Exhibit 5
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") dated as of July 19, 2000 by and
between XXXXXXXXXX.XXX, INC., a corporation organized under the laws of the
State of Georgia (the "Borrower"), and OMNICOM FINANCE, INC., a corporation
organized under the laws of the State of Delaware (the "Lender").
ARTICLE I - DEFINITIONS
Section 1.01 Definitions. For the purposes of this Agreement:
"Acceptable Equity Issuance" means a public offering by Borrower of the
Borrower's securities registered on a registration statement filed with the
Securities and Exchange Commission in which the gross cash proceeds to the
Borrower are at least $30.0 million; provided, however, that any offering to the
Borrower's employees, directors and consultants registered on Form S-8 or any
business combination registered on Form S-4 shall not be deemed to be an
Acceptable Equity Issuance.
"Applicable Law" means all applicable provisions of constitutions,
statutes, laws, rules, regulations and orders of all governmental bodies and all
orders, rulings and decrees of all courts and arbitrators of any jurisdiction.
"Applicable Rate" means the internal cost of capital for Omnicom Group,
Inc. as in effect from time to time.
"Business Day" means any day other than a Saturday, Sunday or other day on
which banks in Atlanta and New York are authorized or required to close.
"Effective Date" means the later of: (a) the date hereof or (b) the date
on which all of the conditions precedent set forth in Section 3.01. shall have
been satisfied or waived by the Lender.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"Event of Default" means any of the events specified in Section 8.01.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
governmental bodies.
"Loan Documents" means this Agreement, the Note, and any other document or
instrument executed and delivered by the Borrower or the Lender in connection
herewith or therewith.
"Material Adverse Effect" means (a) with respect to the Borrower, a
materially adverse effect on (i) the business, properties, condition (financial
or otherwise), results of operations or performance of the Borrower, or (ii) the
ability of the Borrower to perform its obligations under any Loan Document to
which it is a party and (b) with respect to the Lender, a materially adverse
effect on (i) the business, properties, condition (financial or otherwise),
results of operations or performance of the Lender or (ii) the ability of the
Lender to perform its obligations under any Loan Document to which it is a
party.
"Net Proceeds" means, in respect of an Acceptable Equity Issuance, the
aggregate amount of all cash received by the Borrower in respect of such
Acceptable Equity Issuance net of investment banking fees, legal fees,
accountants fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred by the Borrower in connection with such
Acceptable Equity Issuance.
"Note" means a promissory note of the Borrower in favor of the Lender in
substantially the form of Exhibit A.
"Notice of Borrowing" means a notice in the form of Exhibit B to be
delivered to the Lender pursuant to Section 2.01.(b) evidencing the Borrower's
request for a Revolving Loan.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
agency.
"Person" means an individual, corporation, partnership, limited liability
company, association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"Plan" means any employee benefit plan within the meaning of Section 3(3)
of ERISA.
"Post-Default Rate" means a rate per annum equal to two percent (2.0%)
plus the Applicable Rate as in effect from time to time.
"Revolving Commitment" means the Lender's commitment to make Revolving
Loans pursuant to Section 2.01. in an amount up to, but not exceeding
$10,000,000.
"Revolving Credit Termination Date" means the earlier to occur of (i) the
first anniversary of the effective date of the merger (the "Merger") of Career
Mosaic Inc. ("Career Mosaic") into Resume Acquisition Corporation ("Merger Sub")
pursuant to an Agreement and Plan of Merger (as the same may be amended, the
"Merger Agreement") dated April 15, 2000 among Omnicom Group Inc., Xxxxxxx Xxxxx
Group Inc., Career Mosaic, Borrower, Merger Sub and ITC Holding Company, Inc. or
(ii) 10 Business Days after the closing of an Acceptable Equity Issuance.
"Revolving Loan" has the meaning set forth in Section 2.01.
"Termination Date" means the first anniversary of the effective date of
the Merger under the Merger Agreement.
References in this Agreement to "Sections", "Articles", and "Exhibits" are to
sections, articles, and exhibits herein and hereto unless otherwise indicated.
references in this Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall include
all documents, instruments or agreements issued or executed in replacement
thereof, to the extent permitted hereby and (c) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
supplemented, restated or otherwise modified from time to time to the extent
permitted hereby and in effect at any given time. Wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the masculine, feminine
or neuter gender shall include the masculine, the feminine and the neuter.
Titles and captions of Articles, Sections, subsections and clauses in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement. Unless otherwise indicated, all references to time are
references to Eastern standard time.
ARTICLE II - REVOLVING CREDIT FACILITY
Section 2.01. Revolving Loans.
(a) Generally Subject to the terms and conditions of this Agreement, the
Lender agrees to make loans ("Revolving Loans") to the Borrower from time to
time during the period from the Effective Date through but excluding the
Revolving Credit Termination Date in an aggregate principal amount at any time
outstanding not to exceed the Revolving Commitment. Subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow
Revolving Loans hereunder.
(b) Requesting Revolving Loans. The Borrower shall give the Lender notice
pursuant to a Notice of Borrowing or telephonic notice of each borrowing of
Revolving Loans. Each Notice of Borrowing shall be delivered to the Lender
before 11:00 a.m. on the day one Business Day prior to proposed date of such
borrowing (which date must be a Business Day). Any such telephonic notice shall
include all information to be specified in a written Notice of Borrowing and
shall be promptly confirmed in writing by the Borrower pursuant to a Notice of
Borrowing. Each Revolving Loan shall be in a minimum amount of $1,000,000 and
integral multiples of $100,000 in excess thereof.
(c) Disbursements of Revolving Loan Proceeds. Subject to the terms and
conditions hereof, no later than 2:00 p.m. on the date specified in the Notice
of Borrowing, the Lender will make available the proceeds of the requested
Revolving Loan to the account of the Borrower specified by the Borrower in such
Notice of Borrowing.
Section 2.02. Repayment of Revolving Loans . The Borrower shall repay the
aggregate outstanding principal balance of all Revolving Loans, all accrued and
unpaid interest thereon and all other amounts due and payable under the Loan
Documents, in full on the Revolving Credit Termination Date. In the event of any
breach by Lender of (1) the representations and warranties contained in Article
V of this Agreement or (2) the covenants contained in Article VII of this
Agreement, the obligation of Borrower to repay hereunder shall not be affected
and Borrower shall have no right to withhold repayment of the aggregate
outstanding principal balance of all Revolving Loans, all accrued and unpaid
interest thereon and all other amounts due and payable under the Loan Documents
upon any such breach.
Section 2.03. Prepayments.
(a) Voluntary. The Borrower may prepay any Revolving Loan (in whole or in
part) at any time without premium or penalty. The Borrower shall give the Lender
at least 1 Business Day (and by 11:00 am on such Business Day) prior written
notice of the prepayment of any Revolving Loan. Upon receipt of such notice
(which shall be irrevocable) the Borrower shall be obligated to make the
prepayment on the date specified and in the amount of the Revolving Loan,
together with all accrued and unpaid interest thereon, and all other amounts
then due and payable under the Loan Documents in respect of such Revolving Loan.
Such prepayments may only be made on a Business Day.
(b) Mandatory. The Borrower shall apply Net Proceeds of an Approved Equity
Issuance to repay in full the outstanding principal balance of all Revolving
Loans, all accrued and unpaid interest thereon, and all other amounts then due
and payable under the Loan Documents within 10 Business Days of receipt of such
Net Proceeds. Such a prepayment shall be made on a Business Day upon at least 1
Business Day prior notice (by 11:00 am on such day).
Section 2.04. Rates and Payment of Interest on Revolving Loans.
(a) Rate Generally; Default Rate. The Borrower promises to pay to the
Lender interest on the unpaid principal amount of each Revolving Loan for the
period from and including the date of the making of such Revolving Loan to but
excluding the date such Revolving Loan shall be paid in full, at a per annum
rate equal to the Applicable Rate. Notwithstanding the foregoing, during the
continuance of an Event of Default, the Borrower shall pay to the Lender
interest at the Post-Default Rate on the outstanding principal amount of all
Revolving Loans and on all other amounts payable by the Borrower hereunder.
(b) Payment of Interest. Accrued interest on each Revolving Loan shall be
payable quarterly on the 7th Business Day of March, June, September and December
in each year. Interest payable at the Post-Default Rate shall be payable from
time to time on demand by the Lender.
Section 2.05. Payments. Unless otherwise set forth herein, all payments to
the Lender shall be made by the Borrower in United States dollars in immediately
available funds free and clear and without deduction for any set-off,
counterclaim, levy, withholding or any other deduction of any kind not later
than 2:00 p.m. on the due date thereof in accordance with written
payment instructions provided by the Lender to the Borrower from time to time.
Interest shall be computed on the basis of a year of 360 days and actual days
elapsed.
Section 2.06. Usury. In no event shall the amount of interest due or
payable on the Revolving Loans exceed the maximum rate of interest allowed by
Applicable Law and, if any such payment is paid by the Borrower or received by
the Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Lender in writing that the Borrower elects
to have such excess sum returned to it forthwith. It is the express intent of
the parties hereto that the Borrower not pay and the Lender not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under Applicable Law.
ARTICLE III - CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Initial Revolving Loan. The
obligation of the Lender to make the initial Revolving Loan is subject to the
condition precedent that the Lender shall have received all of the following to
its satisfaction:
(a) Counterparts of this Agreement executed by each of the parties hereto;
(b) The Note executed and delivered by the Borrower;
(c) A certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of the Borrower
with respect to each of the officers of the Borrower authorized to execute and
deliver the Notices of Borrowing; and
(d) The Articles of Incorporation of the Borrower certified as of a recent
date by the Secretary of State of the State of Georgia;
(e) A Certificate of Existence with respect to the Borrower issued as of a
recent date by the Secretary of State of the State of Georgia and certificates
of qualification to transact business or other comparable certificates issued by
each Secretary of State (and any state department of taxation, as applicable) of
each state in which the Borrower is required to be so qualified;
(f) Copies certified by the Secretary or Assistant Secretary of the
Borrower of (i) the bylaws of the Borrower and (ii) all corporate action taken
by the Borrower to authorize the execution, delivery and performance of the Loan
Documents to which it is a party; and
(g) Such other documents and instruments as the Lender may reasonably
request.
Section 3.02. Conditions Precedent to each Revolving Loan The obligation
of the Lender to make any Revolving Loan is subject to the further condition
precedent that as of the date of the Notice of Borrowing therfor and as of the
date such Revolving Loan is to be borrowed (both immediately before and
immediately after such borrowing):
(a) each of the Borrower's representations and warranties in Section 4.01
shall be true and correct in all material respects as of such date; and
(b) no Event of Default (or event which with the passage of time or giving
of notice or both would constitute and Event of Default) shall be continuing or
would occur as a result thereof.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BORROWER
Section 4.01. Representations and Warranties. The Borrower represents and
warrants to the Lender as follows:
(a) Organization; Power; Qualification. The Borrower is a corporation,
duly organized, validly existing and in good standing under the jurisdiction of
its incorporation, has the power and authority to own its properties and to
carry on its business as now being and hereafter proposed to be conducted and is
duly qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified would
have a Material Adverse Effect on the Borrower.
(b) Authorization of and Enforceability of Loan Documents. The Borrower
has the right, authority and power, and, has taken all necessary corporate
action to authorize it, to execute, deliver and perform the Loan Documents to
which it is a party (and to borrow the Revolving Loans) in accordance with their
respective terms. The Loan Documents to which the Borrower is a party have been
duly authorized, executed and delivered by the duly authorized officers of the
Borrower, and each is a legal, valid and binding obligation of the Borrower
enforceable against it in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, and other similar laws affecting the rights
of creditors generally and the availability of equitable remedies for the
enforcement of certain obligations (other than the payment of principal)
contained herein or therein may be limited by equitable principles generally.
(c) Compliance of Agreement, Note, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance of this Agreement, the Note and the
other Loan Documents to which the Borrower is a party in accordance with their
respective terms and the borrowings hereunder do not and will not, by the
passage of time, the giving of notice, or both: (i) require any Governmental
Approval or violate any Applicable Law relating to the Borrower, which if not
obtained or violated would have a Material Adverse Effect on the Borrower; (ii)
conflict with, result in a breach of or constitute a default under the articles
of incorporation or the bylaws of the Borrower, or any indenture, agreement or
other instrument to which the Borrower is a party or by which it or any of its
respective properties is bound; or (iii) result in the creation or imposition of
any lien or security interest on any of the assets of the Borrower.
(d) Litigation. There are no actions, suits or proceedings pending (nor,
to the knowledge of the Borrower, threatened) against or in any other way
relating adversely to or affecting the Borrower in any court or before any
arbitrator of any kind or before or by any other Governmental Authority which if
adversely determined, would have a Material Adverse Effect on the Borrower.
(e) Compliance with Law; Governmental Approvals. The Borrower is in
compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Law relating to the Borrower except for noncompliances
which, and Governmental Approvals the failure to possess which, would not,
individually or in the aggregate, reasonably be likely to have a Material
Adverse Effect on the Borrower.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF LENDER
Section 5.01. Representations and Warranties. The Lender represents and
warrants to the Borrower as follows:
(a) Organization; Power; Qualification. The Lender is a corporation, duly
organized, validly existing and in good standing under the jurisdiction of its
incorporation, has the power and authority to own its properties and to carry on
its business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization and where the failure to be so qualified would
have a Material Adverse Effect on the Lender.
(b) Authorization and Enforceability of Loan Documents. The Lender has the
right and power has taken all necessary corporate action to authorize it, to
execute, deliver and perform the Loan Documents to which it is a party in
accordance with their respective terms. The Loan Documents to which the Lender
is a party have been duly executed and delivered by the duly authorized officers
of the Lender, and each is a legal, valid and binding obligation of the Lender
enforceable against it in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, and other similar laws affecting the rights
of creditors generally and the availability of equitable remedies for the
enforcement of certain obligations (other than the payment of principal)
contained herein or therein may be limited by equitable principles generally.
(c) Compliance of Agreement, Loan Documents with Laws, Etc. The execution,
delivery and performance of this Agreement and the other Loan Documents to which
the Lender is a party in accordance with their respective terms do not and will
not, by the passage of time, the giving of notice, or both: (i) require any
Governmental Approval or violate any Applicable Law relating to the Lender,
which if not obtained or violated would have a Material Adverse Effect on the
Lender; or (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation or the bylaws of the Lender, or any
indenture, agreement or other instrument to which the Lender is a party or by
which it or any of its respective properties is bound.
(d) Litigation. There are no actions, suits or proceedings pending (nor,
to the knowledge of the Lender, threatened) against or in any other way relating
adversely to or affecting the Lender in any court or before any arbitrator of
any kind or before or by any other Governmental Authority which if adversely
determined, would have a Material Adverse Effect on the Lender.
(e) Compliance with Law; Governmental Approvals. The Lender is in
compliance with each Governmental Approval applicable to it and in compliance
with all other Applicable Law relating to the Lender except for noncompliances
which, and Governmental Approvals the failure to possess which, would not,
individually or in the aggregate, have a Material Adverse Effect on the Lender.
(f) Funding Sources. None of the funds used by the Lender to finance the
Loans include assets of any Plan, other than a Plan exempt from the coverage of
ERISA.
ARTICLE VI - COVENANTS OF BORROWER
For so long as any Revolving Loan remains unpaid, or this Agreement is in
effect, the Borrower shall comply with the following covenants:
Section 6.01. Preservation of Corporate Existence and Similar Matters. The
Borrower shall preserve and maintain its corporate existence, rights,
franchises, licenses and privileges in the jurisdiction of its incorporation and
qualify and remain qualified as a foreign corporation and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its businesses require such qualification or authorization and where
the failure to be so qualified would reasonably be likely to have a Material
Adverse Effect on the Borrower.
Section 6.02. Compliance with Applicable Law. The Borrower shall comply
with all Applicable Law, including the obtaining of all Governmental Approvals,
except where non-compliance would not reasonably be likely to have a Material
Adverse Effect on the Borrower.
Section 6.03. Maintenance of Property . The Borrower shall protect and
preserve all of its properties, and maintain in good repair, working order and
condition all of its respective tangible properties, ordinary wear and tear
excepted.
Section 6.04. Use of Proceeds. The Borrower shall use the proceeds of the
Revolving Loans for general corporate purposes.
Section 6.05. Inspection of Books, Records, Properties. The Borrower shall
allow the Lender, during normal business hours and following reasonable prior
written notice, to inspect the books, records and properties of the Borrower and
to discuss the business and financial affairs of the Borrower with
representatives of the Borrower, including, without limitation, the Borrower's
public accountants.
Section 6.06. Information. The Borrower shall, from time to time, deliver
to the Lender such data, certificates, reports, statements, documents or further
information regarding the business, properties, condition (financial or
otherwise), results of operations or performance of the Borrower as the Lender
may reasonably request in writing.
Section 6.07 Acceptable Equity Issuance. The Borrower shall notify the
Lender promptly of the closing of an Acceptable Equity Issuance.
Section 6.08 Notice of Default. Immediately upon the happening of any
condition or event which constitutes an Event of Default, the Borrower shall
furnish Lender with written notice specifying the nature and period of existence
thereof and the action being taken or proposed to be taken with respect thereto.
Section 6.09 Insurance. The Borrower shall maintain insurance policies and
programs of a type and in amounts that are customary and appropriate for
businesses similar to the business in which it is engaged.
Section 6.10 Financial Statements Borrower shall furnish to lender:
(a) at the same time as filed with the Borrower's Annual Report on
Form 10-K for each fiscal year of the Borrower, (1) a copy of the audited
consolidated balance sheet of the Borrower and its subsidiaries as at the end of
such year and the related audited consolidated financial statements of income
for such year, setting forth in each case in comparative form the figures for
the immediately preceding year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by Xxxxxx Xxxxxxxx LLP or other independent certified public accountants
of nationally recognized standing and (2) a compliance certificate containing
all information and calculations necessary for determining compliance with the
financial covenant contained in Section 6.14 hereof as of the last day of such
fiscal year; and
(b) at the same time as filed with the Borrower's Quarterly Report
on Form 10-Q for each of the first three fiscal quarterly periods of each fiscal
year of the Borrower, (1) the unaudited consolidated balance sheet of the
Borrower and its subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by the Chief
Financial Officer of the Borrower as being fairly stated in all material
respects (subject to normal year-end audit adjustments and the omission of
footnotes) and (2) a compliance certificate containing all information and
calculations necessary for determining compliance with the financial covenant
contained in Section 6.14 hereof as of the last day of such fiscal quarter.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or the Chief Financial Officer,
as the case may be, and disclosed therein).
Section 6.11 Payment of Indebtedness Borrower shall pay, discharge or
otherwise satisfy at or before maturity all of its material indebtedness (other
than trade debt and accounts payable), except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided in
the financial statements of the Borrower.
Section 6.12 Stock Acquisition Borrower shall not purchase, redeem, retire
or otherwise acquire for value any of its shares of capital stock, or make any
commitment to do so.
Section 6.13 Capital Expenditures Borrower shall not make or commit to
make any Capital Expenditures, except for Capital Expenditures of the Borrower
and its subsidiaries in the ordinary course of business not exceeding $5,000,000
for the period commencing on the date hereof and ending on the Termination Date.
For purposes of this Section 6.13, "Capital Expenditures" shall mean
expenditures that are or should be capitalized in accordance with GAAP.
Section 6.14 Consolidated Revenues Borrower shall have consolidated
revenues of at least (1) $7,150,000 for the quarter ended September 30, 2000,
(2) $7,500,000 for the quarter ended December 31, 2000, (3) $7,900,000 for the
quarter ended March 31, 2001 and (4) $8,300,000 for the quarter ended June 30,
2001.
ARTICLE VII - COVENANTS OF LENDER
For so long as this Agreement is in effect, the Lender shall comply with
the following covenants:
Section 7.01. Preservation of Corporate Existence and Similar Matters. The
Lender shall preserve and maintain its corporate existence, rights, franchises,
licenses and privileges in the jurisdiction of its incorporation and qualify and
remain qualified as a foreign corporation and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
businesses require such qualification or authorization and where the failure to
be so qualified would have a Material Adverse Effect on the Lender.
Section 7.02. Compliance with Applicable Law. The Lender shall comply with
all Applicable Law, including the obtaining of all Governmental Approvals,
except where compliance would not have a Material Adverse Effect on the Lender.
Section 7.03. Maintenance of Property . The Lender shall protect and
preserve all of its properties, and maintain in good repair, working order and
condition all of its respective tangible properties, ordinary wear and tear
excepted.
ARTICLE VIII - DEFAULT
Section 8.01. Events of Default. Each of the following shall constitute an
Event of Default:
(a) Default in Payment. The Borrower shall fail to pay the principal of,
or interest on, any of the Revolving Loans, or any other amount due under the
Loan Documents, when and as due (whether upon demand, at maturity, by reason of
acceleration or otherwise) and such failure shall continue for a period of 10
Business Days after the date upon which the Borrower has received written notice
of such failure from the Lender.
(b) Misrepresentations. Any written statement, representation or warranty
made by the Borrower under or pursuant to any Loan Document shall prove to have
been incorrect or misleading in any material respect when made.
(c) Default in Performance. The Borrower shall fail to perform or observe
any term, covenant, condition or agreement contained in this Agreement or any
other Loan Document to which it is a party and not otherwise mentioned in this
Section and such failure shall continue for a period of 15 Business Days after
the date upon which the Borrower has received written notice of such failure
from the Lender.
(d) Debt Cross-Default. The Borrower shall fail to pay when due and
payable the principal of, or interest on, any indebtedness for money having an
aggregate outstanding principal amount of $1,000,000 or more or the maturity of
any such indebtedness shall have (i) been accelerated in accordance with the
provisions of any indenture, contract or instrument evidencing, providing for
the creation of or otherwise concerning such indebtedness or (ii) been required
to be prepaid or repurchased prior to the stated maturity thereof.
(e) Voluntary Bankruptcy Proceeding. The Borrower shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended, or other federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of, or commence any proceeding or other action under, any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; (iii) 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 Applicable
Laws or consent to any proceeding or action described in the immediately
following subsection; (iv) 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, or liquidator of itself or of a substantial
part of its property, domestic or foreign; (v) admit in writing its inability to
pay its debts as they become due; (vi) make a general assignment for the benefit
of creditors; or (vii) take any corporate or similar action for the purpose of
effecting any of the foregoing.
(f) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Borrower, in any court of competent jurisdiction seeking:
(i) relief under the Bankruptcy Code of 1978, as amended or other federal
bankruptcy laws (as now or hereafter in effect) or under any other Applicable
Laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; or (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like for the Borrower, or of all
or any substantial part of its assets, and such case or proceeding shall
continue undismissed or unstayed for a period of 60 consecutive calendar days,
or an order granting any remedy or other
relief requested in such case or proceeding against the Borrower (including, but
not limited to, an order for relief under such Bankruptcy Code or such other
federal bankruptcy laws) shall be entered.
Section 8.02. Remedies. Upon the occurrence of an Event of Default, the
Lender may exercise any or all of the following rights and remedies:
(a) Acceleration. If any Event of Default shall have occurred and be
continuing, the Lender may: (i) declare the principal of, and accrued but unpaid
interest on, the Revolving Loans at the time outstanding to be forthwith
immediately due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all of
which are expressly waived, anything in any Loan Document to the contrary
notwithstanding and (ii) terminate this Agreement and the making of Revolving
Loans hereunder (and the obligations of the Lender in respect thereof);
provided, however, that if the Event of Default set forth in Section 8.01(e) or
8.01(f) hereof shall have occurred, all of the principal of, and accrued but
unpaid interest on, the Revolving Loans shall become automatically due and
payable and this Agreement and the making of Revolving Loans (and the
obligations of the Lender in respect thereof) shall automatically terminate.
(b) Other Remedies. The Lender may exercise any and all of its rights
under any and all of the other Loan Documents and under any Applicable Law.
Section 8.03. Rights Cumulative. The rights and remedies of the Lender
under the Loan Documents shall be cumulative and not exclusive of any rights or
remedies which it would otherwise have. In exercising its rights and remedies
the Lender may be selective and no failure or delay by the Lender in exercising
any right shall operate as a waiver of such right, nor shall any single or
partial exercise of any power or right preclude its other or further exercise or
the exercise of any other power or right.
ARTICLE IX - MISCELLANEOUS
Section 9.01. Notices. Unless otherwise provided herein, communications
provided for hereunder shall be in writing and shall be mailed, telecopied or
delivered as follows:
If to the Borrower:
XxxxXxxxxx.XXX, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the Lender:
Omnicom Finance, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with this
Section. All such notices and other communications shall be effective (i) if
mailed, when received; (ii) if telecopied, when transmitted; or (iii) if hand
delivered, when delivered.
Section 9.02. Indemnity; Expenses.
(a) In consideration of the execution and delivery of this Agreement by
Lender, the Borrower hereby indemnifies, exonerates and holds the Lender and
each of its officers, directors, employees and agents (each an "Indemnitee")
free and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), including reasonable attorneys'
fees and disbursements (collectively, the "Indemnified Liabilities"), incurred
by the Indemnitees or any of them as a result of, or arising out of, or relating
to the execution, delivery, enforcement, performance and administration of this
Agreement or any other Loan Document, except for Indemnified Liabilities arising
for the account of a particular Indemnitee by reason of the relevant
Indemnitee's gross negligence or wilful misconduct.
(b) Without limiting the foregoing, the Borrower agrees to pay or
reimburse the Lender for all costs and expenses incurred in connection with the
enforcement or preservation of any rights under the Loan Documents, including
the reasonable fees and disbursements of its counsel actually incurred.
(c) The agreements in this Section 9.02 shall survive the payment in full
of all Revolving Loans and the termination of this Agreement and the other Loan
Documents for a period of one year after the termination of this Agreement and
the other Loan Documents.
Section 9.03. Litigation.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
THE BORROWER AND THE LENDER WOULD BE BASED ON DIFFICULT AND COMPLEX ISSUES OF
LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE LENDER AND THE BORROWER
HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY
KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY
OR AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT, THE NOTE, OR ANY
OTHER LOAN DOCUMENT OR BY
REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN THE
BORROWER AND THE LENDER OF ANY KIND OR NATURE.
(b) EACH OF THE BORROWER AND THE LENDER HEREBY AGREES THAT THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION AND
ANY STATE COURT LOCATED IN XXXXXX COUNTY, GEORGIA, SHALL HAVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE BORROWER AND THE LENDER,
PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE LOANS, THE NOTE OR ANY
OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. THE BORROWER
AND THE LENDER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE BORROWER AND THE LENDER
EACH HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER
PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND
COMPLAINT, OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO THE BORROWER OR THE LENDER, AS APPLICABLE, AT ITS ADDRESS FOR
NOTICES PROVIDED FOR HEREIN. SHOULD THE BORROWER OR THE LENDER FAIL TO APPEAR OR
ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY DAYS
AFTER THE MAILING THEREOF, SUCH PARTY SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS.
(c) EACH PARTY FURTHER WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES
NOT TO PLEAD OR CLAIM THE SAME.
(d) THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO
PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE
ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN
ANY OTHER APPROPRIATE JURISDICTION.
(e) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE
THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE
OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT.
Section 9.04. Amendments. Except as otherwise expressly provided in this
Agreement, any consent or approval required or permitted by this Agreement or in
any Loan Document to be given by the Lender may be given, and any term of this
Agreement or of any other Loan Document may be amended, and the performance or
observance by the Borrower of any terms of
this Agreement or such other Loan Document or the continuance of any Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Lender (and, in the case of an amendment to any Loan Document, the written
consent of the Borrower).
Section 9.05. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 9.06. Termination; Survival of Provisions. At such time as the
Lender is not obligated under this Agreement to make any Revolving Loans, this
Agreement shall terminate.
Section 9.07. Counterparts. This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all of which
counterparts together shall constitute but one and the same instrument.
Section 9.08. Entire Agreement. This Agreement, the Note, and the other
Loan Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the
subject matter hereof and may not be contradicted or varied by evidence of
prior, contemporaneous, or subsequent oral agreements or discussions of the
parties hereto.
Section 9.09. Construction. The Borrower and the Lender acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement and the other Loan Documents
with its legal counsel and that this Agreement and the other Loan Documents
shall be construed as if jointly drafted by the Borrower and the Lender.
Section 9.10. Benefits; Assignment. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, except that neither party may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of the other party.
[Signature on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be executed by their authorized officers all as of the day and year first
above written.
XXXXXXXXXX.XXX, INC.
By: /s/ XXXX XXXXXX
----------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
OMNICOM FINANCE, INC.
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
