Committed Line Of Credit Note (Multi-Rate Options)
Exhibit 10.3
Committed Line Of Credit Note
(Multi-Rate Options)
(Multi-Rate Options)
| $15,000,000.00 | 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 FIFTEEN MILLION and 00/100 DOLLARS
($15,000,000.00) (the “Facility”) or such lesser amount as may be advanced to or for the benefit of
the Borrower hereunder, together with interest accruing on the outstanding principal balance from
the date hereof, all as provided below.
1. Advances. The Borrower may request advances, repay and request additional advances
hereunder until the Line of Credit Expiration Date, subject to the terms and conditions of this
Note and the Loan Documents (as hereinafter defined). The “Line of Credit Expiration Date” shall
mean August 2, 2013, or such later date as may be designated by the Bank by written notice from the
Bank to the Borrower. The Borrower acknowledges and agrees that in no event will the Bank be under
any obligation to extend or renew the Facility or this Note beyond the Line of Credit Expiration
Date. The Borrower may request advances hereunder upon giving oral or written notice to the Bank
by 11:00 a.m. (Philadelphia, Pennsylvania time) (a) on the day of the proposed advance, in the case
of advances to bear interest under the Base Rate Option or the Daily LIBOR Rate Option (as each
such term is hereinafter defined) and (b) three (3) Business Days prior to the proposed advance, in
the case of advances to bear interest under the LIBOR Option (as hereinafter defined), followed
promptly thereafter by the Borrower’s written confirmation to the Bank of any oral notice. The
aggregate unpaid principal amount of advances under this Note shall not exceed the face amount of
this Note.
2. Rate of Interest. Each advance 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 advance 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 advances 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 advance 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 advances 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 advance bearing interest at the Base
Rate Option, the LIBOR Option or the Daily LIBOR Rate Option, 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.
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“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 advance 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 an amount comparable to such advance 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, as to any advance to which the LIBOR Option applies, the
period of one (1), two (2), three (3) or six (6) months as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, commencing on the date of
disbursement of an advance (or the date of conversion of an advance 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 Line of Credit Expiration Date, 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 advance to which the LIBOR
Option, Daily LIBOR Rate Option or Base 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 advances 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 advances
under the LIBOR Option or (ii) immediately in the case of advances under the Daily LIBOR Rate
Option.
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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 advances then bearing interest under the LIBOR Option
or the Daily LIBOR Rate Option, as the case may be, 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 advances based on LIBOR to such day, (ii) immediately if the Bank may not
lawfully continue to maintain advances based on LIBOR or (iii) immediately in the case of advances
under the Daily LIBOR Rate Option.
The foregoing notwithstanding, it is understood that the Borrower may select different Options to
apply simultaneously to different portions of the advances and may select up to three (3) different
interest periods to apply simultaneously to different portions of the advances 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.
3. Interest Rate Election. Subject to the terms and conditions of this Note, at the end of
each interest period applicable to any advance, the Borrower may renew the Option applicable to
such advance or convert such advance to a different Option; provided that, during any period in
which any Event of Default (as hereinafter defined) has occurred and is continuing, any advances
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 any new advances (or with respect to the
conversion or renewal of any existing advances) 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 advances then outstanding 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 which the resulting advance 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 advance, 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.
4. Advance Procedures. A request for advance made by telephone must be promptly confirmed
in writing by such method as the Bank may require. The Borrower authorizes the Bank to accept
telephonic requests for advances, and the Bank shall be entitled to rely upon the authority of any
person providing such instructions. The Borrower hereby indemnifies and holds the Bank harmless
from and against any and all damages, losses, liabilities, costs and expenses (including reasonable
attorneys’ fees and expenses) which may arise or be created by the acceptance of such telephone
requests or making such advances. The Bank will enter on its books and records, which entry when
made will be presumed correct, the date and amount of each advance, the interest rate and interest
period applicable thereto, as well as the date and amount of each payment.
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5. Payment Terms. The Borrower shall pay accrued interest on the unpaid principal balance
of this Note in arrears: (a) for the portion of advances 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 the portion of advances bearing interest under the LIBOR Option, on the last day of the
respective LIBOR Interest Period for such advance, (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 advances, at maturity, whether by acceleration of this
Note or otherwise, and after maturity, on demand until paid in full. All outstanding principal and
accrued interest hereunder shall be due and payable in full on the Line of Credit Expiration 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.
6. 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, each advance 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.
7. Prepayment. The Borrower shall have the right to prepay any advance 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 8 below.
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8. 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 advance (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 advance 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 advance bearing interest under the
LIBOR Option on a day other than the last day of the applicable LIBOR Interest Period. 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 the advances and all
other amounts payable hereunder.
9. 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.
10. 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.
11. 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.
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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.
12. 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.
13. 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 advance hereunder and the assignment of any rights hereunder. The Borrower may participate
at its expense in the defense of any such action or claim.
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14. 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.
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.
10
15. 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.
16. Substitution. This Note is in substitution for that certain Committed Line of Credit
Note in the original principal amount of $10,000,000.00 payable to the order of the Bank and dated
February 25, 2010 (the “Existing Note”). However, without duplication, this Note shall in no way
extinguish, cancel or satisfy the Borrower’s unconditional obligation to repay all indebtedness
evidenced by the Existing Note or constitute a novation of the Existing Note. Nothing herein is
intended to extinguish, cancel or impair the lien priority or effect of any security agreement,
pledge agreement or mortgage with respect to any Obligor’s obligations hereunder and under any
other document relating hereto.
17. 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.
[CONTINUED ON NEXT PAGE]
11
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
|
Name: | Xxxxxx Xxxxxxxx | ||||
Title: Secretary
|
Title: | Chief Financial Officer | ||||
| WITNESS / ATTEST: | ICG COMMERCE INVESTMENTS, LLC | |||||
| /s/ Xxxxxxx Xxxx | By: | /s/ Xxxx X. Xxxxxxx | ||||
Print Name: Xxxxxxx Xxxx
|
Name: | Xxxx X. Xxxxxxx | ||||
Title: Secretary
|
Title: | Manager | ||||
| WITNESS / ATTEST: | ICG COMMERCE INTERNATIONAL, LLC | |||||
| /s/ Xxxxxxx Xxxx | By: | /s/ Xxxxxx Xxxxxxxx | ||||
Print Name: Xxxxxxx Xxxx
|
Name: | Xxxxxx Xxxxxxxx | ||||
Title: Secretary
|
Title: | Treasurer | ||||
| WITNESS / ATTEST: | ICG COMMERCE HOLDINGS, INC. | |||||
| /s/ Xxxxxxx Xxxx | By: | /s/ Xxxxxx Xxxxxxxx | ||||
Print Name: Xxxxxxx Xxxx
|
Name: | Xxxxxx Xxxxxxxx | ||||
Title: Secretary
|
Title: | Chief Financial Officer | ||||
