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Subscribers | 2002 |
Acquisition Agreement
Acquisition Agreement (169K)
Doc #137268: Click preview link for longer preview.
______________________________________________________________
ACQUISITION AGREEMENT
by and among
MCLEODUSA TELECOMMUNICATIONS SERVICES, INC.,
MCLEODUSA HOLDINGS, INC.,
MCLEODUSA INTEGRATED BUSINESS SYSTEMS, INC.,
MCLEODUSA MARKET RESPONSE, INC.
and
HOMEBASE ACQUISITION CORP.
July 16, 2002
______________________________________________________________
{PAGE}
{TABLE}
{CAPTION}
TABLE OF CONTENTS
-----------------
(not part of Agreement)
Page
{S} {C} {C}
ARTICLE I PURCHASE AND SALE................................................................2
SECTION 1.1 Purchase and Sale...................................................2
SECTION 1.2 Excluded Assets.....................................................5
SECTION 1.3 Nonassignable Agreements............................................6
SECTION 1.4 Assumed Liabilities.................................................7
SECTION 1.5 Purchase Price......................................................8
SECTION 1.6 Closing.............................................................8
SECTION 1.7 Allocation of Purchase Price.......................................10
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLERS.......................................11
SECTION 2.1 Organization.......................................................11
SECTION 2.2 Capitalization.....................................................11
SECTION 2.3 Authorization; Validity of Agreement...............................12
SECTION 2.4 Consents and Approvals; No Violations..............................12
SECTION 2.5 Financial Statements...............................................13
SECTION 2.6 No Undisclosed Liabilities.........................................14
SECTION 2.7 Absence of Certain Changes.........................................15
SECTION 2.8 Employee Benefit Plans; ERISA......................................15
SECTION 2.9 Environmental Laws and Regulations.................................16
SECTION 2.10 Labor Matters......................................................17
SECTION 2.11 Litigation.........................................................17
SECTION 2.12 No Default; Compliance with Applicable Laws; Permits...............17
SECTION 2.13 Taxes..............................................................18
SECTION 2.14 Intellectual Property..............................................20
SECTION 2.15 Contracts..........................................................20
SECTION 2.16 Title to Assets....................................................21
SECTION 2.17 Insurance..........................................................22
SECTION 2.18 Sufficiency of Assets..............................................22
SECTION 2.19 Transactions with Affiliates.......................................22
SECTION 2.20 Auxiliary Business.................................................23
SECTION 2.21 Real Property......................................................23
SECTION 2.22 McLeod Plan of Reorganization......................................23
SECTION 2.23 Brokers or Finders.................................................24
SECTION 2.24 No Other Representations or Warranties.............................24
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER.....................................24
SECTION 3.1 Organization.......................................................24
SECTION 3.2 Authorization; Validity of Agreement...............................25
SECTION 3.3 Consents and Approvals; No Violations..............................25
SECTION 3.4 Sufficient Funds; Solvency.........................................26
SECTION 3.5 Qualifications.....................................................26
SECTION 3.6 Litigation.........................................................27
SECTION 3.7 Investment Purpose.................................................27
SECTION 3.8 Brokers or Finders.................................................27
SECTION 3.9 Investigation by Purchaser.........................................27
ARTICLE IV COVENANTS.......................................................................28
SECTION 4.1 Interim Operations.................................................28
SECTION 4.2 Access to Information..............................................31
SECTION 4.3 Employees..........................................................32
SECTION 4.4 Publicity..........................................................34
SECTION 4.5 Approvals and Consents; Cooperation; Notification..................34
SECTION 4.6 Further Assurances.................................................35
SECTION 4.7 Supplements to the Disclosure Schedule.............................36
SECTION 4.8 Intercompany Arrangements..........................................36
SECTION 4.9 Insurance Coverage.................................................36
SECTION 4.10 Sellers' Names.....................................................37
SECTION 4.11 Working Capital....................................................38
SECTION 4.12 Certain Assets.....................................................39
SECTION 4.13 Vendor Contracts...................................................40
SECTION 4.14 Title Insurance and Estoppel Certificates..........................40
ARTICLE V TAX MATTERS.....................................................................40
SECTION 5.1 Preparation and Filing of Tax Returns..............................40
SECTION 5.2 Tax Allocation and Indemnity.......................................41
SECTION 5.3 Cooperation on Tax Matters.........................................42
SECTION 5.4 Contests...........................................................43
SECTION 5.5 Written Notices....................................................44
SECTION 5.6 Refund and Carrybacks..............................................44
SECTION 5.7 Section 338(h)(10) Election........................................44
SECTION 5.8 No Right of Set-Off or Off-Set.....................................45
SECTION 5.9 Mitigation.........................................................46
SECTION 5.10 Exclusive Remedies.................................................46
SECTION 5.11 Adjustment to Purchase Price.......................................46
SECTION 5.12 Transfer Taxes.....................................................46
SECTION 5.13 Conflicts and Survival.............................................46
ARTICLE VI CONDITIONS......................................................................47
SECTION 6.1 Conditions to Each Party's Obligation
to Effect the Closing........................................47
SECTION 6.2 Conditions to the Obligations of Purchaser.........................47
SECTION 6.3 Conditions to the Obligations of Sellers...........................48
ARTICLE VII INDEMNIFICATION.................................................................49
SECTION 7.1 Indemnification....................................................49
SECTION 7.2 Adjustment to Purchase Price.......................................52
SECTION 7.3 Exclusive Remedies.................................................53
ARTICLE VIII TERMINATION.....................................................................53
SECTION 8.1 Termination........................................................53
SECTION 8.2 Procedure and Effect of Termination................................54
ARTICLE IX MISCELLANEOUS...................................................................55
SECTION 9.1 Amendment and Modification.........................................55
SECTION 9.2 Notices............................................................55
SECTION 9.3 Interpretation.....................................................57
SECTION 9.4 Counterparts.......................................................57
SECTION 9.5 Entire Agreement; Third Party Beneficiaries........................57
SECTION 9.6 Severability.......................................................57
SECTION 9.7 Governing Law......................................................58
SECTION 9.8 Jurisdiction.......................................................58
SECTION 9.9 Specific Performance...............................................58
SECTION 9.10 Assignment.........................................................58
SECTION 9.11 Expenses...........................................................59
SECTION 9.12 Headings...........................................................59
SECTION 9.13 Waivers............................................................59
SECTION 9.14 Schedules..........................................................59
SECTION 9.15 Consequential Damages..............................................60
{/TABLE}
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (this
"Agreement"), by and among McLeodUSA Telecommunications Services, Inc., an
Iowa corporation ("Telecom") and an indirect wholly owned subsidiary of
McLeodUSA Incorporated, a Delaware corporation ("McLeodUSA"), McLeodUSA
Holdings, Inc., a Delaware corporation ("Holdings"), McLeodUSA Integrated
Business Systems, Inc., an Iowa corporation ("IBS"), McLeodUSA Market
Response, Inc., an Iowa corporation ("Market Response," and together with
Telecom, Holdings and IBS, "Sellers," and each a "Seller"), and Homebase
Acquisition Corp., a Delaware corporation ("Purchaser").
WHEREAS, Telecom conducts the business of providing live
and automated long distance assistance and national directory assistance
services (collectively, "Operator Services") and the business of providing
paging services and acting as a sales agent for wireless telephone services
within the service area of Illinois Consolidated Telephone Company ("Mobile
Services");
WHEREAS, IBS conducts the business of selling and
installing telecommunications equipment (the "Equipment Business" and
together with Operator Services and Mobile Services, taken as a whole, the
"Services Business");
WHEREAS, Telecom and its affiliates conduct the business
of providing private line, Internet Service Provider and long distance
services to certain customers in the service area of Illinois Consolidated
Telephone Company (to the extent provided by Telecom or its affiliates
(other than Illinois Consolidated Telephone Company), the "Auxiliary
Business");
WHEREAS, the Services Business together with the
businesses of each of Illinois Consolidated Telephone Company, an Illinois
corporation ("ICTC"), McLeodUSA Public Services, Inc., an Illinois
corporation ("Public Services"), and Consolidated Market Response, Inc., an
Illinois corporation ("CMR" and together with ICTC and Public Services, the
"Transferred Companies," and each a "Transferred Company"), taken as a
whole, are referred to herein as the "Business";
WHEREAS, as of the Closing Date, ICTC will be a wholly
owned subsidiary of Holdings;
WHEREAS, on the terms and subject to the conditions of
this Agreement, Purchaser desires to purchase, and the applicable Sellers
desire to sell or cause to be sold to Purchaser, all of the issued and
outstanding shares of the capital stock (the "Shares") of each of the
Transferred Companies;
WHEREAS, on the terms and subject to the conditions of
this Agreement, Purchaser desires to purchase and acquire, and Telecom and
IBS desire to sell and transfer, or cause to be sold and transferred, the
Purchased Assets (as defined herein); and
WHEREAS, on the terms and subject to the conditions of
this Agreement, Purchaser is willing to assume, and Telecom and IBS desire
to assign to Purchaser, the Assumed Liabilities (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound hereby,
agree as follows:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1 Purchase and Sale. Upon the terms and subject
to the conditions set forth in this Agreement, at the Closing (as defined
below):
(a) the applicable Sellers shall sell, assign, transfer,
convey and deliver to Purchaser, and Purchaser shall purchase and accept
from such Sellers, the Shares, free and clear of all Encumbrances; and
(b) Telecom and IBS shall sell, assign, transfer, convey
and deliver to Purchaser, free and clear of all Encumbrances, other than
Permitted Encumbrances, and Purchaser shall purchase and accept all right,
title and interest of Telecom and IBS in the following (collectively, the
"Purchased Assets"):
137268
|
 J.P. Morgan
As referenced in this Acquisition Agreement:
J.P. Morgan Securities – or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this
Agreement, except J.P. Morgan Securities Inc. and Salomon Smith Barney
Inc., whose fees and expenses will be paid by Sellers in accordance with
the agreement with such firm.
_____________
dt 98008
;
Salomon
As referenced in this Acquisition Agreement:
Salomon Smith Barney
– other commission or similar
fee in connection with any of the transactions contemplated by this
Agreement, except J.P. Morgan Securities Inc. and Salomon Smith Barney
Inc., whose fees and expenses will be paid by Sellers in accordance with
the agreement with such firm.
SECTION 2.24 No
_____________
dt 87354
;
Smith Barney
As referenced in this Acquisition Agreement:
Smith Barney
Inc – commission or similar
fee in connection with any of the transactions contemplated by this
Agreement, except J.P. Morgan Securities Inc. and Salomon Smith Barney
Inc ., whose fees and expenses will be paid by Sellers in accordance with
the agreement with such firm.
SECTION 2.24 No Other
_____________
dt 142690
;
|
 Edwards & Angell
As referenced in this Acquisition Agreement:
Edwards & Angell, – New York, New York 1003 6
Telecopy: (212) 556-2222
Attn: John Graham, Esq.
and
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Telecopy: (888) 325-9120
Attn: Stephen Meredith,
dt 35881
;
King & Spalding
As referenced in this Acquisition Agreement:
King & Spalding
– P.
50 Kennedy Plaza
Providence, RI 02903
Telecopy: (401) 751-1790
Attn: Glenn Creamer
and
King & Spalding
1185 Avenue of the Americas
New York, New York 1003 6
Telecopy: (212) 556-
dt 37699
;
More... |
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Subscribers | 2004 |
Acquisition Agreement
Acquisition Agreement (248K)
Doc #1406570: Click preview link for longer preview.
ACQUISITION AGREEMENT
BY AND BETWEEN
MONONGAHELA POWER COMPANY
AND
MOUNTAINEER GAS HOLDINGS LIMITED PARTNERSHIP
DATED AS OF AUGUST 4, 2004
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1.
Definitions
1
ARTICLE II
. . .
1406570
|
J.P. Morgan
As referenced in this Acquisition Agreement:
J.P. Morgan Securities Inc – in order to accommodate a third Persons Intellectual Property rights, or (C) permit any third party to use any Gas Distribution Intellectual Property.
5.27. Fees and Commissions. Except for J.P. Morgan Securities Inc ., whose fees will be paid by Seller, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf
_____________
J.P. Morgan Securities Inc – the Confidentiality Agreement (including the Information Memorandum, dated February 20, 2003, or the Request for Proposal, dated February 13, 2003, previously made available to the Buyer by the Seller and J.P. Morgan Securities Inc .). This Agreement supersedes all prior agreements and understandings, whether written or oral, between the parties with respect to such transactions other than the Confidentiality Agreement.
11.12. Bulk Sales
_____________
dt 1494019
;
Allegheny Energy
As referenced in this Acquisition Agreement:
Allegheny Energy, Inc – 31, 2009, and 8.09% Senior Notes, Class B, due October 31, 2019 (the 1999 Notes).
(21) Confidentiality Agreement means the Confidentiality Agreement, dated January 28, 2003, by and between Allegheny Energy, Inc . and IGS Utilities Corp., a Delaware corporation.
(22) Current Assets means all current assets, excluding deferred Taxes established to reflect temporary differences between book basis and Tax basis of
_____________
Allegheny Energy Inc – tariffs or arrangements approved or authorized by the Public Service Commission.
5.13. Insurance. All policies of fire, liability, workers compensation and other forms of insurance owned or held by Allegheny Energy Inc ., of which the Seller is a wholly owned subsidiary (Parent), that insure the Related Assets or the assets, properties or operations of the Company or the Companys Subsidiaries are
_____________
Allegheny Energy, Inc – of information which is first available after the Closing Date, the parties will promptly agree on such changes.
(i) All Tax allocation, Tax sharing, Tax indemnity or similar agreements between Allegheny Energy, Inc . or any of its Subsidiaries (other than the Company and its Subsidiaries), on the one hand, and the Company or its Subsidiaries, on the other hand, shall be terminated
_____________
Allegheny Energy, Inc – Company or its Subsidiaries, on the other hand, shall be terminated with respect to the Company and its Subsidiaries prior to the Closing Date, and, after the Closing Date, neither Allegheny Energy, Inc . or any of its Subsidiaries (other than the Company and its Subsidiaries), on the one hand, nor the Company or its Subsidiaries, on the other hand, shall be bound
_____________
dt 1558616
;
Citibank
As referenced in this Acquisition Agreement:
Citibank N.A. – Section 3.2(c) (i) shall be paid with interest for the period commencing on the Closing Date through the date of payment, calculated at the published prime rate of Citibank N.A. as in effect on the Closing Date (the Applicable Rate) and (ii) shall, to the maximum extent permitted by applicable law, constitute an adjustment to the Purchase Price.
(d)
_____________
dt 1479855
;
|
Citibank
As referenced in this Acquisition Agreement:
Citibank N.A. – Section 3.2(c) (i) shall be paid with interest for the period commencing on the Closing Date through the date of payment, calculated at the published prime rate of Citibank N.A. as in effect on the Closing Date (the Applicable Rate) and (ii) shall, to the maximum extent permitted by applicable law, constitute an adjustment to the Purchase Price.
(d)
_____________
dt 1479855
|
| Preview
Subscribers | 2001 |
Acquisition Agreement
Acquisition Agreement (239K)
Doc #1433446: Click preview link for longer preview.
ACQUISITION AGREEMENT
BY AND AMONG
AMERADA HESS CORPORATION,
AMERADA HESS (CAYMAN) LIMITED
AND
TRITON ENERGY LIMITED
DATED AS OF JULY 9, 2001
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> . . .
1433446
|
J.P. Morgan
As referenced in this Acquisition Agreement:
J.P. Morgan Securities Inc – Scheme
of Arrangement and the Compulsory Acquisition, and to the transactions
contemplated by the Transaction Documents, (x) any applicable takeover statutes
and (y) the Rights Agreement and the Rights.
(b) J.P. Morgan Securities Inc . has delivered to the Board
of Directors of the Company its opinion that the consideration to be received
pursuant to the Offer and either the proposed Scheme of Arrangement
_____________
J.P. Morgan Securities Inc – respects with the requirements of the
Exchange Act.
Section 4.16 Broker's or Finder's Fee. Except for the fees of Hicks,
Muse & Co. Partners, L.P. and J.P. Morgan Securities Inc . (whose fees and
expenses shall be paid by the Company in accordance with the Company's
agreements with such firms, true and correct copies of which have been
previously
_____________
J.P. Morgan Securities Inc – and the Rights Agreement has not been further modified or amended.
33
<PAGE> 38
Section 4.22 Opinion of Financial Advisor. The Company has received
the opinion of J.P. Morgan Securities Inc . (a complete and correct signed copy
of which has been, or promptly upon receipt thereof shall be, delivered to
Parent for information purposes only, but such opinion shall not
_____________
dt 1677266
;
| |
| Preview
Subscribers | 2001 |
Acquisition Agreement
Acquisition Agreement (243K)
Doc #1433461: Click preview link for longer preview.
ACQUISITION AGREEMENT
BY AND AMONG
AMERADA HESS CORPORATION,
AMERADA HESS (CAYMAN) LIMITED
AND
TRITON ENERGY LIMITED
DATED AS OF JULY 9, 2001
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE& . . .
1433461
|
J.P. Morgan
As referenced in this Acquisition Agreement:
J.P. Morgan Securities Inc – Scheme of Arrangement and
the Compulsory Acquisition, and to the transactions contemplated by the
Transaction Documents, (x) any applicable takeover statutes and (y) the Rights
Agreement and the Rights.
(b) J.P. Morgan Securities Inc . has delivered to the Board of Directors
of the Company its opinion that the consideration to be received pursuant to the
Offer and either the proposed Scheme of Arrangement
_____________
J.P. Morgan Securities Inc – respects with the requirements of the
Exchange Act.
Section 4.16 Broker's or Finder's Fee. Except for the fees of Hicks,
Muse & Co. Partners, L.P. and J.P. Morgan Securities Inc . (whose fees and
expenses shall be paid by the Company in accordance with the Company's
agreements with such firms, true and correct copies of which have been
previously
_____________
J.P. Morgan Securities Inc – and the Rights Agreement has not been further modified or amended.
33
<PAGE> 38
Section 4.22 Opinion of Financial Advisor. The Company has received the
opinion of J.P. Morgan Securities Inc . (a complete and correct signed copy of
which has been, or promptly upon receipt thereof shall be, delivered to Parent
for information purposes only, but such opinion shall not
_____________
dt 1677267
;
| |
| Preview
Subscribers | 2003 |
Asset Transfer and Acquisition Agreement
Asset Transfer and Acquisition Agreement (181K)
Doc #107999: Click preview link for longer preview.
ASSET TRANSFER AND ACQUISITION AGREEMENT
By and Among
ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY,
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY,
and
JOHN HANCOCK LIFE INSURANCE COMPANY
Dated as of December 31, 2002
[*] Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the Securities and Exchange Commission.
{PAGE}
Confidential
TABLE OF CONTENTS
{TABLE}
{S} {C}
ARTICLE I DEFINITIONS ...................................................................... 2
Section 1.01 Definitions ................................................................ 2
ARTICLE II TRANSFER AND ACQUISITION OF ASSETS .............................................. 11
Section 2.01 Notional Operating Account.................................................. 11
Section 2.02 Acquisition of Transferred Assets, Estimated Notional Account
Balance and Assumption of Assumed Liabilities............................... 13
Section 2.03 Place and Date of Closing .................................................. 14
Section 2.04 Post-Closing Adjustments.................................................... 14
Section 2.05 Closing Items............................................................... 16
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS ...................................... 17
Section 3.01 Organization, Standing and Authority of Sellers ............................ 17
Section 3.02 Authorization .............................................................. 17
Section 3.03 Actions and Proceedings .................................................... 17
Section 3.04 No Conflict or Violation ................................................... 18
Section 3.05 Governmental Consents and Approvals ........................................ 18
Section 3.06 Computer Software and Intellectual Property. ............................... 18
Section 3.07 Brokerage and Financial Advisers ........................................... 19
Section 3.08 Compliance with Laws ....................................................... 19
Section 3.09 Permits, Licenses and Franchises ........................................... 19
Section 3.10 Coinsured Contracts. ....................................................... 20
Section 3.11 Regulatory Filings ......................................................... 20
Section 3.12 Reinsurance ................................................................ 21
Section 3.13 Conduct of Business ........................................................ 21
Section 3.14 Absence of Certain Changes ................................................. 21
Section 3.15 Other Sale Arrangements .................................................... 21
Section 3.16 Reserved. .................................................................. 21
Section 3.17 Employees .................................................................. 21
Section 3.18 Transferred Assets ......................................................... 21
Section 3.19 GAAP Financial Statements .................................................. 22
Section 3.20 Statutory Statements ....................................................... 22
Section 3.21 Tax Matters ................................................................ 22
Section 3.22 Disaster Recovery Backup ................................................... 23
Section 3.23 Pro Forma Financial Statements ............................................. 23
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER ..................................... 23
Section 4.01 Organization and Standing .................................................. 23
Section 4.02 Authorization .............................................................. 23
Section 4.03 Actions and Proceedings .................................................... 24
Section 4.04 No Conflict or Violation ................................................... 24
Section 4.05 Governmental Consents and Approvals ........................................ 24
Section 4.06 Brokerage and Financial Advisers ........................................... 25
Section 4.07 Compliance with Laws ....................................................... 25
Section 4.08 Permits, Licenses and Franchises ........................................... 25
Section 4.09 Sufficient Funds ........................................................... 25
ARTICLE V COVENANTS......................................................................... 25
Section 5.01 Conduct of Business. ....................................................... 25
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C}
Section 5.02 Certain Transactions ....................................................... 27
Section 5.03 Investigations; Pre-Closing Access. ....................................... 27
Section 5.04 Post-Closing Access ....................................................... 28
Section 5.05 Consents and Reasonable Efforts ........................................... 29
Section 5.06 Further Assurances. ....................................................... 30
Section 5.07 Expenses .................................................................. 30
Section 5.08 Indemnity Coinsurance Agreement ........................................... 30
Section 5.09 Administrative Services Agreement ......................................... 30
Section 5.10 Transition Servicing Agreement ............................................ 30
Section 5.11 Bill of Sale and General Assignment Agreement ............................. 30
Section 5.12 Reserved. ................................................................. 30
Section 5.13 License Agreements ........................................................ 31
Section 5.14 Reinsurance Treaties ...................................................... 31
Section 5.15 Reserved. ................................................................. 31
Section 5.16 Reserved. ................................................................. 31
Section 5.17 Tax Allocation. ........................................................... 31
Section 5.18 Reserved. ................................................................. 32
Section 5.19 Reserved. ................................................................. 32
Section 5.20 Licensed Software and Transition Support. ................................. 32
Section 5.21 Confidentiality ........................................................... 34
Section 5.22 Systems ................................................................... 35
Section 5.23 Updated Financial Information ............................................. 35
Section 5.24 Reserved. ................................................................. 35
Section 5.25 Reinsurance Treaty ........................................................ 35
Section 5.26 Forty-Nine State Closing; NY Closing ...................................... 35
ARTICLE VI CONDITIONS PRECEDENT TO THE OBLIGATION OF PURCHASER TO CLOSE ................... 36
Section 6.01 Covenants, Representations and Warranties. ................................ 36
Section 6.02 Other Agreements .......................................................... 37
Section 6.03 Governmental and Regulatory Consents and Approvals ........................ 37
Section 6.04 Possession of Assets; Instruments of Conveyance ........................... 37
Section 6.05 Notional Operating Account Balance ........................................ 37
Section 6.06 Litigation ................................................................ 37
Section 6.07 Injunction ................................................................ 37
Section 6.08 Reserved. ................................................................. 37
Section 6.09 Reserved. ................................................................. 37
Section 6.10 Reserved. ................................................................. 37
Section 6.11 General Account Reserves .................................................. 38
ARTICLE VII CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLERS TO CLOSE .................... 38
Section 7.01 Covenants, Representations and Warranties. ................................ 38
Section 7.02 Other Agreements .......................................................... 38
Section 7.03 Governmental and Regulatory Consents and Approvals ........................ 38
Section 7.04 Notional Operating Account Balance ........................................ 39
Section 7.05 Injunction ................................................................ 39
Section 7.06 Litigation ................................................................ 39
ARTICLE VIII FURTHER AGREEMENTS ........................................................... 39
{/TABLE}
ii
{PAGE}
{TABLE}
{S} {C}
Section 8.01 Maintenance of Coinsured Contracts ........................................ 39
Section 8.02 Tax Reimbursement. ........................................................ 39
Section 8.03 Asset Adequacy Testing .................................................... 40
Section 8.04 Post Closing Letter ....................................................... 41
ARTICLE IX SURVIVAL OF REPRESENTATIONS AND WARRANTIES ..................................... 41
Section 9.01 Survival of Representations and Warranties ................................ 41
ARTICLE X INDEMNIFICATION ................................................................. 41
Section 10.01 Obligations of Sellers to Indemnify ...................................... 41
Section 10.02 Obligation of Purchaser to Indemnify ..................................... 42
Section 10.03 Notice of Loss, Asserted Liability ....................................... 42
Section 10.04 Opportunity to Contest ................................................... 43
Section 10.06 Sole Remedy .............................................................. 44
Section 10.07 Certain Reductions; Subrogation Rights ................................... 44
Section 10.08 Indemnification Payments ................................................. 44
Section 10.09 Effect of Indemnification ................................................ 44
Section 10.10 Parent Indemnification ................................................... 44
ARTICLE XI TERMINATION PRIOR TO CLOSING ................................................... 44
Section 11.01 Termination of Agreement ................................................. 45
Section 11.02 Survival ................................................................. 45
ARTICLE XII MISCELLANEOUS ................................................................. 45
Section 12.01 Publicity ................................................................ 45
Section 12.02 Confidentiality .......................................................... 45
Section 12.03 Notices .................................................................. 46
Section 12.04 Entire Agreement ......................................................... 47
Section 12.05 Waivers and Amendments; Non-Contractual Remedies; Preservation
of Remedies .............................................................. 47
Section 12.06 Governing Law ............................................................ 47
Section 12.07 Binding Effect; Assignment ............................................... 47
Section 12.08 Interpretation. .......................................................... 48
Section 12.09 No Third Party Beneficiaries ............................................. 48
Section 12.10 Counterparts ............................................................. 48
Section 12.11 Other Agreements, Exhibits and Schedules ................................. 48
Section 12.12 Headings ................................................................. 48
Section 12.13 Dollar References ........................................................ 48
{/TABLE}
iii
{PAGE}
EXHIBITS
Exhibit A - Form of Coinsurance Agreement
Exhibit B - Form of Administrative Services Agreement
Exhibit C - Form of Transition Servicing Agreement
Exhibit D - Form of Bill of Sale and General Assignment Agreement
Exhibit E - [Deleted]
Exhibit F - Modified Endowment Contracts
Exhibit G - Form of Software License Agreement
Exhibit H - Form of Trademark License Agreement
Exhibit I - Form of Copyright License Agreement
INDEX OF SCHEDULES
Schedule 1.01(a) - [*] Policies
Schedule 1.01(e) - Coinsured Contracts
Schedule 1.01(f) - Pro Forma Financial Statements
Schedule 1.01(i) - Purchaser Key People
Schedule 1.01(j) - Seller Key People
Schedule 1.01(k) - Coinsured Contract Liabilities
Schedule 2.01(a)(1) - Notional Operating Account Cash Flows
Schedule 2.01(b) - Investment Assets
Schedule 4.03 - Actions and Proceedings
Schedule 4.04 - Conflicts or Violations
Schedule 4.05 - Governmental Consents and Approvals
Schedule 4.08 - Permits, Licenses and Franchises
Schedule 5.01(a) - Conduct of Business
Schedule 5.05 - Purchaser Approvals and Consents
Schedule 5.14 - Reinsurance Treaties
iv
{PAGE}
Exhibit 10.54
Confidential
ASSET TRANSFER AND ACQUISITION AGREEMENT
This ASSET TRANSFER AND ACQUISITION AGREEMENT (this "Agreement"), dated as
of December 31, 2002, is entered into by and among Allmerica Financial Life
Insurance and Annuity Company, a Massachusetts domiciled stock life insurance
company ("AFLIAC"), First Allmerica Financial Life Insurance Company, a
Massachusetts domiciled stock life insurance company ("FAFLIC" and together with
AFLIAC, the "Sellers" and each a "Seller"), and John Hancock Life Insurance
Company, a Massachusetts domiciled stock life insurance company ("Purchaser").
The parties agree that this Agreement shall be effective as of 11:59 p.m. (EST)
on December 31, 2002.
RECITALS:
WHEREAS, upon the terms and subject to the conditions of this Agreement,
Sellers wish to sell, and Purchaser wishes to acquire, certain of the assets and
liabilities associated with the fixed universal life insurance policies and
certain other assets of Sellers, as described below. At the Closing, each Seller
and Purchaser will enter into a Coinsurance Agreement (as defined below)
relating to the coinsurance by Purchaser of the Coinsured Contracts (as defined
below); and
WHEREAS, Sellers have retained an independent financial advisor to conduct
a competitive process to identify a reinsurer of the Indemnity Coinsured
Contracts (as defined below) that offered the most favorable terms to Sellers;
and
WHEREAS, Sellers, after consultation with their independent financial
advisor, Goldman, Sachs & Co., have determined that it is in the best interests
of their stockholders and policyholders that they enter into a coinsurance
relationship with Purchaser, a life insurance company which is not an Affiliate
of the Sellers; and
WHEREAS, AFLIAC and FAFLIC desire to cede and transfer to Purchaser, on a
100% coinsurance basis, liabilities of AFLIAC and FAFLIC under the Coinsured
Contracts; and
WHEREAS, Sellers desire that Purchaser perform a number of administrative
functions on behalf of AFLIAC and FAFLIC after the Closing Date with respect to
the Coinsured Contracts including but not limited to Outward Reinsurance
Agreements (as defined below), and Purchaser has agreed to provide such services
pursuant to the terms of the Administrative Services Agreement (as defined
below); and
WHEREAS, the parties recognize that the transfer of operations systems
necessary for Purchaser to perform its obligations fully under the
Administrative Services Agreement will occur over a period of time during which
Purchaser desires to subcontract with AFLIAC and FAFLIC under the Transition
Servicing Agreement (defined below) to perform some or all administrative
services; and
WHEREAS, upon the terms and subject to the conditions of this Agreement, at
the Closing (as defined below) the parties hereto will execute and deliver the
following agreements and instruments dated as of the Closing Date (as defined
below) or a date prior thereto: (i)
{PAGE}
Purchaser and each Seller shall enter into an Indemnity Coinsurance Agreement,
providing for, upon the terms and conditions and for the consideration set forth
therein, the reinsurance on a 100% coinsurance basis as of the Effective Date
(as defined below) by Purchaser of the General Account Liabilities (as defined
below), net of reinsurance recoverables under the Unassigned Outward Reinsurance
Agreements (as defined below), of Sellers under the Coinsured Contracts (as
defined below); (ii) Purchaser and Sellers shall enter into the Transition
Servicing Agreement, providing for the provision of any services to the
Coinsured Contracts (as defined below) that are currently provided and requested
by Purchaser as necessary to enable Purchaser to administer the Coinsured
Contracts (as defined below) for a period not to exceed 12 months; (iii)
Purchaser and AFLIAC and FAFLIC, respectively, shall enter into an
Administrative Services Agreement, providing for the servicing by Purchaser of
the Coinsured Contracts, (iv) Sellers shall execute and deliver to Purchaser all
necessary instruments of transfer, including but not limited to the Bill of Sale
(as defined below); and (v) Sellers and Purchaser shall enter into the Software,
Trademark and Copyright License Agreements (as defined below).
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in reliance upon the
representations, warranties, conditions and covenants contained herein, and
intending to be legally bound hereby, the parties hereto do hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The following terms shall have the respective
meanings set forth below throughout this Agreement:
"Additional Liability Reserve" shall mean an aggregate amount equal to [*]
comprised of liability relating to (a) certain Coinsured Contracts and (b) the
surrender value relating to certain partial withdrawals relating to Coinsured
Contracts.
"Adjusted Ceding Commission" means the Ceding Commission as adjusted to
reflect the actual closing level of General Account Reserves, and Tax Reserves
as follows:
(a) To the extent that Tax Reserves as of the Effective Date are lower
than General Account Reserves as of the Effective Date for the
Coinsured Contracts by an amount greater than three million dollars
($3,000,000), the Ceding Commission will be lowered by an amount equal
to 35% of the amount by which such difference is in excess of three
million dollars ($3,000,000).
(b) In the event that the Interest Maintenance Reserve shown on the
Effective Date Statement is less than the Interest Maintenance Reserve
shown on the Final Statement, the Ceding Commission shall be reduced
by an amount equal to the product of (i) the amount of such difference
in Interest Maintenance Reserve amounts multiplied by (ii) [*].
107999
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J.P. Morgan
As referenced in this Asset Transfer and Acquisition Agreement:
J.P. Morgan Securities, – party objecting shall submit such asset to three of the following
brokers Goldman, Sachs & Co., Credit Suisse First Boston Corporation, Lehman
Brothers Inc., J.P. Morgan Securities, Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and Morgan Stanley & Co. Inc. who shall each determine their
median bid and ask value
_____________
dt 97955
;
Allmerica Fin.
As referenced in this Asset Transfer and Acquisition Agreement:
ALLMERICA FINANCIAL CORP –
ALLMERICA FINANCIAL CORP
_____________
Allmerica Financial Corp. – this Agreement,
and employment related liabilities), but excluding liabilities or obligations of
any kind for which Sellers were released under the settlement in the matter of
Bussie, et al. vs. Allmerica Financial Corp. , et al., US District Court,
District of Massachusetts (Civ. Action 97-40204), as approved by the court on
May 19, 1999, other than amounts payable pursuant to the terms
_____________
Allmerica Financial Corp. – agreement;
(d) any Sellers' Retained Liability, but excluding liabilities or
obligations of any kind for which Sellers were released under the settlement in
the matter of Bussie, et al. vs. Allmerica Financial Corp. , et al., US District
Court, District of Massachusetts (Civ. Action 97-40204), as
41
approved by the court on May 19, 1999, other than amounts payable pursuant to
_____________
Allmerica Financial Corp. – with respect to the Coinsured
Contracts, but excluding liabilities or obligations of any kind for which
Sellers were released under the settlement in the matter of Bussie, et al. vs.
Allmerica Financial Corp. , et al., US District Court, District of Massachusetts
(Civ. Action 97-40204), as approved by the court on May 19, 1999, other than
amounts payable pursuant to the terms
_____________
dt 1848848
;
Bear, Stearns
As referenced in this Asset Transfer and Acquisition Agreement:
Bear Stearns & Co. – indirectly as such for, or is entitled
to any compensation from, Purchaser in connection with this Agreement or the
transactions contemplated hereby except Bear Stearns & Co. Inc, whose fees for
services rendered in connection with the transactions contemplated by this
Agreement will be paid by Purchaser.
Section 4.07
_____________
dt 106870
;
|
Mintz Levin
As referenced in this Asset Transfer and Acquisition Agreement:
Mintz, Levin – 03 Place and Date of Closing. The Closing shall take place at
the offices of Mintz, Levin , Cohn, Ferris Glovsky & Popeo, P.C., One Financial
Center, Boston, MA 02111, at 10:
Mintz, Levin – Telecopier No.: 617-572-9268
E-mail: jacford@jhancock.com
With a concurrent copy to:
Mintz, Levin , Cohn, Ferris & Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attn:
dt 35921
;
Bear, Stearns
As referenced in this Asset Transfer and Acquisition Agreement:
Bear Stearns & Co. – indirectly as such for, or is entitled
to any compensation from, Purchaser in connection with this Agreement or the
transactions contemplated hereby except Bear Stearns & Co. Inc, whose fees for
services rendered in connection with the transactions contemplated by this
Agreement will be paid by Purchaser.
Section 4.07
_____________
dt 106870
;
More... |
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Subscribers | 2003 |
Asset Transfer and Acquisition Agreement
Asset Transfer and Acquisition Agreement (181K)
Doc #982740: Click preview link for longer preview.
By and Among
ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY,
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY,
and
JOHN HANCOCK LIFE INSURANCE COMPANY
Dated as of December 31, 2002
[*] Portions of this exhibit have been omitted pursuant to a confidential
treatment request. An unredacted version of this exhibit has been filed
separately with the Securities and Exchange Commission.
<PAGE>
Confidential
. . .
982740
|
J.P. Morgan
As referenced in this Asset Transfer and Acquisition Agreement:
J.P. Morgan Securities, Inc – Market Values with which it
disagrees. The party objecting shall submit such asset to three of the following
brokers Goldman, Sachs & Co., Credit Suisse First Boston Corporation, Lehman
Brothers Inc., J.P. Morgan Securities, Inc ., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and Morgan Stanley & Co. Inc. who shall each determine their
median bid and ask value for such asset as of the Effective Date.
_____________
dt 1493066
;
Allmerica Fin.
As referenced in this Asset Transfer and Acquisition Agreement:
Allmerica Financial Corp. – this Agreement,
and employment related liabilities), but excluding liabilities or obligations of
any kind for which Sellers were released under the settlement in the matter of
Bussie, et al. vs. Allmerica Financial Corp. , et al., US District Court,
District of Massachusetts (Civ. Action 97-40204), as approved by the court on
May 19, 1999, other than amounts payable pursuant to the terms
_____________
Allmerica Financial Corp. – agreement;
(d) any Sellers' Retained Liability, but excluding liabilities or
obligations of any kind for which Sellers were released under the settlement in
the matter of Bussie, et al. vs. Allmerica Financial Corp. , et al., US District
Court, District of Massachusetts (Civ. Action 97-40204), as
41
approved by the court on May 19, 1999, other than amounts payable pursuant to
_____________
Allmerica Financial Corp. – with respect to the Coinsured
Contracts, but excluding liabilities or obligations of any kind for which
Sellers were released under the settlement in the matter of Bussie, et al. vs.
Allmerica Financial Corp. , et al., US District Court, District of Massachusetts
(Civ. Action 97-40204), as approved by the court on May 19, 1999, other than
amounts payable pursuant to the terms
_____________
dt 1401395
;
Bear, Stearns
As referenced in this Asset Transfer and Acquisition Agreement:
Bear Stearns & Co. – or
financial adviser has acted directly or indirectly as such for, or is entitled
to any compensation from, Purchaser in connection with this Agreement or the
transactions contemplated hereby except Bear Stearns & Co. Inc, whose fees for
services rendered in connection with the transactions contemplated by this
Agreement will be paid by Purchaser.
Section 4.07 Compliance with Laws. Except with respect
_____________
dt 1361342
;
|
Bear, Stearns
As referenced in this Asset Transfer and Acquisition Agreement:
Bear Stearns & Co. – or
financial adviser has acted directly or indirectly as such for, or is entitled
to any compensation from, Purchaser in connection with this Agreement or the
transactions contemplated hereby except Bear Stearns & Co. Inc, whose fees for
services rendered in connection with the transactions contemplated by this
Agreement will be paid by Purchaser.
Section 4.07 Compliance with Laws. Except with respect
_____________
dt 1361342
;
Goldman, Sachs
As referenced in this Asset Transfer and Acquisition Agreement:
Goldman, Sachs & Co. – to identify a reinsurer of the Indemnity Coinsured
Contracts (as defined below) that offered the most favorable terms to Sellers;
and
WHEREAS, Sellers, after consultation with their independent financial
advisor, Goldman, Sachs & Co. , have determined that it is in the best interests
of their stockholders and policyholders that they enter into a coinsurance
relationship with Purchaser, a life insurance company which is
_____________
Goldman, Sachs & Co. – to identify specific assets
contained in the Investment Assets with Fair Market Values with which it
disagrees. The party objecting shall submit such asset to three of the following
brokers Goldman, Sachs & Co. , Credit Suisse First Boston Corporation, Lehman
Brothers Inc., J.P. Morgan Securities, Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, and Morgan Stanley & Co. Inc. who shall each determine their
_____________
Goldman, Sachs & Co. – has acted directly or indirectly as such for, or is entitled
to any compensation from, Sellers or their Affiliates in connection with this
Agreement or the transactions contemplated hereby, except Goldman, Sachs & Co. ,
whose fees for services rendered in connection therewith will be paid by
Sellers.
Section 3.08 Compliance with Laws. Except with respect to those
violations listed on Schedule 3.
_____________
dt 1489174
;
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Subscribers | 2002 |
Exchange Agreement
Exchange Agreement (139K)
Doc #1009517: Click preview link for longer preview.
COMPOSITE COPY(1)
EXCHANGE AGREEMENT
dated as of
December 7, 2001
between
MICROSOFT CORPORATION
and
COMCAST CORPORATION
--------------------------------------------------------------------------------
(1) Reflects amendments enacted by Amendment No. 1 to . . .
1009517
|
J.P. Morgan
As referenced in this Exchange Agreement:
J.P. Morgan Securities Inc – of this Agreement and of each of
the Transaction Agreements;
(q) the Board of Directors of Comcast shall have received an opinion from
each of Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc . and
Merrill, Lynch, Pierce, Fenner & Smith Incorporated, its financial advisors in
connection with the Transactions, substantially to the effect that, as of the
date of the Merger Agreement,
_____________
dt 1493117
;
Time Warner
As referenced in this Exchange Agreement:
Time Warner, Inc – entered into. No Parent Party will enter
into or be bound by: (A) any exclusive Access Agreement during the MFN Period;
or (B) a Third Party Access Agreement with AOL Time Warner, Inc . or any of its
Affiliates during the MFN Period if no Access Slots would be available to
Microsoft, or any Parent Party would otherwise be prevented from complying with
_____________
Time Warner, Inc – a cable
system or systems within a limited geography for a limited period of time.
Notwithstanding the foregoing, Comcast agrees that if a Parent Party provides a
Test to AOL Time Warner, Inc . or any Affiliate, the Parent Party will provide to
Microsoft a Test on a basis equal and comparable (including with respect to Test
market characteristics) as those provided to
_____________
Time Warner, Inc – or any Affiliate, the Parent Party will provide to
Microsoft a Test on a basis equal and comparable (including with respect to Test
market characteristics) as those provided to AOL Time Warner, Inc . and its
Affiliates, except that the Parent Party shall not be required to provide Test
to Microsoft in the identical geographic market as the Test provided to AOL Time
_____________
Time
Warner, Inc – Warner, Inc. and its
Affiliates, except that the Parent Party shall not be required to provide Test
to Microsoft in the identical geographic market as the Test provided to AOL Time
Warner, Inc . or its Affiliates. The term "THRESHOLD PERCENTAGE" means 20% during
the first year of the Microsoft Access Agreement, 22.5% during the second year
thereof, 25% during the third
_____________
dt 1515034
;
|
Time Warner
As referenced in this Exchange Agreement:
Time Warner, Inc – entered into. No Parent Party will enter
into or be bound by: (A) any exclusive Access Agreement during the MFN Period;
or (B) a Third Party Access Agreement with AOL Time Warner, Inc . or any of its
Affiliates during the MFN Period if no Access Slots would be available to
Microsoft, or any Parent Party would otherwise be prevented from complying with
_____________
Time Warner, Inc – a cable
system or systems within a limited geography for a limited period of time.
Notwithstanding the foregoing, Comcast agrees that if a Parent Party provides a
Test to AOL Time Warner, Inc . or any Affiliate, the Parent Party will provide to
Microsoft a Test on a basis equal and comparable (including with respect to Test
market characteristics) as those provided to
_____________
Time Warner, Inc – or any Affiliate, the Parent Party will provide to
Microsoft a Test on a basis equal and comparable (including with respect to Test
market characteristics) as those provided to AOL Time Warner, Inc . and its
Affiliates, except that the Parent Party shall not be required to provide Test
to Microsoft in the identical geographic market as the Test provided to AOL Time
_____________
Time
Warner, Inc – Warner, Inc. and its
Affiliates, except that the Parent Party shall not be required to provide Test
to Microsoft in the identical geographic market as the Test provided to AOL Time
Warner, Inc . or its Affiliates. The term "THRESHOLD PERCENTAGE" means 20% during
the first year of the Microsoft Access Agreement, 22.5% during the second year
thereof, 25% during the third
_____________
dt 1515034
;
BNY
As referenced in this Exchange Agreement:
Bank of New York, – governmental body, agency, official or
authority.
4
<PAGE>
"GUARANTEE AGREEMENT" means the Guarantee Agreement, dated as of June
16, 1999, between AT&T, as guarantor, and The Bank of New York, as guarantee
trustee, relating to the Issuer Trust.
"HSD SERVICE" shall have the meaning specified in Section 2.02(c).
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements
_____________
Bank of New York – Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"INDENTURE" means the Indenture, dated as of June 16, 1999, between
AT&T and The Bank of New York as trustee, relating to the Debentures.
"IRS" means the United States Internal Revenue Service.
"KNOWLEDGE" means, with respect to any fact, the conscious awareness of
such fact by an "executive
_____________
Bank of New York – the Transaction Agreements.
"TRANSFER EXCHANGE" has the meaning specified in Section 12.02.
"TRUST AGREEMENT" means the Trust Agreement, dated as of June 16, 1999,
among AT&T, The Bank of New York as property trustee, The Bank of New York
(Delaware) as Delaware trustee and the administrative trustees named therein,
relating to the Issuer Trust.
"TRUST COMMON SECURITIES" means the common securities
_____________
Bank of New York
– specified in Section 12.02.
"TRUST AGREEMENT" means the Trust Agreement, dated as of June 16, 1999,
among AT&T, The Bank of New York as property trustee, The Bank of New York
(Delaware) as Delaware trustee and the administrative trustees named therein,
relating to the Issuer Trust.
"TRUST COMMON SECURITIES" means the common securities of the Issuer
Trust issued pursuant to
_____________
dt 1585712
|
| Preview
Subscribers | 2006 |
Exchange Agreement
Exchange Agreement (46K)
Doc #2542598: Click preview link for longer preview.
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this �Agreement�), dated as of September 26, 2006, among First Data Corporation, a Delaware corporation (�FDC�), J.P. Morgan Securities Inc., Barclays Capital Inc. (collectively, the �Investment Banks�), and, solely with respect to Sections 2, 3(c), 4(a)(iv), 5, 6, 7, 8, 9, 10, 11 and 12 hereof, The Western Union Company, a Delaware corporation (�Western Union�).
WHEREAS, pursuant to a Separation and Distribution Agreement to be dated on or before September 29, 2006 between FDC and Western Union (the �Separation and Distribution Agreement�), . . .
2542598
|
J.P. Morgan
As referenced in this Exchange Agreement:
J.P. Morgan Securities Inc – 10.4 6 dex104.htm EXCHANGE AGREEMENT
Exhibit 10.4
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this Agreement), dated as of September 26, 2006, among First Data Corporation, a Delaware corporation (FDC), J.P. Morgan Securities Inc ., Barclays Capital Inc. (collectively, the Investment Banks), and, solely with respect to Sections 2, 3(c), 4(a)(iv), 5, 6, 7, 8, 9, 10, 11 and 12 hereof,
_____________
J.P. Morgan Securities Inc – for such Western Union Securities; and
WHEREAS, the Investment Banks and Western Union are parties to that certain Purchase Agreement dated as of September 20, 2006 (the Purchase Agreement) with J.P. Morgan Securities Inc . and Barclays Capital Inc., as initial purchasers (the Initial Purchasers), in connection with the sale pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as
_____________
J.P. Morgan Securities Inc – contemplated by this Agreement or any related transactions.
(vii) Neither FDC nor any of its affiliates has sold any Exchange FDC Debt Obligations to the Investment Banks (other than to J.P. Morgan Securities Inc . as a dealer in connection with their initial issuance).
(b) Each of the Investment Banks hereby severally as to itself and not jointly represents and warrants to FDC that:
(
_____________
J.P. Morgan Securities Inc – by a nationally recognized courier service to the parties at the following address or sent by electronic transmission to the telecopier numbers specified below:
If to the Investment Banks, to:
J.P. Morgan Securities Inc .
270 Park Avenue
New York, NY 10017-2070
Attention: Akis Psarris
Fax: (212) 834 6170
Barclays Capital Inc.
200 Park Avenue
New York, NY 10166
Attention: Liability Management Desk
_____________
J.P. MORGAN SECURITIES INC – Agreement to be duly executed as of the date first written above.
FIRST DATA CORPORATION
By:
/s/ Michael A. Jacobs
Name:
Michael A. Jacobs
Title:
Senior Vice President and Treasurer
J.P. MORGAN SECURITIES INC .
By:
/s/ Akis Psarris
Name:
Akis Psarris
Title:
Managing Director
BARCLAYS CAPITAL INC.
By:
/s/ Craig Orchant
Name:
Craig Orchant
Title:
Managing Director
As to Sections 2, 3(c),
_____________
dt 1619719
;
|
Barclays Capital
As referenced in this Exchange Agreement:
Barclays Capital Inc – EXCHANGE AGREEMENT
Exhibit 10.4
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (this Agreement), dated as of September 26, 2006, among First Data Corporation, a Delaware corporation (FDC), J.P. Morgan Securities Inc., Barclays Capital Inc . (collectively, the Investment Banks), and, solely with respect to Sections 2, 3(c), 4(a)(iv), 5, 6, 7, 8, 9, 10, 11 and 12 hereof, The Western Union
_____________
Barclays Capital Inc – WHEREAS, the Investment Banks and Western Union are parties to that certain Purchase Agreement dated as of September 20, 2006 (the Purchase Agreement) with J.P. Morgan Securities Inc. and Barclays Capital Inc ., as initial purchasers (the Initial Purchasers), in connection with the sale pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended (the Securi |