AGREEMENT AS TO EXPENSES AND LIABILITIES
This AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is made
as of ________ __, 200_, between OMNICOM GROUP INC., a New York corporation
("Omnicom"), as Sponsor and OMNICOM CAPITAL TRUST [I / II / III], a Delaware
business trust (the "Trust").
WHEREAS, Omnicom, as Sponsor, and Chase Manhattan Bank USA, National
Association, a Delaware corporation, as Delaware Trustee, established the Trust
pursuant to a Trust Agreement dated as of October 4, 2000 (the "Original Trust
Agreement") and a Certificate of Trust (the "Certificate of Trust") filed with
the Secretary of State of the State of Delaware on October 4, 2000;
WHEREAS, the Trust intends to issue and sell its ___% Trust Common
Securities (the "Trust Common Securities") to, and purchase Series ___% Junior
Subordinated Debt Securities (the "Debt Securities") from, Omnicom, and to issue
and sell its ___% Trust Preferred Securities (the "Trust Preferred Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Trust dated as of
________ __, 2000, as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, Omnicom will directly or indirectly own all of the Trust Common
Securities of the Trust and will issue the Debt Securities;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Trust Preferred Securities, which purchase Omnicom hereby agrees shall benefit
Omnicom and which purchase Omnicom acknowledges will be made in reliance upon
the execution and delivery of this Agreement, Omnicom and the Trust hereby agree
as follows:
ARTICLE I
GUARANTEE BY OMNICOM
1.1 Guarantee by Omnicom. Subject to the terms and conditions hereof,
Omnicom hereby irrevocably and unconditionally guarantees to each person or
entity to whom the Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any indebtedness, expenses or liabilities of the Trust, other than
obligations of the Trust to pay to holders of any Trust Preferred Securities the
amounts due such holders pursuant to the terms of the Trust Preferred
Securities. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
1.2 Terms of Agreement. This Agreement shall terminate and be of no
further force and effect upon the date on which there are no Beneficiaries
remaining;
provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of Trust
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Trust Preferred Securities, under any Obligation, under the Guarantee
Agreement dated ________ __, 200_ by the guarantor and ________, as guarantee
trustee, or under this Agreement for any reason whatsoever. Except as set forth
in this Section 1.2, this Agreement is continuing, irrevocable, unconditional
and absolute.
1.3 Waiver of Notice. Omnicom hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and Omnicom
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
1.4 No Impairment. The obligations, covenants, agreements and duties of
Omnicom under this Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Omnicom with respect to the happening of any of the foregoing.
1.5 Enforcement. A Beneficiary may enforce this Agreement directly against
Omnicom, and Omnicom waives any right or remedy to require that any action be
brought against the Trust or any other person or entity before proceeding
against Omnicom.
1.6 Subrogation. Omnicom shall be subrogated to all rights (if any) of the
Trust in respect of any amounts paid to the Beneficiaries by Omnicom under this
Agreement; provided, however, that Omnicom shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
BINDING EFFECT
2.1 Binding Effect. All guarantees and agreements contained in this
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of Omnicom and shall inure to the benefit of the Beneficiaries.
2.2 Amendment. So long as there remains any Beneficiary, or any Trust
Preferred Securities of any series remain outstanding, this Agreement shall not
be modified or amended in any manner adverse to such Beneficiary or to the
holders of the Trust Preferred Securities.
2.3 Notices. Any notice or communication by Omnicom or the Trust to the
other is duly given if in writing and delivered in person or mailed by
first-class mail:
(a) if to Omnicom to:
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _______
Telecopy No.:
(b) if to the Trust to:
Omnicom Capital Trust [I / II / III]
c/o Omnicom Group, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: _______
Telecopy No.:
Omnicom or the Trust by notice to the other may designate additional or
different addresses for subsequent notices or communications.
2.4 Counterparts.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
2.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE WITHOUT REGARD TO CONFLICT OF LAWS PROVISIONS THEREOF.
IN WITNESS WHEREOF, the parties caused this agreement to be duly executed
as of the day and year first above written.
OMNICOM GROUP INC., as Sponsor
By:______________________________________
Name:
Title:
OMNICOM CAPITAL TRUST [I / II / III]
By:______________________________________
___________, as Administrative Trustee
