Exhibit 10.2
EXECUTION COUNTERPART
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT
AMENDMENT NO. 1 dated as of July 7, 2000, between OMNICOM FINANCE
INC., a corporation organized and existing under the laws of the State of
Delaware ("OFI"); OMNICOM FINANCE PLC (formerly, Omnicom Finance Limited), a
corporation organized and existing under the laws of England and Wales ("OFL");
OMNICOM CAPITAL INC., a corporation organized and existing under the laws of the
State of Connecticut ("OCI" and, together with OFI and OFL, each a "Borrower"
and, collectively, the "Borrowers"); OMNICOM GROUP INC. (the "Guarantor"); each
of the financial institutions that is a signatory hereto (individually, a "Bank"
and, collectively, the "Banks"); and ABN AMRO BANK N.V., NEW YORK BRANCH, as
agent for the Banks (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
OFI and OFL, the Banks and the Administrative Agent are parties to
an Amended and Restated Credit Agreement dated as of February 20, 1998 (as
heretofore modified and supplemented and in effect on the date hereof, the
"Credit Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit (by the making of loans) by the Banks to the Borrowers in
an aggregate principal amount not exceeding $500,000,000 at any one time
outstanding. The Borrowers, the Banks and the Administrative Agent wish to amend
the Credit Agreement in certain respects, and accordingly, the parties hereto
hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof, the
Credit Agreement shall be amended as follows:
2.01. References. References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof") shall
be deemed to be references to the Credit Agreement as amended hereby.
2.02. Definitions. Section 1.01 of the Credit Agreement shall be
amended by adding the following new definitions (to the extent not already
included in said Section 1.01) and inserting the same in the appropriate
alphabetical locations and amending the following definitions (to the extent
already included in said Section 1.01) to read in their entirety as follows:
"Borrower" and "Borrowers" shall mean, individually or collectively,
as the case may be, each of Omnicom Finance Inc., a corporation organized
and existing under the laws of Delaware ("OFI"); Omnicom Finance plc
(formerly, Omnicom Finance Limited), a corporation
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organized and existing under the laws of England and Wales ("OFL"), and
OCI; provided that for the purposes of Section 3 and any other provisions
or terms in the Credit Agreement relating to the Letter of Credit, the
issuance of Commercial Paper or the Depositary Agreement, "Borrower" shall
only mean each of OFI and OFL.
"OCI" shall mean Omnicom Capital Inc., a corporation organized and
existing under the laws of Connecticut.
2.03. OCI as Borrower. OCI shall become a party to the Credit
Agreement as a Borrower thereunder for the sole purpose of borrowing Loans.
Accordingly, the Credit Agreement shall be amended to provide that each
reference therein to the term "Borrower" or "Borrowers" shall be deemed to
refer, individually or collectively, as the case may be, to OFI, OFL and to OCI,
and each reference therein to "either Borrower" shall be deemed to refer to "any
Borrower", and OCI shall be entitled to borrow Loans thereunder on the same
terms and conditions as OFI and OFL (and shall be subject to the same terms and
conditions thereunder with respect to Loans made to it as each of OFI and OFL is
with respect to Loans made to it); provided, that such terms shall not be deemed
to refer to OCI when used in Section 3 or in any other provisions or terms in
the Credit Agreement relating to the Letter of Credit, the issuance of
Commercial Paper or the Depositary Agreement; and provided, further, that OCI
shall have no obligation to reimburse any payment made under the Letter of
Credit and shall not be permitted to issue Commercial Paper. The covenants and
agreements specified in Sections 8 and 9 of the Credit Agreement shall be
applicable to each of OFI, OFL and OCI (it being understood that any dollar
limitation specified in such provisions shall be applicable to OFI, OFL and OCI
collectively); provided, however, that the introductory paragraph of Section 8
shall be amended by deleting the word "OFI" therein and replacing it with the
words "OFI and OCI"; and provided, further, that Section 8.05 shall be amended
as provided in Section 2.04 of this Amendment No. 1.
2.04. ERISA. Sections 8.05 of the Credit Agreement shall be deleted
in its entirety and replaced with the following:
"8.05. ERISA. As soon as possible and, in any event, within 10 days
after OFI or any of its Subsidiaries or ERISA Affiliates or OCI or any of
its Subsidiaries or ERISA Affiliates knows or has reason to know of any of
the following, OFI or OCI, as the case may be, will deliver to each of the
Banks a certificate of the chief financial officer of OFI or OCI, as the
case may be, setting forth details as to such occurrence and such action,
if any, which OFI, OCI, 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, OCI, 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
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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 or any
of its Subsidiaries or ERISA Affiliates or OCI or 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 or ERISA Affiliates or OCI or any of its
Subsidiaries or ERISA Affiliates 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 any
of its Subsidiaries or ERISA Affiliates or OCI or any of its Subsidiaries
or ERISA Affiliates.
Section 3. Representations and Warranties. Each Borrower (but only
OFI and OCI with respect to Section 7.09) represents and warrants to the Banks
as of the date hereof that: (i) the representations and warranties set forth in
Section 7 of the Credit Agreement are true and correct as to itself and its
Subsidiaries (if applicable) on and as of the date hereof as though made on and
as of the date hereof (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date) and as
if each reference in said Section 7 to "this Agreement" included reference to
this Amendment No. 1 and as if each reference in Section 7.09 to "OFI" included
reference to "OFI or OCI" and (ii) no event has occurred and is continuing that
constitutes a Default or Event of Default (and the parties agree that breach of
any of the representations and warranties in this Section 3 shall constitute an
Event of Default under Section 10.02 of the Credit Agreement).
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendments to the Credit Agreement set forth in said Section 2 shall become
effective, as of the date hereof, upon the satisfaction of each of the following
conditions precedent:
(a) Documents. The Administrative Agent shall have received the
following documents, each of which shall be satisfactory to the
Administrative Agent in form and substance:
(1) Execution by All Parties. Counterparts of this Amendment
No. 1, duly executed and delivered by each Borrower, the Guarantor,
the Administrative Agent and each Bank.
(2) Authority and Approvals. Certified copies of resolutions
of the Board of Directors of OCI (or equivalent documents)
authorizing and approving the Credit Agreement as amended hereby and
the Notes, authorizing Borrowings under the Credit Agreement in an
aggregate principal amount up to $500,000,000 at any one time
outstanding, and certified copies of all documents evidencing other
necessary action (corporate, partnership or otherwise) and
governmental
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approvals, if any, with respect to the Credit Agreement as amended
hereby and the Notes.
(3) Notes. There shall have been executed by OCI and delivered
to the Administrative Agent, pursuant to Section 2.05 of the Credit
Agreement, a Syndicated Note, a Competitive Bid Note and a Swingline
Note, substantially in form of Exhibits B-1, B-3 and B-4,
respectively, to the Credit Agreement, for each Bank which is to
evidence each such Bank's Loans to OCI.
(4) Secretary's or Assistant Secretary's Certificate. A
certificate of the Secretary or an Assistant Secretary of OCI, dated
the date hereof, certifying the names and true signatures of the
officers of OCI authorized to execute and deliver this Amendment No.
1 and the Notes and the other documents to be delivered hereunder
and attaching corporate documentation respecting the organization,
existence and good standing of OCI.
(5) Other Documents. Such other documents as the
Administrative Agent may reasonably request, including certificates
of officers or opinions of counsel, relating to the organization,
existence and good standing of OCI, the authorization of the Credit
Agreement as amended hereby, the enforceability of the Credit
Agreement as amended hereby or other legal matters relating to the
Credit Agreement as amended hereby or the transactions contemplated
thereby, all in form and substance satisfactory to the
Administrative Agent.
(b) Guaranty. Each of the Guarantor, the Administrative Agent and
each Bank shall have duly executed and delivered Amendment No. 1 to the
Guaranty attached hereto as Exhibit A.
(c) Fees and Expenses. The Administrative Agent shall have received
evidence satisfactory to it that the Guarantor shall have paid all accrued
fees and expenses of the Administrative Agent (including the reasonable
fees and expenses of counsel to the Administrative Agent), to the extent
invoiced, in connection with this Amendment No. 1.
Section 5. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 1 by signing any such counterpart. This
Amendment No. 1 shall be governed by, and construed in accordance with, the law
of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
BORROWERS
OMNICOM FINANCE INC.
By: /s/ Dennis E. Hewitt
------------------------------------
Name: Dennis E. Hewitt
Title: Treasurer
OMNICOM FINANCE PLC
By: /s/ Barry J. Wagner
------------------------------------
Name: Barry J. Wagner
Title: Director
By: /s/ Dennis E. Hewitt
------------------------------------
Name: Dennis E. Hewitt
Title:
OMNICOM CAPITAL INC.
By: /s/ Dennis E. Hewitt
------------------------------------
Name: Dennis E. Hewitt
Title: President and Chief Executive
Officer
GUARANTOR:
OMNICOM GROUP INC.,
as Guarantor
By: /s/ Dennis E. Hewitt
------------------------------------
Name: Dennis E. Hewitt
Title: Treasurer
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ADMINISTRATIVE AGENT
ABN AMRO BANK N.V., NEW YORK
BRANCH, as Administrative Agent
By: /s/ Frances O'R. Logan
------------------------------------
Name: Frances O'R. Logan
Title: Senior Vice President
By: /s/ Thomas Rogers
------------------------------------
Name: Thomas Rogers
Title: Vice President
BANKS
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ Frances O'R. Logan
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Name: Frances O'R. Logan
Title: Senior Vice President
By: /s/ Thomas Rogers
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Name: Thomas Rogers
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Bruce E. Langenkamp
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Name: Bruce E. Langenkamp
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Michelle D. Griffin
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Name: Michelle D. Griffin
Title: Vice President
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SOCIETE GENERALE, NEW YORK BRANCH
By: /s/ Elaine Khalil
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Name: Elaine Khalil
Title: Director
CITIBANK, N.A.
By: /s/ Julio Ojea Quintana
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Name: Julio Ojea Quintana
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Brian Schneider
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Name: Brian Schneider
Title: Assistant Vice President
By: /s/ Brian E. Haughney
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Name: Brian E. Haughney
Title: Assistant Vice President
HSBC BANK USA
By: /s/ Diane M. Zieske
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Name: Diane M. Zieske
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Michael R. Heredia
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Name: Michael R. Heredia
Title: Managing Director
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THE BANK OF NEW YORK
By: /s/ Kenneth P. Sneider
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Name: Kenneth P. Sneider
Title: Vice President
MELLON BANK, N.A.
By: /s/ Marian N. Sisto
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Name: Marian N. Sisto
Title: Vice President
SAN PAOLO IMI S.P.A
By: /s/ Robert Wurster
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Name: Robert Wurster
Title: 1st Vice President
By: /s/ Alex Guzzo
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Name: Alex Guzzo
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ William C. Christie
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Name: William C. Christie
Title: Senior Vice President
WESTPAC BANKING CORPORATION
By: /s/ Tony Smith
------------------------------------
Name: Tony Smith
Title: Vice President
Form of Amendment No. 1 to the Guaranty
