EXHIBIT 10.14(b)
LOAN AGREEMENT
LOAN AGREEMENT dated as of March 17, 1998 by and between Think New Ideas.
Inc., with an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000 (the
"Borrower") and Omnicom Finance Inc., a Delaware corporation (the "Creditor")
with offices at 000 Xxxxxxx Xxxxxx. Xxx Xxxx, XX 00000.
WHEREAS, the Borrower has requested the Creditor to make a loan to
Borrower in the amount of Five Hundred Thousand ($500,000) Dollars and the
Creditor is willing to lend the Borrower such amount upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, the Borrower and the Creditor hereby agree as
follows:
1.0 DEFINITIONS. For the purposes of this Loan Agreement, unless the context
indicates otherwise:
1.1 "CLOSING DATE." - shall mean March 17, 1998.
1.2 "EVENTS OF DEFAULT." - shall mean any of the Events of Default set forth
under Section 5.1 hereof.
1.3 "LOAN AGREEMENT." - shall mean this Loan Agreement between the Borrower and
the Creditor, as amended or supplemented from time to time.
1 .4 "LOAN INSTRUMENTS." - shall mean this Loan Agreement, the Note and any
other instruments and documents executed between the Creditor and the Borrower
in connection herewith.
1.5 "LOAN." - shall mean the loan made by the Creditor to the Borrower pursuant
to the Note and Section 2.0 hereof.
1.6 "NOTE." - shall mean the promissory note executed by the Borrower in
substantially the form of Exhibit A attached hereto.
2.0 THE LOAN.
2.1 LOAN. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth being true and correct when
made, the Creditor agrees to make a Loan to the Borrower in the amount of
$500,000. The Loan shall be evidenced by the Note dated the Closing Date.
2.2 USE OF PROCEEDS. The Borrower may only use the proceeds of the Loan for
business purposes.
2.3 INTEREST. The Loan shall bear interest at a rate equal to eight (8%) percent
per-annum. Interest on the Loan shall be calculated based on the daily
outstanding balance thereof during the interest period and on the basis of a 360
day year.
2.4 PAYMENTS. The Borrower promises to pay interest and the entire principal
amount of this Note upon thirty (30) days notice from Creditor or December 31,
1998, whichever is earlier.
3 .0 REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants
to the Creditor that the following are true and correct:
3.1 ORGANIZATION, CORPORATE POWER, ETC. The Borrower is a corporation duly
organized, validly existing, and in good standing under the laws of its state of
incorporation.
3.2. VALIDITY OF THE LOAN INSTRUMENTS. The execution, delivery and performance
by the Borrower of the Loan Instruments and the borrowing evidenced by the Note
(i) are within the corporate powers of the Borrower, (ii) have been duly
authorized by all requisite corporate action on the part of the Borrower and
(iii) will not violate any provisions of applicable law now in effect, any order
of any court or other agency of government, the Articles of Organization or
By-Laws 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 property is bound, or
be in conflict with or result in a breach of, or constitute (with or without the
giving of notice or lapse of time, or both) a default under any such indenture,
agreement or other instrument. The Loan Instruments, when executed by the
Borrower, will each constitute legal, valid and binding obligations in
accordance with their respective terms.
4.0 CONDITIONS OF LENDING. The Creditor shall not be obligated to make the Loan
to the Borrower hereunder unless the following conditions have been satisfied:
4.1 AGREEMENTS, ETC. On the Closing date, the Borrower shall have delivered to
the Creditor the following, duly authorized, executed, and in form and substance
acceptable to the Creditor:
(a) This Loan Agreement executed by the Borrower; and
(b) The Note executed by the Borrower.
4.2 REPRESENTATIONS AND WARRANTIES. On the Closing Date, the representations and
warranties of the Borrower in this Loan Agreement shall be true and correct.
4.3 NO DEFAULT. On the Closing Date, no Event of Default, or event which with
the giving of notice or lapse of time, or both, would constitute an Event of
Default, shall have occurred and be continuing.
5.0 DEFAULT.
5.1 EVENTS OF DEFAULT. The occurrence of any of the following shall constitute
an Event of Default hereunder:
5.1.1 DEFAULT IN PAYMENT. The Borrower shall fail to pay all or any
portion of the principal or interest on the Note when due and payable.
5.1.2 BANKRUPTCY, ETC. The Borrower shall (i) apply for or consent
to the appointment of a receiver, (ii) admit in writing its inability to
pay its debts as they become due, (iii) make a general assignment for the
benefit of creditors, (iv) have filed against it an involuntary petition
in bankruptcy or (v) file a voluntary petition in bankruptcy, or a
petition or an answer seeking reorganization, or an arrangement with
creditors.
5.1.3 RECEIVER, ETC. An order, judgment or decree
shall be entered against the Borrower by any court of competent jurisdiction,
approving a petition seeking reorganization of the Borrower or of all or a
substantial part of the properties or assets of the Borrower, or appointing a
receiver, trustee or liquidator for the Borrower.
5.2 REMEDIES. If an Event of Default shall occur and be continuing, the Creditor
may, at its option:
5.2.1 ACCELERATION. Declare the principal amount of the Loan and all
interest accrued thereon, and all other amounts due in connection with the
Loan to be immediately due and payable with no further notice or demand
(each of which hereby is expressly waived by the Borrower), whereupon the
same shall become immediately due and payable.
5.2.2 OTHER. Exercise any other remedy existing in equity, or at
law, by virtue of statute or otherwise.
6.0 MISCELLANEOUS.
6.1 NOTICES. All notices required to be given hereunder shall be deemed to be
received if directed to the address(es) recited on page 1 of this Agreement via
facsimile, personal delivery, Certified or Registered Mail or by an overnight
delivery carrier such as Federal Express, or in such other manner as to either
of the parties hereof, as such party shall designate in a written notice to the
other party hereto.
6.2 SURVIVAL OF LOAN AGREEMENT. All agreements, representations and warranties
made herein shall survive the making by the Creditor of the Loan herein and the
execution and delivery to the Creditor of the Note evidencing such Loan until
the Note and all other amounts due from the Borrower to the Creditor hereunder
are paid in full. This Loan Agreement shall be binding upon the Borrower and its
successors, and shall inure to the benefit of the successor and assigns of the
Creditor, except that the Borrower may not transfer or assign any or all of its
rights or obligations hereunder without the prior written consent of the
Creditor.
6.3 SEVERABILITY. In the event that any provision hereof is deemed to be invalid
by reason of the operation of any law or by
reason of the interpretation placed thereupon by any court, this Loan Agreement
shall be construed as not containing such provision and the invalidity of such
provision shall not affect the validity of any other provisions hereof, and any
and all other provisions hereof which are otherwise lawful shall remain in full
force and effect.
6.4 WAIVER. No delay on the part of either party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or practical exercise of any right, power or privilege hereunder preclude other
or further exercise thereof, or the exercise of any other right, power or
privilege.
6.5 INDEMNIFICATION. The Borrower agrees to indemnify, defend and hold the
Creditor harmless from and against any and all loss, liability, damage,
judgment, claim, deficiency or expense (including interest, penalties,
attorneys' fees and amounts paid in settlement) to which the Creditor may become
subject insofar as such loss, liability, claim, judgment, deficiency or expense
arises out of or is based upon a suit or proceeding brought or threatened in
connection with this Agreement or the other Loan Instruments.
6.6 EXPENSES. The Borrower agrees to pay or reimburse the Creditor for any costs
and expenses (including reasonable attorney fees) incurred in connection with
the enforcement or preservation of any rights under the Loan Instruments.
6.7 MODIFICATION OF LOAN INSTRUMENTS. No modification or waiver of any provision
of any of the Loan Instruments, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Borrower in
any case shall entitle the Borrower to any other or further notice or demand in
the same, similar or other circumstances.
6.8 DESCRIPTIVE HEADINGS. The descriptive headings of the several sections of
this Agreement are inserted for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.
6.9 APPLICABLE LAW. The Loan Instruments shall be construed in accordance with
and governed by the laws of the State
of New York without giving effect to the choice or conflict of law principles
thereof.
6.10 COUNTERPARTS. This Agreement may he executed in several counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the Same instrument.
6.11 ASSIGNMENT. This Loan Agreement and the Note may be assigned by the
Creditor without the prior written consent of Borrower.
6.12 BUSINESS DISCLOSURES. Borrower shall deliver to the Creditor throughout the
Term of this Loan Agreement monthly financial statements in the format as
required by other Companies in Omnicom Group Inc.'s Communicade Group.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
Borrower and the Creditor, by their duly authorized officers on the date first
set forth above.
Think New Ideas, Inc. Omnicom Finance Inc.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Title: C.F.O. Title: ASSISTANT TREASURER
