Exhibit 4.4
Execution Version
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture")
dated as of November 5, 2003 among OMNICOM GROUP INC., a New York corporation
(the "Company"), OMNICOM CAPITAL INC., a Connecticut corporation ("OCI"),
OMNICOM FINANCE INC., a Delaware corporation ("OFI"), and JPMORGAN CHASE BANK,
as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered to the Trustee an Indenture dated June 10, 2003 (the "Indenture"),
providing for the issuance of an aggregate principal amount of up to
$600,000,000 of Zero Coupon Zero Yield Convertible Notes due 2033 (the
"Securities"), all of which have been issued and are outstanding on the date
hereof;
WHEREAS, the Company desires to cause each of OCI and OFI to become
a co-issuer and co-obligor under the Indenture and the Securities, jointly and
severally with each other and with the Company;
WHEREAS, it is in the best interests of each of OCI and OFI to
become a co-issuer and co-obligor under the Indenture and the Securities
inasmuch as each of OCI and OFI will derive substantial direct and indirect
benefits from so becoming a co-issuer and co-obligor under the Indenture and the
Securities;
WHEREAS, it is in the best interests of the Company to guarantee the
obligations of each of OCI and OFI with respect to the Indenture and the
Securities;
WHEREAS, Section 9.01(4) of the Indenture provides that the Company
and the Trustee may amend or supplement the Indenture without the consent of any
Securityholder to make any change that does not, as evidenced by an Opinion of
Counsel delivered to the Trustee, materially adversely affect the rights of any
Securityholder;
WHEREAS, an Opinion of Counsel has been delivered to the Trustee
under Section 9.01(4); and
WHEREAS, pursuant to Sections 9.01 and 9.06 of the Indenture, the
Trustee and the Company are authorized to execute and deliver this Supplemental
Indenture;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Company, OCI, OFI and the Trustee mutually
covenant and agree for the equal and ratable benefit of the holders of the
Securities as follows:
1. Definitions. All capitalized terms used but not defined herein shall
have the meanings given to such terms set forth in the Indenture.
2. Agreement to Become Co-Obligor. By its signature hereto, each of OCI
and OFI agrees to become a co-issuer of the Securities and a co-obligor under
the Indenture and the
Securities, jointly and severally with each other and with the Company.
Notwithstanding anything to the contrary contained in the Indenture, as amended
by this Supplemental Indenture, each of OCI and OFI may, by execution and
delivery to the Trustee of a supplemental indenture satisfactory to the Trustee,
be released from their respective obligations hereunder and under the Indenture
and the Securities upon (a) the sale or other transfer of its capital stock or
of all or substantially all of its assets to an entity that is not the Company
or a Subsidiary of the Company and which sale is otherwise in compliance with
the Indenture, which release shall be effective without any action on the part
of the Trustee or any Securityholder or (b) with the prior written consent of
each applicable Rating Agency (which prior written consent will be deemed to
have been given if each applicable Rating Agency approves a revised list of
subsidiaries of the Company that are required to guarantee the Guaranteed
Obligations (as defined below) or otherwise become an "obligor" in respect of
the Indenture and the Securities that does not include OCI or OFI, as
applicable), any such release to become effective upon receipt of notice of such
consent (and, if any Subsidiary of the Company is required to become guarantor
of the Guaranteed Obligations or an "obligor" in respect of the Indenture and
the Securities in connection with the release of OCI or OFI, as applicable,
pursuant to this Section 2, receipt of the required guarantee) by the Trustee.
Upon any such release, the Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company, OCI or OFI
accompanied by an Officers' Certificate certifying as to compliance with this
Section 2. Any actions taken pursuant to this Section 2 shall not release the
Company as a primary obligor under the Indenture or the Securities.
3. Amendments. The Indenture be and hereby is amended as follows:
3.1 The preamble to the Indenture is hereby amended to add each of OCI and OFI
as a party to the Indenture as an issuer of the Securities.
3.2 Article 1 of the Indenture is hereby amended as follows:
(a) Section 1.01 of the Indenture is hereby amended to insert the
following new definition in its proper alphabetic place:
"Issuers" means each of the parties named as such in the
preamble to this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall
mean such successor. The foregoing sentence shall likewise apply to
any subsequent such successor or successors.
(b) Section 1.01 of the Indenture is amended by amending and
restating the following definitions in their entirety (changes are shown
in bold italicized text; where only a deletion has been made, the deletion
is shown in strikethrough italicized text):
"Board of Directors" means, with respect to any Issuer, either
the board of directors of such Issuer or any duly authorized
committee of such board.
"Company Request" or "Company Order" means, with respect to
any Issuer, a written request or order signed in the name of such
Issuer by any two Officers of such Issuer.
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"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at ▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Institutional
Trust Services, or such other address as the Trustee may designate
from time to time by notice to the Issuers, or the principal
corporate trust office of any successor Trustee (or such other
address as a successor Trustee may designate from time to time by
notice to the Issuers).
"Indebtedness" means, with respect to any Issuer at any date,
without duplication, obligations of such Issuer (other than
nonrecourse obligations) for borrowed money or evidenced by bonds,
debentures, notes or similar instruments of such Issuer.
"Officer" means, with respect to any Issuer, the Chairman of
the Board, the Vice Chairman, the Chief Executive Officer, the
President, any Executive Vice President, any Senior Vice President,
any Vice President, the Treasurer or the Secretary or any Assistant
Treasurer or Assistant Secretary of such Issuer.
"Officers' Certificate" means, with respect to any Issuer, a
written certificate containing the information specified in Sections
12.04(1) and 12.05, signed in the name of such Issuer by any two
Officers of such Issuer and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 needs only to be signed
by the principal, executive, financial or accounting Officer of such
Issuer and need not contain the information specified in Sections
12.04 and 12.05.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 12.04 and 12.05, from legal
counsel who is reasonably acceptable to the Trustee. The counsel may
be an employee of, or counsel to, the Issuers or the Trustee.
"Securities" means any of the Company's Zero Coupon Zero Yield
Convertible Notes due 2033 issued under this Indenture.
"Subsidiary" means, with respect to any Issuer, (i) a
corporation, a majority of whose Capital Stock with voting power,
under ordinary circumstances, to elect directors is, at the date of
determination, directly or indirectly owned by such Issuer, by one
or more Subsidiaries of such Issuer or by such Issuer and one or
more Subsidiaries of such Issuer, (ii) a partnership in which such
Issuer or a Subsidiary of such Issuer holds a majority interest in
the equity capital or profits of such partnership, or (iii) any
other person (other than a corporation or partnership) in which such
Issuer, a Subsidiary of such Issuer or such Issuer and one or more
Subsidiaries of such Issuer, directly or indirectly, at the date of
determination, has (x) at least a majority equity ownership interest
or (y) the power to elect or direct the election of a majority of
the directors or other governing body of such person.
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(c) The definition of "obligor" in Section 1.03 of the Indenture is
hereby amended and restated in its entirety to read as follows (changes
are shown in bold italicized text):
"obligor" on the indenture securities means each of Issuers.
(d) Section 1.05(e) of the Indenture is hereby amended to replace
each reference in said Section to the "Company" with the term "Issuers";
and all singular pronouns which referred to the "Company" are hereby
amended to be plural pronouns referring to the "Issuers" and all singular
verb forms used in a clause in which the "Company" was the sole subject
are hereby amended to be in the plural verb forms referring to the
"Issuers" as the subject.
3.3 Article 2 of the Indenture is hereby amended to replace each reference
in said Article to (i) the "Company" with the term "Issuers", (ii) all singular
pronouns which referred to the "Company" with plural pronouns referring to the
"Issuers", (iii) all singular verb forms used in a clause in which the "Company"
was the sole subject with a plural verb forms referring to the "Issuers" as the
subject and (iv) the phrase "either of them" with the phrase "any of them".
3.4 With the exception of Section 3.08(d)(iv), Section 3.08(f), the
definition of "Change of Control" in Section 3.09 and the paragraph immediately
following that definition (none of which shall be amended), Article 3 of the
Indenture is hereby amended to replace each reference in said Article to (i) the
"Company" with the term "Issuers", (ii) all singular pronouns which referred to
the "Company" with plural pronouns referring to the "Issuers", (iii) all
singular verb forms used in a clause in which the "Company" was the sole subject
with a plural verb forms referring to the "Issuers" as the subject and (iv) the
phrase "either of them" with the phrase "any of them".
3.5 With the exception of Section 4.02 (which shall not be amended except
for the last sentence thereof), Article 4 of the Indenture is hereby amended to
replace each reference in said Article to (i) the "Company" with the term
"Issuers", (ii) all singular pronouns which referred to the "Company" with
plural pronouns referring to the "Issuers", (iii) all singular verb forms used
in a clause in which the "Company" was the sole subject with a plural verb forms
referring to the "Issuers" as the subject and (iv) the phrase "either of them"
with the phrase "any of them".
3.6 Section 5.01 of the Indenture is hereby amended and restated to read
in its entirety as follows (changes are shown in bold italicized text):
"SECTION 5.01 When the Issuers May Merge or Transfer Assets. An
Issuer shall not consolidate with or merge with or into any other
person or convey, transfer or lease its properties and assets
substantially as an entirety to any person (except in the case of
OCI or OFI, with, into or to the Company, each other or any other
Subsidiary of the Company), unless:
(a) either (1) such Issuer shall be the continuing corporation
or (2) the person (if other than the Company) formed by such
consolidation or into which the such Issuer is merged or the
person which acquires by
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conveyance, transfer or lease the properties and assets of
such Issuer substantially as an entirety (i) shall be
organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and
(ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of such
Issuer under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply
with this Article 5 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
For purposes of the foregoing, the conveyance, transfer or lease of
the properties and assets of one or more Subsidiaries of an Issuer
(other than to the Company or another Subsidiary of any of the
Issuers), which, if such assets were owned by such Issuer, would
constitute all or substantially all of the properties and assets of
such Issuer, shall be deemed to be the transfer of all or
substantially all of the properties and assets of such Issuer, but a
bona fide pledge or hypothecation will be deemed not to be
prohibited by this Indenture.
The successor person formed by such consolidation or into which such
Issuer is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, such Issuer under this
Indenture with the same effect as if such successor had been named
as an Issuer herein; and thereafter, except in the case of a lease
and obligations such Issuer may have under a supplemental indenture
pursuant to Section 10.14, such Issuer shall be discharged from all
obligations and covenants under this Indenture and the Securities.
Subject to Section 9.06, such Issuer, the Trustee and the successor
person shall enter into a supplemental indenture to evidence the
succession and substitution of such successor person and such
discharge and release of such Issuer."
3.7 Article 6 of the Indenture is hereby amended to replace each reference
in said Article to (i) the "Company" with the term "Issuers", (ii) all singular
pronouns which referred to the "Company" with plural pronouns referring to the
"Issuers", (iii) all singular verb forms used in a clause in which the "Company"
was the sole subject with a plural verb forms referring to the "Issuers" as the
subject and (iv) the phrase "either of them" with the phrase "any of them".
3.8 Article 7 of the Indenture is hereby amended to replace each reference
in said Article to (i) the "Company" with the term "Issuers", (ii) all singular
pronouns which referred to the "Company" with plural pronouns referring to the
"Issuers", (iii) all singular verb forms used in a clause in which the "Company"
was the sole subject with a plural verb forms referring to the "Issuers" as the
subject and (iv) the phrase "either of them" with the phrase "any of them".
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3.9 Article 8 of the Indenture is hereby amended to replace each reference
in said Article to (i) the "Company" with the term "Issuers", (ii) all singular
pronouns which referred to the "Company" with plural pronouns referring to the
"Issuers", (iii) all singular verb forms used in a clause in which the "Company"
was the sole subject with a plural verb forms referring to the "Issuers" as the
subject and (iv) the phrase "either of them" with the phrase "any of them".
3.10 With the exception of Section 9.02 (which shall not be amended),
Article 9 of the Indenture is hereby amended to replace each reference in said
Article to (i) the "Company" with the term "Issuers", (ii) all singular pronouns
which referred to the "Company" with plural pronouns referring to the "Issuers",
(iii) all singular verb forms used in a clause in which the "Company" was the
sole subject with a plural verb forms referring to the "Issuers" as the subject
and (iv) the phrase "either of them" with the phrase "any of them".
3.11 With the exception of Sections 10.05, 10.06, 10.07, 10.08, 10.12,
10.13, 10.14 and 10.20 (none of which shall be amended), Article 10 of the
Indenture is hereby amended to replace each reference in said Article to (i) the
"Company" with the term "Issuers", (ii) all singular pronouns which referred to
the "Company" with plural pronouns referring to the "Issuers", (iii) all
singular verb forms used in a clause in which the "Company" was the sole subject
with a plural verb forms referring to the "Issuers" as the subject and (iv) the
phrase "either of them" with the phrase "any of them". In addition, references
in Article 10 to the term "Board of Directors" shall be deemed to be to the
Board of Directors of the Company only, and not the Board of Directors of any
other Issuer.
3.12 Article 11 of the Indenture is hereby amended to replace each
reference in said Article to (i) the "Company" with the term "Issuers", (ii) all
singular pronouns which referred to the "Company" with plural pronouns referring
to the "Issuers", (iii) all singular verb forms used in a clause in which the
"Company" was the sole subject with a plural verb forms referring to the
"Issuers" as the subject and (iv) the phrase "either of them" with the phrase
"any of them".
3.13 Article 12 of the Indenture is hereby amended to replace each
reference in said Article to (i) the "Company" with the term "Issuers", (ii) all
singular pronouns which referred to the "Company" with plural pronouns referring
to the "Issuers", (iii) all singular verb forms used in a clause in which the
"Company" was the sole subject with a plural verb forms referring to the
"Issuers" as the subject and (iv) the phrase "either of them" with the phrase
"any of them".
3.14 Exhibit A-1 to the Indenture is hereby amended as follows:
(a) The fifth paragraph of the legend contained therein is hereby
amended to replace the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY")
OR ANY AFFILIATE OF THE COMPANY" with the words "ON WHICH OMNICOM GROUP
INC. (THE "COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE
INC. ("FINANCE" AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS")
OR ANY AFFILIATE OF ANY OF THEM".
(b) With the exception of the definitions of "Five-Day Period" and
"Regular Cash Dividends" in Section 5 of said Exhibit, the first, fourth
and seventh paragraphs of Section 9(d) of said Exhibit and the Conversion
Notice contained in said Exhibit (none of
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which shall be amended except as otherwise set forth in paragraph (c)
below), said Exhibit is hereby amended to replace each reference in said
Exhibit to (i) the "Company" with the term "Issuers", (ii) all singular
pronouns which referred to the "Company" with plural pronouns referring to
the "Issuers", (iii) all singular verb forms used in a clause in which the
"Company" was the sole subject with a plural verb forms referring to the
"Issuers" as the subject and (iv) the phrase "either of them" with the
phrase "any of them".
(c) References to the term "Board of Directors" in the definitions
of "Five-Day Period" and "Regular Cash Dividends" in paragraph 5 of said
Exhibit shall be deemed to be to the Board of Directors of the Company
only, and not the Board of Directors of any other Issuer.
(d) The third page of said Exhibit is hereby amended to add
additional signature blocks for Omnicom Capital Inc. and Omnicom Finance
Inc. and the first paragraph on said page is hereby amended and restated
to read in its entirety as follows (changes are shown in bold italicized
text):
"Each of OMNICOM GROUP INC., a New York corporation, OMNICOM CAPITAL
INC., a Connecticut corporation, and OMNICOM FINANCE INC., a
Delaware corporation, jointly and severally, promises to pay to Cede
& Co. or registered assigns, the Initial Principal Amount at
Maturity of [_______________________________ ($_________)], or if
greater, the Principal Amount at Maturity, on June 15, 2033."
3.15 Exhibit A-2 to the Indenture is hereby amended as follows:
(a) The fourth paragraph of the legend contained therein is hereby
amended to replace the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY")
OR ANY AFFILIATE OF THE COMPANY" with the words "ON WHICH OMNICOM GROUP
INC. (THE "COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE
INC. ("FINANCE" AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS")
OR ANY AFFILIATE OF ANY OF THEM".
(b) Said Exhibit is hereby amended to replace each reference in said
Exhibit to (i) the "Company" with the term "Issuers", (ii) all singular
pronouns which referred to the "Company" with plural pronouns referring to
the "Issuers", (iii) all singular verb forms used in a clause in which the
"Company" was the sole subject with a plural verb forms referring to the
"Issuers" as the subject and (iv) the phrase "either of them" with the
phrase "any of them".
(c) The third page of said Exhibit is hereby amended to add
additional signature blocks for Omnicom Capital Inc. and Omnicom Finance
Inc. and the first paragraph on said page is hereby amended and restated
to read in its entirety as follows (changes are shown in bold italicized
text):
"Each of OMNICOM GROUP INC., a New York corporation, OMNICOM CAPITAL
INC., a Connecticut corporation, and OMNICOM FINANCE INC.,
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a Delaware corporation, jointly and severally, promises to pay to
Cede & Co. or registered assigns, the Initial Principal Amount at
Maturity of [_______________________________ ($_________)], or if
greater, the Principal Amount at Maturity, on June 15, 2033."
3.16 Exhibit B-1 to the Indenture is hereby amended to replace each
reference in said Exhibit to the term "Company" with the term "Issuers".
3.17 Exhibit B-2 to the Indenture is hereby amended as follows:
(a) The first paragraph of said Exhibit is hereby amended and
restated to read in its entirety as follows (changes are shown in bold
italicized text):
"We are delivering this letter in connection with the proposed
transfer of $_____________ Initial Principal Amount at Maturity of
the Zero Coupon Zero Yield Convertible Notes due 2033 (the "Notes")
of Omnicom Group Inc. (the "Company"), Omnicom Finance Inc. and
Omnicom Finance Inc., as co-issuers and co-obligors on the Notes,
which are convertible into shares of the Company's Common Stock,
$0.15 par value per share (the "Common Stock") as specified in the
Indenture."
(b) Each reference in said Exhibit to the term "Company" is hereby
replaced with the term "Issuers".
3.18 Any and all Securities issued and outstanding as of the date of this
First Supplemental Indenture shall be deemed amended as follows without any
further action (and the Company, OCI, OFI and the Trustee expressly so agree)
with the same effect as if a new Security expressly including such provisions as
so amended had been issued in exchange for such issued and outstanding
securities:
(a) The fifth paragraph of the legend contained thereon is hereby
amended to replace the words "ON WHICH OMNICOM GROUP INC. (THE "COMPANY")
OR ANY AFFILIATE OF THE COMPANY" with the words "ON WHICH OMNICOM GROUP
INC. (THE "COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE
INC. ("FINANCE" AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS")
OR ANY AFFILIATE OF ANY OF THEM".
(b) With the exception of the definitions of "Five-Day Period" and
"Regular Cash Dividends" in Section 5 of each said Security, the first,
fourth and seventh paragraphs of Section 9(d) of each said Security and
the Conversion Notice contained in each said Security (none of which shall
be amended except as otherwise set forth in paragraph (c) below), each
said Security is hereby amended to replace each reference therein to (i)
the "Company" with the term "Issuers", (ii) all singular pronouns which
referred to the "Company" with plural pronouns referring to the "Issuers",
(iii) all singular verb forms used in a clause in which the "Company" was
the sole subject with a plural verb forms referring to the "Issuers" as
the subject and (iv) the phrase "either of them" with the phrase "any of
them".
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(c) References to the term "Board of Directors" in the definitions
of "Five-Day Period" and "Regular Cash Dividends" in paragraph 5 of each
said Security shall be deemed to be to the Board of Directors of the
Company only, and not the Board of Directors of any other Issuer.
(d) Each of OCI and OFI shall be deemed, by their signature hereto,
to have signed each of the outstanding Securities as if their signatures
appeared thereon.
4. Company Guarantee.
4.1 The Company hereby, jointly and severally with any other Person who
may also guarantee the Guaranteed Obligations (as defined below),
unconditionally and irrevocably guarantees (the "Guarantee"), on a senior
unsecured basis, as a primary obligor and not as a surety, to each
Securityholder and to the Trustee and its successors and assigns the full and
punctual payment when due, whether at maturity, by acceleration, redemption or
otherwise, of the principal of and interest on, if any, the Securities, if
lawful, and all other monetary obligations of each of OCI and OFI under the
Indenture (as so amended by this Supplemental Indenture) and the Securities
(collectively, the "Guaranteed Obligations"). The Company further agrees, in its
capacity as a guarantor, that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from the Company,
and the Company shall remain bound under its Guarantee and the Indenture, as
amended hereby, notwithstanding any such extension or renewal. Failing payment
when due of any amount so guaranteed for whatever reason, the Company will be
obligated to pay the same in full, or cause to be duly and punctually paid in
full, without any demand or notice whatsoever.
4.2 In its capacity as guarantor, the Company hereby waives presentation
to, demand of payment from and protest to OCI or OFI, as the case may be, of any
of the Guaranteed Obligations and also waives notice of protest for nonpayment.
In its capacity as guarantor, the Company also hereby waives notice of any
default by OCI or OFI, as the case may be, under the Securities or the
Indenture. The Company agrees that its obligations under its Guarantee shall be
continuing, absolute, full and unconditional under any and all circumstances, to
the fullest extent permitted by applicable law, and shall not be discharged
except by payment in full of the Securities, irrespective of:
(a) the value, genuineness, regularity, validity, enforceability,
avoidance, subordination, discharge or disaffirmance of any of the
Guaranteed Obligations, the Securities or the Indenture, or the absence of
any action to enforce the same;
(b) any extension or waiver, at any time or from time to time,
without notice to the Company, of the time for compliance by OCI or OFI,
as the case may be, with any of its obligations under the Securities or
the Indenture;
(c) any substitution, release or exchange of any other guarantee of
or security for any obligations of OCI or OFI, as the case may be, under
the Securities or the Indenture;
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(d) any recission, amendment or modification to any of the terms or
provisions of the Securities or the Indenture;
(e) any law, regulation or order of any jurisdiction affecting any
term of any of the Securities or the Indenture or the rights of any
Securityholder or the Trustee with respect thereto;
(f) any failure to obtain any authorization or approval from, or
other action by, to notify, or to file anything with, any governmental
authority or regulatory body required in connection with the performance
of the Guarantee by the Company;
(g) the failure by any Securityholder or the Trustee to assert any
claim or demand or to exercise any right or remedy against OCI or OFI, as
the case may be, or any other guarantor of the Guaranteed Obligations or
any other Person;
(h) the failure by any Securityholder or the Trustee to exercise any
right or remedy against any collateral securing any of the Guaranteed
Obligations; or
(i) any other circumstance whatsoever that might otherwise
constitute a defense to or a legal or equitable discharge of the Company's
obligations, in its capacity as guarantor, under its Guarantee or of the
Company's obligations, in its capacity as guarantor, under the Securities
and the Indenture.
4.3 The Company's obligations under its Guarantee and the Indenture, as
amended by this Supplemental Indenture, and the Securities, in each case in its
capacity as guarantor, shall not be limited by any valuation, estimation or
disallowance made in connection with any proceedings filed by or against the
Company or the Company under the United States Bankruptcy Code of 1978, as
amended (the "Bankruptcy Code"), whether pursuant to Section 502 of the
Bankruptcy Code or any other section thereof. The Company further agrees that,
it its capacity as guarantor, none of the Securityholders shall be under any
obligation to ▇▇▇▇▇▇▇▇ any assets in favor of or against or in payment of any or
all of the Guaranteed Obligations or the Securities. To the extent that the
Company makes a payment or payments on any or all of the Guaranteed Obligations
and such payment or payments (or any part thereof) is or are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to the Company, its estate, trustee or receiver or any other party,
including, without limitation, the Company, under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment
or repayment, the Guaranteed Obligations (or, if applicable, such part thereof
as had been paid, reduced or satisfied by such amount), shall be reinstated and
revived and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred. The Company waives, in its capacity
as guarantor, all set-offs, counterclaims, reductions and diminutions of any
obligation, and any defense of any kind or nature (other than, payment of the
Guaranteed Obligations), that the Company may have or assert against OCI, OFI or
any other Person, and all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and notices of
acceptance of its Guarantee.
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4.4 The Company, in its capacity as guarantor, hereby unconditionally and
irrevocably waives (i) any defense arising by reason of any claim or defense
based upon an election of remedies by any Securityholder that in any manner
impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of the
Company or other rights of the Company to proceed against OCI, OFI, any other
guarantor or any other Person or collateral, if any, and (ii) any defense based
on any right of set-off or counterclaim against or in respect of the Guaranteed
Obligations or the Securities of the Company under the Indenture, the Securities
or this Supplemental Indenture.
4.5 The Company, in its capacity as guarantor, hereby waives any right to
which it may be entitled to have its obligations under the Guarantee and the
Indenture divided among it and other guarantor of the Guaranteed Obligations, if
any, such that the Company's obligations would be less than the full amount
claimed. The Company, in its capacity as guarantor, hereby waives any right to
which it may be entitled to have the assets of OCI, OFI or any other Person who
became an "obligor" under the Securites or the Indenture first be used and
depleted as payment of the obligations of OCI, OPI or such other Person,
respectively, under the Securities and the Indenture prior to any amounts being
claimed from or paid by the Company under its Guarantee. The Company, in its
capacity as guarantor, hereby waives any right to which it may be entitled to
require that suit be instituted against OCI, OFI or any other guarantor of the
Guaranteed Obligations or "obligor" under the Securities or the Indenture prior
to an action being initiated against the Company. The Company further agrees
that the Guarantee constitutes a guarantee of payment when due (and not a
guarantee of collection) and waives any right, in its capacity as guarantor, to
require that any resort be had by any Securityholder or the Trustee to any
security held for payment of the Guaranteed Obligations.
4.6 The failure to endorse the Guarantee on any Security shall not affect
or impair the validity thereof.
4.7 The Company's obligations under its Guarantee shall not be affected if
any Securityholder is precluded for any reason (including, without limitation,
the application of the automatic stay under Section 362 of the Bankruptcy Code)
from enforcing or exercising any right or remedy with respect to the Securities,
and the Company shall pay to each affected Securityholder, upon demand, the
amount that would otherwise have been due and payable had the exercise of such
rights and remedies been permitted. In the event of any such application of the
automatic stay under Section 362 of the Bankruptcy Code, the Securities shall
forthwith become due and payable by the Company for purposes of the Guarantee.
4.8 The Company hereby agrees that, unless and until all obligations with
respect to the Securities and the Indenture, as amended by this Supplemental
Indenture, have been paid in full, in its capacity as guarantor, it shall have
no right (whether direct or indirect) of subrogation (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) to the claims of any
Securityholder or the Trustee against OCI, OFI or any other Person who became an
"obligor" under the Securities or the Indenture in respect of any obligation
with respect to the Securities or the Indenture, notwithstanding any payment or
payments made by the Company hereunder or any set-off or application of funds of
the Company by the Securityholder; and the Company hereby waives all
contractual, statutory and common law rights of reimbursement, contribution or
indemnity it may have against OCI, OFI or any other such Person as the case may
be, and any and all other rights of payment or recovery from OCI, OFI or any
other such Person, as the case may
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be, that it may now have or hereafter acquire until all Securities and all
obligations under the Indenture have been paid in full (in which event such
rights of payment or recovery shall be deemed to be in the form of a loan or
loans made from the Company to OCI, OFI or any other such Person, as the case
may be. The Company further agrees that, in its capacity as guarantor, as
between the Company, on the one hand, and the Securityholders and the Trustee,
on the other hand, (1) the maturity of the Securities guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of the
Company's Guarantee hereunder, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Securities guaranteed
pursuant to this Section 4, and (2) in the event of any declaration of
acceleration of such Securities as provided in Article 6 of the Indenture, such
Securities (whether or not due and payable) will forthwith become due and
payable by the Company for the purpose of its Guarantee hereunder.
4.9 Except as otherwise specifically provided in Section 4.12 hereof with
respect to the release of the Company from its Guarantee hereunder, such
Guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Company and the successors thereof,
and shall inure to the benefit of (and be enforceable by) the Trustee and the
Securityholders from time to time, or their respective successors or assignees,
until the Indenture shall have been terminated and the principal of and
interest, if any, on the Securities, and the obligations of the Company in
respect of the Guaranteed Obligations, have been satisfied by payment in full.
4.10 Payments made by the Company pursuant to its Guarantee hereunder will
be made to each Securityholder in the same manner, and to the same location, as
payments to such Securityholder are required to be made pursuant to the
provisions of the Indenture.
4.11 The Company shall pay all reasonable costs and expenses (including
reasonable attorneys' fees and expenses) paid or incurred by the Trustee or any
Securityholder in connection with the enforcement of the Guarantee or any other
rights of the Trustee or such Securityholder under this Supplemental Indenture
with respect to such Guarantee and the prosecution or defense of any action by
or against any of the Securityholders in connection with the Guarantee or this
Supplemental Indenture with respect to such Guarantee, whether involving the
Company or any other Person, including a trustee in bankruptcy; provided,
however, that the Company shall have no such obligation in connection with any
action brought by any Securityholder against the Company to the extent that the
Company is the prevailing party in the judgment rendered in any such action; and
provided further that the Company shall not be responsible for the fees and
expenses of more than one firm of attorneys (in addition to any required local
counsel).
4.12 The Company may, by execution and delivery to the Trustee of a
supplemental indenture satisfactory to the Trustee, be released from its
Guarantee upon the sale or other transfer of its capital stock or of all or
substantially all of its assets to an entity that is not the Company or a
subsidiary of the Company and which sale is otherwise in compliance with the
Indenture, which release shall be effective without any action on the part of
the Trustee or any Securityholder. Upon any such release, the Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of a
request by the Company or the Company accompanied by an Officers' Certificate
certifying as to compliance with this Section 4.12. Any actions taken
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pursuant to this Section 4.12 shall not release the Company, OCI or OFI as a
primary obligor under the Indenture or the Securities.
5. Separability Clause. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
6. Modification, Amendment and Waiver. The provisions of this Supplemental
Indenture may not be amended, supplemented, modified or waived except by a
execution of a Supplemental Indenture executed by OCI, OFI, the Company and, to
the extent such amendment, supplement or waiver limits or impairs the rights of
any Securityholder, by such Securityholder. Any such amendment shall comply with
Article 9 of the Indenture. Until an amendment, waiver or other action by
Securityholders becomes effective, a consent thereto by a Securityholder of a
Security hereunder is a continuing consent by the Securityholder and every
subsequent Securityholder of that Security or portion of the Security that
evidences the same obligation as the consenting Securityholder's Security, even
if notation of the consent, waiver or action is not made on the Security.
However, any such Securityholder or subsequent Securityholder may revoke the
consent, waiver or action as to such Securityholder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or
action becomes effective, it shall bind every Securityholder.
7. Ratification of Indenture; Supplemental Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. In the event of a conflict between the terms and
conditions of the Indenture and the terms and conditions of this Supplemental
Indenture, then the terms and conditions of this Supplemental Indenture shall
prevail. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby.
8. Trust Indenture Acts Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust
Indenture Act of 1939, as amended ("TIA"), that is required under the TIA to be
part of and govern any provision of this Supplemental Indenture, the provision
of the TIA shall control. If any provision of this Supplemental Indenture
modifies or excludes any provisions of the TIA that may be so modified or
excluded, the provisions of the TIA shall be deemed to apply to the Indenture as
so modified or to be excluded by this Supplemental Indenture, as the case may
be.
9. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT
TO THE PRINCIPLES OF CONFLICTS OF LAW.
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10. Trustee Makes No Representation. The statements herein are deemed to
be those of the Company, OCI or OFI, as applicable. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
11. Multiple Originals. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Supplemental Indenture.
12. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
Notices. Any request, demand, authorization, notice, waiver, consent
or communication to any of the parties shall be made as set forth in Section
12.02 of the Indenture, as said Section may be amended hereby.
13. Successors. All agreements of each of OCI and OFI in respect of this
Supplemental Indenture shall bind its successor.
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IN WITNESS WHEREOF, this Supplemental Indenture has been duly
executed by the Company, OCI and the Trustee as of the date first written above.
OMNICOM GROUP INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
OMNICOM CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
OMNICOM FINANCE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
JPMORGAN CHASE BANK, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President