Term Note (Multi-Rate Options) $20,000,000 August 3, 2010
Exhibit 10.2
| Term Note (Multi-Rate Options) |
 |
| $20,000,000 | August 3, 2010 |
FOR VALUE RECEIVED, ICG COMMERCE, INC., ICG COMMERCE INVESTMENTS, LLC, ICG COMMERCE INTERNATIONAL,
LLC and ICG COMMERCE HOLDINGS, INC. (individually and collectively, the “Borrower”), with an
address at 000 Xxxxx Xxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000, jointly and
severally promise to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the “Bank"), in lawful
money of the United States of America in immediately available funds at its offices located at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other location as the Bank may
designate from time to time, the principal sum of TWENTY MILLION DOLLARS ($20,000,000), together
with interest accruing on the outstanding principal balance from the date hereof, all as provided
below.
1. Rate of Interest. Amounts outstanding under this Note will bear interest at a rate or
rates per annum as may be selected by the Borrower from the interest rate options set forth below
(each, an “Option”):
(i) Base Rate Option. A rate of interest per annum which is at all times equal to (A)
the Base Rate plus (B) the Applicable Margin. If and when the Base Rate (or any component thereof)
changes, the rate of interest with respect to any amounts to which the Base Rate Option applies
will change automatically without notice to the Borrower, effective on the date of any such change.
There are no required minimum interest periods for amounts bearing interest under the Base Rate
Option.
(ii) LIBOR Option. A rate per annum equal to (A) LIBOR plus (B) the
Applicable Margin, for the applicable LIBOR Interest Period.
(iii) Daily LIBOR Rate Option. A rate of interest per annum which is at all times
equal to (A) the Daily LIBOR Rate plus (B) the Applicable Margin. If and when the Daily LIBOR Rate
changes, the rate of interest with respect to any amounts to which the Daily LIBOR Rate Option
applies will change automatically without notice to the Borrower, effective on the date of any such
change. There are no required minimum interest periods for amount bearing interest under the Daily
LIBOR Rate Option.
For purposes hereof, the following terms shall have the following meanings:
“Applicable Margin” for any day, with respect to any amount to which the Base Rate Option,
the LIBOR Option or the Daily LIBOR Rate Option applies, as the case may be, is the
percentage set forth below in the applicable column and row corresponding to the Borrower’s
ratio of Total Debt to EBITDA (as such terms are defined in the Loan Documents (as
hereinafter defined)):
| LIBOR Option or Daily | ||||||||||||
| Level | Total Debt to EBITDA | Base Rate Option | LIBOR Rate Option | |||||||||
| I | Less than 1.00 to 1.00 |
0 | % | 1.75 | % | |||||||
| II | Greater than or equal to 1.00 to 1.00
but less than 1.50 to 1.00 |
0 | % | 2.00 | % | |||||||
| III | Greater than or equal to 1.50 to 1.00
but less than 2.00 to 1.00 |
0 | % | 2.25 | % | |||||||
| IV | Greater than or equal to 2.00 to 1.00 |
0 | % | 2.50 | % | |||||||
Notwithstanding anything herein to the contrary, the Applicable Margin will be adjusted by
the Bank as necessary on a quarterly basis as of the first Business Day (as hereafter
defined) of the month following
the delivery of the Borrower’s Financial Statements (as defined in the Loan Documents) and
compliance certificate for the immediately preceding fiscal quarter as required by the Loan
Documents based upon the ratio of Total Debt to EBITDA determined by the Bank pursuant to
those Financial Statements; provided that (i) prior to the delivery of the Financial
Statements for the period ending June 30, 2010, the Applicable Margin will be Level II, and
(ii) thereafter if the Borrower fails to deliver any such Financial Statements or such
compliance certificate as and when required by the Loan Documents, the Applicable Margin
will automatically be adjusted on the first Business Day of the month following the due date
for such Financial Statements to the highest Applicable Margin and will stay at such rate
until the first Business Day following the month in which such Financial Statements and
compliance certificate are actually delivered.
“Base Rate” shall mean the highest of (A) the Prime Rate, and (B) the sum of the
Federal Funds Open Rate plus fifty (50) basis points (0.50%), and (C) the sum of the
Daily LIBOR Rate plus one hundred (100) basis points (1.0%), so long as a Daily
LIBOR Rate is offered, ascertainable and not unlawful.
“Business Day” shall mean any day other than a Saturday or Sunday or a legal holiday on
which commercial banks are authorized or required by law to be closed for business in
Philadelphia, Pennsylvania.
“Daily LIBOR Rate” shall mean, for any day, the rate per annum determined by the Bank by
dividing (x) the Published Rate by (y) a number equal to 1.00 minus the LIBOR
Reserve Percentage.
“Federal Funds Open Rate” shall mean, for any day, the rate per annum (based on a year of
360 days and actual days elapsed) which is the daily federal funds open rate as quoted by
ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for
that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that
displays such rate), or as set forth on such other recognized electronic source used for the
purpose of displaying such rate as selected by the Bank (an “Alternate Source”) (or if such
rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or
on any Alternate Source, or if there shall at any time, for any reason, no longer exist a
Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable
replacement rate determined by the Bank at such time (which determination shall be
conclusive absent manifest error); provided however, that if such day is not a Business Day,
the Federal Funds Open Rate for such day shall be the “open” rate on the immediately
preceding Business Day. The rate of interest charged shall be adjusted as of each Business
Day based on changes in the Federal Funds Open Rate without notice to the Borrower.
“LIBOR” shall mean, with respect to any amount to which the LIBOR Option applies for the
applicable LIBOR Interest Period, the interest rate per annum determined by the Bank by
dividing (the resulting quotient rounded upwards, at the Bank’s discretion, to the nearest
1/100th of 1%) (i) the rate of interest determined by the Bank in accordance with
its usual procedures (which determination shall be conclusive absent manifest error) to be
the eurodollar rate two (2) Business Days prior to the first day of such LIBOR Interest
Period for such amount and having a borrowing date and a maturity comparable to such LIBOR
Interest Period by (ii) a number equal to 1.00 minus the LIBOR Reserve Percentage.
“LIBOR Interest Period” shall mean, with respect to any amount to which the LIBOR Option
applies, the period of one (1), two (2), three (3) or six (6) month/months as selected by
the Borrower on the date of disbursement of such amount (or the date of conversion of any
amount to the LIBOR Option, as the case may be) and each successive period selected by the
Borrower thereafter; provided that, (i) if a LIBOR Interest Period would end
on a day which is not a Business Day, it shall end on the next succeeding Business Day
unless such day falls in the next succeeding calendar month in which case the LIBOR Interest
Period shall end on the next preceding Business Day, (ii) the Borrower may not select a
LIBOR Interest Period that would end on a day after the Term Loan Maturity Date (as
hereinafter defined), and (iii) any LIBOR Interest Period that begins on the last Business
Day of a calendar month (or a day for which there is no numerically corresponding day in the
last calendar month of such LIBOR
Interest Period) shall end on the last Business Day of the last calendar month of such LIBOR
Interest Period.
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“LIBOR Reserve Percentage” shall mean the maximum effective percentage in effect on such day
as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation, supplemental, marginal
and emergency reserve requirements) with respect to eurocurrency funding (currently referred
to as “Eurocurrency liabilities”).
“Prime Rate” shall mean the rate publicly announced by the Bank from time to time as its
prime rate. The Prime Rate is determined from time to time by the Bank as a means of
pricing some loans to its borrowers. The Prime Rate is not tied to any external rate of
interest or index, and does not necessarily reflect the lowest rate of interest actually
charged by the Bank to any particular class or category of customers.
“Published Rate” shall mean the rate of interest published each Business Day in the Wall
Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for
a one month period (or, if no such rate is published therein for any reason, then the
Published Rate shall be the eurodollar rate for a one month period as published in another
publication selected by the Bank).
LIBOR and the Daily LIBOR Rate shall be adjusted with respect to any amounts to which the LIBOR
Option, Base Rate Option or the Daily LIBOR Rate Option applies, as applicable, on and as of the
effective date of any change in the LIBOR Reserve Percentage. The Bank shall give prompt notice to
the Borrower of LIBOR as determined or adjusted in accordance herewith, which determination shall
be conclusive absent manifest error. The Bank’s determination of the Daily LIBOR Rate, as
determined or adjusted in accordance herewith, shall be conclusive absent manifest error.
If the Bank determines (which determination shall be final and conclusive) that, by reason of
circumstances affecting the eurodollar market generally, deposits in dollars (in the applicable
amounts) are not being offered to banks in the eurodollar market for the selected term, or adequate
means do not exist for ascertaining LIBOR or the Daily LIBOR Rate, then the Bank shall give notice
thereof to the Borrower. Thereafter, until the Bank notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, (a) the availability of the LIBOR Option and the
Daily LIBOR Rate Option shall be suspended, and (b) the interest rate for all amounts then bearing
interest under the LIBOR Option or the Daily LIBOR Rate Option shall be converted to the Base Rate
Option (i) at the expiration of the then current LIBOR Interest Period(s) in the case of amounts to
which the LIBOR Option applies or (ii) immediately in the case of amounts to which the Daily LIBOR
Rate Option applies.
In addition, if, after the date of this Note, the Bank shall determine (which determination shall
be final and conclusive) that any enactment, promulgation or adoption of or any change in any
applicable law, rule or regulation, or any change in the interpretation or administration thereof
by a governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or directive (whether
or not having the force of law) of any such authority, central bank or comparable agency shall make
it unlawful or impossible for the Bank to make or maintain or fund loans based on LIBOR or the
Daily LIBOR Rate, the Bank shall notify the Borrower. Upon receipt of such notice, until the Bank
notifies the Borrower that the circumstances giving rise to such determination no longer apply, (a)
the availability of the LIBOR Option and the Daily LIBOR Rate Option shall be suspended, and (b)
the interest rate on all amounts then bearing interest under the LIBOR Option or the Daily LIBOR
Rate Option shall be converted to the Base Rate Option either (i) on the last day of the then
current LIBOR Interest Period(s) if the Bank may lawfully continue to maintain or fund loans based
on LIBOR to such day, (ii) immediately if the Bank may not lawfully continue to maintain or fund
loans based on LIBOR or (iii) immediately in the case of amounts to which the Daily LIBOR Rate
Option applies.
The foregoing notwithstanding, it is understood that the Borrower may select different Options to
apply simultaneously to different portions of this Note and may select up to three (3) different
interest periods to apply
simultaneously to different portions of this Note bearing interest under the LIBOR Option.
Interest hereunder will be calculated based on the actual number of days that principal is
outstanding over a year of 360 days. In no event will the rate of interest hereunder exceed the
maximum rate allowed by law.
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2. Interest Rate Election. Subject to the terms and conditions of this Note, at the end of
each interest period applicable to any amounts hereunder, the Borrower may renew the Option
applicable to such amounts or convert such amounts to a different Option; provided
that, during any period in which any Event of Default (as hereinafter defined) has occurred
and is continuing any amounts bearing interest under the LIBOR Option shall, at the Bank’s sole
discretion, be converted at the end of the applicable LIBOR Interest Period to the Daily LIBOR Rate
Option, and the LIBOR Option will not be available to Borrower with respect to the conversion or
renewal of any other amounts until such Event of Default has been cured by the Borrower or waived
by the Bank. The Borrower shall notify the Bank of each election of an Option, each conversion
from one Option to another, the amount of the portions hereunder to be allocated to each Option and
where relevant the interest periods therefor. In the case of converting to the LIBOR Option, such
notice shall be given at least three (3) Business Days prior to the commencement of any LIBOR
Interest Period. If no interest period is specified in any such notice for an amount that is to
bear interest under the LIBOR Option, the Borrower shall be deemed to have selected a LIBOR
Interest Period of one month’s duration. If no notice of election, conversion or renewal is timely
received by the Bank with respect to any amount hereunder, the Borrower shall be deemed to have
elected the Daily LIBOR Rate Option. Any such election shall be promptly confirmed in writing by
such method as the Bank may require.
3. Payment of Interest. The Borrower shall pay accrued interest on the unpaid principal
balance of this Note in arrears: (a) for amounts hereunder bearing interest under the Base Rate
Option or the Daily LIBOR Rate Option, on the first day of each month during the term hereof, (b)
for amounts hereunder bearing interest under the LIBOR Option, on the last day of the respective
LIBOR Interest Period for such amounts, (c) if any LIBOR Interest Period is longer than three (3)
months, then also on the three (3) month anniversary of such interest period and every three (3)
months thereafter, and (d) for all outstanding amounts, at maturity, whether by acceleration of
this Note or otherwise, and after maturity, on demand until paid in full.
4. Payment of Principal. Principal shall be due and payable in fifty nine (59) equal
consecutive monthly installments in the amount of $333,333.33 each, commencing on September 1, 2010
and continuing on the 1st day of each month thereafter, and a final installment of $333,333.53 on
August 1, 2015. Any outstanding principal and accrued interest shall be due and payable in full on
August 1, 2015 (the “Term Loan Maturity Date").
If any payment under this Note shall become due on a Saturday, Sunday or public holiday under the
laws of the State where the Bank’s office indicated above is located, such payment shall be made on
the next succeeding Business Day and such extension of time shall be included in computing interest
in connection with such payment. The Borrower hereby authorizes the Bank to charge the Borrower’s
deposit account at the Bank for any payment when due hereunder. Payments received will be applied
to charges, fees and expenses (including attorneys’ fees), accrued interest and principal in any
order the Bank may choose, in its sole discretion.
5. Late Payments; Default Rate. If the Borrower fails to make any payment of principal,
interest or other amount coming due pursuant to the provisions of this Note within fifteen (15)
calendar days of the date due and payable, the Borrower also shall pay to the Bank a late charge
equal to the lesser of five percent (5%) of the amount of such payment or $100.00 (the “Late
Charge"). Such fifteen (15) day period shall not be construed in any way to extend the due date of
any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank’s
option upon the occurrence of any Event of Default (as hereinafter defined) and during the
continuance thereof, amounts outstanding under this Note shall bear interest at a rate per annum
(based on the actual number of days that principal is outstanding over a year of 360 days) which
shall be three percentage points (3%) in excess of the interest rate in effect from time to time
under this Note but not more than the maximum rate allowed by law (the “Default Rate"). The
Default Rate shall continue to apply whether or not judgment shall be entered on this Note. Both
the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying
the Bank’s expenses incident to the handling of delinquent payments, but are in addition to, and
not in lieu of, the Bank’s exercise of any rights and remedies hereunder, under the other
Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which
the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank
of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate
are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank,
and that the actual harm incurred by the Bank cannot be estimated with certainty and without
difficulty.
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6. Prepayment. The Borrower shall have the right to prepay any amount hereunder at any
time and from time to time, in whole or in part; subject, however, to payment of any break funding
indemnification amounts owing pursuant to paragraph 7 below.
7. Yield Protection; Break Funding Indemnification. The Borrower shall pay to the Bank on
written demand therefor, together with the written evidence of the justification therefor, all
direct costs incurred, losses suffered or payments made by Bank by reason of any change in law or
regulation or its interpretation imposing any reserve, deposit, allocation of capital, or similar
requirement (including without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) on the Bank, its holding company or any of their respective assets. In addition,
the Borrower agrees to indemnify the Bank against any liabilities, losses or expenses (including,
without limitation, loss of margin, any loss or expense sustained or incurred in liquidating or
employing deposits from third parties, and any loss or expense incurred in connection with funds
acquired to effect, fund or maintain any amounts hereunder (or any part thereof) bearing interest
under the LIBOR Option) which the Bank sustains or incurs as a consequence of either (i) the
Borrower’s failure to make a payment on the due date thereof, (ii) the Borrower’s revocation
(expressly, by later inconsistent notices or otherwise) in whole or in part of any notice given to
Bank to request, convert, renew or prepay any amounts bearing interest under the LIBOR Option, or
(iii) the Borrower’s payment or prepayment (whether voluntary, after acceleration of the maturity
of this Note or otherwise) or conversion of any amounts bearing interest under the LIBOR Option on
a day other than the regularly scheduled due date therefor. A notice as to any amounts payable
pursuant to this paragraph given to the Borrower by the Bank shall, in the absence of manifest
error, be conclusive and shall be payable upon demand. The Borrower’s indemnification obligations
hereunder shall survive the payment in full of all amounts payable hereunder.
8. Other Loan Documents. This Note is issued in connection with a letter agreement between
the Borrower and the Bank, dated on or before the date hereof, and the other agreements and
documents executed and/or delivered in connection therewith or referred to therein, the terms of
which are incorporated herein by reference (as amended, modified, restated or renewed from time to
time, collectively the “Loan Documents"), and is secured by the property (if any) described in the
Loan Documents and by such other collateral as previously may have been or may in the future be
granted to the Bank to secure this Note.
9. Events of Default. The occurrence of any of the following events will be deemed to be
an “Event of Default” under this Note: (i) the nonpayment of any principal under this Note when
due, or the nonpayment of any interest or other indebtedness under this Note within three (3)
Business Days of the date when due; (ii) the occurrence of any event of default or any default and
the lapse of any notice or cure period, or any Obligor’s failure to observe or perform any covenant
or other agreement, under or contained in any Loan Document; (iii) the filing by or against any
Obligor of any proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation,
conservatorship or similar proceeding (and, in the case of any such proceeding instituted against
any Obligor, such proceeding is not dismissed or stayed within 45 days of the commencement thereof,
provided that the Bank shall not be obligated to advance additional funds hereunder during such
period); (iv) any assignment by any Obligor for the benefit of creditors, or any levy, garnishment,
attachment or similar proceeding is instituted against any property of any Obligor held by or
deposited with the Bank; (v) a default with respect to any other indebtedness of any Obligor for
borrowed money in excess of $250,000 individually or in the aggregate, if the effect of such
default is to cause or permit the acceleration of such debt; (vi) the commencement of any
foreclosure or forfeiture proceeding, execution or attachment against any collateral securing the
obligations of any Obligor to the Bank; (vii) the entry of one or more final judgments against any
Obligor in excess of $250,000 individually or in the aggregate and the failure of such Obligor to
discharge the judgments within ten (10) days of
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the entry thereof; (viii) any material adverse
change in any Obligor’s business, assets, operations, financial
condition or results of operations; (ix) any Obligor ceases doing business as a going concern; (x)
any representation or warranty made by any Obligor to the Bank in any Loan Document or any other
documents now or in the future evidencing or securing the obligations of any Obligor to the Bank,
is false, erroneous or misleading in any material respect; (xi) if this Note or any guarantee
executed by any Obligor is secured, the failure of any Obligor to provide the Bank with additional
collateral if in the Bank’s reasonable opinion at any time or times, the market value of any of the
collateral securing this Note or any guarantee has depreciated below that required pursuant to the
Loan Documents or, if no specific value is so required, then in an amount deemed material by the
Bank; (xii) the revocation or attempted revocation, in whole or in part, of any guarantee by any
Obligor; or (xiii) the death, incarceration, indictment or legal incompetency of any individual
Obligor or, if any Obligor is a partnership or limited liability company, the death, incarceration,
indictment or legal incompetency of any individual general partner or member. As used herein, the
term “Obligor” means any Borrower and any guarantor of, or any pledgor, mortgagor or other person
or entity providing collateral support for, the Borrower’s obligations to the Bank existing on the
date of this Note or arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no further obligation to
make advances hereunder; (b) if an Event of Default specified in clause (iii) or (iv) above shall
occur, the outstanding principal balance and accrued interest hereunder together with any
additional amounts payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding principal balance and
accrued interest hereunder together with any additional amounts payable hereunder, at the Bank’s
option and without demand or notice of any kind, may be accelerated and become immediately due and
payable; (d) at the Bank’s option, this Note will bear interest at the Default Rate from the date
of the occurrence of the Event of Default; and (e) the Bank may exercise from time to time any of
the rights and remedies available under the Loan Documents or under applicable law.
10. Power to Confess Judgment. The Borrower hereby empowers any attorney of any court of
record, after the occurrence of any Event of Default hereunder and upon five (5) days prior written
notice to the Borrower, to appear for the Borrower and, with or without complaint filed, confess
judgment, or a series of judgments, against the Borrower in favor of the Bank or any holder hereof
for the entire principal balance of this Note, all accrued interest and all other amounts due
hereunder, together with costs of suit and an attorney’s commission of the greater of 10% of such
principal and interest or $1,000 added as a reasonable attorney’s fee, and for doing so, this Note
or a copy verified by affidavit shall be a sufficient warrant. The Borrower hereby forever waives
and releases all errors in said proceedings and all rights of appeal and all relief from any and
all appraisement, stay or exemption laws of any state now in force or hereafter enacted. Interest
on any such judgment shall accrue at the Default Rate.
No single exercise of the foregoing power to confess judgment, or a series of judgments, shall be
deemed to exhaust the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void, but the power shall continue undiminished and it may be exercised from
time to time as often as the Bank shall elect until such time as the Bank shall have received
payment in full of the debt, interest and costs. Notwithstanding the attorney’s commission
provided for in the preceding paragraph (which is included in the warrant for purposes of
establishing a sum certain), the amount of attorneys’ fees that the Bank may recover from the
Borrower shall not exceed the actual attorneys’ fees incurred by the Bank.
11. Right of Setoff. In addition to all liens upon and rights of setoff against the
Borrower’s money, securities or other property given to the Bank by law, the Bank shall have, with
respect to the Borrower’s obligations to the Bank under this Note and to the extent permitted by
law, a contractual possessory security interest in and a contractual right of setoff against, and
the Borrower hereby grants the Bank a security interest in, and hereby assigns, conveys, delivers,
pledges and transfers to the Bank, all of the Borrower’s right, title and interest in and to, all
of the Borrower’s deposits, moneys, securities and other property now or hereafter in the
possession of or on deposit with, or in transit to, the Bank or any other direct or indirect
subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account
or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise,
excluding, however, all IRA, Xxxxx, and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to the Borrower. Every such
right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event
of Default hereunder without any action of the Bank, although the Bank may enter such setoff on its
books and records at a later time.
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12. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal entity, if
any, who controls, is controlled by or is under common control with the Bank, and each of their
respective directors, officers and employees (the “Indemnified Parties”), and to hold each
Indemnified Party harmless from and against any and all claims, damages, losses, liabilities and
expenses (including all fees and charges of internal or external counsel with whom any Indemnified
Party may consult and all expenses of litigation and preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party by any person, entity or
governmental authority (including any person or entity claiming derivatively on behalf of the
Borrower), in connection with or arising out of or relating to the matters referred to in this Note
or in the other Loan Documents or the use of any advance hereunder, whether (a) arising from or
incurred in connection with any breach of a representation, warranty or covenant by the Borrower,
or (b) arising out of or resulting from any suit, action, claim, proceeding or governmental
investigation, pending or threatened, whether based on statute, regulation or order, or tort, or
contract or otherwise, before any court or governmental authority; provided,
however, that the foregoing indemnity agreement shall not apply to any claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party’s gross negligence or
willful misconduct. The indemnity agreement contained in this Section shall survive the
termination of this Note, payment of any amounts hereunder and the assignment of any rights
hereunder. The Borrower may participate at its expense in the defense of any such action or claim.
13. Miscellaneous. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder (“Notices”) must be in writing (except as may be
agreed otherwise above with respect to borrowing requests) and will be effective upon receipt.
Notices may be given in any manner to which the parties may separately agree, including electronic
mail. Without limiting the foregoing, first-class mail, facsimile transmission and commercial
courier service are hereby agreed to as acceptable methods for giving Notices. Regardless of the
manner in which provided, Notices may be sent to a party’s address as set forth above or to such
other address as any party may give to the other for such purpose in accordance with this
paragraph. No delay or omission on the Bank’s part to exercise any right or power arising
hereunder will impair any such right or power or be considered a waiver of any such right or power,
nor will the Bank’s action or inaction impair any such right or power. The Bank’s rights and
remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Bank
may have under other agreements, at law or in equity. No modification, amendment or waiver of, or
consent to any departure by the Borrower from, any provision of this Note will be effective unless
made in a writing signed by the Bank, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. The Borrower agrees to pay on demand,
to the extent permitted by law, all costs and expenses incurred by the Bank in the enforcement of
its rights in this Note and in any security therefor, including without limitation reasonable fees
and expenses of the Bank’s counsel. If any provision of this Note is found to be invalid, illegal
or unenforceable in any respect by a court, all the other provisions of this Note will remain in
full force and effect. The Borrower and all other makers and indorsers of this Note hereby forever
waive presentment, protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is executed by more
than one Borrower, the obligations of such persons or entities hereunder will be joint and several.
This Note shall bind the Borrower and its heirs, executors, administrators, successors and
assigns, and the benefits hereof shall inure to the benefit of the Bank and its successors and
assigns; provided, however, that the Borrower may not assign this Note in whole or
in part without the Bank’s written consent and the Bank at any time may assign this Note in whole
or in part.
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This Note has been delivered to and accepted by the Bank and will be deemed to be made in the State
where the Bank’s office indicated above is located. This Note will be interpreted and the
rights and liabilities of the Bank and the Borrower determined in accordance with the laws of the
State where the Bank’s office indicated above is located, excluding its conflict of laws
rules. The Borrower hereby irrevocably consents to the exclusive jurisdiction of any state or
federal court in the county or judicial district where the Bank’s office indicated above is
located; provided that nothing contained in this Note will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any
rights against the Borrower individually, against any security or against any property of the
Borrower within any other county, state or other foreign or domestic jurisdiction. The Borrower
acknowledges and agrees that the venue provided above is the most convenient forum for both the
Bank and the Borrower. The Borrower waives any objection to venue and any objection based on a
more convenient forum in any action instituted under this Note.
14. Authorization to Obtain Credit Reports. By signing below, each Borrower who is an
individual provides written authorization to the Bank or its designee (and any assignee or
potential assignee hereof) to obtain the Borrower’s personal credit profile from one or more
national credit bureaus. Such authorization shall extend to obtaining a credit profile in
considering this Note and subsequently for the purposes of update, renewal or extension of such
credit or additional credit and for reviewing or collecting the resulting account.
15. WAIVER OF JURY TRIAL. The Borrower irrevocably waives any and all rights the
Borrower may have to a trial by jury in any action, proceeding or claim of any nature relating to
this Note, any documents executed in connection with this Note or any transaction contemplated in
any of such documents. The Borrower acknowledges that the foregoing waiver is knowing and
voluntary.
- 8 -
The Borrower acknowledges that it has read and understood all the provisions of this Note,
including the confession of judgment and the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first written above, with
the intent to be legally bound hereby.
WITNESS / ATTEST:
|
ICG COMMERCE, INC. | |
/s/ Xxxxxxx Xxxx
|
By: /s/ Xxxxxx Xxxxxxxx | |
Print Name: Xxxxxxx Xxxx Title: Secretary |
Name: Xxxxxx Xxxxxxxx Title: Chief Financial Officer |
|
WITNESS / ATTEST:
|
ICG COMMERCE INVESTMENTS, LLC | |
/s/ Xxxxxxx Xxxx
|
By: /s/ Xxxx X. Xxxxxxx | |
Print Name: Xxxxxxx Xxxx Title: Secretary |
Name: Xxxx X. Xxxxxxx Title: Manager |
|
WITNESS / ATTEST:
|
ICG COMMERCE INTERNATIONAL, LLC | |
/s/ Xxxxxxx Xxxx
|
By: /s/ Xxxxxx Xxxxxxxx | |
Print Name: Xxxxxxx Xxxx Title: Secretary |
Name: Xxxxxx Xxxxxxxx Title: Treasurer |
|
WITNESS / ATTEST:
|
ICG COMMERCE HOLDINGS, INC. | |
/s/ Xxxxxxx Xxxx
|
By: /s/ Xxxxxx Xxxxxxxx | |
Print Name: Xxxxxxx Xxxx Title: Secretary |
Name: Xxxxxx Xxxxxxxx Title: Chief Financial Officer |
