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UNITED ASSET MANAGEMENT CORPORATION
$150,000,000
7.12% Senior Secured Notes due August 25, 2005
_________________________
NOTE PURCHASE AGREEMENT
_________________________
Dated as of August 1, 1995
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
SECTION 1. AUTHORIZATION OF NOTES 1
SECTION 2. SALE AND PURCHASE OF NOTES; SECURITY 1
Section 2.1. Sale and Purchase of Notes 1
Section 2.2. Security for the Notes 2
SECTION 3. CLOSING 4
SECTION 4. CONDITIONS TO CLOSING 5
Section 4.1. Representations and Warranties 5
Section 4.2. Performance; No Default. 5
Section 4.3. Compliance Certificates 5
Section 4.4. Opinions of Counsel 6
Section 4.5. Purchase Permitted by Applicable Law, Etc 6
Section 4.6. Sale of Other Notes 6
Section 4.7. Bank Credit Agreement, Security Documents, Etc 6
Section 4.8. Filing and Recording 6
Section 4.9. Payment of Special Counsel Fees 6
Section 4.10. Private Placement Number 7
Section 4.11. Changes in Corporate Structure 7
Section 4.12. Proceedings and Documents 7
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 7
Section 5.1. Organization; Power and Authority 7
Section 5.2. Authorization, Etc 7
Section 5.3. Disclosure 8
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates 8
Section 5.5. Financial Statements 9
Section 5.6. Compliance with Laws, Other Instruments, Etc 9
Section 5.7. Governmental Authorizations, Etc 9
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders 9
Section 5.9. Taxes 10
Section 5.10. Title to Property; Leases 10
Section 5.11. Licenses, Permits, Etc 10
Section 5.12. Compliance with ERISA 11
Section 5.13. Private Offering by the Company 11
Section 5.14. Use of Proceeds; Margin Regulations 11
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Section 5.15. Existing Indebtedness; Future Liens 12
Section 5.16. Foreign Assets Control Regulations, Etc 12
Section 5.17. Status under Certain Statutes 12
Section 5.18. Environmental Matters 12
Section 5.19. Pledge Agreements and Security Agreements 13
Section 5.20. Revenue Sharing Agreements 14
SECTION 6. REPRESENTATIONS OF THE PURCHASER 14
Section 6.1. Purchase for Investment 14
Section 6.2. Source of Funds 14
SECTION 7. INFORMATION AS TO COMPANY 15
Section 7.1. Financial and Business Information 15
Section 7.2. Officer's Certificate 18
Section 7.3. Inspection 18
SECTION 8. PREPAYMENT OF THE NOTES 19
Section 8.1. Required Prepayments 19
Section 8.2. Optional Prepayments with Make-Whole Amount 19
Section 8.3. Allocation of Partial Prepayments 19
Section 8.4. Maturity; Surrender, Etc 20
Section 8.5. Purchase of Notes 20
Section 8.6. Make-Whole Amount 20
SECTION 9. AFFIRMATIVE COVENANTS 21
Section 9.1. Compliance with Law 21
Section 9.2. Insurance 22
Section 9.3. Maintenance of Properties 22
Section 9.4. Payment of Taxes and Claims 22
Section 9.5. Corporate Existence, Etc 22
Section 9.6. Nature of Business 22
Section 9.7. Consolidated Tangible Net Worth 23
Section 9.8. Fixed Charges Coverage Ratio 23
SECTION 10. NEGATIVE COVENANTS 23
Section 10.1. Transactions with Affiliates 23
Section 10.2. Mergers, Consolidations and Sales of Assets 23
Section 10.3. Additional Guaranties 28
Section 10.4. Limitations on Funded Debt 28
Section 10.5. Limitation on Liens 29
Section 10.6. Notes to Rank Pari Passu with Senior Indebtedness 32
Section 10.7. Limitations on Restrictive Agreements 00
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XXXXXXX 00. EVENTS OF DEFAULT 32
SECTION 12. REMEDIES ON DEFAULT, ETC 35
Section 12.1. Acceleration 35
Section 12.2. Other Remedies 35
Section 12.3. Rescission 35
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc 36
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES 36
Section 13.1. Registration of Notes 36
Section 13.2. Transfer and Exchange of Notes 36
Section 13.3. Replacement of Notes 37
SECTION 14. PAYMENTS ON NOTES 37
Section 14.1. Place of Payment 37
Section 14.2. Home Office Payment 37
SECTION 15. EXPENSES, ETC 38
Section 15.1. Transaction Expenses 38
Section 15.2. Survival 39
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT 39
SECTION 17. AMENDMENT AND WAIVER 39
Section 17.1. Requirements 39
Section 17.2. Solicitation of Holders of Notes 40
Section 17.3. Binding Effect, Etc 40
Section 17.4. Notes Held by Company, Etc 40
SECTION 18. NOTICES 41
SECTION 19. REPRODUCTION OF DOCUMENTS 41
SECTION 20. CONFIDENTIAL INFORMATION 41
SECTION 21. SUBSTITUTION OF PURCHASER 42
SECTION 22. MISCELLANEOUS 43
Section 22.1. Successors and Assigns 43
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Section 22.2. Payments Due on Non-Business Days 43
Section 22.3. Severability 43
Section 22.4. Construction 43
Section 22.5. Counterparts 43
Section 22.6. Governing Law 43
Section 22.7. Environmental Indemnity and Covenant Not to Xxx 44
Signature 45
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ATTACHMENTS TO NOTE PURCHASE AGREEMENT:
SCHEDULE A -- INFORMATION RELATING TO PURCHASERS
SCHEDULE B -- DEFINED TERMS
SCHEDULE 4.11 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Subsidiaries of the Company and Ownership of Subsidiary Stock
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Patents, etc.
SCHEDULE 5.14 -- Use of Proceeds
SCHEDULE 5.15 -- Existing Indebtedness
EXHIBIT 1 -- Form of 7.12% Senior Secured Note due August 25, 2005
EXHIBIT 2 -- Form of Subordinated Agreement/Subordinated Note
EXHIBIT 4.4(a) -- Form of Opinion of Special Counsel for the Company
EXHIBIT 4.4(b) -- Form of Opinion of Special Counsel for the Purchasers
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UNITED ASSET MANAGEMENT CORPORATION
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
7.12% Senior Secured Notes due August 25, 2005
Dated as of
August 1, 1995
TO EACH OF THE PURCHASERS LISTED IN
THE ATTACHED SCHEDULE A:
Ladies and Gentlemen:
UNITED ASSET MANAGEMENT CORPORATION, a Delaware corporation (the
"COMPANY"), agrees with you as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $150,000,000 aggregate
principal amount of its 7.12% Senior Secured Notes due August 25, 2005 (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.
SECTION 2. SALES AND PURCHASE OF NOTES; SECURITY.
SECTION 2.1. 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 nonperformance by any Other
Purchaser thereunder.
SECTION 2.2. SECURITY FOR THE NOTES. (a) The Notes will be entitled to
the benefit of and will be secured by the following contracts and agreements,
each of which will be in form and substance satisfactory to you and your
special counsel:
(i) the Security Agreement dated as of May 18, 1992
made by the Company in favor of The First National Bank of
Boston, as Collateral Agent under the Bank Credit Agreement,
as heretofore amended, as amended by the First Amendment and
Consent and as the same may be further amended, supplemented
or otherwise modified from time to time (the "SECURITY
AGREEMENT");
(ii) the Subsidiaries Security Agreement dated as of
May 18, 1992 made by UAM Holdings, UAM Trademark and UAM
Investment in favor of The First National Bank of Boston, as
Collateral Agent under the Bank Credit Agreement, as
heretofore amended, as amended by the First Amendment and
Consent and as the same may be further amended, supplemented
or otherwise modified from time to time (the "SUBSIDIARIES
SECURITY AGREEMENT");
(iii) the Pledge Agreement dated as of May 18, 1992 by
and between the Company and The First National Bank of
Boston, as Collateral Agent under the Bank Credit Agreement,
as heretofore amended, as amended by the First Amendment and
Consent and as the same may be further amended, supplemented
or otherwise modified from time to time (the "PLEDGE AGREEMENT");
(iv) the Subsidiaries Pledge Agreement dated as of
May 18, 1992 by and between UAM Holdings and The First
National Bank of Boston, as Collateral Agent under the Bank
Credit Agreement, as heretofore amended, as amended by the
First Amendment and Consent and as the same may be further
amended, supplemented or otherwise modified from time to
time (the "SUBSIDIARIES PLEDGE AGREEMENT");
(v) the Xxxxxxx Pledge Agreement dated as of
August 25, 1993 by and between Xxxxxxx and The First
National Bank of Boston, as Collateral Agent under the Bank
Credit Agreement, as heretofore amended, as amended by the
First Amendment and Consent and as the same may be further
amended, supplemented or otherwise modified from time to
time (the "XXXXXXX PLEDGE AGREEMENT");
(vi) the UAM U.K. Holdings Pledge Agreement dated as of
November 17, 1993 by and between UAM U.K. Holdings and The
First National Bank of Boston, as Collateral Agent under the
Bank Credit Agreement, as supplemented by the Supplementary
Pledge Agreement dated as of August 11, 1995 between UAM
U.K. Holdings and the Collateral Agent and as the same may
be further amended, supplemented or otherwise modified from
time to time (the "UAM U.K. HOLDINGS PLEDGE AGREEMENT");
(vii) the Pledge and Assignment of Limited Partnership
Interest dated as of May 18, 1992 made by UAM Realty
Advisors to The First National Bank of Boston, as Collateral
Agent under the Bank Credit Agreement, as heretofore amended, as
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amended by the First Amendment and Consent and
as the same may be further amended, supplemented or
otherwise modified from time to time (the "ASSIGNMENT OF
PARTNERSHIP INTEREST");
(viii) the Subsidiaries Guaranty dated as of the date of
this Agreement made by UAM Holdings, UAM Trademark and UAM
Investment in favor of the holders of the Notes, as the same
may be amended, supplemented or otherwise modified from time
to time (the "SUBSIDIARIES GUARANTY");
(ix) the UAM Realty Advisors Guaranty dated as of the
date of this Agreement made by UAM Realty Advisors in favor
of the holders of the Notes, as the same may be amended,
supplemented or otherwise modified from time to time (the
"UAM REALTY ADVISORS GUARANTY");
(x) the Xxxxxxx Guaranty dated as of the date of this
Agreement made by Xxxxxxx in favor of the holders of the
Notes, as the same may be amended, supplemented or otherwise
modified from time to time (the "XXXXXXX GUARANTY");
(xi) the UAM U.K. Holdings Guaranty dated as of the
date of this Agreement made by UAM U.K. Holdings in favor of
holders of the Notes, as the same may be amended,
supplemented or otherwise modified from time to time (the
"UAM U.K. HOLDINGS GUARANTY"); and
(xii) the Amended and Restated Subordination Agreement
dated as of the date of this Agreement made by the Company
and UAM Trademark in favor of the Collateral Agent for the
benefit of the Secured Parties, as the same may be amended,
supplemented or otherwise modified from time to time (the
"TRADEMARK SUBORDINATION AGREEMENT").
The Security Agreement, the Subsidiaries Security Agreement, the Pledge
Agreement, the Subsidiaries Pledge Agreement, the Xxxxxxx Pledge Agreement,
the UAM U.K. Holdings Pledge Agreement, the Assignment of Partnership
Interest, the Trademark Subordination Agreement and any other instruments,
documents, agreements referred to herein or related hereto pursuant to which
the Company or any Subsidiary agrees to grant Liens in favor of the
Collateral Agent for the ratable benefit of the Secured Parties are
hereinafter referred to as the "COLLATERAL DOCUMENTS". The Subsidiaries
Guaranty, the UAM Realty Advisors Guaranty, the Xxxxxxx Guaranty, the UAM
U.K. Holdings Guaranty and any other guaranty executed and delivered in favor
of the holders of the Notes pursuant to Section 10.3 are hereinafter
collectively referred to as the "SUBSIDIARY GUARANTIES". The Collateral
Documents and the Subsidiary Guaranties are hereinafter collectively referred
to as the "SECURITY DOCUMENTS".
The enforcement of the rights and benefits in respect of the Security
Documents and the allocation of proceeds thereof will be subject to a
Collateral Agency and Intercreditor Agreement dated as of the date of this
Agreement in form and substance satisfactory to you
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and your special counsel (the "INTERCREDITOR AGREEMENT") to be entered into
by the Banks and the Collateral Agent with you.
(b) If at any time the Company or any Subsidiary shall grant to any one
or more of the Agent or the Banks additional security of any kind or provide
any one or more of the Agent or the Banks with additional Guaranties or other
credit support of any kind pursuant to the requirements of the Bank Credit
Agreement, then the Company or such Subsidiary shall grant to the holders of
the Notes the same security or Guaranty so that the holders of the Notes
shall at all times be secured on an equal and pro rata basis with the Banks.
All such additional Guaranties shall be given to the holders of the Notes
pursuant to Section 10.3 of this Agreement. All such additional security and
additional Guaranties shall be subject to the provisions of clause (d) of
this Section 2.2.
(c) The holders of the Notes acknowledge and agree that the Liens of the
Collateral Documents in respect of all or any part of the Collateral therein
described may be released in the manner and upon the terms and conditions
provided in the Intercreditor Agreement, PROVIDED, that in the event the
Liens of the Collateral Documents for any reason whatsoever re-attach
pursuant to the terms and provisions of the Collateral Documents or the Bank
Credit Agreement, then the Lien and security interest of the Collateral
Documents shall IPSO FACTO again secure the holders of the Notes on an equal
and pro rata basis.
(d) The holders of the Notes agree to release the obligations of any
Subsidiary under any Subsidiary Guaranty to which it is a party upon the
request of the Company if and to the extent the corresponding guaranties
given pursuant to the Bank Credit Agreement are released and discharged,
PROVIDED that no Default or Event of Default has occurred and is continuing,
and PROVIDED, FURTHER, that in the event any Subsidiary shall again become
obligated under or with respect to any previously discharged Subsidiary
Guaranty pursuant to the terms and provisions of the Subsidiary Guaranty or
the Bank Credit Agreement, then the obligations of such Subsidiary under such
Subsidiary Guaranty shall IPSO FACTO again benefit the holders of the Notes
on an equal and pro rata basis. Likewise, the holders of the Notes agree to
release any additional security granted by the Company or any Subsidiary to
the holders of the Notes pursuant to the provisions of Section 2.2(b) upon
the same terms as provided herein for the release of the obligations of any
Subsidiary under any Subsidiary Guaranty.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Hill & Xxxxxx, Xxx Xxxxxxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, at 10:00 a.m., Boston, Massachusetts
time, at a closing (the "CLOSING") on August 25, 1995 or on such other
Business Day thereafter on or prior to August 31, 1995 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 $100,000
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
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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
534-37165 at The First National Bank of Boston, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000, A.B.A. No. 000-000-000. 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.
SECTION 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:
SECTION 4.1. REPRESENTATIONS AND WARRANTIES. (a) The representations
and warranties of the Company in this Agreement shall be correct when made
and at the time of the Closing.
(b) The representations and warranties of each Guaranty Subsidiary in
the Security Documents to which each is a party shall be correct when made
and at the time of the Closing.
SECTION 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. Neither
the Company nor any Subsidiary shall have entered into any transaction since
the date of the Memorandum that would have been prohibited by Sections 9.7,
9.8 and 10.1 through 10.5 had such Sections applied since such date.
SECTION 4.3. COMPLIANCE CERTIFICATES.
(a) OFFICER'S CERTIFICATE. (i) 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(a), 4.2 and 4.11 have been fulfilled.
(ii) Each Guaranty Subsidiary shall have delivered to you a
certificate of an authorized officer, dated the date of the Closing,
certifying that the conditions specified in Section 4.1(b) have been
fulfilled.
(b) SECRETARY'S CERTIFICATE. (i) 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 the Agreements.
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(ii) Each Guaranty Subsidiary 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
Security Documents to which each such Guaranty Subsidiary is a party.
SECTION 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 Hill & Xxxxxx, counsel for 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 Xxxxxxx and Xxxxxx, 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.
SECTION 4.5. PURCHASE PERMITTED BY APPLICABLE LAW, ETC. On the date of
the Closing your purchase of Notes shall (a) 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, (b) 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 (c) 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.
SECTION 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.
SECTION 4.7. BANK CREDIT AGREEMENT, SECURITY DOCUMENTS, ETC. The Bank
Credit Agreement, the Security Documents, the Intercreditor Agreement and the
Revenue Sharing Agreements shall be in form and substance satisfactory to you
and your special counsel, shall have been duly executed and delivered by the
parties thereto and shall be in full force and effect and you shall have
received true, correct and complete copies of each thereof.
SECTION 4.8. FILING AND RECORDING. The Collateral Documents (and/or
financing statements or similar notices thereof if and to the extent
permitted or required by applicable law) shall have been recorded or filed
for record in such public offices as may be deemed necessary or appropriate
by you or your special counsel in order to perfect the Liens and security
interests granted or conveyed thereby.
SECTION 4.9. PAYMENT OF SPECIAL COUNSEL FEES. Without limiting the
provisions of Section 15.1, the Company shall have paid on or before the
Closing the reasonable fees, charges and disbursements of your special
counsel referred to in Section 4.4 to the extent
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reflected in a statement of such counsel rendered to the Company at least one
Business Day prior to the Closing.
SECTION 4.10. 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.
SECTION 4.11. CHANGES IN CORPORATE STRUCTURE. Except as specified in
Schedule 4.11, the Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and 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.
SECTION 4.12. 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.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
SECTION 5.1. OPRGANIZATION; 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 could 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, the Notes, and the Security Documents to
which it is a party and to perform the provisions hereof and thereof.
SECTION 5.2. AUTHORIZATION, ETC. This Agreement and the Other
Agreements, the Notes and the Security Documents to which it is a party have
been duly authorized by all necessary corporate action on the part of the
Company, and this Agreement and the Security Documents to which it is a party
constitute, and upon execution and delivery thereof each Note will
constitute, legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their respective terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (b) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
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SECTION 5.3. DISCLOSURE. The Company, through its placement agents,
X.X. Xxxxxx Securities Inc. and Bank of Boston, has delivered to you and each
Other Purchaser a copy of a Private Placement Memorandum dated June, 1995
(the "MEMORANDUM"), relating to the transactions contemplated hereby. The
Memorandum fairly describes, in all material respects, the general nature of
the business and principal properties of the Company and its Subsidiaries.
Except as disclosed in Schedule 5.3, this Agreement, the Security Documents,
the Memorandum, the documents, certificates or other writings delivered to
you by or on behalf of the Company in connection with the transactions
contemplated hereby 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 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,
1994, there has been no change in the financial condition, operations,
business, properties or prospects of the Company or any Subsidiary except
changes that individually or in the aggregate could not reasonably be
expected to have a Material Adverse Effect. There is no fact known to the
Company that could reasonably be expected to have a Material Adverse Effect
that has not been set forth herein or in the Memorandum or in the other
documents, certificates and other writings delivered to you by or on behalf
of the Company specifically for use in connection with the transactions
contemplated hereby.
SECTION 5.4. ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES;
AFFILIATES. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) 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,
(ii) of the Company's Affiliates, other than Subsidiaries, and (iii) of the
Company's directors and senior officers.
(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 or Schedule
5.15).
(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
could 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.
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(d) No Subsidiary is a party to, or otherwise subject to, any legal
restriction or any agreement (other than the agreements listed on Schedule
5.4 and customary limitations imposed by corporate law statutes) restricting
the ability of such Subsidiary to pay dividends out of profits or make any
other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
SECTION 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 financial
statements 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).
SECTION 5.6. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The
execution, delivery and performance by the Company of this Agreement, the
Notes, and the Security Documents to which it is a party will not (a)
contravene, result in any breach of, or constitute a default under, or result
in the creation of any Lien (other than the Liens in favor of the Collateral
Agent for the ratable benefit of the Secured Parties) in respect of any
property of the Company or any Subsidiary under, any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter
or by-laws, or any other 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, (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 any Subsidiary or (c) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the Company or any Subsidiary.
SECTION 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, the Notes, or the Security
Documents.
SECTION 5.8. LITIGATION; OBSERVANCE OF AGREEMENTS, STATUTES AND ORDERS.
(a) Except as disclosed in Schedule 5.8, 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, could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term
of any agreement or instrument to which it is a party or by which it is
bound, or any order,
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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,
could reasonably be expected to have a Material Adverse Effect.
SECTION 5.9. TAXES. The Company and its Subsidiaries have filed all 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 levied upon them or their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or in the aggregate
Material or (b) 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 Company knows of no basis for
any other tax or assessment that could reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of Federal, state or other taxes
for all fiscal periods are adequate. 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 December 31, 1981.
SECTION 5.10. TITLE TO PROPERTY; LEASES. The Company and its
Subsidiaries have good and sufficient title to their respective properties
that individually or in the aggregate are Material, 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. All leases that individually or in the aggregate are
Material are valid and subsisting and are in full force and effect in all
material respects.
SECTION 5.11. LICENSES, PERMITS, ETC. Except as disclosed in Schedule
5.11,
(a) 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 individually or in the aggregate are
Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no product
of the Company infringes in any material respect any
license, permit, franchise, authorization, patent,
copyright, service xxxx, trademark, trade name or other
right owned by any other Person; and
(c) to the best knowledge of the Company, there is no
Material violation by any Person of any right of the Company
or any of its Subsidiaries with respect to any
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patent, copyright, service xxxx, trademark, trade name or other
right owned or used by the Company or any of its Subsidiaries.
SECTION 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 could 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) Neither the Company nor any of its ERISA Affiliates maintains or has
any liability with respect to any Plan that is subject to Title IV of ERISA.
(c) The expected post-retirement 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.
(d) The execution and delivery of this Agreement and the Security
Documents 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 to section
4975(c)(1)(A)-(D) of the Code. The representation by the Company in the
first sentence of this Section 5.12(d) is made in reliance upon and subject
to the accuracy of your representation in Section 6.2 as to the sources of
the funds used to pay the purchase price of the Notes to be purchased by you.
SECTION 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 [30] 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.
SECTION 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
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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 5% 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 5% 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.
SECTION 5.15. EXISTING INDEBTEDNESS; FUTURE LIENS. (a) Except as
described therein, Schedule 5.15 sets forth a complete and correct list of
all outstanding Indebtedness of the Company and its Subsidiaries as of the
date of the Closing. 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 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.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject to a Lien not permitted by Section
10.5.
SECTION 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.
SECTION 5.17. STATUS UNDER CERTAIN STATUTES. Neither the Company nor
any Subsidiary is an "investment company" registered or required to be
registered under the Investment Company Act of 1940, as amended, or is
subject to regulation under the Public Utility Holding Company Act of 1935,
as amended, the Interstate Commerce Act, as amended, or the Federal Power
Act, as amended.
SECTION 5.18. ENVIRONMENTAL MATTERS. Neither the Company nor any
Subsidiary has knowledge of any claim or has received any notice of any
claim, and no proceeding has been instituted raising any claim against the
Company or any of its Subsidiaries or any of their respective real properties
now or formerly owned, leased or operated by any of them or other assets,
alleging any damage to the environment or violation of any Environmental
Laws, except, in each case, such as could not reasonably be expected to
result in a Material Adverse Effect. Except as otherwise disclosed to you in
writing:
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(a) neither the Company nor any Subsidiary has
knowledge of any facts which would give rise to any claim,
public or private, of violation of Environmental Laws or
damage to the environment emanating from, occurring on or in
any way related to real properties now or formerly owned,
leased or operated by any of them or to other assets or
their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse
Effect;
(b) neither the Company nor any of its Subsidiaries
has stored any Hazardous Materials on real properties now or
formerly owned, leased or operated by any of them and has
not disposed of any Hazardous Materials in a manner contrary
to any Environmental Laws in each case in any manner that
could reasonably be expected to result in a Material Adverse
Effect; and
(c) all buildings on all real properties now owned,
leased or operated by the Company or any of its Subsidiaries
are in compliance with applicable Environmental Laws, except
where failure to comply could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.19. PLEDGE AGREEMENTS AND SECURITY AGREEMENTS. (a) The
provisions of each of the Pledge Agreement, the Subsidiaries Pledge
Agreement, the Xxxxxxx Pledge Agreement and the UAM U.K. Holdings Pledge
Agreement are effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in all right, title and interest of the Company, UAM
Holdings, Xxxxxxx or UAM U.K. Holdings, as the case may be, in the Pledged
Stock described therein, and when (1) the Collateral Agent receives
possession of the stock certificates representing the shares of Pledged Stock
with respect to which the Collateral Agent has been granted a first priority
security interest, registered in the name of the Collateral Agent or
otherwise accompanied by undated stock powers duly executed in blank, and (2)
a notice (each a "BAILEE NOTICE" and collectively the "BAILEE NOTICES") is
duly sent by the Company to each holder of the certificates evidencing the
Second Priority Pledged Securities (as such term is defined in the Pledge
Agreement) to the effect that the Collateral Agent, for the ratable benefit
of the Secured Parties has been granted a second priority security interest
in such Second Priority Pledged Securities, the Pledge Agreement shall
constitute a fully perfected and continuing first priority or, to the extent
permitted hereunder and under the Pledge Agreement, a fully perfected and
continuing second priority, Lien on and security interest in all right, title
and interest of the Company in the Pledged Stock. The interest of the
Collateral Agent in the Pledged Stock has been duly registered on the books
and records of each of the issuers thereof.
(b) The provisions of each of the Security Agreement, the Subsidiaries
Security Agreement and the Assignment of Partnership Interest are effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in all
right, title and interest of the Company, UAM Holdings, UAM Trademark, UAM
Investment and UAM Realty Advisors, as the case may be, in collateral
described therein and constitute and shall continue to constitute a fully
perfected and continuing first priority Lien on and security interest in all
right, title and interest of the
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Company, UAM Holdings, UAM Trademark, UAM Investment and UAM Realty Advisors,
as the case may be, in such collateral with respect to which a security
interest may be perfected by filing of financing statements under the Uniform
Commercial Code.
SECTION 5.20. REVENUE SHARING AGREEMENTS. The Revenue Sharing Agreements
have each been duly executed and delivered by the Company and by each
Subsidiary party thereto, and each is in full force and effect and has not
been amended in any manner during the period from the date each was delivered
to the Purchasers through the date hereof except as previously disclosed to
the Purchasers in writing. The representations and warranties of the Company
and of the Subsidiaries contained in each Revenue Sharing Agreement are true
and correct in all material respects.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
SECTION 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.
SECTION 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" within the meaning of Department of Labor
Prohibited Transaction Exemption ("PTE") 95-60 (issued July
12, 1995) and the purchase of the Notes by you is eligible
for and satisfies the requirements of PTE 95-60; or
(b) 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 (b), no
employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns
more than 10% of all assets allocated to such pooled
separate account or collective investment fund; or
(c) 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),
the conditions of Part I of the QPAM Exemption are
satisfied, and (i) the identity of such QPAM and (ii) the
names of all employee benefit plans whose assets are
included in
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such investment fund have been disclosed to the
Company in writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) 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 (e); or
(f) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of
ERISA.
The Company shall deliver a certificate on the Closing Date which
certificate shall state that it is neither a "party in interest" (as defined
in Title I, Section 3(14) of ERISA) nor a "disqualified person" (as defined
in Section 4975(e)(2) of the Internal Revenue Code of 1986, as amended), with
respect to any plan identified pursuant to paragraphs (b) or (e) above. 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.
SECTION 7. INFORMATION AS TO COMPANY.
SECTION 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, changes in
shareholders' equity and cash flows of the Company and
its Subsidiaries for such quarter and (in the case of
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
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the Securities and Exchange Commission 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, changes in
shareholders' 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
(A) 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, and
(B) a certificate of such accountants stating
that they have reviewed this Agreement and stating
further whether, in making their audit, they have
become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if
they are aware that any such condition or event then
exists, specifying the nature and period of the
existence thereof (it being understood that such
accountants shall not be liable, directly or
indirectly, for any failure to obtain knowledge of any
Default or Event of Default unless such accountants
should have obtained knowledge thereof in making an
audit in accordance with generally accepted auditing
standards or did not make such an audit),
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, together with the accountant's
certificate described in clause (B) 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 (without exhibits except as
-16-
expressly requested by such holder), and each prospectus and all
amendments thereto filed by the Company or any Subsidiary
with the Securities and Exchange Commission and of all press
releases and other statements made available generally by
the Company or any Subsidiary to the public concerning
developments that are Material;
(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 or that any Person has given any notice or
taken any action with respect to a claimed default hereunder
or that any Person has given any notice or taken any action
with respect to a claimed default of the type referred to in
Section 11(f), 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, could reasonably be expected to have a
Material Adverse Effect;
(f) NOTICES FROM GOVERNMENTAL AUTHORITY -- promptly,
and in any event within 30 days of receipt thereof, copies
of any notice to the Company or any Subsidiary from any
Federal or state Governmental Authority relating to any
order, ruling, statute or other law or regulation that could
reasonably be expected to have a Material Adverse Effect;
and
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(g) 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 or any Subsidiary to
perform its obligations hereunder and under the Notes, and
the Security Documents to which it is a party as from time
to time may be reasonably requested by any such holder of
Notes.
SECTION 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)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) COVENANT COMPLIANCE -- the information (including
detailed calculations, if any) required in order to
establish whether the Company was in compliance with the
requirements of Section 9.7, 9.8, 10.2, 10.4 or 10.5 hereof,
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 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.
SECTION 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) its independent public accountants,
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
(b) 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
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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.
SECTION 8. PREPAYMENT OF THE NOTES.
SECTION 8.1. REQUIRED PREPAYMENTS. In addition to paying the entire
outstanding principal amount and the interest due on the Notes on the
maturity date thereof, the Company agrees that on August 25, 2000 and on each
August 25 thereafter to and including August 25, 2004 the Company will prepay
$25,000,000 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 purchase of the Notes permitted by Section 8.5 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 principal amount of
the Notes is reduced as a result of such prepayment or purchase.
SECTION 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 of 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. 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 8.3), 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.
SECTION 8.3. ALLOCATION OF PARTIAL PREPAYMENTS. In the case of each
partial prepayment of the Notes, 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.
-19-
SECTION 8.4. 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.
SECTION 8.5. 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 upon the payment or
prepayment of the Notes in accordance with the terms of this Agreement, and
the Notes. 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.
SECTION 8.6. 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
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 678" on the Telerate Access
Service (or such other display as may replace Page 678 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
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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 will be determined, if necessary, by
(a) converting U.S. Treasury xxxx 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 duration
closest to and greater than the Remaining Average Life and
(2) the actively traded U.S. Treasury security with the
duration 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 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.
SECTION 9. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
SECTION 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
-21-
governmental authorizations could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
SECTION 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.
SECTION 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 could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 9.4. PAYMENT OF TAXES AND CLAIMS. The Company will, and will
cause each of its Subsidiaries to, file all 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 imposed on them or any of their properties, assets, income
or franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent and all claims for which sums
have become due and payable that have or might become a Lien on properties or
assets of the Company or any Subsidiary, PROVIDED that neither the Company
nor any Subsidiary need pay any such tax or assessment or claims if (a) 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 (b)
the nonpayment of all such taxes and assessments in the aggregate could not
reasonably be expected to have a Material Adverse Effect.
SECTION 9.5. CORPORATE EXISTENCE, ETC. The Company will at all times
preserve and keep in full force and effect its corporate existence. Subject
to Section 10.2, 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 could not, individually
or in the aggregate, have a Material Adverse Effect.
SECTION 9.6. NATURE OF BUSINESS. Neither the Company nor any Subsidiary
will engage in any business if, as a result, the general nature of the
business, taken on a
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consolidated basis, which would then be engaged in by the Company and its
Subsidiaries would be substantially changed from the general nature of the
business engaged in by the Company and its Subsidiaries on the date of this
Agreement.
SECTION 9.7. CONSOLIDATED TANGIBLE NET WORTH. The Company will at all
times keep and maintain Consolidated Tangible Net Worth at an amount not less
than $360,000,000.
SECTION 9.8. FIXED CHARGES COVERAGE RATIO. The Company will at all
times keep and maintain the ratio of Consolidated Net Earnings Available for
Fixed Charges for the immediately preceding four fiscal quarter period to
Consolidated Fixed Charges for such four fiscal quarter period at not less
than 2.50 to 1.00.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
SECTION 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 in the ordinary course and 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.
SECTION 10.2. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. (a) The
Company will not, and will not permit any Subsidiary to, consolidate with or
be a party to a merger with any other Person, or sell, lease or otherwise
dispose of all or substantially all of its assets; PROVIDED that:
(i) any Subsidiary may merge or consolidate with or
into the Company or any Substantially-Owned Subsidiary so
long as in any merger or consolidation involving the
Company, the Company shall be the surviving or continuing
corporation;
(ii) any Substantially-Owned Subsidiary may consolidate
with or be a party to a merger with any Person in a
transaction the purpose of which is for such
Substantially-Owned Subsidiary to acquire all of the
outstanding capital stock of such Person;
(iii) any Subsidiary may sell or otherwise dispose of
(including by way of liquidation or dissolution) all or
substantially all of its assets; PROVIDED that each such
sale or disposition of assets shall be made in compliance
with the terms and provisions of Sections 10.2(b) and
10.2(c), as applicable;
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(iv) the Company may consolidate or merge with or into
any other corporation if (A) the corporation which results
from such consolidation or merger (the "SURVIVING
CORPORATION") is either (1) the Company or (2) a corporation
organized under the laws of any state of the United States
or the District of Columbia which expressly assumes in
writing the due and punctual payment of the principal of and
premium, if any, and interest on all of the Notes, according
to their tenor, and the due and punctual performance and
observation of all of the covenants in the Notes and this
Agreement, and the Security Documents to be performed or
observed by the Company, and the surviving corporation shall
furnish to the holders of the Notes an opinion of counsel
satisfactory to such holders to the effect that the
instrument of assumption has been duly authorized, executed
and delivered and constitutes the legal, valid and binding
contract and agreement of the surviving corporation
enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws
affecting the enforcement of creditors' rights generally and
by general equitable principles, and (B) at the time of such
consolidation or merger and immediately after giving effect
thereto, (1) no Default or Event of Default would exist and
(2) the surviving corporation would be permitted by the
provisions of Section 10.4(a)(v) to incur at least $1.00 of
additional Funded Debt;
(v) the Company may sell or otherwise dispose of all
or substantially all of its assets to any Person for
consideration which represents the fair market value of such
assets (as determined in good faith by the Board of
Directors of the Company) at the time of such sale or other
disposition if (A) the acquiring Person is a corporation
organized under the laws of any state of the United States
or the District of Columbia, (B) the due and punctual
payment of the principal of and premium, if any, and
interest on all the Notes, according to their tenor, and the
due and punctual performance and observance of all of the
covenants in the Notes and in this Agreement, and the
Security Documents to be performed or observed by the
Company are expressly assumed in writing by the acquiring
corporation and the acquiring corporation shall furnish to
the holders of the Notes an opinion of counsel satisfactory
to such holders to the effect that the instrument of
assumption has been duly authorized, executed and delivered
and constitutes the legal, valid and binding contract and
agreement of such acquiring corporation enforceable in
accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general
equitable principles, and (C) at the time of such sale or
disposition and immediately after giving effect thereto,
(1) no Default or Event of Default would exist and (2) the
acquiring corporation would be permitted by the provisions
of Section 10.4(a)(v) to incur at least $1.00 of additional
Funded Debt.
(b) The Company will not, and will not permit any
Subsidiary to, sell, lease, transfer, abandon or otherwise
dispose of assets (except assets sold in the ordinary course of
business for fair market value and except as provided in
Sections 10.2(a)(v) and 10.2(c)); PROVIDED that the foregoing
restrictions do not apply to:
-24-
(i) the sale, lease, transfer or other disposition of
assets of a Subsidiary to the Company or a Substantially-
Owned Subsidiary; or
(ii) the transfer of assets of the Company to a
Substantially-Owned Subsidiary, PROVIDED that such transfer
of assets is made substantially concurrently with the
acquisition of such assets by the Company; or
(iii) the sale, lease, transfer or other disposition of
assets for cash or other tangible or intangible property to
a Person or Persons other than an Affiliate if all of the
following conditions are met:
(A) such assets (valued at net book value) do
not, together with all other assets of the Company and
its Subsidiaries previously disposed of during the
immediately preceding twelve-month period (other than
in the ordinary course of business), exceed 10% of
Consolidated Total Assets, and such assets (valued at
net book value) do not, together with all other assets
of the Company and its Subsidiaries previously disposed
of during the period from the date of this Agreement to
and including the date of the sale of such assets
(other than in the ordinary course of business), exceed
25% of Consolidated Total Assets, in each such case
determined as of the end of the immediately preceding
fiscal quarter;
(B) in the opinion of a Responsible Officer of
the Company if the aggregate sale price of such assets
is $2,500,000 or less and in the opinion of the
Company's Board of Directors if the aggregate sale
price of such assets is more than $2,500,000 the sale
is for fair value and is in the best interests of the
Company or the relevant Subsidiary, as the case may be;
and
(C) immediately after the consummation of the
transaction and after giving effect thereto, (1) no
Default or Event of Default would exist, and (2) the
Company would be permitted by the provisions of
Section 10.4(a)(v) to incur at least $1.00 of
additional Funded Debt;
PROVIDED, HOWEVER, that for purposes of the foregoing
calculation, there shall not be included any assets the
proceeds of which were or are applied within twelve months
of the date of sale of such assets to either (y) the
acquisition of similar assets useful and intended to be used
in the operation of the business of the Company and its
Subsidiaries as described in Section 9.6 and having a fair
market value (as determined in good faith by the Board of
Directors of the Company) at least equal to that of the
assets so disposed of or (z) the prepayment at any
applicable prepayment premium, on a PRO RATA basis, of
Senior Funded Debt of the Company; PROVIDED, FURTHER, that
during the period from the date of any such asset sale to
the date of final application of proceeds in compliance with
the requirements of this Section 10.2(b)(iii) (which period
may not exceed twelve months of the date of such sale), the
Company shall not prepay any Senior Funded Debt with the
proceeds of such asset sale to an extent greater than the
PRO RATA share the holder or holders of such Senior Funded
Debt would have been entitled to if the Company had applied,
on the date of such asset sale,
-25-
all such proceeds to the PRO RATA prepayment of Senior Funded
Debt of the Company in the manner required by clause (z) above
and PROVIDED, FURTHER, that until the Company has satisfied
the requirements contained in the first PROVISO of this
Section 10.2(b)(iii) with respect to any assets sold or
otherwise disposed of which are in excess of what is otherwise
permitted by clause (A) of this Section 10.2(b)(iii), the Company
shall not sell or otherwise dispose of any other assets. It is
understood and agreed by the Company that any such proceeds
paid and applied to the prepayment of the Notes as
hereinabove provided shall be prepaid as and to the extent
provided in Section 8.2.
Computations pursuant to this Section 10.2(b) shall include
dispositions made pursuant to Section 10.2(c) and computations
pursuant to Section 10.2(c) shall include dispositions made
pursuant to this Section 10.2(b).
(c) The Company will not, and will not permit any Subsidiary to, sell,
pledge or otherwise dispose of any shares of the stock (including as "stock"
for the purposes of this Section 10.2(c) any options or warrants to purchase
stock or other Securities exchangeable for or convertible into stock) of a
Subsidiary (said stock, options, warrants and other Securities herein called
"SUBSIDIARY STOCK"), nor will any Subsidiary issue, sell, pledge or otherwise
dispose of any shares of its own Subsidiary Stock, PROVIDED that the
foregoing restrictions do not apply to:
(i) the issue of directors' qualifying shares; or
(ii) the sale or other disposition by a Subsidiary of
Subsidiary Stock to the Company or any Wholly-Owned
Subsidiary or, in the case of Subsidiary Stock of a
Subsidiary formed or acquired after the date of Closing, to
the Company or any Substantially-Owned Subsidiary; or
(iii) the sale or other disposition by the Company of
Subsidiary Stock to any Wholly-Owned Subsidiary or, in the
case of Subsidiary Stock of a Subsidiary formed or acquired
after the date of Closing, to any Substantially-Owned
Subsidiary; or
(iv) the issue of Subsidiary Stock to the Company or a
Wholly-Owned Subsidiary or, in the case of Subsidiary Stock
of a Subsidiary formed or acquired after the date of
Closing, to the Company or any Substantially-Owned
Subsidiary; PROVIDED that concurrently with the issuance of
such Subsidiary Stock the Company shall have complied with
all of the terms and provisions relating to the granting of
a security interest in Subsidiary Stock to the Collateral
Agent as required by the Collateral Documents and the Bank
Credit Agreement; or
(v) the pledge of Subsidiary Stock to the Collateral
Agent pursuant to the Collateral Documents and the Bank
Credit Agreement; or
(vi) the sale, lease, transfer or other disposition at
any one time to a Person (other than directly or indirectly
to an Affiliate) of all or any part of the Investment
-26-
of the Company and its other Subsidiaries in any Subsidiary if all
of the following conditions are met:
(A) the assets (valued at net book value) of such
Subsidiary do not, together with all other assets of
the Company and its Subsidiaries previously disposed of
during the immediately preceding twelve-month period
(other than in the ordinary course of business), exceed
10% of Consolidated Total Assets, and such assets
(valued at net book value) of such Subsidiary do not,
together with all other assets of the Company and its
Subsidiaries previously disposed of during the period
from the date of this Agreement to and including the
date of the sale of such assets (other than in the
ordinary course of business), exceed 25% of
Consolidated Total Assets, in each such case determined
as of the end of the immediately preceding fiscal
quarter;
(B) in the opinion of a Responsible Officer of
the Company if the aggregate sale price of such
Investment is $2,500,000 or less and in the opinion of
the Company's Board of Directors if the aggregate sale
price of such Investment is more than $2,500,000, the
sale is for fair value and is in the best interests of
the Company; and
(C) immediately after the consummation of the
transaction and after giving effect thereto, (y) no
Default or Event of Default would exist, and (z) the
Company would be permitted by the provisions of
Section 10.4(a)(v) to incur at least $1.00 of
additional Funded Debt;
PROVIDED, HOWEVER, that for purposes of the foregoing
calculation, there shall not be included any assets the
proceeds of which were or are applied within twelve months
of the date of sale of such assets to either (y) the
acquisition of similar assets useful and intended to be used
in the operation of the business of the Company and its
Subsidiaries as described in Section 9.6 and having a fair
market value (as determined in good faith by the Board of
Directors of the Company) at least equal to that of the
assets so disposed of or (z) the prepayment at any
applicable prepayment premium, on a PRO RATA basis, of
Senior Funded Debt of the Company; PROVIDED, FURTHER, that
during the period from the date of any such asset sale to
the date of final application of proceeds in compliance with
the requirements of this Section 10.2(c)(vi) (which period
may not exceed twelve months of the date of such sale), the
Company shall not prepay any Senior Funded Debt with the
proceeds of such asset sale to an extent greater than the
PRO RATA share the holder or holders of such Senior Funded
Debt would have been entitled to if the Company had applied,
on the date of such asset sale, all such proceeds to the PRO
RATA prepayment of Senior Funded Debt of the Company in the
manner required by clause (z) above and, PROVIDED, FURTHER,
that until the Company has satisfied the requirements
contained in the first PROVISO of this Section 10.2(c)(vi)
with respect to any assets sold or otherwise disposed of
which are in excess of what is otherwise permitted by
clause (A) of this Section 10.2(c)(vi), the Company shall
not sell or otherwise dispose of any other assets. It is
understood and agreed by the Company that any such proceeds
paid and applied to the prepayment of
-27-
the Notes as hereinabove provided shall be prepaid as and to
the extent provided in Section 8.2.
Computations pursuant to this Section 10.2(c) shall include
dispositions made pursuant to Section 10.2(b) and computations
pursuant to Section 10.2(b) shall include dispositions made
pursuant to this Section 10.2(c). Nothing in this
Section 10.2(c) shall be deemed or construed to prohibit any
transaction permitted by Section 10.2(a).
SECTION 10.3. ADDITIONAL GUARANTIES. If at any time, pursuant to the
terms and conditions of the Bank Credit Agreement, any existing or newly
acquired or formed Subsidiary grants to any one or more of the Agent or the
Banks, a guaranty of obligations owing under the Bank Credit Agreement, the
Company shall cause such Subsidiary to execute and deliver to the holders of
the Notes a Guaranty in substantially the same form as the guaranty agreement
delivered to the Agent or the Banks, or any one or more of them, and the
Company shall deliver, or shall cause to be delivered, to the holders of the
Notes (a) all such certificates, resolutions, legal opinions and other
related items in substantially the same forms as those delivered to and
accepted by the Agent or the Banks, as the case may be, and (b) all such
amendments to this Agreement, the Subsidiaries Guaranties, and the Security
Documents as may reasonably be deemed necessary by the holders of the Notes
in order to reflect the existence of such additional Guaranty of the Notes.
All such Guaranties shall be subject to the provisions of Section 2.2(d) of
this Agreement.
SECTION 10.4. LIMITATIONS ON FUNDED DEBT. (a) The Company will not, and
will not permit any Subsidiary to, create, assume, guarantee or otherwise
incur or in any manner become liable in respect of any Funded Debt, except:
(i) Funded Debt evidenced by the Notes;
(ii) Funded Debt of the Company and its Subsidiaries
outstanding as of the date of the Closing and described in
Schedule 5.15;
(iii) Funded Debt of the Company to UAM Trademark,
PROVIDED that such Funded Debt is evidenced by a promissory
note or notes which are subordinated to all obligations of
the Company to the holders of the Notes under this
Agreement, the Notes and the Security Documents in form and
substance satisfactory to the Required Holders and which
promissory note or notes have been delivered to the
Collateral Agent, duly endorsed to the Collateral Agent, for
the ratable benefit of the Secured Parties;
(iv) Guaranties by the Company's Subsidiaries of Funded
Debt of the Company, which Guaranties have been entered into
pursuant to the terms and provisions and upon the conditions
set forth in the Security Documents, the Bank Credit
Agreement and this Agreement;
(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
-28-
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 22.5% of Consolidated Senior Funded Debt
and to 17.5% of Consolidated Funded Debt, in each such
case outstanding on the last day of each of such four
fiscal quarters, and
(B) 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 15% of Consolidated
Tangible Net Worth;
(vi) Funded Debt of a Subsidiary to the Company or to a
Substantially-Owned Subsidiary.
(b) Indebtedness issued or incurred in accordance with the limitations
of Section 10.4(a) may be renewed, extended or refunded, PROVIDED, that any
increase in principal amount remaining unpaid at the time of such renewal,
extension or refunding shall be within the limitations of Section 10.4(a)(v),
PROVIDED FURTHER, that at the time of such renewal, extension or refunding
and after giving effect thereto, no Default or Event of Default would exist.
(c) Any Person which becomes a Subsidiary after the date hereof shall
for all purposes of this Section 10.4 be deemed to have created, assumed or
incurred at the time it becomes a Subsidiary all Funded Debt of such Person
existing immediately after it becomes a Subsidiary.
(d) The Company shall not effect or permit any change in or amendment to
(i) the terms by which any Subordinated Indebtedness purports to be
subordinated to the payment and performance of the Notes or (ii) the terms
relating to the repayment of any Subordinated Indebtedness (other than any
extensions of the date of payment therefor or any reductions in the amount
thereof or in the rate at which interest or other fees are payable to the
holders thereof in connection therewith).
(e) The Company shall not directly or indirectly make any payment of any
principal of or any redemption, retirement, defeasance or repurchase, in
whole or in part, of any Subordinated Indebtedness or pledge any collateral
therefor, except payments required by the instruments evidencing such
Subordinated Indebtedness and the pledge of collateral as permitted by
Section 10.5(g), PROVIDED that nothing shall preclude the Company from
permitting the conversion of any Subordinated Indebtedness to equity by
exercise of warrants or otherwise (in accordance with its terms).
SECTION 10.5. LIMITATION ON LIENS. The Company will not, and will not
permit any Subsidiary to, create or incur, or suffer to be incurred or to
exist, any Lien on its or their
-29-
property or assets, whether now owned or hereafter acquired, or upon any
income or profits therefrom, or transfer any property for the purpose of
subjecting the same to the payment of obligations in priority to the payment
of its or their general creditors, or acquire or agree to acquire, or permit
any Subsidiary to acquire, any property or assets upon conditional sales
agreements or other title retention devices, except:
(a) Liens for property taxes and assessments or
governmental charges or levies and Liens securing claims or
demands of mechanics and materialmen, PROVIDED that payment
thereof is not at the time required by Section 9.4;
(b) Liens of or resulting from any judgment or award,
the time for the appeal or petition for rehearing of which
shall not have expired, or in respect of which the Company
or a Subsidiary shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in
respect of which a stay of execution pending such appeal or
proceeding for review shall have been secured;
(c) Liens incidental to the conduct of business or the
ownership of properties and assets (including Liens in
connection with worker's compensation, unemployment
insurance and other like laws, warehousemen's and attorneys'
liens and statutory landlords' liens) and Liens to secure
the performance of bids, tenders or trade contracts, or to
secure statutory obligations, surety or appeal bonds or
other Liens of like general nature, in any such case
incurred in the ordinary course of business and not in
connection with the borrowing of money, PROVIDED in each
case, the obligation secured is not overdue or, if overdue,
is being contested in good faith by appropriate actions or
proceedings;
(d) minor survey exceptions or minor encumbrances,
easements or reservations, or rights of others for rights-
of-way, utilities and other similar purposes, or zoning or
other restrictions as to the use of real properties, which
are necessary for the conduct of the activities of the
Company and its Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and
similarly situated and which do not in any event materially
impair their use in the operation of the business of the
Company and its Subsidiaries;
(e) Liens securing Indebtedness of a Subsidiary to the
Company or to another Substantially-Owned Subsidiary;
(f) Liens of the Collateral Documents, and other Liens
given to the Collateral Agent for the ratable benefit of the
Secured Parties pursuant to the terms and provisions and
upon the conditions set forth in the Security Documents or
the Bank Credit Agreement;
(g) Liens existing as of the date of the Closing and
described in Schedule 5.15;
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(h) Liens constituting stock pledge agreements
granting a security interest on capital stock of
Subsidiaries of the Company securing Subordinated
Indebtedness of the Company owing to the Person from whom
the Company has acquired such capital stock, PROVIDED that
in each case the Company has entered into a stock pledge
agreement in respect of the same such capital stock with the
Collateral Agent pledging and granting to the Collateral
Agent a second priority Lien and security interest in such
capital stock pursuant to the terms and provisions and upon
the conditions set forth in the Security Documents and the
Bank Credit Agreement;
(i) Liens created or incurred after the date of the
Closing given to secure the payment of the purchase price
incurred in connection with the acquisition or purchase of
real or personal property or the cost of construction or
improvements to real or personal property, in any such case,
useful and intended to be used in carrying on the business
of the Company or a Subsidiary, PROVIDED that (i) the Lien
shall attach solely to the real or personal property
acquired, purchased, constructed or improved, (ii) such Lien
shall have been created or incurred within 120 days after
the date of acquisition or purchase or the date of
completion of construction or improvement of such real or
personal property, as the case may be, (iii) at the time of
the imposition of the Lien, the aggregate amount remaining
unpaid on all Funded Debt secured by Liens on such real or
personal property, as the case may be (whether or not
assumed by the Company or a Subsidiary) shall not exceed an
amount equal to the lesser of the total acquisition or
purchase price or cost of construction or improvement, as
the case may be, or fair market value of such real or
personal property (as determined in good faith by the Board
of Directors of the Company); and (iv) all such Funded Debt
shall have been incurred within the applicable limitations
provided in Section 10.4(a)(v);
(j) Liens affixed on real or personal property
existing (i) at the time of acquisition thereof, whether or
not the Funded Debt secured thereby is assumed by the
Company or a Subsidiary, so long as such Lien or Liens were
not incurred, extended or renewed in contemplation of such
acquisition or purchase, or (ii) on the property of a Person
at the time such corporation is merged into or consolidated
with the Company or a Subsidiary or at the time of a sale,
lease or other disposition of the properties of a
corporation as an entirety to the Company or a Subsidiary;
PROVIDED that (A) the amount of Funded Debt secured by such
Liens shall not exceed an amount equal to the lesser of the
acquisition or purchase price or fair market value of such
real or personal property (as determined in good faith by
the Board of Directors of the Company) and (B) all such
Funded Debt shall have been incurred within the applicable
limitations provided in Section 10.4(a)(v);
(k) Liens created or incurred after the date of the
Closing given to secure Funded Debt of the Company or any
Subsidiary in addition to the Liens permitted by the
preceding clauses (a) through (j) hereof, PROVIDED that all
Indebtedness secured by such Liens shall have been incurred
within the limitations provided in Sections 10.4(a)(v)(A)
and (B); and
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(l) any extension, renewal or refunding of any Lien
permitted by the preceding clauses (h) through (k) of this
Section 10.5 in respect of the same property theretofore
subject to such Lien in connection with the extension,
renewal or refunding of the Indebtedness secured thereby;
PROVIDED that (i) such extension, renewal or refunding of
Indebtedness shall be without increase in the principal
amount remaining unpaid as of the date of such extension,
renewal or refunding, (ii) such Lien shall attach solely to
the same such property, and (iii) the principal amount
remaining unpaid as of the date of such extension, renewal
or refunding of Indebtedness is less than or equal to the
fair market value of the property (determined in good faith
by the Board or Directors of the Company) to which such Lien
is attached.
SECTION 10.6. NOTES TO RANK PARI PASSU WITH SENIOR INDEBTEDNESS. The
Company will not create, assume, guarantee or otherwise incur or in any
manner be or become liable in respect of any Indebtedness which would or
would purport to rank senior in right of payment to the Notes.
SECTION 10.7. LIMITATIONS ON RESTRICTIVE AGREEMENTS. (a) Except for the
agreements described in subparagraph (d) of Schedule 5.4, the Company will
not, and will not permit any Subsidiary to, enter into, or suffer to exist,
any agreement with any Person which, directly or indirectly, prohibits or
limits the ability of any Subsidiary to (1) pay dividends or make other
distributions to the Company or prepay any Indebtedness owed to the Company
or (2) transfer any of its properties or assets to the Company (other than
with respect to assets subject to Liens permitted by Section 10.5).
(b) The Company will not, and will not permit any Subsidiary to, enter
into, or suffer to exist, any agreement with any Person which in any way
restricts or limits the ability of the Company to amend, modify, supplement
or otherwise alter the terms applicable to the Notes or this Agreement, other
than the restrictions contained in Section 5.21 of the Bank Credit Agreement
as in effect on the Closing Date.
SECTION 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 Section 9.7, 9.8,
10.2(b) or (c) or 10.4; or
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(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 of
a Note (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 by an officer of any Guaranty
Subsidiary in any Subsidiary Guaranty, 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 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 $10,000,000 beyond
any period of grace provided with respect thereto, or
(ii) the Company or any 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 $10,000,000 or of any mortgage, indenture
or other 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 (or one
or more Persons are entitled to declare such Indebtedness to
be), due and payable before its stated maturity or before
its regularly scheduled dates of payment, or (iii) as a
consequence of the occurrence or continuation of any event
or condition (other than the passage of time or the right of
the holder of Indebtedness to convert such Indebtedness into
equity interests), (x) the Company or any Subsidiary has
become obligated to purchase or repay Indebtedness before
its regular maturity or before its regularly scheduled dates
of payment in an aggregate outstanding principal amount of
at least $10,000,000, or (y) one or more Persons have the
right to require the Company or any Subsidiary so to
purchase or repay such Indebtedness; or
(g) the Company or any 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 an 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 (other than the
liquidation of a Subsidiary into the Company or a Wholly-
Owned Subsidiary), or (vi) takes corporate action for the
purpose of any of the foregoing; or
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(h) a court or governmental authority of competent
jurisdiction enters an order appointing, without consent by
the Company or any of its 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 Subsidiaries, or any such petition
shall be filed against the Company or any of its
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 $3,000,000 are rendered
against one or more of the Company and its Subsidiaries and
which judgments are not, within 45 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not
discharged within 45 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) the PBGC shall have instituted
proceedings under ERISA section 4042 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 $500,000, (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 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 Company or any 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, could reasonably be expected to have a Material
Adverse Effect; or
(k) an event of default under any Security Document
shall have occurred and be continuing; or
(l) for any reason any Security Document ceases to be
in full force and effect or any Lien on any of the
Collateral purported to be created by any Collateral
Document ceases to be or is not a valid and perfected Lien
to the extent and with the priority contemplated hereby or
thereby (in any case, other than pursuant to a release
permitted by Section 2.2(c) or (d) or pursuant to the
Intercreditor Agreement or pursuant to any other action
taken by the Collateral Agent under and in accordance with
the terms of the Intercreditor Agreement).
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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.
SECTION 12. REMEDIES ON DEFAULT, ETC.
SECTION 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, any
holder or holders of more than 51% in principal amount of the Notes at the
time outstanding 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 (i) all accrued and unpaid
interest thereon and (ii) 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.
SECTION 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.
SECTION 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 holders of not less than 60% in principal
amount of the Notes then outstanding, by written notice to the
Company, may
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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.
SECTION 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.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
SECTION 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.
SECTION 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 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
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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 $100,000, 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
$100,000. 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.
SECTION 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 $2,500,000, 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.
SECTION 14. PAYMENTS ON NOTES.
SECTION 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 lawful money of the United States of America at
the principal office of the Company in Boston, Massachusetts. 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.
SECTION 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
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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.
SECTION 15. EXPENSES, ETC.
SECTION 15.1. TRANSACTION EXPENSES. (a) 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, the Notes, the Security Documents or the Intercreditor
Agreement (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, the Notes, the Security Documents
or the Intercreditor Agreement or in responding to any subpoena or other
legal process or informal investigative demand issued in connection with this
Agreement, the Notes, the Security Documents or the Intercreditor Agreement,
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 Security Documents and the Intercreditor Agreement.
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).
(b) Without limiting the foregoing, the Company agrees to pay all fees
of the Collateral Agent in connection with the preparation, execution and
delivery of the Intercreditor Agreement and Collateral Documents and the
transactions contemplated thereby, including but not limited to reasonable
attorneys fees; to pay to the Collateral Agent from time to time reasonable
compensation for all services rendered by it under the Intercreditor
Agreement and the Collateral Documents; to indemnify the Collateral Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without gross negligence or willful misconduct on its part, arising out of or
in connection with the acceptance or administration of the Intercreditor
Agreement and Collateral Documents, including, but not limited to, the costs
and expenses of defending itself against any claim or
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liability in connection with the exercise or performance of any of its powers
or duties thereunder.
SECTION 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, the Notes, the
Security Documents and the Intercreditor Agreement, and the termination of
this Agreement, the Security Documents or the Intercreditor Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement, the Notes, the Security Documents
and the Intercreditor Agreement, 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 or the
Security Documents shall be deemed representations and warranties of the
Company under this Agreement and the Security Documents. Subject to the
preceding sentence, this Agreement, the Notes, and the Security Documents
embody the entire agreement and understanding between you and the Company and
supersede all prior agreements and understandings relating to the subject
matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
SECTION 17.1. REQUIREMENTS. (a) 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 Sections 8, 11(a), 11(b), 12, 17 or 20.
(b) The Collateral Documents may be amended in the manner prescribed in
the Intercreditor Agreement, and the Subsidiary Guaranties and the
Intercreditor Agreement may be amended in the manner prescribed in each such
document, and all amendments to the
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Collateral Documents, the Subsidiary Guaranties and the Intercreditor
Agreement obtained in conformity with such requirements shall bind all
holders of the Notes.
SECTION 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 or any of the Security Documents. 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 of any waiver or amendment of any of the terms and provisions hereof
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.
SECTION 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.
SECTION 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, the Notes, the
Security Documents or the Intercreditor Agreement, 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.
-40-
SECTION 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). 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 attention of the
Treasurer, 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.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and the Security Documents 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.
SECTION 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
-41-
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, trustees, 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
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.
SECTION 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
-42-
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.
SECTION 22. MISCELLANEOUS.
SECTION 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.
SECTION 22.2. PAYMENTS DUE ON NON-BUSINESS DAYS. Anything in this
Agreement, the Notes, or the Security Documents 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.
SECTION 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 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.
SECTION 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.
SECTION 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.
SECTION 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 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.
-43-
SECTION 22.7. ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO XXX. (a) The
Company agrees to indemnify and hold harmless from time to time the
Purchasers and each other holder of the Notes, each Person claiming by,
through, under or on account of any of the foregoing and the respective
directors, officers, counsel and employees of each of the foregoing Persons
(the "INDEMNIFIED PARTIES") from and against any and all losses, claims, cost
recovery actions, administrative orders or proceedings, damages, personal
injuries, property damages and liabilities to which any such Indemnified
Party may become subject under any Environmental Law applicable to, and
arising out of the ownership or operation by the Company or any of its
Subsidiaries, of any of their respective properties, (1) as a result of the
breach, violation or non-compliance by the Company or any of its Subsidiaries
with any Environmental Law applicable to the Company or any of its
Subsidiaries, (2) due to past ownership of any of their respective properties
or past activity on any of their respective properties which, though lawful
and fully permissible at the time, could result in present liability, (3) as
a result of the presence, release or disposal of Hazardous Materials by the
Company or any of its Subsidiaries, or at any of their respective properties,
or (4) in connection with any environmental, health or safety condition at
any property of the Company or its Subsidiaries. The provisions of this
Section 22.7 shall survive termination of this Agreement by payment in full
of all of the Notes issued hereunder and shall survive the transfer of any
Note or Notes issued hereunder.
(b) Without limiting the provisions of clause (a) of this Section 22.7,
the Company and its successors and assigns hereby waive, release and covenant
not to bring against any of the Indemnified Parties any demand, claim, cost
recovery action or lawsuit they may now or have or which may hereafter accrue
arising from (1) any Environmental Law now or hereafter enacted applicable
to, and arising out of the ownership or operations of, the Company or any of
its Subsidiaries, (2) the presence, use, release, storage, treatment or
disposal of Hazardous Materials on or at any of the properties owned or
operated by the Company or any of its Subsidiaries, (3) the breach, violation
or non-compliance by the Company or any of its Subsidiaries with any
Environmental Law or environmental covenant applicable to, and arising out of
the ownership or operations of, the Company or any of its Subsidiaries, or
(4) any environmental, health or safety condition at any property of the
Company or any of its Subsidiaries.
-44-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
ALLSTATE LIFE INSURANCE COMPANY
By
---------------------------------
Name XXXXXXXX X. XXXXXX
By
---------------------------------
Name XXXXXX X. XXXXX
Authorized Signatories
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
BANKERS SECURITY LIFE INSURANCE SOCIETY
By
---------------------------------
Its Assistant Treasurer
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
CM LIFE INSURANCE COMPANY
By
---------------------------------
Its Senior Investment Officer
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY
By
---------------------------------
Its Senior Investment Officer
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
GENERAL AMERICAN LIFE INSURANCE COMPANY
By
---------------------------------
Its XXXXXXX X. XXXXXXXXXX
PRESIDENT, GAIMCO
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
GWL PROPERTIES, INC.
By
---------------------------------
Its Authorized Signatory
By
---------------------------------
Its Secretary
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
JEFFERSON PILOT LIFE INSURANCE COMPANY
By
---------------------------------
Its Second Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
LINCOLN NATIONAL REINSURANCE
(BARBADOS) LIMITED
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
LONDON LIFE INTERNATIONAL
REINSURANCE CORPORATION
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By
---------------------------------
Its
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY
By
---------------------------------
Its XXXX X. XXXXXXX
VICE PRESIDENT
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of August 25, 1995.
---------
NORTHERN LIFE INSURANCE COMPANY
By
---------------------------------
Its Assistant Treasurer
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY
By
---------------------------------
Its Authorized Representative
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
OXFORD LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
PACIFIC MUTUAL LIFE INSURANCE COMPANY
By
---------------------------------
Xxxxx X. Xxxxx
Assistant Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
PROVIDENT LIFE AND ACCIDENT INSURANCE
COMPANY
By
---------------------------------
Its
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its
Accepted as of Aug 25, 1995.
------
PROVIDENT LIFE AND ACCIDENT INSURANCE
COMPANY
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
SECURITY-CONNECTICUT LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.,
Its Attorney-In-Fact
By
---------------------------------
Its Vice President
-45-
The execution hereof by you shall constitute a contract between us for the
uses and purposes hereinabove set forth, and this Agreement 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
---------------------------------
Its President and Secretary
Accepted as of Aug 25, 1995.
------
THE TRAVELERS INSURANCE COMPANY
By
---------------------------------
XXXXX X. XXXXXXXXXX
Its 2nd Vice President
-45-
INFORMATION RELATING TO PURCHASERS
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
ALLSTATE LIFE INSURANCE COMPANY $5,000,000
Private Placements Department $4,000,000
0000 Xxxxxxx Xxxx, Xxx. X0X $1,000,000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Private Placements Department
Telephone Number: (000) 000-0000
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds (identifying each payment with name of Issuer, the
Private Placement Number preceded by "DPP" and the payment as principal,
interest or premium) in the exact format as follows:
BBK = Xxxxxx Trust and Savings Bank
ABA #000000000]
BNF = Allstate Life Insurance Company
Account #000-000-0
ORG = United Asset Management Corporation
OBI = DPP - 909420 A*2 ---
Payment Due Date (MM/DD/YY) ---
P ______ (enter "P" and the amount of
principal being remitted, for
example, P5000000.00) ---
I ______ (enter "I" and the amount of
interest being remitted, for example,
I225000.00)
SCHEDULE A
(to Note Purchase Agreement)
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations---Private Placements
0000 Xxxxxxx Xxxx, Xxx. X0X
Xxxxxxxxxx, Xxxxxxxx 00000 - 7127
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-2
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
BANKERS SECURITY LIFE INSURANCE SOCIETY $1,000,000
x/x Xxxxxxxxxx Xxxxxx Capital, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Ref: Xxx Xxxxx
Telephone Number: (000) 000-0000
Telefacsimile Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal or interest") to:
Chemical NYC/GEOCUST
New York, NY
ABA #000000000
for credit to: Bankers Security Life Insurance Society
Account Number N9254120
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: XXXXXX & CO.
Taxpayer I.D. Number: 00-0000000
A-3
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
CM LIFE INSURANCE COMPANY $4,000,000
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Private Placements, MS 272
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
The Bank of New York (ABA #000000000)
BNF: IOC566
Attention: P&I Department
For: CM Life Insurance Co.
referencing issuer, interest rate, PPN Number, maturity and breakdown of
principal, interest and/or premium
Notices
All notices of payments on or in respect of the Notes and written confirmation
of each such payment to be addressed to:
CM Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
X. X. Xxx 00000
Attention: X&X Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
with a copy to:
CM Life Insurance Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Private Placements, MS 272
A-4
All notices and communications other than those in respect to payments (such as
annual reports, statements, waivers, amendments) to be addressed as first
provided above, with a copy to:
CM Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
X. X. Xxx 00000
Attention: X&X Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Name of Nominee in which Notes are to be issued: CM Life Insurance Co.
Taxpayer I.D. Number: 00-0000000
A-5
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY $13,000,000
000 Xxxxxx Xxxxxx $3,000,000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Private Placements, MS 272
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
90940 A*2, principal, premium or interest") to:
The Bank of New York (ABA #000000000)
BNF: IOC566
Attention: P&I Department
For: Connecticut Mutual Life Insurance Co.
referencing issuer, interest rate, PPN Number, maturity and breakdown of
principal, interest and/or premium
Notices
All notices of payments on or in respect of the Notes and written confirmation
of each such payment to be addressed to:
Connecticut Mutual Life Insurance Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Private Placements, MS 272
All notices and communications other than those in respect to payments (such as
annual reports, statements, waivers, amendments) to be addressed as first
provided above, with a copy to:
Connecticut Mutual Life Insurance Company
x/x Xxx Xxxx xx Xxx Xxxx
X. X. Xxx 00000
Attention: X&X Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Name of Nominee in which Notes are to be issued: Connecticut Mutual Life
Insurance Co.
Taxpayer I.D. Number: 00-0000000
A-6
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
GENERAL AMERICAN LIFE INSURANCE COMPANY $6,000,000
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Securities Department
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, interest or premium") to:
The Bank of New York (ABA #000000000)
BNF: IOC566
Attention: P&I Department
for credit to: General American Life Insurance Company
Account Number 128800
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
General American Life Insurance Company
P. O. Xxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Investment Accounting
and
GALICO
x/x Xxx Xxxx xx Xxx Xxxx
P. O. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000
A-7
All notices and communications, other than those in respect to payments to be
addressed to:
General American Life Insurance Company
P. X. Xxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Securities Division
and
GALICO
x/x Xxx Xxxx xx Xxx Xxxx
P. O. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000
Name of Nominee in which Notes are to be issued: GALICO
Taxpayer I.D. Number: 00-0000000
A-8
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
GWL PROPERTIES, INC. $10,000,000
c/o Great-West Life &
Annuity Insurance Company
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: U.S. Private Placements
3rd Floor, Tower 2
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest and confirmation of principal
balance") to:
ABA #000000000
NW MPLS/TRUST CLEARING ACCT Number 00-00-000
Attention: Account Number 00000000
Notices
All notices of payments, on or in respect of the Notes and written confirmation
of each such payment to:
Norwest Bank Minnesota, N.A.
000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx Bldg., 0xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Income Collection
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-9
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
JEFFERSON-PILOT LIFE INSURANCE COMPANY $10,000,000
X.X. Xxx 00000
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Securities Administration 3630
Telefacsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
NationsBank of North Carolina (ABA #000 000 000)
Charlotte, North Carolina
(Greensboro office)
for credit to: Jefferson-Pilot Life Insurance Company
Account Number 000-000-000
Attention: Cash Management (000) 000-0000
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment (including name and address of bank
transmitting payment), to be addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-10
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $1,000,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (CRP)
Custodial Account Number 98231
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-11
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $2,000,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (IOB)
Custodial Account Number 98201
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-12
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $5,000,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (IAL)
Custodial Account Number 98194
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-13
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $1,000,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (IAD)
Custodial Account Number 98195
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-14
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $3,500,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (GAI)
Custodial Account Number 98208
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-15
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $1,500,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (UIN)
Custodial Account Number 98127
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-16
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE LINCOLN NATIONAL LIFE INSURANCE $1,350,000
COMPANY
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
Private Placement Processing
New York, New York
Account Number 00-000-000
for the account of: The Lincoln National Life Insurance Company (FPB)
Custodial Account Number 98166
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-17
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
LINCOLN NATIONAL REINSURANCE $450,000
(BARBADOS) LIMITED
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
New York, New York
Private Placement Processing
A/C #00-000-000
for the account of: Lincoln National Reinsurance (Barbados) Limited
Custody Account Number 98168
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-18
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
LONDON LIFE INTERNATIONAL REINSURANCE $300,000
CORPORATION
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
New York, New York
Private Placement Processing
A/C #00-000-000
for the account of: London Life International Reinsurance Corporation
Custody Account Number 98167
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: XXXXXXX & CO
Taxpayer I.D. Number for London Life International Reinsurance Corporation: 98-
0107498
Taxpayer I.D. Number for XXXXXXX & CO: 00-0000000
A-19
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $8,000,000
COMPANY
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Chase Manhattan Bank, N.A. (ABA #000000000)
0 Xxxxx XxxxxXxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: Massachusetts Mutual Life Insurance Company
Pension Management Account Number 000-0000000
with telephone advice to the Securities Custody and Collection Department of
Massachusetts Mutual Life Insurance Company at (000) 000-0000.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and corporate actions, to be addressed
Attention: Securities Custody and Collection Department, F381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-20
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $8,000,000
COMPANY
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Investment Division
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest ") to:
Chase Manhattan Bank, N.A. (ABA #000000000)
0 Xxxxx XxxxxXxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: Massachusetts Mutual Life Insurance Company
IFM Traditional Account Number 000-0000000
with telephone advice to the Securities Custody and Collection Department of
Massachusetts Mutual Life Insurance Company at (000) 000-0000.
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and corporate actions, to be addressed
Attention: Securities Custody and Collection Department, F381.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-21
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
NEW ENGLAND MUTUAL LIFE INSURANCE $10,000,000
COMPANY
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Private Placements Group
Payments
All payments on or in respect of the Notes to be made prior to 12:00 p.m., New
York City time, by bank wire transfer of Federal or other immediately available
funds (identifying each payment as "United Asset Management Corporation, 7.12%
Senior Secured Notes due 2005, PPN 909420 A*2, principal, premium or interest")
to:
Chemical Bank (ABA #000000000)
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
for credit to: New England Mutual Life Insurance Company
Account Number 144025987
With instructions to give advice of payment to the Chemical's Money Transfer
Department setting forth the following information:
Private Placement Number: 909420 A*2
Borrower: United Asset Management Corporation
Issue (loan rate and maturity): 7.12% Senior Secured Notes due 2005
Due date of Current Payment: ________
Confirmation of each such payment setting forth the same information shall be
sent concurrently with such payment to:
New England Mutual Life Insurance Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Securities Accounting Department
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment, and written confirmation of each such payment,
to be addressed Attention: Securities Accounting Department.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-22
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
NORTHERN LIFE INSURANCE COMPANY $4,000,000
x/x Xxxxxxxxxx Xxxxxx Capital
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Securities Department
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes, due 2005, PPN
909420 A*2, principal, premium or interest") to:
First National Bank N.A./Mpls. (ABA #000000000)
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx: Securities Accounting
for credit to: Northern Life Insurance Company
Account Number 1602-3237-6105
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-23
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
NORTHWESTERN NATIONAL LIFE INSURANCE $5,000,000
COMPANY
x/x Xxxxxxxxxx Xxxxxx Capital
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Securities Department
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes, due 2005, PPN
909420 A*2, principal, premium or interest") to:
First National Bank N.A./Mpls. (ABA #000000000)
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Securities Accounting
for credit to: Northwestern National Life Insurance Company
Account Number 1102-4001-4461
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-24
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
OXFORD LIFE INSURANCE COMPANY $900,000
c/o Lincoln Investment Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments/Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Bankers Trust Company (ABA #000000000)
New York, New York
Private Placement Processing
A/C #00-000-000
for the account of: Oxford Life Insurance Company
Custody Account Number 98169
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above with duplicate notices with respect to payments to:
Bankers Trust Company
P. O. Box 000
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: XXXXXXX & CO
Taxpayer I.D. Number for Oxford Life Insurance Company: 00-0000000
Taxpayer I.D. Number for XXXXXXX & CO: 00-0000000
A-25
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
PACIFIC MUTUAL LIFE INSURANCE COMPANY $5,000,000
000 Xxxxxxx Xxxxxx Xxxxx $5,000,000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Fixed Income Securities Department
Telephone: (000) 000-0000; Facsimile: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, $____________ principal and/or $___________ interest") to:
U.S. Trust NYC (ABA #000000000)
Attention: Bond Principal and Interest Collection Department
For Pacific Mutual Life Insurance Company A/C Number: 47363300
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment,
to be addressed:
Pacific Mutual Life Insurance Company
Attention: Securities Administration
X.X. Xxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
With a copy to:
Xxxxxx & Co.
X.X. Xxx 000, Xxxx Xxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Name of Nominee in which Notes are to be issued: XXXXXX & CO
Taxpayer I.D. Number: 00-0000000
A-26
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
PROVIDENT LIFE AND ACCIDENT $10,000,000
INSURANCE COMPANY
Private Placements
Investment Department
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telefacsimile: (000) 000-0000*
Confirmation: (000) 000-0000*
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, interest or premium"), accompanied by confirmation of
principal balance, to:
PEPA & CO.
c/o Bankers Trust Company (ABA #000000000)
New York, New York
PVT PLACEMENT PROC #99 911 145
For credit to: Provident Life and Accident Insurance Company
Account Number 99296
with sufficient information to identify the source and application of funds
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: PEPA & CO.
Taxpayer I.D. Number for PEPA & CO.: 00-0000000
A-27
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
SECURITY-CONNECTICUT LIFE INSURANCE $1,000,000
COMPANY
c/o Lincoln Investment Management. Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Investments---Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
Shawmut Bank Connecticut, N.A. (ABA #000000000)
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
for credit to: Security-Connecticut Life Insurance Company (SPDA)
Account Number 0000000
Notices
All notices of payment on or in respect of the Notes and written confirmation of
each such payment to:
Security-Connecticut Life Insurance Company
00 Xxxxxxxx Xxxxx
Xxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxx
All notices and communications other than those in respect to payments to be
addressed as first provided above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
A-28
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE TRAVELERS INSURANCE COMPANY $18,000,000
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Securities Department---Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
The Chase Manhattan Bank, N.A. (ABA #000000000)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: The Travelers Insurance Company---
Consolidated Private Placement Account Number 000-0-000000
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed Attention: Securities Department ---Cashier.
Name of Nominee in which Notes are to be issued: TRAL & CO
Taxpayer I.D. Number: 00-0000000
A-29
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE TRAVELERS INSURANCE COMPANY $2,000,000
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Securities Department---Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"United Asset Management Corporation, 7.12% Senior Secured Notes due 2005, PPN
909420 A*2, principal, premium or interest") to:
The Chase Manhattan Bank, N.A. (ABA #000000000)
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
for credit to: The Travelers Insurance Company---
Consolidated Private Placement Account Number 910-2-720472
Notices
All notices and communications to be addressed as first provided above, except
notices with respect to payment and written confirmation of each such payment,
to be addressed Attention: Securities Department ---Cashier.
Name of Nominee in which Notes are to be issued: XXXX & CO
Taxpayer I.D. Number: 00-0000000
A-30
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, (a) 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, and (b) any Person beneficially owning or holding,
directly or indirectly, 10% or more of any class of voting or equity
interests of the Company or any Subsidiary or any corporation of which the
Company and its Subsidiaries beneficially own or hold, in the aggregate,
directly or indirectly, 10% or more of any class of voting or equity
interests. 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.
"AGENT" shall mean Xxxxxx Guaranty Trust Company of New York, as Agent
under the Bank Credit Agreement, and any successor thereto.
"BAILEE NOTICE" is defined in Section 5.19(a).
"BANK COLLATERAL AGENT" shall mean The First National Bank of Boston, as
Collateral Agent under the Bank Credit Agreement, and any successor thereto.
"BANK CREDIT AGREEMENT" means that certain Second Amended and Restated
Credit agreement dated as of November 18, 1994 among the Company, Xxxxxx
Guaranty Trust Company of New York, as Agent, The First National Bank of
Boston, as Collateral Agent, and the several banks and other financial
institutions from time to time parties thereto, including the Loan Documents
(as defined therein on the date hereof), as from time to time extended,
supplemented, amended, restated or otherwise modified, and including any
replacement revolving credit facility.
"BANKS" means the several banks and other financial institutions from time
to time parties to the Bank Credit Agreement.
"BANK SECURED DEBT" means all Indebtedness of the Company and its
Subsidiaries outstanding at any time and from time to time under the Bank
Credit Agreement secured by the Lien of the Collateral Documents, including
without limitation "Money Market Loans" as defined in, and permitted by, the
Bank Credit Agreement.
"BUSINESS DAY" means (a) for the purposes of Section 8.6 only, 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, and (b) for the purposes
of any other provision of this Agreement, any day other than a Saturday, a
Sunday or a day on which commercial banks in New York, New York or Boston,
Massachusetts are required or authorized to be closed.
SCHEDULE B
(to Note Purchase Agreement)
"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.
"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.
"COLLATERAL" means collectively (a) the Collateral as such term is defined
in each of the Pledge Agreement, the Subsidiaries Pledge Agreement, the
Security Agreement, the Subsidiaries Security Agreement, the Xxxxxxx Pledge
Agreement and the Assignment of Partnership Interest, (b) the Pledged
Securities as such term is defined in the UAM U.K. Holdings Pledge Agreement
and (c) to the extent not otherwise included in clauses (a) and (b) above,
and subject to the provisions of Sections 2.2(c) and (d) any other collateral
security granted, pledged or otherwise given in favor of or for the benefit
of the holders of the Notes as Secured Parties pursuant to the requirements
of any Security Document.
"COLLATERAL AGENT" means The First National Bank of Boston, a national
banking association, as Collateral Agent for the Secured Parties.
"COLLATERAL DOCUMENTS" is defined in Section 2.2(a).
"COMPANY" means United Asset Management Corporation, a Delaware
corporation.
"CONFIDENTIAL INFORMATION" is defined in Section 20.
"CONSOLIDATED FIXED CHARGES" for any period means on a consolidated basis
the sum of (a) all Rentals (other than Rentals on Capital Leases) payable
during such period by the Company and its Subsidiaries, and (b) all Interest
Expense on all Indebtedness (including the interest component of Rentals on
Capital Leases) of the Company and its Subsidiaries.
"CONSOLIDATED FUND DEBT" means all Funded Debt of the Company and its
Subsidiaries, determined on a consolidated basis eliminating intercompany
items.
"CONSOLIDATED NET EARNINGS" for any period means the gross revenues of the
Company and its Subsidiaries for such period LESS all expenses and other
proper charges (including taxes on income), determined on a consolidated
basis after eliminating earnings or losses attributable to outstanding
Minority Interests, but excluding in any event;
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets, and any taxes on such excluded
gains and any tax deductions or credits on account of any such excluded
losses;
(b) the proceeds of any life insurance policy;
B-2
(c) net earnings and losses of any Subsidiary accrued prior to the
date it became a Subsidiary;
(d) net earnings and losses of any corporation (other than a
Subsidiary), substantially all the assets of which have been acquired in any
manner by the Company or any Subsidiary, realized by such corporation prior
to the date of such acquisition;
(e) net earnings and losses of any corporation (other than a
Subsidiary) with which the Company or a Subsidiary shall have consolidated
or which shall have merged into or with the Company or a Subsidiary prior
to the date of such consolidation or merger;
(f) net earnings of any business entity (other than a Subsidiary) in
which the Company or any Subsidiary has an ownership interest unless such
net earnings shall have actually been received by the Company or such
Subsidiary in the form of cash distributions;
(g) any portion of the net earnings of any Subsidiary which for any
reason is unavailable for payment of dividends to the Company or any other
Subsidiary;
(h) earnings resulting from any reappraisal, revaluation or write-up
of assets by the Company or any Subsidiary;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary at the date of acquisition thereof over the amount
invested in such Subsidiary;
(j) any gain arising from the acquisition of any securities of the
Company or any Subsidiary;
(k) any reversal of any contingency reserve, except to the extent
that provision for such contingency reserve shall have been made from
income arising during such period; and
(l) any other extraordinary gain or loss;
all determined in accordance with GAAP.
"CONSOLIDATED NET EARNINGS AVAILABLE FOR FIXED CHARGES" for any period
means the sum of (a) Consolidated Net Earnings during such period PLUS (to
the extent deducted in determining Consolidated Net Earnings), (b) all
provisions for any Federal, state or other income taxes made by the Company
and its Subsidiaries during such period, (c) all provisions for depreciation
and amortization (other than amortization of debt discount) made by the
Company and its Subsidiaries during such period and (d) Consolidated Fixed
Charges during such period.
B-3
"CONSOLIDATED OPERATING CASH FLOW" for any period means the sum of
(a) Consolidated Net Earnings during such period PLUS (to the extent deducted
in determining Consolidated Net Earnings) (b) all provisions for depreciation
and amortization of costs assigned to contracts acquired and other
intangibles made by the Company and its Subsidiaries during such period. For
purposes of any determination of Consolidated Operating Cash Flow pursuant to
Section 10.4(a)(v), the Company may include, on a pro forma basis as
described below, EARNINGS PLUS (TO THE EXTENT DEDUCTED IN DETERMINING SUCH
EARNINGS) ALL PROVISIONS FOR DEPRECIATION AND AMORTIZATION OF COSTS ASSIGNED
TO CONTRACTS ACQUIRED of any Person acquired during the immediately preceding
four fiscal quarters, for that portion of the subject four quarter fiscal
period which precedes such acquisition, PROVIDED that concurrently with such
determination, the Company shall have furnished to the holders of the Notes
the supporting documentation described below. Pro forma earnings of any
acquired Person shall be calculated for purposes of the preceding sentence in
accordance with the requirements of Regulation S-X of the Securities and
Exchange Commission and Accounting Principles Board Opinion No. 16, applied
on a basis consistent with that used in the Company's periodic filings with
the Securities Exchange Commission. Whenever Consolidated Operating Cash Flow
as calculated pursuant hereto includes the adjusted pro forma earnings of an
acquired Person as permitted above, supporting documentation delivered to the
holders of the Notes shall include (i) all pro forma financial information
and all financial statements of the acquired Person which would be required
to be filed by reporting persons under Form 8-K of the Securities Exchange
Commission, and (ii) a certificate of a Senior Financial Officer in form
satisfactory to the holders of the Notes to the effect that such calculation
of Consolidated Operating Cash Flow is true and correct and made in
accordance with the forgoing provisions.
"CONSOLIDATED SENIOR FUNDED DEBT" means all Senior Funded Debt of the
Company and its Subsidiaries, determined on a consolidated basis eliminating
inter-company items.
"CONSOLIDATED TANGIBLE NET WORTH" means as of the date of any
determination thereof, the arithmetic sum of:
(a) the amount of the capital stock accounts (net of treasury stock,
at cost) PLUS (or MINUS in the case of deficit) the surplus and retained
earnings of the Company and its Subsidiaries,
MINUS
(b) the net book value, after deducting any reserves applicable
thereto, of all items of the following character which are included in the
assets of the Company and its Subsidiaries, to wit:
(1) the incremental increase in an asset resulting from any
reappraisal, revaluation or write-up of assets; and
(2) goodwill, patents, patent applications, permits, trademarks,
trade names, copyrights, licenses, franchises, experimental expense,
organizational
B-4
expense, unamortized debt discount and expense, the excess of cost of
shares acquired over book value of related assets and such other assets
as are properly classified as "INTANGIBLE ASSETS" in accordance with
GAAP;
all determined in accordance with GAAP, PROVIDED that in no event shall
"COSTS ASSIGNED TO CONTRACTS ACQUIRED, NET OF ACCUMULATED AMORTIZATION", as
set forth in the financial statements of the Company, be deducted in any
computation of Consolidated Tangible Net Worth.
"CONSOLIDATED TOTAL ASSETS" means, as of the date of any determination
thereof, total assets of the Company and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"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) 2% per
annum above the rate of interest stated in clause (a) of the first paragraph
of the Notes or (ii) 2% over the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City, New York 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.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FIRST AMENDMENT AND CONSENT" shall mean that certain First Amendment and
Consent dated as of August 1, 1995 by and among the Company, UAM Realty, UAM
Holdings, UAM Trademark, UAM Investment, Xxxxxxx, UAM U.K. Holdings, the Banks,
the Agent and the Bank Collateral Agent, pursuant to which, INTER ALIA, The
First National Bank of Boston has agreed to act as Collateral Agent under each
of the Collateral Documents for and on behalf of the Secured Parties, and
pursuant to which the Security Documents have been amended to provide that the
obligations of the Company and the Guaranty Subsidiaries in respect of this
B-5
Agreement, the Other Agreements, the Notes and the Subsidiary Guaranties
constitute secured obligations under such Security Documents in order to secure,
on a ratable basis, the Secured Parties.
"FUNDED DEBT" of any Person means (a) all Indebtedness of such Person or
Indebtedness which has been incurred in connection with the acquisition of
assets in each case having a final maturity of one or more than one year from
the date of origin thereof (or which is renewable or extendible at the option
of the obligor for a period or periods more than one year from the date of
origin, including in any event, any Indebtedness which is renewable or
extendible under any revolving or similar credit agreement), including all
payments in respect thereof that are required to be made within one year from
the date of any determination of Funded Debt, whether or not the obligation to
make such payments shall constitute a current liability of the obligor under
GAAP, (b) all Rentals of such Person payable pursuant to any Capital Lease, and
(c) all Guaranties by such Person of Funded Debt of others.
"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
B-6
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.
"GUARANTY SUBSIDIARY" means each of UAM Holdings, UAM Trademark, UAM
Investment, Xxxxxxx, UAM U.K. Holdings and UAM Realty Advisors and any other
Subsidiary executing and delivering a Subsidiary Guaranty pursuant to the
requirements of Section 10.3 of this Agreement.
"HAZARDOUS MATERIAL" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety,
the removal of which may be required or the generation, manufacture,
refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage,
seepage, or filtration of which is or shall be restricted, prohibited or
penalized by any applicable law (including, without limitation, asbestos,
urea formaldehyde foam insulation and polychlorinated biphenyls).
"XXXXXXX" means Xxxxxxx Financial Ltd., an Illinois corporation and a
Subsidiary of the Company.
"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 and its redemption obligations
in respect of mandatorily redeemable Preferred Stock;
(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;
B-7
(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);
(e) all its liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and
other financial institutions (whether or not representing obligations for
borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Indebtedness of any Person shall include all obligations of such Person of
the character described in clauses (a) through (g) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"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.
"INTERCREDITOR AGREEMENT" is defined in Section 2.2(a).
"INTEREST EXPENSE" of the Company and its Subsidiaries for any period
means all interest and all amortization of debt discount and expense on any
particular Indebtedness (including, without limitation, payment-in-kind, zero
coupon and other like securities) for which such calculations are being made.
"INVESTMENTS" means all investments, in cash or by delivery of property,
made directly or indirectly in any Person, whether by acquisition of shares
of capital stock, Indebtedness or other obligations or Securities or by loan,
advance, capital contribution or otherwise; PROVIDED that "INVESTMENTS" shall
not mean or include routine investments in personal property to be used or
consumed in the ordinary course of business.
"LIEN" means any interest in property securing an obligation owed to, or a
claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but
not limited to the security interest lien arising from a mortgage,
encumbrance, pledge, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes. The term "LIEN" shall include
reservations, exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases and other title exceptions and encumbrances
(including, with respect to stock, stockholder agreements, voting trust
agreements, buy-back agreements and all similar arrangements) affecting
property. For the purposes of this Agreement, the Company or a
B-8
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, Capital Lease or
other arrangement pursuant to which title to the property has been retained
by or vested in some other Person for security purposes and such retention or
vesting shall constitute a Lien.
"MAKE-WHOLE AMOUNT" is defined in Section 8.6.
"MATERIAL" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Company
and its Subsidiaries taken as a whole.
"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, the Notes, and the
Security Documents, or (c) the validity or enforceability of this Agreement,
the Notes, or any of the Security Documents.
"MEMORANDUM" is defined in Section 5.3.
"MINORITY INTERESTS" means any shares of stock of any class of a
Subsidiary (other than directors' qualifying shares as required by law) that
are not owned by the Company and/or one or more of its Subsidiaries.
Minority Interests shall be valued by valuing Minority Interests constituting
Preferred Stock at the voluntary or involuntary liquidating value of such
Preferred Stock, whichever is greater, and by valuing Minority Interests
constituting common stock at the book value of capital and surplus applicable
thereto adjusted, if necessary, to reflect any changes from the book value of
such common stock required by the foregoing method of valuing Minority
Interests in Preferred Stock.
"MULTIEMPLOYER PLAN" means any Plan that is a "multiemployer plan" (as
such term is defined in section 4001(a)(3) of ERISA).
"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.
B-9
"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.
"PLEDGED STOCK" means the shares of capital stock of Subsidiaries which
are pledged by the Company, UAM Holdings, Xxxxxxx or UAM U.K. Holdings, as
the case may be, to the Collateral Agent pursuant to the Pledge Agreement,
the Subsidiaries Pledge Agreement, the Xxxxxxx Pledge Agreement or the UAM
U.K. Holdings Pledge Agreement, as the case may be, and any other shares of
capital stock of Subsidiaries pledged pursuant to the requirements of any
Security Document.
"PREFERRED STOCK" means any class of capital stock of a corporation that
is preferred over any other class of capital stock of such corporation as to
the payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"PROPERTY" or "PROPERTIES" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
"QPAM EXEMPTION" means Prohibited Transaction Class Exemption 84-14 issued
by the United States Department of Labor.
"RENTALS" means and include as of the date of any determination thereof
all fixed payments (including as such all payments which the lessee is
obligated to make to the lessor on termination of the lease or surrender of
the property) payable by the Company or a Subsidiary, as lessee or sublessee
under a lease of real or personal property, but shall be exclusive of any
amounts required to be paid by the Company or a Subsidiary (whether or not
designated as rents or additional rents) on account of maintenance, repairs,
insurance, taxes and similar charges. Fixed rents under any so-called
"PERCENTAGE LEASES" shall be computed solely on the basis of the minimum
rents, if any, required to be paid by the lessee regardless of sales volume
or gross revenues.
"REVENUE SHARING AGREEMENTS" means all existing and future agreements
among the Company, any of its Subsidiaries and Persons comprising management
of any such Subsidiaries, pursuant to which a portion of the revenues
generated by such Subsidiary are paid to the Company, as the same may be
amended, supplemented or otherwise modified from time to time.
"REQUIRED HOLDERS" means, at any time, the holders of at least 51% in
principal amount of the Notes at the time outstanding (exclusive of Notes
then owned by the Company or any of its Affiliates).
B-10
"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.
"SECURED PARTIES" shall mean the Secured Parties as defined in the
Intercreditor Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time.
"SECURITY DOCUMENTS" is defined in Section 2.2(a).
"SENIOR FINANCIAL OFFICER" means the chief financial officer or treasurer
of the Company.
"SENIOR FUNDED DEBT" means any Funded Debt which is not expressed to be
subordinate or junior in rank to any other Funded Debt and which by the terms
of the security evidencing such Senior Funded Debt or the instrument or
agreement under or pursuant to which such Senior Funded Debt is outstanding,
expressly prohibits the Person which has issued such Senior Funded Debt from
creating, assuming, guaranteeing or otherwise incurring any Indebtedness
which would or would purport to be senior in rank to such Senior Funded Debt.
"SUBORDINATED INDEBTEDNESS" means the Company's (a) Subordinated
Indebtedness designated as such in Schedule 5.15 and (b) all future
Indebtedness incurred by the Company, which Indebtedness is specifically
subordinated to payment in full of the Notes and Indebtedness owing to the
Banks pursuant to documentation substantially in the form of Exhibit 2 hereto
or pursuant to terms and conditions satisfactory to the Required Holders.
"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.
"SUBSIDIARY GUARANTIES" is defined in Section 2.2(a).
"SUBSTANTIALLY-OWNED SUBSIDIARY" means, at any time, any Subsidiary eighty
(80%) or more 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 Substantially-Owned Subsidiaries at such time.
B-11
"SWAPS" means, with respect to any Person, payment obligations with
respect to interest rate swaps, currency swaps and similar obligations
obligating such Person to make payments, whether periodically or upon the
happening of a contingency. For the purposes of this Agreement, the amount
of the obligation under any Swap shall be the amount determined in respect
thereof as of the end of the then most recently ended fiscal quarter of such
Person, based on the assumption that such Swap had terminated at the end of
such fiscal quarter, and in making such determination, if any agreement
relating to such Swap provides for the netting of amounts payable by and to
such Person thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the amount
of such obligation shall be the net amount so determined.
"UAM HOLDINGS" means United Asset Management Holdings, Inc., a Delaware
corporation and a Subsidiary of the Company.
"UAM INVESTMENT" means UAM Investment Corporation, a Delaware corporation
and a Subsidiary of the Company.
"UAM REALTY ADVISORS" means UAM Realty Advisors Investment Corporation, a
Delaware corporation and a Subsidiary of UAM Holdings.
"UAM TRADEMARK" means United Asset Management Trademark, Inc., a Delaware
corporation and a Subsidiary of the Company.
"UAM U.K. HOLDINGS" means United Asset Management U.K. Holdings, Inc., a
Delaware corporation and 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.
B-12
SCHEDULE 4.11
(TO NOTE PURCHASE AGREEMENT)
CHANGE IN CORPORATE STRUCTURE
The Company succeeded to certain liabilities of Pilgrim Xxxxxx &
Associates, Ltd. in connection with its acquisition by the Company on
April 28, 1995.
SCHEDULE 5.3
(TO NOTE PURCHASE AGREEMENT)
DISCLOSURE
None
SCHEDULE 5.4
(TO NOTE PURCHASE AGREEMENT)
ORGANIZATION AND OWNERSHIP OF SHARES OF SUBSIDIARIES; AFFILIATES
(a) (1) See attached list of the Subsidiaries of the
Company.
(2) The Company has no Affiliates (other than
Subsidiaries) other than Yamaichi Xxxxxx
Xxxxxxxxx Limited (Scotland), Xxxxxx Avenir
Finance (France), Euractions Management Limited
(Scotland), JMB Industrial Properties Fund I
and II, L.P. (CA), Pennsylvania Associates I, II,
III, IV, and V, L.P. (DE), and JMB Institutional
Apartments I and II, L.P. (IL).
(3) See attached list of the directors and senior
officers of the Company.
(b) (1) All of the outstanding shares of capital
stock or similar equity interests of each
Subsidiary on the attached list of
Subsidiaries of the Company shown as being
owned by the Company or another Subsidiary
have been pledged to the Collateral Agent
other than the shares of capital stock or
similar equity interests of those
Subsidiaries which are designated on the
attached list of Subsidiaries of the Company
as an Exempted Subsidiary, a Xxxxxxx Exempted
Subsidiary, a Xxxxxx Xxxxxxxxx Exempted
Subsidiary, a Special Exempted Subsidiary, or
as not pledged to Collateral Agent.
(d) (1) See attached list of Revenue Sharing
Agreements.
(2) See Bank Credit Agreement.
(3) Pursuant to Section 5.2(B) of the Amended and
Restated Loan Agreement dated as of March 15, 1995
between LaSalle National Bank and Xxxxxxx Financial
Ltd. ("Xxxxxxx"), Xxxxxxx is restricted from declaring
or paying dividends or making distributions to
shareholders other than distributions required by the
Revenue Sharing Agreement between Xxxxxxx and the Company.
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
Alpha Global Fixed Income Managers, Inc. (DE) 100 100% Company
Analytic Investment Management, Inc. (CA) 3,400 100% Company
Barrow, Hanley, Xxxxxxxxx & Xxxxxxx, Inc. (NV) 100 100% Company
Cambiar Investors, Inc. (CO) 100 100% Company
The Xxxxxxxx Group, Inc. (DE) 100 100% Company
**/***Timber Pacific Properties, Inc. (OR) 100 100% The Xxxxxxxx Group, Inc.
Chicago Asset Management Company (DE) 100 100% Company
Xxxxx & Xxxxxx, Inc. (PA) 5,462 100% Company
**/***Xxxxxx & Xxxxxxx, Inc. (PA) 100 100% Xxxxx & Xxxxxx, Inc.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 1
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
X. X. XxXxx & Company, Incorporated (PA) 21,100 Class A
7,430 Class B 100% Company
Fiduciary Management Associates, Inc. (DE) 900 100% Company
GSB Investment Management, Inc. (DE) 100 100% Company
Xxxxxxxx, Xxxxx & Associates, Inc. (DE) 100 100% Company
HIMCO, INC., d/b/a Xxxxxx Investment Management
Company (CA) 400 100% Company
Investment Counselors of Maryland, Inc. (MD) 7,500 100% Company
Investment Research Company (IL) 100 100% Company
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 2
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
**JAM Asset Management, Inc. (DE)
(application pending as an investment adviser) 100 100% Company
3/**JAM Asset Management, L.P. (DE)
(application pending as an investment adviser) --- 66% Company
--- 1% JAM Asset Management, Inc.
Xxxx X. Xxxxxx Asset Management Company, Inc. (DE) 100 100% Company
**Ki Pacific Asset Management, Inc. (DE) 100 100% Company
**/*** Ki Pacific Asset Management (Bermuda)
Limited (Bermuda) 12,000 100% Ki Pacific Asset
Management, Inc.
**/***Ki Pacific Capital, Inc. (DE) 100 100% Ki Pacific Asset
Management, Inc.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 3
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
L&B Realty Advisors, Inc. (DE) 3,910 95% Company (3,710)
**/***L&B Holdings, Inc. (DE) 100 100% L&B Realty Advisors, Inc.
**/***L&B Institutional Property Managers, Inc. (DE) 1,000 100% L&B Realty Advisors, Inc.
**/***L&B Institutional Property Managers of
Arizona, Inc. (AZ) 1,000 100% L&B Institutional Property
Managers, Inc.
2/**L&B Institutional Property Managers of
California, Inc. (CA) 1,000 100% L&B Institutional Property
Managers, Inc.
**/***L&B Institutional Property Managers of
Missouri, Inc. (MO) 1,000 100% L&B Institutional Property
Managers, Inc.
**/***L&B Institutional Property Managers of New
York, Inc. (NY) 1,000 100% L&B Institutional Property
Managers, Inc.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 4
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
**/***L&B Institutional Property Managers of
North Carolina, Inc. (NC) 1,000 100% L&B Institutional Property
Managers, Inc.
**/*** L&B Realty Acquisitions, Inc. (DE) 1,000 100% L&B Institutional Property
Managers, Inc.
3/L&B Real Estate Counsel (TX general partnership) --- 100% L&B Holdings, Inc.
Xxxxxx, Xxxxxx & Xxxxxxx, Inc. (DE) 100 100% Company
2/**Investment Trust Company (CO) 25,000 100% Xxxxxx, Xxxxxx & Xxxxxxx,
Inc.
Xxxxxxx'x Asset Management, Inc. (PA) 100 100% Company
Northern Capital Management Incorporated (WI) 100 100% Company
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 5
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
NWQ Investment Management Company, Inc. (MA) 200,000 100% United Asset Management
Holdings, Inc.
Olympic Capital Management, Inc. (WA) 100 100% Company
Pilgrim Xxxxxx & Associates, Ltd. (DE) 100 100% Company
**Regis Administrative Services, Inc. (DE)
(formerly named Newco Acquisition Corp.) 100 100% Company
*/**Regis Retirement Plan Services, Inc. (MA)
(formerly named RFI Distributors, Inc.) 7,000 100% Company
Rice, Hall, Xxxxx & Associates (CA) 100 100% Company
Rothschild Pell Xxxxxx, Inc. (MD)
(formerly named The Rothschild Company) 638.6316 100% Company
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 6
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY)
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
Sirach Capital Management, Inc. (WA) 100 100% Company
*Spectrum Asset Management, Inc. (CT) 100 100% Company
Sterling Capital Management Company (NC) 7,757 100% Company
2/*/**Sterling Capital Distributors, Inc. (NC) 5,000 100% Sterling Capital Management
Company
Suffolk Capital Management, Inc. (DE) 100 100% Company
Xxxxxxxx, Xxxxxx & Xxxxxxxx, Inc. (VA) 2,898 100% Company
**UAM Investment Corporation (DE) 100 100% Company
UAM Investment Services, Inc. (DE) 1,000 100% Company
**United Asset Management Holdings, Inc. (DE) 100 100% Company
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 7
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
Acadian Asset Management, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
Xxxxx Square Investors Corporation (DE) 100 100% United Asset Management
Holdings, Inc.
HT Investors, Inc. (DE) 100 100% Xxxxx Square Investors
Corporation
First Pacific Advisors, Inc. (MA) 200,000 100% United Asset Management
Holdings, Inc.
*/**/***FPA Fund Distributors, Inc. (CA) 100 100% First Pacific Advisors,
Inc.
Xxxxxx, Mastrovita & Xxxxxx, Inc. (DE) 50,000 100% United Asset Management
Holdings, Inc.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 8
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxxx Management Company, Inc. (DE) 449.5 100% United Asset Management
Holdings, Inc.
Pell, Xxxxxx & Co., Inc. (DE) 100 100% United Asset Management
Holdings, Inc.
**/***Atlantic Trust Company, National Association 3 100% Pell, Xxxxxx & Co., Inc.
2/**Boston Harbor Trust Company, National Association 4,670 100% Pell, Xxxxxx & Co., Inc.
Provident Investment Counsel, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
Xxx Xxxxxxx Investment Management, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 9
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
**UAM Realty Advisors Investment Corporation (DE) 100 100% United Asset Management
Holdings, Inc.
**United Asset Management (Japan), Inc. (DE) 1,000 100% Company
**United Asset Management Trademark, Inc. (DE) 100 100% Company
**Xxxxxxx Financial Ltd. (IL) 100 100% Company
**Xxxxxxx Financial Services Ltd. (IL) 1,000 100% Xxxxxxx Financial Ltd.
+/**Heitman FEW 2 Corp. (IL) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/**HMI Management Company (IL) 9,400 100% Xxxxxxx Financial Services
Ltd.
+/**Philadelphian Realty Corporation (DE) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/**Heitman Holdings, Ltd. (DE) 1,000 100% Xxxxxxx Financial Services
Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 10
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Heitman Equities Corporation (DE) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/*/**Xxxxxxx Securities Corporation (DE) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/**HRC - OCC, Inc. (NV)
(formerly named HRC, Inc.) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/**HRC - York Corporation (IL) 1,000 100% Heitman Realty Corporation
+/**Heitman Realty Corporation (IL) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/**Heitman Snowmass Corporation (IL) 100 100% Xxxxxxx Financial Services
Ltd.
+/**HRC III, Inc. (NV) 100 100% Xxxxxxx Financial Services
Ltd.
+/**H.E. One, Inc. (DE) 3,385 100% Xxxxxxx Financial Services
Ltd.
+/**HRC IV, Inc. (NV) 100 100% Xxxxxxx Financial Services
Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 11
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**HRC V, Inc. (NV) 100 100% Xxxxxxx Financial Services
Ltd.
+/**HRC VI, Inc. (DE) 100 100% Xxxxxxx Financial Services
Ltd.
+/**Castle Loan Corporation (IL) 1,000 100% Xxxxxxx Financial Services
Ltd.
+/**HRC - LLC, Inc. (WY) 100 100% Xxxxxxx Financial Services
Ltd.
+/**Xxxxxxx Financial U.K. Ltd. (IL) 1,000 100% Xxxxxxx Financial Ltd.
Heitman/JMB Advisory Corporation (IL)
(formerly named Heitman Advisory Corporation) 1,000 100% Xxxxxxx Financial Ltd.
+/**Heitman/JMB Institutional Realty Advisors, Inc. (IL) 1,000 100% Heitman/JMB Advisory
Corporation
+/**Lender Services of Iowa Ltd. (IA) 1,000 100% Heitman/JMB Advisory
Corporation
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 12
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
**Heitman Properties Ltd. (IL) 39,763 100% Xxxxxxx Financial Ltd.
+/**Heitman Properties of Rhode Island Ltd.
(formerly named Castle Leasing Inc.) (RI) 1,000 100%Heitman Properties Ltd.
+/**Centre Properties Ltd. (IL) 1,000 100% Heitman Properties Ltd.
+/**Xxxxxxx Florida Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Pennsylvania Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**HMC Insurance Agency, Inc. (IL) 1,000 100% Heitman Properties Ltd.
+/**Heitman Minnesota Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Kentucky Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Virginia Management Inc. (WI) 1,000 100% Heitman Properties Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 13
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Heitman Ohio Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Nevada Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Wisconsin Management, Inc. (WI) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Iowa Ltd. (DE) 1,000 100% Heitman Properties Ltd.
+/**Xxxxxxx X.X. Properties Ltd. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Louisiana Ltd. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Michigan Ltd. (MI) 100 100% Heitman Properties Ltd.
+/**Heitman Properties of Missouri Ltd. (MO) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Arizona Ltd. (AZ) 1,000 100% Heitman Properties Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 14
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Heitman Properties of Indiana Ltd. (IN) 1,000 100% Heitman Properties Ltd.
+/**Heitman Corporate Plaza, Inc. (KY) 100 100% Heitman Properties Ltd.
+/**Heitman Mayfair Corporation (NV) 2,500 100% Heitman Properties Ltd.
+/**Heitman Properties of Oregon Ltd. (OR) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Mississippi Ltd. (MS) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of New Mexico Ltd. (NM) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of New York Ltd. (NY) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of North Carolina Ltd. (NC) 1,000 100% Heitman Properties Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 15
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Heitman Properties of South Carolina Ltd. (SC) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Tennessee Ltd. (TN) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Texas Ltd., Inc. (TX)
(surviving entity after change of name of merger
of Heitman Properties of Texas, Ltd. (DE) with
and into Heitman Texas Management, Inc. (TX)) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Nebraska Ltd. (NE) 1,000 100% Heitman Properties Ltd.
+/**Property Security Services Ltd. (MI) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Alabama Ltd. (DE) 10,000 100% Heitman Properties Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Heitman Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 16
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Xxxxxxx Properties of Colorado, Ltd. (CO) 100
(preferred) 100%
800 80% Xxxxxxx Properties Ltd.
(common)
+/**Xxxxxxx Properties of Connecticut, Ltd. (CT) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Properties of Delaware, Ltd. (DE) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Properties of Georgia, Ltd. (GA) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Properties of Maryland, Ltd. (MD) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Properties of Massachusetts, Ltd. (MA) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Properties of New Jersey, Ltd. (NJ) 1,000 100% Xxxxxxx Properties Ltd.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 17
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Xxxxxxx Properties of Oklahoma, Ltd. (OK) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Properties of Washington, Ltd. (WA) 1,000 100% Xxxxxxx Properties Ltd.
+/**Xxxxxxx Development Co. Ltd. (IL) 1,000 100% Xxxxxxx Properties Ltd.
+PRA Securities Advisors, Inc. (IL) 1,000 100% Xxxxxxx Financial Ltd.
+/** Xxxxxxx/JMB Institutional Advisors (IL
general partnership) --- 60% Xxxxxxx/JMB Advisory
Corporation (IL)
--- 40% Xxxxxxx/JMB Institutional
Realty Advisors, Inc. (IL)
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 18
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
+/**Xxxxxxx/JMB Endowment Advisors, L.P. (IL) --- 60% Xxxxxxx/JMB Advisory
Corporation (IL)
--- 40% Xxxxxxx/JMB Institutional
Realty Advisors, Inc. (IL)
+/**Xxxxxxx/JMB Institutional Realty Advisors,
L.P. (IL) --- 99% Xxxxxxx/JMB Advisory
Corporation (IL)
--- 1% Xxxxxxx/JMB Institutional
Realty Advisors, Inc. (IL)
**United Asset Management U.K. Holdings,
Inc. (DE) 1 100% Company
**Xxxxxx Xxxxxxxxx Holdings Limited (Scotland) 8,092,361 100% United Asset Management
U.K. Holdings, Inc.
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 19
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
1/**Xxxxxx Xxxxxxxxx International Limited
(Scotland) 1,000,000
(ordinary) 100% Xxxxxx Xxxxxxxxx Limited
400,000 A00% Xxxxxx Xxxxxxxxx Limited
(preferred)
1/**Xxxxxx Xxxxxxxxx Limited (Scotland) 1,001,000 100% Xxxxxx Xxxxxxxxx Holdings
Limited
1/**Xxxxxx Xxxxxxxxx Investment Trust Management
Limited (Scotland) 2 100% Xxxxxx Xxxxxxxxx Limited
1/**Xxxxxx Xxxxxxxxx Private Equity Limited
(Scotland) (formerly named Xxxxxx Xxxxxxxxx
Developments Limited) 2 100% Xxxxxx Xxxxxxxxx Limited
1/**Xxxxxx Xxxxxxxxx Europe Limited (Scotland) 2 100% Xxxxxx Xxxxxxxxx Limited
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 20
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
1/**Xxxxxx Xxxxxxxxx Asset Management Limited
(Scotland) 500 100% Xxxxxx Xxxxxxxxx Limited
1/**Xxxxxx Xxxxxxxxx Personal Asset Management
Limited (Scotland) 100,000 60% Xxxxxx Xxxxxxxxx Limited
(ordinary)
400,000 100% Xxxxxx Xxxxxxxxx Limited
(preferred)
1/**Xxxxxx Xxxxxxxxx (General Partner) Limited
(England) 5,000 100% Xxxxxx Xxxxxxxxx Limited
1/**BIG (General Partner) Limited (Scotland) 5,000 100% Xxxxxx Xxxxxxxxx Limited
1/**Xxxxxx Xxxxxxxxx Unit Trust Management
Limited (Scotland) 50,000 100% Xxxxxx Xxxxxxxxx Limited
1/**Embankment Properties (Management) Limited
(Jersey) 25,000 67% Xxxxxx Xxxxxxxxx Limited
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 21
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
----------------------------------------------------------------------------------------------------------------------------------
1/**Xxxxxx Xxxxxxxxx (Jersey) Limited
(Jersey) 25,000 100% Xxxxxx Xxxxxxxxx Limited
1/**Xxxxxx Xxxxxxxxx Buyout Management (Jersey)
Limited (Jersey) 27,824 100% Xxxxxx Xxxxxxxxx Limited
* = Registered as a broker-dealer under Section 15 of the Exchange Act
** = Not registered as an investment adviser under Section 203 of the
Investment Advisers Act
*** = Exempted Subsidiary
+ = Xxxxxxx Exempted Subsidiary
1 = Xxxxxx Xxxxxxxxx Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 22
SCHEDULE 5.5
(to Note Purchase Agreement)
----------------------------
Financial Statements
--------------------
(1) Audited consolidated financial statements of the Company and its
Subsidiaries for the years ended December 31, 1990, December 31, 1991,
December 31, 1992, December 31, 1993 and December 31, 1994.
SCHEDULE 5.8
(to Note Purchase Agreement)
----------------------------
Litigation
----------
None
SCHEDULE 5.11
(TO NOTE PURCHASE AGREEMENT)
LICENSES, PERMITS, ETC.
None
SCHEDULE 5.14
(TO NOTE PURCHASE AGREEMENT)
USE OF PROCEEDS
All of the proceeds of the sale of the Notes (after payment of all expenses
related to the issuance and sale of the Notes) will be used to repay
Indebtedness under the Bank Credit Agreement.
SCHEDULE 5.15
(to Note Purchase Agreement)
INDEBTEDNESS
(1) See description of Indebtedness of the Company (including Money Market
Loans (as defined in the Bank Credit Agreement)) to the Banks attached
hereto;
(2) See description of Subordinated Indebtedness of the Company attached
hereto;
(3) Indebtedness of the Company to UAM Trademark in the outstanding
principal amount of $56,325,000;
(4) Indebtedness of Barrow, Hanley, Xxxxxxxxx & Xxxxxxx, Inc., a Nevada
corporation and a Subsidiary of the Company ("BHMS"), to UAM
Investment under the Non-Negotiable Note, dated July 27, 1988, made by
BHMS payable to the Company in the principal amount of $75,000,000 and
endorsed by the Company to the order of UAM Investment;
(5) Indebtedness of GSB Investment Management, Inc., a Delaware
corporation and a Subsidiary of the Company ("GSB"), to UAM Investment
under the 8.5% Note Due December 31, 2023, dated December 31, 1993,
made by GSB payable to the order of UAM Investment in the principal
amount of $27,500,000;
(6) Indebtedness of L&B Realty Advisors, Inc., a Delaware corporation and
a Subsidiary of the Company ("L&B"), to UAM Investment under the 8.5%
Note Due December 31, 2003, dated December 17, 1993, made by L&B
payable to the order of UAM Investment in the principal amount of
$27,000,000;
(7) Xxxxxxx Permitted Indebtedness (as defined in the Bank Credit
Agreement), a description of which is attached hereto;
(8) Indebtedness of the Company in an amount not to exceed $3,500,000 to
certain guarantors of Indebtedness of Xxxxxxx Financial Ltd. to
LaSalle National Bank, pursuant to an agreement made by the Company in
favor
of such guarantors to reimburse such guarantors in an amount not to
exceed $3,500,000 upon the occurrence of a payment default under the
Indebtedness of Xxxxxxx Financial Ltd. to LaSalle National Bank, the
Company's obligation to make such reimbursement being conditioned upon
the prior payment in full of all amounts owing by such guarantors of
such Indebtedness;
XXXXXXX PERMITTED INDEBTEDNESS
(1) Indebtedness of Xxxxxxx Financial Ltd. to LaSalle National Bank in the
principal sum not to exceed $12,000,000 pursuant to the terms of a Loan
Agreement dated as of March 15, 1994, as amended (the "LaSalle Loan
Agreement"), by and between LaSalle National Bank and Xxxxxxx Financial
Ltd. and a Revolving Credit Note dated as of March 15, 1994 of Xxxxxxx
Financial Ltd. payable to the order of LaSalle National Bank in the
principal sum of $12,000,000.
(2) A Guaranty in favor of LaSalle National Bank of the obligations of
Xxxxxxx Financial Ltd. to LaSalle National Bank by the following:
(a) Xxxxxxx/JMB Advisory Corporation and all of its subsidiary
corporations; (b) Xxxxxxx Financial Services Ltd. and all of its
subsidiary corporations; (c) Xxxxxxx Properties Ltd. and all of its
subsidiary corporations; (d) Xxxxxxx Financial U.K. Ltd.; (e) HFL-A
Partnership and HFL-B Partnership; and (f) each corporation
identified on any future amended Schedule 1.1 to the LaSalle Loan
Agreement as a "New Guarantor".
(3) Indebtedness of Xxxxxxx Properties Ltd. to Bank of America Illinois in
the original principal sum of $5,000,000 (of which $600,000 is
outstanding) pursuant to the terms of a Credit Agreement dated as of
March 5, 1992, as amended, by and between Xxxxxxx Properties Ltd.
and Bank of America Illinois and a Note dated March 5, 1992, as
amended, of Xxxxxxx Properties Ltd. payable to the order of Bank of
America Illinois in the principal sum of $5,000,000.
(4) Indebtedness of Xxxxxxx Properties Ltd. to Bank of America Illinois in the
original principal sum of $3,600,000 (of which $915,000 is outstanding)
pursuant to the terms of a First Amended and Restated Credit Agreement
dated as of April 6, 1992, as amended (the "Bank of America Loan
Agreement"), by and between Xxxxxxx Properties Ltd. and Bank of America
Illinois and a Second Amended and Restated Note dated as of June 14,
1994 of Xxxxxxx Properties Ltd. payable to the order of Bank of America
Illinois in the principal sum of $1,096,277.17.
(5) Guaranty of Payment dated March 5, 1992 of Xxxxxxx Financial Ltd. in favor
of Bank of America Illinois of the obligations of Xxxxxxx Properties Ltd.
to Bank of America Illinois.
(6) A Guaranty in favor of Bank of America Illinois of the obligations of
Xxxxxxx Properties Ltd. to Bank of America Illinois by all of the
subsidiary corporations of Xxxxxxx Properties Ltd. as required under the
terms of the Bank of America Loan Agreement.
(7) Indebtedness of Xxxxxxx Holdings Ltd. and Xxxxxxx Financial Services Ltd.
as co-makers of a Promissory Note dated October 25, 1991 payable to the
order of General Electrical Capital Corporation in the principal sum of
$1,890,000.
(8) Indebtedness of Xxxxxxx Holdings Ltd. and Xxxxxxx Financial Services Ltd.
as co-makers of a Promissory Note dated October 25, 1991 payable to the
order of General Electric Capital Corporation in the principal sum of
$1,450,000.
(9) Corporate Guaranty dated October 25, 1991 of Xxxxxxx Financial Ltd. in
favor of General Electric Capital Corporation of the obligations of
Xxxxxxx Financial Services Ltd. to General Electric Capital Corporation.
(10) Corporate Guaranty dated October 25, 1991 of Xxxxxxx Financial Ltd. in
favor of General Electric Capital Corporation of the obligations of
Xxxxxxx Holdings Ltd. to General Electric Capital Corporation.
(11) Corporate Guaranty dated October 25, 1991 of Xxxxxxx Advisory Corporation
in favor of General Electric Capital Corporation of the obligations of
Xxxxxxx Financial Services Ltd. to General Electric Capital Corporation.
(12) Corporate Guaranty dated October 25, 1991 of Xxxxxxx Advisory Corporation
in favor of General Electric Capital Corporation of the obligations of
Xxxxxxx Holdings Ltd. to General Electric Capital Corporation.
Personal and Confidential
-------------------------
UNITED ASSET MANAGEMENT CORPORATION
MEMORANDUM
TO: Xxxxx Xxxxxxx
FROM: United Asset Management Corporation
DATE: August 7, 1995
SUBJECT: Senior Debt Balance
Maturity Date Bank Amount
------------- ---- ------
8/14/95 Xxxxxx $ 5,000,000
8/24/95 Credit Lyonnais 3,000,000
8/31/95 Xxxxxx 16,000,000
9/5/95 Credit Lyonnais 7,000,000
------------
Total Money Market Debt $ 31,000,000
Revolver Debt - Prime Tranche A $ 37,500,000
- Eurodollar Tranche A 8/14/95 120,000,000
------------
Total Senior Debt Outstanding $188,500,000
United Asset Management Corporation
1995 Sub Indebtedness Schedule
June, 1995
Printed On: 07/28/95
FINAL
-----
Note Interest
Affiliate Note Holder Total Notes Due Date Rate
------------------------------------------------------------------------------
BHMS Xxxxx X. Xxxxxx 0.00 01/07/95 0.085
Xxxxx X. Xxxxxx 0.00 03/01/95 0.085
Xxxxx X. Xxxxxx 379,356.08 03/01/96 0.085
Xxxxx X. Xxxxxx 379,356.08 03/01/97 0.085
Xxxxx X. Xxxxxx 0.00 03/01/95 0.085
Xxxxx X. Xxxxxx 381,163.65 03/01/96 0.085
Xxxxx X. Xxxxxx 381,163.65 03/01/97 0.085
Xxxxx X. Xxxxxx 381,163.65 03/01/98 0.085
------------
1,902,203.11
Xxxxxx X. Xxxxxx, Xx. 0.00 01/07/95 0.085
Xxxxxx X. Xxxxxx, Xx. 0.00 03/01/95 0.085
Xxxxxx X. Xxxxxx, Xx. 379,356.08 03/01/96 0.085
Xxxxxx X. Xxxxxx, Xx. 379,356.08 03/01/97 0.085
Xxxxxx X. Xxxxxx, Xx. 0.00 03/01/95 0.085
Xxxxxx X. Xxxxxx, Xx. 381,163.65 03/01/96 0.085
Xxxxxx X. Xxxxxx, Xx. 381,163.65 03/01/97 0.085
Xxxxxx X. Xxxxxx, Xx. 381,163.65 03/01/98 0.085
------------
1,902,203.11
Xxxxxxx X. Xxxxxxxxx 0.00 01/07/95 0.085
Xxxxxxx X. Xxxxxxxxx 0.00 03/01/95 0.085
Xxxxxxx X. Xxxxxxxxx 379,356.08 03/01/96 0.085
Xxxxxxx X. Xxxxxxxxx 379,356.08 03/01/97 0.085
Xxxxxxx X. Xxxxxxxxx 0.00 03/01/95 0.085
Xxxxxxx X. Xxxxxxxxx 381,163.65 03/01/96 0.085
Xxxxxxx X. Xxxxxxxxx 381,163.65 03/01/97 0.085
Xxxxxxx X. Xxxxxxxxx 381,163.65 03/01/98 0.085
------------
1,902,203.11
Xxxx X. Xxxxxxx 0.00 01/07/95 0.085
Xxxx X. Xxxxxxx 0.00 03/01/95 0.085
Xxxx X. Xxxxxxx 379,356.08 03/01/96 0.085
Xxxx X. Xxxxxxx 379,356.08 03/01/97 0.085
Xxxx X. Xxxxxxx 0.00 03/01/95 0.085
Xxxx X. Xxxxxxx 381,163.65 03/01/96 0.085
Xxxx X. Xxxxxxx 381,163.65 03/01/97 0.085
Xxxx X. Xxxxxxx 381,163.65 03/01/98 0.085
------------
1,902,203.11
------------
7,608,812.44
=============================================================================
CGI Birdhill, Inc. 3,650,000.00 05/31/97 0.0865
Birdhill, Inc. 821,764.32 05/31/97 0.0865
------------
4,471,764.32
=============================================================================
Xxxxxx Xxxx X. Xxxxxx 5,376,000.00 01/04/01 0.055
Xxxx X. Xxxxxx 992,670.00 01/31/02 0.055
------------
6,368,670.00
============================================================================
United Asset Management Corporation
1995 Sub Indebtedness Schedule
June, 1995
Printed On: 07/28/95
FINAL
-----
Note Interest
Affiliate Note Holder Total Notes Due Date Rate
------------------------------------------------------------------------------
FMA Xxxxxx Xxxxxx - Trust 700,000.00 06/24/96 0.090
Xxxxxx & Xxxxx Xxxxxx
Charitable Trust 77,250.00 06/24/96 0.090
-------------
777,250.00
Xxxxxx Xxxxxxxxxx 85,000.00 08/08/96 0.090
Xxxxxx Xxxxxxxxxx 9,375.00 06/24/96 0.090
-------------
94,375.00
Xxxx Xxxxxxx, Xx. 255,000.00 08/08/96 0.090
Xxxx Xxxxxxx, Xx. 28,125.00 06/24/96 0.090
-------------
283,125.00
-------------
1,154,750.00
============================================================================
GSB Xxxx X. Xxxxxxx 3,358,693.60 01/02/01 0.055
Xxxxx X. Xxxxxxxxx, III 2,190,434.25 01/02/01 0.055
Xxxxxxxxx X. Xxxxxxxxx 2,190,434.25 01/02/01 0.055
Xxxx X. Xxxxxxx 730,172.50 01/02/01 0.055
Xxxxxxx X. Xxxx 438,100.73 01/02/01 0.055
Xxxxxxx X. Xxxxx, XX 219,057.30 01/02/01 0.055
Xxxx X. Xxxxxxx 1,460,331.12 01/02/01 0.055
Xxxxxx X. Xxxxxxx 730,172.50 01/02/01 0.055
Xxxxxxx X. Xxxxxxxx, Xx. 730,172.50 01/02/01 0.055
Xxx Xxxx Xxxxx 365,086.25 01/02/01 0.055
Xxx X. Xxxxxxx 730,172.50 01/02/01 0.055
Xxxxx Xxxxxxx 730,172.50 01/02/01 0.055
-------------
13,873,000.00
============================================================================
United Asset Management Corporation
1995 Sub Indebtedness Schedule
June, 1995
Printed On: 07/28/95
FINAL
-----
Note Interest
Affiliate Note Holder Total Notes Due Date Rate
------------------------------------------------------------------------------
JMB JMB Institutional Realty Corp. 34,549,615.00 12/02/01 0.065
JMB Institutional Realty Corp. 3,685,200.00 12/02/01 0.065
JMB Institutional Realty Corp. 468,127.00 01/31/02 0.065
-------------
38,702,942.00
PRA Securities Advisors, L.P. 1,218,318.00 01/31/02 0.065
Xxxx X. Xxxxx 347,643.00 12/02/01 0.065
Xxxx X. Xxxxx 4,710.00 01/31/02 0.065
-------------
352,353.00
Xxxxx X. Xxxxxx 115,881.00 12/02/01 0.065
Xxxxx X. Xxxxxx 1,570.00 01/31/02 0.065
-------------
117,451.00
Xxxxx X. Xxxxxx 115,881.00 12/02/01 0.065
Xxxxx X. Xxxxxx 1,570.00 01/31/02 0.065
-------------
117,451.00
Xxxxxxx X. Xxxxxx 115,881.00 12/02/01 0.065
Xxxxxxx X. Xxxxxx 1,570.00 01/31/02 0.065
-------------
117,451.00
Institutional Associates, L.P. 28,849,110.00 12/02/01 0.065
Institutional Associates, L.P. 390,888.00 01/31/02 0.065
-------------
29,239,998.00
JMB Endowment Associates 132,244.00 12/02/01 0.065
JMB Endowment Associates 1,792.00 01/31/02 0.065
-------------
134,036.00
-------------
70,000,000.00
============================================================================
NWQ NWQ Charitable Remainder Unitrust 22,929,300.00 09/30/99 0.060
NWQ Charitable Remainder Unitrust 5,476,800.00 09/30/99 0.060
-------------
28,406,100.00
Xxxxx X. Xxxx 3,510,000.00 09/30/99 0.060
Xxxxx X. Xxxx 682,500.00 09/30/99 0.060
-------------
4,192,500.00
Xxxxxx X. Xxxxxxx, Xx. 2,026,800.00 09/30/99 0.060
Xxxxxx X. Xxxxxxx, Xx. 394,100.00 09/30/99 0.060
-------------
2,420,900.00
Xxxxx X. Xxxxxxxxx 1,573,200.00 09/30/99 0.060
Xxxxx X. Xxxxxxxxx 305,900.00 09/30/99 0.060
-------------
1,879,100.00
Xxxx-Xxxx Xxxxxx 723,600.00 09/30/99 0.060
Xxxx-Xxxx Xxxxxx 140,700.00 09/30/99 0.060
-------------
864,300.00
-------------
37,762,900.00
============================================================================
United Asset Management Corporation
1995 Sub Indebtedness Schedule
June, 1995
Printed On: 07/28/95
FINAL
-----
Note Interest
Affiliate Note Holder Total Notes Due Date Rate
------------------------------------------------------------------------------
PRC Xxxxxx X. Xxxxxx 2,070,000.00 03/29/00 0.060
Xxxxxxx X. Xxxx 2,070,000.00 03/29/00 0.060
-------------
4,140,000.00
============================================================================
PB&A Xxxxx X. Xxxxxx 255,092.00 01/02/96 0.065
Xxxxx X. Xxxxxx 67,168.00 01/02/96 0.065
Xxxxx X. Xxxxxx 149,006.00 04/28/02 0.065
Xxxxx X. Xxxxxx 173,254.00 04/28/02 0.065
-------------
644,520.00
Xxxxxx X. Xxxxxx 12,003,511.00 01/02/96 0.065
Xxxxxx X. Xxxxxx 3,160,620.00 01/02/96 0.065
Xxxxxx X. Xxxxxx 7,011,566.00 04/28/02 0.065
Xxxxxx X. Xxxxxx 8,152,565.00 04/28/02 0.065
-------------
30,328,262.00
Xxxxx X. Xxxxxxxx 1,020,369.00 01/02/96 0.065
Xxxxx X. Xxxxxxxx 268,671.00 01/02/96 0.065
Xxxxx X. Xxxxxxxx 596,025.00 04/28/02 0.065
Xxxxx X. Xxxxxxxx 693,015.00 04/28/02 0.065
-------------
2,578,080.00
Xxxxxxx X. XxXxxx 170,061.00 01/02/96 0.065
Xxxxxxx X. XxXxxx 44,779.00 01/02/96 0.065
Xxxxxxx X. XxXxxx 99,337.00 04/28/02 0.065
Xxxxxxx X. XxXxxx 115,503.00 04/28/02 0.065
-------------
429,680.00
Xxxxx X. Xxxxxx 2,720,985.00 01/02/96 0.065
Xxxxx X. Xxxxxx 716,457.00 01/02/96 0.065
Xxxxx X. Xxxxxx 1,589,399.00 04/28/02 0.065
Xxxxx X. Xxxxxx 1,848,043.00 04/28/02 0.065
-------------
6,874,884.00
Xxxx X. Xxxxxxx 12,003,511.00 01/02/96 0.065
Xxxx X. Xxxxxxx 3,160,620.00 01/02/96 0.065
Xxxx X. Xxxxxxx 7,011,566.00 04/28/02 0.065
Xxxx X. Xxxxxxx 8,152,565.00 04/28/02 0.065
-------------
30,328,262.00
Xxxxxx X. Xxxxxxxxxxxx 170,061.00 01/02/96 0.065
Xxxxxx X. Xxxxxxxxxxxx 44,779.00 01/02/96 0.065
Xxxxxx X. Xxxxxxxxxxxx 99,337.00 04/28/02 0.065
Xxxxxx X. Xxxxxxxxxxxx 115,503.00 04/28/02 0.065
-------------
429,680.00 0.065
-------------
71,613,368.00
============================================================================
United Asset Management Corporation
1995 Sub Indebtedness Schedule
June, 1995
Printed On: 07/28/95
FINAL
-----
Note Interest
Affiliate Note Holder Total Notes Due Date Rate
------------------------------------------------------------------------------
PIC Xxxxxx X. Xxxxxxxxxx 58,821,543.00 01/02/96 0.065
Xxxxxx X. Xxxxxxxxxx 4,862,332.00 02/15/02 0.065
--------------
63,683,875.00
Xxxxxx X. Xxxxxxxxx III 46,357,218.00 01/02/96 0.065
Xxxxxx X. Xxxxxxxxx III 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Xxxxx X. Xxxxxxxx 46,357,218.00 01/02/96 0.065
Xxxxx X. Xxxxxxxx 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Xxxxxxx X. Xxxxxx 46,357,218.00 01/02/96 0.065
Xxxxxxx X. Xxxxxx 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Xxxxxx X. Xxxxxx 46,357,218.00 01/02/96 0.065
Xxxxxx X. Xxxxxx 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Xxxxx X. Xxxxxx 2,518,045.00 01/02/96 0.065
Xxxxx X. Xxxxxx 208,148.00 02/15/02 0.065
--------------
2,726,193.00
F. Xxxxx Xxxxxx 2,518,045.00 01/02/96 0.065
F. Xxxxx Xxxxxx 208,148.00 02/15/02 0.065
--------------
2,726,193.00
Xxxxxx X. Xxxxxxxx 2,518,045.00 01/02/96 0.065
Xxxxxx X. Xxxxxxxx 208,148.00 02/15/02 0.065
--------------
2,726,193.00
--------------
272,619,326.00
=============================================================================
Sirach Wilmington Trust Co (Xxxx X. Xxxxx) 750,780.00 03/31/97 0.0875
Xxxxxx X. Xxxxxxxx 834,197.00 03/31/97 0.0875
J. Xxxxxxx Xxxxx 442,155.92 01/04/96 0.0875
J. Xxxxxxx Xxxxx 834,197.00 03/31/97 0.0875
-------------
1,276,352.92
Xxxxxxx X. Xxxxxxx 215,515.47 01/04/96 0.0875
Xxxxxxx X. Xxxxxxx 834,197.00 03/31/97 0.0875
-------------
1,049,712.47
Estate of Xxxxxxxx X. Xxxxxx 0.00 03/31/97 0.0875
-------------
3,911,042.39
=============================================================================
United Asset Management Corporation
1995 Sub Indebtedness Schedule
June, 1995
Printed On: 07/28/95
FINAL
-----
Note Interest
Affiliate Note Holder Total Notes Due Date Rate
------------------------------------------------------------------------------
SCM Xxxxxxxxx X. XxXxxxxxx 20,000.00 08/26/98 0.075
Xxxxxxxxx X. XxXxxxxxx 36,203.00 11/30/00 0.075
Xxxxxxxxx X. XxXxxxxxx 3,987.00 01/31/01 0.075
------------
60,190.00
Xxxxx X. Xxxxxxx 205,000.00 08/26/98 0.075
Xxxxx X. Xxxxxxx 343,925.00 11/30/00 0.075
Xxxxx X. Xxxxxxx 37,863.00 01/31/01 0.075
------------
586,788.00
Xxxx X. Xxxxxx 205,000.00 08/26/98 0.075
Xxxx X. Xxxxxx 343,925.00 11/30/00 0.075
Xxxx X. Xxxxxx 37,863.00 01/31/01 0.075
------------
586,788.00
------------
1,233,766.00
============================================================================
Suffolk Xxxxxx X. Xxxxxxx 2,512,883.40 07/14/01 0.060
Xxxxxx X. Xxxxxxx 1,072,303.79 02/28/02 0.060
------------
3,585,187.19
Xxxxx X. Xxxxxxxxxxxxx, Xx. 2,056,216.10 07/14/01 0.060
Xxxxx X. Xxxxxxxxxxxxx, Xx. 856,605.23 02/28/02 0.060
------------
2,912,821.33
Xxxxx X. Xxxxx, Xx. 235,370.50 07/14/01 0.060
Xxxxx X. Xxxxx, Xx. 340,395.71 02/28/02 0.060
------------
575,766.21
Xxxxxxx X. Xxxxxxxx 48,530.00 07/14/01 0.060
Xxxxxxx X. Xxxxxxxx 22,922.27 02/28/02 0.060
------------
71,452.27
------------
7,145,227.00
============================================================================
TJIM Xxxxxx X. Xxxxxxx 9,735,000.00 12/09/99 0.060
Xxxxx X. Xxxx 990,000.00 12/09/99 0.060
Xxxxxxx X. Xxxxx 165,000.00 12/09/99 0.060
Xxxx X. Xxxxx 110,000.00 12/09/99 0.060
--------------
11,000,000.00
============================================================================
Sub-Total 512,902,626.15
Pell Xxxxxx Debt (Xxxxx Brothers) 1,083,330.00
HFL Long Term Debt 2,196,000.00
--------------
Total 516,181,956.15
============================================================================
[FORM OF NOTE]
UNITED ASSET MANAGEMENT CORPORATION
7.12% Senior Secured Note Due August 25, 2005
No. _______ Date
$_____________ PPN 909420A*2
FOR VALUE RECEIVED, the undersigned, UNITED ASSET MANAGEMENT CORPORATION
(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 August
25, 2005, 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 7.12% per
annum from the date hereof, payable semiannually, on the twenty-fifth day of
February and August in each year, commencing February 25, 1996, 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) 9.12% or (ii) 2% over the rate of interest
publicly announced by Xxxxxx Guaranty Trust Company of New York from time to
time in New York, New York 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 principal office of the Company in Boston, Massachusetts, 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 Secured Notes (herein called the
"NOTES") issued pursuant to separate Note Purchase Agreements, each dated as
of August 1, 1995 (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
EXHIBIT 1
(to Note Purchase Agreement)
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner 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 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.
UNITED ASSET MANAGEMENT CORPORATION
By _______________________________
[Title]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR
AN APPLICABLE EXEMPTION THEREFROM.
1-2
FORM OF SUBORDINATION AGREEMENT
AGREEMENT made as of the [_______] day of [_________ ___, 199__] by and
between United Asset Management Corporation, a Delaware corporation ("UAM"),
and ABC Associates, Inc., a [_____________] corporation ("ABC" or, together
with any person to whom the Note referred to herein is assigned or endorsed,
the "HOLDER").
BACKGROUND
(a) The Holder has entered into an Acquisition Agreement with UAM dated
as of [__________ ___, 199__], relating to the acquisition by UAM of the
assets and business of ABC, which assets and business have been transferred
to UAM's wholly-owned subsidiary, ABC Newco, Inc. ("NEWCO") (such agreement
being hereinafter referred to as the "ACQUISITION AGREEMENT"). Terms defined
and used in the Acquisition Agreement and the Note, as defined below, shall
have the same meaning when used in this Subordination Agreement.
(b) On this date, UAM has issued and delivered to the Holder UAM's
[______%] Non-Negotiable Subordinated Note in the principal amount of
$[_________] (the "NOTE") in partial payment for such assets and business.
(c) Section 1.2 of the Acquisition Agreement and Section 4 of the Note
provide that the Note will be subordinated in accordance with this
Subordination Agreement.
AGREEMENTS
The parties hereto hereby agree as follows;
SECTION 1. SUBORDINATION.
The indebtedness evidenced by the Note shall be subordinated and junior to
the extent set forth in the following subsections (a) to (d), inclusive, to
all Senior Debt (as defined in subsection (e) hereof) of UAM:
(a) No payment on account of principal of, premium or interest the Note
shall be made or accepted, including by right of set-off, and no purchase of
the Note directly or indirectly by UAM shall be made, and the Holder of the
Note shall not be entitled to enforce any such payment, if, at the time
thereof or immediately after giving effect thereto, (i) there shall exist a
default in the payment of principal of, premium or interest on any Senior
Debt, and such default shall not have been cured or waived or shall not have
ceased to exist or
(ii) there shall exist a default or an event of default
(other than a default in the payment of amounts due thereon) with
respect to any Senior Debt, as defined therein or in the
instrument under which the same is outstanding, permitting the
holders thereof, or any of them, to accelerate the maturity
thereof, and such default or event of default shall not
EXHIBIT 2
(to Note Purchase Agreement)
have been cured or waived or shall not have ceased to exist; PROVIDED,
HOWEVER, that after 180 days of the occurrence of a default or event of
default described in (ii) hereof, if the holders of Senior Debt have not
caused the maturity of the Senior Debt to be accelerated, the Holder of the
Note shall thereafter be entitled to receive each installment of interest and
each installment of principal on the Note as such installments become due and
payable, subject to the application of the restrictions of this paragraph
again upon the occurrence of each further default or event of default.
(b) Upon the maturity of any Senior Debt by lapse of time, acceleration or
otherwise, then all such matured Senior Debt shall first be paid in full in
cash, before any payment on account of principal, premium or interest is made
upon the Note.
(c) In the event of any insolvency, bankruptcy, liquidation (whether
voluntary or involuntary), reorganization or other similar proceedings, or
any receivership proceedings in connection therewith, relative to UAM or its
property, and in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of UAM, whether voluntary or involuntary, or
any assignment for the benefit of creditors or other marshalling of assets or
liabilities of UAM, whether or not involving insolvency or bankruptcy
proceedings, then all Senior Debt shall first be paid in full in cash or
provision for such payment satisfactory to the holders of the majority in
principal amount of the Senior Debt shall be made, before any payment on
account of principal, premium or interest is made upon the Note.
(d) In any of the proceedings referred to in subsection (c) above, any
payment or distribution of any kind or character, whether in cash, property,
stock or obligations, which may be payable or deliverable in respect of the
Note, or the indebtedness represented thereby, shall be paid or delivered
directly to the holders of Senior Debt or their authorized representative
designated to UAM in writing, for application in payment thereof, unless and
until the Senior Debt shall have been paid in full in cash, and the Holder of
the Note does hereby authorize holders of Senior Debt to prove and enforce
claims comprising the Note, vote claims comprising the Note to accept or
reject any plan for liquidation, reorganization, composition or extension and
accept and receipt for any payment or distribution to such extent and apply
such payment or distribution to the then unpaid Senior Debt and do all things
and to execute all such documents as may be necessary to effectuate the
foregoing; PROVIDED, HOWEVER, that notwithstanding the foregoing, should any
payment or distribution in any such proceeding be received by the Holder of
the Note before all Senior Debt is paid in full in cash, such payment or
distribution shall be received in trust and promptly delivered in the form
received (duly endorsed, if appropriate) to the holders of Senior Debt or
their representative for application to the payment of Senior Debt then
remaining unpaid; and PROVIDED, FURTHER, that no such delivery shall be made
to holders of Senior Debt of stock or obligations which are issued pursuant
to reorganization proceedings or dissolution or liquidation proceedings, or
upon any merger, consolidation, sale, lease, transfer or other disposal not
prohibited by the provisions of this Subordination Agreement, by UAM, as
reorganized, or by the corporation which is the successor to UAM or which
acquires its properties and assets, if such stock or obligations are
subordinate and junior at least to the extent provided in this Section 1 to
the prior payment in full of all Senior Debt and to the
2-2
prior payment in full of any stock or obligations which are issued in
exchange or substitution for any Senior Debt.
(e) "SENIOR DEBT," as used herein, shall mean the principal of, premium
on, and unpaid interest (including any interest accrued after commencement of
any proceeding referred to in subsection (c) above at the rate provided in
any document or instrument creating or evidencing any indebtedness referred
to in this definition) on (i) all indebtedness, whether outstanding on the
date hereof or hereafter created or arising and including all fees and other
amounts related to such indebtedness, to banks, insurance companies, pension
funds or other institutions regularly engaged in the business of lending
money, for money borrowed or other financial accommodations extended from
such institutions by UAM for working capital purposes, acquisitions, general
corporate purposes or otherwise, and all such indebtedness with respect to
which UAM is a guarantor; (ii) any modifications, deferrals, renewals,
extensions or increase in the amount of any such indebtedness or any
indebtedness issued in exchange, replacement, refunding or refinancing of or
for Senior Debt by banks, insurance companies, pension funds or other
institutions regularly engaged in the business of lending money; and (iii)
any costs, fees and expenses incurred in connection with the enforcement or
collection of Senior Debt (including, without limitation, reasonable
attorneys' fees).
Subject to the prior payment in full of all Senior Debt as aforesaid, the
Holder of the Note shall be subrogated pro rata to the rights of the holders
of Senior Debt to receive payments or distributions of any kind or character,
whether in cash, property, stock or obligations, which may be payable or
deliverable to the holders of Senior Debt, until the principal of, premium
and interest on, the Note shall be paid in full and no such payments or
distributions to the holders of Senior Debt shall, as between UAM, its
creditors other than the holders of Senior Debt, and the Holder of the Note
be deemed to be a payment by UAM to the Holder of or on account of the Note.
The provisions of this Subordination Agreement are for the purposes of
defining the relative rights of the holders of Senior Debt on the one hand,
and the Holder of the Note on the other hand, against UAM and its property.
Subject to the rights under this Subordination Agreement of holders of Senior
Debt to receive cash, property, stock or obligations otherwise payable or
deliverable to the Holder of the Note, nothing herein shall either impair, as
between UAM and the Holder of the Note, the obligation of UAM, which is
unconditional and absolute, to pay to the Holder of the Note the principal
and interest thereon in accordance with the terms and the provisions of the
Note or prevent the Holder of the Note from exercising all remedies otherwise
permitted by applicable law or hereunder upon default hereunder or under the
Note.
No right of any holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by the Note shall be impaired by any act or failure to
act by UAM or by the failure of UAM to comply with the Note or this
Subordination Agreement.
2-3
* [The Holder of the Note shall give prompt written notice to each
Holder of Senior Debt of any default by UAM under the Note.]
Without limiting the effect of the immediately preceding paragraph, no
holder of Senior Debt need obtain the consent of, or give notice to, any
Holder of the Note prior to taking any of the following actions, upon or
without any terms or conditions and in whole or in part, none of which shall
impair or release any of the rights of any such holder of Senior Debt under
this Subordination Agreement:
(a) change the manner, place or terms of payment,
and/or change or extend the time of payment of, renew or
alter, any Senior Debt or any other liability of UAM to such
holder of Senior Debt, any security therefor, or any
liability incurred directly or indirectly in respect
thereof, and the provisions of this Subordination Agreement
shall apply to the Senior Debt of UAM as so changed,
extended, renewed or altered.
(b) sell, exchange, release, surrender, realize upon
or otherwise deal with in any manner and in any order any
property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, any Senior Debt or any other
liability of UAM to such holder of Senior Debt or any other
liabilities incurred directly or indirectly in respect
thereof or hereof and/or any offset there against;
(c) exercise or refrain from exercising any rights
and/or remedies against UAM or others or otherwise act or
refrain from acting or, for any reason, fail to file, record
or otherwise perfect any security interest in or lien on any
property of UAM or any other person;
(d) settle or compromise any Senior Debt or any other
liability of UAM to such holder of Senior Debt or any
security therefor, or any liability incurred directly or
indirectly in respect thereof or hereof, and may subordinate
the payment of all or any part thereof to the payment of any
liability (whether due or not) of UAM to creditors of UAM
other than such holder of Senior Debt; and
(e) apply any sums by whomsoever paid and howsoever
realized to any liability or liabilities of UAM to such
holder of Senior Debt regardless of what liability or
liabilities of UAM to such holder of Senior Debt remain
unpaid.
SECTION 2. RELIANCE BY SENIOR DEBTHOLDERS.
UAM agrees, and each Holder of the Note by accepting the
Note agrees, that the subordination effected hereby is for the
benefit of the holders of Senior Debt from time to time, and that
each holder of Senior Debt, whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have
acquired Senior Debt in reliance
-------------
* optional
2-4
upon the covenants and provisions contained herein. The subordination
effected hereby shall be enforceable by each holder of Senior Debt from time
to time.
SECTION 3. FURTHER ASSURANCES.
The parties hereto agree to execute and deliver any and all
papers and documents which may be reasonably necessary to carry
out the terms of this Subordination Agreement.
SECTION 4. ENTIRE AGREEMENT.
This Subordination Agreement contains the entire agreement among the
parties with respect to the subject matter hereof.
SECTION 5. BINDING EFFECT.
This Subordination Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors and assigns; PROVIDED, HOWEVER, that this
Subordination Agreement and all rights hereunder may not be assigned by the
Holder, except with the prior written consent of UAM, or by UAM except with
the prior written consent of the Holder. No amendment of this Subordination
Agreement or waiver of any of its provisions shall be effective without the
written consent of each holder of Senior Debt if such amendment adversely
affects any rights of the holders of Senior Debt.
SECTION 6. SEPARATE COUNTERPARTS.
This Subordination Agreement may be executed in several identical
counterparts, all of which when taken together (whether the signatures of all
the parties appear on one or several counterparts) shall constitute but one
and the same instrument, and it shall not be necessary in any court of law to
introduce more than one fully executed counterpart, or several counterparts
together containing the signatures of all the parties, in proving this
Subordination Agreement.
SECTION 7. NOTICES.
All notices hereunder shall be given in accordance with the notice
provisions of the Acquisition Agreement.
SECTION 8. GOVERNING LAW.
The execution, interpretation and performance of this
Subordination Agreement shall be governed by the laws of the
Commonwealth of Massachusetts which apply to contracts executed
and to be performed solely in Massachusetts. UAM and the holder
hereby consent to the jurisdiction of any state or federal court
located within Suffolk County, Massachusetts,
2-5
waive personal service of process and assent that service of process may be
made by registered mail to the parties' respective addresses as provided in
Section 12.6 of the Acquisition Agreement and shall be effective in the same
manner as notices are effective under such Section 12.6.
2-6
IN WITNESS WHEREOF, the parties hereto have duly executed this
Subordination Agreement as of the date first above written.
UNITED ASSET MANAGEMENT CORPORATION
By ________________________________
Title
ABC ASSOCIATES, INC.
By _______________________________
Title
2-7
FORM OF
NON-NEGOTIABLE
[________%] SUBORDINATED NOTE
DUE ________ ___, 19__]
[_________ __, 19__]
FOR VALUE RECEIVED, UNITED ASSET MANAGEMENT CORPORATION, a Delaware
corporation, (the "COMPANY", which term shall include any corporation which
shall succeed to or assume the obligations of the Company hereunder),
promises to pay to ABC Associates, Inc., a [____________] corporation (the
"HOLDER" or "ABC") (except as otherwise provided) the principal sum of
[______________________ ($________)] in lawful money of the United States of
America, on [___________ ___, 19__], together with interest on the
outstanding principal balance payable in like money at the rate of
[____________] percent [(_____%)] per annum commencing the date hereof and
payable semi-annually in arrears on July 1 and January 2 in each year,
beginning on [____________], until paid in full.
To the extent permitted by law, overdue interest shall bear interest at
[____________] percent [(_%)] per annum. Interest shall be computed on a
360-day year, 30-day month basis.
1. This Note is delivered by the Company to the Holder in accordance
with the terms of an Acquisition Agreement dated as of [________ ___, 19__]
(the "ACQUISITION AGREEMENT"), relating to the acquisition by the Company of
the assets and business of ABC, which assets and business the Company has
transferred to its subsidiary ABC Newco, Inc. ("NEWCO"). The Company and the
Holder are parties to the Acquisition Agreement, and terms defined and used
in the Acquisition Agreement shall have the same meanings in this Note. This
Note is non-negotiable. In accordance with the provisions of Section 4.4 of
the Acquisition Agreement, the Company may set off against amounts due the
Holder any amounts due from the Holder to UAM or Newco under Article IV of
the Acquisition Agreement.
2. The principal sum of this Note may be prepaid by the Company in whole
or in part at any time and from time to time without penalty or premium, with
interest prorated up to the date of any such prepayment.
3. All payments of principal and interest shall be payable in cash or by
the Company's check at the Holder's address indicated in the Acquisition
Agreement, or at such other place as the Holder may from time to time in
writing designate to the Company (by notice given in accordance with the
Acquisition Agreement) at least ten (10) days before a payment is due.
4. This Note is subordinated to all Senior Debt as defined in the
accompanying Subordination Agreement of even date herewith. Reference is
made to such Subordination Agreement for the terms of such subordination.
2-8
5. If, (i) the Company shall fail to pay any principal of or interest on
this Note when due and payable whether at maturity or at any date fixed for
redemption or prepayment or otherwise, (except principal of or interest on
this Note as to which the Company has exercised its right of set-off in
accordance with Section 1 above) and such amount shall remain unpaid for
thirty (30) business days after the due date thereof; or (ii) the Company
shall admit in writing its inability to pay its debts; or suffer a receiver
or custodian (or other person performing a similar function) for it or
substantially all of its property to be appointed and, if appointed without
its consent, not to be discharged within sixty (60) days; or make a general
assignment for the benefit of its creditors, or suffer proceedings under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors
to be instituted by or against it and if contested by it not to be dismissed
or stayed within sixty (60) days; or suffer any judgment, writ of attachment,
or execution of any similar process to be issued or levied against a
substantial part of its property which is not released, stayed, bonded, or
vacated within thirty (30) days after its issue or levy, then, and in every
such event (which are herein referred to as Events of Default), the Holder
hereof may declare the Note to be in default and to be due and payable, and
it shall, at the Holder's election, thereupon forthwith become due and
payable in full, without presentment, demand, protest, or any notice of any
kind, (other than notice of such election) all of which are hereby expressly
waived.
6. The Company will pay to the Holder on demand all reasonable legal and
other costs actually incurred in connection with any action to collect and/or
enforce this Note in which the Holder prevails.
7. In any case where the date of payment of any prepayment or redemption
of the principal of or interest on this Note shall be at any place of payment
a Sunday, a legal holiday, or a day on which banking institutions are
authorized or obliged by law or regulation to close, then payment of
principal or interest need not be made on such date at such place but may be
made on the next succeeding day that is not at such place of payment a
Sunday, a legal holiday or a day on which banking institutions are authorized
or obligated by law or regulation to close, with the same force and effect as
if made on the date of maturity or the date fixed for payment and no interest
shall accrue for the period after such date.
8. The Holder shall not be deemed to have waived or amended any of the
Holder's rights hereunder unless such waiver or amendment is in writing and
signed by the Holder. No delay or omission on the part of the Holder in
exercising any such right shall operate as a waiver of such right or any
other right. A waiver on any one occasion shall not be construed as a bar to
or waiver of any right or remedy on any future occasion.
9. This Note shall bear the legend attached hereto, the provisions of
which are incorporated herein by reference.
This Note shall be governed by and construed and enforced in accordance
with the laws of The Commonwealth of Massachusetts which apply to contracts
executed and performed solely in Massachusetts. UAM and the Holder hereby
consent to the jurisdiction of any state or federal court located within
Suffolk County, Massachusetts, waive personal
2-9
service of process, and assent that service of process may be made by
registered mail to the parties' respective addresses as provided in Section
12.6 of the Acquisition Agreement and shall be effective in the same manner
as notices are effective under such Section 12.6.
This Note has been executed by the Company under seal as of the day,
month and year first above written.
UNITED ASSET MANAGEMENT CORPORATION
[SEAL]
Attest:____________________ By ________________________________
Secretary Title
2-10
LEGEND
This Note has not been registered under the Securities Act of 1933 or
qualified under any state securities laws. This Note may not be sold,
assigned or transferred, except with respect to distributions by the Holder
to the Holder's stockholders and transfers by devise to immediate members of
the respective families of such stockholders, in the absence of an effective
registration statement under such Act and qualification under such laws, or
an opinion of counsel satisfactory to the Company that such registration and
qualification are not in the circumstances required.
2-11
FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY
The closing opinion of Hill & Xxxxxx, counsel for the Company, which is
called for by Section 4.4(a) of the Note Purchase Agreements, shall be dated
the date of the Closing and addressed to you and the Other Purchasers, shall
be satisfactory in scope and form to you and the Other Purchasers and shall
be to the effect that:
1. The Company is a corporation, duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware, has the corporate power and the corporate
authority to execute and perform the Note Purchase
Agreements, the Security Documents and the Intercreditor
Agreement and to issue the Notes and has the full corporate
power and the corporate authority to conduct the activities
in which it is now engaged and is duly licensed or qualified
and is in good standing as a foreign corporation in each
jurisdiction in which the character of the properties owned
or leased by it or the nature of the business transacted by
it makes such licensing or qualification necessary.
2. Each Guaranty Subsidiary is a corporation duly
organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation and is duly
licensed or qualified and is in good standing in each
jurisdiction in which the character of the properties owned
or leased by it or the nature of the business transacted by
it makes such licensing or qualification necessary and all
of the issued and outstanding shares of capital stock of
each such Guaranty Subsidiary have been duly issued, are
fully paid and non-assessable and are owned by the Company,
by one or more Subsidiaries, or by the Company and one or
more Subsidiaries.
3. Each Note Purchase Agreement has been duly
authorized by all necessary corporate action on the part of
the Company, has been duly executed and delivered by the
Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights
generally, and general principles of equity (regardless of
whether the application of such principles is considered in
a proceeding in equity or at law).
4. The Notes have been duly authorized by all
necessary corporate action on the part of the Company, have
been duly executed and delivered by the Company and
constitute the legal, valid and binding obligations of the
Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application
of such principles is considered in a proceeding in equity
or at law).
5. The Security Documents and the Intercreditor
Agreement have been duly authorized by all necessary
corporate action on the part of the Company, have been
EXHIBIT 4.4(a)
(to Note Purchase Agreement)
duly executed and delivered by the Company and constitute the
legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application
of such principles in considered in a proceeding in equity
or law).
[6. The Collateral Documents (or financing statements
or similar notices thereof to the extent permitted or
required by applicable law) have been filed for record or
recorded in all public offices wherein such filing or
recordation is necessary to perfect the Lien and security
interest granted by such Collateral Documents in the
collateral therein described as against creditors of and
purchasers from the Company and its Subsidiaries and the
Collateral Documents create a valid and perfected first Lien
and security interest in such collateral effective as
against creditors of and purchasers from the Company and its
Subsidiaries, subject only to encumbrances expressly
permitted by the terms of such Collateral Documents.]
7. No approval, consent or withholding of objection
on the part of, or filing, registration or qualification
with, any governmental body, Federal, state or local, is
necessary in connection with the execution, delivery and
performance of the Note Agreements, the Security Documents,
the Intercreditor Agreement or the Notes.
8. The issuance and sale of the Notes and the
execution, delivery and performance by the Company of the
Note Purchase Agreements, the Security Documents and the
Intercreditor Agreement do not conflict with or result in
any breach of any of the provisions of or constitute a
default under or result in the creation or imposition of any
Lien upon any of the property of the Company pursuant to the
provisions of the Certificate of Incorporation or By-laws of
the Company or any agreement or other instrument known to
such counsel to which the Company is a party or by which the
Company may be bound.
9. The issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Purchase
Agreements do not, under existing law, require the
registration of the Notes under the Securities Act of 1933,
as amended, or the qualification of an indenture under the
Trust Indenture Act of 1939, as amended.
10. The issuance of the Notes and the use of the
proceeds of the sale of the Notes in accordance with the
provisions of and contemplated by the Note Purchase
Agreements do not violate or conflict with Regulation G, T,
U or X of the Board of Governors of the Federal Reserve
System.
11. Except a set forth in Section 5.8 of the Note
Purchase Agreements, there is no litigation pending or, to
the best knowledge of such counsel, threatened which in such
counsel's opinion could reasonably be expected to have a
materially adverse effect on the Company's business or
assets or which would impair the ability of the Company to
issue and deliver the Notes or to comply with the provisions
of the Note Purchase Agreements, the Security Documents and
the Intercreditor Agreement.
E-4.4(a)-2
12. The Company is not a "investment company," or a
company "controlled" by an "investment company," under the
Investment Company Act of 1940, as amended.
The opinion of Hill & Xxxxxx shall cover such other matters relating to
the sale of the Notes as you and the Other Purchasers may reasonably request.
With respect to matters of fact on which such opinion is based, such counsel
shall be entitled to rely on appropriate certificates of public officials and
officers of the Company.
E-4.4(a)-3
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of Xxxxxxx and Xxxxxx, special counsel to you and the
Other Purchasers, called for by Section 4.4(b) of the Note Purchase
Agreements, shall be dated the date of the Closing and addressed to you and
the Other Purchasers, shall be satisfactory in form and substance to you and
the Other Purchasers and shall be to the effect that:
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 and the corporate authority to execute and deliver the Note
Purchase Agreements and to issue the Notes.
2. The Note Purchase Agreements have been duly authorized by all
necessary corporate action on the part of the Company, have been duly
executed and delivered by the Company and constitute the legal, valid
and binding contracts of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance
or similar laws affecting creditors' rights generally, and general
principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
3. The Notes have been duly authorized by all necessary corporate
action on the part of the Company, have been duly executed and delivered
by the Company and constitute the legal, valid and binding obligations
of the Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a
proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the
circumstances contemplated by the Note Purchase Agreements does not,
under existing law, require the registration of the Notes under the
Securities Act of 1933, as amended, or the qualification of an indenture
under the Trust Indenture Act of 1939, as amended.
The opinion of Xxxxxxx and Xxxxxx shall also state that the opinion of
Hill & Xxxxxx is satisfactory in scope and form to Xxxxxxx and Xxxxxx and
that, in their opinion, you and the Other Purchasers are justified in relying
thereon.
In rendering the opinion set forth in paragraph 1 above, Xxxxxxx and
Xxxxxx may rely solely upon an examination of the Certificate of
Incorporation certified by, and a certificate of good standing of the Company
from, the Secretary of State of the State of Delaware, the By-laws of the
Company and the general business corporation law of the State of State of
Delaware. The opinion of Xxxxxxx and Xxxxxx is limited to the laws of the
State of New York, the general business corporation law of the State of
Delaware and the Federal laws of the United States.
EXHIBIT 4.4(b)
(to Note Purchase Agreement)
With respect to matters of fact upon which such opinion is based,
Xxxxxxx and Xxxxxx may rely on appropriate certificates of public officials
and officers of the Company.
E-4.4(b)-2
