which executed the foregoing instrument; and that s/he signed her/his name
thereto by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
): ss.:
COUNTY OF NEW YORK )
On the 14th day of March, 2002, before me personally came
▇▇▇▇ ▇. ▇▇▇▇▇▇ to me known, who being by me duly sworn, did depose and
say s/he is the Asst. Treas. of Scient Enterprises, Inc., the corporation
described in and which executed the foregoing instrument; and that s/he signed
her/his name thereto by order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 01CA5032224
Qualified in Queens County
Certificate Filed in New York County
Commission Expires Aug. 22, 2002
90
SCHEDULE A
I. IXL ENTERPRISES, INC.
SECURITIES ACTIONS
1) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ v. GE Capital Equity Investments, Inc., General Electric
Pension Trust, GE Capital Corporation, GE Capital Assurance Co., Mellon Ventures
II, LP, Thomson US, Inc. and iXL Enterprises, Inc. US District Court for the
District of Connecticut, Civil Action No. ▇▇▇▇▇▇▇▇▇ (CFD).
2) ▇▇▇▇ ▇▇▇▇▇▇, et., ▇▇ ▇. iXL Enterprises, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Fleet Boston,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇, Case No., 21 MC 92.
3) Redwing Ltd. V. IXL Enterprises, Inc., U. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇. United States District Court, Northern District of Georgia, Atlanta
Divisions, Case No. 1:00 CV 2979-HTW.
4) Next Century v. U. ▇▇▇▇▇▇▇ ▇▇▇▇▇. United States District Court/Northern
District of Georgia Atlanta Division. Case No. 1:00-CV-2347-CC.
5) In re iXL Enterprises, Inc., Securities Litigation. United States
District Court Northern District of Georgia Atlanta Division Case No.
1:00-CV-2347-CC.
II. IXL, INC.
SECURITIES ACTIONS
1) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ v. GE Capital Equity Investments, Inc., General Electric
Pension Trust, GE Capital Corporation, GE Capital Assurance Co., Mellon Ventures
II, LP, Thomson US, Inc. and iXL Enterprises, Inc. US District Court for the
District of Connecticut, Civil Action No. ▇▇▇▇▇▇▇▇▇ (CFD).
2) ▇▇▇▇ ▇▇▇▇▇▇, et., ▇▇ ▇. iXL Enterprises, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Fleet Boston,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇, Case No., 21 MC 92.
3) Redwing Ltd. V. IXL Enterprises, Inc., U. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇. United States District Court, Northern District of Georgia, Atlanta
Divisions, Case No. 1:00 CV 2979-HTW.
4) Next Century v. U. ▇▇▇▇▇▇▇ ▇▇▇▇▇. United States District Court/Northern
District of Georgia Atlanta Division. Case No. 1:00-CV-2347-CC.
5) In re iXL Enterprises, Inc., Securities Litigation. United States
District Court Northern District of Georgia Atlanta Division Case No.
1:00-CV-2347-CC.
100
III. SCIENT ENTERPRISES, INC.
A. EMPLOYMENT DISPUTES
1) ▇▇▇▇▇▇▇▇ Tummenilli v. Scient Corporation. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ Case No. C-01-4025 T E H.
B. COMMERCIAL DISPUTES
1) Key Energy v. Scient Corporation; ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, Civil Action No. M001CA131. AAA Case No. 71 198 00591 1.
2) Scient Corporation v. Sageo and ▇▇▇▇▇▇. Arbitrated dispute. AAA Case
▇▇. ▇▇ ▇ ▇▇▇ ▇▇▇▇▇ 01 LAF.
3) CB ▇▇▇▇▇▇▇ ▇▇▇▇▇ v. Scient Corporation, threatened litigation
4) Verde Media v. Scient Corporation; United States Bankruptcy Court for
the District of Delaware, Bankruptcy Case No. 00-2490 (SLR), Adversary
Proceeding No. 01-08863.
110
ACCOUNT CONTROL AGREEMENT
-------------
MARCH 18, 2002
-------------
INMARK CAPITAL CORP., with an office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Creditor");
SCIENT, INC., an corporation with an office located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Pledgor"); and
NORTH FORK BANK, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 1001 ("Bank")
hereby agree as follows:
P R E A M B L E
1. Bank and Pledgor have entered into a customer agreement (the "Customer
Agreement"), pursuant to which Bank has established deposit account
number 8014014743 in the name of Pledgor (as it may be renumbered or
retitled from time to time and all funds and financial assets in such
account, the "Account").
2. Pledgor and Creditor have entered into a Security Agreement dated as of
the date hereof (as amended, modified and supplemented from time to
time, the "Security Agreement"), in which Pledgor has granted Creditor
a security interest in the Account.
3. Creditor, Pledgor and Bank are entering into this Agreement to provide
for the control of the Account and to perfect the security interest of
Creditor in the Account as more fully described in the Security
Agreement.
T E R M S
SECTION 1. THE ACCOUNT. Bank hereby represents and warrants to Creditor
and Pledgor that (i) the Account has been established in the name of Pledgor as
recited above, (ii) Bank maintains the Account for the Pledgor and all property
(including, without limitation, all funds and financial assets) held by the Bank
in the Account is, and will continue to be credited to the Account and (iii)
except for the claims and interest of Creditor and of Pledgor in the Account,
Bank does not know of any claim to or interest in the Account. The Pledgor is
(x) the Bank's customer with respect to the Account and (y) the entitlement
holder with respect to financial assets credited from time to time to the
Account.
SECTION 2. CONTROL. Bank will comply with all instructions originated
by Creditor concerning the Account without further consent by Pledgor (any such
instruction being an "Account Direction") (including, without limitation, funds
and financial assets) in the Account.
SECTION 3. PLEDGOR'S RIGHTS IN THE ACCOUNT. Bank shall neither accept
nor comply with instructions from Pledgor for the withdrawal of any assets from
the Account nor deliver any such assets to Pledgor without the prior written
consent of Creditor.
SECTION 4. PRIORITY OF LIEN. Bank hereby acknowledges that it has
received a copy of the Security Agreement, consents to the terms thereof and
recognizes the security interest granted therein to Creditor by Pledgor. Bank
hereby subordinates all liens, encumbrances, claims and rights of setoff it may
have against the Account and the proceeds thereof to the liens granted to
Creditor pursuant to the Security Agreement and acknowledges that, except for
(i) payment of routine deposit maintenance, wire transfer and other charges and
fees pursuant to the Customer Agreement (which shall be payable by Pledgor and
shall not be an obligation of Creditor) and (ii) reversal of provisional
credits, it will not assert any such lien, encumbrance, claim or right against
the Account.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE CLAIMS.
Bank will send copies of all statements, confirmations and other correspondence
concerning the Account simultaneously to each of Pledgor and Creditor at the
address set forth in the heading of this Agreement. If any person or entity
asserts any lien, encumbrance or adverse claim against the Account, Bank will
promptly notify Creditor and Pledgor thereof.
SECTION 6. RESPONSIBILITY OF BANK. Bank shall have no responsibility or
liability to Pledgor for complying with any Account Direction. Neither this
Agreement nor the Security Agreement imposes or creates any obligation or duty
of Bank, other than those expressly set forth herein. This Agreement does not
create any obligation on Bank except those expressly set forth in this Agreement
and in the Uniform Commercial Code of the State of New York.
SECTION 7. TAX REPORTING. All items of income, gain, expense and loss
recognized in the Account shall be reported to the Internal Revenue Service and
all state and local taxing authorities under the name and taxpayer
identification number of Pledgor.
SECTION 8. CUSTOMER AGREEMENT. This Agreement supplements the Customer
Agreement. In the event of a conflict between this Agreement and the Customer
Agreement, the terms of this Agreement will prevail. Regardless of any provision
in the Customer Agreement, New York shall be deemed to be the Bank's location
for the purposes of this Agreement and the perfection and priority of Creditor's
security interest in the Account.
SECTION 9. TERMINATION. The rights and powers granted herein to
Creditor have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by the
bankruptcy of Pledgor nor by the lapse of time. The obligations of Bank under
Sections 2, 3, 4 and 5 above shall continue in effect until the security
interest of Creditor in the Account has been terminated pursuant to the terms of
the Security Agreement and Creditor has notified Bank of such termination in
writing. Upon receipt of such
-2-
notice, the obligations of Bank under Sections 2, 3, 4 and 5 above with respect
to the operation and maintenance of the Account after the receipt of such notice
shall terminate, Creditor shall have no further right to originate instructions
concerning the Account and Bank make take such steps as Pledgor may request to
vest full ownership and control of the Account in Pledgor, including, but not
limited to, removing the name of Creditor from the Account or transferring all
of the assets in the Account to another account in the name of Pledgor or its
designee.
SECTION 10. THIS AGREEMENT. This Agreement and the agreements and
instruments required to be executed and delivered hereunder set forth the entire
agreement of the parties with respect to the subject matter hereof and supersede
and discharge all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
SECTION 11. AMENDMENTS. No amendment, modification or termination of
this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Creditor may assign this Agreement to North Fork Bank
without the written consent of Pledgor.
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in the
singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 15. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth next to such parties' name at the heading of this
Agreement. Any party may change its address for notices in the manner set forth
above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same agreement, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
-3-
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The parties agree that the
State of New York is the "bank's jurisdiction" for purposes of the Uniform
Commercial Code of the State of New York.
SECTION 18. EXCULPATION AND INDEMNIFICATION. The parties hereto agree
that Bank shall not be liable for any action taken by it or any of its
directors, officers, agents or employees in accordance with this Agreement,
including, without limitation, any action taken at the request of the Creditor,
except for the gross negligence or willful misconduct of Bank.
SCIENT, INC., AS PLEDGOR
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
INMARK CAPITAL CORP., AS CREDITOR
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
NORTH FORK BANK, AS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
-4-
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), made as of this
20 day of March, 2002 by and between North Fork Bank (as assignee of Inmark
Capital Corp.) ("NFB") and ▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant, an individual residing at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor").
BACKGROUND
NFB has made loans or otherwise extended credit to Scient, Inc., a
Delaware corporation ("Borrower"). Borrower has executed a Promissory Note (the
"Note") dated as of the date hereof in favor of NFB (as assignee of Inmark
Capital Corp.). Pledgor has executed and delivered to a Guaranty dated as of the
date hereof (as amended, modified and supplemented from time to time, the
"Guaranty") pursuant to which Pledgor guaranteed to NFB the payment and
performance of all of the Guarantor Obligations (as defined in the Guaranty).
In order to induce NFB to provide the financial accommodations
described in the Note and to secure Pledgor's obligations to NFB under the
Guaranty, Pledgor has agreed to pledge and grant a security interest in
collateral described herein to NFB on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. All capitalized terms used herein which are not
defined shall have the meanings assigned to them in the Note.
2. Pledge and Grant of Security Interest.
To secure the full and punctual payment and performance of the
Guarantor Obligations, Pledgor hereby assigns, transfers, pledges, hypothecates
and grants to NFB a security interest in the personal property described on
Schedule A annexed hereto and all substitutions therefor and in all proceeds
thereof (excluding any interest or dividends paid with respect thereto) in any
form (collectively, the "Collateral").
3. Representations and Warranties of Pledgor. Pledgor represents
and warrants to NFB (which representations and warranties shall be deemed to
continue to be made until all of the Guarantor Obligations have been paid in
full) that:
(a) The execution, delivery and performance by Pledgor of
this Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule or
regulation applicable to Pledgor.
(b) This Agreement constitutes the legal, valid, and
binding obligation of Pledgor enforceable against Pledgor in accordance with its
terms, except as enforceability may be limited by applicable Insolvency Law (as
defined in the Guaranty).
(c) No consent or approval of any person, corporation,
governmental body, regulatory authority or other entity, is or will be necessary
for the execution, delivery and performance of this Agreement or the exercise by
NFB of any rights with respect to the Collateral or for the pledge and
assignment of, and the grant of a security interest in, the Collateral
hereunder.
(d) There are no pending or, to the best of Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
Collateral.
(e) Pledgor has the requisite power and authority to
enter into this Agreement and to pledge and assign the Collateral to NFB in
accordance with the terms of this Agreement.
(f) Pledgor owns each item of the Collateral and except
for the pledge and security interest granted to NFB hereunder, the Collateral is
free and clear of any other security interest, pledge, claim, lien, charge,
hypothecation, assignment, offset or encumbrance whatsoever.
(g) The pledge and assignment of the Collateral and the
grant of a security interest under this Agreement vest in NFB all rights of
Pledgor in the Collateral as contemplated by this Agreement.
4. Affirmative Covenants. Until such time as all of the Guarantor
Obligations have been paid in full, Pledgor shall:
(a) Defend the Collateral against the claims and demands
of all other parties and keep the Collateral free from all security interests
and other encumbrances, except for the security interest granted to NFB under
this Agreement.
(b) Subject to Section 11 hereof, in the event Pledgor
comes into possession of any portion of the Collateral, hold the same in trust
for NFB and deliver to NFB such Collateral in the form received no later than
one (1) Business Day following Pledgor's receipt thereof.
(c) In the event any portion of the Collateral is held by
a third party, (i) take all action that NFB may reasonably request so as to
maintain the validity, enforceability, perfection and priority of NFB's security
interest in the Collateral and (ii) cause such third party to send copies of all
statements, confirmations and other correspondence concerning the Collateral
simultaneously to each of Pledgor and NFB.
(d) Within two (2) Business Days of receipt thereof by
Pledgor, deliver to NFB all notices and statements relating to the Collateral
received by Pledgor or any third party holding the Collateral.
-2-
(e) Notify NFB promptly of any adverse event relating to
the Collateral.
(f) At the written request of NFB at any time and from
time to time, at Pledgor's sole expense, promptly take such action and execute
and deliver such financing statements and further instruments and documents as
NFB may reasonably request in order to more fully perfect, evidence or
effectuate the pledge and assignment hereunder and the security interest granted
hereby and to enable NFB to exercise and enforce its rights and remedies
hereunder. Pledgor authorizes NFB to file without the signature of Pledgor one
or more financing or continuation statements under the Uniform Commercial Code
of the State of New York (the "UCC") relating to the Collateral, naming NFB as
"secured party."
(g) Furnish to NFB such other information relating to the
Collateral as NFB may from time to time reasonably request.
5. Negative Covenants. Until such time as the Guarantor
Obligations have been paid in full, Pledgor shall not sell, convey, or otherwise
dispose of any of the Collateral or any interest therein or incur or permit to
exist any pledge, mortgage, lien, charge, encumbrance or any security interest
whatsoever with respect to any of the Collateral or the proceeds thereof other
than that created hereby.
6. Remedies.
Subject to Section 9 of the Guaranty, upon the occurrence and
during the continuance of an Event of Default or a Loan Event of Default related
to the Loans made to Borrower in consideration of Pledgor's Guarantor
Collateral, NFB may:
(i) Demand, collect, receipt for, settle,
compromise, adjust, ▇▇▇ for, foreclose or realize upon the Collateral pledged to
it by Pledgor hereunder (or any part thereof), as NFB may determine in its sole
discretion;
(ii) Transfer the Collateral into its name or
into the name of its nominee or nominees;
(iii) Subject to the requirements of applicable
law, sell, assign and deliver the whole or, from time to time any part of the
Collateral, with or without demand, advertisement or notice of the time or place
of sale or adjournment thereof or otherwise (all of which are hereby waived,
except such notice as is required by applicable law and cannot be waived), for
such price or prices and on such terms as NFB in its sole discretion may
determine[;
provided, however, that NFB shall not exercise any of its rights or remedies
with respect to Collateral until two business days after written notice of an
Event of Default or a Loan Event of Default has been provided to Pledgor;
provided, that no notice shall be required if a Loan Event of Default occurs
under Section 10(b)(iv) of the Note.
Pledgor acknowledges and agrees that (i) in the event NFB
wishes to sell all or a portion of the Collateral, upon the occurrence and
continuance of an Event of Default or a Loan
-3-
Event of Default, ten (10) days' prior written notice of such sale or sales
shall be reasonable and sufficient notice to Pledgor within the meaning of the
UCC; provided that no such prior notice shall be required in the event the
Collateral has declined or threatens to decline speedily in value or is of a
type customarily sold on a recognized market and (ii) in the event the
Collateral consists of investment securities maintained with a financial
intermediary or certificates of deposit maintained with any financial
institution, NFB may, at its option, immediately notify such financial
intermediary and/or financial institution to liquidate the Collateral and remit
the proceeds thereof directly to NFB. Pledgor hereby waives and releases any and
all right or equity of redemption, whether before or after sale hereunder. In
addition to the foregoing, NFB shall have all of the rights and remedies of a
secured party under applicable law and the UCC.
7. Proceeds of Collateral. The proceeds of any disposition under
this Agreement of the Collateral pledged to it by Pledgor shall be applied as
follows:
(a) First, to the payment of all costs, expenses and
charges of NFB and to the reimbursement of NFB for the prior payment of such
costs, expenses and charges incurred in connection with the care and safekeeping
of the Collateral (including, without limitation, the expenses of any sale or
any other disposition of any of the Collateral), the expenses of any taking,
reasonable attorneys' fees and expenses, court costs, any other expenses
incurred or expenditures or advances made by NFB in the protection, enforcement
or exercise of its rights, powers or remedies hereunder, with interest on any
such reimbursement at the Default Rate;
(b) Second, to the payment of the Guarantor Obligations,
in whole or in part, whether or not such Guarantor Obligations are then due;
(c) Third, to such persons, firms, corporations or other
entities as required by applicable law; and
(d) Fourth, to the extent of any surplus to Pledgor or as
a court of competent jurisdiction may direct.
NFB acknowledges that regardless of the order of the
application of the proceeds of the Collateral, Pledgor shall be liable only in
an amount equal to the lesser of (i) the aggregate original principal amount of
the Loans or (ii) the aggregate outstanding principal amount of the Loans, in
each case, made by Lender to Borrower based on Pledgor's Guarantor Collateral
Availability in accordance with the terms of the Guaranty. In the event that the
proceeds of any collection, recovery, receipt, appropriation, realization or
sale are insufficient to satisfy the Guarantor Obligations, Pledgor shall not be
liable for the deficiency.
8. Waiver of Marshaling. Pledgor hereby waives any right to
compel any marshaling of any of the Collateral.
9. No Waiver. Any and all of NFB's rights with respect to the
pledge, assignment and security interest granted hereunder shall continue
unimpaired, and Pledgor shall be and remain obligated in accordance with the
terms hereof, notwithstanding (a) the bankruptcy, insolvency or reorganization
of Pledgor, except as enforceability may be limited by applicable
-4-
Insolvency Law (as defined in the Guaranty), (b) the release or substitution of
any item of the Collateral at any time, or of any rights or interests therein,
or (c) subject to Section 15 of the Note, any delay, extension of time, renewal,
compromise or other indulgence granted by NFB in reference to any of the
Guarantor Obligations. Except to the extent set forth in the Note, Pledgor
hereby waives all notice of any such delay, extension, release, substitution,
renewal, compromise or other indulgence, and hereby consents to be bound hereby
as fully and effectively as if Pledgor had expressly agreed thereto in advance.
No delay or extension of time by NFB in exercising any power of sale, option or
other right or remedy hereunder, and no failure by NFB to give notice or make
demand, shall constitute a waiver thereof, or limit, impair or prejudice NFB's
right to take any action against Pledgor or to exercise any other power of sale,
option or any other right or remedy.
10. Intentionally Omitted.
11. NFB Appointed Attorney-In-Fact and Performance by NFB. Upon
the occurrence and during the continuance of an Event of Default or a Loan Event
of Default, Pledgor hereby irrevocably constitutes and appoints NFB as Pledgor's
true and lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and to do in Pledgor's name, place and
stead, all such acts, things and deeds for and on behalf of and in the name of
Pledgor, which Pledgor could or might do or which NFB may deem necessary,
desirable or convenient to accomplish the purposes of this Agreement, including,
without limitation, to execute such instruments of assignment or transfer or
orders and to register, convey or otherwise transfer title to the Collateral
into NFB's name. Pledgor hereby ratifies and confirms all that said
attorney-in-fact may so do and hereby declare this power of attorney to be
coupled with an interest and irrevocable. If Pledgor fails to perform any
agreement herein contained, NFB may itself perform or cause performance thereof.
12. Dividends and Interest. Notwithstanding the occurrence and
continuance of an Event of Default or a Loan Event of Default, dividends or
interest paid with respect to the Collateral shall be paid to the Pledgor, and
the Pledgor shall be entitled to collect and receive such amounts.
13. Captions. All captions in this Agreement are included herein
for convenience of reference only and shall not constitute part of this
Agreement for any other purpose.
14. Notices. All notices, requests, demands and other
communications provided for under this Agreement shall be in writing and shall
be (a) personally delivered, (b) sent by first class United States mail, (c)
sent by overnight courier of national reputation, or (d) transmitted by
telecopy, in each case addressed or telecopied to the party to whom notice is
being given at its address or telecopier number as set forth below:
(i) if to Pledgor, at c/o Scient, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to NFB, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Aris Haigian, Esq., Telecopier 212-245-3009;
-5-
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 14. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury
Trial. This Agreement shall be governed by and construed in accordance with the
substantive laws (other than conflict laws) of the State of New York. The
parties hereto hereby (i) consent to the personal jurisdiction of the state and
federal courts located in the County of New York, State of New York in
connection with any controversy related to this Agreement; (ii) waive any
argument that venue in any such forum is not convenient, (iii) agree that any
litigation initiated by NFB or Pledgor in connection with this Agreement shall
be venued in the United States District Court of the Southern District of New
York and, to the extent such venue cannot be obtained, in any court having situs
within the County of New York, State of New York; and (iv) agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. THE PLEDGOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS
THAT SERVICE OF PROCESS UPON THE PLEDGOR MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO PLEDGOR AT THE PLEDGOR'S ADDRESS SET
FORTH IN SECTION 14 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE
(5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE
ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO
THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY OF THE COLLATERAL.
16. Miscellaneous.
(a) This Agreement, together with the Note, the Guaranty
and the definitions incorporated by reference herein from the Note and the
Guaranty, constitute the entire and final agreement among the parties with
respect to the subject matter hereof and may not be changed, terminated or
otherwise varied except by a writing duly executed by the parties hereto.
(b) No waiver of any term or condition of this Agreement,
whether by delay, omission or otherwise, shall be effective unless in writing
and signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
(c) In the event that any provision of this Agreement or
the application thereof to Pledgor or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation, or rule of law, such
-6-
provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform to such statute, regulation or
rule of law, and the remainder of this Agreement and the application of any such
invalid or unenforceable provision to parties, jurisdictions, or circumstances
other than to whom or to which it is held invalid or unenforceable, shall not be
affected thereby nor shall same affect the validity or enforceability of any
other provision of this Agreement.
(d) This Agreement shall be binding upon Pledgor, and
Pledgor's heirs, executors, administrators, successors and assigns, and shall
inure to the benefit of NFB and its successors and assigns. NFB may, with the
written consent of Pledgor (which shall not be unreasonably withheld), assign
this Agreement and the liens granted hereunder.
(e) This Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument. This Agreement may also be executed via facsimile, which shall be
deemed an original.
[Signature Page to Follow]
-7-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
NORTH FORK BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
-8-
SCHEDULE A
Description of Collateral
The deposit account numbered 8016018619, established in the name of ▇▇▇▇▇▇▇▇▇▇▇
▇. Formant at North Fork Bank (as it may be renumbered or retitled from time to
time and all funds and financial assets in such account).
STATE OF New York )
---------------
ss.:
COUNTY OF New York )
--------------
On the 20th day of March , 2002, before me personally came ▇▇▇▇▇▇▇▇▇▇▇
▇. Formant, to me known, who, being by me duly sworn, did depose and say that
s/he signed the foregoing instrument.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 26th day of March , 2002, before me personally came
▇▇▇▇▇▇▇ ▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
he is the Senior Vice President of North Fork Bank, the corporation described in
and which executed the above instrument; and that he was authorized to sign his
name thereto on behalf of said corporation.
/s/ ▇▇▇▇▇▇ Cacemes
-----------------------------
Notary Public
GUARANTY
(Individual)
New York, New York March 20, 2002
This Guaranty is executed in connection with that certain Promissory
Note dated as of the date hereof made by Scient, Inc. ("Borrower") in favor of
North Fork Bank (as assignee of Inmark Capital Corp.) ("NFB") (as amended,
modified, restated or supplemented from time to time, the "Note"). Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Note.
FOR VALUE RECEIVED, and in consideration of one or more Loans made from
time to time and at any time to or for the account of Borrower by NFB pursuant
to the Note, and for other good and valuable consideration, and to induce NFB to
make such Loans, the undersigned guarantor (the "Guarantor") unconditionally
guaranties to NFB, its successors, endorsees and assigns, the prompt payment
when due (whether by acceleration or otherwise) of the lesser of (i) the
aggregate original principal amount of the Loans or (ii) the aggregate
outstanding principal amount of the Loans, in each case, made to Borrower in
consideration of the Guarantor's Guarantor Collateral (the "Guarantor
Obligations"), irrespective of the genuineness, validity, regularity or
enforceability of such Guarantor Obligations, or of any instrument evidencing
any of the Guarantor Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Guarantor Obligations in any case
commenced by or against Borrower under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, including,
without limitation, obligations or indebtedness of Borrower for post-petition
interest, fees, costs and charges that would have accrued or been added to the
Guarantor Obligations but for the commencement of such case.
Notwithstanding anything contained in this Guaranty to the contrary,
the liability of the Guarantor hereunder shall in no event exceed the Guarantor
Obligations. Such limitation on liability shall not be affected by nor shall
anything herein contained be deemed to be a limitation of the amount of credit
which may be extended by NFB to Borrower, or the number of transactions between
NFB and Borrower, or the nature or amount of the obligations which may be
incurred by Borrower to NFB.
In furtherance of the foregoing, the Guarantor hereby agrees as
follows:
1. Limited Recourse to the Guarantor. Anything contained herein
to the contrary notwithstanding, other than the enforcement of NFB's rights with
respect to the Guarantor Collateral, NFB shall have no recourse against the
Guarantor or any spouse, heir, devisee, representative or agent of the Guarantor
nor shall the Guarantor or any spouse, heir, devisee, representative or agent of
the Guarantor be held personally liable for the payment of the Guarantor
Obligations or for any claim based thereon or otherwise in respect thereof or
for the payment and performance of any other obligation based on or in respect
of the Note. The enforcement of any judgment for breach by the Guarantor of its
obligations hereunder shall be limited to and made only against the Guarantor
Collateral.
2. No Impairment. This instrument shall be effective regardless
of the subsequent incorporation, merger or consolidation of Borrower, or any
change in the composition, nature, personnel or location of Borrower and shall
extend to any successor entity to Borrower, including a Borrower in possession
or the like under the United States Bankruptcy Code, as amended, or any other
federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors' rights generally (any of
the foregoing, an "Insolvency Law").
3. Guaranty Absolute. The Guarantor guarantees that the Guarantor
Obligations will be paid strictly in accordance with the terms of the Note
and/or any other Ancillary Agreement, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Borrower with respect thereto. The Guarantor acknowledges that (i)
no oral representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made by NFB to
induce the Guarantor to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions of the Note
and the other Ancillary Agreements. Subject to the limitations set forth in
Section 1 hereof, the liability of the Guarantor under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Note or
any other Ancillary Agreement or any assignment or transfer of any thereof, (b)
any lack of validity or enforceability of the Note or any other Ancillary
Agreement relating to the Guarantor Obligations or any assignment or transfer of
any thereof, (c) any furnishing of any additional security to NFB or its
assignees or any acceptance thereof or any release of any security by NFB or its
assignees, (d) any limitation on any party's liability or obligation under the
Note and the other Ancillary Agreements relating to the Guarantor Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such Ancillary Agreement or any term thereof, (e)
any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Borrower, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the Guarantor shall have notice or
knowledge of any of the foregoing, (f) any exchange, release or nonperfection of
any collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the Guarantor
Obligations, or (g) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Guarantor. If NFB is unable to
enforce its rights with respect to the Guarantor Collateral following the
occurrence of an Event of Default or Loan Event of Default as a result of any
legal proceeding (including, without limitation, a bankruptcy proceeding)
involving NFB, the Borrower, the Guarantor or any other guarantor, any amounts
due from the Guarantor to NFB shall bear interest until such amounts are paid in
full at the Default Rate. Guarantor Obligations include post-petition interest
whether or not allowed or allowable.
4. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. NFB shall be under no obligation to institute suit, exercise rights
or remedies or take any other action against Borrower or any other person or
entity liable with respect to any of the Guarantor
-2-
Obligations or resort to any collateral security held by NFB to secure any of
the Guarantor Obligations as a condition precedent to the Guarantor's being
obligated to perform as agreed herein and the Guarantor hereby waives any and
all rights which it may have by statute or otherwise which would require NFB to
do any of the foregoing. The Guarantor further consents and agrees that NFB
shall be under no obligation to marshal any assets in favor of the Guarantor.
The Guarantor hereby waives all suretyship defenses and any rights to interpose
any defense, counterclaim or offset of any nature and description which the
Guarantor may have or which may exist between and among NFB, Borrower and/or the
Guarantor with respect to the Guarantor's obligations under this Guaranty, or
which Borrower may assert on the underlying debt, including but not limited to
failure of consideration, breach of warranty, fraud, payment (other than cash
payment in full of the Obligations), statute of frauds, bankruptcy, infancy,
statute of limitations, accord and satisfaction, and usury.
(b) Subject to Section 9 hereof, the Guarantor further
waives to the fullest extent allowable under law (i) notice of the acceptance of
this Guaranty, of the making of any such loans or extensions of credit, and of
all notices and demands of any kind to which the Guarantor may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
Guarantor and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Guarantor Obligations, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort, provided, however, that NFB shall not exercise any of its
rights or remedies with respect to Guarantor Collateral until two business days
after written notice of an Event of Default or a Loan Event of Default has been
provided to Guarantor except that no such notice shall be required if a Loan
Event of Default arises under Section 10(b)(iv) of the Note.
(c) Notwithstanding any payment or payments made by the
Guarantor hereunder, or any setoff or application of funds of the Guarantor by
NFB, the Guarantor shall not be entitled to be subrogated to any of the rights
of NFB against Borrower or against any collateral or guarantee or right of
offset held by NFB for the payment of the Guarantor Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from
Borrower in respect of payments made by the Guarantor hereunder, until all
amounts owing to NFB by Borrower on account of the Obligations are indefeasibly
paid in full. If, notwithstanding the foregoing, any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all of the
Guarantor Obligations shall not have been paid in full and the Note and the
other Ancillary Agreements shall not have been terminated, such amount shall be
held by the Guarantor in trust for NFB, segregated from other funds of the
Guarantor, and shall forthwith upon, and in any event within two (2) business
days of, receipt by the Guarantor, be turned over to NFB in the exact form
received by the Guarantor (duly endorsed by the Guarantor to NFB, if required),
to be applied against the Guarantor Obligations, whether matured or unmatured,
in such order as NFB may determine, subject to the provisions of the Note and
the other Ancillary Agreements. Following the occurrence and during the
continuance of an Event of Default or Loan Event of Default with respect to the
Loans guaranteed by such Guarantor, any and all present and future debts and
obligations of Borrower to the Guarantor are hereby waived and postponed in
favor of, and subordinated to the full payment and performance of, all present
and future debts and obligations of Borrower to NFB.
-3-
5. Indemnity and Subrogation. If any payment is made by Guarantor
pursuant to or in connection with this Guaranty, Borrower shall indemnify
Guarantor for the full amount of such payment. If NFB enforces its rights with
respect to any of Guarantor's Guarantor Collateral pursuant to this Guaranty or
any other Ancillary Agreement, Borrower shall indemnify Guarantor for the fair
market value of such Guarantor Collateral. Guarantor shall not seek or be
entitled to exercise its rights to indemnification from Borrower until all
amounts owing to NFB on account of the Obligations are indefeasibly paid in full
and the Note and the other Ancillary Agreements have been terminated. Guarantor
shall be subrogated to the rights of NFB or other such Person to whom such
payment was made or the Person who enforced its rights with respect to such
Guarantor Collateral. Guarantor shall not enforce its rights or receive any
payments under this Section 5 nor shall Borrower make any payments to Guarantor
under this Section 5, until all amounts owing to NFB by Borrower on account of
the Obligations are indefeasibly paid in full and the Note and the other
Ancillary Agreements have been terminated. Upon payment in full to NFB of all
the Obligations, if requested by Guarantor, to the extent permitted by
applicable law, NFB agrees to assign and transfer jointly to Guarantor and each
other guarantor of the Loans who has made any payment to NFB under such
guarantor's guaranty of the Loans (without any representation or warranties
whatsoever and pursuant to documentation in form and substance satisfactory to
NFB) all of NFB's right, title, benefits and interests, whether contractual or
otherwise, under the Ancillary Agreements entered into by Borrower in favor of
NFB in respect of the Guarantor Obligations.
6. Representations and Warranties of the Guarantor. The Guarantor
hereby represents and warrants (all of which representations and warranties
shall survive until all Guarantor Obligations are indefeasibly satisfied in full
and the Ancillary Agreements have been irrevocably terminated), that:
(a) Legal Capacity. The Guarantor has full legal capacity
to execute and deliver this Guaranty and to perform the obligations of the
Guarantor under this Guaranty.
(b) Legal, Valid and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, except as enforceability may be limited by
applicable Insolvency Law.
(c) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law applicable to the
Guarantor or any material contract, agreement or instrument to which the
Guarantor is a party or by which the Guarantor or any property of the Guarantor
is bound or result in the creation or imposition of any mortgage, lien or other
encumbrance other than to NFB on any of the property or assets of the Guarantor
pursuant to the provisions of any of the foregoing.
(d) Consents or Approvals. No consent of any other person
or entity (including, without limitation, any creditor of the Guarantor) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty.
-4-
(e) Litigation. No litigation, arbitration, investigation
or administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the Guarantor, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting the
Guarantor, or any property or assets of the Guarantor, which, if adversely
determined, would have a material adverse effect on the Guarantor's Guarantor
Collateral.
(f) Financial Benefit. The Guarantor has derived or
expects to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Loan Documents or other Obligation
incurred by Borrower to NFB.
7. Covenant of the Borrower. Borrower shall not enter into any
written amendment or written waiver to the Note or any other Ancillary Agreement
without the consent of the Guarantor. Borrower's failure to comply with the
provisions of this Section 7 shall not affect in any manner whatsoever the
Guarantor's obligations to NFB hereunder.
8. Acceleration. If a notice of any lien, levy, or assessment is
filed of record with respect to any assets of the Guarantor by the United States
of America or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon any assets of the Guarantor in NFB's possession or
control, any and all Guarantor Obligations shall for purposes hereof, at NFB's
option, be deemed due and payable without notice notwithstanding that any such
Guarantor Obligation is not then due and payable by Borrower.
9. Notice of Defaults; Cure Rights.
(a) The Guarantor will promptly notify NFB of any default
by the Guarantor in the performance or observance of any term or condition of
any agreement to which the Guarantor is a party if the effect of such default is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an event
occurs, NFB shall have the right to accelerate the Guarantor Obligations.
(b) NFB will provide the Guarantor with a copy of any
written notice of any Event of Default or Loan Event of Default with respect to
the Loans guaranteed by such Guarantor simultaneously with the notice it sends
to the Borrower with respect to such Event of Default or Loan Event of Default.
(c) The Guarantor shall have the right, in its sole
discretion, to cure any Event of Default or Loan Event of Default within two
business days following its receipt of the notice provided to the Guarantor in
accordance with Section 9(b) above with respect to such Event of Default or Loan
Event of Default.
10. Payments from Guarantor. Upon the occurrence and during the
continuance of an Event of Default or a Loan Event of Default, NFB, in its sole
and absolute discretion, with or without notice to the Guarantor, may apply on
account of the Guarantor Obligations any amounts
-5-
realized from any security for the Guarantor Obligations, or may deposit any and
all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Guarantor Obligations.
11. No Termination. This is a continuing irrevocable guaranty and
shall remain in full force and effect and be binding upon the Guarantor, and the
Guarantor's heirs, administrators, executors, successors and assigns, until all
of the Guarantor Obligations have been indefeasibly paid in full and the Note
and the Ancillary Agreements have been irrevocably terminated. If any of the
present or future Guarantor Obligations are guarantied by persons, partnerships
or corporations in addition to the Guarantor, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of the Guarantor under this Guaranty. The death of the Guarantor
shall not effect a termination of this Guaranty and loans and advances made by
NFB and any indebtedness incurred by Borrower from NFB subsequent to such death
shall continue to constitute Guarantor Obligations guaranteed hereunder.
12. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if NFB receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by NFB, the Guarantor's obligations to NFB shall be
reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to NFB, which payment shall be
due on demand.
13. Books and Records. The books and records of NFB showing the
account between NFB and Borrower shall be admissible in evidence in any action
or proceeding, shall be binding upon the Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof absent manifest error.
14. No Waiver. No failure on the part of NFB to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by NFB of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to NFB or allowed it by law or other agreement shall be cumulative and
not exclusive of any other, and may be exercised by NFB at any time and from
time to time.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The Guarantor hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in any
such forum is not convenient, (iii) agrees that any litigation initiated by NFB
or the Guarantor in connection with this Guaranty shall be venued in the United
States District Court of the Southern District of New York and, to the extent
such venue cannot be obtained, in any court having situs within the County of
New York, State of New York; and (iv) agrees that a final
-6-
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. THE GUARANTOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS
THAT SERVICE OF PROCESS UPON THE GUARANTOR MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE
GUARANTOR'S ADDRESS SET FORTH IN SECTION 18 HEREOF, AND SERVICE SO MADE SHALL BE
DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED. THE GUARANTOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS GUARANTY, ANY OTHER ANCILLARY
AGREEMENT OR ANY OF THE GUARANTOR OBLIGATIONS.
16. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing executed by the
Guarantor and NFB.
18. Notice. All notices, requests, demands and other
communications provided for under this Guaranty shall be in writing and shall be
(a) personally delivered, (b) sent by first class United States mail, (c) sent
by overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to the Guarantor, at c/o Scient, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to NFB, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Aris Haigian, Esq., Telecopier 212-245-3009;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 18. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
19. Successors. NFB may, from time to time, without notice to the
Guarantor, sell, assign, transfer or otherwise dispose of all or any part of the
Guarantor Obligations and/or rights
-7-
under this Guaranty. Without limiting the generality of the foregoing, NFB may
assign, or grant participations to, one or more banks, financial institutions or
other entities all or any part of any of the Guarantor Obligations. In each such
event, NFB, its Affiliates and each and every immediate and successive
purchaser, assignee, transferee or holder of all or any part of the Guarantor
Obligations shall have the right to enforce this Guaranty, by legal action or
otherwise, for its own benefit as fully as if such purchaser, assignee,
transferee or holder were herein by name specifically given such right.
20. Release. Nothing except cash payment in full of the Guarantor
Obligations shall release the Guarantor from liability under this Guaranty.
21. Counterparts; Facsimile. This Guaranty may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Guaranty may
also be executed via facsimile, which shall be deemed an original.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-8-
IN WITNESS WHEREOF, this Guaranty has been executed by the Guarantor as
of the day and year first above written.
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
----------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
AGREED:
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
-9-
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK)
On the 20 day of March, 2002, before me personally came ▇▇▇▇▇▇▇▇▇▇▇
▇. Formant to me known, who being by me duly sworn, did depose and say that he
resides at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, that he has read
the foregoing instrument and is fully familiar with the contents thereof; that
he signed his name thereto of his own free will and volition.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 26th day of March, 2002, before me personally came ▇▇▇▇▇▇▇ ▇▇▇▇▇
to me known, who, being by me duly sworn did depose and say that he is the
_____________ of Scient, Inc., the corporation described in and which executed
the above instrument; and that he signed his name thereto by order of the board
of directors of said corporation.
/s/ ▇▇▇▇▇▇ Cacamesa
----------------------------------------
Notary Public
-10-
ACCOUNT CONTROL AGREEMENT
---------------
MARCH 18, 2002
---------------
NORTH FORK BANK (AS ASSIGNEE OF INMARK CAPITAL CORP.), with an office located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Creditor");
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual with a mailing address at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor"); and
NORTH FORK BANK, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Bank")
hereby agree as follows:
P R E A M B L E
1. Bank and Pledgor have entered into a customer agreement (the "Customer
Agreement"), pursuant to which Bank has established deposit account
number 8016018650 in the name of Pledgor (as it may be renumbered or
retitled from time to time and all funds and financial assets in such
account, the "Account").
2. Pledgor and Creditor have entered into a Pledge and Security Agreement
dated as of the date hereof (as amended, modified and supplemented from
time to time, the "Security Agreement"), in which Pledgor has granted
Creditor a security interest in the Account.
3. Creditor, Pledgor and Bank are entering into this Agreement to provide
for the control of the Account and to perfect the security interest of
Creditor in the Account as more fully described in the Security
Agreement.
T E R M S
SECTION 1. THE ACCOUNT. Bank hereby represents and warrants to
Creditor and Pledgor that (i) the Account has been established in the name of
Pledgor as recited above, (ii) Bank maintains the Account for the Pledgor and
all property (including, without limitation, all funds and financial assets)
held by the Bank in the Account is, and will continue to be credited to the
Account and (iii) except for the claims and interest of Creditor and of Pledgor
in the Account, Bank does not know of any claim to or interest in the Account.
The Pledgor is (x) the Bank's customer with respect to the Account and (y) the
entitlement holder with respect to financial assets credited from time to time
to the Account.
SECTION 2. CONTROL. Bank will comply with all instructions
originated by Creditor concerning the Account without further consent by Pledgor
(any such instruction being an "Account Direction") except with respect to
instructions regarding the distribution of interest and dividends on the
property (including, without limitation, funds and financial assets) in the
Account.
SECTION 3. PLEDGOR'S RIGHTS IN THE ACCOUNT. Bank shall neither
accept nor comply with instructions from Pledgor for the withdrawal of any
assets from the Account nor deliver any such assets to Pledgor without the prior
written consent of Creditor; provided, however, the Bank shall, at all times,
distribute to the Pledgor all interest and dividends on property in the Account
as instructed by Pledgor and shall not comply with any Account Directions from
the Creditor with respect to such interest and dividends.
SECTION 4. PRIORITY OF LIEN. Bank hereby acknowledges that it
has received a copy of the Security Agreement, consents to the terms thereof and
recognizes the security interest granted therein to Creditor by Pledgor. Bank
hereby subordinates all liens, encumbrances, claims and rights of setoff it may
have against the Account and the proceeds thereof to the liens granted to
Creditor pursuant to the Security Agreement and acknowledges that, except for
(i) payment of routine deposit maintenance, wire transfer and other charges and
fees pursuant to the Customer Agreement (which shall be payable by Pledgor and
shall not be an obligation of Creditor) and (ii) reversal of provisional
credits, it will not assert any such lien, encumbrance, claim or right against
the Account.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE
CLAIMS. Bank will send copies of all statements, confirmations and other
correspondence concerning the Account simultaneously to each of Pledgor and
Creditor at the address set forth in the heading of this Agreement. If any
person or entity asserts any lien, encumbrance or adverse claim against the
Account, Bank will promptly notify Creditor and Pledgor thereof.
SECTION 6. RESPONSIBILITY OF BANK. Bank shall have no
responsibility or liability to Pledgor for complying with any Account Direction.
Neither this Agreement nor the Security Agreement imposes or creates any
obligation or duty of Bank, other than those expressly set forth herein. This
Agreement does not create any obligation on Bank except those expressly set
forth in this Agreement and in the Uniform Commercial Code of the State of New
York.
SECTION 7. TAX REPORTING. All items of income, gain, expense
and loss recognized in the Account shall be reported to the Internal Revenue
Service and all state and local taxing authorities under the name and taxpayer
identification number of Pledgor.
SECTION 8. CUSTOMER AGREEMENT. This Agreement supplements the
Customer Agreement. In the event of a conflict between this Agreement and the
Customer Agreement, the terms of this Agreement will prevail. Regardless of any
provision in the Customer Agreement, New York shall be deemed to be the Bank's
location for the purposes of this Agreement and the perfection and priority of
Creditor's security interest in the Account.
-2-
SECTION 9. TERMINATION. The rights and powers granted herein to
Creditor have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by the
bankruptcy of Pledgor nor by the lapse of time. The obligations of Bank under
Sections 2, 3, 4 and 5 above shall continue in effect until the security
interest of Creditor in the Account has been terminated pursuant to the terms of
the Security Agreement and Creditor has notified Bank of such termination in
writing. Upon receipt of such notice, the obligations of Bank under Sections 2,
3, 4 and 5 above with respect to the operation and maintenance of the Account
after the receipt of such notice shall terminate, Creditor shall have no further
right to originate instructions concerning the Account and Bank make take such
steps as Pledgor may request to vest full ownership and control of the Account
in Pledgor, including, but not limited to, removing the name of Creditor from
the Account or transferring all of the assets in the Account to another account
in the name of Pledgor or its designee.
SECTION 10. THIS AGREEMENT. This Agreement and the agreements and
instruments required to be executed and delivered hereunder set forth the entire
agreement of the parties with respect to the subject matter hereof and supersede
and discharge all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
SECTION 11. AMENDMENTS. No amendment, modification or termination
of this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in
this Agreement shall be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held invalid or unenforceable,
shall be construed in all respects as if such invalid or unenforceable term or
provision were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. Creditor may assign this Agreement to North
Fork Bank without the written consent of Pledgor.
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in
the singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 15. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party
-3-
at the address set forth next to such parties' name at the heading of this
Agreement. Any party may change its address for notices in the manner set forth
above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The parties agree that the
State of New York is the "bank's jurisdiction" for purposes of the Uniform
Commercial Code of the State of New York.
SECTION 18. EXCULPATION AND INDEMNIFICATION. The parties hereto
agree that Bank shall not be liable for any action taken by it or any of its
directors, officers, agents or employees in accordance with this Agreement,
including, without limitation, any action taken at the request of the Creditor,
except for the gross negligence or willful misconduct of Bank.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, AS PLEDGOR
NORTH FORK BANK (AS ASSIGNEE OF INMARK
CAPITAL CORP.), AS CREDITOR
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: SVP
NORTH FORK BANK, AS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: SVP
-4-
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), made as of this
20 day of March, 2002 by and between North Fork Bank (as assignee of Inmark
Capital Corp.) ("NFB") and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, an individual with a mailing address
at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor").
BACKGROUND
NFB has made loans or otherwise extended credit to Scient, Inc., a
Delaware corporation ("Borrower"). Borrower has executed a Promissory Note (the
"Note") dated as of the date hereof in favor of NFB (as assignee of Inmark
Capital Corp.). Pledgor has executed and delivered to NFB a Guaranty dated as of
the date hereof (as amended, modified and supplemented from time to time, the
"Guaranty") pursuant to which Pledgor guaranteed to NFB the payment and
performance of all of the Guarantor Obligations (as defined in the Guaranty).
In order to induce NFB to provide the financial accommodations
described in the Note and to secure Pledgor's obligations to NFB under the
Guaranty, Pledgor has agreed to pledge and grant a security interest in
collateral described herein to NFB on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. All capitalized terms used herein which are not
defined shall have the meanings assigned to them in the Note.
2. Pledge and Grant of Security Interest.
To secure the full and punctual payment and performance of the
Guarantor Obligations, Pledgor hereby assigns, transfers, pledges, hypothecates
and grants to NFB a security interest in the personal property described on
Schedule A annexed hereto and all substitutions therefor and in all proceeds
thereof (excluding any interest or dividends paid with respect thereto) in any
form (collectively, the "Collateral").
3. Representations and Warranties of Pledgor. Pledgor represents
and warrants to NFB (which representations and warranties shall be deemed to
continue to be made until all of the Guarantor Obligations have been paid in
full) that:
(a) The execution, delivery and performance by Pledgor of
this Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule or
regulation applicable to Pledgor.
(b) This Agreement constitutes the legal, valid, and
binding obligation of Pledgor enforceable against Pledgor in accordance with its
terms, except as enforceability may
be limited by applicable Insolvency Law (as defined in the Guaranty).
(c) No consent or approval of any person, corporation,
governmental body, regulatory authority or other entity, is or will be necessary
for the execution, delivery and performance of this Agreement or the exercise by
NFB of any rights with respect to the Collateral or for the pledge and
assignment of, and the grant of a security interest in, the Collateral
hereunder.
(d) There are no pending or, to the best of Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
Collateral.
(e) Pledgor has the requisite power and authority to
enter into this Agreement and to pledge and assign the Collateral to NFB in
accordance with the terms of this Agreement.
(f) Pledgor owns each item of the Collateral and except
for the pledge and security interest granted to NFB hereunder, the Collateral is
free and clear of any other security interest, pledge, claim, lien, charge,
hypothecation, assignment, offset or encumbrance whatsoever.
(g) The pledge and assignment of the Collateral and the
grant of a security interest under this Agreement vest in NFB all rights of
Pledgor in the Collateral as contemplated by this Agreement.
4. Affirmative Covenants. Until such time as all of the Guarantor
Obligations have been paid in full, Pledgor shall:
(a) Defend the Collateral against the claims and demands
of all other parties and keep the Collateral free from all security interests
and other encumbrances, except for the security interest granted to NFB under
this Agreement.
(b) Subject to Section 11 hereof, in the event Pledgor
comes into possession of any portion of the Collateral, hold the same in trust
for NFB and deliver to NFB such Collateral in the form received no later than
one (1) Business Day following Pledgor's receipt thereof.
(c) In the event any portion of the Collateral is held by
a third party, (i) take all action that NFB may reasonably request so as to
maintain the validity, enforceability, perfection and priority of NFB's security
interest in the Collateral and (ii) cause such third party to send copies of all
statements, confirmations and other correspondence concerning the Collateral
simultaneously to each of Pledgor and NFB.
(d) Within two (2) Business Days of receipt thereof by
Pledgor, deliver to NFB all notices and statements relating to the Collateral
received by Pledgor or any third party holding the Collateral.
-2-
(e) Notify NFB promptly of any adverse event relating to
the Collateral.
(f) At the written request of NFB at any time and from
time to time, at Pledgor's sole expense, promptly take such action and execute
and deliver such financing statements and further instruments and documents as
NFB may reasonably request in order to more fully perfect, evidence or
effectuate the pledge and assignment hereunder and the security interest granted
hereby and to enable NFB to exercise and enforce its rights and remedies
hereunder. Pledgor authorizes NFB to file without the signature of Pledgor one
or more financing or continuation statements under the Uniform Commercial Code
of the State of New York (the "UCC") relating to the Collateral, naming NFB as
"secured party."
(g) Furnish to NFB such other information relating to the
Collateral as NFB may from time to time reasonably request.
5. Negative Covenants. Until such time as the Guarantor
Obligations have been paid in full, Pledgor shall not sell, convey, or otherwise
dispose of any of the Collateral or any interest therein or incur or permit to
exist any pledge, mortgage, lien, charge, encumbrance or any security interest
whatsoever with respect to any of the Collateral or the proceeds thereof other
than that created hereby.
6. Remedies.
Subject to Section 9 of the Guaranty, upon the occurrence and
during the continuance of an Event of Default or a Loan Event of Default related
to the Loans made to Borrower in consideration of Pledgor's Guarantor
Collateral, NFB may:
(i) Demand, collect, receipt for, settle,
compromise, adjust, ▇▇▇ for, foreclose or realize upon the Collateral pledged to
it by Pledgor hereunder (or any part thereof), as NFB may determine in its sole
discretion;
(ii) Transfer the Collateral into its name or
into the name of its nominee or nominees;
(iii) Subject to the requirements of applicable
law, sell, assign and deliver the whole or, from time to time any part of the
Collateral, with or without demand, advertisement or notice of the time or place
of sale or adjournment thereof or otherwise (all of which are hereby waived,
except such notice as is required by applicable law and cannot be waived), for
such price or prices and on such terms as NFB in its sole discretion may
determine[;
provided, however, that NFB shall not exercise any of its rights or remedies
with respect to Collateral until two business days after written notice of an
Event of Default or a Loan Event of Default has been provided to Pledgor;
provided, that no notice shall be required if a Loan Event of Default occurs
under Section 10(b)(iv) of the Note.
Pledgor acknowledges and agrees that (i) in the event NFB
wishes to sell all or a portion of the Collateral, upon the occurrence and
continuance of an Event of Default or a Loan
-3-
Event of Default, ten (10) days' prior written notice of such sale or sales
shall be reasonable and sufficient notice to Pledgor within the meaning of the
UCC; provided that no such prior notice shall be required in the event the
Collateral has declined or threatens to decline speedily in value or is of a
type customarily sold on a recognized market and (ii) in the event the
Collateral consists of investment securities maintained with a financial
intermediary or certificates of deposit maintained with any financial
institution, NFB may, at its option, immediately notify such financial
intermediary and/or financial institution to liquidate the Collateral and remit
the proceeds thereof directly to NFB. Pledgor hereby waives and releases any and
all right or equity of redemption, whether before or after sale hereunder. In
addition to the foregoing, NFB shall have all of the rights and remedies of a
secured party under applicable law and the UCC.
7. Proceeds of Collateral. The proceeds of any disposition under
this Agreement of the Collateral pledged to it by Pledgor shall be applied as
follows:
(a) First, to the payment of all costs, expenses and
charges of NFB and to the reimbursement of NFB for the prior payment of such
costs, expenses and charges incurred in connection with the care and safekeeping
of the Collateral (including, without limitation, the expenses of any sale or
any other disposition of any of the Collateral), the expenses of any taking,
reasonable attorneys' fees and expenses, court costs, any other expenses
incurred or expenditures or advances made by NFB in the protection, enforcement
or exercise of its rights, powers or remedies hereunder, with interest on any
such reimbursement at the Default Rate;
(b) Second, to the payment of the Guarantor Obligations,
in whole or in part, whether or not such Guarantor Obligations are then due;
(c) Third, to such persons, firms, corporations or other
entities as required by applicable law; and
(d) Fourth, to the extent of any surplus to Pledgor or as
a court of competent jurisdiction may direct.
NFB acknowledges that regardless of the order of the
application of the proceeds of the Collateral, Pledgor shall be liable only in
an amount equal to the lesser of (i) the aggregate original principal amount of
the Loans or (ii) the aggregate outstanding principal amount of the Loans, in
each case, made by Lender to Borrower based on Pledgor's Guarantor Collateral
Availability in accordance with the terms of the Guaranty. In the event that the
proceeds of any collection, recovery, receipt, appropriation, realization or
sale are insufficient to satisfy the Guarantor Obligations, Pledgor shall not be
liable for the deficiency.
8. Waiver of Marshaling. Pledgor hereby waives any right to
compel any marshaling of any of the Collateral.
9. No Waiver. Any and all of NFB's rights with respect to the
pledge, assignment and security interest granted hereunder shall continue
unimpaired, and Pledgor shall be and remain obligated in accordance with the
terms hereof, notwithstanding (a) the bankruptcy, insolvency or reorganization
of Pledgor, except as enforceability may be limited by applicable
-4-
Insolvency Law (as defined in the Guaranty), (b) the release or substitution of
any item of the Collateral at any time, or of any rights or interests therein,
or (c) subject to Section 15 of the Note, any delay, extension of time, renewal,
compromise or other indulgence granted by NFB in reference to any of the
Guarantor Obligations. Except to the extent set forth in the Note, Pledgor
hereby waives all notice of any such delay, extension, release, substitution,
renewal, compromise or other indulgence, and hereby consents to be bound hereby
as fully and effectively as if Pledgor had expressly agreed thereto in advance.
No delay or extension of time by NFB in exercising any power of sale, option or
other right or remedy hereunder, and no failure by NFB to give notice or make
demand, shall constitute a waiver thereof, or limit, impair or prejudice NFB's
right to take any action against Pledgor or to exercise any other power of sale,
option or any other right or remedy.
10. Intentionally Omitted.
11. NFB Appointed Attorney-In-Fact and Performance by NFB. Upon
the occurrence and during the continuance of an Event of Default or a Loan Event
of Default, Pledgor hereby irrevocably constitutes and appoints NFB as Pledgor's
true and lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and to do in Pledgor's name, place and
stead, all such acts, things and deeds for and on behalf of and in the name of
Pledgor, which Pledgor could or might do or which NFB may deem necessary,
desirable or convenient to accomplish the purposes of this Agreement, including,
without limitation, to execute such instruments of assignment or transfer or
orders and to register, convey or otherwise transfer title to the Collateral
into NFB's name. Pledgor hereby ratifies and confirms all that said
attorney-in-fact may so do and hereby declare this power of attorney to be
coupled with an interest and irrevocable. If Pledgor fails to perform any
agreement herein contained, NFB may itself perform or cause performance thereof.
12. Dividends and Interest. Notwithstanding the occurrence and
continuance of an Event of Default or a Loan Event of Default, dividends or
interest paid with respect to the Collateral shall be paid to the Pledgor, and
the Pledgor shall be entitled to collect and receive such amounts.
13. Captions. All captions in this Agreement are included herein
for convenience of reference only and shall not constitute part of this
Agreement for any other purpose.
14. Notices. All notices, requests, demands and other
communications provided for under this Agreement shall be in writing and shall
be (a) personally delivered, (b) sent by first class United States mail, (c)
sent by overnight courier of national reputation, or (d) transmitted by
telecopy, in each case addressed or telecopied to the party to whom notice is
being given at its address or telecopier number as set forth below:
(i) if to Pledgor, at c/o Innovation Investments, Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier:
▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.,
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
-5-
(ii) if to NFB, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Aris Haigian, Esq., Telecopier 212-245-3009;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 14. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The parties hereto
hereby (i) consent to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Agreement; (ii) waive any argument that venue in any
such forum is not convenient, (iii) agree that any litigation initiated by NFB
or Pledgor in connection with this Agreement shall be venued in the United
States District Court of the Southern District of New York and, to the extent
such venue cannot be obtained, in any court having situs within the County of
New York, State of New York; and (iv) agree that a final judgment in any such
suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
THE PLEDGOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE OF
PROCESS UPON THE PLEDGOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO PLEDGOR AT THE PLEDGOR'S ADDRESS SET FORTH IN
SECTION 14 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO
THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY OF THE COLLATERAL.
16. Miscellaneous.
(a) This Agreement, together with the Note, the Guaranty
and the definitions incorporated by reference herein from the Note and the
Guaranty, constitute the entire and final agreement among the parties with
respect to the subject matter hereof and may not be changed, terminated or
otherwise varied except by a writing duly executed by the parties hereto.
(b) No waiver of any term or condition of this Agreement,
whether by delay, omission or otherwise, shall be effective unless in writing
and signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
(c) In the event that any provision of this Agreement or
the application thereof
-6-
to Pledgor or any circumstance in any jurisdiction governing this Agreement
shall, to any extent, be invalid or unenforceable under any applicable statute,
regulation, or rule of law, such provision shall be deemed inoperative to the
extent that it may conflict therewith and shall be deemed modified to conform to
such statute, regulation or rule of law, and the remainder of this Agreement and
the application of any such invalid or unenforceable provision to parties,
jurisdictions, or circumstances other than to whom or to which it is held
invalid or unenforceable, shall not be affected thereby nor shall same affect
the validity or enforceability of any other provision of this Agreement.
(d) This Agreement shall be binding upon Pledgor, and
Pledgor's heirs, executors, administrators, successors and assigns, and shall
inure to the benefit of NFB and its successors and assigns. NFB may, with the
written consent of Pledgor (which shall not be unreasonably withheld), assign
this Agreement and the liens granted hereunder.
(e) This Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument. This Agreement may also be executed via facsimile, which shall be
deemed an original.
-7-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
NORTH FORK BANK
By: /s/
-------------------------------------
Name:
Title:
-8-
SCHEDULE A
Description of Collateral
The deposit account numbered 8016018650, established in the name of ▇▇▇▇
▇▇▇▇▇▇▇▇▇ at North Fork Bank (as it may be renumbered or retitled from time to
time and all funds and financial assets in such account).
STATE OF California )
ss.:
COUNTY OF San Francisco)
On the 21 day of March , 2002, before me personally came ▇▇▇▇
▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he
signed the foregoing instrument.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 26 day of March , 2002, before me personally came ▇▇▇▇▇▇▇
▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
the Senior Vice President of North Fork Bank, the corporation described in and
which executed the above instrument; and that he was authorized to sign his name
thereto on behalf of said corporation.
/s/ ▇▇▇▇▇▇ Cacemese
----------------------------------------
Notary Public
GUARANTY
(Individual)
New York, New York March 20, 2002
This Guaranty is executed in connection with that certain Promissory
Note dated as of the date hereof made by Scient, Inc. ("Borrower") in favor of
North Fork Bank (as assignee of Inmark Capital Corp.) ("NFB") (as amended,
modified, restated or supplemented from time to time, the "Note"). Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Note.
FOR VALUE RECEIVED, and in consideration of one or more Loans made from
time to time and at any time to or for the account of Borrower by NFB pursuant
to the Note, and for other good and valuable consideration, and to induce NFB to
make such Loans, the undersigned guarantor (the "Guarantor") unconditionally
guaranties to NFB, its successors, endorsees and assigns, the prompt payment
when due (whether by acceleration or otherwise) of the lesser of (i) the
aggregate original principal amount of the Loans or (ii) the aggregate
outstanding principal amount of the Loans, in each case, made to Borrower in
consideration of the Guarantor's Guarantor Collateral (the "Guarantor
Obligations"), irrespective of the genuineness, validity, regularity or
enforceability of such Guarantor Obligations, or of any instrument evidencing
any of the Guarantor Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Guarantor Obligations in any case
commenced by or against Borrower under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, including,
without limitation, obligations or indebtedness of Borrower for post-petition
interest, fees, costs and charges that would have accrued or been added to the
Guarantor Obligations but for the commencement of such case.
Notwithstanding anything contained in this Guaranty to the contrary,
the liability of the Guarantor hereunder shall in no event exceed the Guarantor
Obligations. Such limitation on liability shall not be affected by nor shall
anything herein contained be deemed to be a limitation of the amount of credit
which may be extended by NFB to Borrower, or the number of transactions between
NFB and Borrower, or the nature or amount of the obligations which may be
incurred by Borrower to NFB.
In furtherance of the foregoing, the Guarantor hereby agrees as
follows:
1. Limited Recourse to the Guarantor. Anything contained herein
to the contrary notwithstanding, other than the enforcement of NFB's rights with
respect to the Guarantor Collateral, NFB shall have no recourse against the
Guarantor or any spouse, heir, devisee, representative or agent of the Guarantor
nor shall the Guarantor or any spouse, heir, devisee, representative or agent of
the Guarantor be held personally liable for the payment of the Guarantor
Obligations or for any claim based thereon or otherwise in respect thereof or
for the payment and performance of any other obligation based on or in respect
of the Note. The enforcement of any judgment for breach by the Guarantor of its
obligations hereunder shall be limited to and made only against the Guarantor
Collateral.
2. No Impairment. This instrument shall be effective regardless
of the subsequent incorporation, merger or consolidation of Borrower, or any
change in the composition, nature, personnel or location of Borrower and shall
extend to any successor entity to Borrower, including a Borrower in possession
or the like under the United States Bankruptcy Code, as amended, or any other
federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors' rights generally (any of
the foregoing, an "Insolvency Law").
3. Guaranty Absolute. The Guarantor guarantees that the Guarantor
Obligations will be paid strictly in accordance with the terms of the Note
and/or any other Ancillary Agreement, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Borrower with respect thereto. The Guarantor acknowledges that (i)
no oral representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made by NFB to
induce the Guarantor to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions of the Note
and the other Ancillary Agreements. Subject to the limitations set forth in
Section 1 hereof, the liability of the Guarantor under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Note or
any other Ancillary Agreement or any assignment or transfer of any thereof, (b)
any lack of validity or enforceability of the Note or any other Ancillary
Agreement relating to the Guarantor Obligations or any assignment or transfer of
any thereof, (c) any furnishing of any additional security to NFB or its
assignees or any acceptance thereof or any release of any security by NFB or its
assignees, (d) any limitation on any party's liability or obligation under the
Note and the other Ancillary Agreements relating to the Guarantor Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such Ancillary Agreement or any term thereof, (e)
any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Borrower, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the Guarantor shall have notice or
knowledge of any of the foregoing, (f) any exchange, release or nonperfection of
any collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the Guarantor
Obligations, or (g) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Guarantor. If NFB is unable to
enforce its rights with respect to the Guarantor Collateral following the
occurrence of an Event of Default or Loan Event of Default as a result of any
legal proceeding (including, without limitation, a bankruptcy proceeding)
involving NFB, the Borrower, the Guarantor or any other guarantor, any amounts
due from the Guarantor to NFB shall bear interest until such amounts are paid in
full at the Default Rate. Guarantor Obligations include post-petition interest
whether or not allowed or allowable.
4. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. NFB shall be under no obligation to institute suit, exercise rights
or remedies or take any other action against Borrower or any other person or
entity liable with respect to any of the Guarantor
-2-
Obligations or resort to any collateral security held by NFB to secure any of
the Guarantor Obligations as a condition precedent to the Guarantor's being
obligated to perform as agreed herein and the Guarantor hereby waives any and
all rights which it may have by statute or otherwise which would require NFB to
do any of the foregoing. The Guarantor further consents and agrees that NFB
shall be under no obligation to marshal any assets in favor of the Guarantor.
The Guarantor hereby waives all suretyship defenses and any rights to interpose
any defense, counterclaim or offset of any nature and description which the
Guarantor may have or which may exist between and among NFB, Borrower and/or the
Guarantor with respect to the Guarantor's obligations under this Guaranty, or
which Borrower may assert on the underlying debt, including but not limited to
failure of consideration, breach of warranty, fraud, payment (other than cash
payment in full of the Obligations), statute of frauds, bankruptcy, infancy,
statute of limitations, accord and satisfaction, and usury.
(b) Subject to Section 9 hereof, the Guarantor further
waives to the fullest extent allowable under law (i) notice of the acceptance of
this Guaranty, of the making of any such loans or extensions of credit, and of
all notices and demands of any kind to which the Guarantor may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
Guarantor and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Guarantor Obligations, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort, provided, however, that NFB shall not exercise any of its
rights or remedies with respect to Guarantor Collateral until two business days
after written notice of an Event of Default or a Loan Event of Default has been
provided to Guarantor except that no such notice shall be required if a Loan
Event of Default arises under Section 10(b)(iv) of the Note.
(c) Notwithstanding any payment or payments made by the
Guarantor hereunder, or any setoff or application of funds of the Guarantor by
NFB, the Guarantor shall not be entitled to be subrogated to any of the rights
of NFB against Borrower or against any collateral or guarantee or right of
offset held by NFB for the payment of the Guarantor Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from
Borrower in respect of payments made by the Guarantor hereunder, until all
amounts owing to NFB by Borrower on account of the Obligations are indefeasibly
paid in full. If, notwithstanding the foregoing, any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all of the
Guarantor Obligations shall not have been paid in full and the Note and the
other Ancillary Agreements shall not have been terminated, such amount shall be
held by the Guarantor in trust for NFB, segregated from other funds of the
Guarantor, and shall forthwith upon, and in any event within two (2) business
days of, receipt by the Guarantor, be turned over to NFB in the exact form
received by the Guarantor (duly endorsed by the Guarantor to NFB, if required),
to be applied against the Guarantor Obligations, whether matured or unmatured,
in such order as NFB may determine, subject to the provisions of the Note and
the other Ancillary Agreements. Following the occurrence and during the
continuance of an Event of Default or Loan Event of Default with respect to the
Loans guaranteed by such Guarantor, any and all present and future debts and
obligations of Borrower to the Guarantor are hereby waived and postponed in
favor of, and subordinated to the full payment and performance of, all present
and future debts and obligations of Borrower to NFB.
-3-
5. Indemnity and Subrogation. If any payment is made by Guarantor
pursuant to or in connection with this Guaranty, Borrower shall indemnify
Guarantor for the full amount of such payment. If NFB enforces its rights with
respect to any of Guarantor's Guarantor Collateral pursuant to this Guaranty or
any other Ancillary Agreement, Borrower shall indemnify Guarantor for the fair
market value of such Guarantor Collateral. Guarantor shall not seek or be
entitled to exercise its rights to indemnification from Borrower until all
amounts owing to NFB on account of the Obligations are indefeasibly paid in full
and the Note and the other Ancillary Agreements have been terminated. Guarantor
shall be subrogated to the rights of NFB or other such Person to whom such
payment was made or the Person who enforced its rights with respect to such
Guarantor Collateral. Guarantor shall not enforce its rights or receive any
payments under this Section 5 nor shall Borrower make any payments to Guarantor
under this Section 5, until all amounts owing to NFB by Borrower on account of
the Obligations are indefeasibly paid in full and the Note and the other
Ancillary Agreements have been terminated. Upon payment in full to NFB of all
the Obligations, if requested by Guarantor, to the extent permitted by
applicable law, NFB agrees to assign and transfer jointly to Guarantor and each
other guarantor of the Loans who has made any payment to NFB under such
guarantor's guaranty of the Loans (without any representation or warranties
whatsoever and pursuant to documentation in form and substance satisfactory to
NFB) all of NFB's right, title, benefits and interests, whether contractual or
otherwise, under the Ancillary Agreements entered into by Borrower in favor of
NFB in respect of the Guarantor Obligations.
6. Representations and Warranties of the Guarantor. The Guarantor
hereby represents and warrants (all of which representations and warranties
shall survive until all Guarantor Obligations are indefeasibly satisfied in full
and the Ancillary Agreements have been irrevocably terminated), that:
(a) Legal Capacity. The Guarantor has full legal capacity
to execute and deliver this Guaranty and to perform the obligations of the
Guarantor under this Guaranty.
(b) Legal, Valid and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, except as enforceability may be limited by
applicable Insolvency Law.
(c) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law applicable to the
Guarantor or any material contract, agreement or instrument to which the
Guarantor is a party or by which the Guarantor or any property of the Guarantor
is bound or result in the creation or imposition of any mortgage, lien or other
encumbrance other than to NFB on any of the property or assets of the Guarantor
pursuant to the provisions of any of the foregoing.
(d) Consents or Approvals. No consent of any other person
or entity (including, without limitation, any creditor of the Guarantor) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty.
-4-
(e) Litigation. No litigation, arbitration, investigation
or administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the Guarantor, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting the
Guarantor, or any property or assets of the Guarantor, which, if adversely
determined, would have a material adverse effect on the Guarantor's Guarantor
Collateral.
(f) Financial Benefit. The Guarantor has derived or
expects to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Loan Documents or other Obligation
incurred by Borrower to NFB.
7. Covenant of the Borrower. Borrower shall not enter into any
written amendment or written waiver to the Note or any other Ancillary Agreement
without the consent of the Guarantor. Borrower's failure to comply with the
provisions of this Section 7 shall not affect in any manner whatsoever the
Guarantor's obligations to NFB hereunder.
8. Acceleration. If a notice of any lien, levy, or assessment is
filed of record with respect to any assets of the Guarantor by the United States
of America or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon any assets of the Guarantor in NFB's possession or
control, any and all Guarantor Obligations shall for purposes hereof, at NFB's
option, be deemed due and payable without notice notwithstanding that any such
Guarantor Obligation is not then due and payable by Borrower.
9. Notice of Defaults; Cure Rights.
(a) The Guarantor will promptly notify NFB of any default
by the Guarantor in the performance or observance of any term or condition of
any agreement to which the Guarantor is a party if the effect of such default is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an event
occurs, NFB shall have the right to accelerate the Guarantor Obligations.
(b) NFB will provide the Guarantor with a copy of any
written notice of any Event of Default or Loan Event of Default with respect to
the Loans guaranteed by such Guarantor simultaneously with the notice it sends
to the Borrower with respect to such Event of Default or Loan Event of Default.
(c) The Guarantor shall have the right, in its sole
discretion, to cure any Event of Default or Loan Event of Default within two
business days following its receipt of the notice provided to the Guarantor in
accordance with Section 9(b) above with respect to such Event of Default or Loan
Event of Default.
10. Payments from Guarantor. Upon the occurrence and during the
continuance of an Event of Default or a Loan Event of Default, NFB, in its sole
and absolute discretion, with or without notice to the Guarantor, may apply on
account of the Guarantor Obligations any amounts
-5-
realized from any security for the Guarantor Obligations, or may deposit any and
all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Guarantor Obligations.
11. No Termination. This is a continuing irrevocable guaranty and
shall remain in full force and effect and be binding upon the Guarantor, and the
Guarantor's heirs, administrators, executors, successors and assigns, until all
of the Guarantor Obligations have been indefeasibly paid in full and the Note
and the Ancillary Agreements have been irrevocably terminated. If any of the
present or future Guarantor Obligations are guarantied by persons, partnerships
or corporations in addition to the Guarantor, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of the Guarantor under this Guaranty. The death of the Guarantor
shall not effect a termination of this Guaranty and loans and advances made by
NFB and any indebtedness incurred by Borrower from NFB subsequent to such death
shall continue to constitute Guarantor Obligations guaranteed hereunder.
12. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if NFB receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by NFB, the Guarantor's obligations to NFB shall be
reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to NFB, which payment shall be
due on demand.
13. Books and Records. The books and records of NFB showing the
account between NFB and Borrower shall be admissible in evidence in any action
or proceeding, shall be binding upon the Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof absent manifest error.
14. No Waiver. No failure on the part of NFB to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by NFB of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to NFB or allowed it by law or other agreement shall be cumulative and
not exclusive of any other, and may be exercised by NFB at any time and from
time to time.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The Guarantor hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in any
such forum is not convenient, (iii) agrees that any litigation initiated by NFB
or the Guarantor in connection with this Guaranty shall be venued in the United
States District Court of the Southern District of New York and, to the extent
such venue cannot be obtained, in any court having situs within the County of
New York, State of New York; and (iv) agrees that a final
-6-
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. THE GUARANTOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS
THAT SERVICE OF PROCESS UPON THE GUARANTOR MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE
GUARANTOR'S ADDRESS SET FORTH IN SECTION 18 HEREOF, AND SERVICE SO MADE SHALL BE
DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED. THE GUARANTOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS GUARANTY, ANY OTHER ANCILLARY
AGREEMENT OR ANY OF THE GUARANTOR OBLIGATIONS.
16. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing executed by the
Guarantor and NFB.
18. Notice. All notices, requests, demands and other
communications provided for under this Guaranty shall be in writing and shall be
(a) personally delivered, (b) sent by first class United States mail, (c) sent
by overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to the Guarantor, at c/o Innovation Investments,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Esq., Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to NFB, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Aris Haigian, Esq., Telecopier 212-245-3009;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 18. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
-7-
19. Successors. NFB may, from time to time, without notice to the
Guarantor, sell, assign, transfer or otherwise dispose of all or any part of the
Guarantor Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, NFB may assign, or grant participations to, one or
more banks, financial institutions or other entities all or any part of any of
the Guarantor Obligations. In each such event, NFB, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Guarantor Obligations shall have the right to enforce this
Guaranty, by legal action or otherwise, for its own benefit as fully as if such
purchaser, assignee, transferee or holder were herein by name specifically given
such right.
20. Release. Nothing except cash payment in full of the Guarantor
Obligations shall release the Guarantor from liability under this Guaranty.
21. Counterparts; Facsimile. This Guaranty may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Guaranty may
also be executed via facsimile, which shall be deemed an original.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-8-
IN WITNESS WHEREOF, this Guaranty has been executed by the Guarantor as
of the day and year first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
AGREED:
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant
Title: CEO
-9-
STATE OF CALIFORNIA )
): ss.:
COUNTY OF SAN FRANCISCO)
On the 14 day of March, 2002, before me personally came ▇▇▇▇
▇▇▇▇▇▇▇▇▇ to me known, who being by me duly sworn, did depose and say that he
has read the foregoing instrument and is fully familiar with the contents
thereof; that he signed his name thereto of his own free will and volition.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 28 day of March, 2002, before me personally came ▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that
he is the Chief Executive Officer of Scient, Inc., the corporation described in
and which executed the above instrument; and that he signed his name thereto by
order of the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
-10-
ACCOUNT CONTROL AGREEMENT
-------------
MARCH 18, 2002
-------------
INMARK CAPITAL CORP., with an office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Creditor");
▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual with an address at ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor"); and
NORTH FORK BANK, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Bank")
hereby agree as follows:
P R E A M B L E
1. Bank and Pledgor have entered into a customer agreement (the "Customer
Agreement"), pursuant to which Bank has established deposit account
number 8016018593 in the name of Pledgor (as it may be renumbered or
retitled from time to time and all funds and financial assets in such
account, the "Account").
2. Pledgor and Creditor have entered into a Pledge and Security Agreement
dated as of the date hereof (as amended, modified and supplemented from
time to time, the "Security Agreement"), in which Pledgor has granted
Creditor a security interest in the Account.
3. Creditor, Pledgor and Bank are entering into this Agreement to provide
for the control of the Account and to perfect the security interest of
Creditor in the Account as more fully described in the Security
Agreement.
T E R M S
SECTION 1. THE ACCOUNT. Bank hereby represents and warrants to
Creditor and Pledgor that (i) the Account has been established in the name of
Pledgor as recited above, (ii) Bank maintains the Account for the Pledgor and
all property (including, without limitation, all funds and financial assets)
held by the Bank in the Account is, and will continue to be credited to the
Account and (iii) except for the claims and interest of Creditor and of Pledgor
in the Account, Bank does not know of any claim to or interest in the Account.
The Pledgor is (x) the Bank's customer with respect to the Account and (y) the
entitlement holder with respect to financial assets credited from time to time
to the Account.
SECTION 2. CONTROL. Bank will comply with all instructions
originated by Creditor concerning the Account without further consent by Pledgor
(any such instruction being an "Account Direction") except with respect to
instructions regarding the distribution of interest and dividends on the
property (including, without limitation, funds and financial assets) in the
Account.
SECTION 3. PLEDGOR'S RIGHTS IN THE ACCOUNT. Bank shall neither
accept nor comply with instructions from Pledgor for the withdrawal of any
assets from the Account nor deliver any such assets to Pledgor without the prior
written consent of Creditor; provided, however, the Bank shall, at all times,
distribute to the Pledgor all interest and dividends on property in the Account
as instructed by Pledgor and shall not comply with any Account Directions from
the Creditor with respect to such interest and dividends.
SECTION 4. PRIORITY OF LIEN. Bank hereby acknowledges that it
has received a copy of the Security Agreement, consents to the terms thereof and
recognizes the security interest granted therein to Creditor by Pledgor. Bank
hereby subordinates all liens, encumbrances, claims and rights of setoff it may
have against the Account and the proceeds thereof to the liens granted to
Creditor pursuant to the Security Agreement and acknowledges that, except for
(i) payment of routine deposit maintenance, wire transfer and other charges and
fees pursuant to the Customer Agreement (which shall be payable by Pledgor and
shall not be an obligation of Creditor) and (ii) reversal of provisional
credits, it will not assert any such lien, encumbrance, claim or right against
the Account.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE
CLAIMS. Bank will send copies of all statements, confirmations and other
correspondence concerning the Account simultaneously to each of Pledgor and
Creditor at the address set forth in the heading of this Agreement. If any
person or entity asserts any lien, encumbrance or adverse claim against the
Account, Bank will promptly notify Creditor and Pledgor thereof.
SECTION 6. RESPONSIBILITY OF BANK. Bank shall have no
responsibility or liability to Pledgor for complying with any Account Direction.
Neither this Agreement nor the Security Agreement imposes or creates any
obligation or duty of Bank, other than those expressly set forth herein. This
Agreement does not create any obligation on Bank except those expressly set
forth in this Agreement and in the Uniform Commercial Code of the State of New
York.
SECTION 7. TAX REPORTING. All items of income, gain, expense
and loss recognized in the Account shall be reported to the Internal Revenue
Service and all state and local taxing authorities under the name and taxpayer
identification number of Pledgor.
SECTION 8. CUSTOMER AGREEMENT. This Agreement supplements the
Customer Agreement. In the event of a conflict between this Agreement and the
Customer Agreement, the terms of this Agreement will prevail. Regardless of any
provision in the Customer Agreement, New York shall be deemed to be the Bank's
location for the purposes of this Agreement and the perfection and priority of
Creditor's security interest in the Account.
-2-
SECTION 9. TERMINATION. The rights and powers granted herein to
Creditor have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by the
bankruptcy of Pledgor nor by the lapse of time. The obligations of Bank under
Sections 2, 3, 4 and 5 above shall continue in effect until the security
interest of Creditor in the Account has been terminated pursuant to the terms of
the Security Agreement and Creditor has notified Bank of such termination in
writing. Upon receipt of such notice, the obligations of Bank under Sections 2,
3, 4 and 5 above with respect to the operation and maintenance of the Account
after the receipt of such notice shall terminate, Creditor shall have no further
right to originate instructions concerning the Account and Bank make take such
steps as Pledgor may request to vest full ownership and control of the Account
in Pledgor, including, but not limited to, removing the name of Creditor from
the Account or transferring all of the assets in the Account to another account
in the name of Pledgor or its designee.
SECTION 10. THIS AGREEMENT. This Agreement and the agreements
and instruments required to be executed and delivered hereunder set forth the
entire agreement of the parties with respect to the subject matter hereof and
supersede and discharge all prior agreements (written or oral) and negotiations
and all contemporaneous oral agreements concerning such subject matter and
negotiations. There are no oral conditions precedent to the effectiveness of
this Agreement.
SECTION 11. AMENDMENTS. No amendment, modification or termination
of this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in
this Agreement shall be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held invalid or unenforceable,
shall be construed in all respects as if such invalid or unenforceable term or
provision were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. Creditor may assign this Agreement to North
Fork Bank without the written consent of Pledgor.
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in
the singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 15. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party
-3-
at the address set forth next to such parties' name at the heading of this
Agreement. Any party may change its address for notices in the manner set forth
above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The parties agree that the
State of New York is the "bank's jurisdiction" for purposes of the Uniform
Commercial Code of the State of New York.
SECTION 18. EXCULPATION AND INDEMNIFICATION. The parties hereto
agree that Bank shall not be liable for any action taken by it or any of its
directors, officers, agents or employees in accordance with this Agreement,
including, without limitation, any action taken at the request of the Creditor,
except for the gross negligence or willful misconduct of Bank.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, AS PLEDGOR
INMARK CAPITAL CORP., AS CREDITOR
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
NORTH FORK BANK, AS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
-4-
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), made as of this
18 day of March, 2002 by and between Inmark Capital Corp., a New York
corporation ("Inmark") and ▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual residing at ▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor").
BACKGROUND
Inmark has made loans or otherwise extended credit to Scient, Inc., a
Delaware corporation ("Borrower"). Borrower has executed a Promissory Note (the
"Note") dated as of the date hereof in favor of Inmark. Pledgor has executed and
delivered to Inmark a Guaranty dated as of the date hereof (as amended, modified
and supplemented from time to time, the "Guaranty") pursuant to which Pledgor
guaranteed to Inmark the payment and performance of all of the Guarantor
Obligations (as defined in the Guaranty).
In order to induce Inmark to provide the financial accommodations
described in the Note and to secure Pledgor's obligations to Inmark under the
Guaranty, Pledgor has agreed to pledge and grant a security interest in
collateral described herein to Inmark on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. All capitalized terms used herein which are not
defined shall have the meanings assigned to them in the Note.
2. Pledge and Grant of Security Interest.
To secure the full and punctual payment and performance of the
Guarantor Obligations, Pledgor hereby assigns, transfers, pledges, hypothecates
and grants to Inmark a security interest in the personal property described on
Schedule A annexed hereto and all substitutions therefor and in all proceeds
thereof (excluding any interest or dividends paid with respect thereto) in any
form (collectively, the "Collateral").
3. Representations and Warranties of Pledgor. Pledgor represents
and warrants to Inmark (which representations and warranties shall be deemed to
continue to be made until all of the Guarantor Obligations have been paid in
full) that:
(a) The execution, delivery and performance by Pledgor of
this Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule or
regulation applicable to Pledgor.
(b) This Agreement constitutes the legal, valid, and
binding obligation of Pledgor enforceable against Pledgor in accordance with its
terms, except as enforceability may
be limited by applicable Insolvency Law (as defined in the Guaranty).
(c) No consent or approval of any person, corporation,
governmental body, regulatory authority or other entity, is or will be necessary
for the execution, delivery and performance of this Agreement or the exercise by
Inmark of any rights with respect to the Collateral or for the pledge and
assignment of, and the grant of a security interest in, the Collateral
hereunder.
(d) There are no pending or, to the best of Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
Collateral.
(e) Pledgor has the requisite power and authority to
enter into this Agreement and to pledge and assign the Collateral to Inmark in
accordance with the terms of this Agreement.
(f) Pledgor owns each item of the Collateral and except
for the pledge and security interest granted to Inmark hereunder, the Collateral
is free and clear of any other security interest, pledge, claim, lien, charge,
hypothecation, assignment, offset or encumbrance whatsoever.
(g) The pledge and assignment of the Collateral and the
grant of a security interest under this Agreement vest in Inmark all rights of
Pledgor in the Collateral as contemplated by this Agreement.
4. Affirmative Covenants. Until such time as all of the Guarantor
Obligations have been paid in full, Pledgor shall:
(a) Defend the Collateral against the claims and demands
of all other parties and keep the Collateral free from all security interests
and other encumbrances, except for the security interest granted to Inmark under
this Agreement.
(b) Subject to Section 11 hereof, in the event Pledgor
comes into possession of any portion of the Collateral, hold the same in trust
for Inmark and deliver to Inmark such Collateral in the form received no later
than one (1) Business Day following Pledgor's receipt thereof.
(c) In the event any portion of the Collateral is held by
a third party, (i) take all action that Inmark may reasonably request so as to
maintain the validity, enforceability, perfection and priority of Inmark's
security interest in the Collateral and (ii) cause such third party to send
copies of all statements, confirmations and other correspondence concerning the
Collateral simultaneously to each of Pledgor and Inmark.
(d) Within two (2) Business Days of receipt thereof by
Pledgor, deliver to Inmark all notices and statements relating to the Collateral
received by Pledgor or any third party holding the Collateral.
-2-
(e) Notify Inmark promptly of any adverse event relating
to the Collateral.
(f) At the written request of Inmark at any time and from
time to time, at Pledgor's sole expense, promptly take such action and execute
and deliver such financing statements and further instruments and documents as
Inmark may reasonably request in order to more fully perfect, evidence or
effectuate the pledge and assignment hereunder and the security interest granted
hereby and to enable Inmark to exercise and enforce its rights and remedies
hereunder. Pledgor authorizes Inmark to file without the signature of Pledgor
one or more financing or continuation statements under the Uniform Commercial
Code of the State of New York (the "UCC") relating to the Collateral, naming
Inmark as "secured party."
(g) Furnish to Inmark such other information relating to
the Collateral as Inmark may from time to time reasonably request.
5. Negative Covenants. Until such time as the Guarantor
Obligations have been paid in full, Pledgor shall not sell, convey, or otherwise
dispose of any of the Collateral or any interest therein or incur or permit to
exist any pledge, mortgage, lien, charge, encumbrance or any security interest
whatsoever with respect to any of the Collateral or the proceeds thereof other
than that created hereby.
6. Remedies.
Subject to Section 9 of the Guaranty, upon the occurrence and
during the continuance of an Event of Default or a Loan Event of Default related
to the Loans made to Borrower in consideration of Pledgor's Guarantor
Collateral, Inmark may:
(i) Demand, collect, receipt for, settle,
compromise, adjust, ▇▇▇ for, foreclose or realize upon the Collateral pledged to
it by Pledgor hereunder (or any part thereof), as Inmark may determine in its
sole discretion;
(ii) Transfer the Collateral into its name or
into the name of its nominee or nominees;
(iii) Subject to the requirements of applicable
law, sell, assign and deliver the whole or, from time to time any part of the
Collateral, with or without demand, advertisement or notice of the time or place
of sale or adjournment thereof or otherwise (all of which are hereby waived,
except such notice as is required by applicable law and cannot be waived), for
such price or prices and on such terms as Inmark in its sole discretion may
determine[;
provided, however, that Inmark shall not exercise any of its rights or remedies
with respect to Collateral until two business days after written notice of an
Event of Default or a Loan Event of Default has been provided to Pledgor;
provided, that no notice shall be required if a Loan Event of Default occurs
under Section 10(b)(iv) of the Note.
-3-
Pledgor acknowledges and agrees that (i) in the event Inmark
wishes to sell all or a portion of the Collateral, upon the occurrence and
continuance of an Event of Default or a Loan Event of Default, ten (10) days'
prior written notice of such sale or sales shall be reasonable and sufficient
notice to Pledgor within the meaning of the UCC; provided that no such prior
notice shall be required in the event the Collateral has declined or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market and (ii) in the event the Collateral consists of investment securities
maintained with a financial intermediary or certificates of deposit maintained
with any financial institution, Inmark may, at its option, immediately notify
such financial intermediary and/or financial institution to liquidate the
Collateral and remit the proceeds thereof directly to Inmark. Pledgor hereby
waives and releases any and all right or equity of redemption, whether before or
after sale hereunder. In addition to the foregoing, Inmark shall have all of the
rights and remedies of a secured party under applicable law and the UCC.
7. Proceeds of Collateral. The proceeds of any disposition under
this Agreement of the Collateral pledged to it by Pledgor shall be applied as
follows:
(a) First, to the payment of all costs, expenses and
charges of Inmark and to the reimbursement of Inmark for the prior payment of
such costs, expenses and charges incurred in connection with the care and
safekeeping of the Collateral (including, without limitation, the expenses of
any sale or any other disposition of any of the Collateral), the expenses of any
taking, reasonable attorneys' fees and expenses, court costs, any other expenses
incurred or expenditures or advances made by Inmark in the protection,
enforcement or exercise of its rights, powers or remedies hereunder, with
interest on any such reimbursement at the Default Rate;
(b) Second, to the payment of the Guarantor Obligations,
in whole or in part, whether or not such Guarantor Obligations are then due;
(c) Third, to such persons, firms, corporations or other
entities as required by applicable law; and
(d) Fourth, to the extent of any surplus to Pledgor or as
a court of competent jurisdiction may direct.
Inmark acknowledges that regardless of the order of the
application of the proceeds of the Collateral, Pledgor shall be liable only in
an amount equal to the lesser of (i) the aggregate original principal amount of
the Loans or (ii) the aggregate outstanding principal amount of the Loans, in
each case, made by Lender to Borrower based on Pledgor's Guarantor Collateral
Availability in accordance with the terms of the Guaranty. In the event that the
proceeds of any collection, recovery, receipt, appropriation, realization or
sale are insufficient to satisfy the Guarantor Obligations, Pledgor shall not be
liable for the deficiency.
8. Waiver of Marshaling. Pledgor hereby waives any right to
compel any marshaling of any of the Collateral.
9. No Waiver. Any and all of Inmark's rights with respect to the
pledge, assignment
-4-
and security interest granted hereunder shall continue unimpaired, and Pledgor
shall be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of Pledgor,
except as enforceability may be limited by applicable Insolvency Law (as defined
in the Guaranty), (b) the release or substitution of any item of the Collateral
at any time, or of any rights or interests therein, or (c) subject to Section 15
of the Note, any delay, extension of time, renewal, compromise or other
indulgence granted by Inmark in reference to any of the Guarantor Obligations.
Except to the extent set forth in the Note, Pledgor hereby waives all notice of
any such delay, extension, release, substitution, renewal, compromise or other
indulgence, and hereby consents to be bound hereby as fully and effectively as
if Pledgor had expressly agreed thereto in advance. No delay or extension of
time by Inmark in exercising any power of sale, option or other right or remedy
hereunder, and no failure by Inmark to give notice or make demand, shall
constitute a waiver thereof, or limit, impair or prejudice Inmark's right to
take any action against Pledgor or to exercise any other power of sale, option
or any other right or remedy.
10. Intentionally Omitted.
11. Inmark Appointed Attorney-In-Fact and Performance by Inmark.
Upon the occurrence and during the continuance of an Event of Default or a Loan
Event of Default, Pledgor hereby irrevocably constitutes and appoints Inmark as
Pledgor's true and lawful attorney-in-fact, with full power of substitution, to
execute, acknowledge and deliver any instruments and to do in Pledgor's name,
place and stead, all such acts, things and deeds for and on behalf of and in the
name of Pledgor, which Pledgor could or might do or which Inmark may deem
necessary, desirable or convenient to accomplish the purposes of this Agreement,
including, without limitation, to execute such instruments of assignment or
transfer or orders and to register, convey or otherwise transfer title to the
Collateral into Inmark's name. Pledgor hereby ratifies and confirms all that
said attorney-in-fact may so do and hereby declare this power of attorney to be
coupled with an interest and irrevocable. If Pledgor fails to perform any
agreement herein contained, Inmark may itself perform or cause performance
thereof.
12. Dividends and Interest. Notwithstanding the occurrence and
continuance of an Event of Default or a Loan Event of Default, dividends or
interest paid with respect to the Collateral shall be paid to the Pledgor, and
the Pledgor shall be entitled to collect and receive such amounts.
13. Captions. All captions in this Agreement are included herein
for convenience of reference only and shall not constitute part of this
Agreement for any other purpose.
14. Notices. All notices, requests, demands and other
communications provided for under this Agreement shall be in writing and shall
be (a) personally delivered, (b) sent by first class United States mail, (c)
sent by overnight courier of national reputation, or (d) transmitted by
telecopy, in each case addressed or telecopied to the party to whom notice is
being given at its address or telecopier number as set forth below:
(i) if to Pledgor, at c/o Scient, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to Shearman &
Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
-▇-
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to Inmark, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 14. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The parties hereto
hereby (i) consent to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Agreement; (ii) waive any argument that venue in any
such forum is not convenient, (iii) agree that any litigation initiated by
Inmark or Pledgor in connection with this Agreement shall be venued in the
United States District Court of the Southern District of New York and, to the
extent such venue cannot be obtained, in any court having situs within the
County of New York, State of New York; and (iv) agree that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. THE PLEDGOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE OF
PROCESS UPON THE PLEDGOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO PLEDGOR AT THE PLEDGOR'S ADDRESS SET FORTH IN
SECTION 14 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO
THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY OF THE COLLATERAL.
16. Miscellaneous.
(a) This Agreement, together with the Note, the Guaranty
and the definitions incorporated by reference herein from the Note and the
Guaranty, constitute the entire and final agreement among the parties with
respect to the subject matter hereof and may not be changed, terminated or
otherwise varied except by a writing duly executed by the parties hereto.
-6-
(b) No waiver of any term or condition of this Agreement,
whether by delay, omission or otherwise, shall be effective unless in writing
and signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
(c) In the event that any provision of this Agreement or
the application thereof to Pledgor or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation, or rule of law, such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of this Agreement and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or circumstances other than
to whom or to which it is held invalid or unenforceable, shall not be affected
thereby nor shall same affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement shall be binding upon Pledgor, and
Pledgor's heirs, executors, administrators, successors and assigns, and shall
inure to the benefit of Inmark and its successors and assigns. Inmark may, with
the written consent of Pledgor (which shall not be unreasonably withheld),
assign this Agreement and the liens granted hereunder; provided, however, that
Inmark may assign this Agreement and the liens granted hereunder to North Fork
Bank without the consent of Pledgor.
(e) This Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument. This Agreement may also be executed via facsimile, which shall be
deemed an original.
[Signature Page to Follow]
-7-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
INMARK CAPITAL CORP.
By: /s/ MILES ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: MILES ▇. ▇▇▇▇▇▇▇
Title: President
-8-
SCHEDULE A
Description of Collateral
The deposit account numbered 8016018593, established in the name of ▇▇▇▇▇▇ ▇.
▇▇▇▇ at North Fork Bank (as it may be renumbered or retitled from time to time
and all funds and financial assets in such account).
STATE OF NEW YORK)
ss.:
COUNTY OF NEW YORK)
On the 14th day of March , 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that s/he
signed the foregoing instrument.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 15 day of March , 2002, before me personally came
Miles ▇. ▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say
that he is the President of Inmark Capital Corp., the corporation described in
and which executed the above instrument; and that he was authorized to sign his
name thereto on behalf of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇▇ ▇▇▇▇▇▇
GUARANTY
(Individual)
New York, New York March 18, 2002
This Guaranty is executed in connection with that certain Promissory
Note dated as of the date hereof made by Scient, Inc. ("Borrower") in favor of
Inmark Capital Corp. ("Inmark") (as amended, modified, restated or supplemented
from time to time, the "Note"). Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Note.
FOR VALUE RECEIVED, and in consideration of one or more Loans made from
time to time and at any time to or for the account of Borrower by Inmark
pursuant to the Note, and for other good and valuable consideration, and to
induce Inmark to make such Loans, the undersigned guarantor (the "Guarantor")
unconditionally guaranties to Inmark, its successors, endorsees and assigns, the
prompt payment when due (whether by acceleration or otherwise) of the lesser of
(i) the aggregate original principal amount of the Loans or (ii) the aggregate
outstanding principal amount of the Loans, in each case, made to Borrower in
consideration of the Guarantor's Guarantor Collateral (the "Guarantor
Obligations"), irrespective of the genuineness, validity, regularity or
enforceability of such Guarantor Obligations, or of any instrument evidencing
any of the Guarantor Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Guarantor Obligations in any case
commenced by or against Borrower under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, including,
without limitation, obligations or indebtedness of Borrower for post-petition
interest, fees, costs and charges that would have accrued or been added to the
Guarantor Obligations but for the commencement of such case.
Notwithstanding anything contained in this Guaranty to the contrary,
the liability of the Guarantor hereunder shall in no event exceed the Guarantor
Obligations. Such limitation on liability shall not be affected by nor shall
anything herein contained be deemed to be a limitation of the amount of credit
which may be extended by Inmark to Borrower, or the number of transactions
between Inmark and Borrower, or the nature or amount of the obligations which
may be incurred by Borrower to Inmark.
In furtherance of the foregoing, the Guarantor hereby agrees as
follows:
1. Limited Recourse to the Guarantor. Anything contained herein
to the contrary notwithstanding, other than the enforcement of Inmark's rights
with respect to the Guarantor Collateral, Inmark shall have no recourse against
the Guarantor or any spouse, heir, devisee, representative or agent of the
Guarantor nor shall the Guarantor or any spouse, heir, devisee, representative
or agent of the Guarantor be held personally liable for the payment of the
Guarantor Obligations or for any claim based thereon or otherwise in respect
thereof or for the payment and performance of any other obligation based on or
in respect of the Note. The enforcement of any judgment for breach by the
Guarantor of its obligations hereunder shall be limited to and made only against
the Guarantor Collateral.
2. No Impairment. This instrument shall be effective regardless
of the subsequent incorporation, merger or consolidation of Borrower, or any
change in the composition, nature, personnel or location of Borrower and shall
extend to any successor entity to Borrower, including a Borrower in possession
or the like under the United States Bankruptcy Code, as amended, or any other
federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors' rights generally (any of
the foregoing, an "Insolvency Law").
3. Guaranty Absolute. The Guarantor guarantees that the Guarantor
Obligations will be paid strictly in accordance with the terms of the Note
and/or any other Ancillary Agreement, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Borrower with respect thereto. The Guarantor acknowledges that (i)
no oral representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made by Inmark to
induce the Guarantor to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions of the Note
and the other Ancillary Agreements. Subject to the limitations set forth in
Section 1 hereof, the liability of the Guarantor under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Note or
any other Ancillary Agreement or any assignment or transfer of any thereof, (b)
any lack of validity or enforceability of the Note or any other Ancillary
Agreement relating to the Guarantor Obligations or any assignment or transfer of
any thereof, (c) any furnishing of any additional security to Inmark or its
assignees or any acceptance thereof or any release of any security by Inmark or
its assignees, (d) any limitation on any party's liability or obligation under
the Note and the other Ancillary Agreements relating to the Guarantor
Obligations or any assignment or transfer of any thereof or any invalidity or
unenforceability, in whole or in part, of any such Ancillary Agreement or any
term thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Borrower, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding, whether or not the Guarantor
shall have notice or knowledge of any of the foregoing, (f) any exchange,
release or nonperfection of any collateral, or any release, or amendment or
waiver of or consent to departure from any guaranty or security, for all or any
of the Guarantor Obligations, or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the Guarantor.
If Inmark is unable to enforce its rights with respect to the Guarantor
Collateral following the occurrence of an Event of Default or Loan Event of
Default as a result of any legal proceeding (including, without limitation, a
bankruptcy proceeding) involving Inmark, the Borrower, the Guarantor or any
other guarantor, any amounts due from the Guarantor to Inmark shall bear
interest until such amounts are paid in full at the Default Rate. Guarantor
Obligations include post-petition interest whether or not allowed or allowable.
4. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. Inmark shall be under no obligation to institute suit, exercise
rights or remedies or take any other
-2-
action against Borrower or any other person or entity liable with respect to any
of the Guarantor Obligations or resort to any collateral security held by Inmark
to secure any of the Guarantor Obligations as a condition precedent to the
Guarantor's being obligated to perform as agreed herein and the Guarantor hereby
waives any and all rights which it may have by statute or otherwise which would
require Inmark to do any of the foregoing. The Guarantor further consents and
agrees that Inmark shall be under no obligation to marshal any assets in favor
of the Guarantor. The Guarantor hereby waives all suretyship defenses and any
rights to interpose any defense, counterclaim or offset of any nature and
description which the Guarantor may have or which may exist between and among
Inmark, Borrower and/or the Guarantor with respect to the Guarantor's
obligations under this Guaranty, or which Borrower may assert on the underlying
debt, including but not limited to failure of consideration, breach of warranty,
fraud, payment (other than cash payment in full of the Obligations), statute of
frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction,
and usury.
(b) Subject to Section 9 hereof, the Guarantor further
waives to the fullest extent allowable under law (i) notice of the acceptance of
this Guaranty, of the making of any such loans or extensions of credit, and of
all notices and demands of any kind to which the Guarantor may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
Guarantor and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Guarantor Obligations, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort, provided, however, that Inmark shall not exercise any of
its rights or remedies with respect to Guarantor Collateral until two business
days after written notice of an Event of Default or a Loan Event of Default has
been provided to Guarantor except that no such notice shall be required if a
Loan Event of Default arises under Section 10(b)(iv) of the Note.
(c) Notwithstanding any payment or payments made by the
Guarantor hereunder, or any setoff or application of funds of the Guarantor by
Inmark, the Guarantor shall not be entitled to be subrogated to any of the
rights of Inmark against Borrower or against any collateral or guarantee or
right of offset held by Inmark for the payment of the Guarantor Obligations, nor
shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from Borrower in respect of payments made by the Guarantor
hereunder, until all amounts owing to Inmark by Borrower on account of the
Obligations are indefeasibly paid in full. If, notwithstanding the foregoing,
any amount shall be paid to the Guarantor on account of such subrogation rights
at any time when all of the Guarantor Obligations shall not have been paid in
full and the Note and the other Ancillary Agreements shall not have been
terminated, such amount shall be held by the Guarantor in trust for Inmark,
segregated from other funds of the Guarantor, and shall forthwith upon, and in
any event within two (2) business days of, receipt by the Guarantor, be turned
over to Inmark in the exact form received by the Guarantor (duly endorsed by the
Guarantor to Inmark, if required), to be applied against the Guarantor
Obligations, whether matured or unmatured, in such order as Inmark may
determine, subject to the provisions of the Note and the other Ancillary
Agreements. Following the occurrence and during the continuance of an Event of
Default or Loan Event of Default with respect to the Loans guaranteed by such
Guarantor, any and all present and future debts and obligations of Borrower
-3-
to the Guarantor are hereby waived and postponed in favor of, and subordinated
to the full payment and performance of, all present and future debts and
obligations of Borrower to Inmark.
5. Indemnity and Subrogation. If any payment is made by Guarantor
pursuant to or in connection with this Guaranty, Borrower shall indemnify
Guarantor for the full amount of such payment. If Inmark enforces its rights
with respect to any of Guarantor's Guarantor Collateral pursuant to this
Guaranty or any other Ancillary Agreement, Borrower shall indemnify Guarantor
for the fair market value of such Guarantor Collateral. Guarantor shall not seek
or be entitled to exercise its rights to indemnification from Borrower until all
amounts owing to Inmark on account of the Obligations are indefeasibly paid in
full and the Note and the other Ancillary Agreements have been terminated.
Guarantor shall be subrogated to the rights of Inmark or other such Person to
whom such payment was made or the Person who enforced its rights with respect to
such Guarantor Collateral. Guarantor shall not enforce its rights or receive any
payments under this Section 5 nor shall Borrower make any payments to Guarantor
under this Section 5, until all amounts owing to Inmark by Borrower on account
of the Obligations are indefeasibly paid in full and the Note and the other
Ancillary Agreements have been terminated. Upon payment in full to Inmark of all
the Obligations, if requested by Guarantor, to the extent permitted by
applicable law, Inmark agrees to assign and transfer jointly to Guarantor and
each other guarantor of the Loans who has made any payment to Inmark under such
guarantor's guaranty of the Loans (without any representation or warranties
whatsoever and pursuant to documentation in form and substance satisfactory to
Inmark) all of Inmark's right, title, benefits and interests, whether
contractual or otherwise, under the Ancillary Agreements entered into by
Borrower in favor of Inmark in respect of the Guarantor Obligations.
6. Representations and Warranties of the Guarantor. The Guarantor
hereby represents and warrants (all of which representations and warranties
shall survive until all Guarantor Obligations are indefeasibly satisfied in full
and the Ancillary Agreements have been irrevocably terminated), that:
(a) Legal Capacity. The Guarantor has full legal capacity
to execute and deliver this Guaranty and to perform the obligations of the
Guarantor under this Guaranty.
(b) Legal, Valid and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, except as enforceability may be limited by
applicable Insolvency Law.
(c) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law applicable to the
Guarantor or any material contract, agreement or instrument to which the
Guarantor is a party or by which the Guarantor or any property of the Guarantor
is bound or result in the creation or imposition of any mortgage, lien or other
encumbrance other than to Inmark on any of the property or assets of the
Guarantor pursuant to the provisions of any of the foregoing.
(d) Consents or Approvals. No consent of any other person
or entity (including, without limitation, any creditor of the Guarantor) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or
-4-
declaration with, any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty.
(e) Litigation. No litigation, arbitration, investigation
or administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the Guarantor, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting the
Guarantor, or any property or assets of the Guarantor, which, if adversely
determined, would have a material adverse effect on the Guarantor's Guarantor
Collateral.
(f) Financial Benefit. The Guarantor has derived or
expects to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Loan Documents or other Obligation
incurred by Borrower to Inmark.
7. Covenant of the Borrower. Borrower shall not enter into any
written amendment or written waiver to the Note or any other Ancillary Agreement
without the consent of the Guarantor. Borrower's failure to comply with the
provisions of this Section 7 shall not affect in any manner whatsoever the
Guarantor's obligations to Inmark hereunder.
8. Acceleration. If a notice of any lien, levy, or assessment is
filed of record with respect to any assets of the Guarantor by the United States
of America or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon any assets of the Guarantor in Inmark's possession or
control, any and all Guarantor Obligations shall for purposes hereof, at
Inmark's option, be deemed due and payable without notice notwithstanding that
any such Guarantor Obligation is not then due and payable by Borrower.
9. Notice of Defaults; Cure Rights.
(a) The Guarantor will promptly notify Inmark of any
default by the Guarantor in the performance or observance of any term or
condition of any agreement to which the Guarantor is a party if the effect of
such default is to cause, or permit the holder of any obligation under such
agreement to cause, such obligation to become due prior to its stated maturity
and, if such an event occurs, Inmark shall have the right to accelerate the
Guarantor Obligations.
(b) Inmark will provide the Guarantor with a copy of any
written notice of any Event of Default or Loan Event of Default with respect to
the Loans guaranteed by such Guarantor simultaneously with the notice it sends
to the Borrower with respect to such Event of Default or Loan Event of Default.
(c) The Guarantor shall have the right, in its sole
discretion, to cure any Event of Default or Loan Event of Default within two
business days following its receipt of the notice provided to the Guarantor in
accordance with Section 9(b) above with respect to such Event of Default or Loan
Event of Default.
-5-
10. Payments from Guarantor. Upon the occurrence and during the
continuance of an Event of Default or a Loan Event of Default, Inmark, in its
sole and absolute discretion, with or without notice to the Guarantor, may apply
on account of the Guarantor Obligations any amounts realized from any security
for the Guarantor Obligations, or may deposit any and all such amounts realized
in a non-interest bearing cash collateral deposit account to be maintained as
security for the Guarantor Obligations.
11. No Termination. This is a continuing irrevocable guaranty and
shall remain in full force and effect and be binding upon the Guarantor, and the
Guarantor's heirs, administrators, executors, successors and assigns, until all
of the Guarantor Obligations have been indefeasibly paid in full and the Note
and the Ancillary Agreements have been irrevocably terminated. If any of the
present or future Guarantor Obligations are guarantied by persons, partnerships
or corporations in addition to the Guarantor, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of the Guarantor under this Guaranty. The death of the Guarantor
shall not effect a termination of this Guaranty and loans and advances made by
Inmark and any indebtedness incurred by Borrower from Inmark subsequent to such
death shall continue to constitute Guarantor Obligations guaranteed hereunder.
12. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if Inmark receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Inmark, the Guarantor's obligations to Inmark shall
be reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to Inmark, which payment shall be
due on demand.
13. Books and Records. The books and records of Inmark showing the
account between Inmark and Borrower shall be admissible in evidence in any
action or proceeding, shall be binding upon the Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof absent manifest error.
14. No Waiver. No failure on the part of Inmark to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by Inmark of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to Inmark or allowed it by law or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by Inmark at any time and
from time to time.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The Guarantor hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in
-6-
any such forum is not convenient, (iii) agrees that any litigation initiated by
Inmark or the Guarantor in connection with this Guaranty shall be venued in the
United States District Court of the Southern District of New York and, to the
extent such venue cannot be obtained, in any court having situs within the
County of New York, State of New York; and (iv) agrees that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. THE GUARANTOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE
OF PROCESS UPON THE GUARANTOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE GUARANTOR'S ADDRESS
SET FORTH IN SECTION 18 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED
FIVE (5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE GUARANTOR
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR
PERTAINING TO THIS GUARANTY, ANY OTHER ANCILLARY AGREEMENT OR ANY OF THE
GUARANTOR OBLIGATIONS.
16. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing executed by the
Guarantor and Inmark.
18. Notice. All notices, requests, demands and other
communications provided for under this Guaranty shall be in writing and shall be
(a) personally delivered, (b) sent by first class United States mail, (c) sent
by overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to the Guarantor, at c/o Scient, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to Inmark, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 18. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
-7-
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
19. Successors. Inmark may, from time to time, without notice to
the Guarantor, sell, assign, transfer or otherwise dispose of all or any part of
the Guarantor Obligations and/or rights under this Guaranty. Without limiting
the generality of the foregoing, Inmark may assign, or grant participations to,
one or more banks, financial institutions or other entities all or any part of
any of the Guarantor Obligations. In each such event, Inmark, its Affiliates and
each and every immediate and successive purchaser, assignee, transferee or
holder of all or any part of the Guarantor Obligations shall have the right to
enforce this Guaranty, by legal action or otherwise, for its own benefit as
fully as if such purchaser, assignee, transferee or holder were herein by name
specifically given such right.
20. Release. Nothing except cash payment in full of the Guarantor
Obligations shall release the Guarantor from liability under this Guaranty.
21. Counterparts; Facsimile. This Guaranty may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Guaranty may
also be executed via facsimile, which shall be deemed an original.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-8-
IN WITNESS WHEREOF, this Guaranty has been executed by the Guarantor as
of the day and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
AGREED:
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice Chairman
-▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
): ss.:
COUNTY OF NEW YORK)
On the 14th day of March, 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇ to me known, who being by me duly sworn, did depose and say that he resides
at ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, that he has read the
foregoing instrument and is fully familiar with the contents thereof; that he
signed his name thereto of his own free will and volition.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK)
On the 14th day of March, 2002, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is
the Vice Chairman of Scient, Inc., the corporation described in and which
executed the above instrument; and that he signed his name thereto by order of
the board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
-10-
ACCOUNT CONTROL AGREEMENT
---------------
MARCH 18, 2002
---------------
INMARK CAPITAL CORP., with an office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Creditor");
▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual with an address at ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor"); and
NORTH FORK BANK, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Bank")
hereby agree as follows:
P R E A M B L E
1. Bank and Pledgor have entered into a customer agreement (the "Customer
Agreement"), pursuant to which Bank has established deposit account
number 8016018593 in the name of Pledgor (as it may be renumbered or
retitled from time to time and all funds and financial assets in such
account, the "Account").
2. Pledgor and Creditor have entered into a Pledge and Security Agreement
dated as of the date hereof (as amended, modified and supplemented from
time to time, the "Security Agreement"), in which Pledgor has granted
Creditor a security interest in the Account.
3. Creditor, Pledgor and Bank are entering into this Agreement to provide
for the control of the Account and to perfect the security interest of
Creditor in the Account as more fully described in the Security
Agreement.
T E R M S
SECTION 1. THE ACCOUNT. Bank hereby represents and warrants to
Creditor and Pledgor that (i) the Account has been established in the name of
Pledgor as recited above, (ii) Bank maintains the Account for the Pledgor and
all property (including, without limitation, all funds and financial assets)
held by the Bank in the Account is, and will continue to be credited to the
Account and (iii) except for the claims and interest of Creditor and of Pledgor
in the Account, Bank does not know of any claim to or interest in the Account.
The Pledgor is (x) the Bank's customer with respect to the Account and (y) the
entitlement holder with respect to financial assets credited from time to time
to the Account.
SECTION 2. CONTROL. Bank will comply with all instructions
originated by Creditor concerning the Account without further consent by Pledgor
(any such instruction being an "Account Direction") except with respect to
instructions regarding the distribution of interest and dividends on the
property (including, without limitation, funds and financial assets) in the
Account.
SECTION 3. PLEDGOR'S RIGHTS IN THE ACCOUNT. Bank shall neither
accept nor comply with instructions from Pledgor for the withdrawal of any
assets from the Account nor deliver any such assets to Pledgor without the prior
written consent of Creditor; provided, however, the Bank shall, at all times,
distribute to the Pledgor all interest and dividends on property in the Account
as instructed by Pledgor and shall not comply with any Account Directions from
the Creditor with respect to such interest and dividends.
SECTION 4. PRIORITY OF LIEN. Bank hereby acknowledges that it
has received a copy of the Security Agreement, consents to the terms thereof and
recognizes the security interest granted therein to Creditor by Pledgor. Bank
hereby subordinates all liens, encumbrances, claims and rights of setoff it may
have against the Account and the proceeds thereof to the liens granted to
Creditor pursuant to the Security Agreement and acknowledges that, except for
(i) payment of routine deposit maintenance, wire transfer and other charges and
fees pursuant to the Customer Agreement (which shall be payable by Pledgor and
shall not be an obligation of Creditor) and (ii) reversal of provisional
credits, it will not assert any such lien, encumbrance, claim or right against
the Account.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE
CLAIMS. Bank will send copies of all statements, confirmations and other
correspondence concerning the Account simultaneously to each of Pledgor and
Creditor at the address set forth in the heading of this Agreement. If any
person or entity asserts any lien, encumbrance or adverse claim against the
Account, Bank will promptly notify Creditor and Pledgor thereof.
SECTION 6. RESPONSIBILITY OF BANK. Bank shall have no
responsibility or liability to Pledgor for complying with any Account Direction.
Neither this Agreement nor the Security Agreement imposes or creates any
obligation or duty of Bank, other than those expressly set forth herein. This
Agreement does not create any obligation on Bank except those expressly set
forth in this Agreement and in the Uniform Commercial Code of the State of New
York.
SECTION 7. TAX REPORTING. All items of income, gain, expense and
loss recognized in the Account shall be reported to the Internal Revenue Service
and all state and local taxing authorities under the name and taxpayer
identification number of Pledgor.
SECTION 8. CUSTOMER AGREEMENT. This Agreement supplements the
Customer Agreement. In the event of a conflict between this Agreement and the
Customer Agreement, the terms of this Agreement will prevail. Regardless of any
provision in the Customer Agreement, New York shall be deemed to be the Bank's
location for the purposes of this Agreement and the perfection and priority of
Creditor's security interest in the Account.
-2-
SECTION 9. TERMINATION. The rights and powers granted herein to
Creditor have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by the
bankruptcy of Pledgor nor by the lapse of time. The obligations of Bank under
Sections 2, 3, 4 and 5 above shall continue in effect until the security
interest of Creditor in the Account has been terminated pursuant to the terms of
the Security Agreement and Creditor has notified Bank of such termination in
writing. Upon receipt of such notice, the obligations of Bank under Sections 2,
3, 4 and 5 above with respect to the operation and maintenance of the Account
after the receipt of such notice shall terminate, Creditor shall have no further
right to originate instructions concerning the Account and Bank make take such
steps as Pledgor may request to vest full ownership and control of the Account
in Pledgor, including, but not limited to, removing the name of Creditor from
the Account or transferring all of the assets in the Account to another account
in the name of Pledgor or its designee.
SECTION 10. THIS AGREEMENT. This Agreement and the agreements and
instruments required to be executed and delivered hereunder set forth the entire
agreement of the parties with respect to the subject matter hereof and supersede
and discharge all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
SECTION 11. AMENDMENTS. No amendment, modification or termination
of this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in
this Agreement shall be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held invalid or unenforceable,
shall be construed in all respects as if such invalid or unenforceable term or
provision were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. Creditor may assign this Agreement to North
Fork Bank without the written consent of Pledgor.
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in
the singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 15. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party
-3-
at the address set forth next to such parties' name at the heading of this
Agreement. Any party may change its address for notices in the manner set forth
above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The parties agree that the
State of New York is the "bank's jurisdiction" for purposes of the Uniform
Commercial Code of the State of New York.
SECTION 18. EXCULPATION AND INDEMNIFICATION. The parties hereto
agree that Bank shall not be liable for any action taken by it or any of its
directors, officers, agents or employees in accordance with this Agreement,
including, without limitation, any action taken at the request of the Creditor,
except for the gross negligence or willful misconduct of Bank.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, AS PLEDGOR
INMARK CAPITAL CORP., AS CREDITOR
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
NORTH FORK BANK, AS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
-4-
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), made as of this
18 day of March, 2002 by and between Inmark Capital Corp., a New York
corporation ("Inmark") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual residing at ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor").
BACKGROUND
Inmark has made loans or otherwise extended credit to Scient, Inc., a
Delaware corporation ("Borrower"). Borrower has executed a Promissory Note (the
"Note") dated as of the date hereof in favor of Inmark. Pledgor has executed and
delivered to Inmark a Guaranty dated as of the date hereof (as amended, modified
and supplemented from time to time, the "Guaranty") pursuant to which Pledgor
guaranteed to Inmark the payment and performance of all of the Guarantor
Obligations (as defined in the Guaranty).
In order to induce Inmark to provide the financial accommodations
described in the Note and to secure Pledgor's obligations to Inmark under the
Guaranty, Pledgor has agreed to pledge and grant a security interest in
collateral described herein to Inmark on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. All capitalized terms used herein which are not
defined shall have the meanings assigned to them in the Note.
2. Pledge and Grant of Security Interest.
To secure the full and punctual payment and performance of the
Guarantor Obligations, Pledgor hereby assigns, transfers, pledges, hypothecates
and grants to Inmark a security interest in the personal property described on
Schedule A annexed hereto and all substitutions therefor and in all proceeds
thereof (excluding any interest or dividends paid with respect thereto) in any
form (collectively, the "Collateral").
3. Representations and Warranties of Pledgor. Pledgor represents
and warrants to Inmark (which representations and warranties shall be deemed to
continue to be made until all of the Guarantor Obligations have been paid in
full) that:
(a) The execution, delivery and performance by Pledgor of
this Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation of any agreement, indenture, instrument, license,
judgment, decree, order, law, statute, ordinance or other governmental rule or
regulation applicable to Pledgor.
(b) This Agreement constitutes the legal, valid, and
binding obligation of Pledgor enforceable against Pledgor in accordance with its
terms, except as enforceability may
be limited by applicable Insolvency Law (as defined in the Guaranty).
(c) No consent or approval of any person, corporation,
governmental body, regulatory authority or other entity, is or will be necessary
for the execution, delivery and performance of this Agreement or the exercise by
Inmark of any rights with respect to the Collateral or for the pledge and
assignment of, and the grant of a security interest in, the Collateral
hereunder.
(d) There are no pending or, to the best of Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
Collateral.
(e) Pledgor has the requisite power and authority to
enter into this Agreement and to pledge and assign the Collateral to Inmark in
accordance with the terms of this Agreement.
(f) Pledgor owns each item of the Collateral and except
for the pledge and security interest granted to Inmark hereunder, the Collateral
is free and clear of any other security interest, pledge, claim, lien, charge,
hypothecation, assignment, offset or encumbrance whatsoever.
(g) The pledge and assignment of the Collateral and the
grant of a security interest under this Agreement vest in Inmark all rights of
Pledgor in the Collateral as contemplated by this Agreement.
4. Affirmative Covenants. Until such time as all of the Guarantor
Obligations have been paid in full, Pledgor shall:
(a) Defend the Collateral against the claims and demands
of all other parties and keep the Collateral free from all security interests
and other encumbrances, except for the security interest granted to Inmark under
this Agreement.
(b) Subject to Section 11 hereof, in the event Pledgor
comes into possession of any portion of the Collateral, hold the same in trust
for Inmark and deliver to Inmark such Collateral in the form received no later
than one (1) Business Day following Pledgor's receipt thereof.
(c) In the event any portion of the Collateral is held by
a third party, (i) take all action that Inmark may reasonably request so as to
maintain the validity, enforceability, perfection and priority of Inmark's
security interest in the Collateral and (ii) cause such third party to send
copies of all statements, confirmations and other correspondence concerning the
Collateral simultaneously to each of Pledgor and Inmark.
(d) Within two (2) Business Days of receipt thereof by
Pledgor, deliver to Inmark all notices and statements relating to the Collateral
received by Pledgor or any third party holding the Collateral.
-2-
(e) Notify Inmark promptly of any adverse event relating
to the Collateral.
(f) At the written request of Inmark at any time and from
time to time, at Pledgor's sole expense, promptly take such action and execute
and deliver such financing statements and further instruments and documents as
Inmark may reasonably request in order to more fully perfect, evidence or
effectuate the pledge and assignment hereunder and the security interest granted
hereby and to enable Inmark to exercise and enforce its rights and remedies
hereunder. Pledgor authorizes Inmark to file without the signature of Pledgor
one or more financing or continuation statements under the Uniform Commercial
Code of the State of New York (the "UCC") relating to the Collateral, naming
Inmark as "secured party."
(g) Furnish to Inmark such other information relating to
the Collateral as Inmark may from time to time reasonably request.
5. Negative Covenants. Until such time as the Guarantor
Obligations have been paid in full, Pledgor shall not sell, convey, or otherwise
dispose of any of the Collateral or any interest therein or incur or permit to
exist any pledge, mortgage, lien, charge, encumbrance or any security interest
whatsoever with respect to any of the Collateral or the proceeds thereof other
than that created hereby.
6. Remedies.
Subject to Section 9 of the Guaranty, upon the occurrence and
during the continuance of an Event of Default or a Loan Event of Default related
to the Loans made to Borrower in consideration of Pledgor's Guarantor
Collateral, Inmark may:
(i) Demand, collect, receipt for, settle,
compromise, adjust, ▇▇▇ for, foreclose or realize upon the Collateral pledged to
it by Pledgor hereunder (or any part thereof), as Inmark may determine in its
sole discretion;
(ii) Transfer the Collateral into its name or
into the name of its nominee or nominees;
(iii) Subject to the requirements of applicable
law, sell, assign and deliver the whole or, from time to time any part of the
Collateral, with or without demand, advertisement or notice of the time or place
of sale or adjournment thereof or otherwise (all of which are hereby waived,
except such notice as is required by applicable law and cannot be waived), for
such price or prices and on such terms as Inmark in its sole discretion may
determine[;
provided, however, that Inmark shall not exercise any of its rights or remedies
with respect to Collateral until two business days after written notice of an
Event of Default or a Loan Event of Default has been provided to Pledgor;
provided, that no notice shall be required if a Loan Event of Default occurs
under Section 10(b)(iv) of the Note.
-3-
Pledgor acknowledges and agrees that (i) in the event Inmark
wishes to sell all or a portion of the Collateral, upon the occurrence and
continuance of an Event of Default or a Loan Event of Default, ten (10) days'
prior written notice of such sale or sales shall be reasonable and sufficient
notice to Pledgor within the meaning of the UCC; provided that no such prior
notice shall be required in the event the Collateral has declined or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market and (ii) in the event the Collateral consists of investment securities
maintained with a financial intermediary or certificates of deposit maintained
with any financial institution, Inmark may, at its option, immediately notify
such financial intermediary and/or financial institution to liquidate the
Collateral and remit the proceeds thereof directly to Inmark. Pledgor hereby
waives and releases any and all right or equity of redemption, whether before or
after sale hereunder. In addition to the foregoing, Inmark shall have all of the
rights and remedies of a secured party under applicable law and the UCC.
7. Proceeds of Collateral. The proceeds of any disposition under
this Agreement of the Collateral pledged to it by Pledgor shall be applied as
follows:
(a) First, to the payment of all costs, expenses and
charges of Inmark and to the reimbursement of Inmark for the prior payment of
such costs, expenses and charges incurred in connection with the care and
safekeeping of the Collateral (including, without limitation, the expenses of
any sale or any other disposition of any of the Collateral), the expenses of any
taking, reasonable attorneys' fees and expenses, court costs, any other expenses
incurred or expenditures or advances made by Inmark in the protection,
enforcement or exercise of its rights, powers or remedies hereunder, with
interest on any such reimbursement at the Default Rate;
(b) Second, to the payment of the Guarantor Obligations,
in whole or in part, whether or not such Guarantor Obligations are then due;
(c) Third, to such persons, firms, corporations or other
entities as required by applicable law; and
(d) Fourth, to the extent of any surplus to Pledgor or as
a court of competent jurisdiction may direct.
Inmark acknowledges that regardless of the order of the
application of the proceeds of the Collateral, Pledgor shall be liable only in
an amount equal to the lesser of (i) the aggregate original principal amount of
the Loans or (ii) the aggregate outstanding principal amount of the Loans, in
each case, made by Lender to Borrower based on Pledgor's Guarantor Collateral
Availability in accordance with the terms of the Guaranty. In the event that the
proceeds of any collection, recovery, receipt, appropriation, realization or
sale are insufficient to satisfy the Guarantor Obligations, Pledgor shall not be
liable for the deficiency.
8. Waiver of Marshaling. Pledgor hereby waives any right to
compel any marshaling of any of the Collateral.
9. No Waiver. Any and all of Inmark's rights with respect to the
pledge, assignment
-4-
and security interest granted hereunder shall continue unimpaired, and Pledgor
shall be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of Pledgor,
except as enforceability may be limited by applicable Insolvency Law (as defined
in the Guaranty), (b) the release or substitution of any item of the Collateral
at any time, or of any rights or interests therein, or (c) subject to Section 15
of the Note, any delay, extension of time, renewal, compromise or other
indulgence granted by Inmark in reference to any of the Guarantor Obligations.
Except to the extent set forth in the Note, Pledgor hereby waives all notice of
any such delay, extension, release, substitution, renewal, compromise or other
indulgence, and hereby consents to be bound hereby as fully and effectively as
if Pledgor had expressly agreed thereto in advance. No delay or extension of
time by Inmark in exercising any power of sale, option or other right or remedy
hereunder, and no failure by Inmark to give notice or make demand, shall
constitute a waiver thereof, or limit, impair or prejudice Inmark's right to
take any action against Pledgor or to exercise any other power of sale, option
or any other right or remedy.
10. Intentionally Omitted.
11. Inmark Appointed Attorney-In-Fact and Performance by Inmark.
Upon the occurrence and during the continuance of an Event of Default or a Loan
Event of Default, Pledgor hereby irrevocably constitutes and appoints Inmark as
Pledgor's true and lawful attorney-in-fact, with full power of substitution, to
execute, acknowledge and deliver any instruments and to do in Pledgor's name,
place and stead, all such acts, things and deeds for and on behalf of and in the
name of Pledgor, which Pledgor could or might do or which Inmark may deem
necessary, desirable or convenient to accomplish the purposes of this Agreement,
including, without limitation, to execute such instruments of assignment or
transfer or orders and to register, convey or otherwise transfer title to the
Collateral into Inmark's name. Pledgor hereby ratifies and confirms all that
said attorney-in-fact may so do and hereby declare this power of attorney to be
coupled with an interest and irrevocable. If Pledgor fails to perform any
agreement herein contained, Inmark may itself perform or cause performance
thereof.
12. Dividends and Interest. Notwithstanding the occurrence and
continuance of an Event of Default or a Loan Event of Default, dividends or
interest paid with respect to the Collateral shall be paid to the Pledgor, and
the Pledgor shall be entitled to collect and receive such amounts.
13. Captions. All captions in this Agreement are included herein
for convenience of reference only and shall not constitute part of this
Agreement for any other purpose.
14. Notices. All notices, requests, demands and other
communications provided for under this Agreement shall be in writing and shall
be (a) personally delivered, (b) sent by first class United States mail, (c)
sent by overnight courier of national reputation, or (d) transmitted by
telecopy, in each case addressed or telecopied to the party to whom notice is
being given at its address or telecopier number as set forth below:
(i) if to Pledgor, at c/o Scient, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
-▇-
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇;
and
(ii) if to Inmark, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 14. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Agreement shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The parties hereto
hereby (i) consent to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Agreement; (ii) waive any argument that venue in any
such forum is not convenient, (iii) agree that any litigation initiated by
Inmark or Pledgor in connection with this Agreement shall be venued in the
United States District Court of the Southern District of New York and, to the
extent such venue cannot be obtained, in any court having situs within the
County of New York, State of New York; and (iv) agree that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. THE PLEDGOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE OF
PROCESS UPON THE PLEDGOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO PLEDGOR AT THE PLEDGOR'S ADDRESS SET FORTH IN
SECTION 14 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE PARTIES WAIVE ANY
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO
THIS AGREEMENT, ANY OF THE OBLIGATIONS OR ANY OF THE COLLATERAL.
16. Miscellaneous.
(a) This Agreement, together with the Note, the Guaranty
and the definitions incorporated by reference herein from the Note and the
Guaranty, constitute the entire and final agreement among the parties with
respect to the subject matter hereof and may not be changed, terminated or
otherwise varied except by a writing duly executed by the parties hereto.
(b) No waiver of any term or condition of this Agreement,
whether by delay, omission or otherwise, shall be effective unless in writing
and signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
-6-
(c) In the event that any provision of this Agreement or
the application thereof to Pledgor or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation, or rule of law, such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of this Agreement and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or circumstances other than
to whom or to which it is held invalid or unenforceable, shall not be affected
thereby nor shall same affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement shall be binding upon Pledgor, and
Pledgor's heirs, executors, administrators, successors and assigns, and shall
inure to the benefit of Inmark and its successors and assigns. Inmark may, with
the written consent of Pledgor (which shall not be unreasonably withheld),
assign this Agreement and the liens granted hereunder; provided, however, that
Inmark may assign this Agreement and the liens granted hereunder to North Fork
Bank without the consent of Pledgor.
(e) This Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument. This Agreement may also be executed via facsimile, which shall be
deemed an original.
[Signature Page to Follow]
-7-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
INMARK CAPITAL CORP.
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
-8-
SCHEDULE A
Description of Collateral
The deposit account numbered 8016018601, established in the name of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ at North Fork Bank (as it may be renumbered or retitled from time to
time and all funds and financial assets in such account).
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 14th day of March , 2002, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that
s/he signed the foregoing instrument.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 15th day of March , 2002, before me personally came Miles ▇.
▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that he is
the President of Inmark Capital Corp., the corporation described in and which
executed the above instrument; and that he was authorized to sign his name
thereto on behalf of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Notary Public
GUARANTY
(Individual)
New York, New York March 18, 2002
This Guaranty is executed in connection with that certain Promissory
Note dated as of the date hereof made by Scient, Inc. ("Borrower") in favor of
Inmark Capital Corp. ("Inmark") (as amended, modified, restated or supplemented
from time to time, the "Note"). Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Note.
FOR VALUE RECEIVED, and in consideration of one or more Loans made from
time to time and at any time to or for the account of Borrower by Inmark
pursuant to the Note, and for other good and valuable consideration, and to
induce Inmark to make such Loans, the undersigned guarantor (the "Guarantor")
unconditionally guaranties to Inmark, its successors, endorsees and assigns, the
prompt payment when due (whether by acceleration or otherwise) of the lesser of
(i) the aggregate original principal amount of the Loans or (ii) the aggregate
outstanding principal amount of the Loans, in each case, made to Borrower in
consideration of the Guarantor's Guarantor Collateral (the "Guarantor
Obligations"), irrespective of the genuineness, validity, regularity or
enforceability of such Guarantor Obligations, or of any instrument evidencing
any of the Guarantor Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Guarantor Obligations in any case
commenced by or against Borrower under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, including,
without limitation, obligations or indebtedness of Borrower for post-petition
interest, fees, costs and charges that would have accrued or been added to the
Guarantor Obligations but for the commencement of such case.
Notwithstanding anything contained in this Guaranty to the contrary,
the liability of the Guarantor hereunder shall in no event exceed the Guarantor
Obligations. Such limitation on liability shall not be affected by nor shall
anything herein contained be deemed to be a limitation of the amount of credit
which may be extended by Inmark to Borrower, or the number of transactions
between Inmark and Borrower, or the nature or amount of the obligations which
may be incurred by Borrower to Inmark.
In furtherance of the foregoing, the Guarantor hereby agrees as
follows:
1. Limited Recourse to the Guarantor. Anything contained herein
to the contrary notwithstanding, other than the enforcement of Inmark's rights
with respect to the Guarantor Collateral, Inmark shall have no recourse against
the Guarantor or any spouse, heir, devisee, representative or agent of the
Guarantor nor shall the Guarantor or any spouse, heir, devisee, representative
or agent of the Guarantor be held personally liable for the payment of the
Guarantor Obligations or for any claim based thereon or otherwise in respect
thereof or for the payment and performance of any other obligation based on or
in respect of the Note. The enforcement of any judgment for breach by the
Guarantor of its obligations hereunder shall be limited to and made only against
the Guarantor Collateral.
2. No Impairment. This instrument shall be effective regardless
of the subsequent incorporation, merger or consolidation of Borrower, or any
change in the composition, nature, personnel or location of Borrower and shall
extend to any successor entity to Borrower, including a Borrower in possession
or the like under the United States Bankruptcy Code, as amended, or any other
federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors' rights generally (any of
the foregoing, an "Insolvency Law").
3. Guaranty Absolute. The Guarantor guarantees that the Guarantor
Obligations will be paid strictly in accordance with the terms of the Note
and/or any other Ancillary Agreement, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Borrower with respect thereto. The Guarantor acknowledges that (i)
no oral representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made by Inmark to
induce the Guarantor to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions of the Note
and the other Ancillary Agreements. Subject to the limitations set forth in
Section 1 hereof, the liability of the Guarantor under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Note or
any other Ancillary Agreement or any assignment or transfer of any thereof, (b)
any lack of validity or enforceability of the Note or any other Ancillary
Agreement relating to the Guarantor Obligations or any assignment or transfer of
any thereof, (c) any furnishing of any additional security to Inmark or its
assignees or any acceptance thereof or any release of any security by Inmark or
its assignees, (d) any limitation on any party's liability or obligation under
the Note and the other Ancillary Agreements relating to the Guarantor
Obligations or any assignment or transfer of any thereof or any invalidity or
unenforceability, in whole or in part, of any such Ancillary Agreement or any
term thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Borrower, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding, whether or not the Guarantor
shall have notice or knowledge of any of the foregoing, (f) any exchange,
release or nonperfection of any collateral, or any release, or amendment or
waiver of or consent to departure from any guaranty or security, for all or any
of the Guarantor Obligations, or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the Guarantor.
If Inmark is unable to enforce its rights with respect to the Guarantor
Collateral following the occurrence of an Event of Default or Loan Event of
Default as a result of any legal proceeding (including, without limitation, a
bankruptcy proceeding) involving Inmark, the Borrower, the Guarantor or any
other guarantor, any amounts due from the Guarantor to Inmark shall bear
interest until such amounts are paid in full at the Default Rate. Guarantor
Obligations include post-petition interest whether or not allowed or allowable.
4. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. Inmark shall be under no obligation to institute suit, exercise
rights or remedies or take any other
-2-
action against Borrower or any other person or entity liable with respect to any
of the Guarantor Obligations or resort to any collateral security held by Inmark
to secure any of the Guarantor Obligations as a condition precedent to the
Guarantor's being obligated to perform as agreed herein and the Guarantor hereby
waives any and all rights which it may have by statute or otherwise which would
require Inmark to do any of the foregoing. The Guarantor further consents and
agrees that Inmark shall be under no obligation to marshal any assets in favor
of the Guarantor. The Guarantor hereby waives all suretyship defenses and any
rights to interpose any defense, counterclaim or offset of any nature and
description which the Guarantor may have or which may exist between and among
Inmark, Borrower and/or the Guarantor with respect to the Guarantor's
obligations under this Guaranty, or which Borrower may assert on the underlying
debt, including but not limited to failure of consideration, breach of warranty,
fraud, payment (other than cash payment in full of the Obligations), statute of
frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction,
and usury.
(b) Subject to Section 9 hereof, the Guarantor further
waives to the fullest extent allowable under law (i) notice of the acceptance of
this Guaranty, of the making of any such loans or extensions of credit, and of
all notices and demands of any kind to which the Guarantor may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
Guarantor and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Guarantor Obligations, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort, provided, however, that Inmark shall not exercise any of
its rights or remedies with respect to Guarantor Collateral until two business
days after written notice of an Event of Default or a Loan Event of Default has
been provided to Guarantor except that no such notice shall be required if a
Loan Event of Default arises under Section 10(b)(iv) of the Note.
(c) Notwithstanding any payment or payments made by the
Guarantor hereunder, or any setoff or application of funds of the Guarantor by
Inmark, the Guarantor shall not be entitled to be subrogated to any of the
rights of Inmark against Borrower or against any collateral or guarantee or
right of offset held by Inmark for the payment of the Guarantor Obligations, nor
shall the Guarantor seek or be entitled to seek any contribution or
reimbursement from Borrower in respect of payments made by the Guarantor
hereunder, until all amounts owing to Inmark by Borrower on account of the
Obligations are indefeasibly paid in full. If, notwithstanding the foregoing,
any amount shall be paid to the Guarantor on account of such subrogation rights
at any time when all of the Guarantor Obligations shall not have been paid in
full and the Note and the other Ancillary Agreements shall not have been
terminated, such amount shall be held by the Guarantor in trust for Inmark,
segregated from other funds of the Guarantor, and shall forthwith upon, and in
any event within two (2) business days of, receipt by the Guarantor, be turned
over to Inmark in the exact form received by the Guarantor (duly endorsed by the
Guarantor to Inmark, if required), to be applied against the Guarantor
Obligations, whether matured or unmatured, in such order as Inmark may
determine, subject to the provisions of the Note and the other Ancillary
Agreements. Following the occurrence and during the continuance of an Event of
Default or Loan Event of Default with respect to the Loans guaranteed by such
Guarantor, any and all present and future debts and obligations of Borrower
-3-
to the Guarantor are hereby waived and postponed in favor of, and subordinated
to the full payment and performance of, all present and future debts and
obligations of Borrower to Inmark.
5. Indemnity and Subrogation. If any payment is made by Guarantor
pursuant to or in connection with this Guaranty, Borrower shall indemnify
Guarantor for the full amount of such payment. If Inmark enforces its rights
with respect to any of Guarantor's Guarantor Collateral pursuant to this
Guaranty or any other Ancillary Agreement, Borrower shall indemnify Guarantor
for the fair market value of such Guarantor Collateral. Guarantor shall not seek
or be entitled to exercise its rights to indemnification from Borrower until all
amounts owing to Inmark on account of the Obligations are indefeasibly paid in
full and the Note and the other Ancillary Agreements have been terminated.
Guarantor shall be subrogated to the rights of Inmark or other such Person to
whom such payment was made or the Person who enforced its rights with respect to
such Guarantor Collateral. Guarantor shall not enforce its rights or receive any
payments under this Section 5 nor shall Borrower make any payments to Guarantor
under this Section 5, until all amounts owing to Inmark by Borrower on account
of the Obligations are indefeasibly paid in full and the Note and the other
Ancillary Agreements have been terminated. Upon payment in full to Inmark of all
the Obligations, if requested by Guarantor, to the extent permitted by
applicable law, Inmark agrees to assign and transfer jointly to Guarantor and
each other guarantor of the Loans who has made any payment to Inmark under such
guarantor's guaranty of the Loans (without any representation or warranties
whatsoever and pursuant to documentation in form and substance satisfactory to
Inmark) all of Inmark's right, title, benefits and interests, whether
contractual or otherwise, under the Ancillary Agreements entered into by
Borrower in favor of Inmark in respect of the Guarantor Obligations.
6. Representations and Warranties of the Guarantor. The Guarantor
hereby represents and warrants (all of which representations and warranties
shall survive until all Guarantor Obligations are indefeasibly satisfied in full
and the Ancillary Agreements have been irrevocably terminated), that:
(a) Legal Capacity. The Guarantor has full legal capacity
to execute and deliver this Guaranty and to perform the obligations of the
Guarantor under this Guaranty.
(b) Legal, Valid and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, except as enforceability may be limited by
applicable Insolvency Law.
(c) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law applicable to the
Guarantor or any material contract, agreement or instrument to which the
Guarantor is a party or by which the Guarantor or any property of the Guarantor
is bound or result in the creation or imposition of any mortgage, lien or other
encumbrance other than to Inmark on any of the property or assets of the
Guarantor pursuant to the provisions of any of the foregoing.
(d) Consents or Approvals. No consent of any other person
or entity (including, without limitation, any creditor of the Guarantor) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or
-4-
declaration with, any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Guaranty.
(e) Litigation. No litigation, arbitration, investigation
or administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the Guarantor, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting the
Guarantor, or any property or assets of the Guarantor, which, if adversely
determined, would have a material adverse effect on the Guarantor's Guarantor
Collateral.
(f) Financial Benefit. The Guarantor has derived or
expects to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Loan Documents or other Obligation
incurred by Borrower to Inmark.
7. Covenant of the Borrower. Borrower shall not enter into any
written amendment or written waiver to the Note or any other Ancillary Agreement
without the consent of the Guarantor. Borrower's failure to comply with the
provisions of this Section 7 shall not affect in any manner whatsoever the
Guarantor's obligations to Inmark hereunder.
8. Acceleration. If a notice of any lien, levy, or assessment is
filed of record with respect to any assets of the Guarantor by the United States
of America or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon any assets of the Guarantor in Inmark's possession or
control, any and all Guarantor Obligations shall for purposes hereof, at
Inmark's option, be deemed due and payable without notice notwithstanding that
any such Guarantor Obligation is not then due and payable by Borrower.
9. Notice of Defaults; Cure Rights.
(a) The Guarantor will promptly notify Inmark of any
default by the Guarantor in the performance or observance of any term or
condition of any agreement to which the Guarantor is a party if the effect of
such default is to cause, or permit the holder of any obligation under such
agreement to cause, such obligation to become due prior to its stated maturity
and, if such an event occurs, Inmark shall have the right to accelerate the
Guarantor Obligations.
(b) Inmark will provide the Guarantor with a copy of any
written notice of any Event of Default or Loan Event of Default with respect to
the Loans guaranteed by such Guarantor simultaneously with the notice it sends
to the Borrower with respect to such Event of Default or Loan Event of Default.
(c) The Guarantor shall have the right, in its sole
discretion, to cure any Event of Default or Loan Event of Default within two
business days following its receipt of the notice provided to the Guarantor in
accordance with Section 9(b) above with respect to such Event of Default or Loan
Event of Default.
-5-
10. Payments from Guarantor. Upon the occurrence and during the
continuance of an Event of Default or a Loan Event of Default, Inmark, in its
sole and absolute discretion, with or without notice to the Guarantor, may apply
on account of the Guarantor Obligations any amounts realized from any security
for the Guarantor Obligations, or may deposit any and all such amounts realized
in a non-interest bearing cash collateral deposit account to be maintained as
security for the Guarantor Obligations.
11. No Termination. This is a continuing irrevocable guaranty and
shall remain in full force and effect and be binding upon the Guarantor, and the
Guarantor's heirs, administrators, executors, successors and assigns, until all
of the Guarantor Obligations have been indefeasibly paid in full and the Note
and the Ancillary Agreements have been irrevocably terminated. If any of the
present or future Guarantor Obligations are guarantied by persons, partnerships
or corporations in addition to the Guarantor, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of the Guarantor under this Guaranty. The death of the Guarantor
shall not effect a termination of this Guaranty and loans and advances made by
Inmark and any indebtedness incurred by Borrower from Inmark subsequent to such
death shall continue to constitute Guarantor Obligations guaranteed hereunder.
12. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if Inmark receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Inmark, the Guarantor's obligations to Inmark shall
be reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to Inmark, which payment shall be
due on demand.
13. Books and Records. The books and records of Inmark showing the
account between Inmark and Borrower shall be admissible in evidence in any
action or proceeding, shall be binding upon the Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof absent manifest error.
14. No Waiver. No failure on the part of Inmark to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by Inmark of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to Inmark or allowed it by law or other agreement shall be cumulative
and not exclusive of any other, and may be exercised by Inmark at any time and
from time to time.
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The Guarantor hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in
-6-
any such forum is not convenient, (iii) agrees that any litigation initiated by
Inmark or the Guarantor in connection with this Guaranty shall be venued in the
United States District Court of the Southern District of New York and, to the
extent such venue cannot be obtained, in any court having situs within the
County of New York, State of New York; and (iv) agrees that a final judgment in
any such suit, action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. THE GUARANTOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE
OF PROCESS UPON THE GUARANTOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE GUARANTOR'S ADDRESS
SET FORTH IN SECTION 18 HEREOF, AND SERVICE SO MADE SHALL BE DEEMED COMPLETED
FIVE (5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO MAILED. THE GUARANTOR
WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR
PERTAINING TO THIS GUARANTY, ANY OTHER ANCILLARY AGREEMENT OR ANY OF THE
GUARANTOR OBLIGATIONS.
16. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing executed by the
Guarantor and Inmark.
18. Notice. All notices, requests, demands and other
communications provided for under this Guaranty shall be in writing and shall be
(a) personally delivered, (b) sent by first class United States mail, (c) sent
by overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to the Guarantor, at c/o Scient, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇; and
(ii) if to Inmark, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: Client Services Department, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a
copy to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, PC, 1330 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier ▇▇▇-▇▇▇-▇▇▇▇;
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 18. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
-7-
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
19. Successors. Inmark may, from time to time, without notice to
the Guarantor, sell, assign, transfer or otherwise dispose of all or any part of
the Guarantor Obligations and/or rights under this Guaranty. Without limiting
the generality of the foregoing, Inmark may assign, or grant participations to,
one or more banks, financial institutions or other entities all or any part of
any of the Guarantor Obligations. In each such event, Inmark, its Affiliates and
each and every immediate and successive purchaser, assignee, transferee or
holder of all or any part of the Guarantor Obligations shall have the right to
enforce this Guaranty, by legal action or otherwise, for its own benefit as
fully as if such purchaser, assignee, transferee or holder were herein by name
specifically given such right.
20. Release. Nothing except cash payment in full of the Guarantor
Obligations shall release the Guarantor from liability under this Guaranty.
21. Counterparts; Facsimile. This Guaranty may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Guaranty may
also be executed via facsimile, which shall be deemed an original.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-8-
IN WITNESS WHEREOF, this Guaranty has been executed by the Guarantor as
of the day and year first above written.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
AGREED:
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
-9-
STATE OF NEW YORK )
): ss.:
COUNTY OF NEW YORK )
On the 14th day of March, 2002, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ to me known, who being by me duly sworn, did depose and say that he
resides at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, that he has read
the foregoing instrument and is fully familiar with the contents thereof; that
he signed his name thereto of his own free will and volition.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 14th day of March, 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he is the
Chairman of Scient, Inc., the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of the board of
directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Notary Public
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-10-
ACCOUNT CONTROL AGREEMENT
---------------
MARCH 18, 2002
---------------
INMARK CAPITAL CORP., with an office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ("Creditor");
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual with an address at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Pledgor"); and
NORTH FORK BANK, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Bank")
hereby agree as follows:
P R E A M B L E
1. Bank and Pledgor have entered into a customer agreement (the "Customer
Agreement"), pursuant to which Bank has established deposit account
number 8016018601 in the name of Pledgor (as it may be renumbered or
retitled from time to time and all funds and financial assets in such
account, the "Account").
2. Pledgor and Creditor have entered into a Pledge and Security Agreement
dated as of the date hereof (as amended, modified and supplemented from
time to time, the "Security Agreement"), in which Pledgor has granted
Creditor a security interest in the Account.
3. Creditor, Pledgor and Bank are entering into this Agreement to provide
for the control of the Account and to perfect the security interest of
Creditor in the Account as more fully described in the Security
Agreement.
T E R M S
SECTION 1. THE ACCOUNT. Bank hereby represents and warrants to
Creditor and Pledgor that (i) the Account has been established in the name of
Pledgor as recited above, (ii) Bank maintains the Account for the Pledgor and
all property (including, without limitation, all funds and financial assets)
held by the Bank in the Account is, and will continue to be credited to the
Account and (iii) except for the claims and interest of Creditor and of Pledgor
in the Account, Bank does not know of any claim to or interest in the Account.
The Pledgor is (x) the Bank's customer with respect to the Account and (y) the
entitlement holder with respect to financial assets credited from time to time
to the Account.
SECTION 2. CONTROL. Bank will comply with all instructions
originated by Creditor concerning the Account without further consent by Pledgor
(any such instruction being an "Account Direction") except with respect to
instructions regarding the distribution of interest and dividends on the
property (including, without limitation, funds and financial assets) in the
Account.
SECTION 3. PLEDGOR'S RIGHTS IN THE ACCOUNT. Bank shall neither
accept nor comply with instructions from Pledgor for the withdrawal of any
assets from the Account nor deliver any such assets to Pledgor without the prior
written consent of Creditor; provided, however, the Bank shall, at all times,
distribute to the Pledgor all interest and dividends on property in the Account
as instructed by Pledgor and shall not comply with any Account Directions from
the Creditor with respect to such interest and dividends.
SECTION 4. PRIORITY OF LIEN. Bank hereby acknowledges that it
has received a copy of the Security Agreement, consents to the terms thereof and
recognizes the security interest granted therein to Creditor by Pledgor. Bank
hereby subordinates all liens, encumbrances, claims and rights of setoff it may
have against the Account and the proceeds thereof to the liens granted to
Creditor pursuant to the Security Agreement and acknowledges that, except for
(i) payment of routine deposit maintenance, wire transfer and other charges and
fees pursuant to the Customer Agreement (which shall be payable by Pledgor and
shall not be an obligation of Creditor) and (ii) reversal of provisional
credits, it will not assert any such lien, encumbrance, claim or right against
the Account.
SECTION 5. STATEMENTS, CONFIRMATIONS AND NOTICES OF ADVERSE
CLAIMS. Bank will send copies of all statements, confirmations and other
correspondence concerning the Account simultaneously to each of Pledgor and
Creditor at the address set forth in the heading of this Agreement. If any
person or entity asserts any lien, encumbrance or adverse claim against the
Account, Bank will promptly notify Creditor and Pledgor thereof.
SECTION 6. RESPONSIBILITY OF BANK. Bank shall have no
responsibility or liability to Pledgor for complying with any Account Direction.
Neither this Agreement nor the Security Agreement imposes or creates any
obligation or duty of Bank, other than those expressly set forth herein. This
Agreement does not create any obligation on Bank except those expressly set
forth in this Agreement and in the Uniform Commercial Code of the State of New
York.
SECTION 7. TAX REPORTING. All items of income, gain, expense and
loss recognized in the Account shall be reported to the Internal Revenue Service
and all state and local taxing authorities under the name and taxpayer
identification number of Pledgor.
SECTION 8. CUSTOMER AGREEMENT. This Agreement supplements the
Customer Agreement. In the event of a conflict between this Agreement and the
Customer Agreement, the terms of this Agreement will prevail. Regardless of any
provision in the Customer Agreement, New York shall be deemed to be the Bank's
location for the purposes of this Agreement and the perfection and priority of
Creditor's security interest in the Account.
-2-
SECTION 9. TERMINATION. The rights and powers granted herein to
Creditor have been granted in order to perfect its security interest in the
Account, are powers coupled with an interest and will neither be affected by the
bankruptcy of Pledgor nor by the lapse of time. The obligations of Bank under
Sections 2, 3, 4 and 5 above shall continue in effect until the security
interest of Creditor in the Account has been terminated pursuant to the terms of
the Security Agreement and Creditor has notified Bank of such termination in
writing. Upon receipt of such notice, the obligations of Bank under Sections 2,
3, 4 and 5 above with respect to the operation and maintenance of the Account
after the receipt of such notice shall terminate, Creditor shall have no further
right to originate instructions concerning the Account and Bank make take such
steps as Pledgor may request to vest full ownership and control of the Account
in Pledgor, including, but not limited to, removing the name of Creditor from
the Account or transferring all of the assets in the Account to another account
in the name of Pledgor or its designee.
SECTION 10. THIS AGREEMENT. This Agreement and the agreements and
instruments required to be executed and delivered hereunder set forth the entire
agreement of the parties with respect to the subject matter hereof and supersede
and discharge all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
SECTION 11. AMENDMENTS. No amendment, modification or termination
of this Agreement or waiver of any right hereunder shall be binding on any party
hereto unless it is in writing and is signed by the party to be charged.
SECTION 12. SEVERABILITY. If any term or provision set forth in
this Agreement shall be invalid or unenforceable, the remainder of this
Agreement, or the application of such terms or provisions to persons or
circumstances, other than those to which it is held invalid or unenforceable,
shall be construed in all respects as if such invalid or unenforceable term or
provision were omitted.
SECTION 13. SUCCESSORS. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors and assigns. Creditor may assign this Agreement to North
Fork Bank without the written consent of Pledgor.
SECTION 14. RULES OF CONSTRUCTION. In this Agreement, words in
the singular number include the plural, and in the plural include the singular;
words of the masculine gender include the feminine and the neuter, and when the
sense so indicates words of the neuter gender may refer to any gender and the
word "or" is disjunctive but not exclusive. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience. They
do not define, limit or describe the scope or intent of the provisions of this
Agreement.
SECTION 15. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party
-3-
at the address set forth next to such parties' name at the heading of this
Agreement. Any party may change its address for notices in the manner set forth
above.
SECTION 16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
SECTION 17. CHOICE OF LAW. The parties hereto agree that certain
material events, occurrences and transactions relating to this Agreement bear a
reasonable relationship to the State of New York. The validity, terms,
performance and enforcement of this Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The parties agree that the
State of New York is the "bank's jurisdiction" for purposes of the Uniform
Commercial Code of the State of New York.
SECTION 18. EXCULPATION AND INDEMNIFICATION. The parties hereto
agree that Bank shall not be liable for any action taken by it or any of its
directors, officers, agents or employees in accordance with this Agreement,
including, without limitation, any action taken at the request of the Creditor,
except for the gross negligence or willful misconduct of Bank.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, AS PLEDGOR
INMARK CAPITAL CORP., AS CREDITOR
By: /s/ Miles ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: Miles ▇. ▇▇▇▇▇▇▇
Title: President
NORTH FORK BANK, AS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
-▇-
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ March 18, 2002
This Guaranty is executed in connection with that certain Promissory
Note dated as of the date hereof made by Scient, Inc. ("Borrower") in favor of
North Fork Bank (as assignee of Inmark Capital Corp.) ("NFB") (as amended,
modified, restated or supplemented from time to time, the "Note"). Capitalized
terms used but not defined herein shall have the meanings assigned to them in
the Note.
FOR VALUE RECEIVED, and in consideration of one or more Loans made from
time to time and at any time to or for the account of Borrower by NFB pursuant
to the Note, and for other good and valuable consideration, and to induce NFB to
make such Loans, the undersigned guarantor (the "Guarantor") unconditionally
guaranties to NFB, its successors, endorsees and assigns, the prompt payment
when due (whether by acceleration or otherwise) of the lesser of (i) the
aggregate original principal amount of the Loans or (ii) the aggregate
outstanding principal amount of the Loans, in each case, made to Borrower in
consideration of the Guarantor's Guarantor Collateral (the "Guarantor
Obligations"), irrespective of the genuineness, validity, regularity or
enforceability of such Guarantor Obligations, or of any instrument evidencing
any of the Guarantor Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Guarantor Obligations in any case
commenced by or against Borrower under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, including,
without limitation, obligations or indebtedness of Borrower for post-petition
interest, fees, costs and charges that would have accrued or been added to the
Guarantor Obligations but for the commencement of such case.
Notwithstanding anything contained in this Guaranty to the contrary,
the liability of the Guarantor hereunder shall in no event exceed the Guarantor
Obligations. Such limitation on liability shall not be affected by nor shall
anything herein contained be deemed to be a limitation of the amount of credit
which may be extended by NFB to Borrower, or the number of transactions between
NFB and Borrower, or the nature or amount of the obligations which may be
incurred by Borrower to NFB.
In furtherance of the foregoing, the Guarantor hereby agrees as
follows:
1. Limited Recourse to the Guarantor. Anything contained herein
to the contrary notwithstanding, other than the enforcement of NFB's rights with
respect to the Guarantor Collateral, NFB shall have no recourse against the
Guarantor or any officer, director or partner of the Guarantor nor shall the
Guarantor or any officer, director or partner of the Guarantor be held
personally liable for the payment of the Guarantor Obligations or for any claim
based thereon or otherwise in respect thereof or for the payment and performance
of any other obligation based on or in respect of the Note. The enforcement of
any judgment for breach by the Guarantor of its obligations hereunder shall be
limited to and made only against the Guarantor Collateral.
2. No Impairment. This instrument shall be effective regardless
of the subsequent incorporation, merger or consolidation of Borrower, or any
change in the composition, nature, personnel or location of Borrower and shall
extend to any successor entity to Borrower, including a Borrower in possession
or the like under the United States Bankruptcy Code, as amended, or any other
federal or state bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors' rights generally (any of
the foregoing, an "Insolvency Law").
3. Guaranty Absolute. The Guarantor guarantees that the Guarantor
Obligations will be paid strictly in accordance with the terms of the Note
and/or any other Ancillary Agreement, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Borrower with respect thereto. The Guarantor acknowledges that (i)
no oral representations, including any representations to extend credit or
provide other financial accommodations to Borrower, have been made by NFB to
induce the Guarantor to enter into this Guaranty and (ii) any extension of
credit to the Borrower shall be governed solely by the provisions of the Note
and the other Ancillary Agreements. Subject to the limitations set forth in
Section 1 hereof, the liability of the Guarantor under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the Note or
any other Ancillary Agreement or any assignment or transfer of any thereof, (b)
any lack of validity or enforceability of the Note or any other Ancillary
Agreement relating to the Guarantor Obligations or any assignment or transfer of
any thereof, (c) any furnishing of any additional security to NFB or its
assignees or any acceptance thereof or any release of any security by NFB or its
assignees, (d) any limitation on any party's liability or obligation under the
Note and the other Ancillary Agreements relating to the Guarantor Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such Ancillary Agreement or any term thereof, (e)
any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Borrower, or any
action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the Guarantor shall have notice or
knowledge of any of the foregoing, (f) any exchange, release or nonperfection of
any collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the Guarantor
Obligations, or (g) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Guarantor. If NFB is unable to
enforce its rights with respect to the Guarantor Collateral following the
occurrence of an Event of Default or Loan Event of Default as a result of any
legal proceeding (including, without limitation, a bankruptcy proceeding)
involving NFB, the Borrower, the Guarantor or any other guarantor, any amounts
due from the Guarantor to NFB shall bear interest until such amounts are paid in
full at the Default Rate. Guarantor Obligations include post-petition interest
whether or not allowed or allowable.
4. Waivers. (a) This Guaranty is a guaranty of payment and not of
collection. NFB shall be under no obligation to institute suit, exercise rights
or remedies or take any other action against Borrower or any other person or
entity liable with respect to any of the Guarantor
-2-
Obligations or resort to any collateral security held by NFB to secure any of
the Guarantor Obligations as a condition precedent to the Guarantor's being
obligated to perform as agreed herein and the Guarantor hereby waives any and
all rights which it may have by statute or otherwise which would require NFB to
do any of the foregoing. The Guarantor further consents and agrees that NFB
shall be under no obligation to marshal any assets in favor of the Guarantor.
The Guarantor hereby waives all suretyship defenses and any rights to interpose
any defense, counterclaim or offset of any nature and description which the
Guarantor may have or which may exist between and among NFB, Borrower and/or the
Guarantor with respect to the Guarantor's obligations under this Guaranty, or
which Borrower may assert on the underlying debt, including but not limited to
failure of consideration, breach of warranty, fraud, payment (other than cash
payment in full of the Obligations), statute of frauds, bankruptcy, infancy,
statute of limitations, accord and satisfaction, and usury.
(b) Subject to Section 9 hereof, the Guarantor further
waives to the fullest extent allowable under law (i) notice of the acceptance of
this Guaranty, of the making of any such loans or extensions of credit, and of
all notices and demands of any kind to which the Guarantor may be entitled,
including, without limitation, notice of adverse change in Borrower's financial
condition or of any other fact which might materially increase the risk of the
Guarantor and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Guarantor Obligations, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort, provided, however, that NFB shall not exercise any of its
rights or remedies with respect to Guarantor Collateral until two business days
after written notice of an Event of Default or a Loan Event of Default has been
provided to Guarantor except that no such notice shall be required if a Loan
Event of Default arises under Section 10(b)(iv) of the Note.
(c) Notwithstanding any payment or payments made by the
Guarantor hereunder, or any setoff or application of funds of the Guarantor by
NFB, the Guarantor shall not be entitled to be subrogated to any of the rights
of NFB against Borrower or against any collateral or guarantee or right of
offset held by NFB for the payment of the Guarantor Obligations, nor shall the
Guarantor seek or be entitled to seek any contribution or reimbursement from
Borrower in respect of payments made by the Guarantor hereunder, until all
amounts owing to NFB by Borrower on account of the Obligations are indefeasibly
paid in full. If, notwithstanding the foregoing, any amount shall be paid to the
Guarantor on account of such subrogation rights at any time when all of the
Guarantor Obligations shall not have been paid in full and the Note and the
other Ancillary Agreements shall not have been terminated, such amount shall be
held by the Guarantor in trust for NFB, segregated from other funds of the
Guarantor, and shall forthwith upon, and in any event within two (2) business
days of, receipt by the Guarantor, be turned over to NFB in the exact form
received by the Guarantor (duly endorsed by the Guarantor to NFB, if required),
to be applied against the Guarantor Obligations, whether matured or unmatured,
in such order as NFB may determine, subject to the provisions of the Note and
the other Ancillary Agreements. Following the occurrence and during the
continuance of an Event of Default or Loan Event of Default with respect to the
Loans guaranteed by such Guarantor, any and all present and future debts and
obligations of Borrower to the Guarantor are hereby waived and postponed in
favor of, and subordinated to the full payment and performance of, all present
and future debts and obligations of Borrower to NFB.
-3-
5. Indemnity and Subrogation. If any payment is made by Guarantor
pursuant to or in connection with this Guaranty, Borrower shall indemnify
Guarantor for the full amount of such payment. If NFB enforces its rights with
respect to any of Guarantor's Guarantor Collateral pursuant to this Guaranty or
any other Ancillary Agreement, Borrower shall indemnify Guarantor for the fair
market value of such Guarantor Collateral. Guarantor shall not seek or be
entitled to exercise its rights to indemnification from Borrower until all
amounts owing to NFB on account of the Obligations are indefeasibly paid in full
and the Note and the other Ancillary Agreements have been terminated. Guarantor
shall be subrogated to the rights of NFB or other such Person to whom such
payment was made or the Person who enforced its rights with respect to such
Guarantor Collateral. Guarantor shall not enforce its rights or receive any
payments under this Section 5 nor shall Borrower make any payments to Guarantor
under this Section 5, until all amounts owing to NFB by Borrower on account of
the Obligations are indefeasibly paid in full and the Note and the other
Ancillary Agreements have been terminated. Upon payment in full to NFB of all
the Obligations, if requested by Guarantor, to the extent permitted by
applicable law, NFB agrees to assign and transfer jointly to Guarantor and each
other guarantor of the Loans who has made any payment to NFB under such
guarantor's guaranty of the Loans (without any representation or warranties
whatsoever and pursuant to documentation in form and substance satisfactory to
NFB) all of NFB's right, title, benefits and interests, whether contractual or
otherwise, under the Ancillary Agreements entered into by Borrower in favor of
NFB in respect of the Guarantor Obligations.
6. Representations and Warranties. The Guarantor hereby
represents and warrants (all of which representations and warranties shall
survive until all Obligations are indefeasibly satisfied in full and the
Ancillary Agreements have been irrevocably terminated), that:
(a) Status. The Guarantor is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has full power, authority and legal right to own its property and
assets and to transact the business in which it is engaged.
(b) Authority and Execution. The Guarantor has full
power, authority and legal right to execute and deliver, and to perform its
obligations under, this Guaranty and has taken all necessary partnership and
legal action to authorize the execution, delivery and performance of this
Guaranty.
(c) Legal, Valid and Binding Character. This Guaranty
constitutes the legal, valid and binding obligation of the Guarantor enforceable
in accordance with its terms, except as enforceability may be limited by
applicable Insolvency Law.
(d) Violations. The execution, delivery and performance
of this Guaranty will not violate any requirement of law applicable to the
Guarantor or any material contract, agreement or instrument to which the
Guarantor is a party or by which the Guarantor or any property of the Guarantor
is bound or result in the creation or imposition of any mortgage, lien or other
encumbrance other than to NFB on any of the property or assets of the Guarantor
pursuant to the provisions of any of the foregoing.
-4-
(e) Consents or Approvals. No consent of any other person
or entity (including, without limitation, any creditor of the Guarantor) and no
consent, license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Guaranty.
(f) Litigation. No litigation, arbitration, investigation
or administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the Guarantor, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting the
Guarantor, or any property or assets of the Guarantor, which, if adversely
determined, would have a material adverse effect on the Guarantor's Guarantor
Collateral.
(g) Financial Benefit. The Guarantor has derived or
expects to derive a financial or other advantage from each and every loan,
advance or extension of credit made under the Note or other Obligation incurred
by Borrower to NFB.
7. Covenant of the Borrower. Borrower shall not enter into any
written amendment or written waiver to the Note or any other Ancillary Agreement
without the consent of the Guarantor. Borrower's failure to comply with the
provisions of this Section 7 shall not affect in any manner whatsoever the
Guarantor obligations to NFB hereunder.
8. Acceleration. If a notice of any lien, levy, or assessment is
filed of record with respect to any assets of the Guarantor by the United States
of America or any department, agency, or instrumentality thereof, or if any
taxes or debts owing at any time or times hereafter to any one of them becomes a
lien or encumbrance upon any assets of the Guarantor in NFB's possession or
control, any and all Guarantor Obligations shall for purposes hereof, at NFB's
option, be deemed due and payable without notice notwithstanding that any such
Guarantor Obligation is not then due and payable by Borrower.
9. Notice of Defaults; Cure Rights.
(a) The Guarantor will promptly notify NFB of any default
by the Guarantor in the performance or observance of any term or condition of
any agreement to which the Guarantor is a party if the effect of such default is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an event
occurs, NFB shall have the right to accelerate the Guarantor Obligations.
(b) NFB will provide the Guarantor with a copy of any
written notice of any Event of Default or Loan Event of Default with respect to
the Loans guaranteed by such Guarantor simultaneously with the notice it sends
to the Borrower with respect to such Event of Default or Loan Event of Default.
-5-
(c) The Guarantor shall have the right, in its sole
discretion, to cure any Event of Default or Loan Event of Default within two
business days following its receipt of the notice provided to the Guarantor in
accordance with Section 9(b) above with respect to such Event of Default or Loan
Event of Default.
10. Payments from Guarantor. Upon the occurrence and during the
continuance of an Event of Default or a Loan Event of Default, NFB, in its sole
and absolute discretion, with or without notice to the Guarantor, may apply on
account of the Guarantor Obligations any amounts realized from any security for
the Guarantor Obligations, or may deposit any and all such amounts realized in a
non-interest bearing cash collateral deposit account to be maintained as
security for the Guarantor Obligations.
11. No Termination. This is a continuing irrevocable guaranty and
shall remain in full force and effect and be binding upon the Guarantor, and the
Guarantor's successors and assigns, until all of the Guarantor Obligations have
been indefeasibly paid in full and the Note and the Ancillary Agreements have
been irrevocably terminated. If any of the present or future Guarantor
Obligations are guarantied by persons, partnerships or corporations in addition
to the Guarantor, the death, release or discharge in whole or in part or the
bankruptcy, merger, consolidation, incorporation, liquidation or dissolution of
one or more of them shall not discharge or affect the liabilities of the
Guarantor under this Guaranty. The death of the Guarantor shall not effect a
termination of this Guaranty and loans and advances made by NFB and any
indebtedness incurred by Borrower from NFB subsequent to such death shall
continue to constitute Guarantor Obligations guaranteed hereunder.
12. Recapture. Anything in this Guaranty to the contrary
notwithstanding, if NFB receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by NFB, the Guarantor's obligations to NFB shall be
reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to NFB, which payment shall be
due on demand.
13. Books and Records. The books and records of NFB showing the
account between NFB and Borrower shall be admissible in evidence in any action
or proceeding, shall be binding upon the Guarantor for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof absent manifest error.
14. No Waiver. No failure on the part of NFB to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by NFB of any right,
remedy or power hereunder preclude any other or future exercise of any other
legal right, remedy or power. Each and every right, remedy and power hereby
granted to NFB or allowed it by law or other agreement shall be cumulative and
not exclusive of any other, and may be exercised by NFB at any time and from
time to time.
-6-
15. Governing Law; Jurisdiction, Venue; Waiver of Jury Trial. This
Guaranty shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of New York. The Guarantor hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the County of New York, State of New York in connection with any
controversy related to this Guaranty; (ii) waives any argument that venue in any
such forum is not convenient, (iii) agree that any litigation initiated by NFB
or Borrower in connection with this Guaranty shall be venued in the United
States District Court of the Southern District of New York and, to the extent
such venue cannot be obtained, in any court having situs within the County of
New York, State of New York; and (iv) agree that a final judgment in any such
suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
THE GUARANTOR WAIVES PERSONAL SERVICE OR PROCESS AND CONSENTS THAT SERVICE OF
PROCESS UPON THE GUARANTOR MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE GUARANTOR'S ADDRESS SET
FORTH BENEATH THE SIGNATURE OF THE PLEDGOR HEREIN, AND SERVICE SO MADE SHALL BE
DEEMED COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED. THE GUARANTOR WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR PERTAINING TO THIS GUARANTY, ANY OTHER ANCILLARY
AGREEMENT OR ANY OF THE GUARANTOR OBLIGATIONS.
16. Severability. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision
of this Guaranty nor consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing executed by the
Guarantor and NFB.
18. Notice. All notices, requests, demands and other
communications provided for under this Guaranty shall be in writing and shall be
(a) personally delivered, (b) sent by first class United States mail, (c) sent
by overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed or telecopied to the party to whom notice is being given at
its address or telecopier number as set forth below:
(i) if to the Guarantor, at the addresses and telecopier
numbers set forth beneath the signature of the Guarantor herein; and
(ii) if to NFB, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopier: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇
▇▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Aris Haigian, Esq., Telecopier 212-245-3009;
-7-
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section 18. All such notices,
requests, demands and other communications shall be deemed to have been given on
(a) the date received if personally delivered, (b) when deposited in the mail if
delivered by mail, (c) the date sent if sent by overnight courier, or (d) the
date of transmission if delivered by telecopy.
19. Successors. NFB may, from time to time, without notice to the
Guarantor, sell, assign, transfer or otherwise dispose of all or any part of the
Guarantor Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, NFB may assign, or grant participations to, one or
more banks, financial institutions or other entities all or any part of any of
the Guarantor Obligations. In each such event, NFB, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Guarantor Obligations shall have the right to enforce this
Guaranty, by legal action or otherwise, for its own benefit as fully as if such
purchaser, assignee, transferee or holder were herein by name specifically given
such right.
20. Release. Nothing except cash payment in full of the Guarantor
Obligations shall release the Guarantor from liability under this Guaranty.
21. Counterparts; Facsimile. This Guaranty may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Guaranty may
also be executed via facsimile, which shall be deemed an original.
[Remainder of Page Intentionally Left Blank; Signature Page to Follow]
-8-
IN WITNESS WHEREOF, this Guaranty has been executed by the Guarantor as
of the day and year first above written.
▇▇▇▇▇ & COMPANY, L.P.
By: ▇▇▇▇▇ & Companies, Inc., its
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
Title: Vice President & General
Counsel
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
AGREED:
SCIENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman
-▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇)
: ss.:
COUNTY OF New York)
On the _______ day of March, 2002, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇ to me known, who, being by me duly sworn did depose and say that he
is the Vice President & General Counsel of ▇▇▇▇▇ & Company, the limited
partnership described in and which executed the above instrument; and that he
signed his name thereto by order of the board of directors of said limited
partnership.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Notary Public
STATE OF New York)
: ss.:
COUNTY OF New York)
On the 14 day of March, 2002, before me personally came ▇▇▇▇▇▇ ▇. ▇▇▇▇
to me known, who, being by me duly sworn did depose and say that he is the
Chairman of Scient, Inc., the corporation described in and which executed the
above instrument; and that he signed his name thereto by order of the board of
directors of said corporation.
/s/ Segismundo Cactellar
-------------------------------------
Notary Public
TERMINATION AND ASSUMPTION AGREEMENT
This Termination and Assumption Agreement (the "Agreement") is entered
into as of this 12 day of April, 2002, by and among North Fork Bank, as
assignee of Inmark Capital Corp. (the "Lender"), ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇"). Capitalized terms not otherwise defined
herein shall have the respective meanings ascribed to them in the Note (defined
below).
WHEREAS, the Lender and Scient, Inc., a Delaware corporation (the
"Borrower") are parties to a Promissory Note (the "Note") dated March 18, 2002,
and to the Ancillary Agreements identified therein; and
WHEREAS, the Borrower's obligations under the Note are guaranteed in
part by the Guaranty dated as of March 18, 2002 made by ▇▇▇▇ in favor of the
Lender (the "▇▇▇▇ Guaranty") and the Guaranty dated as of March 18, 2002 made by
Mucchetti in favor of the Lender (the "Mucchetti Guaranty"); and
WHEREAS, ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ have requested that the Lender agree to
terminate the Mucchetti Guaranty and all related documents executed by Mucchetti
in connection with the Note and agree that any obligations of the Borrower
heretofore guaranteed by the Mucchetti Guaranty be hereafter guaranteed by the
▇▇▇▇ Guaranty.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereby agree as
follows:
1. The Mucchetti Guaranty, the Account Control Agreement dated as
of March 18, 2002 among Mucchetti, the Lender (in its capacity as depositary
bank) and Lender (in its capacity as assignee of Inmark Capital Corp.) and the
Pledge and Security Agreement dated as of March 18, 2002 between Mucchetti and
the Lender (as assignee of Inmark Capital Corp.) are hereby terminated.
2. Any and all Loans heretofore made by the Lender to the
Borrower based upon the Guarantor Collateral Availability attributable to the
Guarantor Collateral of Mucchetti shall hereby be deemed "Guarantor Obligations"
as such term is defined in the ▇▇▇▇ Guaranty.
3. Upon receipt by Lender from ▇▇▇▇ of $300,000 in immediately
available funds ("Additional Collateral Deposit") in account #8016018593
maintained with Lender, Lender shall promptly remit to Mucchetti by wire
transfer the funds maintained in Mucchetti's account #8016018601 maintained with
the Lender. ▇▇▇▇ hereby acknowledges that the Additional Collateral Deposit
shall constitute Guarantor Collateral attributable to ▇▇▇▇.
4. Except as expressly amended by this Agreement, the Note, the
▇▇▇▇ Guaranty and the other Ancillary Agreements shall remain in full force and
effect.
5. This Agreement shall be governed by, and construed in
accordance with, the laws of the state of New York applicable to contracts
executed, and to be fully performed, in such state.
6. This agreement may be executed in any number of counterparts,
but all such counterparts will together constitute one and the same agreement.
This Agreement may also be executed via facsimile, which shall be deemed an
original.
(signature page follows)
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
NORTH FORK BANK
By: /s/
-------------------------------
Name:
Title:
SCIENT INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Acknowledged and Agreed:
INMARK CAPITAL CORP.
By: /s/
-------------------------------
Name:
Title:
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the 12th day of April, 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇ to me known, who, being by me duly sworn did depose and say that s/he is
the Chairman of Scient, Inc., the corporation described in and which executed
the above instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Notary Public
STATE OF NEW YORK)
: ss.:
COUNTY OF NEW YORK)
On the 12th day of April, 2002, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that s/he
is a Vice Chairman of North Form Bank, the corporation described in and which
executed the above instrument; and that s/he signed her/his name thereto.
/s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Notary Public
STATE OF ______________)
: ss.:
COUNTY OF _____________)
On the _______ day of April, 2002, before me personally came
_______________ to me known, who, being by me duly sworn did depose and say that
s/he is the ________________ of Inmark Capital Corp., the corporation described
in and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said corporation.
--------------------------------
Notary Public
STATE OF ______________)
: ss.:
COUNTY OF _____________)
On the _______ day of April, 2002, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he signed
the foregoing instrument.
--------------------------------
Notary Public
STATE OF ______________)
: ss.:
COUNTY OF _____________)
On the _______ day of April, 2002, before me personally came ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ to me known, who, being by me duly sworn did depose and say that he
signed the foregoing instrument.
--------------------------------
Notary Public
AMENDED AND RESTATED SCHEDULE A
SCHEDULE OF LOANS
-----------------------------------------------------------------------------------------------------------
GUARANTOR DATE OF LOAN AMOUNT OF LOAN COLLATERAL GUARANTOR
COLLATERAL
AVAILABILITY
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ March 18, 2002 $2,327,348.81 $5,301,301.37 in cash on 100%
April 11, 2002 $1,882,747.71 deposit in account
#8016018593 with North
Fork Bank
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. Formant April 11, 2002 $ 63,307.93 $100,000 in cash on 100%
deposit in account
#8016018619 with North
Fork Bank
-----------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ April 11, 2002 $ 158,269.82 $250,000 in cash on 100%
deposit in account
#8016018650 with North
Fork Bank
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇ & Company, L.P. April 11, 2002 $ 395,674.55 Letter of Credit in the 100%
face amount of $625,000
issued by JPMorgan Chase
Bank
-----------------------------------------------------------------------------------------------------------
Consented and agreed to as of this
day of April, 2002:
---
NORTH FORK BANK SCIENT, INC.
(as assignee of Inmark Capital Corp.)
By: /s/ By: /s/
--------------------------- ---------------------------
Name: Name:
Title: Title: