Exhibit 4.5
-----------
LOAN AGREEMENT
This LOAN AGREEMENT ("Loan Agreement") is entered into as of the 11th day
of April, 2002 (the "Effective Date") by OptiMark Holdings, Inc., a Delaware
corporation ("OptiMark"), SOFTBANK Capital Partners LP, SOFTBANK Capital
Advisors Fund LP and SOFTBANK Capital LP, each a Delaware limited partnership
(together "Softbank") and, solely with respect to Section 3.5 below, OptiMark,
Inc., a Delaware corporation and wholly-owned subsidiary of OptiMark ("Optimark,
Inc.").
INTRODUCTION
WHEREAS, OptiMark has requested that Softbank extend OptiMark credit in the
principal amount of $570,000 for the purposes set forth in Section 7.1.1 hereof
and whereas Softbank is willing to extend such credit on the terms and
conditions contained in this Loan Agreement.
WHEREAS, the amount advanced by Softbank to OptiMark pursuant to this Loan
Agreement may be applied to the purchase of equity in OptiMark under the terms
and conditions specified in this Loan Agreement.
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration, receipt of which is hereby
acknowledged, and in order to induce Softbank to extend such credit, OptiMark
and Softbank hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions and Exhibits. Terms defined above or in the
text of this Loan Agreement shall have the meanings set forth herein. Other
capitalized terms shall have the meaning set forth in the Definitions Addendum,
which is attached and incorporated herein. All exhibits to this Loan Agreement
are also incorporated herein.
ARTICLE 2.
THE COMMITMENT
Section 2.1 Term Commitment. Subject to the terms and conditions of
this Loan Agreement, Softbank agrees to make a loan on the Closing Date to
OptiMark in the principal amount of $570,000 (the "Principal Amount"). The Loan
shall bear interest as provided in this Loan Agreement. The Loan shall be
evidenced by the Notes and this Loan Agreement.
Subject to the conditions set forth in this Loan Agreement, Softbank shall
disburse the Loan amount, less (i) reimbursement to Softbank of fees and
disbursements
of Softbank's counsel in connection with this Loan Agreement including, without
limitation, estimated fees in connection with the filing of Financing Statements
(Form UCC-1) and other instruments advisable to perfect the Liens granted by the
Security Agreement and Guarantees (in an amount specified in writing to OptiMark
at least one (1) Business Day prior to the Closing Date) and (ii) reimbursement
to Xxxxxxxx & Xxxxxxxx, counsel to OptiMark, of fees and disbursements in
connection with this Loan Agreement (in an amount specified in writing to
OptiMark at least one (1) Business Day prior to the Closing Date), by wire
transfer of immediately available funds to such account as OptiMark shall notify
Softbank in writing at least one (1) Business Day prior to the Closing Date.
Section 2.2 Evidence of Indebtedness. Softbank shall maintain records
evidencing amounts of principal and interest paid by or on behalf of OptiMark to
Softbank hereunder. The books and records of Softbank shall be prima facie
evidence, absent manifest error, of all amounts of principal, interest, Costs
and Fees, outstanding or repaid pursuant to this Loan Agreement or any Related
Document.
ARTICLE 3.
REPAYMENT, INTEREST AND CONVERSION
Section 3.1 Payment Of Principal and Interest. The outstanding
principal balance of the Notes, together with all accrued but unpaid interest,
shall be due and payable on the 180th calendar day following the Closing Date
(the "Maturity Date"). The outstanding principal balance due on the Loan shall
be determined as specified in Section 3.2. The principal, interest and other
sums due on the Notes or under the Loan Agreement shall be reflected by
Softbank's records which will be prima facie evidence of the computation of the
amounts owing by OptiMark to Softbank, absent manifest error.
Section 3.2 Interest Rate, Interest Compounding, Outstanding Principal
Balance. Interest on the outstanding principal balance of the Loan shall accrue
at ten percent (10%) per annum, based on a year of 360 days and actual days
elapsed. Interest shall be compounded every 90 days following the Closing Date
and shall accrue from the Closing Date until the Loan is paid in full. Upon the
occurrence and during the continuance of an Event of Default, interest on the
outstanding principal balance of the Notes shall accrue at the Default Rate
specified in Section 4.2 hereof and shall also be compounded every 90 days
following the Closing Date. OptiMark may, at its election, from time to time
prior to the Maturity Date pay accrued and unpaid interest in cash. All accrued
but unpaid interest shall be due and payable on the Maturity Date, at Softbank's
election, (i) in cash or (ii) as set forth in Section 3.5 hereof. All accrued
but unpaid interest shall be added to the outstanding principal balance on the
last day of each 90-day period following the Closing Date and after such
compounding; interest shall accrue on such increased principal balance
thereafter. If it is ever determined that the rate of interest was in excess of
any maximum rate (if any) prescribed by law, then that portion of interest
payments representing any amounts in excess of said maximum shall be deemed a
payment of principal and applied by Softbank at any time against principal.
-2-
Section 3.3 Prepayment. The Loan may be prepaid at any time or from
time to time in whole or in part without prepayment fee, premium or penalty. Any
prepayment shall first be applied to Costs and Fees, if any, described in
Section 4.1, then to interest and then to principal, or in such other order as
Softbank may, in its sole discretion, determine.
Section 3.4 Manner, Method, Place, Time and Application of Payment,
Reinstatement, Waivers. Except as otherwise provided in Section 3.5 hereof, all
Obligations shall be paid in lawful currency of the United States and in
immediately available funds to Softbank by wire transfer in immediately
available funds to such bank account as Softbank or any assignee may designate
in writing. The liability of OptiMark hereunder and under any Related Document
shall be reinstated and revived and the rights of Softbank shall continue to the
extent of any amount at any time paid by or on behalf of OptiMark if such amount
shall thereafter be required to be restored, returned or forfeited by Softbank
pursuant to any Requirement of Law, and OptiMark's liability therefor shall
continue as if such amount had not been paid.
OptiMark agrees that if for any reason any amount due hereunder or under
any Related Document is paid by cashier's, certified teller's or other check,
there shall be no discharge of OptiMark's obligation until said check be finally
paid by the issuer thereof.
All payments under this Loan Agreement shall be made without counterclaim,
set-off, condition or qualification and free and clear of (and without deduction
for) any Taxes, deductions or charges of any nature whatsoever and irrespective
of any default by Softbank under this Loan Agreement or any Related Document.
All payments (other than prepayments which shall be applied as specified in the
preceding Section 3.3) shall be applied first against Costs and Fees, if any,
described in Section 4.1, then against indemnities and all amounts due hereunder
other than principal and interest, then against interest due on amounts in
default, then against interest due on amounts not in default, and then against
principal.
Section 3.5 OII Capital Stock.
(a) On or prior to the Maturity Date, in lieu of Softbank's
receipt of re-payment of the Obligations in lawful currency of the United States
in immediately available funds as provided in Section 3.4, Softbank may elect,
in its sole discretion: (i) to require the Company to cause OptiMark, Inc. to
deliver to Softbank twelve (12) shares (as adjusted pursuant to Sections 3.5(b),
(c) and (d) below) of OII Common Stock held by OptiMark, Inc. and fifty-four
(54) shares (as adjusted pursuant to Sections 3.5(b), (c) and (d) below) of OII
Preferred Stock held by OptiMark, Inc. as re-payment of the Principal Amount,
and (ii) to receive payment of all Obligations less the Principal Amount as set
forth in Section 3.4 hereto.
(b) Adjustments to Number of Shares of OII Common Stock and OII
Preferred Stock for Dividends and for Combinations or Subdivisions. In the event
that OptiMark Innovations at any time or from time to time after the Closing
Date but on
-3-
or prior to the Maturity Date shall declare or pay, without consideration, any
dividend on shares of OII Common Stock payable in shares of OII Common Stock or
any dividend on shares of OII Preferred Stock payable in shares of OII Preferred
Stock or, in either case, in any right to acquire OII Common Stock or OII
Preferred Stock, respectively, for no consideration, or shall effect a
subdivision of the outstanding shares of OII Common Stock or OII Preferred Stock
into a greater number of shares of OII Common Stock or OII Preferred Stock,
respectively (by stock split, reclassification or otherwise than by payment of a
dividend in capital stock of OptiMark Innovations or in any right to acquire
such capital stock), or in the event the outstanding shares of OII Common Stock
or OII Preferred Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of OII Common Stock or OII Preferred
Stock, as applicable, then the number of shares OII Common Stock or OII
Preferred Stock, as applicable, which OptiMark shall be required to cause
OptiMark, Inc. to deliver to Softbank pursuant to Section 3.5(a) immediately
prior to such event shall, concurrently with the effectiveness of such event, be
proportionately decreased or increased, as appropriate. In the event that
OptiMark Innovations shall declare or pay, without consideration, any dividend
on the OII Common Stock or OII Preferred Stock payable in any right to acquire
OII Common Stock or OII Preferred Stock, respectively, for no consideration then
OptiMark Innovations shall be deemed to have made a dividend payable in OII
Common Stock or OII Preferred Stock, as the case may be, in an amount of shares
equal to the maximum number of shares issuable upon exercise of such rights to
acquire OII Common Stock or OII Preferred Stock.
(c) Adjustments for Reclassification and Reorganization. If the
OII Common Stock or OII Preferred Stock (together with the OII Common Stock, the
"OII Stock") which OptiMark shall be required to cause OptiMark, Inc. to deliver
to Softbank pursuant to Section 3.5(a) shall be exchanged for or changed into
any other class or series of capital stock of any issuer, cash or any other
property, right, or form of consideration, whether by capital reorganization,
reclassification, merger, consolidation, reorganization or otherwise (other than
a subdivision or combination of shares provided for in Section 3.5(b)), then the
number of shares of OII Stock that OptiMark shall be required to cause OptiMark,
Inc. to deliver to Softbank pursuant to Section 3.5(a) shall, concurrently with
the effectiveness of such reorganization, reclassification, merger,
consolidation, reorganization or other event, be modified so that the OII Stock
to be delivered pursuant to Section 3.5(a) shall be replaced by, in lieu of the
number of shares of OII Stock which Softbank would otherwise have been entitled
to receive, such number of shares of the class or series of capital stock, such
amount of cash or other property, right, or consideration, as the case may be,
received by OptiMark, Inc. in exchange for the OII Stock to be delivered to
Softbank pursuant to Section 3.5(a) immediately before such event.
(d) Adjustments to Conversion Price for Certain Diluting Issues.
(i) Special Definitions. For purposes of this Section
3.5(d), the following definitions apply:
-4-
"Options" shall mean rights, options, or warrants to subscribe for,
purchase or otherwise acquire OII Stock.
"Additional Shares of OII Common Stock" shall mean all shares of OII Common
Stock issued by OptiMark Innovations after the Closing Date, other than shares
of OII Common Stock issued or issuable:
(1) upon exercise of Options to purchase OII Common
Stock issued by OptiMark Innovations to its employees, directors or
consultants with the approval of the board of directors of OptiMark
Innovations; or
(2) for which the number of shares of OII Common
Stock to be received by Softbank pursuant to Section 3.5(a) has been
adjusted pursuant to Sections 3.5(b) or (c).
"Additional Shares of OII Preferred Stock" shall mean all shares of OII
Preferred Stock issued by OptiMark Innovations after the Closing Date, other
than shares of OII Preferred Stock issued or issuable:
(1) upon exercise of Options to purchase OII
Preferred Stock issued by OptiMark Innovations to its employees, directors
or consultants with the approval of the board of directors of OptiMark
Innovations; or
(2) for which the number of shares of OII
Preferred Stock to be received by Softbank pursuant to Section 3.5(a) has
been adjusted pursuant to Sections 3.5(b) or (c).
"OII Common Stock Conversion Price" shall be equal to US $2,500, initially,
and shall be subject to adjustment as provided in Section 3.5(d)(iii).
"OII Preferred Stock Conversion Price" shall be equal to US $10,000,
initially, and shall be subject to adjustment as provided in Section 3.5(d)(iv).
(ii) No Adjustment of Conversion Price. Any provision herein
to the contrary notwithstanding,
(1) no adjustment in the OII Common Stock
Conversion Price shall be made in respect of the issuance of Additional
Shares of OII Common Stock unless the consideration per share (determined
pursuant to Section 3.5(d)(v) hereof) for an Additional Share of OII Common
Stock issued or deemed to be issued by OptiMark Innovations is less than
the OII Common Stock Conversion Price in effect on the date of, and
immediately prior to, such issue; and
-5-
(2) no adjustment in the OII Preferred Stock
Conversion Price shall be made in respect of the issuance of Additional
Shares of OII Preferred Stock unless the consideration per share
(determined pursuant to Section 3.5(d)(v) hereof) for an Additional Share
of OII Preferred Stock issued or deemed to be issued by OptiMark
Innovations is less than the OII Preferred Stock Conversion Price in effect
on the date of, and immediately prior to, such issue.
(iii) Adjustment of OII Common Stock Conversion Price. In
the event OptiMark Innovations, at any time after the Closing Date but on or
prior to the Maturity Date, shall issue Additional Shares of OII Common Stock
without consideration or for a consideration per share less than the OII Common
Stock Conversion Price in effect on the date of and immediately prior to such
issue, then and in such event, the OII Common Stock Conversion Price then in
effect shall be reduced, concurrently with such issue, to a price (calculated to
the nearest cent) determined by multiplying such OII Common Stock Conversion
Price by a fraction, the numerator of which shall be the sum of the number of
shares of OII Common Stock outstanding immediately prior to such issue plus the
number of shares of OII Common Stock which the aggregate consideration received
by OptiMark Innovations for the total number of Additional Shares of OII Common
Stock so issued would purchase at such OII Common Stock Conversion Price in
effect immediately prior to such issuance, and the denominator of which shall be
the number of shares of OII Common Stock outstanding immediately prior to such
issue plus the number of such Additional Shares of OII Common Stock so issued.
For the purpose of the above calculation, the number of shares of OII Common
Stock outstanding immediately prior to such issue shall be calculated on a fully
diluted basis, as if any outstanding Options to purchase OII Common Stock had
been fully exercised as of such date.
(iv) Adjustment of OII Preferred Stock Conversion Price. In
the event OptiMark Innovations, at any time after the Closing Date but on or
prior to the Maturity Date, shall issue Additional Shares of OII Preferred Stock
without consideration or for a consideration per share less than the OII
Preferred Stock Conversion Price in effect on the date of and immediately prior
to such issue, then and in such event, the OII Preferred Stock Conversion Price
then in effect shall be reduced, concurrently with such issue, to a price
(calculated to the nearest cent) determined by multiplying such OII Preferred
Stock Conversion Price by a fraction, the numerator of which shall be the sum of
the number of shares of OII Preferred Stock outstanding immediately prior to
such issue plus the number of shares of OII Preferred Stock which the aggregate
consideration received by OptiMark Innovations for the total number of
Additional Shares of OII Preferred Stock so issued would purchase at such OII
Preferred Stock Conversion Price in effect immediately prior to such issuance,
and the denominator of which shall be the number of shares of OII Preferred
Stock outstanding immediately prior to such issue plus the number of such
Additional Shares of OII Common Stock so issued. For the purpose of the above
calculation, the number of shares of OII Preferred Stock outstanding immediately
prior to such issue shall be calculated on a fully diluted
-6-
basis, as if any outstanding Options to purchase OII Preferred Stock had been
fully exercised as of such date.
(v) Determination of Consideration. For purposes of this
Section 3.5(d), the consideration received by OptiMark Innovations for the issue
of any Additional Shares of OII Common Stock or any Additional Shares of OII
Preferred Stock shall be computed as follows:
(1) Cash and Property: Such consideration shall:
a. insofar as it consists of cash, be
computed at the aggregate amount of cash received by OptiMark
Innovations excluding amounts paid or payable for accrued interest or
accrued dividends;
b. insofar as it consists of property other
than cash, be computed at the fair value thereof at the time of such
issue, as determined in good faith by the board of directors of
OptiMark Innovations; and
c. in the event Additional Shares of OII
Common Stock are issued together with Additional Shares of OII
Preferred Stock or other assets of the Corporation for consideration
which covers both, be the proportion of such consideration so
received, computed as provided in clauses (a.) and (b.) above, as
determined in good faith by the board of directors of OptiMark
Innovations.
(2) Options and Convertible Securities. The
consideration per share received by OptiMark Innovations for Additional
Shares of OII Common Stock or Additional Shares of OII Preferred Stock
relating to Options shall be determined by dividing:
a. the total amount, if any, received or
receivable by OptiMark Innovations as consideration for the issue of
such Options, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein designed to protect
against dilution) payable to OptiMark Innovations upon the exercise of
such Options, by
b. the maximum number of shares of OII
Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein designed to protect against
the dilution) issuable upon the exercise of such Options.
(vi) Effect of Adjustment of the Conversion Prices. In the
event that either the OII Common Stock Conversion Price or the OII Preferred
Stock Conversion Price is adjusted pursuant to Section 3.5(d)(iii) or Section
3.5(d)(iv),
-7-
respectively, the number of shares of OII Common Stock or OII Preferred Stock
that OptiMark shall be required to cause OptiMark, Inc. deliver to Softbank on
the Maturity Date pursuant to Section 3.5(a) shall be adjusted as follows:
(1) the number of shares of OII Common Stock to
be delivered to Softbank pursuant to Section 3.5(a) shall be equal to US
$30,000 divided by the OII Common Stock Conversion Price in effect on the
Maturity Date, provided, however, in no event shall OptiMark be required to
cause OptiMark, Inc. to deliver to Softbank more shares of OII Common Stock
than are owned by OptiMark, Inc. on the Closing Date (subject to adjustment
for stock splits, reverse splits, stock dividends and similar events); and
(2) the number of shares of OII Preferred Stock to
be delivered to Softbank pursuant to Section 3.5(a) shall be equal to US
$540,000 divided by the OII Preferred Stock Conversion Price in effect on
the Maturity Date, provided, however, in no event shall OptiMark be
required to cause OptiMark, Inc. to deliver to Softbank more shares of OII
Preferred Stock than are owned by OptiMark, Inc. on the Closing Date
(subject to adjustment for stock splits, reverse splits, stock dividends
and similar events).
ARTICLE 4.
OTHER PAYMENTS
Section 4.1 Costs and Fees. Upon demand therefor, OptiMark agrees to
pay to Softbank all Costs and Fees Arising Out Of: the performance of this Loan
Agreement and any other Related Document; the renewal, modification, extension,
forbearance (if any), refinancing, renegotiations or restructuring of this Loan
Agreement or any Related Document; collecting any and all Obligations;
protecting, preserving and realizing upon any Collateral or other security for
such amounts; and/or enforcing this Loan Agreement or any Related Document. The
Costs and Fees due hereunder are part of the Obligations and are secured by the
Liens granted by OptiMark to Softbank pursuant to the Security Agreement and
guaranteed pursuant to the Guarantees.
Section 4.2 Calculations; Default Interest; Compounded Interest.
Except as otherwise expressly set forth in this Loan Agreement, all computations
of interest and fees under this Loan Agreement or any Related Document shall be
made on the basis of a year consisting of 360 days and actual days elapsed. All
amounts that are not paid when due under this Loan Agreement shall bear interest
at the interest rate of fifteen percent (15%) per annum (the "Default Rate"),
compounded every 90 days after the Default Rate becomes applicable.
-8-
ARTICLE 5.
CONDITIONS TO LENDING,
SECURITY
and
OTHER COVENANTS
Section 5.1 Conditions. The obligation of Softbank to make the Loan is
subject to fulfillment by OptiMark of all of the following conditions:
(a) Execution and delivery by OptiMark or its Subsidiaries, as
applicable, of this Loan Agreement, Notes, Security Agreement, UCC's, Guarantees
and all other executed Related Documents.
(b) The representations and warranties contained in Article 6
hereof and in each Related Document shall be correct and accurate in all
material respects on and as of Closing as though made on and as of such date and
no Event of Default and no condition or event which, with the giving of notice
or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing on Closing and Softbank shall have received a certificate in
the form set forth on Exhibit B attached hereto and signed by the Chief
Executive Officer of OptiMark, dated as of the Closing Date, to that effect.
(c) OptiMark shall have complied in all material respects with
all covenants and obligations to be performed or observed by it at or prior to
such time, including but not limited to those set forth in the Loan Agreement.
(d) OptiMark shall have obtained all consents of third parties,
including, without limitation, any Governmental Body, required in connection
with the execution and delivery of this Loan Agreement and the Related Documents
and consummation of the transactions contemplated hereby and thereby.
(e) Softbank shall have received a favorable written opinion of
outside counsel for OptiMark, dated the Closing Date, in substantially the form
of Exhibit C and a favorable written opinion of in-house counsel for OptiMark,
dated the Closing Date, in substantially the form of Exhibit C1.
(f) Softbank shall have received copies of all corporate action
taken by OptiMark and its Subsidiaries to authorize this Loan Agreement, the
Related Documents, the borrowings hereunder and the Notes, certified as of the
Closing Date by the Secretary of OptiMark.
(g) Softbank shall have received (i) acknowledgement copies of
Financing Statements (Form UCC-1) duly filed under the Uniform Commercial Code
of all jurisdictions as may be necessary or, in the opinion of Softbank,
advisable to perfect the Liens created by the Security Agreement and the
Guarantees, (ii) acknowledgement copies of recordings in the U.S. Patent and
Trademark Office of notices in respect of
-9-
patents, patent applications, trademark registrations and trademark applications
of OptiMark and/or the Subsidiaries created by the Security Agreement or the
Guarantees if, in the opinion of Softbank, such filings should be made and (iii)
evidence of the completion of all other recordings and filings and such other
actions necessary or, in the opinion of Softbank, advisable to perfect the Liens
created by the Security Agreement and the Guarantees.
(h) There shall not be pending or threatened any action or
proceeding before any court or administrative agency relating to the
transactions contemplated by this Loan Agreement or the Related Documents which
could reasonably be expected to materially impair the ability of OptiMark to
perform its obligations under this Loan Agreement or under the Related Documents
or which could reasonably be expected to materially impair the ability of
OptiMark to issue the Series F Preferred Stock or materially adversely affect
the rights of the Series F Preferred Stock.
(i) Except as described in OptiMark's Quarterly Report on Form
10-Q dated November 14, 2001 (the "10-Q"), OptiMark's Annual Report on Form 10-K
on file with the SEC as of the Effective Date (the "10-K"), or otherwise
described on Exhibit 5.1(i) of this Loan Agreement, since September 30, 2001,
there has been no event, occurrence, change, development or state of affairs
that had or will have a Material Adverse Effect.
(j) Softbank shall have received such other documents as Softbank
may reasonably request. Section 5.2 Conditions Not Fulfilled. If the above
conditions are not fulfilled or if the Loan or any portion thereof is not made
because of such nonfulfillment of conditions, neither Softbank nor OptiMark
shall be responsible to each other or any other Person for any Loss Arising Out
Of nonfulfillment of the above conditions or a failure to make the Loan.
Section 5.3 Security. As security for the prompt payment and
performance of all Obligations, OptiMark is concurrently granting to Softbank a
Lien in all collateral described in the Security Agreement (all such collateral
collectively, the "Collateral").
ARTICLE 6.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations, Warranties and Covenants of OptiMark. The
warranties, representations, and covenants contained in this Loan Agreement and
in any Related Document shall be deemed to have been relied upon by Softbank and
shall survive the Closing and continue until all Obligations have been paid in
full.
OptiMark hereby represents, warrants, covenants and agrees with Softbank
that:
-10-
Section 6.1.1. Good Standing and Power. OptiMark and its Subsidiaries
are corporations, each duly organized and existing, in good standing, under the
laws of the jurisdiction of its incorporation, and each has the corporate power
to own its property and to carry on its business as now being conducted and is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it therein or in which
the transaction of its business makes such qualification necessary, except for
failures to be in good standing or qualified that would not in the aggregate
have a Material Adverse Effect.
Section 6.1.2. Corporate Authority. OptiMark has full corporate power
and authority to enter into this Loan Agreement, and the Security Agreement, to
grant to Softbank the Liens described therein, to make the borrowings
contemplated hereby, to execute and deliver the Note and to incur the
Obligations provided for herein and therein, all of which have been duly
authorized by all proper and necessary corporate action. Each of the
Subsidiaries has full corporate power and authority to enter into the Guaranty
to which it is a party, to grant to Softbank the Liens described therein and to
incur the Obligations provided for therein. No consent or approval of
stockholders or of any Governmental Body is required as a condition to the
validity or performance by OptiMark of this Loan Agreement or any Related
Document.
Section 6.1.3. Authorizations. All authorizations, consents,
approvals, registrations, exemptions and licenses with or from Governmental
Bodies which are necessary for the borrowings hereunder, the grant of the Liens
on the Collateral, the execution and delivery by OptiMark or the Subsidiaries of
this Loan Agreement, the Security Agreement, the Notes and the Guarantees and
the performance by OptiMark and its Subsidiaries of their respective Obligations
hereunder and thereunder have been effected or obtained and are in full force
and effect.
Section 6.1.4. Binding Agreement. This Loan Agreement and the Related
Documents constitute the valid and legally binding obligations of OptiMark and
its Subsidiaries, as applicable, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and, as to enforcement,
to general equity principles.
Section 6.1.5. Litigation. Except as described in the 10-Q, OptiMark's
Current Reports on Form 8-K, filed with the Securities and Exchange Commission
(the "SEC") on December 26, 2001 and January 31, 2002 (the "8-Ks") or on Exhibit
5.1(i) of this Loan Agreement, there are no proceedings or investigations
pending or, so far as the officers of OptiMark know, threatened before any court
or arbitrator or before or by any Governmental Body which, in any one case or in
the aggregate, if determined adversely to the interests of OptiMark or a
Subsidiary, would have a Material Adverse Effect.
Section 6.1.6. No Conflicts. There is no statute, regulation, rule,
order or judgment, and no provision of any mortgage, indenture, contract or
agreement binding on
-11-
OptiMark or any of its Subsidiaries or affecting their properties which would
prohibit, conflict with or in any way prevent the execution, delivery, or
carrying out of the terms of this Loan Agreement and the Related Documents.
Section 6.1.7. Financial Condition. The unaudited consolidated balance
sheet of OptiMark and its Subsidiaries as of September 30, 2001, together with
its consolidated Statements of Operations and Comprehensive Loss and
Consolidated Statements of Cash Flows set forth in the 10-Q for the fiscal
quarter then ended fairly present, in all material respects in accordance with
GAAP, the financial condition of OptiMark and its subsidiaries and the results
of their operations and cash flows as of the dates and for the periods referred
to. Except as has been described in documents referred to in Section 5.1(i)
hereof or otherwise described in writing to Softbank prior to the execution and
delivery of this Loan Agreement, (i) there are no material Liabilities of
OptiMark or any of its Subsidiaries as of the date of such balance sheet which
are not reflected therein or in the notes thereto, and (ii) except as has been
described on Exhibit 5.1(i) of this Loan Agreement or disclosed in the Draft
Financial Statements, the 10-K, the 8-Ks and OptiMark's Current Reports on Form
8-K filed with the SEC on January 15, 2002 and February 8, 2002, there has been
no event, occurrence, change, development or state of affairs that had or will
have a Material Adverse Effect since September 30, 2001. The Draft Financial
Statements are fair and accurate in all material respects and, to the Company's
knowledge, will not be subject to material audit adjustments.
Section 6.1.8. The Security Agreement. The provisions of the Security
Agreement will be effective to maintain in favor of Softbank a valid, binding
and enforceable, security interest or lien in all right, title and interest of
OptiMark in all material parts of the Collateral, and shall constitute a first
priority, perfected security interest or lien in all right, title and interest
of OptiMark in all material parts of such Collateral.
ARTICLE 7.
FURTHER COVENANTS
Section 7.1 Covenants. Until principal and interest on the Loan is
paid in full, or deemed satisfied pursuant to Section 3.5 hereof, OptiMark
hereby covenants and agrees that unless Softbank otherwise Consents, OptiMark
shall:
Section 7.1.1. Use of Proceeds. Use the Loan proceeds for working
capital purposes, and apply such proceeds only to such purposes and in such
manner as shall be approved with reasonable particularity prior to such
application by OptiMark's Board of Directors.
Section 7.1.2. Financial Statements and Reports. Deliver to Softbank
in form and detail reasonably satisfactory to Softbank the following:
-12-
(a) Monthly Reports. OptiMark shall furnish to Softbank as soon
as practicable, and in any case within fifteen (15) days of the end of each
calendar month (except the last month of OptiMark's fiscal year), monthly
unaudited financial statements, including an unaudited balance sheet, an
unaudited statements of operations and comprehensive loss and an unaudited
statement of cash flows, together with a comparison to OptiMark's operating plan
and budget and statements of the Chief Financial Officer of OptiMark, or person
acting in such capacity, explaining any significant differences in the
statements from OptiMark's operating plan and budget for the month covered and
stating that such statements fairly present, in all material respects in
accordance with GAAP, the consolidated financial position and consolidated
financial results of OptiMark for the month covered; and
(b) Annual Budget. OptiMark shall furnish to Softbank as soon as
practicable and in any event no later than thirty (30) days after the close of
each fiscal year of OptiMark, an annual operating plan and budget, prepared on a
monthly basis, for the next immediate fiscal year. OptiMark shall also furnish
to Softbank, within a reasonable time of its preparation, amendments to the
annual budget, if any.
Section 7.1.3. Notices. To the extent known to OptiMark, promptly give
written notice to Softbank of the occurrence of, and the occurrence of any
material development in, (a) any Event of Default or any event which, upon a
lapse of time or notice or both, would become an Event of Default; (b) any
material Claim or other dispute of any nature whatsoever concerning, or any
change in any Requirement of Law, adversely affecting or relating to, OptiMark,
or (c) any event or circumstance that could reasonably be expected to have a
Material Adverse Effect.
Section 7.1.4. Compliance with Laws. Conduct its operations and cause
those of its Subsidiaries to be conducted, and use the Collateral, only in
compliance with all policies of insurance and all Requirements of Law, except
where any failure could not reasonably be expected to have a Material Adverse
Effect.
Section 7.1.5. Maintenance of Records. Maintain adequate and complete
records and books of account in accordance with GAAP, which books shall reflect
all financial transactions of OptiMark. OptiMark shall also permit any of
Softbank's representatives upon reasonable request and during normal business
hours to visit and inspect any of the properties of OptiMark, to examine all its
books of account, records, reports and other papers and to make copies and
extracts therefrom. Upon reasonable request, Softbank may also conduct a
periodic audit of OptiMark's accounts receivable and inventory at Softbank's
expense. In addition, OptiMark shall also permit any of Softbank's
representatives to discuss its affairs, finances and accounts with its officers,
employees and independent public accountants (and by this provision OptiMark
authorizes said accountants to discuss the finances and affairs of OptiMark with
Softbank or its accountants or other agents) all at such reasonable times and as
often as may be reasonably requested.
-13-
Section 7.1.6. Indemnification. Indemnify, defend and hold harmless
Softbank from and against any and all Claims (whether known or unknown and
whether now or hereafter existing) Arising Out Of (a) any inaccuracy when made
of any representation or warranty contained in this Loan Agreement or any
Related Document or any breach by OptiMark of any covenant or agreement in this
Loan Agreement or any Related Document; and (b) the performance, enforcement
(including affirmative suits and the defense of any Claim or liability
whatsoever) and collection of this Loan Agreement or any Related Document.
Notwithstanding the foregoing, OptiMark shall not be required to indemnify,
defend or hold harmless Softbank for any Claims or Losses directly and actually
caused by the gross negligence or willful misconduct of Softbank. Nothing in
this section is intended to limit or shall limit any obligation of OptiMark to
Softbank, including but not limited to the repayment obligations of OptiMark
contained in Article 3.
Section 7.1.7. Preservation of Existence and Property. Preserve and
maintain its existence in the jurisdiction of its formation and qualify, and
cause its Subsidiaries to qualify, and remain qualified, and cause each of its
Subsidiaries to remain qualified, as a foreign corporation in each jurisdiction
where the failure to so qualify could have a Material Adverse Effect. OptiMark
shall take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable to the normal conduct of its business, and
shall comply and cause each of its Subsidiaries to comply with all Contractual
Obligations and Requirements of Law except to the extent that the failure to
comply therewith would not, in the aggregate, have a Material Adverse Effect.
Section 7.1.8. Incurrence of Indebtedness. OptiMark shall not create,
incur, assume or suffer to exist any Indebtedness, or permit any of its
subsidiaries so to do, except (i) Indebtedness to Softbank, (ii) Indebtedness of
OptiMark (or its successor) to others that is subordinated by a written
agreement satisfactory in form and substance to Softbank to all Indebtedness of
OptiMark (or its successor) to Softbank and (iii) Indebtedness of OptiMark or
the Subsidiaries outstanding on the date hereof.
ARTICLE 8.
EVENTS OF DEFAULT
Section 8.1 Events of Default; Acceleration and Remedies. Without
regard to previous knowledge or any forbearance by Softbank, the following shall
be defaults under this Loan Agreement and the terms "Event of Default",
"default" or "Default" shall mean any one or more of the following events:
(a) Payment Default. OptiMark shall (i) fail to pay or cause to
be paid when due any portion of any Obligation (other than Costs and Fees) or
fail to deliver or cause to be delivered the OII Stock pursuant to Section 3.5
hereof, or (ii) fail to pay or cause to be paid Costs and Fees for ten (10) days
after the same shall be due; or
(b) Security Exposure. Any Lien of Softbank in any material
portion of the Collateral shall, for any reason, cease to exist as valid and
binding Liens; or
-14-
any guarantor of any part of the Obligations shall attempt to withdraw the
Guaranty, state that such Guaranty has been discharged or take any action or
permit any action to be taken which would impair such guarantor's ability to
perform its obligations under such Guaranty; or
(c) Breach of Other Covenants of Failure of any Condition.
OptiMark shall fail to perform, keep or observe any provision (other than a
breach of the preceding Sections 7.1.1 or 7.1.8) not involving a payment
obligation of this Loan Agreement, contained in this Loan Agreement and any such
failure shall remain unremedied for thirty (30) days after written notification
thereof shall have been given to OptiMark by Softbank; or
(d) Breach of Representation or Warranty. Any representation or
warranty made by OptiMark under or in connection with this Loan Agreement or any
Related Document shall prove to have been untrue or misleading when made or
becomes untrue in any material respect; or
(e) Breach of Sections 7.1.1 or 7.1.8 Any failure to comply with
the preceding Section 7.1.1 or 7.1.8; or
(f) Cross Defaults. Any obligation (other than its obligation
hereunder) of OptiMark or any of its Subsidiaries for the payment of
Indebtedness in an aggregate amount of at least $250,000 is not paid when due or
becomes or is declared to be due and payable prior to the expressed maturity
thereof, or there shall have occurred an event which, with the giving of notice
or lapse of time, or both, would cause any such obligation to become, or allow
any such obligation to be declared to be, due and payable.
(g) Bankruptcy etc. OptiMark or any of its Subsidiaries shall
dissolve or liquidate or take an equivalent action or an involuntary petition
shall have been filed under any federal or state bankruptcy, reorganization,
insolvency, moratorium or similar statute against OptiMark or any of its
Subsidiaries, or a custodian, receiver, trustee, assignee for the benefit of
creditors or other similar official shall be appointed to take possession,
custody, or control of the property of OptiMark or any of its Subsidiaries,
unless such petition or appointment is set aside or withdrawn or ceases to be in
effect within sixty (60) days from the date of said filing or appointment; or
OptiMark or its Subsidiaries shall admit in writing its inability to pay any of
its debts as they mature, or shall file any petition or action for relief
relating to any bankruptcy, reorganization, insolvency or moratorium law, or any
other similar law or laws for the relief of, or relating to, debtors; or
OptiMark or any of its Subsidiaries shall make a general assignment for the
benefit of creditors or enter into an agreement of composition with its
creditors; or
(h) Change in Authority. Any material permit, license or other
authority of any nature from any Governmental Body now or hereafter required (i)
for the performance of OptiMark under this Loan Agreement or any other Related
Documents shall not be obtained or shall be revoked, withdrawn or withheld or
otherwise failed to
-15-
remain in full force and effect, or (ii) in the conduct of OptiMark's business
shall not be obtained or shall be revoked, withdrawn or withheld or otherwise
failed to remain in full force and effect, in each case (i) and (ii), for 30
days after notice of such by Softbank; or
(i) Judgments. Either (i) a judgment or order for the payment of
money in excess of Two Hundred and Fifty Thousand Dollars ($250,000) or its
equivalent in another currency, or (ii) a temporary restraining order,
preliminary or final injunction, order of specific performance or similar
judgment, order or decree requiring OptiMark or either of the Subsidiaries to
take, or prohibiting them from taking, any action, if such order, injunction,
judgment or decree would be reasonably likely to have a Material Adverse Effect,
is entered against OptiMark, either of the Subsidiaries or any of their
respective assets, and such judgment, order, injunction or decree is not
discharged or appealed and stayed within sixty (60) days of entry or imposition
thereof.
Upon any Event of Default, Softbank may terminate any of its obligations
hereunder or under any Related Document. With respect to any Event of Default,
(i) in any such event described in Section 8.1(g), all Obligations shall
automatically be due and payable without notice or demand or any action
whatsoever by Softbank; and (ii) in all other Events of Default, Softbank may,
upon notice (of any nature allowed by law) to OptiMark, declare all Obligations
(or any part thereof), to be forthwith due and payable without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by OptiMark.
In addition, upon any Event of Default, Softbank may without prior notice
or demand, exercise any and all rights available to it under this Loan Agreement
or any Related Document in equity or by applicable law. No action taken by
Softbank shall be deemed to be an election of remedies by Softbank, it being the
intent of the parties that Softbank shall be entitled repeatedly to exercise all
remedies separately or concurrently and in any manner allowed by law.
ARTICLE 9.
MISCELLANEOUS
Section 9.1 Notices, etc. All notices, requests, demands or other
communications which are required or may be given pursuant to the terms of this
Loan Agreement shall be in writing and shall be deemed to have been duly given:
(i) on the date of delivery if personally delivered by hand, (ii) upon the third
day after such notice is (a) deposited in the United States mail, if mailed by
registered or certified mail, postage prepaid, return receipt requested, or (b)
sent by a nationally recognized overnight express courier, or (iii) by facsimile
upon written confirmation (other than the automatic confirmation that is
received from the recipient's facsimile machine) of receipt by the recipient of
such notice:
-16-
If to Softbank: SOFTBANK Capital Partners LP
SOFTBANK Capital Advisors Fund LP
SOFTBANK Capital LP
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to OptiMark: OptiMark Holdings, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: General Counsel or Secretary
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxxx & Xxxxxxxx
Four Stamford Plaza
000 Xxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
Such addresses may be changed, from time to time, by means of a notice given in
the manner provided in this Section 9.1.
Section 9.2 No Waiver; Remedies. No failure on the part of Softbank to
exercise, and no delay in exercising, any right under this Loan Agreement or any
Related Document shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under any of the aforesaid preclude any other or
further exercise thereof or the exercise of any other right from time to time
and as often as Softbank may deem expedient and without notice (except any
notice which is specifically required by written agreement). The remedies
provided in this Loan Agreement and the Related Documents are cumulative and not
exclusive of any remedies provided by law or in equity, now or hereafter
existing.
-17-
Section 9.3 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP except as otherwise
stated herein.
Section 9.4 Assignment. This Loan Agreement shall not be assignable by
OptiMark without Softbank's Consent. Softbank may sell, transfer, assign,
negotiate, pledge, or hypothecate all or any portion of this Loan Agreement or
the Security Agreement (except that if Softbank assigns all of its rights under
this Loan Agreement it shall also assign all of its rights under the Security
Agreement) to any Person.
Section 9.5 Governing Law; Venue. This Loan Agreement and each Related
Document shall be deemed to have been made in New York and the validity of such
documents, their construction, interpretation and enforcement, shall be
determined under, governed by and construed in accordance with the laws of New
York. In any court proceeding, OptiMark agrees to submit to the jurisdiction of
the state or federal court selected by Softbank, and venue of any action
concerning this Loan Agreement or any Related Document shall be in the county of
New York in the State of New York. OptiMark hereby irrevocably waives to the
fullest extent permitted by law any objection which it may now or hereafter have
to the laying of such venue and any claim that any such forum is an inconvenient
forum. Nothing in this Section shall impair the right of Softbank to bring any
action or proceeding against OptiMark or its property in the courts of any other
county or jurisdiction.
Section 9.6 Entire Loan Documents; Headings; Amendments; Severability;
Time; Fair Construction; Counterparts. This Loan Agreement and the Related
Documents constitute the entire agreement between the parties regarding the
terms of this Loan and supersede any and all other agreements relating to the
subject matter of this Loan Agreement and the Related Documents, oral or
written, among any or all of the parties. The headings of the various sections
and subsections of this Loan Agreement and of any Related Document are for
convenience of reference only and do not constitute a part of the respective
document and shall not affect the meaning or construction of any provision.
No amendment, waiver or forbearance of any provision of this Loan Agreement
or of any Related Document shall be effective unless the same shall be in a
writing signed by Softbank. Any such waiver or forbearance shall only be
effective for the specific purpose and in the specific instance given and not
for other or subsequent purposes or instances and no forbearance or waiver shall
affect Softbank's right to refuse further forbearances or waivers. If any
portion of this Loan Agreement or any Related Document is held to be invalid or
unenforceable, the remaining portions and provisions and conditions thereof
shall remain in full force and effect.
Time is of the essence under this Loan Agreement and each Related Document.
Counsel for each party has participated in the review and revision of this Loan
Agreement and each party agrees that the rules of construction requiring any
ambiguities to be
-18-
resolved against the drafting party shall not be employed in the interpretation
of this Loan Agreement or any Related Document. The signature pages of this Loan
Agreement and of any Related Document may be executed in counterparts.
Section 9.7 Confidentiality. Except as may be required to enforce the
rights and duties established hereunder (including establishing and maintaining
Softbank's perfected Lien in the Collateral), the parties hereto shall preserve
in a confidential manner all information received from the other pursuant to
this Loan Agreement and the Related Documents, and shall not disclose such
information except to those Persons with which a confidential relationship is
maintained (including regulators, legal counsel, accountants, agents or an
assignee or a prospective assignee of any of Softbank's rights hereunder), or
where required by law.
Section 9.8 No Waiver. Notwithstanding anything contained in this Loan
Agreement, the execution and delivery of this Loan Agreement by Softbank shall
not constitute a waiver by Softbank of any breach by OptiMark of a
representation, warranty, covenant or condition set forth in the Existing Loan
Agreement.
[Remainder of page intentionally left blank]
-19-
Executed and dated as of April 11, 2002.
OPTIMARK HOLDINGS, INC., SOFTBANK CAPITAL PARTNERS LP,
a Delaware corporation SOFTBANK CAPITAL ADVISORS FUND LP,
SOFTBANK CAPITAL LP
By /s/ Xxxxxx X. Xxxxxxx
---------------------
Its CEO By: SOFTBANK CAPITAL PARTNERS LLC
----- Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Name: Xxxxxx X. Xxxxxx
Title: Admin. Member
Acknowledged and Agreed, solely
with respect to Section 3.5
OPTIMARK, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Its: CEO
------------------------
DEFINITIONS ADDENDUM
This Definitions Addendum is an attachment to and part of that certain LOAN
AGREEMENT ("Loan Agreement") dated as of March 21, 2002 between OptiMark
Holdings, Inc. and Softbank Capital Partners LP, Softbank Capital Advisors Fund
LP, and Softbank Capital LP. Except as otherwise stated in the Loan Agreement,
the following terms shall have the following meanings:
"Advance" means the advance of Loan proceeds on the Closing Date.
"Arising Out Of" means directly or indirectly arising out of, relating in
any manner to, arising in connection with, growing out of or stemming from, or
in any manner caused by or resulting from, whether by action or inaction and
whether such action or inaction be culpable and whether such action be in
contract, tort or otherwise.
"Business Day" means any day other than (i) a Saturday, Sunday or legal
holiday, or (ii) a day on which commercial banks in New York City are authorized
or required by law or executive order to close.
"Capital Lease Obligations" means, with respect to any Person, the
obligation of such Person to pay rent or other amounts under any lease with
respect to any property (whether real, personal or mixed) acquired or leased by
such Person that is required to be accounted for under GAAP as a liability on a
consolidated balance sheet of such Person.
"Claims" means any and all administrative, legal or other actions, claims,
suits, appeals, settlements, consent decrees, or investigations.
"Closing" or "Closing Date" shall mean the last to occur of: (a) the date
the Loan Agreement and the Related Documents are executed and delivered to
Softbank and (b) the date all conditions precedent contained in Section 5.1 of
the Loan Agreement are satisfied.
"Collateral" has the meaning set forth in Section 5.3 of the Loan
Agreement.
"Consent" means a written document containing the approval of and executed
by the Person to be bound by the document.
"Contractual Obligation" means, with respect to any Person, each provision
of this Loan Agreement, each Related Document, and all provisions of all other
agreements, contracts, instrument and undertakings to which such Person is a
party or by which it or any of its property is bound.
"Costs and Fees" means all reasonable out-of-pocket or incurred costs
(including without limitation those incurred by the following persons) and
expenses of every nature, including, without limitation, reasonable attorneys'
fees (whether of independent or in-
-i-
house counsel whether incurred before trial, at trial, or appeal and in any
bankruptcy or arbitration proceeding), reasonable fees of paralegals, clerks,
accountants and other consultants or experts, and of collection and other
agents, and all other reasonable fees, costs and expenses of every nature
whatsoever now or hereafter incurred from time to time, including, without
limitation, all reasonable expenses related to the Collateral (including without
limitation, all appraisal(s), filing and recording fees).
"Default" or "Event of Default" has the meaning set forth in Section 8.1 of
the Loan Agreement.
"Default Rate" has the meaning set forth in Section 4.2 of the Loan
Agreement.
"Draft Financial Statements" means the unaudited (i) consolidated balance
sheets of the Company for the periods ended December 31, 2001 and December 31,
2000, (ii) consolidated statements of operations and comprehensive loss for the
periods ended December 31, 2001, December 31, 2000 and December 31, 1999, (iii)
consolidated statements of cash flows for the periods ended December 31, 2001,
December 31, 2000 and December 31, 1999, and (iv) the consolidated statement of
stockholders' equity for the period ended December 31, 2001, all as provided to
Softbank on or before the Effective Date.
"Effective Date" has the meaning set forth in the preamble of the Loan
Agreement.
"Existing Loan Agreement" means the Loan Agreement, dated March 21, 2002 by
and among OptiMark, Softbank and, solely with respect to Section 3.5 thereof,
OptiMark, Inc. "8-Ks" has the meaning set forth in section 6.1.5. of the Loan
Agreement.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles as in effect from time to time in the United
States.
"Governmental Body" means any foreign or domestic government; court;
federal, state, county, municipal or other department, commission, board,
bureau, agency, administrator, public authority or instrumentality; arbitrator;
mediator; or other governmental regulator or authority.
"Guarantees" means the certain Amended and Restated Guarantees, dated the
Closing Date, between Softbank and each of the Subsidiaries, other than OptiMark
Innovations, in the forms attached as Exhibit D hereto.
"Indebtedness" means, with respect to any Person, (i) all obligations of
such Person for borrowed money or for the deferred purchase price of property or
services (including all obligations, contingent or otherwise, of such Person in
connection with
-ii-
letters of credit, bankers' acceptances, Interest Rate Protection Agreement or
other similar instruments, including currency swaps) other than indebtedness to
trade creditors and service providers incurred in the ordinary course of
business and payable on usual and customary terms, (ii) all obligations or such
Person evidenced by bonds, notes, debentures or other similar instruments, (iii)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the remedies available to the seller or lender under such agreement are
limited to repossession or sale of such property), (iv) all Capital Lease
Obligations of such Person, (v) all obligations of the types described in
clauses (i), (ii), (iii) or (iv) above secured by (or for which the obligee has
an existing right, contingent or otherwise, to be secured by) any Lien upon or
in any property (including accounts, contract rights and other intangibles)
owned by such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness, (vi) all preferred stock issued by such
Person which is redeemable, prior to full satisfaction of OptiMark's obligations
under this Loan Agreement and the Notes, other than at the option of such
Person, (vii) all Indebtedness of others subject to a Third Party Guaranty by
such Person and (viii) all Indebtedness of any partnership of which such Person
is a general partner.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or similar hedging arrangement used by a
Person to fix or cap a floating rate of interest on Indebtedness to a negotiated
maximum rate or amount.
"Liability" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
"Lien" or "Liens" means, with respect to any Person, any security interest,
pledge, mortgage, charge, option, assignment, hypothecation, encumbrance,
attachment, garnishment, sequestration, forfeiture, execution or other voluntary
or involuntary lien upon or affecting the revenues of such Person or any real or
personal property in which such Person has or hereafter acquires any interest,
except (i) Liens for Taxes which are not delinquent or which remain payable
without penalty or the validity or amount of which is being contested in good
faith by appropriate proceedings and reserves Consented to by Softbank; (ii)
Liens imposed by law (such as mechanics' liens) incurred in good faith in the
ordinary course of business which are not delinquent or which remain payable
without penalty or the validity or amount of which is being contested in good
faith by appropriate proceedings and reserves Consented to by Softbank; and
(iii) deposits or pledges under workmen's compensation, unemployment insurance,
social security, bids, tenders, contracts (except for repayment of borrowed
money), or leases, or to secure statutory obligations or surety or appeal bonds
or to secure indemnity, performance or other similar bonds given in the ordinary
course of business.
-iii-
"Loan" or "Loans" means the loan from Softbank to OptiMark in the original
principal amount of $570,000 made pursuant to the Loan Agreement and as the Loan
may be extended, modified or renewed from time to time.
"Loan Agreement" means this Loan Agreement, as the same may be amended,
extended or renewed from time to time.
"Loan Documents" means the Related Documents.
"Loss" or "Losses" means any and all Costs and Fees, losses, liabilities,
deficiencies, obligations, damages and other expenses of every nature, including
without limitation interest and penalties.
"Material Adverse Effect" means an adverse effect upon the business,
financial condition, results of operations, property, assets or prospects of
OptiMark or the Subsidiaries, or upon the validity or enforceability of the Loan
Agreement or any of the other Related Documents, or upon the collectibility of
the Loan, or upon the Contractual Obligations or ownership of OptiMark of the
Collateral or Softbank's Lien thereon, or upon the ability of OptiMark to
perform its obligations hereunder or under any Related Document, or upon the
rights of Softbank hereunder or under any Related Document, which adverse effect
would be viewed as material by a reasonably prudent lender.
"Maturity Date" has the meaning given that term in Section 3.1 of the Loan
Agreement.
"Notes" means the promissory notes in substantially the form attached as
Exhibit A and any other promissory note now or hereafter evidencing an Advance,
all as extended, renewed or amended from time to time.
"Obligations" means all obligations for principal or interest on the Notes,
all Costs and Fees, all indemnification obligations and all other amounts of
every nature whatsoever due or to become due Softbank under this Loan Agreement
or under any Related Document.
"OII Common Stock" means the Common Stock, par value $.01 per share, of
OptiMark Innovations.
"OII Preferred Stock" means the Non-Qualified Preferred Stock, par value
$0.01 per share, of OptiMark Innovations.
"OII Stock" has the meaning set forth in Section 3.5(c) of the Loan
Agreement.
"OptiMark" means OptiMark Holdings, Inc., a Delaware corporation.
"OptiMark, Inc." means OptiMark, Inc., a Delaware corporation.
-iv-
"OptiMark Innovations" means OptiMark Innovations, Inc., a Delaware
corporation.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or any other entity or organization, including a
state, government or political subdivision or an agency or instrumentality
thereof.
"Permitted Liens" means each of the Liens described on Schedule 5.1(a)
hereto, and any extensions, renewals or modifications of such liens provided
that the Indebtedness secured by such Liens (if to other than Softbank) is not
increased in connection with any such renewals, extensions or modifications of
such Liens.
"Principal Amount" has the meaning set forth in Section 2.1 of the Loan
Agreement.
"Related Documents" means the Loan Agreement, Notes, Security Agreement,
the Guarantees and UCC's and all other certificates, documents or agreements now
or hereafter Arising Out Of or executed in connection with or pursuant to any of
the foregoing.
"Requirement of Law" means, with respect to any Person, the now or
hereafter existing articles or certificate of incorporation and bylaws, the
partnership or limited liability company agreement or other organizational or
governing documents of such Person, and any law, treaty, rule, order, judgment,
decree, injunction, writ, or regulation, or a final and binding determination of
an arbitrator, mediator, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"SEC" has the meaning set forth in Section 6.1.5 of the Loan Agreement.
"Security Agreement" means that certain Amended and Restated Pledge and
Security Agreement, dated the Closing Date, between the parties in the form
attached as Exhibit E.
"Series F Preferred Stock" means the Series F Preferred Stock, par value
$.01 per share, of OptiMark.
"Softbank" has the meaning set forth in the first paragraph of this Loan
Agreement, and any of its successors or assigns.
"Subsidiaries" means OptiMark, Inc., OptiMark U.S. Equities, Inc., a
Delaware corporation and OptiMark Innovations.
-v-
"Taxes" means for any Person any federal or state tax, assessment, duty,
levy, withholding liability, impost and other charges of every nature whatsoever
imposed by any Governmental Body on such Person or on any of its property or
because of any, revenue, income, sales, use, product, employee or franchise, and
any interest or penalty with respect to any of the foregoing.
"10-K" has the meaning set forth in Section 5.1(i) of the Loan Agreement.
"10-Q" has the meaning set forth in Section 5.1(i) of the Loan Agreement.
"Third Party Guaranty" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such Person, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness, (ii) to purchase property, securities or services for the purpose
of assuring the holder of such Indebtedness of the payment of such Indebtedness
of (iii) to maintain working capital, equity capital or the financial condition
or liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness.
"UCC's" means the Uniform Commercial Code financing statements executed and
filed at the closing of the loans by Softbank to OptiMark pursuant to the Loan
Agreements.
-vi-
