-----BEGIN PRIVACY-ENHANCED MESSAGE-----
Proc-Type: 2001,MIC-CLEAR
Originator-Name: webmaster@www.sec.gov
Originator-Key-Asymmetric:
MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen
TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB
MIC-Info: RSA-MD5,RSA,
KiMC9u6cX6Awxy7PVcpHQoxWN5ykW+KJ9TkpYzyLfspQ3DTDdiB2PY+NpEgVu1Rh
NXnrM7uaPcv0Lt1QtHiZ7g==
<SEC-DOCUMENT>0000891092-98-000100.txt : 19980327
<SEC-HEADER>0000891092-98-000100.hdr.sgml : 19980327
ACCESSION NUMBER: 0000891092-98-000100
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 6
CONFORMED PERIOD OF REPORT: 19971231
FILED AS OF DATE: 19980326
SROS: NYSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: OMNICOM GROUP INC
CENTRAL INDEX KEY: 0000029989
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING AGENCIES [7311]
IRS NUMBER: 131514814
STATE OF INCORPORATION: NY
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT:
SEC FILE NUMBER: 001-10551
FILM NUMBER: 98574472
BUSINESS ADDRESS:
STREET 1: 437 MADISON AVE
CITY: NEW YORK
STATE: NY
ZIP: 10022
BUSINESS PHONE: 2124153700
MAIL ADDRESS:
STREET 1: 437 MADISON AVE
CITY: NEW YORK
STATE: NY
ZIP: 10022
FORMER COMPANY:
FORMER CONFORMED NAME: DOYLE DANE BERNBACH GROUP INC
DATE OF NAME CHANGE: 19861117
FORMER COMPANY:
FORMER CONFORMED NAME: DOYLE DANE BERNBACH INTERNATIONAL INC
DATE OF NAME CHANGE: 19850604
FORMER COMPANY:
FORMER CONFORMED NAME: DOYLE DANE BERNBACH INC
DATE OF NAME CHANGE: 19781226
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K405
<SEQUENCE>1
<DESCRIPTION>FORM 10-K405
<TEXT>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM 10-K
ANNUAL REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the Fiscal Year Ended: December 31, 1997 Commission File Number: 1-10551
--------------------
OMNICOM GROUP INC.
(Exact name of registrant as specified in its charter)
New York 13-1514814
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
437 Madison Avenue, New York, NY 10022
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 415-3600
Securities Registered Pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
------------------- -------------------
Common Stock, $.50 Par Value New York Stock Exchange
Securities Registered Pursuant to Section 12(g) of the Act: NONE Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days. Yes _X_ No ___
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in the definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
At March 16, 1998, there were 169,335,907 shares of Common Stock
outstanding; the aggregate market value of the voting stock held by
nonaffiliates at March 16, 1998 was approximately $7,541,593,000.
Indicate the number of shares outstanding of each of the registrant's
classes of stock, as of the latest practicable date.
Class Outstanding at March 16, 1998
Common Stock, $.50 Par Value 169,335,907
Preferred Stock, $1.00 Par Value NONE
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the Registrant's definitive proxy statement relating to its
annual meeting of shareholders scheduled to be held on May 18, 1998 are
incorporated by reference into Part III of this Report.
================================================================================
<PAGE>
OMNICOM GROUP INC.
------------------------------
Index to Annual Report on Form 10-K
Year Ended December 31, 1997
Page
----
PART I
Item 1. Business.......................................................... 1
Item 2. Properties........................................................ 4
Item 3. Legal Proceedings................................................. 5
Item 4. Submission of Matters to a Vote of Security Holders............... 5
Executive Officers of the Company............................................ 6
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters........................................... 7
Item 6. Selected Financial Data........................................... 8
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations......................................... 8
Item 8. Financial Statements and Supplementary Data....................... 12
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.......................................... 12
PART III
Item 10. Directors and Executive Officers of the Registrant................ 12
Item 11. Executive Compensation............................................ 12
Item 12. Security Ownership of Certain Beneficial Owners and Management.... 12
Item 13. Certain Relationships and Related Transactions.................... 12
The information called for by Items 10, 11, 12 and 13, to the extent not
included in this document, is incorporated herein by reference to such
information to be included under the captions "Election of Directors," "Common
Stock Ownership of Management," "Directors' Compensation" and "Executive
Compensation," in the Company's definitive proxy statement which is expected to
be filed by April 6, 1998.
PART IV
Item 14. Exhibits, Financial Statement Schedules, and
Reports on Form 8-K ......................................... 13
<PAGE>
PART I
Item 1. Business
Omnicom Group Inc., through its wholly and partially-owned companies
(hereinafter collectively referred to as the "Company" or the "Omnicom Group"),
operates advertising agencies which plan, create, produce and place advertising
in various media such as television, radio, newspaper and magazines. The Omnicom
Group offers its clients such additional services as marketing consultation,
consumer market research, design and production of merchandising and sales
promotion programs and materials, direct mail advertising, corporate
identification, public relations, and interactive marketing. The Omnicom Group
offers these services to clients worldwide on a local, national, pan-regional or
global basis. Operations cover the major regions of North America, the United
Kingdom, Continental Europe, the Middle East, Africa, Latin America, the Far
East and Australia. In 1997 and 1996, 50% and 51%, respectively, of the Omnicom
Group's billings came from its non-U.S. operations.
According to the unaudited industry-wide figures published in 1997 by the
trade journal Advertising Age, Omnicom Group Inc. was ranked as the second
largest advertising agency group worldwide.
The Omnicom Group operates as three separate, independent agency networks:
the BBDO Worldwide Network, the DDB Needham Worldwide Network and the TBWA
International Network. The Omnicom Group also operates several independent
agencies, including Cline Davis & Mann and Goodby, Silverstein & Partners,
certain marketing service and specialty advertising companies through its
Diversified Agency Services division ("DAS"), and certain interactive marketing
companies through Communicade.
In March 1998, the Company completed its acquisition of The GGT Group plc,
a UK headquartered advertising and marketing services group. The GGT Group's
principal subsidiaries operate in France, the United Kingdom and the United
States.
The BBDO Worldwide, DDB Needham Worldwide and TBWA International Networks
General
BBDO Worldwide, DDB Needham Worldwide and TBWA International, by
themselves and through their respective subsidiaries and affiliates,
independently operate advertising agency networks worldwide. Their primary
business is to create marketing communications for their clients' goods and
services across the total spectrum of advertising and promotion media. Each of
the agency networks has its own clients and competes with each other in the same
markets.
The BBDO Worldwide, DDB Needham Worldwide and TBWA International agencies
typically assign to each client a group of advertising specialists which may
include account managers, copywriters, art directors and research, media and
production personnel. The account manager works with the client to establish an
overall advertising strategy for the client based on an analysis of the client's
products or services and its market. The group then creates and arranges for the
production of the advertising and/or promotion and purchases time, space or
access in the relevant media in accordance with the client's budget.
BBDO Worldwide Network
The BBDO Worldwide Network operates in the United States through BBDO
Worldwide which is headquartered in New York and has full-service offices in New
York, New York; Los Angeles, California; Miami, Florida; Atlanta, Georgia;
Chicago, Illinois; Detroit, Michigan; and Minneapolis, Minnesota. The BBDO
Worldwide Network operates internationally through subsidiaries in Austria,
Belgium, Brazil, Canada, Chile, China, Denmark, Finland, France, Germany,
Greece, Hong Kong, Hungary, Italy, Malaysia, Mexico, the Netherlands, Peru,
Poland, Portugal, Puerto Rico, Russia, Singapore, Spain, Sweden, Taiwan and
Thailand; through affiliates located in Argentina, Australia, Colombia, Costa
Rica, Croatia, Cyprus, the Czech Republic, Egypt, El Salvador, Guatemala,
Honduras, India, Israel, Kuwait, Lebanon, New Zealand, Nicaragua, Norway,
Panama, the Philippines, Romania, Saudi Arabia, the Slovak Republic, Turkey, the
United Kingdom, the United Arab Emirates and Venezuela; and through a joint
venture in Japan. The BBDO Worldwide Network uses the services of associate
agencies in Albania, Bulgaria, the Dominican Republic, Ecuador, Estonia,
Indonesia, Korea, Lithuania, Pakistan, Paraguay, Slovenia, South Africa,
Switzerland, Uruguay and Yugoslavia.
1
<PAGE>
DDB Needham Worldwide Network
The DDB Needham Worldwide Network operates in the United States through
The DDB Needham Worldwide Communications Group, which is headquartered in New
York and has full-service offices in New York, New York; Los Angeles and San
Francisco, California; Dallas, Texas; Chicago, Illinois; and Seattle,
Washington; and through Griffin Bacal Inc., which is headquartered in New York.
The DDB Needham Worldwide Network operates internationally through
subsidiaries in Australia, Austria, Belgium, Brazil, Bulgaria, Canada, China,
Colombia, Croatia, the Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary, Italy, Japan, Latvia, Mexico, the
Netherlands, New Zealand, Norway, the Philippines, Portugal, Romania, Singapore,
the Slovak Republic, Spain, Sweden, Taiwan, Thailand and the United Kingdom; and
through affiliates located in Miami, Florida and in Argentina, Brazil, Chile,
Costa Rica, El Salvador, Germany, Guatemala, Honduras, India, Korea, Malaysia,
Panama, Poland, Switzerland, Turkey, Uruguay and Venezuela. The DDB Needham
Worldwide Network uses the services of associate agencies in Honolulu, Hawaii;
Austria, Bahrain, Bangladesh, Belarus, Belize, Bolivia, Cyprus, the Dominican
Republic, Ecuador, Egypt, Georgia, Guam, Indonesia, Ireland, Israel, Jordan,
Kuwait, Lebanon, Lithuania, Luxembourg, Monaco, Morocco, Nicaragua, Oman,
Pakistan, Paraguay, Peru, Puerto Rico, Russia, Saudi Arabia, Slovenia, South
Africa, Trinidad, Tunisia, Ukraine, the United Arab Emirates, Uruguay, Vietnam,
the Former Yugoslav Republic of Macedonia and Yugoslavia. Griffin Bacal Inc.
operates internationally through subsidiaries in Canada and the United Kingdom
and through a branch in Mexico.
TBWA International Network
The TBWA International Network operates in North America through TBWA
Chiat/Day which is headquartered in New York and has full-service offices in New
York, New York; and Los Angeles and San Francisco, California, through Ketchum
Advertising in Pittsburgh, Pennsylvania; and through TBWA Chiat/Day Canada in
Toronto, Canada. The TBWA International Network also operates in North America
through its affiliate, TBWA Chiat/Day Mexico.
The TBWA International Network operates internationally through
subsidiaries in Austria, Australia, Belgium, Brazil, Bulgaria, Croatia, the
Czech Republic, Denmark, France, Germany, Greece, Hong Kong, Hungary, India,
Italy, the Netherlands, Poland, Portugal, Romania, Singapore, the Slovak
Republic, South Africa, Spain, Switzerland, Thailand and the United Kingdom; and
through affiliates located in Argentina, Canada, Chile, China, the Czech
Republic, Finland, Hungary, Israel, the Netherlands, Norway and Sweden. The TBWA
International Network uses the services of associate agencies in Austria,
Australia, Cyprus, Egypt, Ireland, Indonesia, Japan, Jordan, Kenya, Kuwait,
Lebanon, Namibia, New Zealand, Russia, Saudi Arabia, Slovenia, South Korea,
Syria, Taiwan, the United Arab Emirates and Zimbabwe.
Diversified Agency Services
DAS is the Omnicom Group's Marketing Services and Specialty Communications
Division. The DAS mission is to create breakthrough customer driven marketing
communications and services that build clients' businesses. Marketing services
include: branding consultancy (Interbrand), contract publishing (Premier
Magazines, Specialist Publications), corporate and financial public relations
(Gavin Anderson & Company), direct/database marketing (Rapp Collins Worldwide,
Russ Reid), field marketing (CPM International), graphic arts (RC
Communications), integrated communications (The FOCUS Agency, Integer Group),
organizational communications (Smythe Dorward Lambert), promotional marketing
(Alcone Marketing Group, The Anvil Consultancy, CaseoDunlap, Pathways Marketing
Consultants, Product Plus International, TLP, Inc.), public affairs (GPC
International), public relations (Copithorne & Bellows, Fleishman-Hillard,
Ketchum Public Relations Worldwide, Porter Novelli International), reputation
management (Clark & Weinstock), sports and event marketing (GMR Marketing,
Millsport) and telemarketing (Optima Direct, InTelMark). Specialty
communications include: corporate/financial advertising (Doremus & Company),
directory advertising (Ketchum Directory Advertising), healthcare communications
(Diversified Healthcare Communications Group, Health & Medical Communications
Group, TARGIS Healthcare Communications Worldwide), managed care consultancy
(GMR Group) and recruitment communications (Bernard Hodes Advertising, Macmillan
Davies Hodes). DAS also operates independent consumer advertising (Merkley
Newman Harty) and media buying (Creative Media) agencies.
2
<PAGE>
DAS has headquarter offices in New York, London and Hong Kong, and
operates globally through its 62 companies in 22 strategic business units, with
subsidiaries, affiliates and associates in Argentina, Australia, Austria,
Belgium, Brazil, Canada, Chile, China, Colombia, Costa Rica, the Czech Republic,
Denmark, the Dominican Republic, Ecuador, Finland, France, Germany, Greece,
Guatemala, Hungary, India, Indonesia, Ireland, Israel, Italy, Japan, Korea,
Malaysia, Mexico, Myanmar, the Netherlands, New Zealand, Norway, Panama, Peru,
the Philippines, Poland, Portugal, Puerto Rico, Russia, Singapore, the Slovak
Republic, South Africa, Spain, Sweden, Switzerland, Taiwan, Thailand, Turkey,
the United Arab Emirates, the United Kingdom, the United States, Venezuela and
Vietnam.
Communicade
Communicade has minority interests in six interactive marketing agencies
in the United States: AGENCY.COM, Razorfish and Think New Ideas, headquartered
in New York; Red Sky Interactive and Organic Online, in San Francisco,
California; and Interactive Solutions, in Boston, Massachusetts. Communicade
also operates through a wholly owned subsidiary, Eagle River Interactive,
headquartered in Chicago, Illinois.
Omnicom Group Inc.
As the parent company of BBDO Worldwide, DDB Needham Worldwide, TBWA
International, DAS, Communicade and several independent agencies, the Company,
through its wholly-owned subsidiary Omnicom Management Inc., provides a common
financial and administrative base for the operating groups. The Company oversees
the operations of each group through regular meetings with their respective
top-level management. The Company sets operational goals for each of the groups
and evaluates performance through the review of monthly operational and
financial reports. The Company provides its groups with centralized services
designed to coordinate financial reporting and controls, tax, treasury and real
estate planning, and to focus corporate development objectives. The Company also
develops consolidated services for its agencies and their clients such as
consolidated media buying arrangements.
Clients
The clients of the Omnicom Group include major industrial, financial and
service industry companies as well as smaller, local clients. Among its largest
clients are Anheuser-Busch, Chrysler, Henkel, Johnson & Johnson, Mars,
McDonald's, Nissan, PepsiCo, Pfizer, SBC Communications, Sony, Tricon, Visa and
Volkswagen.
The Omnicom Group's ten largest clients accounted for approximately 20% of
1997 commission and fees. The majority of these have been clients for more than
ten years. The Omnicom Group's largest client accounted for less than 6% of 1997
commission and fees.
Revenues
Commissions charged on media billings represent a significant proportion
of revenues for the Omnicom Group. Commission rates are not uniform and are
negotiated with the client. In accordance with industry practice, the media
source typically bills the agency for the time or space purchased and the
Omnicom Group bills its client for this amount plus the commission. The Omnicom
Group typically requires that payment for media charges be received from the
client before the agency makes payments to the media. In some instances a member
of the Omnicom Group, like other advertising agencies, is at risk in the event
that its client is unable to pay the media.
The Omnicom Group's advertising networks also generate revenues by
arranging for the production of advertisements and commercials. Although, as a
general matter, the Omnicom Group does not itself produce the advertisements and
commercials, the Omnicom Group's creative and production staff directs and
supervises the production company. Agencies bill the client for production costs
plus a commission. In some circumstances, certain production work is done by the
Omnicom Group's personnel.
In many cases, fees are generated in lieu of commissions. Several
different fee arrangements are used depending on client and individual agency
needs. In general, fee charges relate to the cost of providing services plus a
markup. The DAS division primarily charges fees for its various specialty
services, which vary in type and scale, depending upon the service rendered and
the client's requirements.
3
<PAGE>
Advertising agency revenues are dependent upon the marketing requirements
of clients and tend to be highest in the second and fourth quarters of the
fiscal year.
Other Information
For additional information concerning the contribution of international
operations to commissions and fees and net income see Note 5 of the Notes to
Consolidated Financial Statements.
The advertising business is highly competitive and accounts may shift
agencies with comparative ease, usually on 90 days' notice. Clients may also
reduce advertising budgets at any time for any reason. An agency's ability to
compete for new clients is affected in some instances by the policy, which many
advertisers follow, of not permitting their agencies to represent competitive
accounts in the same market. As a result, increasing size may limit an agency's
potential for securing certain new clients. In the vast majority of cases,
however, the separate, independent identities of BBDO Worldwide, DDB Needham
Worldwide, TBWA International, the independent agencies within DAS and
Communicade, and the other independent agencies have enabled the Omnicom Group
to represent competing clients.
The Omnicom agencies have sought, and will seek, new business by showing
potential clients examples of advertising campaigns produced and by explaining
the variety of related services offered. The Omnicom Group competes in the
United States and internationally with a multitude of full service and special
service agencies. In addition to the usual risks of the advertising agency
business, international operations are subject to the risk of currency exchange
fluctuations, exchange control restrictions and to actions of governmental
authorities.
Employees
The business success of the Omnicom Group is, and will continue to be,
highly dependent upon the skills and creativity of its creative, research, media
and account personnel and their relationships with clients. The Company believes
its operating groups have established reputations for creativity and marketing
expertise which attract, retain and stimulate talented personnel. There is
substantial competition among advertising agencies for talented personnel and
all agencies are vulnerable to adverse consequences from the loss of key
individuals. Employees are generally not under employment contracts and are free
to move to competitors of the Omnicom Group. The Company believes that its
compensation arrangements for its key employees, which include stock options,
restricted stock and retirement plans, are highly competitive with those of
other advertising agencies. As of December 31, 1997, the Omnicom Group,
excluding unconsolidated companies, employed approximately 27,200 persons, of
which approximately 11,900 were employed in the United States and approximately
15,300 were employed in its international offices.
Government Regulation
The advertising business is subject to government regulation, both within
and outside the United States. In the United States, federal, state and local
governments and their agencies and various consumer groups have directly or
indirectly affected or attempted to affect the scope, content and manner of
presentation of advertising. The continued activity by government and by
consumer groups regarding advertising may cause further change in domestic
advertising practices in the coming years. While the Company is unable to
estimate the effect of these developments on its U.S. business, management
believes the total volume of advertising in general media in the United States
will not be materially reduced due to future legislation or regulation, even
though the form, content, and manner of presentation of advertising may be
modified. In addition, the Company will continue to ensure that its management
and operating personnel are aware of and are responsive to the possible
implications of such developments.
Item 2. Properties
Substantially all of the Company's offices are located in leased premises.
The Company actively manages its lease obligations and, where appropriate,
consolidates its leased premises. Management has obtained subleases for most of
the premises vacated as a result of such consolidations. Where appropriate,
management has established reserves for the difference between the cost of the
leased premises that were vacated and anticipated sublease income.
4
<PAGE>
Domestic
The Company's corporate office occupies approximately 32,000 sq. ft. of
space at 437 Madison Avenue, New York, New York under a lease expiring in the
year 2010.
BBDO Worldwide occupies approximately 285,000 sq. ft. of space at 1285
Avenue of the Americas, New York, New York under a lease expiring in the year
2012, which includes options for additional space to allow for the growth of the
agency.
DDB Needham Worldwide occupies approximately 251,000 sq. ft. of space at
437 Madison Avenue, New York, New York under leases expiring in the year 2010,
which include options for additional space to allow for the growth of the
agency.
TBWA Chiat/Day occupies approximately 58,000 sq. ft. of space at 180
Maiden Lane, New York, New York under a lease expiring in the year 2016, which
includes options for additional space to allow for the growth of the agency.
Offices in Atlanta, Boston, Chicago, Dallas, Detroit, Houston, Irvine, Los
Angeles, Mahwah, Minneapolis, New York, Philadelphia, Pittsburgh, San Francisco,
San Jose, Seattle and Washington D.C. and at various other locations occupy
approximately an aggregate of 3,320,000 sq. ft. of space under leases with
varying expiration dates.
International
The Company's international subsidiaries in Australia, Austria, Belgium,
Brazil, Bulgaria, Canada, China, Croatia, the Czech Republic, Denmark, Finland,
France, Germany, Greece, Hong Kong, Hungary, Ireland, Italy, Japan, Malaysia,
Mexico, the Netherlands, New Zealand, Norway, the Philippines, Poland, Portugal,
Puerto Rico, Romania, Singapore, the Slovak Republic, South Africa, Spain,
Sweden, Taiwan, Thailand and the United Kingdom occupy premises under leases
with various expiration dates.
Item 3. Legal Proceedings
The Company has no material pending legal proceedings, other than ordinary
routine litigation incidental to its business.
Item 4. Submission of Matters to a Vote of Security Holders
A Special Meeting of Shareholders of the Company was held on December 1,
1997 to consider and vote upon a proposal to approve an amendment to the
Company's Restated Certificate of Incorporation increasing the number of
authorized shares of Common Stock, par value $.50 per share, from 150,000,000 to
300,000,000 to allow the Company to issue additional shares for a two-for-one
stock split in the form of a dividend declared by the Board of Directors in
September 1997 contingent upon shareholder approval, among other corporate
purposes. The proposal was approved with 70,083,831 affirmative votes being
cast, 179,029 negative votes being cast and 97,104 abstentions.
No other matters were submitted to a vote of security holders during the
last quarter of 1997.
5
<PAGE>
Executive Officers of the Company
The individuals named below are Executive Officers of the Company and,
except as indicated below, have held their current positions during the last
five years:
Name Position Age
------ -------- ----
Bruce Crawford....... Chairman of Omnicom Group 69
John D. Wren......... Chief Executive Officer & President of
Omnicom Group and Chairman & Chief Executive
Officer of Diversified Agency Services 45
Fred J. Meyer ....... Chief Financial Officer of Omnicom Group 67
Dennis E. Hewitt..... Treasurer of Omnicom Group 53
Barry J. Wagner...... Secretary & General Counsel of Omnicom Group 57
Jonathan E. Ramsden.. Controller of Omnicom Group 33
Allen Rosenshine..... Chairman & Chief Executive Officer of
BBDO Worldwide 59
James A. Cannon ..... Vice Chairman & Chief Financial Officer
of BBDO Worldwide 59
Keith L. Reinhard.... Chairman & Chief Executive Officer of
DDB Needham Worldwide 63
William G. Tragos.... Chairman & Chief Executive Officer of
TBWA International 63
John D. Wren was appointed Chief Executive Officer of the Company
effective January 1, 1997, succeeding Bruce Crawford in the position. Mr. Wren
was appointed President of the Company and Chairman of Diversified Agency
Services in September 1995. Mr. Wren was appointed Chief Executive Officer of
Diversified Agency Services in May 1993. Mr. Wren had served as President of
Diversified Agency Services since February 1992, having previously served as its
Executive Vice President and General Manager.
Fred J. Meyer joined the Company in April 1988 as Chief Financial Officer.
Mr. Meyer was previously Senior Vice President and Chief Financial Officer of
CBS Inc.
Dennis E. Hewitt was promoted to Treasurer of the Company in January 1994.
Mr. Hewitt joined the Company in May 1988 as Assistant Treasurer.
Barry J. Wagner was promoted to Secretary and General Counsel of the
Company in May 1995. Mr. Wagner was previously Assistant Secretary of the
Company.
Jonathan E. Ramsden was promoted to Controller of the Company in June
1996. Mr. Ramsden joined the Company in March 1996 after nine years with Arthur
Andersen.
Similar information with respect to the remaining Executive Officers of
the Company, who are all directors of the Company, can be found in the Company's
definitive proxy statement expected to be filed April 6, 1998.
The Executive Officers of the Company are elected annually following the
annual meeting of the shareholders of their respective employers.
6
<PAGE>
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters
Price Range of Common Stock and Dividend History
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "OMC". The table below shows the range of reported last sale prices
on the New York Stock Exchange Composite Tape for the Company's common stock for
the periods indicated and the dividends paid per share on the common stock for
such periods; the reported last sales price on March 16, 1998 was $453/16. All
sales prices and per share amounts give effect to the two-for-one stock split
completed in December 1997.
Dividends Paid
Per Share of
High Low Common Stock
----- ----- -------------
1996
First Quarter..................... 22 1/2 17 13/16 .0875
Second Quarter.................... 23 1/4 20 1/8 .0875
Third Quarter..................... 23 7/8 19 9/16 .10
Fourth Quarter.................... 25 3/4 22 .10
1997
First Quarter..................... 26 7/16 22 5/16 .10
Second Quarter.................... 32 1/8 23 15/16 .10
Third Quarter..................... 37 1/8 31 1/32 .125
Fourth Quarter.................... 42 3/8 33 .125
The Company is not aware of any restrictions on its present or future
ability to pay dividends. However, in connection with certain borrowing
facilities entered into by the Company and its subsidiaries (see Note 7 of the
Notes to Consolidated Financial Statements), the Company is subject to certain
restrictions on the ratio of debt to cash flow, the ratio of total consolidated
indebtedness to total consolidated capitalization and its ability to make
investments in and loans to affiliates and unconsolidated subsidiaries.
On February 3, 1998 the Board of Directors declared a regular quarterly
dividend of $0.125 per share of common stock, payable April 2, 1998 to holders
of record on March 13, 1998.
Approximate Number of Equity Security Holders
Approximate Number of
Record Holders
Title of Class on March 16, 1998
-------------- ----------------------
Common Stock, $.50 par value......................... 3,365
Preferred Stock, $1.00 par value .................... None
7
<PAGE>
Item 6. Selected Financial Data
The following table sets forth selected financial data of the Company and
should be read in conjunction with the consolidated financial statements which
begin on page F-1. All per share amounts give effect to the two-for-one stock
split completed in December 1997.
<TABLE>
<CAPTION>
(Dollars in Thousands Except Per Share Amounts)
--------------------------------------------------------------------
1997 1996 1995 1994 1993
------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
For the year:
Commissions and fees................ $3,124,813 $2,641,667 $2,257,536 $1,907,795 $1,688,960
Income before change
in accounting principles......... 222,415 176,329 139,955 111,495 65,568
Net income ......................... 222,415 176,329 139,955 83,486 65,568
Earnings per common share before
change in accounting principles:
Basic............................ 1.40 1.17 0.95 0.80 0.52
Diluted.......................... 1.37 1.12 0.93 0.77 0.51
Cumulative effect of change in
accounting principles:
Basic............................ -- -- -- (0.20) --
Diluted.......................... -- -- -- (0.20) --
Earnings per common share after
change in accounting principles:
Basic............................ 1.40 1.17 0.95 0.60 0.52
Diluted.......................... 1.37 1.12 0.93 0.59 0.51
Dividends declared per common
share............................ 0.45 0.375 0.33 0.31 0.31
At year end:
Total assets........................ 4,965,743 4,055,943 3,527,677 3,040,211 2,465,408
Long-term obligations:
Long-term debt................... 341,665 204,744 290,379 199,487 301,044
Deferred compensation and
other liabilities.............. 114,668 124,739 122,623 150,291 113,197
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations
In 1997, domestic revenues from commissions and fees increased 16.8
percent. The effect of acquisitions, net of divestitures, accounted for a 2.7
percent increase. The remaining 14.1 percent increase was due to the growth of
existing businesses, including net new business gains and higher net spending
from existing clients.
In 1996, domestic revenues from commissions and fees increased 23.9
percent. The effect of acquisitions, net of divestitures, accounted for a 7.4
percent increase. The remaining 16.5 percent increase was due to the growth of
existing businesses, including net new business gains and higher net spending
from existing clients.
In 1995, domestic revenues from commissions and fees increased 12.8
percent. The effect of acquisitions, net of divestitures, accounted for a 1.5
percent increase. The remaining 11.3 percent increase was due to the growth of
existing businesses, including net new business gains and higher net spending
from existing clients.
In 1997, international revenues increased 19.9 percent. The effect of
acquisitions, net of divestitures, accounted for a 16.2 percent increase in
international revenues. Changes in the foreign exchange value of the U.S. dollar
decreased international revenues by 10.3 percent. The remaining 14.0 percent
increase was due to the growth of existing businesses, including net new
business gains and higher net spending from existing clients.
In 1996, international revenues increased 10.3 percent. The effect of
acquisitions, net of divestitures, accounted for a 3.2 percent increase in
international revenues. Changes in the foreign exchange value of the U.S. dollar
decreased international revenues by 3.4 percent. The remaining 10.5 percent
increase was due to the growth of existing businesses, including net new
business gains and higher net spending from existing clients.
8
<PAGE>
In 1995, international revenues increased 24.3 percent. The effect of
acquisitions, net of divestitures, accounted for a 5.9 percent increase in
international revenues. The weakening of the U.S. dollar increased international
revenues by 6.7 percent. The remaining 11.7 percent increase was due to the
growth of existing businesses, including net new business gains and higher net
spending from existing clients.
In 1997, worldwide operating expenses increased 17.5 percent.
Acquisitions, net of divestitures during the year, accounted for a 7.9 percent
increase in worldwide operating expenses. Changes in the foreign exchange value
of the U.S. dollar decreased worldwide operating expenses by 4.7 percent. The
remaining 14.3 percent increase was caused by normal salary increases and growth
in out-of-pocket expenditures to service the increased revenue base. Net foreign
exchange gains did not significantly impact operating expenses for the year.
In 1996, worldwide operating expenses increased 16.5 percent.
Acquisitions, net of divestitures during the year, accounted for a 4.9 percent
increase in worldwide operating expenses. Changes in the foreign exchange value
of the U.S. dollar decreased worldwide operating expenses by 1.6 percent. The
remaining 13.2 percent increase was caused by increases in employee
compensation, including relatively higher levels of bonus and incentive
compensation and severance payments, and growth in out-of-pocket expenditures to
service the increased revenue base. Net foreign exchange gains did not
significantly impact operating expenses for the year.
In 1995, worldwide operating expenses increased 17.4 percent.
Acquisitions, net of divestitures during the year, accounted for a 3.9 percent
increase in worldwide operating expenses. The weakening of the U.S. dollar
increased worldwide operating expenses by 3.2 percent. The remaining 10.3
percent increase was caused by normal salary increases and growth in
out-of-pocket expenditures to service the increased revenue base. Net foreign
exchange gains did not significantly impact operating expenses for the year.
Net interest expense in 1997 increased $1.0 million. The effect of higher
average borrowings during the year, resulting in part from the issuance of the 4
1/4% Convertible Subordinated Debentures, was offset by the effect of higher
average amounts of cash and marketable securities invested during the year.
Net interest expense in 1996 decreased $6.9 million, due primarily to
lower average interest rates on borrowings and the conversion of the 4.5%/6.25%
Step-Up Convertible Subordinated Debentures in September 1996.
Net interest expense in 1995 was comparable to net interest expense in
1994. The effect of higher average borrowings during the year was offset by the
effect of higher average amounts of cash and marketable securities invested
during the year.
In 1997, the effective tax rate increased to 41.0 percent. This increase
primarily reflects higher tax rates at the Company's international subsidiaries.
In 1996, the effective tax rate increased to 40.5 percent. This increase
reflects an increase in the effective rate of state and local taxes.
In 1995, the effective tax rate decreased to 40.1 percent. The decrease
reflects a reduction in the effect of nondeductible goodwill amortization and a
decrease in the effective rate of state and local taxes.
In 1997, consolidated net income increased 26.1 percent. This increase was
the result of revenue growth, margin improvement, and an increase in equity
income, partially offset by an increase in minority interest expense. Operating
margin, which excludes net interest expense, increased to 12.9 percent in 1997
from 12.4 percent in 1996 as a result of greater growth in commission and fee
revenue than the growth in operating expenses. The increase in equity income was
primarily due to greater profits earned by the Company's existing equity
affiliates. The increase in minority interest expense was caused by higher
earnings from companies in which minority interests exist and additional
minority interests resulting from acquisitions. In 1997, the impact of
acquisitions, net of divestitures, resulted in a 16.0 percent increase in
consolidated net income, while changes in the foreign exchange value of the U.S.
dollar decreased consolidated net income by 5.0 percent.
In 1996, consolidated net income increased 26.0 percent. This increase was
the result of revenue growth and margin improvement. Operating margin, which
excludes net interest expense, increased to 12.4 percent in 1996 from 12.0
percent in 1995 as a result of greater growth in commission and fee revenue than
the growth in operating expenses. In 1996, the impact of acquisitions, net of
divestitures, resulted in a 2.7 percent increase in consolidated net income,
while changes in the foreign exchange value of the U.S. dollar decreased
consolidated net income by 2.4 percent.
9
<PAGE>
In 1995, consolidated net income increased 25.5 percent compared to 1994
consolidated net income before the adoption of SFAS 112. This increase was the
result of revenue growth, margin improvement, and an increase in equity income,
partially offset by an increase in minority interest expense. Operating margin,
increased to 12.0 percent in 1995 from 11.3 percent in 1994 as a result of
greater growth in commission and fee revenue than the growth in operating
expenses. The increase in equity income was primarily due to increased earnings
of the Company's existing equity affiliates. The increase in minority interest
expense was caused by higher earnings from companies in which minority interests
exist. In 1995, the impact of divestitures, net of acquisitions, resulted in a
4.4 percent decrease in consolidated net income, while the weakening of the U.S.
dollar against several international currencies increased consolidated net
income by 3.4 percent.
The Company anticipates relatively favorable growth rates in its domestic
and international markets.
At December 31, 1997, accounts receivable less allowance for doubtful
accounts, increased by $353.1 million from December 31, 1996. At December 31,
1997, accounts payable and other accrued liabilities increased by $525.2 million
and $108.6 million, respectively, from December 31, 1996. These increases were
primarily due to an increased volume of activity resulting from business growth
and acquisitions during the year and, in the case of accounts payable,
differences in the timing of payments to media and other suppliers in 1997 as
compared to 1996.
Effective January 1, 1994, the Company adopted the provisions of Statement
of Financial Accounting Standards No. 112 "Employers' Accounting for
Postemployment Benefits". The cumulative after tax effect of the adoption of
this statement decreased net income by $28.0 million.
The Company's international operations are subject to the risk of currency
exchange rate fluctuations. This risk is generally limited to the net income of
the operations as the revenues and expenses of the operations are generally
denominated in the same currency. The Company or its international operations
may in some cases enter into hedging transactions to minimize the risk of
adverse currency exchange rate fluctuations on the net income of the operation.
The Company's major international markets are the United Kingdom, Germany,
France, the Netherlands, Canada, Spain, Brazil, and Australia. The Company's
operations are also subject to the risk of interest rate fluctuations.
As part of managing the Company's exposures to currency exchange and
market interest rates, the Company periodically enters into derivative financial
instruments. Derivative financial instruments are subject to market and
counterparty risk. Market risk is the potential for loss resulting from changes
in market conditions. The Company periodically determines the potential loss
from market risk by performing a value-at-risk computation. Value-at-risk uses a
statistical model that utilizes historic currency exchange and interest rate
data to measure the potential impact on future earnings of the Company's
existing portfolio of derivative financial instruments. The value-at-risk
analysis performed on the Company's December 31, 1997 portfolio of derivative
financial instruments indicated that the risk of loss was immaterial.
Counterparty risk arises from the inability of a counterparty to meet its
obligations. In order to minimize counterparty risk, the Company only enters
into derivative contracts with major well-known banks that have credit ratings
equal to or better than the Company's.
The Company's derivative activities are limited in volume and confined to
risk management activities related to the Company's worldwide operations. A
reporting system is in place which evaluates the impact on the Company's
earnings resulting from changes in interest rates, currency exchange rates and
other relevant market risks. This system is structured to enable senior
management to initiate prompt remedial action, if appropriate.
At December 31, 1997 and 1996, the Company had forward foreign exchange
contracts outstanding with an aggregate notional principal amount of $584
million and $301 million, respectively, most of which were denominated in the
Company's major international market currencies. These contracts predominantly
hedge certain of the Company's intercompany receivables and payables which are
recorded in a currency different from that in which they will settle. The terms
of these contracts are generally three months or less.
At December 31, 1997 and 1996, the Company had no other derivative
contracts outstanding.
10
<PAGE>
Year 2000 Issue
The Year 2000 issue is the result of computer programs being written using
two digits, rather than four, to define the applicable year. Accordingly, any of
the computer programs utilized by the Company, that have date sensitive software
may cause system failures or miscalculations if data entry of "00" is recognized
as a date other than 2000.
The Company has determined that it is required to modify portions of its
software so that its computer systems will properly utilize dates beyond
December 31, 1999. The Company is dependent on third-party computer systems and
applications, particularly with respect to such critical tasks as accounting,
billing and buying, planning and paying for media, as well as on its own
computer systems and internally developed applications. The Company intends to
modify or replace all affected systems for compliance, and is also monitoring
the adequacy of the processes and progress of third-party vendors of systems
that may be affected by the Year 2000 issue. The Company believes that with
upgrades or modifications to existing software and conversion to new software,
the impact of the Year 2000 issue can be overcome. However, if such upgrades,
modifications and conversions are not made, or are not made in a timely manner,
the Year 2000 issue could have a material impact on the Company's operations.
The Company will utilize both internal and external resources to
reprogram, or replace, and test software for Year 2000 compliance. The Company
has a team of managers dedicated to addressing Year 2000 compliance for the
Company, clients and vendors. The costs of the project have not yet been
determined but are not expected to have a material adverse effect on the
Company. Amounts incurred are expected to be expensed as incurred, unless new
software is purchased which will be capitalized. The Company has not incurred
significant costs to date.
Capital Resources and Liquidity
Cash and cash equivalents increased $46.2 million during 1997 to $556.4
million at December 31, 1997. The Company's positive net cash flow provided by
operating activities was maintained, in part, by a continued favorable
relationship between the collection of accounts receivable and the payment of
obligations to media and other suppliers. After annual cash outlays for
dividends paid to shareholders and minority interests and the repurchase of the
Company's common stock for employee programs, the balance of the cash flow,
together with the proceeds from issuance of debt obligations, was used to fund
acquisitions, make capital expenditures and repay debt obligations.
On January 3, 1997, the Company issued $218.5 million of 4 1/4%
Convertible Subordinated Debentures with a scheduled maturity in 2007. The
debentures are convertible into common stock of the Company at a conversion
price of $31.50 per share subject to adjustment in certain events. Debenture
holders have the right to require the Company to redeem the debentures on
January 3, 2003 at a price of 112.418%, or upon the occurrence of a Fundamental
Change, as defined in the indenture agreement, at the prevailing redemption
price. The Company may redeem the debentures, as a whole or in part, on or after
December 29, 2000 initially at 108.324% and at increasing prices thereafter to
112.418% until January 2, 2003, and 100% thereafter. Unless the debentures are
redeemed, repaid or converted prior thereto, the debentures will mature on
January 3, 2007 at their principal amount.
On July 12, 1996, the Company issued a Notice of Redemption for the
outstanding 4.5%/6.25% Step-Up Convertible Subordinated Debentures issued on
September 1, 1993 with a scheduled maturity in 2000. Prior to the September 5,
1996 redemption date, the debenture holders elected to convert all of their
outstanding debentures into common stock of the Company at a conversion price of
$13.72 per common share.
On March 1, 1996, the Company issued Deutsche Mark 100 million Floating
Rate Bonds (approximately $68 million at the March 1, 1996 exchange rate) due
March 1, 1999. The bonds are unsecured, unsubordinated obligations of the
Company and bear interest at a per annum rate equal to Deutsche Mark three month
LIBOR plus 0.375%.
On January 4, 1995, an indirect wholly-owned subsidiary of the Company
issued Deutsche Mark 200 million Floating Rate Bonds due January 5, 2000. The
bonds are unsecured, unsubordinated obligations of the issuer and are
unconditionally and irrevocably guaranteed by the Company. The bonds bear
interest at a per annum rate equal to Deutsche Mark three month LIBOR plus
0.65%. On August 18, 1997 and October 1, 1997,
11
<PAGE>
Deutsche Mark 69 million and Deutsche Mark 20 million, respectively, of the
Deutsche Mark 200 million Floating Rate Bonds were repurchased.
The Company maintains relationships with a number of banks worldwide,
which have extended unsecured committed lines of credit in amounts sufficient to
meet the Company's cash needs. At December 31, 1997, the Company had $509
million in such unsecured committed lines of credit, comprised of a $360
million, five year revolving credit agreement expiring June 30, 2001, and $149
million in lines of credit, principally outside of the United States. Of the
$509 million in unsecured committed lines, $14 million were used at December 31,
1997.
On February 20, 1998, the Company amended and restated the $360 million
revolving credit agreement originally entered into in 1996. The amended and
restated $500 million revolving credit agreement is with a consortium of banks
and expires on June 30, 2003. Management believes the aggregate lines of credit
available to the Company are adequate to support its short-term cash
requirements for dividends, capital expenditures and maintenance of working
capital.
On January 6, 1998, the Company issued $230.0 million of 2 1/4%
Convertible Subordinated Debentures with a scheduled maturity in 2013. The
debentures are convertible into common stock of the Company at a conversion
price of $49.83 per share subject to adjustment in certain events. Debenture
holders have the right to require the Company to redeem the debentures on
January 6, 2004 at a price of 118.968%, or upon the occurrence of a Fundamental
Change, as defined in the indenture agreement, at the prevailing redemption
price. The Company may redeem the debentures, as a whole or in part, on or after
December 31, 2001 initially at 112.841% and at increasing prices thereafter to
118.968% until January 6, 2004, and 100% thereafter. Unless the debentures are
redeemed, repaid, or converted prior thereto, the debentures will mature on
January 6, 2013 at their principal amount. The proceeds of this issuance will be
used for general corporate purposes, including working capital.
On March 4, 1998, the Company issued 4,000,000 shares of common stock for
aggregate proceeds before expenses of $171.4 million. The proceeds of this
issuance will be used for general corporate purposes, including the funding of
the acquisition of The GGT Group plc.
The Company anticipates that the year end cash position, together with
future cash flows from operations, funds available under existing credit
facilities (including the 2 1/4% Convertible Subordinated Debentures) and the
proceeds from the issuance of 4,000,000 shares of common stock in March 1998
will be adequate to meet its long-term cash requirements as presently
contemplated.
Item 8. Financial Statements and Supplementary Data
The financial statements and supplementary data required by this item
appear beginning on page F-1.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
PART III
Item 10. Directors and Executive Officers of the Registrant
Information with respect to the directors of the Company and compliance
with Section 16 rules is incorporated by reference to the Company's definitive
proxy statement expected to be filed by April 6, 1998. Information regarding the
Company's executive officers is set forth in Part I of this Form 10-K.
Item 11. Executive Compensation
Incorporated by reference to the Company's definitive proxy statement
expected to be filed by April 6, 1998.
Item 12. Security Ownership of Certain Beneficial Owners and Management
Incorporated by reference to the Company's definitive proxy statement
expected to be filed by April 6, 1998.
Item 13. Certain Relationships and Related Transactions
Incorporated by reference to the Company's definitive proxy statement
expected to be filed by April 6, 1998.
12
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
Page
----
(a)1. Financial Statements:
Report of Management................................................ F-1
Report of Independent Public Accountants............................ F-2
Consolidated Statements of Income for the three years
ended December 31, 1997.......................................... F-3
Consolidated Balance Sheets at December 31, 1997 and 1996........... F-4
Consolidated Statements of Shareholders' Equity for the three years
ended December 31, 1997.......................................... F-5
Consolidated Statements of Cash Flows for the three years
ended December 31, 1997.......................................... F-6
Notes to Consolidated Financial Statements.......................... F-7
Quarterly Results of Operations (Unaudited)......................... F-20
2. Financial Statement Schedules:
Schedule II--Valuation and Qualifying Accounts (for the three years
ended December 31, 1997)......................................... S-1
All other schedules are omitted because they are not applicable.
3. Exhibits:
(3)(i) Articles of Incorporation (as amended on December 4, 1997
and as restated for filing purposes), filed as Exhibit 4.1
to Omnicom Group Inc.'s Registration Statement No.
333-46303, are incorporated herein by reference.
(ii) By-laws.
Incorporated by reference to Omnicom Group Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1987.
(4) Instruments Defining the Rights of Security Holders,
Including Indentures.
4.1 Copy of Subscription Agreement dated December 14, 1994 by
and among the Registrant, BBDO Canada Inc. and Morgan
Stanley GmbH and the other Managers listed therein, in
connection with the issuance of DM 200,000,000 Floating Rate
Bonds of 1995 due January 5, 2000 of BBDO Canada Inc.,
including form of Guaranty by Registrant, filed as Exhibit
4.2 to Omnicom Group Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1994, is incorporated herein by
reference.
4.2 Paying Agency Agreement dated January 4, 1995 by and among
the Registrant, BBDO Canada Inc. and Morgan Stanley GmbH in
connection with the issuance of DM 200,000,000 Floating Rate
Bonds of 1995 due January 5, 2000 of BBDO Canada Inc. filed
as Exhibit 4.3 to Omnicom Group Inc.'s Annual Report on Form
10-K for the year ended December 31, 1994, is incorporated
herein by reference.
4.3 Copy of Subscription Agreement dated February 27, 1996 by
and among the Registrant, Morgan Stanley Bank AG and Morgan
Stanley & Co. International in connection with the issuance
of DM 100,000,000 Floating Rate Bonds of 1996 due March 1,
1999 filed as Exhibit 4.4 to Omnicom Group Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1995, is
incorporated herein by reference.
4.4 Paying Agency Agreement dated March 1, 1996 by and among the
Registrant, Morgan Stanley Bank AG and Morgan Stanley & Co.
International in connection with the issuance of DM
100,000,000 Floating Rate Bonds of 1996 due March 1, 1999
filed as Exhibit 4.5 to Omnicom Group Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1995, is
incorporated herein by reference.
13
<PAGE>
4.5 Indenture dated January 3, 1997 between the Registrant and
The Chase Manhattan Bank, as trustee, in connection with the
issuance of 4 1/4% Convertible Subordinated Debentures due
2007 filed as Exhibit 4.2 to Omnicom Group Inc.'s Form S-3
Registration Statement No. 333-22589, is incorporated herein
by reference.
4.6 Form of Debentures (included in Exhibit 4.5 above) filed as
Exhibit 4.3 to Omnicom Group Inc.'s Form S-3 Registration
Statement No. 333-22589, is incorporated herein by
reference.
4.7 Registration Rights Agreement dated January 3, 1997 between
the Registrant and Morgan Stanley & Co. Incorporated related
to the Registrant's 4 1/4% Convertible Subordinated
Debentures due 2007 filed as Exhibit 4.4 to Omnicom Group
Inc.'s Form S-3 Registration Statement No. 333-22589, is
incorporated herein by reference.
4.8 Indenture dated January 6, 1998, between the Registrant and
The Chase Manhattan Bank, as trustee, in connection with the
issuance of 2 1/4% Convertible Subordinated Debentures due
2013 filed as Exhibit 4.1 to Omnicom Group Inc.'s Report on
Form 8-K dated January 20, 1998, is incorporated herein by
reference.
4.9 Form of Debentures (included in Exhibit 4.8 above) filed as
Exhibit 4.2 to Omnicom Group Inc.'s Report on Form 8-K dated
January 20, 1998, is incorporated herein by reference.
4.10 Registration Rights Agreement dated January 6, 1998, between
the Registrant and Morgan Stanley & Co. Incorporated related
to the Registrant's 2 1/4% Convertible Subordinated
Debentures due 2013 filed as Exhibit 4.3 to Omnicom Group
Inc.'s Report on Form 8-K dated January 20, 1998 is
incorporated herein by reference.
(10) Material Contracts.
Management Contracts, Compensatory Plans, Contracts or
Arrangements.
10.1 Copy of Registrant's 1987 Stock Plan, filed as Exhibit 10.26
to Omnicom Group Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1987, is incorporated herein by
reference.
10.2 Amendments to Registrant's 1987 Stock Plan, filed as Exhibit
10.2 to Omnicom Group Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1994, is incorporated herein by
reference.
10.3 Copy of Registrant's Profit-Sharing Retirement Plan dated
May 16, 1988, filed as Exhibit 10.24 to Omnicom Group Inc.'s
Annual Report on Form 10-K for the year ended December 31,
1988, is incorporated herein by reference.
10.4 Amendment to Registrant's Profit-Sharing Retirement Plan
listed as Exhibit 10.3 above, adopted February 4, 1991,
filed as Exhibit 10.28 to Omnicom Group Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1990, is
incorporated herein by reference.
10.5 Amendment to Registrant's Profit-Sharing Retirement Plan
listed as Exhibit 10.3 above, adopted on December 7, 1992,
filed as Exhibit 10.13 to Omnicom Group Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1992, is
incorporated herein by reference.
10.6 Amendment to Registrant's Profit-Sharing Retirement Plan
listed as Exhibit 10.3 above, adopted on July 1, 1993, filed
as Exhibit 10.10 to Omnicom Group Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1993, is
incorporated herein by reference.
10.7 Standard Form of the Registrant's 1988 Executive Salary
Continuation Plan Agreement, filed as Exhibit 10.24 to
Omnicom Group Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1989, is incorporated herein by
reference.
14
<PAGE>
10.8 Standard Form of the Registrant's Indemnification Agreement
with members of Registrant's Board of Directors, filed as
Exhibit 10.25 to Omnicom Group Inc.'s Annual Report on Form
10-K for the year ended December 31, 1989, is incorporated
herein by reference.
10.9 Copy of DDB Needham Worldwide Joint Savings Plan, effective
as of May 1, 1989, filed as Exhibit 10.26 to Omnicom Group
Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1989, is incorporated herein by reference.
10.10 Copy of Severance Agreement dated July 6, 1993, between
Keith Reinhard and The DDB Needham Worldwide Communications
Group, Inc. (then known as DDB Needham Worldwide, Inc.),
filed as Exhibit 10.11 to Omnicom Group Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1993, is
incorporated herein by reference.
10.11 Copy of Employment Agreement dated May 26, 1993, between
William G. Tragos and TBWA International B.V., filed as
Exhibit 10.13 to Omnicom Group Inc.'s Annual Report on Form
10-K for the year ended December 31, 1993, is incorporated
herein by reference.
10.12 Copy of Deferred Compensation Agreement dated October 12,
1984, between William G. Tragos and TBWA Chiat/Day Inc.
(then known as TBWA Advertising Inc.), filed as Exhibit
10.14 to Omnicom Group Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1993, is incorporated herein by
reference.
10.13 Standard Form of Severance Compensation Agreement
incorporated by reference to BBDO International Inc.'s Form
S-1 Registration Statement filed with the Securities and
Exchange Commission on September 28, 1973, is incorporated
herein by reference.
Other Material Contracts.
10.14 Copy of $360,000,000 Credit Agreement, dated May 10, 1996,
between Omnicom Finance Inc., Omnicom Finance Limited, ABN
AMRO Bank N.V., Chase Securities Inc. and the financial
institutions party thereto, filed as Exhibit 10.15 to
Omnicom Group Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996, is incorporated herein by
reference.
10.15 Copy of Amendment No. 1 dated December 27, 1996, to the
Omnicom $360,000,000 Credit Agreement dated May 10, 1996,
listed as Exhibit 10.14 above, filed as Exhibit 10.15 to
Omnicom Group Inc.'s Annual Report on Form 10K for the year
ended December 31, 1996, is incorporated herein by
reference.
10.16 Copy of $500,000,000 Amended and Restated Credit Agreement,
dated as of May 10, 1996 amended and restated as of February
20, 1998, between Omnicom Finance Inc., Omnicom Finance
Limited, ABN AMRO Bank N.V., Chase Securities Inc. and the
financial institutions party thereto.
(21) Subsidiaries of the Registrant.
(23) Consents of Experts and Counsel.
23.1 Consent of Arthur Andersen LLP.
(24) Powers of Attorney from Bernard Brochand, Robert J.
Callander, James A. Cannon, Leonard S. Coleman, Jr., Susan
S. Denison, John R. Murphy, John R. Purcell, Keith L.
Reinhard, Allen Rosenshine, Gary L. Roubos, Quentin I.
Smith, Jr., William G. Tragos and Egon P. S. Zehnder.
(27) Financial Data Schedule (filed in electronic format only).
(b) Reports on Form 8-K:
No reports on Form 8-K were filed during the fourth quarter of the year
ended December 31, 1997.
15
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
OMNICOM GROUP INC.
Date: March 24, 1998
By: /s/ FRED J. MEYER
-----------------------------
Fred J. Meyer
Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ BRUCE CRAWFORD Chairman and Director March 24, 1998
- -------------------------------------
(Bruce Crawford)
/s/ JOHN D. WREN Chief Executive Officer March 24, 1998
- ------------------------------------- and President and Director
(John D. Wren)
/S/ FRED J. MEYER Chief Financial Officer March 24, 1998
- -------------------------------------
(Fred J. Meyer)
/S/ JONATHAN E. RAMSDEN Controller (Principal March 24, 1998
- ------------------------------------- Accounting Officer)
(Jonathan E. Ramsden)
/s/ BARRY J. WAGNER Secretary and March 24, 1998
- ------------------------------------- General Counsel
(Barry J. Wagner)
/s/ BERNARD BROCHAND* Director March 24, 1998
- -------------------------------------
(Bernard Brochand)
/s/ ROBERT J. CALLANDER* Director March 24, 1998
- -------------------------------------
(Robert J. Callander)
/s/ JAMES A. CANNON* Director March 24, 1998
- -------------------------------------
(James A. Cannon)
/s/ LEONARD S. COLEMAN, JR.* Director March 24, 1998
- -------------------------------------
(Leonard S. Coleman, Jr.)
/s/ SUSAN S. DENISON* Director March 24, 1998
- -------------------------------------
(Susan S. Denison)
/s/ JOHN R. MURPHY* Director March 24, 1998
- -------------------------------------
(John R. Murphy)
/s/ JOHN R. PURCELL* Director March 24, 1998
- -------------------------------------
(John R. Purcell)
/s/ KEITH L. REINHARD* Director March 24, 1998
- --- ----------------------------------
(Keith L. Reinhard)
/s/ ALLEN ROSENSHINE* Director March 24, 1998
- -------------------------------------
(Allen Rosenshine)
/s/ GARY L. ROUBOS* Director March 24, 1998
- -------------------------------------
(Gary L. Roubos)
/s/ QUENTIN I. SMITH, JR.* Director March 24, 1998
- -------------------------------------
(Quentin I. Smith, Jr.)
/s/ WILLIAM G. TRAGOS* Director March 24, 1998
- -------------------------------------
(William G. Tragos)
/s/ EGON P.S. ZEHNDER* Director March 24, 1998
- -------------------------------------
(Egon P.S. Zehnder)
*By BARRY J. WAGNER
- -------------------------------------
Barry J. Wagner
Attorney-in-fact
16
<PAGE>
REPORT OF MANAGEMENT
The management of Omnicom Group Inc. is responsible for the integrity of
the financial data reported by the Company and its subsidiaries. Management uses
its best judgment to ensure that the financial statements present fairly, in all
material respects, the consolidated financial position and results of operations
of Omnicom Group Inc. and subsidiaries. These financial statements have been
prepared in accordance with generally accepted accounting principles.
The system of internal controls of the Company, augmented by a program of
internal audits, is designed to provide reasonable assurance that assets are
safeguarded and records are maintained to substantiate the preparation of
accurate financial information. Underlying this concept of reasonable assurance
is the premise that the cost of control should not exceed the benefits derived
therefrom.
The financial statements have been audited by independent public
accountants. Their report expresses an independent informed judgment as to the
fairness of management's reported operating results and financial position. This
judgment is based on the procedures described in the second paragraph of their
report.
The Audit Committee meets periodically with representatives of financial
management, internal audit and the independent public accountants to assure that
each is properly discharging their responsibilities. In order to ensure complete
independence, the Audit Committee communicates directly and separately with the
independent public accountants, internal audit and financial management to
discuss the results of their audits, the adequacy of internal accounting
controls and the quality of financial reporting.
JOHN D. WREN FRED J. MEYER
- --------------------------------------- ---------------------------------
John D. Wren Fred J. Meyer
Chief Executive Officer and President Chief Financial Officer
F-1
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and
Shareholders of Omnicom Group Inc.:
We have audited the accompanying consolidated balance sheets of Omnicom
Group Inc. (a New York corporation) and subsidiaries as of December 31, 1997 and
1996, and the related consolidated statements of income, shareholders' equity,
and cash flows for each of the three years in the period ended December 31,
1997. These consolidated financial statements and the schedule referred to below
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements and schedule based
on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Omnicom Group Inc. and
subsidiaries as of December 31, 1997 and 1996, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1997 in conformity with generally accepted accounting principles.
Our audits were made for the purpose of forming an opinion on the basic
financial statements taken as a whole. The schedule on page S-1 is presented for
purposes of complying with the Securities and Exchange Commission's rules and is
not part of the basic financial statements. This schedule has been subjected to
the auditing procedures applied in the audits of the basic financial statements
and, in our opinion, fairly states in all material respects the financial data
required to be set forth therein in relation to the basic financial statements
taken as a whole.
ARTHUR ANDERSEN LLP
New York, New York
February 18, 1998 (except for Note 14
as to which the date is March 24, 1998)
F-2
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Years Ended December 31,
(Dollars in Thousands
Except Per Share Data)
-----------------------------------------
1997 1996 1995
---- ---- ----
COMMISSIONS AND FEES .......... $ 3,124,813 $ 2,641,667 $ 2,257,536
OPERATING EXPENSES:
Salaries and Related
Costs ................... 1,835,118 1,555,553 1,305,087
Office and General
Expenses................ 886,149 759,541 681,544
----------- ----------- -----------
2,721,267 2,315,094 1,986,631
----------- ----------- -----------
OPERATING PROFIT .............. 403,546 326,573 270,905
NET INTEREST EXPENSE:
Interest and Dividend
Income................... (20,811) (12,725) (15,019)
Interest Paid or Accrued ... 43,112 34,067 43,271
----------- ----------- -----------
22,301 21,342 28,252
----------- ----------- -----------
INCOME BEFORE INCOME TAXES .... 381,245 305,231 242,653
INCOME TAXES .................. 156,484 123,639 97,386
----------- ----------- -----------
INCOME AFTER INCOME TAXES ..... 224,761 181,592 145,267
EQUITY IN AFFILIATES .......... 30,089 20,510 20,828
MINORITY INTERESTS ............ (32,435) (25,773) (26,140)
----------- ----------- -----------
NET INCOME .................... $ 222,415 $ 176,329 $ 139,955
=========== =========== ===========
NET INCOME PER COMMON SHARE:
Basic ...................... $ 1.40 $ 1.17 $ 0.95
Diluted .................... $ 1.37 $ 1.12 $ 0.93
The accompanying notes to consolidated financial statements
are an integral part of these statements.
F-3
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
A S S E T S
December 31,
(Dollars in Thousands)
---------------------------
1997 1996
---- ----
CURRENT ASSETS:
Cash and cash equivalents ..................... $ 556,436 $ 510,267
Investments available-for-sale, at market,
which approximates cost .................. 87,668 12,841
Accounts receivable, less allowance for
doubtful accounts of $32,190 and $25,642
(Schedule II) ............................. 1,908,532 1,555,411
Billable production orders in process,
at cost .................................. 183,145 156,667
Prepaid expenses and other current assets ..... 252,617 189,799
----------- -----------
Total Current Assets .......................... 2,988,398 2,424,985
FURNITURE, EQUIPMENT AND LEASEHOLD IMPROVEMENTS,
at cost, less accumulated depreciation and
amortization of $336,926 and $301,102 .......... 239,667 221,655
INVESTMENTS IN AFFILIATES ......................... 281,264 223,918
INTANGIBLES, less accumulated amortization of
$235,257 and $198,880 .......................... 1,234,539 1,000,312
DEFERRED TAX BENEFITS ............................. 68,086 79,828
DEFERRED CHARGES AND OTHER ASSETS ................. 153,789 105,245
----------- -----------
$ 4,965,743 $ 4,055,943
=========== ===========
L I A B I L I T I E S A N D S H A R E H O L D E R S' E Q U I T Y
CURRENT LIABILITIES:
Accounts payable .............................. $ 2,595,255 $ 2,070,026
Current portion of long-term debt ............. 3,358 4,160
Bank loans .................................... 14,314 4,612
Advance billings .............................. 185,591 151,539
Accrued taxes on income ....................... 80,489 66,409
Other accrued taxes ........................... 93,390 72,424
Other accrued liabilities ..................... 586,342 477,753
Dividends payable ............................. 20,246 16,153
----------- -----------
Total Current Liabilities ..................... 3,578,985 2,863,076
----------- -----------
LONG-TERM DEBT .................................... 341,665 204,744
DEFERRED COMPENSATION AND OTHER LIABILITIES ....... 114,668 124,739
MINORITY INTERESTS ................................ 63,686 62,706
COMMITMENTS AND CONTINGENT LIABILITIES (Note 10)
SHAREHOLDERS' EQUITY:
Preferred stock, $1.00 par value, 7,500,000
shares authorized, none issued ............ -- --
Common stock, $.50 par value, 300,000,000
shares authorized, 173,836,221 and
172,577,014 shares issued in 1997
and 1996, respectively .................... 86,918 86,289
Additional paid-in capital .................... 533,412 511,366
Retained earnings ............................. 555,038 419,072
Unamortized restricted stock .................. (46,745) (39,445)
Cumulative translation adjustment ............. (47,947) 3,490
Treasury stock, at cost, 11,721,122
and 11,719,872 shares in 1997 and
1996, respectively ........................ (213,937) (180,094)
----------- -----------
Total Shareholders' Equity ................ 866,739 800,678
----------- -----------
$ 4,965,743 $ 4,055,943
=========== ===========
The accompanying notes to consolidated financial statements
are an integral part of these balance sheets.
F-4
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
Three Years Ended December 31, 1997
(Dollars in Thousands)
<TABLE>
<CAPTION>
Unamort-
Common Stock Additional ized Cumulative Total
--------------------- Paid-in Retained Restricted Translation Treasury Shareholders'
Shares Par Value Capital Earnings Stock Adjustment Stock Equity
------- ---------- --------- -------- --------- ---------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance December 31, 1994............ 158,524,464 $79,262 $342,139 $207,488 $(25,631) $(28,254) $(106,838) $468,166
Net income........................... 139,955 139,955
Dividends declared................... (47,739) (47,739)
Amortization of restricted shares ... 10,713 10,713
Share transactions under employee
stock plans......................... 1,161,488 581 7,914 (15,821) 17,111 9,785
Shares issued for acquisitions ...... 1,009 2,659 3,668
Cumulative translation adjustment ... 1,613 1,613
Repurchases of shares................ (34,654) (34,654)
Balance December 31, 1995, ----------- -------- -------- -------- -------- -------- --------- --------
as previously reported............. 159,685,952 79,843 351,062 299,704 (30,739) (26,641) (121,722) 551,507
Pooling of interests adjustment ..... 2,413,706 1,207 5,082 436 6,725
Balance January 1, 1996, ----------- -------- -------- -------- -------- -------- --------- --------
as restated ...................... 162,099,658 81,050 356,144 300,140 (30,739) (26,641) (121,722) 558,232
Net income........................... 176,329 176,329
Dividends declared................... (57,397) (57,397)
Amortization of restricted shares ... 13,895 13,895
Share transactions under employee
stock plans........................ 7,329 (22,601) 26,893 11,621
Shares issued for acquisitions ...... 9,382 17,808 27,190
Conversion of 4.5%/6.25% Step-Up
Debentures......................... 10,477,356 5,239 138,511 143,750
Cumulative translation adjustment ... 30,131 30,131
Repurchases of shares................ (103,073) (103,073)
Balance December 31, 1996, ----------- -------- -------- -------- -------- -------- --------- --------
as previously reported............ 172,577,014 86,289 511,366 419,072 (39,445) 3,490 (180,094) 800,678
Pooling of interests adjustments .... 1,088,974 544 (492) (14,735) (14,683)
----------- -------- -------- -------- -------- -------- --------- --------
Balance January 1, 1997,
as restated ....................... 173,665,988 86,833 510,874 404,337 (39,445) 3,490 (180,094) 785,995
Net income........................... 222,415 222,415
Dividends declared................... (71,714) (71,714)
Amortization of restricted shares ... 17,311 17,311
Share transactions under employee
stock plans........................ 16,321 (24,611) 35,606 27,316
Shares issued for acquisitions ...... 170,233 85 6,217 313 6,615
Cumulative translation adjustment ... (51,437) (51,437)
Repurchases of shares................ (69,762) (69,762)
----------- -------- -------- -------- -------- -------- --------- --------
Balance December 31, 1997............ 173,836,221 $ 86,918 $533,412 $555,038 $(46,745) $(47,947) $(213,937) $866,739
=========== ======== ======== ======== ======== ======== ========= ========
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of these balance sheets.
F-5
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Years Ended December 31,
(Dollars in Thousands)
------------------------------------
1997 1996 1995
--------- --------- ----------
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net income ..................................................... $ 222,415 $ 176,329 $ 139,955
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization of tangible assets ......... 63,837 50,970 45,879
Amortization of intangible assets ........................ 39,036 34,849 28,250
Minority interests ....................................... 32,435 25,773 26,140
Earnings of affiliates in excess of dividends received ... (15,654) (5,068) (5,682)
Decrease (increase) in deferred tax benefits ............. 15,629 (4,081) 2,400
Provisions for losses on accounts receivable ............. 9,981 7,911 6,024
Amortization of restricted shares ........................ 17,311 13,895 10,713
(Increase) decrease in accounts receivable ............... (381,811) 31,511 (259,560)
Increase in billable production .......................... (27,209) (20,546) (22,442)
Increase in other current assets ......................... (45,893) (21,132) (7,040)
Increase in accounts payable ............................. 569,522 243,885 180,850
Increase (decrease) in other accrued liabilities ......... 123,053 (68,426) 107,087
Increase (decrease) in accrued taxes on income ........... 10,374 20,718 (12,808)
(Increase) decrease in advances to affiliates ............. (29,652) 2,151 4,951
(Increase) decrease in deferred charges and other assets .. (42,365) 10,869 14,812
Other .................................................... (27,253) (5,583) (32,940)
--------- --------- ---------
Net Cash Provided by Operating Activities ...................... 533,756 494,025 226,589
--------- --------- ---------
Cash Flows From Investing Activities:
Capital expenditures ........................................ (76,172) (48,777) (49,568)
Purchases of equity interests in subsidiaries
and affiliates, net of cash acquired ..................... (334,941) (178,861) (118,784)
Sales of equity interests in subsidiaries and affiliates .... 6,705 52,861 15,278
Purchases of investments available-for-sale and
other investments ........................................ (112,037) (14,840) (14,200)
Sales of investments available-for-sale
and other investments .................................... 41,798 25,775 21,496
--------- --------- ---------
Net Cash Used in Investing Activities .......................... (474,647) (163,842) (145,778)
--------- --------- ---------
Cash Flows From Financing Activities:
Net borrowings (repayments) under lines of credit ........... 2,130 (16,114) 6,883
Proceeds from issuances of debt obligations ................. 245,961 78,752 135,162
Repayment of principal of debt obligations .................. (81,389) (20,485) (67,718)
Share transactions under employee stock plans ............... 27,316 11,621 5,681
Dividends and loans to minority stockholders ................ (33,179) (24,154) (15,498)
Dividends paid .............................................. (67,621) (54,311) (45,935)
Purchase of treasury shares ................................. (69,762) (103,073) (34,654)
--------- --------- ---------
Net Cash Provided by (Used in) Financing Activities ............ 23,456 (127,764) (16,079)
--------- --------- ---------
Effect of exchange rate changes on
cash and cash equivalents................................ (36,396) (6,151) 7,470
--------- --------- ---------
Net Increase in Cash and Cash Equivalents ...................... 46,169 196,268 72,202
Cash and Cash Equivalents at Beginning of Period ............... 510,267 313,999 241,797
--------- --------- ---------
Cash and Cash Equivalents at End of Period ..................... $ 556,436 $ 510,267 $ 313,999
========= ========= =========
Supplemental Disclosures:
Income taxes paid ........................................... $ 133,797 $ 112,155 $ 109,241
========= ========= =========
Interest paid ............................................... $ 34,920 $ 34,640 $ 36,482
========= ========= =========
</TABLE>
The accompanying notes to consolidated financial statements
are an integral part of these balance sheets.
F-6
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Business and Summary of Significant Accounting Policies
Business. Omnicom Group, Inc., through its wholly and partially-owned
companies, operates advertising agencies which plan, create, produce and place
advertising in various media such as television, radio, newspaper and magazines.
Additional services such as marketing consultation, consumer market research,
design and production of merchandising and sales promotion programs and
materials, direct mail advertising, corporate identification, public relations,
and interactive marketing are offered to clients. These services are offered to
clients worldwide on a local, national, pan-regional or global basis. Operations
cover the major regions of North America, the United Kingdom, Continental
Europe, the Middle East, Africa, Latin America, the Far East and Australia.
Recognition of Commission and Fee Revenue. Substantially all revenues are
derived from commissions for placement of advertisements in various media and
from fees for manpower and for production of advertisements. Revenue is
generally recognized when billed. Billings are generally rendered upon
presentation date for media, when manpower is used, when costs are incurred for
radio and television production and when print production is completed.
Principles of Consolidation. The accompanying consolidated financial
statements include the accounts of Omnicom Group Inc. and its domestic and
international subsidiaries (the "Company"). All significant intercompany
balances and transactions have been eliminated.
Restatements and Reclassifications. All amounts presented give effect to a
two-for-one stock split in the form of a 100% stock dividend completed in
December 1997 and to a prior two-for-one stock split completed in December 1995.
During 1995, the Company completed certain acquisitions which were accounted for
under the pooling-of-interests method of accounting, as discussed in Note 2.
Accordingly, the Company's consolidated financial statements and notes to
consolidated financial statements include the operating results of these
companies for all periods presented. In addition, certain prior year amounts
have been reclassified to conform with the 1997 presentation.
Investments Available-For-Sale. Investments available-for-sale consist
principally of time deposits with financial institutions. These investments are
generally redeemed at face value upon maturity and, as such, gains or losses on
disposition are immaterial. There are no material unrealized holding gains or
losses as of December 31, 1997.
Billable Production. Billable production orders in process consist
principally of costs incurred in producing advertisements and marketing
communications for clients. Such amounts are generally billed to clients when
costs are incurred for radio and television production and when print production
is completed.
Common Stock. During 1997, a wholly-owned subsidiary of the Company issued
securities which are exchangeable into common stock of the Company at the
holders' option. Common stock issued at December 31, 1997 includes 170,233
shares of common stock issuable on the exchange of these securities.
Treasury Stock. The Company accounts for treasury share purchases at cost.
The reissuance of treasury shares is accounted for at the average cost. Gains or
losses on the reissuance of treasury shares are generally accounted for as
additional paid-in capital.
Foreign Currency Translation. The Company's financial statements were
prepared in accordance with the requirements of Statement of Financial
Accounting Standards ("SFAS") No. 52, "Foreign Currency Translation." Under this
method, net transaction gains of $2.1 million, $1.5 million and $0.4 million are
included in 1997, 1996 and 1995 net income, respectively.
Earnings Per Common Share. The Company has adopted the provisions of SFAS
No. 128, "Earnings per Share", under which it is required to present basic and
diluted earnings per share information. Basic earnings per share is based upon
the weighted average number of common shares outstanding during each year.
Diluted earnings per share is based on the above, common share equivalents
outstanding, and if dilutive, adjusted for the assumed conversion of the
Company's Convertible Subordinated Debentures and the assumed increase in net
income for the after tax interest cost of these debentures. For the year ended
December 31, 1997, the 41/4% Step-Up Convertible Subordinated Debentures were
assumed to be
F-7
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
converted for the full year. For the year ended December 31, 1996, the
4.5%/6.25% Step-Up Convertible Subordinated Debentures were assumed to be
converted through September 5, 1996, when they were converted into common stock.
For the year ended December 31, 1995, the 4.5%/6.25% Step-Up Convertible
Subordinated Debentures were assumed to be converted for the full year. The
number of shares used in the computations were as follows:
1997 1996 1995
---- ---- ----
Basic EPS computation................ 159,418,700 151,329,300 146,570,900
Diluted EPS computation.............. 169,483,500 161,383,400 159,228,000
Severance Agreements. Arrangements with certain present and former
employees provide for continuing payments for periods up to 10 years after
cessation of their full-time employment in consideration for agreements by the
employees not to compete and to render consulting services in the post
employment period. Such payments, which are determined, subject to certain
conditions and limitations, by earnings in subsequent periods, are expensed in
such periods.
Depreciation of Furniture and Equipment and Amortization of Leasehold
Improvements. Depreciation charges are computed on a straight-line basis or
declining balance method over the estimated useful lives of furniture and
equipment, up to 10 years. Leasehold improvements are amortized on a
straight-line basis over the lesser of the terms of the related lease or the
useful life of these assets.
Intangibles. Intangibles represent acquisition costs in excess of the fair
value of tangible net assets of purchased subsidiaries. The intangible values
associated with the Company's business consist predominantly of two types: the
value of the worldwide agency networks and the value of ongoing client
relationships. The Company's worldwide agency networks have been operating for
an average of over sixty years and intangibles associated with enhancing network
value are intended to enhance the long term value of the networks. Client
relationships in the advertising industry are typically long term in nature and
the Company's largest clients have on average been clients for more than
twenty-five years. As such, intangibles are amortized on a straight-line basis
principally over a period of forty years. Each year, the intangibles are written
down if, and to the extent, they are determined to be impaired. Intangibles are
considered to be impaired if the future anticipated undiscounted cash flows
arising from the use of the intangibles is less than the net unamortized cost of
the intangibles.
Deferred Taxes. Deferred tax liabilities and tax benefits relate to the
recognition of certain revenues and expenses in different years for financial
statement and tax purposes and to differences between the tax and book basis of
assets and liabilities recorded in connection with acquisitions.
Cash Flows. The Company's cash equivalents are primarily comprised of
investments in overnight interest-bearing deposits, commercial paper and money
market instruments with original maturity dates of three months or less.
The following supplemental schedule summarizes the fair value of non-cash
assets acquired, cash paid, common shares issued and the liabilities assumed in
connection with the acquisition of equity interests in subsidiaries and
affiliates, for each of the three years ended December 31:
(Dollars in thousands)
1997 1996 1995
---- ---- ----
Fair value of non-cash assets acquired..... $462,928 $277,005 $129,425
Cash paid, net of cash acquired............ (334,941) (178,861) (118,784)
Common shares issued....................... (6,615) (27,190) (3,668)
-------- -------- --------
Liabilities assumed........................ $121,372 $ 70,954 $ 6,973
======== ======== ========
During 1996, the Company issued 10,477,356 shares of common stock upon
conversion of $143,750,000 of its 4.5%/6.25% Step-Up Convertible Subordinated
Debentures.
Concentration of Credit Risk The Company provides advertising and
marketing services to a wide range of clients who operate in many industry
sectors around the world. The Company grants credit to all qualified clients,
but does not believe it is exposed to any undue concentration of credit risk to
any significant degree.
F-8
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Derivative Financial Instruments. Derivative financial instruments consist
principally of forward foreign exchange contracts and interest rate swaps. In
order for derivative financial instruments to qualify for hedge accounting the
following criteria must be met: (a) the hedging instrument must be designated as
a hedge; (b) the hedged exposure must be specifically identifiable and expose
the Company to risk; and (c) it must be highly probable that a change in fair
value of the derivative financial instrument and an opposite change in the fair
value of the hedged exposure will have a high degree of correlation. The
majority of the Company's derivative activity relates to forward foreign
exchange contracts. The Company executes these contracts in the same currency as
the hedged exposure, whereby 100% correlation is achieved. Gains and losses on
derivative financial instruments which are hedges of existing assets or
liabilities are included in the carrying amount of those assets or liabilities
and are ultimately recognized in income as part of those carrying amounts.
Interest received and/or paid arising from swap agreements which qualify as
hedges are recognized in income when the interest is receivable or payable.
Derivative financial instruments which do not qualify as hedges are revalued to
the current market rate and any gains or losses are recorded in income in the
current period.
Use of Estimates. The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosures of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
2. Acquisitions
In February 1997, the Company completed the acquisitions of Cline Davis &
Mann, Inc. and Gavin Anderson & Company (Japan), Inc. Both of these acquisitions
were accounted for under the pooling-of-interests method of accounting and,
accordingly, the results of operations of Cline Davis & Mann, Inc. and Gavin
Anderson & Company (Japan), Inc. have been included in the consolidated
financial statements since January 1, 1997. Prior year consolidated financial
statements were not restated as the impact on such years was not material. A
total of 1,088,974 shares of common stock were issued in connection with these
acquisitions.
In May 1996, the Company completed the acquisition of Ketchum
Communications Holdings, Inc. ("Ketchum"). The acquisition was accounted for
under the pooling-of-interests method of accounting and accordingly, the results
of operations of Ketchum have been included in the consolidated financial
statements since January 1, 1996. Prior year consolidated financial statements
were not restated as the impact on such years was not material. A total of
2,413,706 shares were issued in connection with this acquisition.
In August 1995, the Company completed the acquisitions of Ross Roy
Communications and Chiat/Day Holdings. Both transactions were accounted for
under the pooling-of-interests method of accounting. Due to the aggregate
materiality of these acquisitions, the Company's financial statements were
restated to include the operating results of Ross Roy Communications and
Chiat/Day Holdings for all periods presented. A total of 5,113,292 shares were
issued in connection with these acquisitions.
During 1997, the Company made several other acquisitions within the
advertising industry whose aggregate cost, in cash or by issuance of the
Company's common stock, totaled $381.9 million for net assets, which included
intangible assets of $351.9 million. Due to the nature of the advertising
industry, companies acquired generally have tangible net liabilities or minimal
tangible net assets. The majority of the purchase price is paid for ongoing
client relationships and to enhance the Company's worldwide agency networks and
marketing service companies. Included in both figures are contingent payments
related to prior year acquisitions totaling $66.0 million. Pro forma combined
results of operations of the Company as if these acquisitions had occurred on
January 1, 1996 do not materially differ from the reported amounts in the
consolidated statements of income for each of the two years in the period ended
December 31, 1997.
Certain acquisitions entered into in 1997 and prior years require payments
in future years if certain results are achieved. Formulas for these contingent
future payments differ from acquisition to acquisition. Contingent future
payments are not expected to be material to the Company's results of operations
or financial position.
F-9
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
3. Bank Loans and Lines of Credit
Bank loans are primarily comprised of bank overdrafts of international
subsidiaries which are treated as loans pursuant to bank agreements. The
weighted average interest rate on the borrowings outstanding as of December 31,
1997 and 1996 was 9.9% and 6.6%, respectively. At December 31, 1997 and 1996,
the Company had unsecured committed lines of credit aggregating $509 million and
$475 million, respectively. The unused portion of credit lines was $495 million
and $470 million at December 31, 1997 and 1996, respectively. The lines of
credit are generally extended at the banks' lending rates to their most credit
worthy borrowers. Compensating balances are not required within the terms of
these credit agreements.
At December 31, 1997 and 1996, the committed lines of credit included $360
million under a revolving credit agreement expiring June 30, 2001. Due to the
long term nature of this credit agreement, borrowings under the agreement would
be classified as long-term debt. There were no borrowings under this revolving
credit agreement at December 31, 1997 and 1996.
The revolving credit agreement includes a facility for issuing commercial
paper backed by a bank letter of credit. During the years ended December 31,
1997, 1996 and 1995, the Company issued commercial paper with an average
original maturity of 16, 26 and 31 days, respectively. The Company had no
commercial paper borrowings outstanding as of December 31, 1997, 1996 and 1995.
The maximum outstanding during the year was $235 million, $230 million and $210
million, in 1997, 1996 and 1995, respectively. The gross amount of issuance and
redemption during the year was $2,017 million, $1,710 million and $1,211 million
in 1997, 1996 and 1995, respectively.
4. Employee Stock Plans
Under the terms of the Company's 1987 Stock Plan, as amended (the "1987
Plan"), 26,200,000 shares of common stock of the Company have been reserved for
restricted stock awards and non-qualified stock options to key employees of the
Company. The remaining number of such reserved shares was 2,912,000 at December
31, 1997.
Stock Options. As permitted by SFAS No. 123, "Accounting for Stock Based
Compensation," the Company intends to continue to apply the accounting
provisions of APB Opinion No. 25, "Accounting for Stock Issued to Employees,"
and to make annual pro forma disclosures of the effect of adopting the fair
value method of accounting for employee stock options and similar instruments.
During the initial periods of disclosure, the effects on net income may not be
representative of the effects in future years due to the transitional provisions
included in SFAS No. 123.
Under the terms of the 1987 Plan, the option price may not be less than
100% of the market value of the stock at the date of the grant. Options become
exercisable 30% on each of the first two anniversary dates of the grant date
with the final 40% becoming exercisable three years from the grant date.
A summary of the status of the Company's stock option plan for the three
years ended December 31, 1997 is as follows:
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------------------------------------------------------
1997 1996 1995
---------------------- ---------------------- -----------------------
Weighted Weighted Weighted
Average Average Average
Shares Exercise Price Shares Exercise Price Shares Exercise Price
------ ------------ ------ -------------- ------ --------------
<S> <C> <C> <C> <C> <C> <C>
Shares under option,
beginning of year................ 6,757,800 $ 13.16 5,924,800 $ 10.19 4,776,000 $ 8.75
Options granted..................... 1,440,000 24.28 1,880,000 19.80 1,660,000 13.17
Options exercised................... (1,330,000) 9.45 (1,047,000) 8.26 (511,200) 6.46
--------- --------- ---------
Shares under option,
end of year...................... 6,867,800 16.21 6,757,800 13.16 5,924,800 10.19
========= ========= =========
Options exercisable at
year-end......................... 3,447,800 3,227,800 3,014,800
</TABLE>
F-10
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The weighted average fair value of options granted during 1997, 1996 and
1995 was $6.27, $4.65 and $3.40 per option, respectively. The fair value of each
option grant has been estimated on the date of grant using the Black-Scholes
option pricing model with the following assumptions:
1997 1996 1995
---- ---- ----
Expected option lives............ 5 years 5 years 5 years
Risk free interest rate.......... 6.15% 5.64% - 5.99% 5.95% - 7.14%
Expected volatility.............. 19.7% 18.8% - 19.5% 20.9% - 25.7%
Dividend yield................... 1.5% 1.7% 2.2%
Using compensation cost for the Company's stock option plan, determined
based on the estimated fair value at the grant date for options granted in 1997,
1996 and 1995 consistent with the provisions of SFAS No. 123, the effect on the
Company's net income and income per share would have been as follows:
Dollars in Thousands
Except Per Share Data
-------------------------------------
1997 1996 1995
---- ---- ----
Net income, as reported................... $222,415 $176,329 $ 139,955
Net income, pro forma..................... 217,260 172,849 138,570
Basic income per share, as reported....... 1.40 1.17 0.95
Basic income per share, pro forma......... 1.36 1.14 0.95
Diluted income per share, as reported..... 1.37 1.12 0.93
Diluted income per share, pro forma....... 1.34 1.10 0.92
The following table summarizes information about options outstanding and
options exercisable at December 31, 1997:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
------------------------------------------------------------------------------------
Weighted Average
Range of Exercise Options Remaining Weighted Average Options Weighted Average
Prices (in dollars) Outstanding Contractual Life Exercise Price Exercisable Exercise Price
------------------- ------------ -------------- --------------- --------------- --------------
<S> <C> <C> <C> <C> <C>
5.77 110,000 2 years $ 5.77 110,000 $ 5.77
5.81 to 5.88 230,000 3 years 5.84 230,000 5.84
5.88 120,000 4 years 5.88 120,000 5.88
8.77 274,000 5 years 8.77 274,000 8.77
10.02 459,800 6 years 10.02 459,800 10.02
12.11 964,000 7 years 12.11 964,000 12.11
12.94 to 16.20 1,480,000 8 years 13.20 816,000 13.23
19.72 to 21.19 1,790,000 9 years 19.80 474,000 19.81
24.28 1,440,000 10 years 24.28 -- --
--------- ---------
6,867,800 3,447,800
========= =========
</TABLE>
Restricted Shares. A summary of changes in outstanding shares of
restricted stock for the three years ended December 31, 1997 is as follows:
Years Ended December 31,
-------------------------------------------
1997 1996 1995
---- ---- ----
Beginning balance................. 3,315,516 3,294,000 3,128,328
Amount granted.................. 1,105,838 1,136,616 1,224,336
Amount vested................... (1,123,882) (1,030,224) (980,844)
Amount forfeited................ (160,122) (84,876) (77,820)
--------- --------- ---------
Ending balance.................... 3,137,350 3,315,516 3,294,000
========= ========= =========
F-11
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
All restricted shares granted under the 1987 Plan were sold at a price per
share equal to their par value. The difference between par value and market
value on the date of the sale is charged to shareholders' equity and then
amortized to expense over the period of restriction. Under the 1987 Plan, the
restricted shares become transferable to the employee in 20% annual increments
provided the employee remains in the employ of the Company.
Restricted shares may not be sold, transferred, pledged or otherwise
encumbered until the restrictions lapse. Under most circumstances, the employee
must resell the shares to the Company at par value if the employee ceases
employment prior to the end of the period of restriction.
The charge to operations in connection with these restricted stock awards
for the years ended December 31, 1997, 1996 and 1995 amounted to $17.3 million,
$13.9 million and $10.7 million, respectively.
5. Segment Reporting
The Company operates advertising agencies and offers its clients
additional marketing services and specialty advertising through its wholly-owned
and partially-owned businesses. A summary of the Company's operations by
geographic area as of December 31, 1997, 1996 and 1995, and for the years then
ended is presented below:
(Dollars in Thousands)
-----------------------------------------
United
States International Consolidated
---------- ------------- -------------
1997
Commissions and Fees........... $1,616,768 $1,508,045 $3,124,813
Operating Profit .............. 218,647 184,899 403,546
Net Income .................... 124,732 97,683 222,415
Identifiable Assets............ 2,091,832 2,873,911 4,965,743
1996
Commissions and Fees........... $1,384,424 $1,257,243 $2,641,667
Operating Profit .............. 178,949 147,624 326,573
Net Income .................... 95,195 81,134 176,329
Identifiable Assets............ 1,661,877 2,394,066 4,055,943
1995
Commissions and Fees........... $1,117,226 $1,140,310 $2,257,536
Operating Profit .............. 139,927 130,978 270,905
Net Income .................... 69,906 70,049 139,955
Identifiable Assets............ 1,316,521 2,211,156 3,527,677
6. Investments in Affiliates
The Company has in excess of 65 unconsolidated affiliates accounted for
under the equity method. The equity method is used when the Company has an
ownership of less than 50% and exercises significant influence over the
operating and financial policies of the affiliate. The following table
summarizes the balance sheets and income statements of the Company's
unconsolidated affiliates, primarily in Europe and Australia, as of December 31,
1997, 1996, 1995, and for the years then ended:
(Dollars in Thousands)
-------------------------------------------
1997 1996 1995
--- --- ---
Current assets...................... $589,664 $528,814 $1,399,700
Non-current assets.................. 95,728 91,559 147,093
Current liabilities................. 500,633 422,886 1,400,349
Non-current liabilities............. 35,269 28,796 149,781
Minority interests.................. 3,644 2,134 8,015
Gross revenues...................... 538,647 525,404 702,639
Costs and expenses.................. 446,528 431,031 582,850
Net income.......................... 56,226 57,352 79,262
F-12
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The decrease in the summarized balance sheets and income statements of the
Company's unconsolidated affiliates in 1996 as compared to 1995 is due to the
sale of the Company's minority interest in Aegis Group plc, partially offset by
the growth of the Company's existing equity affiliates. The Company's equity in
the net income of these affiliates amounted to $30.1 million, $20.5 million and
$20.8 million for 1997, 1996 and 1995, respectively. The Company's equity in the
net tangible assets of these affiliated companies was approximately $105.5
million, $97.5 million, $76.7 million at December 31, 1997, 1996 and 1995,
respectively. Included in the Company's investments in affiliates is the excess
of acquisition costs over the fair value of tangible net assets acquired. These
excess acquisition costs are being amortized on a straight-line basis
principally over a period of forty years.
7. Long-Term Debt
Long-term debt outstanding as of December 31, 1997 and 1996 consisted of
the following:
(Dollars in Thousands)
1997 1996
------ ------
Deutsche Mark Floating Rate Bonds, with
a scheduled maturity in 2000, interest
at DM three month LIBOR plus 0.65%............... $ 61,738 $ 129,880
Deutsche Mark Floating Rate Bonds, with a
scheduled maturity in 1999, interest at
DM three month LIBOR plus 0.375%................. 55,620 64,940
41/4% Convertible Subordinated Debentures
with a scheduled maturity in 2007................ 218,500 --
Sundry notes and loans payable to banks and
others at rates from 5.15% to 20.25%,
maturing at various dates through 2003........... 9,165 14,084
------- --------
345,023 208,904
Less current portion................................ 3,358 4,160
-------- --------
Total long-term debt.............................. $341,665 $204,744
======== ========
On January 3, 1997, the Company issued $218.5 million of 41/4% Convertible
Subordinated Debentures with a scheduled maturity in 2007. The debentures are
convertible into common stock of the Company at a conversion price of $31.50 per
share subject to adjustment in certain events. Debenture holders have the right
to require the Company to redeem the debentures on January 3, 2003 at a price of
112.418%, or upon the occurrence of a Fundamental Change, as defined in the
indenture agreement, at the prevailing redemption price. The Company may redeem
the debentures, as a whole or in part, on or after December 29, 2000 initially
at 108.324% and at increasing prices thereafter to 112.418% until January 2,
2003, and 100% thereafter. Unless the debentures are redeemed, repaid or
converted prior thereto, the debentures will mature on January 3, 2007 at their
principal amount.
On July 12, 1996, the Company issued a Notice of Redemption for its 4.5% /
6.25% Step-Up Convertible Subordinated Debentures issued on September 1, 1993
with a scheduled maturity in 2000. Prior to the September 5, 1996 redemption
date, debenture holders elected to convert all of their outstanding debentures
into common stock of the Company at a conversion price of $13.72 per common
share.
On March 1, 1996, the Company issued Deutsche Mark 100 million Floating
Rate Bonds. The bonds are unsecured, unsubordinated obligations of the Company
and bear interest at a per annum rate equal to Deutsche Mark three month LIBOR
plus 0.375%. Unless redeemed earlier, the bonds will mature on March 1, 1999 and
will be repaid at par.
On January 4, 1995, an indirect wholly-owned subsidiary of the Company
issued Deutsche Mark 200 million Floating Rate Bonds. The bonds are unsecured,
unsubordinated obligations of the issuer and are unconditionally and irrevocably
guaranteed by the Company. The bonds bear interest at a rate equal to Deutsche
Mark three month LIBOR plus 0.65% and, subsequent to January 5, 1997 may be
redeemed at the option of the issuer on any interest payment date at their
principal amount plus any accrued but unpaid interest. On August 18, 1997 and
October 1, 1997, Deutsche Mark 69 million and Deutsche Mark 20 million,
respectively, of the Deutsche Mark 200 million Floating Rate Bonds were
repurchased. Unless redeemed earlier, the remaining bonds will mature on January
5, 2000 and will be repaid at par.
F-13
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
On May 10, 1996, the $250 million revolving credit agreement was replaced
by a $360 million revolving credit agreement. This $360 million revolving credit
agreement is with a consortium of banks expiring June 30, 2001. This credit
agreement includes a facility for issuing commercial paper backed by a bank
letter of credit. The agreement contains certain financial covenants regarding
the ratio of total consolidated indebtedness to total consolidated
capitalization, the ratio of debt to cash flow, and a limitation on investments
in and loans to affiliates and unconsolidated subsidiaries. At December 31, 1997
the Company was in compliance with these covenants.
Aggregate maturities of long-term debt in the next five years are as
follows:
(Dollars in Thousands)
1998......................................... $ 3,358
1999......................................... 58,505
2000......................................... 63,226
2001......................................... 691
2002......................................... 351
Thereafter................................... 218,892
8. Income Taxes
Income before income taxes and the provision for taxes on income consisted
of the amounts shown below:
Years Ended December 31,
(Dollars in Thousands)
--------------------------------------
1997 1996 1995
---- ---- ----
Income before income taxes:
Domestic........................... $182,608 $162,388 $107,536
International...................... 198,637 142,843 135,117
-------- -------- --------
Total........................ $381,245 $305,231 $242,653
======== ======== ========
Provision for taxes on income:
Current:
Federal...................... $ 47,145 $49,394 $ 29,143
State and local.............. 17,221 13,612 9,837
International................ 78,438 58,339 57,463
-------- -------- --------
142,804 121,345 96,443
-------- -------- --------
Deferred:
Federal...................... 7,712 2,072 2,089
State and local.............. 541 (120) (1,481)
International................ 5,427 342 335
-------- -------- --------
13,680 2,294 943
-------- -------- --------
Total........................ $156,484 $123,639 $ 97,386
======== ======== ========
The Company's effective income tax rate varied from the statutory federal
income tax rate as a result of the following factors:
1997 1996 1995
---- ---- ----
Statutory federal income tax rate................. 35.0% 35.0% 35.0%
State and local taxes on income, net of
federal income tax benefit..................... 3.0 2.9 2.2
International subsidiaries' tax rates in excess
of (less than) federal statutory rate.......... 1.2 (0.1) 0.1
Non-deductible amortization of goodwill........... 3.0 3.4 3.4
Other............................................. (1.2) (0.7) (0.6)
---- ---- ----
Effective rate.................................... 41.0% 40.5% 40.1%
==== ==== ====
F-14
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Deferred income taxes are provided for the temporary difference between
the financial reporting basis and tax basis of the Company's assets and
liabilities. Deferred tax benefits result principally from recording certain
expenses in the financial statements which are not currently deductible for tax
purposes and from differences between the tax and book basis of assets and
liabilities recorded in connection with acquisitions. Deferred tax liabilities
result principally from expenses which are currently deductible for tax
purposes, but have not yet been expensed in the financial statements.
The Company has recorded deferred tax benefits as of December 31, 1997 and
1996 of $142.1 million and $139.0 million, respectively, related principally to
tax deductible intangibles, restricted stock amortization, severance and
compensation, leases and accrued expenses.
The Company has recorded deferred tax liabilities as of December 31, 1997
and 1996 of $49.7 million and $38.5 million, respectively, related principally
to furniture and equipment depreciation and tax lease recognition.
Deferred tax benefits (liabilities) as of December 31, 1997 and 1996
consisted of the amounts shown below (dollars in millions):
1997 1996
---- ----
Deductible intangibles.................................. $41.4 $ 46.5
Acquisition liabilities................................. 18.9 15.9
Lease reserves.......................................... 7.3 8.4
Severance and compensation reserves..................... 29.4 26.9
Tax loss carryforwards.................................. 3.0 3.8
Amortization and depreciation........................... (1.7) (2.9)
Other, net.............................................. (5.9) 1.9
----- ------
$92.4 $100.5
===== ======
Net current deferred tax benefits as of December 31, 1997 and 1996 were
$24.3 million and $20.7 million, respectively, and were included in prepaid
expenses and other current assets. Net non-current deferred tax benefits as of
December 31, 1997 and 1996 were $68.1 million and $79.8 million, respectively.
The Company has concluded that it is probable that it will be able to realize
these net deferred tax benefits in future periods.
A provision has been made for additional income and withholding taxes on
the earnings of international subsidiaries and affiliates that will be
distributed.
9. Employee Retirement Plans
The Company's international and domestic subsidiaries provide retirement
benefits for their employees primarily through defined contribution plans.
Company contributions to the plans, which are determined by the boards of
directors of the subsidiaries, have been in amounts up to 15% (the maximum
amount deductible for federal income tax purposes) of total eligible
compensation of participating employees. Expenses associated with these plans
amounted to $54.3 million, $49.8 million and $41.7 million in 1997, 1996 and
1995, respectively.
The Company's pension plans are primarily international. These plans are
not required to report to governmental agencies pursuant to the Employee
Retirement Income Security Act of 1974 (ERISA). Substantially all of these plans
are funded by fixed premium payments to insurance companies which undertake
legal obligations to provide specific benefits to the individuals covered.
Pension expense amounted to $5.3 million, $4.6 million and $4.4 million in 1997,
1996 and 1995, respectively.
Certain subsidiaries of the Company have executive retirement programs
under which benefits will be paid to participants or their beneficiaries over 15
years beginning at age 65 or death. In addition, other subsidiaries have
individual deferred compensation arrangements with certain executives which
provide for payments over varying terms upon retirement, cessation of employment
or death.
F-15
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Some of the Company's domestic subsidiaries provide life insurance and
medical benefits for retired employees. Eligibility requirements vary by
subsidiary, but generally include attainment of a specified combined age plus
years of service factor. The expense related to these benefits was not material
to the 1997, 1996 and 1995 consolidated results of operations.
10. Commitments and Contingent Liabilities
At December 31, 1997, the Company was committed under operating leases,
principally for office space. Certain leases are subject to rent reviews and
require payment of expenses under escalation clauses. Rent expense was $235.9
million in 1997, $201.1 million in 1996 and $169.1 million in 1995 after
reduction by rents received from subleases of $12.8 million, $11.9 million and
$11.1 million, respectively. Future minimum base rents under terms of
noncancellable operating leases, reduced by rents to be received from existing
noncancellable subleases, are as follows:
(Dollars in Thousands)
Gross Rent Sublease Rent Net Rent
---------- ------------------- ----------
1998....................... $183,425 $11,308 $172,117
1999....................... 171,566 9,168 162,398
2000....................... 142,254 8,228 134,026
2001....................... 122,569 7,171 115,398
2002....................... 107,762 5,523 102,239
Thereafter................. 651,198 18,654 632,544
The present value of the gross future minimum base rents under
noncancellable operating leases is $990.6 million.
Where appropriate, management has established reserves for the difference
between the cost of leased premises that were vacated and anticipated sublease
income.
The Company is involved in various routine legal proceedings incident to
the ordinary course of its business. The Company believes that the outcome of
all pending legal proceedings and unasserted claims in the aggregate will not
have a material adverse effect on its results of operations, consolidated
financial position or liquidity.
11. Fair Value of Financial Instruments
The following table presents the carrying amounts and estimated fair
values of the Company's financial instruments at December 31, 1997 and 1996.
Amounts in parentheses represent liabilities.
<TABLE>
<CAPTION>
1997 1996
------------------------------- -------------------------------
(Dollars in Thousands) (Dollars in Thousands)
Carrying Fair Carrying Fair
Amount Value Amount Value
---------------- ---------- -------------- ----------
<S> <C> <C> <C> <C>
Cash, cash equivalents and
investments available-for-sale... $644,104 $644,104 $523,108 $523,108
Long-term investments............... 6,269 6,269 5,946 5,946
Long-term debt...................... (345,023) (439,251) (208,904) (208,904)
Financial Commitments
Forward foreign exchange
contracts...................... _____ (3,430) _____ 206
Guarantees....................... _____ (5,604) _____ (5,615)
Letters of credit................ _____ (16,464) _____ (8,730)
</TABLE>
F-16
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments for which it is practicable to estimate
that value:
Cash equivalents and investments available-for-sale:
Cash equivalents and investments available-for-sale consist principally of
investments in short-term, interest bearing instruments and are carried at fair
market value, which approximates cost.
Long-term investments:
Included in deferred charges and other assets are long-term investments
carried at cost, which approximates estimated fair value.
Long-term debt:
In 1997, a portion of the Company's long-term debt included floating rate
debt, the carrying value of which approximates fair value. The Company's
long-term debt also included convertible subordinated debentures. The fair value
was determined by reference to quotations available in markets where that issue
was traded. These quotations primarily reflected the conversion value of the
debentures into the Company's common stock.
In 1996, the majority of the Company's long-term debt was primarily
floating rate debt and consequently the carrying amount approximates fair value.
Financial Commitments:
The estimated fair values of derivative positions are based upon
quotations received from independent, third party banks and represent the net
amount required to terminate the position, taking into consideration market
rates and counterparty credit risk. The fair values of guarantees, principally
related to affiliated companies, and letters of credit were based upon the face
value of the underlying instruments.
12. Financial Instruments and Market Risk
The Company utilizes derivative financial instruments predominantly to
reduce certain market risks to which the Company is exposed. These market risks
primarily consist of the impact of changes in currency exchange rates on assets
and liabilities of non-U.S. operations and the impact of changes in interest
rates on debt. The Company's derivative activities are limited in volume and
confined to risk management activities. Senior management at the Company
actively participates in the quantification, monitoring and control of all
significant risks. A reporting system is in place which evaluates the impact on
the Company's earnings resulting from changes in interest rates, currency
exchange rates and other relevant market risks. This system is structured to
enable senior management to initiate prompt remedial action, if appropriate.
Adequate segregation of duties exists with regard to the execution, recording
and monitoring of derivative activities. Additionally, senior management reports
periodically to the Audit Committee of the Board of Directors concerning
derivative activities. Since 1993, the Audit Committee has established
limitations on derivative activities which are reviewed annually. The Audit
Committee reconfirmed, for the year 1997, the overall dollar limitations
originally established in 1993, and will be requested to reconfirm the same
limitations for 1998.
There were no swap agreements outstanding at December 31, 1997 and 1996.
The Company enters into forward foreign exchange contracts predominantly
to hedge intercompany receivables and payables which are recorded in a currency
different from that in which they will settle. Gains and losses on these
positions are deferred and included in the basis of the transaction upon
settlement. The terms of these contracts are generally three months or less. At
December 31, 1997 and 1996, the aggregate amount of intercompany receivables and
payables subject to this hedge program was $532 million and $287 million,
respectively. The table below summarizes by major currency the notional
principal amounts of the Company's forward foreign exchange contracts
outstanding at December 31, 1997 and 1996. The "buy" amounts represent the U.S.
dollar equivalent of commitments to purchase the respective currency, and the
"sell" amounts represent the U.S. dollar equivalent of commitments to sell the
respective currency.
F-17
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
<TABLE>
<CAPTION>
(Dollars in thousands)
Notional Principal Amount
-------------------------
1997 1996
-------------------------------- ---------------------------------
Currency Company Buys Company Sells Company Buys Company Sells
-------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
U.S. Dollar...................... $160,704 $ 47,588 $ 14,191 $ 401
German Mark...................... 98,820 154,143 53,901 97,901
French Franc..................... 26,693 9,216 35,436 602
Spanish Peseta................... 11,664 -- 12,304 332
Belgian Franc.................... 8,140 712 10,764 65
Dutch Guilder.................... 5,884 12,238 19,285 --
Italian Lira..................... 5,035 -- 2,384 --
Swedish Krona.................... 2,410 2,789 3,214 726
Hong Kong Dollar................. -- 12,140 -- 20,291
Greek Drachma.................... -- 6,548 -- 8,186
Other............................ 6,223 13,192 10,415 10,965
-------- -------- -------- --------
Total............................ $325,573 $258,566 $161,894 $139,469
======== ======== ======== ========
</TABLE>
The derivative financial instruments existing at December 31, 1997 and
1996 were entered into for the purpose of hedging certain specific currency and
interest rate risks. As a result of these financial instruments, the Company
reduced financial risk in exchange for foregoing any gain (reward) which might
have occurred if the markets moved favorably. In using derivative financial
instruments, management exchanged the risks of the financial markets for
counterparty risk. In order to minimize counterparty risk the Company only
enters into derivative contracts with major well-known banks that have credit
ratings equal to or better than the Company's.
13. Adoption of New Accounting Principles
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive
Income". SFAS No. 130 establishes standards for reporting and display of
comprehensive income and its components. Adoption of SFAS No. 130 is required
for fiscal years beginning after December 15, 1997.
In June 1997, the FASB also issued SFAS No. 131, "Disclosures about
Segments of an Enterprise and Related Information". SFAS No. 131 requires
disclosures regarding operating segments, products and services, geographic
areas and major customers of an enterprise in both the complete set of financial
statements and the condensed interim financial statements issued to
shareholders. Adoption of SFAS No. 131 is required for fiscal years beginning
after December 15, 1997.
The Company will adopt the provisions of these standards in 1998.
14. Subsequent Events
On January 6, 1998, the Company issued $230,000,000 of 21/4% Convertible
Subordinated Debentures with a scheduled maturity in 2013. The debentures are
convertible into common stock of the Company at a conversion price of $49.83 per
share subject to adjustment in certain events. Debenture holders have the right
to require the Company to redeem the debentures on January 6, 2004 at a price of
118.968%, or upon the occurrence of a Fundamental Change, as defined in the
indenture agreement, at the prevailing redemption price. The Company may redeem
the debentures, as a whole or in part, on or after December 31, 2001 initially
at 112.841% and at increasing prices thereafter to 118.968% until January 6,
2004, and 100% thereafter. Unless the debentures are redeemed, repaid or
converted prior thereto, the debentures will mature on January 6, 2013 at their
principal amount. The proceeds of this issuance are being used for general
corporate purposes, including working capital.
F-18
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Continued)
On January 29, 1998, the Company announced that it had reached agreement
on the terms of a recommended cash offer for The GGT Group plc ("GGT"), an
advertising and marketing services group headquartered in the United Kingdom and
operating primarily in France, the United Kingdom and the United States. The
offer price of 200p for each share valued GGT's fully diluted ordinary share
capital at 143 million pounds (approximately $235 million at the January 29,
1998 exchange rate). On March 24, 1998, the Company had received acceptances in
respect of, or was the beneficial owner of, over 90% of GGT's ordinary share
capital.
On February 20, 1998, the Company amended and restated the $360 million
revolving credit agreement originally entered into in 1996. The amended and
restated $500 million revolving credit agreement is with a consortium of banks
and expires on June 30, 2003.
On March 4, 1998, the Company issued 4,000,000 shares of common stock for
aggregate proceeds before expenses of $171,400,000. The proceeds of this
issuance will be used for general corporate purposes, including the funding of
the acquisition of The GGT Group plc.
F-19
<PAGE>
OMNICOM GROUP INC. AND SUBSIDIARIES
QUARTERLY RESULTS OF OPERATIONS (Unaudited)
The following table sets forth a summary of the unaudited quarterly
results of operations for the two years ended December 31, 1997 and 1996, in
thousands of dollars except for per share amounts. The information set forth in
the following table gives effect to the two-for-one stock split completed in
December 1997. In addition, as discussed in the notes to the consolidated
financial statements, information for the first quarter of 1996 has been
restated from the amounts originally reported as a result of the acquisition of
Ketchum Communications Holdings, Inc. during 1996 which was accounted for under
the pooling-of-interests method of accounting.
First Second Third Fourth
----- ------ ----- -------
Commissions & Fees
1997.................... $696,577 $786,341 $746,839 $895,056
1996.................... 591,601 666,465 631,772 751,829
Income Before Income Taxes
1997.................... 69,641 117,913 73,060 120,631
1996.................... 55,015 95,101 55,160 99,955
Income Taxes
1997.................... 28,266 48,045 29,879 50,294
1996.................... 22,271 38,426 22,236 40,706
Income After Income Taxes
1997.................... 41,375 69,868 43,181 70,337
1996.................... 32,744 56,675 32,924 59,249
Equity in Affiliates
1997.................... 4,144 7,282 4,601 14,062
1996.................... 3,053 4,023 3,509 9,925
Minority Interests
1997.................... (5,451) (10,751) (6,291) (9,942)
1996.................... (4,884) (7,745) (4,200) (8,944)
Net Income
1997.................... 40,068 66,399 41,491 74,457
1996.................... 30,913 52,953 32,233 60,230
Basic Earnings Per Share
1997.................... 0.25 0.41 0.26 0.47
1996.................... 0.21 0.36 0.21 0.38
Diluted Earnings Per Share
1997.................... 0.25 0.40 0.26 0.45
1996.................... 0.21 0.34 0.21 0.37
F-20
<PAGE>
Schedule II
OMNICOM GROUP INC. AND SUBSIDIARIES
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
For the Three Years Ended December 31, 1997
<TABLE>
<CAPTION>
============================================================================================================
Column A Column B Column C Column D Column E
- ------------------------------------------------------------------------------------------------------------
Additions Deductions
--------- -------------------------------
Balance at Charged Removal of Balance
Beginning to Costs Uncollectible Translation at End of
Description of Period and Expenses Receivables(1) Adjustments Period
- ------------------------------------------------------------------------------------------------------------
(Dollars in Thousands)
<S> <C> <C> <C> <C> <C>
Valuation accounts
deducted from
assets to which
they apply--
allowance for
doubtful accounts:
December 31, 1997...... $25,642 $9,981 $1,856 $1,577 $32,190
December 31, 1996...... 23,352 7,911 5,211 410 25,642
December 31, 1995 ..... 23,528 6,024 6,964 (764) 23,352
</TABLE>
- ----------
(1) Net of acquisition date balances in allowance for doubtful accounts of
companies acquired of $2,013, $985 and $463 in 1997, 1996, and 1995,
respectively.
S-1
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.16
<SEQUENCE>2
<DESCRIPTION>AMENDED AND RESTATED CREDIT AGREEMENT
<TEXT>
[EXECUTION COUNTERPART]
================================================================================
OMNICOM FINANCE INC. and OMNICOM FINANCE LIMITED,
as Borrowers
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 10, 1996
Amended and Restated as of February 20, 1998
---------------------------------
$500,000,000
---------------------------------
ABN AMRO BANK N.V., NEW YORK BRANCH
as Administrative Agent and Co-Arranger,
CHASE SECURITIES INC.,
as Syndication Agent and Co-Arranger
and
ABN AMRO BANK N.V., NEW YORK BRANCH
THE CHASE MANHATTAN BANK
as Managing Banks
------------------------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS(1)
Page
----
Section 1. Definitions and Principles of Construction....................... 1
1.01 Defined Terms.................................................... 1
1.02 Principles of Construction....................................... 20
Section 2. Amount and Terms of Revolving Credit............................. 20
2.01 The Syndicated Loans............................................. 21
2.02 Minimum Amount of Each Borrowing; Number of Interest
Periods.......................................................... 22
2.03 Notice of Borrowing.............................................. 22
2.04 Disbursement of Funds............................................ 24
2.05 Notes............................................................ 25
2.06 Conversions...................................................... 26
2.07 Pro Rata Borrowings.............................................. 26
2.08 Interest......................................................... 27
2.09 Interest Periods................................................. 28
2.10 Increased Costs, Illegality, etc................................. 29
2.11 Compensation..................................................... 31
2.12 Change of Applicable Lending Office.............................. 32
2.13 Competitive Bid Loans............................................ 32
2.14 Swingline Loans.................................................. 37
2.15 Currency Valuation............................................... 38
Section 3. Commercial Paper Operations...................................... 39
3.01 Issuance of Initial Letter of Credit; Substitute
Letters of Credit................................................ 39
3.02 Agreement to Repay Disbursements Under Letter of Credit.......... 43
3.03 Issuance of Commercial Paper..................................... 44
Section 4. Facility Fee; Fees; Reductions of
Commitments; Commitment Termination
Date; Increase of Commitments.................................... 46
4.01 Fees............................................................. 46
4.02 Termination of Commitments....................................... 47
4.03 Commitment Termination Date...................................... 48
4.04 Increase of Commitments.......................................... 49
Section 5. Prepayments; Payments............................................ 50
5.01 Voluntary Prepayments............................................ 50
5.02 Mandatory Prepayments............................................ 51
5.03 Method and Place of Payment...................................... 51
5.04 Net Payments..................................................... 51
Section 6. Conditions Precedent............................................. 53
6.01 Effectiveness................................................... 53
- -------------
(1) This Table of Contents is provided for convenience only and is not a part
of the attached Credit Agreement.
(i)
<PAGE>
Page
----
6.02 Credit Events.................................................... 54
Section 7. Representations, Warranties and Agreements....................... 55
7.01 Corporate Status................................................. 56
7.02 Corporate Power and Authority.................................... 56
7.03 No Violation..................................................... 56
7.04 Governmental Approvals........................................... 57
7.05 Litigation....................................................... 57
7.06 True and Complete Disclosure..................................... 57
7.07 Use of Proceeds: Margin Regulations.............................. 57
7.08 Tax Returns and Payments......................................... 58
7.09 Compliance with ERISA............................................ 59
7.10 Subsidiaries..................................................... 59
7.11 Compliance with Statutes, etc.................................... 59
7.12 Investment Company Act........................................... 59
7.13 Public Utility Holding Company Act............................... 60
7.14 Commercial Paper................................................. 60
Section 8. Affirmative Covenants............................................ 60
8.01 Information Covenants............................................ 60
8.02 Books, Records and Inspections................................... 61
8.03 Corporate Franchises............................................. 61
8.04 Compliance with Statutes, etc.................................... 61
8.05 ERISA............................................................ 62
8.06 End of Fiscal Years; Fiscal Quarters............................. 62
Section 9. Negative Covenants............................................... 62
9.01 Liens............................................................ 63
9.02 Consolidation, Merger, Sale of Assets, etc....................... 63
9.03 Leases........................................................... 63
9.04 Indebtedness..................................................... 63
9.05 Advances, Investments and Loans.................................. 64
9.06 Transactions with Affiliates..................................... 64
9.07 Limitation on Restrictions on Subsidiary Dividends and
Other Distributions.............................................. 64
9.08 Business......................................................... 64
9.09 Sale of Commercial Paper......................................... 64
9.10 Dividends........................................................ 65
Section 10. Events of Default............................................... 65
10.01 Payments........................................................ 65
10.02 Representations, etc............................................ 65
10.03 Covenants....................................................... 65
10.04 Default Under Other Agreements.................................. 65
10.05 Bankruptcy, etc................................................. 66
10.06 ERISA........................................................... 67
10.07 Guaranty........................................................ 67
10.08 Ownership of the Borrowers...................................... 67
10.09 Ownership of the Guarantor...................................... 67
10.10 Judgments....................................................... 68
10.11 Fundamental Change of Guarantor................................. 68
Section 11. The Administrative Agent........................................ 69
(ii)
<PAGE>
Page
----
11.01 Appointment..................................................... 69
11.02 Nature of Duties................................................ 69
11.03 Lack of Reliance on the Administrative Agent.................... 69
11.04 Certain Rights of the Administrative Agent...................... 70
11.05 Reliance........................................................ 71
11.06 Indemnification................................................. 71
11.07 The Administrative Agent in its Individual Capacity............. 71
11.08 Holders......................................................... 71
11.09 Resignation By the Administrative Agent......................... 72
11.10 The Co-Arrangers; Syndication Agent; Managing Banks............. 72
11.11 Replacement..................................................... 72
Section 12. Miscellaneous................................................... 73
12.01 Payment of Expenses, etc........................................ 73
12.02 Right of Setoff................................................. 73
12.03 Notices......................................................... 74
12.04 Benefit of Agreement............................................ 75
12.05 No Waiver; Remedies Cumulative.................................. 76
12.06 Payments Pro Rata............................................... 77
12.07 Calculations; Computations...................................... 77
12.08 Governing Law; Submission to Jurisdiction; Venue................ 78
12.09 Payment Denominations........................................... 78
12.10 Counterparts.................................................... 79
12.11 [Intentionally Omitted]......................................... 80
12.12 Headings Descriptive............................................ 80
12.13 Amendment or Waiver............................................. 80
12.14 Survival........................................................ 80
12.15 Domicile of Loans............................................... 81
12.16 Limitation on Additional Amounts, etc........................... 81
(iii)
<PAGE>
SCHEDULE I - Schedule of Commitments
SCHEDULE II - Bank Addresses and Lending Offices
SCHEDULE III - Subsidiaries
EXHIBIT A-1 - Form of Notice of Borrowing
EXHIBIT A-2 - Form of Notice of Swingline Borrowing
EXHIBIT B-1 - Form of Syndicated Note
EXHIBIT B-2 - [Intentionally Omitted]
EXHIBIT B-3 - Form of Competitive Bid Note
EXHIBIT B-4 - Form of Swingline Note
EXHIBIT C-1 - Form of Opinion of Counsel (New York) - OFI
EXHIBIT C-2 - Form of Opinion of Counsel (New York) - Banks
EXHIBIT C-3 - Form of Opinion of Counsel (New York) - OFL
EXHIBIT C-4 - Form of Opinion of Counsel (United Kingdom) - OFL
EXHIBIT D-1 - Form of Officers' Certificate - OFI
EXHIBIT D-2 - Form of Officers' Certificate - OFL
EXHIBIT D-3 - Form of Officers' Certificate - Guarantor
EXHIBIT E - Form of Participation Agreement
EXHIBIT F-1 - Form of Irrevocable Letter of Credit
EXHIBIT F-2 - Form of Amendment to Letter of Credit
EXHIBIT G - Form of Promissory Note - Commercial Paper
EXHIBIT H - Form of Depositary Agreement
EXHIBIT I - [Intentionally Omitted]
EXHIBIT J - Form of Letter of Credit Request
EXHIBIT K - Form of Guaranty
EXHIBIT L - Form of Competitive Bid Quote Request
EXHIBIT M - Form of Competitive Bid Quote
(iv)
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 10, 1996 amended
and restated as of February 20, 1998, among OMNICOM FINANCE INC., a corporation
organized and existing under the laws of Delaware ("OFI"); OMNICOM FINANCE
LIMITED, a corporation organized and existing under the laws of England ("OFL"
and, together with OFI, individually, a "Borrower" and collectively the
"Borrowers"); the financial institutions listed in Schedule I (each a "Bank"
and, collectively, the "Banks"); ABN AMRO BANK N.V., NEW YORK BRANCH ("ABN
AMRO"), acting as the maker of Swingline Loans referred to in Section 2.14 (in
such capacity, the "Swingline Bank") and as Letter of Credit Issuer; and ABN
AMRO BANK N.V., NEW YORK BRANCH, acting in the manner and to the extent
described in Section 11 (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers, certain of the Banks (the "Existing Banks"), the
Swingline Bank, the Letter of Credit Issuer and the Administrative Agent are
parties to a Credit Agreement dated as of May 10, 1996 (as modified and
supplemented and in effect immediately prior to the Restatement Effective Date
referred to below, the "1996 Credit Agreement") providing for extensions of
credit to each Borrower in an aggregate principal amount not to exceed (except
as provided therein) $360,000,000 at any time outstanding as to both Borrowers
combined. The Borrowers have requested that the Letter of Credit Issuer, the
Banks, the Swingline Bank and the Administrative Agent agree, and the Letter of
Credit Issuer, the Banks, the Swingline Bank and the Administrative Agent are
willing, to amend and restate the 1996 Credit Agreement to provide for, among
other things, the extension of the tenor of the revolving credit facility and
the increase of the Banks' Commitments, all on the terms and conditions
hereinafter set forth. Accordingly, the parties hereto agree to amend and
restate the 1996 Credit Agreement so that, as amended and restated, it reads in
its entirety as provided herein.
NOW, THEREFORE, IT IS AGREED:
Section 1. Definitions and Principles of Construction.
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Absolute Rate Auction" shall mean a solicitation of Competitive Bid
Quotes setting forth Competitive Bid Rates pursuant to Section 2.13.
Credit Agreement
<PAGE>
-2-
"Absolute Rate Loans" shall mean Competitive Bid Loans the interest rates
of which are determined on the basis of Competitive Bid Rates pursuant to an
Absolute Rate Auction.
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"Administrative Agent's Account" shall mean such account at the relevant
Payment Office as the Administrative Agent may designate in writing to the other
parties hereto.
"Affiliate" shall mean, with respect to any Person, any other Person
(other than an individual) directly or indirectly controlling, controlled by, or
under direct or indirect common control with, such Person; provided, however,
that for purposes of Section 9.06, an Affiliate of a Borrower shall include any
Person that directly or indirectly owns more than 5% of such Borrower and any
officer or director of such Borrower or any such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreed Foreign Currency" shall mean at any time any of Deutschemarks,
Pounds Sterling and, with the agreement of each Bank, any other Foreign
Currency, so long as at such time (a) such Currency is dealt with in the London
(or, in the case of Pounds Sterling, Paris) interbank deposit market, (b) such
Currency is freely transferable and convertible into Dollars in the London
foreign exchange market and (c) no central bank or other governmental
authorization in the country of issue of such Currency is required to permit use
of such Currency by any Bank for making any Syndicated Loan hereunder and/or to
permit the relevant Borrower to borrow and repay the principal thereof and to
pay the interest thereon, unless such authorization has been obtained and is in
full force and effect.
"Agreement" shall mean this Credit Agreement, as modified, supplemented or
amended from time to time.
"Applicable Lending Office" shall mean (a) with respect to each Bank, (i)
such Bank's Base Rate Lending Office in the case of a Base Rate Loan, (ii) such
Bank's Eurocurrency Lending Office in the case of a Eurocurrency Rate Loan and
(iii) such Bank's Competitive Bid Lending Office in the case of a Competitive
Bid Loan; and (b) with respect to the Swingline Bank, the Swingline Lending
Office.
Credit Agreement
<PAGE>
-3-
"Applicable Margin" for Eurocurrency Rate Loans that are Loan Portion
Loans and Eurocurrency Rate Loans that are Unutilized L/C Loans, "Applicable
Facility Fee Rate", "Applicable Letter of Credit Fee Rate" and "Applicable
Letter of Credit Usage Fee Rate" shall mean, during the period from and
including the first Business Day after the date on which the Administrative
Agent shall have received (i) the financial statements described in Section 7(a)
of the Guaranty as at and for any fiscal period and (ii) the accompanying
certificate required to be delivered under Section 7(a)(iii) of the Guaranty, to
but excluding the first Business Day after the date on which the Administrative
Agent shall have received (x) the financial statements described in Section 7(a)
of the Guaranty as at and for the next succeeding fiscal period and (y) the
accompanying certificate required to be delivered under Section 7(a)(iii) of the
Guaranty, the respective rates per annum set forth opposite the range of the
Debt to Cash Flow Ratio set forth below which encompasses the Debt to Cash Flow
Ratio set forth in such certificate delivered under Section 7(a)(iii) of the
Guaranty (provided that (a) during the period from the date hereof to but
excluding the first Business Day after the date on which the Administrative
Agent shall have first received the financial statements and certificate under
clauses (i), (ii) and (iii) of Section 7(a) of the Guaranty, the "Applicable
Margin" for Eurocurrency Rate Loans that are Loan Portion Loans and Eurocurrency
Rate Loans that are Unutilized L/C Loans, "Applicable Facility Fee Rate",
"Applicable Letter of Credit Fee Rate" and "Applicable Letter of Credit Usage
Fee Rate" during such period shall be determined as though the Debt to Cash Flow
Ratio was 2.0 to 1, and (b) if the Guarantor shall fail timely to deliver such
financial statements or certificate, the "Applicable Margin" for Eurocurrency
Rate Loans that are Loan Portion Loans and Eurocurrency Rate Loans that are
Unutilized L/C Loans, "Applicable Facility Fee Rate", "Applicable Letter of
Credit Fee Rate" and "Applicable Letter of Credit Usage Fee Rate" during the
period from and including the date by which such financial statements and
certificate were required to be delivered to but excluding the first Business
Day after the date on which the Administrative Agent receive such financial
statements and certificate, shall be determined as if the relevant Debt to Cash
Flow Ratio were greater than 4.25):
Credit Agreement
<PAGE>
-4-
Applicable Applicable
Margin Applicable Applicable Letter of
for Loan Margin for Applicable Letter Credit
Debt to Cash Portion Unutilized Facility of Credit Usage
Flow Ratio Loans L/C Loans Fee Rate Fee Rate Fee Rate
- ------------ ---------- ----------- ---------- ---------- --------
Less than or
equal to
3.5 to 1 .2000% .1750% .1000% .0250% .1750%
Greater than
3.5 to 1 but
less than or
equal to 4.25
to 1 .2500% .2000% .1250% .0500% .2000%
Greater than
4.25 to 1 .3750% .3000% .1750% .0750% .3000%
Notwithstanding the foregoing, if a Rating Level is in effect, the "Applicable
Margin" for Eurocurrency Rate Loans that are Loan Portion Loans and Eurocurrency
Rate Loans that are Unutilized L/C Loans, the "Applicable Facility Fee Rate",
the "Applicable Letter of Credit Fee Rate" and the "Applicable Letter of Credit
Usage Fee Rate" shall be the respective rates set forth below opposite the
applicable Rating Level:
Applicable Applicable
Margin Applicable Applicable Letter of
for Loan Margin for Applicable Letter Credit
Rating Portion Unutilized Facility of Credit Usage
Level Loans L/C Loans Fee Rate Fee Rate Fee Rate
- ------------ ---------- ----------- ---------- ---------- --------
Rating
Level 1 .1900% .1500% .0850% .0400% .1500%
Rating
Level 2 .2000% .1750% .1000% .0250% .1750%
Rating
Level 3 .2500% .1750% .1000% .0750% .1750%
Rating
Level 4 .2750% .2000% .1250% .0750% .2000%
Rating
Level 5 .3750% .3000% .1750% .0750% .3000%
provided that if the Moody's Rating or the S&P Rating relates to the Guarantor
Subordinated Debt, then the respective rates set forth above shall be determined
by reference to the Rating Level which is one level higher than the Rating Level
which would otherwise apply to such Guarantor Subordinated Debt (for which
purpose, Rating Level 1 shall be the highest rating).
"Bank" and "Banks" shall have the meaning provided in the first paragraph
of this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
Credit Agreement
<PAGE>
-5-
"Base Rate" shall mean on any day the higher of (x) the Prime Lending Rate
and (y) 1/2 of 1% in excess of the Federal Funds Rate.
"Base Rate Lending Office" shall mean, with respect to each Bank, the
office of such Bank specified as its "Base Rate Lending Office" opposite its
name on Schedule II or such other office, Subsidiary or Affiliate of such Bank
as such Bank may from time to time specify as such to the Borrowers and the
Administrative Agent.
"Base Rate Loan" shall mean any Syndicated Loan denominated in Dollars
designated or deemed designated as such by the relevant Borrower at the time of
the incurrence thereof or conversion thereto by such Borrower.
"Borrower" and "Borrowers" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the borrowing of Syndicated Loans of one Type and
Currency from all the Banks on a given date (or the conversion of such Loan or
Loans of a Bank or Banks on a given date) and, for the purposes of Section 2.11,
shall include the borrowing of Competitive Bid Loans.
"Business Day" shall mean any day (a) on which commercial banks are not
authorized or required to close in New York City, (b) if such day relates to a
Borrowing of, a payment or prepayment of principal of or interest on, or the
Interest Period for, a Eurocurrency Rate Loan or a notice by any Borrower with
respect to any such Borrowing, payment, prepayment or Interest Period, that is
also a day on which dealings in deposits denominated in the Currency of such
Loan are carried out in the London interbank market and (c) if such day relates
to a Borrowing of, a payment or prepayment of principal of or interest on, or
the Interest Period for, any Syndicated Loan denominated in any Foreign Currency
or a notice by any Borrower with respect to any such borrowing, payment,
prepayment or Interest Period, that is also a day on which commercial banks
settle payments in the Principal Financial Center for the Currency in which such
Loan is denominated and in which the London foreign exchange market settles
payments in such Currency.
"Chase" shall mean The Chase Manhattan Bank and its successors.
"Closing Date" shall mean the date of the first Credit Event that occurred
on or after the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
Credit Agreement
<PAGE>
-6-
"Commercial Paper" shall mean all commercial paper of either Borrower
which is sold in the U.S. commercial paper market, backed by the Letter of
Credit and issued after the Closing Date pursuant to Section 3.03(a) and the
Depositary Agreement and (x) which may be issued in book-entry form (in
accordance with the Depositary Agreement and the DTC Documents and evidenced by
the Master Note) or (y) which may be issued in the form of promissory notes of
such Borrower substantially in the form of Exhibit G. The term "Commercial
Paper" shall not include commercial paper that is not backed by the Letter of
Credit.
"Commercial Paper Account" shall mean an OFI Commercial Paper Account or
an OFL Commercial Paper Account.
"Commitment" shall mean, for each Bank, the amount set forth opposite such
Bank's name in Schedule I hereto directly below the column entitled
"Commitment", as same may be (x) reduced from time to time pursuant to Section
4.02 and/or Section 10, (y) increased pursuant to Section 4.04 and/or (z)
adjusted from time to time as a result of assignments to or from such Bank
pursuant to Section 12.04(b).
"Commitment Termination Date" shall have the meaning provided in Section
4.03.
"Competitive Bid Borrowing" shall have the meaning assigned to that term
in Section 2.13(b)(i).
"Competitive Bid Lending Office" shall mean, with respect to each Bank,
the office of such Bank specified as its "Competitive Bid Lending Office"
opposite its name on Schedule II or such other office, Subsidiary or Affiliate
of such Bank as such Bank may from time to time specify as such to the Borrowers
and the Administrative Agent.
"Competitive Bid Loan Limit" shall have the meaning provided in Section
2.13(c).
"Competitive Bid Loans" shall mean the loans provided for by Section 2.13.
"Competitive Bid Margin" shall have the meaning assigned to that term in
Section 2.13(c)(ii)(C).
"Competitive Bid Note" has the meaning provided in Section 2.05(d).
"Competitive Bid Quote" shall mean an offer in accordance with Section
2.13(b) by a Bank to make a Competitive Bid Loan with one single specified
interest rate.
Credit Agreement
]
<PAGE>
-7-
"Competitive Bid Quote Request" shall have the meaning provided in Section
2.13(b).
"Competitive Bid Rate" shall have the meaning assigned to that term in
Section 2.13(c)(ii)(D).
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include (x) endorsements of
instruments for deposit or collection in the ordinary course of business, (y)
guarantees of customary indemnification obligations in connection with
acquisition agreements and (z) guarantees of earn-out payment obligations in
connection with the purchase of property or services to the extent that they are
still contingent. The amount of any Contingent Obligation shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Contract Currency" shall have the meaning as provided in Section 12.09.
"Credit Documents" shall mean this Agreement, each Note, the Guaranty, all
Commercial Paper and the Depositary Agreement as modified, supplemented or
amended from time to time.
"Credit Event" shall mean (i) the making of any Loan, (ii) the issuance of
the Letter of Credit, or (iii) any issuance of Commercial Paper.
"Currency" shall mean Dollars or any Foreign Currency.
Credit Agreement
<PAGE>
-8-
"Currency Valuation Notice" shall have the meaning provided in Section
2.15.
"date hereof" and "date of this Agreement" shall mean May 10, 1996.
"Debt to Cash Flow Ratio" shall mean the ratio of (i) Consolidated
Indebtedness (as defined in the Guaranty) for any fiscal quarter of the
Guarantor to (ii) Net Cash Flow (as defined in the Guaranty) for the period of
four consecutive complete fiscal quarters of the Guarantor (taken as one
accounting period) ending on the last day of such fiscal quarter.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Depositary" shall mean Citibank, N.A., as Depositary under the Depositary
Agreement, or such other banking institution headquartered in New York City, as
the Borrowers shall appoint with the prior written consent of the Administrative
Agent and the Letter of Credit Issuer as issuing and paying agent for Commercial
Paper under the Depositary Agreement.
"Depositary Agreement" shall have the meaning provided in Section 6.01(f).
"Deutschemarks" shall mean lawful money of the Federal Republic of Germany
(including, after the effectiveness of the Euro in the Federal Republic of
Germany, the Euro).
"Dollar Equivalent" shall mean, with respect to any Syndicated Loan
denominated in any Foreign Currency, the amount of Dollars that would be
required to purchase the amount of the Foreign Currency of such Loan on the date
such Loan is requested (or, in the case of any determination made under Section
2.15 or redenomination under Section 12.09, on the date of determination or
redenomination referred to therein) based upon (i) in the case of redenomination
under Section 12.09, the arithmetic mean, as determined by the Administrative
Agent, of the spot selling rates at which the respective Reference Banks offer
to sell such Foreign Currency for Dollars in the London foreign exchange market
at approximately 11:00 a.m. (London time) for delivery two Business Days later
or (ii) in all other cases, the spot selling rate at which ABN AMRO offers to
sell such Foreign Currency for Dollars in the London foreign exchange market at
approximately 11:00 a.m. (London time) for delivery two Business Days later.
"Dollars" and the sign "$" shall each mean freely transferable lawful
money of the United States.
Credit Agreement
<PAGE>
-9-
"Drawing" shall have the meaning provided in Section 3.02(a).
"DTC Documents" shall have the meaning provided in the Depositary
Agreement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and to any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any person (as defined in Section 3(9) of
ERISA) which together with OFI or any of its Subsidiaries would be a member of
the same "controlled group" within the meaning of Section 414(b), (m), (c) and
(o) of the Code.
"Euro" shall mean a European common currency for the European Monetary
Union.
"Eurocurrency Lending Office" shall mean, for each Bank and for each
Currency of its Eurocurrency Rate Loans, the office of such Bank (or of an
Affiliate of such Bank) specified for such Currency to the Administrative Agent
or such other office, Subsidiary or Affiliate of such Bank as such Bank may from
time to time specify as such to the Borrowers and the Administrative Agent.
"Eurocurrency Rate Loan" shall mean any Syndicated Loan denominated in
Dollars or any Agreed Foreign Currency designated or deemed designated as such
by the relevant Borrower at the time of the incurrence thereof by such Borrower,
which Loans bear interest at rates based on rates referred to in the definition
of "Quoted Base Rate" in this Section 1.01 and, for the purposes of the
definitions of "Business Day" and "Quoted Rate" and Sections 2.04, 2.10 and 2.11
hereof, Eurodollar Market Loans and, for the purposes of Section 2.11, Absolute
Rate Loans.
"Eurodollar Auction" shall mean a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins based on Quoted Rates pursuant to Section
2.13.
"Eurodollar Market Loan" shall mean any Competitive Bid Loan denominated
in Dollars the interest rate on which is determined on the basis of Quoted Rates
plus the Competitive Bid Margin pursuant to a Eurodollar Auction.
"Eurodollar Rate Loan" shall mean a Eurocurrency Rate Loan that is
denominated in Dollars.
Credit Agreement
<PAGE>
-10-
"Event of Default" shall have the meaning provided in Section 10.
"Existing Indebtedness" shall have the meaning provided in Section 9.04.
"Expiry Date" shall mean June 30, 2001, as the same may be extended
pursuant to Section 3.01(k).
"Face Amount" shall mean, with respect to any Commercial Paper, the amount
of such Commercial Paper payable at the maturity thereof.
"Facility Fee" shall have the meaning provided in Section 4.01(a).
"Federal Funds Rate" shall mean a fluctuating interest rate per annum,
equal for each day to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System, arranged by
Federal funds brokers as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York or, if such rate is not so published, for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by ABN AMRO from three Federal funds brokers of recognized standing
selected by it.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 4.01.
"Foreign Currency" shall mean at any time any Currency other than Dollars.
"Foreign Currency Equivalent" shall mean, with respect to any amount in
Dollars, the amount of any Foreign Currency that could be purchased with such
amount of Dollars using the reciprocal of the foreign exchange rate(s) specified
in the definition of the term "Dollar Equivalent", as determined by the
Administrative Agent.
"Foreign Subsidiary" shall mean any Subsidiary which is not organized
under the laws of the United States of America, any State of the United States
of America or the District of Columbia and substantially all of whose assets and
business are located or conducted outside the United States of America.
"Governmental Authority" shall mean the United States or any other nation,
or any political subdivision of any thereof (whether state or local), and any
government, agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial, taxing,
Credit Agreement
<PAGE>
-11-
regulatory or administrative powers or functions of or pertaining to government.
"Guarantor" shall mean Omnicom Group Inc., a corporation organized and
existing under the laws of New York.
"Guarantor Debt" shall mean Guarantor Senior Debt and Guarantor
Subordinated Debt.
"Guarantor Senior Debt" shall mean (i) non-credit enhanced long-term
senior unsecured debt of the Guarantor or (ii) non-credit enhanced long-term
senior unsecured debt of a Subsidiary of the Guarantor guaranteed by the
Guarantor.
"Guarantor Subordinated Debt" shall mean Subordinated Indebtedness (as
defined in the Guaranty) of the Guarantor that is long-term, unsecured and
non-credit enhanced, including (without limitation) non-credit enhanced
long-term unsecured debt of a Subsidiary of the Guarantor guaranteed by the
Guarantor, which guaranty qualifies as Subordinated Indebtedness (as defined in
the Guaranty).
"Guaranty" shall have the meaning provided in Section 6.01(g).
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money (whether by loan or issuance and sale of debt securities or
otherwise) or for the deferred purchase price of property or services (other
than earn-out payment obligations of such Person in connection with the purchase
of property or services to the extent they are still contingent), (ii) the face
amount of all letters of credit issued for the account of such Person and all
drafts drawn thereunder (other than letters of credit issued in support of
accrued expenses and accounts payable incurred in the ordinary course of
business), (iii) all liabilities secured by any Lien on any property owned by
such Person, whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee and (v) all Contingent Obligations of such Person.
"Interest Determination Date" shall mean, with respect to any Eurocurrency
Rate Loan, the second Business Day prior to the commencement of the Interest
Period relating to such Eurocurrency Rate Loan.
"Interest Period" shall have the meanings provided in Sections 2.09 and
2.13(b).
Credit Agreement
<PAGE>
-12-
"L/C Subaccount" shall mean an OFI L/C Subaccount or an OFL L/C
Subaccount.
"Letter of Credit" shall mean the irrevocable direct pay Letter of Credit
in substantially the form of Exhibit F-1 hereto, issued by the Letter of Credit
Issuer to the Depositary pursuant to Section 3.01, and includes any amendment,
extension or replacement thereof (including, without limitation, any amendment
of Annex A thereto (and Schedule I attached thereto) as contemplated by Section
3.01(a)).
"Letter of Credit Fee" shall have the meaning provided in Section 4.01(b).
"Letter of Credit Issuer" shall mean ABN AMRO acting in the capacity as
issuer of the Letter of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
3.01(a).
"Letter of Credit Termination Date" shall have the meaning provided in
Section 3.01(g).
"Letter of Credit Usage Fee" shall have the meaning provided in Section
4.01(c).
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any capital lease, but excluding any
operating lease even if accompanied by a precautionary filing under the UCC).
"Loan" shall mean each Syndicated Loan, each Competitive Bid Loan and each
Swingline Loan.
"Loan Portion Commitment" shall mean, at any time, that portion of the
Total Commitment equal to the amount by which the Total Commitment exceeds the
Total Letter of Credit Commitment.
"Loan Portion Loan" shall mean a Syndicated Loan allocated to the Loan
Portion Commitment pursuant to Section 2.01.
"Local Time" shall mean, with respect to any Syndicated Loan denominated
in or any payment to be made in any Currency, the local time in the Principal
Financial Center for the Currency in which such Loan is denominated or such
payment is to be made.
Credit Agreement
<PAGE>
-13-
"London Interbank Offered Rate" shall have the meaning as provided in the
definition of "Quoted Base Rate".
"Managing Banks" shall mean ABN AMRO and Chase.
"Margin Stock" shall have the meaning provided in Regulation U of the
Board of Governors of the Federal Reserve System.
"Master Note" shall mean a promissory note substantially in the form of
Exhibit A to the Depositary Agreement.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor
thereto.
"Moody's Rating" shall mean, as at any time, (i) the rating then currently
in effect by Moody's relating to the Guarantor Senior Debt and (ii) if there is
no rating then currently in effect by Moody's relating to the Guarantor Senior
Debt, the rating then currently in effect by Moody's relating to the Guarantor
Subordinated Debt and (iii) if there is no rating then currently in effect
relating to the Guarantor Debt, the corporate credit rating (if any) then
currently in effect by Moody's.
"Note" shall mean each Syndicated Note, each Competitive Bid Note and each
Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 2.03.
"Notice of Conversion" shall have the meaning provided in Section 2.06.
"Notice of Swingline Borrowing" shall have the meaning provided in Section
2.14(b).
"Notice Office" shall mean the office of the Administrative Agent located
at 335 Madison Avenue, New York, New York 10017, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"Obligations" shall mean all amounts owing to the Administrative Agent,
the Letter of Credit Issuer, the Swingline Bank or any Bank pursuant to the
terms of this Agreement or any other Credit Document.
Credit Agreement
<PAGE>
-14-
"OFI Commercial Paper Account" shall have the meaning provided in the
Depositary Agreement, and shall, for purposes hereof, mean a Commercial Paper
Account of OFI.
"OFI L/C Subaccount" shall have the meaning provided in the Depositary
Agreement, and shall, for purposes hereof, mean an L/C Subaccount of OFI.
"OFL Commercial Paper Account" shall have the meaning provided in the
Depositary Agreement, and shall, for purposes hereof, mean a Commercial Paper
Account of OFL.
"OFL L/C Subaccount" shall have the meaning provided in the Depositary
Agreement, and shall, for purposes hereof, mean an L/C Subaccount of OFL.
"Original Notes" shall mean the promissory notes of the Borrowers
delivered to the Existing Banks pursuant to the 1996 Credit Agreement.
"Outstanding Commercial Paper Participation" shall mean, for any Bank, at
any time, such Bank's Participation Percentage at such time, if any, of all
outstanding Commercial Paper at such time.
"Participant" shall have the meaning provided in Section 3.01(b).
"Participation Agreement" shall have the meaning provided in Section
3.01(b).
"Participation Percentage" shall mean, with respect to each Bank, the
percentage set forth opposite such Bank's name on Annex A to the Participation
Agreement directly below the column entitled "Participation Percentage".
"Payment Office" shall mean, (a) with respect to the Letter of Credit
Issuer, its office located at 335 Madison Avenue, New York, New York 10017, or
such other office as the Letter of Credit Issuer may hereafter designate in
writing as such to the other parties hereto and (b) with respect to the
Administrative Agent, for any Loan in any Currency, such office designated by
the Administrative Agent as such to the other Parties hereto for such Currency.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA or any successor thereto.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other
Credit Agreement
<PAGE>
-15-
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any multiemployer plan or single-employer plan as
defined in Section 4001 of ERISA, which is maintained, or at any time during the
five calendar years preceding the date hereof was maintained, for employees of
OFI or by a Subsidiary of OFI or an ERISA Affiliate.
"Pounds Sterling" shall mean lawful money of the United Kingdom
(including, after the effectiveness of the Euro in the United Kingdom, the
Euro).
"Prime Lending Rate" shall mean the rate which ABN AMRO announces from
time to time at its New York Branch as its prime lending rate, the Prime Lending
Rate to change when and as such prime lending rate changes. The Prime Lending
Rate is a reference rate and does not necessarily represent the lowest or best
rate actually charged to any customer. ABN AMRO may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Principal Financial Center" shall mean, in the case of any Currency, the
principal financial center for such Currency, as determined by the
Administrative Agent.
"Quarterly Date" shall mean the last Business Day of January, April, July
and October in each year, the first of which shall be the first such day after
the Restatement Date.
"Quoted Base Rate" shall mean, for any Currency, with respect to the
Interest Period for a Eurocurrency Rate Loan or a Eurodollar Market Loan, (a)
the rate per annum appearing on the relevant display page for the London
Interbank Offered Rate (as defined below) for such Currency (as determined by
the Administrative Agent) on the Dow Jones Markets (Telerate) Service as of
11:00 a.m. (London time) two Business Days prior to the first day of the
Interest Period for such Loan as the London Interbank Offered Rate for deposits
denominated in such Currency having a term comparable to such Interest Period
and (if applicable) in an amount of $1,000,000 (or its Foreign Currency
Equivalent) or more, or (b) if no such rate appears on such page or if said page
shall cease to be publicly available or if the information contained on said
page, in the reasonable judgment of the Managing Banks, shall cease accurately
to reflect the rate offered by leading banks in the London (or, in the case of
Pounds Sterling, Paris) interbank market ("London Interbank Offered Rate") (as
reported by any publicly available source of similar market data selected by the
Managing Banks that, in the reasonable judgment of the Managing Banks,
accurately reflects the London Interbank Offered Rate), the average of the
offered
Credit Agreement
<PAGE>
-16-
quotation to first-class banks in the London (or, in the case of Loans
denominated in Pounds Sterling, Paris) interbank market by each of the Reference
Banks for deposits denominated in such Currency in amounts comparable to the
outstanding principal amount of the Eurocurrency Rate Loan or Eurodollar Market
Loan (as the case may be) for which an interest rate is then being determined
with maturities comparable to the Interest Period to be applicable to such
Eurocurrency Rate Loan or Eurodollar Market Loan (as the case may be),
determined as of 11:00 a.m. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period, provided that, if any
Reference Bank fails to provide the Administrative Agent with its aforesaid
quotation, the Quoted Base Rate shall be based on the quotation or quotations
provided to the Administrative Agent by the other Reference Bank or Reference
Banks, divided (and rounded upward to the next whole multiple of 1/16 of 1%).
"Quoted Rate" shall mean, with respect to the Interest Period for a
Eurocurrency Rate Loan, (i) the Quoted Base Rate applicable thereto divided (and
rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage
equal to 100% minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency, supplemental, special
or other reserves) applicable to any member bank of the Federal Reserve System
in respect of Eurocurrency liabilities as defined in Regulation D.
"Rating Level 1" shall mean (a) no Specified Event of Default has occurred
and is continuing and (b) the Moody's Rating is greater than or equal to A1 or
the S&P Rating is greater than or equal to A+.
"Rating Level 2" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is A2 or the S&P Rating is A and (c)
Rating Level 1 is not in effect.
"Rating Level 3" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is A3 or the S&P Rating is A- and (c)
neither Rating Level 1 nor Rating Level 2 is in effect.
"Rating Level 4" shall mean (a) no Specified Event of Default has occurred
and is continuing, (b) the Moody's Rating is Baa1 or the S&P Rating is BBB+ and
(c) none of Rating Level 1, Rating Level 2 or Rating Level 3 is in effect.
"Rating Level 5" shall mean (a) there exists a Moody's Rating or S&P
Rating or both but (b) none of Rating Level 1, Rating Level 2, Rating Level 3 or
Rating Level 4 is in effect.
Credit Agreement
<PAGE>
-17-
"Reference Banks" shall mean ABN AMRO, Chase and Mellon Bank, N.A.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof establishing reserve requirements.
"Relevant Institution" shall have the meaning provided in Section 2.10(c).
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan as to which the 30-day notice requirement has not
been waived by the PBGC.
"Required Banks" shall mean, at any time, Banks holding at least 66-2/3%
(or more than 50% in the case of Section 10) of the Total Commitment or, if the
Total Commitment has been terminated, Banks holding at least 66-2/3% (or more
than 50% in the case of Section 10) of the then aggregate unpaid principal
amount of the Obligations.
"Restatement Date" shall mean February 20, 1998.
"Restatement Effective Date" shall mean the date on which all of the
conditions set forth in Section 6.01 shall have been satisfied or waived by the
Banks.
"S&P" shall mean Standard & Poor's Ratings Services, or any successor
thereto.
"S&P Rating" shall mean, as at any time, (i) the rating then currently in
effect by S&P relating to the Guarantor Senior Debt and (ii) if there is no
rating then currently in effect by S&P relating to the Guarantor Senior Debt,
the rating then currently in effect by S&P relating to the Guarantor
Subordinated Debt and (iii) if there is no rating then currently in effect by
S&P relating to the Guarantor Debt, the corporate credit rating (if any) the
currently in effect by S&P.
"SEC" shall have the meaning provided in Section 8.01(c).
"Specified Event of Default" shall mean (a) an Event of Default described
in any of Sections 10.01(i), 10.01(ii) (in respect of interest only), 10.04 or
10.10, (b) any default by the Guarantor in the due performance or observance by
it of clauses (m)(vi), (o) or (p) of Section 7 of the Guaranty, which default
(x) if it occurs during any of the first three fiscal quarters of the Guarantor,
shall be continuing from and after the date 30 days after the last day of the
fiscal quarter in which such
Credit Agreement
<PAGE>
-18-
default occurs and (y) if it occurs during the fourth fiscal quarter of the
Guarantor, shall be continuing from and after the date 60 days after the last
day of the fiscal quarter in which such default occurs, (c) the Guaranty shall
cease to be in full force and effect and (d) the Guarantor shall deny or
disaffirm the Guarantor's obligations under the Guaranty.
"Specified Subsidiary" shall mean (i) DDB Needham Heye & Partner
Werbeagentur GmbH, (ii) DDB Needham Heye & Partner GmbH, (iii) Bernard Hodes
Advertising, Ltd., (iv) Interbrand Corporation, (v) Interbrand Design, Inc.,
(vi) DDB Needham Worldwide Warszawa.
"Stated Amount" shall mean the amount of the Letter of Credit as described
in Section 3.01(a), as such amount may be reduced or increased, as the case may
be, as provided in Section 3.01(d) or (k).
"Subsidiary" shall mean, as to any Person (the "Relevant Person"), any
other Persons whose financial condition and results are (or should, under U.S.
generally accepted accounting principles, be) consolidated into the financial
statements of the Relevant Person.
"Swingline Bank" shall have the meaning provided in the first paragraph of
this Agreement.
"Swingline Borrowing" shall mean the borrowing of a Swingline Loan from
the Swingline Bank.
"Swingline Commitment" shall mean the obligation of the Swingline Bank to
make Swingline Loans in an aggregate outstanding principal amount not at any
time exceeding $20,000,000.
"Swingline Lending Office" shall mean the office of the Swingline Bank
specified as the "Swingline Lending Office" opposite its name on Schedule II or
such other office, Subsidiary or Affiliate of such Person as the Swingline Bank
may from time to time specify as such to the Borrowers and the Administrative
Agent.
"Swingline Loan" shall have the meaning provided in Section 2.14.
"Swingline Note" shall have the meaning provided in Section 2.05(e).
"Syndicated Loan" shall have the meaning provided in Section 2.01(a).
Credit Agreement
<PAGE>
-19-
"Syndicated Note" shall have the meaning provided in Section 2.05(a).
"Taxes" shall have the meaning provided in Section 5.04.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each of the Banks at such time.
"Total Letter of Credit Commitment" shall mean the portion of the Total
Commitments available for the issuance of the Letter of Credit hereunder, which
portion is initially $300,000,000, as the same may be reduced, increased,
canceled and/or reinstated pursuant to Section 3.01(l).
"Type" shall mean any type of Syndicated Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or a Eurocurrency
Rate Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the present value of the accrued benefits under the Plan as of the close
of its most recent plan year exceeds the fair market value of the assets
allocable thereto, determined in accordance with Section 412 of the Code.
"United States" and "U.S." shall each mean the United States of America.
"Unpaid Drawing" shall have the meaning specified in Section 3.02(a).
"Unutilized L/C Commitment" shall mean, at any time, the Total Letter of
Credit Commitment less the sum of (i) the Face Amount of all outstanding
Commercial Paper and (ii) all Unpaid Drawings in respect of Commercial Paper.
"Unutilized L/C Loan" shall mean a Syndicated Loan allocated to the
Unutilized L/C Commitment pursuant to Section 2.01.
"Unutilized Total Commitment" shall mean, at any time, the Total
Commitment at such time less the sum of (i) the aggregate principal amount of
all Loans then outstanding, (ii) the Face Amount of all outstanding Commercial
Paper plus (iii) when the Letter of Credit is outstanding, the amount of all
Unpaid Drawings.
Credit Agreement
<PAGE>
-20-
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock is at the time owned by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership, association, joint venture or other entity in which such Person
and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity
interest at such time.
1.02 Principles of Construction. (a) All references to sections, schedules
and exhibits are to sections, schedules and exhibits in or to this Agreement
unless otherwise specified. The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(b) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles in the
United States in conformity with those used in the preparation of the financial
statements referred to in Section 6(e) of the Guaranty.
Section 2. Amount and Terms of Revolving Credit.
2.01 The Syndicated Loans. (a) Subject to and upon the terms and
conditions set forth herein, each Bank with a Commitment severally agrees, at
any time from and including the Restatement Effective Date to but not including
the Commitment Termination Date, to make loans (each, a "Syndicated Loan" and
collectively, as the context requires, the "Syndicated Loans") to each Borrower
in Dollars or any Agreed Foreign Currency, which Syndicated Loans (i) shall, at
the option of such Borrower, be Base Rate Loans or Eurocurrency Rate Loans,
provided that, except as otherwise specifically provided in Section 2.10(b), all
Syndicated Loans comprising the same Borrowing shall at all times be of the same
Type and Currency, and (ii) may be repaid, prepaid and reborrowed in accordance
with the provisions hereof; provided, however, that the aggregate principal
amount of Syndicated Loans outstanding from any Bank shall at no time exceed
(after giving effect to the use of the proceeds of any Syndicated Loan then
being made) an amount equal to (i) the Commitment of such Bank at such time less
(ii) the sum of (x) an amount equal to the Face Amount of all outstanding
Commercial Paper multiplied by such Bank's Participation Percentage and (y) an
amount equal to the principal amount of all Unpaid Drawings multiplied by such
Bank's Participation Percentage. More than one Borrowing may occur on the same
date.
(b) [Intentionally Omitted]
(c) Syndicated Loans shall be allocated first to the Loan Portion
Commitment and, only after the Loan Portion
Credit Agreement
<PAGE>
-21-
Commitment is fully utilized, to the Unutilized L/C Commitment. Prepayments of
the Syndicated Loans shall be applied first to the Unutilized L/C Loans and,
only after the Unutilized L/C Loans have been paid in full, to the Loan Portion
Loans.
(d) Anything in this Section 2.01 or in Sections 2.13, 2.14 and 3.03 to
the contrary notwithstanding, the sum of (i) the aggregate unpaid principal
amount of all Loans outstanding, (ii) the aggregate Face Amount of all
Commercial Paper outstanding and (iii) the aggregate principal amount of all
Unpaid Drawings, at any one time outstanding shall not exceed the Total
Commitment at such time.
(e) Except as otherwise provided in Sections 2.15 and 12.09, for purposes
of determining the aggregate principal amount of Syndicated Loans under this
Agreement, the amount of any Syndicated Loan that is denominated in any Foreign
Currency shall be deemed to be the Dollar Equivalent (determined as of the date
of Borrowing of such Loan) of the amount in the Foreign Currency of such Loan.
2.02 Minimum Amount of Each Borrowing; Number of Interest Periods. The
aggregate principal amount of each Borrowing of Syndicated Loans hereunder shall
be not less than $10,000,000 or a larger whole multiple of $1,000,000 for each
such Loan or, in the case of Eurocurrency Rate Loans denominated in any Agreed
Foreign Currency, the Foreign Currency Equivalent thereof (rounded downwards to
the nearest 1,000 units of such Foreign Currency), except as required by Section
2.10(b) or 2.14; provided that, there may be no more than fifteen (15) different
Interest Periods for all Loans outstanding at the same time. Borrowings of
Syndicated Loans of different Types or, in the case of Eurocurrency Rate Loans,
denominated in different Currencies or, in the case of Eurocurrency Rate Loans
or Eurodollar Market Loans, having different Interest Periods at the same
hereunder shall be deemed separate Borrowings.
2.03 Notice of Borrowing. (a) Whenever either Borrower desires to make a
Borrowing hereunder, it shall give the Administrative Agent notice thereof at
its Notice Office by noon (New York time) on the date three Business Days prior
to each Eurodollar Rate Loan, by 10:00 a.m. (New York Time) on the date three
Business Days prior to each Eurocurrency Rate Loan denominated in a Foreign
Currency and by noon (New York time) on the date of each Base Rate Loan. Each
such notice (each a "Notice of Borrowing") shall be in the form of Exhibit A-1,
appropriately completed to specify the aggregate principal amount of the
Syndicated Loans to be made pursuant to such Borrowing, the date of such
Borrowing (which shall be a Business Day), whether the Syndicated Loans being
made pursuant to such Borrowing are to be maintained as Base Rate Loans or
Eurocurrency
Credit Agreement
<PAGE>
-22-
Rate Loans and, if Eurocurrency Rate Loans, the Currency in which such Loans are
to be denominated, and the Interest Period to be applicable thereto. The
Administrative Agent shall promptly give each Bank notice of such proposed
Borrowing, of such Bank's proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) At any time from the date on which a Swingline Loan to a Borrower is
made until such Swingline Loan shall have been paid in full, the Swingline Bank
may, and such Borrower hereby irrevocably authorizes and empowers (which power
is coupled with an interest) the Swingline Bank to, deliver, on behalf of such
Borrower, to the Administrative Agent Notices of Borrowing of Syndicated Loans
that are Base Rate Loans in an aggregate amount equal to the then unpaid
principal amount of such Swingline Loan. Such Borrowings shall be divided on a
pro rata basis according to the respective aggregate unused amounts of the
Commitments of all of the Banks (it being understood and agreed that for
purposes of such determination the Commitments shall be deemed used in an
aggregate amount equal to the sum of the aggregate outstanding principal amount
of all Syndicated Loans plus the aggregate Face Amount of all outstanding
Commercial Paper plus the aggregate principal amount of all Unpaid Drawings).
The proceeds of such Syndicated Loans shall be applied solely to refinance such
Swingline Loan. In the event that the power of the Swingline Bank to give such
Notice of Borrowing on behalf of such Borrower is terminated for any reason
whatsoever (including, without limitation, a termination resulting from the
occurrence of an event specified in Section 10.05), or the Swingline Bank is
otherwise precluded for any reason whatsoever from giving a notice of borrowing
on behalf of such Borrower as provided in the preceding sentence, each Bank
shall, upon notice from the Swingline Bank, promptly purchase from the Swingline
Bank a participation in (or, if and to the extent specified by the Swingline
Bank, a direct interest in) such Swingline Loan in the amount of the Base Rate
Loan it would have been obligated to make pursuant to such Notice of Borrowing.
Anything in Sections 2.03(a) or 2.04 hereof to the contrary notwithstanding,
each Bank shall, not later than 4:00 p.m. (New York time) on the Business Day on
which such notice is given (if such notice is given by 2:15 p.m. (New York time)
or 9:00 a.m. New York time on the next succeeding Business Day (if such notice
is given after 2:15 p.m. (New York time)), make available the amount of the Base
Rate Loan to be made by it (or the amount of the participation or direct
interest to be purchased by it, as the case may be) to the Administrative Agent
at the Payment Office and the amount so received by the Administrative Agent
shall be made available to the Swingline Bank by depositing the same, in
immediately available funds, in an account of the Swingline Bank designated by
the Swingline Bank. Promptly
Credit Agreement
<PAGE>
-23-
following its receipt of any payment in respect of a Swingline Loan, the
Swingline Bank shall pay to each Bank that has acquired a participation in such
Loan such Bank's proportionate share of such payment.
Anything in this Agreement to the contrary notwithstanding (including,
without limitation, in Section 2.02 or 6), the obligation of each Bank to make
its Base Rate Loan (or purchase its participation or direct interest in the
Swingline Loan, as the case may be) pursuant to this Section 2.03(b) is
unconditional under any and all circumstances whatsoever and shall not be
subject to setoff, counterclaim or defense to payment that such Bank may have or
have had against one or both of the Borrowers, the Guarantor, the Administrative
Agent, the Swingline Bank, the Letter of Credit Issuer or any other Bank and,
without limiting any of the foregoing, shall be unconditional irrespective of
(i) the occurrence of any Default or Event of Default, (ii) the financial
condition of either or both of the Borrowers, any Subsidiary or Affiliate of the
Borrowers, the Administrative Agent, the Swingline Bank, the Letter of Credit
Issuer or any other Bank or (iii) the termination or cancellation of the
Commitments. The Borrowers agree that any Bank so purchasing a participation (or
direct interest) in such Swingline Loan may exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with respect to such participation
as fully as if such Bank were a direct holder of a Swingline Loan in the amount
of such participation.
If any Bank shall default in its obligation to make its Base Rate Loan to
refinance any Swingline Loan (or purchase its participation or direct interest
in such Swingline Loan, as the case may be) pursuant to the first paragraph of
this Section 2.03(b), then for so long as such default shall continue, the
Administrative Agent shall, at the request of the Swingline Bank, withhold from
any payments received by the Administrative Agent under this Agreement or any
Note for account of such Bank the amount so in default and the Administrative
Agent shall pay the same to the Swingline Bank up to the amount and in
satisfaction of such defaulted obligation, which amount the Swingline Bank will
apply to the repayment of the principal of such Swingline Loan (if such Bank
defaulted in its obligation to make its Base Rate Loan) or otherwise to the
purchase of the participation or direct interest to be purchased by such Bank.
2.04 Disbursement of Funds. No later than 2:00 p.m. (New York time) on the
date specified in each Notice of Borrowing for Base Rate Loans and noon (Local
Time) on the date specified in each Notice of Borrowing for Eurocurrency Rate
Loans, each Bank will make available, through such Bank's Applicable Lending
Office, its pro rata portion of each Borrowing requested to be made on such date
by either Borrower under Section 2.01, in the
Credit Agreement
<PAGE>
-24-
relevant Currency and in immediately available funds at the Payment Office of
the Administrative Agent, and the Administrative Agent will make available to
such Borrower at its Payment Office the aggregate of the amounts so made
available by the Banks. Unless the Administrative Agent shall have been notified
by any Bank prior to the date of Borrowing that such Bank does not intend to
make available to the Administrative Agent such Bank's portion of any Borrowing
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of Borrowing
and the Administrative Agent may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Bank,
the Administrative Agent shall be entitled to recover such corresponding amount
from such Bank on demand. If such Bank does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the relevant Borrower and such Borrower shall
immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover on demand from such Bank
or the relevant Borrower, as the case may be, interest on such corresponding
amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to such Borrower until the date such
corresponding amount is recovered by the Administrative Agent, at a rate per
annum equal to (i) if recovered from such Bank, the cost to the Administrative
Agent of funding the relevant amount in the relevant Currency and (ii) if
recovered from such Borrower, the then applicable rate for Base Rate Loans or
Eurocurrency Rate Loans, as the case may be. Nothing in this Section 2.04 shall
be deemed to release any Bank from its obligation to make Loans hereunder or to
prejudice any rights which the relevant Borrower may have against any Bank as a
result of any failure by such Bank to make Loans hereunder.
2.05 Notes. (a) The obligation of each Borrower to pay the principal of,
and interest on, the Syndicated Loans made by each Bank to such Borrower shall
be evidenced by a promissory note duly executed and delivered by such Borrower
substantially in the form of Exhibit B-1 with blanks appropriately completed in
conformity herewith (each, a "Syndicated Note" and, collectively, the
"Syndicated Notes").
(b) The Syndicated Note issued to each Bank shall (i) be payable to such
Bank and be dated the Restatement Date, (ii) mature, with respect to each Loan
evidenced thereby, in the case of a Eurocurrency Rate Loan, on the last day of
its Interest Period, and in the case of a Base Rate Loan, on the Commitment
Termination Date, (iii) bear interest as provided in the appropriate clause of
Section 2.08 in respect of the Base Rate
Credit Agreement
<PAGE>
-25-
Loans and Eurocurrency Rate Loans, as the case may be, evidenced thereby and
(iv) be entitled to the benefits of this Agreement and the Guaranty.
(c) [Intentionally Omitted]
(d) The obligation of each Borrower to pay the principal of, and interest
on, the Competitive Bid Loans made by any Bank to such Borrower shall be
evidenced by a promissory note duly executed and delivered by the relevant
Borrower substantially in the form of Exhibit B-3 with blanks appropriately
completed in conformity herewith (each, a "Competitive Bid Note" and,
collectively, the "Competitive Bid Notes"). The Competitive Bid Note issued to
any Bank shall (i) be payable to the order of such Bank and be dated the
Restatement Date, (ii) bear interest as provided in Section 2.13 and (iii) be
entitled to the benefits of this Agreement and the Guaranty.
(e) The obligation of each Borrower to pay the principal of, and interest
on, the Swingline Loans made by the Swingline Bank to such Borrower shall be
evidenced by a promissory note duly executed and delivered by the relevant
Borrower substantially in the form of Exhibit B-4 with blanks appropriately
completed in conformity herewith (each, a "Swingline Note" and, collectively,
the "Swingline Notes"). The Swingline Notes issued to the Swingline Bank shall
(i) be payable to the order of the Swingline Bank and be dated the Restatement
Date, (ii) bear interest as provided in Section 2.08 and (iii) be entitled to
the benefits of this Agreement and the Guaranty.
(f) Each Bank and the Swingline Bank will note on its internal records the
amount of each Loan made by it and each payment in respect thereof and will
prior to any transfer of its Syndicated Note, Competitive Bid Note or Swingline
Note, as applicable, endorse on the reverse side thereof the outstanding
principal amount of Syndicated Loans, Competitive Bid Loans, or Swingline Loans,
as the case may be, evidenced thereby. Failure to make any such notation shall
not affect the relevant Borrower's obligations in respect of such Loans.
2.06 Conversions. Each Borrower shall have the option to convert on any
Business Day all or a portion equal to at least $5,000,000 of the outstanding
principal amount of the Base Rate Loans made to such Borrower pursuant to one or
more Borrowings into a Borrowing of Eurodollar Rate Loans, provided that (i) no
Default or Event of Default is in existence on the date of the conversion and
(ii) no conversion pursuant to this Section 2.06 shall result in a greater
number of Borrowings than is permitted under Section 2.01. Each such conversion
shall be effected by the relevant Borrower by giving the Administrative Agent at
its
Credit Agreement
<PAGE>
-26-
Notice Office prior to noon (New York time) at least three Business Days'
prior notice (a "Notice of Conversion") specifying the Base Rate Loans to be so
converted and the Interest Period to be applicable thereto. The Administrative
Agent shall give each Bank prompt notice of any such proposed conversion
affecting any of its Base Rate Loans.
2.07 Pro Rata Borrowings. All Borrowings of Syndicated Loans under this
Agreement shall be incurred from the Banks pro rata on the basis of their
Commitments. It is understood that no Bank shall be responsible for any default
by any other Bank of its obligation to make Loans hereunder and that each Bank
shall be obligated to make the Loans provided to be made by it hereunder
regardless of the failure of any other Bank to make its Loans hereunder.
2.08 Interest. (a) Each Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall
be the Base Rate in effect from time to time.
(b) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurocurrency Rate Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall,
during the Interest Period applicable thereto, be the Quoted Rate for such
Interest Period plus the Applicable Margin.
(c) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Competitive Bid Loan made to such Borrower from the
date the proceeds thereof are made available to such Borrower until the maturity
thereof (whether by acceleration or otherwise) at a rate per annum which shall,
during the Interest Period applicable thereto, be (in the case of a Eurodollar
Market Loan) the Quoted Rate for such Interest Period plus the Competitive Bid
Margin and (in the case of an Absolute Rate Loan) the Competitive Bid Rate.
(d) Each Borrower agrees to pay interest in respect of the unpaid
principal amount of each Swingline Loan made to such Borrower from the date the
proceeds thereof are made available to such Borrower until the maturity thereof
(whether by acceleration or otherwise) at a rate per annum equal to the Base
Rate.
(e) Subject to Section 12.09(a), overdue principal and overdue interest in
respect of each Loan and any other overdue amount payable by any Borrower
hereunder shall bear interest at a rate per annum equal to 2% per annum in
excess of the Base Rate
Credit Agreement
<PAGE>
-27-
in effect from time to time; provided, however, that no Loan shall bear interest
after maturity at a rate per annum less than 2% in excess of the rate of
interest applicable thereto at maturity.
(f) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on the last Business Day of
each March, June, September and December, (ii) in respect of each Eurocurrency
Rate Loan or Eurodollar Market Loan, on the last day of the Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on each date occurring at three month intervals after the first day of
such Interest Period, (iii) in respect of each Absolute Rate Loan, on the
maturity thereof, (iv) in respect of each Swingline Loan, on the maturity
thereof and (iv) in respect of each Loan, on any prepayment (on the amount
prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
(g) On each Interest Determination Date, the Administrative Agent shall
determine the interest rate for the Eurocurrency Rate Loans for which such
determination is being made, and shall promptly notify the relevant Borrower and
the Banks thereof. Each such determination shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
2.09 Interest Periods. At the time it gives any Notice of Borrowing or
Notice of Conversion in respect of the making of, or conversion into any
Eurocurrency Rate Loan, the relevant Borrower shall have the right to elect, by
giving the Administrative Agent notice thereof, the interest period (each,
together with each of the interest periods for Competitive Bid Loans as provided
in Section 2.13, an "Interest Period") applicable to such Eurocurrency Rate
Loan, which Interest Period shall, at the option of such Borrower, be a one,
two, three, six, nine or twelve month period (subject to availability as
determined by 100% of the Banks), provided that: (i) all Eurocurrency Rate Loans
comprising a Borrowing shall at all times have the same Interest Period and
Currency except as otherwise required by Section 2.10(b); (ii) the Interest
Period for any Eurocurrency Rate Loan shall commence on the date of Borrowing of
such Loan (including the date of any conversion of a Base Rate Loan into
Eurodollar Rate Loan); (iii) if the Interest Period relating to a Eurocurrency
Rate Loan begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month; (iv) if any Interest
Period would otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day; provided,
however, that if the Interest Period for a Eurocurrency Rate Loan would
otherwise expire on a
Credit Agreement
<PAGE>
-28-
day which is not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day; and (v) no Interest Period shall extend beyond the
Commitment Termination Date.
2.10 Increased Costs, Illegality, etc. (a) In the event that any Bank
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto but, with respect to
clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the interbank
Eurocurrency market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition
of Quoted Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurocurrency Rate Loan because of (x) any change since the date hereof
in any applicable law or governmental rule, regulation, order or request
(whether or not having the force of law) (or in the interpretation or
administration thereof and including the introduction of any new law or
governmental rule, regulation, order or request), such as, for example,
but not limited to, (1) a change in the basis of taxation of payments to
any Bank or its Applicable Lending Office of the principal of or interest
on the Notes or any other amounts payable hereunder (except for changes in
the rate of tax on, or determined by reference to, the net income or
profits of such Bank or its Applicable Lending Office imposed by any
jurisdiction in which its principal office or Applicable Lending Office is
located) or (2) a change in official reserve requirements, but, in all
events, excluding reserves required under Regulation D to the extent
included in the computation of the Quoted Rate, and/or (y) other
circumstances affecting such Bank or the interbank Eurocurrency market, or
the position of such Bank in such market; or
(iii) at any time, that the making of any Eurocurrency Rate Loan or
Eurodollar Market Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance by
such Bank with any governmental request (whether or not having force of
law) or (z) impracticable as a result of a contingency occurring after the
date of this Agreement which materially and adversely affects the
interbank Eurocurrency market;
Credit Agreement
<PAGE>
-29-
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrowers, accompanied by an explanation of the basis therefor,
and, except in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the other Banks). Thereafter (x) in the case of clause (i) above,
Eurocurrency Rate Loans shall no longer be available until such time as the
Administrative Agent notifies the relevant Borrower and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by the relevant
Borrower with respect to its affected Eurocurrency Rate Loans which have not yet
been incurred (including by way of conversion) shall be deemed rescinded by such
Borrower, (y) in the case of clause (ii) above, the Borrower to whom the
Eurocurrency Rate Loan was made shall pay to such Bank, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Bank in its sole
discretion shall determine) as shall be required to compensate such Bank for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Bank, showing the
basis for the calculation thereof, committed to such Borrower by such Bank
shall, absent manifest error, be final and conclusive and binding on all the
parties hereto) and (z) in the case of clause (iii) above, take one of the
actions specified in Section 2.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurocurrency Rate Loan is affected by the
circumstances described in Section 2.10(a)(ii) or (iii), the Borrower to whom
such Loan was made may (and in the case of a Eurocurrency Rate Loan affected by
the circumstances described in Section 2.10(a)(iii) shall) either (i) if the
affected Loan is then being made initially or pursuant to a conversion cancel
said Borrowing by giving the Administrative Agent telephonic notice (confirmed
in writing) of the cancellation on the same date that such Borrower was notified
by the Bank or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii)
or (ii) if the affected Eurocurrency Rate Loan (but not a Eurodollar Market
Loan) is then outstanding, upon at least three Business Days' written notice to
the Administrative Agent, prepay the Eurocurrency Rate Loans of the affected
Bank and reborrow the same as Base Rate Loans, provided that, if more than one
Bank is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 2.10(b).
Credit Agreement
<PAGE>
-30-
(c) If any Bank, the Swingline Bank or the Letter of Credit Issuer (each,
a "Relevant Institution") determines at any time that any applicable law or
governmental rule, regulation, order or request (whether or not having the force
of law) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency, which shall have become effective or applicable after the date hereof,
will have the effect of increasing the amount of capital required or expected to
be maintained by such Relevant Institution or a holding company of which such
Relevant Institution is a Subsidiary based on (i) in the case of a Bank, the
existence of such Bank's Commitment hereunder, its participation in the Letter
of Credit, its participation in Swingline Loans or its obligations hereunder,
(ii) in the case of the Swingline Bank, the existence of the Swingline
Commitment hereunder or its obligations hereunder, or (iii) in the case of the
Letter of Credit Issuer, the maintenance of the Letter of Credit, then the
Borrowers shall pay to such Relevant Institution upon its written demand
therefor, such additional amounts as shall be required to compensate such
Relevant Institution or such holding company for the increased cost to such
Relevant Institution as a result of such increase of capital; such obligations
of the Borrowers shall be joint and several. In determining such additional
amounts, each Relevant Institution will act reasonably and in good faith and
will use averaging and attribution methods which are reasonable, provided that
such Relevant Institution's determination of compensation owing under this
Section 2.10(c) shall, absent manifest error, be final and conclusive and
binding on all the parties hereto. Each Relevant Institution, upon determining
that any additional amounts will be payable pursuant to this Section 2.10(c),
will give prompt written notice thereof to the Borrowers, which notice shall
show the basis for calculation of such additional amounts, although the failure
to give any such notice shall not release or diminish any of the Borrowers'
obligations to pay additional amounts pursuant to this Section 2.10(c).
2.11 Compensation. Each Borrower shall compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurocurrency Rate Loans) which such Bank may sustain: (i) if for any
reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of Eurocurrency Rate Loans does not occur on a date specified therefor
in a Notice of Borrowing or Notice of Conversion (whether or not withdrawn by
the relevant Borrower or deemed withdrawn pursuant to Section 2.10(a)); (ii) if
any repayment (including any repayment made pursuant to Section 2.04 and any
Credit Agreement
<PAGE>
-31-
prepayment made pursuant to Section 5.01 or 5.02) occurs on a date which is not
the last day of the Interest Period with respect thereto; (iii) if any
prepayment of any of its Eurocurrency Rate Loans is not made on any date
specified in a notice of prepayment given by the relevant Borrower; or (iv) as a
consequence of (x) any other default by the relevant Borrower to repay its Loans
when required by the terms of this Agreement or any Note of such Bank or (y) any
prepayment made pursuant to Section 2.10(b) or Section 2.15.
2.12 Change of Applicable Lending Office. Each Bank (which, for purposes
of this Section 2.12, shall include the Swingline Bank) agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or
(iii), 2.10(c) or 5.04 with respect to such Bank, it will, if requested by
either of the Borrowers, use its best efforts to designate another Applicable
Lending Office for any Loans affected by such event, with the object of avoiding
the consequence of the event giving rise to the operation of any such Section;
provided that no such designation shall be made if, in the reasonable judgment
of such Bank, such Bank would suffer any administrative, economic, legal, tax or
regulatory disadvantage. Nothing in this Section 2.12 shall affect or postpone
any of the obligations of the Borrowers or the right of any Bank provided in
Section 2.10 or 5.04.
2.13 Competitive Bid Loans.
(a) Either Borrower may, as set forth in this Section 2.13, request the
Banks to make offers to make Eurodollar Market Loans or Absolute Rate Loans to
such Borrower in Dollars. The Banks may, but shall have no obligation to, make
such offers and such Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.13. Competitive Bid Loans
may be Eurodollar Market Loans or Absolute Rate Loans (each a "Type" of
Competitive Bid Loan), provided that (i) there may be no more than fifteen (15)
different Interest Periods for all Loans outstanding at the same time and (ii)
the aggregate unpaid principal amount of all Competitive Bid Loans, together
with the aggregate unpaid principal amount of all Syndicated Loans and Swingline
Loans, the aggregate Face Amount of all Commercial Paper outstanding and the
aggregate principal amount of all Unpaid Drawings, at any one time outstanding
shall not exceed the Total Commitment at such time.
(b) When a Borrower wishes to request offers to make Competitive Bid
Loans, such Borrower shall give the Administrative Agent (which shall promptly
notify the Banks) notice in the form of Exhibit L hereto (a "Competitive Bid
Quote Request") so as to be received no later than 11:00 a.m. (New York time) on
(x) the fourth Business Day prior to the date of
Credit Agreement
<PAGE>
-32-
borrowing proposed therein in the case of a Eurodollar Auction or (y) the
Business Day preceding the date of borrowing proposed therein, in the case of an
Absolute Rate Auction, specifying:
(i) the name of such Borrower and the proposed date of such
borrowing (a "Competitive Bid Borrowing"), which shall be a Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which
shall be at least $5,000,000 (or an integral multiple of $1,000,000 in
excess thereof);
(iii) whether the Competitive Bid Quotes requested are to set forth
a Competitive Bid Margin or a Competitive Bid Rate; and
(iv) the duration of the Interest Period applicable thereto (each,
together with each of the interest periods for Syndicated Loans as
provided in Section 2.09, an "Interest Period") which, in the case of a
Eurodollar Auction, shall be one, two, three, six, nine or twelve months,
as selected by such Borrower, and, in case of an Absolute Rate Auction
shall be such number of days not less than seven nor more than 180 that
are selected by the Borrower; provided that (i) the Interest Period for
any Eurodollar Market Loan shall commence on the date of Borrowing of such
Loan; (ii) if any Interest Period relating to a Eurodollar Market Loan
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month; (iii) if any
Interest Period would otherwise expire on a day which is not a Business
Day, such Interest Period shall expire on the next succeeding Business
Day; provided, however, that if any Interest Period for a Eurodollar
Market Loan would otherwise expire on a day which is not a Business Day
but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day; and (iv) no Interest Period shall extend beyond the
Commitment Termination Date.
A Borrower may request offers to make Competitive Bid Loans for up to
three (3) different Interest Periods in a single Competitive Bid Quote Request;
provided that the request for each separate Interest Period shall be deemed to
be a separate Competitive Bid Quote Request for a separate Competitive Bid
Borrowing. Except as otherwise provided in the preceding sentence, no
Competitive Bid Quote Request shall be given within four Business Days of any
other Competitive Bid Quote Request.
Credit Agreement
<PAGE>
-33-
(c) (i) Any Bank may, by notice to the Administrative Agent in the form of
Exhibit M hereto (a "Competitive Bid Quote"), submit an offer to make a
Competitive Bid Loan in response to any Competitive Bid Quote Request; provided
that, if the request under Section 2.13(b) specified more than one Interest
Period, such Bank may make a single submission containing a separate offer for
each such Interest Period and each such separate offer shall be deemed to be a
separate Competitive Bid Quote. Each Competitive Bid Quote must be submitted to
the Administrative Agent not later than (x) 2:00 p.m. (New York time) on the
fourth Business Day prior to the proposed date of borrowing, in the case of a
Eurodollar Auction or (y) 9:30 a.m. (New York time) on the proposed date of
borrowing, in the case of an Absolute Rate Auction; provided that any
Competitive Bid Quote submitted by ABN AMRO (or its Applicable Lending Office)
may be submitted, and may only be submitted, if ABN AMRO (or such Applicable
Lending Office) notifies the relevant Borrower of the terms of the offer
contained therein not later than (x) 1:45 p.m. (New York time) on the fourth
Business Day prior to the proposed date of borrowing, in the case of a
Eurodollar Auction or (y) 9:15 a.m. (New York time) on the proposed date of
borrowing, in the case of an Absolute Rate Auction. Subject to Sections 2.10, 6
and 10, any Competitive Bid Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of the
relevant Borrower.
(ii) Each Competitive Bid Quote shall specify:
(A) the name of the relevant Borrower, the proposed date of
borrowing and the Interest Period therefor;
(B) the principal amount of the Competitive Bid Loan for which each
such offer is being made, which principal amount (x) may be greater than
or less than the Commitment of the quoting Bank, (y) must be in an
integral multiple of $1,000,000, and (z) may not exceed the principal
amount of the Competitive Bid Borrowing for which offers were requested;
(C) in the case of a Eurodollar Auction, the margin above or below
the Quoted Rate (the "Competitive Bid Margin") offered for each such
Competitive Bid Loan, expressed as a percentage (rounded to the nearest
1/10,000th of 1%) to be added to or subtracted from the applicable Quoted
Rate;
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (rounded to the nearest 1/10,000th of 1%) (the "Competitive Bid
Rate") offered for each such Competitive Bid Loan; and
Credit Agreement
<PAGE>
-34-
(E) the identity of the quoting Bank.
No Competitive Bid Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request and, in particular, no Competitive Bid
Quote may be conditioned upon acceptance by the relevant Borrower of all (or
some specified minimum) of the principal amount of the Competitive Bid Loan for
which such Competitive Bid Quote is being made; provided that the submission of
any Bank containing more than one Competitive Bid Quote may be conditioned on
the relevant Borrower not accepting offers contained in such submission that
would result in such Bank making Competitive Bid Loans pursuant thereto in
excess of a specified aggregate amount (the "Competitive Bid Loan Limit").
(d) The Administrative Agent shall (x) in the case of an Absolute Rate
Auction, as promptly as practicable after the Competitive Bid Quote is submitted
(but in any event not later than 9:45 a.m. (New York time)) or (y) in the case
of a Eurodollar Auction, by 4:00 p.m. (New York time) on the day a Competitive
Bid Quote is submitted, notify the relevant Borrower of the terms (i) of any
Competitive Bid Quote submitted by a Bank that is in accordance with Section
2.13(c) and (ii) of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote submitted by such
Bank with respect to the same Competitive Bid Quote Request. Any such subsequent
Competitive Bid Quote shall be disregarded by the Administrative Agent unless
such subsequent Competitive Bid Quote is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's notice to
the relevant Borrower shall specify (A) the aggregate principal amount of the
Competitive Bid Borrowing for which offers have been received and (B) the
respective principal amounts and Competitive Bid Margins or Competitive Bid
Rates, as the case may be, so offered by each Bank (identifying the Bank that
made each Competitive Bid Quote).
(e) Not later than (x) 11:00 a.m. (New York time) on the third Business
Day prior to the proposed date of borrowing, in the case of a Eurodollar Auction
or (y) 11:00 a.m. (New York time) on the proposed date of borrowing, in the case
of an Absolute Rate Auction, the relevant Borrower shall notify the
Administrative Agent of its acceptance or nonacceptance of the offers so
notified to such Borrower pursuant to Section 2.13(d) (which notice shall
specify the aggregate principal amount of offers from each Bank for each
Interest Period that are accepted; and the failure of the relevant Borrower to
give such notice by such time shall constitute non-acceptance) and the
Administrative Agent shall promptly notify each affected Bank of the acceptance
or non-acceptance of its offers. The notice by the
Credit Agreement
<PAGE>
-35-
Administrative Agent shall also specify the aggregate principal amount of offers
for each Interest Period that were accepted. The relevant Borrower may accept
any Competitive Bid Quote in whole or in part (provided that any Competitive Bid
Quote accepted in part from any Bank shall be in an integral multiple of
$1,000,000); provided that:
(i) the aggregate principal amount of each Competitive Bid Borrowing
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid
Borrowing shall be at least $5,000,000 (or an integral multiple of
$1,000,000 in excess thereof);
(iii) acceptance of offers may, subject to clause (v) below, only be
made in ascending order of Competitive Bid Margins or Competitive Bid
Rates, as the case may be; provided that the relevant Borrower need not
accept the offer of any Bank if payment of the interest on the relevant
Competitive Bid Loan would subject such Borrower to the requirement of
paying any additional amounts under Section 5.04 or if such interest
payment would be subject to greater restrictions on deductibility for
income tax purposes than the restriction applicable to interest payments
made to other Banks whose offers are accepted;
(iv) the relevant Borrower may not accept any offer where the
Administrative Agent has advised such Borrower that such offer fails to
comply with Section 2.13(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including, without limitation, Section
2.13(a)); and
(v) the aggregate principal amount of each Competitive Bid Borrowing
from any Bank may not exceed any applicable Competitive Bid Loan Limit of
such Bank.
If offers are made by two or more Banks with the same Competitive Bid Margins or
Competitive Bid Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in respect of
which such offers are accepted shall be allocated by the relevant Borrower among
such Banks as nearly as possible (in an integral multiple of $1,000,000) in
proportion to the aggregate principal amount of such offers. Determinations by
the relevant Borrower of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error.
Credit Agreement
<PAGE>
-36-
(f) Any Bank whose offer to make any Competitive Bid Loan has been
accepted in accordance with the terms and conditions of this Section 2.13 shall,
not later than (x) with respect to Absolute Rate Loans 2:00 p.m. (New York time)
on the date specified for the making of such Loan and (y) with respect to
Eurodollar Market Loans noon (New York time) on the date specified for the
making of such Loan, make the amount of such Loan available to the
Administrative Agent at the Administrative Agent's Account in immediately
available funds. The amount so received by the Administrative Agent shall,
subject to the terms and conditions of this Agreement, promptly be made
available to the relevant Borrower on such date by depositing the same, in
immediately available funds, in an account of the relevant Borrower designated
thereby.
9 (g) The amount of any Competitive Bid Loan made by any Bank shall not
constitute a utilization of such Bank's Commitment.
2.14 Swingline Loans.
(a) Subject to and upon the terms and conditions set forth herein, the
Swingline Bank hereby agrees to make loans ("Swingline Loans") to the Borrowers
in Dollars during the period from and including the Restatement Effective Date
to but not including the Commitment Termination Date in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount of the
Swingline Commitment; provided that the aggregate unpaid principal amount of all
Swingline Loans, together with the aggregate unpaid principal amount of all
Syndicated Loans and Competitive Bid Loans, the aggregate Face Amount of all
Commercial Paper and the aggregate principal amount of all Unpaid Drawings at
any one time outstanding shall not exceed the Total Commitment at such time.
Subject to the terms of this Agreement, the Borrowers may borrow, repay and
reborrow the amount of the Swingline Commitment; provided that Swingline Loans
may not be borrowed on more than two consecutive Business Days.
(b) Whenever either Borrower desires to make a Swingline Borrowing
hereunder, it shall give the Administrative Agent notice thereof at its Notice
Office by 2:30 p.m. (New York time) on the date of such Swingline Borrowing.
Each such notice (each a "Notice of Swingline Borrowing") shall be in the form
of Exhibit A-2, appropriately completed to specify the principal amount of the
Swingline Loan to be made pursuant to such Swingline Borrowing (which shall be
at least $1,000,000 and in larger multiples of $1,000,000) and the date of such
Borrowing (which shall be a Business Day). The Administrative Agent shall
promptly give the Swingline Bank and each Bank notice of such proposed Swingline
Borrowing and of the other matters required by
Credit Agreement
<PAGE>
-37-
the immediately preceding sentence to be specified in the Notice of Swingline
Borrowing. No later than the close of business (New York time) on the date
specified in each Notice of Swingline Borrowing, the Swingline Bank will make
available, through the Swingline Bank's Applicable Lending Office, the amount of
such Swingline Borrowing requested to be made on such date by either Borrower
under this Section 2.14, in Dollars and in immediately available funds at the
Payment Office of the Administrative Agent, and the Administrative Agent will
make available to such Borrower at its Payment Office the amount so made
available by the Swingline Bank.
(c) Each Borrower hereby agrees to pay (or cause to be paid) to the
Administrative Agent for account of the Swingline Bank the principal amount of
each Swingline Loan at or prior to, and each Swingline Loan shall mature at, the
close of business New York time on the fifth Business Day following the date on
which such Swingline Loan was made. In addition, the relevant Borrower may at
any time, with notice to the Administrative Agent (which shall notify the
Swingline Bank and the Banks thereof promptly) prepay the Swingline Loans owing
by it without premium or penalty.
(d) Anything in this Section 2.14 to the contrary notwithstanding, the
Swingline Bank's obligation to make Swingline Loans may be terminated by the
Swingline Bank if ABN AMRO ceases to act as the Administrative Agent hereunder
and may be terminated under Section 10 hereof.
2.15 Currency Valuation.
(a) Upon the receipt by the Administrative Agent of a Currency Valuation
Notice (as defined below) and on each Quarterly Date on which any Loans are
outstanding in any Foreign Currency, the Administrative Agent shall promptly
determine the aggregate outstanding principal amount of all Loans (for which
purpose the outstanding principal amount of any Loan that is denominated in any
Foreign Currency shall be deemed to be the Dollar Equivalent (determined as of
the Business Day on which the Administrative Agent shall have received such
Currency Valuation Notice prior to 11:00 a.m. (New York time) (or, if received
by the Administrative Agent after such time on any Business Day, as of the next
succeeding Business Day) or as of such Quarterly Date, as the case may be, of
the amount in the Foreign Currency of such Loan). Upon making such
determination, the Administrative Agent shall promptly notify the Banks and the
Borrowers thereof.
(b) If, on the date of such determination the aggregate outstanding
principal amount of all Loans exceeds 105% of an amount equal to (i) the Total
Commitment less (ii) the sum
Credit Agreement
<PAGE>
-38-
of (x) an amount equal to the Face Amount of all outstanding Commercial Paper
and (y) an amount equal to the principal amount of all Unpaid Drawings as then
in effect, the relevant Borrower shall, if requested by the Required Banks
(through the Administrative Agent), prepay within seven days after the date of
such request the Loans in an amount so that after giving effect thereto the
aggregate outstanding principal amount of the Loans does not exceed the amount
equal to (i) the Total Commitment less (ii) the sum of (x) an amount equal to
the Face Amount of all outstanding Commercial Paper and (y) an amount equal to
the principal amount of all Unpaid Drawings.
(c) Any prepayment under Section 2.15 shall be applied first to Swingline
Loans outstanding, second to Base Rate Loans outstanding, third to Eurocurrency
Rate Loans outstanding and finally to Competitive Bid Loans outstanding (but
only with the consent of the Banks holding such Competitive Bid Loans); provided
that, any such prepayment shall be accompanied by any amounts payable under
Sections 2.08 and 2.11.
(d) For purposes of this Section 2.15, "Currency Valuation Notice" shall
mean a notice given by the Required Banks to the Administrative Agent at a time
during which any Loans are outstanding in any Foreign Currency stating that such
notice is a "Currency Valuation Notice" and requesting that the Administrative
Agent determine the aggregate outstanding principal amount of all Loans.
(e) Anything in this Section 2.15 to the contrary notwithstanding, the
Administrative Agent shall not be required to make more than one valuation
determination pursuant to Currency Valuation Notices within any rolling three
month period.
Section 3. Commercial Paper Operations.
3.01 Issuance of Initial Letter of Credit; Substitute Letters of Credit.
(a) Prior to the Restatement Date the Letter of Credit Issuer had issued to the
Depositary and for account of the Borrowers at the request of the Borrowers, its
irrevocable letter of credit, in substantially the form of Exhibit F-1 hereto,
for the benefit of the holders of Commercial Paper, completed in accordance with
such form and the terms of this Section 3.01(a) and expiring on the Expiry Date.
The amount of the Letter of Credit is its "Stated Amount". On or before the
Restatement Effective Date, and as a condition precedent thereto, Annex A
thereto (and Schedule I attached thereto) shall be amended by an amendment in
the form of Exhibit F-2 hereto.
(b) On or before the Restatement Effective Date, and as a condition
precedent thereto, each Bank other than the Letter of Credit Issuer (each such
Bank a "Participant" with respect to
Credit Agreement
<PAGE>
-39-
the Letter of Credit) shall execute, with the Letter of Credit Issuer, a
Participation Agreement in substantially the form of Exhibit E hereto, with
appropriate insertions (such agreement as modified, supplemented or amended from
time to time, the "Participation Agreement"), (i) pursuant to which each
Participant will acquire a risk participation in the Letter of Credit based on
its Participation Percentage, and (ii) as a result of which the Letter of Credit
Issuer will retain liability (relative to the other Banks) with respect to the
Letter of Credit based on its Participation Percentage.
(c) Following the appointment and qualification of any successor
Depositary and the return of the Letter of Credit being replaced, the Letter of
Credit Issuer shall deliver to such successor Depositary a substitute letter of
credit in the form of Exhibit F hereto, dated the date of issuance thereof,
having terms identical to the Letter of Credit theretofore outstanding but in
favor of such successor Depositary.
(d) If (i) the Letter of Credit Issuer shall agree, at the request of the
Borrowers, to an extension of the Expiry Date pursuant to Section 3.01(k), or
(ii) the Borrowers shall partially reduce the Total Commitment pursuant to
Section 4.02 to an amount less than the then Stated Amount of the Letter of
Credit, the Administrative Agent shall so notify the Depositary and the Letter
of Credit Issuer and the Letter of Credit Issuer shall deliver to the Depositary
a substitute Letter of Credit in the form of Exhibit F-1 hereto, with Annex A
thereto (and Schedule I attached thereto) amended as contemplated by Section
3.01(a), dated the date of issuance thereof, and, in the case of clause (i)
above, expiring on the new Expiry Date, and in the case of clause (ii) above, in
a Stated Amount equal to the amount to which the Total Commitment shall have
been reduced, but, in either case, otherwise having terms identical to the
Letter of Credit being replaced, in exchange for delivery by the Depositary of
the Letter of Credit currently held by it. In the case of clause (i) above, such
exchange shall take place promptly after the Letter of Credit Issuer and the
Banks so agree and in the case of clause (ii) above, such exchange shall take
place promptly after the effective date of any such reduction.
(e) In the event that (i) an injunction suspending the issuance of the
Commercial Paper by either Borrower shall have been issued or proceedings
therefor shall have been initiated by the SEC, or (ii) either Borrower, the
Letter of Credit Issuer or any other Person shall have been found in a judicial
or administrative proceeding to have violated the Securities Act of 1933, as
amended, in connection with the issuance of Commercial Paper or the Letter of
Credit, or (iii) any of them shall have offered, issued or sold to or solicited
any offer to acquire any Commercial Paper or any part thereof or any similar
security from
Credit Agreement
<PAGE>
-40-
anyone so as to bring the issuance and sale of Commercial Paper or the Letter of
Credit within the registration and prospectus delivery requirements of Section 5
of the Securities Act of 1933, as amended, or (iv) any restriction under Federal
or state law or regulation would prevent the Letter of Credit Issuer from
maintaining the Letter of Credit for account of either Borrower, then, in any of
such events, such Borrower shall not thereafter issue or sell any Commercial
Paper without the written approval of the Letter of Credit Issuer and the
Administrative Agent and (in the case of the preceding clause (iv)) the Required
Banks. The Letter of Credit Issuer may cancel the Letter of Credit (effective on
the first day thereafter on which there is no longer any Commercial Paper
outstanding) if neither Borrower may issue Commercial Paper by giving the
Borrowers, the Administrative Agent and the Depositary written notice thereof.
The Letter of Credit Issuer and the Borrowers each agree to notify each other
upon first learning of the occurrence of any event described in clauses (i)
through (iv) above.
(f) If upon the occurrence and during the continuance of an Event of
Default the Administrative Agent shall, pursuant to Section 10, declare the
Total Commitment to be terminated, then (x) the Letter of Credit Issuer shall
have the right to require the Depositary to surrender the Letter of Credit to it
on the earliest to occur of the following dates, as applicable: (1) the date of
such declaration if no Commercial Paper shall then be outstanding or (2) if
Commercial Paper shall then be outstanding, on the Business Day next succeeding
the date on which there is no longer outstanding any Commercial Paper and (y) as
set forth in Section 3 of the Depositary Agreement, no additional Commercial
Paper shall be issued.
(g) The Borrowers jointly shall have the right to cause the termination
and cancellation of the Letter of Credit by delivery to the Depositary, the
Administrative Agent and each of the Banks a notice to such effect and
specifying therein the date of such cancellation (the "Letter of Credit
Termination Date"), which date shall not occur on any date on which there is
outstanding any Commercial Paper.
(h) The Letter of Credit Issuer shall have the right to require the
Depositary to surrender the Letter of Credit to it on the Expiry Date.
(i) Promptly upon the occurrence of any Unpaid Drawing under the Letter of
Credit, the Letter of Credit Issuer shall notify the Administrative Agent
thereof.
(j) At any time after the Letter of Credit has been terminated and
canceled pursuant to Section 3.01(g), the Letter of Credit Issuer hereby agrees
to issue to the Depositary for
Credit Agreement
<PAGE>
-41-
account of the Borrowers at the request of the Borrowers a new Letter of Credit
in an amount not to exceed the Total Letter of Credit Commitment, as the same
may be increased or decreased pursuant to Section 3.01(l). When the Borrowers
desire that a new Letter of Credit be issued for their account, they shall give
the Administrative Agent and the Letter of Credit Issuer at least three Business
Days' written notice thereof. The notice shall be in the form of Exhibit J
hereto (the "Letter of Credit Request"); provided that such request must be
accompanied by a certificate of a senior officer of the Guarantor stating that
no Default or Event of Default has occurred and is continuing. The
Administrative Agent shall promptly transmit copies of the Letter of Credit
Request to each Bank. The new Letter of Credit shall be issued by the Letter of
Credit Issuer in an amount (the new "Stated Amount") selected by the Borrowers
not to exceed the Total Letter of Credit Commitment and for a term expiring on
the Expiry Date.
(k) At any time that a Letter of Credit is outstanding, the Borrowers may
effect (x) with the consent of the Letter of Credit Issuer, an extension of the
Expiry Date to a date not beyond the Commitment Termination Date and (y) a
reduction of or an increase in the Stated Amount of the Letter of Credit in an
amount up to but not exceeding the aggregate amount of the Total Letter of
Credit Commitment, in the case of an increase, or an amount not less than the
aggregate Face Amount of Commercial Paper outstanding, in the case of a
reduction. The Borrowers shall give notice to the Letter of Credit Issuer and
the Administrative Agent (who shall forward a copy of such notice to each of the
Banks) at least three Business Days prior to the effect thereof, and must be
accompanied by a certificate of a senior officer of the Guarantor stating that
no Default or Event of Default has occurred and is continuing.
(l) The Borrowers may effect a reduction of the Total Letter of Credit
Commitment to an amount not less than the greater of (x) the Stated Amount of
the Letter of Credit and (y) the sum of the aggregate Face Amount of Commercial
Paper outstanding and the aggregate amount of all Unutilized L/C Loans
outstanding and the aggregate principal amount of all Unpaid Drawings. The
Borrowers may effect an increase in the Total Letter of Credit Commitment up to
an amount not in excess of the Total Commitment less the aggregate amount of
Loan Portion Loans and Swingline Loans outstanding; provided that any such
increase requires the consent of all of the Banks. The Borrowers must submit a
request for such reduction of or increase in the Total Letter of Credit
Commitment to the Letter of Credit Issuer and the Administrative Agent (who
shall forward a copy of such notice to each of the Banks) at least three
Business Days prior to the effective date thereof, which request must be
accompanied by a
Credit Agreement
<PAGE>
-42-
certificate of a senior officer of the Guarantor stating that no Default or
Event of Default has occurred and is continuing.
3.02 Agreement to Repay Disbursements Under Letter of Credit. (a) Each
Borrower hereby agrees to reimburse the Letter of Credit Issuer in Dollars in
immediately available funds by making payment to the Letter of Credit Issuer at
its Payment Office (or by a charge to a Commercial Paper Account of such
Borrower as provided in Section 3.03(c)), for each payment made under the Letter
of Credit honoring any demand for payment (each such payment being referred to
as a "Drawing") made by the Depositary thereunder (all such amounts so paid
until reimbursed, "Unpaid Drawings") with respect to Commercial Paper issued by
such Borrower, such reimbursement to be due on the date of the Drawing, with
interest on the amount so paid from and including the date paid, to the extent
not reimbursed when due, to but not including the date of reimbursement
therefor. Interest on the Unpaid Drawings shall be payable at a rate per annum
equal to 2% per annum in excess of the Base Rate until reimbursed.
(b) Promptly following the Letter of Credit Issuer's receipt of
reimbursement with respect to Unpaid Drawings the Letter of Credit Issuer shall
inform the Administrative Agent thereof.
(c) A Borrower's obligation to reimburse the Letter of Credit Issuer under
this Section 3.02 with respect to Unpaid Drawings shall be absolute,
unconditional and irrevocable, and such Unpaid Drawings shall be paid strictly
in accordance with the terms of this Agreement, under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which such
Borrower may have or have had against the Letter of Credit Issuer, any
Participant or the Depositary or any of their affiliates, including (without
limitation) any defense based on the failure of such payment to conform to the
terms of the Letter of Credit or any failure of such Borrower to receive all or
any part of the proceeds of the sale of Commercial Paper with respect to which
demand for payment under the Letter of Credit was made by the Depositary or any
nonapplication or misapplication by the Depositary of the proceeds of such
demand for payment; provided, that such payment shall not constitute a waiver of
any claims or rights which such Borrower may have.
(d) Notwithstanding anything to the contrary contained in this Agreement
or any other Credit Document, but without limiting any of the Borrowers'
obligations pursuant to any other Section of this Agreement or any other Credit
Document, on any day on which both (i) Commercial Paper issued by a Borrower
matures (such Commercial Paper, "Maturing Commercial Paper") and (ii) new
Commercial Paper will be issued by such Borrower (such Commercial Paper, "New
Commercial Paper"), such Borrower will pay
Credit Agreement
<PAGE>
-43-
to the Letter of Credit Issuer an amount equal to (x) the Face Amount of such
Maturing Commercial Paper less (y) the proceeds from the sale of such New
Commercial Paper (net of the discount applicable thereto and all fees to be paid
from such proceeds to the dealer or dealers in respect thereof) expected to be
deposited on such date in the Commercial Paper Accounts of such Borrower in
accordance with Section 3.03(c) of this Agreement and Section 1 of the
Depositary Agreement, such payment to be made prior to the issuance of such New
Commercial Paper and following the honoring of a drawing by the Letter of Credit
Issuer and to be specifically designated for the purpose of reimbursing, in
part, the Letter of Credit Issuer for the Unpaid Drawing that will result on
such date as a result of the Drawing the proceeds of which will be deposited
into an L/C Subaccount of such Borrower for the purpose of paying such Maturing
Commercial Paper.
3.03 Issuance of Commercial Paper. (a) The Borrowers agree that they will
issue Commercial Paper only in the manner, at the times and in the amounts
provided for herein and in the Depositary Agreement. If such Commercial Paper is
issued in the form of promissory notes, each note constituting Commercial Paper
shall: (1) be substantially in the form of Exhibit G hereto and completed in
accordance with the Depositary Agreement, (2) be dated the date of issuance
thereof, (3) be made payable to the order of a named payee or bearer, (4) have a
stated maturity date which shall not be later than the earlier to occur of (A)
the 270th day next succeeding the date of its issuance or (B) the 16th day next
preceding the Expiry Date, and (5) be issued on a discount basis in a Face
Amount of at least $100,000. If such Commercial Paper is issued in book-entry
form, issuance instructions are to be given to the Depositary to be given to DTC
in accordance with the DTC Documents and must include the following information
with respect to all such Commercial Paper: (1) the date of issuance thereof, (2)
the maturity date (which shall not be later than the earlier to occur of (A) the
270th day next succeeding the date of its issuance or (B) the 16th day next
preceding the Expiry Date) and (3) the Face Amount (which shall be an amount
which is at least $100,000), the discount rate and amount of discount from the
Face Amount.
(b) The Face Amount of all Commercial Paper at any time outstanding (after
giving effect to all payments of Maturing Commercial Paper then being made, to
the use of the proceeds of any Commercial Paper then being issued and to any
payments made pursuant to Section 3.02(d) of this Agreement and the sixth
paragraph of Section 3(a) of the Depositary Agreement) shall not exceed an
amount equal to the lesser of (A) (i) the Total Commitment less (ii) the sum of
(x) the aggregate unpaid principal amount of all Loans and (y) an amount equal
to the aggregate principal amount of all Unpaid Drawings or (B) (i) the
Credit Agreement
<PAGE>
-44-
Stated Amount of the Letter of Credit less (ii) the sum of (x) the aggregate
unpaid principal amount of all Unutilized L/C Loans, and (y) the aggregate
unpaid principal amount of all Unpaid Drawings. The Borrowers will not issue any
Commercial Paper at any time when the conditions set forth in Section 6.02 are
not satisfied. If the Administrative Agent has actual knowledge that any
conditions precedent to the issuance of Commercial Paper are not satisfied, it
shall so notify the Depositary.
(c) All proceeds from the sale of Commercial Paper by a Borrower shall be
initially deposited by the Depositary in the Commercial Paper Account of such
Borrower. On each day on which funds are so deposited in such Commercial Paper
Account, the Depositary is authorized by the relevant Borrower (which
authorization is irrevocable) to promptly transfer to the Letter of Credit
Issuer the balance of such Commercial Paper Account to be applied by the Letter
of Credit Issuer in the following order: (i) to reimburse the Letter of Credit
Issuer for all its Unpaid Drawings, (ii) to pay accrued interest thereon as
provided in Section 3.02(a), and (iii) to satisfy all other obligations of the
relevant Borrower to the Letter of Credit Issuer then due and payable hereunder.
Any balance remaining after application pursuant to the preceding sentence shall
be transferred to the Administrative Agent at an account opened in the name of
the Borrowers in the United States and applied to any other outstanding
Obligations then due and payable. Any balance remaining after application
pursuant to the two preceding sentences shall be released to the Borrowers as
the Borrowers shall direct.
(d) The Letter of Credit Issuer shall utilize funds removed from a
Commercial Paper Account of a Borrower and paid to it pursuant to Section 4 of
the Depositary Agreement to the extent thereof, to reimburse the Letter of
Credit Issuer for Unpaid Drawings of such Borrower, with accrued interest
thereon as provided in Section 3.02(a). Any funds paid to the Letter of Credit
Issuer as described in the preceding sentence and remaining after the
application described in the preceding sentence shall be transferred to the
Administrative Agent and applied to any other outstanding Obligations then due
and payable. Any balance remaining after application pursuant to the two
preceding sentences shall be released to the Borrowers as the Borrowers shall
direct.
(e)[Intentionally Omitted]
(f) Any Commercial Paper issued in accordance with the Credit Documents
prior to the earliest of (x) the Expiry Date; (y) the time of receipt by the
Depositary of the request from the Letter of Credit Issuer to surrender the
Letter of Credit
Credit Agreement
<PAGE>
-45-
pursuant to Section 3.01(f) of this Agreement; or (z) the time of receipt by the
Depositary of the notice from the Borrowers of the Letter of Credit Termination
Date, shall be supported by the Letter of Credit.
Section 4. Facility Fee; Fees; Reductions of Commitments; Commitment
Termination Date; Increase of Commitments.
4.01 Fees. (a) The Borrowers jointly and severally agree to pay to the
Administrative Agent for distribution to the Banks, a facility fee (the
"Facility Fee") for the period from Restatement Effective Date until the
Commitment Termination Date (or such earlier date as the Total Commitment shall
have been terminated) computed at the Applicable Facility Fee Rate on the Total
Commitment.
Accrued Facility Fees shall be due and payable quarterly in arrears on the
third Business Day of each April, July, October and January of each year, for
the calendar quarter ending most recently prior to such payment date, and on the
Commitment Termination Date or upon such earlier date as the Total Commitment
shall be terminated.
(b) The Borrowers jointly and severally agree to pay to the Administrative
Agent for distribution to the Banks a Letter of Credit fee (the "Letter of
Credit Fee") for the period from the Restatement Effective Date until the Expiry
Date (or such earlier date as the Total Commitment shall have been terminated)
computed at the Applicable Letter of Credit Fee Rate on the Total Letter of
Credit Commitment as in effect from time to time.
Accrued Letter of Credit Fees shall be due and payable quarterly in
arrears on the third Business Day of each April, July, October and January of
each year, for the calendar quarter ending most recently prior to such payment
date, and on the Expiry Date or upon such earlier date as the Total Commitment
shall be terminated.
(c) The Borrowers shall pay to the Administrative Agent for distribution
to each Bank a Letter of Credit usage fee (the "Letter of Credit Usage Fee") for
the period from the Restatement Effective Date until the Expiry Date (or such
earlier date as the Letter of Credit shall have been terminated) computed at the
Applicable Letter of Credit Usage Fee Rate multiplied by the daily average
amount of the Outstanding Commercial Paper Participation of such Bank.
The daily average Letter of Credit Usage Fees shall be due and payable
quarterly in arrears on the third Business Day of each April, July, October and
January of each year, for the
Credit Agreement
<PAGE>
-46-
calendar quarter ending most recently prior to such payment date, and on the
Expiry Date or upon such earlier date as the Total Commitment shall be
terminated.
(d) The Borrowers shall pay to the Administrative Agent, for its own
account, such fees as may be agreed to from time to time between the Borrowers
and the Administrative Agent.
(e) The Borrowers shall pay to the Letter of Credit Issuer, for its own
account, such fees as may be agreed to from time to time between the Borrowers
and the Letter of Credit Issuer.
(f) The Borrowers shall pay to the Letter of Credit Issuer, for its own
account, a fee of $2,000 with respect to each transfer of the Letter of Credit
to a new beneficiary.
4.02 Termination of Commitments. (a) On the Expiry Date, the Total Letter
of Credit Commitment shall terminate in its entirety. On the Commitment
Termination Date, each of the Total Commitment (and the Commitment of each Bank)
and the Swingline Commitment shall terminate in its entirety.
(b) Upon at least five Business Days' prior notice to the Administrative
Agent at its Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Banks), the Guarantor shall have the right, without
premium or penalty, to reduce or terminate the Total Commitment in whole or in
part, in integral multiples of $10,000,000 or lesser whole multiples of
$1,000,000, provided that (i) any such reduction or termination must be applied
to reduce the Total Commitment on a pro rata basis, (ii) no such reduction of
the Total Commitment may exceed the Unutilized Total Commitment at such time,
(iii) no such reduction of the Total Commitment shall reduce the Total
Commitment to less than the sum of the Total Letter of Credit Commitment plus
the aggregate amount of Loan Portion Loans and Swingline Loans outstanding and
(iv) any such reduction of the Total Commitment shall apply proportionately to
reduce the Commitment of each Bank.
4.03 Commitment Termination Date. The "Commitment Termination Date" shall
be June 30, 2003 (the "Existing Final Maturity") provided, however, that not
more than 90 days before or less than 75 days prior to any June 30 (the
"Extension Date") after June 30, 1997, the Guarantor may make a written request
to the Administrative Agent, who shall forward a copy of each such request to
the Swingline Bank and to each of the Banks, that the Commitment Termination
Date be extended to any June 30 of any year after 2003 up to five years after
the Extension Date (the "Requested New Final Maturity"). Such request shall be
accompanied by a certificate of a senior officer of the Guarantor
Credit Agreement
<PAGE>
-47-
stating that no Default or Event of Default has occurred and is continuing and
that since the date of the annual consolidated financial statements received by
the Banks pursuant to Section 7(a) of the Guaranty most immediately prior to the
date of such request, there has been no material adverse change in the business,
operations, property, assets, condition (financial or otherwise) or (to the
knowledge of the Guarantor) prospects of the Guarantor or of the Guarantor and
its Subsidiaries taken as a whole. Each Bank shall have the right not to agree
to any such requested extension (each, a "Non-extending Bank"), provided that
(i) subject to the following clause (ii), notice of each Bank's decision shall
be provided to the Guarantor no later than 45 days prior to the relevant
Extension Date and (ii) each Bank that fails so to provide notice of its
decision shall be deemed to be a Non-extending Bank.
The Guarantor shall have the right, on or before the relevant Extension
Date, so long as no Default shall have occurred and be continuing, to replace
any Non-extending Bank with one or more new banks or with an existing Bank (each
an "Additional Commitment Bank"), subject in the case of replacement by new
banks, to the consent of the Letter of Credit Issuer (if the Total Letter of
Credit Commitment is still outstanding), the Swingline Bank and the Managing
Banks (such consents not to be unreasonably withheld or delayed), each of which
Additional Commitment Banks shall have entered into an agreement in form and
substance satisfactory to the Borrowers, the Letter of Credit Issuer (if the
Total Letter of Credit Commitment is still outstanding), the Swingline Bank and
the Administrative Agent pursuant to which such Additional Commitment Bank
shall, effective as of the relevant Extension Date, have undertaken a Commitment
(which, if such Additional Commitment Bank is already a Bank, shall be in
addition to such Banks existing Commitment). In that connection, the Borrowers
shall arrange for the Additional Commitment Bank(s) to purchase from, and to pay
to, each Non-extending Bank the principal amount of all outstanding Loans held
by such Non-extending Bank at par, together with interest thereon accrued to the
repayment date and all other amounts payable hereunder to such Non-extending
Bank (including any fees accrued hereunder and any amounts that would be payable
under Section 2.11 as if all of such Non-extending Bank's Loans were being
prepaid on such repayment date).
If the Bank acting as Swingline Bank hereunder is a Non-extending Bank,
the Guarantor shall have the right, on or before the relevant Extension Date, so
long as no Default shall have occurred and be continuing, to replace the
Swingline Bank with one (and only one) new bank or with an existing Bank (the
"Replacement Swingline Bank", subject in the case of replacement by new banks,
to the consent of the Letter of Credit Issuer and the Managing Banks (such
consents not to be unreasonably withheld
Credit Agreement
<PAGE>
-48-
or delayed), which Replacement Swingline Bank shall have entered into an
agreement in form and substance satisfactory to the Borrowers, the Letter of
Credit Issuer and the Administrative Agent pursuant to which such Replacement
Swingline Bank shall, effective as of the relevant Extension Date, undertaken
the Swingline Commitment. In that connection, the Borrowers shall arrange for
the Replacement Swingline Bank to purchase from, and to pay to, the then-current
Swingline Bank the principal amount of all outstanding Swingline Loans held by
the Swingline Bank at par, together with interest thereon accrued to the
repayment date and all other amounts payable hereunder to such Swingline Bank.
If prior to the relevant Extension Date, all of the Banks (including
without limitation any new bank that replaces a Non-extending Bank) and the
Swingline Bank (including without limitation any new bank that replaces the
Swingline Bank) agree to any such requested extension, the Existing Final
Maturity shall, effective as of the Extension Date, be extended to the Requested
New Final Maturity; provided that (a) no Default or Event of Default shall have
occurred and be continuing and (b) the representations and warranties set forth
in Section 7 shall be true and correct.
4.04 Increase of Commitments. The Guarantor shall have the right, at any
time prior to the Commitment Termination Date, as the same may be extended in
accordance with Section 4.03, to effect an increase in the aggregate amount of
the Total Commitment to an amount not to exceed $750,000,000; provided that (i)
no Default or Event of Default has occurred and is continuing; (ii) one or more
of the existing Banks agree, but are not required to agree, to increase their
respective Commitments hereunder (and the Swingline Bank shall have consented to
such increase) and/or one or more new banks, satisfactory to the Letter of
Credit Issuer (if the Total Letter of Credit Commitment is still outstanding)
and the Administrative Agent, agree to provide Commitments hereunder. Such
increase may take effect so long as no Syndicated Loans or Swingline Loans are
outstanding and no reductions of the Commitments shall have occurred within the
preceding 12 month period.
Section 5. Prepayments; Payments.
5.01 Voluntary Prepayments. (a) Subject to Section 2.01(c), each Borrower
shall have the right to prepay the Syndicated Loans without premium or penalty,
in whole or in part from time to time on the following terms and conditions: (i)
such Borrower shall give the Administrative Agent at its Notice Office at least
two Business Days' prior notice (in the case of Eurodollar Rate Loans), three
Business Days' prior notice (in the case of Eurocurrency Rate Loans denominated
in an Agreed Foreign Currency) and same-day prior notice (in the case of Base
Rate
Credit Agreement
<PAGE>
-49-
Loans) of its intent to prepay the Loans, the amount of such prepayment, the
Types of Loans to be prepaid, and, in the case of Eurocurrency Rate Loans, the
specific Borrowing or Borrowings pursuant to which made, which notice the
Administrative Agent shall promptly transmit to each of the Banks; (ii) each
prepayment shall be in an aggregate principal amount of at least $1,000,000 in
the case of Base Rate Loans and $5,000,000 (or, if any such Loan is denominated
in an Agreed Foreign Currency, the Dollar Equivalent thereof) in the case of
Eurocurrency Rate Loans, provided that no partial prepayment made pursuant to
any Borrowing shall reduce the outstanding Loans made pursuant to such Borrowing
to an amount less than $1,000,000 in the case of Base Rate Loans and $5,000,000
(or, if any such Loan is denominated in an Agreed Foreign Currency, the Dollar
Equivalent thereof) in the case of Eurocurrency Rate Loans; (iii) prepayments of
Eurocurrency Rate Loans made pursuant to this Section 5.01 may only be made if
at the time of such prepayment such Borrower shall have paid in full all amounts
requested by any of the Banks pursuant to Section 2.11; and (iv) each prepayment
in respect of any Loans made pursuant to a Borrowing shall be applied pro rata
among such Loans.
(b) Each Borrower shall have the right to prepay the Swingline Loans,
without premium or penalty, in whole or in part from time to time, provided that
such Borrower shall give the Administrative Agent at its Notice Office prior
notice of its intent to prepay such Swingline Loans together with notice of the
amount of such prepayment (which shall be in an aggregate principal amount of
$1,000,000 or a larger whole multiple of $1,000,000).
5.02 Mandatory Prepayments. (a) [Intentionally Omitted]
(b) [Intentionally Omitted]
(c) On any day on which the aggregate outstanding principal amount of the
Loans (after giving effect to all other repayments of any of such Loans on such
date) plus the outstanding Face Amount of Commercial Paper issued hereunder plus
Unpaid Drawings exceeds the Total Commitment as then in effect, the Borrowers
shall prepay principal of the Loans in an amount equal to such excess; provided
that any such prepayment shall be applied first to Swingline Loans outstanding,
second to Base Rate Loans outstanding, third to Eurocurrency Rate Loans
outstanding and finally to Competitive Bid Loans outstanding (but only with the
consent of the Banks holding such Competitive Bid Loans).
(d) With respect to each prepayment of Syndicated Loans required by this
Section 5.02, the Borrowers may, subject to Section 2.01(c), designate the
specific Borrowing or Borrowings pursuant to which made, provided that each
prepayment
Credit Agreement
<PAGE>
-50-
of any Loans made pursuant to a Borrowing shall be applied pro rata among such
Loans. In the absence of a designation by the Borrowers as described in the
preceding sentence, the Administrative Agent shall, subject to the above, make
such designation in its sole discretion.
5.03 Method and Place of Payment. Except as otherwise specifically
provided herein or in the Depositary Agreement, all payments under this
Agreement or any Note shall be made to the Administrative Agent for account of
the Bank or Banks (which for purposes of this Section 5.03 shall include the
Swingline Bank) entitled thereto not later than 3:00 p.m. (Local Time) on the
date when due and shall be made in the relevant Currency in immediately
available funds at the Payment Office of the Administrative Agent. Whenever any
payment to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
5.04 Net Payments. (a) All payments made by the Borrowers hereunder or
under any Note will be made without setoff, counterclaim or other defense. All
such payments will be made free and clear of, and without deduction or
withholding for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter imposed by any
jurisdiction or by any political subdivision or taxing authority thereof or
therein (but excluding, except as provided below, any tax imposed on or measured
by the net income of a Bank (which for purposes of this Section 5.04(a) and
Section 5.04(b) below shall include the Swingline Bank) pursuant to the laws of
the jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the principal office or Applicable Lending Office of such Bank
is located ("Excluded Taxes")) and all interest, penalties or similar
liabilities with respect thereto (collectively, "Taxes"). The Borrowers shall
reimburse each Bank, upon the written request of such Bank, for Excluded Taxes
in respect of amounts paid to or on behalf of such Bank pursuant to the
preceding sentence. If any Taxes are so levied or imposed, the Borrowers agree
to pay the full amount of such Taxes and such additional amounts as may be
necessary so that every payment of all amounts due hereunder or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. The Borrowers will furnish
to the Administrative Agent within 45 days after the date the payment of any
Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrowers. The Borrowers will indemnify and hold
harmless each Bank, and
Credit Agreement
<PAGE>
-51-
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank shall designate an Applicable Lending Office that, on the
Restatement Date or (in the case of any Person that becomes a Bank hereunder by
means of an assignment) on the date that such Bank becomes a party hereto, is
entitled to a zero rate of (i) United States withholding tax on all payments
made hereunder by OFI and (ii) United Kingdom withholding tax on all payments
made hereunder by OFL. Prior to the Restatement Date, each Bank organized under
the laws of a jurisdiction outside the United States has provided OFI with the
forms prescribed by the Internal Revenue Service of the United States (currently
Form 4224 or Form 1001) certifying such Bank's exemption from United States
withholding taxes with respect to all payments to be made to such Bank hereunder
and under the Notes as at the date of such certificate. Within thirty (30) days
after the Restatement Date, each Bank organized under the laws of a jurisdiction
outside the United Kingdom shall request, and shall provide to OFL as soon as
received, the notice issued by the Department of Inland Revenue of the United
Kingdom (currently Form 242/FD) certifying such Bank's exemption from United
Kingdom withholding taxes with respect to all payments to be made to such Bank
hereunder and under the Notes as at the date of such certificate. Each Bank
shall provide such forms on an updated basis from time to time if requested by
OFI in the case of United States forms and by OFL in the case of United Kingdom
forms. Unless the Borrowers have received forms or other documents satisfactory
to them indicating that payments hereunder or under any Note are not subject to
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, (a) OFI shall withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Bank organized under the
laws of a jurisdiction outside the United States, and (b) OFL shall withhold
taxes from such payments at the applicable statutory rate in the case of
payments to or for any Bank organized under the laws of a jurisdiction outside
the United Kingdom. If any Bank organized under the laws of a jurisdiction
outside the United States fails to provide OFI, or if any Bank organized under
the laws of a jurisdiction outside of the United Kingdom fails to provide OFL,
with the prescribed forms referred to in the second, third and fourth sentences
of this Section 5.04(b), and notwithstanding Section 12.15 hereof, the Borrowers
shall not be required to compensate such Bank under Section 5.04(a) for the
amount of taxes withheld pursuant to the immediately preceding sentence;
provided that this sentence shall be inapplicable to any Bank that is not able
to make the certification set forth in such prescribed forms as a result of a
change in United States federal, or United Kingdom, income tax law, regulation
or interpretation occurring after the Restatement Date, or to an amendment,
modification or revocation of an
Credit Agreement
<PAGE>
-52-
applicable tax treaty or a change in official position regarding the application
or interpretation thereof, in each case, occurring after the date hereof.
Section 6. Conditions Precedent.
6.01 Effectiveness. The effectiveness of the amendment and restatement of
the 1996 Credit Agreement provided for hereby is subject to the satisfaction of
the following conditions:
(a) Notes. There shall have been delivered to the Administrative Agent for
account of each of the Banks Syndicated Notes, Competitive Bid Notes and
Swingline Notes, duly completed and executed by the Borrowers and, in the case
of Existing Banks, in exchange for the Original Notes.
(b) Opinions of Counsel. For OFI, the Administrative Agent shall have
received (i) from Donovan Leisure Newton & Irvine, special New York counsel to
the Borrowers and the Guarantor, an opinion addressed to each of the Banks
substantially in the form of Exhibit C-1 and covering such other matters
incident to the transactions contemplated herein as any Bank may reasonably
request, and (ii) from Milbank, Tweed, Hadley & McCloy, special New York counsel
to ABN AMRO, an opinion addressed to each of the Banks substantially in the form
of Exhibit C-2 and covering such other matters incident to the transactions
contemplated herein as any Bank may reasonably request; for OFL, the
Administrative Agent shall have received (i) from Donovan Leisure Newton &
Irvine, special New York counsel to the Borrowers and the Guarantor, an opinion
addressed to each of the Banks substantially in the form of Exhibit C-3 and
covering such other matters incident to the transactions contemplated herein as
any Bank may reasonably request and (ii) from Macfarlanes, special English
counsel to OFL, an opinion addressed to each of the Banks substantially in the
form of Exhibit C-4 and covering such other matters incident to the transactions
contemplated herein as any Bank may reasonably request.
(c) Corporate Documents; Proceedings. (i) For OFI, the Administrative
Agent shall have received a certificate, signed by the President, the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of OFI, and attested to by the Secretary or any Assistant Secretary thereof, in
the form of Exhibit D-1 with appropriate insertions, together with copies of the
Certificate of Incorporation and By-Laws of OFI and the resolutions of such
Borrower referred to in such certificate.
(ii) For OFL, the Administrative Agent shall have received a certificate,
signed by a director of OFL in the form
Credit Agreement
<PAGE>
-53-
of Exhibit D-2, with appropriate insertions, together with copies of the
organizational documents of OFL and the resolutions of OFL referred to in such
certificate.
(iii) The Administrative Agent shall have received a certificate, signed
by the President, the Chief Financial Officer, any Vice President, the Treasurer
or the Assistant Treasurer of the Guarantor and attested to by the Secretary or
any Assistant Secretary of the Guarantor, in the form of Exhibit D-3, with
appropriate insertions, together with copies of the Certificate of Incorporation
and By-Laws of the Guarantor and the Resolutions of the Guarantor referred to in
such Certificate.
(iv) For each Borrower, all corporate and legal proceedings and all
instruments and agreements in connection with the transactions contemplated in
this Agreement and the other Credit Documents shall be satisfactory in form and
substance to the Banks, and the Administrative Agent shall have received all
information and copies of all documents and papers, including records of
corporate proceedings and governmental approvals, if any, which any Bank
reasonably may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate or governmental
authorities.
(d) Amendment to the Letter of Credit. The Letter of Credit Issuer shall,
with the consent of the Depositary, have amended the Letter of Credit by issuing
to the Depositary an amendment to the Letter of Credit in the form of Exhibit
F-2.
(e) Participation Agreement. The condition specified in Section 3.01(b)
shall have been satisfied.
(f) Depositary Agreement. The Borrowers, the Depositary, the
Administrative Agent and the Letter of Credit Issuer shall have duly authorized,
executed and delivered an amended and restated Depositary Agreement in the form
of Exhibit H (as modified, supplemented, or amended from time to time, the
"Depositary Agreement"), and such Depositary Agreement shall be in full force
and effect as of the Restatement Effective Date.
(g) Guaranty. The Guarantor shall have duly authorized, executed and
delivered an amended and restated Guaranty in the form of Exhibit K (as
modified, supplemented, or amended from time to time, the "Guaranty"), and such
Guaranty shall be in full force and effect as of the Restatement Effective Date.
(h) Notification to the Depositary. The Administrative Agent shall have
notified the Depositary of the increase in the Total Commitment as contemplated
herein, and the Borrowers shall have delivered to the Depositary a fully
executed
Credit Agreement
<PAGE>
-54-
copy of this amendment and restatement of the 1996 Credit Agreement.
(i) Notification to Rating Agencies. Either the Borrowers or the
Administrative Agent shall have notified Moody's and S&P in writing of this
amendment and restatement of the 1996 Credit Agreement provided for hereby.
(j) Fees Paid. All Facility Fees, Letter of Credit Fees, Letter of Credit
Usage Fees and other fees (if any) payable under the 1996 Credit Agreement to
the Existing Banks, in each case accrued to the Restatement Effective Date,
shall have been paid by the Borrowers.
6.02 Credit Events. Each Credit Event of each Borrower is subject (except
and to the extent hereinafter indicated) to the satisfaction of the following
conditions with each Credit Event constituting a representation and warranty by
such Borrower that the conditions specified in paragraph (c) below are then
satisfied:
(a) Rating Letter. On or before the date of any issuance by such Borrower
of Commercial Paper occurring after the Restatement Effective Date, a letter (a
"Rating Letter") from Moody's and S&P to the effect that Moody's and S&P shall
have given the Commercial Paper to be issued by such Borrower its highest rating
shall be in effect.
(b) No Default; Representations and Warranties. At the time of each Credit
Event (other than a Borrowing of a Eurocurrency Rate Loan which, if given
effect, would not increase the aggregate amount of outstanding Eurocurrency Rate
Loans of any Bank and a Credit Event the proceeds of which are applied
exclusively to the payment of Unpaid Drawings incurred on the date of such
Credit Event) and also after giving effect thereto (i) there shall exist no
Default and (ii) all representations and warranties contained herein or in the
other Credit Documents (except, after the Restatement Date, the third sentence
of Section 6(e) of the Guaranty) shall be true and correct in all material
respects with the same effect as though such representations and warranties had
been made on and as of the date of such Credit Event, other than representations
and warranties stated to be correct as of a date certain which shall have been
true and correct in all material respects on such date certain.
(c) Subsequent Legal Opinions. If, at the time of any Credit Event for
either Borrower subsequent to the Restatement Date any Bank, the Swingline Bank
or the Letter of Credit Issuer shall have requested same, the Administrative
Agent shall have received from Donovan Leisure Newton & Irvine, special New York
Credit Agreement
<PAGE>
-55-
counsel to the Borrowers and the Guarantor, and/or Macfarlanes, special English
counsel to OFL, or such other counsel as shall be reasonably satisfactory to the
Required Banks, an opinion in form and substance satisfactory to the Banks, the
Swingline Bank and the Letter of Credit Issuer, addressed to the Banks, the
Swingline Bank and the Letter of Credit Issuer and dated the date of such Credit
Event, covering, specifically, such of the matters set forth in the opinions of
counsel required to be delivered pursuant to Section 6.01(b) above with respect
to the first Credit Event of such Borrower as the requesting Bank, Swingline
Bank or the Letter of Credit Issuer shall specify.
(d) Guaranty. The Guaranty shall be in full force and effect as of the
date of each Credit Event.
(e) Commercial Paper. On the date of each issuance of Commercial Paper,
the Letter of Credit Termination Date shall not have occurred.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by such Borrower to each of the Banks that all the
conditions specified in Section 6.02(b) above exist as of that time. All the
Notes, certificates, legal opinions and other documents and papers referred to
in this Section 6, unless otherwise specified, shall be delivered to the
Administrative Agent at the Administrative Agent's Notice Office for the account
of each of the Banks and, except for the Notes, in sufficient counterparts for
each of the Banks and shall be satisfactory in form and substance to the Banks.
Section 7. Representations, Warranties and Agreements. In order to induce
the Banks and Swingline Bank to enter into this Agreement and to make the Loans,
to participate in Swingline Loans and to issue or participate in the Letter of
Credit, each Borrower (but only OFI with respect to Section 7.09) makes the
following representations, warranties and agreements as to itself as of the
Restatement Date, which shall survive the execution and delivery of this
Agreement and the Notes and the making of the Loans and the issuance of the
Letter of Credit.
7.01 Corporate Status. Each of the Borrowers and its Subsidiaries (i) is a
duly organized and validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation, (ii) has the power and authority to
own its property and assets and to transact the business in which it is engaged
and (iii) is duly qualified as a foreign corporation and in good standing in
each jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, except where the failure to
be so qualified could not have a material adverse effect on the
Credit Agreement
<PAGE>
-56-
business, operations, property, assets, condition (financial or otherwise) or
(to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
7.02 Corporate Power and Authority. Each Borrower has the corporate power
to execute, deliver and perform the terms and provisions of each of the Credit
Documents to which it is party and has taken all necessary corporate action to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Such Borrower has, or in the case of all Commercial Paper, when
issued will have, duly executed and delivered each of the Credit Documents to
which it is party, and each of such Credit Documents constitutes or, in the case
of Commercial Paper, when issued in accordance with the provisions hereof and of
the Depositary Agreement, will constitute, its legal, valid and binding
obligation enforceable in accordance with its terms except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting creditors' rights generally and by general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
either Borrower of the Credit Documents to which it is a party, nor compliance
by it with the terms and provisions thereof, (i) will contravene any provision
of any law, statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute a default under, or result in the
creation or any indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other agreement, contract or instrument to which such Borrower
or any of its Subsidiaries is a party or by which it or any of its property or
assets is bound or to which it may be subject or (iii) will violate any
provision of the Certificate of Incorporation, By-Laws or other comparable
corporate charter documents of such Borrower or any of its Subsidiaries.
7.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made prior to the date hereof), or exemption
by, any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the execution,
delivery and performance of any Credit Document to which each Borrower is a
party or (ii) the legality, validity, binding effect or enforceability of any
such Credit Document.
Credit Agreement
<PAGE>
-57-
7.05 Litigation. There are no actions, suits or proceedings pending or, to
the best knowledge of either Borrower, threatened (i) with respect to any Credit
Document or (ii) that are reasonably likely to materially and adversely affect
the business, operations, property, assets, condition (financial or otherwise)
or (to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
7.06 True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of each
Borrower in writing to any Bank (which for purposes of this Section 7.06
includes the Swingline Bank) (including without limitation all information
contained in the Credit Documents) for purposes of or in connection with this
Agreement or any transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of such
Borrower in writing to any Bank will be, true and accurate in all material
respects on the date as of which such information is dated or certified and does
not omit to state any fact necessary to make such information (taken as a whole)
not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
7.07 Use of Proceeds: Margin Regulations. All proceeds of each Loan and of
Commercial Paper shall be used by each Borrower for general corporate purposes;
provided that no part of the proceeds of any Loan or any Commercial Paper will
be used by such Borrower to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock in
violation of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve Board. Not more than 25% of the value of the assets of such Borrower or
such Borrower and its Subsidiaries subject to the restrictions contained in
Section 9 of the Credit Agreement constitute Margin Stock and, at the time of
each Credit Event, not more than 25% of the value of the assets of such Borrower
or such Borrower and its Subsidiaries subject to the restrictions contained in
Section 9 of the Credit Agreement will constitute Margin Stock. Notwithstanding
the foregoing provisions of this Section 7.07, each Borrower will not use the
proceeds of any Loan or any Commercial Paper to purchase the capital stock of
any corporation in a transaction, or as part of a series of transactions, (i)
the purpose of which is, at the time of any such purchase, to acquire control of
such corporation or (ii) the result of which is the ownership by the Guarantor
and its Subsidiaries (including without limitation such Borrower) of 10% or more
of the capital stock of such corporation, in either case if the Board of
Directors of such corporation has publicly announced its opposition to such
transaction. Without the
Credit Agreement
<PAGE>
-58-
consent of the Swingline Bank, no proceeds of any Swingline Loan will be used to
repay any other Swingline Loan.
7.08 Tax Returns and Payments. Each of the Borrowers and its Subsidiaries
has filed all tax returns required to be filed (taking into account all valid
extensions) by it and has paid all income taxes payable by it which have become
due pursuant to such tax returns and all other taxes and assessments payable by
it which have become due, other than those not yet delinquent and except for
those contested in good faith and for which adequate reserves have been
established. Each Borrower and its Subsidiaries has paid, or has provided
adequate reserves (in the good faith judgment of the management of the Borrower)
for the payment of, all Federal and state income taxes or income tax imposed by
any other relevant jurisdiction applicable for all prior fiscal years and for
the current fiscal year to the end of the fiscal quarter immediately preceding
the date hereof.
7.09 Compliance with ERISA. Each Plan is in substantial compliance with
ERISA; no Plan is insolvent or in reorganization, no Plan has an Unfunded
Current Liability, and no Plan has an accumulated or waived funding deficiency
or permitted decreases in its funding standard account within the meaning of
Section 412 of the Code; neither OFI or any Subsidiary or ERISA Affiliate of OFI
has incurred any material liability to or on account of a Plan pursuant to
Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA or expects to incur any
liability under any of the foregoing sections on account of the termination of
participation in or contributions to any such Plan; no proceedings have been
instituted to terminate any Plan; no condition exists which presents a material
risk to OFI or any of its Subsidiaries of incurring a liability to or on account
of a Plan pursuant to the foregoing provisions of ERISA and the Code; no Lien
imposed under the Code or ERISA on the assets of OFI or any of its Subsidiaries
exists or is likely to arise on account of any Plan; and OFI and its
Subsidiaries may terminate contributions to any other employee benefit plans
maintained by them without incurring any material liability to any Person
interested therein.
7.10 Subsidiaries. As of December 31, 1997, the corporations listed on
Schedule III are the only Subsidiaries of the Borrowers. Schedule III correctly
sets forth, as of December 31, 1997, the percentage ownership (direct and
indirect) of the Borrowers in each class of capital stock of each of its
Subsidiaries and also identifies the direct owner thereof.
7.11 Compliance with Statutes, etc. Each of the Borrowers and its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business
Credit Agreement
<PAGE>
-59-
and the ownership of its property (including applicable statutes, regulations,
orders and restrictions relating to environmental standards and controls),
except such noncompliances as would not, in the aggregate, have a material
adverse effect on the business, operations, property, assets, condition
(financial or otherwise) or (to the knowledge of such Borrower) prospects of
such Borrower or of such Borrower and its Subsidiaries taken as a whole.
7.12 Investment Company Act. Neither Borrower nor any of its Subsidiaries
is an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
7.13 Public Utility Holding Company Act. Neither Borrower nor any of its
Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
7.14 Commercial Paper. All Commercial Paper will constitute exempt
securities under Section 3(a)(2) of the Securities Act of 1933, as amended, and
neither registration of the Commercial Paper under such Act, nor qualification
of an indenture with respect to Commercial Paper under the Trust Indenture Act
of 1939, as amended, will be required in connection with the offer, issuance,
sale or delivery of Commercial Paper.
Section 8. Affirmative Covenants. Each Borrower (but only OFI with respect
to Section 8.05) covenants and agrees as to itself that on and after the date
hereof and until the Total Commitment has terminated, the Letter of Credit has
expired and the Loans, Notes and Unpaid Drawings, together with interest, Fees
and all other obligations incurred hereunder and thereunder, are paid in full:
8.01 Information Covenants. Each Borrower will furnish to each Bank:
(a) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7(a)(i) and (ii) of the
Guaranty, a certificate of the chief financial officer of such Borrower to
the effect that, to the best of his knowledge, no Default or Event of
Default has occurred and is continuing or, if any Default or Event of
Default has occurred and is continuing, specifying the nature and extent
thereof.
(b) Notice of Default or Litigation. Promptly, and in any event
within three Business Days after an officer of the Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event
Credit Agreement
<PAGE>
-60-
of Default and (ii) any litigation or governmental proceeding pending (x)
against such Borrower or any of its Subsidiaries which could materially
and adversely affect the business, operations, property, assets, condition
(financial or otherwise) or (to the knowledge of such Borrower) prospects
of such Borrower or such Borrower and its Subsidiaries taken as a whole or
(y) with respect to any Credit Document.
(c) Other Reports and Filings. Promptly, copies of all financial
information, proxy materials and other information and reports, if any,
which such Borrower shall file with the Securities and Exchange Commission
or any governmental agencies substituted therefor (the "SEC").
(d) Other Information. From time to time, such other information or
documents (financial or otherwise) as any Bank or the Swingline Bank may
reasonably request.
8.02 Books, Records and Inspections. Each Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries in conformity with generally accepted accounting
principles and all requirements of law shall be made of all dealings and
transactions in relation to its business and activities. Each Borrower will, and
will cause each of its Subsidiaries to, permit officers and designated
representatives of the Administrative Agent, any Bank or the Swingline Bank to
visit and inspect, under guidance of officers of such Borrower or such
Subsidiary, any of the properties of such Borrower or such Subsidiary, and to
examine the books of record and account of such Borrower or such Subsidiary and
discuss the affairs, finances and accounts of such Borrower or such Subsidiary
with, and be advised as to the same by, its and their officers, all at such
reasonable times and intervals and to such reasonable extent as the
Administrative Agent, such Bank or the Swingline Bank may request.
8.03 Corporate Franchises. Each Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Section 8.03 shall
prevent (i) the withdrawal by such Borrower or any of its Subsidiaries of its
qualification as a foreign corporation in any jurisdiction where such withdrawal
could not have a material adverse effect on the business, operations, property,
assets, condition (financial or otherwise) or (to the knowledge of such
Borrower) prospects of such Borrower or such Subsidiary or (ii) any merger
involving such Borrower or any of
Credit Agreement
<PAGE>
-61-
its Subsidiaries to the extent permitted by Section 7(j) of the Guaranty.
8.04 Compliance with Statutes, etc. Each Borrower will, and will cause
each of its Subsidiaries to, comply with all applicable statutes, regulations
and orders of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its business and the
ownership of its property (including applicable statutes, regulations, orders
and restrictions relating to environmental standards and controls), except such
noncompliances as could not, in the aggregate, have a material adverse effect on
the business, operations, property, assets, condition (financial or otherwise)
or (to the knowledge of such Borrower) prospects of such Borrower or of such
Borrower and its Subsidiaries taken as a whole.
8.05 ERISA. As soon as possible and, in any event, within 10 days after
OFI or any of its Subsidiaries or ERISA Affiliates knows or has reason to know
any of the following, OFI will deliver to each of the Banks a certificate of the
chief financial officer of OFI setting forth details as to such occurrence and
such action, if any, which OFI, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by OFI, the Subsidiary, the ERISA Affiliate, the
PBGC, a Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred, that an accumulated funding deficiency has been
incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan, that a Plan has been or
may be terminated via a "distress termination" as referred to in Section 4041(c)
of ERISA, reorganized, partitioned or declared insolvent under Title IV of
ERISA, that a Plan has an Unfunded Current Liability giving rise to a Lien under
ERISA, that proceedings may be or have been instituted by the PBGC to terminate
a Plan, that a proceeding has been instituted pursuant to Section 515 of ERISA
to collect a delinquent contribution to a Plan, or that OFI, any of its
Subsidiaries or ERISA Affiliates will or may incur any liability (including any
contingent or secondary liability) to or on account of the termination of or
withdrawal from a Plan under Section 4062, 4063, 4064, 4201 or 4204 of ERISA. In
addition to any certificates or notices delivered to the Banks pursuant to the
first sentence hereof, copies of notices received by OFI or any of its
Subsidiaries required to be delivered to the Banks hereunder shall be delivered
to the Banks no later than 10 days after the later of the date such notice has
been filed with the Internal Revenue Service or the PBGC, given to Plan
participants or received by OFI or such Subsidiary.
Credit Agreement
<PAGE>
-62-
8.06 End of Fiscal Years; Fiscal Quarters. Each Borrower shall cause (i)
each of its, and each of its Subsidiary's, fiscal years to end on December 31
and (ii) each of its, and each of its Subsidiary's, fiscal quarters to end on
March 31, June 30, September 30 and December 31.
Section 9. Negative Covenants.
Each Borrower covenants and agrees, as to itself, that on and after the
date hereof and until the Total Commitment has terminated, the Letter of Credit
has expired and the Loans, Notes and Unpaid Drawings, together with interest,
Fees and all other obligations incurred hereunder and thereunder, are paid in
full:
9.01 Liens. Such Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets (real or personal, tangible or intangible) of
such Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, provided that the provisions of this Section 9.01 shall not prevent
the creation, incurrence, assumption or existence of Liens expressly permitted
under Section 7(i) of the Guaranty.
9.02 Consolidation, Merger, Sale of Assets, etc. Such Borrower will not,
and will not permit any of its Subsidiaries to, wind up, liquidate or dissolve
its affairs or enter into any transaction of merger or consolidation, or convey,
sell, lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or any part of its property or assets, or purchase or otherwise
acquire (in one or a series of related transactions) any part of the property or
assets (other than purchases or other acquisitions of inventory, materials and
equipment in the ordinary course of business) of any Person, or permit any of
its Subsidiaries so to do any of the foregoing, except that such Borrower and
its Subsidiaries may take any of the foregoing actions to the extent expressly
permitted under Section 7(j) of the Guaranty.
9.03 Leases. Such Borrower will not enter into or permit any Subsidiary to
enter into any agreements to rent or lease any real or personal property
(excluding capitalized leases) except in the ordinary course of business.
9.04 Indebtedness. Such Borrower will not permit any of its Subsidiaries
to contract, create, incur, assume or suffer to exist any Indebtedness, except
(i) Indebtedness listed on Schedule II to the Guaranty ("Existing
Indebtedness"), (ii) accrued expenses and current trade accounts payable
incurred in the ordinary course of business, and obligations under trade letters
of credit incurred by such Subsidiaries in the ordinary
Credit Agreement
<PAGE>
-63-
course of business, which are to be repaid in full not more than one year after
the date on which such Indebtedness is originally incurred to finance the
purchase of goods by such Subsidiary and (iii) obligations under letters of
credit incurred by such Subsidiaries in the ordinary course of business in
support of obligations incurred in connection with worker's compensation,
unemployment insurance and other social security legislation and (iv)
Indebtedness of Subsidiaries of such Borrower to the extent permitted under
Section 7(1) of the Guaranty.
9.05 Advances, Investments and Loans. Such Borrower will not, and will not
permit any of its Subsidiaries to, lend money or credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person, except
as expressly permitted under Section 7(m) of the Guaranty.
9.06 Transactions with Affiliates. Such Borrower will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of such Borrower, other than on terms and conditions substantially
as favorable to such Borrower or such Subsidiary as would be obtainable by such
Borrower or such Subsidiary at the time in a comparable arm's-length transaction
with a Person other than an Affiliate.
9.07 Limitation on Restrictions on Subsidiary Dividends and Other
Distributions. Such Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
such Subsidiary to (a) pay dividends or make any other distributions on its
capital stock or any other interest or participation in its profits owned by
such Borrower or any Subsidiary of such Borrower, or pay any Indebtedness owed
to such Borrower or a Subsidiary of the Borrower, (b) make loans or advances to
the Borrower or (c) transfer any of its properties or assets to such Borrower,
except for such encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Agreement or any other Credit Document and (iii)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest of the Borrower or a Subsidiary of the Borrower.
9.08 Business. Such Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which it is engaged on the date hereof and any other reasonably
related businesses.
Credit Agreement
<PAGE>
-64-
9.09 Sale of Commercial Paper. Such Borrower will not retain any dealer or
placement agent with respect to Commercial Paper unless such dealer or placement
agent is approved in writing by the Required Banks which consent shall not be
unreasonably withheld. The Banks hereby approve Chase Securities Inc. and
Goldman Sachs Money Markets, L.P. ("GSMM") to act as placement agents for all
Commercial Paper. Each Borrower will not permit any offering circular or other
similar document to contain any description of the Letter of Credit Issuer which
description is not approved by the Letter of Credit Issuer in writing.
9.10 Dividends. Such Borrower will not declare or pay any dividends, or
return any capital, to its stockholders or authorize or make any other
distribution, payment or delivery of property or cash to its stockholders as
such, or redeem, retire, purchase or otherwise acquire, directly or indirectly,
for a consideration, any shares of any class of its capital stock now or
hereafter outstanding (or any options or warrants issued by such Borrower with
respect to its capital stock), or set aside any funds for any of the foregoing
purposes, or permit any of its Subsidiaries to purchase or otherwise acquire for
a consideration any shares of any class of the capital stock of such Borrower
now or hereafter outstanding (or any options or warrants issued by such Borrower
with respect to its capital stock); provided that such Borrower may take any of
the foregoing actions so long as no Default or Event of Default exists or would
result therefrom.
Section 10. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
10.01 Payments. Either Borrower shall (i) default in the payment when due
of any principal of any Loan or any Note or any Unpaid Drawing with respect
thereto or (ii) default, and such default shall continue unremedied for three or
more Business Days, in the payment when due of any interest on any Loan or any
Note or any Fees or any other amounts owing hereunder or under any Note with
respect thereto; or
10.02 Representations, etc. Any representation, warranty or statement made
by either Borrower or the Guarantor herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
10.03 Covenants. Either Borrower shall (i) default in the due performance
or observance by it of any term, covenant or agreement contained in Section
8.01(b)(i), 8.06 or 9 or (ii) default in the due performance or observance by it
of any term, covenant or agreement (other than those referred to in
Credit Agreement
<PAGE>
-65-
Sections 10.01 and 10.02 and clause (i) of this Section 10.03) contained in this
Agreement and such default shall continue unremedied for a period of 30 days
after written notice to such Borrower by the Administrative Agent, the Swingline
Bank or any Bank; or
10.04 Default Under Other Agreements. Either Borrower, the Guarantor or
any of their Subsidiaries shall (i) default in any payment of any Indebtedness
in excess of $15,000,000 in the aggregate (other than the Notes) beyond the
period of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the
observance or performance of any agreement or condition relating to any such
Indebtedness (other than the Notes) or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of any such Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause (determined without
regard to whether any notice is required), any such Indebtedness to become due
prior to its stated maturity; or any such Indebtedness of either Borrower, the
Guarantor or any of their Subsidiaries shall be declared to be due and payable,
or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; or
10.05 Bankruptcy, etc. Either Borrower, the Guarantor or any of their
Subsidiaries shall commence a voluntary case concerning itself under the United
States Bankruptcy Code (the "Bankruptcy Code"); or an involuntary case is
commenced against either Borrower, the Guarantor or any of their Subsidiaries,
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of either Borrower, the Guarantor or any of their Subsidiaries,
or either Borrower, the Guarantor or any of their Subsidiaries commences any
other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, insolvency or similar law of any jurisdiction whether now or
hereafter in effect relating to such Borrower, the Guarantor or any of their
Subsidiaries, or there is commenced against such Borrower, the Guarantor or any
of their Subsidiaries any such proceeding which remains undismissed for a period
of 60 days, or either Borrower, the Guarantor or any of their Subsidiaries is
adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or either Borrower, the
Guarantor or any of their Subsidiaries suffers any appointment of any custodian
or the like for it or all or substantially all of its property to continue
undischarged or
Credit Agreement
<PAGE>
-66-
unstayed for a period of 60 days; or either Borrower, the Guarantor or any of
their Subsidiaries makes a general assignment for the benefit of creditors; or
any corporate action is taken by either Borrower, the Guarantor or any of their
Subsidiaries for the purpose of effecting any of the foregoing; provided, that
it shall not constitute an Event of Default under this Agreement to the extent
that any of the foregoing events set forth in this Section 10.05 occurs solely
with respect to any Specified Subsidiary at a time when such Specified
Subsidiary has no material assets, employees or operations; or
10.06 ERISA. Any Plan shall fail to maintain the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or
extension of any amortization period is sought or granted under Section 412 of
the Code, any Plan is, shall have been or is likely to be terminated or the
subject of termination proceeding under ERISA, any Plan shall have an Unfunded
Current Liability, or OFI or any of its Subsidiaries or ERISA Affiliates has
incurred or is likely to incur a liability to or on account of a Plan under
Section 515, 4062, 4063, 4064, 4201 or 4204 of ERISA, and there shall result
from any such event or events the imposition of a Lien upon the assets of the
Borrowers, the Guarantor or any of their Subsidiaries, the granting of a
security interest, or a liability or a material risk of incurring a liability to
the PBGC or a Plan or a trustee appointed under ERISA or a penalty under Section
4971 of the Code, which, in the opinion of the Required Banks, will have a
material adverse effect upon the business, operations, property, assets,
condition (financial or otherwise) or prospects of the Borrowers, the Guarantor,
the Borrowers and their Subsidiaries taken as a whole or the Guarantor and its
Subsidiaries taken as a whole; or
10.07 Guaranty. The Guaranty or any provision thereof shall cease to be in
full force or effect; or the Guarantor shall deny or disaffirm the Guarantor's
obligations under the Guaranty; or the Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Guaranty (other than those referred to in
Sections 7(a)-(g), (1) or (m)); or the Guarantor shall default in the due
performance or observance of any term, covenant or agreement contained in
Sections 7(a)-(g), (1) or (m) of the Guaranty and such default shall continue
unremedied for a period of 30 days after written notice to the Borrower by
either the Administrative Agent or any Bank; or
10.08 Ownership of the Borrowers. The Guarantor shall cease to own,
directly or indirectly, all of the capital stock of the Borrowers free and clear
of all Liens, adverse claims and rights of third parties; or
Credit Agreement
<PAGE>
-67-
10.09 Ownership of the Guarantor. (i) In any twelve month period, 40% or
more of the members of the full Board of Directors of the Guarantor shall have
resigned or been removed or replaced, or (ii) the acquisition, whether directly
or indirectly, by any Person or "group" (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) (other than an employee benefit or
stock ownership plan of the Guarantor) of more than 30% of the voting stock of
the Guarantor shall have occurred; or
10.10 Judgments. One or more judgments or decrees shall be entered against
either of the Borrowers, the Guarantor or any of their Subsidiaries involving in
the aggregate for the Borrowers, the Guarantor and their Subsidiaries a
liability (not paid or fully covered by insurance) of $15,000,000 or more, and
all such judgments or decrees shall not have been vacated, discharged or stayed
or bonded pending appeal within 60 days after the entry thereof; provided, that
it shall not constitute an Event of Default under this Agreement to the extent
that any of the foregoing events set forth in this Section 10.10 occurs solely
with respect to any Specified Subsidiary at a time when such Specified
Subsidiary has no material assets, employees or operations; or
10.11 Fundamental Change of Guarantor. A Fundamental Change (as such term
is defined in the Indenture dated as of September 1, 1993, between the Guarantor
and Morgan Trust Company of New York, as trustee, whether or not such Indenture
remains in effect) shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent may and, upon the written
request of the Required Banks (or, in the case of clause (ii) below, the
Required Banks or the Swingline Bank), shall, by written notice to the
Borrowers, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent, the Letter of Credit Issuer, any Bank, the
Swingline Bank or the holder of any Note to enforce its claims against the
Borrowers (provided that, if an Event of Default specified in Section 10.05
shall occur with respect to the Borrowers, the result which would occur upon the
giving of written notice by the Administrative Agent to the Borrowers as
specified in clauses (i), (ii) and (iii) below shall occur automatically without
the giving of any such notice): (i) declare the Total Commitment terminated,
whereupon the Commitment of each Bank to make Loans hereunder and the commitment
of the Letter of Credit Issuer to maintain the Letter of Credit shall forthwith
terminate immediately (subject in the case of the Letter of Credit to Section
3.01(f)) and any Facility Fees, Letter of Credit Fees, Letter of Credit Usage
Fees and all other fees shall forthwith become due and payable without any
Credit Agreement
<PAGE>
-68-
other notice of any kind; (ii) declare the Swingline Commitment terminated,
whereupon the Swingline Commitment of the Swingline Bank to make Swingline Loans
hereunder shall terminate immediately (provided that the foregoing provisions of
this clause (ii) shall be without prejudice to the obligations of the Banks
under Section 2.14 hereof); (iii) declare the principal of and any accrued
interest in respect of all Loans and the Notes and all obligations owing
hereunder and thereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers; and/or (iv) direct the
Borrowers to pay (and the Borrowers agree that upon receipt of such notice (or
upon the occurrence of an Event of Default specified in Section 10.05) it will
pay) to the Administrative Agent at the Administrative Agent's Payment Office
such amount of cash, to be held as security by the Administrative Agent, as is
equal to the Face Amount of any outstanding Commercial Paper.
Section 11. The Administrative Agent ; Agents.
11.01 Appointment. The Banks (which for purposes of this Section 11.01
includes the Swingline Bank) hereby designate ABN AMRO as Administrative Agent,
to act as specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Administrative Agent to take
such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder by or through its officers, directors, agents or employees.
11.02 Nature of Duties. The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and the
Guaranty. Neither the Administrative Agent nor any of its officers, directors,
agents or employees shall be liable for any action taken or omitted by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this Agreement or
any other Credit Document a fiduciary relationship in respect of any Bank, the
Swingline Bank or the holder of any Note; and nothing in this Agreement or any
other Credit Document, expressed or implied, is intended to or shall be so
construed as to impose upon the Administrative Agent any obligations in
Credit Agreement
<PAGE>
-69-
respect of this Agreement or any other Credit Document except as expressly set
forth herein.
11.03 Lack of Reliance on the Administrative Agent. Independently and
without reliance upon the Administrative Agent, each Bank (which for purposes of
this Section 11.03 includes the Swingline Bank) and the holder of each Note, to
the extent it deems appropriate, has made and shall continue to make its own
independent investigation and appraisal of the financial condition and affairs
of the Borrowers and the Guarantor in connection with the making and the
continuance of the Loans and the taking or not taking of any action in
connection herewith and, except as expressly provided in this Agreement, the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank or the holder of any Note with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.
The Administrative Agent shall not be responsible to any Bank or the holder of
any Note for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Credit Document or the financial condition of the
Borrowers or the Guarantor or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Credit Document, or the financial condition of the
Borrowers or the Guarantor or the existence or possible existence of any Default
or Event of Default.
11.04 Certain Rights of the Administrative Agent. If the Administrative
Agent shall request instructions from the Required Banks with respect to any act
or action (including failure to act) in connection with this Agreement or any
other Credit Document, the Administrative Agent shall be entitled to refrain
from such act or taking such action unless and until the Administrative Agent
shall have received instructions from the Required Banks; and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Bank (which for purposes of this Section
11.04 includes the Swingline Bank) or the holder of any Note shall have any
right of action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required Banks.
11.05 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon
Credit Agreement
<PAGE>
-70-
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cablegram, radiogram, order or other document or
telephone message signed, sent or made by any Person that the Administrative
Agent believed to be the proper Person, and, with respect to all legal matters
pertaining to this Agreement and any other Credit Document and its duties
hereunder and thereunder, upon advice of counsel selected by it.
11.06 Indemnification. To the extent the Administrative Agent is not
reimbursed by the Borrowers, the Banks will reimburse the Administrative Agent
on demand, in proportion to their respective percentages used in determining the
Required Banks at such time, for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses (including, without limitation, attorneys' fees and expenses) or
disbursements of whatsoever kind or nature which may be imposed on, asserted
against or incurred by the Administrative Agent in performing its duties
hereunder or under any other Credit Document, or in any way relating to or
arising out of this Agreement or any other Credit Document; provided that no
Bank shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The obligations of the Banks under this Section 11.06 shall survive
the termination of this Agreement.
11.07 The Administrative Agent in its Individual Capacity. The
Administrative Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with the Borrowers or any
Affiliate of the Borrowers as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Borrowers for
services in connection with this Agreement and otherwise without having to
account for the same to the Banks or to the Swingline Bank.
11.08 Holders. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Administrative Agent. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may be,
of such Note or of any Note or Notes issued in exchange therefor.
11.09 Resignation By the Administrative Agent. (a) The Administrative
Agent may resign from the performance of
Credit Agreement
<PAGE>
-71-
all its functions and duties hereunder and/or under the other Credit Documents
at any time by giving 15 Business Days' prior written notice to the Borrower,
the Banks and the Swingline Bank. Such resignation shall take effect upon the
appointment of a successor Administrative Agent pursuant to clauses (b) and (c)
below or as otherwise provided below.
(b) Upon any such notice of resignation, the Banks shall appoint a
successor Administrative Agent hereunder or thereunder who shall be a commercial
bank or trust company reasonably acceptable to the Borrowers.
(c) If a successor Administrative Agent shall not have been so appointed
within such 15 Business Day period, the Administrative Agent, with the consent
of the Borrowers, may then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time, if any,
as the Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to
clause (b) or (c) above by the 20th Business Day after the date such notice of
resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Banks shall thereafter perform all
the duties of the Administrative Agent hereunder and/or under any other Credit
Document until such time, if any, as the Banks appoint a successor
Administrative Agent as provided above.
11.10 The Co-Arrangers; Syndication Agent; Managing Banks. The
Co-Arrangers, the Syndication Agent and the Managing Banks referred to on the
cover page of this Agreement shall have no rights or obligations under this
Agreement except (i) in the case of ABN AMRO, in its capacity as the Issuing
Bank, a Managing Bank and a "Bank" and the "Swingline Bank" hereunder and (ii)
in the case of Chase, in its capacity as a Managing Bank and a "Bank" hereunder.
11.11 Replacement. The Guarantor may, with the consent of the Required
Banks, replace the Bank which is acting in the capacity of Administrative Agent
or either of the Banks which are acting in the capacity as Managing Banks, but
solely with respect to such capacities; provided that if the Guarantor replaces
ABN AMRO in its capacity as Administrative Agent, the Guarantor will, at the
request of ABN AMRO, use its best efforts to replace ABN AMRO in its capacity as
Letter of Credit Issuer.
Credit Agreement
<PAGE>
-72-
Section 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrowers shall: (i) whether or not
the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses (x) of the Administrative Agent (including,
without limitation, the fees and disbursements of Milbank, Tweed, Hadley &
McCloy) in connection with the preparation, execution and delivery of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein and any amendment, waiver or consent relating
hereto or thereto and (y) of the Administrative Agent, the Letter of Credit
Issuer, the Swingline Bank and each of the Banks in connection with the
enforcement of this Agreement and the other Credit Documents and the documents
and instruments referred to herein and therein (including, without limitation,
the fees and disbursements of counsel for the Administrative Agent, for the
Letter of Credit Issuer, for the Swingline Bank and for each of the Banks); (ii)
pay and hold each of the Banks, the Swingline Bank and the Letter of Credit
Issuer harmless from and against any and all present and future stamp and other
similar taxes with respect to the foregoing matters and save each of the Banks,
the Swingline Bank and the Letter of Credit Issuer harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank, the Swingline Bank or the
Letter of Credit Issuer) to pay such taxes; and (iii) indemnify each of the
Administrative Agent, the Letter of Credit Issuer, the Swingline Bank and each
Bank, its officers, directors, employees, representatives and agents from and
hold each of them harmless against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, suits, costs, expenses and
disbursements incurred by any of them as a result of, or arising out of, or in
any way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not the Administrative Agent, the Swingline Bank, the
Letter of Credit Issuer or any Bank is a party thereto) related to the entering
into and/or performance of this Agreement or any other Credit Document, the
issuance or maintenance of the Letter of Credit or the participation therein or
the use or proposed use of the proceeds of any Loans or the Commercial Paper
hereunder or the consummation of any transactions contemplated herein or in any
other Credit Document, including, without limitation, the fees and disbursements
of counsel incurred in connection with any such investigation, litigation or
other proceeding (but excluding any such liabilities, obligations, losses, etc.,
to the extent incurred by reason of the gross negligence or willful misconduct
of the Person to be indemnified).
12.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not
Credit Agreement
<PAGE>
-73-
by way of limitation of any such rights, upon the occurrence of an Event of
Default, each Relevant Institution is hereby authorized at any time or from time
to time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness at any time held or owing by such Relevant
Institution (including, without limitation by branches and agencies of such
Relevant Institution wherever located) to or for the credit or the account of
the Borrowers against and on account of the Obligations and liabilities of the
Borrowers to such Relevant Institution under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Relevant Institution (if a "Bank") pursuant to
Section 12.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Relevant Institution shall have made any demand hereunder
and although said Obligations, liabilities or claims, or any of them, shall be
contingent or unmatured.
12.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrowers, at their
respective addresses specified opposite their signatures below; if to any Bank,
at its Base Rate Lending Office specified opposite its name on Schedule II; if
to the Swingline Bank, at its Swingline Lending Office specified opposite its
name on Schedule II; if to the Administrative Agent or the Letter of Credit
Issuer, at its Notice Office; if to the Depositary, at its address for notices
provided for or pursuant to the Depositary Agreement; or, as to the Borrowers,
the Administrative Agent or the Letter of Credit Issuer, at such other address
as shall be designated by such party in a written notice to the other parties
hereto and, as to each other party, at such other address as shall be designated
by such party in a written notice to the Borrowers, the Administrative Agent,
the Swingline Bank and the Letter of Credit Issuer. All such notices and
communications shall, when mailed, telegraphed, telexed, telecopied, or cabled
or sent by overnight courier, be effective when deposited in the mails,
delivered to the telegraph company, cable company or overnight courier, as the
case may be, or sent by telex or telecopier, except that notices and
communications to the Administrative Agent, the Swingline Bank, the Depositary
or the Letter of Credit Issuer, and notices and communications sent by mail to
any party, shall not be effective until received.
Credit Agreement
<PAGE>
-74-
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, that the Borrowers may not
assign or transfer any of its rights or obligations hereunder without the prior
written consent of the Banks (which, for purposes of this Section 12.04(a)
includes the Swingline Bank) and, provided further, that, although any Bank may
transfer, assign or grant participations in its rights hereunder and under the
Notes, such Bank shall remain a "Bank" for all purposes hereunder (and may not
transfer or assign its Commitment hereunder except as provided in Section
12.04(b)) and the transferee, assignee or participant, as the case may be, shall
not constitute a "Bank" hereunder and, provided further, that no Bank shall
transfer, grant or assign any participation under which the participant shall
have rights to approve any amendment to or waiver of this Agreement except to
the extent such amendment or waiver requires the consent of 100% of the Banks,
as provided in Section 12.13. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Credit Documents (the participant's rights against such Bank in respect of such
participation to be those set forth in the agreement executed by such Bank in
favor of the participant relating thereto) and all amounts payable by the
Borrowers hereunder shall be determined as if such Bank had not sold such
participation, except that the participant shall be entitled to the benefits of
Sections 2.10, 2.11 and 5.04 of this Agreement to the extent that such Bank
would be entitled to such benefits if the participation had not been
transferred, granted or assigned. Promptly following the consummation of any
participation pursuant to this Section 12.04(a), the Bank entering into such
participation shall promptly notify the Borrowers thereof.
(b) Notwithstanding the foregoing, any Bank may, with prior written
consent of the Guarantor (whose consent shall not be unreasonably withheld), the
Managing Banks (whose consent shall not be unreasonably withheld), the Swingline
Bank and the Letter of Credit Issuer, assign all, or if less than all, a portion
equal to at least $5,000,000 in the aggregate of its Commitment (and related
outstanding principal amount of Loans) hereunder to one or more commercial banks
or other financial institutions engaged in the business of lending money or
acquiring debt securities, provided that (i) at such time Schedule I hereto and
Annex A to the Participation Agreement shall be deemed modified to reflect the
Commitments and Participation Percentages of such new Bank and of the existing
Banks, (ii) upon surrender of the old Notes, new Notes will be issued, at the
expense of the Borrower that issued the Note, to such new Bank and to the
assigning Bank, such new Notes to be in conformity with the requirements of
Section 2.05 (with appropriate modifications) to the extent needed to reflect
the
Credit Agreement
<PAGE>
-75-
revised Commitments and (iii) the Administrative Agent shall receive at the time
of each such assignment, from the assigning or the assignee Bank, the payment of
a non-refundable assignment fee of $3,000. To the extent of any assignment
pursuant to this Section 12.04(b), the assigning Bank shall be relieved of its
obligations hereunder and under the Participation Agreement with respect to its
assigned Commitments. To the extent that an assignment of all or any portion of
a Bank's Commitments and related outstanding Obligations pursuant to this
Section 12.04(b) would, at the time of such assignment, result in increased
costs under Section 2.10, 2.11 or 5.04 greater than those being charged by the
respective assigning Bank prior to such assignment, then the Borrowers shall not
be obligated to pay such greater increased costs (although the Borrowers shall
be obligated to pay any other increased costs of the type described above
resulting from changes after the date of the respective assignments).
(c) Notwithstanding the foregoing, the Swingline Bank may, with prior
written consent of the Guarantor and the Managing Banks, assign all (but not
less than all) of the Swingline Commitment, its Swingline Loans and its
Swingline Notes to a commercial bank or other financial institution, provided
that upon surrender of the old Swingline Notes, new Swingline Notes will be
issued, at the expense of the Borrower that issued the Note, to such new
Swingline Bank, such new Swingline Notes to be in conformity with the
requirements of Section 2.05 (with appropriate modifications) to the extent
needed to reflect the assignment. To the extent of any assignment pursuant to
this Section 12.04(c), the assigning Swingline Bank shall be relieved of its
obligations hereunder with respect to its assigned Swingline Commitments.
(d) Notwithstanding anything to the contrary contained herein, each Bank
and the Swingline Bank shall be entitled to pledge its Loans and/or Notes
hereunder to a Federal Reserve Bank in support of borrowings made by such Bank
or Swingline Bank, as the case may be, from such Federal Reserve Bank.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
the Administrative Agent, the Letter of Credit Issuer, the Swingline Bank or any
Bank or the holder of any Note in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Borrowers, the Administrative Agent, the Letter of Credit Issuer, the
Swingline Bank or any Bank or the holder of any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights, powers and remedies herein or in any other
Credit Document expressly
Credit Agreement
<PAGE>
-76-
provided are cumulative and not exclusive of any rights, powers or remedies
which the Administrative Agent, the Letter of Credit Issuer, the Swingline Bank
or any Bank or the holder of any Note would otherwise have. No notice to or
demand on the Borrowers in any case shall entitle the Borrowers to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent, the Letter of Credit Issuer,
the Swingline Bank or any Bank or the holder of any Note to any other or further
action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that promptly
after its receipt of each payment from or on behalf of either Borrower in
respect of any Obligations of such Borrower hereunder, it shall distribute such
payment to the Banks and the Swingline Bank pro rata based upon their respective
shares, if any, of the Obligations with respect to which such payment was
received.
(b) Each of the Banks (which for purposes of this Section 12.06(b)
includes the Swingline Bank) agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Fees or Letter of Credit Fees, of a
sum which with respect to the related sum or sums received by other Banks is in
a greater proportion than the total amount of such Obligation then owed and due
to such Bank bears to the total amount of such Obligation then owed and due to
all of the Banks immediately prior to such receipt, then such Bank receiving
such excess payment shall purchase for cash without recourse or warranty from
the other Banks an interest in the Obligations of the Borrowers to such Banks in
such amount as shall result in a proportional participation by all the Banks in
such amount; provided, however, that if all or any portion of such excess amount
is thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. All computations of interest, Facility
Fees, Letter of Credit Usage Fees, Letter of Credit Fees and other Fees
hereunder shall be made on the basis of a year of 360 days (365/366 days in the
case of interest on Base Rate Loans) for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such
interest, Facility Fees, Letter of Credit Usage Fees, Letter of Credit Facility
Fees or other Fees are payable. Notwithstanding the foregoing, for each day that
interest is
Credit Agreement
<PAGE>
-77-
calculated by reference to the Federal Funds Rate, such interest shall be
computed on the basis of a year of 360 days.
12.08 Governing Law; Submission to Jurisdiction; Venue. (a) This Agreement
and the other Credit Documents and the rights and obligations of the parties
hereunder and thereunder shall be construed in accordance with and be governed
by the law of the State of New York. Any legal action or proceeding against the
Borrowers with respect to this Agreement or any other Credit Document may be
brought in the courts of the State of New York or of the United States for the
Southern District of New York, and, by execution and delivery of this Agreement,
each Borrower hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Borrower agrees that if at any time its principal place of business
is not in the City and State of New York, it will irrevocably designate, appoint
and empower an agent for purposes of this Section, in the City and State of New
York, as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee, appointee and agent shall
cease to be available to act as such, each Borrower agrees to designate a new
designee, appointee and agent in New York City on the terms and for the purposes
of this provision satisfactory to the Administrative Agent. Each Borrower
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to such Borrower at
its address set forth opposite its signature below, such service to become
effective 30 days after such mailing. Nothing herein shall affect the right of
the Administrative Agent, any Bank or the holder of any Note to serve process in
any other manner permitted by law or to commence legal proceedings or otherwise
proceed against the Borrowers in any other jurisdiction.
(b) Each Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
12.09 Payment Denominations. (a) Except to the extent provided in
paragraph (b) below, all payments of principal and interest on any Loan and
other amounts to be paid by any Borrower
Credit Agreement
<PAGE>
-78-
under this Agreement shall be made in the Currency in which such Loan or other
amount is denominated (the "Contract Currency"). The obligation of the Borrowers
to make payment in the Contract Currency of the principal of and interest on the
Notes and any other amounts due hereunder or under any other Credit Document to
the Payment Office of the Administrative Agent as provided in Section 5.03 shall
not be discharged or satisfied by any tender, or any recovery pursuant to any
judgment, which is expressed in or converted into any currency other than the
Contract Currency, except to the extent such tender or recovery shall result in
the actual receipt by the Administrative Agent at its Payment Office on behalf
of the Banks, the Swingline Bank or holders of the Notes of the full amount of
the Contract Currency expressed to be payable in respect of the principal of and
interest on the Notes and all other amounts due hereunder or under any other
Credit Document. The obligation of the Borrowers to make payments in the
Contract Currency as aforesaid shall be enforceable as an alternative or
additional cause of action for the purpose of recovery in the Contract Currency
of the amount, if any, by which such actual receipt shall fall short of the full
amount of the Contract Currency expressed to be payable in respect of the
principal of and interest on the Notes and any other amounts due under any other
Credit Document, and shall not be affected by judgment being obtained for any
other sums due under this Agreement or under any other Credit Document.
(b) Notwithstanding the foregoing, if any Borrower shall fail to pay
within two Business Days of the due date thereof any principal of any Loan when
due (whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), the unpaid portion of such Loan shall, if such Loan is not
denominated in Dollars, automatically be redenominated in Dollars on the date
three Business Days after the due date thereof (or, if such date is a day other
than the last day of the Interest Period thereof, on the last day of such
Interest Period) in an amount equal to the Dollar Equivalent thereof on the date
of such redenomination and such principal shall be payable on demand; and if any
Borrower shall fail to pay within three Business Days of the due date thereof
any interest on any Loan that is not denominated in Dollars, such interest shall
automatically be redenominated in Dollars on the date four Business Days after
the due date thereof in an amount equal to the Dollar Equivalent thereof on the
date of such redenomination and such interest shall be payable on demand.
12.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
Credit Agreement
<PAGE>
-79-
executed by all the parties hereto shall be lodged with the Borrowers and the
Administrative Agent.
12.11 [Intentionally Omitted]
12.12 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.13 Amendment or Waiver. None of this Agreement, any other Credit
Document or the Letter of Credit nor any terms hereof or thereof may be changed,
waived, discharged or terminated unless such change, waiver, discharge or
termination is in writing signed by the Required Banks and the Administrative
Agent; provided, however, that: (a) no such change, waiver, discharge or
termination shall, without the consent of each Bank, the Swingline Bank and the
Letter of Credit Issuer, (i) extend the Commitment Termination Date (except as
provided in Section 4.03) or the final maturity of any Loan, Note, or Unpaid
Drawing or reduce the rate or extend the time of payment of interest or Fees
thereon, or reduce the principal amount thereof, or increase the Commitment of
any Bank (except as provided in Section 4.04) over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or
of a mandatory reduction in the Total Commitment shall not constitute a change
in the terms of any Commitment of any Bank), (ii) release the Guarantor from its
obligations under the Guaranty, (iii) amend, modify or waive any provision of
this Section 12.13 or Section 11.06, 12.01, 12.02, 12.04, 12.06 or 12.07, (iv)
reduce the percentage specified in the definition of Required Banks, (v) consent
to the assignment or transfer by the Borrowers of any of their rights and
obligations under this Agreement or (vi) extend the expiration date of, or
increase the Stated Amount of, the Letter of Credit (except as provided in
Section 3.01(k)); and (b) any modification or supplement of any provision hereof
relating to the rights or obligations of the Swingline Bank shall require the
consent of the Swingline Bank.
Notwithstanding anything to the contrary contained in this Agreement, no
material change or amendment to this Agreement shall be effective until the
Borrowers or the Administrative Agent shall have notified Moody's and S&P in
writing of such change or amendment.
12.14 Survival. All indemnities set forth herein including, without
limitation, in Sections 2.10, 2.11, 5.04, 11.06 and 12.01 shall survive the
execution and delivery of this Agreement and the Notes and the making and
repayment of the Loans.
Credit Agreement
<PAGE>
-80-
12.15 Domicile of Loans. Subject to Section 5.04(b), but notwithstanding
Section 12.04(b), each Bank (which for purposes of this Section 12.15 includes
the Swingline Bank) may transfer and carry its Loans at, to or for the account
of any office, Subsidiary or Affiliate of such Bank; provided, that each Bank
will use its best efforts not to transfer its Loans to an Applicable Lending
Office which would give rise to the operation of Section 2.10(a)(ii) or (iii) or
2.10(c) unless in its sole discretion such Bank finds that such nontransfer
would be disadvantageous to it.
12.16 Limitation on Additional Amounts, etc. Notwithstanding anything to
the contrary contained in Sections 2.10, 2.11 or 5.04 of this Agreement, unless
a Bank gives notice to the Borrowers that they are obligated to pay an amount
under any such Section within one year after the later of (x) the date such Bank
incurs the respective increased costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital or
(y) 60 days after the date such Bank has actual knowledge of its incurrence of
the respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such Bank
shall only be entitled to be compensated for such amount by the Borrowers
pursuant to said Section 2.10, 2.11 or 5.04, as the case may be, to the extent
the costs, Taxes, loss, expense or liability, reduction in amounts received or
receivable or reduction in return on capital are incurred or suffered on or
after the date which occurs one year prior to such Bank giving notice to the
Borrowers that it is obligated to pay the respective amounts pursuant to said
Section 2.10, 2.11 or 5.04, as the case may be. This Section 12.16 shall have no
applicability to any Section of this Agreement other than said Section 2.10,
2.11 and 5.04.
Credit Agreement
<PAGE>
-81-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address:
437 Madison Avenue OMNICOM FINANCE INC.
New York, New York 10022
By: /s/ Denis Streiff
-----------------------------
Name: Denis Streiff
Title: Assistant Treasurer
Credit Agreement
<PAGE>
-82-
OMNICOM FINANCE LIMITED
By: /s/ Barry J. Wagner
-----------------------------
Name: Barry J. Wagner
Title: Director
By: /s/ Dennis E. Hewitt
-----------------------------
Name: Dennis E. Hewitt
Title: Director
Credit Agreement
<PAGE>
-83-
ABN AMRO BANK N.V., NEW
YORK BRANCH, as Swingline
Bank, as Letter of Credit
Issue and as
Administrative Agent
By: /s/ Frances Logan
-----------------------------
Name: Frances Logan
Title: Group Vice President
By: /s/ Thomas T. Rogers
-----------------------------
Name: Thomas T. Rogers
Title: Vice President
Credit Agreement
<PAGE>
-84-
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ Frances Logan
-----------------------------
Name: Frances Logan
Title: Group Vice President
By: /s/ Thomas T. Rogers
-----------------------------
Name: Thomas T. Rogers
Title: Vice President
Credit Agreement
<PAGE>
-85-
THE CHASE MANHATTAN BANK
By: /s/ Ann B. Kerns
-----------------------------
Name: Ann B. Kerns
Title: Vice President
Credit Agreement
<PAGE>
-86-
BANK OF AMERICA NT&SA
By: /s/ Carl F. Salas
-----------------------------
Name: Carl F. Salas
Title: Vice President
Credit Agreement
<PAGE>
-87-
THE BANK OF NEW YORK
By: /s/ Kenneth P. Sneider, Jr.
-----------------------------
Name: Kenneth P. Sneider, Jr.
Title: Vice President
Credit Agreement
<PAGE>
-88-
CITIBANK, N.A.
By: /s/ Steven R. Victorin
-----------------------------
Name: Steven R. Victorin
Title: Attorney-In-Fact
Credit Agreement
<PAGE>
-89-
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ William E. Lambert
-----------------------------
Name: William E. Lambert
Title: Assistant Vice President
By: /s/ Brian Haughney
-----------------------------
Name: Brian Haughney
Title: Assistant Treasurer
Credit Agreement
<PAGE>
-90-
ISTITUTO BANCARIO SAN PAOLO
DI TORINO S.P.A.
By: /s/ Wendell Jones
-----------------------------
Name: Wendell Jones
Title: Vice President
By: /s/ Alessandro Guzzo
-----------------------------
Name: Alessandro Guzzo
Title: Vice President
Credit Agreement
<PAGE>
-91-
MARINE MIDLAND BANK
By: /s/ William M. Holland
-----------------------------
Name: William M. Holland
Title: Vice President
Credit Agreement
<PAGE>
-92-
MELLON BANK, N.A.
By: /s/ David N. Smith
-----------------------------
Name: David N. Smith
Title: Vice President
Credit Agreement
<PAGE>
-93-
THE NORTHERN TRUST COMPANY
By: /s/ Michelle D. Griffin
-----------------------------
Name: Michelle D. Griffin
Title: Vice President
Credit Agreement
<PAGE>
-94-
SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Elaine Khalil
-----------------------------
Name: Elaine Khalil
Title: Vice President
Credit Agreement
<PAGE>
-95-
WACHOVIA BANK, N.A.
By: /s/ William C. Christie
-----------------------------
Name: William C. Christie
Title: Senior Vice President
Credit Agreement
<PAGE>
-96-
WESTPAC BANKING CORPORATION
By: /s/ Brad Masters
-----------------------------
Name: Brad Masters
Title: Vice President
Credit Agreement
<PAGE>
-97-
SCHEDULE I
Schedule of Commitments
Name of Bank Commitment
------------ ----------
ABN AMRO BANK N.V., $ 60,000,000
NEW YORK BRANCH
THE CHASE MANHATTAN $ 60,000,000
BANK
BANK OF AMERICA NT&SA $ 60,000,000
MARINE MIDLAND BANK $ 60,000,000
WACHOVIA BANK, N.A $ 60,000,000
DRESDNER BANK AG,
NEW YORK AND GRAND CAYMAN
ISLAND BRANCHES $ 35,000,000
THE NORTHERN TRUST COMPANY $ 35,000,000
MELLON BANK, N.A $ 30,000,000
BANK OF NEW YORK $ 20,000,000
CITIBANK, N.A $ 20,000,000
SAN PAOLO BANK,
NEW YORK BRANCH $ 20,000,000
SOCIETE GENERALE,
NEW YORK BRANCH $ 20,000,000
WESTPAC BANKING
CORPORATION $ 20,000,000
------------
$500,000,000
============
Credit Agreement
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Base Rate Competitive Bid Swingline
Name of Bank Lending Office Lending Office Lending Office
- ------------ -------------- -------------- --------------
<S> <C> <C> <C>
ABN AMRO BANK N.V., Same as Name of Bank Same as Name of Bank Same as Name of Bank
New York Branch
For Notices:
1325 Avenue of the Americas
9th Floor
New York, New York 10019
Attention: Linda Boardman
THE CHASE MANHATTAN BANK Same as Name of Bank Same as Name of Bank
One Chase Manhattan Plaza
New York, New York 10081
Attention: Bruce Langenkamp
BANK OF AMERICA NT&SA Bank of America Illinois Same as Base Rate
335 Madison Avenue 231 South LaSalle Street Lending Office
New York, New York 10017 Chicago, Illinois 60697
Attention: Matthew Flynn Attention: Bonnie
Ptaszkowski
THE BANK OF NEW YORK Same as Name of Bank
One Wall Street
22 South
New York, New York 10286
Attention: Georgia Pankita
CITIBANK, N.A. Citibank, N.A. Same as Base Rate
For Notices: 399 Park Avenue Lending Office
Citicorp 8th Floor, Zone 5
One Court Square New York, New York 10043
Long Island City, NY 11120 Attention: Eric Huttner
7th Floor, Zone 3
Attention: Patricia Ganes
DRESDNER BANK AG, Same as Name of Bank Same as Name of Bank
New York Branch
75 Wall Street
New York, New York 10005
Attention: Bill Lambert
</TABLE>
Credit Agreement
<PAGE>
SCHEDULE II
Page 2
<TABLE>
<CAPTION>
Base Rate Competitive Bid Swingline
Name of Bank Lending Office Lending Office Lending Office
- ------------ -------------- -------------- --------------
<S> <C> <C> <C>
ISTITUTO BANCARIO SAN PAOLO Same as Name of Bank Same as Name of Bank
DI TORINO, S.P.A.
245 Park Avenue
New York, New York 10167
Attention: Wendell Jones
MARINE MIDLAND BANK Marine Midland Bank Same as Base Rate
140 Broadway, 4th Floor One MM Center Lending Office
New York, New York 10005 Buffalo, New York 14203
Attention: Diane Zieske Attention: Beth Weiss
Agency Servicing
MELLON BANK, N.A. Same as Name of Bank Same as Name of Bank
Market Street
7th Floor
Philadelphia, PA 19103
Attention: Payton Latimer
THE NORTHERN TRUST COMPANY Same as Name of Bank Same as Name of Bank
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Michelle Griffin
SOCIETE GENERALE, Same as Name of Bank Same as Name of Bank
NEW YORK BRANCH
1221 Avenue of the Americas
New York, New York 10020
Attention: Elaine Khalil
WACHOVIA BANK, N.A. Same as Name of Bank Same as Name of Bank
191 Peachtree St. N.E.
GA 370 - 28th Floor
Atlanta, Georgia 30303
Attention: William C. Christie
WESTPAC BANKING CORPORATION Same as Name of Bank Same as Name of Bank
575 Fifth Avenue
New York, New York 10017
Attention: Brad Masters
</TABLE>
<PAGE>
SCHEDULE III
Subsidiaries
None
<PAGE>
EXHIBIT A-1
NOTICE OF BORROWING
[Date]
ABN AMRO Bank N.V., New York Branch
as Administrative Agent for the Banks
party to the Credit
Agreement referred to below
500 Park Avenue
New York, New York 10022
Attention: __________________________
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.][Omnicom Finance Limited], refers
to the Credit Agreement dated as of May 10, 1996, amended and restated as of
February 20, 1998 (as amended from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined), among the Borrowers
referred to therein (including the undersigned), certain Banks party thereto and
ABN AMRO Bank N.V., New York Branch, as maker of Swingline Loans referred to
therein, as Letter of Credit Issuer and as Administrative Agent for such Banks
and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit
Agreement, that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 2.03 of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ___________, 19_.
(ii) The aggregate principal amount and Currency of the Proposed Borrowing
is _________________.
(iii) The Proposed Borrowing is to consist of [Base Rate Loans]
[Eurocurrency Rate Loans].
(1)[(iv) The Interest Period for the Proposed Borrowing is ____ months.]
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
[(A) The representations and warranties contained in Section 7 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the
- ----------
(1) To be included for a Proposed Borrowing of Eurocurrency Rate Loans.
<PAGE>
EXHIBIT A-1
Page 2
application of the proceeds thereof, as though made on and as of such
date.]
[(B) No Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of
the proceeds thereof.]
[(C) The proceeds of the Proposed Borrowing will be applied
exclusively to the payment of Unpaid Drawings incurred on the date of such
Proposed Borrowing.]
[(D) The Proposed Borrowing is of a Eurocurrency Rate Loan which, if
given effect, will not increase the aggregate amount of outstanding
Eurocurrency Rate Loans of any Bank.]
Very truly yours,
[OMNICOM FINANCE INC.][OMNICOM FINANCE
LIMITED]
By____________________
Title:
- ------------------------
Both clauses (A) and (B) or clause (C) or clause (D) must be included; provided,
that clause (B) must be included with clause (C) if the Proposed Borrowing is of
a Eurocurrency Rate Loan.
<PAGE>
EXHIBIT A-2
NOTICE OF SWINGLINE BORROWING
[Date]
ABN AMRO Bank N.V., New York Branch
as Administrative Agent for the Banks
party to the Credit
Agreement referred to below
500 Park Avenue
New York, New York 10022
Attention: __________________________
Ladies and Gentlemen:
The undersigned, [Omnicom Finance Inc.][Omnicom Finance Limited], refers
to the Credit Agreement dated as of May 10, 1996, amended and restated as of
February 20, 1998 (as amended from time to time, the "Credit Agreement", the
terms defined therein being used herein as therein defined), among the Borrowers
referred to therein (including the undersigned), certain Banks party thereto and
ABN AMRO Bank N.V., New York Branch, as maker of Swingline Loans referred to
therein, as Letter of Credit Issuer and as Administrative Agent for such Banks
and hereby gives you notice, irrevocably, pursuant to Section 2.14 of the Credit
Agreement, that the undersigned hereby requests a Swingline Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Swingline Borrowing (the "Proposed Swingline Borrowing") as
required by Section 2.14 of the Credit Agreement:
(i) The Business Day of the Proposed Swingline Borrowing is ___________,
19__.
(ii) The aggregate principal amount of the Proposed Swingline Borrowing is
$_________________.
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the Proposed Borrowing:
(A) The representations and warranties contained in Section 7 of the
Credit Agreement are correct, before and after giving effect to the
Proposed Swingline Borrowing and to the application of the proceeds
thereof, as though made on and as of such date.
(B) No Default or Event of Default has occurred and is continuing,
or would result from such Proposed Swingline Borrowing or from the
application of the proceeds thereof.
<PAGE>
EXHIBIT B-1
Page 2
Very truly yours,
[OMNICOM FINANCE INC.][OMNICOM FINANCE
LIMITED]
By____________________
Title:
<PAGE>
EXHIBIT B-1
SYNDICATED NOTE
February 20, 1998
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of __________________ (the "Bank"), for account of
its respective Applicable Lending Offices provided for by the Credit Agreement
referred to below, at the Payment Office of the Administrative Agent for the
respective Currencies of the Syndicated Loans evidenced hereby, such amount as
shall equal the aggregate unpaid principal amount of each Syndicated Loan made
by the Bank to the Borrower under the Credit Agreement, in the Currency in which
such Loan is denominated and in immediately available funds, on the last day of
the Interest Period for each Eurocurrency Rate Loan and on the Commitment
Termination Date for each Base Rate Loan.
The Borrower also promises to pay interest on the unpaid principal amount
of each such Syndicated Loan, at such account, in like money and funds, from the
date such Syndicated Loan is made until paid in full, at the rates per annum and
on the dates provided in the Credit Agreement.
This Note is one of the Syndicated Notes referred to in the Credit
Agreement dated as of May 10, 1996, amended and restated as of February 20,
1998, among the "Borrowers" referred to therein (including the Borrower), the
Bank, the other financial institutions party thereto and ABN AMRO Bank N.V., New
York Branch, as maker of Swingline Loans referred to therein, as Letter of
Credit Issuer and as Administrative Agent (as amended, modified and supplemented
and in effect from time to time, the "Credit Agreement") and is entitled to the
benefits thereof. Terms used but not defined in this Note have the respective
meanings assigned to them in the Credit Agreement.
<PAGE>
EXHIBIT B-1
Page 2
This Note is guaranteed pursuant to the Guaranty (as defined in the Credit
Agreement). As provided in the Credit Agreement, this Note is subject to
voluntary and mandatory prepayment, in whole or in part, and Syndicated Loans
may be converted from one Type (as defined in the Credit Agreement) into another
Type to the extent provided in the Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
This Note shall be construed in accordance with and governed by the law of
the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By_________________________
Title:
<PAGE>
EXHIBIT B-2
[Intentionally Omitted]
<PAGE>
EXHIBIT B-3
COMPETITIVE BID NOTE
New York, New York
____________, 19__
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of _____________________ (the "Bank"), for the
account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below), in lawful money of the United States of America in
immediately available funds, at the office of ABN AMRO Bank N.V., New York
Branch (the "Administrative Agent") located at 500 Park Avenue, New York, New
York 10022 the unpaid principal amount of each Competitive Bid Loans (as defined
in the Credit Agreement) made by the Bank to the Borrower pursuant to the Credit
Agreement on the day such Competitive Bid Loan is required to be paid in full
(as provided in the Credit Agreement).
The Borrower promises also to pay interest on the unpaid principal amount
of each Competitive Bid Loan in like money at said office from the date such
Competitive Bid Loan is made until paid at the rates and at the times provided
in the Credit Agreement.
This Note is one of the Competitive Bid Notes referred to in the Credit
Agreement dated as of May 10, 1996, amended and restated as of February 20,
1998, among the "Borrowers" referred to therein (including the Borrower), the
Bank, the other financial institutions party thereto and ABN AMRO Bank N.V., New
York Branch, as maker of Swingline Loans referred to therein, as Letter of
Credit Issuer and as Administrative Agent (as amended, modified and supplemented
and in effect from time to time, the "Credit Agreement") and is entitled to the
benefits thereof.
This Note is guaranteed pursuant to the Guaranty (as defined in the Credit
Agreement).
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
<PAGE>
EXHIBIT B-3
Page 2
This Note shall be construed in accordance with and be governed by the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By___________________________
Title:
<PAGE>
EXHIBIT B-4
SWINGLINE NOTE
$_____________________ New York, New York
____________, 19__
FOR VALUE RECEIVED, [OMNICOM FINANCE INC., a corporation organized and
existing under the laws of Delaware] [OMNICOM FINANCE LIMITED, a corporation
organized and existing under the laws of England] (the "Borrower"), hereby
promises to pay to the order of __________________ (the "Swingline Bank"), for
the account of its Applicable Lending Office (as defined in the Credit Agreement
referred to below), in lawful money of the United States of America in
immediately available funds, at the office of ABN AMRO Bank N.V., New York
Branch (the "Administrative Agent") located at 500 Park Avenue, New York, New
York 10022 on the Commitment Termination Date (as defined in the Agreement) the
principal sum of _________________ United States Dollars or, if less, the unpaid
principal amount of all Swingline Loans (as defined in the Agreement) made by
the Bank to the Borrower pursuant to the Agreement.
The Borrower promises also to pay interest on the unpaid principal amount
of each Swingline Loan in like money at said office from the date such Swingline
Loan is made until paid at the rates and at the times provided in the Agreement.
This Note is one of the Swingline Notes referred to in the Credit
Agreement dated as of May 10, 1996, amended and restated as of February 20, 1998
among the "Borrowers" referred to therein (including the Borrower), the Bank,
the other financial institutions party thereto and ABN AMRO Bank, N.V., New York
Branch, as maker of Swingline Loans referred to therein, as Letter of Credit
Issuer and as Administrative Agent (as amended, modified and supplemented and in
effect from time to time, the "Credit Agreement") and is entitled to the
benefits thereof. This Note is guaranteed pursuant to the Guaranty (as defined
in the Credit Agreement). As provided in the Credit Agreement, this Note is
subject to voluntary and mandatory prepayment, in whole or in part.
In case an Event of Default (as defined in the Credit Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
This Note shall be construed in accordance with and be governed by the law
of the State of New York.
[OMNICOM FINANCE INC.]
[OMNICOM FINANCE LIMITED]
By__________________________
Title:
<PAGE>
EXHIBIT C-1
FORM OF OPINION OF COUNSEL (NEW YORK) - OFI
February 20, 1998
To the Persons Listed on the
Attached Annex I
Ladies and Gentlemen:
We have acted as special New York counsel for Omnicom Finance Inc., a
corporation organized and existing under the laws of Delaware ("OFI"), Omnicom
Finance Limited, a corporation organized and existing under the laws of England
and Wales ("OFL" and together with OFI, individually, a "Borrower" and
collectively, the "Borrowers") and Omnicom Group Inc., a corporation organized
and existing under the laws of New York (the "Guarantor"), in connection with
the execution and delivery of the following documents (collectively, the "Credit
Documents"):
(a) the Credit Agreement, dated as of May 10, 1996, amended and
restated as of February 20, 1998 among the Borrowers, the banks parties
thereto (the "Banks"), ABN AMRO Bank N.V., New York Branch, as Swingline
Bank and as Letter of Credit Issuer and ABN AMRO Bank N.V., New York
Branch, as the Administrative Agent (the "Credit Agreement");
(b) the Notes of OFI, to be delivered pursuant to the Credit
Agreement; and
(c) the Guaranty of the Guarantor, dated as of May 10, 1996, amended
and restated as of February 20, 1998 (the "Guaranty").
This opinion is delivered to you pursuant to Section 6.01(b) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of each of the Credit
Documents. In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, instruments and other
documents, and have made such other investigations, as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
For the purposes hereof, we have assumed, with your permission and without
independent verification of any kind: (a) that the signatures of persons (other
than OFI and the Guarantor) signing all documents in connection with which this
opinion is rendered are genuine and authorized; (b) the legal capacity of all
natural persons; (c) that all documents submitted to us as originals or
duplicate originals are authentic; and (d) that all documents submitted to us as
copies, whether certified or not, conform to authentic original documents. As to
questions of fact relevant to this opinion, we have assumed, without
<PAGE>
EXHIBIT C-1
Page 2
independent investigation or verification of any kind, the accuracy of the
representations and warranties of the Borrowers and the Guarantor in the
applicable Credit Documents and have relied upon certificates and oral or
written statements and other information of public officials, and officers and
representatives of the Borrowers and the Guarantor. For purposes of the opinion
set forth in the paragraph numbered 1 hereof, we have relied solely upon copies
of (i) certificates of, and (ii) the organizational documents as certified by,
public officials as of the dates and in the jurisdictions set forth in Exhibit A
hereto.
In rendering the opinions expressed below, we have assumed, with your
permission and without any independent investigation or verification of any
kind, that: (i) each party to the Credit Documents other than OFI and the
Guarantor (individually, the "Other Party" and collectively, the "Other
Parties") has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of incorporation and is duly qualified in
each other jurisdiction in which the conduct of its business or the ownership of
its property makes such qualification necessary; (ii) each of the Other Parties
has full power and authority to execute, deliver and perform the Credit
Documents to which it is a party; (iii) the execution, delivery and performance
of the Credit Documents by each of the Other Parties has been duly authorized by
all requisite corporate action on the part of each Other Party; (iv) the Credit
Documents have been duly executed and delivered by each of the Other Parties;
and (v) the execution, delivery and performance of the Credit Documents by each
of the Other Parties does not and will not violate the charter, by-laws or other
organizational documents of any of the Other Parties. We have further assumed,
with your permission and without any independent investigation or verification
of any kind, that each of the Credit Documents constitutes the valid and legally
binding obligations of each Other Party, enforceable against such Other Party in
accordance with its terms. Furthermore, in giving the opinions expressed in
paragraphs numbered 3 and 4 below, we express no opinion as to state securities
or blue sky laws.
Based upon the foregoing, and subject to the limitations set forth herein,
we are of the opinion that:
1. Each of the Guarantor, OFI and the other designated subsidiaries of the
Guarantor listed on Annex II hereto (the "Designated Subsidiaries") (i) is a
duly organized and validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation listed on Exhibit A hereto, and (ii)
has the power and authority to own its property and assets and to transact the
business in which it is engaged.
2. Each of OFI and the Guarantor has the corporate power to execute,
deliver and perform the terms and provisions of each of the Credit Documents to
which it is a party and has taken all necessary corporate action to authorize
the execution, delivery and performance by it of each of such Credit Documents.
Each of OFI and the Guarantor has duly executed and delivered each of the Credit
Documents to which it is a party. Each of the Credit Documents to which either
the Guarantor or OFI is a party, constitutes its legal, valid and binding
obligation enforceable against it in accordance with the terms of such Credit
Document.
<PAGE>
EXHIBIT C-1
Page 3
3. Neither the execution, delivery nor performance by OFI or the Guarantor
of the Credit Documents to which it is a party, nor compliance by it with the
terms and provisions thereof, (i) will contravene any provision of any law,
statute, rule or regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York applicable to OFI or the Guarantor or (ii) will
violate any provision of the Certificate of Incorporation or By-Laws of OFI or
the Guarantor.
4. No order, consent, approval, license, authorization or validation of,
or filing, recording or registration with (except as have been obtained or made
on or prior to the date hereof), or exemption by, any governmental or public
body or authority of the United States of America, or the State of New York,
applicable to OFI or the Guarantor is required to authorize, or is required in
connection with, (i) the execution, delivery and performance by OFI or the
Guarantor, respectively, of any Credit Document to which OFI or the Guarantor is
a party or (ii) the enforceability of any such Credit Document in accordance
with its terms against OFI or the Guarantor.
5. Neither the Guarantor nor OFI is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
6. Neither the Guarantor nor OFI is a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
7. The choice of New York law as the governing law of each of the Credit
Documents is, under the laws of the State of New York, a valid choice of law.
8. The consent by OFI in Section 12.08 of the Credit Agreement, and by the
Guarantor in paragraph 18 of the Guaranty, to the jurisdiction of courts sitting
in the State of New York is a valid consent to the jurisdiction of such courts.
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Documents is subject to and may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium, or other similar laws relating to or affecting the rights of
creditor's generally (including such as may deny giving effect to waivers of
debtors' or guarantors' rights), and the application of general principles of
equity (regardless of whether in equity or at law), including, without
limitation, (i) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (ii) concepts of materiality,
reasonableness, good faith and fair dealing. Accordingly, no opinion is given
herein as to (i) the availability of the right to accelerate any obligation an
certain remedies provided for in the Credit Documents in the event of a
nonmaterial default or (ii) the enforceability of any provision of the Credit
Documents relating to cumulation of remedies or waiving the remedy of specific
performance.
<PAGE>
EXHIBIT C-1
Page 4
B. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents a to waiver of jury trial, process or other
procedural right, including, without limitation, (i) the second sentence of
Section 12.08(a) of the Credit Agreement and the second sentence of paragraph 18
of the Guaranty, insofar as such sentences relate to the subject matter
jurisdiction of the United States District Court for the Southern District of
New York to adjudicate any controversy related to any of the Credit Documents,
and (ii) the waive of inconvenient forum set forth in Section 12.08(b) of the
Credit Agreement and paragraph 18 of the Guaranty with respect to proceedings in
the United States District Court for the Southern District of New York.
C. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents relating to indemnification, including,
without limitation, with respect to the enforceability of Section 12.01 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents), to the extent that these may be limited by (i) laws rendering
unenforceable indemnification contrary to Federal or state securities laws and
the public policy underlying such laws and (ii) laws limiting the enforceability
of provisions exculpating or exempting a party, or requiring indemnification of
a party, for liability for its own action or inaction, to the extent the action
or inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
D. Furthermore, no opinion is given herein as to:
(i) the enforceability of the power of attorney granted under
Section 2.03(b) of the Credit Agreement, which authorizes and empowers the
Swingline Bank to deliver a Notice of Borrowing to the Administrative
Agent, on behalf of the Borrowers, to the extent that such power of
attorney purports to give the Swingline Bank rights and powers that are
not available to it as a creditor; or
(ii) the enforceability of any right or obligation to the extent
that the same has been varied by course of dealing or performance; or
(iii) paragraph 3(a) of the Guaranty, and clause (b) of paragraph 4
of the Guaranty, to the extent that it relates to action contemplated by
paragraph 3(a) of the Guaranty which may not be enforceable to the extent
that the Guaranteed Obligations are materially altered; or
(iv) the enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing, which
may be limited under certain circumstances; or
(v) the effect of the laws of any jurisdiction in which any Bank,
the Swingline Bank or the Letter of Credit Issuer is located (other than
the State of New York) that limit the interest, fees or other charges such
Bank may impose; or
(vi) the enforceability of the provisions of Section 12.09 of the
Credit Agreement or paragraph 19 of the Guaranty to the extent that a
judgment not in the Contract Currency is obtained in respect
<PAGE>
EXHIBIT C-1
Page 5
of the Credit Agreement in a jurisdiction other than the country of the
Contract Currency and the respective Borrower or the Guarantor pays such
judgment; or
(vii) paragraph 16 of the Guaranty.
We are members of the Bar of the State of New York and express no opinion
as to the laws of any jurisdiction other than those of the laws of the State of
New York, the General Corporation Law of the State of Delaware and the federal
laws of the United States of America.
This opinion is rendered solely to the persons listed on Annex I hereto by
us as special counsel to OFI and the Guarantor in connection with the
transactions contemplated by the Credit Documents. This opinion may not be
relied upon in any manner or for any purpose, or furnished or relied upon by any
other person, without our prior written consent. The information set forth
herein is as of the date of this letter, and we disclaim any undertaking to
advise the persons listed on Annex I of changes which thereafter may be brought
to our attention.
Very truly yours,
<PAGE>
EXHIBIT C-1
Page 6
ANNEX I
THE BANK OF NEW YORK ISTITUTO BANCARIO SAN PAOLO
One Wall Street DI TORINO, S.P.A.
22 South 245 Park Avenue
New York, New York 10286 New York, New York 10167
WACHOVIA BANK, N.A. ABN AMRO BANK N.V.,
191 Peach Tree Street, N.E. NEW YORK BRANCH
GA 370 - 28th Floor 500 Park Avenue
Atlanta, Georgia 30303 New York, New York 10022
THE CHASE MANHATTAN BANK MARINE MIDLAND BANK
One Chase Manhattan Plaza 140 Broadway, 4th Floor
New York, New York 10081 New York, New York 10005
THE NORTHERN TRUST COMPANY CITIBANK, N.A.
50 South LaSalle Street 399 Park Avenue
Chicago, Illinois 60675 8th Floor
New York, New York 10043
MELLON BANK, N.A. DRESDNER BANK AG,
Market Street, 7th Floor NEW YORK BRANCH
Philadelphia, Pennsylvania 19103 75 Wall Street
New York, New York 10005
SOCIETE GENERALE, WESTPAC BANKING
NEW YORK BRANCH 575 Fifth Avenue
1221 Avenue of the Americas New York, New York 10017
New York, New York 10020
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
335 Madison Avenue
New York, New York 10017
<PAGE>
EXHIBIT C-1
Page 7
ANNEX II
Designated Subsidiaries
1) BBDO Worldwide Inc.
22) BBDO Detroit Inc.
3) The DDB Needham Worldwide Communications Group Inc.
4) DDB Needham Chicago Inc.
5) TBWA Chiat-Day Inc.
6) Omnicom Finance Inc.
7) DDB Needham Worldwide Partners Inc.
<PAGE>
EHXIBIT A
Certificate of
Good Standing
Certificate of in Jurisdiction
Name and Incorporation - of Verbal
Jurisdiction of Date of Incorporation Confirmation*
Incorporation Certification and Date Date
------------- ------------- -------- ----
OMNICOM GROUP 12/8/97 Subsisting - Subsisting -
INC. 12/4/97 1/6/98
(New York)
BBDO Worldwide Inc. 12/8/97 Subsisting - Subsisting -
(New York) 12/4/97 1/6/98
The DDB Needham 12/8/97 Subsisting - Subsisting -
Worldwide 12/4/97 1/6/98
Communications Group
Inc.
(New York)
TBWA Chiat/Day Inc. 12/5/97 Good Standing - Good Standing -
(Delaware) 12/4/97 1/6/98
Omnicom Finance Inc. 12/5/97 Good Standing - Good Standing -
(Delaware) 12/4/97 1/6/98
BBDO Detroit Inc. 12/5/97 Good Standing - Good Standing -
(Delaware) 12/4/97 1/6/98
DDB Needham 12/5/97 Good Standing - Good Standing -
Chicago Inc. 12/4/97 1/6/98
(Delaware)
DDB Needham 12/9/97 Subsisting - Subsisting -
Worldwide Partners Inc. 12/4/97 1/6/98
(New York)
- ----------
*United Corporate Services, Inc.
<PAGE>
EXHIBIT C-2
FORM OF OPINION OF COUNSEL (NEW YORK) - BANKS
February 20, 1998
To the Banks party to the
Credit Agreement referred to
below and ABN AMRO Bank, N.V.,
New York Branch,
as Letter of Credit Issuer and
as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to ABN AMRO Bank, N.V., New York
Branch ("ABN AMRO") in connection with (i) the Credit Agreement, dated as of May
10, 1996, amended and restated as of February 20, 1998, among Omnicom Finance
Inc. ("OFI"), Omnicom Finance Ltd. ("OFL" and, together with OFI, individually,
a "Borrower" and collectively the "Borrowers"), the financial institutions named
therein (the "Banks"), ABN AMRO as Swingline Bank, as Letter of Credit Issuer
and as Administrative Agent, and (ii) the various other agreements, instruments
and other documents referred to in the next following paragraph. Except as
otherwise provided herein, terms defined in the Credit Agreement are used herein
as defined therein. This opinion letter is being delivered pursuant to Section
6.01(b) of the Credit Agreement.
In rendering the opinions expressed below, we have examined the following
agreements and instruments (the "Financing Documents"):
(a) the Credit Agreement;
(b) the Notes executed and delivered pursuant to the Credit Agreement on
the date hereof; and
(c) the Guaranty of Omnicom Group Inc. (the "Guarantor" and, together
with the Borrowers, the "Obligors"), dated as of May 10, 1996,
amended and restated as of February 20, 1998 (the "Guaranty").
In addition, we have assumed that the making and performance and the
consummation of the transactions contemplated by the Financing Documents by OFL
do not violate, and the Financing Documents to which OFL is a party are not
unenforceable under, the laws or public policy of England.
In rendering the opinions expressed below, we have assumed, with respect
to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and (except to the extent set
<PAGE>
EXHIBIT C-2
Page 2
forth in the opinions below as to the Obligors) constitute legal,
valid, binding and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and validly
existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the comments
and qualifications set forth below, and having considered such questions of law
as we have deemed necessary as a basis for the opinions expressed below, we are
of the opinion that each of the Financing Documents constitutes the legal, valid
and binding obligation of each Obligor stated to be a party thereto, enforceable
against such Obligor in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or other similar laws relating to or affecting the rights of
creditors generally (and by the possible judicial application of English laws or
governmental action affecting the rights of creditors generally to the
obligations of OFL) and except as the enforceability of the Financing Documents
is subject to the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law), including, without
limitation, (a) the possible unavailability of specific performance, injunctive
relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinion is subject to the following comments and
qualifications:
(A) The enforceability of Section 12.01 of the Credit Agreement (and
any similar provisions in any of the other Financing Documents) may be
limited by (i) laws rendering unenforceable indemnification contrary to
Federal or state securities laws and the public policy underlying such
laws and (ii) laws limiting the enforceability of provisions exculpating
or exempting a party, or requiring indemnification of a party for,
liability for its own action or inaction, to the extent the action or
inaction involves gross negligence, recklessness, willful misconduct or
unlawful conduct.
(B) Paragraph 3(a) of the Guaranty, and clause (b) of paragraph 4 of
the Guaranty to the extent that it relates to action contemplated by
paragraph 3(a) of the Guaranty, may not be enforceable to the extent that
the Guaranteed Obligations are materially altered.
(C) The enforceability of provisions in the Financing Documents to
the effect that terms may not be waived or modified except in writing may
be limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank, the Swingline Bank or the Letter of Credit
Issuer is located (other than the State of New York) that limit the
interest, fees or other charges such Bank may impose, (ii) the second
sentence of Section 12.08(a) of the Credit Agreement and the second
sentence of paragraph 18 of the Guaranty, insofar as such sentences relate
to the subject matter jurisdiction of the United States District Court for
the Southern District of New York to adjudicate any controversy related to
any of the Credit Documents, (iii) the waiver of inconvenient forum set
forth in Section 12.08(b) of the Credit Agreement and paragraph 18 of the
Guaranty with respect to proceedings in the United States District Court
for the Southern District of New York, (iv) the last
<PAGE>
EXHIBIT C-2
Page 3
sentence of Section 12.09 of the Credit Agreement and the last sentence of
paragraph 19 of the Guaranty or (v) paragraph 16 of the Guaranty.
The foregoing opinions are limited to matters involving the Federal laws
of the United States of America and the law of the State of New York, and we do
not express any opinion as to the laws of any other jurisdiction.
At the request of our client, this opinion letter is, pursuant to Section
6.01(b) of the Credit Agreement, provided to you by us in our capacity as
special New York counsel to ABN AMRO and may not be relied upon by any Person
for any purpose other than in connection with the transactions contemplated by
the Credit Agreement without, in each instance, our prior written consent.
Very truly yours,
<PAGE>
EXHIBIT C-3
FORM OF OPINION OF COUNSEL (NEW YORK) - OFL
February 20, 1998
To the Persons Listed on the
Attached Annex I
Ladies and Gentlemen:
We have acted as special New York counsel for Omnicom Finance Inc., a
corporation organized and existing under the laws of Delaware ("OFI"), Omnicom
Finance Limited, a corporation organized and existing under the laws of England
and Wales ("OFL" and together with OFI, individually, a "Borrower" and
collectively, the "Borrowers") and Omnicom Group Inc., a corporation organized
and existing under the laws of New York (the "Guarantor"), in connection with
the execution and delivery of the following documents (collectively, the "Credit
Documents"):
(a) the Credit Agreement, dated as of May 10, 1996, amended and
restated as of February 20, 1998, among the Borrowers, the banks parties
thereto (the "Banks"), ABN AMRO Bank N.V., New York Branch, as Swingline
Bank and as Letter of Credit Issuer and ABN AMRO Bank N.V., New York
Branch, as the Administrative Agent (the "Credit Agreement"); and
(b) the Notes of OFL, to be delivered pursuant to the Credit
Agreement.
This opinion is delivered to you pursuant to Section 6.01(b) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of each of the Credit
Documents. In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, instruments and other
documents, and have made such other investigations, as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
For the purposes hereof, we have assumed, with your permission and without
independent verification of any kind; (a) that the signatures of persons (other
than OFI and the Guarantor) signing all documents in connection with which this
opinion is rendered are genuine and authorized; (b) the legal capacity of all
natural persons; (c) that all documents submitted to us as originals or
duplicate originals are authentic; and (d) that all documents submitted to us as
copies, whether certified or not, conform to authentic original documents. As to
questions of fact relevant to this opinion, we have assumed, without independent
investigation or verification of any kind, the accuracy of the representations
and warranties of the Borrowers and the Guarantor in the applicable Credit
Documents and have relied upon certificates and oral or written statements and
other information of public officials, and officers and representatives of the
Borrowers and the Guarantor.
In rendering the opinions expressed below, we have assumed, with your
permission and without any independent investigation or verification of any
kind, that: (i) each party to the Credit Documents other than OFI and the
Guarantor (individually, the "Other Party" and collectively, the "Other
Parties") has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of incorporation and is duly qualified in
each other jurisdiction in which the conduct of its business or the ownership
<PAGE>
EXHIBIT C-3
Page 2
of its property makes such qualification necessary; (ii) each of the Other
Parties has full power and authority to execute, deliver and perform the Credit
Documents to which it is a party; (iii) the execution, delivery and performance
of the Credit Documents by each of the Other Parties has been duly authorized by
all requisite corporate action on the part of each Other Party; (iv) the Credit
Documents have been duly executed and delivered by each of the Other Parties;
and (v) the execution, delivery and performance of the Credit Documents by each
of the Other Parties does not and will not violate the charter, by-laws or other
organizational documents of any of the Other Parties. We have further assumed,
with your permission and without any independent investigation or verification
of any kind, that each of the Credit Documents constitutes the valid and legally
binding obligations of each Other Party, enforceable against such Other Party in
accordance with its terms.
Furthermore, in giving the opinions expressed in paragraphs numbered 2 and
3 below, we express no opinion as to state securities or blue sky laws.
Based upon the foregoing, and subject to the limitations set forth herein,
we are of the opinion that:
1. Each of the Credit Documents to which OFL is a party, constitutes its
legal, valid and binding obligation enforceable against OFL in accordance with
the terms of such Credit Document.
2. Neither the execution, delivery or performance by OFL of the Credit
Documents to which it is a party, nor compliance by it with the terms and
provisions thereof, will contravene any provision of any law, statute, rule or
regulation applicable to OFL (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) of the United States of
America or the State of New York.
3. No order, consent, approval, license, authorization or validation of,
or filing, recording or registration with (except as have been obtained or made
on or prior to the date hereof), or exemption by, any governmental or public
body or authority of the United States of America or the State of New York
applicable to OFL, is required to authorize, or is required in connection with,
(i) the execution, delivery and performance of any Credit Document to which OFL
is a party or (ii) the enforceability of any such Credit Document in accordance
with its terms against OFL.
4. The choice of New York law as the governing law of each of the Credit
Documents is, under the laws of the State of New York, a valid choice of law.
5. The consent by OFL in Section 12.08 of the Credit Agreement to the
jurisdiction of courts sitting in the State of New York is a valid consent to
the jurisdiction of such courts, except that we express no opinion as to the
enforceability of any consent to jurisdiction in so far as such consent relates
to the subject matter jurisdiction of the United States Court for the Southern
District of New York to adjudicate any controversy related to the Credit
Documents.
Our opinions are subject to the qualifications that:
A. The enforceability of the Credit Documents is subject to and may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws relating to or affecting the rights of
creditors generally (and by possible judicial application of English or other
foreign laws or governmental action affecting the rights of creditors generally
to the obligations of OFL), and the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (i) the possible unavailability of specific
performance, injunctive relief or any other
<PAGE>
EXHIBIT C-3
Page 3
equitable remedy and (ii) concepts of materiality, reasonableness, good faith
and fair dealing. Accordingly, no opinion is given herein as to (i) the
availability of the right to accelerate any obligation and certain remedies
provided for in the Credit Documents in the event of a nonmaterial default, or
(ii) the enforceability of any provision of the Credit Documents relating to
cumulation of remedies or waiving the remedy of specific performance, or the
waiver of debtors' rights.
B. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents as to waiver of jury trial, process or other
procedural right, including, without limitation, (i) the second sentence of
Section 12.08(a) of the Credit Agreement, insofar as such sentence relates to
the subject matter jurisdiction of the United States District Court for the
Southern District of New York to adjudicate any controversy related to any of
the Credit Documents, and (ii) the waiver of inconvenient forum set forth in
Section 12.08(b) of the Credit Agreement with respect to proceedings in the
United States District Court for the Southern District of New York.
C. We express no opinion as to the enforceability of any contractual
provision in the Credit Documents relating to indemnification, including,
without limitation, with respect to the enforceability of Section 12.01 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents) to the extent that these may be limited by (i) laws rendering
unenforceable indemnification contrary to Federal or state securities laws and
the public policy underlying such laws and (ii) laws limiting the enforceability
of provisions exculpating or exempting a party, or requiring indemnification of
a party, for liability for its own action or inaction, to the extent the action
or inaction involved gross negligence, recklessness, willful misconduct or
unlawful conduct.
D. Furthermore, no opinion is given herein as to:
(i) the enforceability of the powers of attorney granted under
Section 2.03(b) of the Credit Agreement, which authorizes and empowers the
Swingline Bank to deliver a Notice of Borrowing to the Administrative
Agent, on behalf of the Borrowers, to the extent that such power of
attorney purports to give the Swingline Bank rights and powers that are
not available to it as a creditor; or
(ii) the enforceability of any right or obligation to the extent
that the same has been varied by course of dealing or performance; or
(iii) the enforceability of the provisions of Section 12.09 of the
Credit Agreement or paragraph 19 of the Guaranty to the extent that a
judgment not in the Contract Currency is obtained in respect of the Credit
Agreement in a jurisdiction other than the jurisdiction of the Contract
Currency and the Borrower or the Guarantor pays such judgment; or
(iv) the enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing, which
may be limited under certain circumstances; or
(v) the effect of the laws of any jurisdiction in which any Bank,
the Swingline Bank or the Letter of Credit Issuer is located (other than
the State of New York) that limit the interest, fees or other charges such
Bank may impose.
E. Our opinions in paragraph 1 are subject to possible judicial action
giving effect to governmental actions on foreign laws affecting creditor's
rights.
We are members of the Bar of the State of New York and express no opinion
as to the laws of any jurisdiction other than the laws of the State of
<PAGE>
EXHIBIT C-3
Page 4
New York, the General Corporation Law of the State of Delaware and the Federal
laws of the United States of America.
This opinion is rendered solely to the persons listed on Annex I hereto by
us as special New York counsel to OFL in connection with the transactions
contemplated by the Credit Documents. This opinion may not be relied upon in any
manner or for any purpose, or furnished to or relied upon by any other person,
without our prior written consent. The information set forth herein is as of the
date of this letter, and we disclaim any undertaking to advise the persons
listed on Annex I of changes which thereafter may be brought to out attention.
Very truly yours,
<PAGE>
EXHIBIT C-3
Page 5
ANNEX I
THE BANK OF NEW YORK ISTITUTO BANCARIO SAN PAOLO
One Wall Street DI TORINO, S.P.A.
22 South 245 Park Avenue
New York, New York 10286 New York, New York 10167
WACHOVIA BANK, N.A. ABN AMRO BANK N.V.,
191 Peach Tree Street, N.E. NEW YORK BRANCH
GA 370 - 28th Floor 500 Park Avenue
Atlanta, Georgia 30303 New York, New York 10022
THE CHASE MANHATTAN BANK MARINE MIDLAND BANK
One Chase Manhattan Plaza 140 Broadway, 4th Floor
New York, New York 10081 New York, New York 10005
THE NORTHERN TRUST COMPANY CITIBANK, N.A.
50 South LaSalle Street 399 Park Avenue
Chicago, Illinois 60675 8th Floor
New York, New York 10043
MELLON BANK, N.A. DRESDNER BANK AG,
Market Street, 7th Floor NEW YORK BRANCH
Philadelphia, Pennsylvania 19103 75 Wall Street
New York, New York 10005
SOCIETE GENERALE, WESTPAC BANKING
NEW YORK BRANCH 575 Fifth Avenue
1221 Avenue of the Americas New York, New York 10017
New York, New York 10020
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
335 Madison Avenue
New York, New York 10017
<PAGE>
EXHIBIT C-3
Page 6
ANNEX II
Designated Subsidiaries
1) BBDO Worldwide Inc.
22) BBDO Detroit Inc.
3) The DDB Needham Worldwide Communications Group Inc.
4) DDB Needham Chicago Inc.
5) TBWA Chiat-Day Inc.
6) Omnicom Finance Inc.
7) DDB Needham Worldwide Partners Inc.
<PAGE>
EXHIBIT C-4
Page 1
OPINION OF COUNSEL
(United Kingdom)
TO: The Banks named as parties to the Credit Agreement referred to below and
ABN AMRO Bank N.V., as Administrative Agent
20 February 1998
Ladies and Gentlemen:
Omnicom Finance Limited
We have acted as special English lawyers for Omnicom Finance Limited, a company
organized and existing under the laws of England and Wales ("Omnicom Ltd."), in
connection with its authorization of the execution and delivery of the following
documents (collectively, the "Credit Documents"):
(a) the Credit Agreement dated as of May 10, 1996, amended and restated as of
February 20, 1998, among Omnicom Finance Inc., Omnicom Ltd., the banks
parties thereto (the "Banks"), ABN AMRO Bank N.V., as Swingline Bank and
as Letter of Credit Issuer and ABN AMRO North American, Inc. as
Administrative Agent (the "Credit Agreement"); and
(b) the Notes of Omnicom Ltd., to be delivered pursuant to the Credit
Agreement.
This opinion is delivered to you pursuant to Section 6.01(b) of the Credit
Agreement. Terms used herein which are defined in the Credit Agreement shall
have the respective meanings set forth in the Credit Agreement, unless otherwise
defined herein.
1 Documents Reviewed and Assumptions Made
In connection with this opinion, we have examined the originals, or certified,
conformed or reproduction copies, of the Credit Agreement (including the
Exhibits thereto), and such records and other documents as we have deemed
necessary as the basis for the opinions hereinafter expressed.
In our examination of the documents referred to above and for the purpose of
rendering this opinion, we have assumed:
1.1 the accuracy of all certificates referred to above, the genuineness of all
signatures on all documents referred to above or on the originals thereof,
and the conformity to original documents of all copies;
1.2 that the parties to the Credit Agreement other than Omnicom Ltd. have the
corporate power and authority to enter into and perform each of the Credit
Documents to which they are parties and that each of such Credit Documents
has been duly authorized, executed and delivered by each such other party
in accordance with all applicable laws;
1.3 that, subject to the position under English law being as set out in our
opinion, the Credit Documents are legal, valid and binding obligations of
Omnicom Ltd. under the law of New York; and
1.4 that the information disclosed by our search on ______________, 1998 at
the Registrar of Companies for England and Wales and enquiry on
__________________, 1998 at the Central Registry of Winding Up Petitions
in relation to
<PAGE>
EXHIBIT C-4
Page 2
Omnicom Ltd. (which did not disclose the existence of any petition or
resolution to wind up Omnicom Ltd. or to appoint an administrator for
Omnicom Ltd.) was then accurate and has not since then been altered and
that such search and enquiry did not fail to disclose any matters relevant
for the purposes of this opinion.
We have not sought independently to verify any of the above assumptions.
We have also relied upon a certificate (the "Certificate") of a Director and the
Secretary of Omnicom Ltd. as to certain factual matters. A copy of the
Certificate is attached to this letter. We have not sought independently to
verify the accuracy or completeness of the Certificate.
2 Opinion
Based upon the foregoing, and subject to the qualifications and further
assumptions set forth in section 3 of this letter, we are of the opinion that:
2.1 Omnicom Ltd. (i) is a validly existing private limited company in good
standing (as defined in paragraph 3.5 below) under the laws of England and
Wales; (ii) has the power and authority to own its property and assets and
to transact the business in which it is engaged (as such property, assets
and business are described in the Certificate); and (iii) is not required
to be qualified as a "foreign corporation" in order to do business in any
jurisdiction within England and Wales.
2.2 Omnicom Ltd. has the corporate power to execute, deliver and perform the
terms and provisions of each of the Credit Documents to which it is
expressed to be a party, to borrower and procure the issuance of the
Letter of Credit under the Credit Agreement and to issue Commercial Paper
and has taken all necessary corporate action to authorize the execution,
delivery and performance by it of each of such Credit Documents, the
borrowing and the procurement of the issuance of the Letter of Credit
under the Credit Agreement and the issuance of Commercial Paper. Omnicom
Ltd. has duly executed the Credit Agreement. When the Notes are signed by
one of the Directors of Omnicom Ltd. whose names are set out in Appendix A
to the Certificate given by Omnicom Ltd. pursuant to Section 6.01(c)(ii)
of the Credit Agreement such Notes will have been validly executed by
Omnicom Ltd.
2.3 Neither the execution, delivery or performance by Omnicom Ltd. of the
Credit Documents to which it is expressed to be a party, the compliance by
it with the terms and provisions thereof, the borrowing and procurement of
the issuance of the Letter of Credit by Omnicom Ltd. under the Credit
Agreement, nor the issuance by Omnicom Ltd. of Commercial Paper (i) will
contravene any provision of any law, statute, rule or regulation of
England and Wales; or (ii) will violate any provision of the Memorandum or
Articles of Association of Omnicom Ltd.
2.4 No order, consent, approval, license, authorization or validation of, or
filing, recording or registration with (except as have been obtained or
made prior to the date hereof), or exemption by, any governmental or
public body or authority of or in England and Wales, is required to
authorize, or is required in connection with, (i) the execution, delivery
and performance by Omnicom Ltd. of any Credit Document to which Omnicom
Ltd. is expressed to be a party, (ii) the borrowing and procurement of the
issuance of the Letter of Credit by Omnicom Ltd. under the Credit
Agreement, nor the issuance by Omnicom Ltd. of Commercial Paper or (iii)
the enforceability of any such Credit Document against Omnicom Ltd.
<PAGE>
EXHIBIT C-4
Page 3
2.5 If such matters were raised before them, the English Courts, in a properly
presented case, would give effect to the choice of New York law as the
governing law of each of the Credit Documents and to the consent by
Omnicom Ltd. in Section 12.08 of the Credit Agreement to the jurisdiction
of courts sitting in the State of New York.
3 Qualifications
This opinion is also subject to the qualifications set out below.
3.1 We express no opinion as to any law other than the law of England and
Wales in force as at the date hereof and we express no opinion as to
matters of fact.
3.2 The obligations of Omnicom Ltd. under the Credit Documents will be subject
to any laws from time to time in effect relating to insolvency,
administration, bankruptcy, liquidation or any other laws or legal
procedures affecting generally the enforcement of creditor's rights, as
well as the principles of equity.
3.3 The search at the Registrar of Companies referred to in paragraph 1.4 is
not capable of conclusively revealing whether or not certain events have
occurred, including the commencement of winding up or the making of an
administration order or the appointment of a receiver, administrative
receiver, administrator or liquidator, as notice of these matters may not
be immediately filed with the Registrar or Companies and, when filed, may
not be immediately available for public inspection.
3.4 The enquiry at the Central Registry of Winding Up Petitions referred to in
paragraph 1.4 relates only to a compulsory winding-up and is not capable
of conclusively revealing whether or not a petition in respect of a
compulsory winding-up has been presented since details of a petition may
not have been immediately entered on the records of the Central Registry
or, in the case of a petition presented to a County Court, may not have
been notified to the Central Registry or entered on such records at all.
3.5 There is not concept of "good standing" as such under English company law.
Accordingly, the references to "good standing" in paragraph 2.1 above
should be taken to mean only that our search referred to above of records
of the Registrar of Companies for England and Wales and enquiry of the
Central Office of Winding Up Petitions did not reveal any appointment of,
or resolution or petition to appoint, a liquidator, administrator or
administrative receiver or Omnicom Ltd., or that Omnicom Ltd., is
delinquent in filing its statutory annual directors' report and accounts,
or any notification by the Registrar of Companies of intention to strike
Omnicom Ltd.'s name off the Registrar of Companies.
3.6 The choice of a particular law to govern an agreement or document would
not be recognized or upheld by the English Courts if the choice of law was
not bona fide and legal or if there were reasons for avoiding the choice
of law on the grounds of public policy. The choice of a particular law
would not be upheld, for example, if it was made with the intention of
evading the law of the jurisdiction with which the contract had its most
substantial connection and which, in the absence of the chosen law, would
have invalidated the contract or been inconsistent with it. We have not
made any investigation into the bona fides of the parties to the Credit
Documents; however we are not aware of any reason for an English Court to
find that the choice of New York law to govern the Credit Documents is not
bona fide or not legal, nor are we aware of any English public policy that
would be violated by the enforcement of the Credit Documents in accordance
with their respective terms.
<PAGE>
EXHIBIT C-4
Page 4
3.7 Our opinions in paragraphs 2.3(i) and 2.4 above are based on and subject
to the further assumptions that:
3.7.1 all offers and sales of Commercial Paper have been and will be made to
persons outside the United Kingdom and that no investment advertisement
(as defined in Section 57(2) of the Financial Services Act 1986)
relating to such securities has been or will be issued in the United
Kingdom, or (as the case may be) that any such offers and sales have
been and will be made in circumstances which do not amount to an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 and the Financial Services Act
1986 and that any such investment advertisement has been and will be
issued only to persons of the kind described in Article 11(3) of the
Financial Services At 1986 (Investment Advertisements) (Exemptions)
Order 1995 or to whom such advertisement may otherwise lawfully be
issued or passed on in the United Kingdom;
3.7.2 the proceeds of the sale of Commercial Paper by or on behalf of Omnicom
Ltd. will be received by the Depositary and by Omnicom Ltd. outside the
United Kingdom in accordance with the terms of the Credit Documents.
3.7.3 all Loans made to Omnicom Ltd. pursuant to the Credit Agreement will be
made by persons who are authorized institutions within the meaning of
the Banking Act 1987 or who are of a type listed in Schedule 2 to the
Banking Act 1987 or who carry on a business consisting wholly or mainly
of lending money; and
3.8 insofar as Clause 2.03(b) of the Credit Agreement purports to effect a
grant of a power of attorney by Omnicom Ltd., we do not opine that the
manner in which the Credit Agreement is executed is sufficient for this
purpose as a matter of English law. The Power of Attorney of Omnicom Ltd.
a copy of which is annexed to the Certificate has, however, been duly
authorized and validly executed by Omnicom Ltd. and is in our opinion
sufficient to confirm the power granted by Clause 2.03(b).
The opinions expressed herein may not be relied upon in any manner or used for
any purpose by any person other than in relation to the Credit Documents by the
persons to whom they are addressed. This opinion shall be governed by and
construed in accordance with English Law.
Yours faithfully,
<PAGE>
EXHIBIT D-1
OMNICOM FINANCE LIMITED
Certificate
We, the undersigned, being a duly appointed Director and the duly
appointed Secretary of Omnicom Finance Limited ("the Company") HEREBY CERTIFY as
follows:
1. This Certificate is given to Macfarlanes for their use and reliance in
connection with the legal opinions to be delivered by them pursuant to clause
6.01(b) of the Credit Agreement dated as of May 10, 1996, amended and restated
as of February 20, 1998, among Omnicom Finance Inc. and the Company as
Borrowers, the Banks expressed to be parties thereto, the Swingline Bank party
thereto and ABN AMRO Bank N.V., New York Branch, as Administrative Agent.
2. We refer to the Director's Certificate delivered by the Company pursuant to
Section 6.01(c)(ii) of the Credit Agreement, a copy of which is attached to this
Certificate. We hereby confirm that the matters certified by paragraphs 2, 3, 4,
5 and 8 of that Certificate are true and correct.
3. The Company's business as currently conducted consists of lending and
advancing money to members of the group of companies comprised by Omnicom Group
Inc., its subsidiaries and affiliated entities; borrowing money from banks and
other institutions which carry on business mainly as lenders of money and/or
from Omnicom Group Inc. and its other subsidiaries, in order to finance such
lending; group treasury transactions, including management of group currency and
interest rate exposures; and activities related or incidental to the activities
described above. The Company's assets consist wholly or mainly of cash and debts
owed to the Company and its profits consist wholly or mainly of interest income
less interest and administrative expenses.
4. There are no pending actions, suits or proceedings by or against the Company
nor, to the best of our knowledge and belief, are any such actions, suits or
proceedings threatened.
5. There is attached to this Certificate a copy of a Power of Attorney which has
been sealed with the Common Seal of the Company, signed by a Director and the
Secretary of the Company and delivered to you for delivery to the Attorney named
therein.
Dated: ____________________, 1998
________________________________
Director
________________________________
Secretary
<PAGE>
EXHIBIT D-1
Page 2
OMNICOM FINANCE INC.
Officers' Certificate
I, the undersigned, __________________________ of Omnicom Finance Inc., a
corporation organized and existing under the laws of Delaware ("OFI"), DO HEREBY
CERTIFY that:
1. This Certificate is furnished pursuant to Section 6.01(c)(i) of the
Credit Agreement, dated as of May 10, 1996, amended and restated as of February
20, 1998, among Omnicom Finance Inc., Omnicom Finance Limited, the Banks party
thereto, and ABN AMRO Bank N.V., New York Branch, as the maker of Swingline
Loans referred to therein, as Letter of Credit Issuer and as Administrative
Agent (such Credit Agreement, as in effect on the date of this Certificate,
being herein called the "Credit Agreement"). Unless otherwise defined herein
capitalized terms used in this Certificate have the meanings assigned to those
terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly qualified as
and at all times since ___________________* (to and including and date hereof)
have been officers of OFI, holding the respective offices below set opposite
their names, and the signatures below set opposite their names are their genuine
signatures.
Name** Office Signature
------ ------ ---------
________ __________ _________
________ __________ _________
________ __________ _________
________ __________ _________
3. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of OFI as filed in the Office of the Secretary of State of the
State of Delaware on _______________, 19 _ , together with all amendments
thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of OFI as in effect on _____________***, together with all amendments thereto
adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of resolutions
duly adopted by the Board of Directors of OFI at a meeting on _____________, at
which a quorum was present and acting throughout, which resolutions have not
been revoked, modified, amended or rescinded and are still in full force and
effect. Except as attached hereto as Exhibit C, no resolutions
- ----------
* Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
** Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this certificate.
*** Insert same date as in paragraph 2 of this certificate.
<PAGE>
EXHIBIT D-1
Page 3
have been adopted by the Board of Directors of OFI which deal with the
execution, delivery or performance of any of the Credit Documents.
6. On the date hereof, the representations and warranties of OFI contained
in Section 7 of the Credit Agreement are true and correct, both before and after
giving effect to each Credit Event to occur on the date hereof and the
application of the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from the Credit Event to occur on the date hereof or
from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of OFI or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_______________, 19__.
OMNICOM FINANCE INC.
______________________________
Name:
Title:
<PAGE>
EXHIBIT D-1
Page 4
I, the undersigned, [Secretary/Assistant Secretary] of OMNICOM FINANCE INC.
("OFI") DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified __________________ of OFI and the signature above is
his/her genuine signature.
2. The certifications made by [Name] in items 2, 3, 4 and 5 above are true
and correct.
3. I know of no proceeding for the dissolution or liquidation of OFI or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_____________, 19__.
OMNICOM FINANCE INC.
__________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
OMNICOM FINANCE LIMITED
Officers' Certificate
I, the undersigned, __________________________ of Omnicom Finance Limited,
a corporation organized and existing under the laws of England ("OFL"), DO
HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 6.01(c)(ii) of the
Credit Agreement, dated as of May 10, 1996, amended and restated as of February
20, 1998, among Omnicom Finance Inc., Omnicom Finance Limited, the Banks party
thereto, and ABN AMRO Bank N.V., New York Branch, as the maker of Swingline
Loans referred to therein, as Letter of Credit Issuer and as Administrative
Agent (such Credit Agreement, as in effect on the date of this Certificate,
being herein called the "Credit Agreement"). Unless otherwise defined herein
capitalized terms used in this Certificate have the meanings assigned to those
terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly qualified as
and at all times since ___________________* (to and including and date hereof)
have been officers of OFL, holding the respective offices below set opposite
their names, and the signatures below set opposite their names are their genuine
signatures.
Name** Office Signature
------ ------ ---------
________ __________ _________
________ __________ _________
________ __________ _________
________ __________ _________
3. Attached hereto as Exhibit A is a copy of the Memorandum and Articles
of Association of OFL as in effect on _____________***, together with all
amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of resolutions
duly adopted by the Board of Directors of OFI at a meeting on _____________, at
which a quorum was present and acting throughout, which resolutions have not
been revoked, modified, amended or rescinded and are still in full force and
effect. Except as attached hereto as Exhibit B, no resolutions have been adopted
by the Board of Directors of OFL which deal with the execution, delivery or
performance of any of the Credit Documents.
5. On the date hereof, the representations and warranties of OFL contained
in Section 7 of the Credit Agreement are true and correct, both before and after
giving effect to each Credit Event to occur on the date hereof and the
application of the proceeds thereof.
- ----------
* Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
** Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this certificate.
*** Insert same date as in paragraph 2 of this certificate.
<PAGE>
EXHIBIT D-2
Page 2
6. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from the Credit Event to occur on the date hereof or
from the application of the proceeds thereof.
7. I know of no proceeding for the dissolution or liquidation of OFL or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_______________, 19__.
OMNICOM FINANCE LIMITED
___________________________
Name:
Title:
<PAGE>
EXHIBIT D-2
Page 3
I, the undersigned, [Secretary/Assistant Secretary] of OMNICOM FINANCE LIMITED
("OFL"), DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified __________________ of OFL and the signature above is
his/her genuine signature.
2. The certifications made by [Name] in items 2, 3, 4 and 5 above are true
and correct.
3. I know of no proceeding for the dissolution or liquidation of OFL or
threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
_____________, 19__.
OMNICOM FINANCE LIMITED
____________________________
Name:
Title:
<PAGE>
EXHIBIT D-3
OMNICOM GROUP INC.
Officers' Certificate
I, the undersigned, __________________________ of Omnicom Group Inc., a
corporation organized and existing under the laws of New York (the "Guarantor"),
DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to Section 6.01(c)(iii) of the
Credit Agreement, dated as of May 10, 1996, amended and restated as of February
20, 1998, among Omnicom Finance Inc. and Omnicom Finance Limited (the
"Borrowers"), the Banks party thereto and ABN AMRO Bank N.V., New York Branch,
as the maker of Swingline Loans referred to therein, as Letter of Credit Issuer
and as Administrative Agent (such Credit Agreement, as in effect on the date of
this Certificate, being herein called the "Credit Agreement"). Unless otherwise
defined herein capitalized terms used in this Certificate have the meanings
assigned to those terms in the Credit Agreement.
2. The persons named below have been duly elected, have duly qualified as
and at all time since ___________________* (to and including and date hereof)
have been officers of the Guarantor, holding the respective offices below set
opposite their names, and the signatures below set opposite their names are
their genuine signatures.
Name** Office Signature
------ ------ ---------
________ __________ _________
________ __________ _________
________ __________ _________
________ __________ _________
3. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of the Guarantor as filed in the Office of the Secretary of State
of the State of New York on ____________________, 19__, together with all
amendments thereto adopted through the date hereof.
4. Attached hereto as Exhibit B is a true and correct copy of the By-Laws
of the Guarantor as in effect on ___________***, together with all amendments
thereto adopted through the date hereof.
5. Attached hereto as Exhibit C is a true and correct copy of resolutions
duly adopted by the Board of Directors of the Guarantor at a meeting on
________________, at which a quorum was present and acting throughout, which
resolutions have not been revoked, modified, amended or rescinded and are still
in full force and effect. Except as attached hereto as Exhibit C, no resolutions
have been adopted by the Board of Directors of the Guarantor which deal with the
execution, delivery or performance of any of the Credit Documents.
- ----------
* Insert a date prior to the time of any corporate action relating to the
Credit Agreement.
** Include name, office and signature of each officer who will sign any
Credit Document, including the officer who will sign the certification at
the end of this certificate.
*** Insert same date as in paragraph 2 of this certificate.
<PAGE>
EXHIBIT D-3
Page 2
6. On the date hereof, the representations and warranties contained in
Section 6 of the Guaranty are true and correct, both before and after giving
effect to each Credit Event to occur on the date hereof and the application of
the proceeds thereof.
7. On the date hereof, no Default or Event of Default has occurred and is
continuing or would result from the Credit Event to occur on the date hereof or
from the application of the proceeds thereof.
8. I know of no proceeding for the dissolution or liquidation of the
Guarantor or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of
_______________, 19__.
OMNICOM GROUP INC.
By______________________
Name:
Title:
<PAGE>
EXHIBIT D-3
Page 3
I, the undersigned, [Secretary/Assistant Secretary] of OMNICOM GROUP INC. ("the
Guarantor"), DO HEREBY CERTIFY that:
1. [Insert name of Person making the above certifications] is the duly
elected and qualified ____________ of the Guarantor and the signature above is
his/her genuine signature.
2. The certifications made by [Name] in items 2, 3. 4 and 5 above are true
and correct.
3. I know of no proceeding for the dissolution or liquidation of the
Guarantor or threatening its existence.
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of
_____________, 19__.
OMNICOM GROUP INC.
By_____________________________
Name:
Title:
<PAGE>
EXHIBIT E
ABN AMRO Bank N.V.
New York Branch
500 Park Avenue
New York, New York 10022
PARTICIPATION AGREEMENT
dated as of May 10, 1996
amended and restated as of February 20, 1998
To Each of the Banks listed
on Annex A hereto (each a
"Participant" and collectively,
the "Participants"):
We and you, in our individual capacities, are each party to a Credit
Agreement (as modified, supplemented or amended from time to time, the "Credit
Agreement") dated as of May 10, 1996, amended and restated as of February 20,
1998, among Omnicom Finance Inc. and Omnicom Finance Limited (the "Borrowers"),
each of the banks named therein (the "Banks") and ABN AMRO Bank N.V., New York
Branch, as the maker of Swingline Loans referred to therein, as Letter of Credit
Issuer and as Administrative Agent, pursuant to which we, in our capacity as
Letter of Credit Issuer, have issued the Letter of Credit (and, pursuant to
Section 3.01(j) of which, we agree, at any time after the Letter of Credit has
been canceled pursuant to Section 3.01(g) of the Credit Agreement, to issue a
new Letter of Credit), by order and for account of the Borrowers in support of
the obligations of the Borrowers as more fully set forth in the Credit Agreement
in a Stated Amount (all capitalized terms defined in the Credit Agreement and
not defined herein are used herein as so defined) equal to the Total Letter of
Credit Commitment.
This Participation Agreement will confirm the arrangement between us
whereby we agree to grant, and you agree to acquire, a participation in the
Letter of Credit issued by us pursuant to the Credit Agreement and in the
Drawings made thereunder ("your participation"), with each of you participating
in Drawings and Unpaid Drawings in the percentage set forth opposite your name
on Annex A hereto under the heading "Participation Percentage" on the following
terms and conditions:
(1) Promptly upon the occurrence of any Unpaid Drawing (including the
failure by the relevant Borrower to reimburse us in full for any Drawing) under
the Letter of Credit, we shall advise you thereof and you shall promptly pay to
us the amount of your participation in such Unpaid Drawing by transferring the
same to us, in Dollars and immediately available funds, at the Administrative
Agent's Account. To the extent you are unable to effect such transfer on the
date of such advice, you agree to pay interest to us on such amount until such
transfer is effected at the overnight Federal Funds rate for the next succeeding
Business Day and thereafter at the Base Rate plus 2% Per annum.
(2) Provided you shall have made all payments to us required by this
Participation Agreement, we shall transfer to you at your address and to the
attention specified in Schedule II to the Credit Agreement your proportionate
share of all payments received by us in respect of Unpaid Drawings, whether
received from the relevant Borrower, from the Guarantor pursuant to the Guaranty
or otherwise, all as and, to the extent possible, when we receive them and in
the same funds in which such amounts are received.
(3) If (i) we shall pay any amount to you pursuant to this Participation
Agreement in the belief or expectation that a related payment has been or will
be received or collected from the relevant Borrower and (ii) such related
payment is not received or collected by us, then you will promptly on demand by
us return such amount to us, together with interest thereon, at such
<PAGE>
EXHIBIT E
Page 2
rate as we shall determine to be customary between banks for correction of
errors. If we determine at any time that any amount received or collected by us
in respect of or pursuant to the Credit Agreement or the Guaranty, must be
returned to the relevant Borrower or the Guarantor or paid to any other person
or entity pursuant to any insolvency law or otherwise, then, notwithstanding any
other provision of this Participation Agreement, we shall not be required to
distribute any portion thereof to you, and you will promptly on demand by us
repay to us any portion thereof that we shall have theretofore distributed to
you, together with interest thereon at such rate, if any, as we shall pay to the
relevant Borrower, the Guarantor or other such Person or entity with respect
thereto.
(4) You hereby acknowledge that certain rights have been granted to you as
a Participant pursuant to the terms of the Credit Agreement, and you hereby
agree to perform and be bound by the terms of the Credit Agreement to the extent
applicable to you by reason of your participation acquired hereunder.
(5) It is understood that we will exercise and give the same degree of
care and attention to the administration of the Letter of Credit as we give to
our other letters of credit and similar obligations, and that our sole liability
to you shall be to distribute promptly, as and when received by us, as stated in
Paragraph 2 hereof, your proportionate share of any payment of Unpaid Drawings
which we may receive, and beyond this, except as expressly provided herein, no
other responsibility is assumed. It is further understood that: (i) we may use
our sole discretion with respect to exercising or refraining from exercising any
right to taking or refraining from taking any actions which may be vested in us
or which we may be entitled to take or assert under the Credit Documents; and
(ii) we shall not, absent gross negligence or willful misconduct, be under any
liability to you with respect to anything which we may do or refrain from doing
in the exercise of our best judgment or which may seem to us to be necessary or
desirable. Without in any way limiting the foregoing, we may rely upon the
advice of counsel concerning legal matters and upon any written communication or
any telephone conversation which we believe to be genuine and correct or to have
been signed, sent or made by the proper person and shall not be required to make
any inquiry concerning the performance by the Borrowers or any other obligor of
any of its obligations and liabilities under or in respect of the Credit
Documents. We shall have no obligations to make any claim, or assert any lien
upon any property held by us or assert any offset thereagainst. We may accept
deposits from, make loans or otherwise extend credit to, and generally engage in
any kind of banking or trust business with the Borrowers or any other Person
obligated under the Credit Documents or in respect of any document referred to
therein and receive payment in such loans or extensions of credit and otherwise
act with respect thereto freely and without accountability in the same manner as
if this Participation Agreement and the transactions contemplated thereby were
not in effect.
(6) You acknowledge that in addition to your participation in the Letter
of Credit issued by us and in Drawings and Unpaid Drawings thereunder, the other
Participants are participating therein in various percentages, which percentages
when added to the percentage which we are retaining for ourselves aggregate
100%. You agree that you shall have no right of action or claim whatsoever
against us as a result of our exercising or refraining from exercising any right
or taking or refraining from taking any actions which may be vested in us or
which we may be entitled to take or assert under the Credit Documents with
respect to the Letter of Credit, other than rights of action or claims resulting
solely from our gross negligence or willful misconduct.
(7) We make no representation and shall have no responsibility with
respect to: (i) the genuineness, legality, validity, binding effect or
enforceability of any of the Credit Documents; (ii) the truthfulness and
accuracy of any of the representations contained in the Credit Documents; (iii)
the filing, recording or taking (other than as expressly required by the Credit
Documents) of any action with respect to any of the Credit Documents; (iv) the
collectibility of any Unpaid Drawing; and/or (v) the financial condition of the
Borrowers, the Guarantor or of any other Person.
<PAGE>
EXHIBIT E
Page 3
(8) Subject to the following sentence, you may grant or sell
participations in your participation hereunder. To the extent you so grant a
participation to another Person, (x) such Person shall not be a "Participant"
within the meaning of the Credit Agreement; (y) unless expressly agreed to in
writing by us, you shall not be relieved of your obligations hereunder by reason
of such disposition or grant and we shall incur no liability or responsibility
to such subparticipant; and (z) after any such grant of participation by any of
you, the exercise of your rights and remedies hereunder, under the Credit
Agreement, the Guaranty and your Note shall not be subject to the consent of the
respective purchaser of a participation, other than any such exercise which
would (a) increase the amount of your Commitment, (b) reduce the principal of,
or interest on, your Note, or any fees or other amounts payable hereunder or
under the Credit Agreement or the Guaranty, or (c) postpone any date fixed for
any payment of principal of, or interest on, your Note, or any fees or other
amounts payable hereunder or under the Credit Agreement or the Guaranty.
Promptly following any such participation granted or sold by you, you shall
notify the Borrowers thereof. You represent, and in granting this participation
to you it is specifically understood and agreed, that you are acquiring your
participation in the Letter of Credit and in Drawings made thereunder for your
own account in the ordinary course of your business and not with a view to or
for sale in connection with, any distribution thereof.
(9) To the extent that we are not reimbursed by the relevant Borrower
under the Credit Agreement you will reimburse us on demand, in proportion to
your various percentages used in determining the Required Banks under and as
defined in the Credit Agreement for and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
costs, expenses (including, without limitation, attorneys' fees and expenses) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against us, in any way relating to or arising out of the Letter
of Credit or any action taken or omitted by either of us under any of the Credit
Documents with respect thereto; provided, however, that you shall not be liable
to us for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from our gross negligence or willful misconduct. Your obligations under this
Paragraph 9 shall survive the termination of the Credit Documents and this
Participation Agreement and the payment of all Unpaid Drawings.
(10) We shall have no duties or responsibilities to you except as
expressly set forth herein. We shall not have by reason hereof a fiduciary
relationship with respect to you, and nothing herein, express or implied, is
intended to or shall be so construed as to impose upon us any obligations in
respect of the Credit Documents, except as expressly set forth therein or
herein, or in respect of the Letter of Credit. You agree to be bound by all our
determinations (including, without limitations, those made in respect of
conflicting instructions received in respect of the Credit Documents) made in
connection therewith so long as such determinations are made in the absence of
gross negligence or willful misconduct. Independently and without reliance upon
us, you, to the extent you deem it appropriate, have made and shall continue to
make your own i