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EXHIBIT 10.4
AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT dated as of May 10, 2001 (this "Amendment") to the
Amended and Restated Credit Agreement dated February 27, 2001 (the "Agreement")
is by and between XxxxXxxxxx.XXX, Inc. (the "Borrower") and Omnicom Finance Inc.
(the "Lender").
RECITAL
Borrower and Lender are parties to the Agreement and now desire to
amend the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT: (a) Article VII of the Agreement is hereby
amended by deleting such Article in its entirety and substituting therefor the
following:
"For so long as this Agreement is in effect, Lender, at the request of
Borrower, in connection with Borrower's incurrence of any Senior
Indebtedness, will enter into an agreement in form and substance
reasonably satisfactory to the initial lender or holder of such Senior
Indebtedness (such Person, the "Senior Lender") whereby Lender's rights
to the payment of any or all Loan Obligations will be subordinated to
the rights of the Senior Lender to payment of such Senior Indebtedness
and any other monies due or to become due under the terms of such
Senior Indebtedness, provided, however, that (1) no such agreement (a
"Subordination Agreement") may restrict in any respect Lender's
conversion rights under Section 2.07 hereof and (2) in the event that
Borrower is prohibited from paying any amount due hereunder or Lender
is prohibited from exercising any right under Article VIII hereof
pursuant to the Subordination Agreement (the period of any such
prohibition, a "Blockage Period"), then, during such Blockage Period,
Lender upon notice to Borrower may require that Borrower prepay
interest under the Loan in Common Stock for any Interest Prepayment
Period during which such Blockage Period occurs and/or pay all or any
of the interest by Borrower hereunder that is or becomes due and
payable during the Blockage Period by issuing to Lender the number of
fully paid and non-assessable shares of Common Stock (rounded down to
the nearest 100 shares) equal to the quotient of (i) such amount due
and payable divided by (ii) the then Applicable Interest Conversion
Price at the times and otherwise in accordance with Section 2.04."
(b) The reference to "Section 2.04(b)" in Section 2.03(a) of the
Agreement will be deleted and replaced with "Section 2.04(c)."
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2. GENERAL PROVISIONS.
2.1 DEFINED TERMS: Capitalized terms used herein but not defined
have the meanings given to those terms in the Agreement.
2.2 EFFECTIVENESS: This Amendment shall become effective as of the
date hereof upon Lender's receipt of a counterpart of this Amendment duly
executed and delivered by Borrower.
2.3 CONTINUING EFFECT; NO OTHER AMENDMENTS: Except as expressly
amended hereby, all of the terms and provisions of the Agreement are and shall
remain in full force and effect. The amendment provided for herein is limited to
the specific sections of the Agreement specified herein and shall not constitute
an amendment or waiver of, or an indication of Lender's willingness to amend or
waive, any other provisions of the Agreement or the same sections for any other
date or time period (whether or not such other provisions or compliance with
such sections for another date or time period are affected by the circumstances
addressed in this Amendment).
2.4 GOVERNING LAW: THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their authorized officers as of the day and year first above
written.
XXXXXXXXXX.XXX, INC.
By: /s/ W. Xxxxx Xxxxx
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Chief Financial Officer
OMNICOM FINANCE INC.
By: /s/ Xxxxxx Xxxxxx
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Treasurer
