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American National Bank
And Trust Company of Chicago
PROMISSORY NOTE (UNSECURED)
$55,000,000.00 CHICAGO, ILLINOIS SEPTEMBER 15, 2000
DUE: MARCH 15, 2001
FOR VALUE RECEOVED, the undersigned (jointly and severally if more than
one) ("Borrower"), promises to pay to the order of American National Bank and
Trust Company of Chicago ("Bank"), at its principal place of business in
Chicago, Illinois or such other place as Bank may designate from time to time
hereafter, the principal sum of FIFTY FIVE MILLION AND 00/100 DOLLARS, or such
lesser principal sum as may then be owed by Borrower to Bank hereunder.
Borrower's obligations and liabilities to Bank under this Note ("Borrower's
Liabilities") shall be due and payable on March 15, 2001.
This Note restates and replaces a Promissory Note (Unsecured) in the
principal amount of $20,000,000.00, dated April 30, 2000 executed by Borrower in
favor of Bank (the "Prior Note") and is not a repayment or novation of the Prior
Note.
The unpaid principal balance of Borrower's Liabilities due hereunder shall
bear interest from the date of disbursement until paid, computed as follows (i)
at a daily rate equal to the daily rate equivalent (computed on the basis of a
360-day year and actual days elapsed) of the rate of interest announced from
time to time by the Bank or its parent as its prime rate of interest, which is
not necessarily the lowest rate charged to its customer (the "Prime Rate") or
(ii) Borrower may choose to borrow at LIBOR plus 1.0% as set forth in the
London Interbank Offered Rate Borrowing Agreement dated April 30, 2000;
provided, however, that in the event that any of Borrower's Liabilities are not
-----------------
paid when due, the unpaid amount of Borrower's Liabilities shall bear
interest after the due date until paid at a rate equal to the sum of the rate
that would otherwise be in effect plus 3%.
If the rate of interest to be charged by Bank to Borrower hereunder is the
Prime Rate, such rate shall change from time to time when and as the Prime Rate
changes.
Accrued interest shall be payable by Borrower to Bank on the same day of
each month, and at maturity, commencing with the last day of September, 2000, or
as billed by Bank to Borrower, at Bank's principal place of business, or at such
other place as Bank may designate from time to time hereafter. After maturity,
accrued interest on all of Borrower's Liabilities shall be payable on demand.
Borrower shall pay Bank a non-usage fee on the average daily unused portion
of this Note at the rate of 1/8% per annum, payable on the last day of each
quarter. After maturity, the non-usage fee shall be due and payable on demand.
Said fee shall be computed on the basis of a 360-day year and actual number of
days elapsed.
Borrower warrants and represents to Bank that Borrower shall use the
proceeds represented by this Note solely for proper business purposes and
consistently with all applicable laws and statutes.
Any deposits or other sums at any time credited by or payable or due from
Bank to Borrower, or any monies, cash, cash equivalents, securities,
instruments, documents or other assets of Borrower in the possession or control
of Bank or its bailee for any purpose, may be reduced to cash and applied by
Bank to or setoff by Bank against Borrower's Liabilities.
The occurrence of any one of the following events shall constitute a
default by the Borrower ("Event of Default") under this Note: (a) if Borrower
fails to pay any of Borrower's Liabilities when due and payable or declared due
and payable (whether by scheduled maturity, required payment, acceleration,
demand or otherwise); (b) if Borrower or any guarantor of any of Borrower's
Liabilities fails or neglects to
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perform, keep or observe any term, provision, condition, covenant, warranty
or representation contained in this Note; (c) occurrence of a default or an
event of default under any agreement, instrument, or document heretofore, now or
at any time hereafter delivered by or on behalf of Borrower to Bank; (d)
occurrence of a default or an event of default under any agreement, instrument
or document heretofore, now or at any time hereinafter delivered to Bank by any
guarantor of Borrower's Liabilities or by any person or entity which has granted
to Bank a security interest or lien in and to some or all such person's or
entity's real or personal property to secure the payment of Borrower's
Liabilities; (e) if any of Borrower's assets are attached, seized, subjected to
a writ, or are levied upon or become subject to any lien or come within the
possession of any receiver, trustee, custodian or assignee for the benefit of
creditors; (f) if a notice of lien, levy or assessment is filed of record or
given to Borrower with respect to all or any of Borrower's assets by any
federal, state or local department or agency; (g) if Borrower or any guarantor
of Borrower's Liabilities becomes insolvent or generally fails to pay or admits
in writing its inability to pay debts as they become due, if a petition under
Title 11 of the United States Code or any similar law or regulation is filed by
or against Borrower or any such guarantor, if Borrower or any such guarantor
shall make an assignment for the benefit of creditors, if any case or proceeding
is filed by or against Borrower or any such guarantor for its dissolution or
liquidation, or if Borrower or any such guarantor is enjoined, restrained or in
any way prevented by court order from conducting all or any material part of its
business affairs; (h) the death or incompetency of Borrower or any guarantor of
Borrower's Liabilities, or the appointment of a conservator for all or any
portion of Borrower's assets; (i) the revocation, termination or cancellation of
any guaranty of Borrower's Liabilities without the consent of Bank; (j) if a
contribution failure occurs with respect to any pension plan maintained by
Borrower or any corporation, trade or business that is, along with Borrower, a
member of a controlled group of corporations or a controlled group of trades or
business (as described in Sections 414(b) and (c) of the Internal Revenue Code
of 1986 or Section 4001 of the Employee Retirement Income Security Act of 1974,
as amended, "ERISA") sufficient to give rise to a lien under Section 302(f) of
ERISA; (k) if Borrower or any guarantor of Borrower's Liabilities is in default
in the payment of any obligations, indebtedness or other liabilities to any
third party and such default is declared and is not cured within the time, if
any, specified therefor in any agreement governing the same; (l) if any material
statement, report or certificate made or delivered by Borrower, any of
Borrower's partners, officers, employees or agents or any guarantor of
Borrower's Liabilities is not true and correct; or (m) if Bank is reasonably
insecure.
Upon the occurrence of an Event of Default, at Bank's option, without
notice by Bank to or demand by Bank of Borrower, all of Borrower's Liabilities
shall be immediately due and payable.
All of Bank's rights and remedies under this Note are cumulative and
non-exclusive. The acceptance by Bank of any partial payment made hereunder
after the time when any of Borrower's Liabilities become due and payable will
not establish a custom or waive any rights of Bank to enforce prompt payment
hereof. Bank's failure to require strict performance by Borrower of any
provision of this Note shall no waive, affect or diminish any right of Bank
thereafter to demand strict compliance and performance therewith. Any waiver of
an Event of Default hereunder shall not suspend, waive or affect any other Event
of Default hereunder. Borrower and every endorser waive presentment, demand and
protest and notice of presentment, protest, default, non-payment, maturity,
release, compromise, settlement, extension or renewal of this Note, and hereby
ratify and confirm whatever Bank may do in this regard. Borrower further waives
any and all notice or demand to which Borrower might be entitled with respect to
this Note by virtue of any applicable statute or law (to the extent permitted by
law).
Borrower agrees to pay, immediately upon demand by Bank, any and all costs,
fees and expenses (including reasonable attorneys' fees, costs and expenses)
incurred by Bank (i) in enforcing any of Bank's rights hereunder, and (ii) in
representing Bank in any litigation, contest, suit or dispute (whether
instituted by Bank, Borrower or any other person) in any way relating to this
Note or Borrower's Liabilities, and to the extent not paid the same shall become
part of Borrower's Liabilities.
This Note shall be deemed to have been submitted by Borrower to Bank and to
have been made at Bank's principal place of business, This Note shall be
governed and controlled by the internal laws of the State of Illinois and not
the law of conflicts.
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Advances under this Note may be made by Bank upon oral or written request
of any person authorized to make such requests on behalf of Borrower
("Authorized Person"). Borrower agrees that Bank may act on requests which Bank
in good faith believes to be made by an Authorized Person, regardless of whether
such requests are in fact made by an Authorized Person. Any such advance shall
be conclusively presumed to have been made by Bank to or for the benefit of
Borrower. Borrower does hereby irrevocably confirm, ratify and approve all such
advances by Bank and agrees to indemnify Bank against any and all losses and
expenses (including reasonable attorneys' fees) and shall hold Bank harmless
with respect thereto.
The Bank may provide, without any limitation whatsoever, any information or
knowledge the Bank may have about the undersigned or any matter relating to this
Note and any related documents to BANK ONE CORPORATION, or any of its
subsidiaries or affiliates or their successors, or to any one or more purchasers
or potential purchasers of this Note or any related documents, and the
undersigned waives any right to privacy the undersigned may have with respect to
such matters. The Borrower agrees that the Bank may at any time sell, assign or
transfer one or more interests or participations in all or any part of its
rights or obligations in this Note to one or more purchasers whether or not
related to the Bank.
TO INDUCE BANK TO ACCEPT THIS NOTE, BORROWER IRREVOCABLY AGREES THAT,
SUBJECT TO BANK'S SOLE AND ABSOLUTE ELECTION, ALL ACTION OR PROCEEDINGS IN ANY
WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO THIS NOTE SHALL BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE OF ILLINOIS.
BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURT LOCATED WITHIN SAIDCITY AND STATE. BORROWER HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT
AGAINST BORROWER BY BANK IN ACCORDANCE WITH THIS PARAGRAPH.
BORROWER IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
COUNTERCLAIM OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN
CONNECTION WITH THIS NOTE OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH, OR
(II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO
THIS NOTE OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT, AND AGREES
THAT ANY SUCH ACTION, SUIT, COUNTERCLAIM OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
"BORROWER"
311 South Wacker Drive, Suite 3500 marchFIRST, Inc.
Chicago, Illinois 60606 a Delaware corporation
BY: /s/ Bert B. Young
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ITS: Chief Financial Officer
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), dated as of the 30th day of April, 2000
by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO ("BANK"), a
national banking association with its principal place of business at 120 South
LaSalle Street, Chicago, Illinois 60603, and MARCHFIRST, INC., a Delaware
corporation (the "Borrower"), with its principal place of business at 311 South
Wacker Drive, Suite 3500, Chicago, Illinois 60606 has reference to the following
facts and circumstances:
Pursuant to Borrower's request, Bank heretofore, now and from time to
time hereafter, has and/or may loan or advance monies, extend credit and/or
extend other financial accommodations to or for the benefit of Borrower.
NOW THEREFORE, in consideration of the terms and conditions set forth herein and
of any loans or extensions o credit heretofore, now or hereafter made to or for
the benefit of Borrower by Bank, the parties agree as follows:
1. DEFINITIONS AND TERMS
1.1 When used herein, the words, terms, and/or phrases set forth below
shall have the following meanings:
A. "Borrower's Liabilities": all obligations and liabilities of
Borrower to Bank (including without limitation all debts,
claims, indebtedness and attorneys' fees and expenses as
provided for in Paragraph 6.10) whether primary, secondary,
direct, contingent, fixed or otherwise, including Rate Hedging
Obligations (as defined in subparagraph I herein), heretofore,
now and/or from time to time hereafter owing, due or payable,
however evidenced, created, incurred, acquired or owing and
however arising, whether under this Agreement of the "Other
Agreements" (hereinafter defined) or by operation of law or
otherwise.
B. "Indebtedness": (i) indebtedness for borrowed money or for the
deferred purchase price of property or services; (ii)
obligations as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting
principles, recorded as capital leases; (iii) obligations
under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) or (ii) above; and (iv) liabilities
with respect to unfunded vested benefits under plans covered by
Title IV of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and in effect from time to time.
C. "Other Agreements": all agreements, instruments and documents,
including without limitation, guaranties, mortgages, deeds of
trust, notes, pledges, powers of attorney, consents,
assignments, contracts, notices, security agreements, leases,
subordination agreements, financing statements and all other
written matter heretofore, now and/or from time to time
hereafter executed by and/or on behalf of Borrower and
delivered to Bank.
D. "Persons": any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, entity,
party or government (whether national, federal, state, county,
city, municipal or otherwise, including without limitation, any
instrumentality, division, agency, body or department thereof).
E. "Rate Hedging Obligations": shall mean any and all obligations
of the Borrower, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired
(including all
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renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all agreements
designed to protect the Borrower from fluctuations of interest
rates, exchange rates or forward rates applicable to such
party's assets, liabilities or exchange transactions, including
but not limited to: interest rate swap agreements,
dollar-denominated or cross-currency interest rate exchange
agreement, forward currency exchange agreements, interest rate
cap, floor or collar agreements, forward rate currency
agreements or agreements relating to interest rate options,
puts and warrants, and (ii) any and all agreement relating to
cancellations, buy backs, reversals, terminations or
assignments of any of the foregoing.
1.2 Except as otherwise defined in this Agreement of the Other
Agreement, all words, terms and/or phrases used herein and therein shall be
defined by the applicable definition therefor (if any) in the Illinois Uniform
Commercial Code.
2. LOANS
2.1 Loans made by Bank to Borrower pursuant to this Agreement shall be
evidenced by notes or other instruments issued or made by Borrower to Bank.
Except as otherwise provided in this Agreement or in any notes executed and
delivered by Borrower to Bank in connection herewith, the principal portion of
Borrower's Liabilities shall be payable by Borrower to Bank on the maturity
date(s) described in any such note(s) (as the same may be amended or renewed).
All costs, fees and expenses payable hereunder or under the Other Agreements,
shall be payable by Borrower to Bank on demand, in either case at Bank's
principal place of business or such other place as Bank shall specify in writing
to Borrower.
2.2 Each loan made by Bank to Borrower pursuant to this Agreement or
the Other Agreements shall constitute an automatic warranty and representation
by Borrower to Bank that there does not then exist an "Event of Default" (as
hereinafter defined) or any event or condition which with notice, lapse of time
and/or the making of such loan would constitute an Event of Default.
2.3 This Agreement shall be in effect until all of Borrower's
Liabilities have been paid in full and any and all commitments of Bank to make
loans have terminated.
2.4 Bank's commitment to loan shall expire on the earlier of (i) the
date on which Borrower's Liabilities mature under the terms of any note given by
Borrower to Bank, (ii) the occurrence of an Event of Default pursuant to Section
5 hereof.
3. NEGATIVE PLEDGE
3.1 Borrower shall not, and shall not permit any of its subsidiaries
to create, incur, permit, or suffer to exist any lien upon any of its property
or assets, now owned or hereafter acquired, except for the following permitted
liens: (a) pledges or deposits made to secure payment of worker's compensation
insurance; (b) liens imposed by mandatory provisions of law such as for
materialmen, mechanics, warehousemen and other liens arising in the ordinary
course of business; (c) liens for taxes, assessments and governmental changes
and levies imposed upon the Borrower's income or profits or property, if the
same are not yet due and payable or if the same are being contested in good
faith and as to which adequate cash reserves have been provided; (d) liens
arising out of good faith deposits in connection with tenders, leases, real
estate bids or contracts (other than contracts involving the borrowing of
money), pledges or deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds and deposits to secure the payment of taxes, assessments, customs
duties or similar charges; (e) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, provided that
such items do not impair the use of such property for the purposes intended,
and none of which is violated by existing or proposed structures or land use;
and (f) liens previously disclosed to Bank against Borrower held by any other
bank.
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4. WARRANTIES, REPRESENTATIONS AND COVENANTS; GENERAL
4.1 Borrower warrants and represents to and covenants with Bank that:
(a) Borrower has the right, power and capacity and is duly authorized and
empowered to enter into, execute, deliver and perform this Agreement and the
Other Agreement; (b) the execution, delivery and/or performance by Borrower of
the Agreement and the Other Agreements shall not, by the lapse of time, the
giving of notice or otherwise, constitute a violation of any applicable law or a
breach of any provision contained in Borrower's Articles of Incorporation,
By-Laws, Articles of Partnership, Articles of Organization, Operating Agreement
or similar document, or contained in any agreement, instrument or document to
which Borrower is now or hereafter a party or by which it is or may be bound;
(c) Borrower is now and at all times hereafter, shall be solvent and generally
paying its debts as they mature and Borrower now owns and shall at all times
hereafter own property which, at a fair valuation, is greater than the sum of
its debts; (d) Borrower is not and will not be during the term hereof in
violation of any applicable federal, state or local statute, regulation or
ordinance that, in any respect materially and adversely affects its business,
property, assets, operations or condition, financial or otherwise; and (e)
Borrower is not in default with respect to any indenture, loan agreement,
mortgage, deed or other similar agreement relating to the borrowing of monies to
which it is a party or by which it is bound.
4.2 Borrower warrants and represents to and covenants with Bank that
Borrower shall not, without Bank's prior written consent thereto: (a) enter into
any transaction not in the ordinary course of business which materially and
adversely affects Borrower's ability to repay Borrower's Liabilities, any other
obligations and liabilities of Borrower; (b) other than as specifically
permitted in or contemplated by this Agreement or the Other Agreements,
encumber, pledge, mortgage, sell, lease, or otherwise dispose of or transfer,
whether by sale, loan, distribution, merger, consolidation or otherwise, any of
Borrower's assets; and (c) incur Indebtedness except renewals or extensions of
existing Indebtedness and interest thereon, and except Indebtedness that is
unsecured and is to Persons who execute and deliver to Bank in form and
substance acceptable to Bank and its counsel subordination agreements
subordinating their claims against Borrower therefore to the payment of
Borrower's Liabilities.
4.3 Borrower warrants and represents to and covenants with Bank that
Borrower shall furnish to Bank: (a) as soon as available but not later than
ninety (90) days after the close of each fiscal year of Borrower, financial
statements, which shall include, but not be limited to, balance sheets, incomes
statements and statements of cash flow of Borrower prepared in accordance with
generally accepted accounting principles, consistently applied, audited by a
firm of independent certified public accountants selected by Borrower and
acceptable to Bank; (b) as soon as available but not later than thirty (30) days
after the end of each quarter hereafter, financial statements of Borrower
certified by Borrower to be prepared in accordance with generally accepted
accounting principles fairly represent the financial position and results of
operations of Borrower for such period; and (c) such other data and information
(financial and otherwise) as Bank, from time to time, may request.
5. DEFAULT
5.1 The occurrence of any one of the following events shall
constitute a default by the Borrower ("Event of Default") under this Note:
(a) if Borrower fails to pay any of Borrower's Liabilities when due and
payable or declared due and payable (whether by scheduled maturity, required
payment, acceleration, demand or otherwise); (b) if Borrower or any guarantor
of any of Borrower's Liabilities fails or neglects to perform, keep or
observe any term, provision, condition, covenant, warranty or representation
contained in this Agreement or any of the Other Agreements; (c) occurrence of
a default or an event of default under any agreement, instrument, or document
heretofore, now or at any time hereafter delivered by or on behalf of
Borrower to Bank; (d) occurrence of a default or an Event of Default under
any agreement, instrument or document heretofore, now or at any time
hereinafter delivered to Bank by any guarantor of Borrower's Liabilities or
by any person or entity which has granted to Bank a security interest or lien
in and to some or all such person's or entity's real or personal property to
secure the payment of Borrower's Liabilities; (e) if any of Borrower's assets
are attached, seized, subjected to a writ, or are levied upon or become
subject to
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any lien or come within the possession of any receiver, trustee, custodian or
assignee for the benefit of creditors; (f) if a notice of lien, levy or
assessment is filed of record or given to Borrower with respect to all or any of
Borrower's assets by any federal, state or local department or agency; (g) if
Borrower or any guarantor of Borrower's Liabilities becomes insolvent or
generally fails to pay or admits in writing its inability to pay debts as they
become due, if a petition under Title 11 of the United States Code or any
similar law or regulation is filed by or against Borrower or any such guarantor,
if Borrower or any such guarantor shall make an assignment for the benefit of
creditors, if any case or proceeding is filed by or against Borrower or any such
guarantor for its dissolution or liquidation, or if Borrower or any such
guarantor is enjoined, restrained or in any way prevented by court order from
conducting all or any material part of its business affairs; (h) the death or
incompetency of Borrower or any guarantor of Borrower's Liabilities, or the
appointment of a conservator for all or any portion of Borrower's assets; (i)
the revocation, termination or cancellation of any guaranty of Borrower's
Liabilities without the consent of Bank; (j) if a contribution failure occurs
with respect to any pension plan maintained by Borrower or any corporation,
trade or business that is, along with Borrower, a member of a controlled group
of corporations or a controlled group of trades or business (as described in
Sections 414(b) and (c) of the Internal Revenue Code of 1986 or Section 4001 of
the Employee Retirement Income Security Act of 1974, as amended, "ERISA")
sufficient to give rise to a lien under Section 302(f) of ERISA; (k) if Borrower
or any guarantor of Borrower's Liabilities is in default in the payment of any
obligations, indebtedness or other liabilities to any third party and such
default is declared and is not cured within the time, if any, specified therefor
in any agreement governing the same; (l) if any material statement, report or
certificate made or delivered by Borrower, any of Borrower's partners, officers,
employees or agents or any guarantor of Borrower's Liabilities is not true and
correct; or (m) if Bank is reasonably insecure.
5.2 All of Bank's rights and remedies under this Agreement and the
Other Agreements are cumulative and non-exclusive.
5.3 Upon an Event of Default or the occurrence of any one of the
events described in Paragraph 5.1, without notice by Bank to or demand by Bank
of Borrower, Bank shall have no further obligation to and may then forthwith
cease advancing monies or extending credit to or for the benefit of Borrower
under this Agreement and the Other Agreements. Upon an Event of Default, without
notice by Bank to Borrower, Borrower's Liabilities shall be due and payable,
forthwith.
5.4 Any notice required to be given by Bank to Borrower deposited in
the United States mail, postage prepaid shall be delivered by registered or
certified mail to the address specified at the beginning of this Agreement not
less than ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice to Borrower thereof.
5.5 Under an Event of Default Borrower waives and releases any cause
of action and claim against Bank's possession or collection of the monies,
reserves, deposits, deposit accounts and interest or dividends thereof, cash or
cash equivalents, collectively the "Monies", in conjunction with this Loan
Agreement.
6. GENERAL
6.1 Borrower waives the right to direct the application of any and all
payments at any time or times hereafter received by Bank on account of
Borrower's Liabilities and Borrower agrees that Bank shall have the continuing
exclusive right to apply and re-apply any and all such payments in such manner
as Bank may deem advisable, notwithstanding any entry by Bank upon any of its
books and records.
6.2 This Agreement and the Other Agreement shall be binding upon and
inure to the benefit of the heirs, representatives, successors and assigns of
Borrower and Bank.
6.3 Bank's failure to require strict performance By Borrower of any
provision of this Agreement shall not waive, affect or diminish any right of
Bank thereafter to demand strict compliance and performance therewith. Any
suspension or waiver by Bank of an Event of Default by Borrower under this
Agreement or the Other Agreements shall not suspend, waive or affect any other
Event of Default by Borrower under this Agreement of the Other Agreements,
whether the same is prior or subsequent thereto and whether of the
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same or of a difference type. None of the undertakings, agreements, warranties,
covenants and representations of Borrower contained in this Agreement or the
Other Agreements and no Event of Default by Borrower under this Agreement or the
Other Agreements shall be deemed to have been suspended or waived by Bank unless
such suspension or waiver is by and instrument in writing signed by an officer
of Bank and directed to Borrower specifying such suspension or waiver.
6.4 If any provision of this Agreement of the Other Agreements or the
application thereof to any person, entity or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the Other Agreements and the
applications of such provision to other Persons, or circumstances will not be
affected thereby and the provision of this Agreement and the Other Agreements
shall be severable in any such instance.
6.5 Borrower hereby appoints Bank as Borrower's agent and
attorney-in-fact for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any agreement, instrument or
document which Bank may reasonably deems necessary or advisable to accomplish
the purposes hereof which appointment is irrevocable and coupled with an
interest. All monies paid for the purposes herein, and all costs, fees and
expenses paid or incurred in connection therewith, shall be part of Borrower's
Liabilities, payable by Borrower to Bank on demand.
6.6 Except as otherwise specifically provided in this Agreement,
Borrower waives any and all notice or demand which Borrower might be entitled to
receive by virtue of any applicable statute or law, and waives presentment,
demand and protest and notice of presentment, protest, default, dishonor,
non-payment, maturity, release, compromise, settlement, extension or renewal of
any and all agreements, instruments or documents at any time held by Bank on
which Bank may in any way be liable.
6.7 Except as otherwise provided in the Other Agreements, if any
provision contained in this Agreement is in conflict with, or inconsistent with
any provision in the Other Agreements, the provision of this Agreement shall
control.
6.8 The terms and provisions of this Agreement and the Other
Agreements shall supercede any prior agreement or understanding of the parties
hereto, and contain the entire agreement of the parties hereto with respect to
the matters covered herein. This Agreement and the Other Agreements may not be
modified, altered, or amended except by an agreement in writing signed by
Borrower and Bank. This Agreement shall continue in full force and effect so
long as any portion or component of Borrower's Liabilities shall be outstanding.
All of Borrower's warranties, representations, undertakings and covenants
contained in this Agreement of the Other Agreements shall survive the
termination or cancellation of the same. Should a claim ("Recovery Claim") be
made upon the Bank at any time for recovery of any amount received by the Bank
in payment of Borrower's Liabilities (whether received from the Borrower or
otherwise) and should the Bank repay all or part of said amount by reason of (1)
any judgment, decree or order of any court or administrative body having
jurisdiction over Bank or any of its property; (2) any settlement or compromise
of any such Recovery Claim effected by the Bank with the claimant (including
Borrower), the Agreement and the security interests granted Bank hereunder shall
continue in effect with respect to the amount so repaid to the same extent as if
such amount had never originally been received by the Bank, notwithstanding any
prior termination of this Agreement, the return of this Agreement to Borrower,
or the cancellation of any note or other instrument evidencing Borrower's
Liabilities.
6.9 This Agreement and the Other Agreement shall be governed and
controlled by the internal laws of the State of Illinois and not the law of
conflicts.
6.10 If at any time hereafter, whether or not Borrower's Liabilities
are outstanding at such time, Bank: (a) employs counsel for advice or other
representation, (i) with respect too this Agreement, the Other Agreements or the
administration of Borrower's Liabilities, (ii) to represent Bank in any
litigation, arbitration contest, dispute, suit or proceeding or to commence,
defend or intervene or to take any other action in or with respect to any
litigation, contest, dispute, suit or proceeding (whether instituted by Bank,
Borrower or any other Person) in any way or respect relating to this Agreement,
the Other Agreements, or Borrower's affairs, or (iii) to enforce this Agreement
or the Other Agreements; (b) takes any action with
<PAGE>
respect to administration of Borrower's Liabilities; and/or (c) attempts to or
enforces any of Bank's rights or remedies under this Agreement or the Other
Agreements, the reasonable costs, fees and expenses incurred by Bank with
respect to the foregoing, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand.
6.11 BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO BANK'S SOLE AND
ABSOLUTE DISCRETION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT,
ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT OR THE OTHER AGREEMENTS
SHALL BE LITIGATED ONLY IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE
OF ILLINOIS, AND BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND STATE. BORROWER
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY
LITIGATION BROUGHT AGAINST BORROWER BY BANK IN ACCORDANCE WITH THIS PARAGRAPH.
6.12 BORROWER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING (I) TO ENFORCE OR DEFNED ANY RIGHTS
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE OTHER AGREEMENTS, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR (II) ARISING FROM
ANY DISPUTE OR CONTROVERSY ARISING IN CONNECTION WITH OR RELATED TO THIS
AGREEMENT, THE OTHER AGREEMENTS OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT, COUNTERCLAIM OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
and year specified at the beginning hereof.
MARCHFIRST, INC.
a Delaware corporation
BY: /s/ Bert B. Young
------------------------
ITS: Chief Financial Officer
Accepted this 30th day of April, 2000, at Bank's principal place of
business in the City of Chicago, State of Illinois.
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
BY: /s/ Andy Salski
------------------------
ITS: Vice President
