Exhibit 10.1
EXECUTION COPY
INSTRUMENT OF RESIGNATION OF RESIGNING TRUSTEE, APPOINTMENT OF
SUCCESSOR TRUSTEE AND ACCEPTANCE
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this "Agreement")
entered into as of October 5, 2006 among Omnicom Group Inc., a New York
corporation (the "Corporation"), Omnicom Capital Inc., a Connecticut corporation
("OCI"), Omnicom Finance Inc., a Delaware corporation ("OFI" and together with
the Corporation and OCI, the "Issuers"), JPMorgan Chase Bank, N.A., a national
banking association ("Resigning Trustee") and Deutsche Bank Trust Company
Americas, a New York banking corporation ("Successor Trustee").
W I T N E S S E T H
WHEREAS, the Issuers and Resigning Trustee have entered into each of:
(i) the Indenture, dated as of February 7, 2001, as amended by the First
Supplemental Indenture, dated as of February 13, 2004, the Second Supplemental
Indenture, dated as of November 4, 2004, and the Third Supplemental Indenture,
dated as of November 30, 2004 (as so amended, the "2031 Indenture"), which
provides for the issuance of up to $850,000,000 principal amount of the Issuers'
Liquid Yield Option(TM) Notes due 2031 (the "2031 Notes"), of which $847,031,000
million aggregate principal amount are outstanding as of the date hereof;
(ii) the Indenture, dated as of March 6, 2002, as amended by the First
Supplemental Indenture, dated as of February 13, 2004, the Second Supplemental
Indenture, dated as of August 12, 2004, and the Third Supplemental Indenture,
dated as of November 4, 2004 (as so amended, the "2032 Indenture"), which
provides for the issuance of up to $900,000,000 principal amount of the Issuers'
Zero Coupon Zero Yield Convertible Notes due 2032 (the "2032 Notes"), of which
$727,029,000 million aggregate principal amount are outstanding as of the date
hereof;
(iii) the Indenture, dated June as of 10, 2003, as amended by the First
Supplemental Indenture, dated as of November 5, 2003, the Second Supplemental
Indenture, dated as of November 4, 2004, the Third Supplemental Indenture, dated
as of November 10, 2004, and the Fourth Supplemental Indenture, dated as of June
30, 2006 (as so amended, the "2033 Indenture" and together with the 2031
Indenture and the 2032 Indenture, the "Convertible Indentures"), which provides
for the issuance of up to $600,000,000 principal amount of the Issuers' Zero
Coupon Zero Yield Convertible Notes due 2033 (the "2033 Notes") and Zero Coupon
Zero Yield Convertible Notes due 2038 (the "2038 Notes" and together with the
2031 Notes, the 2032 Notes and the 2033 Notes, the "Convertible Notes"), of
which $39,368,000 million aggregate principal amount of the 2033 Notes and
$428,128,000 million aggregate principal amount of the 2038 Notes are
outstanding as of the date hereof; and
(iv) the Indenture, dated as of March 29, 2006, as amended by the First
Supplemental Indenture, dated as of March 29, 2006 (as so amended, the "2016
Indenture" and together with the Convertible Indentures, the "Indentures"),
which provides for the issuance of up to $1,000,000,000 principal amount of the
Issuers' 5.90% Senior Notes due 2016 (the "2016 Notes" and together with the
Convertible Notes, the "Notes"), of which $1 billion aggregate principal amount
are outstanding as of the date hereof; and
WHEREAS, Resigning Trustee has been acting as Trustee under the
Indentures; and
WHEREAS, Section 7.10 of each of the Convertible Indentures and Section
7.8 of the 2016 Indenture provides that Resigning Trustee may resign at any time
by giving written notice thereof to the Issuers; and
WHEREAS, Section 7.10 of each of the Convertible Indentures and Section
7.8 of the 2016 Indenture further provides that the Issuers shall promptly
appoint a successor Trustee to fill a vacancy in the office of Trustee under
each of the Indentures; and
WHEREAS, Section 7.11 of each of the Convertible Indentures and Section
7.8 of the 2016 Indenture further provide that any successor Trustee appointed
in accordance with the each of the Indentures shall execute, acknowledge and
deliver to the Issuers and the predecessor Trustee an instrument accepting such
appointment under the Indenture, and thereupon the resignation of the
predecessor Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all rights, power,
duties and obligations of its predecessor under each Indenture; and
WHEREAS, the Issuers wish to appoint Successor Trustee as successor
Trustee, Registrar, Conversion Agent, Paying Agent, Bid Solicitation Agent and
the office or agency where notices and demands to or upon the Issuers in respect
of the Convertible Notes and the Convertible Indentures may be served (the
"Agent") under each of the Convertible Indentures and as successor Trustee,
Registrar, Paying Agent and Service Agent under the 2016 Indenture to succeed
Resigning Trustee in such capacities; and
WHEREAS, Successor Trustee is willing to accept such appointment as
successor Trustee, Registrar, Conversion Agent, Paying Agent, Bid Solicitation
Agent and Agent under each of the Convertible Indentures and as successor
Trustee, Registrar, Paying Agent and Service Agent under the 2016 Indenture on
the terms and conditions set forth herein and under the Indentures; and
WHEREAS, Successor Trustee is eligible to act as successor Trustee under
each of the Indentures;
NOW, THEREFORE, pursuant to the provisions of the Indentures and in
consideration of the covenants herein contained, it is agreed among each of the
Issuers, Resigning Trustee and Successor Trustee as follows:
1. Pursuant to Section 7.10(a) of each of the Convertible Indentures and
Section 7.8 of the 2016 Indenture, Resigning Trustee hereby resigns as
Trustee under each of the Indentures. Resigning Trustee hereby also
resigns as Registrar, Conversion Agent, Paying Agent, Bid Solicitation
Agent and Agent under each of the Convertible Indentures and as Registrar,
Paying Agent and Service Agent under the 2016 Indenture.
2. Resigning Trustee hereby assigns, transfers, delivers and confirms to
Successor Trustee all rights, powers, duties and obligations of the
Trustee under the Indentures.
3. Resigning Trustee represents and warrants to Successor Trustee that:
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(a) Resigning Trustee has made, or promptly will make, available to
Successor Trustee originals, if available, or copies in its
possession, of all documents relating to the trust created by each
of the Indentures (collectively, the "Trusts") and all information
in the possession of its corporate trust department relating to the
administration and status of the Trusts;
(b) to the best of the knowledge of the Responsible Officers of
Resigning Trustee assigned to its corporate trust department, no
default or Event of Default or any event which upon notice or lapse
of time or both would become and Event of Default under each of the
Indentures has occurred and is continuing; and
(c) no covenant or condition contained in the Indentures has been waived
by Resigning Trustee or, to the best of the knowledge of the
Responsible Officers of Resigning Trustee assigned to its corporate
trust department, by the holders of the percentage in aggregate
principal amount of the Notes required by each of the Indentures to
effect any such waiver.
4. The Issuers hereby accept the resignation of Resigning Trustee as Trustee,
Registrar, Conversion Agent, Paying Agent, Bid Solicitation Agent and
Agent under each of the Convertible Indentures and as Trustee, Registrar,
Paying Agent and Service Agent under the 2016 Indenture. Pursuant to the
authority vested in each of them by Section 7.10 of each of the
Convertible Indentures and Section 7.8 of the 2016 Indenture and by
resolutions of each of their respective Boards of Directors, a duly
appointed committee thereof, or a duly appointed officer, dated October 5,
2006, which are attached hereto as Exhibit A, each of the Issuers hereby
appoints Successor Trustee as successor Trustee under each of the
Indentures, with all the estate, properties, rights, powers, trusts,
duties and obligations heretofore vested in Resigning Trustee under each
of the Indentures. Each of the Issuers also hereby appoints Successor
Trustee as successor Registrar, Conversion Agent, Paying Agent, Bid
Solicitation Agent and Agent under each of the Convertible Indentures and
as successor Registrar, Paying Agent and Service Agent under the 2016
Indenture.
5. The Issuers hereby certify that Exhibit A annexed hereto are copies of the
resolutions duly adopted by each of the Issuer's respective Boards of
Directors, a duly appointed committee thereof, or a duly appointed
officer, which authorize certain officers of the Issuers to: (a) accept
Resigning Trustee's resignation as Trustee under the Indentures; (b)
appoint Successor Trustee as Trustee under the Indentures; and (c) execute
and deliver such agreements and other instruments as may be necessary or
desirable to effectuate the succession of Successor Trustee as Trustee
under the Indentures.
6. Each of the Issuers represents and warrants, severally and not jointly, to
Resigning Trustee and Successor Trustee that:
(a) it is validly organized and existing under the laws of the state of
its incorporation;
(b) the Notes were validly and lawfully issued;
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(c) it has performed or fulfilled each covenant, agreement and condition
on its part to be performed or fulfilled under each of the
Indentures;
(d) no default or Event of Default or any event which upon notice or
lapse of time or both would become and Event of Default under each
of the Indentures has occurred and is continuing;
(e) it has not appointed any paying agents, registrars, conversion
agents, service agents or bid solicitation agents under the
Indentures other than Resigning Trustee;
(f) it will continue to perform the obligations undertaken by it under
each of the Indentures; and
(g) promptly after the execution and delivery of this Agreement, the
Issuers will mail or cause to be mailed to each holder of the Notes
a Notice of Resignation of Trustee and Appointment of Successor
Trustee, forms of which are attached hereto as Exhibit B-1 through
Exhibit B-4.
7. Successor Trustee represents and warrants to Resigning Trustee and the
Issuers that it is qualified and eligible to act as Trustee under Sections
7.08 and 7.09 of each of the Convertible Indentures and Section 7.10 of
the 2016 Indenture.
8. Successor Trustee hereby accepts its appointment as successor Trustee,
Registrar, Conversion Agent, Paying Agent, Bid Solicitation Agent and
Agent under each of the Convertible Indentures and as successor Trustee,
Registrar, Paying Agent and Service Agent under the 2016 Indenture, and
accepts the Trusts created thereby, and assumes all rights, powers, duties
and obligations of the Trustee, Registrar, Conversion Agent, Paying Agent,
Bid Solicitation Agent and Agent under each of the Convertible Indentures
and of the Trustee, Registrar, Paying Agent and Service Agent under the
2016 Indenture. Successor Trustee will perform said Trusts and will
exercise said rights, powers, duties and obligations upon the terms and
conditions set forth in each of the Indentures.
9. Successor Trustee hereby accepts the designation of its Corporate Trust
Office as the office or agency of the Issuers in New York, New York where
the Notes may be presented for payment, registration of transfer or
conversion.
10. Pursuant to the written request of Successor Trustee and the Issuers
hereby made, Resigning Trustee, upon payment of its outstanding charges,
confirms, assigns, transfers and sets over to Successor Trustee, as
successor Trustee under each of the Indentures, upon the Trust expressed
in each of the Indentures, any and all moneys and all the rights, powers,
duties and obligations which Resigning Trustee now holds under and by
virtue of each of the Indentures.
11. The Issuers and Resigning Trustee hereby agree, upon the request of
Successor Trustee, to execute, acknowledge and deliver such further
instruments of conveyance and assurance and to do such other things as may
be reasonably required for more fully and certainly vesting and confirming
in Successor Trustee all of the rights and powers of
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Resigning Trustee as Trustee, Registrar, Conversion Agent, Paying Agent,
Bid Solicitation Agent and Agent under each of the Convertible Indentures
and as Trustee, Registrar, Paying Agent and Service Agent under the 2016
Indenture.
12. Resigning Trustee agrees to indemnify Successor Trustee and save Successor
Trustee harmless from and against any and all costs, claims, liabilities,
losses or damages whatsoever (including the reasonable fees, expenses and
disbursements of Successor Trustee's counsel and other advisors), that
Successor Trustee suffers or incurs without negligence or bad faith on its
part arising out of actions or omissions of Resigning Trustee. Successor
Trustee will furnish to Resigning Trustee, promptly after receipt, all
papers with respect to any action the outcome of which would make
operative the indemnity provided for in this Section. Successor Trustee
shall notify Resigning Trustee promptly in writing (and, in any event,
within no later than 10 days) of any claim for which it may seek
indemnity. Resigning Trustee shall have the option to defend the claim and
Successor Trustee shall cooperate fully in the defense. If Resigning
Trustee shall assume the defense, then Resigning Trustee shall not pay for
separate counsel of Successor Trustee. Resigning Trustee shall not be
obligated to pay for any settlement made without its consent.
13. Capitalized terms not otherwise defined in this Agreement shall have the
definitions given thereto in the Indentures.
14. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, as applied to contracts made and performed
within the State of New York without giving effect to the principles of
conflict of laws.
15. In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
16. This Agreement may be simultaneously executed in any number of
counterparts. Each such counterpart so executed shall be deemed to be an
original, but all together shall constitute but one and the same
instrument.
17. This Agreement and the resignation, appointment and acceptance effected
hereby shall be effective as of the close of business on the date first
above written, upon the execution and delivery hereof by each of the
parties hereto, and any and all payments required to be made by the
Trustee under the Indentures shall be made by the Successor Trustee
following such effectiveness.
18. Notwithstanding the resignation of Resigning Trustee effected hereby, the
Issuers shall remain obligated under Section 7.06 of each of the
Convertible Indentures and Section 7.7 of the 2016 Indenture to
compensate, reimburse and indemnify Resigning Trustee in connection with
its prior trusteeships under the Indentures. The Issuers also acknowledge
and reaffirm their obligations to Successor Trustee as set forth in
Section 7.06 of each of the Convertible Indentures and Section 7.7 of the
2016 Indenture, which obligations shall survive the execution hereof.
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19. All notices, whether faxed or mailed, will be deemed received when sent
pursuant to the following instructions:
TO RESIGNING TRUSTEE:
Xx. Xxxxx X. Xxxxx
Vice President
JPMorgan Chase Bank, N.A.
Worldwide Securities Services
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
TO SUCCESSOR TRUSTEE:
Deutsche Bank Trust Company Americas
Trust & Securities Services
00 Xxxx Xxxxxx, 00xx Xxxxx
XX: NYC60-2710
Xxx Xxxx, XX 00000
Fax. (000) 000-0000
with a copy to:
Deutsche Bank National Trust Company
Trust & Securities Services
00 XxXxxxxx Xxxxxx
Mail Stop: XXX00-0000
Xxxxxx, XX 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
TO THE ISSUERS:
General Counsel
Omnicom Group Inc.
Omnicom Capital Inc.
Omnicom Finance Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
[remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
OMNICOM GROUP INC.
By: /s/ Xxxxxxx X. X'Xxxxx
--------------------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Vice President, General
Counsel and Secretary
OMNICOM CAPITAL INC.
By: /s/ Xxxxxxx X. X'Xxxxx
--------------------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Secretary
OMNICOM FINANCE INC.
By: /s/ Xxxxxxx X. X'Xxxxx
--------------------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Secretary
JPMORGAN CHASE BANK, N.A., as
Resigning Trustee
By: /s/ J.R. Xxxxx
--------------------------------------------------
Name: J.R. Xxxxx
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Successor Trustee
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxxxxxxx
--------------------------------------------------
Name: Xxxxx Xxxxxxxxxxxxx
Title: Assistant Vice President
