Preview
Full Doc
 | 2002 |
Access Agreement
Access Agreement (80K)
Doc #151409: Click preview link for longer preview.
INVADERCREATOR ACCESS AGREEMENT
This InvaderCreator Access Agreement ("Agreement"), effective as of October
15, 2002 (the "Effective Date"), is entered into by and between Third Wave
Technologies, Inc., organized under the laws of Delaware and having its
principal place of business at 502 S. Rosa Road, Madison, Wisconsin 53719
("TWTI"), and Aclara Biosciences, Inc., organized under the laws of Delaware and
having its principal place of business at 1288 Pear Avenue, Mountain View,
California 94043 ("ACLA").
BACKGROUND
A. TWTI and ACLA have entered into that certain License Agreement of even
date herewith (the "License Agreement") and Supply Agreement of even date
herewith (the "Supply Agreement").
B. As contemplated in and in connection with the License Agreement, TWTI
will provide access to the InvaderCreator Software (as defined below) in order
to enable the exercise of rights with respect to Licensed Products in accordance
with the License Agreement, all as set forth in more detail below.
NOW, THEREFORE, for and in consideration of the covenants, conditions and
undertakings hereinafter set forth, TWTI and ACLA each agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
indicated:
1.1. Terms from the License Agreement. Each of the terms "Cleavage Enzyme,"
"Development and Commercialization Agreement," "Enabled Customer," "Gene
Expression Field," "Genotyping Field," "Intellectual Property Rights," "Invader
Probe," "Licensed Product," "Manufacturing Distributor," "Party," "Parties,"
"Patent," "Primary Probe," "Target," "Technology," "Technology Access Partner,"
"Third Party" and "Value Added Distributor" shall have the meaning given to the
particular term in the License Agreement. Invader(R) and Cleavase(R) are
registered trademarks of TWTI, but are printed in this Agreement without the
registration mark for convenience. Similarly, InvaderCreator is a trademark of
TWTI, but is printed in this Agreement without the TM mark for convenience.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as * * *. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
{PAGE}
1.2. "Applet" shall mean a Java application that runs Invader Probe and
Primary Probe selection and design algorithms in the context of an applet
viewer, such as a web browser, and has been downloaded by the Host Software to a
user's local computer when the user accesses the Host Software over a network,
including any updates, improvements, enhancements, and modifications that are
downloaded (whether made by TWTI or made by ACLA in accordance with Section
4.3). Except to the extent otherwise expressly stated in this Agreement, Applet
shall mean software only in machine readable format.
1.3. "Authorized Designee" shall mean a Manufacturing Distributor, Value
Added Distributor, Technology Access Partner, or Enabled Customer under the
License Agreement, appointed by ACLA and authorized in accordance with the
License Agreement.
1.4. "Authorized User" shall mean an employee of ACLA or an Authorized
Designee under whose name a Username and Password have been issued by TWTI or
ACLA in accordance with this Agreement.
1.5. "Control" means, (A) with respect to an item of Technology or an
Intellectual Property Right, possession by TWTI of the power and authority,
whether arising by ownership, license, or other authorization, to disclose and
deliver the particular Technology to ACLA, and to grant and authorize the
licenses, and sublicenses, as applicable, of or within the scope granted to ACLA
in Article 4 of this Agreement without giving rise to any of the following: (i)
a violation of the terms of any written agreement with any Third Party; (ii) a
violation or infringement of any Patent, copyright, trade secret, or other
Intellectual Property Right of any Third Party; (iii) TWTI being required to pay
any royalty or other consideration to any Third Party that would not have been
required had a license not been provided under this Agreement; (iv) a violation
of any law, regulation, rule, code, order or other requirement of any federal,
state, foreign, local, or other government body or the need for any additional
permits, payments, authorizations, or approvals under any such law, regulation,
rule, code, order or requirement. Notwithstanding, the provisions of clause
(iii) of this Section 1.5, an item of Technology or an Intellectual Property
Right shall be deemed to be Controlled by TWTI for purposes of clause (iii)
above, if ACLA agrees in writing to (A) reimburse TWTI for all amounts payable
to a Third Party that would not have been required had a license not been
provided under this Agreement or pay such amounts directly to such Third Party,
at the election of TWTI, and (B) reimburse TWTI for fifty percent (50%) of any
upfront, licensing, milestone or other consideration payable to such Third
Party, (but excluding from this clause (B): (1) consideration payable as a
result solely of the exercise of rights under such item of Technology or
Intellectual Property Rights by other than entities acting by or under authority
of the ACLA (i.e. running royalties) and (2) amounts included in clause (A)
above).
1.6. "Hosting Environment" shall mean the servers, and associated hardware,
operated by TWTI or its hosting contractor at the facilities of TWTI or such
contractor to host the Host Software. For clarity, the Hosting Environment shall
be limited to the local area network of TWTI or its contractor at such
facilities used to make the Host Software available, extending
151409
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 Chase Manhattan
As referenced in this Access Agreement:
Chase Manhattan Bank, – due hereunder which
are not paid when due shall bear interest equal to the lesser of the prime rate
as reported by the Chase Manhattan Bank, New York, New York, on the date such
payment is due, plus an additional two percent (2%), or the maximum rate
permitted
_____________
dt 101807
;
ACLARA
As referenced in this Access Agreement:
Aclara Biosciences, Inc. – by and between Third Wave
Technologies, Inc., organized under the laws of Delaware and having its
principal place of business at 502 S. Rosa Road, Madison, Wisconsin 53719
("TWTI"), and Aclara Biosciences, Inc. , organized under the laws of Delaware and
having its principal place of business at 1288 Pear Avenue, Mountain View,
California 94043 ("ACLA").
BACKGROUND
A. TWTI and ACLA have entered
_____________
ACLARA BioSciences, Inc. – a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attn.: Ian B. Edvalson, Esq.
Fax: 650-493-6811
If to ACLARA, addressed to:
ACLARA BioSciences, Inc.
1288 Pear Avenue
Mountain View, California 94043
Attn.: President and CEO
Fax: 650-210-9271
With a copy to:
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
Attn.:
_____________
dt 1453642
;
Third Wave
As referenced in this Access Agreement:
Third Wave
Technologies, – INVADERCREATOR ACCESS AGREEMENT
This InvaderCreator Access Agreement ("Agreement"), effective as of October
15, 2002 (the "Effective Date"), is entered into by and between Third Wave
Technologies, Inc., organized under the laws of Delaware and having its
principal place of business at 502 S. Rosa Road, Madison, Wisconsin 53719
("
_____________
Third Wave Technologies, – or facsimile number as such
Party will have last given by notice to the other Party.
-24-
{PAGE}
If to TWTI, addressed to:
Third Wave Technologies, Inc.
502 South Rosa Road
Madison, Wisconsin 53719
Attn.: President
Fax: 608-273-8618
With a copy to:
Wilson Sonsini Goodrich & Rosati
_____________
THIRD WAVE TECHNOLOGIES, – will constitute one and
the same agreement.
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement.
THIRD WAVE TECHNOLOGIES, INC. ACLA BIOSCIENCES, INC.
("TWTI") ("ACLA")
By: ___________________________ By: ________________________________
Name: _________________________ Name: ______________________________
Title: ________________________ Title: _____________________________
-26-
{/TEXT}
{/DOCUMENT}
_____________
dt 130364
;
|
 Latham & Watkins
As referenced in this Access Agreement:
Latham & Watkins
– View, California 94043
Attn.: President and CEO
Fax: 650-210-9271
With a copy to:
Latham & Watkins
135 Commonwealth Drive
Menlo Park, California 94025
Attn.: Michael W. Hall, Esq.
Fax: 650-
dt 31161
;
WSGR
As referenced in this Access Agreement:
Wilson Sonsini – Rosa Road
Madison, Wisconsin 53719
Attn.: President
Fax: 608-273-8618
With a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attn.: Ian B.
dt 30867
|
Preview
Full Doc
| 2004 |
Agreement
Agreement (70K)
Doc #221270: Click preview link for longer preview.
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>5
<FILENAME>ex10-17.txt
<DESCRIPTION>EXHIBIT 10.17
<TEXT>
<PAGE>
Exhibit 10.17
AGREEMENT ("Agreement") made as of this day of April, 2003,
between Nocopi Technologies, Inc., a Maryland corporation having a principal
place of business at 537 Apple Street, West Conshohocken, Pennsylvania 19428
("Nocopi") and Euro-Nocopi, S.A., a societe anonyme registered with the Paris
Company Registry under the number B 395 113 335 ("Euro") having a principal
place of business at 61, rue Jean Jaures, ZAC Des Clotais, 91160, Champlan,
France.
Recitals
A. The parties entered into a written agreement dated June 10,
1994 (the "License Agreement"), a copy of which agreement (as originally
executed) is annexed hereto as Exhibit A, and a copy of which as hereby amended,
and referred to hereinafter sometimes as the "Amended and Restated License
Agreement" is attached hereto as Exhibit M; and
B. The parties entered into a written agreement dated July 17,
1997 (the "1997 Settlement Agreement"), a copy of which agreement is annexed
hereto as Exhibit B; and
C. Certain disputes have arisen between the parties regarding
their respective rights and obligations under the License Agreement and under
The 1997 Settlement Agreement as a result of which the parties are presently
adversaries in an arbitration proceeding before the American Arbitration
Association in New York City under Case # 50-T133-00107-01 ("Arbitration
Proceeding") and
D. The parties, without acknowledging fault, wrongdoing or
liability whatsoever, desire to settle all controversies, claims, causes of
action and disagreements which as of the date hereof exist, or may exist,
between and among them and wish to discontinue the Arbitration Proceeding with
prejudice, it being the intent of the parties that the only legally enforceable
contractual obligations between them from the date hereof shall be the terms,
provisions and covenants contained in this Agreement and the Amended and
Restated License Agreement.
AGREEMENT
In consideration of the mutual promises and agreements herein
contained and the good and valuable consideration set forth below, the parties
agree as follows:
1. Recitals. The Recitals are incorporated herein by
reference, constitute representations of the parties and are a material part of
this Agreement.
<PAGE>
2. Mutual Releases. (a) Except for the obligations of this
Agreement and the Amended and Restated License Agreement executed
contemporaneously herewith accruing on and after the Closing, Nocopi, for
itself, its officers, directors, employees, and agents hereby releases, remises,
acquits and forever discharges Euro, Euro's officers, directors, and employees,
of and from any and all actions, causes of action, claims, suits, demands,
debts, dues, obligations, accounts, contracts, agreements, controversies,
rights, judgments, damages, losses, costs, expenses, fees, attorneys fees,
sanctions, executions, liabilities, obligations and any and all other
liabilities of any kind whatsoever, either in law or equity, whether known or
unknown, fixed or contingent, suspected or unsuspected, which against any of
them Nocopi now has or may have, on or before the date of this Agreement.
(b) Except for the obligations of this Agreement and
the Amended and Restated License Agreement executed contemporaneously herewith
accruing on and after the Closing, Euro, for itself, its officers, directors,
and employees, hereby releases, remises, acquits and forever discharges Nocopi,
its officers, directors, former directors, affiliates, employees, and agents of
and from any and all actions, causes of action, claims, suits, demands, debts,
dues, obligations, accounts, contracts, agreements, controversies, rights,
judgments, damages, losses, costs, expenses, fees, attorneys fees, sanctions,
executions, liabilities, obligations and any and all other liabilities of any
kind whatsoever, either in law or equity, whether known or unknown, fixed or
contingent, suspected or unsuspected, which against any of them Euro now has or
may have, on or before the date of this Agreement.
3. Dismissal of Arbitration With Prejudice. At Closing,
counsel for the parties shall execute the Stipulation and Order of Dismissal
attached as Exhibit C and made a part hereof dismissing the Arbitration with
prejudice which shall promptly thereafter be filed by counsel for Nocopi with
the American Arbitration Association with copies delivered by facsimile to the
members of the arbitral panel.
4. Closing; Closing Date. "Closing" shall refer to the
delivery and payment of monies and exchange of executed documents required
herein. Closing shall take place at the offices of Euro's attorney, Edward B.
Safran, Esquire, 6th Floor, 770 Lexington Ave., New York, NY on the date of the
delivery of fully executed counterparts hereof by each party to the other, and
not later than April __, 2003, at 10 AM (the "Closing Date").
5. Euro's Performances.
(a) At Closing, Euro shall remit to Hangley Aronchick
Segal & Pudlin, as attorneys, by attorney escrow check drawn on an escrow
account maintained by Edward B. Safran, or, at Nocopi's option, by wire transfer
to an account designated in writing by said attorneys, the sum of Nine Hundred
Thousand (US$900,000) Dollars (the "Initial Payment") for the benefit of Nocopi.
(b) At Closing, Euro shall remit by wire transfer for
the benefit of Nocopi subject to the provisions of this Agreement, in escrow
nevertheless, to Edward B. Safran, Esq., as Escrow Agent, the sum of Two Hundred
Thousand (US$200,000) Dollars, to be used and disbursed pursuant to the
provisions of this Agreement, and Mr. Safran shall deliver to Nocopi an
acknowledgement that he has received such funds and holds them under and subject
to the terms and conditions of this Agreement.
<PAGE>
(c) At Closing, Euro shall deliver to Nocopi or its
designee, and Nocopi shall deliver to Euro or its designee, such duly executed
documents in the form or forms attached as Exhibit D, as are necessary and
sufficient (i) to terminate with prejudice the proceedings initiated before the
Paris Tribunal de Grande Instance (the "Shareholder Proceeding") by writ of
summons dated March 13, 2001, by certain of Euro's current and/or former
shareholders (the "Shareholder Proceeding Plaintiffs"), Groupama-Vie, Maison
Antoine Baud, Courcoux Bouvet, Vitali Maritime Corporation, Mizebourne
Investment Corporation, Greenacres Enterprises, Inc., ING Ferri, Banque Finama,
Guernroy Limited, Fiduciare Suisse, Banque Privee Saint Dominique and Philippe
Patrimoine against Norman Gardner, Ray Mundt, William Drake, Esquire, Joel
Pinsky, Esquire, and Michael Feinstein, M.D., Westvaco Brand Security, Inc.,
Westvaco Corporation, and Stanley G. Hart (the "Shareholder Proceeding
Defendants"), and (ii) to release all claims of each Shareholder Proceeding
Plaintiff against all Shareholder Proceeding Defendants, and all claims of each
Shareholder Proceeding Defendant against each Shareholder Proceeding Plaintiff
if any, to the extent they were actually asserted in the Shareholder Proceeding
or could have been asserted based upon the commencement of the Shareholder
Proceeding against such Shareholder Proceeding Defendant. Without limiting the
221270
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank – depository with
whom the escrow is maintained. The escrow shall be maintained in an IOLA account
regularly maintained by the Escrow Agent with Chase Manhattan Bank or in an
interest bearing account or Certificate(s) of Deposit issued by such bank. Any
interest earned on the escrow fund shall
_____________
dt 102265
;
Ford Motor
As referenced in this Agreement:
Ford Motor
Co – By way of example,
Volvo does not do business as a single integrated concern with Ford Motor
Co mpany and Procter & Gamble (US) is distinct from Procter & Gamble (Europe)].
Accordingly the headquarters or
Ford Motor
Co – of Volvo is, for the purposes
hereof, different from the headquarters and executive offices of Ford Motor
Co mpany, and the headquarters or executive offices of Procter & Gamble (US) is
different from the
dt 65203
;
|
Nocopi
As referenced in this Agreement:
nocopi technologies, – gt;
Exhibit 10.17
AGREEMENT ("Agreement") made as of this day of April, 2003,
between Nocopi Technologies, Inc., a Maryland corporation having a principal
place of business at 537 Apple Street,
nocopi technologies – with Ohle (or her organization) pursuant to which she may be
authorized to provide the Nocopi Technologies and related products and supplies
to certain of her German customers as a sales agent
nocopi technologies – applications
filed by Nocopi for any such Patents, in either case, covering or affecting the
Nocopi Technologies (collectively, the "European Patents"). Nocopi hereby grants
to Euro the right, under the Amended
nocopi technologies, – permitted to be given
under this Agreement will be addressed as follows:
If to Nocopi: Nocopi Technologies, Inc.
537 Apple Street
West Conshocken, PA 19428
Attention: President
with a copy to:
nocopi technologies, – parties hereto have executed this
Agreement as of the day and year first above written.
Nocopi Technologies, Inc. Euro-Nocopi, S.A.
By: By:
-------------------------------- -------------------------------------
Michael Feinstein, CEO Michel de Beaumont, Liquidateur
-----------------------------------
dt 19245
;
Euro-Nocopi, S.A.
|
Preview
Full Doc
| 2003 |
Agreement [Amendment No. 1]
Agreement [Amendment No. 1] (25K)
Doc #244776: Click preview link for longer preview.
FIRST AMENDMENT dated as of October 2, 2001 (this ?Amendment?), among UNITED RENTALS , INC. (?Holdings?). UNITED RENTALS (NORTH AMERICA), INC. (the ?U.S. Borrower?). UNITED RENTALS OF CANADA, INC. (the ?Existing Canadian Borrower?), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova Scotia unlimited liability company (the ?New Canadian Borrower? and, together with the U.S. Borrower and the Existing Canadian Borrower, the ?Borrowers?), the other subsidiaries of Holdings identified on the signature pages hereto, the lenders party hereto, . . .
244776
|
Chase Manhattan
As referenced in this Agreement [Amendment No. 1]:
CHASE MANHATTAN BANK, – and the Existing Canadian Borrower, the Borrowers), the other subsidiaries of Holdings identified on the signature pages hereto, the lenders party hereto, THE CHASE MANHATTAN BANK, as U.S. administrative agent (in such capacity, the U.S. Administrative Agent), and THE CHASE MANHATTAN BANK OF CANADA, as Canadian
_____________
CHASE MANHATTAN BANK – the lenders party hereto, THE CHASE MANHATTAN BANK, as U.S. administrative agent (in such capacity, the U.S. Administrative Agent), and THE CHASE MANHATTAN BANK OF CANADA, as Canadian administrative agent (in such capacity, the Canadian Administrative Agent and, together with the U.S. Administrative Agent, the Administrative
_____________
CHASE MANHATTAN BANK, – Name:
Title:
UNITED RENTALS OF NOVA SCOTIA
(N0.1), ULC.,
by:
/s/ UNITED RENTALS OF NOVA SCOTIA (N0.1), ULC.
Name:
Title:
THE CHASE MANHATTAN BANK,
INDIVIDUALLY AND AS U.S. ADMINISTRATIVE AGENT,
by:
/s/ THE CHASE MANHATTAN BANK
Name:
Title:
THE CHASE MANHATTAN BANK OF CANADA, AS
_____________
CHASE MANHATTAN BANK
– RENTALS OF NOVA SCOTIA (N0.1), ULC.
Name:
Title:
THE CHASE MANHATTAN BANK,
INDIVIDUALLY AND AS U.S. ADMINISTRATIVE AGENT,
by:
/s/ THE CHASE MANHATTAN BANK
Name:
Title:
THE CHASE MANHATTAN BANK OF CANADA, AS AGENT,
by:
/s/ THE CHASE MANHATTAN BANK OF CANADA
Name:
Title:
_____________
CHASE MANHATTAN BANK – ULC.
Name:
Title:
THE CHASE MANHATTAN BANK,
INDIVIDUALLY AND AS U.S. ADMINISTRATIVE AGENT,
by:
/s/ THE CHASE MANHATTAN BANK
Name:
Title:
THE CHASE MANHATTAN BANK OF CANADA, AS AGENT,
by:
/s/ THE CHASE MANHATTAN BANK OF CANADA
Name:
Title:
_____________
dt 102493
;
United Rentals
As referenced in this Agreement [Amendment No. 1]:
UNITED RENTALS (NORTH AMERICA) – 01/02/2001
Exhibit 10 (b)
EXECUTION COPY
FIRST AMENDMENT dated as of October 2, 2001 (this Amendment), among UNITED RENTALS , INC. (Holdings). UNITED RENTALS (NORTH AMERICA) , INC. (the U.S. Borrower). UNITED RENTALS OF CANADA, INC. (the Existing Canadian Borrower), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC,
_____________
UNITED RENTALS (NORTH AMERICA) – to be duly executed by its authorized officer as of October 16, 2001).
UNITED RENTALS INC.,
by:
/s/ UNITED RENTALS INC.
Name:
Title:
UNITED RENTALS (NORTH AMERICA) , INC.,
by:
/s/ UNITED RENTALS (NORTH AMERICA), INC.
Name:
Title:
UNITED RENTALS OF CANADA, INC.,
by:
/s/ UNITED RENTALS OF CANADA, INC.
_____________
UNITED RENTALS (NORTH AMERICA) – officer as of October 16, 2001).
UNITED RENTALS INC.,
by:
/s/ UNITED RENTALS INC.
Name:
Title:
UNITED RENTALS (NORTH AMERICA), INC.,
by:
/s/ UNITED RENTALS (NORTH AMERICA) , INC.
Name:
Title:
UNITED RENTALS OF CANADA, INC.,
by:
/s/ UNITED RENTALS OF CANADA, INC.
Name:
Title:
UNITED RENTALS OF NOVA SCOTIA
(
_____________
dt 108262
;
United Rentals
As referenced in this Agreement [Amendment No. 1]:
UNITED RENTALS – 10 (b)
EXECUTION COPY
FIRST AMENDMENT dated as of October 2, 2001 (this Amendment), among UNITED RENTALS , INC. (Holdings). UNITED RENTALS (NORTH AMERICA), INC. (the U.S. Borrower). UNITED RENTALS OF
. . .
UNITED RENTALS – FIRST AMENDMENT dated as of October 2, 2001 (this Amendment), among UNITED RENTALS , INC. (Holdings). UNITED RENTALS (NORTH AMERICA), INC. (the U.S. Borrower). UNITED RENTALS OF CANADA, INC. (the Existing
. . .
UNITED RENTALS – Amendment), among UNITED RENTALS , INC. (Holdings). UNITED RENTALS (NORTH AMERICA), INC. (the U.S. Borrower). UNITED RENTALS OF CANADA, INC. (the Existing Canadian Borrower), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC,
. . .
UNITED RENTALS – AMERICA), INC. (the U.S. Borrower). UNITED RENTALS OF CANADA, INC. (the Existing Canadian Borrower), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova Scotia unlimited liability company (the New Canadian
. . .
United Rentals – is hereby amended by inserting the following definitions in proper alphabetical order:
UR Canada means United Rentals of Canada, Inc., a corporation organized and existing under the laws of Canada.
UR Nova
. . .
dt 71682
;
|
Cravath
As referenced in this Agreement [Amendment No. 1]:
Cravath, Swaine – expenses of the Administrative Agents (including, without limitation, the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agents).
(k) The applicable Collateral Agent shall have received
. . .
Cravath, Swaine – pocket expenses in connection with this Amendment, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agents.
IN WITNESS whereof, the parties hereto have caused
. . .
dt 72195
;
Weil Gotshal
As referenced in this Agreement [Amendment No. 1]:
Weil, Gotshal – and UR Partnership, (ii) Oscar D. Folger, Esq., counsel for the Loan Parties, and (iii) Weil, Gotshal & Manges LLP, U.S. counsel for Holdings and the U.S. Borrower, in each
. . .
dt 70123
;
United Rentals of Canada, Inc.
|
Preview
Full Doc
| 2002 |
Agreement [Amendment No. 3]
Agreement [Amendment No. 3] (17K)
Doc #244788: Click preview link for longer preview.
THIRD AMENDMENT AND AGREEMENT dated as of December 17, 2002 (this ?Amendment?), among UNITED RENTALS, INC. (?Holdings?), UNITED RENTALS (NORTH AMERICA), INC. (the ?U.S. Borrower?), UNITED RENTALS OF CANADA, INC. (?UR Canada?), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova Scotia unlimited liability company (?UR Nova Scotia (No. 1)? and, together with the U.S. Borrower and UR Canada, the ?Borrowers?), the lenders party hereto, JPMORGAN CHASE BANK (formerly known as THE CHASE MANHATTAN BANK), as U.S. administrative agent (in such capacity, the ?U.S. Administrative Agent?), and J.P. MORGAN . . .
244788
|
Chase Manhattan
As referenced in this Agreement [Amendment No. 3]:
CHASE MANHATTAN BANK) – and, together with the U.S. Borrower and UR Canada, the Borrowers), the lenders party hereto, JPMORGAN CHASE BANK (formerly known as THE CHASE MANHATTAN BANK) , as U.S. administrative agent (in such capacity, the U.S. Administrative Agent), and J.P. MORGAN BANK CANADA (formerly known as
_____________
CHASE MANHATTAN BANK – as U.S. administrative agent (in such capacity, the U.S. Administrative Agent), and J.P. MORGAN BANK CANADA (formerly known as THE CHASE MANHATTAN BANK OF CANADA), as Canadian administrative agent (in such capacity, the Canadian Administrative Agent and, together with the U.S. Administrative Agent, the Administrative
_____________
dt 102496
;
United Rentals
As referenced in this Agreement [Amendment No. 3]:
UNITED RENTALS (NORTH AMERICA) – 2002
Exhibit 99.2
EXECUTION COPY
THIRD AMENDMENT AND AGREEMENT dated as of December 17, 2002 (this Amendment), among UNITED RENTALS, INC. (Holdings), UNITED RENTALS (NORTH AMERICA) , INC. (the U.S. Borrower), UNITED RENTALS OF CANADA, INC. (UR Canada), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova
_____________
UNITED RENTALS (NORTH AMERICA) – Amendment to be duly executed by their respective authorized officers as of the date first above written.
UNITED RENTALS, INC.,
By:
Name:
Title:
UNITED RENTALS (NORTH AMERICA) , INC.,
By:
Name:
Title:
UNITED RENTALS OF CANADA, INC.,
By:
Name:
Title:
UNITED RENTALS OF NOVA SCOTIA
(NO. 1), ULC,
By:
Name:
_____________
dt 108268
;
United Rentals
As referenced in this Agreement [Amendment No. 3]:
UNITED RENTALS, – EXECUTION COPY
THIRD AMENDMENT AND AGREEMENT dated as of December 17, 2002 (this Amendment), among UNITED RENTALS, INC. (Holdings), UNITED RENTALS (NORTH AMERICA), INC. (the U.S. Borrower), UNITED RENTALS OF
. . .
UNITED RENTALS – AND AGREEMENT dated as of December 17, 2002 (this Amendment), among UNITED RENTALS, INC. (Holdings), UNITED RENTALS (NORTH AMERICA), INC. (the U.S. Borrower), UNITED RENTALS OF CANADA, INC. (UR Canada),
. . .
UNITED RENTALS – Amendment), among UNITED RENTALS, INC. (Holdings), UNITED RENTALS (NORTH AMERICA), INC. (the U.S. Borrower), UNITED RENTALS OF CANADA, INC. (UR Canada), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova
. . .
UNITED RENTALS – RENTALS (NORTH AMERICA), INC. (the U.S. Borrower), UNITED RENTALS OF CANADA, INC. (UR Canada), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova Scotia unlimited liability company (UR Nova Scotia (
. . .
UNITED RENTALS, – be duly executed by their respective authorized officers as of the date first above written.
UNITED RENTALS, INC.,
By:
Name:
Title:
UNITED RENTALS (NORTH AMERICA), INC.,
By:
Name:
Title:
UNITED RENTALS
. . .
dt 71693
;
|
JPMorgan Chase
As referenced in this Agreement [Amendment No. 3]:
JPMORGAN CHASE – together with the U.S. Borrower and UR Canada, the Borrowers), the lenders party hereto, JPMORGAN CHASE BANK (formerly known as THE CHASE MANHATTAN BANK), as U.S. administrative agent (in such
. . .
JPMORGAN CHASE – INC.,
By:
Name:
Title:
UNITED RENTALS OF NOVA SCOTIA
(NO. 1), ULC,
By:
Name:
Title:
JPMORGAN CHASE BANK, individually and
as U.S. Administrative Agent and Issuing Bank,
By:
Name:
Title:
Name
. . .
dt 70300
;
Cravath
As referenced in this Agreement [Amendment No. 3]:
Cravath, Swaine – expenses of the Administrative Agents (including, without limitation, the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agents).
(c) The U.S. Borrower shall have issued
. . .
Cravath, Swaine – pocket expenses in connection with this Amendment, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agents.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the
. . .
dt 72198
;
United Rentals of Canada, Inc.
|
Preview
Full Doc
| 2002 |
Agreement [Amendment No. 2]
Agreement [Amendment No. 2] (18K)
Doc #244804: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-99.1
{SEQUENCE}3
{FILENAME}dex991.txt
{DESCRIPTION}SECOND AMENDMENT DATED 09/30/02
{TEXT}
{PAGE}
EXHIBIT 99.1
SECOND AMENDMENT dated as of September 30, 2002
(this "Amendment"), among UNITED RENTALS , INC.
("Holdings"), UNITED RENTALS (NORTH AMERICA), INC. (the
"U.S. Borrower"), UNITED RENTALS OF CANADA, INC. ("UR
Canada"), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova
Scotia unlimited liability company ("UR Nova Scotia (No. 1)"
and, together with the U.S. Borrower and UR Canada, the
"Borrowers"), the lenders party hereto, JPMORGAN CHASE BANK
(formerly known as THE CHASE MANHATTAN BANK), as U.S.
administrative agent (in such capacity, the "U.S.
Administrative Agent"), and J.P. MORGAN BANK CANADA
(formerly known as THE CHASE MANHATTAN BANK OF CANADA), as
Canadian administrative agent (in such capacity, the
"Canadian Administrative Agent" and, together with the U.S.
Administrative Agent, the "Administrative Agents").
A. Reference is made to the Amended and Restated Credit Agreement dated
as of April 20, 2001 (as amended by the First Amendment dated as of October 2,
2001, among Holdings, UR Nova Scotia (No. 1), the U.S. Borrower, UR Canada, the
lenders party thereto, the U.S. Administrative Agent and the Canadian
Administrative Agent and as further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among Holdings, the U.S. Borrower,
UR Canada, the lenders party thereto, the U.S. Administrative Agent and the
Canadian Administrative Agent. Capitalized terms used but not otherwise defined
herein have the meanings assigned to them in the Credit Agreement.
B. Holdings and the Borrowers have requested that the Required Lenders
and the Issuing Bank amend certain provisions of the Credit Agreement. The
Required Lenders and the Issuing Bank are willing to agree to such amendments on
the terms and subject to the conditions of this Amendment.
Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Section 1.01 of the Credit Agreement. (a) The
definition of the term "Consolidated Net Income" in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety and replaced with
the following:
""Consolidated Net Income" means, with respect to Holdings and its
Subsidiaries for any period, the net income (or loss) of Holdings and its
Subsidiaries for such period, excluding (a) any extraordinary gains during
such period, (b) if such period includes the Fiscal Quarter ending June
30, 2001, (i) up to $27,000,000 of financing fees incurred and written-off
in such Fiscal Quarter as a result of the Transactions and (ii) up to
$40,000,000 of charges taken in such Fiscal Quarter related to store
closings and work force reductions, (c) any non-cash charges during such
period attributable to the impairment of goodwill, (d) any non-cash
charges during such period attributable to the amortization of deferred
stock compensation, (e) any non-cash expenses during such period
attributable to stock options and warrants with respect to Equity
Interests in Holdings and (f) up to $40,000,000 of charges related to
store closings and work force reductions initiated during any Fiscal
Quarter ending on or after September 30, 2002 through March 31, 2003."
(b) The definition of the term "Net Worth" in Section 1.01 of the Credit
Agreement is hereby amended by inserting immediately following the text
"Consolidated Net Income" in the fifth line of such definition the text "and the
non-cash charges attributable to the impairment of goodwill (net of any tax
benefits relating to such charges) referred to in clause (c) of the definition
of Consolidated Net Income".
(c) The definition of the term "Hedging Agreement" in Section 1.01 of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
{PAGE}
2
""Hedging Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing
risk or value or any similar transaction or any combination of these
transactions; provided that no (a) phantom stock or similar plan providing
for payments only on account of services provided by current or former
directors, officers, employees or consultants of Holdings or the
Subsidiaries or (b) stock options, warrants or other agreements (including
acquisition agreements) providing for the issuance of Equity Interests or
of stock options, warrants or other rights to acquire Equity Interests
shall be a Hedging Agreement."
SECTION 2. Amendment to Section 2.05 of the Credit Agreement. Section
2.05 of the Credit Agreement is hereby amended by deleting the amount
"$100,000,000" in paragraph (b) thereof and replacing it with the amount
"$175,000,000".
SECTION 3. Amendments to Article VI of the Credit Agreement. (a)
Section 6.01 of the Credit Agreement is hereby amended by deleting
paragraph (a) thereof in its entirety and replacing it with the
following:
"(a) Minimum Interest Coverage Ratio. Holdings will not permit
the Interest Coverage Ratio for any Computation Period ending during any period
set forth below to be less than the ratio set forth opposite such period:
Period Ratio
------ -----
On or before June 30, 2002 1.75 to 1.0
July 1, 2002 through 1.50 to 1.0
December 31, 2003
January 1, 2004 and thereafter 1.75 to 1.0
(b) Section 6.02 of the Credit Agreement is hereby amended by deleting
paragraph (m) thereof in its entirety and replacing it with the following:
"(m) Hedging Obligations incurred to (a) hedge or mitigate risks to which
Holdings or any Subsidiary has exposure or (b) effectively cap, collar or
exchange interest rates (from fixed to floating rates, from one floating
rate to another floating rate, from floating to fixed rates or otherwise)
with respect to any interest-bearing liability or investment of Holdings
or any Subsidiary; provided that, in the case of sub-clause (b) of this
paragraph (m), at all times prior to September 30, 2003, after giving
effect to all Hedging Agreements entered into pursuant to this clause (m),
at least 50% of the aggregate outstanding principal amount of (i) Term
Loans, Incremental Term Loans, Senior Notes, Subordinated Debt and QuIPS
Debentures plus (ii) other senior notes, subordinated notes and term loans
of Holdings and its Subsidiaries incurred pursuant to Section 6.02(b) of
the Credit Agreement is effectively subject to fixed rates of interest;
provided further that, notwithstanding anything in this Agreement to the
244804
|
Chase Manhattan
As referenced in this Agreement [Amendment No. 2]:
CHASE MANHATTAN BANK) – and, together with the U.S. Borrower and UR Canada, the
"Borrowers"), the lenders party hereto, JPMORGAN CHASE BANK
(formerly known as THE CHASE MANHATTAN BANK) , as U.S.
administrative agent (in such capacity, the "U.S.
Administrative Agent"), and J.P. MORGAN BANK CANADA
(formerly known as
_____________
CHASE MANHATTAN BANK – as U.S.
administrative agent (in such capacity, the "U.S.
Administrative Agent"), and J.P. MORGAN BANK CANADA
(formerly known as THE CHASE MANHATTAN BANK OF CANADA), as
Canadian administrative agent (in such capacity, the
"Canadian Administrative Agent" and, together with the U.S.
Administrative Agent, the "Administrative
_____________
dt 102498
;
United Rentals
As referenced in this Agreement [Amendment No. 2]:
UNITED RENTALS (NORTH AMERICA) – 09/30/02
{TEXT}
{PAGE}
EXHIBIT 99.1
SECOND AMENDMENT dated as of September 30, 2002
(this "Amendment"), among UNITED RENTALS , INC.
("Holdings"), UNITED RENTALS (NORTH AMERICA) , INC. (the
"U.S. Borrower"), UNITED RENTALS OF CANADA, INC. ("UR
Canada"), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova
_____________
UNITED RENTALS (NORTH AMERICA) – Amendment to be
duly executed by their respective authorized officers as of the date first above
written.
UNITED RENTALS, INC.,
by
-----------------------------
Name:
Title:
UNITED RENTALS (NORTH AMERICA) , INC.,
by
-----------------------------
Name:
Title:
UNITED RENTALS OF CANADA, INC.,
by
-----------------------------
Name:
Title:
UNITED RENTALS OF NOVA SCOTIA
(NO. 1), ULC,
by
-----------------------------
Name:
_____________
dt 108275
;
United Rentals
As referenced in this Agreement [Amendment No. 2]:
UNITED RENTALS – PAGE}
EXHIBIT 99.1
SECOND AMENDMENT dated as of September 30, 2002
(this "Amendment"), among UNITED RENTALS , INC.
("Holdings"), UNITED RENTALS (NORTH AMERICA), INC. (the
"U.S. Borrower"), UNITED RENTALS OF
. . .
UNITED RENTALS – SECOND AMENDMENT dated as of September 30, 2002
(this "Amendment"), among UNITED RENTALS , INC.
("Holdings"), UNITED RENTALS (NORTH AMERICA), INC. (the
"U.S. Borrower"), UNITED RENTALS OF CANADA, INC. ("UR
Canada"),
. . .
UNITED RENTALS – Amendment"), among UNITED RENTALS , INC.
("Holdings"), UNITED RENTALS (NORTH AMERICA), INC. (the
"U.S. Borrower"), UNITED RENTALS OF CANADA, INC. ("UR
Canada"), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova
. . .
UNITED RENTALS – RENTALS (NORTH AMERICA), INC. (the
"U.S. Borrower"), UNITED RENTALS OF CANADA, INC. ("UR
Canada"), UNITED RENTALS OF NOVA SCOTIA (NO. 1), ULC, a Nova
Scotia unlimited liability company ("UR Nova Scotia (
. . .
UNITED RENTALS, – be
duly executed by their respective authorized officers as of the date first above
written.
UNITED RENTALS, INC.,
by
-----------------------------
Name:
Title:
UNITED RENTALS (NORTH AMERICA), INC.,
by
-----------------------------
Name:
Title:
UNITED RENTALS
. . .
dt 71708
;
|
JPMorgan Chase
As referenced in this Agreement [Amendment No. 2]:
JPMORGAN CHASE – together with the U.S. Borrower and UR Canada, the
"Borrowers"), the lenders party hereto, JPMORGAN CHASE BANK
(formerly known as THE CHASE MANHATTAN BANK), as U.S.
administrative agent (in such
. . .
JPMORGAN CHASE – INC.,
by
-----------------------------
Name:
Title:
UNITED RENTALS OF NOVA SCOTIA
(NO. 1), ULC,
by
-----------------------------
Name:
Title:
JPMORGAN CHASE BANK, individually and
as U.S. Administrative Agent and
Issuing Bank,
by
-----------------------------
Name:
Title:
{PAGE}
. . .
dt 70303
;
Cravath
As referenced in this Agreement [Amendment No. 2]:
Cravath, Swaine – expenses of the Administrative
Agents (including, without limitation, the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the Administrative
Agents).
SECTION 6. Credit Agreement. Except as specifically stated
. . .
Cravath,
Swaine – pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Administrative Agents.
[SIGNATURES ON FOLLOWING PAGE]
{PAGE}
IN WITNESS WHEREOF,
. . .
dt 72199
;
United Rentals of Canada, Inc.
|
Preview
Full Doc
| 2000 |
Credit Agreement
Credit Agreement (80K)
Doc #290399: Click preview link for longer preview.
________________________________________________________________________________
AGREEMENT, DATED AS OF SEPTEMBER 22, 2000,
among
CONSECO, INC.,
as Guarantor,
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO,
as Bank Lenders
and
BANK OF AMERICA, N.A.,
as Administrative Agent,
RELATING TO
. . .
290399
|
Chase Manhattan
As referenced in this Credit Agreement:
CHASE MANHATTAN BANK
– Facsimile: (312) ________
Notice Address:
Address: 231 S. LaSalle Street
Chicago, IL 60697
Attention: ______________
Telephone: (312) _________
Facsimile: (312) __________
{PAGE}
THE CHASE MANHATTAN BANK
By:
Name:
Title:
Lending Office:
Address: 207 Park Avenue
New York, New York 10017
Attention:
Telephone:
Facsimile:
Notice Address:
Address: 207 Park
_____________
dt 245537
;
Conseco
As referenced in this Credit Agreement:
CONSECO, INC – 4
{SEQUENCE}6
{FILENAME}0006.txt
{DESCRIPTION}EXHIBIT 4.5
{TEXT}
EXHIBIT 4.5
________________________________________________________________________________
AGREEMENT, DATED AS OF SEPTEMBER 22, 2000,
among
CONSECO, INC .,
as Guarantor,
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO,
as Bank Lenders
and
BANK OF AMERICA, N.A.,
as Administrative Agent,
RELATING TO
_____________
Conseco, Inc – EXHIBIT D FORM OF NEW CIHC GUARANTY
ii
{PAGE}
AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of September 22, 2000,
---------
among Conseco, Inc . (the "Guarantor"), the several financial institutions party
---------
to this Agreement (herein, together with any eligible assignees thereof,
collectively called the "Banks" and
_____________
CONSECO, INC – FOR THE PARTIES ENTERING INTO THIS
AGREEMENT.
* * *
[Signature Pages Follow]
22
{PAGE}
Executed as of the date and year first written above.
GUARANTOR:
CONSECO, INC .
By: /s/ Thomas M. Hagerty
Name: Thomas M. Hagerty
Title: Acting Chief Financial Officer
Notice Address:
11825 N. Pennsylvania Street
Carmel, IN
_____________
dt 248254
;
BofA
As referenced in this Credit Agreement:
BANK OF AMERICA, N.A. – ________________________________________________________________________________
AGREEMENT, DATED AS OF SEPTEMBER 22, 2000,
among
CONSECO, INC.,
as Guarantor,
THE OTHER FINANCIAL INSTITUTIONS
PARTY HERETO,
as Bank Lenders
and
BANK OF AMERICA, N.A. ,
as Administrative Agent,
RELATING TO
1998 DIRECTOR & OFFICER LOAN
CREDIT AGREEMENT
________________________________________________________________________________
{PAGE}
Table of Contents
-----------------
{TABLE}
{CAPTION}
Page
----
{S} {C}
SECTION
_____________
BANK OF
----- ----
AMERICA, NA – financial institutions party
---------
to this Agreement (herein, together with any eligible assignees thereof,
collectively called the "Banks" and each individually, a "Bank"), and BANK OF
----- ----
AMERICA, NA TIONAL ASSOCIATION ("BofA"), as administrative agent for the Banks
----
(herein in such capacity, together with any successors thereto in such capacity,
called the "
_____________
BANK OF AMERICA, NA – Court, Suite 1300
Dallas, Texas 75201-6950
Attention: Angela L. Fontana, Esq.
Telephone: (214) 746-7000
Facsimile: (214) 746-7700
{PAGE}
ADMINISTRATIVE AGENT:
BANK OF AMERICA, NA TIONAL
ASSOCIATION
By:
Name:
Title:
Notice Address:
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Debra Basler
Telephone: (312) 828-2345
Facsimile: (312)
_____________
BANK OF AMERICA, N.A. – Street
Chicago, Illinois 60603
Attention: Thomas S. Kiriakos, Esq.
William C. Tompsett, Esq.
Telephone: (312) 782-0600
Facsimile: (312) 701-7711
{PAGE}
BANKS:
BANK OF AMERICA, N.A.
By:
Name:
Title:
Lending Office
Address: 231 S. LaSalle Street
Chicago, IL 60697
Attention: Debra Basler
Telephone: (312) 828-____
Facsimile: (312)
_____________
dt 235238
;
|
BNY
As referenced in this Credit Agreement:
BANK OF NEW YORK
– Street
New York, NY 10019
Attention: Susan Maros
Telephone: (212) 474-8104
Facsimile: (212) 474-8108
Notice Address:
Address:
Attention:
Telephone:
Facsimile:
{PAGE}
BANK OF NEW YORK
By:
Name:
Title:
Lending Office:
Address: One Wall Street
New York, New York 10286
Attention:
Telephone:
Facsimile:
Notice Address:
Address:
Attention:
Telephone:
_____________
dt 236148
;
Mayer Brown
As referenced in this Credit Agreement:
Mayer, Brown – Address:
231 South LaSalle Street
Chicago, Illinois 60697
Attention: Debra Basler
Telephone: (312) 828-2345
Facsimile: (312) 987-0889
with a copy to:
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
Attention: Thomas S. Kiriakos, Esq.
William C. Tompsett, Esq.
Telephone: (312) 782-0600
Facsimile: (
_____________
dt 250957
;
Weil Gotshal
As referenced in this Credit Agreement:
Weil, Gotshal – as the case may
be) and, including opinions of the general counsel to the Guarantor, CIHC,
and any Cash Collateral Pledgor and of Weil, Gotshal & Manges LLP
acceptable (both in form and content and as to which counsel is delivering
the particular opinion) to the Administrative Agent;
_____________
Weil, Gotshal – Address:
11825 N. Pennsylvania Street
Carmel, IN 46032
Attention: David Herzog
Telephone: (317) 817-5031
Facsimile: (317) 817-6327
with a copy to
Weil, Gotshal & Manges LLP
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6950
Attention: Angela L. Fontana, Esq.
Telephone: (214) 746-7000
Facsimile: (214)
_____________
dt 241717
|
Preview
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| 2002 |
Agreement
Agreement (119K)
Doc #345591: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.36
{SEQUENCE}78
{FILENAME}dex1036.txt
{DESCRIPTION}AGREEMENT DATED NOVEMBER 30, 1997
{TEXT}
{PAGE}
Exhibit 10.36
Draft: 25 November '97
AGREEMENT
---------
This Agreement (the "Agreement") is entered into as of the 30th day of
November, 1997, among CBC Holding (Delaware) Inc., a Delaware corporation
("CBC"); Chase Insurance Agency, Inc., a Delaware corporation ("CIA");
U.S.I. Holdings Corporation, a Delaware corporation ("USI"); and USI Insurance
Services Corp., a Delaware corporation ("USIS").
RECITALS
WHEREAS, CBC and CIA are both indirectly wholly-owned by The Chase
Manhattan Corporation ("CMC"); and
WHEREAS, USIS is a wholly-owned subsidiary of USI; and
WHEREAS, CBC wishes to purchase from USI certain shares of USI preferred
stock, as hereinafter described; and
WHEREAS, USI wishes to issue and sell such shares to CBC, on terms and
conditions hereinafter set forth; and
WHEREAS, CIA wishes to develop an insurance brokerage business specializing
in the insurance and employee benefits needs of certain of its Affiliates'
commercial customers; and
WHEREAS, USI has the requisite expertise to develop such a brokerage
business for CIA, all as described below; and
WHEREAS, CIA wishes to engage USI to develop such a business for CIA, and
USI is willing to accept such engagement, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used herein, the following capitalized terms shall have the
------------
meanings indicated:
1996 Audited Financial Statements: the financial statements of USI and its
----------------------------------
consolidated Affiliates, as of December 31, 1996, audited by Deloitte &
Touche, LLP, attached hereto as Exhibit A.
1
{PAGE}
Acquired Agency: an insurance agency described in Section 4.3.
---------------
Adjustment Period: the period of six (6) calendar months following the
-----------------
Option Exercise Date or the USIS Put Exercise Date, as the case may be.
Affiliate: as to any person or entity, any other person or entity
---------
controlling, controlled by, or under direct or indirect common control
with, such person or entity.
Agency Acquisition: the acquisition by USI of any property and casualty
------------------
insurance agency, in accordance with Section 4.3.
Annualized Run Rate EBITDA: EBITDA, adjusted in accordance with Section
--------------------------
5.6.1.2.
Arbiter: the party selected by USI and CIA, pursuant to Section 5.6.3, to
-------
determine the amount of the First Installment or the Second Installment, as
the case may be.
Business Day: any day on which banks in New York are neither required nor
------------
permitted to close.
Business Plan: the business plan for Newco's first three years of
-------------
operation, to be agreed between USI and CIA, as it may be amended from time
to time (which amendment(s) shall require the written consent of both USI
and CIA). A draft of the Business Plan is attached hereto as Exhibit C.
Carriers: companies which have certificates of authority to underwrite
--------
insurance.
Closing Date: the date on which the purchase of Shares by CBC takes place.
------------
Closing: the closing of the purchase of Shares by CBC, pursuant to Section
-------
2.3.
CBC: CBC Holding (Delaware) Inc., a Delaware corporation.
---
CBC Put: CBC's right to cause USI to repurchase the Shares under certain
-------
circumstances, as described in Article III.
CBC Put Exercise Notice: CBC's notice to USI that CBC wishes to exercise
-----------------------
the CBC Put.
2
{PAGE}
CBC Put Price: the price to be paid by USI to CBC in exchange for the
-------------
Shares, upon CBC's exercise of the CBC Put, as described in Section 3.2.
CIA: Chase Insurance Agency, Inc., a Delaware corporation.
---
CIA Indemnified Person: as defined in Section 11.1.
----------------------
CMC: The Chase Manhattan Corporation, a Delaware corporation and the
---
indirect parent company of CBC and CIA.
Commission Revenue: that portion of the Customer Revenue paid by Carriers
------------------
and Providers to Newco or an Affiliate, or retained by Newco or an
Affiliate, in connection with the placement of insurance policies and
employee benefits programs contemplated hereby.
Confidential Information of any specified Party: all information provided
-----------------------------------------------
to a Party or any of its Affiliates (the "Receiving Party") by, or at the
direction of, another Party or any of its Affiliates (the "Disclosing
Party") in connection with the transactions contemplated hereby. (For the
sake of clarity, it is understood that information obtained by USI
Affiliates from their customers and prospective customers, outside the
context of this Agreement and the transactions and activities contemplated
hereby, shall not constitute Confidential Information for purposes hereof.)
Such information may be in any form including, but not limited to, printed
or oral communications and information stored in printed or electromagnetic
format; it may relate to, among other things, the Disclosing Party's or its
Affiliates' business relationships and methods of transacting business,
their customers, and the terms and conditions of this Agreement and the
Related Documents. The term "Confidential Information" shall not include
information which (i) was or becomes generally available to the public
other than as a result of the disclosure by the Receiving Party, its
Affiliates, or any of their respective employees, agents or advisors, or
(ii) was or becomes available to the Receiving Party or its employees,
agents or advisors on a nonconfidential basis from a source other than the
Disclosing Party, its Affiliates, or their respective employees, agents or
advisors, provided that such source is not known by the Receiving Party to
be prohibited by contractual, legal, or fiduciary obligation from
disclosing such information.
Control Transaction: any transaction contemplated by Section 3.1.
-------------------
Customer Revenue: commissions, fees and other revenues of Newco or an
----------------
Affiliate, generated by the sales and Servicing of insurance policies
3
{PAGE}
and employee benefits programs, and related products and activities
contemplated hereby.
Disclosing Party: as defined in the definition of "Confidential
----------------
Information," above.
EBITDA: earnings of Newco, before deduction of interest, income and
------
franchise taxes, depreciation, and amortization.
EBITDA Exercise Price: the price (consisting of the First Installment and
---------------------
the Second Installment) to be paid by CIA to USIS and the USI Partnership
or to Newco, as the case may be, upon exercise of the Option pursuant to
those Trigger Events specified in Sections 5.6 and 5.7, or upon exercise of
the USIS Put, as the case may be.
Employees: the employees of Newco.
---------
Estimated Newco Value: the value of Newco calculated by reference to the
---------------------
Annualized Run Rate EBITDA, from which the amount of the First Installment
is to be calculated, as described in Section 5.6.1.3.
Excluded Assets: the assets of Newco, if any, which CIA specifies as being
---------------
excluded from CIA's purchase of the Newco Business, as described in Section
5.8.2.
Exercise Price: the price (either the EBITDA Exercise Price or the Fixed
345591
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank
– Floor
Wilmington, DE 19801
Attention: Richard J. Nolan
President and CEO
Facsimile No.: (302) 654-3008
Copies to:
Arthur T. Guja
Vice President and Assistant General Counsel
Legal Department
The Chase Manhattan Bank
New York, NY 10017
Facsimile No.: (212) 270-1226
(b) if to CIA:
Chase Insurance Agency, Inc.
380 Madison Avenue
13th Floor
New York, NY 10017
Attention: Dennis Kosovac
_____________
Chase Manhattan Bank
– Floor
New York, NY 10017
Attention: Dennis Kosovac
President and CEO
Facsimile No.: (212) 622-4470
Copies to:
Arthur T. Guja
Vice President and Assistant General Counsel
Legal Department
The Chase Manhattan Bank
New York, NY 10017
Facsimile No.: (212) 270-1226
42
{PAGE}
(c) if to USI:
U.S.I. Holdings Corporation
c/o Progressive Plan Administrators
470 Park Avenue South
_____________
dt 742230
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (50K)
Doc #370642: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of November 6, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 (the
"Company"), and Robert W. Fiondella (the "Executive"), residing in Bristol,
Connecticut.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
1
{PAGE}
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the period
commencing two (2) years earlier, constituted the Company's or the Holding
Company's board of directors cease for any reason to constitute at least a
majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock corporation and,
prior to the fifth anniversary of the effective date of its demutualization,
five percent (5%) or, if after such fifth anniversary, ten percent (10%) (or, in
either case, such higher percentage (not to exceed twenty percent (20%)) at
which approval by the New York Insurance Department is required to effect such
an acquisition) or more of the combined voting power of securities of the
Company or of the Holding Company are acquired by an individual, entity, any
employee benefit plan sponsored or maintained by the Company or a Subsidiary, or
group acting in concert, in each case, other than the Holding Company or any of
its subsidiaries; or
(v) at any date after the date hereof, the Company or the
Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of directors
shall approve any merger, consolidation or like business combination or
reorganization of the Company or the Holding Company, as the case may be, such
transaction shall have been consummated and a majority of the individuals who
constituted directors of the Company or the Holding Company on the day the board
of directors approved such transaction cease for any reason, at any time within
two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
2
{PAGE}
reorganization of, the Company or the Holding Company or (B) who has been
370642
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company
_____________
dt 1425348
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (50K)
Doc #370643: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of November 6, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 (the
"Company"), and Dona D. Young (the "Executive"), residing in Farmington,
Connecticut.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
1
{PAGE}
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the
period commencing two (2) years earlier, constituted the Company's or the
Holding Company's board of directors cease for any reason to constitute at least
a majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock
corporation and, prior to the fifth anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of the Company or of the Holding Company are acquired by an
individual, entity, any employee benefit plan sponsored or maintained by the
Company or a Subsidiary, or group acting in concert, in each case, other than
the Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, the Company or
the Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of
directors shall approve any merger, consolidation or like business combination
or reorganization of the Company or the Holding Company, as the case may be,
such transaction shall have been consummated and a majority of the individuals
who constituted directors of the Company or the Holding Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
2
{PAGE}
reorganization of, the Company or the Holding Company or (B) who has been
370643
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company
_____________
dt 1425349
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (50K)
Doc #370644: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of November 6, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 (the
"Company"), and David W. Searfoss (the "Executive"), residing in Farmington,
Connecticut.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
1
{PAGE}
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the
period commencing two (2) years earlier, constituted the Company's or the
Holding Company's board of directors cease for any reason to constitute at least
a majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock
corporation and, prior to the fifth anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of the Company or of the Holding Company are acquired by an
individual, entity, any employee benefit plan sponsored or maintained by the
Company or a Subsidiary, or group acting in concert, in each case, other than
the Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, the Company or
the Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of
directors shall approve any merger, consolidation or like business combination
or reorganization of the Company or the Holding Company, as the case may be,
such transaction shall have been consummated and a majority of the individuals
who constituted directors of the Company or the Holding Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
2
{PAGE}
reorganization of, the Company or the Holding Company or (B) who has been
370644
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company
_____________
dt 1425350
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (51K)
Doc #370645: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of February 1, 2001, by and between Phoenix
Investment Partners, Ltd. having its executive offices at 56 Prospect Street,
Hartford, CT 06115 (the "Company"), and Philip R. McLoughlin (the "Executive"),
residing in West Simsbury, Connecticut.
W I T N E S S E T H :
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company, the Company's parent, Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 ("Parent")
or, in the event of Parent's demutualization, of its sole shareholder (the
"Holding Company" and, together with the Parent and the Company, the "Relevant
Companies", and the Relevant Companies, together with their subsidiaries,
"Phoenix") may require management of a Relevant Company to pursue a merger or
other business combination of the Relevant Company with another company, which
business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to the Executive's duties to the Company
notwithstanding the Relevant Companies' strategies and prospects respecting a
business combination and, in particular, believes it imperative, should a
Relevant Company pursue a proposal with respect to a business combination, for
the Executive, without being influenced by the uncertainties of the Executive's
own situation, to assess and advise the Company's board of directors with
respect to such proposal (or any alternative) and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company for the Company to
provide for payment to the Executive of appropriate compensation, in addition to
that which the Company has otherwise provided for the Executive, in the event
the Executive's employment with the Company should terminate under the
circumstances described in this Agreement;
1
{PAGE}
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which each party
hereby acknowledges, the Company and the Executive hereby agree as follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as of
the date hereof and, subject to Section 2(b) hereof and to Section 2(c) hereof,
shall continue to apply in accordance with its terms to a termination of the
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of the Executive's employment with
the Company occurring on or before one (1) additional year has elapsed unless,
not later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions of Sections 3 and 4 of
this Agreement shall become operative only when, as and if there has been a
Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of a Relevant Company's business as would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date hereof and any successor provision of
the regulations under the Exchange Act, if the Relevant Company was required at
the time of such occurrence to report under such provisions (whether or not the
Relevant Company is subject to the reporting provisions of Section 12 of the
Exchange Act and to such reporting requirement); or
(ii) if the individuals who, at the beginning of the period
commencing two (2) years earlier, constituted a Relevant Company's board of
directors cease for any reason to constitute at least a majority of such
company's board of directors, provided however, that any person who is a
"Continuing Director" (as defined below)
2
{PAGE}
shall be deemed for this purpose to have been a member of the board on the first
day of such two-year period; or
(iii) a Relevant Company's board of directors shall approve a
sale of all or substantially all of the assets of such Relevant Company and such
transaction shall have been consummated; or
(iv) if at the time the Parent is a stock corporation and,
prior to the fifth (5th) anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of a Relevant Company are acquired by an individual, entity, any
employee benefit plan sponsored or maintained by a Relevant Company or a
subsidiary thereof, or group acting in concert, in each case, other than the
Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, a Relevant Company is
voluntarily or involuntarily dissolved or liquidated or otherwise ceases
business operations; or
(vi) a Relevant Company's board of directors shall approve
any merger, consolidation or like business combination or reorganization of such
Relevant Company such transaction shall have been consummated and a majority of
the individuals who constituted directors of the Relevant Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Relevant Companies in office on the date hereof or, in the case
of the Holding Company, its directors immediately preceding any demutualization
of the Parent and (ii) any successor to any such director, or any additional
director, who (A) after the date hereof was nominated or selected by a majority
of the Continuing Directors of the Relevant Company of issue in office at the
time of his nomination or selection (other than any such nomination or selection
of an individual as a director of a Relevant Company or any successor to a
Relevant Company who was so nominated or selected in connection with the
settlement of a threatened or actual proxy contest involving or, a proposed or
consummated merger, consolidation or like business combination or reorganization
of,
3
{PAGE}
such Relevant Company or (B) who has been accepted in writing as a Continuing
Director for purposes of this Agreement by the Executive.
(c) It is hereby provided, however, that in no event shall the
370645
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment to the Executive to the date of
repayment to the Company at the "prime rate" from time to time announced by The
Chase Manhattan Bank, N.A. to be in effect during such period for loans to
commercial borrowers. In the event that it is finally determined that a
challenged termination by reason of
_____________
dt 1425351
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (50K)
Doc #370646: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of November 6, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 (the
"Company"), and Carl T. Chadburn (the "Executive"), residing in Manchester,
Connecticut.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
1
{PAGE}
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the
period commencing two (2) years earlier, constituted the Company's or the
Holding Company's board of directors cease for any reason to constitute at least
a majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock
corporation and, prior to the fifth anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of the Company or of the Holding Company are acquired by an
individual, entity, any employee benefit plan sponsored or maintained by the
Company or a Subsidiary, or group acting in concert, in each case, other than
the Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, the Company or
the Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of
directors shall approve any merger, consolidation or like business combination
or reorganization of the Company or the Holding Company, as the case may be,
such transaction shall have been consummated and a majority of the individuals
who constituted directors of the Company or the Holding Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
2
{PAGE}
reorganization of, the Company or the Holding Company or (B) who has been
370646
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company
_____________
dt 1425352
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (50K)
Doc #370696: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of November ___, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 (the
"Company"), and ______________________, (the "Executive") residing in Bristol.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
1
{PAGE} 2
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the period
commencing two (2) years earlier, constituted the Company's or the Holding
Company's board of directors cease for any reason to constitute at least a
majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock corporation and,
prior to the fifth anniversary of the effective date of its demutualization,
five percent (5%) or, if after such fifth anniversary, ten percent (10%) (or, in
either case, such higher percentage (not to exceed twenty percent (20%)) at
which approval by the New York Insurance Department is required to effect such
an acquisition) or more of the combined voting power of securities of the
Company or of the Holding Company are acquired by an individual, entity, any
employee benefit plan sponsored or maintained by the Company or a Subsidiary, or
group acting in concert, in each case, other than the Holding Company or any of
its subsidiaries; or
(v) at any date after the date hereof, the Company or the
Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of directors
shall approve any merger, consolidation or like business combination or
reorganization of the Company or the Holding Company, as the case may be, such
transaction shall have been consummated and a majority of the individuals who
constituted directors of the Company or the Holding Company on the day the board
of directors approved such transaction cease for any reason, at any time within
two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
2
{PAGE} 3
reorganization of, the Company or the Holding Company or (B) who has been
370696
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company
_____________
dt 1425354
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (50K)
Doc #370697: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of November ___, 2000, by and between Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 (the
"Company"), and ______________________ (the "Executive") residing in Farmington.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company or, in the event of the Company's
demutualization, of its sole shareholder (the "Holding Company" and the Holding
Company and the Company together, collectively with their subsidiaries,
"Phoenix") may require management of the Company to pursue a merger or other
business combination of the Company or the Holding Company with another company,
which business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to his/her duties to the Company
notwithstanding the Company's and the Holding Company's strategies and prospects
respecting a business combination and, in particular, believes it imperative,
should the Company or the Holding Company pursue a proposal with respect to a
business combination, for the Executive, without being influenced by the
uncertainties of his/her own situation, to assess and advise the Company's board
of directors whether such proposal (or any alternative) would be in the best
interest of the Company and its policyholders and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company and its policyholders
for the Company to provide for payment to the Executive of appropriate
compensation, in addition to that which the Company has otherwise provided for
the Executive, in the event the Executive's employment with the Company should
terminate under the circumstances described in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which each
party hereby acknowledges, the Company and the Executive hereby agree as
follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as
of the date hereof and, subject to Section 2(b) hereof and to Section 2(c)
hereof, shall continue to apply in accordance with its terms to a termination of
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of Executive's employment with the
Company occurring on or before one (1) additional year has elapsed unless, not
later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions
1
{PAGE} 2
of Sections 3 and 4 of this Agreement shall become operative only when, as and
if there has been a Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of the Company's or the Holding Company's business
as would be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as in effect on the date hereof and any successor
provision of the regulations under the Exchange Act, if the Company or the
Holding Company were required at the time of such occurrence to report under
such provisions (whether or not the Company is subject to the reporting
provisions of Section 12 of the Exchange Act and to such reporting requirement);
or
(ii) if the individuals who, at the beginning of the
period commencing two (2) years earlier, constituted the Company's or the
Holding Company's board of directors cease for any reason to constitute at least
a majority of the such company's board of directors provided however, that any
person who is a "Continuing Director" (as defined below) shall be deemed for
this purpose to have been a member of the board on the first day of such
two-year period; or
(iii) the Company's or the Holding Company's board of
directors shall approve a sale of all or substantially all of the assets of the
Company or the Holding Company, as the case may be, and such transaction shall
have been consummated; or
(iv) if at the time the Company is a stock
corporation and, prior to the fifth anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of the Company or of the Holding Company are acquired by an
individual, entity, any employee benefit plan sponsored or maintained by the
Company or a Subsidiary, or group acting in concert, in each case, other than
the Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, the Company or
the Holding Company is voluntarily or involuntarily dissolved or liquidated or
otherwise ceases business operations; or
(vi) the Company's or the Holding Company's board of
directors shall approve any merger, consolidation or like business combination
or reorganization of the Company or the Holding Company, as the case may be,
such transaction shall have been consummated and a majority of the individuals
who constituted directors of the Company or the Holding Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Company in office on the date hereof or, in the case of the
Holding Company, its directors immediately preceding any demutualization of the
Company and (ii) any successor to any such director, or any additional director,
who (A) after the date hereof was nominated or selected by a majority of the
Continuing Directors in office at the time of his/her nomination or selection
(other than any such nomination or selection of an individual as a director of
the Company, the Holding Company or any successor to the Company or the Holding
Company who was so nominated or selected in connection with the settlement of a
threatened or actual proxy contest involving or, a proposed or consummated
merger, consolidation or like business combination or
2
{PAGE} 3
reorganization of, the Company or the Holding Company or (B) who has been
370697
|
Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment
to the Executive to the date of repayment to the Company at the "prime rate"
from time to time announced by The Chase Manhattan Bank, N.A. to be in effect
during such period for loans to commercial borrowers. In the event that it is
finally determined that a challenged termination by the Company
_____________
dt 1425355
;
| |
Preview
Full Doc
| 2001 |
Agreement
Agreement (51K)
Doc #370698: Click preview link for longer preview.
AGREEMENT
AGREEMENT, dated as of January ___, 2001, by and between Phoenix
Investment Partners, Ltd. having its executive offices at 56 Prospect Street,
Hartford, CT 06115 (the "Company"), and ((Name1)), (the "Executive") residing in
((Town)), ((State)).
W I T N E S S E T H :
WHEREAS, the Company's board of directors recognizes that the
business strategies and plans of the Company, the Company's parent, Phoenix Home
Life Mutual Insurance Company, a New York life insurance company having its
executive offices at One American Row, Hartford, Connecticut 06115 ("Parent")
or, in the event of Parent's demutualization, of its sole shareholder (the
"Holding Company" and, together with the Parent and the Company, the "Relevant
Companies", and the Relevant Companies, together with their subsidiaries,
"Phoenix") may require management of a Relevant Company to pursue a merger or
other business combination of the Relevant Company with another company, which
business combination could result in a change in control of the Company, a
consequence of which could be adjustments in the Company's management, including
career changes for executives of the Company, the prospect of which is
unsettling to the Company's management, including the Executive and other
executives of the Company; and
WHEREAS, the Company's board of directors desires to assure a
continuing dedication by the Executive to the Executive's duties to the Company
notwithstanding the Relevant Companies' strategies and prospects respecting a
business combination and, in particular, believes it imperative, should a
Relevant Company pursue a proposal with respect to a business combination, for
the Executive, without being influenced by the uncertainties of the Executive's
own situation, to assess and advise the Company's board of directors with
respect to such proposal (or any alternative) and to assist the Company in
taking such other actions regarding such proposal as might be appropriate; and
WHEREAS, for this reason the Company's board of directors has
determined that it is in the best interests of the Company for the Company to
provide for payment to the Executive of appropriate compensation, in addition to
that which the Company has otherwise provided for the Executive, in the event
the Executive's employment with the Company should terminate under the
circumstances described in this Agreement;
1
{PAGE} 2
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which each party
hereby acknowledges, the Company and the Executive hereby agree as follows:
SECTION 1. EFFECTIVE DATE AND TERM OF AGREEMENT.
(a) This Agreement is effective and binding on both parties as of
the date hereof and, subject to Section 2(b) hereof and to Section 2(c) hereof,
shall continue to apply in accordance with its terms to a termination of the
Executive's employment with the Company occurring on or before December 31,
2002; provided, however, that, as of January 1, 2001, and each January 1
thereafter, this Agreement shall automatically be extended to apply in
accordance with its terms to a termination of the Executive's employment with
the Company occurring on or before one (1) additional year has elapsed unless,
not later than September 30 of the preceding year, the Company shall have given
notice that it does not wish so to extend this Agreement; and provided, further,
that, notwithstanding any such notice by the Company not to so extend this
Agreement, if a Change in Control (as hereinafter defined) shall have occurred,
during the original or extended period, this Agreement shall continue to apply
in accordance with its terms to a termination of Executive's employment with
the Company occurring on or before the expiration of three (3) years after the
occurrence of such Change in Control. Notwithstanding the present effectiveness
of this Agreement and except to the extent expressly otherwise provided in
Sections 1(d) and 2(b) of this Agreement, the provisions of Sections 3 and 4 of
this Agreement shall become operative only when, as and if there has been a
Change in Control.
(b) For purposes of this Agreement, a change in control of the
Company (a "Change in Control") shall be deemed to have occurred upon the first
occurrence after the date hereof of any of the following events:
(i) the occurrence of such a change in control of the
direction and administration of a Relevant Company's business as would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date hereof and any successor provision of
the regulations under the Exchange Act, if the Relevant Company was required at
the time of such occurrence to report under such provisions (whether or not the
Relevant Company is subject to the reporting provisions of Section 12 of the
Exchange Act and to such reporting requirement); or
(ii) if the individuals who, at the beginning of the period
commencing two (2) years earlier, constituted a Relevant Company's board of
directors cease for any reason to constitute at least a majority of such
company's board of directors, provided however, that any person who is a
"Continuing Director" (as defined below)
2
{PAGE} 3
shall be deemed for this purpose to have been a member of the board on the first
day of such two-year period; or
(iii) a Relevant Company's board of directors shall approve a
sale of all or substantially all of the assets of such Relevant Company and such
transaction shall have been consummated; or
(iv) if at the time the Parent is a stock corporation and,
prior to the fifth (5th) anniversary of the effective date of its
demutualization, five percent (5%) or, if after such fifth anniversary, ten
percent (10%) (or, in either case, such higher percentage (not to exceed twenty
percent (20%)) at which approval by the New York Insurance Department is
required to effect such an acquisition) or more of the combined voting power of
securities of a Relevant Company are acquired by an individual, entity, any
employee benefit plan sponsored or maintained by a Relevant Company or a
subsidiary thereof, or group acting in concert, in each case, other than the
Holding Company or any of its subsidiaries; or
(v) at any date after the date hereof, a Relevant Company is
voluntarily or involuntarily dissolved or liquidated or otherwise ceases
business operations; or
(vi) a Relevant Company's board of directors shall approve
any merger, consolidation or like business combination or reorganization of such
Relevant Company such transaction shall have been consummated and a majority of
the individuals who constituted directors of the Relevant Company on the day the
board of directors approved such transaction cease for any reason, at any time
within two (2) years after the consummation of such transaction, to constitute a
majority of such board of directors or of the board of directors of any
successor company resulting from such merger, consolidation, or like business
combination or reorganization; provided, however, that any person who is a
"Continuing Director" (as defined below) shall be deemed for this purpose to
have been a member of the board on the first day of such two-year period.
For purposes of this Agreement, "Continuing Directors" shall mean (i) the
directors of the Relevant Companies in office on the date hereof or, in the case
of the Holding Company, its directors immediately preceding any demutualization
of the Parent and (ii) any successor to any such director, or any additional
director, who (A) after the date hereof was nominated or selected by a majority
of the Continuing Directors of the Relevant Company of issue in office at the
time of his nomination or selection (other than any such nomination or selection
of an individual as a director of a Relevant Company or any successor to a
Relevant Company who was so nominated or selected in connection with the
settlement of a threatened or actual proxy contest involving or, a proposed or
consummated merger, consolidation or like business combination or reorganization
of,
3
{PAGE} 4
such Relevant Company or (B) who has been accepted in writing as a Continuing
Director for purposes of this Agreement by the Executive.
(c) It is hereby provided, however, that in no event shall the
370698
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Chase Manhattan
As referenced in this Agreement:
Chase Manhattan Bank, – Company, with interest from the time of payment to the Executive to the date of
repayment to the Company at the "prime rate" from time to time announced by The
Chase Manhattan Bank, N.A. to be in effect during such period for loans to
commercial borrowers. In the event that it is finally determined that a
challenged termination by reason of
_____________
dt 1425356
;
| |
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| 2001 |
Agreement for Inventory Financing
Agreement for Inventory Financing (131K)
Doc #356330: Click preview link for longer preview.
En Pointe Technologies Sales, Inc.
AGREEMENT FOR INVENTORY FINANCING
TABLE OF CONTENTS
Section 1. DEFINITIONS; ATTACHMENTS
1
1.1 Special Definitions
1
1.2 Other Defined Terms
7
1.3 Attachments
7
Section 2. CREDIT LINE; FINANCE CHARGES; OTHER CHARGES
8
2.1 Credit Line
8
2.2 Product Advances
8
2.3 Finance and Other Charges
9
2.4 Customer Account Statements
9
2.5 Application of . . .
356330
|
Chase Manhattan
As referenced in this Agreement for Inventory Financing:
Chase Manhattan Bank – Customer under this Agreement or any of the Other Documents.
"Prime Rate": as of the date of determination, the average of the rates of interest announced by Citibank, N.A., Chase Manhattan Bank and Bank of America National Trust & Savings Association (or any other bank which IBM Credit uses in its normal course of business of determining Prime Rate) as their prime
_____________
dt 742768
;
Citibank
As referenced in this Agreement for Inventory Financing:
Citibank, N.A. – be maintained by Customer under this Agreement or any of the Other Documents.
"Prime Rate": as of the date of determination, the average of the rates of interest announced by Citibank, N.A. , Chase Manhattan Bank and Bank of America National Trust & Savings Association (or any other bank which IBM Credit uses in its normal course of business of determining Prime
_____________
dt 738050
;
|
En Pointe
As referenced in this Agreement for Inventory Financing:
En Pointe Technologies, Inc – this Agreement; and (2) any finance charge, fee, expense or other amount related to Product Advances charged to Customer's account with IBM Credit.
"Parent": shall mean Customer's parent, En Pointe Technologies, Inc .
"Parent IWCF": shall mean the Inventory and Working Capital Financing Agreement between Parent and IBM Credit dated as of April 14, 1997.
"PBGC": as defined in Section 6.12.
_____________
En Pointe Technologies, Inc – and each of the Other Documents, and (b) the legality, validity, binding effect or enforceability of this Agreement and each of the Other Documents;
(F) collateralized guaranties from each of En Pointe Technologies, Inc . and En Pointe Technologies Ventures, Inc.;
(G) acknowledgment by Parent that, as of the Closing Date, IBM Credit will no longer provide A/R Advances (as defined in the
_____________
dt 1413701
|
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| 2001 |
Agreement for Inventory Financing
Agreement for Inventory Financing (146K)
Doc #999129: Click preview link for longer preview.
egg1011.htm
EXHIBIT
2000 10K Exbibit 10.11
EXHIBIT 10.11
AGREEMENT FOR INVENTORY FINANCING
This AGREEMENT FOR INVENTORY FINANCING (as amended, supplemented
or otherwise modified from time to time, this "Agreement") is hereby made
this 28th day of February, 2001, by and between IBM Credit Corporation, a
Delaware corporation with a place of business at 5000 Executive Parkway,
Suite 450, San Ramon, CA 94583 ("IBM Credit"), and Egghead.Com, Inc., duly
organized under the laws of the State of Delaware with its principal place of
business at 1350 Willow Road, Menlo Park, CA 94025 ( . . .
999129
|
Chase Manhattan
As referenced in this Agreement for Inventory Financing:
Chase Manhattan Bank – Customer
under this Agreement or any of the Other Documents.
"Prime Rate": as of the date of determination, the average of the rates of
interest announced by Citibank, N.A., Chase Manhattan Bank and Bank of
America National Trust 8 Savings Association (or any other bank which IBM
Credit uses in its normal course of business of determining Prime Rate) as
their prime
_____________
dt 1426276
;
Citibank
As referenced in this Agreement for Inventory Financing:
Citibank, N.A. – be maintained by Customer
under this Agreement or any of the Other Documents.
"Prime Rate": as of the date of determination, the average of the rates of
interest announced by Citibank, N.A. , Chase Manhattan Bank and Bank of
America National Trust 8 Savings Association (or any other bank which IBM
Credit uses in its normal course of business of determining Prime
_____________
dt 1479023
;
|
Egghead.com
As referenced in this Agreement for Inventory Financing:
Egghead.Com, Inc. – of February, 2001, by and between IBM Credit Corporation, a
Delaware corporation with a place of business at 5000 Executive Parkway,
Suite 450, San Ramon, CA 94583 ("IBM Credit"), and Egghead.Com, Inc. , duly
organized under the laws of the State of Delaware with its principal place of
business at 1350 Willow Road, Menlo Park, CA 94025 ("Customer").
W I T N
_____________
Egghead.Com, Inc. – to the
party to be notified and sent to the address or number indicated as follows:
(i) If to IBM Credit at: (ii) If to Customer at:
IBM Credit Corporation Egghead.Com, Inc.
5000 Executive Parkway, Suite 450 1350 Willow Road
San Ramon, CA 94583 Menlo Park, CA 94025
Attention: Region Manager, West Attention: John Labbett
Facsimile: 925-277-5675 EVP, Chief
_____________
Egghead.Com, Inc. – caused its authorized representatives to execute this Agreement and has
caused its corporate seal, if any, to be affixed hereto as of the date first
written above.
IBM Credit Corporation Egghead.Com, Inc.
By: /s/ Thomas S. Curcio By: /s/ John E. Labbett
Print Name: Thomas S. Curcio Print Name: John E. Labbett
Title: Manager of Credit Title: Executive Vice President/Chief
_____________
Egghead.com, Inc. – Labbett
Title: Manager of Credit Title: Executive Vice President/Chief Financial Officer
ATTACHMENT A,
("AIF ATTACHMENT A") TO
AGREEMENT FOR INVENTORY FINANCING ("AIF AGREEMENT")
DATED February 28, 2001
Customer Name: Egghead.com, Inc.
Effective Date of this AIF Attachment A: February 28,
2001
Fees, Rates and Repayment
Terms:
Credit Line: Twenty Million
Dollars ($20,000,000.00);
Borrowing Base:
70% of the
_____________
Egghead.com, Inc. – IBM Credit;
A copy of an all-risk insurance certificate pursuant to
Section 7.8 (B) of the Agreement;
AIF ATTACHMENT B TO
AGREEMENT FOR INVENTORY FINANCING ("AIF AGREEMENT")
Customer: Egghead.com, Inc.
Liens:
Locations of Offices, Records and
Inventory:
Principal Place of Business and
Chief Executive Office:
Locations of Assets, Inventory
and Equipment (including warehouses):
Location Leased (Y/N)
_____________
dt 1321607
;
Tech Data
As referenced in this Agreement for Inventory Financing:
Tech Data Corp. – Road, Menlo Park CA
94025
Subsidiary
EH Direct is known as Surplus
Direct
IF ATTACHMENT E TO
AGREEMENT FOR INVENTORY FINANCING ("AIF AGREEMENT")
Customer: Egghead.com, Inc.
AUTHORIZED SUPPLIERS
IBM
Tech Data Corp.
Ingram
AIF ATTACHMENT F TO
AGREEMENT FOR INVENTORY FINANCING ("AIF AGREEMENT")
Customer. Egghead.com, Inc.
Collateral Management Report (CMR)
Accounts as of _________ (Date)
COLLATERAL STATUS:
Accounts Receivable less
_____________
dt 1473592
|
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| 2004 |
Agreement for Inventory Financing
Agreement for Inventory Financing (181K)
Doc #1703187: Click preview link for longer preview.
PC Connection, Inc.
Merrimack Services Corporation
GovConnection, Inc.
MoreDirect, Inc.
AGREEMENT FOR INVENTORY FINANCING
Table of Contents
Section 1. DEFINITIONS; ATTACHMENTS
2
1.1. Special Definitions
2
1.2. Other Defined Terms
8
1.3. Attachments
8
Section 2. CREDIT LINE; FINANCE CHARGES; OTHER CHARGES
9
2.1. Credit . . .
1703187
|
Chase Manhattan
As referenced in this Agreement for Inventory Financing:
Chase Manhattan Bank – Customers under this Agreement or any of the Other Documents.
Prime Rate: as of the date of determination, the average of the rates of interest announced by Citibank, N.A., Chase Manhattan Bank and Bank of America National Trust & Savings Association (or any other bank which IBM Credit uses in its normal course of business of determining Prime Rate) as their prime
_____________
dt 1427535
;
Citibank
As referenced in this Agreement for Inventory Financing:
Citibank, N.A. – be maintained by Customers under this Agreement or any of the Other Documents.
Prime Rate: as of the date of determination, the average of the rates of interest announced by Citibank, N.A. , Chase Manhattan Bank and Bank of America National Trust & Savings Association (or any other bank which IBM Credit uses in its normal course of business of determining Prime
_____________
dt 1480257
;
Ingram Micro
As referenced in this Agreement for Inventory Financing:
Ingram Micro Inc – herein reflect this change.
51
Attachment D (Attachment D) TO
AGREEMENT FOR INVENTORY FINANCING
Customers: Merrimack Services Corporation, GovConnection, Inc., MoreDirect, Inc.
AUTHORIZED SUPPLIERS
International Business Machines Corporation
Lexmark International
Ingram Micro Inc .*
Tech Data Corporation*
Synnex Corporation*
PC Wholesale*
Resilien*
Seneca Data*
*
with respect to the Products of International Business Machines Corporation and Lexmark International only
52
Attachment E (Attachment E)
_____________
dt 1491144
;
|
Lexmark
As referenced in this Agreement for Inventory Financing:
Lexmark International, Inc. – its personal property, whether now owned or hereafter acquired or existing and wherever located, including the following:
(A) all goods manufactured or sold by International Business Machines Corporation (IBM) or Lexmark International, Inc. (Lexmark) or bearing the trademarks or trade names of IBM or Lexmark, including, inventory and equipment and all parts thereof, attachments, accessories and accessions thereto, products thereof and documents
_____________
dt 1456274
;
PC Connection, Inc.
As referenced in this Agreement for Inventory Financing:
PC Connection, Inc – AGREEMENT FOR INVENTORY FINANCING
EX-10.46 6 dex1046.htm AGREEMENT FOR INVENTORY FINANCING
EXHIBIT 10.46
PC Connection, Inc .
Merrimack Services Corporation
GovConnection, Inc.
MoreDirect, Inc.
AGREEMENT FOR INVENTORY FINANCING
Table of Contents
Section 1. DEFINITIONS; ATTACHMENTS
2
1.1. Special Definitions
2
1.2. Other Defined Terms
_____________
PC Connection, Inc – of business at 7300 N. Federal Hwy., Suite 200, Boca Raton, FL 33487 (MoreDirect) (Merrimack, GovConnection and MoreDirect are referred to herein as a Customer or, collectively, the Customers) and PC Connection, Inc ., a corporation, duly organized under the laws of the State of Delaware, with its principal place of business at 730 Milford Road, Merrimack, NH 03054 (PC Connection),. Notwithstanding the
_____________
PC Connection, Inc – as amended, supplemented or otherwise modified from time to time, the AWF/M) pursuant to which IBM Credit finances MoreDirects acquisition of inventory and equipment;
WHEREAS, IBM Credit, Merrimack and PC Connection, Inc . (PC Connection) are parties to that certain Agreement for Inventory Financing, dated as of August 17, 1999, (as amended, supplemented or otherwise modified from time to time, the AIF,
_____________
PC Connection, Inc – FL 33487
Attention: Mr. Jack Ferguson
Facsimile: (603) 423-2283
Attention: Mr. Scott Modist
Facsimile: (509) 357-1319
(v) In the case of (ii), (iii) and (iv) with copy to PC Connection, Inc . at:
PC Connection, Inc.
730 Milford Road
Merrimack, NH 03054
Attention: Mr. Jack Ferguson
Facsimile: (603) 423-2283
or to such other address or number as each party designates
_____________
PC Connection, Inc – Jack Ferguson
Facsimile: (603) 423-2283
Attention: Mr. Scott Modist
Facsimile: (509) 357-1319
(v) In the case of (ii), (iii) and (iv) with copy to PC Connection, Inc. at:
PC Connection, Inc .
730 Milford Road
Merrimack, NH 03054
Attention: Mr. Jack Ferguson
Facsimile: (603) 423-2283
or to such other address or number as each party designates to the other in
_____________
dt 1440770
|
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| 2001 |
Contract of Indemnity
Contract of Indemnity (22K)
Doc #461038: Click preview link for longer preview.
National Fire Insurance Company of Hartford and Continental
Casualty Company, CNA Plaza,
Chicago, IL 60685
Contract
Of Indemnity
We, the undersigned, (hereinafter referred to as the "Indemnitors") hereby
request National Fire Insurance Company of Hartford and Continental Casualty
Company CNA Plaza, Chicago, IL 60685 (the "Surety") to furnish the Bond
identified below (the "Bond") and as an inducement therefor, make the following
representations of fact, promises and agreements.
REPRESENTATIONS OF FACT:
1. All of the Indemnitors are either principals with respect to the Bond or
parents of or subsidiaries of, or affiliated with, such principals.
2. Each of the Indemnitors has a substantial interest in the principals'
obtaining the Bond, and it is understood that one of the purposes of
this Contract of Indemnity is to induce the Surety to furnish the Bond.
3. The Indemnitors have the full power and authority to execute, deliver
and perform this Contract of Indemnity and to carry out the obligations
stated herein. The Indemnitors further acknowledge and agree that (a)
the execution, delivery and performance of this Contract of Indemnity by
such Indemnitors, (b) the compliance with the terms and provisions
hereof, and (c) the carrying out of the obligations contemplated herein,
do not, and will not, conflict with and will not result in a breach or
violation of any terms, conditions or provisions of the charter
documents or bylaws of such Indemnitors, or any law, governmental
authority against Indemnitors, or any other agreement binding upon
Indemnitors, or constitute a default hereunder.
PROMISES AND AGREEMENTS: In consideration of the furnishing of the Bond by the
Surety and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Indemnitors hereby jointly and severally
promise and agree as follows:
1. To pay or cause to be paid to the Surety all premiums for the Bond, as
they fall due, until the Surety has been provided with evidence
satisfactory to it and its counsel that the Bond has been duly
discharged.
2. To indemnify and exonerate the Surety and its successors, assigns,
affiliates, associates, employees, agents and subsidiary companies from
and against any and all loss, claim, demand, liability, cost, charge,
suit, judgment and expense of any kind whatsoever, including, without
limitation, all payments made under the Bond, all court costs and all
counsel fees whether incurred before or after a final judgment
(hereinafter referred to, collectively, as "Loss"), which any of them
may incur or sustain directly or indirectly as a result of or in
connection with the furnishing of, or performance under, the Bond, or
the enforcement of this Contract of Indemnity. To this end each of the
Indemnitors covenants and agrees:
461038
|
Chase Manhattan
As referenced in this Contract of Indemnity:
Chase Manhattan Bank – under that certain Fourth Amended
and Restated Credit Agreement, dated as of December 29, 2000, among
Federal-Mogul Corporation, certain of its subsidiaries, the Lenders
(as therein defined) and The Chase Manhattan Bank as Administrative
Agent, as such credit agreement may be amended from time to time,
(the "Credit Agreement") shall be declared or otherwise become due
and payable prior to its maturity
_____________
dt 1425825
;
Federal-Mogul
As referenced in this Contract of Indemnity:
Federal-Mogul Corp. – shall not
have the benefit of this Contract of Indemnity.
10. The obligations created by this Contract of Indemnity are entitled to
the benefit of liens upon certain assets of Federal-Mogul Corp. and the
other Indemnitors pursuant to collateral documents dated on or about the
date hereof, which liens are in favor of First Union National Bank, as
trustee, Wilmington Trust
_____________
Federal-Mogul Corp. – this Section and not defined shall have the
respective meanings ascribed to them in the Credit Agreement.
22. The Indemnitors agree to provide to the Surety the same notices as
Federal-Mogul Corp. is required to provide to the Administrative Agent
under Section 10.6 of the Credit Agreement.
23. This Contract of Indemnity shall inure to the benefit of the Surety,
_____________
dt 1438188
;
|
First Union
As referenced in this Contract of Indemnity:
First Union National Bank, – of liens upon certain assets of Federal-Mogul Corp. and the
other Indemnitors pursuant to collateral documents dated on or about the
date hereof, which liens are in favor of First Union National Bank, as
trustee, Wilmington Trust Company, as trustee and ABN AMRO, as trustee,
in each case for the benefit of various secured parties including the
Surety.
11. From and after
_____________
dt 1464426
|
Preview
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| 2001 |
Agreement of Lease
Agreement of Lease (953K)
Doc #121981: Click preview link for longer preview.
AGREEMENT OF LEASE
between
SEVEN THIRTY ONE LIMITED PARTNERSHIP,
Landlord
and
BLOOMBERG L.P.,
Tenant
The Site Bounded by Lexington Avenue,
East 58th Street, East 59th Street and Third Avenue,
New York, New York
as of April 30, 2001
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE 1 DEMISE, PREMISES, TERM, RENT........................................................................... 28
ARTICLE 2 USE AND OCCUPANCY...................................................................................... 31
ARTICLE 3 ALTERATIONS............................................................................................ 43
ARTICLE 4 REPAIRS-FLOOR LOAD..................................................................................... 58
ARTICLE 5 WINDOW CLEANING........................................................................................ 60
ARTICLE 6 LEGAL AND INSURANCE REQUIREMENTS....................................................................... 61
ARTICLE 7 SUBORDINATION.......................................................................................... 63
ARTICLE 8 RULES AND REGULATIONS.................................................................................. 85
ARTICLE 9 INSURANCE, PROPERTY LOSS OR DAMAGE; REIMBURSEMENT...................................................... 86
ARTICLE 10 DESTRUCTION-FIRE OR OTHER CAUSE....................................................................... 91
ARTICLE 11 EMINENT DOMAIN........................................................................................ 98
ARTICLE 12 ASSIGNMENT, SUBLETTING, MORTGAGE, ETC................................................................. 100
ARTICLE 13 ELECTRICITY........................................................................................... 126
ARTICLE 14 ACCESS TO TENANT AREAS; UNTENANTABILITY............................................................... 129
ARTICLE 15 CERTIFICATE OF OCCUPANCY.............................................................................. 135
ARTICLE 16 DEFAULT............................................................................................... 137
ARTICLE 17 REMEDIES AND DAMAGES.................................................................................. 140
ARTICLE 18 FEES AND EXPENSES..................................................................................... 142
ARTICLE 19 NO REPRESENTATIONS BY LANDLORD........................................................................ 144
ARTICLE 20 END OF TERM........................................................................................... 144
ARTICLE 21 QUIET ENJOYMENT....................................................................................... 145
{/TABLE}
-i-
{PAGE} 3
{TABLE}
{CAPTION}
{S} {C}
ARTICLE 22 CONSTRUCTION OF THE BUILDING AND THE PREMISES......................................................... 145
ARTICLE 23 NO WAIVER............................................................................................. 187
ARTICLE 24 WAIVER OF TRIAL BY JURY............................................................................... 188
ARTICLE 25 BILLS AND NOTICES..................................................................................... 189
ARTICLE 26 ESCALATION............................................................................................ 190
ARTICLE 27 SERVICES.............................................................................................. 209
ARTICLE 28 LIMITATION ON TENANT'S LIABILITY...................................................................... 214
ARTICLE 29 PARKING............................................................................................... 214
ARTICLE 30 CAPTIONS.............................................................................................. 215
ARTICLE 31 PARTIES BOUND......................................................................................... 216
ARTICLE 32 BROKER................................................................................................ 216
ARTICLE 33 INDEMNITY............................................................................................. 216
ARTICLE 34 ADJACENT EXCAVATION-SHORING........................................................................... 219
ARTICLE 35 ADDITIONAL PROVISIONS................................................................................. 220
ARTICLE 36 OPTION SPACE.......................................................................................... 225
ARTICLE 37 RENEWAL TERM.......................................................................................... 234
ARTICLE 38 RENTAL VALUE.......................................................................................... 237
ARTICLE 39 TENANT'S SIGNS........................................................................................ 241
ARTICLE 40 CERTAIN RESTRICTIONS.................................................................................. 245
ARTICLE 41 GOVERNMENTAL INCENTIVES............................................................................... 252
ARTICLE 42 ROOF RIGHTS........................................................................................... 254
{/TABLE}
-ii-
{PAGE} 4
{TABLE}
{CAPTION}
EXHIBITS
{S} {C}
Exhibit Definitions-A Comparison Amounts
Exhibit Definitions-B Deliverable Units
Exhibit Definitions-C Land
Exhibit Definitions-D List of Regular Competitors
Exhibit Definitions-E List of Primary Competitors
Exhibit Definitions-F Usable Area
Exhibit Definitions-G Work Exhibit
Exhibit 2.6 Neutral Zone
Exhibit 3.1 Approved Contractors and Architects
Exhibit 3.9 Approved Alterations
Exhibit 7.10 Financial Disclosure Provisions
Exhibit 7.12 Existing Mortgages
Exhibit 12.6 Form of Consent to Sublease
Exhibit 12.8 Form of Consent to Assignment
Exhibit 22.1 Schematic Drawings
Exhibit 22.4 Incremental Area from Prior Building Design
Exhibit 22.6 Construction Milestone Stages
Exhibit 22.8 Existing Leases
Exhibit 26.1 Comparable Properties
Exhibit 26.2 Calculation of Section 421-a Reduction
Exhibit 35.5 Form of Memorandum of Lease
Exhibit 39.1 Tenant's Signs
{/TABLE}
-iii-
{PAGE} 5
AGREEMENT OF LEASE, made as of the 30th day of April, 2001, between
Landlord and Tenant.
W I T N E S S E T H:
The parties hereto, for themselves, their legal representatives,
successors and assigns, hereby covenant as follows:
DEFINITIONS
"AAA" shall mean the American Arbitration Association, or its
successor.
"Abatement Event" shall have the meaning set forth in Section 14.5
hereof.
"Abatement Percentage" shall have the meaning set forth in Section 14.5
hereof.
"Access Tunnel" shall have the meaning set forth in Section 22.1
hereof.
"Actual Tax Amount" shall have the meaning set forth in Section 26.1
hereof.
"Additional Antennae" shall have the meaning set forth in Section 42.1
hereof.
"Additional Antennae Site" shall have the meaning set forth in Section
42.1 hereof.
"Affiliate" shall mean a Person which (1) Controls, (2) is under the
Control of, or (3) is under common Control with, the Person in question.
"Alexander's" shall mean Alexander's Inc., a Delaware corporation.
"Alterations" shall mean alterations, installations, improvements,
additions or other physical changes (other than decorations, such as painting,
wall covering and floor covering) made by or on behalf of Tenant in or about the
Premises (it being understood that the Work shall not constitute Alterations for
purposes hereof).
"Antennae" shall have the meaning set forth in Section 42.2 hereof.
"Antennae Site" shall have the meaning set forth in Section 42.2
hereof.
"Applicable Area" shall have the meaning set forth in Section 38.1
hereof.
"Applicable Date" shall have the meaning set forth in Section 38.1
hereof.
"Applicable Financing" shall have the meaning set forth in Section 7.13
hereof.
"Applicable Financing Term" shall have the meaning set forth in Section
7.13 hereof.
121981
|
Chase Manhattan
As referenced in this Agreement of Lease:
Chase Manhattan Bank, – for Shared Building Systems.
2
{PAGE} 7
"Base Rate" shall mean the rate of interest publicly announced from
time to time by The Chase Manhattan Bank, or its successor, as its "prime
lending rate" in New York City (or such other term as may be used by The
_____________
Chase
Manhattan Bank, – Bank, or its successor, as its "prime
lending rate" in New York City (or such other term as may be used by The Chase
Manhattan Bank, from time to time, for the rate presently referred to as its
"prime lending rate"), which rate was eight percent (8%) per
_____________
dt 101574
;
Alexander's
As referenced in this Agreement of Lease:
Alexander's Inc – 1) Controls, (2) is under the
Control of, or (3) is under common Control with, the Person in question.
"Alexander's" shall mean Alexander's Inc ., a Delaware corporation.
"Alterations" shall mean alterations, installations, improvements,
additions or other physical changes (other than decorations, such as painting,
wall covering
_____________
dt 109388
;
Vornado Realty
As referenced in this Agreement of Lease:
Vornado Realty Trust, – of which this Lease is made, shall mean
Seven Thirty One Limited Partnership, a New York limited partnership, having an
office c/o Vornado Realty Trust, 210 Route 4 East, Paramus, New Jersey 07652,
but thereafter "Landlord" shall mean only the fee
11
{PAGE} 16
owner of the
_____________
Vornado Realty
Trust, – c/o MRC Management LLC, 330 Madison
Avenue, New York, New York 10017, Attn.: Mr. David
R. Greenbaum, and with copies to (x) Vornado Realty
Trust, 210 Route 4 East, Paramus, New Jersey 07652,
Attn: Mr. Joseph Macnow, (y) Proskauer Rose LLP,
1585 Broadway, New York, New York
_____________
Vornado Realty
Trust, – Landlord c/o MRC Management, LLC, 330 Madison
Avenue, New York, New York 10017, Attn: David R.
Greenbaum, and with copies to (i) Vornado Realty
Trust, 210 Route 4 East, Paramus, New Jersey 07652,
Attn: Joseph Macnow, (ii) Proskauer Rose LLP, 1585
Broadway, New York, New York 10036,
_____________
Vornado Realty Trust, – Jersey 07652,
Attn: Joseph Macnow, (ii) Proskauer Rose LLP, 1585
Broadway, New York, New York 10036, Attn: Lawrence J.
Lipson, Esq., and (iii) Vornado Realty Trust, 888
Seventh Avenue, New York, New York 10019, Attn:
Melvyn Blum.
Either party shall have the right to change its address for
_____________
Vornado Realty Trust – Recovered Elevators that identify a Competitor.
Section 40.5 Subject to the terms of this Section 40.5, if (i) an
Affiliate of Vornado Realty Trust ("VRT") owns the fee interest in the real
property known by the street address of 150 East 58th Street, New York, New
_____________
dt 109707
;
|
Proskauer Rose
As referenced in this Agreement of Lease:
Proskauer Rose – Realty
Trust, 210 Route 4 East, Paramus, New Jersey 07652,
Attn: Mr. Joseph Macnow, (y) Proskauer Rose LLP,
1585 Broadway, New York, New York 10036, Attn.:
Lawrence J. Lipson, Esq., and (
Proskauer Rose – Vornado Realty
Trust, 210 Route 4 East, Paramus, New Jersey 07652,
Attn: Joseph Macnow, (ii) Proskauer Rose LLP, 1585
Broadway, New York, New York 10036, Attn: Lawrence J.
Lipson, Esq., and (
dt 33305
;
Willkie Farr
As referenced in this Agreement of Lease:
Willkie Farr – s vacating, deserting,
abandoning or surrendering the Premises, in each case
with a copy to Willkie Farr & Gallagher, 787 Seventh
Avenue, New York, New York 10019-6099, Attn.: Steven
D. Klein,
Willkie Farr – the regular conduct of business
(and thereafter at the Premises), with a copy to (i)
Willkie Farr & Gallagher, 787 Seventh Avenue, New
York, New York 10019-6099, Attn: Steven D. Klein,
dt 32183
;
Alexanders Inc
|