Credit Agreement [Amendment No. 2] - Internet Capital Group inc., Internet Capital Group Operations Inc., PNC NA, Bank of America NA, Comerica Bank-California, Imperial Bank and Progress Bank
AMENDMENT NO. 2
AMENDMENT NO. 2, dated as of November 19, 1999 (this "Amendment"), to
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the Credit Agreement, dated as of April 30, 1999 (the "Agreement"), among
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INTERNET CAPITAL GROUP, INC., a Delaware corporation ("ICG"), INTERNET CAPITAL
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GROUP OPERATIONS, INC., a Delaware corporation ("ICG Operations" and together
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with ICG, each a "Borrower" and collectively the "Borrowers"), the BANKS (as
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defined therein) and PNC BANK, NATIONAL ASSOCIATION, in its capacity as agent
for the Banks (the "Agent"), as amended by that certain Amendment No. 1, dated
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as of October 27, 1999 ("Amendment No. 1"), among ICG, ICG Operations, the Banks
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and the Agent (the Agreement, as amended by Amendment No. 1, being collectively
referred to herein as the "Credit Agreement").
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RECITALS
The Borrowers have advised the Agent and the Banks that they currently
propose to (i) engage in a $575,000,000 public offering of ICG's common stock,
par value $.001 per share (the "Public Offering"), (ii) a $402,500,000 public
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offering of convertible subordinated debt securities (the "Public Debt
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Offering", and together with the Public Stock Offering, the "Public Offerings")
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and (iii) make certain additional Investments. In connection with the proposed
Public Offerings, the issuance of the subordinated debt and the making of
certain additional Investments, the Borrowers have requested the Agent and the
Banks to agree to amend certain provisions of the Credit Agreement as set forth
in this Amendment. The Agent and the Banks parties hereto are willing to agree
to such amendments, but only on the terms and subject to the conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrowers and the Agent and the Banks parties hereto hereby
agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms
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defined in the Credit Agreement are used herein as therein.
2. Amendments.
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(a) Section 1.1 of the Credit Agreement is hereby amended by adding
the following new definitions thereto in the appropriate alphabetical order:
"Additional $50,000,000 Investment Entity" shall mean one of
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up to four (4) Investment Entities of any Borrower in whom such
Borrower has made an Investment permitted in accordance with the
provisions of subclause (c) of Section 7.1.15.
"Additional $50,000,000 Investment Entities" shall mean
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collectively all Additional $50,000,000 Investment Entities.
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"Additional $75,000,000 Investment Entity" shall mean one, and
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only one, Investment Entity of any Borrower in whom such Borrower has
made an Investment permitted in accordance with the provisions of
subclause (d) of Section 7.1.15.
"Amendment No. 2" shall mean Amendment No. 2, dated as of
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November __, 1999, to the Credit Agreement.
"1999 Subordinated Debt" shall mean any unsecured Indebtedness
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of a Borrower, including any 1999 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)(2) attached hereto.
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"1999 Subordinated Lender" shall mean any Person who makes a
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loan to any Loan Party to the extent such loan constitutes 1999 Subordinated
Debt hereunder, together with such Person's successors and assigns.
"1999 Subordinated Loans" shall mean up to $402,500,000 of
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1999 Subordinated Loans, inclusive of the loans evidenced by the 1999
Subordinated Notes, made by the 1999 Subordinated Lender(s) to ICG pursuant to
the 1999 Subordinated Loan Documents.
"1999 Subordinated Loan Documents" shall mean (a) any and all
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instruments, certificates or documents delivered or contemplated to be delivered
in connection with any 1999 Subordinated Debt and (b) the 1999 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.
"1999 Subordinated Note(s)" shall mean the convertible note(s)
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of ICG payable to the 1999 Subordinated Lenders, each of which shall be executed
and delivered substantially in the form of Exhibit 1.1(C)(2) hereof.
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"Public Offerings" shall have the meaning ascribed thereto
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in the recitals to Amendment No. 2.
"Second Supplemental Closing Date" shall have the meaning
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ascribed to such term in Section 3 hereof.
(b) Section 1.1 of the Credit Agreement is hereby amended by
amending the definition of "Borrowing Base" by deleting the last sentence
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thereof and replacing it with the following:
"Notwithstanding anything to the contrary contained herein,
when determining the Borrowing Base, (i) no more than $25,000,000 of the
Borrowing Base shall be
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attributed to Pledged Collateral issued by any individual Investment Entity
other than eMerge, any Additional $50,000,000 Investment Entity or the
Additional $75,000,000 Investment Entity, (ii) no more than $50,000,000 of the
Borrowing Base shall be attributed to eMerge Pledged Collateral issued by
eMerge; provided, however, that in no event shall any advance be made hereunder
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based on the value of the eMerge Preferred Stock which exceeds the amount then
paid by or on behalf of ICG pursuant to the eMerge Note, (iii) no more than
$50,000,000 of the Borrowing Base shall be attributable to Pledged Collateral
issued by any Additional $50,000,000 Investment Entity and (iv) no more than
$75,000,000 of the Borrowing Base shall be attributable to Pledged Collateral
issued by the Additional $75,000,000 Investment Entity."
(c) A new Section 5.1.29 is hereby added to the Credit Agreement as
follows:
"Validity and Binding Effect of the 1999 Subordinated
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Loan Documents.
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The 1999 Subordinated Loan Documents have been, or will be,
duly and validly executed and delivered by the parties thereto and constitute,
or will constitute, the legal, valid and binding obligations of the parties
thereto, enforceable against them in accordance with their respective terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or by laws or judicial decisions
limiting the right of specific performance. All representations and warranties
of any Loan Party contained in the 1999 Subordinated Loan Documents will be true
and correct in all material respects as of the date made. There exists no
default, nor any circumstance which, after notice or lapse of time or both would
cause or permit the acceleration of any 1999 Subordinated Debt under any 1999
Subordinated Loan Documents and there exists no lien, set-off, claim or, to the
knowledge of any Loan Party after due inquiry, other impairment of the validity
or enforceability of such documents. The 1999 Subordinated Loan Documents
constitute the entire agreement between each Borrower and the holders of the
1999 Subordinated Debt and there are no other agreements with respect to the
1999 Subordinated Debt."
(d) Section 7.1.15 of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof a new
Section 7.1.15 to read as follows:
"7.1.15 Investments.
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The Borrowers may make Investments in other Persons in
addition to Investments existing on the Closing Date and disclosed in Schedules
1.1(A-1), 1.1(A-2) and 1.1(A-3) attached hereto; provided, however, that (a) the
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Borrowers may only invest a maximum of $25,000,000 in Cash and Cash Equivalents
per calendar year in any Investment Entity other than eMerge, the Additional
$50,000,000 Investment Entities and the Additional $75,000,000 Investment
Entity, (b) the Borrowers may only invest a maximum of (x) an aggregate of
$75,000,000 in Cash and Cash Equivalents in eMerge for calendar years 1999 and
2000, and (y) $25,000,000 in Cash and Cash Equivalents in eMerge in any calendar
year subsequent to 2000, (c) the Borrowers may only invest a maximum of
$50,000,000 in Cash and Cash Equivalents per calendar year in any Additional
$50,000,000 Investment Entity, (d) the Borrowers may only invest a maximum of
$75,000,000 in Cash and Cash Equivalents per calendar year in the Additional
$75,000,000
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Investment Entity and (e) the Borrowers will promptly, and in any event within
five (5) Business Days of the making of any such Investment provide to the Agent
and the Banks an updated Annex A to the Letter Agreement reflecting any such
additional Investment."
(e) A new Section 7.1.23 and 7.1.24 are hereby added to the Credit
Agreement as follows:
"7.1.23 Updated Capitalization and Ownership.
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Immediately prior to or on the effective date of the proposed
Public Offerings, the Borrower shall provide the Agent and the Banks in writing
with such revisions to the representation contained in Section 5.1.2 as may be
necessary to update or correct such representation to reflect changes to the
capitalization and ownership effected by the proposed Public Offerings.
7.1.24 1999 Subordinated Loan Documents.
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The Administrative Borrower shall deliver to the Agent for
delivery to the Banks a true and correct copy of the 1999 Subordinated Loan
Documents and any amendments, waivers and other documents executed in connection
therewith (including all exhibits and schedules to such documents) within sixty
(60) calendar days of the execution thereof by the parties thereto."
(f) Section 7.2.1 of the Credit Agreement is hereby amended by
deleting the word "and" at the subclause (iv), adding the word "and" at the end
of subclause (v) and adding a new subclause (vi) to read as follows:
"(vi) 1999 Subordinated Debt in an aggregate principal amount
not to exceed $402,500,000 at any time outstanding."
(g) Section 7.2.5 of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof a new
Section 7.2.5 to read as follows:
"7.2.5 Dividends and Related Distributions.
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Each of the Loan Parties shall not, and shall not
permit any of its Subsidiaries to, make or pay, or agree to become or remain
liable to make or pay, any dividend or other distribution of any nature (whether
in cash, property, securities or otherwise) on account of or in respect of its
shares of capital stock, partnership interests or limited liability company
interests on account of the purchase, redemption, retirement or acquisition of
its shares of capital stock (or warrants, options or rights therefor),
partnership interests or limited liability company interests, except (i)
dividends or other distributions payable to another Loan Party and (ii) the
issuance of up to $1,000,000,000 of ICG's common stock in connection with the
proposed Public Offering; provided, however, that notwithstanding anything to
the contrary provided in any Loan Document, in no event shall such proposed
Public Offering be permitted hereunder if (i) after giving effect to such
proposed Public Offering, a Potential Default or Event of Default shall exist
hereunder, (ii) such Public Offering shall violate any Law or (iii) such Public
Offering of ICG's common stock shall exceed $1,000,000,000."
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(h) Section 7.2.15 of the Credit Agreement is hereby amended by
renumbering such Section as Section 7.2.15(A) and adding thereto a new Section
7.2.15(B) to read as follows:
"7.2.15(B) Amendment or Waiver of 1999 Subordinated Debt;
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Payment or Prepayment of 1999 Subordinated Debt.
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Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to:
(i) without the prior written consent of the Required Banks,
agree to any amendment or other change to, or waiver of any of its rights under,
the 1999 Subordinated Debt, the 1999 Subordinated Loan Documents or any other
evidences of such 1999 Subordinated Debt which shall cause:
(A) any payment by any of the Loan Parties to become
due prior to the date such payment is due consistent with the terms and
conditions set forth on Exhibit 1.1(D)(2) hereto;
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(B) any advancement of the maturity date under any
1999 Subordinated Loan Document;
(C) any increase in the aggregate principal amount
outstanding under the 1999 Subordinated Debt to an amount which exceeds
$402,500,000; or
(D) any increase in the interest rate applicable to
any 1999 Subordinated Debt; or
(ii) amend, change, waive or otherwise modify any of the
terms and provisions set forth in Exhibit 1.1(D)(2) to the extent any such
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amendment, change or waiver or other modification of any of the terms and
provisions set forth in Exhibit 1.1(D)(2) would result in the terms of the 1999
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Subordinated Debt being less favorable to the holders of the Senior
Indebtedness; or
(iii) directly or indirectly, by deposit of monies or
otherwise, prepay, purchase, redeem, retire, defease or otherwise acquire, or
make any payment on account of any principal of, premium or interest payable in
connection with the payment, prepayment, redemption, defeasance or retirement of
any 1999 Subordinated Debt."
(i) Section 7.2.17 of the Credit Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof a new
Section 7.2.17 to read as follows:
"7.2.17 Maximum Leverage Ratio.
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The Loan Parties shall not at any time permit the
ratio of consolidated total liabilities (excluding Subordinated Debt and the
1999 Subordinated Debt) of the Borrowers and their respective Subsidiaries to
Consolidated Tangible Net Worth to exceed the ratio as set forth below:
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Period Ratio
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Closing Date and thereafter .50 to 1.0"
(j) A new Section 8.1.13A is hereby added to the Credit Agreement
as follows:
"8.1.13A. Breach of 1999 Subordination Loan Documents Terms.
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Any agreement to subordinate the right of payment in respect
of the 1999 Subordinated Debt to the Indebtedness arising out of or under the
Loan Documents, at any time and for any reason, ceases to be in full force and
effect or is declared to be null and void; or any holder of such 1999
Subordinated Debt repudiates or disavows such subordination or denies that it
has further liability or obligation under such subordination agreement or gives
notice to such effect; or any default or event of default shall have occurred
and be continuing under the 1999 Subordinated Loan Documents."
3. Effectiveness. The effectiveness of this Amendment, is subject
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to the satisfaction of the following conditions precedent (the date of such
satisfaction being herein referred to as the "Second Supplemental Closing
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Date"):
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(a) Amendment; 1999 Subordinated Notes. The Agent shall have
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received this Amendment, executed and delivered by a duly authorized
officer of each of the Borrowers, with a counterpart for each Bank and
a copy of the form of the 1999 Subordinated Note(s), with a copy for
each Bank.
(b) Borrowing Base Certificate. On or prior to the Second
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Supplemental Closing Date, the Agent and the Banks shall have received
and the Agent and the Banks shall be satisfied (both as to form and
substance) with a pro forma Borrowing Base Certificate in the form set
forth in Exhibit 1.1(B) to the Credit Agreement which shall be prepared
as of a date prior to the Second Supplemental Closing Date.
(c) Proceedings of the Borrower. The Agent shall have
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received, with a counterpart for each Bank, a copy of the resolutions,
in form and substance satisfactory to the Agent, of each of the
Borrowers authorizing the execution, delivery and performance of this
Amendment and the other Amendment Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of each of the
Borrowers as of the Second Supplemental Closing Date, which certificate
shall be in form and substance satisfactory to the Agent and shall
state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(d) Borrower Incumbency Certificate. The Agent shall have
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received, with a counterpart for each Bank, a certificate of each of
the Borrowers, dated the Second Supplemental Closing Date, as to the
incumbency and signature of the officers of each of the Borrowers
executing this Amendment or the other Amendment Documents to which each
of the Borrowers is a party, satisfactory in form and substance to the
Agent, executed by an Authorized Officer of each of the Borrowers.
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(e) Representations and Warranties. Each of the representations
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and warranties made by each of the Borrowers and the other Loan Parties
in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of the Second Supplemental Closing Date as
if made on and as of such Second Supplemental Closing Date (and after
giving effect to the amendments provided for in this Amendment) (or, if
any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
(f) No Default. No Potential Default or Event of Default shall
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have occurred and be continuing on the Second Supplemental Closing Date
or after giving effect to the amendments provided for in this
Amendment.
(g) Additional Matters. All corporate and other proceedings,
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and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement, the other Loan
Documents and the 1999 Subordinated Loan Documents shall be
satisfactory in form and substance to the Agent, and the Agent shall
have received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
4. Representations and Warranties. To induce the Agent and the Banks to
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enter into this Amendment, the Borrowers hereby represent and warrant to the
Agent and the Banks that, after giving effect to the amendments provided for
herein, the representations and warranties contained in the Credit Agreement and
the other Loan Documents will be true and correct in all material respects as if
made on and as of the date hereof and that no Potential Default or Event of
Default will have occurred and be continuing (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such
specific date).
5. No Other Amendments. Except as expressly amended hereby, the Credit
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Agreement, the Notes and the other Loan Documents shall remain in full force and
effect in accordance with their respective terms, without any waiver, amendment
or modification of any provision thereof.
6. Counterparts. This Amendment may be executed by one or more of the
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parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Expenses. The Borrowers agree to pay and reimburse the Agent for all
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of the out-of-pocket costs and expenses incurred by the Agent in connection with
the preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and disbursements of Buchanan Ingersoll
Professional Corporation, counsel to the Agent.
8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA.
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[SIGNATURE PAGES FOLLOW]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
INTERNET CAPITAL GROUP, INC.
By: /s/ John Nickolas
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Name: John Nickolas
Title: Managing Director and Assistant
Treasurer
INTERNET CAPITAL GROUP OPERATIONS, INC.
By: /s/ John Nickolas
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Name: John Nickolas
Title: Managing Director and Assistant
Treasurer
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ John T. Freyhof
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Name: John T. Freyhof
Title: Vice President
BANK OF AMERICA, N.A., formerly known as BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
By: /s/ Jouni Korhonen
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Name: Jouni Korhonen
Title: Principal
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<PAGE>
COMERICA BANK-CALIFORNIA
By: /s/ Alan Jepsen
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Name: Alan Jepsen
Title: Vice President
IMPERIAL BANK
By: /s/ April L. Young
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Name: April L. Young
Title: SVP
PROGRESS BANK
By: /s/ Liz Lambert
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Name: Liz Lambert
Title: Vice President
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EXHIBIT 1.1(C)(2)
TO AMENDMENT NO. 2
FORM OF 1999 SUBORDINATED NOTE
To be provided on or prior to the Second Supplemental Closing Date.
<PAGE>
EXHIBIT 1.1(D)(2)
TO AMENDMENT NO. 2
SUBORDINATION
The notes will be unsecured obligations of Internet Capital Group, Inc. ("ICG")
and will be subordinated in right of payment, as provided in the Indenture, to
the prior payment in full in cash or other payment satisfactory to holders of
Senior Indebtedness, of all ICG's existing and future Senior Indebtedness.
At [ ], ICG had $[ ] million of senior indebtedness outstanding,
and our subsidiary had no indebtedness outstanding. The Indenture does not
restrict the incurrence by ICG or its subsidiaries of indebtedness or other
obligations.
The term "Senior Indebtedness" means:
. the principal, premium, if any, interest and all other amounts owed in
respect of all of ICG's
- indebtedness for money borrowed and
- indebtedness evidenced by securities, debentures, bonds or
other similar instruments
. all of ICG's capital lease obligations
. all obligations issued or assumed by ICG as the deferred purchase
price of property, all of ICG's conditional sale obligations and all
of ICG's obligations under any title retention agreement, but
excluding trade accounts payable arising in the ordinary course of
business
. all of ICG's obligations for the reimbursement of any letter of
credit, banker's acceptance, security purchase facility or similar
credit transaction
. all obligations of the type referred to in each of the above bullet
points of other persons for the payment of which ICG is responsible or
liable as obligor, guarantor or otherwise and
. all obligations of the type referred to in each of the above bullet
points of other persons secured by any lien on any of our properties
or assets, whether or not such obligation is assumed by ICG
except for:
. any such indebtedness that is by its terms subordinated to or pari
passu with the notes and
<PAGE>
. any indebtedness between or among ICG or its affiliates, including all
other debt securities and guarantees in respect of those debt
securities issued to any trust, or trustees of any trust, partnership
or other entity affiliated with ICG that is, directly or indirectly, a
financing vehicle used by ICG in connection with the issuance by that
financing vehicle of preferred securities or other securities that rank
pari passu with, or junior to, the notes
Any Senior Indebtedness will continue to be Senior Indebtedness and will be
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any of its terms.
By reason of the application of the subordination provisions, in the event of
dissolution, insolvency, bankruptcy or other similar proceedings, upon any
distribution of ICG's assets:
. the holders of the notes are required to pay over their share of that
distribution to the trustee in bankruptcy, receiver or other person
distributing ICG's assets for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all
holders of Senior Indebtedness in full in cash or other payment
satisfactory to the holders of Senior Indebtedness and
. unsecured creditors of ours who are not holders of notes or holders of
Senior Indebtedness of ICG's may recover less, ratably, than holders of
Senior Indebtedness of ICG's, and may recover more, ratably, than the
holders of notes
In addition, ICG may not pay the principal amount, Redemption Price, Change in
Control Purchase Price or interest with respect to any notes, and ICG may not
acquire any notes for cash or property, except as provided in the Indenture, if:
(1) any payment default on any Senior Indebtedness has occurred and is
continuing beyond any applicable grace period or
(2) any default, other than a payment default with respect to Senior
Indebtedness occurs and is continuing that permits the acceleration of
the maturity of that Senior Indebtedness and that default is either the
subject of judicial proceedings or ICG receives a written notice of
that default (a "Senior Indebtedness Default Notice").
Notwithstanding the foregoing, payments with respect to the notes may resume and
ICG may acquire notes for cash when:
(a) the default with respect to the Senior Indebtedness cured or
waived or ceases to exist or
(b) in the case of a default described in (2) above, 179 or more days
pass after notice of the default is received by us, provided that
the terms of the Indenture otherwise permit the payment or
acquisition of the notes at that time.
<PAGE>
If ICG receives a Senior Indebtedness Default Notice, then a similar notice
received within nine months after receiving that Senior Indebtedness Default
Notice relating to the same default on the same issue of Senior Indebtedness
will not be effective to prevent the payment or acquisition of the notes as
provided above. In addition, no payment may be made on the notes if any notes
are declared due and payable prior to their Stated Maturity by reason of the
occurrence of an Event of Default until the earlier of:
. 120 days after the date of acceleration of the maturity of that
Senior Indebtedness or
. the payment in full of all Senior Indebtedness but only if payment
on the notes is then otherwise permitted under the terms of the
Indenture.
Upon any payment or distribution of ICG's assets to creditors upon any
dissolution, winding up, liquidation or reorganization of ICG, whether voluntary
or involuntary, or in bankruptcy, insolvency, receivership or other similar
proceedings, the holders of all the Senior Indebtedness will first be entitled
to receive payment in full, in cash or other payment satisfactory to the holders
of Senior Indebtedness, of all amounts due or to become due on that Senior
Indebtedness, or payment of those amounts must have been provided for, before
the holders of the notes will be entitled to receive any payment or distribution
with respect to any notes.
The notes are effectively subordinated to all existing and future liabilities of
ICG's subsidiaries. Any right of ICG to receive assets of any of ICG's
subsidiaries upon their liquidation or reorganization, and the consequent right
of the holders of the notes to participate in those assets, will be subject to
the claims of that subsidiary's creditors, including trade creditors, except to
the extent that ICG itself is recognized as a creditor of that subsidiary, in
which case ICG's claims would still be subordinate to any security interests in
the assets of that subsidiary and any indebtedness of that subsidiary senior to
that held by ICG.