Exhibit 10.14.2
SECOND AMENDMENT TO LETTER OF CREDIT AGREEMENT
This Second Amendment to Letter of Credit Agreement (the "Amendment") is entered
into as of December 15, 2004, by and between COMERICA BANK ("Bank") and INTERNET
CAPITAL GROUP, INC. ("ICG"), ICG HOLDINGS, INC. ("ICG Holdings"), and INTERNET
CAPITAL GROUP OPERATIONS, INC. ("ICG Operations")(ICG, ICG Holdings, and ICG
Operations are sometimes referred to, individually, as a "Borrower" and
collectively, as the "Borrowers").
RECITALS
Borrowers and Bank are parties to that certain Letter of Credit Agreement
dated as of September 30, 2002 (as amended from time to time, including without
limitation that certain First Amendment to Loan and Security Agreement dated
October 20, 2003, together with any related agreements, the "Agreement").
Hereinafter, all indebtedness owing by Borrowers to Bank shall be referred to as
the "Indebtedness." The parties desire to amend the Agreement in accordance with
the terms of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
I. Incorporation by Reference. The Recitals and the documents referred to
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therein are incorporated herein by this reference. Except as otherwise
noted, the terms not defined herein shall have the meaning set forth in
the Agreement.
II. Amendment to the Agreement. Subject to the satisfaction of the conditions
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precedent as set forth in Article IV hereof, the Agreement is hereby
amended as set forth below.
A. The definition of "Revolving Maturity Date" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety to read as
follows:
"Revolving Maturity Date" means December 14, 2005.
B. Bank's addresses for notices set forth in Section 10 of the
Agreement are hereby amended in their entirety to read as follows:
"If to Bank: Comerica Bank
0000 Xxxxxxxxx Xxx., Xxxxx 0000
Xx Xxxxxxx, XX 00000
Attn: Manager
FAX: (000) 000-0000
With a copy to: Comerica Bank
0000 Xxxx Xxxx Xxxx,Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
FAX: (000) 000-0000"
C. A new Section 14 is hereby added to the Agreement to read as
follows:
"14. Reference Provision.
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The parties prefer that any dispute between them be resolved in litigation
subject to a Jury Trial Waiver as set forth in the Loan Documents (defined
below), but the availability of that process is in doubt because of the opinion
of the California Court of Appeal in Grafton Partners LP v. Superior Court, 9
Cal.Rptr.3d 511. This Reference Provision will be applicable until the
California Supreme Court completes its review of that case, and will continue to
be applicable if either that court or a California Court of Appeal publishes a
decision holding that a pre-dispute Jury Trial Waiver provision similar to that
contained in the Loan Documents is invalid or unenforceable. Delay in requesting
appointment of a referee pending review of any such decision, or participation
in litigation pending review, will not be deemed a waiver of this Reference
Provision.
Other than (i) nonjudicial foreclosure of security interests in real or
personal property, (ii) the appointment of a receiver or (iii) the exercise of
other provisional remedies (any of which may be initiated pursuant to applicable
law), any controversy, dispute or claim (each, a "Claim") between the parties
arising out of or relating to this Agreement or any other document, instrument
or agreement between the Bank and the undersigned (collectively in this Section,
the "Loan Documents"), will be resolved by a reference proceeding in California
in accordance with the provisions of Section 638 et seq. of the California Code
of Civil Procedure ("CCP"), or their successor sections, which shall constitute
the exclusive remedy for the resolution of any Claim, including whether the
Claim is subject to the reference proceeding. Except as otherwise provided in
the Loan Documents, venue for the reference proceeding will be in the Superior
Court or Federal District Court in the County or District where venue is
otherwise appropriate under applicable law (the "Court").
The referee shall be a retired Judge or Justice selected by mutual written
agreement of the parties. If the parties do not agree, the referee shall be
selected by the Presiding Judge of the Court (or his or her representative). A
request for appointment of a referee may be heard on an ex parte or expedited
basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted. The referee shall be appointed to sit with all the powers
provided by law. Each party shall have one peremptory challenge pursuant to CCP
Section 170.6. Pending appointment of the referee, the Court has power to issue
temporary or provisional remedies.
The parties agree that time is of the essence in conducting the reference
proceedings. Accordingly, the referee shall be requested to (a) set the matter
for a status and trial-setting conference within fifteen (15) days after the
date of selection of the referee, (b) if practicable, try all issues of law or
fact within ninety (90) days after the date of the conference and (c) report a
statement of decision within twenty (20) days after the matter has been
submitted for decision. Any decision rendered by the referee will be final,
binding and conclusive, and judgment shall be entered pursuant to CCP
Section 644.
The referee will have power to expand or limit the amount and duration of
discovery. The referee may set or extend discovery deadlines or cutoffs for good
cause, including a party's failure to provide requested discovery for any reason
whatsoever. Unless otherwise ordered, no party shall be entitled to "priority"
in conducting discovery, depositions may be taken by either party upon seven (7)
days written notice, and all other discovery shall be responded to within
fifteen (15) days after service. All disputes relating to discovery which cannot
be resolved by the parties shall be submitted to the referee whose decision
shall be final and binding.
Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of hearings, the order of presentation of evidence, and all
other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter, except that when any
party so requests, a court reporter will be used at any hearing conducted before
the referee, and the referee will be provided a courtesy copy of the transcript.
The party making such a request shall have the obligation to arrange for and pay
the court reporter. Subject to the referee's power to award costs to the
prevailing party, the parties will equally share the cost of the referee and the
court reporter at trial.
The referee shall be required to determine all issues in accordance with
existing case
law and the statutory laws of the State of California. The rules of evidence
applicable to proceedings at law in the State of California will be applicable
to the reference proceeding. The referee shall be empowered to enter equitable
as well as legal relief, provide all temporary or provisional remedies, enter
equitable orders that will be binding on the parties and rule on any motion
which would be authorized in a trial, including without limitation motions for
summary judgment or summary adjudication . The referee shall issue a decision at
the close of the reference proceeding which disposes of all claims of the
parties that are the subject of the reference. The referee's decision shall be
entered by the Court as a judgment or an order in the same manner as if the
action had been tried by the Court. The parties reserve the right to appeal from
the final judgment or order or from any appealable decision or order entered by
the referee. The parties reserve the right to findings of fact, conclusions of
laws, a written statement of decision, and the right to move for a new trial or
a different judgment, which new trial, if granted, is also to be a reference
proceeding under this provision.
If the enabling legislation which provides for appointment of a referee is
repealed (and no successor statute is enacted), any dispute between the parties
that would otherwise be determined by reference procedure will be resolved and
determined by arbitration. The arbitration will be conducted by a retired judge
or Justice, in accordance with the California Arbitration Act Section 1280
through Section 1294.2 of the CCP as amended from time to time. The limitations
with respect to discovery set forth above shall apply to any such arbitration
proceeding.
THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED UNDER THIS REFERENCE
PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY, AND THAT THEY ARE IN
EFFECT WAIVING THEIR RIGHT TO TRIAL BY JURY IN AGREEING TO THIS REFERENCE
PROVISION. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR
MUTUAL BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE
BETWEEN THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT OR THE LOAN
DOCUMENTS."
III. Legal Effect.
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A. The Agreement is hereby amended wherever necessary to reflect the
changes described above. Borrowers agree that each Borrower has no
defenses against the obligations to pay any amounts under the
Indebtedness.
B. Each Borrower understands and agrees that in modifying the existing
Indebtedness, Bank is relying upon each Borrower's representations,
warranties, and agreements, as set forth in the Agreement. Except as
expressly modified pursuant to this Amendment, the terms of the
Agreement remain unchanged, and in full force and effect. Bank's
agreement to modifications to the existing Indebtedness pursuant to
this Amendment in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Amendment shall
constitute a satisfaction of the Indebtedness. It is the intention
of Bank and each Borrower to retain as liable parties, all makers
and endorsers of Agreement, unless the party is expressly released
by Bank in writing. No maker, endorser, or guarantor will be
released by virtue of this Amendment. The terms of this paragraph
apply not only to this Amendment, but also to all subsequent loan
modification requests.
C. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one instrument. This is an integrated Amendment and
supersedes all prior negotiations and agreements regarding the
subject matter hereof. All modifications hereto must be in writing
and signed by the parties.
IV. Conditions Precedent. Except as specifically set forth in this Amendment,
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all of the terms and conditions of the Agreement remain in full force and
effect. The effectiveness of this Agreement is conditioned upon receipt by
Bank of this Amendment, and any other documents which Bank may require to
carry out the terms hereof, including but not limited to the following:
A. This Amendment, duly executed by Borrowers;
B. Corporation Resolutions and Incumbency Certification, duly executed
by each Borrower;
C. A legal fee from the Borrowers in the amount of $250; and
D. Such other documents, and completion of such other matters, as Bank
may reasonably deem necessary or appropriate.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
INTERNET CAPITAL GROUP, INC. INTERNET CAPITAL GROUP
OPERATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President, Treasury & Tax Title: Vice President, Treasury & Tax
ICG HOLDINGS, INC. COMERICA BANK
By:/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxx
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Title: Vice President Title: Assistant Vice President
