EXHIBIT 10.12
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$250,000,000
GUARANTEED CREDIT AGREEMENT
Dated as of March 27, 1996
As Amended and Restated as of February 26, 1998
Among
SOFTBANK HOLDINGS INC.,
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF,
THE BANK OF NEW YORK, as Agent
and
THE GUARANTORS
Arranged by
BNY Capital Markets, Inc.
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TABLE OF CONTENTS
Page
ARTICLE 1
CREDIT FACILITY
Section 1.01 Commitment to Lend............................................1
(a) RC Loans................................................1
(b) Swing Loans.............................................1
Section 1.02 Manner of Borrowing...........................................2
(a) RC Loans................................................2
(b) Swing Loans.............................................3
Section 1.03 Interest......................................................3
(a) Rates...................................................3
(b) Payment.................................................4
(c) Conversion and Continuation.............................4
Section 1.04 Repayment.....................................................5
(a) RC Loans................................................5
(b) Swing Loans.............................................5
Section 1.05 Prepayments...................................................6
(a) Optional Prepayments....................................6
(b) Asset Disposition Mandatory Prepayments.................6
(c) Default Mandatory Prepayments and Fundings..............7
(d) Capital Securities Transfer Mandatory Prepayment........8
(e) Application to Types of Loans...........................8
Section 1.06 Limitation on Types of Loans.................................8
Section 1.07 Reduction of Commitments......................................8
Section 1.08 Commitment Fees...............................................9
Section 1.09 Computation of Interest and Fees..............................9
Section 1.10 Evidence of Indebtedness......................................9
Section 1.11 Payments by the Borrower......................................9
(a) Time, Place and Manner.................................9
(b) No Reductions..........................................10
(c) Extension of Payment Dates.............................10
Section 1.12 Distribution of Payments by the Agent........................10
Section 1.13 Taxes........................................................11
(a) Taxes Payable by the Borrower.........................11
(b) Taxes Payable by the Agent or any Bank.................11
(c) Limitations............................................11
Section 1.14 Pro Rata Treatment...........................................12
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ARTICLE 2
CONDITIONS TO RESTATED AGREEMENT DATE AND LOANS
Section 2.01 Conditions to Effectiveness of Agreement.....................12
Section 2.02 Conditions to Each Loan......................................15
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Power; Qualification...........................16
Section 3.02 Subsidiaries.................................................16
Section 3.03 Authorization; Enforceability; Required Consents;
Absence of Conflicts.........................................16
Section 3.04 Existing Indebtedness and Investments........................17
Section 3.05 Taxes........................................................17
Section 3.06 Litigation...................................................18
Section 3.07 Burdensome Provisions........................................18
Section 3.08 No Adverse Change or Event...................................18
Section 3.09 Additional Adverse Facts.....................................18
Section 3.10 Guarantors and Subordinators.................................18
ARTICLE 4
CERTAIN COVENANTS
Section 4.01 Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of
Taxes and Claims, Preservation of Enforceability.............19
Section 4.02 Insurance....................................................19
Section 4.03 Use of Proceeds..............................................20
Section 4.04 Additional Wholly Owned Subsidiaries.........................20
Section 4.05 Indebtedness.................................................20
Section 4.06 Guaranties...................................................20
Section 4.07 Liens........................................................21
Section 4.08 Restricted Payments..........................................21
Section 4.09 Merger or Consolidation......................................21
Section 4.10 Disposition of Assets........................................21
Section 4.11 Investments..................................................22
Section 4.12 Benefit Plans................................................22
Section 4.13 Transactions with Affiliates.................................22
Section 4.14 Issuance or Disposition of Capital Securities................23
Section 4.15 Subordinated Indebtedness; InterCompany Indebtedness.........23
Section 4.16 ▇▇▇▇▇▇ and Swaps.............................................24
Section 4.17 Limitation on Restrictive Covenants..........................24
Section 4.18 Ratio of Indebtedness to Borrower Group EBITDA..............24
Section 4.19 Dissolution of Forums L.P....................................24
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ARTICLE 5
INFORMATION
Section 5.01 Information to Be Furnished..................................25
(a) Quarterly Financial Statements.........................25
(b) Year-End Financial Statements; Accountants'
Certificate............................................25
(c) Officer's Certificate as to Financial Statements and
Defaults...............................................25
(d) Requested Information..................................26
(e) Notice of Defaults, Material Adverse
Changes and Other Matters..............................26
Section 5.02 Accuracy of Financial Statements and Information.............27
(a) Financial Statements...................................27
(b) Other Information......................................27
Section 5.03 Additional Covenants Relating to Disclosure..................27
(a) Accounting Methods and Financial Records...............27
(b) Visits, Inspections and Discussions....................28
Section 5.04 Authorization of Third Parties to Deliver
Information and Discuss Affairs..............................28
ARTICLE 6
DEFAULT
Section 6.01 Events of Default............................................28
Section 6.02 Remedies upon Event of Default...............................32
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 Mandatory Suspension and Conversion of
Eurodollar Rate Loans........................................32
Section 7.02 Regulatory Changes...........................................33
Section 7.03 Capital Requirements.........................................34
Section 7.04 Funding Losses...............................................34
Section 7.05 Certain Determinations.......................................34
Section 7.06 Change of Lending Office.....................................34
ARTICLE 8
THE AGENT
Section 8.01 Appointment and Powers.......................................35
Section 8.02 Limitation on Agent's Liability..............................35
Section 8.03 Defaults.....................................................36
Section 8.04 Rights as a Bank.............................................36
Section 8.05 Indemnification..............................................36
Section 8.06 Non-Reliance on Agent and Other Banks........................37
Section 8.07 Execution and Amendment of Loan Documents on
Behalf of the Banks..........................................37
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Section 8.08 Resignation of the Agent.....................................37
ARTICLE 9
GUARANTEES
Section 9.01 Guaranty of Payment..........................................37
Section 9.02 Limitation on Guaranty.......................................38
Section 9.03 Continuance and Acceleration of Guaranteed
Obligations upon Certain Events..............................38
Section 9.04 Recovered Payments...........................................39
Section 9.05 Evidence of Guaranteed Obligations...........................39
Section 9.06 Binding Nature of Certain Adjudications......................39
Section 9.07 Nature of Guarantor's Obligations............................39
Section 9.08 No Release of Guarantor......................................39
Section 9.09 Certain Waivers..............................................40
Section 9.10 Additional Guarantors........................................40
ARTICLE 10
MISCELLANEOUS
Section 10.01 Notices and Deliveries.......................................40
(a) Manner of Delivery....................................40
(b) Addresses..............................................40
(c) Effectiveness..........................................42
(d) Reasonable Notice......................................43
Section 10.02 Expenses; Indemnification....................................43
Section 10.03 Amounts Payable Due upon Request for Payment.................44
Section 10.04 Remedies of the Essence......................................44
Section 10.05 Rights Cumulative............................................44
Section 10.06 Disclosures..................................................44
Section 10.07 Amendments; Waivers..........................................45
Section 10.08 Set-Off; Suspension of Payment and Performance...............45
Section 10.09 Sharing of Recoveries........................................45
Section 10.10 Assignments and Participations...............................46
(a) Assignments...........................................46
(b) Participation..........................................47
Section 10.11 Governing Law................................................48
Section 10.12 Judicial Proceedings; Waiver of Jury Trial...................48
Section 10.13 LIMITATION OF LIABILITY......................................48
Section 10.14 Reference Banks..............................................48
Section 10.15 Severability of Provisions...................................49
Section 10.16 Counterparts.................................................49
Section 10.17 Survival of Obligations......................................49
Section 10.18 Entire Agreement.............................................49
Section 10.19 Successors and Assigns.......................................49
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ARTICLE 11
INTERPRETATION
Section 11.01 Defined Terms................................................49
Section 11.02 Other Interpretive Provisions................................67
Section 11.03 Accounting Matters...........................................69
Section 11.04 Representations and Warranties...............................69
Section 11.05 Captions.....................................................69
Section 11.06 Interpretation of Related Documents..........................69
ANNEX A BANKS, LENDING OFFICES AND NOTICE ADDRESSES
Schedule 1.02(a) NOTICE OF BORROWING
Schedule 1.03(c) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05 NOTICE OF PREPAYMENT
Schedule 2.01(a)(i) CERTIFICATE AS TO RESOLUTIONS, ETC.
Annex A RESOLUTIONS OF BOARD OF DIRECTORS
Annex A-1 RESOLUTIONS OF SHAREHOLDERS
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND GOVERNMENTAL APPROVALS
Schedule 3.04 SCHEDULE OF PUBLIC DEBT OF SOFTBANK CORP.
Schedule 3.06 SCHEDULE OF MATERIAL LITIGATION
Schedule 3.09 SCHEDULE OF ADDITIONAL MATERIAL ADVERSE FACTS
Schedule 4.05 SCHEDULE OF EXISTING BORROWER/GUARANTOR/
WHOLLY OWNED SUBSIDIARY INDEBTEDNESS
Schedule 4.06 SCHEDULE OF EXISTING GUARANTIES
Schedule 4.07 SCHEDULE OF EXISTING LIENS
Schedule 4.11 SCHEDULE OF EXISTING INVESTMENT
Schedule 4.12 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 5.01(b) CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL STATEMENTS
Schedule 9.01 SCHEDULE OF GUARANTORS
Schedule 9.10 FORM OF GUARANTOR SUPPLEMENT
Schedule 10.10(a) NOTICE OF ASSIGNMENT
EXHIBIT A-I RC NOTE
EXHIBIT A-II SWING LOAN NOTE
EXHIBIT B SUBORDINATION AGREEMENT FORM
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GUARANTEED CREDIT AGREEMENT
Dated as of March 27, 1996
As Amended and Restated as of February 26, 1998
SOFTBANK HOLDINGS INC., a Delaware corporation, each of the Guarantors and
THE BANK OF NEW YORK, agree that the Guaranteed Credit Agreement among SOFTBANK
Holdings Inc., The Bank of New York and the Guarantors dated as of March 27,
1996, as amended and restated as of October 30, 1997, shall be further amended
and restated effective, subject to the conditions to effectiveness set forth in
Section 2.01, as of the Restated Agreement Date, to read in its entirety as
follows (with certain terms used herein being defined in Article 11):
ARTICLE 1
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CREDIT FACILITY
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Section 1.01 Commitment to Lend.
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(a) RC Loans.
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Upon the terms and subject to the conditions of this Agreement, each
Bank agrees to make, from time to time during the period from the Restated
Agreement Date through the Termination Date, one or more RC Loans to the
Borrower in an aggregate unpaid principal amount not exceeding at any time such
Bank's Commitment at such time; provided that no RC Loan shall be made if, after
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giving effect to the making of such Loan and the simultaneous application of the
proceeds thereof, (i) the Exposure of such Bank would exceed the Commitment of
such Bank or (ii) the aggregate amount of the Exposures of all of the Banks
would exceed the aggregate amount of the Commitments. The aggregate amount of
the Commitments on the Restated Agreement Date is $250,000,000. Subject to
Section 1.06 and the other terms and conditions of this Agreement, the RC Loans
may, at the option of the Borrower, be made as, and from time to time continued
as or converted into, Base Rate or Eurodollar Rate Loans of any permitted Type,
or any combination thereof.
(b) Swing Loans.
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Upon the terms and subject to the conditions of this Agreement, the
Swing Line Bank shall, for its own account, make one or more Swing Loans to the
Borrower; provided that no Swing Loan shall be made if, after giving effect to
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the making of such Loan and the simultaneous application of the proceeds thereof
(i) the aggregate principal amount of outstanding Swing Loans would exceed the
Swing Line Sublimit or (ii) the aggregate amount of the Exposures of all of the
Banks would exceed the aggregate amount of the Commitments. Swing Loans may
only be made and continued as Base Rate Loans or Agreed Rate Loans. The Swing
Line Sublimit is $25,000,000.
Section 1.02 Manner of Borrowing.
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(a) RC Loans.
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With respect to RC Loans:
(i) The Borrower shall give the Agent notice (which shall be irrevocable)
no later than, in the case of a Base Rate Loan, 10:00 a.m. on the requested date
for the making of such Loan and, in the case of a Eurodollar Rate Loan, 11:00
a.m. on the third Eurodollar
Business Day before the requested date for the making of such Loan. Each such
notice shall be in the form of Schedule 1.02(a) and shall specify (A) the
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requested date for the making of the requested Loan, which shall be, in the case
of a Base Rate Loan, a Business Day and, in the case of a Eurodollar Rate Loan,
a Eurodollar Business Day, (B) the Type or Types of Loans requested and (C) the
amount of each such Type of Loan, the aggregate of which amounts for all Types
of Loans requested shall be not less than (1) in the case of Eurodollar Rate
Loans $5,000,000 or any integral multiple of $5,000,000 in excess thereof and
(2) in the case of Base Rate Loans the lesser of $1,000,000 or any integral
multiple of $1,000,000 in excess thereof, and the aggregate amount of the unused
Commitments. Upon receipt of any such notice, the Agent shall promptly notify
each Bank of the contents thereof and the amount and Type of Loan to be made by
such Bank. Each Loan so requested shall be disbursed by the Agent not later than
2:00 p.m. on the requested date therefor in Dollars in funds immediately
available to the Borrower by credit to an account of the Borrower at the Agent's
Office or in such other manner as may have been specified in the applicable
notice and as shall be acceptable to the Agent.
(ii) On each requested date for the making of RC Loans, each Bank shall, if
it has received the notice contemplated by Section 1.02(a)(i) on or prior to (A)
in the case of Eurodollar Rate Loans, its close of business on the third
Eurodollar Business Day before such requested date and (B) in the case of Base
Rate Loans, 11:00 a.m. on such requested date, make available to the Agent, not
later than (x) in the case of Eurodollar Rate Loans, 11:00 a.m. and (y) in the
case of Base Rate Loans, 1:00 p.m., in Dollars in funds immediately available to
the Agent at the Agent's Office, the RC Loans to be made by such Bank on such
requested date. Any Bank's failure to make any RC Loan to be made by it on the
requested date therefor shall not relieve any other Bank of its obligation to
make any Loan to be made by such other Bank on such date, but such other Bank
shall not be liable for such failure.
(iii) Unless the Agent shall have received notice from a Bank prior to (A)
in the case of Eurodollar Rate Loans, 10:00 a.m., and (B) in the case of Base
Rate Loans, 12:00 noon, on the requested date for the making of any RC Loans
that such Bank will not make available to the Agent the RC Loans requested to be
made by such Bank on such date, the Agent may assume that such Bank has made
such RC Loans available to the Agent on such date in accordance with Section
1.02(a)(ii) and the Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower (or, in the case of RC Loans
requested pursuant to Section 1.04(b) or Section 1.05(c)(i), to the Swing Line
Bank) on such date a corresponding amount on behalf of such Bank. If and to the
extent such Bank shall not have so made available to the Agent the RC Loans
requested to be made by such Bank on such date and the Agent shall have so made
available to the Borrower a corresponding amount on behalf of such Bank, such
Bank shall, on demand, pay to the Agent such corresponding amount together with
interest thereon, for each day from the date such amount shall have been so made
available by the Agent to the Borrower until the date such amount shall have
been repaid to the Agent, at the Federal Funds Rate until (and including) the
third Business Day after demand is made and thereafter at the Base Rate. If such
Bank does not pay such corresponding amount promptly upon the Agent's demand
therefor, the Agent shall promptly notify the Borrower and the Borrower shall
immediately repay such corresponding amount to the Agent together with accrued
interest thereon at the applicable rate or rates provided in Section 1.03(a).
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(b) Swing Loans.
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With respect to Swing Loans:
(i) The Borrower shall give the Agent and, if the Swing Line Bank is a Bank
that is not the Agent, the Swing Line Bank notice (which shall be irrevocable)
no later than 1:00 p.m. on the requested date for the making of a Swing Loan.
Each such notice shall specify (A) the amount of the requested Swing Loan, which
amount shall be not less than the lesser of (1) $100,000 or any integral
multiple of $100,000 in excess thereof and (2) the Swing Line Availability on
the requested date for the making of such Swing Loan, (B) whether such Swing
Loan shall be an Agreed Rate Loan or a Base Rate Loan and (C) if such Swing Loan
shall be an Agreed Rate Loan, the number of days (which shall not be more than
five Business Days) that the Agreed Rate for such Swing Loan is to obtain (the
"Agreed Rate Interest Period"). Such notice may be by telephone, confirmed by
telecopy on the date of the making of the requested Swing Loan. If the Borrower
and the Swing Line Bank do not agree upon a requested Agreed Rate, the requested
Swing Loan shall be made as a Base Rate Loan, unless the Borrower withdraws the
request for such Swing Loan. Upon the expiration of an Agreed Rate Interest
Period, the Swing Loan in question shall be continued, subject to Section
1.04(b), as a Base Rate Loan.
(ii) Swing Loans shall be disbursed by the Swing Line Bank not later than
4:30 p.m. on the requested date therefor in Dollars in funds immediately
available to the Borrower by credit to an account of the Borrower at the Swing
Line Bank's Office, or in such other manner as may have been specified in the
applicable notice and as shall be acceptable to the Swing Line Bank.
Section 1.03 Interest.
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(a) Rates.
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(i) RC Loans.
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Each RC Loan shall bear interest on the outstanding principal amount
thereof until due at a rate per annum equal to (A) so long as it is a Base Rate
Loan, the Base Rate as in effect from time to time plus the applicable Base Rate
Margin and (B) so long as it is a Eurodollar Rate Loan, the applicable Adjusted
Eurodollar Rate plus the applicable Eurodollar Rate Margin.
(ii) Swing Loans.
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Each Swing Loan shall bear interest on the outstanding principal amount
thereof at a rate per annum equal to the Base Rate as in effect from time to
time plus the applicable Base Rate Margin or, if the Borrower and the Swing Line
Bank shall have agreed upon an Agreed Rate with respect to such Swing Loan, such
Agreed Rate; provided that upon the earliest of (A) the fifth Business Day after
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the date such Swing Loan was made, (B) the expiration of an Agreed Rate Interest
Period and (C) a Bankruptcy Default, any such Swing Loan shall cease to bear
interest at the Agreed Rate and shall bear interest at the Base Rate as in
effect from time to time plus the applicable Base Rate Margin.
(iii) Post-Default Rate.
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During an Event of Default (which is such by virtue of clause (a) of
Section 6.01 and whether before or after judgment), each Loan (whether or not
due) and, to the maximum extent permitted by Applicable Law, all other amounts
of interest and fees due and payable under the Borrower Loan Documents, shall
bear interest at a rate per annum equal to the applicable Post-Default Rate.
(b) Payment.
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Interest shall be payable, (i) in the case of Base Rate Loans that are
RC Loans, on each Interest Payment Date, (ii) in the case of Eurodollar Rate
Loans, on the
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last day of each applicable Interest Period (and, if an Interest Period is
longer than three months, at intervals of three months after the first day of
such Interest Period) and (iii) in the case of any Loan, when such Loan shall be
due (whether at maturity, by reason of notice of prepayment or acceleration or
otherwise) or converted, but only to the extent then accrued on the amount then
so due or converted. Interest at the Post-Default Rate shall be payable on
demand.
(c) Conversion and Continuation.
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(i) All or any part of the principal amount of RC Loans of any Type may,
on any Business Day, be converted into any other Type or Types of RC Loans,
except that (A) Eurodollar Rate Loans may be converted only on the last day of
an applicable Interest Period and (B) Base Rate Loans may be converted into
Eurodollar Rate Loans only on a Eurodollar Business Day.
(ii) Each RC Loan that is a Base Rate Loan shall continue as a Base Rate
Loan unless and until such Loan is converted into an RC Loan of another Type.
Each RC Loan that is a Eurodollar Rate Loan of any Type shall continue as a Loan
of such Type until the end of the then current Interest Period therefor, at
which time it shall be automatically converted into a Base Rate Loan unless the
Borrower shall have given the Agent notice in accordance with Section 1.03(c)
requesting either that such Loan continue as a Loan of such Type for another
Interest Period or that such Loan be converted into a Loan of another Type at
the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in Section
1.03(c)(i) or (ii), during a Default, the Agent may notify the Borrower that RC
Loans may only be converted into or continued as RC Loans of certain specified
Types and, thereafter, until no Default shall continue to exist, RC Loans may
not be converted into or continued as RC Loans of any Type other than one or
more of such specified Types.
(iv) The Borrower shall give the Agent notice (which shall be irrevocable)
of each conversion of an RC Loan or continuation of an RC Loan that is a
Eurodollar Rate Loan no later than, in the case of a conversion into a Base Rate
Loan, 12:00 noon on the Business Day, and, in the case of a conversion into or
continuation of an RC Loan that is a Eurodollar Rate Loan, 11:00 a.m. on the
third Eurodollar Business Day before the requested date of such conversion or
continuation. Each notice of conversion or continuation shall be in the form of
Schedule 1.03(c)(i) and shall specify (A) the requested date of such conversion
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or continuation, (B) the amount and Type and, in the case of Eurodollar Rate
Loans, the last day of the applicable Interest Period of each Loan to be
converted or continued and (C) the amount and Type or Types of Loans into which
such Loans are to be converted. Upon receipt of any such notice, the Agent
shall promptly notify each Bank of (x) the contents thereof, (y) the amount and
Type and, in the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period of each Loan to be converted or continued by such Bank and (z)
the amount and Type or Types of Loans into which such Loans are to be converted
or as which such Loans are to be continued.
Section 1.04 Repayment.
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(a) RC Loans.__
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The RC Loans shall mature and become due and payable, and shall be
repaid by the Borrower, in full on the Termination Date.
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(b) Swing Loans.
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Each Swing Loan shall become due and payable, and shall be repaid by
the Borrower, in full on the earlier of (i) the date that is five Business Days
after the date that such Swing Loan was made and (ii) the Termination Date.
Except in the case of a Swing Loan maturing on the Termination Date, if, on or
prior to the maturity of a Swing Loan, the Borrower shall not have requested
either an RC Loan pursuant to Section 1.02(a) hereof or a Swing Loan pursuant to
Section 1.02(b) hereof, the maturity of such Swing Loan pursuant to this Section
1.04(b) shall (i) be deemed to constitute a notice under Section 1.02(a)
requesting RC Loans in an amount equal to such Swing Loan be made by the Banks
(including the Swing Line Bank) and that such Loans be Base Rate Loans, (ii)
have the same force and effect as a notice from the Borrower under such Section
and (iii) be subject to all the terms and conditions of Section 1.02(a), except
that (A) the requirement (1) to deliver a notice in the form of Schedule 1.02(a)
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and (2) that the aggregate amount of Loans be not less than $500,000 shall not
apply and (B) the conditions to borrowing specified in Section 2.02 (other than
that a Bankruptcy Default shall not exist) shall not apply.
Section 1.05 Prepayments.
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(a) Optional Prepayments.
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The Borrower may, at any time and from time to time, prepay the Loans
in whole or in part, without premium or penalty, except that any partial
prepayment shall be in an aggregate principal amount of at least (i) in the case
of Eurodollar Rate Loans and Base Rate Loans that are not Swing Loans,
$1,000,000 or any integral multiple of $1,000,000 in excess thereof and (ii) in
the case of Swing Loans $100,000 or any integral multiple of $100,000 in excess
thereof, and any prepayment of a Eurodollar Rate Loan or a Swing Loan that is an
Agreed Rate Loan shall be subject to Section 7.04. The Borrower shall give the
Agent and, in the case of prepayments of Swing Loans, if the Swing Line Bank is
not the Agent, the Swing Line Bank, notice of each prepayment of a Loan no later
than 10:00 a.m. on, in the case of a prepayment of Base Rate Loans and Swing
Loans, the Business Day, and, in the case of a prepayment of Eurodollar Rate
Loans, the third Eurodollar Business Day, before the date of such prepayment.
Each notice of prepayment of a Loan shall be in the form of Schedule 1.05 and
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shall specify (i) whether the Loans to be prepaid are RC Loans or Swing Loans,
(ii) the date such prepayment is to be made, (iii) in the case of RC Loans, the
amount and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Period of each Loan to be prepaid and (iv) in the case of
Swing Loans, the amount and, in the case of Agreed Rate Loans, the last day of
its applicable Agreed Rate Interest Period of such Swing Loan to be prepaid.
Upon receipt of any such notice, other than a notice of prepayment of Swing
Loans, the Agent shall promptly notify each Bank of the contents thereof and the
amount and Type and, in the case of a Eurodollar Rate Loan, the last day of the
applicable Interest Period of each Loan of such Bank to be prepaid. Amounts to
be prepaid shall irrevocably be due and payable on the date specified in the
applicable notice of prepayment, together with interest thereon as provided in
Section 1.03(b).
(b) Asset Disposition Mandatory Prepayments.
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In the event of any disposition (whether voluntary or involuntary) of
any asset of the Borrower or any Guarantor (other than dispositions to which
Section 4.10 is not applicable) the Commitments shall be reduced in an amount
equal to the Net Cash Proceeds of such disposition and the Borrower shall prepay
the principal amount of the Loans that is in excess of the aggregate amount of
the Commitments as so reduced. The Commitments shall be reduced and any Loans to
be prepaid shall be prepaid at the time or times that Net Cash Proceeds from
such disposition are paid.
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(c) Default Mandatory Prepayments and Fundings.
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(i) Default Mandatory Prepayments of Swing Loans.
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If any Default other than a Bankruptcy Default exists, the Swing Line
Bank may request that outstanding Swing Loans be refunded by delivering to the
Agent and the Borrower on a Business Day a request to that effect, specifying
the principal amount of outstanding Swing Loans. Such a request shall (A) be
deemed to constitute a notice under Section 1.02(a) requesting RC Loans in an
amount equal to the outstanding Swing Loans be made by the Banks (including the
Swing Line Bank) and that such Loans be Base Rate Loans, (B) have the same force
and effect as a notice from the Borrower under such Section and (C) be subject
to all the terms and conditions of Section 1.02(a), except that (1) the
requirement (aa) to deliver a notice in the form of Schedule 1.02(a) and (bb)
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that the aggregate amount of Loans be not less than the amount specified in
Section 1.02(a) for the applicable Type of Loan shall not apply and (2) the
conditions to borrowing specified in Section 2.02 (other than that a Bankruptcy
Default shall not exist) shall not apply.
(ii) Default Mandatory Fundings of Participations in Swing Loans.
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(A) During a Bankruptcy Default, upon request (which shall relate to all Swing
Loans then outstanding) by the Swing Line Bank on a Business Day, each Bank
shall purchase from the Swing Line Bank, without recourse or warranty (except
that such outstanding Swing Loans in fact were made in accordance with Section
1.01(b)(i), and are not subject to any Liens arising out of any act of the Swing
Line Bank), a participation in the Swing Loans then outstanding by paying to the
Swing Line Bank, in Dollars immediately available to the Swing Line Bank at the
Swing Line Bank's Office, an amount equal to such Bank's Pro Rata Share of the
principal amount of such Swing Loans, with such payment being due on the day
such request is made, if such request is made prior to 2:00 p.m. on such day, or
if such request is made after 2:00 p.m. on the next Business Day (the
"Participation Payment Date"). Such participation shall constitute an undivided
interest and participation in the principal amount of Swing Loans then
outstanding and in interest that accrues thereon after the Participation Payment
Date. The Swing Line Bank shall, upon the request of a Bank, furnish to such
Bank a participation certificate evidencing any participation purchased by such
Bank pursuant to this Section 1.05. If any Bank does not pay any amount which
it is required to pay to the Swing Line Bank pursuant to this Section
1.05(c)(ii)(A) when due, the Swing Line Bank shall be entitled to recover such
amount from such Bank, together with interest thereon for each day from the
Participation Payment Date until the date such amount shall be paid to the Swing
Line Bank, at the Federal Funds Rate until (and including) the third Business
Day after the Participation Payment Date and thereafter at the Base Rate.
(B) Whenever, at any time after the Swing Line Bank has received from
any Bank payment in accordance with Section 1.05(c)(ii)(A) for its participation
in a Swing Loan, the Swing Line Bank receives any payment attributable to the
principal of, or interest accrued after the Participation Payment Date on, such
Swing Loan, the Swing Line Bank will promptly distribute to such Bank its share
thereof; provided, that in the event that any such payment received by the Swing
--------
Line Bank shall be required to be returned by the Swing Line Bank, for any
reason, such Bank shall return to the Swing Line Bank the portion thereof
previously distributed by the Swing Line Bank to it, but without interest
(unless the Swing Line Bank is required to pay interest on the amount so
returned, in which case such Bank shall be required to pay interest at a like
rate). Payments received after the Participation Payment Date
6
by the Swing Line Bank on account of Swing Line Loans shall be applied first to
the payment of interest accrued thereon prior to the Participation Payment Date.
(iii) Obligations of Banks Absolute and Unconditional.
-----------------------------------------------
The obligation of each Bank to make an RC Loan to repay Swing Loans as
contemplated by Section 1.05(c)(i) and to purchase and fund its participation in
Swing Loans as contemplated by Section 1.05(c)(ii) shall be absolute and
unconditional.
(d) Capital Securities Transfer Mandatory Prepayment.
------------------------------------------------
In the event that the Borrower transfers any Capital Securities to ZD
Inc. in a transaction to which Section 4.14 is not applicable by virtue of
clause (d) of such Section, the Commitments shall be reduced in an amount equal
to the Net Cash Proceeds of the public offering referred to in such clause (d)
and the Borrower shall prepay the principal amount of the Loans that is in
excess of the aggregate amount of the Commitments as so reduced. Such amounts
shall be prepaid and the Commitments shall be reduced at the time or times that
Net Cash Proceeds from such public offering are paid to the Person entitled
thereto.
(e) Application to Types of Loans.
-----------------------------
Amounts prepaid pursuant to Section 1.05(b) shall be applied to
prepay, first, Swing Loans, second, RC Loans that are Base Rate Loans and,
----- ------
third, RC Loans that are Eurodollar Rate Loans in the order that the Agreed Rate
-----
Interest Period or Interest Periods, as applicable, for such Loans ends.
Amounts to be prepaid pursuant to Section 1.05(b) shall be paid on the day or
within the time period specified therefor, whether or not such payment would
require a prepayment of Eurodollar Rate Loans prior to the last day of an
applicable Interest Period or would result in losses, costs or expenses
compensable under Section 7.04.
Section 1.06 Limitation on Types of Loans.
-----------------------------
Notwithstanding anything to the contrary contained in this Agreement, the
Borrower shall borrow, prepay, convert and continue RC Loans in a manner such
that (a) the aggregate principal amount of Eurodollar Rate Loans of the same
Type and having the same Interest Period shall at all times be not less than
$5,000,000, (b) there shall not be, at any one time, more than six Interest
Periods in effect with respect to Eurodollar Rate Loans of all Types and (c) no
payment of a Eurodollar Rate Loan will have to be made prior to the last day of
an applicable Interest Period in order to repay the Loans on (subject to Section
1.11(c)) the Termination Date.
Section 1.07 Reduction of Commitments.
------------------------
The Borrower may reduce the Commitments by giving the Agent notice (which
shall be irrevocable) thereof no later than 10:00 a.m. on the third Business Day
before the requested date of such reduction, except that no partial reduction of
the Commitments shall be in an aggregate amount less than $10,000,000 or any
integral multiple of $500,000 in excess thereof. Upon receipt of any such
notice, the Agent shall promptly notify each Bank of the contents thereof and
the amount to which such Bank's Commitment is to be reduced.
Section 1.08 Commitment Fees.
---------------
The Borrower shall pay to the Agent for the account of each Bank a
commitment fee on the daily amount by which such Bank's Commitment exceeds the
aggregate principal amount of its RC Loans for each day from the Restated
Agreement Date through the Termination Date at a rate per annum of (a) on or
prior to May 15,
7
1998, 0.200%, (b) on or after May 16, 1998, and on or before June 15, 1998,
0.250% and (c) thereafter, 0.375%, payable on successive Interest Payment Dates,
on the Termination Date and on the date of any reduction of such Commitments (to
the extent accrued and unpaid on the amount of such reduction).
Section 1.09 Computation of Interest and Fees.
--------------------------------
Interest on Eurodollar Rate Loans shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed. Interest on Base
Rate Loans and, unless otherwise agreed by the Borrower and the Agent, Agreed
Rate Loans and the commitment fee shall be computed on the basis of a year of
365 or 366 days, as applicable, and paid for the actual number of days elapsed.
Interest for any period shall be calculated from and including the first day
thereof to but excluding the last day thereof.
Section 1.10 Evidence of Indebtedness.
------------------------
Each Bank's Loans (including the Swing Line Bank) and the Borrower's
obligation to repay such Loans with interest in accordance with the terms of
this Agreement shall be evidenced by this Agreement, the records of such Bank
and, in the case of RC Loans, a single RC Note payable to the order of such Bank
and, in the case of Swing Loans, a Swing Loan Note payable to the order of the
Swing Line Bank. The records of each Bank shall be prima facie evidence of such
Bank's Loans and accrued interest thereon and of all payments made in respect
thereof.
Section 1.11 Payments by the Borrower.
------------------------
(a) Time, Place and Manner.
----------------------
All payments due to the Agent under the Borrower Loan Documents shall
be made to the Agent at the Agent's Office or at such other address as the
Agent may designate by notice to the Borrower. All payments due to any Bank
under the Borrower Loan Documents shall, in the case of payments by the Borrower
on account of principal of or interest on the Loans (including Swing Loans, so
long as the Bank that is the Swing Line Bank is also the Agent) or fees be made
to the Agent at the Agent's Office and in the case of all other payments
(including payments of principal of, and interest on, Swing Loans, if the Bank
that is the Swing Line Bank is not the Agent), be made directly to such Bank at
its Domestic Lending Office or such other address as the Bank may designate. All
payments due to any Bank under the Borrower Loan Documents, whether made to the
Agent or directly to such Bank, shall be made for the account of, in the case of
payments in respect of Eurodollar Rate Loans, such Bank's Eurodollar Lending
Office and, in the case of all other payments, such Bank's Domestic Lending
Office. A payment shall not be deemed to have been made on any day unless such
payment has been received by the required Person, at the required place of
payment, in Dollars in funds immediately available to the Agent at such place,
no later than 12:00 noon on such day.
(b) No Reductions.
-------------
All payments due to the Agent or any Bank under the Borrower Loan
Documents, and all other terms, conditions, covenants and agreements to be
observed and performed by the Borrower thereunder, and all payments due to the
Swing Line Bank by a Bank, shall be made, observed or performed by the Borrower
or such Bank, as the case may be, without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether sounding in tort, contract or otherwise) or Tax, except in the case of
payments by the Borrower, subject to Section 1.13, for any withholding or
deduction for Taxes required to be withheld or deducted under Applicable Law;
provided that no payment by any Person to another Person shall constitute a
waiver or
8
release by the Person making such payment of any right it may have against the
Person receiving such payment.
(c) Extension of Payment Dates.
--------------------------
Whenever any payment to the Agent or any Bank under the Borrower Loan
Documents would otherwise be due (except by reason of acceleration) on a day
that is not a Business Day, or, in the case of payments of the principal of
Eurodollar Rate Loans, a Eurodollar Business Day, such payment shall instead be
due on the next succeeding Business or Eurodollar Business Day, as the case may
be, unless, in the case of a payment of the principal of a Eurodollar Rate Loan,
such extension would cause payment to be due in the next succeeding calendar
month, in which case such due date shall be advanced to the next preceding
Eurodollar Business Day. If the date any payment under the Borrower Loan
Documents is due is extended (whether by operation of any Borrower Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.12 Distribution of Payments by the Agent.
-------------------------------------
(a) The Agent shall promptly distribute to each Bank its ratable share of
each payment received by the Agent under the Loan Documents for the account of
the Banks by credit to an account of such Bank at the Agent's Office or by wire
transfer to an account of such Bank at an office of any other commercial bank
located in the United States.
(b) Unless the Agent shall have received notice from the applicable Loan
Party prior to the date on which any payment is due to the Banks under the Loan
Documents that such Loan Party will not make such payment in full, the Agent may
assume that such Loan Party has made such payment in full to the Agent on such
date and the Agent in its sole discretion may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date a corresponding amount
with respect to the amount then due such Bank. If and to the extent such Loan
Party shall not have so made such payment in full to the Agent and the Agent
shall have so distributed to any Bank a corresponding amount, such Bank shall,
on demand, repay to the Agent the amount so distributed together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Agent, at the Federal Funds
Rate until (and including) the third Business Day after demand is made and
thereafter at the Base Rate.
Section 1.13 Taxes.
-----
(a) Taxes Payable by the Borrower.
-----------------------------
If under Applicable Law any Tax is required to be withheld or deducted
from, or is otherwise payable by the Borrower in connection with, any payment to
the Agent or any Bank under the Loan Documents, the Borrower (A) shall (1), if
so required, withhold or deduct the amount of such Tax from such payment and, in
any case, pay such Tax to the appropriate taxing authority in accordance with
Applicable Law and (2) indemnify the Agent or such Bank in accordance with the
provisions of Section 10.02(a) against its failure so to do and (B) shall pay to
the Agent or such Bank such additional amounts as may be necessary so that the
net amount received by the Agent or such Bank with respect to such payment,
after withholding or deducting all Taxes required to be withheld or deducted, is
equal to the full amount payable under the Loan Documents less any Bank Taxes
required to be withheld or deducted, or otherwise payable by the Borrower. If
any Tax is withheld or deducted from, or is otherwise payable by the Borrower in
connection with, any payment payable to any Bank under the Loan Documents, the
Borrower shall, as soon as
9
possible after the date of such payment, furnish to the Agent or such Bank the
original or a certified copy of a receipt for such Tax from the applicable
taxing authority. If any payment due to the Agent or any Bank under the Loan
Documents is or is expected to be made without withholding or deducting
therefrom, or otherwise paying in connection therewith, any Tax payable to any
taxing authority, the Borrower shall, within 30 days after any request from the
Agent, furnish to the Agent a certificate from such taxing authority, or an
opinion of counsel acceptable to the Agent, in either case stating that no Tax
payable to such taxing authority was or is, as the case may be, required to be
withheld or deducted from, or otherwise paid by the Borrower in connection with,
such payment.
(b) Taxes Payable by the Agent or any Bank.
--------------------------------------
The Borrower shall, promptly upon request by the Agent or any Bank for
the payment thereof, pay to the Agent or such Bank (A) all Taxes (other than
Bank Taxes) payable by the Agent or such Bank with respect to any payment due to
the Agent or such Bank under the Loan Documents and (B) all Taxes payable by the
Agent or such Bank as a result of payments made by the Borrower (whether made to
a taxing authority or to the Agent or such Bank) pursuant to this Section
1.13(b).
(c) Limitations.
-----------
Notwithstanding anything to the contrary contained herein, the Borrower
shall not be required to pay any additional amount in respect of withholding
taxes pursuant to this Section 1.13 to any Bank (A) in respect of any Bank Tax,
(B) except to the extent such Taxes are required to be withheld as a result of
(1) in the case of a Person that is a Bank on the Effective Date, a Regulatory
Change Enacted after the Effective Date and (2) in the case of a Person that
becomes a Bank after the Effective Date, a Regulatory Change Enacted after such
Person becomes a Bank, or (C) to the extent such withholding is required because
such Bank has failed to submit any form or certificate that it is entitled to so
submit under Applicable Law.
Section 1.14 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein, (a) RC Loans of each Type
to be made on any day shall be made by the Banks pro rata in accordance with
their respective Commitments, (b) RC Loans of the Banks shall be converted and
continued pro rata in accordance with their respective amounts of RC Loans of
the Type and, in the case of Eurodollar Rate Loans, having the Interest Period
being so converted or continued, (c) each reduction in the Commitments shall be
made pro rata in accordance with the respective amounts thereof and (d) each
payment of the principal of or interest on the Loans or of fees shall be made
for the account of the Banks pro rata in accordance with the respective amounts
thereof then due and payable.
ARTICLE 2
---------
CONDITIONS TO RESTATED AGREEMENT DATE AND LOANS
-----------------------------------------------
Section 2.01 Conditions to Effectiveness of Agreement.
----------------------------------------
This Agreement, as amended and restated as of the Restated Agreement Date,
and the rights and obligations of the parties hereunder shall become effective
upon the determination by (x) in the case of clauses (e), (f) and (h), the
Agent, (y) in the case of clauses (h) and (i), the Banks (as defined hereunder
prior to the amendment and restatement hereof on the Restated Agreement Date)
and (z) in all other cases,
10
each Bank, in each case, in its sole and absolute discretion that each of the
following conditions has been fulfilled:
(a) the Agent shall have received each of the following, in form and
substance and, in the case of the materials referred to in clauses (i), (ii),
(iv), (v), (vi), (vii), (viii) and (ix), certified in a manner satisfactory to
it:
(i) a certificate of the Secretary, an Assistant Secretary or other
officer acceptable to the Agent of the Borrower and each Guarantor, dated the
Restated Agreement Date, substantially in the form of Schedule 2.01(a)(i), to
-------------
which shall be attached copies of the resolutions and by-laws referred to in
such certificate;
(ii) (A) a copy of the certificate of incorporation of the Borrower and
each Guarantor that is a corporation and (B) a copy of the limited partnership
agreement of each Guarantor that is a partnership;
(iii) an opinion of counsel for the Borrower and each Guarantor dated the
Restated Agreement Date;
(iv) a copy of each Governmental Approval and other consent or approval
listed on Schedule 3.03;
-------------
(v) completed Schedules 3.02, 3.03, 3.04, 3.06, 3.09, 4.05, 4.06, 4.07,
4.12 and 9.01;
(vi) a certificate of the Director, the Secretary or an Assistant Secretary
of each Subordinator, dated the Effective Date, substantially in the form of
Schedule 2.01(a)(i), to which shall be attached copies of the resolutions, or in
-------------------
the case of MAC Inc. and SOFTBANK Corp. the minutes, and by-laws, or in the case
of MAC Inc. and SOFTBANK Corp. the Articles of Incorporation, referred to in
such certificate;
(vii) a copy of the certificate of incorporation of each Subordinator that
is a corporation, or in the case of MAC Inc. and SOFTBANK Corp. the Commercial
Register, certified, as of a recent date, by the Secretary of State, the Legal
Affairs Bureau or other appropriate official of such Subordinator's jurisdiction
of incorporation;
(viii) a good standing certificate with respect to the Borrower and each
Loan Party that is a corporation, issued as of a recent date by the Secretary of
State or other appropriate official of such Person's jurisdiction of
incorporation, together with a telegram from such Secretary of State or other
official, updating the information in such certificate;
(ix) a copy of the partnership agreement of each Subordinator that is a
partnership;
(x) an opinion of counsel for each Subordinator dated the Effective Date;
(xi) a duly executed RC Note to the order of each Bank;
11
(xii) a duly executed Swing Loan Note to the order of the Swing Line Bank;
(xiii) a duly executed copy of each Subordination Agreement; and
(xiv) such additional materials as any Bank may have requested pursuant to
Section 5.01(d);
(b) all amounts payable pursuant to Section 10.02 for which invoices have
been delivered by the Agent to the Borrower on or prior to such date, shall have
been paid in full or arrangements satisfactory to the Agent shall have been made
to cause them to be paid in full on the Restated Agreement Date.
(c) all Affiliate Indebtedness shall constitute Subordinated
Indebtedness;
(d) the acceptance by CT Corporation System of its appointment as
"Process Agent" under each Subordination Agreement that requires such
appointment;
(e) the corporate or partnership structures, as the case may be, of the
Borrower and the Guarantors shall be satisfactory to the Agent;
(f) the terms and conditions of all Indebtedness set forth on Schedule
--------
4.05 of the Borrower and each Guarantor shall be satisfactory to the Agent;
----
(g) the Agent shall have received copies, certified in a manner
satisfactory to it, of all notes, bonds, debentures and other instruments and
securities that evidence Indebtedness of the Borrower and each Guarantor listed
on Schedule 4.05, and all Contracts under which such Indebtedness is issued or
-------------
which otherwise relate to such Indebtedness; and
(h) each Bank (as defined hereunder prior to the amendment and
restatement hereof on the Restated Agreement Date) shall have received
irrevocable payment in full of all fees payable pursuant to this Agreement
(prior to its amendment and restatement on the Restated Agreement Date).
Except to the extent that the Borrower shall have disclosed information to
the contrary in a notice given to the Agent prior to 5:00 p.m. on the Business
Day before the Restated Agreement Date, the Borrower shall be deemed to have
made a Representation and Warranty as of the Restated Agreement Date that no
Default exists under this Agreement (as in effect prior to its amendment and
restatement on the Restated Agreement Date) and no Default shall exist under
this Agreement (as amended and restated on the Restated Agreement Date) after
giving effect to this Agreement on the Restated Agreement Date. No such
disclosure by the Borrower shall affect the right of each Bank to not enter into
this Agreement.
Section 2.02 Conditions to Each Loan.
-----------------------
The obligation of each Bank to make each Loan, including its initial Loan
(other than, except for a Bankruptcy Default RC Loans to be made pursuant to a
request under Section 1.04(b) or Section 1.05(c)(i)), is subject to each of the
following conditions:
12
(a) such Bank shall have received a notice of or request for a borrowing
with respect to such Loan complying with the requirements of Section 1.02;
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time such Loan is to be made, both with and without
giving effect to such Loan and all other Loans to be made at such time and to
the application of the proceeds thereof; and
(c) no Default shall have occurred and be continuing at the time such Loan
is to be made or would result from the making of such Loan and all other Loans
to be made at such time or from the application of the proceeds thereof.
Except to the extent that the Borrower shall have disclosed in the notice
of borrowing, or in a subsequent notice given to the Agent prior to 5:00 p.m. on
the Business Day before the requested date for the making of the requested
Loans, that a condition specified in clause (b) or (c) above will not be
fulfilled as of the requested time for the making of such Loans, the Borrower
shall be deemed to have made a Representation and Warranty as of the time of the
making of such Loans that the conditions specified in such clauses have been
fulfilled as of such time. No such disclosure by the Borrower that a condition
specified in clause (b) or (c) above will not be fulfilled as of the requested
time for the making of the requested Loans shall affect the right of each Bank
to not make the Loans requested to be made by it if, in such Bank's
determination, such condition has not been fulfilled at such time.
ARTICLE 3
---------
CERTAIN REPRESENTATIONS AND WARRANTIES
--------------------------------------
In order to induce each Bank to enter into this Agreement and to make each
Loan requested to be made by it, the Borrower represents and warrants as
follows:
Section 3.01 Organization; Power; Qualification.
----------------------------------
The Borrower and each Guarantor are corporations or partnerships, duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation or formation, have the power and
authority to own their respective properties and to carry on their respective
businesses as now being and hereafter proposed to be conducted and are duly
qualified and in good standing as foreign corporations or organizations, and are
authorized to do business, in all jurisdictions in which the character of their
respective properties or the nature of their respective businesses requires such
qualification or authorization, except for qualifications and authorizations the
lack of which, singly or in the aggregate, has not had and could not reasonably
be expected to have a Materially Adverse Effect on the Borrower and the
Guarantors taken as a whole.
Section 3.02 Subsidiaries.
------------
Schedule 3.02 sets forth, as of the Restated Agreement Date, all of the
-------------
Wholly Owned Subsidiaries, and each direct Subsidiary formed within the United
States of America, of the Borrower and each Guarantor, and all of the direct
Subsidiaries formed within the United States of America of each such Wholly
Owned Subsidiary, their jurisdictions of incorporation or formation and the
percentages of the various classes of their Capital Securities owned by the
Borrower, a Guarantor or another Subsidiary of the Borrower or a Guarantor. The
Borrower, a Guarantor or another Subsidiary of the Borrower or a Guarantor, as
13
the case may be, has the unrestricted right to vote, and (subject to limitations
imposed by Applicable Law) to receive dividends and distributions on, all
Capital Securities indicated on Schedule 3.02 as owned by the Borrower or such
-------------
Subsidiary. All such Capital Securities have been duly authorized and issued
and are fully paid and nonassessable.
Section 3.03 Authorization; Enforceability; Required Consents; Absence of
------------------------------------------------------------
Conflicts.
---------
The Borrower and each Guarantor has the power, and has taken all necessary
action (including, if a corporation, any necessary stockholder action) to
authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents to which it is a party and, in the case of
the Borrower, to borrow hereunder in the unused amount of the Commitments. This
Agreement has been, and each of the other Loan Documents to which the Borrower
or any Guarantor is a party when delivered to the Agent will have been, duly
executed and delivered by the Borrower and each Guarantor that is a party
thereto and is, or when so delivered will be, a legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally. The execution, delivery and
performance in accordance with their respective terms by the Borrower and the
Guarantors of the Loan Documents to which they are parties, and each borrowing
hereunder, whether or not in the amount of the unused Commitments, do not and
(absent any change in any Applicable Law or applicable Contract) will not (a)
require any Governmental Approval or any other consent or approval, including
any consent or approval of the stockholders or partners, as the case may be, of
the Borrower or any Guarantor, other than Governmental Approvals and other
consents and approvals that have been obtained, are final and not subject to
review on appeal or to collateral attack, are in full force and effect and, in
the case of any such required under any Applicable Law or Contract as in effect
on the Restated Agreement Date, are listed on Schedule 3.03, or (b) violate,
-------------
conflict with, result in a breach of, constitute a default under or result in or
require the creation of any Lien upon any assets of the Borrower or any
Guarantor under, (i) any Contract to which the Borrower or any Guarantor is a
party or by which the Borrower or any Guarantor or any of their respective
properties may be bound or (ii) any Applicable Law.
Section 3.04 Existing Indebtedness and Investments.
-------------------------------------
(a) Schedule 4.05 (i) sets forth all Indebtedness of the Borrower and each
-----------------
Guarantor that is outstanding on the Restated Agreement Date in an original
principal amount equal to $1,000,000 or more and that is payable to a single
Person or group of Persons that are Affiliates, or that constitutes
Indebtedness, issued under an indenture or similar instrument and (ii)
identifies each such Person that such Indebtedness is payable to or the
indenture or similar instrument under which such Indebtedness was issued.
(b) Schedule 3.04 sets forth (i) all public debt of SOFTBANK Corp. that is
-------------
outstanding on the Restated Agreement Date and (ii) all Indebtedness outstanding
on the Restated Agreement Date that, on the Restated Agreement Date, is secured
by a Lien on Affiliate Indebtedness.
(c) Schedule 4.11 sets forth all Investments of the Borrower and the
-------------
Guarantors outstanding on the Restated Agreement Date.
14
Section 3.05 Taxes.
-----
(a) The Borrower and each Guarantor have timely filed all Tax returns
required to have been filed by them under Applicable Law (taking into account
any extension of time in which to file) except for returns (other than U.S.
federal income tax returns) which show or when completed would show a liability
for Taxes less than $50,000, (b) all such filed returns correctly reflect the
facts concerning the income, business, assets, properties, operations,
activities and status of the Borrower and each Guarantor, (c) the Borrower and
each Guarantor have timely paid all Taxes (except for Taxes the failure to have
paid which does not contravene Section 4.01) that are shown as due on such filed
returns or that have been assessed against them and (d) to the extent required
by Generally Accepted Accounting Principles, reserved against all Taxes that are
payable by it but are not yet due or that are due and payable by it or have been
assessed against it but have not yet been paid.
Section 3.06 Litigation.
----------
Except as set forth on Schedule 3.06, there are not, in any court or before
-------------
any arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits or proceedings pending or threatened (nor, to the
knowledge of the Borrower or any Guarantor is there any basis therefor) against
or in any other way relating to or affecting (a) the validity or enforceability
of any Loan Document or (b) the Borrower or any Guarantor or any of their
respective businesses or properties, except actions, suits or proceedings that
could not reasonably be expected to be adversely determined and that, in the
case of those pending against the Borrower or any Guarantor, if adversely
determined, could not reasonably be expected to have, singly or in the
aggregate, a Materially Adverse Effect on the Borrower and the Guarantors taken
as a whole.
Section 3.07 Burdensome Provisions.
---------------------
Neither the Borrower nor any Guarantor is a party to or bound by any
Contract or Applicable Law, compliance with which could reasonably be expected
to have a Materially Adverse Effect on (a) the Borrower and the Guarantors taken
as a whole or (b) any Loan Document.
Section 3.08 No Adverse Change or Event.
--------------------------
Since December 31, 1996, no change in the business, assets, Liabilities,
financial condition or results of operations of the Borrower or any Guarantor
has occurred, and no event has occurred or failed to occur, that has had or
could reasonably be expected to have, either alone or in conjunction with all
other such changes, events and failures, a Materially Adverse Effect on (a) the
Borrower and the Guarantors taken as a whole or (b) any Loan Document. Such an
adverse change may have occurred, and such an event may have occurred or failed
to occur, at any particular time notwithstanding the fact that at such time no
Default shall have occurred and be continuing.
Section 3.09 Additional Adverse Facts.
------------------------
Except for facts and circumstances disclosed on Schedule 3.06 or Schedule
------------- --------
3.09, no fact or circumstance is known to the Borrower or any Guarantor, as of
----
the Restated Agreement Date, that either alone or in conjunction with all other
such facts and circumstances, has had or could reasonably be expected to have
(so far as the Borrower or any Guarantor can foresee) a Materially Adverse
Effect on (a) the Borrower and the Guarantors taken as a whole or (b) any Loan
Document. If a fact or circumstance disclosed on such Schedules or in such
notes should in the future have a Materially Adverse Effect on (x) the Borrower
and the Guarantors taken as a whole or (y) any Loan Document, such Materially
Adverse Effect shall be a change or event subject to Section 3.08
notwithstanding such disclosure.
15
Section 3.10 Guarantors and Subordinators.
----------------------------
As of the Restated Agreement Date (a) the Guarantors listed on Schedule
--------
9.01 are, except as otherwise indicated on such Schedule, Wholly Owned
----
Subsidiaries of the Borrower and include all Wholly Owned Subsidiaries of each
Guarantor and (b) the resolutions or minutes, as the case may be, and the by-
laws or Articles of Incorporation, as the case may be, referred to in Section
2.01(a)(vi), the certificate of incorporation or Commercial Register, as the
case may be, referred to in Section 2.01(a)(v), the partnership agreements
referred to in Section 2.01(a)(ix) and the acceptance by CT Corporation referred
to in Section 2.01(c), all are in full force and effect as of the Restated
Agreement Date, in the forms delivered on the Effective Date, except for such
changes thereto as have been certified and delivered to the Agent on or before
the Restated Agreement Date.
ARTICLE 4
---------
CERTAIN COVENANTS
-----------------
From the Restated Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Guarantor and, prior to its
-------------------------------------------------------------------
dissolution as set forth in Section 4.19, Forums L.P., to:
---------------------------------------------------------
Section 4.01 Preservation of Existence and Properties, Scope of Business,
------------------------------------------------------------
Compliance with Law, Payment of Taxes and Claims, Preservation of
-----------------------------------------------------------------
Enforceability.
(a) Preserve and maintain its corporate or partnership existence, as the
case may be, and all of its other franchises, licenses, rights and privileges,
(b) preserve, protect and obtain all Intellectual Property, and preserve and
maintain in good repair, working order and condition all other properties,
required for the conduct of its business, (c) comply with Applicable Law, (d)
pay or discharge when due all Taxes (other than Taxes that are the subject of a
good faith contest as to the fact or the amount of liability and, to the extent
required by Generally Accepted Accounting Principles, have been reserved against
on the books of the Person that has failed to discharge such Tax) and all
Liabilities that are or might become Liens on any of its properties and (e) take
all action and obtain all consents and Governmental Approvals required so that
its obligations under the Loan Documents will at all times be legal, valid and
binding and enforceable in accordance with their respective terms, except that
this Section 4.01 (other than clauses (a), in so far as it requires any Loan
Party to preserve its corporate or partnership existence and (e)) shall not
apply in any circumstance where noncompliance, together with all other
noncompliances with this Section 4.01, could not reasonably be expected to have
a Materially Adverse Effect on (x) the Borrower and the Guarantors taken as a
whole or (y) any Loan Document.
Section 4.02 Insurance.
---------
Maintain insurance with responsible insurance companies against at least
such risks and in at least such amounts as is customarily maintained by similar
businesses, or as may be required by Applicable Law.
Section 4.03 Use of Proceeds.
---------------
Use the proceeds of the Loans only for the repayment of Swing Loans and the
general corporate purposes of the Borrower, including, subject to the provisions
of Section 4.11, the making or acquisition of any Investments or Business Units.
None of the proceeds of any of the Loans shall be used to purchase or carry, or
to reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of
16
Regulations U and X of the Board of Governors of the Federal Reserve System) or
to extend credit to others for the purpose of purchasing or carrying any margin
stock. If requested by any Bank, the Borrower shall complete and sign Part I of
a copy of Federal Reserve Form U-1 referred to in Regulation U and deliver such
copy to such Bank.
Section 4.04 Additional Wholly Owned Subsidiaries.
------------------------------------
On or prior to the date that a Guarantor forms or acquires any new Wholly
Owned Subsidiary, or any existing Subsidiary of a Guarantor becomes a Wholly
Owned Subsidiary of such Guarantor, deliver to the Agent a Guarantor Supplement
executed by such Wholly Owned Subsidiary.
B. The Borrower shall not, and shall not permit any Guarantor, any ZD Holdings
---------------------------------------------------------------------------
Subsidiary (with respect only to Sections 4.05, 4.06 and 4.07) or, prior to its
-------------------------------------------------------------------------------
dissolution as set forth in Section 4.19, Forums L.P., to, directly or
----------------------------------------------------------------------
indirectly:
----------
Section 4.05 Indebtedness.
------------
Have any Indebtedness, at any time, except that this Section 4.05 shall not
apply to (a) the Loans, (b) Guaranties to which Section 4.06 is not applicable,
(c) Existing Indebtedness, provided that, if such Indebtedness is Affiliate
--------
Indebtedness, such Indebtedness is Subordinated Indebtedness, (d) Purchase Money
Indebtedness in an aggregate principal amount not exceeding $5,000,000
outstanding at any time in the aggregate for the Borrower and the Guarantors,
(e) Indebtedness of the Borrower that is not InterCompany Indebtedness,
Subordinated Indebtedness or Indebtedness referred to in clause (f) of this
Section 4.05 in an aggregate principal amount not exceeding $25,000,000
outstanding at any time, (f) Indebtedness of the ZD Holdings Subsidiaries and
the Guarantors that is not InterCompany Indebtedness, Subordinated Indebtedness
or Indebtedness referred to in clause (e) of this Section 4.05 in an aggregate
principal amount not exceeding $10,000,000 outstanding at any time in the
aggregate for the Guarantors and the ZD Holdings Subsidiaries, (g) New
Subordinated Indebtedness, provided, that such New Subordinated Indebtedness
--------
shall (1) not require any scheduled payment or purchase of principal prior to
the Termination Date, (2) bear interest at a commercially reasonable rate and
(3) be subject to other terms and conditions no more burdensome in any material
manner to the obligor than the terms of any other Subordinated Indebtedness in
existence at the time of its incurrence and (h) InterCompany Indebtedness.
Section 4.06 Guaranties.
----------
Be obligated, at any time, in respect of any Guaranty, except that this
Section 4.06 shall not apply to (a) Existing Guaranties and (b) Permitted
Guaranties.
Section 4.07 Liens.
-----
Permit to exist, at any time, any Lien upon any of its properties or assets
of any character, whether now owned or hereafter acquired, or upon any income or
profits therefrom, except that this Section 4.07 shall not apply to Permitted
Liens.
Section 4.08 Restricted Payments.
-------------------
Make or declare or otherwise become obligated to make any Restricted
Payment, except that this Section 4.08 shall not apply to:
(a) Restricted Payments to SOFTBANK Corp.; provided, that (i) no Default
--------
shall exist either before or as a result of the making of such Restricted
Payment and (ii) the amount of such Restricted Payment (A) together with the
aggregate amount of all other SOFTBANK Corp. Payments, shall not exceed
$200,000,000 and (B) together with the
17
aggregate amount of all other SOFTBANK Corp. Payments and all MAC Inc. Payments,
shall not exceed $300,000,000;
(b) in the case of a Guarantor, any Restricted Payment by such Guarantor
made to the Borrower or a Guarantor.
This Section 4.08 shall not prohibit the payment of a dividend that
constitutes a Restricted Payment if such Restricted Payment is made within 45
days of the declaration thereof and if this Section 4.08 did not prohibit such
Restricted Payment at the time of its declaration.
Section 4.09 Merger or Consolidation.
-----------------------
Merge or consolidate with any Person, except that, if after giving effect
thereto no Default would exist, this Section 4.09 shall not apply to (a) any
merger or consolidation of the Borrower with any one or more Guarantors,
provided that the Borrower shall be the continuing Person, (b) any merger or
--------
consolidation of any Guarantor with any one or more other Guarantors and (c)
Investments to which Section 4.11 is not applicable by virtue of clause (j)
thereof; provided, that if the Borrower is a party to such merger or
--------
consolidation the Borrower is the surviving Person and if a Guarantor is a party
to such merger or consolidation such Guarantor is the surviving Person.
Section 4.10 Disposition of Assets.
---------------------
Sell, lease, license, transfer or otherwise dispose of any asset or any
interest therein, except that this Section 4.10 shall not apply to (a) any
disposition of any asset or any interest therein in the ordinary course of
business, (b) any disposition of any obsolete or retired property not used or
useful in its business, (c) any disposition of any Investment made after January
1, 1996 or of any interest therein to any Affiliate, provided that the Person
--------
disposing of such Investment or interest therein, receives in consideration of
such disposition an amount of Dollars not less than the original amount of such
Investment or interest, (d) any disposition of any asset or any interest therein
by the Borrower or any Guarantor to the Borrower or any Guarantor, (e) any
disposition of any asset if the fair market value of such asset, together with
the fair market value of all other assets disposed of by the Borrower and the
Guarantors after the Restated Agreement Date, does not exceed $50,000,000 and
(f) any transaction to which any of the other provisions of this Agreement
(other than Section 4.13) is by its express terms inapplicable. For this
purpose, "fair market value" of an asset means the fair market value of such
asset as reasonably determined by, if the Person disposing of such asset is a
corporation, its board of directors, and, if such Person is a partnership, its
general partner or partners.
Section 4.11 Investments.
-----------
Make or acquire any Investment or Business Unit, except that this Section
4.11 shall not apply to (a) Money Market Investments, (b) extensions of trade
credit in the ordinary course of business, but only if and so long as the same
are payable on customary trade terms, (c)(i) loans and advances to employees of
the Borrower or any Guarantor in the ordinary course of business in an amount
not exceeding $5,000,000 outstanding at any time in the aggregate for the
Borrower and the Guarantors, and (ii) Investments constituting Guaranties of
loans and advances referred to in clause (c)(i), (d) Investments in the Borrower
or a Guarantor by the Borrower or a Guarantor, (e) in addition to the Guaranties
contemplated by clause (c)(ii), Guaranties to which Section 4.06 is not
applicable, (f) Investments in MAC Inc. for purposes of effecting the
transactions contemplated in the Management Agreement in an aggregate amount not
in excess of $50,000,000 outstanding at any time, (g) Existing
18
Investments, (h) Investments in and Business Units acquired from SOFTBANK Corp.
the cost of which (A) together with the aggregate amount of all other SOFTBANK
Corp. Payments, does not exceed $200,000,000 and (B) together with the aggregate
amount of all other SOFTBANK Corp. Payments and all MAC Inc. Payments, does not
exceed $300,000,000, (i) Investments in and Business Units acquired from MAC
Inc. the cost of which (A) together with the aggregate amount of all other MAC
Inc. Payments, does not exceed $175,000,000 and (B) together with the aggregate
amount of all other MAC Inc. Payments and all SOFTBANK Corp. Payments, does not
exceed $300,000,000 and (j) Investments (other than loans, advances and
extensions of credit to Affiliates) and Business Units the cost of which,
together with the costs of all other Borrower Group Payments (other than
Investments in the form of loans, advances and extensions of credit to
Affiliates), does not exceed $50,000,000.
Section 4.12 Benefit Plans.
-------------
(a) Have, or permit any of its ERISA Affiliates to have, any Benefit Plan
other than an Existing Benefit Plan, (b) permit any Existing Benefit Plan to be
amended in any manner that would cause the aggregate Unfunded Benefit
Liabilities under all Existing Benefit Plans to exceed $100,000,000 or (c)
permit any Existing Benefit Plan to have a Funded Current Liability Percentage
of less than 60%.
Section 4.13 Transactions with Affiliates.
----------------------------
Effect any transaction with any Affiliate that is (a) outside the ordinary
course of business or (b) on a basis less favorable than would at the time be
obtainable for a comparable transaction in arms-length dealing with an unrelated
third party, except that this Section 4.13 shall not apply to (i) the Guaranties
of the Borrower and the Guarantors pursuant to Article 9, (ii) any transaction
between the Borrower and a Guarantor and (iii) any transaction to which Section
4.11 is not applicable by virtue of clause (f) of such Section.
Section 4.14 Issuance or Disposition of Capital Securities.
---------------------------------------------
Issue any of its Capital Securities or sell, transfer or otherwise dispose
of any Capital Securities of any Guarantor, except that this Section 4.14 shall
not apply to (a) any issuance by a Guarantor of any of its Capital Securities to
the Borrower or a Guarantor, (b) any disposition by the Borrower or any
Guarantor of any Capital Securities of a Guarantor to the Borrower or a
Guarantor, (c) the issuance by the Borrower or any Guarantor of any of its
Capital Securities pursuant to, or upon exercise of any Capital Security issued
pursuant to, a Permitted Stock Option Plan and (d) a transfer by the Borrower of
Capital Securities of ZD COMDEX and Forums, Inc., ▇▇▇▇-▇▇▇▇▇ Inc. and ZD
Holdings (UK) to ZD Inc. in connection with, and substantially simultaneously
with, a contemplated public offering of shares of the common stock of ZD Inc.
Section 4.15 Subordinated Indebtedness; InterCompany Indebtedness.
----------------------------------------------------
(a) Amend, modify or waive any provision of any Subordinated Indebtedness
or InterCompany Indebtedness, or Prepay all or any portion of any Subordinated
Indebtedness or make any other payments on or in respect thereof, except that
this Section 4.15 shall not apply to (i) amendments, modifications and waivers
that do not have an adverse effect on the rights of the Agent, the Swing Line
Lender or any Bank under the Loan Documents, so long as such amendment,
modification or waiver is in writing and a copy thereof is provided to the Agent
within 30 days of its execution, (ii) payments of interest and principal when
due on the Subordinated Indebtedness in accordance with their scheduled
maturities (without giving effect to any acceleration or required or optional
Prepayment), but not earlier, and then only if (A) no Default exists and (B)
such payment is
19
permitted by the applicable Subordinated Agreement and (iii) Prepayments of
Subordinated Indebtedness made to (A) SOFTBANK Corp., provided that, the
--------
amount thereof, together with (1) the aggregate amount of all other SOFTBANK
Corp. Payments, shall not exceed $200,000,000 and (2) the aggregate amount of
all other SOFTBANK Corp. Payments and all MAC Inc. Payments, shall not exceed
$300,000,000, and (B) MAC Inc., provided that, the amount thereof, together
--------
with (1) the aggregate amount of all other MAC Inc. Payments, shall not
exceed $175,000,000 and (2) the aggregate amount of all other MAC Inc. Payments
and all SOFTBANK Corp. Payments, shall not exceed $300,000,000; provided in each
--------
case that no Default shall exist or result from the making of such payment. For
purposes of clause (i) of the preceding sentence, an increase in the principal
amount of, an increase in the interest rate beyond a commercially reasonable
rate on, or date scheduled earlier than the Termination Date for the payment,
purchase or defeasement of principal of or interest on, any InterCompany
Indebtedness or Subordinated Indebtedness shall be deemed to have such an
adverse effect.
(b) Amend, modify or waive any provision of the Kingston Contingent
Obligation or the Kingston Guarantee, except that this Section 4.15(b) shall not
apply to amendments, modifications and waivers that are not adverse to the
interests of the Agent or any Bank, provided that such amendments, modifications
and waivers are in writing and a copy thereof is provided to the Agent not less
than 5 Business Days prior to their effectiveness.
Section 4.16 ▇▇▇▇▇▇ and Swaps.
----------------
Enter into any interest rate or currency swap or similar transaction,
except that this Section 4.16 shall not apply to any such transaction entered
into in the ordinary course of such Person's business for the purpose of hedging
an interest rate or currency risk and on terms customary for such a transaction
at the time it was entered into.
C. The Borrower shall not permit any Guarantor or, prior to its dissolution as
---------------------------------------------------------------------------
set forth in Section 4.19, Forums L.P., to:
------------------------------------------
Section 4.17 Limitation on Restrictive Covenants.
-----------------------------------
Permit to exist, at any time, any consensual restriction limiting the
ability (whether by covenant, event of default, subordination or otherwise) of
any Guarantor to (a) pay dividends or make any other distributions on shares of
its capital stock or other ownership interests held by the Borrower or any other
Guarantor, (b) pay any obligation owed to the Borrower or any Guarantor, (c)
make any loans or advances to or investments in the Borrower or any Guarantor,
(d) transfer any of its property or assets to the Borrower or any Guarantor or
(e) create any Lien upon its property or assets whether now owned or hereafter
acquired or upon any income or profits therefrom, except that this Section 4.17
shall not apply to Permitted Restrictive Covenants.
D. The Borrower shall not at any time:
----------------------------------
Section 4.18 Ratio of Indebtedness to Borrower Group EBITDA.
-----------------------------------------------
Permit, as of the last day of any fiscal quarter, commencing with the first
fiscal quarter ending after the Restated Agreement Date, the ratio of the
aggregate Indebtedness of the Borrower and the Guarantors, other than
InterCompany Indebtedness and Subordinated Indebtedness outstanding on such day,
to Borrower Group EBITDA, for the 4 consecutive fiscal quarters of the Borrower
most recently ended to be greater than 2.50:1.00.
20
E. The Borrower shall:
------------------
Section 4.19 Dissolution of Forums L.P.
--------------------------
(a) Cause the dissolution of Forums L.P. on or before ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇)
not permit Forums L.P. to engage in any activity or conduct any business
whatsoever, other than such activities as may be necessary to effect the
dissolution of Forums L.P. and (c) not permit the amendment of, or the waiver of
any provision of, the limited partnership agreement of Forums L.P. as in effect
on the Restated Agreement Date, other than such amendments and waivers as may be
necessary to effect the dissolution of Forums L.P.
ARTICLE 5
---------
INFORMATION
-----------
Section 5.01 Information to Be Furnished.
---------------------------
From the Restated Agreement Date and until the Repayment Date, the Borrower
shall furnish to each Bank:
(a) Quarterly Financial Statements.
------------------------------
As soon as available and in any event within 45 days after the close
of each of the first three quarterly accounting periods in each fiscal year of
the Borrower, commencing with the quarterly period ending March 31, 1998,
consolidated balance sheets of the Borrower and the Consolidated Subsidiaries as
at the end of such quarterly period and the related consolidated statements of
income, retained earnings and cash flows of the Borrower and the Consolidated
Subsidiaries for such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, setting forth in each
case in comparative form the figures for the corresponding periods of the
previous fiscal. The consolidated financial statements of the Borrower will be
supported by schedules showing revenues and EBITDA by major business units.
(b) Year-End Financial Statements; Accountants' Certificate.
-------------------------------------------------------
As soon as available and in any event within 120 days after the end of
each fiscal year of the Borrower, commencing with the fiscal year ending
December 31, 1997:
(i) consolidated balance sheets of the Borrower and the Consolidated
Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income, retained earnings and cash flows of the Borrower and the
Consolidated Subsidiaries for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year, supported by
schedules showing revenues, operating expenses, EBITDA, net assets, capital
spending and depreciation, by major business units; and
(ii) an audit report of Price Waterhouse, or other independent certified
public accountants of recognized national standing, on such of the financial
statements referred to in clause (i) as are consolidated financial statements,
which report shall be without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit.
(c) Officer's Certificate as to Financial Statements and Defaults.
-------------------------------------------------------------
At the time that financial statements are furnished pursuant to
Section 5.01(a) or 5.01(b), a certificate of the president, chief financial
officer or other officer of the Borrower acceptable to the Agent in the form of
Schedule 5.01(b).
-----------------
21
(d) Requested Information.
---------------------
From time to time and promptly upon request of the Agent, such
Information regarding the Loan Documents, the Loans or the business, assets,
Liabilities, financial condition, results of operations or business prospects of
the Borrower and the Guarantors as the Agent may reasonably request.
(e) Notice of Defaults, Material Adverse Changes and Other Matters.
--------------------------------------------------------------
Prompt notice of:
(i) any Default of which the Borrower is or in the exercise of normal
business prudence should have been aware,
(ii) the acquisition or formation of a new Subsidiary and, in the case of
each such new Subsidiary, its name, jurisdiction of incorporation, the
percentages of the various classes of its Capital Securities owned by the
Borrower or another Subsidiary and whether or not such new Subsidiary is a
Consolidated Subsidiary,
(iii) any change in the name of any Guarantor, its jurisdiction of
incorporation or formation, the percentages of the various classes of its
Capital Securities or partnership interests owned by the Borrower or another
Subsidiary or its status as a Consolidated or non-Consolidated Subsidiary,
(iv) the threatening or commencement of, or the occurrence or nonoccurrence
of any change or event relating to, any action, suit or proceeding that would
cause the Representation and Warranty contained in Section 3.06 to be incorrect
if made at such time,
(v) the occurrence or nonoccurrence of any change or event that would
cause the Representation and Warranty contained in Section 3.08 to be incorrect
if made at such time,
(vi) any event or condition referred to in clauses (i) through (vii) of
Section 6.01(h), whether or not such event or condition shall constitute an
Event of Default, and
(vii) any material amendment of the certificate of incorporation or
partnership agreement or by-laws of the Borrower or any Subsidiary that is a
Loan Party.
Section 5.02 Accuracy of Financial Statements and Information.
------------------------------------------------
(a) Financial Statements.
--------------------
The Borrower hereby represents and warrants that (i) the financial
statements attached hereto as Schedule 5.02(a), while not prepared in accordance
----------------
with Generally Accepted Accounting Principles, would be substantially the same
had such financial statements been so prepared, and fairly present the
respective financial positions of the Persons whose financial statements such
financial statements purport to be as at their respective dates and the results
of operations, retained earnings and, as applicable, changes in financial
position or cash flows of such Persons for the respective periods to which such
statements relate, (ii) except as disclosed or reflected in such financial
statements, as at their respective dates, neither the Borrower nor any Guarantor
had any Liability, contingent or otherwise, or any unrealized or anticipated
loss, that, singly or in the aggregate, has had or could reasonably be expected
to have a Materially Adverse Effect on the Borrower and the Guarantors taken as
a whole, and (iii) the financial statements furnished pursuant to Section
5.01(a) or 5.01(b) will fairly present, in accordance with
22
Generally Accepted Accounting Principles (except for changes therein or
departures therefrom that are described in the certificate or report
accompanying such statements and that have been approved in writing by the
Borrower's then current independent certified public accountants), the
consolidated financial position of the Borrower and the Consolidated
Subsidiaries, as at their respective dates and the consolidated results of
operations, retained earnings and cash flows of such Persons for the respective
periods to which such statements relate.
(b) Other Information.
-----------------
The Borrower hereby represents and warrants that the Information
furnished to the Agent or any Bank by or on behalf of the Borrower or any
Subsidiary on or prior to the Restated Agreement Date (other than the financial
statements referred to in Section 5.02(a)) does not, and the Information
furnished to such Person by or on behalf of the Borrower or any Subsidiary after
the Restated Agreement Date (other than the financial statements referred to in
Section 5.02(a)) will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not misleading in the light of the circumstances under which
they were made.
Section 5.03 Additional Covenants Relating to Disclosure.
-------------------------------------------
From the Restated Agreement Date and until the Repayment Date, the Borrower
shall and shall cause each Guarantor to:
(a) Accounting Methods and Financial Records.
----------------------------------------
Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete), as may be required or necessary to
permit (i) the preparation of financial statements required to be delivered
pursuant to Section 5.01(a) and 5.01(b) and (ii) the determination of the
compliance of the Borrower and the Guarantors with the terms of the Loan
Documents.
(b) Visits, Inspections and Discussions.
-----------------------------------
Permit representatives of any Bank, from time to time, as often as may
be reasonably requested, to visit and inspect its properties and its books and
records.
Section 5.04 Authorization of Third Parties to Deliver Information and
---------------------------------------------------------
Discuss Affairs.
---------------
The Borrower hereby authorizes and directs each Person whose preparation or
delivery to the Agent or any Bank of any opinion, report or other Information is
a condition or covenant under the Loan Documents (including under Article 2 or
this Article 5) to so prepare or deliver such Information for the benefit of the
Agent or such Bank.
ARTICLE 6
---------
DEFAULT
-------
Section 6.01 Events of Default.
-----------------
Each of the following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or involuntary, or
within or without the control of the Borrower or any Guarantor, or be effected
by operation of law or pursuant to any judgment or order of any court or any
order, rule or regulation of any governmental or nongovernmental body:
23
(a) Any payment of principal of or interest on any of the Loans or the
Notes, of the commitment fee payable pursuant to Section 1.08 or of any fee
payable to the Agent or any of its Affiliates shall not be made when and as due
(whether at maturity, by reason of notice of prepayment or acceleration or
otherwise) and in accordance with the terms of this Agreement and the Note and,
except in the case of payments of principal, such failure shall continue for
four Business Days from the earlier of (1) the date that the Borrower knew or in
the exercise of normal business prudence should have known of and (2) the date
that the Borrower was given notice of, such non-payment;
(b) Any Loan Document Representation and Warranty shall at any time prove
to have been incorrect or misleading in any material respect when made;
(c)(i) The Borrower shall default in the performance or observance of:
(A) any term, covenant, condition or agreement contained in Section
4.01(a) (insofar as such Section requires the preservation of the corporate
existence of the Borrower), 4.01(e), 4.03 through 4.05, 4.08 through 4.10,
4.12 through 4.16, 4.18, 5.01(e)(i) or 5.03(b);
(B) any term, covenant, condition or agreement contained in Section
4.06, 4.07, 4.11 or 4.17 and, if capable of being remedied, such default
shall continue unremedied for a period of 10 days; or
(C) any term, covenant, condition or agreement contained in this
Agreement (other than a term, covenant, condition or agreement a default in
the performance or observance of which is elsewhere in this Section
specifically dealt with) and, if capable of being remedied, such default
shall continue unremedied for a period of 30 days from the earlier of (1)
the date that the Borrower knew or in the exercise of normal business
prudence should have known of and (2) the date that the Borrower was given
notice of, such default; or
(ii) Any Loan Party that is a party to a Subordination Agreement shall
default in the performance or observance of any term, covenant, condition or
agreement contained therein;
(d)(i) The Borrower, any Guarantor or, subject to the proviso to this
Section 6.01(d), any Affiliate, shall fail to pay, in accordance with its terms
--------------
and when due and payable, any of the principal of or interest on any of its
Indebtedness (other than the Loans) having a then outstanding principal amount
in excess of $15,000,000, (ii) the maturity of any such Indebtedness shall, in
whole or in part, have been accelerated, or any such Indebtedness shall, in
whole or in part, have been required to be prepaid prior to the stated maturity
thereof, in accordance with the provisions of any Contract evidencing, providing
for the creation of or concerning such Indebtedness, or (iii) (A) any event
shall have occurred and be continuing that permits (or, with the passage of time
or the giving of notice or both, would permit) any holder or holders of such
Indebtedness, any trustee or agent acting on behalf of such holder or holders or
any other Person so to accelerate such maturity or require any such prepayment
and (B) if the Contract evidencing, providing for the creation of or concerning
such Indebtedness provides for
24
a cure period for such event, such event shall not be cured prior to the end of
such cure period; provided that this Section 6.01(d) shall not apply to any
--------
Indebtedness of an Affiliate (other than the Kingston Contingent Obligation),
unless such Affiliate has granted to the Person to whom such Indebtedness is
owed a Lien on Affiliate Indebtedness;
(e) The Borrower or any Guarantor shall fail, subject to the proviso to
this Section 6.01(e), to pay in accordance with its terms and when due and
payable, any of the principal of, interest on or other amount payable in respect
of any Guaranteed Obligations (other than a payment of principal of, interest
on, or other amount payable in respect of a Guaranteed Obligation which is
elsewhere in this Section specifically dealt with), and such Guaranteed
Obligation shall remain unpaid for a period of 30 days from the earlier of (i)
the date that the Borrower or such Guarantor knew or in the exercise of normal
business prudence should have known of and (ii) the date that the Borrower or
such Guarantor was given notice of, such non-payment; provided that this Section
6.01(e) shall not apply to any payment that is the subject of a good faith
contest as to the fact or the amount of liability and as to which adequate
reserves determined in accordance with Generally Accepted Accounting Principles
have been established on the books of the Person that has failed to make such
payment;
(f) (i) The Borrower or any Guarantor shall (A) commence a voluntary case
under the Federal bankruptcy laws (as now or hereafter in effect), (B) file a
petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, (C) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case under
such bankruptcy laws or other laws, (D) apply for, or consent to, or fail to
contest in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, liquidator or the like of itself
or of a substantial part of its assets, domestic or foreign, (E) admit in
writing its inability to pay, or generally not be paying, its debts (other than
those that are the subject of bona fide disputes) as they become due, (F) make a
general assignment for the benefit of creditors or (G) take any corporate action
for the purpose of effecting any of the foregoing;
(ii) (A) A case or other proceeding shall be commenced against the Borrower
or any Guarantor seeking (1) relief under the federal bankruptcy laws of the
United States of America (as now or hereafter in effect) or under any other
laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts or (2) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Borrower or any
Guarantor, or of all or any substantial part of the assets, domestic or foreign,
of the Borrower or any Guarantor, and such case or proceeding shall continue
undismissed and unstayed for a period of 60 days or (B) an order granting the
relief requested in such case or proceeding against the Borrower or any
Guarantor (including an order for relief under such federal bankruptcy laws of
the United States of America) shall be entered;
(g) A judgment or order shall be entered against the Borrower or any
Guarantor by any court, and (i) in the case of a judgment or order for the
payment of money, either (A) such judgment or order shall continue undischarged
and unstayed for a period of 30 days in which the aggregate amount (determined
in accordance with the proviso to this Section 6.01(g)) of all such judgments
and orders exceeds $15,000,000 or (B) enforcement proceedings shall have been
25
commenced upon such judgment or order and (ii) in the case of any judgment or
order for other than the payment of money, such judgment or order could,
together with all other such judgments or orders, reasonably be expected to have
a Materially Adverse Effect on the Borrower and the Guarantors taken as a whole;
provided that clause (i) of this Section 6.01(g) shall not apply to the amount
of any judgment or order for the payment of money equal to the amount that a
financially responsible insurer has acknowledged is payable under a policy of
insurance issued by it to the Borrower or such Guarantor, as the case may be,
insuring against the claim that was the basis for such judgment or order;
(h) (i) any Termination Event shall occur with respect to any Benefit Plan
of the Borrower, any Guarantor or any of their respective ERISA Affiliates, (ii)
any Accumulated Funding Deficiency, whether or not waived, shall exist with
respect to any such Benefit Plan, (iii) any Person shall engage in any
Prohibited Transaction involving any such Benefit Plan, (iv) the Borrower, any
Guarantor or any of their respective ERISA Affiliates shall be in "default" (as
defined in ERISA Section 4219(c)(5)) with respect to payments owing to any such
Benefit Plan that is a Multiemployer Benefit Plan as a result of such Person's
complete or partial withdrawal (as described in ERISA Section 4203 or 4205)
therefrom, (v) the Borrower, any Guarantor or any of their respective ERISA
Affiliates shall fail to pay when due an amount that is payable by it to the
PBGC or to any such Benefit Plan under Title IV of ERISA, (vi) a proceeding
shall be instituted by a fiduciary of any such Benefit Plan against the
Borrower, any Guarantor or any of their respective ERISA Affiliates to enforce
ERISA Section 515 and such proceeding shall not have been dismissed within 30
days thereafter, or (vii) any other event or condition shall occur or exist with
respect to any such Benefit Plan, except that no event or condition referred to
in clauses (i) through (vii) shall constitute an Event of Default if it,
together with all other such events or conditions at the time existing, has not
subjected, and in the reasonable determination of the Agent will not subject,
the Borrower or any Guarantor to any Liability that, alone or in the aggregate
with all such Liabilities for all such Persons, exceeds $5,000,000;
(i) (a) Any Loan Party, any payee of any Subordinated Indebtedness or any
Affiliate of any Loan Party or any such payee asserts, or any Loan Party, any
payee of any Subordinated Indebtedness or any Affiliate of any Loan Party or any
such payee or any other Person institutes any proceeding that could reasonably
be expected to establish that (x) any provision of the Loan Documents is
invalid, not binding or unenforceable or (y) the Guaranty of the Borrower or any
Guarantor is limited in amount pursuant to Section 9.02 hereof;
(b) any Subordination Agreement or any guaranty under Article 9 shall,
without the prior written consent of the Banks, cease to be in full force and
effect;
(j) SOFTBANK Corp. shall at any time beneficially own, directly or
indirectly, less than 100% of the issued and outstanding shares of the
Borrower's Capital Securities minus Capital Securities of the Borrower issued by
the Borrower pursuant to, or upon exercise of any Capital Securities issued
pursuant to, a Permitted Stock Option Plan; or
(k) ▇▇▇▇▇▇▇▇▇ ▇▇▇ or the executor or administrator of the estate of
▇▇▇▇▇▇▇▇▇ ▇▇▇ shall at any time cease to control, directly or indirectly,
SOFTBANK Corp., and for this purpose "control" shall mean the power, through the
ownership of Capital Securities, to cause the direction of the management
policies of SOFTBANK Corp.
26
Section 6.02 Remedies upon Event of Default.
------------------------------
During the continuance of any Event of Default (other than one specified in
Section 6.01(f)) and in every such event, the Agent, upon notice to the
Borrower, may do either or both of the following: (a) declare, in whole or,
from time to time, in part, the principal of and interest on the Loans and the
Notes and all other amounts owing under the Borrower Loan Documents to be, and
the Loans and the Notes and all such other amounts shall thereupon and to that
extent become, due and payable and (b) terminate, in whole or, from time to
time, in part, the Commitments. Upon the occurrence of an Event of Default
specified in Section 6.01(f), automatically and without any notice to the
Borrower, (a) the principal of and interest on the Loans and the Notes and all
other amounts owing under the Borrower Loan Documents shall be due and payable
and (b) the Commitments shall terminate. Presentment, demand, protest or notice
of any kind (other than the notice provided for in the first sentence of this
Section 6.02) are hereby expressly waived.
ARTICLE 7
---------
ADDITIONAL CREDIT FACILITY PROVISIONS
-------------------------------------
Section 7.01 Mandatory Suspension and Conversion of Eurodollar Rate Loans.
------------------------------------------------------------
Each Banks' obligations to make, continue or convert into Eurodollar Rate
Loans of any Type shall be suspended, all outstanding Loans of that Type shall
be converted on the last day of their applicable Interest Periods (or, if
earlier, in the case of clause (b) below, on the last day the Bank may lawfully
continue to maintain Loans of that Type or, in the case of clause (c) below, on
the day determined by such Bank to be the last Business Day before the effective
date of the applicable restriction) into, and all pending requests for the
making or continuation of or conversion into Loans of such Type shall be deemed
requests for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a Eurodollar
Rate Loan of that Type for any Interest Period, such Bank determines that for
any reason appropriate quotations are not available to it (including, in the
case of the Eurodollar Rate, quotations in the London interbank market for
deposits with it) for purposes of determining the Eurodollar Rate for such
Interest Period or that such rate would not accurately reflect the cost to such
Bank of making, continuing or converting into a Eurodollar Rate Loan of such
Type for such Interest Period;
(b) at any time such Bank determines that any Regulatory Change Enacted
after the Effective Date makes it unlawful or impracticable for the Bank or the
applicable Lending Office to make, continue or convert into any Eurodollar Rate
Loan of that Type, or to comply with its obligations hereunder in respect
thereof; or
(c) such Bank determines that, by reason of any Regulatory Change Enacted
after the Effective Date, the Bank or the applicable Lending Office is
restricted, directly or indirectly, in the amount that it may hold of (i) a
category of liabilities that includes deposits by reference to which, or on the
basis of which, the interest rate applicable to Eurodollar Rate Loans of that
Type is directly or indirectly determined or (ii) the category of assets that
includes Eurodollar Rate Loans of that Type.
27
Such Bank shall promptly notify the Borrower of any circumstance that would
make the provisions of this Section 7.01 applicable, but the failure to give any
such notice shall not affect such Bank's rights hereunder.
Section 7.02 Regulatory Changes.
------------------
If in the determination of any Bank (a) any Regulatory Change Enacted after
the Effective Date shall directly or indirectly (i) reduce the amount of any sum
received or receivable by such Bank with respect to any Loan or the return to be
earned by such Bank on such Loan, (ii) impose a cost on such Bank or any
Affiliate of such Bank that is attributable to the making, funding or
maintaining of, or such Bank's commitment to make, any Loan or to purchase a
participation in any Swing Loan, (iii) require such Bank or any Affiliate of
such Bank to make any payment on or calculated by reference to the gross amount
of any amount received by such Bank under any Loan Document or (iv) reduce, or
have the effect of reducing, the rate of return on any capital of such Bank or
any Affiliate of such Bank that such Bank or such Affiliate is required to
maintain on account of any Loan or such Bank's commitment to make any Loan or to
purchase a participation in any Swing Loan and (b) such reduction, increased
cost or payment shall not be fully compensated for by an adjustment in the
applicable rates of interest payable under the Loan Documents, then the Borrower
shall pay to such Bank such additional amounts as such Bank determines will,
together with any adjustment in the applicable rates of interest payable
hereunder, fully compensate for such reduction, increased cost or payment. Such
additional amounts shall be payable, in the case of those applicable to prior
periods, within 15 days after request by such Bank for such payment and, in the
case of those applicable to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank. Each Bank will
promptly notify the Borrower of any determination made by it referred to in
clauses (a) and (b) above, but the failure to give such notice shall not affect
such Bank's right to compensation.
Section 7.03 Capital Requirements.
--------------------
If, in the determination of any Bank, such Bank or any Affiliate of such
Bank is required, as a result of any Regulatory Change Enacted after the
Effective Date, to maintain capital on account of any Loan or such Bank's
commitment to make any Loan or to purchase a participation in any Swing Loan,
then, upon request by such Bank, the Borrower shall from time to time thereafter
pay to such Bank such additional amounts as such Bank determines will fully
compensate for any reduction in the rate of return on the capital that such Bank
or such Affiliate is so required to maintain on account of such Loan or
commitment suffered as a result of such capital requirement. Such additional
amounts shall be payable, in the case of those applicable to prior periods,
within 15 days after request by such Bank for such payment and, in the case of
those relating to future periods, on the dates specified, or determined in
accordance with a method specified, by such Bank.
Section 7.04 Funding Losses.
--------------
The Borrower shall pay to each Bank, upon request, such amount or amounts
as such Bank determines are necessary to compensate it for any loss, cost or
expense incurred by it as a result of (a) in the case of Eurodollar Rate Loans,
(i) any payment, prepayment or conversion of a Eurodollar Rate Loan on a date
other than the last day of an Interest Period for such Eurodollar Rate Loan or
(ii) a Eurodollar Rate Loan for any reason not being made or converted, or any
payment of principal thereof or interest thereon not being made, on the date
therefor determined in accordance with the applicable provisions of this
Agreement, and (b) in the case of Agreed Rate Loans, (i) any payment or
prepayment of an Agreed Rate Loan on a date other than the last day of an Agreed
Rate Interest Period or (ii) an Agreed Rate
28
Loan for any reason not being made, or any payment of principal thereof or
interest thereon not being made, on the date required therefor determined in
accordance with the applicable provisions of this Agreement, including any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or conversion or
failure to borrow, convert, continue or prepay.
Section 7.05 Certain Determinations.
----------------------
In making the determinations contemplated by Sections 7.01, 7.02, 7.03 and
7.04, each Bank may make such estimates, assumptions, allocations and the like
that such Bank in good faith determines to be appropriate, and each Bank's
selection thereof in accordance with this Section 7.05, and the determinations
made by such Bank on the basis thereof, shall be final, binding and conclusive
upon the Borrower, except, in the case of such determinations, for manifest
errors in computation or transmission. Each Bank shall furnish to the Borrower
upon request a certificate outlining in reasonable detail the computation of any
amounts claimed by it under Sections 7.02, 7.03 and 7.04 and the assumptions
underlying such computations.
Section 7.06 Change of Lending Office.
------------------------
If an event occurs with respect to a Lending Office that obligates the
Borrower to pay any amount under Section 1.13, makes operable the provisions of
clause (b) or (c) of Section 7.01 or entitles any Bank to make a claim under
Section 1.13(a), 7.02 or 7.03, such Bank shall, if requested by the Borrower,
use reasonable efforts to designate another Lending Office or Offices the
designation of which will reduce the amount the Borrower is so obligated to pay,
eliminate such operability or reduce the amount such Bank is so entitled to
claim, provided that such designation would not, in the sole and absolute
discretion of such Bank, be disadvantageous to such Bank in any manner or
contrary to Bank policy. Each Bank may at any time and from time to time change
any Lending Office and shall give notice of any such change to the Borrower.
Except in the case of a change in Lending Offices made at the request of the
Borrower, the designation of a new Lending Office by any Bank shall not obligate
the Borrower to pay any amount to such Bank under Section 1.13, make operable
the provisions of clause (b) or (c) of Section 7.01 or entitle the Bank to make
a claim under Section 1.13(a), 7.02 or 7.03 if such obligation, the operability
of such clause or such claim results solely from such designation and not from a
Regulatory Change Enacted thereafter.
ARTICLE 8
---------
THE AGENT
---------
Section 8.01 Appointment and Powers.
----------------------
Each Bank hereby irrevocably appoints and authorizes the Agent, and the
Agent hereby agrees, to act as the agent for such Bank under the Loan Documents
with such powers as are delegated to the Agent by the terms thereof, together
with such other powers as are reasonably incidental thereto. The Agent's duties
shall be purely ministerial and it shall have no duties or responsibilities
except those expressly set forth in the Loan Documents. The Agent shall not be
required under any circumstances to take any action that, in its judgment, (a)
is contrary to any provision of the Loan Documents or Applicable Law or (b)
would expose it to any Liability or expense against which it has not been
indemnified to its satisfaction. The Agent shall not, by reason of its serving
as the Agent, be a trustee or other fiduciary for any Bank.
29
Section 8.02 Limitation on Agent's Liability.
-------------------------------
Neither the Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or them under or in connection with the Loan Documents, except for its or their
own gross negligence, willful misconduct or knowing violations of law. The
Agent shall not be responsible to any Bank for (a) any recitals, statements,
representations or warranties contained in the Loan Documents or in any
certificate or other document referred to or provided for in, or received by any
of the Banks under, the Loan Documents, (b) the validity, effectiveness or
enforceability of the Loan Documents or any such certificate or other document
or (c) any failure by the Loan Parties to perform any of their obligations under
the Loan Documents. The Agent may employ agents and attorneys-in-fact and shall
not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact so long as the Agent was not grossly negligent in selecting or
directing such agents or attorneys-in-fact. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telecopier, telegram or cable) believed by it to be genuine
and correct and to have been signed or given by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. As to any matters not
expressly provided for by the Loan Documents, the Agent shall in all cases be
fully protected in acting, or in refraining from acting, under the Loan
Documents in accordance with instructions signed by the Required Banks, and such
instructions of the Required Banks and any action taken or failure to act
pursuant thereto shall be binding on all of the Banks.
Section 8.03 Defaults.
--------
The Agent shall not be deemed to have knowledge of the occurrence of a
Default (other than the non-payment to it of principal of or interest on Loans
or fees) unless the Agent has received notice from a Bank or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Agent has knowledge of such a non-payment or receives such
a notice of the occurrence of a Default, the Agent shall give prompt notice
thereof to the Banks. In the event of any Default, the Agent shall (a) in the
case of a Default that constitutes an Event of Default, take either or both of
the actions referred to in clauses (a) and (b) of the first sentence of Section
6.02 if so directed by the Required Banks and (b) in the case of any Default,
take such other action with respect to such Default as shall be reasonably
directed by the Required Banks. Unless and until the Agent shall have received
such directions, in the event of any Default, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interests of the Banks.
Section 8.04 Rights as a Bank.
----------------
Each Person acting as the Agent that is also a Bank shall, in its capacity
as a Bank, have the same rights and powers under the Loan Documents as any other
Bank and may exercise the same as though it were not acting as the Agent, and
the term "Bank" or "Banks" shall include such Person in its individual capacity.
Each Person acting as the Agent (whether or not such Person is a Bank) and its
Affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with the Loan Parties and their Affiliates as if it were not acting as
the Agent, and such Person and its Affiliates may accept fees and other
consideration from the Loan Parties and their Affiliates for services in
connection with the Loan Documents or otherwise without having to account for
the same to the Banks.
30
Section 8.05 Indemnification.
---------------
The Banks agree to indemnify the Agent (to the extent not reimbursed by the
Loan Parties under the Loan Documents), ratably on the basis of the respective
aggregate principal amounts of the Exposures of the Banks (or, if no Exposures
are at the time outstanding, ratably on the basis of their respective
Commitments), for any and all Liabilities, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the Agent
(including the costs and expenses that the Loan Parties are obligated to pay
under the Loan Documents) in any way relating to or arising out of the Loan
Documents or any other documents contemplated thereby or referred to therein or
the transactions contemplated thereby or the enforcement of any of the terms
thereof or of any such other documents, provided that no Bank shall be liable
for any of the foregoing to the extent (a) they are subject to the indemnity
contemplated by the last sentence of Section 10.10(b) or (b) they arise from
gross negligence, willful misconduct or knowing violations of law by the Agent.
Section 8.06 Non-Reliance on Agent and Other Banks.
-------------------------------------
Each Bank agrees that it has made and will continue to make, independently
and without reliance on the Agent or any other Bank, and based on such documents
and information as it deems appropriate, its own credit analysis of the Loan
Parties and its own decision to enter into the Loan Documents and to take or
refrain from taking any action in connection therewith. The Agent shall not be
required to keep itself informed as to the performance or observance by the Loan
Parties of the Loan Documents or any other document referred to or provided for
therein or to inspect the properties or books of any Loan Party or any
Subsidiary thereof. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent under
the Loan Documents, the Agent shall have no obligation to provide any Bank with
any information concerning the business, status or condition of any Loan Party
or any Subsidiary thereof or the Loan Documents that may come into the
possession of the Agent or any of its Affiliates.
Section 8.07 Execution and Amendment of Loan Documents on Behalf of the
----------------------------------------------------------
Banks.
-----
Each Bank hereby authorizes the Agent to execute and deliver, in the name
of and on behalf of such Bank, any Loan Document requiring execution by or on
behalf of such Bank.
Section 8.08 Resignation of the Agent.
------------------------
The Agent may at any time give notice of its resignation to the Banks and
the Borrower. Upon receipt of any such notice of resignation, the Required
Banks may, after consultation with the Borrower, appoint a successor Agent. If
no successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within 30 days after the retiring Agent's giving
of notice of resignation, then the retiring Agent may, on behalf of the Banks
and after consultation with the Borrower, appoint a successor Agent. Upon the
acceptance by any Person of its appointment as a successor Agent, such Person
shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Agent and the retiring Agent
shall be discharged from its duties and obligations as Agent under the Loan
Documents. After any retiring Agent's resignation as Agent, the provisions of
this Article 8 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent.
31
ARTICLE 9
---------
GUARANTEES
----------
Section 9.01 Guaranty of Payment.
-------------------
The Borrower and each of the Guarantors hereby (a) guarantees to each Bank
and each holder of a Note the due and punctual payment of all of the Guaranteed
Obligations (other than those that constitute Liabilities of such Guarantor) in
accordance with their respective terms and when and as due (whether at maturity,
by reason of acceleration or otherwise), or deemed to be due pursuant to Section
9.03, and (b) agrees so to pay the same when so due, or deemed to be due, upon
demand.
Section 9.02 Limitation on Guaranty.
----------------------
It is the intention of the Borrower, each of the Guarantors and the Banks
that the obligations of the Borrower and each such Guarantor hereunder shall be
in, but not in excess of, the maximum amount permitted by Applicable Law. To
that end, but only to the extent such obligations would otherwise be void,
voidable or otherwise unenforceable, the obligations of the Borrower and each
such Guarantor hereunder shall be limited to the maximum amount that would not
make such obligations void, voidable or otherwise unenforceable. This Section
9.02 is intended solely to preserve the rights of each Bank and each holder of a
Note hereunder to the maximum extent permitted by Applicable Law, and neither
the Borrower, any Guarantor nor any other Person shall have any right under this
Section 9.02 that it would not otherwise have under Applicable Law.
Section 9.03 Continuance and Acceleration of Guaranteed Obligations upon
-----------------------------------------------------------
Certain Events.
--------------
If:
(a) any Event of Default that this Agreement states is to result in the
automatic acceleration of any Guaranteed Obligations shall occur;
(b) any injunction, stay or the like that enjoins any acceleration, or
demand for the payment of any Guaranteed Obligations that would otherwise be
required or permitted hereunder shall become effective; or
(c) any Guaranteed Obligations shall be or be determined to be or become
discharged, disallowed, invalid, illegal, void or otherwise unenforceable
(whether by operation of any present or future law or by order of any court or
governmental agency) against the Borrower; then (i) such Guaranteed Obligations
shall, for all purposes hereof, be deemed (A) in the case of clause (c), to
continue to be outstanding and in full force and effect notwithstanding the
unenforceability thereof against the Borrower and (B) if such is not already the
case, to have thereupon become immediately due and payable and, if subject
thereto, to have commenced bearing interest at the Post-Default Rate and (ii)
such Bank or other holder of a Note to which such Guaranteed Obligations are
owing may, with respect to such Guaranteed Obligations, exercise all of the
rights and remedies under the Borrower Loan Documents that would be available to
them during an Event of Default.
Section 9.04 Recovered Payments.
------------------
The Guaranteed Obligations shall be deemed not to have been paid, and the
Borrower's and each Guarantor's obligations hereunder in respect thereof shall
continue and not be discharged, to the extent that any payment thereof by the
32
Borrower or any other guarantor, or out of the proceeds of any collateral, is
recovered from or paid over by or for the account of any Bank or other holder of
a Note for any reason, including as a preference or fraudulent transfer or by
virtue of any subordination (whether present or future or contractual or
otherwise) of the Guaranteed Obligations, whether such recovery or payment over
is effected by any judgment, decree or order of any court or governmental
agency, by any plan of reorganization or by settlement or compromise by such
Bank or other holder of a Note (whether or not consented to by the Borrower, any
Guarantor or any other guarantor) of any claim for any such recovery or payment
over. The Borrower and each Guarantor hereby expressly waives the benefit of
any applicable statute of limitations and agrees that it shall be liable
hereunder with respect to any Guaranteed Obligation whenever such a recovery or
payment over thereof occurs.
Section 9.05 Evidence of Guaranteed Obligations.
----------------------------------
The records of the Agent and each Bank or other holder of a Note shall be
conclusive evidence of the Guaranteed Obligations owing to it and of all
payments in respect thereof.
Section 9.06 Binding Nature of Certain Adjudications.
---------------------------------------
The Borrower and each Guarantor shall be conclusively bound by the
adjudication in any action or proceeding, legal or otherwise, involving any
controversy arising under, in connection with, or in any way related to, any of
the Guaranteed Obligations, and by a judgment, award or decree entered therein.
Section 9.07 Nature of Guarantor's Obligations.
---------------------------------
The Borrower's and each Guarantor's obligations hereunder (a) are absolute
and unconditional, (b) are unlimited in amount except as provided in Section
9.02, (c) constitute a guaranty of payment and not a guaranty of collection, (d)
are as primary obligor and not as a surety only, (e) shall be a continuing
guaranty of all present and future Guaranteed Obligations and all promissory
notes and other documentation given in extension or renewal or substitution for
any of the Guaranteed Obligations and (f) shall be irrevocable.
Section 9.08 No Release of Guarantor.
-----------------------
THE OBLIGATIONS OF THE BORROWER AND EACH GUARANTOR UNDER THIS ARTICLE 9
SHALL NOT BE REDUCED, LIMITED OR TERMINATED, NOR SHALL THE BORROWER OR SUCH
GUARANTOR BE DISCHARGED FROM ANY THEREOF, FOR ANY REASON WHATSOEVER (other than,
subject to Section 9.04, the payment of the Guaranteed Obligations), including
(and whether or not the same shall have occurred or failed to occur once or more
than once and whether or not the Borrower or such Guarantor shall have received
notice thereof) ANY ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR CIRCUMSTANCE
THAT (i) VARIES THE RISK OF THE BORROWER OR SUCH GUARANTOR HEREUNDER OR (ii) BUT
FOR THE PROVISIONS HEREOF, WOULD, AS A MATTER OF STATUTE OR RULE OF LAW OR
EQUITY, OPERATE TO REDUCE, LIMIT OR TERMINATE THE OBLIGATIONS OF THE BORROWER OR
SUCH GUARANTOR HEREUNDER OR DISCHARGE THE BORROWER OR SUCH GUARANTOR FROM ANY
THEREOF.
Section 9.09 Certain Waivers.
---------------
The Borrower and each Guarantor waives ALL DEFENSES UNDER APPLICABLE LAW
THAT WOULD, BUT FOR THIS SECTION 9.09, BE AVAILABLE TO THE BORROWER OR SUCH
GUARANTOR AS A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS OBLIGATIONS
HEREUNDER.
33
Section 9.10 Additional Guarantors.
---------------------
Any Wholly Owned Subsidiary may become a party hereto as a Guarantor by
executing and delivering to the Agent a Guarantor Supplement in the form of
Schedule 9.10. Such Wholly Owned Subsidiary shall thereafter be a Guarantor for
-------------
all purposes hereof.
ARTICLE 10
----------
MISCELLANEOUS
-------------
Section 10.01 Notices and Deliveries.
----------------------
(a) Manner of Delivery.
------------------
All notices, communications and materials (including all Information)
to be given or delivered pursuant to the Borrower Loan Documents shall, except
in those cases where giving notice by telephone is expressly permitted, be given
or delivered in writing (which shall include telecopy transmissions). Notices
under Sections 1.02, 1.03(c), 1.05, 1.07 and 6.02 may be by telephone, promptly,
in the case of each notice other than one under Section 6.02, confirmed in
writing. In the event of a discrepancy between any telephonic notice and any
written confirmation thereof, such written confirmation shall be deemed the
effective notice except to the extent that the Agent or the Swing Line Bank has
acted in reliance on such telephonic notice.
(b) Addresses.
---------
All notices, communications and materials to be given or delivered
pursuant to the Borrower Loan Documents shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
(i) if to the Borrower, to it at:
SOFTBANK Holdings Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and
▇▇▇▇-▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
34
with a copy to:
ZD COMDEX and Forums, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(ii) if to the Agent, to it at:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇/8595
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy of each Notice of Borrowing under Section 1.02(a) or
under Section 1.02(b) to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to any Guarantor, to it at the address for notices listed on
Schedule 10.01 or such Guarantor's Guarantor Supplement;
--------------
(iv) if to any Bank, to it at the address or telex, telecopier or
telephone number and to the attention of the individual or
department, set forth below such Bank's name under the heading
"Notice Address" on Annex A or, in the case of a Bank that
becomes a Bank pursuant to an assignment, set forth under the
heading "Notice Address" in the Notice of Assignment given to
the Borrower and the Agent with respect to such assignment;
(v) if to the Swing Line Bank, if the Swing Line Bank is at such
time (A) the Bank that is the Agent, to it at the address of the
Agent or (b) any other Bank, to it at the address of such Bank;
or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify
35
for the purpose in a notice specifically captioned "Notice of Change of
Address," given to (w) if the party to which such information pertains is the
Borrower, the Agent, the Swing Line Bank and each Bank, (x) if the party to
which such information pertains is the Agent, the Borrower, the Swing Line Bank
and each Bank, (y) if the party to which such information pertains is a Bank,
the Borrower, the Swing Line Bank and the Agent and (z) if the party to which
such information pertains is the Swing Line Lender, the Borrower, the Agent and
each Bank.
(c) Effectiveness.
-------------
Each notice and communication and any material to be given or
delivered pursuant to the Borrower Loan Documents shall be deemed so given or
delivered (i) if sent by registered or certified mail, postage prepaid, return
receipt requested, on the third Business Day after such notice, communication or
material, addressed as above provided, is delivered to a United States post
office and a receipt therefor is issued thereby, (ii) if sent by any other means
of physical delivery, when such notice, communication or material is delivered
to the appropriate address as above provided, (iii) if sent by telecopier, when
such notice, communication or material is transmitted to the appropriate
telecopier number as above provided and is received at such number and (iv) if
given by telephone, when communicated to the individual or any member of the
department specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered, or, in the case of
notice by the Agent to the Borrower under Section 6.02 given by telephone as
above provided, if any individual or any member of the department to whose
attention notices, communications and materials are to be given or delivered is
unavailable at the time, to any other officer or employee of the Borrower,
except that (x) notices of a change of address, telecopier or telephone number
or individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be deemed given until received
and (y) notices, communications and materials to be given or delivered to the
Agent or any Bank pursuant to Sections 1.02, 1.03(c), 1.05, 1.07 and 1.12(b) and
Article 5 shall not be deemed given or delivered until received by the officer
of the Agent or such Bank responsible, at the time, for the administration of
the Loan Documents.
(d) Reasonable Notice.
-----------------
Any requirement under Applicable Law of reasonable notice by the Agent
or the Banks to the Borrower or a Guarantor of any event in connection with, or
in any way related to, the Loan Documents or the exercise by the Agent or the
Banks of any of their rights thereunder shall be met if notice of such event is
given to the Borrower or such Guarantor in the manner prescribed above at least
10 days before (i) the date of such event or (ii) the date after which such
event will occur.
Section 10.02 Expenses; Indemnification.
-------------------------
Whether or not any Loans are made hereunder, the Borrower shall:
(a) pay or reimburse the Agent and each Bank for all transfer,
documentary, stamp and similar taxes, and all recording and filing fees and
taxes, payable in connection with, arising out of, or in any way related to, the
execution, delivery and performance of the Loan Documents or the making of the
Loans;
(b) pay or reimburse the Agent for all costs and expenses (including
reasonable fees and disbursements of legal counsel), incurred by the Agent in
connection with, arising out of, or in any way related to (i) the negotiation,
preparation, execution and delivery of (A) the
36
Loan Documents and (B) whether or not executed, any waiver, amendment or consent
thereunder or thereto, (ii) (A) the protection, preservation, exercise or
enforcement of any of rights of the Agent or the Banks under or related to the
Loan Documents or (B) the performance of any of their obligations under or
related to the Loan Documents; and
(c) pay or reimburse each Bank for all costs and expenses (including fees
and disbursements of legal counsel and other experts employed or retained by
such Bank) incurred by such Bank, in connection with, arising out of, or in any
way related to (i) the negotiation, preparation, execution and delivery of (A)
the Loan Documents and (B) whether or not executed, any waiver, amendment or
consent thereunder or thereto; and
(d) indemnify and hold each Indemnified Person harmless from and against
all losses (including judgments, penalties and fines) suffered, and pay or
reimburse each Indemnified Person for all costs and expenses (including fees and
disbursements of legal counsel and other experts employed or retained by such
Indemnified Person) incurred, by such Indemnified Person in connection with,
arising out of, or in any way related to (i) any Loan Document Related Claim
(whether asserted by such Indemnified Person or the Borrower or any other
Person), including the prosecution or defense thereof and any litigation or
proceeding with respect thereto (whether or not, in the case of any such
litigation or proceeding, such Indemnified Person is a party thereto), or (ii)
any investigation, governmental or otherwise, arising out of, related to, or in
any way connected with, the Loan Documents or the relationships established
thereunder, except that the foregoing indemnity shall not be applicable to any
loss suffered by any Indemnified Person to the extent such loss is determined by
a judgment of a court that is binding on the Borrower and such Indemnified
Person, final and not subject to review on appeal, to be the result of acts or
omissions on the part of such Indemnified Person constituting (x) willful
misconduct or (y) knowing violations of law.
Section 10.03 Amounts Payable Due upon Request for Payment.
--------------------------------------------
All amounts payable by the Borrower under Section 10.02 and under the other
provisions of the Borrower Loan Documents shall, except as otherwise expressly
provided, be immediately due upon request for the payment thereof.
Section 10.04 Remedies of the Essence.
-----------------------
The various rights and remedies of the Agent and each of the Banks under
the Borrower Loan Documents are of the essence of those agreements, and the
Agent and each of the Banks shall be entitled to obtain a decree requiring
specific performance of each such right and remedy.
Section 10.05 Rights Cumulative.
-----------------
Each of the rights and remedies of the Agent and the Banks under the Loan
Documents shall be in addition to all of its other rights and remedies under the
Loan Documents and Applicable Law, and nothing in the Loan Documents shall be
construed as limiting any such rights or remedies.
Section 10.06 Disclosures.
-----------
The Agent and the Banks shall maintain the confidentiality of non-public
information regarding the Borrower, the Guarantors and their Affiliates received
pursuant to this Agreement and shall use such information only for the purposes
of analyzing the financial condition of the Borrower and the Guarantors and
their compliance with the terms and conditions of the Loan Documents; provided,
--------
however, that nothing herein shall prevent the
-------
37
Agent or the Banks from disclosing such information (i) to its officers,
directors, employees, attorneys, and accountants who have a need to know such
information in accordance with customary banking practices and who receive such
information having been made aware of the restrictions set forth in this Section
10.06, (ii) upon the order or other process of any court or administrative
agency or regulatory authority of competent jurisdiction, (iii) pursuant to any
requirement of Applicable Law, (iv) protecting, exercising or enforcing any of
its rights under the Loan Documents or (v) in the case of an assignment
permitted under Section 10.10, to any potential assignee so long as such Person
shall have been made aware of and agreed to abide by the restrictions set forth
in this Section 10.06.
Section 10.07 Amendments; Waivers.
-------------------
Any term, covenant, agreement or condition of the Borrower Loan Documents
may be amended, and any right under the Borrower Loan Documents may be waived,
if, but only if, such amendment or waiver is in writing and is signed by the
Required Banks and, if the rights and duties of the Agent or the Swing Line Bank
are affected thereby, by the Agent or the Swing Line Bank, as the case may be,
and, in the case of an amendment, by the Borrower; provided, however, that no
amendment or waiver shall be effective, unless in writing and signed by each
Bank affected thereby, to the extent it (A) changes the amount of such Bank's
Commitment, (B) reduces the principal of or the rate of interest on such Bank's
Loans or Note or the fees payable to such Bank hereunder, (C) postpones any date
fixed for any payment of principal of or interest on such Bank's Loans or Note
or the fees payable to such Bank hereunder or (D) amends Section 1.14, this
Section 10.07 or any other provision of this Agreement requiring the consent or
other action of all of the Banks. Unless otherwise specified in such waiver, a
waiver of any right under the Borrower Loan Documents shall be effective only in
the specific instance and for the specific purpose for which given. No election
not to exercise, failure to exercise or delay in exercising any right, nor any
course of dealing or performance, shall operate as a waiver of any right of any
Bank under the Borrower Loan Documents or Applicable Law, nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right of the Agent or any Bank under the
Borrower Loan Documents or Applicable Law.
Section 10.08 Set-Off; Suspension of Payment and Performance.
----------------------------------------------
The Agent and each Bank is hereby authorized by the Borrower and each
Guarantor, at any time and from time to time, without notice, during any Event
of Default, to set off against, and to appropriate and apply to the payment of,
the Liabilities of such Person under the Loan Documents (whether owing to the
Agent or such Bank or to any other Person that is the Agent or a Bank and
whether matured or unmatured, fixed or contingent or liquidated or unliquidated)
any and all Liabilities owing by the Agent or such Bank or any of its Affiliates
to such Person (whether payable in Dollars or any other currency, whether
matured or unmatured and, in the case of Liabilities that are deposits, whether
general or special, time or demand and however evidenced and whether maintained
at a branch or office located within or without the United States).
Section 10.09 Sharing of Recoveries.
---------------------
(a) Each Bank agrees that, if, for any reason, including as a result of
(i) the exercise of any right of counterclaim, set-off, banker's lien or
similar right, (ii) its claim in any applicable bankruptcy, insolvency or
other similar law being deemed secured by a Debt owed by it to any Loan Party,
including a claim deemed secured under Section 506 of the Bankruptcy Code, or
(iii) the allocation of payments by the Agent or any Loan Party in a manner
contrary to the provisions of Section 1.14, such Bank shall receive
38
payment of a proportion of the aggregate amount due and payable to it hereunder
(A) as principal of or interest on the RC Loans or (B) fees that is greater than
the proportion received by any other Bank in respect of the respective
aggregates of such amounts due and payable to such other Bank hereunder, then
the Bank receiving such proportionately greater payment shall purchase
participations (which it shall be deemed to have done simultaneously upon the
receipt of such payment) in the rights of the other Banks hereunder in such RC
Loans or fees, as the case may be, so that all such recoveries with respect to
such respective amounts due and payable hereunder (net of costs of collection)
shall be pro rata; provided, that if all or part of such proportionately greater
payment received by the purchasing Bank is thereafter recovered by or on behalf
of any Loan Party from such Bank, such purchases shall be rescinded and the
purchase prices paid for such participations shall be returned to such Bank to
the extent of such recovery, but without interest (unless the purchasing Bank is
required to pay interest on the amount recovered to the Person recovering such
amount, in which case the selling Bank shall be required to pay interest at a
like rate). The Borrower expressly consents to the foregoing arrangements and
agrees that any holder of a participation in any rights hereunder so purchased
or acquired pursuant to this Section 10.09(a) shall, with respect to such
participation be entitled to all of the rights of a Bank under Sections 7.02,
10.02 and 10.08 (subject to any condition imposed on a Bank hereunder with
respect thereto) and may exercise any and all rights of set-off with respect to
such participation as fully as though the Borrower were directly indebted to the
holder of such participation for Loans in the amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim, set-off,
banker's lien or similar right that it may have in respect of any Loan Party in
a manner so as to apportion the amount subject to such exercise, on a pro rata
basis, first, between (i) obligations of such Loan Party for amounts subject
to the sharing provisions of Section 10.09(a) and (ii) other Liabilities of such
Loan Party and, second, with respect to amounts allocated to obligations of such
Loan Party referred to in clause (i), between, first, to RC Loans and second,
participations in Swing Loans.
Section 10.10 Assignments and Participations.
------------------------------
(a) Assignments.
-----------
(i) Neither the Borrower nor any Guarantor may assign any of its rights or
obligations under the Borrower Loan Documents without the prior written consent
of each Bank, and no assignment of any such obligation shall release the
Borrower or such Guarantor therefrom unless each Bank, as applicable, shall have
consented to such release in a writing specifically referring to the obligation
from which the Borrower or such Guarantor is to be released.
(ii) Each Bank may from time to time assign any or all of its rights and
obligations under the Borrower Loan Documents to one or more Persons; provided
--------
that, except in the case of the grant of a security interest to a Federal
Reserve Bank (which may be made without condition or restriction), no such
assignment shall be effective unless (A) the assignment is consented to by the
Agent and, unless a Bankruptcy Default with respect to the Borrower or a
Guarantor exists, the Borrower and the Guarantors, (B) the assignment shall
involve the assignment of not less than $5,000,000 of the assignor Bank's
Commitment, (C) a Notice of Assignment with respect to the assignment, duly
executed by the assignor and the assignee, shall have been given to the Borrower
and the Agent and (D) except in the case of an assignment by the Bank that is
the Agent, the Agent shall have been paid an assignment fee of $3,500. Upon any
effective assignment, the assignee shall have all of the rights and shall be
obligated to
39
perform all of the obligations of a Bank; provided, however, that no assignee
-------- -------
shall be entitled to any amounts that would otherwise be payable to it with
respect to its assignment under Section 7.02 unless (x) such amounts are payable
in respect of a Regulatory Change Enacted after the date the applicable
assignment agreement was executed or (y) such amounts would have been payable to
the Bank that made such assignment if such assignment had not been made. In the
event of any effective assignment by a Bank, the Borrower shall, against (except
in the case of a partial assignment) receipt of the existing Note of the
assignor Bank, issue a new Note to the assignee Bank.
(b) Participation.
-------------
Each Bank may from time to time sell or otherwise grant participations
in any or all of its rights and obligations under the Borrower Loan Documents
without the consent of the Borrower, any Guarantor, the Agent or any other Bank.
In the event of any such grant by a Bank of a participation, such Bank's
obligations under the Loan Documents to the other parties thereto shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, and the Borrower, the Guarantors, the Agent and the other Banks may
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations thereunder. A Bank may not grant to any holder of
a participation the right to require such Bank to take or omit to take any
action under the Loan Documents, except that a Bank may grant to any such holder
the right to require such holder's consent to (i) reduce the principal of or
the rate of interest on such Bank's Loans or the fees payable to such Bank
hereunder, (ii) postpone any date fixed for any payment of principal or of
interest on such Bank's Loans or the fees payable to such Bank hereunder, (iii)
permit any Loan Party to assign any of its obligations under the Loan Documents
to any other Person or (iv) release any Guarantor from its obligations under
Article 9. Each holder of a participation in any rights under the Borrower Loan
Documents, if and to the extent the applicable participation agreement so
provides, shall, with respect to such participation, be entitled to all of the
rights of a Bank as fully as though it were a Bank under Sections 1.13, 7.02,
7.03, 10.02(d) and 10.07 (subject to any conditions imposed on a Bank hereunder
with respect thereto) and may exercise any and all rights of set-off with
respect to such participation as fully as though the Borrower were directly
indebted to the holder of such participation for Loans in the amount of such
participation; provided, however, that no holder of a participation shall be
entitled to any amounts that would otherwise be payable to it with respect to
its participation under Section 1.13 or 7.02 unless (x) such amounts are
payable in respect of a Regulatory Change Enacted after the date the applicable
participation agreement was executed or (y) such amounts would have been
payable to the Bank that granted such participation if such participation had
not been granted. Each Bank selling or granting a participation shall indemnify
the Borrower and the Agent for any Taxes and Liabilities that they may sustain
as a result of such Bank's failure to withhold and pay any Taxes applicable to
payments by such Bank to its participant in respect of such participation.
Section 10.11 Governing Law.
-------------
The rights and duties of the Borrower, the Guarantors, the Agent and the
Banks under this Agreement and the Notes (including matters relating to the
Maximum Permissible Rate) shall, pursuant to New York General Obligations Law
Section 5-1401, be governed by the law of the State of New York.
Section 10.12 Judicial Proceedings; Waiver of Jury Trial.
------------------------------------------
Any judicial proceeding brought against the Borrower or any Guarantor with
respect to any Loan Document Related Claim may be brought in any court of
competent jurisdiction in the City of New York, and, by
40
execution and delivery of this Agreement, the Borrower and each Guarantor (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
judgment rendered thereby in connection with any Loan Document Related Claim and
(b) irrevocably waives any objection it may now or hereafter have as to the
venue of any such proceeding brought in such a court or that such a court is an
inconvenient forum. The Borrower and each Guarantor hereby waives personal
service of process and consents that service of process upon it may be made by
certified or registered mail, return receipt requested, at its address specified
or determined in accordance with the provisions of Section 10.01(b), and service
so made shall be deemed completed on the third Business Day after such service
is deposited in the mail. Nothing herein shall affect the right of the Agent,
any Bank or any other Indemnified Person to serve process in any other manner
permitted by law or shall limit the right of the Agent, any Bank or any other
Indemnified Person to bring proceedings against the Borrower or any Guarantor in
the courts of any other jurisdiction. Any judicial proceeding by the Borrower or
any Guarantor against the Agent involving any Loan Document Related Claim shall
be brought only in a court located in the City and State of New York and in the
case of a Bank, the jurisdiction in which the Bank's principal United States
office is located. THE BORROWER, THE AGENT, THE SWING LINE BANK, EACH BANK AND
EACH GUARANTOR HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH
ANY OF THEM ARE PARTY INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.
Section 10.13 LIMITATION OF LIABILITY.
-----------------------
NEITHER THE AGENT NOR THE SWING LINE BANK NOR ANY OTHER INDEMNIFIED PERSON
SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE BORROWER AND EACH GUARANTOR
HEREBY WAIVE, RELEASE AND AGREE NOT TO ▇▇▇ FOR, ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL, AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, PUNITIVE,
DAMAGES SUFFERED BY THE BORROWER OR SUCH GUARANTOR IN CONNECTION WITH ANY LOAN
DOCUMENT RELATED CLAIM.
Section 10.14 Reference Banks.
---------------
The Reference Bank shall furnish to the Agent timely information for the
purpose of determining the Eurodollar Rate. If the Reference Bank shall notify
the Agent that thenceforth it shall not be able to furnish such information in a
timely manner or shall assign all of its Loans or Commitment to a Person that is
not an Affiliate of the Reference Bank, the Agent shall, with the consent of the
Required Banks and after consultation with the Borrower, appoint another Bank as
a Reference Bank in place of the Reference Bank.
Section 10.15 Severability of Provisions.
--------------------------
Any provision of the Borrower Loan Documents that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions thereof or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent permitted by Applicable Law,
the Borrower and each Guarantor hereby waive any provision of Applicable Law
that renders any provision of the Borrower Loan Documents prohibited or
unenforceable in any respect.
Section 10.16 Counterparts.
------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto were
upon the same instrument.
41
Section 10.17 Survival of Obligations.
-----------------------
Except as otherwise expressly provided therein, the rights and obligations
of the Borrower, the Guarantors, the Agent and the other Indemnified Persons
under the Borrower Loan Documents shall survive the Repayment Date; provided
--------
that, the obligations of the Guarantors under Article 9 shall be subject to the
proviso to the definition of Guaranteed Obligations.
Section 10.18 Entire Agreement.
----------------
This Agreement and the Notes embody the entire agreement between the
Borrower, the Guarantors, the Agent and the Banks relating to the subject matter
hereof and supersede all prior agreements, representations and understandings,
if any, relating to the subject matter hereof.
Section 10.19 Successors and Assigns.
----------------------
All of the provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
ARTICLE 11
----------
INTERPRETATION
--------------
Section 11.01 Defined Terms.
-------------
For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to that term in
------------------------------
Section 302 of ERISA.
"Adjusted Eurodollar Rate" means, for any Interest Period, a rate per annum
------------------------
(rounded upward, if necessary, to the next higher 1/16 of 1%) equal to the rate
obtained by dividing (a) the Eurodollar Rate for such Interest Period by (b) a
percentage equal to 1 minus the Reserve Requirement in effect from time to time
during such Interest Period.
"Affiliate" means, with respect to a Person, any other Person that,
---------
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower. For
purposes of this definition, the term "control" (including the correlative
meanings of the terms "controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of such
Person, whether through the ownership of securities or partnership or other
ownership interests or by contract or otherwise.
"Affiliate Indebtedness" means Indebtedness payable by the Borrower or any
----------------------
Guarantor to any Affiliate (other than the Borrower or a Guarantor).
"Agent" means The Bank of New York, as agent for the Banks under the Loan
-----
Documents, and any successor Agent appointed pursuant to Section 8.08.
"Agent's Office" means the address of the Agent specified in or determined
--------------
in accordance with the provisions of Section 10.01(b).
42
"Agreed Rate" means, for any day and with respect to a Swing Loan, a rate
-----------
per annum equal to the rate agreed to by the Borrower and the Swing Line Bank as
the rate of interest applicable to such Swing Loan.
"Agreed Rate Interest Period" has the meaning ascribed to that term in
---------------------------
Section 1.02(b)(i).
"Agreed Rate Loan" means a Swing Loan the interest on which is, or is to
----------------
be, as the context may require, computed on the basis of the applicable Agreed
Rate.
"Agreement" means this Agreement, including all schedules, annexes and
---------
exhibits hereto.
"Applicable Law" means, anything in Section 10.11 to the contrary
--------------
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and (iii) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or
admiralty) and arbitrators.
"Bank" means (a) any Person listed on the signature pages hereof following
----
the Agent and (b) any Person that has been assigned any or all of the rights or
obligations of a Bank pursuant to Section 10.10(a).
"Bank Tax" means any net income, franchise or similar Tax imposed upon any
--------
Bank by any jurisdiction (or political subdivision thereof) in which such Bank
or any of its Lending Offices is located or where such Bank is otherwise subject
to tax other than as a result of the transactions contemplated by this
Agreement, but in no event shall it mean any withholding tax.
"Bankruptcy Default" means a Default which is such by virtue of Section
------------------
6.01(f).
"Base Rate" means, for any day, a rate per annum equal to the higher of (a)
---------
the Prime Rate in effect on such day and (b) the sum of the Federal Funds Rate
in effect on such day plus 1/2%.
"Base Rate Loan" means a Loan the interest on which is, or is to be, as the
--------------
context may require, computed on the basis of the Base Rate.
"Base Rate Margin" means with respect to Base Rate Loans (a) outstanding on
----------------
or before June 15, 1998, 0.000% and (b) outstanding thereafter, 0.250%.
"Benefit Plan" of any Person, means, at any time, any employee benefit plan
------------
(including a Multiemployer Benefit Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within six years immediately preceding the time in question were, in whole or in
part, the responsibility of such Person.
"Borrower" means SOFTBANK Holdings Inc., a Delaware corporation.
--------
"Borrower Group EBITDA" means, for any period, the combined EBITDA of the
---------------------
Borrower and the Guarantors for such period (taken as a cumulative whole);
provided that there
--------
43
shall be excluded: (a) the earnings of any Subsidiary of the Borrower that is
not a Guarantor and of any Subsidiary of any Guarantor that is not a Guarantor
that would, in accordance with Generally Accepted Accounting Principles, be
consolidated in the earnings of the Borrower or any Guarantor and (b) any such
earnings of a Guarantor for any period during which it was not a Guarantor.
"Borrower Group Payments" means, as of any date of determination, all
-----------------------
payments to any Person other than SOFTBANK Corp., or MAC Inc. by the Borrower or
the Guarantors during the period from the Restated Agreement Date to such date,
or that the Borrower or any Guarantor becomes, during such period, obligated
(including by way of Guaranty) to make, in respect of (a) Restricted Payments to
any such Person, (b) Investments in any such Person, (c) Business Units acquired
from any such Person and (d) Prepayments of Subordinated Debt of the Borrower or
any Guarantor owed to any such Person.
"Borrower Loan Documents" means the Loan Documents to which the Borrower is
-----------------------
a party.
"Business Day" means any day other than a Saturday, Sunday or other day on
------------
which banks in New York City are authorized to close.
"Business Unit" means the assets constituting the business or a division or
-------------
operating unit thereof of any Person.
"Capital Security" means, with respect to any Person, (a) any share of
----------------
capital stock or other ownership interest of such Person or (b) any security
convertible into, or any option, warrant or other right to acquire, any share of
capital stock or other ownership interest of such Person.
"Code" means the Internal Revenue Code of 1986.
----
"Commitment" of any Bank means (a) the amount set forth opposite such
-----------
Bank's name under the heading "Commitment" on Annex A or, in the case of a Bank
that becomes a Bank pursuant to an assignment, the amount of the assignor's
Commitment assigned to such Bank, in either case, as the same may be reduced
from time to time pursuant to Section 1.07 or increased or reduced from time to
time pursuant to assignments in accordance with Section 10.10 (a), or (b) as the
context may require, the obligation of such Bank to make Loans in an aggregate
unpaid principal amount not exceeding such amount.
"Consolidated Subsidiary" means, with respect to any Person at any time,
-----------------------
any Subsidiary or other Person the accounts of which would be consolidated with
those of such first Person in its consolidated financial statements as of such
time; unless otherwise specified, "Consolidated Subsidiary" means a Consolidated
Subsidiary of the Borrower.
"Contract" means (a) any agreement (whether bi-lateral or uni-lateral or
--------
executory or non-executory and whether a Person entitled to rights thereunder is
so entitled directly or as a third-party beneficiary), including an indenture,
lease or license, (b) any deed or other instrument of conveyance, (c) any
certificate of incorporation or charter and (d) any by-law.
44
"Debt" means any Liability that constitutes "debt" or "Debt" under section
----
101(11) of the Bankruptcy Code or under the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any analogous Applicable Law.
"Default" means any condition or event that constitutes an Event of Default
-------
or that with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States of
------- -
America.
"Domestic Lending Office" of any Bank means (a) the branch or office of
-----------------------
such Bank set forth below such Bank's name under the heading "Domestic Lending
Office" on Annex A or, in the case of a Bank that becomes a Bank pursuant to an
assignment, the branch or office of such Bank set forth under the heading
"Domestic Lending Office" in the Notice of Assignment given to the Borrower and
the Agent with respect to such assignment or (b) such other branch or office of
such Bank designated by such Bank from time to time as the branch or office at
which its Base Rate Loans are to be made or maintained.
"EBITDA" means, for any Borrower or a Guarantor and for any period, the sum
------
of:
(a) Net Income of such Person for such period; plus
----
(b) the sum of the following items (to the extent deducted in the
computation of such Net Income):
(i) depreciation expense;
(ii) amortization expense;
(iii) interest expense and commitment fees paid or payable for such
period with respect to Indebtedness of such Person (other than
InterCompany Indebtedness), including imputed interest on capital
leases and fees and other amounts paid or payable for such period to
any Person under interest rate or currency swap or similar
transactions;
(iv) income tax expense; and
(v) other non-cash items.
EBITDA will be adjusted to (A) exclude the EBITDA attributable to any asset or
business that was disposed of (either directly or as part of an exchange) by the
Borrower or any Guarantor and (B) include the EBITDA attributable to any asset
or business that was acquired (either directly or as part of an exchange) by the
Borrower or any Guarantor, in each case during the period of calculation (as if
such asset or business had not been owned, or had been owned (as applicable), by
the Borrower or any Guarantor during such period).
"Effective Date" means March 27, 1996, being the date that this Agreement
--------------
(prior to any amendment and restatement hereof) originally became effective.
45
"Enacted", as applied to a Regulatory Change, means the date such
-------
Regulatory Change first becomes effective or is implemented or first required or
expected to be complied with, whether the same is (a) the result of an enactment
by a government or any agency or political subdivision thereof, a determination
of a court or regulatory authority, or otherwise or (b) enacted, adopted, issued
or proposed before or after the Effective Date.
"ERISA" means the Employee Retirement Income Security Act of 1974.
-----
"ERISA Affiliate" means, with respect to any Person, any other Person,
---------------
including a Subsidiary or other Affiliate of such first Person, that is a member
of any group of organizations within the meaning of Code Sections 414(b), (c),
(m) or (o) of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which dealings in
-----------------------
Dollar deposits are carried on in the London interbank market and on which
commercial banks are open for domestic and international business (including
dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" of any Bank means (a) the branch or office of
-------------------------
such Bank set forth below such Bank's name under the heading "Eurodollar Lending
Office" on Annex A or, in the case of a Bank that becomes a Bank pursuant to an
assignment, the branch or office of such Bank set forth under the heading
"Eurodollar Lending Office" in the Notice of Assignment given to the Borrower
and the Agent with respect to such assignment or (b) such other branch or office
of such Bank designated by such Bank from time to time as the branch or office
at which its Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the rate per annum
---------------
determined by the Agent to be the rate at which the Reference Bank offered or
would have offered to place with first-class banks in the London interbank
market deposits in Dollars in amounts comparable to the Eurodollar Rate Loan of
the Reference Bank to which such Interest Period applies, for a period equal to
such Interest Period, at 11:00 a.m. (London time) on the second Eurodollar
Business Day before the first day of such Interest Period.
"Eurodollar Rate Loan" means a RC Loan the interest on which is, or is to
--------------------
be, as the context may require, computed on the basis of the Adjusted Eurodollar
Rate.
"Eurodollar Rate Margin" means, with respect to Eurodollar Rate Loans (a)
----------------------
outstanding on or before May 14, 1998, 0.625%, (b) outstanding on or after May
15, 1998 and on or before June 15, 1998, 0.750% and (c) outstanding thereafter,
1.500%.
"Event of Default" means any of the events specified in Section 6.01.
----------------
"Existing Benefit Plan" means any Benefit Plan listed on Schedule 4.12.
--------------------- -------------
"Existing Guaranty" means (a) any Guaranty outstanding on the Restated
-----------------
Agreement Date, to the extent set forth on Schedule 4.06, and (b) any Guaranty
-------------
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (i) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (ii) such Guaranty is binding
only on the obligor or obligors under the Guaranty so renewed, extended or
46
replaced, (iii) the principal amount of the obligations Guaranteed by such
Guaranty does not exceed the principal amount of the obligations Guaranteed by
the Guaranty so renewed, extended or replaced at the time of such renewal,
extension or replacement and (iv) the obligations Guaranteed by such Guaranty
bear interest at a rate per annum not exceeding the rate borne by the
obligations Guaranteed by the Guaranty so renewed, extended or replaced except
for any increase that is commercially reasonable at the time of such increase.
"Existing Indebtedness" means, (a) any Indebtedness listed on Schedule
--------------------- --------
4.05, (b) in the case of any Guarantor that became a Guarantor after the
Restated Agreement Date, any Indebtedness of such Guarantor outstanding at the
time such Guarantor became a Guarantor, but only if such Indebtedness was not
incurred in contemplation thereof, and (c) any Indebtedness constituting a
renewal, extension or refunding of any Existing Indebtedness, but only if (i) at
the time such Indebtedness is incurred and immediately after giving effect
thereto, no Default would exist, (ii) the principal amount of such Indebtedness
does not exceed the principal amount of the Indebtedness so renewed, extended or
refunded at the time of such renewal, extension or refunding, (iii) if the
Indebtedness so renewed, extended or refunded was Subordinated Indebtedness,
such Indebtedness constitutes Subordinated Indebtedness and (iv) such
Indebtedness bears interest at a rate per annum not exceeding the rate borne by
the Indebtedness so renewed, extended or refunded except for any increase that
is commercially reasonable at the time such Indebtedness is incurred.
"Existing Investments" means any Investment listed on Schedule 4.11.
-------------------- -------------
"Exposure" means, with respect to any Bank at any time, an amount equal to
--------
the sum of (a) the aggregate unpaid principal amount at such time of the RC
Loans of such Bank, plus (b) such Bank's Pro Rata Share of the aggregate unpaid
principal amount at such time of the Swing Loans.
"Federal Funds Rate" means, for any day, the weighted average of the rates
------------------
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any day that
is a Business Day, the average of quotations for such day on such transactions
received by The Bank of New York from three Federal funds brokers of recognized
standing selected by such bank.
"Forums L.P." means SOFTBANK Forums L.P., a Delaware limited partnership.
-----------
"Funded Current Liability Percentage" has the meaning ascribed to that term
-----------------------------------
in Code Section 401(a)(29).
"Generally Accepted Accounting Principles" means generally accepted
----------------------------------------
accounting principles as in effect in the United States of America on the
Effective Date.
"Governmental Approval" means any authorization, consent, approval, license
---------------------
or exemption of, registration or filing with, or report or notice to, any
governmental unit.
47
"Guaranteed Obligations" means all Liabilities of the Borrower and each
----------------------
Guarantor for the payment of money owing to, or in favor or for the benefit of,
or purporting to be owing to, or in favor or for the benefit of, the Agent, the
Swing Line Bank or any other Bank, including those under the Loan Documents, any
letter of credit issued for the account of the Borrower or a Guarantor, any
foreign exchange contract (whether the same is for future or spot delivery or a
hedge transaction), hedge transactions (including interest rate swaps and
collars and the like), derivative obligations (including commodities swaps,
commodities options, equity or equity index swaps and the like), and overdrafts
and other extensions of credit under cash management arrangements, checking
accounts and the like, in each case (i) WHETHER NOW EXISTING OR HEREAFTER
ARISING AND (ii) WHETHER OR NOT AN ALLOWABLE CLAIM AGAINST THE BORROWER OR SUCH
GUARANTOR UNDER THE BANKRUPTCY CODE OR OTHERWISE ENFORCEABLE AGAINST THE
BORROWER OR SUCH GUARANTOR, AND INCLUDING, IN ANY EVENT, INTEREST AND OTHER
LIABILITIES ACCRUING OR ARISING AFTER THE FILING BY OR AGAINST THE BORROWER OR
SUCH GUARANTOR OF A PETITION UNDER THE BANKRUPTCY CODE OR THAT WOULD HAVE SO
ACCRUED OR ARISEN BUT FOR THE FILING OF SUCH A PETITION; provided that, in the
--------
case of any such Liability arising after the Repayment Date, such Liability is a
Liability of the Borrower under this Agreement or such Liability arose under, in
connection with or is related to another Contract or other arrangement
(including the letters of credit, foreign exchange contracts, hedging
transactions, derivative obligations, cash management arrangements and checking
accounts referred to above) in effect on or before the Repayment Date and, in
the case of any such Liability arising under, in connection with or related to a
Contract or other arrangement in effect on the Repayment Date, such Liability
arose, or relates to facts existing, on or before the date such Contract or
other arrangement is terminated.
"Guarantor" shall mean each Person listed on Schedule 9.01 and each Person
--------- -------------
executing and delivering a Guarantor Supplement.
"Guarantor Supplement" shall mean a supplement hereto in the form of
--------------------
Schedule 9.10.
-------------
"Guaranty" of any Person means any obligation, contingent or otherwise, of
--------
such Person (a) to pay any Liability of any other Person or to otherwise
protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person
being a partner of a partnership or participant in a joint venture or by
agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any Liability of any other Person
(whether such obligation arises by agreement to reimburse or indemnify such
third Person or otherwise). The word "Guarantee" when used as a verb has the
---------
correlative meaning.
"Indebtedness" of any Person means (in each case, whether such obligation
------------
is with full or limited recourse), without duplication, (a) any obligation of
such Person for borrowed money, (b) any obligation of such Person evidenced by a
bond, debenture, note or other similar instrument, (c) any obligation of such
Person to pay the deferred purchase price of property or services, except a
trade account payable that arises in the ordinary course of business but only if
and so long as the same is payable on customary trade terms, (d) any obligation
of such Person as lessee
48
under a capital lease, (e) any Mandatorily Redeemable Stock of such Person owned
by any Person other than such Person or an Indebtedness-Free Subsidiary of such
Person (the amount of such Mandatorily Redeemable Stock to be determined for
this purpose as the higher of the liquidation preference of and the amount
payable upon redemption of such Mandatorily Redeemable Stock), (f) any
obligation of such Person to purchase securities or other property that arises
out of or in connection with the sale of the same or substantially similar
securities or property, (g) any non-contingent obligation of such Person to
reimburse any other Person in respect of amounts paid under a letter of credit
or other Guaranty issued by such other Person to the extent that such
reimbursement obligation remains outstanding after it becomes non-contingent,
(h) any amount that is due and payable under an interest rate or currency swap
or similar obligation, including any amount required to be paid upon the early
termination or other unwinding of any such obligation but excluding any
regularly scheduled interim payments thereunder except to the extent that any
such interim payment is overdue beyond any applicable grace period, except that
if any agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligation shall be the net amount thereof, (i) any
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) a Lien on any
asset of such Person and (j) any Indebtedness of others Guaranteed by such
Person.
"Indebtedness-Free Subsidiary" means a Subsidiary (a) all of the Capital
----------------------------
Securities, other ownership interests and rights to acquire ownership interests
of which are owned or controlled by the Borrower, by one or more other
Indebtedness-Free Subsidiaries or by the Borrower and one or more other
Indebtedness-Free Subsidiaries and (b) that has no Indebtedness other than the
Loans and Indebtedness owing to the Borrower or another Indebtedness-Free
Subsidiary.
"Indemnified Person" means (a) any Person that is, or at any time was, the
------------------
Agent, a Bank, the Swing Line Bank, an Affiliate of any such Person or a
director, officer, employee or agent of any such Person and (b) BNY Capital
Markets, Inc. or a director, officer, employee or agent thereof.
"Information" means data, certificates, reports, statements (including
-----------
financial statements), opinions of counsel, documents and other information.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
---------------------
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature and (iii) copyrights, in each case whether registered, unregistered
or under pending registration and, in the case of any such that are registered
or under pending registration, whether registered or under pending registration
under the laws of the United States or any other country, (b) reissues,
continuations, continuations-in-part and extensions of any Intellectual Property
referred to in clause (a), and (c) rights relating to any Intellectual Property
referred to in clause (a) or (b), including rights under applications (whether
pending under the laws of the United States or any other country) or licenses
relating thereto.
49
"InterCompany Indebtedness" means Indebtedness payable by the Borrower or
-------------------------
any Guarantor that is payable to the Borrower or any Guarantor.
"Interest Payment Date" means the last day of each calendar quarter and the
---------------------
Termination Date.
"Interest Period" means a period commencing, in the case of the first
---------------
Interest Period applicable to a Eurodollar Rate Loan, on the date of the making
of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending in the case of Eurodollar Rate
Loans, depending on the Type of Loan, on the same day in the first, second,
third or sixth calendar month thereafter, except that (a) any Interest Period
that would otherwise end on a day that is not a Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day unless such Eurodollar
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Eurodollar Business Day and (b) any Interest
Period that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month in which such Interest Period ends) shall end on the last Eurodollar
Business Day of a calendar month.
"Investment" of any Person means (a) any Capital Security, evidence of
----------
Indebtedness or other security or instrument issued by any other Person, (b) any
loan, advance or extension of credit to (including Guaranties of Liabilities
of), or any contribution to the capital of, any other Person and (c) any other
investment in any other Person. An Investment shall be deemed to be
"outstanding", except to the extent that it has been paid or otherwise satisfied
in cash or the Person making such Investment has received cash in consideration
for the sale thereof, notwithstanding the fact that such Investment may
otherwise have been forgiven, released, canceled or otherwise nullified.
"Kingston Contingent Obligation" means the Contingent Promissory Note made
------------------------------
by SOFTBANK Kingston, Inc. to the order of Kingston Technology Corporation,
--------
dated as of October 1, 1997 in the amount of $450,000,000.
"Kingston Guarantee" means the guarantee of the Borrower pursuant to the
------------------
Guarantee dated as of October 1, 1997, of the Kingston Contingent Obligation as
in effect on the Restated Agreement Date, after giving effect to all amendments
and waivers (a) that become effective after the Restated Agreement Date and (b)
to which Section 4.15(b) is not applicable.
"Lending Office" of any Bank means the Domestic Lending Office or the
--------------
Eurodollar Lending Office of such Bank.
"Liability" of any Person means (in each case, whether with full or limited
---------
recourse) any indebtedness, liability, obligation, covenant or duty of or
binding upon, or any term or condition to be observed by or binding upon, such
Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
50
"Lien" means, with respect to any property or asset (or any income or
----
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by Contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof or (b) any other
arrangement, express or implied, under which the same is subordinated,
transferred, sequestered or otherwise identified so as to subject the same to,
or make the same available for, the payment or performance of any Liability in
priority to the payment of the ordinary, unsecured Liabilities of such Person.
For the purposes of this Agreement, a Person shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the interest of a vendor
or lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means any RC Loan or Swing Loan.
----
"Loan Document Related Claim" means any claim or dispute (whether arising
---------------------------
under Applicable Law, including any "environmental" or similar law, under
Contract or otherwise and, in the case of any proceeding relating to any such
claim or dispute, whether civil, criminal, administrative or otherwise) in any
way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Effective Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any "Representation and
-----------------------------------------
Warranty" as defined in any Loan Document and any other representation or
warranty made or deemed made under any Loan Document.
"Loan Documents" means this Agreement, the Notes and each Subordination
--------------
Agreement.
"Loan Party" means any Person (other than the Agent or a Bank) that is a
----------
party to a Loan Document.
"MAC Inc." means MAC Inc., a Japanese corporation.
--------
"MAC Inc. Payments" means, as of any date of determination, all payments to
-----------------
MAC Inc. either made by the Borrower or the Guarantors during the period from
the Restated Agreement Date to such date, or that the Borrower or any Guarantor
becomes, during such period, obligated to make, in respect of (a) Restricted
Payments to MAC Inc., (b) Investments in MAC Inc. (other than pursuant to the
terms of the Management Agreement), (c) Business Units acquired from MAC Inc.
and (d) Prepayments of Subordinated Debt of the Borrower or any Guarantor owed
to MAC Inc.
"Management Agreement" means that certain Management Agreement (a) among
--------------------
MAC Inc., MAC Holdings (Europe) Ltd. ("MAC Europe") and ▇▇▇▇-▇▇▇▇▇ Inc.
(formerly known as ▇▇▇▇-▇▇▇▇▇ Publishing Company) providing for, among other
things, the funding of certain operational expenses relating to the assets
transferred to MAC Inc. and MAC Europe pursuant to the Asset Purchase Agreement
dated as of November 8, 1995 and referred to therein, (b) a true and correct
copy of which, in the form executed and delivered, has been delivered to the
Agent, (c) which is in form and substance satisfactory to the Agent and (d) no
amendment to or waiver
51
under which has become effective except for amendments and waivers that have
either (i) been approved by the Agent or (ii) are not materially adverse to the
interests of the Banks, provided that, in the case of clause (ii) such
--------
amendments and waivers are in writing and copies thereof have been provided to
the Agent within 30 days of their execution and delivery.
"Mandatorily Redeemable Stock" means, with respect to any Person, any share
----------------------------
of such Person's capital stock to the extent that it is (a) redeemable, payable
or required to be purchased or otherwise retired or extinguished, or convertible
into any Indebtedness or other Liability of such Person, (i) at a fixed or
determinable date, whether by operation of a sinking fund or otherwise, (ii) at
the option of any Person other than such Person or (iii) upon the occurrence of
a condition not solely within the control of such Person, such as a redemption
required to be made out of future earnings or (b) convertible into Mandatorily
Redeemable Stock.
"▇▇▇▇▇▇▇▇▇ ▇▇▇" shall mean that Person whose business address is, as of the
-------------
Restated Agreement Date, ▇▇-▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇.
"Materially Adverse Effect" means, (a) with respect to any Person, any
-------------------------
materially adverse effect on such Person's business, assets, Liabilities,
financial condition, results of operations or business prospects, (b) with
respect to a group of Persons "taken as a whole", any materially adverse effect
on such Persons' business, assets, Liabilities, financial conditions, results of
operations or business prospects taken as a whole on, where appropriate, a
consolidated basis in accordance with Generally Accepted Accounting Principles
and (c) with respect to any Loan Document, any materially adverse effect on the
binding nature, validity or enforceability thereof as an obligation of any Loan
Party that is a party thereto.
"Money Market Investment" means (a) any security issued or directly and
-----------------------
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof having a remaining maturity of not more than one year,
(b) any certificate of deposit, eurodollar time deposit and bankers' acceptance
with remaining maturity of not more than one year, any overnight bank deposit,
and any demand deposit account, in each case with any Bank or with any United
States commercial bank having capital and surplus in excess of $500,000,000 and
rated B or better by Thomson Bankwatch Inc., (c) any repurchase obligation with
a term of not more than seven days entered into with (i) any financial
institution meeting the qualifications specified in clause (b) above or (ii) any
primary dealer of national reputation reporting daily to the Federal Reserve
Bank of New York, and (d) any commercial paper issued by any Bank or the parent
corporation of any Bank and any other commercial paper of issuers rated A-2 by
Standard & Poor's Rating Group or Prime-2 by ▇▇▇▇▇'▇ Investors Service, Inc. and
in any case having a remaining maturity of not more than six months.
"Multiemployer Benefit Plan" means any Benefit Plan that is a multiemployer
--------------------------
plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to (a) the disposition of any
-----------------
asset, including Capital Securities of Persons other than the Person effecting
the disposition, (i) the gross cash proceeds of such disposition (including (A)
insurance payments and condemnation awards and (B) principal payments in respect
of any notes or other instruments received as consideration for such
disposition) less (ii) (A) all documented taxes, fees, including underwriting
and placement
52
fees, and reasonable expenses payable by the Borrower and its Subsidiaries in
connection with such disposition, including income taxes payable as a
consequence of such disposition, (B) the principal amount of, and the premium,
if any, and interest on, any Indebtedness (other than the Loans) secured by such
asset and required to be prepaid upon such disposition and (C) amounts required
to be maintained as a reserve against liabilities associated with such
disposition under Generally Accepted Accounting Principles as then in effect
(provided that such amounts shall cease to be deducted from Net Cash Proceeds
and may become payable whenever they cease to be so required to be maintained)
and (b) the disposition of any Capital Security that is a Capital Security of
the Person effecting such disposition, (i) the gross cash proceeds of such
disposition (including principal payments in respect of any notes or other
instruments received as consideration for such disposition) less (ii) all
underwriting, placement and other fees and discounts and any other expenses
reasonably incurred in connection with such disposition.
"Net Income" means, for any Person and for any period, the net income (or
----------
net loss) of such Person for such period; provided that such amount shall be
--------
adjusted to exclude (to the extent otherwise included therein):
(a) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of income accrued
during such period and except for normal accruals and reversals in the
ordinary course of business;
(b) any write-up or write-down of any asset;
(c) any net gain or loss from the collection of the proceeds of any
insurance policies;
(d) any gain or loss arising from the acquisition of any securities or
Indebtedness of such Person and any net loss arising from the exercise of
any warrant of such Person;
(e) any deferred credit representing the excess of equity in any
Person at the date of acquisition over the cost of the investment in such
Person;
(f) any aggregate net gain (or loss) during such period arising from
the sale, exchange or other disposition of capital assets (such term to
include all fixed assets, whether tangible or intangible, all inventory
sold in conjunction with the disposition of fixed assets, and all
securities) other than any sale, exchange or other disposition in the
ordinary course of business, provided that there shall also be excluded any
--------
related charges for taxes on such capital assets;
(g) any net gains or losses resulting from the extinguishment or
defeasance of any Indebtedness;
(h) any earnings or losses from discontinued businesses; and
(i) all other extraordinary items.
53
"New Subordinated Indebtedness" means Subordinated Indebtedness incurred
-----------------------------
after the Restated Agreement Date.
"Note" means any RC Note or Swing Loan Note.
----
"Notice of Assignment" means any notice to the Borrower and the Agent with
--------------------
respect to an assignment pursuant to Section 10.10(a) in the form of Schedule
--------
10.10(a).
--------
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Permitted Guaranty" means any Guaranty that is (a) an endorsement of a
------------------
check for collection in the ordinary course of business, (b) a Guaranty of and
only of the Guaranteed Obligations, (c) a Guaranty constituting an Investment to
which Section 4.11 is not applicable by virtue of clause (c)(ii) or (g) of such
Section, (d) a Guaranty of Indebtedness to which Section 4.05 is not applicable
by virtue of clause (e) or (f) of such Section, (e) the Kingston Guarantee, (f)
a Guaranty of a Liability of the Borrower or a Guarantor not constituting
Indebtedness to which Section 4.05 is not applicable by virtue of clause (e) or
(f) of such Section; provided that, such Guaranty and such Liability shall each
--------
be incurred in the ordinary course of business of the party obligated thereunder
and shall be upon terms and conditions reasonable and customary in the industry
in which such party conducts its business or (g) a Guaranty by a ZD Holdings
Subsidiary of Indebtedness in principal amount, together with the aggregate
principal amount of all other Indebtedness so Guaranteed, not exceeding
$2,000,000 at any time.
"Permitted Lien" means (a) any Lien securing and only securing the
--------------
obligations of the Loan Parties under the Loan Documents; (b) any Lien securing
a tax, assessment or other governmental charge or levy or the claim of a
materialman, mechanic, carrier, warehouseman or landlord for labor, materials,
supplies or rentals incurred in the ordinary course of business, but only if
payment thereof shall not at the time be required to be made in accordance with
Section 4.01(d) and foreclosure, distraint, sale or other similar proceedings
shall not have been commenced; (c) any Lien on the properties and assets of a
Guarantor securing an obligation owing to the Borrower or a Guarantor; (d) any
Lien consisting of a deposit or pledge made in the ordinary course of business
in connection with, or to secure payment of, obligations under worker's
compensation, unemployment insurance or similar legislation; (e) any Lien
arising pursuant to an order of attachment, distraint or similar legal process
arising in connection with legal proceedings, but only if and so long as the
execution or other enforcement thereof is not unstayed for more than 20 days;
(f) any Lien existing on (i) any property or asset of any Person at the time
such Person becomes a Guarantor or (ii) any property or asset at the time such
property or asset is acquired by the Borrower or a Guarantor, but only, in the
case of either (i) or (ii), if and so long as (A) such Lien was not created in
contemplation of such Person becoming a Guarantor or such property or asset
being acquired, (B) such Lien is and will remain confined to the property or
asset subject to it at the time such Person becomes a Guarantor or such property
or asset is acquired and to fixed improvements thereafter erected on such
property or asset, (C) such Lien secures only the obligation secured thereby at
the time such Person becomes a Guarantor or such property or asset is acquired
and (D) the obligation secured by such Lien is not in default; (g) any Lien in
existence on the Restated Agreement Date to the extent set forth on Schedule
--------
4.07, but only, in the case of each such Lien, to the extent it secures an
----
obligation outstanding on the Restated Agreement Date to the extent set forth on
such Schedule; (h) any
54
Lien securing Purchase Money Indebtedness but only if, in the case of each such
Lien, (i) such Lien shall at all times be confined solely to the property or
asset the purchase price of which was financed through the incurrence of the
Purchase Money Indebtedness secured by such Lien and to fixed improvements
thereafter erected on such property or asset and (ii) such Lien attached to such
property or asset within 30 days of the acquisition of such property or asset;
(i) any Lien on the properties and assets of a ZD Holdings Subsidiary securing
Indebtedness in principal amount, together with the aggregate principal amount
of all other Indebtedness so secured, not exceeding $2,000,000 at any time; or
(j) any Lien constituting a renewal, extension or replacement of a Lien
constituting a Permitted Lien by virtue of clause (f), (g), (h) or (j) of this
definition, but only if (i) at the time such Lien is granted and immediately
after giving effect thereto, no Default would exist, (ii) such Lien is limited
to all or a part of the property or asset that was subject to the Lien so
renewed, extended or replaced and to fixed improvements thereafter erected on
such property or asset, (iii) the principal amount of the obligations secured by
such Lien does not exceed the principal amount of the obligations secured by the
Lien so renewed, extended or replaced, (iv) if the principal amount of such
obligations constitutes Subordinated Indebtedness, such obligations continue to
constitute Subordinated Indebtedness and (v) the obligations secured by such
Lien bear interest at a rate per annum not exceeding the rate borne by the
obligations secured by the Lien so renewed, extended or replaced except for any
increase that is commercially reasonable at the time of such increase.
"Permitted Restrictive Covenant" means (a) any covenant or restriction
------------------------------
contained in any Loan Document, (b) any covenant or restriction binding upon any
Person at the time such Person becomes a Guarantor if the same is not created in
contemplation thereof, (c) any covenant or restriction of the type contained in
Section 4.07 that is contained in any Contract evidencing or providing for the
creation of or concerning Purchase Money Indebtedness so long as such covenant
or restriction is limited to the property purchased therewith and (d) any
covenant or restriction that (i) is not more burdensome than an existing
Permitted Restrictive Covenant that is such by virtue of clause (b), (c) or (d),
(ii) is contained in a Contract constituting a renewal, extension or replacement
of the Contract in which such existing Permitted Restrictive Covenant is
contained and (iii) is binding only on the Person or Persons bound by such
existing Permitted Restrictive Covenant.
"Permitted Stock Option Plan" means, as applied to any Person, any plan or
---------------------------
program in the nature of an incentive plan or program that has been duly
adopted, if such Person is a corporation, by its board of directors, or, if such
Person is a partnership, by its general partner or partners, providing for the
issuance of Capital Securities of such Person; provided that the amount of
--------
Capital Securities that are subject to, and the terms and conditions of, such
plan or program are conventional and not more favorable than those of similar
plans or programs maintained by Persons of a size similar to such Person and
engaged in businesses similar to that of such Person.
"Person" means any individual, sole proprietorship, corporation,
------
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof or, for the purpose of the definition of "ERISA
Affiliate," any trade or business.
"Post-Default Rate" means the rate otherwise applicable under Section
-----------------
1.03(a) plus 2.0%.
55
"Prepayment", as applied to Subordinated Indebtedness, means any payment on
----------
account of the principal of such Subordinated Indebtedness, other than a payment
of principal at a regularly scheduled maturity (without giving affect to any
acceleration), whether such payment is by way of purchase, repayment,
defeasance, redemption or other entitlement.
"Prime Rate" means the prime commercial lending rate of The Bank of New
----------
York, as publicly announced to be in effect from time to time. The Prime Rate
shall be adjusted automatically, without notice, on the effective date of any
change in such prime commercial lending rate. The Prime Rate is not necessarily
The Bank of New York's lowest rate of interest.
"Pro Rata Share," as applied to a Bank means, at any time, the percentage
--------------
obtained by dividing the amount of such Bank's Commitment at such time by the
sum of the Commitments at such time of all the Banks.
"Prohibited Transaction" means any transaction that is prohibited under
----------------------
Code Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408.
"Purchase Money Indebtedness" means (a) Indebtedness of a Person that is
---------------------------
incurred to finance part or all of (but not more than) the purchase price of a
tangible asset, provided that (i) neither the Borrower nor any Guarantor had at
--------
any time prior to such purchase any interest in such asset other than a security
interest or an interest as lessee under an operating lease and (ii) such
Indebtedness is incurred within 30 days after such purchase, or (b) Indebtedness
that (i) constitutes a renewal, extension or refunding of, but not an increase
in the principal amount of, Purchase Money Indebtedness that is such by virtue
of clause (a) or (b), (ii) bears interest at a rate per annum that is
commercially reasonable at the time such Indebtedness is incurred and (iii) if
the Indebtedness that is being renewed, extended or refunded constitutes
Subordinated Indebtedness, such Indebtedness constitutes Subordinated
Indebtedness.
"Qualified Swing Loan" means at any time, with respect to any Swing Loan,
--------------------
the principal amount of such Swing Loan that Banks would be required to
refinance with RC Loans or purchase participations in pursuant to Section
1.05(c)(i) or (ii), as the case may be, after giving effect to the provisions of
Section 1.05(c)(iii).
"RC Loan" means any amount advanced by a Bank pursuant to Section 1.01(a).
-------
"RC Note" means any Note in the form of Exhibit A-1.
------- -----------
"Reference Bank" means The Bank of New York and any replacement Reference
--------------
Bank appointed pursuant to Section 10.14.
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
------------
Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the Federal
------------
Reserve System.
56
"Regulatory Change" means any Applicable Law, interpretation, directive,
-----------------
request or guideline (whether or not having the force of law), or any change
therein or in the administration or enforcement thereof, that becomes effective
or is implemented or first required or expected to be complied with after the
Effective Date, whether the same is (a) the result of an enactment by a
government or any agency or political subdivision thereof, a determination of a
court or regulatory authority, or otherwise or (b) enacted, adopted, issued or
proposed before or after the Effective Date, including any such that imposes,
increases or modifies any Tax, reserve requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement, but excluding
any such that imposes, increases or modifies any Bank Tax.
"Repayment Date" means the later of (a) the termination of the Commitments
--------------
(whether as a result of the occurrence of the Termination Date, reduction to
zero pursuant to Section 1.07 or termination pursuant to Section 6.02) and (b)
the payment in full of the Loans and all other amounts payable or accrued
hereunder.
"Reportable Event" means, with respect to any Benefit Plan of any Person,
----------------
(a) the occurrence of any of the events set forth in ERISA Sections 4043(c),
other than an event as to which the requirement of 30 days' notice, or the
penalty for failure to provide such notice, has been waived by the PBGC, (b) the
existence of conditions sufficient to require advance notice to the PBGC
pursuant to ERISA Section 4043(b), (c) the occurrence of any of the events set
forth in ERISA Sections 4062(e) or 4063(a) or the regulations thereunder, (d)
any event requiring such Person or any of its ERISA Affiliates to provide
security to such Benefit Plan under Code Section 401(a)(29) or (e) any failure
to make a payment required by Code Section 412(m) with respect to such Benefit
Plan.
"Representation and Warranty" means any representation or warranty made
---------------------------
pursuant to or under (a) Article 2, Article 3, Section 5.02 or any other
provision of this Agreement or (b) any amendment to, or waiver of rights under,
this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY
REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH CASE, TO
THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE SUBJECT
MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, at any time, Banks having more than, if there are
--------------
at such time four or more Banks, 51% or, if at such time there are less than
four Banks, 66-2/3% of the aggregate amount of the Commitments or, if the
Commitments shall have expired or been terminated, Banks having more than, if
there are at such time four or more Banks, 51% or, if at such time there are
less than four Banks, 66-2/3% of the aggregated amount of the Exposures
outstanding.
"Reserve Requirement" means, at any time, the then current maximum rate for
-------------------
which reserves (including any marginal, supplemental or emergency reserve) are
required to be maintained under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding five billion Dollars
against "Eurocurrency liabilities", as that term is used in Regulation D. The
Adjusted Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
57
"Restated Agreement Date" means the date set forth as such on the last
-----------------------
signature page hereof, which date is the date the executed copies of this
Agreement, as amended and restated as of such date, were delivered by all
parties hereto and, accordingly, the date this Agreement, as amended and
restated of such date, became effective and, for the first time binding upon
such parties.
"Restricted Payment" means, with respect to any Person, any payment with
------------------
respect to or on account of any of such Person's Capital Securities, including
any dividend or other distribution on, any payment of interest on or principal
of, and any payment on account of any purchase, redemption, retirement,
exchange, defeasance or conversion of, or on account of any claim relating to or
arising out of the offer, sale or purchase of, any such Capital Securities. For
the purposes of this definition, a "payment" shall include the transfer of any
asset or the incurrence of any Indebtedness or other Liability (the amount of
any such payment to be the fair market value of such asset or the amount of such
obligation, respectively) but shall not include the issuance of any capital
stock of the Borrower other than Mandatorily Redeemable Stock.
"SOFTBANK Corp." means SOFTBANK Corp., a Japanese corporation.
--------------
"SOFTBANK Corp. Payments" means, as of any date of determination, all
-----------------------
payments to SOFTBANK Corp. either made by the Borrower or the Guarantors during
the period from the Restated Agreement Date to such date, or that the Borrower
or any Guarantor becomes, during such period, obligated to make, in respect of
(a) Restricted Payments to SOFTBANK Corp., (b) Investments in SOFTBANK Corp.,
(c) Business Units acquired from SOFTBANK Corp. and (d) Prepayments of
Subordinated Debt of the Borrower or any Guarantor owed to SOFTBANK Corp.
"SOFTBANK Kingston" means SOFTBANK Kingston Inc., a Delaware corporation.
-----------------
"Subordinated Indebtedness" means Affiliate Indebtedness that is subject to
-------------------------
a Subordination Agreement.
"Subordination Agreement" means (a) a Subordination Agreement substantially
-----------------------
in the form of Exhibit B and (b) with respect to which, the Agent, if it shall
---------
have requested the same, shall have received an opinion, in form and substance
satisfactory to the Agent, of counsel, acceptable to the Agent, to the effect
that such Subordination Agreement has been duly authorized, executed and
delivered by the obligee subject thereto and constitutes a legally binding
agreement of such Person, enforceable against such Person in accordance with its
terms, subject to the effect of applicable bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of creditors'
rights generally.
"Subordinator" means any Person that has agreed, pursuant to a
------------
Subordination Agreement to which such Person is party, to subordinate Affiliate
Indebtedness payable to it as provided in such Subordination Agreement.
"Subsidiary" means, with respect to any Person, any other Person (i)
----------
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions) or (ii) other
ownership interests of which ordinarily constituting a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
58
Person, or by one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower, and "Subsidiaries" means the Subsidiaries of the
Borrower.
"Swing Line Availability" means, at any time, the lesser of (a) the Swing
-----------------------
Line Sublimit at such time less the aggregate principal amount of outstanding
Swing Loans at such time and (b) the Commitments at such time less the aggregate
amount of the Exposures of all of the Banks at such time.
"Swing Line Bank" means the Bank that, with its consent and the consent of
---------------
each existing Swing Line Bank, if any, is designated as such by the Borrower.
On the Restated Agreement Date such Bank is The Bank of New York.
"Swing Line Bank's Office" means, at any time that the Bank that is the
------------------------
Swing Line Bank is the Agent, the Agent's Office and, at any other time, the
address of such Bank determined in accordance with the provisions of Section
10.01(b)(iv).
"Swing Line Sublimit" means $25,000,000.
-------------------
"Swing Loan" means an amount advanced by the Swing Line Bank pursuant to
----------
Section 1.01(b).
"Swing Loan Note" means a note in the form attached hereto as Exhibit A-II.
---------------
"Tax" means any Federal, State or foreign tax, assessment or other
---
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"Termination Date" means the date that is 363 days after the Restated
----------------
Agreement Date.
"Termination Event" means, with respect to any Benefit Plan, (a) any
-----------------
Reportable Event with respect to such Benefit Plan, (b) the termination of such
Benefit Plan, or the filing of a notice of intent to terminate such Benefit
Plan, or the treatment of any amendment to such Benefit Plan as a termination
under ERISA Section 4041(c), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042 or (d) the appointment of a trustee
to administer such Benefit Plan under ERISA Section 4042.
"Type" means, with respect to RC Loans, any of the following, each of which
----
shall be deemed to be a different "Type" of Loan: Base Rate Loans, Eurodollar
Rate Loans having a one-month Interest Period, Eurodollar Rate Loans having a
two-month Interest Period, Eurodollar Rate Loans having a three-month Interest
Period and Eurodollar Rate Loans having a six-month Interest Period. Any
Eurodollar Rate Loan having an Interest Period that differs from the duration
specified for a Type of Eurodollar Rate Loan listed above solely as a result of
the operation of clauses (a) and (b) of the definition of "Interest Period"
shall be deemed to be a Loan of such above-listed Type notwithstanding such
difference in duration of Interest Periods.
"Unfunded Benefit Liabilities" means, with respect to any Benefit Plan at
----------------------------
any time, the amount of unfunded benefit liabilities of such Benefit Plan at
such time as determined under ERISA Section 4001(a)(18).
59
"Wholly Owned Subsidiary" means, with respect to any Person, any Subsidiary
-----------------------
of such Person all of the Capital Securities and all other ownership interests
and rights to acquire ownership interests of which (except directors' qualifying
shares) are, directly or indirectly, owned or controlled by such Person or one
or more Wholly Owned Subsidiaries of such Person or by such Person and one or
more of such Subsidiaries; unless otherwise specified, "Wholly Owned Subsidiary"
-----------------------
means a wholly owned subsidiary of the Borrower or of a Guarantor.
"ZD COMDEX and Forums, Inc." means ZD COMDEX and Forums, Inc., a Delaware
--------------------------
corporation.
"ZD Holdings (UK)" means ZD Holdings (UK), a company organized under the
----------------
laws of England.
"ZD Holdings Subsidiary" means each of ZD Holdings (UK) and its Wholly
----------------------
Owned Subsidiaries.
"ZD Inc." means ZD Inc., a Delaware corporation.
-------
"▇▇▇▇-▇▇▇▇▇ Inc." means ▇▇▇▇-▇▇▇▇▇ Inc., a Delaware corporation.
---------------
Section 11.02 Other Interpretive Provisions.
-----------------------------
(a) Except as otherwise specified herein, all references herein (i) to any
Person shall be deemed to include such Person's successors and assigns, (ii) to
any Applicable Law defined or referred to herein shall be deemed references to
such Applicable Law or any successor Applicable Law as the same may have been or
may be amended or supplemented from time to time and (iii) to any Loan Document
or Contract defined or referred to herein shall be deemed references to such
Loan Document or Contract (and, in the case of any Note or any other instrument,
any instrument issued in substitution therefor) as the terms thereof may have
been or may be amended, supplemented, waived or otherwise modified from time to
time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word "including,"
"include" or "includes" is set forth only for the purpose of indicating that,
regardless of whatever other items are in the category in which such item or
items are "included," such item or items are in such category, and shall not be
construed as indicating that the items in the category in which such item or
items are "included" are limited to such items or to items similar to such
items.
60
(e) Each authorization in favor of the Agent, the Banks or any other
Person granted by or pursuant to this Agreement shall be deemed to be
irrevocable and coupled with an interest.
(f) Except as otherwise specified herein, all references herein to the
Agent, any Bank or any Loan Party shall be deemed to refer to such Person
however designated in Loan Documents, so that (i) a reference to rights of a
Bank under the Loan Documents shall be deemed to include the rights of such
Person as the guaranteed party under Article 9 and, if such Person is the Swing
Line Bank, the rights of such Person as the Swing Line Bank and (ii) a reference
to costs incurred by a Bank in connection with Loan Documents shall be deemed to
include costs incurred by such Person as the guaranteed party under Article 9 or
as the Swing Line Bank .
(g) except as otherwise specified herein, all references to the time of
day shall be deemed to be to New York City time as then in effect.
Section 11.03 Accounting Matters.
------------------
Unless otherwise specified herein, all accounting determinations hereunder
and all computations utilized by the Borrower in complying with the covenants
contained herein shall be made, all accounting terms used herein shall be
interpreted, and all financial statements required to be delivered hereunder
shall be prepared, in accordance with Generally Accepted Accounting Principles,
except, in the case of such financial statements, for departures from Generally
Accepted Accounting Principles that may from time to time be approved in writing
by the independent certified public accountants who are at the time, in
accordance with Section 5.01(b), reporting on the Borrower's financial
statements.
Section 11.04 Representations and Warranties.
------------------------------
All Representations and Warranties shall be deemed made (a) in the case of
any Representation and Warranty contained in this Agreement at and as of the
Restated Agreement Date, (b) in the case of any Representation and Warranty
contained in this Agreement or any other document delivered in connection with
or pursuant to this Agreement or at the time any Loan is made, at and as of such
time and (c) in the case of any particular Representation and Warranty, wherever
contained, at such other time or times as such Representation and Warranty is
made or deemed made in accordance with the provisions of this Agreement or the
document pursuant to, under or in connection with which such Representation and
Warranty is made or deemed made.
Section 11.05 Captions.
--------
Captions to Articles, Sections and subsections of, and Annexes, Schedules
and Exhibits to, this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose or in
any way affect the meaning or construction of any provision of this Agreement.
Section 11.06 Interpretation of Related Documents.
-----------------------------------
Except as otherwise specified therein, terms that are defined herein that
are used in Notes, certificates, opinions and other documents delivered in
connection herewith shall have the meanings ascribed to them herein and such
documents shall be otherwise interpreted in accordance with the provisions of
this Article 11.
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Restated Agreement
Date.
SOFTBANK HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
ZD COMDEX AND FORUMS, INC.,
as a Guarantor
By: /s/ Mo ▇▇▇▇▇▇
-----------------------------------------
Name: Mo ▇▇▇▇▇▇
Title: Chief Financial Officer
▇▇▇▇-▇▇▇▇▇ INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
SBH DELAWARE, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Agent, a Bank and Swing Line Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Restated Agreement Date: February 26, 1998
ANNEX A
Banks, Lending Offices
and Notice Addresses Commitments
-------------------- -----------
THE BANK OF NEW YORK $250,000,000
Domestic Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇/8595
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Schedule 1.02(a)
NOTICE OF BORROWING
[Name and address
of the Agent in accordance with
Section 10.01(b)]
Date:
Ladies and Gentlemen:
Reference is made to the Guaranteed Credit Agreement, dated as of March 27,
1996 as amended and restated as of October 30, 1997 and as further amended and
restated as of February 26, 1998, among SOFTBANK Holdings Inc., the Banks listed
on the signature pages thereof and The Bank of New York, as Agent, and the
Guarantors party thereto (the "Credit Agreement"). The undersigned hereby gives
notice pursuant to Section 1.02(a) of the Credit Agreement of its request to
have the following RC Loans made to it on [insert requested date of borrowing]:
Type of RC Loan Amount
The undersigned on behalf of the Borrower, represents and warrants that (a)
the borrowing requested hereby complies with the requirements of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]2 (i) each
Loan Document Representation and Warranty is true and correct at and as of the
date hereof and (except to the extent the undersigned gives notice to the Bank
to the contrary prior to 5:00 p.m. on the Business Day before the requested date
for the making of the RC Loans) will be true and correct at and as of the time
the RC Loans are made, in each case both with and without giving effect to the
RC Loans and the application of the proceeds thereof, and (ii) no Default has
occurred and is continuing as of the date hereof or would result from the making
of the Loans or from the application of the proceeds thereof if the Loans were
made on the date hereof, and (except to the extent the undersigned gives notice
to the Bank to the contrary prior to 5:00 p.m. on the Business Day before the
requested date for the making of the RC Loans) no Default will have occurred and
be continuing at the time the RC Loans are to be made or would result from the
making of the RC Loans or from the application of the proceeds thereof.
SOFTBANK HOLDINGS INC.
By:
------------------------------
Name:
Title:
------------
1. Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
----
2. If the representation and warranty in either clause (b)(i) or (b)(ii)
would be incorrect, include the material in brackets and set forth the
reasons such representation and warranty would be incorrect on an
attachment labeled Annex A.
2
Schedule 1.03(c)
NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of the Agent in accordance with
Section 10.01(b)]
Date:
Ladies and Gentlemen:
Reference is made to the Guaranteed Credit Agreement, dated as of March 27,
1996 as amended and restated as of October 30, 1997 and as further amended and
restated as of February 26, 1998, among SOFTBANK Holdings Inc., the Banks listed
on the signature pages thereof, The Bank of New York, as Agent, and the
Guarantors party thereto (the "Credit Agreement"). The undersigned hereby gives
notice pursuant to Section 1.03(c) of the Credit Agreement of its desire to
convert or continue the Loans specified below into or as Loans of the Types and
in the amounts specified below on [insert date of conversion or continuation]:
Loans to be Converted or Continued Converted or Continued Loans
Last Day of Current Type of
Type of Loan Interest Period Amount Loan Amount
The undersigned represents and warrants that conversions and continuations
requested hereby comply with the requirements of the Credit Agreement.
SOFTBANK HOLDINGS INC.
By:
-------------------
Name:
Title:
-----------
1. Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
----
Schedule 1.05
NOTICE OF PREPAYMENT
[Name and address
of the Agent in accordance with
Section 10.01(b)]
Date:
Ladies and Gentlemen:
Reference is made to the Guaranteed Credit Agreement, dated as of March 27,
1996, as amended and restated as of October 30, 1997 and as further amended and
restated as of February 26, 1998 among SOFTBANK Holdings Inc., the Banks listed
on the signature pages thereof, The Bank of New York, as Agent, and the
Guarantors party thereto (the "Credit Agreement"). The undersigned hereby gives
notice pursuant to Section 1.05 of the Credit Agreement that it will prepay the
[RC] [Swing] Loans specified below on [insert date of prepayment]:
Last Day of
Type of [RC] [Swing] Loan [Current] [Agreed Rate] Amount
Interest Period+
_____________________
* Please specify whether RC or Swing ▇▇▇▇▇.
+ Insert as applicable.
-----------
The undersigned represents and warrants that the prepayment requested
hereby complies with the requirements of the Credit Agreement.
SOFTBANK HOLDINGS INC.
By:
----------------------
Name:
Title:
-----------
1. Be sure to specify the duration of the Interest Period or the Agreed Rate
Interest Period, as applicable, in the case of Eurodollar Rate Loans and
Agreed Rate Loans (e.g., one-month Eurodollar Rate, two-day Agreed Rate, as
----
applicable).
2
Schedule 2.01(a)(i)
-------------------
[NAME OF LOAN PARTY]
CERTIFICATE AS TO RESOLUTIONS, ETC.
I, __________, [Assistant] Secretary of [name of Loan Party], a
__________ [corporation/partnership] (the "Company"), hereby certify, pursuant
to Section 2.01(a)(i) of the Guaranteed Credit Agreement dated as of March 27,
1996 as amended and restated as of October 30, 1997 and as further amended and
restated as of February 26, 1998 among SOFTBANK Holdings Inc., the Guarantors
and The Bank of New York, that:
1. The below named persons have been duly elected (or appointed) and
have duly qualified as, and on this day are, officers of the Company
holding their respective offices below set opposite their names, and the
signatures below set opposite their names are their genuine signatures:
Name Office Signature
---- ------ ---------
[Insert names and offices of persons authorized to sign the Loan Documents
to which the Company is a party and any related documents]
2. (a) Attached as Annex A is a true and correct copy of
[resolutions/consents] duly adopted by [written consents of] the [Board of
Directors/partners] of the Company. Such [resolutions/consents] have not
been amended, modified or revoked and are in full force and effect on the
date hereof.
[(b) Attached as Annex A-1 is a true and correct copy of
resolutions duly adopted by [unanimous written consent of] the stockholders
of the Company. Such resolutions have not been amended, modified or
revoked and are in full force and effect on the date hereof.]/1/
3. [List Loan Documents to which the Company is a party], in each
case as executed and delivered on behalf of the Company, are in the forms
thereof approved by [unanimous written consent of] the [Board of
Directors/partners] of the Company.
[4. There has been no amendment to [the Certificate of Incorporation]
[partnership agreement] of the Company since __________, 19__./2/]/1/
[5. Attached as Annex B is a true and correct copy of the By-laws of
the Company as in effect on __________, 19__/3/ and at all subsequent times
to and including the date hereof.]/1/
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 19__.
___________________________
[Assistant] Secretary
I, __________, [title] of the Company, hereby certify that [name of
the above [Assistant] Secretary] has been duly elected or appointed and has been
duly qualified as, and on this day is, [Assistant] Secretary of the Company, and
the signature in paragraph 1 above is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 19__.
___________________________
[Title]
____________________
1. Omit if not applicable.
2. Insert date of the Secretary of State's Certificate of Incorporation
required by Section 2.01(a)(ii).
3. Insert date of the Board of Directors' meeting adopting the resolutions
referred to in paragraph 2(a).
2
Annex A
-------
[NAME OF LOAN PARTY]
RESOLUTIONS OF BOARD OF DIRECTORS
Annex A-1
---------
[NAME OF LOAN PARTY]
RESOLUTIONS OF SHAREHOLDERS
[Insert applicable resolutions]
Schedule 3.02
-------------
SCHEDULE OF SUBSIDIARIES
NAME OF SUBSIDIARY JURISDICTION OF OWNERSHIP OF ITS
INCORPORATION/FORMATION CAPITAL SECURITIES
ZD COMDEX and Forums, Inc. Delaware 100% owned by
SOFTBANK Holdings Inc.
SOFTBANK Forums L.P. Delaware General partners:
ZD COMDEX and Forums, Inc. and
MAC Forums L.P.
SOFTBANK Kingston Inc. Delaware 100% owned by
SOFTBANK Holdings Inc.
Kingston Technology Company Delaware 80% owned by
SOFTBANK Kingston Inc.
▇▇▇▇-▇▇▇▇▇ Inc. Delaware 100% owned by
SOFTBANK Holdings Inc.
SOFTBANK Content Services, Delaware 100% owned by
Inc. SOFTBANK Holdings Inc.
SOFTBANK Services Group Delaware 70% owned by
SOFTBANK Holdings Inc.
SpotMedia Communications California 70% owned by
SOFTBANK Holdings Inc.
SOFTBANK Interactive Delaware 83% owned by
Marketing Inc. SOFTBANK Holdings Inc.
SBH Delaware, Inc. Delaware 100% owned by
SOFTBANK Holdings Inc.
STV IV LLC Delaware LLC 91% owned by
SOFTBANK Holdings Inc.
SOFTBANK Technology Ventures Delaware L.P. General partner:
IV L.P. STV IV LLC
SB Holdings Pte., Ltd. Singapore 100% owned by
SOFTBANK Holdings Inc.
ZD COMDEX and Forums Pte., Singapore 100% owned by
Ltd. SOFTBANK Holdings Inc.
ZD COMDEX and Forums Pty., Australia 100% owned by
Ltd. SOFTBANK Holdings Inc.
ZD Holdings (UK), Ltd. United Kingdom 100% owned by
SOFTBANK Holdings Inc.
Schedule 3.03
-------------
SCHEDULE OF REQUIRED CONSENTS AND
GOVERNMENTAL APPROVALS
(NONE)
Schedule 3.04
-------------
SCHEDULE OF PUBLIC DEBT OF SOFTBANK CORP.
(in Yen, Billions)
ISSUE PRINCIPAL AMOUNT Interest Rate
--------------------------------- -------------------------- -----------------------------
Unsecured Debt No. 1 45 3.90%
Unsecured Debt No. 2 20 1.65%
Unsecured Debt No. 3 25 2.60%
Unsecured Debt No. 4 25 3.15%
Unsecured Debt No. 5 20 2.30%
Unsecured Debt No. 6 10 2.65%
Unsecured Debt No. 7 25 3.00%
Unsecured Debt No. 8 10 3.45%
Unsecured Debt No. 9 10 3.55%
Unsecured Debt ▇▇. ▇▇ ▇▇ ▇.▇▇%
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇ ▇ 3.70%
Unsecured Convertible Debt No. 1 46 0.50%
Unsecured Convertible Debt No. 2 8 0.00%
Schedule 3.06
-------------
SCHEDULE OF MATERIAL LITIGATION
(NONE)
Schedule 3.09
-------------
SCHEDULE OF ADDITIONAL MATERIAL ADVERSE FACTS
(NONE)
Schedule 4.05
-------------
SCHEDULE OF EXISTING BORROWER
AND GUARANTOR INDEBTEDNESS
SCHEDULE OF EXISTING BORROWER INDEBTEDNESS
------------------------------------------
BORROWER LENDER AMOUNT RATE
---------- ----------- ---------------------------- --------------
SBH MAC INC. $1,080,000,000 7.80%
SBH MAC INC. $ 309,076,000 8.00%
SBH MAC INC. $ 65,950,000 7.80%
SBH MAC INC. $ 72,980,000 8.00%
SBH MAC INC. $ 795,000,000 8.80%
SBH MAC INC. $ 304,000,000 8.80%
SBH MAC INC. $ 100,000,000 8.00%
TOTAL-MAC $2,727,006,000
SBH SBC (Yen)2,312,002,500 5.00%
SBH SBC $ 25,000,000 5.80%
SCHEDULE OF EXISTING GUARANTOR INDEBTEDNESS
-------------------------------------------
BORROWER LENDER AMOUNT RATE
--------------------------- ------------------------ ------------------------- -------------------
▇▇▇▇-▇▇▇▇▇ SBH DELAWARE $1,080,000,000 7.80%
▇▇▇▇-▇▇▇▇▇ SBH DELAWARE $ 600,000,000 6.50%
ZD COMEX & FORUMS SBC $ 100,000,000 9.90%
ZD COMEX & FORUMS SBH DELAWARE $ 309,076,924 8.00%
ZD COMEX & FORUMS SBH DELAWARE $ 65,950,000 7.80%
ZD COMEX & FORUMS SBH DELAWARE $ 300,000,000 6.50%
ZD COMEX & FORUMS SBH DELAWARE $ 72,981,731 8.00%
ZD COMEX & FORUMS SBH DELAWARE $ 10,000,000 8.00%
SB KINGSTON SBH DELAWARE $ 875,000,000 8.80%
Schedule 4.06
-------------
SCHEDULE OF EXISTING GUARANTIES
(NONE)
Schedule 4.07
-------------
SCHEDULE OF EXISTING LIENS
Obligation Secured Collateral
------------------ ----------
(NONE)
Schedule 4.11
-------------
SCHEDULE OF EXISTING INVESTMENTS
INVESTMENT AMOUNT (COST)
Yahoo, Inc. $108,250,000
Kinesoft Development Corporation 12,000,000
SEGA Entertainment, Inc. 42,875,000
UT Starcom, Inc. 134,985,283
GeoCities, Inc. 51,658,634
Cybercash, Inc. 15,439,097
Electric Classifieds, Inc. 2,500,000
GT Interactive Software Corp. 38,250,000
▇▇▇▇▇▇▇ Communications Inc. 2,000,000
Wacos, Inc. 5,129,331
WebCel Communications 250,000
Schedule 4.12
-------------
SCHEDULE OF EXISTING BENEFIT PLANS
Kingston Technology Corporation
Kingston Technology Corporation Retirement Savings Plan
Schedule 5.01(b)
----------------
[To be agreed upon; form supplied as starting point]
SOFTBANK HOLDINGS INC.
CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
I, __________, [President, Chief Financial Officer] of SOFTBANK
Holdings Inc., a [jurisdiction of incorporation] corporation (the "Borrower"),
hereby certify, pursuant to Section 5.01 of the Guaranteed Credit Agreement
dated as of March 27, 1996, as amended and restated as of October 30, 1997 and
as further amended and restated as of February 26, 1998 among the Borrower, the
Banks listed on the signature pages thereof, The Bank of New York, as Agent, and
Guarantors party thereto, that:
1. (a) The accompanying [unaudited]1 consolidated and consolidating
financial statements of the Borrower and the Consolidated Subsidiaries as at
__________ and for the [fiscal year][quarterly accounting period]2 ending
__________, 19__, are complete and correct and present fairly, in accordance
with Generally Accepted Accounting Principles (except for changes therein or
departures therefrom described below that have been approved in writing by
Messrs. __________, the Borrower's current independent certified public
accountants), the consolidated and consolidating financial position of the
Borrower and the Consolidated Subsidiaries as at the end of such [fiscal
year][quarterly period]/2/, and the consolidated and consolidating results of
operations and cash flows for such quarterly period, and for the elapsed portion
of the fiscal year ended with the last day of [fiscal year][such quarterly
period]2, in each case on the basis presented [and subject only to normal year-
end auditing adjustments]/1/.
(b) Except as disclosed or reflected in such financial statements, as
at __________, neither the Borrower nor any Subsidiary had any Liability,
contingent or otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, have had or might have a Materially Adverse Effect on the
Borrower and the Consolidated Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally Accepted
Accounting Principles are as follows:
All such changes have been approved in writing by Messrs. __________.
3. There follow the calculations required to establish whether or not
the Borrower was in compliance with the following Sections of the Agreement:/4/
(a)
(b)
(c)
(d)
(e)
4. Based on an examination sufficient to enable me to make an
informed statement, no Default exists, including, in particular, any such
arising under the provisions of Article 4, except the following:
[If none such exist, insert "None"; if any do exist, specify the
same by Section, give the date the same occurred, and the steps being taken
by the Borrower or a Subsidiary with respect thereto.]
Dated:
------------------------------------
[President, Chief Financial Officer]
_______________
1. Include only in the case of a certificate to be delivered with respect to
quarterly financial statements.
2. Include first alternative in the case of a certificate to be delivered with
respect to year-end financial statements; include second alternative in the
case of a certificate to be delivered with respect to quarterly financial
statements.
3. Paragraph (b) should be included in, and Annex A attached to, the
Certificate only if changes from Generally Accepted Accounting Principles
are specified in Paragraph 2(a) of this or any previous Certificate.
4. The calculations should be made in the same manner and with the same degree
of detail as the calculations set forth in the certificate delivered by the
Borrower pursuant to Section 2.01(a()vi).
2
Schedule 5.02(a)
----------------
SCHEDULE OF HISTORICAL FINANCIAL STATEMENTS
▇▇▇▇-▇▇▇▇▇ PUBLISHING COMPANY
CONSOLIDATED INCOME STATEMENT
FOR THE YEAR ENDED DECEMBER 31, 1995
(Amounts in Thousands)
TOTAL WORLDWIDE
TOTAL REVENUES $ 768,930
TOTAL OPERATING EXPENSE 619,944
---------
TOTAL EBITDA 148,986
Less: Depreciation and Amortization 37,161
---------
TOTAL OPERATING INCOME 111,825
Interest Expense (Income), net 92,609
Amortization of Intangibles 332,597
Income Taxes
Loss on Investments in Joint Ventures 3,391
Other Non-Operating Expense (Income), net 4,695
---------
TOTAL NET INCOME $(321,467)
=========
3
4
▇▇▇▇-▇▇▇▇▇ PUBLISHING COMPANY
CONSOLIDATED STATEMENT OF CASH FLOW
YEAR ENDED DECEMBER 31, 1995
(Amounts in Thousands)
CASH FLOWS FROM OPERATING ACTIVITIES
------------------------------------
Net (Loss) $ (321,467)
Adjustments to reconcile net income to net cash
Depreciation and amortization 37,161
Amortization of intangibles 332,597
Corporate interest expense 94,203
Allowance for doubtful accounts 14,113
Amortization of deferred finance fee 3,432
Amortization of deferred rent credit (2,529)
Loss on investments in joint ventures 3,391
----------
160,901
Effects of changes in assets and liabilities
Accounts receivable (33,189)
Inventories (8,379)
Prepaid expenses and other current assets (3,830)
Other assets (5,674)
Accounts payable and accrued expenses 30,787
Unexpired subscriptions, net 2,784
Other, net (1,568)
----------
Net cash provided by operating activities 141,832
CASH FLOWS FROM INVESTING ACTIVITIES
------------------------------------
Capital expenditures (14,186)
Proceeds from sale of divisions 23,524
----------
5
Net cash provided by investing activities 9,338
CASH FLOWS FROM FINANCING ACTIVITIES
------------------------------------
Repayment of notes payable to banks (69,000)
Corporate interest payments (81,125)
Capital contributions 8,826
Repayment of notes to payable to sellers (1,033,931)
Payment of acquisition liabilities (32,521)
------------
Net cash used in financing activities (1,207,751)
Increase (decrease) in Cash and cash equivalents (1,056,581)
Effect of foreign currency exchange rates on cash 63
Cash and cash equivalents, beginning of period 1,066,606
-----------
Cash and cash equivalents, end of period $ 10,088
===========
6
▇▇▇▇-▇▇▇▇▇ PUBLISHING COMPANY
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1995
(Amounts in Thousands)
WORLDWIDE CONSOLIDATED
-------------------------------------------
January 1 December 31
ASSETS
------
CURRENT ASSETS
Cash and cash equivalents $1,066,606 $ 10,088
Accounts receivable, less allowances for doubtful accounts, 102,257 121,099
returns and cancellations
Inventories 12,811 21,194
Prepaid expenses and other current assets 17,939 21,556
---------- ----------
Total current assets 1,199,613 173,937
PROPERTY AND EQUIPMENT, less accumulated depreciation and 87,107 64,110
amortization
INTANGIBLES, net 1,402,300 1,059,373
DEFERRED FINANCE FEE, net 21,410 17,978
OTHER ASSETS 20,095 10,596
---------- ----------
TOTAL ASSETS $2,730,525 $1,325,994
========== ==========
LIABILITIES AND EQUITY
-----------------------
CURRENT LIABILITIES
Accounts payable and accrued expenses $ 120,918 $ 139,173
Unexpired subscriptions, net 74,361 81,737
Current portion of long-term debt 6,000 +
Other current liabilities 14,025 2,195
Notes payable to Sellers 1,033,931 +
---------- ----------
Total current liabilities 1,249,235 223,105
NOTES PAYABLE 509,000 446,000
SUBORDINATED DEBENTURES 525,000 525,000
OTHER LONG TERM OBLIGATIONS 56,015 53,380
EQUITY
Capital stock 391,275 400,099
Net income (loss) from January 1-December 31, 1995 + (321,467)
Accumulated currency translation adjustment + (123)
---------- ----------
Total equity, December 31, 1995 391,275 78,509
---------- ----------
TOTAL LIABILITIES AND EQUITY $2,730,525 $1,325,994
========== ==========
2
Schedule 9.01
-------------
SCHEDULE OF GUARANTORS
Guarantor: Address for Notices:
--------- -------------------
ZD COMDEX and Forums, Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇-▇▇▇▇▇ Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SBH Delaware, Inc. c/o ▇▇▇▇-▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Schedule 9.10
-------------
FORM OF GUARANTOR SUPPLEMENT
Reference is made to the Guaranteed Credit Agreement dated as of March
27, 1996, as amended and restated as of October 30, 1997 and as further amended
and restated as of February 26, 1998 among SOFTBANK Holdings Inc., the Banks
listed on the signature pages thereof, The Bank of New York, as Agent, and the
Guarantors party thereto (the "Credit Agreement"); capitalized terms used herein
and not otherwise defined herein shall have the meanings given to such terms in,
or by reference in, the Credit Agreement. The undersigned hereby agrees that
upon delivery hereof to the Bank the undersigned shall be and become a Guarantor
for all purposes of the Credit Agreement as fully and to the same extent as if
it were an original signatory thereto.
[Name of Guarantor]
By:
---------------------------
Name:
Title:
Dated:
Notice Address:
Attention:
Telephone:
Telecopy:
Schedule 10.10(a)
-----------------
NOTICE OF ASSIGNMENT
[Name and address
of Borrower in accordance with
Section 10.01(a)(i)]
[Name and address
of Agent in accordance with
Section 10.01(a)(ii)]
Date:
Gentlemen:
Reference is made to the Guaranteed Credit Agreement, dated as of
March 27, 1996, as amended and restated as of October 30, 1997 and as further
amended and restated as of February 26, 1998, among SOFTBANK Holdings Inc., the
Banks listed on the signature pages thereof, The Bank of New York, as Agent, and
the Guarantors party thereto (the "Credit Agreement"). The undersigned hereby
gives notice that [name of Assignor] [(the "Assignor")]/1/ has made the
following assignment to [name of Assignee] [(the "Assignee")]/2/:
Rights and Obligations
Assigned
Effective Date of
Assignment:
[The Assignee's Lending Offices and address for notices are as
follows:
Domestic Lending Office:
Eurodollar Lending Office:
-----------
1 Include definition if Footnote 4 material is to be included.
2 Include definition if Footnote 3 or Footnote 4 material is to be included.
2
Notice Address:]/3/
[The Assignor hereby requests that [the Borrower and] [the Agent]
consent to the assignment described above by signing a copy of this letter in
the space provided below and returning it to the Assignor. Such consent shall
release the Assignor from all of the obligations described above as having been
assigned to the Assignee.]4
[NAME OF ASSIGNOR]
By:
----------------------
Name:
Title:
[NAME OF ASSIGNEE]
By:
-----------------------
Name:
Title:
-------------
3 Omit if the Assignee is a Bank
4 Include the appropriate portion of the bracketed provision if (i) the
Assignor desires to be released from the assigned obligations, (ii) the
consent of the Borrower and/or the Agent is required for such release and
(iii) the Assignor has not otherwise obtained such consents.
3
[Assignment and release consented to:]/4/
SOFTBANK HOLDINGS INC.
By:
------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Agent
By:
--------------------------
Name:
Title:
-------------
4 Include the appropriate portion of the bracketed provision if (i) the
Assignor desires to be released from the assigned obligations, (ii) the
consent of the Borrower and/or the Agent is required for such release and
(iii) the Assignor has not otherwise obtained such consents.
4
EXHIBIT A-I
SOFTBANK HOLDINGS INC.
RC NOTE
February __, 1998
FOR VALUE RECEIVED, SOFTBANK HOLDINGS INC. (the "Borrower") hereby
promises to pay to the order of _______________________ (the "Bank") the
principal amount of the RC Loans outstanding, on the dates and in the amounts
specified in Section 1.04 of the Credit Agreement referred to below, and to pay
interest on the principal amount of each RC Loan on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each RC Loan and each payment, with
respect thereto.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences RC Loans made under, and is entitled to the
benefits of, the Guaranteed Credit Agreement, dated as of March 27, 1996 as
amended and restated as of October 30, 1997, and as further amended and restated
as of February 26, 1998, among the Borrower, the Guarantors party thereto, the
Banks party thereto and The Bank of New York, as Agent, as the same may be
amended from time to time. Reference is made to such Credit Agreement, as so
amended, for provisions relating to the prepayment and the acceleration of the
maturity hereof.
This Note shall, pursuant to New York General Obligations Law Section
5-1401, be governed by the law of the State of New York.
SOFTBANK HOLDINGS INC.
By:
--------------------
Name:
Title:
1
GRID
PROMISSORY NOTE
_______________________________________________________________________
Amount of Amount of Notation
Date Loan Principal Repaid Made By
----------- ----------------------- ----------------------- -----------
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
EXHIBIT A-II
SOFTBANK HOLDINGS INC.
SWING LOAN NOTE
February __, 1998
FOR VALUE RECEIVED, SOFTBANK HOLDINGS INC. (the "Borrower") hereby
promises to pay to the order of _______________________ (the "Swing Line Bank")
the principal amount of the Swing Loans outstanding, on the dates and in the
amounts specified in Section 1.04 of the Credit Agreement referred to below, and
to pay interest on the principal amount of each Swing Loan on the dates and at
the rates specified in Section 1.03 of such Credit Agreement. All payments due
the Swing Line Bank hereunder shall be made to the Swing Line Bank at the place,
in the type of money and funds and in the manner specified in Section 1.11 of
such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached
hereto, or on a continuation thereof, each Swing Loan and each payment, with
respect thereto.
Presentment, demand, protest, notice of dishonor and notice of intent
to accelerate are hereby waived by the undersigned.
This Note evidences Swing Loans made under, and is entitled to the
benefits of, the Guaranteed Credit Agreement, dated as of March 27, 1996 as
amended and restated as of October 30, 1997, and as further amended and restated
as of February 26, 1998, among the Borrower, the Guarantors party thereto, the
Banks party thereto and The Bank of New York, as Agent, as the same may be
amended from time to time. Reference is made to such Credit Agreement, as so
amended, for provisions relating to the prepayment and the acceleration of the
maturity hereof.
This Note shall, pursuant to New York General Obligations Law Section
5-1401, be governed by the law of the State of New York.
SOFTBANK HOLDINGS INC.
By:
--------------------
Name:
Title:
GRID
PROMISSORY NOTE
_______________________________________________________________________
Amount of Amount of Notation
Date Loan Principal Repaid Made By
----------- ----------------------- ----------------------- -----------
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
EXHIBIT B
SUBORDINATION AGREEMENT FORM
[ATTACH FORM]
AMENDMENT NO. 1
to
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment"), dated as of March 9, 1998 among
SOFTBANK Holdings Inc. (the "Borrower"), the guarantors listed on the signature
pages hereof (the "Guarantors"), The Bank of New York (the "Existing Bank"), The
Bank of New York, as Agent (the "Agent") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
(the "Incoming Bank"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Existing Bank and the Agent are
parties to the Guaranteed Credit Agreement dated as of March 27, 1996, as
amended and restated as of February 26, 1998 (as so amended and restated, the
"Agreement") (capitalized terms used and not otherwise defined herein shall have
the meanings ascribed thereto in the Agreement); and
WHEREAS, the Borrower has requested, and the Existing Bank and the Agent
have agreed to, the amendments to the Agreement more fully set forth in this
Amendment; and
WHEREAS, such amendments shall be of benefit, either directly or
indirectly, to the Borrower; and
WHEREAS, the Incoming Bank desires to become party to the Agreement, as
amended hereby, as a Bank;
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Amendments. Upon and after the Amendment Effective Date (as
----------
defined in Section 3 below):
(a) The aggregate amount of the Commitments shall be increased to
$450,000,000, the Commitments of each of the Banks (which shall include both the
Existing Bank and the Incoming Bank) shall be as set forth on Annex A hereto and
Annex A to the Agreement shall be restated in its entirety as set forth on Annex
A hereto.
(b) The Incoming Bank shall be a Bank for all purposes under the
Agreement, with all of the rights and obligations of a Bank thereunder, as fully
and to the same extent as if it were an original signatory thereto.
(c) The Borrower hereby designates the Incoming Bank as Co-Arranger
and Syndication Agent, and BNY Capital Markets, Inc. as Lead Arranger.
2. Representations and Warranties. In order to induce the Existing
------------------------------
Bank to agree to amend the Agreement and the Incoming Bank to become party to
the Agreement as amended hereby, the Borrower and each Guarantor make the
following representations and warranties, which shall survive the execution and
delivery of this Amendment:
(a) No Default has occurred and is continuing or would exist
immediately after giving effect to the amendments contained herein; and
(b) Each of the representations and warranties set forth in
Article 3 of the Agreement are true and correct as though such
representations and warranties were made at and as of the Amendment
Effective Date (as defined in Section 3 below), except to the extent that
any such representations or warranties are made as of a specified date or
with respect to a specified period of time, in which case such
representations and warranties shall be made as of such specified date or
with respect to such specified period. Each of the representations and
warranties made under the Agreement (including those made herein) shall
survive to the extent provided therein and not be waived by the execution
and delivery of this Amendment.
3. Amendment Effective Date. This Amendment shall become effective
------------------------
as of the date first referenced above on the date (the "Amendment Effective
Date") on which:
(a) the Agent shall have received this Amendment, executed and
delivered by the Borrower, each Guarantor, the Agent, the Existing Bank and
the Incoming Bank and
(b) the Incoming Bank shall have made the payment to the Existing Bank
referred to in Section 4 hereof.
4. Assignment and Assumption. Upon the Amendment Effective Date (as
-------------------------
defined in Section 3 above) the Existing Bank shall be deemed to sell and assign
to the Incoming Bank, and the Incoming Bank shall be deemed to purchase and
assume from the Existing Bank, without recourse, all right, title and interest
of the Existing Bank in RC Loans then outstanding to the extent in excess of the
Existing Bank's Pro Rata Share of such RC Loans, based on the Commitments as in
effect after giving effect to the amendments set forth in Section 1 hereof (such
RC Loans, the "Assigned Loans"). In consideration of such sale and assignment
the Incoming Bank shall pay to the Existing Bank an amount equal to the
principal amount of the Assigned Loans. Amounts payable by the Borrower with
respect to the Assigned Loans for periods prior to the Amendment Effective Date
shall be payable for the account of the Existing Bank, and such amounts payable
with respect to periods after the Amendment Effective Date shall be payable for
the account of the Incoming Bank.
5. Consent and Undertaking. The Borrower and each Guarantor hereby
-----------------------
consent to the assignment effected by Section 4 hereof, and the Borrower
undertakes promptly
2
following the Amendment Effective Date (as defined in Section 3 hereof) to
provide a new Note to the Incoming Bank.
6. Payment of Expenses. The Borrower hereby agrees to pay all
-------------------
reasonable costs and expenses incurred by the Agent in connection with the
preparation, execution and delivery of this Amendment and any other documents or
instruments which may be delivered in connection herewith.
7. Counterparts. This Amendment may be executed in counterparts
------------
and by different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which, when
taken together, shall constitute one and the same instrument.
8. Ratification. The Agreement, as amended by this Amendment, is
------------
and shall continue to be in full force and effect and is hereby in all respects
confirmed, approved and ratified.
9. Governing Law. The rights and duties of the Borrower, the
-------------
Guarantors, the Existing Bank, the Incoming Bank and the Agent under this
Amendment shall, in accordance with New York General Obligations Law Section 5-
1401, be governed by the law of the State of New York.
10. Reference to Agreement. From and after the Amendment Effective
----------------------
Date, each reference in the Agreement to "this Agreement," "hereof," "hereunder"
or words of like import, and all references to the Agreement in any and all
agreements, instruments, documents, notes, certificates and other writings of
every kind and nature, shall be deemed to mean the Agreement as modified and
amended by this Amendment.
3
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first written above.
SOFTBANK HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
ZD COMDEX AND FORUMS, INC.,
as a Guarantor
By: /s/ Mo Verani
--------------------------------
Name: Mo Verani
Title: Chief Financial Officer
▇▇▇▇-▇▇▇▇▇ INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
SBH DELAWARE, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Agent and a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Principal
ANNEX A
Banks, Lending Offices
and Notice Addresses Commitments
-------------------- -----------
THE BANK OF NEW YORK $225,000,000
Domestic Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇/8595
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Banks, Lending Offices
and Notice Addresses Commitments
-------------------- -----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SENIOR FUNDING, INC. $225,000,000
Domestic Lending Office:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
And: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇