Dated February 27, 1996
OMNICOM GROUP INC.
- and -
MORGAN STANLEY BANK AKTIENGESELLSCHAFT
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PAYING AGENCY AGREEMENT
DM 100,000,000
Floating Rate Bonds of 1996 due March 1, 1999
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HENGELER MUELLER WEITZEL WIRTZ
Frankfurt am Main
PAYING AGENCY AGREEMENT dated February 27, 1996
between
(1) OMNICOM GROUP INC. (the "Issuer"),
(2) MORGAN STANLEY BANK AKTIENGESELLSCHAFT as paying agent (the "Bank").
The Issuer and a syndicate of financial institutions (the "Managers") under the
lead management of the Bank have entered into a Subscription Agreement (the
'"Subscription Agreement") dated February 27, 1996, pursuant to which the Issuer
has agreed to issue, and the Managers have agreed to purchase, DM 100,000,000
Floating Rate Bonds of 1996 due March 1, 1999 (the "Bonds").
ss. 1 Definitions
In this Agreement the terms defined in the Subscription Agreement and the Terms
and Conditions of the Bonds (the "Conditions") exhibited to the Subscription
Agreement in Schedule 1 thereof shall have the same meaning herein unless
otherwise required by the context, and "Paying Agent" means the Bank in its
capacity as Paying Agent in respect of the Bonds and any successor of the Bank
in such capacity appointed in accordance with ss. 6(5) of the Conditions,
"Luxembourg Paying Agent" means the financial institution mentioned in ss. 6(7)
of the Conditions in its capacity as paying agent in respect of the Bonds for
the time of its appointment and any other financial institution appointed from
time to time as paying agent in accordance with ss. 6(5) of the Conditions, and
"Agents" means the Paying Agent and the Luxembourg Paying Agent.
ss. 2 Appointment of Agents
(1) The Issuer hereby appoints the Bank as its Paying Agent in respect of the
Bonds and the Paying Agent accepts its appointment hereunder.
The Paying Agent shall have the rights and duties set out in the Conditions and
in this Agreement and such rights and duties as are reasonably incidental
thereto.
(2) The Issuer hereby ratifies (i) the appointment by the Paying Agent, in the
name and on behalf of the Issuer, of the Luxembourg Paying Agent mentioned in
ss. 6(7) of the Conditions and (ii) the making by the Paying Agent, in the name
and on behalf of the Issuer, of the necessary arrangements with the Luxembourg
Paying Agent regarding its services as paying agent. The Paying Agent warrants
to the Issuer that those arrangements are appropriate for the purpose and that
each Paying Agent has agreed to be liable to the Issuer in terms comparable to
those set out in ss. 10(2) hereof.
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ss. 3 The Bonds
(1) Form. The Temporary Global Bond, the Permanent Global Bond (together the
"Global Bonds") and the definitive Bonds with interest coupons attached shall be
substantially in the respective form set out in the Subscription Agreement.
(2) The Global Bonds. The Global Bonds shall be signed manually on behalf of the
Issuer by two duly authorized signatories of the Issuer or by a duly authorized
attorney of the Issuer. The Issuer shall make the duly signed Global Bonds
available to the Paying Agent not later than two Frankfurt banking days before
the Closing Date. The Paying Agent shall authenticate the signed Temporary
Global Bond and deliver it, value the Closing Date, to Deutscher Kassenverein AG
for the account of the Managers. On or after the date which is 40 days after the
Closing Date the Paying Agent shall authenticate the Permanent Global Bond and
deliver it to Deutscher Kassenverein AG in accordance with the provisions of the
Temporary Global Bond and the Permanent Global Bond.
(3) The Definitive Bonds.
(a) Form. The definitive Bonds and interest coupons, if any, shall be executed
in facsimile on behalf of the Issuer by a duly authorized signatory of the
Issuer. The definitive Bonds and the interest coupons shall bear such letters,
numbers or other marks of identification as shall be determined by the duly
authorized signatory of the Issuer executing such Bonds and interest coupons, as
conclusively evidenced by his execution thereof.
(b) Notice. The Paying Agent shall promptly notify the Issuer of any request by
a Bondholder to exchange Bonds represented by the Permanent Global Bond for
definitive Bonds, whereupon the Issuer shall deliver to the Paying Agent
definitive Bonds in a principal amount equal to the principal amount of the
Bonds to be exchanged which shall be authenticated by the Paying Agent and
delivered to Deutscher Kassenverein AG for delivery to the Bondholders.
ss. 4 Payments
(1) Payment by Issuer. Not later than 10:00 a.m. (Frankfurt time) on the
respective due date for the payment of principal, interest or otherwise, the
Issuer shall pay to the Paying Agent in same day funds the monies required for
the payment of principal, interest or otherwise in such currency as at the time
of payment shall be legal tender in the Federal Republic of Germany. The Issuer
shall confirm to the Paying Agent not later than 10:00 a.m. (Frankfurt time) on
the second banking day in Frankfurt am Main before the respective due date for
any such payment that it has issued irrevocable payment instructions for such
payment to be made. The Paying Agent shall contact the Issuer not later than ten
banking days before the respective due date with regard to such payment. Any
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payment hereunder shall be made to a redemption account in Frankfurt am Main as
the Paying Agent may from time to time notify to the Issuer. Such redemption
account will bear no interest.
As used in this Agreement, "banking day" means any day on which banks are open
for business in Frankfurt am Main.
(2) Advances. If the monies required for the payment of principal, interest or
otherwise are not, or not fully, received by the Paying Agent at the time and in
the manner provided for in subsection (1) and if the Paying Agent has received
the confirmation mentioned in subsection (l), the Paying Agent shall be
entitled, but not in any event be obliged, to advance the necessary funds and to
charge interest on the amount of such advance at the rate applied by it from
time to time on overdraft facilities extended to prime borrowers.
(3) Notification. If the Paying Agent has not by 12:00 p.m. (Frankfurt time) on
the second banking day before the respective due date received the confirmation
referred to in subsection (l), it shall forthwith notify the Issuer thereof.
ss. 5 Cancellation
On the exchange of the whole of the Temporary Global Bond for Bonds represented
by the Permanent Global Bond the Paying Agent shall collect and cancel the
Temporary Global Bond. On the exchange of the whole of the Permanent Global Bond
for definitive Bonds or upon full and final payment of principal, interest and
any other moneys payable in respect of the Bonds, the Paying Agent shall collect
and cancel the Permanent Global Bond. The Paying Agent shall deliver the
canceled Global Bonds to the Issuer. The Paying Agent shall bear no further
responsibility for the Global Bonds so cancelled.
ss. 6 Notices
(1) At the request of the Issuer the Paying Agent shall cause to be published in
accordance with ss. 11 of the Conditions any notice to be given to the
Bondholders in accordance with the Conditions or necessary to comply with the
requirements of any stock exchange on which the Bonds are listed.
(2) If the Paying Agent has not received the full amount of the monies payable
to the Bondholders in respect of the Bonds on or prior to the date on which such
monies are payable to it in accordance with ss. 4 (1) and if such monies have
not been advanced by the Paying Agent under ss. 4(2), the Paying Agent shall
notify the Issuer thereof and publish a notice thereof in accordance with ss. 11
of the Conditions.
(3) If the Issuer shall elect to redeem the Bonds under ss. 5 of the Conditions
it shall not less than 30 days prior to the latest date for the publication of
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the notice of redemption to be given to Bondholders, notify the Paying Agent of
such intention stating the date on which the Bonds are to be redeemed.
ss. 7 Documents
The Issuer shall provide to the Paying Agent for distribution among the Agents
sufficient copies of any document required by the Conditions, the Offering
Memorandum or any stock exchange on which the Bonds are listed to be available
for issue or delivery to, or inspection by, Bondholders. Upon request of any
person, the Paying Agent shall, and shall procure that the other Agents will,
make copies of such documents so available to such person.
ss. 8 Other Provisions
(1) No Agency or Trust Relationship. The Agents are acting solely as agents for
the Issuer and do not have any relationship of agency or trust with the
Bondholders. The Paying Agent shall be released from the restrictions set out in
ss. 181 German Civil Code.
(2) No Lien. The Paying Agent shall not, and shall procure that the other Agents
will not, have any lien, right of retention, right of set-off or similar right
in respect of any monies paid or payable to or by it hereunder against the
Issuer, any Bondholder or any other person.
(3) No Liability for Interest. No Agent shall have any liability to any person
for interest on any monies held by it pursuant to this Agreement.
(4) Taking of Advise. The Paying Agent may consult on any legal matter with any
legal adviser satisfactory to it and any advise or written opinion of such legal
adviser shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advise or opinion.
(5) Document Believed to be Genuine. The Paying Agent shall be protected and
shall incur no liability for or in respect of any action taken or omitted to be
taken or loss suffered by it in reliance upon any Global Bond, definitive Bond,
notice, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper party or parties.
ss. 9 Commissions and Expenses
(1) Commissions. The Issuer shall in respect of the services of the Agents
pursuant to this Agreement pay to the Paying Agent the commissions and fees as
separately agreed between the Issuer and the Paying Agent. The Issuer shall have
no responsibility with respect to the apportionment of such monies as between
the Paying Agent and the other Agents.
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(2) Expenses. The Issuer shall pay to the Paying Agent all reasonable
out-of-pocket expenses (including legal, publication, insurance, telex and
postage expenses) properly incurred by the Agents in connection with their
services. Subsection (1), sentence 2 shall apply analogously.
ss. 10 Indemnities
(1) By Issuer. The Issuer shall indemnify each of the Agents against any loss,
liability, expense or claim (including all reasonable expenses paid or incurred
in disputing or defending any of the foregoing) which it may incur or which may
be made against it arising out of or in relation to or in connection with its
appointment or the performance of its functions, except such as may result from
a violation by it of its obligations under or pursuant to this Agreement for
which the Agent is responsible under general provisions of German law.
(2) By Paying Agent. The Paying Agent shall indemnify the Issuer against any
loss, liability, expense or claim (including, but not limited to, all reasonable
expenses paid or incurred in disputing or defending any of the foregoing) which
the Issuer may incur or which may be made against it as a result of the
violation by the Paying Agent of its obligations under this Agreement for which
it is responsible under general provisions of German law.
ss. 11 Change of Agents
The change of Agents shall be governed by the provisions of ss. 6(5) and (7) of
the Conditions.
ss. 12 Communications
(1) Any document or information furnished or supplied under this Agreement shall
be in the English language.
(2) All communications given hereunder shall be given by letter, or by telex,
cable or facsimile transmission to be confirmed by letter.
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(3) Subject to written notice of change of address, all communications hereunder
shall be given to the following addresses:
(a) If to the Issuer:
Omnicom Group Inc.
437 Madison Avenue
New York, N.Y. 10022
U.S.A.
Telefax: 212 415 3530
Attention: Chief Financial Officer
(b) If to the Paying Agent:
Morgan Stanley Bank AG
RahmhofstraBe 2-4
60313 Frankfurt am Main
Federal Republic of Germany
Telefax: 69 2166 1399
Telex: 412 648
Attention: New Issues Department
ss. 13 Severability
Should any provision of this Agreement be or become void in whole or in part,
the other provisions of this Agreement shall remain in force. The void provision
shall be deemed substituted by a valid provision which accomplishes as far as
legally possible the economic purposes of the void provision.
ss. 14 Stamp Taxes
The Issuer shall pay all stamp or other documentary taxes or duties, if any, to
which this Agreement may be subject in the United States of America or the
Federal Republic of Germany.
ss. 15 Governing Law: Place of Performance
(1) This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the Federal Republic of Germany.
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(2) Place of performance for the obligations of all parties hereto shall be
Frankfurt am Main.
ss. 16 Place of Jurisdiction
Any action or other legal proceedings arising out of or in connection with this
Agreement ("Proceedings") shall be brought in the District Court (Landgericht)
in Frankfurt am Main. The Issuer hereby appoints Hasche & Eschenlohr,
Rechtsanwalte, BriennerstraBe 11/V, D-80333 Munich, as its agent for service of
process with respect to any proceedings brought before any German court.
ss. 17 Conditionality
Except for the obligations of the Issuer under ss. 14, the rights and
obligations of the parties hereunder shall be conditional on the occurrence of
the Closing under the Subscription Agreement.
ss. 18 Counterparts
This Agreement is executed in two counterparts in the English language. One
executed counterpart is issued to each party hereto. Each executed counterpart
shall be an original.
OMNICOM GROUP INC.
By
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MORGAN STANLEY BANK AKTIENGESELLSCHAFT
By
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