Exhibit D
COMPUTER ASSOCIATES INTERNATIONAL, INC.
$320,000,000
6.77% Senior Notes due April 4, 2003
NOTE PURCHASE AGREEMENT
Dated as of April 1, 1996
TABLE OF CONTENTS
Section Page
1. AUTHORIZATION OF NOTES. . . . . . . . . . . . . . . . . . . . . 1
2. SALE AND PURCHASE OF NOTES. . . . . . . . . . . . . . . . . . . 1
3. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . 2
4.1. Representations and Warranties. . . . . . . . . . . . . . 2
4.2. Performance; No Default . . . . . . . . . . . . . . . . . 2
4.3. Compliance Certificates . . . . . . . . . . . . . . . . . 2
4.4. Opinions of Counsel . . . . . . . . . . . . . . . . . . . 3
4.5. Purchase Permitted By Applicable Law, etc.. . . . . . . . 3
4.6. Sale of Other Notes . . . . . . . . . . . . . . . . . . . 3
4.7. Payment of Special Counsel Fees . . . . . . . . . . . . . 3
4.8. Private Placement Number. . . . . . . . . . . . . . . . . 3
4.9. Changes in Corporate Structure. . . . . . . . . . . . . . 3
4.10. Proceedings and Documents . . . . . . . . . . . . . 4
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . . . . . . 4
5.1. Organization; Power and Authority . . . . . . . . . . . . 4
5.2. Authorization, etc. . . . . . . . . . . . . . . . . . . . 4
5.3. Disclosure. . . . . . . . . . . . . . . . . . . . . . . . 4
5.4. Organization and Ownership of Shares of
Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . 5
5.5. Financial Statements. . . . . . . . . . . . . . . . . . . 5
5.6. Compliance with Laws, Other Instruments,
etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.7. Governmental Authorizations, etc. . . . . . . . . . . . . 6
5.8. Litigation; Observance of Statutes and
Orders. . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.9. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.10. Title to Property; Leases . . . . . . . . . . . . . 6
5.11. Licenses, Permits, etc. . . . . . . . . . . . . . . 7
5.12. Compliance with ERISA . . . . . . . . . . . . . . . 7
5.13. Private Offering by the Company . . . . . . . . . . 8
5.14. Use of Proceeds; Margin Regulations . . . . . . . . 8
5.15. Existing Indebtedness . . . . . . . . . . . . . . . 8
5.16. Foreign Assets Control Regulations,
etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.17. Status under Certain Statutes . . . . . . . . . . . 9
6. REPRESENTATIONS OF THE PURCHASER. . . . . . . . . . . . . . . . 9
6.1. Purchase for Investment . . . . . . . . . . . . . . . . . 9
6.2. Source of Funds . . . . . . . . . . . . . . . . . . . . . 9
7. INFORMATION AS TO COMPANY . . . . . . . . . . . . . . . . . . . 10
7.1. Financial and Business Information. . . . . . . . . . . . 10
7.2. Officer's Certificate . . . . . . . . . . . . . . . . . . 12
7.3. Inspection. . . . . . . . . . . . . . . . . . . . . . . . 13
8. PREPAYMENT OF THE NOTES . . . . . . . . . . . . . . . . . . . . 13
8.1. Required Prepayments. . . . . . . . . . . . . . . . . . . 13
8.2. Optional Prepayments with Make-Whole Amount . . . . . . . 14
8.3. Prepayment in Connection with Excess Amounts. . . . . . . 14
8.4. Allocation of Partial Prepayments . . . . . . . . . . . . 15
8.5. Maturity; Surrender, etc. . . . . . . . . . . . . . . . . 15
8.6. Purchase of Notes . . . . . . . . . . . . . . . . . . . . 15
8.7. Make-Whole Amount . . . . . . . . . . . . . . . . . . . . 15
9. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 17
9.1. Compliance with Law . . . . . . . . . . . . . . . . . . . 17
9.2. Insurance . . . . . . . . . . . . . . . . . . . . . . . . 17
9.3. Maintenance of Properties . . . . . . . . . . . . . . . . 17
9.4. Payment of Taxes. . . . . . . . . . . . . . . . . . . . . 18
9.5. Corporate Existence, etc. . . . . . . . . . . . . . . . . 18
10. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . 18
10.1. Transactions with Affiliates. . . . . . . . . . . . 18
10.2. Merger, Consolidation, etc. . . . . . . . . . . . . 18
10.3. Liens.. . . . . . . . . . . . . . . . . . . . . . . 19
10.4. Subsidiary Indebtedness . . . . . . . . . . . . . . 21
10.5. Disposition of Assets . . . . . . . . . . . . . . . 21
10.6. Maintenance of Financial Conditions . . . . . . . . 23
11. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . 23
12. REMEDIES ON DEFAULT, ETC. . . . . . . . . . . . . . . . . . . . 25
12.1. Acceleration. . . . . . . . . . . . . . . . . . . . 25
12.2. Other Remedies. . . . . . . . . . . . . . . . . . . 25
12.3. Rescission. . . . . . . . . . . . . . . . . . . . . 26
12.4. No Waivers or Election of Remedies,
Expenses, etc.. . . . . . . . . . . . . . . . . . . . . . 26
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES . . . . . . . . . 26
13.1. Registration of Notes . . . . . . . . . . . . . . . 26
13.2. Transfer and Exchange of Notes. . . . . . . . . . . 26
13.3. Replacement of Notes. . . . . . . . . . . . . . . . 27
14. PAYMENTS ON NOTES . . . . . . . . . . . . . . . . . . . . . . . 27
14.1. Place of Payment. . . . . . . . . . . . . . . . . . 27
14.2. Home Office Payment . . . . . . . . . . . . . . . . 28
15. EXPENSES, ETC.. . . . . . . . . . . . . . . . . . . . . . . . . 28
15.1. Transaction Expenses. . . . . . . . . . . . . . . . 28
15.2. Survival. . . . . . . . . . . . . . . . . . . . . . 28
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
17. AMENDMENT AND WAIVER. . . . . . . . . . . . . . . . . . . . . . 29
17.1. Requirements. . . . . . . . . . . . . . . . . . . . 29
17.2. Solicitation of Holders of Notes. . . . . . . . . . 29
17.3. Binding Effect, etc.. . . . . . . . . . . . . . . . 30
17.4. Notes held by Company, etc. . . . . . . . . . . . . 30
18. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
19. REPRODUCTION OF DOCUMENTS . . . . . . . . . . . . . . . . . . . 31
20. CONFIDENTIAL INFORMATION. . . . . . . . . . . . . . . . . . . . 31
21. SUBSTITUTION OF PURCHASER . . . . . . . . . . . . . . . . . . . 32
22. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 32
22.1. Successors and Assigns. . . . . . . . . . . . . . . 32
22.2. Payments Due on Non-Business Days . . . . . . . . . 32
22.3. Severability. . . . . . . . . . . . . . . . . . . . 32
22.4. Construction. . . . . . . . . . . . . . . . . . . . 33
22.5. Counterparts. . . . . . . . . . . . . . . . . . . . 33
22.6. Governing Law . . . . . . . . . . . . . . . . . . . 33
SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and
Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
EXHIBIT 1 -- Form of 6.77% Senior Note due April 4,
2003
EXHIBIT 4.4(a) -- Form of Opinion of General Counsel of the
Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel
to the Purchasers
COMPUTER ASSOCIATES INTERNATIONAL, INC.
One Computer Associates Plaza
Islandia, New York 11788-7000
6.77% Senior Notes due April 4, 2003
As of April 1, 1996
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
COMPUTER ASSOCIATES INTERNATIONAL, INC., a Delaware
corporation (the "Company"), agrees with you as follows:
1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of
$320,000,000 aggregate principal amount of its 6.77% Senior Notes
due April 4, 2003 (the "Notes", such term to include any such notes
issued in substitution therefor pursuant to Section 13 of this
Agreement or the Other Agreements (as hereinafter defined)). The
Notes shall be substantially in the form set out in Exhibit 1, with
such changes therefrom, if any, as may be approved by you and the
Company. Certain capitalized terms used in this Agreement are
defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement,
the Company will issue and sell to you and you will purchase from
the Company, at the Closing provided for in Section 3, Notes in the
principal amount specified opposite your name in Schedule A at the
purchase price of 100% of the principal amount thereof.
Contemporaneously with entering into this Agreement, the Company is
entering into separate Note Purchase Agreements (the "Other
Agreements") identical with this Agreement with each of the other
purchasers named in Schedule A (the "Other Purchasers"), providing
for the sale at such Closing to each of the Other Purchasers of
Notes in the principal amount specified opposite its name in
Schedule A. Your obligation hereunder and the obligations of the
Other Purchasers under the Other Agreements are several and not
joint obligations and you shall have no obligation under any Other
Agreement and no liability to any Person for the performance or
non-performance by any Other Purchaser thereunder.
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3. CLOSING.
The sale and purchase of the Notes to be purchased by you
and the Other Purchasers shall occur at the offices of Milbank,
Tweed, Hadley & McCloy, One Chase Manhattan Plaza, New York, New
York 10005, at 10:00 A.M., New York City time, at a closing (the
"Closing") on April 4, 1996 or on such other Business Day
thereafter on or prior to April 31, 1996 as may be agreed upon by
the Company and you and the Other Purchasers. At the Closing the
Company will deliver to you the Notes to be purchased by you in the
form of a single Note (or such greater number of Notes in
denominations of at least $500,000 as you may request) dated the
date of the Closing and registered in your name (or in the name of
your nominee), against delivery by you to the Company or its order
of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the
account of the Company to account number 178-1540 at Mellon Bank,
N.A., One Mellon Bank Center, Pittsburgh, Pennsylvania 15258, ABA
No. 043000261. If at the Closing the Company shall fail to tender
such Notes to you as provided above in this Section 3, or any of
the conditions specified in Section 4 shall not have been fulfilled
to your satisfaction, you shall, at your election, be relieved of
all further obligations under this Agreement, without thereby
waiving any rights you may have by reason of such failure or such
nonfulfillment.
4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be
sold to you at the Closing is subject to the fulfillment to your
satisfaction, prior to or at the Closing, of the following
conditions:
4.1. Representations and Warranties.
The representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
4.2. Performance; No Default.
The Company shall have performed and complied with all
agreements and conditions contained in this Agreement required to
be performed or complied with by it prior to or at the Closing and
after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Schedule
5.14) no Default or Event of Default shall have occurred and be
continuing.
4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have
delivered to you an Officer's Certificate, dated the date of the
Closing, certifying that the conditions specified in Sections 4.1,
4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have
delivered to you a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to the
authorization, execution and delivery of the Notes and this
Agreement.
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4.4. Opinions of Counsel.
You shall have received opinions in form and substance
satisfactory to you, dated the date of the Closing (a) from Steven
M. Woghin, General Counsel of the Company, covering the matters set
forth in Exhibit 4.4(a) and covering such other matters incident to
the transactions contemplated hereby as you or your counsel may
reasonably request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from Milbank, Tweed, Hadley &
McCloy, your special counsel in connection with such transactions,
substantially in the form set forth in Exhibit 4.4(b) and covering
such other matters incident to such transactions as you may
reasonably request.
4.5. Purchase Permitted By Applicable Law, etc.
On the date of the Closing your purchase of Notes shall
(i) be permitted by the laws and regulations of each jurisdiction
to which you are subject, without recourse to provisions (such as
Section 1405(a)(8) of the New York Insurance Law) permitting
limited investments by insurance companies without restriction as
to the character of the particular investment, (ii) not violate any
applicable law or regulation (including, without limitation,
Regulation G, T or X of the Board of Governors of the Federal
Reserve System) and (iii) not subject you to any tax, penalty or
liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date hereof. If
requested by you, you shall have received an Officer's Certificate
certifying as to such matters of fact as you may reasonably specify
to enable you to determine whether such purchase is so permitted.
4.6. Sale of Other Notes.
Contemporaneously with the Closing the Company shall sell
to the Other Purchasers and the Other Purchasers shall purchase the
Notes to be purchased by them at the Closing as specified in
Schedule A.
4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the
Company shall have paid on or before the Closing the fees, charges
and disbursements of your special counsel referred to in Section
4.4 to the extent reflected in a statement of such counsel rendered
to the Company at least one Business Day prior to the Closing.
4.8. Private Placement Number.
A Private Placement number issued by Standard & Poor's
CUSIP Service Bureau (in cooperation with the Securities Valuation
Office of the National Association of Insurance Commissioners)
shall have been obtained for the Notes.
4.9. Changes in Corporate Structure.
The Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and
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shall not have succeeded to all or any substantial part of the
liabilities of any other entity, at any time following the date of
the most recent financial statements referred to in Schedule 5.5.
4.10. Proceedings and Documents.
All corporate and other proceedings in connection with
the transactions contemplated by this Agreement and all documents
and instruments incident to such transactions shall be satisfactory
to you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or
other copies of such documents as you or they may reasonably
request.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
5.1. Organization; Power and Authority.
The Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign corporation and
is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as
to which the failure to be so qualified or in good standing would
not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. The Company has the corporate
power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver this
Agreement and the Other Agreements and the Notes and to perform the
provisions hereof and thereof.
5.2. Authorization, etc.
This Agreement and the Other Agreements and the Notes
have been duly authorized by all necessary corporate action on the
part of the Company, and this Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal,
valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as such enforceability
may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
5.3. Disclosure.
The Company, through its agents, CS First Boston
Corporation and J.P. Morgan Securities Inc., has delivered to you
and each Other Purchaser a copy of a Direct Placement Memorandum,
dated March 1996 (the "Memorandum"), relating to the transactions
contemplated hereby. Except as disclosed in Schedule 5.3, this
Agreement, the Memorandum, the documents, certificates or other
writings identified in Schedule 5.3 and the financial statements
listed in Schedule 5.5, taken as a whole, do not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of
the circumstances under which they were made. Except as disclosed
5
in the Memorandum or as expressly described in Schedule 5.3, or in
one of the documents, certificates or other writings identified
therein, or in the financial statements listed in Schedule 5.5,
since December 31, 1995, there has been no change in the financial
condition, operations, business or properties of the Company or any
of its Subsidiaries except changes that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect.
5.4. Organization and Ownership of Shares of Subsidiaries.
(a) Schedule 5.4 is (except as noted therein) a complete
and correct list of the Company's Subsidiaries, showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of its
organization, and the percentage of shares of each class of its
capital stock or similar equity interests outstanding owned by the
Company and each other Subsidiary. Schedule 5.4 also indicates
which Subsidiaries constitute Material Subsidiaries.
(b) All of the outstanding shares of capital stock or
similar equity interests of each Subsidiary shown in Schedule 5.4
as being owned by the Company and its Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by
the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly existing
and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or
other legal entity and is in good standing in each jurisdiction in
which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such Subsidiary
has the corporate or other power and authority to own or hold under
lease the properties it purports to own or hold under lease and to
transact the business it transacts and proposes to transact.
5.5. Financial Statements.
The Company has delivered to each Purchaser copies of the
financial statements of the Company and its Subsidiaries listed on
Schedule 5.5. All of said financial statements (including in each
case the related schedules and notes) fairly present in all
material respects the consolidated financial position of the
Company and its Subsidiaries as of the respective dates specified
in such Schedule and the consolidated results of their operations
and cash flows for the respective periods so specified and have
been prepared in accordance with GAAP consistently applied
throughout the periods involved except as set forth in the notes
thereto (subject, in the case of any interim financial statements,
to normal year-end adjustments).
5.6. Compliance with Laws, Other Instruments, etc.
The execution, delivery and performance by the Company of
this Agreement and the Notes will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation
of any Lien in respect of any property of the Company or any
6
Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws,
or any other Material agreement or instrument to which the Company
or any Subsidiary is bound or by which the Company or any
Subsidiary or any of their respective properties may be bound or
affected, (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary or (iii) violate any
provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
5.7. Governmental Authorizations, etc.
No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or
performance by the Company of this Agreement or the Notes.
5.8. Litigation; Observance of Statutes and Orders.
(a) There are no actions, suits or proceedings pending
or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any property of the
Company or any Subsidiary in any court or before any arbitrator of
any kind or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default
under any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of any
applicable law, ordinance, rule or regulation (including without
limitation Environmental Laws) of any Governmental Authority, which
default or violation, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
5.9. Taxes.
The Company and its Subsidiaries have filed all income
tax returns that are required to have been filed in any
jurisdiction, and have paid all taxes shown to be due and payable
on such returns and all other taxes and assessments payable by
them, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any
taxes and assessments (i) the amount of which is not individually
or in the aggregate Material or (ii) the amount, applicability or
validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP. The Federal income tax liabilities of the
Company and its Subsidiaries have been determined by the Internal
Revenue Service and paid for all fiscal years up to and including
the fiscal year ended March 31, 1991.
5.10. Title to Property; Leases.
The Company and its Subsidiaries have good and sufficient
title to their respective Material properties, including all such
properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by
the Company or any Subsidiary after said date (except as sold or
otherwise disposed of in the ordinary course of business), in each
case free and clear of Liens prohibited by this Agreement, except
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for those defects in title and Liens that, individually or in the
aggregate, would not have a Material Adverse Effect. All Material
leases are valid and subsisting and are in full force and effect in
all material respects.
5.11. Licenses, Permits, etc.
The Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights,
service marks, trademarks and trade names, or rights thereto, that
are Material, without known conflict with the rights of others,
except for those conflicts that, individually or in the aggregate,
would not have a Material Adverse Effect.
5.12. Compliance with ERISA.
(a) The Company and each ERISA Affiliate have operated
and administered each Plan in compliance with all applicable laws
except for such instances of noncompliance as have not resulted in
and could not reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee
benefit plans (as defined in Section 3 of ERISA), and no event,
transaction or condition has occurred or exists that would
reasonably be expected to result in the incurrence of any such
liability by the Company or any ERISA Affiliate, or in the
imposition of any Lien on any of the rights, properties or assets
of the Company or any ERISA Affiliate, in either case pursuant to
Title I or IV of ERISA or to such penalty or excise tax provisions
or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the
aggregate Material.
(b) The present value of the aggregate benefit
liabilities under each of the Plans (other than Multiemployer
Plans), determined as of the end of such Plan's most recently ended
plan year on the basis of the actuarial assumptions specified for
funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of
such Plan allocable to such benefit liabilities by more than
$10,000,000 in the case of any single Plan and by more than
$20,000,000 in the aggregate for all Plans. The term "benefit
liabilities" has the meaning specified in Section 4001 of ERISA and
the terms "current value" and "present value" have the meaning
specified in Section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not
incurred withdrawal liabilities (and are not subject to contingent
withdrawal liabilities) under Section 4201 or 4204 of ERISA in
respect of Multiemployer Plans that individually or in the
aggregate are Material.
(d) The expected postretirement benefit obligation
(determined as of the last day of the Company's most recently ended
fiscal year in accordance with Financial Accounting Standards Board
Statement No. 106, without regard to liabilities attributable to
continuation coverage mandated by Section 4980B of the Code) of the
Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the
issuance and sale of the Notes hereunder will not involve any
transaction that is subject to the prohibitions of Section 406 of
ERISA or in connection with which a tax could be imposed pursuant
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to Section 4975(c)(1)(A)-(D) of the Code. The representation by
the Company in the first sentence of this Section 5.12(e) is made
in reliance upon and subject to the accuracy of your representation
in Section 6.2 as to the sources of the funds to be used to pay the
purchase price of the Notes to be purchased by you.
5.13. Private Offering by the Company.
Neither the Company nor anyone acting on its behalf has
offered the Notes or any similar securities for sale to, or
solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other
than you, the Other Purchasers and not more than 120 other
Institutional Investors, each of which has been offered the Notes
at a private sale for investment. Neither the Company nor anyone
acting on its behalf has taken, or will take, any action that would
subject the issuance or sale of the Notes to the registration
requirements of Section 5 of the Securities Act.
5.14. Use of Proceeds; Margin Regulations.
The Company will apply the proceeds of the sale of the
Notes as set forth in Schedule 5.14. No part of the proceeds from
the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock
within the meaning of Regulation G of the Board of Governors of the
Federal Reserve System (12 CFR 207), or for the purpose of buying
or carrying or trading in any securities under such circumstances
as to involve the Company in a violation of Regulation X of said
Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock
does not constitute more than 10% of the value of the consolidated
assets of the Company and its Subsidiaries and the Company does not
have any present intention that margin stock will constitute more
than 10% of the value of such assets. As used in this Section, the
terms "margin stock" and "purpose of buying or carrying" shall have
the meanings assigned to them in said Regulation G.
5.15. Existing Indebtedness.
Except as described therein, Schedule 5.15 sets forth a
complete and correct list of all outstanding Indebtedness of the
Company and its Subsidiaries in a principal amount in excess of
$5,000,000 and the total amount of all other outstanding
Indebtedness of the Company and its Subsidiaries, in each case as
of February 29, 1996, since which date there has been no Material
change in the amounts, interest rates, sinking funds, instalment
payments or maturities of the Indebtedness of the Company or its
Subsidiaries. Neither the Company nor any Subsidiary is in default
and no waiver of default is currently in effect, in the payment of
any principal or interest on any Indebtedness of the Company or
such Subsidiary and no event or condition exists with respect to
any Indebtedness of the Company or any Subsidiary the outstanding
principal amount of which exceeds $5,000,000 that would permit (or
that with notice or the lapse of time, or both, would permit) one
or more Persons to cause such Indebtedness to become due and
payable before its stated maturity or before its regularly
scheduled dates of payment.
9
5.16. Foreign Assets Control Regulations, etc.
Neither the sale of the Notes by the Company hereunder
nor its use of the proceeds thereof will violate the Trading with
the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto.
5.17. Status under Certain Statutes.
Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended,
the Public Utility Holding Company Act of 1935, as amended, the
Interstate Commerce Act, as amended, or the Federal Power Act, as
amended.
6. REPRESENTATIONS OF THE PURCHASER.
6.1. Purchase for Investment.
You represent that you are purchasing the Notes for your
own account or for one or more separate accounts maintained by you
or for the account of one or more pension or trust funds and not
with a view to the distribution thereof, provided that the
disposition of your or their property shall at all times be within
your or their control. You understand that the Notes have not been
registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if
an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption
is required by law, and that the Company is not required to
register the Notes.
6.2. Source of Funds.
You represent that at least one of the following
statements is an accurate representation as to each source of funds
(a "Source") to be used by you to pay the purchase price of the
Notes to be purchased by you hereunder:
(a) the Source is an insurance company general account
as such term is used in Prohibited Transaction Exemption
("PTE") 95-60 issued by the Department of Labor and your
purchase of the Notes hereunder is entitled to the exemption
granted by PTE 95-60; or
(b) the Source is a separate account that is maintained
solely in connection with your fixed contractual obligations
under which the amounts payable, or credited, to such plan and
to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment
performance of the separate account; or
(c) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1 (issued
January 29, 1990), or (ii) a bank collective investment fund,
within the meaning of the PTE 91-38 (issued July 12, 1991)
and, except as you have disclosed to the Company in writing
pursuant to this paragraph (c), no employee benefit plan or
group of plans maintained by the same employer or employee
10
organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective
investment fund; or
(d) the Source constitutes assets of an "investment
fund" (within the meaning of Part V of the QPAM Exemption)
managed by a "qualified professional asset manager" or "QPAM"
(within the meaning of Part V of the QPAM Exemption), no
employee benefit plan's assets that are included in such
investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same
employer or by an affiliate (within the meaning of Section
V(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed 20% of
the total client assets managed by such QPAM, the conditions
of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of
the QPAM Exemption) owns a 5% or more interest in the Company
and (i) the identity of such QPAM and (ii) the names of all
employee benefit plans whose assets are included in such
investment fund have been disclosed to the Company in writing
pursuant to this paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or
a separate account or trust fund comprised of one or more
employee benefit plans, each of which has been identified to
the Company in writing pursuant to this paragraph (f); or
(g) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of
ERISA.
As used in this Section 6.2, the terms "employee benefit plan",
"governmental plan", "party in interest" and "separate account"
shall have the respective meanings assigned to such terms in
Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
7.1. Financial and Business Information.
The Company shall deliver to each holder of Notes that is
an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end
of each quarterly fiscal period in each fiscal year of the
Company (other than the last quarterly fiscal period of each
such fiscal year), duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income,
stockholders' equity and cash flows of the Company and
its Subsidiaries, for such quarter and (in the case of
11
the second and third quarters) for the portion of the
fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for
the corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable
to quarterly financial statements generally, and certified by
a Senior Financial Officer as fairly presenting, in all
material respects, the financial position of the companies
being reported on and their results of operations and cash
flows, subject to changes resulting from year-end adjustments,
provided that delivery within the time period specified above
of copies of the Company's Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission, and
containing the financial statements referred to in clauses (i)
and (ii) above, shall be deemed to satisfy the requirements of
this Section 7.1(a);
(b) Annual Statements -- within 105 days after the end
of each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and
its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income,
stockholders' equity and cash flows of the Company and
its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, prepared
in accordance with GAAP, and accompanied by an opinion thereon
of independent certified public accountants of recognized
national standing, which opinion shall state that such
financial statements present fairly, in all material respects,
the financial position of the companies being reported upon
and their results of operations and cash flows and have been
prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for
such opinion in the circumstances, provided that the delivery
within the time period specified above of the Company's Annual
Report on Form 10-K for such fiscal year (together with the
Company's annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act) prepared in
accordance with the requirements therefor and filed with the
Securities and Exchange Commission, and containing the
financial statements referred to in clauses (i) and (ii)
above, shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c) SEC and Other Reports -- promptly upon their
becoming available, one copy of (i) each financial statement,
report, notice or proxy statement sent by the Company or any
Subsidiary to public securities holders generally, and
(ii) each regular or periodic report, each registration
statement that shall have become effective (without exhibits
except as expressly requested by such holder), and each final
prospectus and all amendments thereto filed by the Company or
any Subsidiary with the Securities and Exchange Commission;
12
(d) Notice of Default or Event of Default -- promptly,
and in any event within five days after a Responsible Officer
becoming aware of the existence of any Default or Event of
Default, a written notice specifying the nature and period of
existence thereof and what action the Company is taking or
proposes to take with respect thereto;
(e) ERISA Matters -- promptly, and in any event within
five days after a Responsible Officer becoming aware of any of
the following, a written notice setting forth the nature
thereof and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event,
as defined in Section 4043(b) of ERISA and the
regulations thereunder, for which notice thereof has not
been waived pursuant to such regulations as in effect on
the date hereof; or
(ii) the taking by the PBGC of steps to institute,
or the threatening by the PBGC of the institution of,
proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or
any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by the PBGC with respect
to such Multiemployer Plan; or
(iii) any event, transaction or condition that
could result in the incurrence of any liability by the
Company or any ERISA Affiliate pursuant to Title I or IV
of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties
or assets of the Company or any ERISA Affiliate pursuant
to Title I or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken together
with any other such liabilities or Liens then existing,
would reasonably be expected to have a Material Adverse
Effect; and
(f) Requested Information -- with reasonable promptness,
such other data and information relating to the business,
operations, affairs, financial condition, assets or properties
of the Company or any of its Subsidiaries or relating to the
ability of the Company to perform its obligations hereunder
and under the Notes as from time to time may be reasonably
requested by any such holder of Notes.
7.2. Officer's Certificate.
Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be
accompanied by a certificate of a Senior Financial Officer setting
forth:
(a) Covenant Compliance -- the information (including
detailed calculations) required in order to establish whether
the Company was in compliance with the requirements of
Sections 10.3(i), 10.4(d), 10.5(e) and 10.6, inclusive, during
the quarterly or annual period covered by the statements then
being furnished (including with respect to each such Section,
where applicable, the calculations of the maximum or minimum
13
amount, ratio or percentage, as the case may be, permissible
under the terms of such Sections, and the calculation of the
amount, ratio or percentage then in existence); and
(b) Event of Default -- a statement that such officer
has reviewed the relevant terms hereof and has made, or caused
to be made, under his or her supervision, a review of the
transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual
period covered by the statements then being furnished to the
date of the certificate and that such review shall not have
disclosed the existence during such period of any condition or
event that constitutes a Default or an Event of Default or, if
any such condition or event existed or exists (including,
without limitation, any such event or condition resulting from
the failure of the Company or any Subsidiary to comply with
any Environmental Law), specifying the nature and period of
existence thereof and what action the Company shall have taken
or proposes to take with respect thereto.
7.3. Inspection.
The Company shall permit the representatives of each
holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then
exists, at the expense of such holder and upon reasonable
prior notice to the Company, to visit the principal executive
office of the Company, to discuss the affairs, finances and
accounts of the Company and its Subsidiaries with the
Company's officers, and, with the consent of the Company
(which consent will not be unreasonably withheld) to visit the
other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may
be reasonably requested in writing; and
Default -- if a Default or Event of Default then
exists, at the expense of the Company to visit and inspect any
of the offices or properties of the Company or any Subsidiary,
to examine all their respective books of account, records,
reports and other papers, to make copies and extracts
therefrom, and to discuss their respective affairs, finances
and accounts with their respective officers and independent
public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances
and accounts of the Company and its Subsidiaries), all at such
times and as often as may be requested.
8. PREPAYMENT OF THE NOTES.
8.1. Required Prepayments.
On April 4, 1999 and on each April 4 thereafter to and
including April 4, 2003, the Company will prepay $64,000,000
principal amount (or such lesser principal amount as shall then be
outstanding) of the Notes at par and without payment of the Make-
Whole Amount or any premium, provided that upon any partial
prepayment of the Notes pursuant to Section 8.2 or 8.3 or purchase
of the Notes permitted by Section 8.6 the principal amount of each
required prepayment of the Notes becoming due under this
Section 8.1 on and after the date of such prepayment or purchase
shall be reduced in the same proportion as the aggregate unpaid
14
principal amount of the Notes is reduced as a result of such
prepayment or purchase.
8.2. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided
below, prepay at any time all, or from time to time any part of,
the Notes, in an amount not less than 5% of the aggregate principal
amount of the Notes then outstanding in the case of a partial
prepayment, at 100% of the principal amount so prepaid, together
with interest accrued thereon to the date fixed for such
prepayment, plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount. The Company
will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not
more than 60 days prior to the date fixed for such prepayment,
which date shall be a Business Day. Each such notice shall specify
such date, the aggregate principal amount of the Notes to be
prepaid on such date, the principal amount of each Note held by
such holder to be prepaid (determined in accordance with Section
8.4), and the interest to be paid on the prepayment date with
respect to such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer as to
the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date
of the prepayment), setting forth the details of such computation.
Two Business Days prior to such prepayment, the Company shall
deliver to each holder of Notes a certificate of a Senior Financial
Officer specifying the calculation of such Make-Whole Amount as of
the specified prepayment date.
8.3. Prepayment in Connection with Excess Amounts.
If at any time the Company intends to create, incur or
assume a Lien which will result in any Excess Amounts being offered
to be applied to the prepayment of Specified Indebtedness pursuant
to the last paragraph of Section 10.3, the Company will give
written notice thereof to the holders of all outstanding Notes,
which notice shall (A) refer specifically to this Section 8.3, (B)
specify the Excess Amounts Prepayment Date and the Excess Amounts
Response Date (as respectively defined below) in respect thereof,
(C) set forth (i) the aggregate amount of Excess Amounts to be
offered to be applied to the prepayment of Specified Indebtedness,
(ii) the Note Portion thereof and (iii) the amount of such Note
Portion allocable to each Note, determined by allocating such Note
Portion pro rata among all outstanding Notes according to the
respective unpaid principal amounts thereof and (D) offer to prepay
a principal amount of each Note equal to such Note Portion so
allocable to such Note, together with interest accrued thereon to
the date fixed for such prepayment (the "Excess Amounts Prepayment
Date"), which shall be not less than 15 nor more than 30 days after
the date of the giving of such notice. Each holder of a Note shall
notify the Company of such holder's acceptance or rejection of such
offer by giving written notice of such acceptance or rejection to
the Company on a date (the "Excess Amounts Response Date") at least
ten days prior to the Excess Amounts Prepayment Date, and the
Company shall prepay on the Excess Amounts Prepayment Date the
applicable portion of each Note held by each holder by whom such
offer has been accepted in accordance with this Section 8.3 at a
price in respect of each Note held by such holder equal to the
principal amount of such Note so to be prepaid, together with
interest accrued thereon to the Excess Amounts Prepayment Date,
without payment of any Make-Whole Amount or any premium; provided,
however, that the failure by the holder of any Note to respond to
such offer in writing on or before the Excess Amounts Response Date
15
shall be deemed to be a rejection of such offer in respect of such
Excess Amounts.
8.4. Allocation of Partial Prepayments.
In the case of each partial prepayment of the Notes
pursuant to Section 8.1 or 8.2, the principal amount of the Notes
to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called
for prepayment.
8.5. Maturity; Surrender, etc.
In the case of each prepayment of Notes pursuant to this
Section 8, the principal amount of each Note to be prepaid shall
mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued
to such date and the applicable Make-Whole Amount, if any. From
and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the
interest and Make-Whole Amount, if any, as aforesaid, interest on
such principal amount shall cease to accrue. Any Note paid or
prepaid in full shall be surrendered to the Company and cancelled
and shall not be reissued, and no Note shall be issued in lieu of
any prepaid principal amount of any Note.
8.6. Purchase of Notes.
The Company will not and will not permit any Affiliate to
purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except (a) upon the
payment or prepayment of the Notes in accordance with the terms of
this Agreement and the Notes or (b) pursuant to an offer to
purchase made by the Company or an Affiliate pro rata to the
holders of all Notes at the time outstanding upon the same terms
and conditions. Any such offer shall provide each holder with
sufficient information to enable it to make an informed decision
with respect to such offer, and shall remain open for at least 20
Business Days. If the holder or holders of more than 50% of the
principal amount of the Notes then outstanding accept such offer,
the Company shall promptly notify the remaining holders of such
fact and the expiration date for the acceptance by holders of Notes
of such offer shall be extended by the number of days necessary to
give each such remaining holder at least 20 Business Days from its
receipt of such notice to accept such offer. The Company will
promptly cancel all Notes acquired by it or any Affiliate pursuant
to any payment, prepayment or purchase of Notes pursuant to any
provision of this Agreement and no Notes may be issued in
substitution or exchange for any such Notes.
8.7. Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to any
Note, an amount equal to the excess, if any, of the Discounted
Value of the Remaining Scheduled Payments with respect to the
16
Called Principal of such Note over the amount of such Called
Principal, provided that the Make-Whole Amount may in no event be
less than zero. For the purposes of determining the Make-Whole
Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called
Principal of any Note, the amount obtained by discounting all
Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
factor (applied on the same periodic basis as that on which
interest on the Notes is payable) equal to the Reinvestment
Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called
Principal of any Note, .50% over the yield to maturity implied
by (i) the yields reported, as of 10:00 A.M. (New York City
time) on the second Business Day preceding the Settlement Date
with respect to such Called Principal, on the display
designated as "Page 500" on the Telerate Access Service (or
such other display as may replace Page 500 on Telerate Access
Service) for actively traded U.S. Treasury securities having
a maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date, or (ii) if such yields
are not reported as of such time or the yields reported as of
such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which
such yields have been so reported as of the second Business
Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519)
(or any comparable successor publication) for actively traded
U.S. Treasury securities having a constant maturity equal to
the Remaining Average Life of such Called Principal as of such
Settlement Date. Such implied yield in the case of clauses
(i) and (ii) above will be determined, if necessary, by
(a) converting U.S. Treasury bill quotations to bond-
equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the maturity
closest to and greater than the Remaining Average Life and (2)
the actively traded U.S. Treasury security with the maturity
closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any
Called Principal, the number of years (calculated to the
nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by (b)
the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with
respect to such Called Principal and the scheduled due date of
such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the
Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its
scheduled due date, provided that if such Settlement Date is
not a date on which interest payments are due to be made under
17
the terms of the Notes, then the amount of the next succeeding
scheduled interest payment will be reduced by the amount of
interest accrued to such Settlement Date and required to be
paid on such Settlement Date pursuant to Section 8.2 or 12.1.
"Settlement Date" means, with respect to the Called
Principal of any Note, the date on which such Called Principal
is to be prepaid pursuant to Section 8.2 or has become or is
declared to be immediately due and payable pursuant to
Section 12.1, as the context requires.
9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes
are outstanding:
9.1. Compliance with Law.
The Company will and will cause each of its Subsidiaries
to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without
limitation, Environmental Laws, and will obtain and maintain in
effect all licenses, certificates, permits, franchises and other
governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective
businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or
regulations or failures to obtain or maintain in effect such
licenses, certificates, permits, franchises and other governmental
authorizations would not reasonably be expected, individually or in
the aggregate, to have a materially adverse effect on the business,
operations, affairs, financial condition, properties or assets of
the Company and its Subsidiaries taken as a whole.
9.2. Insurance.
The Company will and will cause each of its Subsidiaries
to maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and
businesses against such casualties and contingencies, of such
types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a
similar business and similarly situated.
9.3. Maintenance of Properties.
The Company will and will cause each of its Subsidiaries
to maintain and keep, or cause to be maintained and kept, their
respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried
on in connection therewith may be properly conducted at all times,
provided that this Section shall not prevent the Company or any
Subsidiary from discontinuing the operation and the maintenance of
any of its properties if such discontinuance is desirable in the
conduct of its business and the Company has concluded that such
discontinuance would not, individually or in the aggregate, have a
materially adverse effect on the business, operations, affairs,
financial condition, properties or assets of the Company and its
Subsidiaries taken as a whole.
18
9.4. Payment of Taxes.
The Company will and will cause each of its Subsidiaries
to file all income tax or similar tax returns required to be filed
in any jurisdiction and to pay and discharge all taxes shown to be
due and payable on such returns and all other taxes, assessments,
governmental charges, or levies payable by any of them, to the
extent such taxes and assessments have become due and payable and
before they have become delinquent, provided that neither the
Company nor any Subsidiary need pay any such tax or assessment if
(i) the amount, applicability or validity thereof is contested by
the Company or such Subsidiary on a timely basis in good faith and
in appropriate proceedings, and the Company or a Subsidiary has
established adequate reserves therefor in accordance with GAAP on
the books of the Company or such Subsidiary or (ii) the nonpayment
of all such taxes and assessments in the aggregate would not
reasonably be expected to have a materially adverse effect on the
business, operations, affairs, financial condition, properties or
assets of the Company and its Subsidiaries taken as a whole.
9.5. Corporate Existence, etc.
Subject to Section 10.2, the Company will at all times
preserve and keep in full force and effect its corporate existence.
Subject to Sections 10.2 and 10.5, the Company will at all times
preserve and keep in full force and effect the corporate existence
of each of its Subsidiaries (unless merged into the Company or a
Subsidiary) and all rights and franchises of the Company and its
Subsidiaries unless, in the good faith judgment of the Company, the
termination of or failure to preserve and keep in full force and
effect such corporate existence, right or franchise would not,
individually or in the aggregate, have a materially adverse effect
on the business, operations, affairs, financial condition,
properties or assets of the Company and its Subsidiaries taken as
a whole.
10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes
are outstanding:
10.1. Transactions with Affiliates.
The Company will not and will not permit any Subsidiary
to enter into directly or indirectly any Material transaction or
Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of
any kind or the rendering of any service) with any Affiliate (other
than the Company or another Subsidiary), except pursuant to the
reasonable requirements of the Company's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to
the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
10.2. Merger, Consolidation, etc.
The Company shall not consolidate with or merge with any
other corporation or convey, transfer or lease substantially all of
its assets in a single transaction or series of transactions to any
Person unless:
19
(a) the successor formed by such consolidation or the
survivor of such merger or the Person that acquires by
conveyance, transfer or lease substantially all of the assets
of the Company as an entirety, as the case may be, shall be a
solvent corporation organized and existing under the laws of
the United States or any State thereof (including the District
of Columbia), and, if the Company is not such corporation,
such corporation shall have executed and delivered to each
holder of any Notes its assumption of the due and punctual
performance and observance of each covenant and condition of
this Agreement, the Other Agreements and the Notes; and
(b) immediately after giving effect to such transaction,
no Default or Event of Default shall have occurred and be
continuing.
No such conveyance, transfer or lease of substantially all of the
assets of the Company shall have the effect of releasing the
Company or any successor corporation that shall theretofore have
become such in the manner prescribed in this Section 10.2 from its
liability under this Agreement or the Notes.
10.3. Liens.
The Company will not, and will not permit any Material
Subsidiary to, directly or indirectly create, incur, assume or
suffer to exist any Lien upon or with respect to any of its
property or assets, whether now owned or hereafter acquired, to
secure Indebtedness, without making effective provision whereby the
Notes shall be secured equally and ratably with any and all other
Indebtedness to be secured by such Lien, for so long as any such
other Indebtedness shall be so secured, such security to be
pursuant to an agreement reasonably satisfactory to the Required
Holders, excluding from the operation of this Section:
(a) Liens existing on the date hereof securing
Indebtedness of the Company or any Material Subsidiary
outstanding on the date hereof, as specified in Part II of
Schedule 5.15;
(b) any Lien on property of the Company or any Material
Subsidiary securing Indebtedness incurred in connection with
the financing of all or a part of the purchase price thereof,
provided that (i) each such Lien shall extend solely to the
item or items of property so acquired and any other property
which is an improvement to such acquired property and (ii)
each such Lien shall be created contemporaneously with, or
within six months after, such acquisition;
(c) any Lien existing on property acquired by the
Company or any Material Subsidiary at the time such property
is so acquired, provided that (i) no such Lien shall have been
created or assumed in contemplation of such acquisition of
property and (ii) each such Lien shall extend solely to the
item or items of property so acquired and any other property
which is an improvement to such acquired property;
(d) any Lien existing on property of a Person existing
at the time such Person shall have become a Material
Subsidiary (whether by merger, consolidation or otherwise)
which secures Indebtedness existing at such time, provided
that (i) no such Lien shall have been created or assumed in
contemplation of such Person's becoming a Material Subsidiary
20
and (ii) each such Lien shall extend solely to the item or
items of property covered by such Lien at such time and any
other property which is an improvement to such property;
(e) any Lien in favor of the United States of America
arising as a result of amounts paid to the Company or any
Material Subsidiary as progress payments under contracts
between the United States of America or any agency thereof and
the Company or such Material Subsidiary;
(f) any Lien on accounts receivable of the Company or
any Material Subsidiary securing Indebtedness incurred in
connection with the financing of such accounts receivable,
provided that (subject to the last paragraph of this Section
10.3), immediately after giving effect thereto, the aggregate
amount of outstanding Indebtedness incurred in connection with
all such secured financings shall not exceed the greater of
(i) $250,000,000 and (ii) 10% of the aggregate amount of
accounts receivable of the Company and the Material
Subsidiaries as at the time of the creation of such Lien;
(g) any Lien renewing, extending or replacing any Lien
permitted under clauses (a) through (e) above, provided that
(i) the principal amount of Indebtedness secured by such Lien
immediately prior to such renewal, extension or replacement is
not increased and (ii) such Lien shall extend solely to the
item or items of property covered by such Lien at the time of
such renewal, extension or replacement and any other property
which is an improvement to such property;
(h) Liens on property or assets of any Material
Subsidiary securing Indebtedness owing by such Material
Subsidiary to the Company or any Wholly-Owned Subsidiary; and
(i) Liens, in addition to those permitted by clauses (a)
through (h) above, securing Indebtedness of the Company or any
Material Subsidiary, provided that, immediately after giving
effect thereto, the aggregate amount (without duplication) of
all outstanding Indebtedness secured by Liens permitted under
this clause (i), plus the aggregate amount of all outstanding
Indebtedness permitted under clause (d) of Section 10.4, does
not exceed 10% of Consolidated Total Assets.
There shall be excluded from any computation pursuant to
the proviso to the foregoing clause (f) any Indebtedness to the
extent that such Indebtedness would result in the aggregate amount
of outstanding Indebtedness incurred in connection with all
financings described in said clause exceeding the greater of (i)
$250,000,000 and (ii) 10% of the aggregate amount of accounts
receivable of the Company and the Material Subsidiaries as at the
date of computation if and to the extent that the Company shall
have offered to prepay Specified Indebtedness in an aggregate
amount (the "Excess Amount") equal to such excess amount, the
portion of the Excess Amount to be so offered to be prepaid with
respect to each item of Specified Indebtedness to be equal to an
amount which bears the same relationship to the Excess Amount as
the aggregate outstanding principal amount of such item of
Specified Indebtedness bears to the then aggregate outstanding
principal amount of all Specified Indebtedness. In connection with
any such prepayment, the Company shall offer to prepay Notes in
21
accordance with Section 8.3 in an amount (the "Note Portion") equal
to the portion of such Excess Amount allocable to the Notes in
accordance with the immediately preceding sentence.
10.4. Subsidiary Indebtedness.
The Company will not permit any Material Subsidiary to
create, incur, assume or suffer to exist any Indebtedness except:
(a) Indebtedness incurred in connection with any Lien
permitted under clauses (a) through (c) and (e) through (h) of
Section 10.3;
(b) Indebtedness owing to the Company or any Wholly-
Owned Subsidiary;
(c) Indebtedness outstanding at the time any Person
shall have become a Material Subsidiary (whether by merger,
consolidation or otherwise), provided that (i) no such
Indebtedness shall have been incurred in contemplation of such
Person's becoming a Material Subsidiary and (ii) immediately
after such Person shall have become a Material Subsidiary, no
Default or Event of Default shall have occurred and be
continuing; and
(d) additional Indebtedness not otherwise permitted by
the foregoing clauses (a) through (c), provided that,
immediately after giving effect thereto, the aggregate amount
(without duplication) of all outstanding Indebtedness
permitted under this clause (d), plus the aggregate amount of
all outstanding Indebtedness secured by Liens permitted under
clause (i) of Section 10.3, does not exceed 10% of
Consolidated Total Assets.
10.5. Disposition of Assets.
The Company will not, and will not permit any Material
Subsidiary to (whether by a single transaction or a number of
related or unrelated transactions and whether at one time or over
a period of time), sell, transfer, lease out or otherwise dispose
of (whether outright, by a sale-and-repurchase or sale-and-
leaseback arrangement, or otherwise and whether to the Company, any
of its Subsidiaries or any other Person) (a "Disposal") all of its
assets or any part of its assets, except:
(a) Disposals of assets in the ordinary course of
business;
(b) Disposals of assets acquired in connection with an
acquisition of a business if (x) such Disposals occur within
twelve months after the date of such acquisition or (y) the
Company or such Material Subsidiary enters into a binding
agreement with any Person within twelve months after the date
of such acquisition pursuant to which the Company or such
Material Subsidiary is obligated to dispose of such assets to
such Person and such Disposals occur within twelve months
after the date such agreement is entered into; provided,
however, that, in each case, if such Disposals cannot
reasonably be consummated within such twelve-month period as
a result of (i) the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act or any similar statute or
regulation not having expired or (ii) the Company's actively
contesting in good faith by appropriate means any judicial or
administrative action, suit, proceeding, judgment, injunction,
22
order or decree seeking to prohibit such Disposals, such
twelve-month period shall be extended for a period equal to an
additional two years;
(c) Disposals of assets by the Company or any Material
Subsidiary to the Company or any Wholly-Owned Subsidiary;
(d) Disposals on normal commercial terms of assets that
are obsolete or no longer useful in the business of the
Company or such Material Subsidiary, as the case may be; and
(e) any Disposal of assets not otherwise permitted by
clauses (a) through (d) above if, after giving effect thereto,
no Default or Event of Default has occurred and is continuing
and both
(i) the aggregate Contribution to Consolidated Cash
Flow of all assets disposed of by the Company or any
Material Subsidiary under this clause (e) after the date
hereof and during the period of twelve consecutive months
ending on the date of such Disposal shall not exceed 20%
of Consolidated Cash Flow for the period of four fiscal
quarters ending on, or most recently ended prior to, the
date of such Disposal; provided that Disposals of assets,
the aggregate Contribution to Consolidated Cash Flow of
which so exceeds 20% of Consolidated Cash Flow, may be
made if the net proceeds in excess of such 20% are either
(x) reinvested in non-current assets of the Company and
the Material Subsidiaries within twelve months after the
date of such Disposals or, in the case of non-cash net
proceeds, retained in the business of the Company and the
Material Subsidiaries, provided that upon any Disposal of
such non-cash net proceeds for cash, such cash proceeds
are reinvested in non-current assets of the Company and
the Material Subsidiaries within twelve months after the
date of such Disposal or (y) applied to the prepayment of
Specified Indebtedness, the selection of which Specified
Indebtedness is to be prepaid to be in the sole
discretion of the Company, and
(ii) the aggregate Contribution to Consolidated Cash
Flow of all assets disposed of by the Company or any
Material Subsidiary under this clause (e) after the date
hereof and during the period of thirty-six consecutive
months ending on the date of such Disposal shall not
exceed 40% of Consolidated Cash Flow for the period of
the four fiscal quarters ending on, or most recently
ended prior to, the date of such Disposal; provided that
Disposals of assets, the aggregate Contribution to
Consolidated Cash Flow of which so exceeds 40% of
Consolidated Cash Flow, may be made if the net proceeds
in excess of such 40% are either (x) reinvested in non-
current assets of the Company and the Material
Subsidiaries within twelve months after the date of such
Disposals or, in the case of non-cash net proceeds,
retained in the business of the Company and the Material
Subsidiaries, provided that upon any Disposal of such
non-cash net proceeds for cash, such cash proceeds are
reinvested in non-current assets of the Company and the
Material Subsidiaries within twelve months after the date
of such Disposal or (y) applied to the prepayment of
Specified Indebtedness, the selection of which Specified
Indebtedness is to be prepaid to be in the sole
discretion of the Company.
23
10.6. Maintenance of Financial Conditions.
The Company will not on any date permit:
(a) Consolidated Cash Flow for the period of the four
fiscal quarters ending on, or most recently ended prior to,
such date to be less than 300% of Pro Forma Annual
Consolidated Interest Expense as of such date;
(b) Consolidated Total Indebtedness as of such date to
exceed 400% of Consolidated Cash Flow for the four fiscal
quarters ending on, or most recently ended prior to, such
date.
11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following
conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any principal
or Make-Whole Amount, if any, on any Note when the same
becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest
on any Note for more than five Business Days after the same
becomes due and payable; or
(c) the Company defaults in the performance of or
compliance with any term contained in Sections 10.2 through
10.6; or
(d) the Company defaults in the performance of or
compliance with any term contained herein (other than those
referred to in paragraphs (a), (b) and (c) of this Section 11)
and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving
written notice of such default from any holder or holders of
at least 10% in aggregate principal amount of the Notes at the
time outstanding (any such written notice to be identified as
a "notice of default" and to refer specifically to this
paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or
on behalf of the Company or by any officer of the Company in
this Agreement or in any writing furnished in connection with
the transactions contemplated hereby proves to have been false
or incorrect in any material respect on the date as of which
made; or
(f) (i) the Company or any Material Subsidiary is in
default (as principal or as guarantor or other surety) in the
payment of any principal of or premium or make-whole amount or
interest on any Indebtedness that is outstanding in an
aggregate principal amount of at least $50,000,000 beyond any
period of grace provided with respect thereto, or (ii) the
Company or any Material Subsidiary is in default in the
performance of or compliance with any term of any evidence of
any Indebtedness in an aggregate outstanding principal amount
of at least $50,000,000 or of any mortgage, indenture or other
24
agreement relating thereto or any other condition exists, and
as a consequence of such default or condition such
Indebtedness has become, or has been declared, due and payable
before its stated maturity or before its regularly scheduled
dates of payment; or
(g) the Company or any Material Subsidiary (i) is
generally not paying, or admits in writing its inability to
pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition
for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage
of any bankruptcy, insolvency, reorganization, moratorium or
other similar law of any jurisdiction, (iii) makes a general
assignment for the benefit of its creditors, (iv) consents to
the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect
to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action
for the purpose of any of the foregoing; or
(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by
the Company or any of its Material Subsidiaries, a custodian,
receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of its
property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding-up or liquidation of the Company or
any of its Material Subsidiaries, or any such petition shall
be filed against the Company or any of its Material
Subsidiaries and such petition shall not be dismissed within
60 days; or
(i) a final judgment or judgments for the payment of
money aggregating in excess of $25,000,000 are rendered
against one or more of the Company and its Material
Subsidiaries and which judgments are not, within 60 days after
entry thereof, bonded, discharged or stayed pending appeal, or
are not discharged within 60 days after the expiration of such
stay; or
(j) if (i) any Plan shall fail to satisfy the minimum
funding standards of ERISA or the Code for any plan year or
part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under Section 412 of
the Code, (ii) a notice of intent to terminate any Plan shall
have been or is reasonably expected to be filed with the PBGC
or the PBGC shall have instituted proceedings under Section
4042 of ERISA to terminate or appoint a trustee to administer
any Plan or the PBGC shall have notified the Company or any
ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit
liabilities" (within the meaning of Section 4001(a)(18) of
ERISA) under all Plans, determined in accordance with Title IV
of ERISA, shall exceed $25,000,000, (iv) the Company or any
ERISA Affiliate shall have incurred or is reasonably expected
to incur any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to
employee benefit plans, (v) the Company or any ERISA Affiliate
withdraws from any Multiemployer Plan, or (vi) the Company or
any Material Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the
25
Company or any Material Subsidiary thereunder; and any such
event or events described in clauses (i) through (vi) above,
either individually or together with any other such event or
events, would reasonably be expected to have a Material
Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and
"employee welfare benefit plan" shall have the respective meanings
assigned to such terms in Section 3 of ERISA.
12. REMEDIES ON DEFAULT, ETC.
12.1. Acceleration.
(a) If an Event of Default with respect to the Company
described in paragraph (g) or (h) of Section 11 (other than an
Event of Default described in clause (i) of paragraph (g) or
described in clause (vi) of paragraph (g) by virtue of the fact
that such clause encompasses clause (i) of paragraph (g)) has
occurred, all the Notes then outstanding shall automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, the Required Holders may at any time at its or their
option, by notice or notices to the Company, declare all the Notes
then outstanding to be immediately due and payable.
(c) If any Event of Default described in paragraph (a)
or (b) of Section 11 has occurred and is continuing, any holder or
holders of Notes at the time outstanding affected by such Event of
Default may at any time, at its or their option, by notice or
notices to the Company, declare all the Notes held by it or them to
be immediately due and payable.
Upon any Notes becoming due and payable under this
Section 12.1, whether automatically or by declaration, such Notes
will forthwith mature and the entire unpaid principal amount of
such Notes, plus (x) all accrued and unpaid interest thereon and
(y) in the case of any Event of Default described in clause (b) or
(c) of this Section 12.1, the Make-Whole Amount determined in
respect of such principal amount (to the full extent permitted by
applicable law), shall all be immediately due and payable, in each
and every case without presentment, demand, protest or further
notice, all of which are hereby waived. The Company acknowledges,
and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from repayment
by the Company (except as herein specifically provided for) and
that the provision for payment of a Make-Whole Amount by the
Company in the event that the Notes are prepaid or are accelerated
as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
12.2. Other Remedies.
If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 12.1,
the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or in any
Note, or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any power granted
hereby or thereby or by law or otherwise.
26
12.3. Rescission.
At any time after any Notes have been declared due and
payable pursuant to clause (b) or (c) of Section 12.1, the holder
or holders of not less than 66 2/3% in aggregate principal amount
of the Notes then outstanding, by written notice to the Company,
may rescind and annul any such declaration and its consequences if
(a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are
due and payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal and Make-
Whole Amount, if any, and (to the extent permitted by applicable
law) any overdue interest in respect of the Notes, at the Default
Rate, (b) all Events of Default and Defaults, other than non-
payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to
Section 17, and (c) no judgment or decree has been entered for the
payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 12.3 will extend to or
affect any subsequent Event of Default or Default or impair any
right consequent thereon.
12.4. No Waivers or Election of Remedies, Expenses, etc.
No course of dealing and no delay on the part of any
holder of any Note in exercising any right, power or remedy shall
operate as a waiver thereof or otherwise prejudice such holder's
rights, powers or remedies. No right, power or remedy conferred by
this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute
or otherwise. Without limiting the obligations of the Company
under Section 15, the Company will pay to the holder of each Note
on demand such further amount as shall be sufficient to cover all
costs and expenses of such holder incurred in any enforcement or
collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
13.1. Registration of Notes.
The Company shall keep at its principal executive office
a register for the registration and registration of transfers of
Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior
to due presentment for registration of transfer, the Person in
whose name any Note shall be registered shall be deemed and treated
as the owner and holder thereof for all purposes hereof, and the
Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is
an Institutional Investor promptly upon request therefor, a
complete and correct copy of the names and addresses of all
registered holders of Notes.
13.2. Transfer and Exchange of Notes.
Upon surrender of any Note at the principal executive
office of the Company for registration of transfer or exchange (and
in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly
27
executed by the registered holder of such Note or his attorney duly
authorized in writing and accompanied by the address for notices of
each transferee of such Note or part thereof), the Company shall
execute and deliver, at the Company's expense (except as provided
below), one or more new Notes (as requested by the holder thereof)
in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new
Note shall be payable to such Person as such holder may request and
shall be substantially in the form of Exhibit 1. Each such new
Note shall be dated and bear interest from the date to which
interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid
thereon. The Company may require payment of a sum sufficient to
cover any stamp tax or governmental charge imposed in respect of
any such transfer of Notes. Notes shall not be transferred in
denominations of less than $500,000, provided that if necessary to
enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than
$500,000. Any transferee, by its acceptance of a Note registered
in its name (or the name of its nominee), shall be deemed to have
made the representation set forth in Section 6.2.
13.3. Replacement of Notes.
Upon receipt by the Company of evidence reasonably
satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in
the case of an Institutional Investor, notice from such
Institutional Investor of such ownership and such loss, theft,
destruction or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if the
holder of such Note is, or is a nominee for, an original
Purchaser or another holder of a Note with a minimum net worth
of at least $10,000,000, such Person's own unsecured agreement
of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and
cancellation thereof,
the Company at its own expense shall execute and deliver, in lieu
thereof, a new Note, dated and bearing interest from the date to
which interest shall have been paid on such lost, stolen, destroyed
or mutilated Note or dated the date of such lost, stolen, destroyed
or mutilated Note if no interest shall have been paid thereon.
14. PAYMENTS ON NOTES.
14.1. Place of Payment.
Subject to Section 14.2, payments of principal, Make-
Whole Amount, if any, and interest becoming due and payable on the
Notes shall be made in New York, New York at the principal office
of Mellon Bank, N.A. in such jurisdiction. The Company may at any
time, by notice to each holder of a Note, change the place of
payment of the Notes so long as such place of payment shall be
either the principal office of the Company in such jurisdiction or
the principal office of a bank or trust company in such
jurisdiction.
28
14.2. Home Office Payment.
So long as you or your nominee shall be the holder of any
Note, and notwithstanding anything contained in Section 14.1 or in
such Note to the contrary, the Company will pay all sums becoming
due on such Note for principal, Make-Whole Amount, if any, and
interest by the method and at the address specified for such
purpose below your name in Schedule A, or by such other method or
at such other address as you shall have from time to time specified
to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any
notation thereon, except that upon written request of the Company
made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, you shall surrender such Note for
cancellation, reasonably promptly after any such request, to the
Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section
14.1. Prior to any sale or other disposition of any Note held by
you or your nominee you will, at your election, either endorse
thereon the amount of principal paid thereon and the last date to
which interest has been paid thereon or surrender such Note to the
Company in exchange for a new Note or Notes pursuant to Section
13.2. The Company will afford the benefits of this Section 14.2 to
any Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement and
that has made the same agreement relating to such Note as you have
made in this Section 14.2.
15. EXPENSES, ETC.
15.1. Transaction Expenses.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all costs and expenses (including
reasonable attorneys' fees of a special counsel and, if reasonably
required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions
and in connection with any amendments, waivers or consents under or
in respect of this Agreement or the Notes (whether or not such
amendment, waiver or consent becomes effective), including, without
limitation: (a) the costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any
rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand
issued in connection with this Agreement or the Notes, or by reason
of being a holder of any Note, and (b) the costs and expenses,
including financial advisors' fees, incurred in connection with the
insolvency or bankruptcy of the Company or any Subsidiary or in
connection with any work-out or restructuring of the transactions
contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers
and finders (other than those retained by you).
15.2. Survival.
The obligations of the Company under this Section 15 will
survive the payment or transfer of any Note, the enforcement,
amendment or waiver of any provision of this Agreement or the
Notes, and the termination of this Agreement.
29
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE
AGREEMENT.
All representations and warranties contained herein shall
survive the execution and delivery of this Agreement and the Notes,
the purchase or transfer by you of any Note or portion thereof or
interest therein and the payment of any Note, and may be relied
upon by any subsequent holder of a Note, regardless of any
investigation made at any time by or on behalf of you or any other
holder of a Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant
to this Agreement shall be deemed representations and warranties of
the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement
and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter
hereof.
17. AMENDMENT AND WAIVER.
17.1. Requirements.
This Agreement and the Notes may be amended, and the
observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written
consent of the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1, 2, 3, 4,
5, 6 or 21 hereof, or any defined term (as it is used therein),
will be effective as to you unless consented to by you in writing,
and (b) no such amendment or waiver may, without the written
consent of the holder of each Note at the time outstanding affected
thereby, (i) subject to the provisions of Section 12 relating to
acceleration or rescission, change the amount or time of any
prepayment or payment of principal of, or reduce the rate or change
the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the
principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of
Section 8, 11(a), 11(b), 12, 17 or 20.
17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder
of the Notes (irrespective of the amount of Notes then owned by it)
with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such holder to make an
informed and considered decision with respect to any proposed
amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true
and correct copies of each amendment, waiver or consent effected
pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or approval of,
the requisite holders of Notes.
(b) Payment. The Company will not directly or
indirectly pay or cause to be paid any remuneration, whether by way
of supplemental or additional interest, fee or otherwise, or grant
any security, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes or any
waiver or amendment of any of the terms and provisions hereof
30
unless such remuneration is concurrently paid, or security is
concurrently granted, on the same terms, ratably to each holder of
Notes then outstanding even if such holder did not consent to such
waiver or amendment.
17.3. Binding Effect, etc.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding
upon them and upon each future holder of any Note and upon the
Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement,
Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between
the Company and the holder of any Note nor any delay in exercising
any rights hereunder or under any Note shall operate as a waiver of
any rights of any holder of such Note. As used herein, the term
"this Agreement" and references thereto shall mean this Agreement
as it may from time to time be amended or supplemented.
17.4. Notes held by Company, etc.
Solely for the purpose of determining whether the holders
of the requisite percentage of the aggregate principal amount of
Notes then outstanding approved or consented to any amendment,
waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the
Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then
outstanding, Notes directly or indirectly owned by the Company or
any of its Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder
shall be in writing and sent (a) by telecopy if the sender on the
same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered
or certified mail with return receipt requested (postage prepaid),
or (c) by a recognized overnight delivery service (with charges
prepaid); provided, however, that all notices to be given by the
Company under Section 8.3 shall be in writing and sent in the
manner specified in clause (a) above. Any such notice must be
sent:
(i) if to you or your nominee, to you or it at the
address specified for such communications in Schedule A, or at
such other address as you or it shall have specified to the
Company in writing,
(ii) if to any other holder of any Note, to such holder
at such address as such other holder shall have specified to
the Company in writing, or
(iii) if to the Company, to the Company at its
address set forth at the beginning hereof to the separate
attention of the Treasurer and General Counsel, or at such
other address as the Company shall have specified to the
holder of each Note in writing.
Notices under this Section 18 will be deemed given only when
actually received.
31
19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and
modifications that may hereafter be executed, (b) documents
received by you at the Closing (except the Notes themselves), and
(c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you
by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and you may destroy any
original document so reproduced. The Company agrees and stipulates
that, to the extent permitted by applicable law, any such
reproduction shall be admissible in evidence as the original itself
in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was
made by you in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not
prohibit the Company or any other holder of Notes from contesting
any such reproduction to the same extent that it could contest the
original, or from introducing evidence to demonstrate the
inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on behalf of
the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement that is
proprietary in nature and that was clearly marked or labeled or
otherwise adequately identified when received by you as being
confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was
publicly known or otherwise known to you prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act
or omission by you or any person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure by
the Company or any Subsidiary or (d) constitutes financial
statements delivered to you under Section 7.1 that are otherwise
publicly available. You will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by
you in good faith to protect confidential information of third
parties delivered to you, provided that you may deliver or disclose
Confidential Information to (i) your directors, officers,
employees, agents, attorneys and affiliates, (to the extent such
disclosure reasonably relates to the administration of the
investment represented by your Notes), (ii) your financial advisors
and other professional advisors who agree to hold confidential the
Confidential Information substantially in accordance with the terms
of this Section 20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell such Note
or any part thereof or any participation therein (if such Person
has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20),
(v) any Person from which you offer to purchase any security of the
Company (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of
this Section 20), (vi) any federal or state regulatory authority
having jurisdiction over you, (vii) the National Association of
Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to
information about your investment portfolio, or (viii) any other
Person to which such delivery or disclosure may be necessary or
appropriate (w) to effect compliance with any law, rule, regulation
or order applicable to you, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which
you are a party or (z) if an Event of Default has occurred and is
32
continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under
your Notes and this Agreement. Each holder of a Note, by its
acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 20 as though it
were a party to this Agreement. On reasonable request by the
Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this
Agreement or requested by such holder (other than a holder that is
a party to this Agreement or its nominee), such holder will enter
into an agreement with the Company embodying the provisions of this
Section 20.
21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have agreed to
purchase hereunder, by written notice to the Company, which notice
shall be signed by both you and such Affiliate, shall contain such
Affiliate's agreement to be bound by this Agreement and shall
contain a confirmation by such Affiliate of the accuracy with
respect to it of the representations set forth in Section 6. Upon
receipt of such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall be
deemed to refer to such Affiliate in lieu of you. In the event
that such Affiliate is so substituted as a purchaser hereunder and
such Affiliate thereafter transfers to you all of the Notes then
held by such Affiliate, upon receipt by the Company of notice of
such transfer, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall no longer be
deemed to refer to such Affiliate, but shall refer to you, and you
shall have all the rights of an original holder of the Notes under
this Agreement.
22. MISCELLANEOUS.
22.1. Successors and Assigns.
All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and
inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note)
whether so expressed or not.
22.2. Payments Due on Non-Business Days.
Anything in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-whole Amount
or interest on any Note that is due on a date other than a Business
Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the
interest payable on such next succeeding Business Day.
22.3. Severability.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
33
hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not
invalidate or render unenforceable such provision in any other
jurisdiction.
22.4. Construction.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each
other covenant contained herein, so that compliance with any one
covenant shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or
which such Person is prohibited from taking, such provision shall
be applicable whether such action is taken directly or indirectly
by such Person.
22.5. Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may
consist of a number of copies hereof, each signed by less than all,
but together signed by all, of the parties hereto.
22.6. Governing Law.
This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed
by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State.
34
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
PFL LIFE INSURANCE COMPANY
By /s/Gregory W. Theobald
Title: Vice President and Assitant Secretary
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
LIFE INVESTORS INSURANCE COMPANY OF AMERICA
By /s/Gregory W. Theobald
Title: Vice President and Assitant Secretary
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
FIRST AUSA LIFE INSURANCE COMPANY
By /s/Gregory W. Theobald
Title: Vice President and Assitant Secretary
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
AUSA LIFE INSURANCE COMPANY, INC.
By /s/Gregory W. Theobald
Title: Vice President and Assitant Secretary
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
METROPOLITAN LIFE INSURANCE COMPANY
By /s/Joseph A. Augustini
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE TRAVELERS INSURANCE COMPANY
By /s/Teresa M. Torrey
Title: Second Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
PRIMERICA LIFE INSURANCE COMPANY
By /s/Paul D. Burner
Title: Senior Vice President & Treasurer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By /s/Dennis A. Blume
Title: Senior Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
ALLIED LIFE INSURANCE COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By /s/Dennis A. Blume
Title: Senior Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
SECURITY-CONNECTICUT LIFE INSURANCE COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By /s/Dennis A. Blume
Title: Senior Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
LINCOLN-SECURITY LIFE INSURANCE COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By /s/Dennis A. Blume
Title: Senior Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
AMERICAN STATES LIFE INSURANCE COMPANY
By: LINCOLN INVESTMENT MANAGEMENT, INC.
Its Attorney-in-Fact
By /s/Dennis A. Blume
Title: Senior Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/John B. Joyce
Title: Managing Director
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
CM LIFE INSURANCE COMPANY
By /s/Lawerence Stillman
Title: Senior Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY
By /s/Daniel C. Budde
Title: Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
ON BEHALF OF THE JOHN HANCOCK SEPARATE ACCOUNT
TRUST NO. 76
By /s/Daniel C. Budde
Title: Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY,
ON BEHALF OF THE JOHN HANCOCK SEPARATE ACCOUNT
TRUST NO. 86
By /s/Daniel C. Budde
Title: Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By /s/Willma H. Davis
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE EQUITABLE LIFE ASSURANCE SOCIETY
OF THE UNITED STATES
By /s/Ina Lane
Title: Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
ALLSTATE LIFE INSURANCE COMPANY
By /s/Charles D. Mires
By /s/David A. Chalupnik
Authorized Signatories
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By /s/Julia S. Tucker
Title: Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
AMERICAN GENERAL LIFE INSURANCE COMPANY
By /s/Julia S. Tucker
Title: Investment Officer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By /s/Julie Bock
Title: Manager - Private Placement Investments
By /s/Wayne T. Hoffman
Title: Vice President - Private Placement Investments
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By /s/Lydia S. Sangree
Title: Assistant Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NEW YORK LIFE INSURANCE COMPANY
By /s/Lydia S. Sangree
Title: Assistant Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
SUN LIFE ASSURANCE COMPANY OF CANADA
By /s/John N. Whelihan
Title: Vice President, U.S. Private Placements - for President
By /s/Jeffrey J. Skerry
Title: Associate Counsel - for Secretary
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
SUN LIFE ASSURANCE COMPANY OF
CANADA (U.S.)
By /s/L. Brock Thomson
Title: Treasurer
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
AMERICAN UNITED LIFE INSURANCE COMPANY
By /s/Kent R. Adams
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE STATE LIFE INSURANCE COMPANY
By /s/Kent R. Adams
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NATIONWIDE LIFE INSURANCE COMPANY
By /s/Michael D. Groseclose
Title: Associate Vice President Corporate Fixed-Income Securities
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
By /s/Michael D. Groseclose
Title: Associate Vice President Corporate Fixed-Income Securities
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By /s/Loren S. Archibald
Title: Managing Director-Private Placements
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
LUTHERAN BROTHERHOOD
By /s/Charles Heeren
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
SECURITY FIRST LIFE INSURANCE COMPANY
By /s/Ruth Ann McConkey
Title: Manager, U.S. Fixed Income
By /s/R.J. Ritchie
Title: Director, U.S. Fixed Income
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
INDIANAPOLIS LIFE INSURANCE COMPANY
By /s/Margaret M. McKinney
Title: Vice President, Associate General Counsel and Secretary
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
AMERITAS LIFE INSURANCE CORP.
By /s/Patrick J. Henry
Title: Vice President - Fixed Income Securities
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NATIONAL TRAVELERS LIFE COMPANY
By MIMLIC ASSET MANAGEMENT COMPANY
By /s/Loren Haugland
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE NORTH WEST LIFE ASSURANCE COMPANY OF CANADA
By MIMLIC ASSET MANAGEMENT COMPANY
By /s/Marilyn Froelich
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
PROTECTED HOME MUTUAL LIFE INSURANCE COMPANY
By MIMLIC ASSET MANAGEMENT COMPANY
By /s/Frederick Feuerherm
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NATIONAL FARM LIFE INSURANCE COMPANY
By MIMLIC ASSET MANAGEMENT COMPANY
By /s/Lynne M. Mills
Title: Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
THE PENN INSURANCE AND ANNUITY COMPANY
By /s/Barbara B. Henderson
Title: Assistant Vice President
If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of this
Agreement and return it to the Company, whereupon the foregoing
shall become a binding agreement between you and the Company.
Very truly yours,
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By /s/Ira Zar
Title: Senior Vice President
The foregoing is hereby
agreed to as of the
date thereof.
NATIONAL GUARDIAN LIFE INSURANCE
COMPANY
By /s/John D. Larson
Title: President and CEO
Schedule A
----------
INFORMATION RELATING TO PURCHASERS
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
PFL LIFE INSURANCE COMPANY $16,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Firstar Bank of Iowa
222 Second Street S.E.
Cedar Rapids, IA 52401
ABA No. 073000545
For credit to: PFL Life Insurance Company
Account No. 121-27196-9
with sufficient information
to identify the source and
application of such funds.
(2) All notices of and confirmations of
PAYMENT information should be directed to:
AEGON USA Investment Management, Inc.
Attention: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) All other COMMUNICATIONS should be directed to:
AEGON USA Investment Management, Inc.
Attention: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Fax No. (319) 369-2009
Tax Identification No. 39-0989781
2
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
LIFE INVESTORS INSURANCE COMPANY OF AMERICA $10,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Firstar Bank of Iowa
222 Second Street S.E.
Cedar Rapids, IA 52401
ABA No. 073000545
For credit to: Life Investors Insurance
Company of America
Account No. 119-09310-2
with sufficient information
to identify the source and
application of such funds.
(2) All notices of and written confirmations of
PAYMENT information should be directed to:
AEGON USA Investment Management, Inc.
Attention: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) All other COMMUNICATIONS should be directed to:
AEGON USA Investment Management, Inc.
Attention: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Fax No. (319) 369-2009
Tax Identification No. 42-0191090
3
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
FIRST AUSA LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
DDA No. 36112805
For credit to: First AUSA Life
Insurance Company
Custody Account No. 847537
with sufficient information
to identify the source and
application of such funds.
(2) All notices of and written confirmations of
PAYMENT information should be directed to:
AEGON USA Investment Management, Inc.
Attention: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) All other COMMUNICATIONS should be directed to:
AEGON USA Investment Management, Inc.
Attention: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Fax No. (319) 369-2009
Tax Identification No. 42-6063494
4
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
AUSA LIFE INSURANCE COMPANY, INC. $4,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Morgan Guaranty Trust Company
ABA No. 021000238
For credit to: AUSA Life Insurance
Company, Inc.
Account No. 001-60-362
with sufficient information
to identify the source and
application of such funds.
(2) All notices of and written confirmations of
PAYMENT information should be directed to:
AEGON USA Investment Management, Inc.
Attention: Michael Meese
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5112
(3) All other COMMUNICATIONS should be directed to:
AEGON USA Investment Management, Inc.
Attention: Director of Private Placements
4333 Edgewood Road N.E.
Cedar Rapids, IA 52499-5335
Fax No. (319) 369-2009
Tax Identification No. 36-6071399
5
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
METROPOLITAN LIFE INSURANCE COMPANY $30,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
The Chase Manhattan Bank, N.A.
33 East 23rd Street
ABA No. 021000021
Account No. 002-2-410591
with sufficient information
to identify the source and
application of such funds
(including the PPN (204912 A* 0)
of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
Metropolitan Life Insurance Company
One Madison Avenue
New York, NY 10010
Attention: Treasurer
with a copy to:
Metropolitan Life Insurance Company
334 Madison Avenue
P.O. Box 633
Convent Station, NJ 07961-0633
Attention: Vice President
Tel: 201-254-3222
6
(3) All other communications:
Metropolitan Life Insurance Company
334 Madison Avenue
P.O. Box 633
Convent Station, NJ 07961-0633
Attention: Vice President
Tel: 201-254-3222
Tax Identification Number: 13-5581829
7
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE TRAVELERS INSURANCE COMPANY $25,000,000
Register Notes in the name of: TRAL & CO.
(1) All payments by wire trans-
fer of immediately available
funds to:
Chase Manhattan Bank, N.A.
One Chase Manhattan Plaza
New York, NY 10081
Account No. 910-2-587434
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
One Tower Square
Hartford, CT 06183-2030
Attention: Cashiers Department
(3) All other communications:
One Tower Square
Hartford, CT 06183-2030
Attention: Securities Department - Private Placements
Tax Identification No. 06-0566090
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
PRIMERICA LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Citibank, N.A.
153 East 53rd Street
New York, NY 10022
ABA No. 021000089
Account No. 847016
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Primerica Life Insurance Company
c/o The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Attention: Securities Department --
Private Placements
(3) All other communications:
Primerica Life Insurance Company
c/o The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Attention: Securities Department --
Private Placements
Tax Identification No. 04-1590590
9
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY $9,500,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
New York, New York
ABA No. 021001033
Private Placement Processing
A/C #: 99-911-145
For further credit to: Lincoln National
Life Insurance Company (Ind Ann's - IFA)
Custodial Account No.: 98194
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Bankers Trust Company
Attention: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
with a copy to:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-0472300
10
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY $4,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
New York, New York
ABA No. 021001033
Private Placement Processing
A/C #: 99-911-145
For further credit to: Lincoln National
Life Insurance Company (LNL/FPP Business)
Custodial Account No.: 98185
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Bankers Trust Company
Attention: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
with a copy to:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-0472300
11
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
ALLIED LIFE INSURANCE COMPANY $2,500,000
Register Note in the name of: Harny & Co
(1) All payments by wire trans-
fer of immediately available
funds to:
Harris Trust & Savings
Chicago, Illinois
ABA No. 071-000-288
DDA Account No. 109-211-3
For further credit to: Allied Life Insurance Company "B"
Account No. 23-97589
Ref: Sec/Desc/PPN(204912 A* 0)/P=$; I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Harris Trust & Savings
111 W. Monroe Street
Chicago, IL 60690
Attention: Private Placements
For Account: Allied Life Insurance Company "B"
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
For Account: Allied Life Insurance Company "B"
Tax Identification No. 42-0921353
12
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY $2,500,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
New York, New York
ABA No. 021001033
Private Placement Processing
A/C #: 99-911-145
For further credit to: Lincoln National
Life Insurance Company (Ind Products-Univ Life)
Custodial Account No.: 98127
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Bankers Trust Company
Attention: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
with a copy to:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-0472300
13
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY $1,750,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
New York, New York
ABA No. 021001033
Private Placement Processing
A/C #: 99-911-145
For further credit to: Lincoln National
Life Insurance Company (Ind Ann's - Legacy)
Custodial Account No.: 98184
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Bankers Trust Company
Attention: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
with a copy to:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-0472300
14
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY $1,750,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
New York, New York
ABA No. 021001033
Private Placement Processing
A/C #: 99-911-145
For further credit to: Lincoln National
Life Insurance Company (Corp Ret Pension Plans)
Custodial Account: 98231
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Bankers Trust Company
Attention: Private Placement Unit
P.O. Box 998; Bowling Green Station
New York, NY 10274
with a copy to:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-0472300
15
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
SECURITY-CONNECTICUT LIFE INSURANCE COMPANY $1,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Shawmut Bank Connecticut, N.A.
777 Main Street
Hartford, CT 06115
ABA No. 011900445
For Account of: Security-Connecticut
Life Insurance Company (SPDA)
Account No. 0156196
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Security-Connecticut Life Insurance Company
20 Security Drive
Avon, CT 06001
Attention: Jodi Dean
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-1468921
16
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
LINCOLN-SECURITY LIFE INSURANCE COMPANY $1,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Chase Manhattan Bank, N.A.
New York, New York
ABA No. 021000021
For A/C: 900-9-000200
For further Credit: LINC-SEC LIFE (NY)
Account No. G04847
Ref: Sec. Name/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$)
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Lincoln-Security Life Insurance Company (New York)
c/o Security-Connecticut Life Insurance Company
20 Security Drive
Avon, CT 06001
Attention: Jodi Dean
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 22-2491079
17
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
AMERICAN STATES LIFE INSURANCE COMPANY $1,000,000
Register Note in the name of: Salkeld & Co
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
New York, New York
ABA No. 021001033
Private Placement Processing
A/C #: 99-911-145
Further credit to: American States Life
Insurance Company (General)
Custodial Account: 97136
Ref: Security/Rate/Maturity/PPN(204912 A* 0)/P=$/I=$
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
American States Life Insurance Company
500 North Meridian Street
Indianapolis, IN 46204
Attention: Jodi Pitcock/Corporate Accounting
(3) All other communications:
Lincoln Investment Management, Inc.
200 East Berry Street; Renaissance Square
Fort Wayne, IN 46802
Attention: Investment/Private Placements
Tax Identification No. 35-1007048
18
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $13,750,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
For MassMutual Long Term Pool
Account No. 4067-3488
Re: Description of security, principal
and interest split
With telephone advice of payment to the
Securities Custody and Collection Department
of Massachusetts Mutual Life Insurance
Company at (413) 744-3878.
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Tom Li, Managing Director
Securities Investment Division, F455
(3) All other communications:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Tax Identification No. 04-1590850
19
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $6,250,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, NY 10081
ABA No. 021000021
For MassMutual Pension Management
Account No. 910-2594018
Re: Description of security, principal
and interest split
With telephone advice of payment to the
Securities Custody and Collection Department
of Massachusetts Mutual Life Insurance
Company at (413) 744-3878.
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Tom Li, Managing Director
Securities Investment Division, F455
(3) All other communications:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Tax Identification No. 04-1590850
20
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $3,750,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, NY 10081
ABA No. 021000021
For MassMutual IFM Non-Traditional
Account No. 910-2509073
Re: Description of security, principal
and interest split
With telephone advice of payment to the
Securities Custody and Collection Department
of Massachusetts Mutual Life Insurance
Company at (413) 744-3878.
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Tom Li, Managing Director
Securities Investment Division, F455
(3) All other communications:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Tax Identification No. 04-1590850
21
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
CM LIFE INSURANCE COMPANY $1,250,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
For Segment 43 - Universal Life
Account No. 4068-6561
Re: Description of security, principal
and interest split
With telephone advice of payment to the Securities
Custody and Collection Department of Massachusetts
Mutual Life Insurance Company at (413) 744-3878
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
CM Life Insurance Company
c/o Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Tom Li, Managing Director
Securities Investment Division, F455
(3) All other communications:
CM Life Insurance Company
c/o Massachusetts Mutual Life
Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Tax Identification No. 06-1041383
22
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY $9,500,000
$7,000,000
(1) All payments on account of the
Notes in accordance with the
provisions thereof shall be made
by bank wire transfer of
immediately available funds for
credit, not later than 12 noon,
Boston time to:
The First National Bank of
Boston
ABA No. 011000390
Boston, MA 02110
Account of: John Hancock
Mutual
Life Insurance Company
Private Placement
Collection Account
Account No.: 541-55417
On order of: Computer
Associates
International, Inc.
(PPN 204912 A*0)
with sufficient information to
identify the source and
application of such funds.
Contemporaneous with the above
wire transfer, advice setting
forth: (1) the full name,
interest rate and maturity date
of the Notes or other
obligations; (2) allocation of
payment between principal and
interest and any special
payment; and (3) the name and
address of Bank (or Trustee)
from which wire transfer was
sent, shall be delivered or
mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Securities Accounting
Division T-10
23
(2) All notices of payments and
written confirmations of such
wire transfers:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Security Accounting
Division T-10
(3) All other communications shall
be delivered or mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Bond and Corporate
Finance Department
T-57
Tax Identification No: 04-1414660
24
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY $2,500,000
(1) All payments on account of the
Notes in accordance with the
provisions thereof shall be
made by bank wire transfer of
immediately available funds
for credit, not later than 12
noon, Boston time to:
The First National Bank of
Boston
ABA No. 011000390
Boston, MA 02110
Account of: John Hancock Mutual
Life Insurance Company
Private Placement
Collection Account
Account No.: 541-55417
On order of: Computer Associates
International, Inc.
(PPN 204912 A*0)
with sufficient information to
identify the source and
application of such funds.
Contemporaneous with the above
wire transfer, advice setting
forth: (1) the full name,
interest rate and maturity
date of the Notes or other
obligations; (2) allocation of
payment between principal and
interest and any special
payment; and (3) the name and
address of Bank (or Trustee)
from which wire transfer was
sent, shall be delivered or
mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Securities Accounting
Division T-10
25
(2) All notices of payments and
written confirmations of such
wire transfers:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Security Accounting
Division T-10
(3) All other communications shall
be delivered or mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Bond and Corporate
Finance Department
T-57
Tax Identification No: 04-2664016
26
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY $1,000,000
SEPARATE ACCOUNT 76
(1) All payments on account of the
Notes in accordance with the
provisions thereof shall be
made by bank wire transfer of
immediately available funds
for credit, not later than 12
noon, Boston time to:
Investors Bank & Trust Company
Boston, MA 02117
ABA No. 011001438
Account No.: 79650-9107
For further credit to: General Motors 76-1
Account No.: 99099
On order of: Computer Associates
International, Inc.
(PNN 204912 A*0)
with sufficient information to
identify the source and
application of such funds.
Contemporaneous with the above
wire transfer, advice setting
forth: (1) the full name,
interest rate and maturity
date of the Notes or other
obligations; (2) allocation of
payment between principal and
interest and any special
payment; and (3) the name and
address of Bank (or Trustee)
from which wire transfer was
sent, shall be delivered or
mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: PortfolioManagement &
Investment Services, T-56
(2) All notices of payments and
written confirmations of such
wire transfers:
27
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Portfolio Management &
Investment Services,
T-56
(3) All other communications shall
be delivered or mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Bond and Corporate
Finance Deptartment
T-57
Tax Identification No: 04-1414660
28
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY $1,000,000
SEPARATE ACCOUNT 86
(1) All payments on account of the
Notes in accordance with the
provisions thereof shall be
made by bank wire transfer of
immediately available funds
for credit, not later than 12
noon, Boston time to:
Investors Bank & Trust Company
Boston, MA 02117
ABA No. 011001438
Account No.: 79650-9107
For further credit to: General Motors 86-1
Account No.: 99237
On order of: Computer Associates
International, Inc.
(PNN 204912 A*0)
with sufficient information to
identify the source and
application of such funds.
Contemporaneous with the above
wire transfer, advice setting
forth: (1) the full name,
interest rate and maturity
date of the Notes or other
obligations; (2) allocation of
payment between principal and
interest and any special
payment; and (3) the name and
address of Bank (or Trustee)
from which wire transfer was
sent, shall be delivered or
mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Portfolio Management &
Investment Services, T-56
29
(2) All notices of payments and
written confirmations of such
wire transfers:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Portfolio Management &
Investment Services,
T-56
(3) All other communications shall
be delivered or mailed to:
John Hancock Mutual Life
Insurance Company
John Hancock Place
200 Clarendon Street
Boston, MA 02117
Attention: Bond and Corporate
Finance Department
T-57
Tax Identification No: 04-1414660
30
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE $20,000,000
UNITED STATES
(1) All payments by wire trans-
fer of immediately available
funds to:
The Chase Manhattan Bank, N.A.
110 West 52nd Street
New York, NY 10019
ABA No. 021-00-0021
Account of: The Equitable Life Assurance
Society of the United States
Account No.: 037-2-409417
with sufficient information
to identify the source and
application of such funds (including
the PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
The Equitable Life Assurance Society
of the United States
c/o Alliance Capital Management L.P.
135 West 50th Street, 5th Floor
New York, NY 10020
Attention: Treasury Services
31
(3) All other communications:
The Equitable Life Assurance Society
of the United States
c/o Alliance Capital Management, L.P.
1345 Avenue of the Americas
New York, NY 10105
Attention: Fixed Income Credit
Research Division
Tel: (212) 969-1362
Fax: (212) 969-1466
Tax Identification No. 13-5570651
32
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
ALLSTATE LIFE INSURANCE COMPANY $11,000,000
$ 2,000,000
(1) All payments by wire trans- $ 2,000,000
fer of immediately available
funds to:
BBK = Harris Trust and Savings Bank
ABA #071000288
BNF = Allstate Life Insurance Company
Collection Account #168-117-0
ORG = Computer Associates International, Inc.
OBI = DPP - 204912 A* 0
L_____________(Lease Number, if any)
Payment Due date (MM/DD/YY)___________
P_______________(Enter "P" and amount of
principal being remitted)
I_______________(Enter "I" and amount of
interest being remitted)
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Allstate Insurance Company
Investment Operations - Private Placements
3075 Sanders Road, STE G4A
Northbrook, IL 60062-7127
Tel: (847) 402-8709
Fax: (847) 402-7331
33
(3) All other communications:
Allstate Life Insurance Company
Private Placements Department
3075 Sanders Road, STE G3A
Northbrook, IL 60062-7127
Tel: (847) 402-4394
Fax: (847) 402-3092
Tax Identification No. 36-2554642
34
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
AMERICAN GENERAL LIFE INSURANCE COMPANY $10,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
State Street Bank and Trust Company
Boston, MA 02101
ABA No. 011000028
Re: American General Life Insurance
Company
AC - 0125-880-5
OBI= PPN #204912 A* 0 and description of payment
Fund Number PA 40
with sufficient information
(including PPN (204912 A*0)
interest rate, maturity date,
interest amount, principal
amount and premium, if any)
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
American General Life Insurance Company
and PA 40
% State Street Bank and Trust Company
Insurance Services Custody (AH2)
1776 Heritage Drive
North Quincy, MA 02171
Fax: (617) 985-4923
35
(3) Duplicate payment notices and
all other communications:
American General Life Insurance Company
% American General Corporation
Attention: Investment Research Department, A37-01
P.O. Box 3247
Houston, TX 77253-3247
Fax: (713) 831-1366
Overnight Mail Address:
2929 Allen Parkway
Houston, TX 77019-2155
Tax Identification No. 25-0598210
36
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
State Street Bank and Trust Company
Boston, MA 02101
ABA No. 011000028
Re: The Variable Annuity Life Insurance
Company
AC - 0125-821-9
OBI= PPN #204912 A* 0 and description of payment
Fund Number PA 54
with sufficient information
(including PPN (204912 A*0),
interest rate, maturity date,
interest amount, principal amount
and premium, if any)
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
The Variable Annuity Life Insurance Company
and PA 54
% State Street Bank and Trust Company
Insurance Services Custody (AH2)
1776 Heritage Drive
North Quincy, MA 02171
Fax: (617) 985-4923
37
(3) Duplicate payment notices and
all other communications:
The Variable Annuity Life Insurance Company
% American General Corporation
Attention: Investment Research Department, A37-01
P.O. Box 3247
Houston, TX 77253-3247
Fax: (713) 831-1366
Overnight Mail Address:
2929 Allen Parkway
Houston, TX 77019-2155
Tax Identification No. 74-1625348
38
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY $15,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
ABA#091-000-019 NW MPLS/TRUST CLEARING
ACCT#08-40-245 ATTN: Acct #12468800
PPN#204912 A* 0
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
Norwest Bank Minnesota, N.A.
733 Marquette Avenue
Investors Building, 5th Floor
Minneapolis, MN 55479-0047
Attention: Income Collections
(3) All other communications:
Great-West Life & Annuity Insurance Company
8515 East Orchard Road
3rd Floor, Tower 2
Englewood, CO 80111
Attention: U.S. Private Placements
Fax: (303) 689-6193
Tax Identification No. 84-0467907
39
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION $10,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Chemical Bank
New York, New York
ABA No. 021-000-128
For credit to: New York Life Insurance
and Annuity Corporation
General Account No. 008-0-57001
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax No. (212) 447-4160
(3) All other communications:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Investment Department
Private Finance Group
Room 206
Fax No. (212) 447-4122
40
with a copy to:
New York Life Insurance and Annuity Corporation
c/o New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Office of General Counsel
Investment Section, Room 10SB
Fax No. (212) 576-8340
Tax Identification No. 13-3044743
41
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NEW YORK LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Morgan Guaranty Trust Company
of New York
New York, NY 10015
ABA No. 021-000-238
For credit to: New York Life Insurance
Company
General Account No. 810-00-000
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Treasury Department
Securities Income Section
Room 209
Fax No. (212) 447-4160
(3) All other communications:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Investment Department
Private Finance Group
Room 206
Fax No. (212) 447-4122
42
with a copy to:
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attention: Office of General Counsel
Investment Section, Room 10SB
Fax No. (212) 576-8340
Tax Identification No. 13-5582869
43
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
SUN LIFE ASSURANCE COMPANY OF CANADA $7,000,000
$2,000,000
$1,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
The Chase Manhattan Bank
One New York Plaza
New York, NY 10015
ABA No. 021-000-021
For the account of: Sun Life Assurance Company of Canada
Account No. 949-1-087822
with sufficient information
to identify the source and
application of such funds (including the
PPN (204192 A* 0) of the Notes).
(2) All notices of mandatory payments and
written confirmations of such
wire transfers:
Sun Life Assurance Company of Canada
Three Sun Life Executive Park
Wellesley Hills, MA 02181
Attention: Manager, Securities Accounting, SC #3327
(3) All other communications and optional prepayments:
Sun Life Assurance Company of Canada
One Sun Life Executive Park
Wellesley Hills, MA 02181
Attention: Investment Department/Private Placements,
SC #1303
Tax Identification No. 38-1082080
44
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.) $2,000,000
$2,000,000
$1,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Chemical Bank
55 Water Street
New York, NY 10041
ABA No. 021-000-128
For the account of:
Sun Life Assurance Company of Canada (U.S.)
Account No. 323-023177
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of mandatory payments and
written confirmations of such
wire transfers:
Sun Life Assurance Company of Canada (U.S.)
Three Sun Life Executive Park
Wellesley Hills, MA 02181
Attention: Manager, Securities Accounting, SC #3327
(3) All other communications and optional prepayments:
Sun Life Assurance Company of Canada (U.S.)
One Sun Life Executive Park
Wellesley Hills, MA 02181
Attention: Investment Department/Private Placements,
SC #1303
Tax Identification No. 04-246-1439
45
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ----------------------
AMERICAN UNITED LIFE INSURANCE COMPANY $5,000,000
$5,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bank of New York
One Wall Street, 3rd Floor
New York, NY 10286
Window A
ABA No. 021000018
Account No. 186683/AUL
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Attention: Rebecca Davis
Law Department
American United Life Insurance Company
Post Office Box 368
Indianapolis, IN 46206
(3) All other communications:
Attention: Rebecca Davis
Law Department
American United Life Insurance Company
Post Office Box 368
Indianapolis, IN 46206
Tax Identification No. 35-0145825
46
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE STATE LIFE INSURANCE COMPANY $1,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bank of New York
One Wall Street, 3rd Floor
New York, NY 10286
Window A
ABA No. 021000018
Account No. 343761/State Life c/o AUL
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Attention: Rebecca Davis
Law Department
American United Life Insurance Company
Post Office Box 368
Indianapolis, IN 46206
(3) All other communications:
Attention: Rebecca Davis
Law Department
American United Life Insurance Company
Post Office Box 368
Indianapolis, IN 46206
Tax Identification No. 35-0684263
47
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NATIONWIDE LIFE INSURANCE COMPANY $8,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Morgan Guaranty Trust Company
of New York
ABA No. 021-000-238
Journal # 999-99-024
F/A/O Nationwide Life Insurance Company
Custody A/C #71615
Attention: Custody Service Department
PPN#204912 A* 0
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Nationwide Life Insurance Company
One Nationwide Plaza (1-32-09)
Columbus, OH 43215-2220
Attention: Corporate Money Management
(3) All other communications:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, OH 43215-2220
Attention: Corporate Fixed-Income Securities
Tax Identification No. 31-4156830
48
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY $2,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Morgan Guaranty Trust Company
of New York
ABA No. 021-000-238
Journal # 999-99-024
F/A/O Nationwide Life Insurance Company
Custody A/C #71620
Attention: Custody Service Department
PPN#204912 A* 0
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Nationwide Life and Annuity Insurance Company
One Nationwide Plaza (1-32-09)
Columbus, OH 43215-2220
Attention: Corporate Money Management
(3) All other communications:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, OH 43215-2220
Attention: Corporate Fixed-Income Securities
Tax Identification No. 31-1000740
49
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ----------------------
TEACHERS INSURANCE AND ANNUITY $10,000,000
ASSOCIATION OF AMERICA
(1) All payments by wire trans-
fer of immediately available
funds to:
Citibank, N.A.
ABA No. 021000089
For the account of:
Teachers Insurance and Annuity Association
of America
Account No. 4057-8501
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
Teachers Insurance and Annuity Association
of America
730 Third Avenue
New York, NY 10017
Attention: Securities Accounting Division
Tel: (212) 916-4188
Fax: (212) 916-6955
(3) All other communications:
Teachers Insurance and Annuity Association
of America
730 Third Avenue
New York, NY 10017
Attention: Securities Division
Private Placements
Tel: (212) 916-4346
Fax: (212) 916-6584
Tax Identification No. 13-1624203N
50
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
LUTHERAN BROTHERHOOD $8,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Norwest Bank Minnesota, N.A.
ABA No. 091000019
For Credit to Trust Clearing
Account No. 08-40-245
Attention: Income Collection
For Credit to: Lutheran Brotherhood
Account No. 12651300
with sufficient information
to identify the source and
application of such funds (including the
PPN (204192 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
Lutheran Brotherhood
Attention: Investment Division
625 Fourth Avenue South
10th Floor
Minneapolis, MN 55415
Fax: (612) 340-5776
(3) All other communications:
Lutheran Brotherhood
Attention: Investment Division
625 Fourth Avenue South
10th Floor
Minneapolis, MN 55415
Fax: (612) 340-5776
Tax Identification No. 41-0385700
51
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
SECURITY FIRST LIFE INSURANCE COMPANY $5,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bank of New York
1 Wall Street
New York, NY 10286
ABA No. 021000018
Account Name: Security First Group
Corporate Bond Account
Account No. 328175
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Security First Life Insurance Company
c/o London Life Insurance Company
255 Dufferin Avenue
London, Ontario
N6A 4K1
Attention: Manager, U.S. Fixed Income (Private Placement)
Securities Department
(3) All other communications:
Security First Life Insurance Company
c/o London Life Insurance Company
255 Dufferin Avenue
London, Ontario
N6A 4K1
Attention: Manager, U.S. Fixed Income (Private Placement)
Securities Department
Tax Identification No. 54-0696644
52
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
INDIANAPOLIS LIFE INSURANCE COMPANY $4,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
NBD Bank, NA
One Indiana Square
Indianapolis, IN 46266
ABA No. 074000052
For credit to: Indianapolis Life Insurance Company
Account No. 700035001852
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
By courier:
Indianapolis Life Insurance Company
2960 North Meridian Street
Indianapolis, IN 46208
Attention: Securities Department
By mail:
Indianapolis Life Insurance Company
P.O. Box 1230
Indianapolis, IN 46206
Attention: Securities Department
53
(3) All other communications:
By courier:
Indianapolis Life Insurance Company
2960 North Meridian Street
Indianapolis, IN 46208
Attention: Securities Department
By mail:
Indianapolis Life Insurance Company
P.O. Box 1230
Indianapolis, IN 46206
Attention: Securities Department
Tax Identification No. 35-0413330
54
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
AMERITAS LIFE INSURANCE CORP. $3,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
First Bank Nebraska, NA
ABA No. 104-000-029
Ameritas Life Insurance Corp
Account No. 1-494-0070-0188
Re: Description of Note;
Principal & Interest Breakdown
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Ameritas Life Insurance Corp
5900 "O" Street
Lincoln, NE 68510-2234
Attention: James Mikus
(3) All other communications:
Ameritas Life Insurance Corp
5900 "O" Street
Lincoln, NE 68510-2234
Attention: James Mikus
Tax Identification No. 47-0098400
55
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NATIONAL TRAVELERS LIFE COMPANY $1,000,000
Register Note in the name of: Var & Co.
(1) All payments by wire trans-
fer of immediately available
funds to:
First Bank, N.A.
Minneapolis, MN
ABA No. 091-000-022
For credit to: First Trust, N.A.
Account No. 180121167365, TSU: 050
For further credit to: National Travelers Life
Company
Account No. 12609110
Attention: Peggy Sime (612) 244-0647
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
National Travelers Life Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
(3) All other communications:
National Travelers Life Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
Tax Identification No. 42-0432940
56
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE NORTH WEST LIFE ASSURANCE COMPANY $1,000,000
OF CANADA
(1) All payments by wire trans-
fer of immediately available
funds to:
Bk of NYC/ABA #021-000-018
For credit to: BBK - IOC 363
For further credit to: North West Life Assurance
Company of Canada
Account No. 270384
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
The North West Life Assurance Company of Canada
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
(3) All other communications:
The North West Life Assurance Company of Canada
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
Tax Identification No. 98-0018913
57
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
PROTECTED HOME MUTUAL LIFE INSURANCE COMPANY $500,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Integra National Bank of Pittsburgh, PA
Pittsburgh, PA 15278
ABA No. 043-000-122
For credit to: Protected Home Mutual Life
Insurance Company
Account No. 08-579-3
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
Protected Home Mutual Life Insurance Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
(3) All other communications:
Protected Home Mutual Life Insurance Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
Tax Identification No. 25-0740310
58
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NATIONAL FARM LIFE INSURANCE COMPANY $500,000
(1) All payments by wire trans-
fer of immediately available
funds to:
NationsBank of Texas
Fort Worth, TX 76113-2260
ABA No. 111-000-025
For credit to: National Farm Life Insurance
Company
Account No. 5050446062
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
National Farm Life Insurance Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
(3) All other communications:
National Farm Life Insurance Company
c/o MIMLIC Asset Management Company
400 Robert Street North
St. Paul, MN 55101
Attention: Client Administrator
Tax Identification No. 75-0708826
59
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
THE PENN INSURANCE AND ANNUITY COMPANY $3,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Bankers Trust Company
ABA No. 02100-1033
16 Wall Street
New York, NY 10005
Attention: Insurance Unit, Private
Placements 01419540
For credit to: The Penn Insurance
and Annuity Company A/C #092506
with sufficient information
to identify the source and
application of such funds.
(2) All notices of payments and
written confirmations of such
wire transfers:
By mail:
The Penn Insurance and Annuity Company
Independence Square
530 Walnut Street
Philadelphia, PA 19172
Attention: Barbara B. Henderson (Mail Stop C1B)
Securities Investment Department
By courier:
The Penn Insurance and Annuity Company
600 Dresher Road
Horsham, PA 19044
Attention: Barbara B. Henderson (Mail Stop C1B)
Securities Investment Department
Tel: (215) 956-8514
Fax: (215) 672-2760
60
(3) All other communications:
By mail:
The Penn Insurance and Annuity Company
Independence Square
530 Walnut Street
Philadelphia, PA 19172
Attention: Barbara B. Henderson (Mail Stop C1B)
Securities Investment Department
By courier:
The Penn Insurance and Annuity Company
600 Dresher Road
Horsham, PA 19044
Attention: Barbara B. Henderson (Mail Stop C1B)
Securities Investment Department
Tel: (215) 956-8514
Fax: (215) 672-2760
Tax Identification No. 23-2142731
61
Principal Amount of
Name and Address of Purchaser Notes to be Purchased
- - ----------------------------- ---------------------
NATIONAL GUARDIAN LIFE INSURANCE COMPANY $2,000,000
(1) All payments by wire trans-
fer of immediately available
funds to:
Firstar Bank Madison
P.O. Box 7900
Madison, WI 53707
ABA No. 075900465
For credit to: National Guardian Life
Insurance Company
Account No. 311-700-397
with sufficient information
to identify the source and
application of such funds (including the
PPN (204912 A* 0) of the Notes).
(2) All notices of payments and
written confirmations of such
wire transfers:
National Guardian Life Insurance Company
Two East Gilman Street
P.O. Box 1191
Madison, WI 53701-1191
Attention: Investment Department
(3) All other communications:
National Guardian Life Insurance Company
Two East Gilman Street
P.O. Box 1191
Madison, WI 53701-1191
Attention: Investment Department
Tax Identification No. 39-0493780
Schedule B
----------
DEFINED TERMS
-------------
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
"Affiliate" means, at any time, and with respect to any
Person, any other Person that at such time directly or indirectly
through one or more intermediaries Controls, or is Controlled by,
or is under common Control with, such first Person. As used in
this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise. Unless
the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Company.
"Business Day" means any day other than a Saturday, a
Sunday or a day on which commercial banks in New York City are
required or authorized to be closed.
"Capital Lease" means, at any time, a lease with
respect to which the lessee is required concurrently to recognize
the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
"Cash Flow" with respect to any Person means, for any
period, the net income from continuing operations of such Person
for such period, determined in accordance with GAAP, plus all
amounts deducted in the computation thereof on account of taxes,
interest, depreciation, amortization and other non-cash expenses.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder from time to time.
"Company" means Computer Associates International,
Inc., a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Cash Flow" means, for any period (a) the
Cash Flow of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP
("Company Cash Flow"), plus (b) in the case of any business of
any Person acquired by the Company or any of its Subsidiaries
during such period, the portion of Cash Flow of such Person and
its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, for the period commencing on the first day
of such other period and ending on the date of acquisition of
such business accounted for by such business, minus (c) in the
case of any business of the Company or any of its Subsidiaries
disposed of by the Company or such Subsidiary during such period,
the portion of Company Cash Flow for the period commencing on the
2
first day of such other period and ending on the date of
disposition of such business accounted for by such business.
"Consolidated Total Assets" means, as at any date, the
total assets of the Company and its Subsidiaries which would be
shown as assets on a consolidated balance sheet of the Company
and its Subsidiaries as of such date prepared in accordance with
GAAP.
"Consolidated Total Indebtedness" means, as at any
date, the aggregate principal amount of all Indebtedness of the
Company and its Subsidiaries outstanding on such date, determined
on a consolidated basis in accordance with GAAP.
"Contribution to Consolidated Cash Flow" means, with
respect to any asset, as of the date of disposition of such
asset, the portion of Consolidated Cash Flow for the period of
the four fiscal quarters ending on, or most recently ended prior
to, the date of such disposition accounted for by such asset.
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the giving of
notice or both, become an Event of Default.
"Default Rate" means that rate of interest that is the
greater of (i) 1% per annum above the rate of interest stated in
clause (a) of the first paragraph of the Notes or (ii) 1% over
the rate of interest publicly announced by Mellon Bank, N.A. in
Pittsburgh, Pennsylvania as its "base" or "prime" rate.
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or
the release of any materials into the environment, including but
not limited to those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is treated as a single employer
together with the Company under section 414 of the Code.
"Event of Default" is defined in Section 11.
"Excess Amount" is defined in Section 10.3.
"Excess Amounts Prepayment Date" is defined in Section 8.3.
"Excess Amounts Response Date" is defined in Section 8.3.
3
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
as in effect from time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or
other political subdivision thereof, or
(ii) any jurisdiction in which the Company or any
Subsidiary conducts all or any part of its business, or
which asserts jurisdiction over any properties of the
Company or any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
"Guaranty" means, with respect to any Person, any
obligation (except the endorsement in the ordinary course of
business of negotiable instruments for deposit or collection) of
such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person in
any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent
or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or
payment of such indebtedness or obligation, or (ii) to
maintain any working capital or other balance sheet
condition or any income statement condition of any other
Person or otherwise to advance or make available funds for
the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or
services primarily for the purpose of assuring the owner of
such indebtedness or obligation of the ability of any other
Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness
or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of
the obligor under any Guaranty, the indebtedness or other
obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
4
"holder" means, with respect to any Note, the Person in
whose name such Note is registered in the register maintained by
the Company pursuant to Section 13.1.
"Indebtedness" with respect to any Person means, at any
time, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all
liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such
property);
(c) all liabilities appearing on its balance sheet in
accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person
(whether or not it has assumed or otherwise become liable
for such liabilities); and
(e) any Guaranty of such Person with respect to
liabilities of a type described in any of clauses (a)
through (d) hereof.
"Institutional Investor" means (a) any original
purchaser of a Note, (b) any holder of a Note holding more than
5% of the aggregate principal amount of the Notes then
outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer,
or any other similar financial institution or entity, regardless
of legal form.
"Interest Charges" means all amounts which would be
deducted in determining consolidated net income of the Company
and its Subsidiaries, determined in accordance with GAAP, on
account of interest on Indebtedness of the Company and its
Subsidiaries.
"Lien" means, with respect to any Person, any mortgage,
lien, pledge, charge, security interest or other encumbrance, or
any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or
other title retention agreement or Capital Lease, upon or with
respect to any property or asset of such Person (including in the
case of stock, stockholder agreements, voting trust agreements
and all similar arrangements).
"Make-Whole Amount" is defined in Section 8.7.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets, or properties
of the Company and its Subsidiaries taken as a whole.
5
"Material Adverse Effect" means a material adverse
effect on (a) the business, operations, affairs, financial
condition, assets or properties of the Company and its
Subsidiaries taken as a whole, or (b) the ability of the Company
to perform its obligations under this Agreement and the Notes, or
(c) the validity or enforceability of this Agreement or the
Notes.
"Material Subsidiary" means, on any date, each
Subsidiary of the Company (a) which holds any capital stock of
the Company, (b) which, together with its Subsidiaries, has
consolidated revenues for the period of the four fiscal quarters
of the Company ending on, or most recently ended prior to, such
date in excess of 3% of the consolidated revenues of the Company
and its Subsidiaries for such period or (c) which, together with
its Subsidiaries, has consolidated assets as at such date in
excess of 3% of Consolidated Total Assets as at such date.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"Note Portion" is defined in Section 10.3.
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such
certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust, unincorporated
organization, or a government or agency or political subdivision
thereof.
"Plan" means an "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five
years, has been established or maintained, or to which
contributions are or, within the preceding five years, have been
made or required to be made, by the Company or any ERISA
Affiliate or with respect to which the Company or any ERISA
Affiliate may have any liability.
"property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, choate or inchoate.
6
"Pro Forma Annual Consolidated Interest Expense" means,
as at any date, the net amount of scheduled Interest Charges in
respect of Consolidated Total Indebtedness outstanding as of such
date for the period of the four fiscal quarters beginning on, or
next succeeding, such date. For purposes of this definition,
Indebtedness that bears interest at a variable rate shall be
deemed to bear interest during the period in question at a rate
equal to such rate at such date.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of Labor.
"Required Holders" means, at any time, the holder or
holders of at least 50% in principal amount of the Notes at the
time outstanding (exclusive of Notes then owned by the Company or
any of its Affiliates).
"Responsible Officer" means any Senior Financial
Officer and any other officer of the Company with responsibility
for the administration of the relevant portion of this agreement.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or comptroller
of the Company.
"Specified Indebtedness" means, as at any time,
Indebtedness for borrowed money of the Company or any Material
Subsidiary (other than any such Indebtedness owed to the Company
or any Subsidiary) which is not subordinated in right of payment
to the Notes.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one
or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable
it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons
performing similar functions) of such entity, and any partnership
or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries
(unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one
or more of its Subsidiaries). Unless the context otherwise
clearly requires, any reference to a "Subsidiary" is a reference
to a Subsidiary of the Company.
"Wholly-Owned Subsidiary" means, at any time, any
Subsidiary one hundred percent (100%) of all of the equity
interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the Company
and the Company's other Wholly-Owned Subsidiaries at such time.
SCHEDULE 5.3
DISCLOSURE MATERIALS
None
SCHEDULE 5.5
FINANCIAL STATEMENTS
1995 Annual Report:
- - ------------------
Consolidated Balance Sheets as of March 31, 1994 and 1995
Consolidated Statements of Income for Fiscal Years ended
March 31, 1993 through 1995
Consolidated Statements of Stockholders' Equity for Fiscal
Years ended March 31, 1992 through 1995
Consolidated Statements of Cash Flows for Fiscal Years ended
March 31, 1993 through 1995
Form 10-Q - December 31, 1995:
- - -----------------------------
Consolidated Condensed Balance Sheets as of March 31, 1995
and December 31, 1995
Consolidated Statements of Income for Three Months ended
December 31, 1994 and 1995
Consolidated Statements of Income for Nine Months ended
December 31, 1994 and 1995
Consolidated Condensed Statements of Cash Flows for Nine
Months ended December 31, 1994 and 1995
SCHEDULE 5.14
USE OF PROCEEDS
The proceeds of the sale of the Notes will be used to
repay existing bank Indebtedness of the Company specified in
Schedule 5.15 and for general corporate purposes.
EXHIBIT 1
[FORM OF NOTE]
COMPUTER ASSOCIATES INTERNATIONAL, INC.
6.77% SENIOR NOTE DUE APRIL 4, 2003
No. [_____]
[Date]
$[_______] PPN 204912 A* 0
FOR VALUE RECEIVED, the undersigned, COMPUTER
ASSOCIATES INTERNATIONAL, INC. (herein called the "Company"), a
corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to [______________________], or
registered assigns, the principal sum of
[________________________] DOLLARS on April 4, 2003, with
interest (computed on the basis of a 360-day year of twelve 30-
day months) (a) on the unpaid balance thereof at the rate of
6.77% per annum from the date hereof, payable semiannually, on
the 4th day of April and October in each year, commencing with
the April or October next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to
the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in
the Note Purchase Agreements referred to below), payable
semiannually as aforesaid (or, at the option of the registered
holder hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 7.77% or (ii) 1% over the rate of
interest publicly announced by Mellon Bank, N.A. from time to
time in Pittsburgh, Pennsylvania as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-
Whole Amount with respect to this Note are to be made in lawful
money of the United States of America at the office of Mellon
Bank, N.A. located at 65 East 55th Street, New York, New York
10022 or at such other place as the Company shall have designated
by written notice to the holder of this Note as provided in the
Note Purchase Agreements referred to below.
This Note is one of a series of Senior Notes (herein
called the "Notes") issued pursuant to separate Note Purchase
Agreements, dated as of April 1, 1996 (as from time to time
amended, the "Note Purchase Agreements"), between the Company and
the respective Purchasers named therein and is entitled to the
benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the
Note Purchase Agreements, upon surrender of this Note for
registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued
to, and registered in the name of, the transferee. Prior to due
presentment for registration of transfer, the Company may treat
the person in whose name this Note is registered as the owner
2
hereof for the purpose of receiving payment and for all other
purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make required prepayments of principal
on the dates and in the amounts specified in the Note Purchase
Agreements. This Note is also subject to optional prepayment, in
whole or from time to time in part, at the times and on the terms
specified in the Note Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this Note
may be declared or otherwise become due and payable in the
manner, at the price (including any applicable Make-Whole Amount)
and with the effect provided in the Note Purchase Agreements.
This Note shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law
of the State of New York excluding choice-of-law principles of
the law of such State that would require the application of the
laws of a jurisdiction other than such State.
COMPUTER ASSOCIATES INTERNATIONAL,
INC.
By________________________________
Title:
April 4, 1996
To the several Purchasers
listed on the attached schedule
Dear Sirs:
I am Senior Vice President and General Counsel of Computer Associates
International, Inc., a Delaware corporation (the "Company"), and am familiar
with the proceedings taken by the Company in connection with the issuance and
sale to each of you (the "Purchasers") today by the Company of $320,000,000
aggregate principal amount of the Company's 6.77% Senior Notes due April 4,
2003 (the "Notes"), pursuant to the Note Purchase Agreements, dated as of
April 1, 1996 (the "Note Purchase Agreements"), between the Company and each
of the Purchasers. This opinion is delivered to each of you pursuant to
Section 4.4(a) of the Note Purchase Agreements. Capitalized terms used herein
and not defined herein have the respective meanings specified in the Note
Purchase Agreements.
I have reviewed the Note Purchase Agreements and the Notes, and such
corporate records, certificates and other documents, and such questions of
law, as I have deemed necessary or appropriate for the purposes of this
opinion.
I have assumed that all signatures are genuine, that all documents
submitted to me as originals are authentic and that all copies of documents
submitted to me conform to the originals. I have assumed further the accuracy
of each of the representations and warranties of the parties (other than the
Company) to the Note Purchase Agreements and the statements set forth in the
letter, dated March 29, 1996, delivered by CS First Boston Corporation and
J.P. Morgan Securities Inc. to the Company. I have assumed further that each
of the parties (other than the Company) to the Note Purchase Agreements has
duly executed and delivered each of the foregoing documents to which it is
a party.
Based upon the foregoing, and subject to the qualifications set forth
below, I am of the opinion that:
(1) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. Each domestic
Material Subsidiary is a corporation or other legal entity duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization.
(2) Each of the Company and its domestic Material Subsidiaries is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing
would not, individually or in the aggregate, reasonably expected to have a
Material Adverse Effect.
(3) The Company has the corporate power and authority to execute and
deliver the Note Purchase Agreements, to issue and sell the Notes and to
perform its obligations under the Note Purchase Agreements and the Notes.
(4) Each of the Note Purchase Agreements and the Notes has been duly
authorized by all necessary corporate action on the part of the Company, has
been executed and delivered by a duly authorized officer of the Company, and
constitutes the legal valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(5) The execution, delivery and performance by the Company of the Note
Purchase Agreements and the Notes will not (a) contravene, result in any
breach of, or constitute a default under or result in the creation of any
Lien in respect of any property of the Company under, (i) the Certificate of
Incorporation or by-laws of the Company or (ii) to the best of my knowledge,
any indenture, mortgage deed of trust, loan, purchase or credit agreement or
lease, or any other Material agreement or instrument to which the Company is
bound or affected, (b) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree or
ruling of any court, arbitrator or Governmental Authority applicable to the
Company or (c) violate any provision of any statute, rule or regulation of
any Governmental Authority applicable to the Company.
(6) No consent, approval or authorization of, or registration, filing
or declaration with, any Governmental Authority of the United States of
America, or the State of New York, or under the General Corporation Law of
the State of Delaware, is required in connection with the execution,
delivery or performance by the Company of the Note Purchase Agreements or the
Notes.
(7) There are no actions, suits or proceedings pending or, to the best
of my knowledge, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority
(i) questioning the validity of the Note Purchase Agreements or the Notes
or (ii) that, individually or in the aggregate, would reasonably be expected
to have a Material Adverse Effect.
(8) Registration of the Notes under the Securities Act of 1933, as
amended (the "1933 Act"), and qualification of an indenture with respect to
the Notes under the Trust Indenture Act of 1939, as amended, is not required
for the offer and sale of the Notes in the manner contemplated by the Note
Purchase Agreements.
(9) The Company is not an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
(10) Neither the issuance of the Notes nor the intended use of the
proceeds of the Notes (as set forth in Schedule 5.14 to the Note Purchase
Agreements) will violate Regulations G, T, or X of the Board of Governors of
the Federal Reserve System.
The foregoing opinion is subject to the following qualifications:
(a) The enforceability of the Note Purchase Agreements and the Note
is subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and remedies and to general equity principles.
(b) The enforceability of rights and remedies in the Note Purchase
Agreements and the Notes is subject to the exercise by the Purchasers of
commercial reasonableness, acting in good faith.
(c) For purposes of the opinion set forth in paragraph (8), I express
no opinion as to when or under what circumstances the Notes may be reoffered
or resold in the United States, its territories and possessions or to U.S.
Persons (as defined in Rule 902 under the 1933 Act).
Also, I have relied as to certain factual matters on information
obtained from public officials and other sources believed by me to be
responsible.
I am a member of the bar of the State of New York. I do not purport
to be expert in, and do not express any opinion on, any laws other than the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States of America.
Sincerely yours,
/s/Steven M. Woghin
Steven M. Woghin
Senior Vice President and
General Counsel
SMW/gg
EXHIBIT 4.4(b)
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
April 4, 1996
Re: Computer Associates International, Inc.
6.77% Senior Notes due April 4, 2003
To the several Purchasers
listed in Schedule A
to the within-mentioned Note
Purchase Agreements
Ladies and Gentlemen:
We have acted as your special counsel in connection
with the issuance by Computer Associates International, Inc. (the
"Company") of its 6.77% Senior Notes due April 4, 2003 in an
aggregate principal amount of $320,000,000 (the "Notes"), and the
purchases by you pursuant to the several Note Purchase Agreements
dated as of April 1, 1996 (the "Note Purchase Agreements") made
by you with the Company of Notes in the respective aggregate
principal amounts set forth in Schedule A to the Note Purchase
Agreements. All capitalized terms used herein without definition
shall have the meanings ascribed thereto in the Note Purchase
Agreements.
We have examined originals or copies authenticated to
our satisfaction of all such corporate records of the Company,
agreements and other instruments, certificates of public
officials and of officers and representatives of the Company, and
such other documents, as we have deemed necessary in connection
with the opinions hereinafter expressed. In such examination, we
have assumed the genuineness of all signatures, the authenticity
of documents submitted to us as originals and the conformity with
the authentic originals of all documents submitted to us as
copies. As to questions of fact material to such opinions we
2
have, when relevant facts were not independently established,
relied upon the representations set forth in the Note Purchase
Agreements and upon certifications by officers or other
representatives of the Company.
In addition, we attended the closing held today at our
office at which you purchased and made payment for Notes in the
respective aggregate principal amounts to be purchased by you,
all in accordance with the Note Purchase Agreements.
Based upon the foregoing and having regard for legal
considerations that we deem relevant, we render you our opinion
pursuant to Section 4.4(b) of the Note Purchase Agreements as
follows:
1. The Company is a corporation validly existing and
in good standing under the laws of the State of Delaware and
has the corporate power to execute and deliver the Note
Purchase Agreements and the Notes and to perform its
obligations thereunder.
2. The Note Purchase Agreements have been duly
authorized, executed and delivered by the Company and
constitute legal, valid and binding agreements of the
Company, enforceable against the Company in accordance with
their terms.
3. The Notes being purchased by you today have been
duly authorized, executed and delivered by the Company and
constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms.
4. No consent, approval or authorization of, or
registration, filing or declaration with, any New York State
or United States Federal Governmental Authority is required
for the validity of the execution and delivery or for the
performance by the Company of the Note Purchase Agreements
or said Notes.
5. It was not necessary in connection with the
offering, sale and delivery of said Notes, under the
circumstances contemplated by the Note Purchase Agreements,
to register said Notes under the Securities Act or to
qualify an indenture in respect of the Notes under the Trust
Indenture Act of 1939, as amended.
6. The opinion of Steven M. Woghin, General Counsel
of the Company, dated the date hereof and delivered to you
pursuant to Section 4.4(a) of the Note Purchase Agreements,
is satisfactory to us in form and scope with respect to the
matters specified therein and we believe that you are
justified in relying thereon.
The opinions expressed in paragraphs 2 and 3 above as
to the enforceability of any agreement or instrument in
accordance with its terms are subject to the exception that such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
We wish to point out that provisions of the Note
Purchase Agreements that permit you or any other holder of a Note
to take action or make determinations or to benefit from
indemnities or similar undertakings of the Company may be subject
to a requirement that such action be taken or such determinations
be made, and that any action or inaction by any of you or any
other holder of a Note that may give rise to a request for
payment under such an undertaking be taken or not taken, on a
reasonable basis and in good faith.
We do not herein express any opinion as to any matters
governed by any laws other than the Federal laws of the United
States of America, the laws of the State of New York and the
General Corporation Law of the State of Delaware.
Very truly yours,
/s/Milbank, Tweed, Hadley, and McLoy
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MMI/DAS