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Exhibit 10.1
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UNITED ASSET MANAGEMENT CORPORATION
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FIRST AMENDMENT
Dated as of June 23, 1998
to
NOTE PURCHASE AGREEMENTS
Dated as of August 1, 1995
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Re: $150,000,000 7.12% Senior Secured Notes
Due August 25, 2005
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FIRST AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FIRST AMENDMENT dated as of June 23, 1998 (this "First Amendment") to
the Note Purchase Agreements, each dated as of August 1, 1995 is between UNITED
ASSET MANAGEMENT CORPORATION, a Delaware corporation (the "Company"), and each
of the institutions which is a signatory to this First Amendment (collectively,
the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
separate and several Note Purchase Agreements, each dated as of August 1, 1995
(collectively, the "Note Purchase Agreements"). The Company has heretofore
issued the $150,000,000 7.12% Senior Secured Notes Due August 25, 2005 (the
"Existing Notes") dated August 25, 1995 pursuant to the Note Purchase
Agreements.
B. The Company and the Noteholders now desire to amend the Note Purchase
Agreements in the respects, but only in the respects, hereinafter set forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other acts
and things necessary to make this First Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this First Amendment set forth in Section 3.1
hereof, and in consideration of good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. Section 9.7 of the Note Purchase Agreements shall be and is
hereby amended in its entirety to read as follows:
"Section 9.7. Intentionally Omitted"
1.2. Section 10.4(a)(v) of the Note Purchase Agreements shall be and
is hereby amended in its entirety to read as follows:
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"(v) additional Funded Debt of the Company and/or any one or more of
its Subsidiaries, provided that at the time of creation, issuance, assumption,
guarantee or incurrence thereof and after giving effect thereto and to the
application of the proceeds thereof:
(A) Consolidated Operating Cash Flow for the immediately
preceding four fiscal quarters will be at least equal to the relevant
percentage of Consolidated Senior Funded Debt hereinafter specified
during the applicable period set forth below:
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Consolidated Operating Cash Flow
If Funded Debt is Incurred as a Minimum Percentage of
During the Period: Consolidated Senior Funded Debt:
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June 23, 1998 to and including 15.0%
December 31, 1999
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January 1, 2000 to and including 18.0%
December 31, 2000
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January 1, 2001 and thereafter 20.0%
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and
(B) Consolidated Operating Cash Flow for the immediately
preceding four fiscal quarters will be at least equal to the relevant
percentage of Consolidated Funded Debt hereinafter specified during
the applicable period set forth below:
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Consolidated Operating Cash Flow
If Funded Debt is Incurred as a Minimum Percentage of
During the Period: Consolidated Funded Debt:
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June 23, 1998 to and including 12.0%
December 31, 1998
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January 1, 1999 to and including 13.5%
December 31, 1999
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January 1, 2000 and thereafter 15.0%
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and
(C) in the case of the issuance of any Funded Debt of the Company
secured by Liens permitted by Section 10.5(k) and any Funded Debt of a
Subsidiary, the sum of (y) the aggregate amount of all Funded Debt
secured by Liens permitted by Section 10.5(k) plus (z) the aggregate
amount of all Funded Debt of Subsidiaries, shall not exceed
$63,000,000;".
1.3. Section 7.2(a) of the Note Purchase Agreements shall be and is
hereby amended by deleting the reference to "9.7," therefrom.
1.4. Section 11.1(c) of the Note Purchase Agreements shall be and is
hereby amended by deleting the reference to "9.7," therefrom.
1.5. From and after June 23, 1998 interest on the Notes shall accrue
at the rate of 8.92% per annum.
SECTION 2. EXCHANGE OF NOTES.
2.1. The Company agrees to issue and deliver amended notes not later
than July 10, 1998 in the form of Exhibit 1 to the Note Purchase Agreements (the
"Amended Notes") to the Noteholders in exchange for their outstanding
corresponding Existing Notes. The Noteholders agree to surrender their Existing
Notes to the Company (c/o Chapman and Xxxxxx) in exchange for the Amended Notes,
and upon surrender, the Existing Notes shall be canceled by the Company and
shall be void. The Company shall pay any stamp tax or governmental charge
imposed upon such exchange.
2.2. Each Amended Note shall be in the form of a single registered
Note, shall be registered in the name of the Noteholder surrendering such
Existing Note as reflected on the books and records of the Company, shall be
issued for the same principal amount as the outstanding principal amount of the
Existing Note surrendered in exchange therefor.
2.3. The Company shall not later than July 10, 1998 deliver the
Amended Notes in proper form at the offices of Xxxxxxx and Xxxxxx, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, to be held by such firm for delivery
against surrender by the Noteholders in exchange therefor of the Existing Notes.
2.4. Each of the Noteholders and the Company agrees that the
amendments effected pursuant to this First Amendment and the exchange of Amended
Notes for Existing Notes pursuant to this First Amendment shall not be deemed a
prepayment, redemption or
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repurchase of the Existing Notes for any purpose, including Section 8 of the
Note Purchase Agreements.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
3.1. To induce the Noteholders to execute and deliver this First
Amendment (which representations shall survive the execution and delivery of
this First Amendment), the Company represents and warrants to the Noteholders
that:
(a) this First Amendment has been duly authorized, executed and
delivered by it and this First Amendment constitutes the legal, valid
and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Note Purchase Agreements, as amended by this First
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Company enforceable against it in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) the execution, delivery and performance by the Company of
this First Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order of
any other agency or government binding upon it, or (3) any provision
of any material indenture, agreement or other instrument to which it
is a party or by which its properties or assets are or may be bound,
including, without limitation, the Bank Credit Agreement, or (B)
result in a breach or constitute (alone or with due notice or lapse of
time or both) a default under any indenture, agreement or other
instrument referred to in clause (iii)(A)(3) of this Section 3.1(c);
and
(d) as of the date hereof and after giving effect to this First
Amendment, no Default or Event of Default has occurred which is
continuing.
SECTION 4. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT; CERTAIN CLOSING
CONDITIONS.
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4.1. Executed counterparts of this First Amendment, duly executed by
the Company and the holders of at least 51% of the outstanding principal of the
Notes (exclusive of Notes owned by the Company or any of its Affiliates), having
been delivered, this First Amendment shall become and be effective on and as of
June 23, 1998.
4.2. Not later than July 10, 1998, each and everyone of the following
conditions shall have been satisfied:
(a) the Noteholders shall have received a copy of the resolutions
of the Board of Directors of the Company authorizing the execution,
delivery and performance by the Company of this First Amendment,
certified by its Secretary or an Assistant Secretary;
(b) The Noteholders shall have received a certificate of an
Responsible Officer of the Company to the effect that the
representations and warranties of the Company set forth in Section 3
hereof are true and correct on and with respect to the date hereof;
and
(c) the Noteholders shall have received the favorable opinion of
counsel to the Company as to the matters set forth in Sections 3.1(a),
3.1(b) and 3.1(c) hereof, which opinion shall be in form and substance
satisfactory to the Noteholders.
SECTION 5. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
The Company agrees to pay upon demand the reasonable fees and
expenses of Xxxxxxx and Xxxxxx, counsel to the Noteholders, in connection with
the negotiation, preparation, approval, execution and delivery of this First
Amendment.
SECTION 6. MISCELLANEOUS.
6.1. This First Amendment shall be construed in connection with and as
part of each of the Note Purchase Agreements, and except as modified and
expressly amended by this First Amendment, all terms, conditions and covenants
contained in the Note Purchase Agreements and the Notes are hereby ratified and
shall be and remain in full force and effect.
6.2. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this First Amendment
may refer to the Note Purchase Agreements without making specific reference to
this First Amendment but nevertheless all such references shall include this
First Amendment unless the context otherwise requires.
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6.3. The descriptive headings of the various Sections or parts of this
First Amendment are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
6.4. This First Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts (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) and shall take
effect as a sealed instrument in accordance with such laws.
6.5. The execution hereof by you shall constitute a contract between
us for the uses and purposes hereinabove set forth, and this First Amendment may
be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
UNITED ASSET MANAGEMENT
CORPORATION
By /s/ Xxxxxxx X. Park
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Executive Vice President and
Chief Financial Officer
Accepted and Agreed to as of June 23, 1998:
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Authorized Signatories
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PROVIDENT LIFE AND ACCIDENT INSURANCE
COMPANY
By: Provident Investment Management, LLC,
Its Agent
By /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Agent
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
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Xxxxxx Xxxxxxxxxxxx
Investment Officer
CM LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxxx XX
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Xxxxxxx X. Xxxxxxx XX
Managing Director
CONNECTICUT MUTUAL LIFE INSURANCE
COMPANY
By: Massachusetts Mutual Life Insurance
Company As Successor In Interest
By /s/ Xxxxxxx X. Xxxxxxx XX
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Xxxxxxx X. Xxxxxxx XX
Managing Director
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By /s/ Xxxxxxx X. Xxxxxxx XX
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Xxxxxxx X. Xxxxxxx XX
Managing Director
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OXFORD LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By /s/ J. Xxxxxx Xxxxxx
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J. Xxxxxx Xxxxxx
Vice President
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By /s/ J. Xxxxxx Xxxxxx
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J. Xxxxxx Xxxxxx
Vice President
LINCOLN NATIONAL REINSURANCE COMPANY
(BARBADOS) LTD.
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By /s/ J. Xxxxxx Xxxxxx
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J. Xxxxxx Xxxxxx
Vice President
LONDON LIFE INTERNATIONAL REINSURANCE
CORPORATION
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By /s/ J. Xxxxxx Xxxxxx
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J. Xxxxxx Xxxxxx
Vice President
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