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Sample Business ContractsHome: Sample Business Contracts:
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INTERNET CAPITAL GROUP, INC.
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$50,000,000 SECURED REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
by and among
INTERNET CAPITAL GROUP, INC.
INTERNET CAPITAL GROUP OPERATIONS, INC.
and
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION, As Agent
Dated as of April 30, 1999
<PAGE>
TABLE OF CONTENTS
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Section Page
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1. CERTAIN DEFINITIONS.................................................. 1
1.1 Certain Definitions............................................. 1
1.2 Construction.................................................... 21
1.2.1 Number; Inclusion........................................ 21
1.2.2 Agent's Discretion and Consent........................... 21
1.2.3 Documents Taken as a Whole............................... 21
1.2.4 Headings................................................. 21
1.2.5 Implied References to this Agreement..................... 21
1.2.6 Persons.................................................. 21
1.2.7 Modifications to Documents............................... 22
1.2.8 From, To and Through..................................... 22
1.2.9 Shall; Will.............................................. 22
1.3 Accounting Principles........................................... 22
2. REVOLVING CREDIT FACILITY............................................ 22
2.1 Revolving Credit Commitments.................................... 22
2.2 Nature of Banks' Obligations with Respect to Revolving Credit
Loans........................................................... 23
2.3 Commitment Fees................................................. 23
2.4 Revolving Credit Closing Fees................................... 23
2.5 Revolving Credit Loan Requests.................................. 23
2.6 Making Revolving Credit Loans................................... 24
2.7 Revolving Credit Notes.......................................... 24
2.8 Letter of Credit Subfacility.................................... 25
2.8.1 Issuance of Letters of Credit............................ 25
2.8.2 Letter of Credit Fees.................................... 25
2.8.3 Disbursements, Reimbursement............................. 25
2.8.4 Repayment of Participation Advances...................... 27
2.8.5 Documentation............................................ 27
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2.8.6 Determinations to Honor Drawing Requests................. 27
2.8.7 Nature of Reimbursement Obligations...................... 27
2.8.8 Indemnity................................................ 29
2.8.9 Liability for Acts and Omissions......................... 29
2.9 Valuation of Private Company Restricted Securities; Sale........ 30
2.10 Sale of Public Company Restricted Securities and Public Company
Unrestricted Securities......................................... 31
3. INTEREST RATES....................................................... 31
3.1 Revolving Credit Interest Rate Options.......................... 31
3.1.1 Revolving Credit Interest Rate Options................... 31
3.1.2 Rate Quotations.......................................... 31
3.2 Interest Periods................................................ 32
3.2.1 Amount of Borrowing Tranche.............................. 32
3.2.2 Renewals................................................. 32
3.3 Interest After Default.......................................... 32
3.3.1 Letter of Credit Fees, Interest Rate..................... 32
3.3.2 Other Obligations........................................ 32
3.3.3 Acknowledgment........................................... 32
3.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits
Not Available................................................... 33
3.4.1 Unascertainable.......................................... 33
3.4.2 Illegality; Increased Costs; Deposits Not Available 33
3.4.3 Agent's and Bank's Rights................................ 33
3.5 Selection of Interest Rate Options.............................. 34
4. PAYMENTS............................................................. 34
4.1 Payments........................................................ 34
4.2 Pro Rata Treatment of Banks..................................... 35
4.3 Interest Payment Dates.......................................... 35
</TABLE>
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<S> <C>
4.4 Prepayments of Loans............................................ 35
4.4.1 Right to Prepay......................................... 35
4.4.2 Mandatory Prepayment of Loans........................... 36
4.4.3 Replacement of a Bank................................... 37
4.4.4 Change of Lending Office................................ 37
4.5 Additional Compensation in Certain Circumstances................ 37
4.5.1 Increased Costs or Reduced Return Resulting from Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc.. 37
4.5.2 Indemnity............................................... 38
5. REPRESENTATIONS AND WARRANTIES....................................... 39
5.1 Representations and Warranties.................................. 39
5.1.1 Organization and Qualification.......................... 39
5.1.2 Capitalization and Ownership............................ 40
5.1.3 Subsidiaries............................................ 40
5.1.4 Power and Authority..................................... 40
5.1.5 Validity and Binding Effect............................. 40
5.1.6 No Conflict............................................. 41
5.1.7 Litigation.............................................. 41
5.1.8 Title to Properties..................................... 41
5.1.9 Financial Statements.................................... 42
5.1.10 Use of Proceeds; Margin Stock........................... 42
5.1.11 Full Disclosure......................................... 43
5.1.12 Taxes................................................... 43
5.1.13 Consents and Approvals.................................. 43
5.1.14 No Event of Default; Compliance with Instruments........ 44
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc.......... 44
5.1.16 Security Interests...................................... 44
5.1.17 Status of the Pledged Collateral........................ 45
5.1.18 Insurance............................................... 45
5.1.19 Compliance with Laws.................................... 45
5.1.20 Material Contracts; Burdensome Restrictions............. 45
5.1.21 Investment Companies; Regulated Entities................ 46
5.1.22 Plans and Benefit Arrangements.......................... 46
5.1.23 Employment Matters...................................... 47
5.1.24 Environmental Matters................................... 47
5.1.25 Senior Debt Status...................................... 48
5.1.26 Year 2000............................................... 48
</TABLE>
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TABLE OF CONTENTS
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5.1.27 Validity and Binding Effect........................... 49
5.1.28 Solvency.............................................. 49
6. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT............. 49
6.1 First Loans and Letters of Credit.............................. 49
6.1.1 Officer's Certificate................................. 49
6.1.2 Secretary's Certificate............................... 50
6.1.3 Delivery of Loan Documents............................ 50
6.1.4 Delivery of Material Contracts, Consents, Certificates
and Powers relating to VerticalNet; Delivery of
Warrant; Closing Date Compliance Certificate.......... 50
6.1.5 Warrant Agreement..................................... 51
6.1.6 Collateral Assignment of Contract Rights.............. 51
6.1.7 Opinion of Counsel.................................... 51
6.1.8 Legal Details......................................... 51
6.1.9 Payment of Fees....................................... 51
6.1.10 Consents.............................................. 52
6.1.11 Officer's Certificate Regarding MACs.................. 52
6.1.12 No Violation of Laws.................................. 52
6.1.13 No Actions or Proceedings............................. 52
6.1.14 Insurance Policies; Certificates of Insurance;
Endorsements.......................................... 52
6.1.15 Actions to Perfect Liens; Lien Searches............... 52
6.1.16 Administrative Questionnaire.......................... 53
6.1.17 Borrowing Base Certificate............................ 53
6.1.18 Comfort Letter from Safeguard Scientifics, Inc........ 53
6.1.19 Minimum Commitments................................... 53
6.2 Each Additional Loan or Letter of Credit....................... 53
7. COVENANTS........................................................... 54
7.1 Affirmative Covenants.......................................... 54
7.1.1 Preservation of Existence, Etc........................ 54
7.1.2 Payment of Liabilities, Including Taxes, Etc.......... 54
7.1.3 Maintenance of Insurance.............................. 55
7.1.4 Maintenance of Properties and Leases.................. 55
7.1.5 Maintenance of Patents, Trademarks, Etc............... 55
7.1.6 Visitation Rights..................................... 55
</TABLE>
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7.1.7 Keeping of Records and Books of Account................ 55
7.1.8 Plans and Benefit Arrangements......................... 56
7.1.9 Compliance with Laws................................... 56
7.1.10 Use of Proceeds........................................ 56
7.1.11 Further Assurances..................................... 56
7.1.12 Subordination of Intercompany Loans.................... 56
7.1.13 Dispositions........................................... 57
7.1.14 Amendments of Purpose Statements....................... 57
7.1.15 Investments............................................ 57
7.1.16 Minimum Margin Value................................... 57
7.1.17 Delivery of Material Contracts......................... 57
7.1.18 Delivery of Consents................................... 58
7.1.19 Delivery of Certificates and Powers.................... 58
7.1.20 Periodic Review of Cost Basis Determinations........... 59
7.1.21 Year 2000 Compliance................................... 59
7.1.22 Subordinated Loan Documents............................ 59
7.2 Negative Covenants.............................................. 60
7.2.1 Indebtedness........................................... 60
7.2.2 Liens.................................................. 60
7.2.3 Guaranties............................................. 60
7.2.4 Loans and Investments.................................. 61
7.2.5 Dividends and Related Distributions.................... 61
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions.... 62
7.2.7 Dispositions of Assets or Subsidiaries................. 62
7.2.8 Affiliate Transactions................................. 63
7.2.9 Subsidiaries, Partnerships and Joint Ventures. 63
7.2.10 Continuation of or Change in Business.................. 63
7.2.11 Plans and Benefit Arrangements......................... 64
7.2.12 Fiscal Year............................................ 64
7.2.13 Changes in Organizational Documents.................... 64
7.2.14 Negative Pledges....................................... 64
7.2.15 Amendment or Waiver of Subordinated Debt; Prepayment of
Subordinated Debt...................................... 64
7.2.16 Minimum Liquidity...................................... 65
7.2.17 Maximum Leverage Ratio................................. 65
7.3 Reporting Requirements.......................................... 66
7.3.1 Quarterly Financial Statements......................... 66
7.3.2 Annual Financial Statements............................ 66
</TABLE>
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TABLE OF CONTENTS
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7.3.3 Quarterly Performance and Financial Information...... 66
7.3.4 Borrowing Base Certificate........................... 67
7.3.5 Certificate of the Borrower.......................... 67
7.3.6 1998 Audited Annual Statements....................... 67
7.3.7 Notice of Default.................................... 68
7.3.8 Notice of Litigation................................. 68
7.3.9 Certain Events....................................... 68
7.3.10 Budgets, Forecasts, Other Reports and Information.... 68
7.3.11 Notices Regarding Plans and Benefit Arrangements..... 69
8. DEFAULT............................................................ 69
8.1 Events of Default............................................. 69
8.1.1 Payments Under Loan Documents........................ 69
8.1.2 Breach of Warranty................................... 70
8.1.3 Breach of Negative Covenants or Visitation Rights.... 70
8.1.4 Breach of Other Covenants............................ 70
8.1.5 Defaults in Other Agreements or Indebtedness......... 70
8.1.6 Final Judgments or Orders............................ 70
8.1.7 Loan Document Unenforceable.......................... 70
8.1.8 Uninsured Losses; Proceedings Against Assets......... 71
8.1.9 Notice of Lien or Assessment......................... 71
8.1.10 Events Relating to Plans and Benefit Arrangements.... 71
8.1.11 Cessation of Business................................ 71
8.1.12 Change of Control.................................... 72
8.1.13 Breach of Subordination Terms........................ 72
8.1.14 Bankruptcy, Insolvency or Reorganization Proceedings. 72
8.1.15 Investment Company Status............................ 73
8.2 Consequences of Event of Default.............................. 73
8.2.1 Events of Default Other Than Bankruptcy, Insolvency
or Reorganization Proceedings........................ 73
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings. 73
8.2.3 Set-off.............................................. 73
8.2.4 Suits, Actions, Proceedings.......................... 74
8.2.5 Application of Proceeds.............................. 74
8.2.6 Other Rights and Remedies............................ 75
8.3 Notice of Sale................................................ 75
</TABLE>
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TABLE OF CONTENTS
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9. THE AGENT........................................................... 75
9.1 Appointment................................................... 75
9.2 Delegation of Duties.......................................... 76
9.3 Nature of Duties; Independent Credit Investigation............ 76
9.4 Actions in Discretion of Agent; Instructions From the Banks... 76
9.5 Reimbursement and Indemnification of Agent by the Borrowers... 77
9.6 Exculpatory Provisions; Limitation of Liability............... 77
9.7 Reimbursement and Indemnification of Agent by Banks........... 78
9.8 Reliance by Agent............................................. 79
9.9 Notice of Default............................................. 79
9.10 Notices....................................................... 79
9.11 Banks in Their Individual Capacities; Agent in its Individual
Capacity...................................................... 79
9.12 Holders of Notes.............................................. 80
9.13 Equalization of Banks......................................... 80
9.14 Successor Agent............................................... 80
9.15 Agent's Fee................................................... 81
9.16 Availability of Funds......................................... 81
9.17 Calculations.................................................. 81
9.18 Beneficiaries................................................. 82
10. MISCELLANEOUS....................................................... 82
10.1 Modifications, Amendments or Waivers....................... 82
10.1.1 Increase of Commitment; Extension of Expiration
Date.............................................. 82
</TABLE>
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10.1.2 Extension of Payment; Reduction of Principal,
Interest or Fees; Modification of Terms of Payment. 82
10.1.3 Release of Collateral or Guarantor................. 83
10.1.4 Miscellaneous...................................... 83
10.2 No Implied Waivers; Cumulative Remedies; Writing Required... 83
10.3 Reimbursement and Indemnification of Banks by the Borrower;
Taxes....................................................... 83
10.4 Holidays.................................................... 84
10.5 Funding by Branch, Subsidiary or Affiliate.................. 85
10.5.1 Notional Funding................................... 85
10.5.2 Actual Funding..................................... 85
10.6 ICG as Agent for Loan Parties............................... 85
10.7 Notices..................................................... 86
10.8 Severability................................................ 87
10.9 Governing Law............................................... 87
10.10 Prior Understanding......................................... 87
10.11 Duration; Survival.......................................... 87
10.12 Successors and Assigns...................................... 88
10.13 Confidentiality............................................. 89
10.13.1 General............................................ 89
10.13.2 Sharing Information With Affiliates of the Banks... 89
10.14 Counterparts................................................ 90
10.15 Agent's or Bank's Consent................................... 90
10.16 Exceptions.................................................. 90
10.17 CONSENT TO FORUM; WAIVER OF JURY TRIAL...................... 90
10.18 Tax Withholding Clause...................................... 91
</TABLE>
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10.19 Joinder of Guarantors..................................... 91
10.20 Joint and Several Obligations of Borrowers; Additional
Waivers................................................... 92
</TABLE>
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<PAGE>
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(A-1) - PRIVATE COMPANY RESTRICTED SECURITIES
SCHEDULE 1.1(A-2) - PUBLIC COMPANY RESTRICTED SECURITIES
SCHEDULE 1.1(A-3) - PUBLIC COMPANY UNRESTRICTED SECURITIES
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
SCHEDULE 1.1(P) - PERMITTED LIENS
SCHEDULE 2.4 - REVOLVING CREDIT CLOSING FEES
SCHEDULE 5.1.1 - QUALIFICATIONS TO DO BUSINESS
SCHEDULE 5.1.2 - CAPITALIZATION
SCHEDULE 5.1.3 - SUBSIDIARIES
SCHEDULE 5.1.8 - OWNED AND LEASED PROPERTY
SCHEDULE 5.1.13 - CONSENTS AND APPROVALS
SCHEDULE 5.1.15 - PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
SCHEDULE 5.1.17 - SHAREHOLDER AGREEMENTS; PARTNERSHIP AGREEMENTS;
LLC AGREEMENTS REGARDING PLEDGED COLLATERAL
SCHEDULE 5.1.18 - INSURANCE POLICIES
SCHEDULE 5.1.20 - MATERIAL CONTRACTS
SCHEDULE 5.1.22 - EMPLOYEE BENEFIT PLAN DISCLOSURES
SCHEDULE 5.1.24 - ENVIRONMENTAL DISCLOSURES
SCHEDULE 7.2.1 - PERMITTED INDEBTEDNESS
SCHEDULE 7.2.3 - PERMITTED GUARANTIES
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(B) - BORROWING BASE CERTIFICATE
EXHIBIT 1.1(C) - CONVERTIBLE SUBORDINATED NOTES
EXHIBIT 1.1(D) - TERMS OF SUBORDINATION
EXHIBIT 1.1(G)(1) - GUARANTOR JOINDER
EXHIBIT 1.1(G)(2) - GUARANTY AGREEMENT
EXHIBIT 1.1(I)(2) - INTERCOMPANY SUBORDINATION AGREEMENT
EXHIBIT 1.1(P)(1) - PATENT, TRADEMARK AND COPYRIGHT SECURITY AGREEMENT
EXHIBIT 1.1(P)(2) - PLEDGE AGREEMENT
EXHIBIT 1.1(R) - REVOLVING CREDIT NOTE
EXHIBIT 1.1(S) - SECURITY AGREEMENT
EXHIBIT 2.5 - REVOLVING CREDIT LOAN REQUEST
EXHIBIT 6.1.4 - CLOSING DATE COMPLIANCE CERTIFICATE
EXHIBIT 6.1.5 - WARRANT AGREEMENT
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<PAGE>
EXHIBIT 6.1.6 - COLLATERAL ASSIGNMENT OF CONTRACT RIGHTS
EXHIBIT 6.1.7 - OPINION OF COUNSEL
EXHIBIT 6.1.19 - COMFORT LETTER FROM SAFEGUARD SCIENTIFICS, INC.
EXHIBIT 7.3.3 - QUARTERLY PERFORMANCE REPORT
EXHIBIT 7.3.5 - QUARTERLY COMPLIANCE CERTIFICATE
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<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of April 30, 1999 and is made by and
among INTERNET CAPITAL GROUP, INC., a Delaware corporation ("ICG"), INTERNET
CAPITAL GROUP OPERATIONS, INC., a Delaware corporation ("ICG Operations" and
together with ICG, each a "Borrower" and collectively the "Borrowers"), the
BANKS (as hereinafter defined), and PNC BANK, NATIONAL ASSOCIATION, in its
capacity as agent for the Banks under this Agreement (hereinafter referred to in
such capacity as the "Agent").
WITNESSETH:
WHEREAS, the Borrowers and the Guarantors have requested the Banks to
provide a revolving credit facility to the Borrowers in an aggregate principal
amount not to exceed $50,000,000 with a $5,000,000 sublimit for letters of
credit; and
WHEREAS, the revolving credit facilities shall be used for working
capital purposes and capital expenditures, including issuance of letters of
credit and for Investments (as hereinafter defined), subject to the limitations
set forth in Section 7.1.15 hereof; and
WHEREAS, the Banks are willing to provide such credit upon the terms
and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
-------------------
1.1 Certain Definitions.
-------------------
In addition to words and terms defined elsewhere in this
Agreement, the following words and terms shall have the following meanings,
respectively, unless the context hereof clearly requires otherwise:
Administrative Borrower shall have the meaning specified
-----------------------
therefor in Section 10.06 hereof.
Affiliate as to any Person shall mean any other Person (i)
---------
which directly or indirectly controls, is controlled by, or is under common
control with such Person, (ii) which beneficially owns or holds 10% or more of
any class of the voting or other equity interests of such Person, or (iii) 10%
or more of any class of voting interests or other equity interests of which is
beneficially owned or held, directly or indirectly, by such Person. Control, as
used in this definition, shall mean the possession, directly or indirectly, of
the power to direct or cause the
<PAGE>
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, including the power to
elect a majority of the directors or trustees of a corporation or trust, as the
case may be.
Agent shall mean PNC Bank, National Association, and its
-----
successors and assigns.
Agent's Fee shall have the meaning assigned to that term in
-----------
Section 9.1 5.
Agent's Letter shall have the meaning assigned to that term
--------------
in Section 9.15.
Agreement shall mean this Credit Agreement, as the same may
---------
be supplemented or amended from time to time, including all schedules and
exhibits.
Annual Statements shall have the meaning assigned to that
-----------------
term in Section 5.1.9(i).
Applicable Margin shall mean 2.50% per annum.
-----------------
Assignment and Assumption Agreement shall mean an Assignment
-----------------------------------
and Assumption Agreement by and among a Purchasing Bank, a Transferor Bank and
the Agent, as Agent and on behalf of the remaining Banks, substantially in the
form of Exhibit 1.1(A).
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Authorized Officer shall mean those individuals, designated
------------------
by written notice to the Agent from the Administrative Borrower, authorized to
execute notices, reports and other documents on behalf of the Loan Parties
required hereunder. The Administrative Borrower may amend such list of
individuals from time to time by giving written notice of such amendment to the
Agent. As of the Closing Date, such authorized officers shall be any of the
Chief Executive Officer, President, Chief Financial Officer, Treasurer or
Assistant Treasurer of each Loan Party.
Banks shall mean the financial institutions named on
-----
Schedule 1.1(B) and their respective successors and assigns as permitted
--------------
hereunder, each of which is referred to herein as a Bank.
Base Rate shall mean the greater of (i) the interest rate
---------
per annum announced from time to time by the Agent at its Principal Office as
its then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Agent, or (ii) the Federal Funds Effective Rate plus
1/2% per annum.
Base Rate Option shall mean the option of the Borrowers to
----------------
have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(i).
-2-
<PAGE>
Benefit Arrangement shall mean at any time an "employee
-------------------
benefit plan," within the meaning of Section 3(3) of ERISA, which is neither a
Plan nor a Multiemployer Plan and which is maintained, sponsored or otherwise
contributed to by any member of the ERISA Group.
Borrower and Borrowers shall have the meaning specified
-------- ---------
therefor in the preamble.
Borrowing Base shall mean, as of any date, the lesser of (a)
--------------
the Commitments and (b) a dollar amount equal to the sum of (i) the Private
Company Advance (as hereinafter defined) and the Additional Private Company
Advance (as hereinafter defined), if any; (ii) fifteen (15%) percent of the
aggregate dollar value of the Qualified Public Company Restricted Securities;
and (iii) twenty-five (25%) percent of the aggregate dollar value of the
Qualified Public Company Unrestricted Securities; provided, however, that in no
-------- -------
event shall any advance made hereunder based on the aggregate dollar value of
Qualified Public Company Restricted Securities and the aggregate dollar value of
Qualified Public Company Unrestricted Securities in accordance with clauses (ii)
and (iii) above exceed 50% (or the then maximum "Loan Value" for margin stock
pursuant to Regulation U) of the aggregate dollar value of the Qualified Public
Company Restricted Securities and the aggregate dollar value of the Qualified
Public Company Unrestricted Securities upon which such advance is made (the
"Minimum Margin Value"). The value of Public Company Restricted Securities and
Public Company Unrestricted Securities as of a particular date shall be
determined using the closing market value on the last trading day immediately
prior the date of such determination as reported on a recognized national
securities exchange or by the Nasdaq National or small-cap market, or on the
over-the-counter market, all as of the close of the last previous trading day.
The Private Company Advance shall mean the applicable amount
set forth on the table below:
<TABLE>
<CAPTION>
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AGGREGATE COST BASIS OF QUALIFIED
---------------------------------
PRIVATE COMPANY RESTRICTED
--------------------------
SECURITIES PRIVATE COMPANY ADVANCE
---------- -----------------------
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<S> <C>
$0 - $100,000,000.00 10% of cost basis
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$100,000,000.01 - 119,999,999.99 $10,000,000.00
--------------------------------------------------------------------------------
$120,000,000.00 - 139,999,999.99 $12,500,000.00
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OVER $140,000,000.00 $15,000,000.00
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</TABLE>
-3-
<PAGE>
The Banks will consider the Borrowers' request on a case by
case basis to make additional advances up to ten million dollars
($10,000,000.00), notwithstanding the maximum Private Company Advance provided
for above, based upon increases in the value of the Private Company Restricted
Securities (determined in accordance with Section 2.9 hereof) (the "Additional
Private Company Advance").
For purposes of this definition, "cost basis" of Private
Company Restricted Securities shall mean the sum of the aggregate amount of
Cash, Cash Equivalents, and the securities (including the principal amount of
any Subordinated Debt) of any Borrower or any Investment Entity (subject to the
limitations set forth in Section 7.2.8 [Affiliated Transactions]) invested by
the Borrowers in any Private Company Restricted Securities, as adjusted, in
accordance with the valuation method prescribed for determinations of cost basis
hereunder, to reflect additional investments in such securities and increases in
value determined in accordance with Section 2.9 hereof, or as such amounts may
be reduced in accordance with Section 7.1.20 [Periodic Review of Cost Basis
Determinations] hereof, in each case as set forth in a Borrowing Base
Certificate delivered in accordance with the terms hereof. Notwithstanding
anything to the contrary contained herein, when determining the Borrowing Base,
no more than $25,000,000 of the Borrowing Base shall be attributed to Pledged
Collateral issued by any individual Investment Entity.
Borrowing Base Availability shall mean the unused portion of
---------------------------
the Borrowing Base at the date of determination as calculated by the most recent
Borrowing Base Certificate.
Borrowing Base Certificate shall mean the Borrowing Base
--------------------------
Certificate given by the Borrowers to the Banks on the Closing Date and from
time to time pursuant to Section 7.3.4 [Borrowing Base Certificate] in the form
of Exhibit 1.1(B).
-------------
Borrowing Date shall mean, with respect to any Loan, the
--------------
date for the making thereof or the renewal or conversion thereof at or to the
same or a different Interest Rate Option, which shall be a Business Day.
Borrowing Tranche shall mean specified portions of Loans
-----------------
outstanding as follows: (i) any Loans to which a Euro-Rate Option applies which
become subject to the same Interest Rate Option under the same Loan Request by
the Borrowers and which have the same Interest Period shall constitute one
Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall
constitute one Borrowing Tranche.
Business Day shall mean any day other than a Saturday or
------------
Sunday or a legal holiday on which commercial banks are authorized or required
to be closed for business in Pittsburgh, Pennsylvania or San Francisco,
California and if the applicable Business Day relates to any Loan to which the
Euro-Rate Option applies, such day must also be a day on which dealings are
carried on in the London interbank market.
-4-
<PAGE>
Cash shall be defined according to GAAP.
----
Cash Equivalents: (a) securities with maturities of 365 days
----------------
or less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of deposit
and eurodollar time deposits with maturities of 365 days or less from the date
of acquisition and overnight bank deposits of any Bank or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Bank or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than seven days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1 or the
equivalent thereof by Standard & Poor's or P-1 or the equivalent thereof by
Moody's Investors Service, Inc. ("Moody's") and in either case maturing within
-------
270 days after the day of acquisition, (e) securities with maturities of 365
days or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government (as the
case may be) are rated at least A by Standard & Poor's or A by Moody's, (f)
securities with maturities of 365 days or less from the date of acquisition
backed by standby letters of credit issued by any Bank or any commercial bank
satisfying the requirements of clause (b) of this definition or (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
Closing Date shall mean the Business Day on which the first
------------
Loan shall be made, which shall be April 30, 1999 or, if all the conditions
specified in Section 6 have not been satisfied or waived by such date, not later
than April 30, 1999, as designated by the Borrower by at least two (2) Business
Days' advance notice to the Agent at its Principal Office, or such other date as
the parties agree. The closing shall take place at 10:00 a.m., Eastern time, on
the Closing Date at the offices of Buchanan Ingersoll, Eleven Penn Center, 14th
Floor, 1835 Market Street, Philadelphia, Pennsylvania 19103-2985 or at such
other time and place as the parties agree.
Collateral shall mean the Pledged Collateral, the UCC
----------
Collateral and the Intellectual Property Collateral.
Collateral Assignment of Contract Rights shall mean the
----------------------------------------
Collateral Assignment of Contract Rights in substantially the form of Exhibit
-------
6.1.6 executed and delivered by each Loan Party to the Agent for the benefit of
-----
the Banks.
Collateral Coverage Securities shall mean, individually, any
------------------------------
Private Company Restricted Securities, any Public Company Restricted Securities
and any Public Company Unrestricted Securities and, collectively, all Private
Company Restricted Securities, all Public Company Restricted Securities and all
Public Company Unrestricted Securities.
-5-
<PAGE>
Commitment shall mean as to any Bank its Revolving Credit
----------
Commitment, and Commitments shall mean the aggregate of the Revolving Credit
Commitments of all of the Banks.
Commitment Fee shall have the meaning assigned to that term
--------------
in Section 2.3.
Committed Subscriptions shall mean capital calls committed
-----------------------
to the Borrower in writing, in form and substance reasonably satisfactory to the
Agent and the Banks.
Company Insiders as to the Borrowers shall mean (i)
----------------
shareholders, directors, officers and employees of ICG or its Affiliates and
(ii) shareholders, directors, officers, employees or Affiliates of any
Investment Entity.
Consolidated Tangible Net Worth shall mean as of any date of
-------------------------------
determination total stockholders' equity plus minority interests in net assets
of any Subsidiaries less intangible assets of the Borrowers and their respective
Subsidiaries as of such date determined and consolidated in accordance with
GAAP.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean
-----------------------------
lawful money of the United States of America.
Drawing Date shall have the meaning assigned to that term in
------------
Section 2.8.3.2.
Environmental Law shall have the meaning set forth in
-----------------
Section 5.1.24 hereof.
Environmental Permits shall have the meaning set forth in
---------------------
Section 5.1.24 hereof.
ERISA shall mean the Employee Retirement Income Security Act
-----
of 1974, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
ERISA Group shall mean, at any time, the Borrower and all
-----------
members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control and all other entities which,
together with the Borrower, are treated as a single employer under Section 414
of the Internal Revenue Code.
Euro-Rate shall mean, with respect to the Loans comprising
---------
any Borrowing Tranche to which the Euro-Rate Option applies for any Interest
Period, the interest rate per annum determined by the Agent by dividing (the
resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1%
per annum) (i) the rate of interest determined by the
-6-
<PAGE>
Agent in accordance with its usual and customary procedures (which determination
shall be conclusive absent manifest error) to be the average of the London
interbank offered rates for U.S. Dollars quoted by the British Bankers'
Association as set forth on Dow Jones Markets Service (formerly known as
Telerate) (or appropriate successor or, if the British Bankers' Association or
its successor ceases to provide such quotes, a comparable replacement determined
by the Agent) display page 3750 (or such other display page on the Dow Jones
Markets Service system as may replace display page 3750) two (2) Business Days
prior to the first day of such Interest Period for an amount comparable to such
Borrowing Tranche and having a borrowing date and a maturity comparable to such
Interest Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. The Euro-Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted
by BBA or appropriate successor as shown on
Euro-Rate = Dow Jones Markets Service display page 3750
-------------------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate
Option applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Agent shall give
prompt notice to the Borrower of the Euro-Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error.
Euro-Rate Option shall mean the option of the Borrower to
----------------
have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(ii).
Euro-Rate Reserve Percentage shall mean as of any day the
----------------------------
maximum 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 supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities").
Event of Default shall mean any of the events described in
----------------
Section 8.1 and referred to therein as an "Event of Default."
Expiration Date shall mean, with respect to the Revolving
---------------
Credit Commitments, April 28, 2000.
Facility Fees shall mean the fees referred to in Section
-------------
2.4.
Federal Funds Effective Rate for any day shall mean the rate
----------------------------
per annum (based on a year of 360 days and actual days elapsed and rounded
upward to the nearest 1/100 of 1%) announced by the Federal Reserve Bank of New
York (or any successor) on such day as being the weighted average of the rates
on overnight federal funds transactions arranged by
-7-
<PAGE>
federal funds brokers on the previous trading day, as computed and announced by
such Federal Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average it refers
to as the "Federal Funds Effective Rate" as of the date of this Agreement;
provided, if such Federal Reserve Bank (or its successor) does not announce such
--------
rate on any day, the "Federal Funds Effective Rate" for such day shall be the
Federal Funds Effective Rate for the last day on which such rate was announced.
GAAP shall mean generally accepted accounting principles as
----
are in effect from time to time in the United States, subject to the provisions
of Section 1.3, and applied on a consistent basis both as to classification of
items and amounts.
Governmental Acts shall have the meaning assigned to that
-----------------
term in Section 2.8.8.
Guarantor shall mean each Person which joins this Agreement
---------
as a Guarantor after the date hereof pursuant to Section 10.19.
Guarantor Joinder shall mean a joinder by a Person as a
-----------------
Guarantor under this Agreement, the Guaranty Agreement and the other Loan
Documents in the form of Exhibit 1.1(G)(1).
----------------
Guaranty of any Person shall mean any obligation of such
--------
Person guaranteeing or in effect guaranteeing any liability or obligation of any
other Person in any manner, whether directly or indirectly, including any
agreement to indemnify or hold harmless any other Person, any performance bond
or other suretyship arrangement and any other form of assurance against loss,
except endorsement of negotiable or other instruments for deposit or collection
in the ordinary course of business.
Guaranty Agreement shall mean the Guaranty and Suretyship
------------------
Agreement in substantially the form of Exhibit 1.1(G)(2) executed and delivered
----------------
by each of the Guarantors to the Agent for the benefit of the Banks.
Hazardous Substances shall have the meaning set forth in
--------------------
Section 5.1.24 hereof.
Historical Statements shall have the meaning assigned to
---------------------
that term in Section 5.1.9(i).
ICG Shares shall have the meaning assigned to that term in
----------
Section 5.1.2.
ICG Operations Shares shall have the meaning assigned to
---------------------
that term in Section 5.1.2.
-4-
<PAGE>
Indebtedness shall mean, as to any Person at any time, any
------------
and all indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, currency swap agreement, interest rate
swap, cap, collar or floor agreement or other interest rate management device,
(iv) any other transaction (including forward sale or purchase agreements,
capitalized leases and conditional sales agreements) having the commercial
effect of a borrowing of money entered into by such Person to finance its
operations or capital requirements (but not including trade payables and accrued
expenses incurred in the ordinary course of business which are not represented
by a promissory note or other evidence of indebtedness and which are not more
than thirty (30) days past due), or (v) any Guaranty of Indebtedness for
borrowed money.
Insolvency Proceeding shall mean, with respect to any
---------------------
Person, (a) a case, action or proceeding with respect to such Person (i) before
any court or any other Official Body under any bankruptcy, insolvency,
reorganization or other similar Law now or hereafter in effect, or (ii) for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or similar official) of any Loan Party or otherwise
relating to the liquidation, dissolution, winding-up or relief of such Person,
or (b) any general assignment for the benefit of creditors, composition,
marshaling of assets for creditors, or other, similar arrangement in respect of
such Person's creditors generally or any substantial portion of its creditors;
undertaken under any Law.
Intellectual Property Collateral shall mean all of the
--------------------------------
property described in the Patent, Trademark and Copyright Assignment.
Intercompany Subordination Agreement shall mean a
------------------------------------
Subordination Agreement among the Loan Parties in the form attached hereto as
Exhibit 1.1(I)(2).
----------------
Interest Period shall mean the period of time selected by
---------------
the Borrower in connection with (and to apply to) any election permitted
hereunder by the Borrower to have Revolving Credit Loans bear interest under the
Euro-Rate Option. Subject to the last sentence of this definition, such period
shall be one, two, three or six Months. Such Interest Period shall commence on
the effective date of such Interest Rate Option, which shall be (i) the
Borrowing Date if the Borrower is requesting new Loans, or (ii) the date of
renewal of or conversion to the Euro-Rate Option if the Borrower is renewing or
converting to the Euro-Rate Option applicable to outstanding Loans.
Notwithstanding the second sentence hereof: (A) any Interest Period which would
otherwise end on a date which is not a Business Day shall be extended to the
next succeeding Business Day unless such Business Day falls in the next calendar
month, in which case such Interest Period shall end on the next immediately
preceding Business Day, and (B) the Borrower shall not select, convert to or
renew an Interest Period for any portion of the Loans that would end after the
Expiration Date.
-9-
<PAGE>
Interest Rate Option shall mean any Euro-Rate Option or Base
--------------------
Rate Option.
Internal Revenue Code shall mean the Internal Revenue Code
---------------------
of 1986, as the same may be amended or supplemented from time to time, and any
successor statute of similar import, and the rules and regulations thereunder,
as from time to time in effect.
Investments shall mean investments in the ordinary course of
-----------
business of the Borrower in any Person, including, but not limited to, any
loans, advances or extensions of credit (other than guaranties) or any purchase
of any debt or equity security, including without limitation, capital stock,
bonds, debentures, notes, general partnership interests, limited partnership
interests, warrants or other rights, all whether certificated or uncertificated.
Investment Entity of any Borrower shall mean any Person with
-----------------
respect to whom such Borrower has acquired an ownership interest by virtue of
Investments by such Borrower permitted in accordance with the terms hereof.
Labor Contracts shall mean all employment agreements,
---------------
employment contracts, collective bargaining agreements and other agreements
among any Loan Party or Subsidiary of a Loan Party and its employees.
Law shall mean any law (including common law), constitution,
---
statute, treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or
award of or settlement agreement with any Official Body.
Letter Agreement shall mean that certain Letter Agreement,
----------------
dated as of April 30, 1999, among each Loan Party and the Agent.
Letter of Credit shall have the meaning assigned to that
----------------
term in Section 2.8.1.
Letter of Credit Borrowing shall have the meaning assigned
--------------------------
to that term in Section 2.8.3.4.
Letter of Credit Fee shall have the meaning assigned to that
--------------------
term in Section 2.8.2.
Letters of Credit Outstanding shall mean at any time the sum
-----------------------------
of (i) the aggregate undrawn face amount of outstanding Letters of Credit and
(ii) the aggregate amount of all unpaid and outstanding Reimbursement
Obligations and Letter of Credit Borrowings.
Lien shall mean any deed of trust, pledge, lien, security
----
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or
-10-
<PAGE>
involuntarily given, including any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security and any filed financing statement or other notice
of any of the foregoing (whether or not a lien or other encumbrance is created
or exists at the time of the filing).
Loan Documents shall mean this Agreement, the Agent's
--------------
Letter, the Intercompany Subordination Agreement, the Notes, the Patent,
Trademark and Copyright Assignment, the Pledge Agreement, the Security
Agreement, the Letter Agreement, the Collateral Assignment of Contract Rights
and the Warrant and any other instruments, certificates or documents delivered
or contemplated to be delivered hereunder or thereunder or in connection
herewith or therewith, as the same may be supplemented or amended from time to
time in accordance herewith or therewith, and Loan Document shall mean any of
-------------
the Loan Documents.
Loan Parties shall mean the Borrowers and the Guarantors.
------------
Loan Request shall have the meaning given to such term in
------------
Section 2.5.
Loans shall mean collectively all Revolving Credit Loans and
-----
Loan shall mean separately any Revolving Credit Loan.
Material Adverse Change means a material adverse effect on
-----------------------
(a) the validity or enforceability of this Agreement or any other Loan Document,
(b) the business, properties, assets, condition (financial or otherwise),
results of operations or prospects of the Loan Parties taken as a whole, (c) the
ability of the Loan Parties taken as a whole to duly and punctually pay or
perform their Indebtedness, or (d) the ability of the Agent or any of the Banks,
to the extent permitted, to enforce their legal remedies pursuant to this
Agreement or any other Loan Document.
Material Contracts means, with respect to any Loan Party,
------------------
(a) each contract to which such Loan Party is a party involving aggregate
consideration payable to or by such Loan Party of $2,000,000 or more and (b) any
contract, document, instrument or other agreement entered into by such Loan
Party or any Subsidiary of such Loan Party relating to the acquisition of and
rights to transfer or dispose of any securities evidencing any Investment in, or
Pledged Collateral of, any Investment Entity.
Minimum Margin Value shall have the meaning ascribed thereto
--------------------
in the definition Borrowing Base.
Month, with respect to an Interest Period under the Euro-
-----
Rate Option, shall mean the interval between the days in consecutive calendar
months numerically corresponding to the first day of such Interest Period. If
any Euro-Rate Interest Period begins on a day of a calendar month for which
there is no numerically corresponding day in the month in which such Interest
Period is to end, the final month of such Interest Period shall be deemed to end
on the last Business Day of such final month.
-11-
<PAGE>
Multiemployer Plan shall mean any Plan which is a "multiemployer
------------------
plan" within the meaning of Section 4001(a)(3) of ERISA and to which the
Borrower or any member of the ERISA Group is then making or accruing an
obligation to make contributions or, within the preceding five Plan years, has
made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
----------------------
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Notes shall mean the Revolving Credit Notes.
-----
Notices shall have the meaning assigned to that term in Section
-------
10.7.
Obligation shall mean any obligation or liability of any of the
----------
Loan Parties to the Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due, under or in connection with this Agreement,
the Notes, the Letters of Credit, the Agent's Letter or any other Loan Document.
Official Body shall mean any national, federal, state, local or
-------------
other government or political subdivision or any agency, authority, board,
bureau, central bank, commission, department or instrumentality of either, or
any court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
Participation Advance shall mean, with respect to any Bank, such
---------------------
Bank's payment in respect of its participation in a Letter of Credit Borrowing
according to its Ratable Share pursuant to Section 2.8.3.4.
Patent, Trademark and Copyright Assignment shall mean the Patent,
------------------------------------------
Trademark and Copyright Security Agreement in substantially the form of Exhibit
-------
1.1(P)(1) executed and delivered by each of the Loan Parties to the Agent for
---------
the benefit of the Banks.
PBGC shall mean the Pension Benefit Guaranty Corporation
----
established pursuant to Subtitle A of Title IV of ERISA or any successor.
Permitted Investments shall mean:
---------------------
(i) direct obligations of the United States of America
or any agency or instrumentality thereof or obligations backed by the full faith
and credit of the United States of America maturing in twelve (12) months or
less from the date of acquisition;
-12-
<PAGE>
(ii) commercial paper maturing in 270 days or less rated
not lower than A-1, by Standard & Poor's or P-1 by Moody's Investors Service,
Inc. on the date of acquisition; and
(iii) demand deposits, time deposits or certificates of
deposit maturing within one year in commercial banks whose obligations are rated
A-1, A or the equivalent or better by Standard & Poor's on the date of
acquisition.
Permitted Liens shall mean:
---------------
(i) Liens for taxes, assessments, or similar charges,
incurred in the ordinary course of business and which are not yet due and
payable or which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
--------
of such Borrower and its respective Subsidiaries, as the case may be, in
conformity with GAAP;
(ii) Pledges or deposits made in the ordinary course of
business to secure payment of workmen's compensation, or to participate in any
fund in connection with workmen's compensation, unemployment insurance, old-age
pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen,
carriers, or other like Liens, securing obligations incurred in the ordinary
course of business that are not yet due and payable and Liens of landlords
securing obligations to pay lease payments that are not yet due and payable or
in default except where contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on the books
--------
of such Borrower and its respective Subsidiaries, as the case may be, in
conformity with GAAP;
(iv) Good-faith pledges or deposits made in the ordinary
course of business to secure performance of bids, tenders, contracts (other than
for the repayment of borrowed money) or leases, not in excess of the aggregate
amount due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
(v) Encumbrances consisting of zoning restrictions,
easements or other restrictions on the use of property, none of which materially
impairs the use of such property or the value thereof, and none of which is
violated in any material respect by existing or proposed structures or land use;
(vi) Liens and security interests in favor of the Agent
for the benefit of the Banks;
-13-
<PAGE>
(vii) Any Lien existing on the date of this Agreement and
described on Schedule 1.1(P), provided that the principal amount secured thereby
--------------- --------
is not hereafter increased, and no additional assets become subject to such
Lien;
(viii) Purchase Money Security Interests, provided that the
--------
aggregate amount of loans and deferred payments secured by such Purchase Money
Security Interests shall not exceed $2,000,000 (excluding for the purpose of
this computation any loans or deferred payments secured by Liens described on
Schedule 1.1(P)); and
---------------
(ix) Claims or Liens upon, and defects of title to, real
or personal property other than the Collateral, including any attachment of real
or personal property or other legal process prior to adjudication of a dispute
on the merits.
Person shall mean any individual, corporation, partnership,
------
limited liability company, association, joint-stock company, trust,
unincorporated organization, joint venture, government or political subdivision
or agency thereof, or any other entity.
Plan shall have the meaning set forth in Section 5.1.22.
----
Pledge Agreement shall mean the Pledge Agreement in
----------------
substantially the form of Exhibit 1.1(P)(2) executed and delivered by ICG to the
-----------------
Agent for the benefit of the Banks.
Pledged Collateral shall mean the Pledged Securities in
------------------
which security interests are to be granted under the Pledge Agreement.
Pledged Securities shall have the meaning ascribed to such
------------------
term in the Pledge Agreement.
PNC Bank shall mean PNC Bank, National Association, its
--------
successors and assigns.
Potential Default shall mean any event or condition
-----------------
specified in Section 8.1, whether or not any requirement for the giving of
notice, the lapse of time or both, or any other condition, has been satisfied.
Principal Office shall mean the main banking office of the
----------------
Agent in Pittsburgh, Pennsylvania.
Prior Security Interest shall mean a valid and enforceable
-----------------------
perfected first-priority security interest under the Uniform Commercial Code in
the UCC Collateral and the Pledged Collateral which is subject only to Liens for
taxes not yet due and payable to the extent such prospective tax payments are
given priority by statute or Purchase Money Security Interests as permitted
hereunder.
-14-
<PAGE>
Private Company Restricted Securities shall mean Pledged
-------------------------------------
Securities now or hereafter owned by any Borrower which such Borrower is, or
Agent or any Bank if acquired from Borrower as pledgor would be, prohibited
under applicable federal or state law or regulations, or pursuant to private
contract, including any underwriter's lock-up agreement, from publicly offering
or selling in open market transactions throughout the United States. The initial
list of the issuers of Private Company Restricted Securities is set forth on
Schedule 1.1(A-1) attached hereto. The Administrative Borrower shall promptly
upon acquisition or sale of such securities, and in any event no later than the
date required for delivery of the next Borrowing Base Certificate required to be
delivered after any such acquisition or sale in accordance with Section 7.3.4
[Borrowing Base Certificate] hereof, amend such list of Private Company
Restricted Securities from time to time to reflect any such acquisition or sale
of any such securities by giving written notice of such amendment to the Agent.
Prohibited Transaction shall mean any prohibited transaction
----------------------
as defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA
for which neither an individual nor a class exemption has been issued by the
United States Department of Labor.
Property shall mean all real property, both owned and
--------
leased, of any Loan Party or Subsidiary of a Loan Party.
Public Company Restricted Securities shall mean Pledged
------------------------------------
Securities consisting of securities issued by one or more corporations but only
as long as (A) such class of securities is listed on a recognized national
securities exchange, on the Nasdaq National market or small-cap market or on the
over-the-counter market and (B) such securities are Restricted Securities. The
initial list of the issuers of Public Company Restricted Securities is set forth
on Schedule 1.1(A-2) attached hereto. The Borrower shall promptly upon
acquisition or sale of such securities, and in any event no later than the date
required for delivery of the next Borrowing Base required to be delivered after
any such acquisition or sale in accordance with the Section 7.3.4 [Borrowing
Base Certificate] hereof, amend such list of Public Company Restricted
Securities from time to time to reflect any such acquisition or sale of any such
securities by giving written notice of such amendment to the Agent.
Public Company Unrestricted Securities shall mean Pledged
--------------------------------------
Securities consisting of securities issued by one or more corporations but only
as long as (A) such class of securities is listed on a recognized national
securities exchange, on the Nasdaq National market or small-cap market or on the
over-the-counter market and (B) such securities are not Restricted Securities.
The initial list of the issuers of Public Company Unrestricted Securities is set
forth on Schedule 1.1(A-3) attached hereto. The Borrower shall promptly upon
acquisition or sale of such securities, and in any event no later than the date
required for delivery of the next Borrowing Base Certificate required to be
delivered after any such acquisition or sale in accordance with Section 7.3.4
[Borrowing Base Certificate] hereof, amend such list of Public Company
Unrestricted Securities from time to time to reflect any such acquisition or
sale of any such securities by giving written notice of such amendment to the
Agent.
-15-
<PAGE>
Purchase Money Security Interest shall mean Liens upon
--------------------------------
tangible personal property securing loans to any Loan Party or Subsidiary of a
Loan Party or deferred payments by such Loan Party or Subsidiary for the
purchase of such tangible personal property not exceeding the value of such
property.
Purchasing Bank shall mean a Bank which becomes a party to
---------------
this Agreement by executing an Assignment and Assumption Agreement.
Qualified Private Company Restricted Securities shall mean,
-----------------------------------------------
for purposes of determining the Borrowing Base, that any Private Company
Restricted Securities have met all of the following minimum requirements:
(1) all Material Contracts required to be delivered in
accordance with the terms of Section 7.17 (i) and (iii) [Delivery of Material
Contracts] shall have been delivered to the Agent. Notwithstanding anything to
the contrary contained herein, upon delivery of any such Material Contracts in
accordance with the terms hereof, Schedule 5.1.20 shall be deemed to have been
---------------
automatically, and without further act, updated to reflect the delivery of any
such Material Contracts.
(2) all consents to the pledge of such Investment
Entity's securities and assignment of applicable contract rights to the Agent,
including, without limitation, any applicable consents from such Investment
Entity, any applicable consents from founders or shareholders of such Investment
Entity and any other Persons from whom consent needs to be obtained in order to
have an effective pledge and assignment of the Collateral to the Agent in
accordance with the terms hereof and the other Loan Documents (collectively, the
"Consents") required to have been executed and delivered in accordance with the
terms of Section 7.1.18 (i) and (iii) [Delivery of Consents] shall have been
executed and delivered to the Agent, in form and substance satisfactory to the
Agent; and
(3) all original certificates evidencing ownership of
such Investment Entity's securities and notes or other debt instruments
evidencing any Borrower's Investment in such Investment Entity (collectively,
the "Certificates"), together with executed and undated stock powers and warrant
powers (collectively, the "Powers"), required to have been delivered in
accordance with the terms of Section 7.1.19 (i) and (iii) shall have been
delivered to the Agent; provided, however, that notwithstanding the foregoing,
-------- -------
(i) for any Investments in Private Company Restricted Securities made by any
Borrower after the Closing Date, the securities so acquired shall be deemed to
constitute Qualified Private Company Restricted Securities to the extent that
such Borrower shall have provided to the Agent a representation that such
Borrower has received all Consents necessary to pledge such securities in the
relevant Borrowing Base Certificate, and such Consents, together with the
Certificates and the Powers with respect to such Investment Entity's securities
shall in any event be delivered to the Agent on behalf of the Banks within ten
(10) Business Days of the making of any such Investment and (ii) for any
Investments in the securities of Commerx, Inc., E-Chemicals, Inc. or
MessageQuest, Inc. shall also be deemed
-16-
<PAGE>
to constitute Qualified Private Company Restricted Securities provided that the
Certificates and the Powers with respect to such Investment Entity's securities
shall have been delivered within ten (10) Business Days of the Closing Date.
Qualified Public Company Restricted Securities shall mean,
----------------------------------------------
for purposes of the determining the Borrowing Base, that any Public Company
Restricted Securities have met all of the following minimum requirements:
(1) all Material Contracts required to be delivered in
accordance with the terms of Section 7.17 (ii) and (iii) shall have been
delivered to the Agent. Notwithstanding anything to the contrary contained
herein, upon delivery of any such Material Contracts in accordance with the
terms hereof, Schedule 5.1.20 shall be deemed to have been automatically, and
---------------
without further act, updated to reflect the delivery of any such Material
Contracts;
(2) all Consents required to have been executed and
delivered in accordance with the terms of Section 7.1.18 (ii) and (iii) shall
have been executed and delivered to the Agent, in form and substance
satisfactory to the Agent; and
(3) all Certificates and Powers required to have been
executed and delivered in accordance with the terms of Section 7.1.19 (ii) and
(iii) hereof shall have been executed and delivered to the Agent.
Qualified Public Company Unrestricted Securities shall mean,
------------------------------------------------
for purposes of determining the Borrowing Base, that any Public Company
Unrestricted Securities have met all of the following minimum requirements:
(1) all Material Contracts required to have been executed
and delivered in accordance with Section 7.1.17 (iii) hereof shall have been
delivered to the Agent. Notwithstanding anything to the contrary contained
herein, upon delivery of any such Material Contracts in accordance with the
terms hereof, Schedule 5.1.20 shall be deemed to have been automatically and
---------------
without further act, updated to reflect the delivery of any such Material
Contracts;
(2) all Consents required to have been executed and
delivered in accordance with Section 7.1.18 (iii) hereof shall have been
executed and delivered to the Agent, in form and substance satisfactory to the
Agent; and
(3) all Certificates and Powers required to have been
executed and delivered in accordance with the terms of Section 7.1.19 (iii)
hereof shall have been executed and delivered to the Agent.
Ratable Share shall mean the proportion that a Bank's
-------------
Commitment bears to the Commitments of all of the Banks.
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<PAGE>
Regulation U shall mean Regulation U, T, G or X as
------------
promulgated by the Board of Governors of the Federal Reserve System, as amended
from time to time.
Reimbursement Obligation shall have the meaning assigned to
------------------------
such term in Section 2.8.3.2.
Reportable Event shall mean a reportable event described in
----------------
Section 4043 of ERISA and regulations thereunder with respect to a Plan or
Multiemployer Plan.
Required Banks shall mean
--------------
(i) if there are no Loans, Reimbursement Obligations or
Letter of Credit Borrowings outstanding, Banks whose Commitments aggregate at
least 60% of the Commitments of all of the Banks, which Banks shall in any event
include the Agent, or
(ii) if there are Loans, Reimbursement Obligations, or
Letter of Credit Borrowings outstanding, any Bank or group of Banks if the sum
of the Loans, Reimbursement Obligations and Letter of Credit Borrowings of such
Banks then outstanding aggregates at least 60% of the total principal amount of
all of the Loans , Reimbursement Obligations and Letter of Credit Borrowings
then outstanding, which Bank or group of Banks shall in any event include the
Agent.
Restricted Securities shall mean securities now or hereafter
---------------------
owned by a Borrower which such Borrower is, or Agent or any Bank if acquired
from a Borrower as pledgor would be, prohibited under applicable federal or
state law or regulation, or pursuant to private contract, including any
underwriters' lock-up agreement, from publicly offering or selling such
securities in open market transactions throughout the United States. For this
purpose securities that may lawfully be sold pursuant to Rule 144 of the
Securities Act of 1933, as amended, subject only to volume limitations set forth
in Rule 144(e) are not "Restricted Securities" solely by reason of such volume
limitations.
Revolving Credit Commitment shall mean, as to any Bank at
---------------------------
any time, the amount initially set forth opposite its name on Schedule 1.1(B) in
---------------
the column labeled "Amount of Commitment for Revolving Credit Loans," and
thereafter on Schedule I to the most recent Assignment and Assumption Agreement,
and Revolving Credit Commitments shall mean the aggregate Revolving Credit
----------------
Commitments of all of the Banks.
-----------
Revolving Credit Loans shall mean collectively and Revolving
---------------------- ---------
Credit Loan shall mean separately all Revolving Credit Loans or any Revolving
-----------
Credit Loan made by the Banks or one of the Banks to the Borrowers pursuant to
Section 2.1 or 2.8.3.
Revolving Credit Notes shall mean collectively and Revolving
---------------------- ---------
Credit Note shall mean separately all the Revolving Credit Notes of the
-----------
Borrowers in the form of
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<PAGE>
Exhibit 1.1(R) evidencing the Revolving Credit Loans together with all
--------------
amendments, extensions, renewals, replacements, refinancings or refundings
thereof in whole or in part.
Revolving Facility Usage shall mean at any time the sum of
------------------------
the Revolving Credit Loans outstanding and the Letters of Credit Outstanding.
Security Agreement shall mean the Security Agreement in
------------------
substantially the form of Exhibit 1.1(S) executed and delivered by each of the
--------------
Loan Parties to the Agent for the benefit of the Banks.
Solvent shall mean, with respect to any Person on a
-------
particular date, that on such date (i) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the present fair
saleable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (iii) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (iv) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (v) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which such Person is
engaged. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
Standard & Poor's shall mean Standard & Poor's Ratings
-----------------
Services, a division of The McGraw-Hill Companies, Inc.
Standby Letter of Credit shall mean a Letter of Credit
------------------------
issued to support obligations of one or more of the Loan Parties, contingent or
otherwise, which finance the working capital and capital expenditures of the
Loan Parties incurred in the ordinary course of business.
Subordinated Debt shall mean any unsecured Indebtedness of a
-----------------
Borrower, including any Subordinated Loans, no part of the principal of which is
stated to be payable or is required to be paid (whether by way of mandatory
sinking fund, mandatory redemption, mandatory prepayment or otherwise) prior to
May 1, 2000, and the payment of the principal of and interest on which and other
obligations of any Borrower in respect thereof are subordinated to the prior
payment in full of the principal of and interest (including post-petition
interest) on the Notes and all other obligations and liabilities of such
Borrower to the Agent and the Banks hereunder on terms and conditions
substantially as set forth in Exhibit 1.1(D) attached hereto.
--------------
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<PAGE>
Subordinated Lender shall mean any Person who makes a loan
-------------------
to any Loan Party to the extent such loan constitutes Subordinated Debt
hereunder, together with such Person's successors and assigns.
Subordinated Loans shall mean up to $100,000,000 of
------------------
subordinated loans, inclusive of the loans evidenced by the Subordinated Notes,
made by the Subordinated Lender(s) to ICG pursuant to the Subordinated Loan
Documents.
Subordinated Loan Documents shall mean (a) any and all
---------------------------
instruments, certificates or documents delivered or contemplated to be delivered
in connection with any Subordinated Debt and (b) the Subordinated Notes and all
other instruments, certificates or documents delivered or contemplated to be
delivered thereunder or in connection therewith, as the same may be supplemented
or amended from time to time in accordance herewith.
Subordinated Note(s) shall mean the Convertible Note(s) of
--------------------
ICG payable to Subordinated Lenders, each of which shall be executed and
delivered substantially in the form of Exhibit 1.1(C) hereof.
---------------------
Subsidiary of any Person at any time shall mean (i) any
----------
corporation or trust of which 50% or more (by number of shares or number of
votes) of the outstanding capital stock or shares of beneficial interest
normally entitled to vote for the election of one or more directors or trustees
(regardless of any contingency which does or may suspend or dilute the voting
rights) is at such time owned directly or indirectly by such Person or one or
more of such Person's Subsidiaries, (ii) any partnership of which such Person is
a general partner or of which 50% or more of the partnership interests is at the
time directly or indirectly owned by such Person or one or more of such Person's
Subsidiaries, (iii) any limited liability company of which such Person is a
member or of which 50% or more of the limited liability company interests is at
the time directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries or (iv) any corporation, trust, partnership, limited
liability company or other entity which is controlled or capable of being
controlled by such Person or one or more of such Person's Subsidiaries.
Notwithstanding anything to the contrary, for purposes of this Agreement and the
other Loan Documents, the term "Subsidiary" shall not include any Investment
Entity.
Subsidiary Shares shall have the meaning assigned to that
-----------------
term in Section 5.1.3.
Transferor Bank shall mean the selling Bank pursuant to an
---------------
Assignment and Assumption Agreement.
UCC Collateral shall mean the property of the Loan Parties
--------------
in which security interests are to be granted under the Security Agreement.
Uniform Commercial Code shall have the meaning assigned to
-----------------------
that term in Section 5.1.16.
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<PAGE>
Warrant shall mean the Warrants in substantially the form of
-------
Exhibit 6.1.5 executed and delivered by ICG to each of the Banks.
-------------
1.2 Construction.
------------
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents:
1.2.1 Number; Inclusion.
-----------------
references to the plural include the singular, the plural,
the part and the whole; "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2 Agent's Discretion and Consent.
------------------------------
whenever the Agent or the Banks are granted the right herein
to act in its or their sole discretion or to grant or withhold consent such
right shall be exercised in good faith;
1.2.3 Documents Taken as a Whole.
--------------------------
the words "hereof," "herein," "hereunder," "hereto" and
similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and not to any particular
provision of this Agreement or such other Loan Document;
1.2.4 Headings.
--------
the section and other headings contained in this Agreement
or such other Loan Document and the Table of Contents (if any), preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect;
1.2.5 Implied References to this Agreement.
------------------------------------
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.6 Persons.
-------
reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement or such other Loan Document, as the case may be, and
reference to a Person in a particular capacity excludes such Person in any other
capacity;
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<PAGE>
1.2.7 Modifications to Documents.
--------------------------
reference to any agreement (including this Agreement and any
other Loan Document together with the schedules and exhibits hereto or thereto),
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated;
1.2.8 From, To and Through.
--------------------
relative to the determination of any period of time, "from" means
"from and including," "to" means "to but excluding," and "through" means
"through and including"; and
1.2.9 Shall; Will.
-----------
references to "shall" and "will" are intended to have the same
meaning.
1.3 Accounting Principles.
---------------------
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP; provided, however, that all accounting terms
-------- -------
used in Section 7.2 [Negative Covenants] (and all defined terms used in the
definition of any accounting term used in Section 7.2 shall have the meaning
given to such terms (and defined terms) under GAAP as in effect on the date
hereof applied on a basis consistent with those used in preparing the Annual
Statements referred to in Section 5.1.9(i) [Historical Statements]. In the event
of any change after the date hereof in GAAP, and if such change would result in
the inability to determine compliance with the financial covenants set forth in
Section 7.2 based upon the Borrowers' regularly prepared financial statements by
reason of the preceding sentence, then the parties hereto agree to endeavor, in
good faith, to agree upon an amendment to this Agreement that would adjust such
financial covenants in a manner that would not affect the substance thereof, but
would allow compliance therewith to be determined in accordance with the
Borrowers' financial statements at that time.
2. REVOLVING CREDIT FACILITY
-------------------------
2.1 Revolving Credit Commitments.
----------------------------
Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Bank severally agrees to
make Revolving Credit Loans to the Borrowers at any time or from time to time on
or after the date hereof and prior to the Expiration Date, provided that after
giving effect to such Loan (i) the aggregate amount of Revolving Credit
-22-
<PAGE>
Loans from such Bank plus such Bank's Ratable Share of the Letters of Credit
Outstanding shall not exceed (x) the lesser of (a) such Bank's Revolving Credit
Commitment or (b) such Bank's Ratable Share of the Borrowing Base, and (ii) the
Revolving Facility Usage shall not exceed the Revolving Facility Commitments.
Within such limits of time and amount and subject to the other provisions of
this Agreement, the Borrowers may borrow, repay and reborrow pursuant to this
Section 2.1.
2.2 Nature of Banks' Obligations with Respect to Revolving Credit
-------------------------------------------------------------
Loans.
------
Each Bank shall be obligated to participate in each request for
Revolving Credit Loans pursuant to Section 2.5 [Revolving Credit Loan Requests]
in accordance with its Ratable Share. The aggregate of each Bank's Revolving
Credit Loans outstanding hereunder to the Borrowers at any time shall not exceed
such Bank's Revolving Credit Commitment minus its Ratable Share of the Letter of
Credit Outstandings. The obligations of each Bank hereunder are several. The
failure of any Bank to perform its obligations hereunder shall not affect the
Obligations of the Borrowers to any other party nor shall any other party be
liable for the failure of such Bank to perform its obligations hereunder. The
Banks shall have no obligation to make Revolving Credit Loans hereunder on or
after the Expiration Date.
2.3 Commitment Fees.
---------------
Accruing from the date hereof until the Expiration Date, the
Borrowers, jointly and severally, agree to pay to the Agent for the account of
each Bank, as consideration for such Bank's Revolving Credit Commitment
hereunder, a nonrefundable commitment fee (the "Commitment Fee") equal to .25%
per annum (computed on the basis of a year of 360 days and actual days elapsed)
on the average daily difference between the amount of (i) such Bank's Revolving
Credit Commitment as the same may be constituted from time to time and the (ii)
the sum of such Bank's Revolving Credit Loans outstanding plus its Ratable Share
of Letters of Credit Outstanding. All Commitment Fees shall be payable in
arrears on the first Business Day of each April, July, October and January after
the date hereof and on the Expiration Date or upon acceleration of the Notes in
accordance with Section 8.2 [Consequences of Event of Default] hereof.
2.4 Revolving Credit Closing Fees.
-----------------------------
The Borrowers, jointly and severally, agree to pay on the Closing
Date to the Agent for the account of each Bank, as consideration for such Bank's
Revolving Credit Commitment, nonrefundable closing fees (the "Facility Fees"),
as more particularly described on Schedule 2.4.
2.5 Revolving Credit Loan Requests.
------------------------------
Except as otherwise provided herein, the Borrowers may from time to
time prior to the Expiration Date request the Banks to make Revolving Credit
Loans, or renew or convert
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<PAGE>
the Interest Rate Option applicable to existing Revolving Credit Loans pursuant
to Section 3.2 [Interest Periods], by delivering to the Agent, not later than
12:00 noon, Pittsburgh time, (i) three (3) Business Days prior to the proposed
Borrowing Date with respect to the making of Revolving Credit Loans to which the
Euro-Rate Option applies or the conversion to or the renewal of the Euro-Rate
Option for any Loans; and (ii) on the proposed Borrowing Date with respect to
the making of a Revolving Credit Loan to which the Base Rate Option applies or
the last day of the preceding Interest Period with respect to the conversion to
the Base Rate Option for any Loan, of a duly completed request therefor
substantially in the form of Exhibit 2.5 or a request by telephone immediately
-----------
confirmed in writing by letter, facsimile or telex in such form (each, a "Loan
Request"), it being understood that the Agent may rely on the authority of any
individual making such a telephonic request without the necessity of receipt of
such written confirmation. Each Loan Request shall be irrevocable and shall
specify (i) the proposed Borrowing Date; (ii) the aggregate amount of the
proposed Loans comprising each Borrowing Tranche, which shall be in integral
multiples of $100,000 and not less than $2,000,000 for each Borrowing Tranche to
which the Euro-Rate Option applies and not less than the lesser of $100,000 or
the maximum amount available for Borrowing Tranches to which the Base Rate
Option applies; (iii) whether the Euro-Rate Option or Base Rate Option shall
apply to the proposed Loans comprising the applicable Borrowing Tranche; and
(iv) in the case of a Borrowing Tranche to which the Euro-Rate Option applies,
an appropriate Interest Period for the Loans comprising such Borrowing Tranche.
2.6 Making Revolving Credit Loans.
-----------------------------
The Agent shall, promptly after receipt by it of a Loan Request
pursuant to Section 2.5 [Revolving Credit Loan Requests], notify the Banks of
its receipt of such Loan Request specifying: (i) the proposed Borrowing Date and
the time and method of disbursement of the Revolving Credit Loans requested
thereby; (ii) the amount and type of each such Revolving Credit Loan and the
applicable Interest Period (if any); and (iii) the apportionment among the Banks
of such Revolving Credit Loans as determined by the Agent in accordance with
Section 2.2 [Nature of Banks' Obligations]. Each Bank shall remit the principal
amount of each Revolving Credit Loan to the Agent such that the Agent is able
to, and the Agent shall, to the extent the Banks have made funds available to it
for such purpose and subject to Section 6.2 [Each Additional Loan], fund such
Revolving Credit Loans to the Borrower in U.S. Dollars and immediately available
funds at the Principal Office prior to 2:00 p.m., Pittsburgh time, on the
applicable Borrowing Date, provided that if any Bank fails to remit such funds
--------
to the Agent in a timely manner, the Agent may elect in its sole discretion to
fund with its own funds the Revolving Credit Loans of such Bank on such
Borrowing Date, and such Bank shall be subject to the repayment obligation in
Section 9.16 [Availability of Funds].
2.7 Revolving Credit Notes.
----------------------
The joint and several Obligation of the Borrowers to repay the
aggregate unpaid principal amount of the Revolving Credit Loans made to them by
each Bank, together with interest thereon, shall be evidenced by a Revolving
Credit Note dated the Closing Date payable to
-24-
<PAGE>
the order of such Bank in a face amount equal to the Revolving Credit Commitment
of such Bank.
2.8 Letter of Credit Subfacility.
----------------------------
2.8.1 Issuance of Letters of Credit.
-----------------------------
The Administrative Borrower may request the issuance of a Standby
Letter of Credit (each a "Letter of Credit") on behalf of itself or another Loan
Party by delivering to the Agent a completed application and agreement for
letters of credit in such form as the Agent may specify from time to time by no
later than 12:00 noon, Pittsburgh time, at least three (3) Business Days, or
such shorter period as may be agreed to by the Agent, in advance of the proposed
date of issuance. Subject to the terms and conditions hereof and in reliance on
the agreements of the other Banks set forth in this Section 2.8, the Agent will
issue a Letter of Credit provided that each Letter of Credit shall (A) have a
maximum maturity of 364 days from the date of issuance, and (B) in no event
expire later than five (5) Business Days prior to the Expiration Date and
providing that in no event shall (i) the Letters of Credit Outstanding exceed,
at any one time, $5,000,000 or (ii) the Revolving Facility Usage exceed, at any
one time, the Revolving Credit Commitments.
2.8.2 Letter of Credit Fees.
---------------------
The Borrowers shall pay to the Agent for the ratable account of
the Banks a fee (the "Letter of Credit Fee") equal to the Applicable Margin
governing Loans under the Euro-Rate Option (computed on the basis of a year of
360 days and actual days elapsed), which fee shall be computed on the daily
average Letters of Credit Outstanding and shall be payable quarterly in arrears
commencing with the first Business Day of each April, July, October and January
following issuance of each Letter of Credit and on the Expiration Date. The
Borrowers shall also pay to the Agent for the Agent's sole account the Agent's
then in effect customary fees and administrative expenses payable with respect
to the Letters of Credit as the Agent may generally charge or incur from time to
time in connection with the issuance, maintenance, modification (if any),
assignment or transfer (if any), negotiation, and administration of Letters of
Credit.
2.8.3 Disbursements, Reimbursement.
----------------------------
2.8.3.1 Immediately upon the Issuance of each
Letter of Credit, each Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Agent a participation in such
Letter of Credit and each drawing thereunder in an amount equal to such Bank's
Ratable Share of the maximum amount available to be drawn under such Letter of
Credit and the amount of such drawing, respectively.
2.8.3.2 In the event of any request for a
drawing under a Letter of Credit by the beneficiary or transferee thereof, the
Agent will promptly notify the Administrative Borrower. Provided that it shall
have received such notice, the Borrowers shall
-25-
<PAGE>
reimburse (such obligation to reimburse the Agent shall sometimes be referred to
as a "Reimbursement Obligation") the Agent prior to 12:00 noon, Pittsburgh time
on each date that an amount is paid by the Agent under any Letter of Credit
(each such date, an "Drawing Date") in an amount equal to the amount so paid by
the Agent. In the event the Borrowers fail to reimburse the Agent for the full
amount of any drawing under any Letter of Credit by 12:00 noon, Pittsburgh time,
on the Drawing Date, the Agent will promptly notify each Bank thereof, and the
Borrowers shall be deemed to have requested that Revolving Credit Loans be made
by the Banks under the Base Rate Option to be disbursed on the Drawing Date
under such Letter of Credit, subject to the amount of the unutilized portion of
the Revolving Credit Commitment and subject to the conditions set forth in
Section 6.2 [Each Additional Loan] other than any notice requirements. Any
notice given by the Agent pursuant to this Section 2.8.3.2 may be oral if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
2.8.3.3 Each Bank shall upon any notice pursuant
to Section 2.8.3.2 make available to the Agent an amount in immediately
available funds equal to its Ratable Share of the amount of the drawing,
whereupon the participating Banks shall (subject to Section 2.8.3.4) each be
deemed to have made a Revolving Credit Loan under the Base Rate Option to the
Borrower in that amount. If any Bank so notified fails to make available to the
Agent for the account of the Agent the amount of such Bank's Ratable Share of
such amount by no later than 2:00 p.m., Pittsburgh time on the Drawing Date,
then interest shall accrue on such Bank's obligation to make such payment, from
the Drawing Date to the date on which such Bank makes such payment (i) at a rate
per annum equal to the Federal Funds Effective Rate during the first three days
following the Drawing Date and (ii) at a rate per annum equal to the rate
applicable to Loans under the Base Rate Option on and after the fourth day
following the Drawing Date. The Agent will promptly give notice of the
occurrence of the Drawing Date, but failure of the Agent to give any such notice
on the Drawing Date or in sufficient time to enable any Bank to effect such
payment on such date shall not relieve such Bank from its obligation under this
Section 2.8.3.3.
2.8.3.4 With respect to any unreimbursed drawing
that is not converted into Revolving Credit Loans under the Base Rate Option to
the Borrowers in whole or in part as contemplated by Section 2.8.3.2, because of
the Borrowers' failure to satisfy the conditions set forth in Section 6.2 [Each
Additional Loan] other than any notice requirements or for any other reason, the
Borrowers shall be deemed to have incurred from the Agent a borrowing (each a
"Letter of Credit Borrowing") in the amount of such drawing. Such Letter of
Credit Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the rate per annum applicable to the Revolving Credit
Loans under the Base Rate Option plus an additional 2% per annum. Each Bank's
payment to the Agent pursuant to Section 2.8.3.3 shall be deemed to be a payment
in respect of its participation in such Letter of Credit Borrowing and shall
constitute a "Participation Advance" from such Bank in satisfaction of its
participation obligation under this Section 2.8.3.
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<PAGE>
2.8.4 Repayment of Participation Advances.
-----------------------------------
2.8.4.1 Upon (and only upon) receipt by the
Agent for its account of immediately available funds from the Borrowers (i) in
reimbursement of any payment made by the Agent under the Letter of Credit with
respect to which any Bank has made a Participation Advance to the Agent, or (ii)
in payment of interest on such a payment made by the Agent under such a Letter
of Credit, the Agent will pay to each Bank, in the same funds as those received
by the Agent, the amount of such Bank's Ratable Share of such funds, except the
Agent shall retain the amount of the Ratable Share of such funds of any Bank
that did not make a Participation Advance in respect of such payment by Agent.
2.8.4.2 If the Agent is required at any time to
return to any Loan Party, or to a trustee, receiver, liquidator, custodian, or
any official in any Insolvency Proceeding, any portion of the payments made by
any Loan Party to the Agent pursuant to Section 2.8.4.1 in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Bank
shall, on demand of the Agent, forthwith return to the Agent the amount of its
Ratable Share of any amounts so returned by the Agent plus interest thereon from
the date such demand is made to the date such amounts are returned by such Bank
to the Agent, at a rate per annum equal to the Federal Funds Effective Rate in
effect from time to time.
2.8.5 Documentation.
-------------
Each Loan Party agrees to be bound by the terms of the Agent's
application and agreement for letters of credit and the Agent's written
regulations and customary practices relating to letters of credit, though such
interpretation may be different from such Loan Party's own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Agent shall not be liable for any
error, negligence and/or mistakes, whether of omission or commission, in
following any Loan Party's instructions or those contained in the Letters of
Credit or any modifications, amendments or supplements thereto.
2.8.6 Determinations to Honor Drawing Requests.
----------------------------------------
In determining whether to honor any request for drawing under any
Letter of Credit by the beneficiary thereof, the Agent shall be responsible only
to determine that the documents and certificates required to be delivered under
such Letter of Credit have been delivered and that they comply on their face
with the requirements of such Letter of Credit.
2.8.7 Nature of Reimbursement Obligations.
-----------------------------------
The Obligations of the Borrowers to reimburse the Agent upon a
draw under a Letter of Credit, shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Section 2.8
under all circumstances, including the following circumstances:
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<PAGE>
(i) any set-off, counterclaim, recoupment,
defense or other right which the Borrower may have against the Agent or any
other Person for any reason whatsoever;
(ii) the failure of any Loan Party or any other
Person to comply, in connection with a Letter of Credit Borrowing, with the
conditions set forth in Section 2.1 [Revolving Credit Commitments], 2.5
[Revolving Credit Loan Requests], 2.6 [Making Revolving Credit Loans] or 6.2
[Each Additional Loan or Letter of Credit] or as otherwise set forth in this
Agreement for the making of a Revolving Credit Loan, it being acknowledged that
such conditions are not required for the making of a Letter of Credit Borrowing;
(iii) any lack of validity or enforceability of
any Letter of Credit;
(iv) the existence of any claim, set-off,
defense or other right which any Loan Party or any Bank may have at any time
against a beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), the Agent or any Bank or any other
Person or, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between any Loan Party or Subsidiaries of a Loan Party and the
beneficiary for which any Letter of Credit was procured);
(v) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect even if the Agent has been notified thereof;
(vi) payment by the Agent under any Letter of
Credit against presentation of a demand, draft or certificate or other document
which does not strictly comply with the terms of such Letter of Credit;
(vii) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of any Loan Party or Subsidiaries of a Loan Party;
(viii) any breach of this Agreement or any
other Loan Document by any party thereto;
(ix) the occurrence or continuance of an
Insolvency Proceeding with respect to any Loan Party;
(x) the fact that an Event of Default or a
Potential Default shall have occurred and be continuing;
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(xi) the fact that the Expiration Date shall
have passed or this Agreement or the Commitments hereunder shall have been
terminated; and
(xii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
2.8.8 Indemnity.
---------
In addition to amounts payable as provided in Section 9.5
[Reimbursement of Agent by Borrower, Etc.], the Borrowers hereby agree to
protect, indemnify, pay and save harmless the Agent from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable fees, expenses and disbursements of counsel and allocated
costs of internal counsel) which the Agent may incur or be subject to as a
consequence, direct or indirect, of the issuance of any Letter of Credit, other
than as a result of (A) the gross negligence or willful misconduct of the Agent
as determined by a final judgment of a court of competent jurisdiction or (B)
the wrongful dishonor by the Agent of a proper demand for payment made under any
Letter of Credit, except if such dishonor resulted from any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"Governmental Acts").
2.8.9 Liability for Acts and Omissions.
--------------------------------
As between any Loan Party and the Agent, such Loan Party assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit by,
the respective beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, the Agent shall not be responsible for: (i) the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Agent shall have been notified thereof); (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) the failure of the beneficiary of
any such Letter of Credit, or any other party to which such Letter of Credit may
be transferred, to comply fully with any conditions required in order to draw
upon such Letter of Credit or any other claim of any Loan Party against any
beneficiary of such Letter of Cre |
