ITEM 7(C) AMENDMENT NO. 1 TO PARTNERSHIP ADMISSION AGREEMENT
AMENDMENT NO. 1 TO PARTNERSHIP ADMISSION AGREEMENT
This Amendment No. 1 to Partnership Admission Agreement is dated as of
September 27, 1995 by and among New England Investment Companies, L.P., a
Delaware limited partnership ("NEIC"), Xxxxxx Associates L.P., a Delaware
limited partnership ("HALP") and HALP's General Partner, Xxxxxx Associates,
Inc., a Delaware corporation (the "General Partner").
WHEREAS, NEIC, HALP and the General Partner have entered into a Partnership
Admission Agreement dated as of June 22, 1995 (the "Partnership Admission
Agreement"), which sets forth representations, warranties, covenants,
agreements and conditions relating to the sale to NEIC of substantially all of
the Assets of HALP, subject to certain liabilities of HALP, in exchange for
$175 million payable at the Closing in LP Units;
WHEREAS, the Partnership Admission Agreements permits HALP and its Partners
(to whom HALP is expected to distribute all or a portion of the LP Units
issued at Closing) to require NEIC to repurchase all or a portion of the LP
Units subject to certain terms and conditions;
WHEREAS, it is now desirable to defer until January 1996 payment for those
LP Units repurchased by NEIC from HALP and/or any of its partners pursuant to
Section 1.2(a)(ii) and (iii) of the Partnership Admission Agreement and to
provide for the redemption of certain LP Units under certain circumstances;
WHEREAS, included in the Assets to be transferred to NEIC on the Closing
Date are HALP's general partnership interests in the Investment Partnerships
(the "Investment Partnership GP Interests"), which are to be transferred by
HALP directly to Xxxxxx Partners L.L.C., a limited liability company wholly
owned (directly and indirectly) by NHLP ("NHLP-Sub");
WHEREAS, NEIC and HALP have determined that the transfer of the Investment
Partnership GP Interests should be effected by the admission of NHLP-Sub as a
new general partner of each Investment Partnership followed immediately
thereafter by the withdrawal of HALP as a general partner of each Investment
Partnership (the "Investment Partnership GP Admission and Withdrawal");
NOW, THEREFORE, intending to be legally bound, and in consideration of the
promises and mutual covenants and agreements contained herein, NEIC, HALP and
the General Partner hereby agree as follows:
1. AMENDMENTS TO PARTNERSHIP ADMISSION AGREEMENT.
Effective from and after the date hereof:
a. Amendments to Definitions. The following terms are hereby added to the
"Definitions" section of the Partnership Admission Agreement in the
appropriate alphabetical location:
"Investment Partnership GP Interests" means HALP's general
partnership interest in each of the Investment Partnerships.
"Investment Partnership GP Admission and Withdrawal" mean the
admission of NHLP-Sub as a general partner of each Investment
Partnership and the immediately subsequent withdrawal of HALP as a
general partner of each Investment Partnership.
"Investment Partnership GP Interest Liabilities" means those Assumed
Liabilities associated with the Investment Partnership GP Interests.
"NHLP-Sub" means Xxxxxx Partners L.L.C., a Delaware limited liability
company wholly owned (directly and indirectly) by NHLP.
b. Section 1.1 is hereby amended to read in its entirety as follows:
"1.1 CONTRIBUTION OF ASSETS; ADMISSION OF NHLP-SUB AND WITHDRAWAL OF
HALP AS GENERAL PARTNER OF EACH INVESTMENT PARTNERSHIP; AND ASSUMPTION
OF LIABILITIES.
36
At the Closing and upon the terms and conditions set forth herein,
the following actions shall occur:
(a) HALP shall contribute all of its Assets (other than the
Investment Partnership GP Interests) to NEIC free and clear of any
Lien other than those identified in Section 3.11(a), and NEIC will
assume and become responsible for the Assumed Liabilities (other
than the Investment Partnership GP Interest Liabilities), but in no
event including the Excluded Liabilities. The General Partner shall
withdraw as the general partner of HASLP and be replaced by NHGP.
The contribution of the Assets of HALP (other than the Investment
Partnership GP Interests) and the assumption of the Assumed
Liabilities (other than the Investment Partnership GP Interest
Liabilities) contemplated by this Section 1.1(a) are referred to in
this Agreement as the "Asset Contribution." HALP shall continue to
be responsible for the Excluded Liabilities.
(b) To the extent required to meet the Minimum Cash/Capital
Requirement if not satisfied by the Assets of HALP contributed
pursuant to Section 1.1(a) above, HALP shall provide NEIC for the
benefit of NHLP at Closing with cash, cash equivalents and accounts
receivable equal to such additional required amount, if any.
"Minimum Cash/Capital Requirement" means sufficient working capital,
in the form of cash, cash equivalents and accounts receivable
(excluding working capital received as prepayment for obligations to
be performed by NHLP as successor to HALP on or after the Closing
Date) for the near term operations of NHLP, HASLP and NHLP-Sub and
the payment of required distributions to the partners of NHLP, as
described in the attached Schedule 1.1(b). HALP shall also ensure
that its Assets contributed at the Closing include sufficient cash,
cash equivalents or other eligible capital to meet all investment
advisor and broker-dealer net capital and any other regulatory
capital requirements applicable to NHLP, NHLP-Sub and/or HASLP, as
the case may be, and to produce positive consolidated net worth at
NHLP exclusive of amounts contributed to satisfy the Minimum
Cash/Capital Requirement, also as described in Schedule 1.1(b). If
necessary, HALP may loan or arrange for a loan to NHLP of funds in a
sufficient amount to satisfy the Minimum Cash/Capital Requirement at
the Closing. Notwithstanding the foregoing provisions of this
Section 1.1(b), in no event shall HALP be required to provide in
satisfaction of the Minimum Cash/Capital Requirement or to satisfy
applicable regulatory capital requirements and produce consolidated
net worth an amount greater than it would have been required to
provide had NHLP-Sub not been formed.
(c) Immediately upon completion of the events described in
Sections 1.1(a) and (b), NEIC shall contribute to NHLP (i) the
Assets of HALP (other than the Investment Partnership GP Interests)
subject to the Assumed Liabilities (other than the Investment
Partnership GP Interest Liabilities) but not the Excluded
Liabilities and (ii) any amount necessary to meet the Minimum
Cash/Capital Requirement and to satisfy applicable regulatory
capital requirements that is not loaned directly to NHLP by HALP at
Closing. NEIC's contribution to NHLP described in the preceding
sentence shall occur in such a way that an appropriate percentage of
both the Assets and the additional amount contributed to NEIC by
HALP to meet the Minimum Cash/Capital Requirement and regulatory
requirements (such percentage to be determined in the sole
discretion of NEIC and its affiliates) is first contributed directly
or indirectly through one or more subsidiaries to NHGP and is then
contributed by NHGP to NHLP in exchange for a general partnership
interest in NHLP. The remainder of both the Assets of HALP and the
additional amount contributed by HALP to NEIC to meet the Minimum
Cash/Capital Requirement and regulatory requirements shall be
contributed directly by NEIC to NHLP in exchange for a limited
partnership interest in NHLP.
Also at the Closing, upon the terms and conditions set forth
herein, the following actions shall occur in immediate succession:
(d) First, NHLP-Sub shall be admitted by HALP as an additional
general partner of each Investment Partnership. Second, HALP shall
withdraw as a general partner of each such Investment Partnership.
The amount contributed to each Investment Partnership by NHLP-Sub
upon its admission as a general partner, and the amount withdrawn
from each Investment Partnership by HALP upon its withdrawal as a
general partner, shall be the Investment Partnership GP Amount for
such Investment Partnership. The term "Investment Partnership GP
Amount"
37
shall mean, in respect of each Investment Partnership, an amount
equal to (i) HALP's Partnership Percentage for such Investment
Partnership (as defined in Section 2.03 of the Investment
Partnership's agreement of limited partnership), determined as of
the Closing Date, multiplied by (ii) the Net Asset Value of such
Investment Partnership (as defined in Section 2.04(1) of the
Investment Partnership's agreement of limited partnership),
determined as of the close of business on Friday, September 29,
1995; provided, however, that with respect to Aurora Limited
Partnership ("Aurora"), the Investment Partnership GP Amount
expressly shall not include any amount for any "Designated
Investments" (as that term is defined in Aurora's Second Amended and
Restated Agreement of Limited Partnership, as amended) beneficially
owned by HALP, and NHLP-Sub shall not, by virtue of contributing the
Investment Partnership GP Amount, acquire any interest whatsoever in
such Designated Investments so owned by HALP. Concurrently with the
contribution of the Investment Partnership GP Amount to the
Investment Partnerships, NHLP shall purchase and HALP shall sell its
entire interest in Aurora's Designated Investments for an amount,
payable in cash, equal to the amount at which HALP's interest in the
Designated Investments is carried on the books and records of Aurora
as of September 29, 1995 (the "Designated Investments Amount"). The
Designated Investments Amount is approximately $28,000 as of the
date hereof. HALP shall have no right to receive any other
distribution or to withdraw any other amount from any Investment
Partnership in connection with the Investment Partnership GP
Admission and Withdrawal or otherwise. NHLP-Sub shall, upon the
withdrawal of HALP as a general partner of the Investment
Partnerships, assume all Investment Partnership GP Interest
Liabilities, but in no event shall it assume any Excluded
Liabilities."
c. Sections 1.2(a)(ii) and 1.2(a)(iii) are hereby amended in their
entirety to read as follows:
"(ii) Upon or after the Closing, HALP may distribute all or a portion
of the LP Units it receives from NEIC to the Partners. At any time on
the Closing Date or during the 15 days immediately following the
Closing Date (such 16-day period, the "1995 Repurchase Period"), each
of HALP and any Partner may, by notice to NEIC (the "Repurchase
Notice"), elect to sell to NEIC (and NEIC agrees to purchase from HALP
or such Partner) at the Repurchase Price such number of LP Units
received by HALP from NEIC or by such Partner from HALP, as are
specified in the Repurchase Notice. Immediately upon HALP's or a
Partner's delivery of a Repurchase Notice, HALP or such Partner will
have as of the date of the Repurchase Notice irrevocably surrendered
the LP Units specified in the Repurchase Notice and forfeited all
rights as a holder of such LP Units, including the right to receive any
distributions on such LP Units the record date for which fell on the
Closing Date or during the 16 days immediately following the Closing
Date. HALP and each such Partner shall promptly deliver to NEIC the
certificates for the LP Units specified in HALP's or such Partner's
Repurchase Notice. The Repurchase Price shall be evidenced by the notes
described in Section 1.2(a)(iv) below and shall be payable, pursuant to
such notes, by NEIC to HALP and each such Partner on the Repurchase
Payment Date. The "Repurchase Payment Date" means such date on or after
January 2, 1996, but no later than January 10, 1996, as NEIC shall
specify in a written notice delivered to HALP (as a holder of LP Units
and as agent for the Partners) at least two business days prior to such
date. The "Repurchase Price" for each LP Unit repurchased by NEIC
pursuant to this Section 1.2(a)(ii) means (A) for LP Units subject to
Repurchase Notices delivered on the Closing Date or on the two business
days immediately following the Closing Date, the Fixed Repurchase Price
and (B) for LP Units subject to Repurchase Notices delivered starting
on the third business day following the Closing Date, the lower of (x)
the Fixed Repurchase Price and (y) the product of (I) the closing price
of LP Units on the Exchange on the last Trading Day immediately
preceding the date of repurchase and (II) the Multiplier. The "Fixed
Repurchase Price" for each LP Unit repurchased by NEIC pursuant to this
Section 1.2(a)(ii) means the product of (A) the Exchange Price and (B)
the Multiplier. The "Multiplier" means the sum of (A) one (1) and (B)
0.0588 multiplied by a fraction, the numerator of which is the number
of days from October 1, 1995 to the Repurchase Payment Date and the
denominator of which is 365.
(iii) In the event that, as of the close of the 0000 Xxxxxxxxxx
Period, the aggregate number of LP Units held by HALP and the Partners
and any Permitted Transferees of the Partners (taking into
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account only those LP Units originally issued by NEIC to HALP on the
Closing Date) (the "Post-Repurchase Period LP Units") exceeds 20% of
the number of LP Units of NEIC outstanding on the Closing Date, rounded
down to the nearest whole number (6,395,723 on the date hereof), then
on the date 16 days immediately following the Closing Date, NEIC shall
have the right to repurchase at the Fixed Repurchase Price from HALP
(whether in its capacity as principal and/or as agent for one or more
of the Agreed Upon Sellers (as defined below) or their Permitted
Transferees), and HALP shall deliver, the Redeemable Number of LP
Units. The sellers of such LP Units shall be the Agreed Upon Sellers
(or HALP on behalf of the Agreed Upon Sellers), each in the Agreed Upon
Amounts (as defined below). HALP agrees that as of the 16th day
immediately following the Closing Date, the Agreed Upon Sellers (or
HALP on behalf of the Agreed Upon Sellers) shall hold a number of LP
Units at least equal to the Redeemable Number of Units. The Fixed
Repurchase Price payable pursuant to this Section 1.2(a)(iii) shall be
evidenced by the notes described in Section 1.2(a)(iv) below and shall
be payable, pursuant to such notes, on the Repurchase Payment Date. The
term "Redeemable Number of LP Units" means the number of LP Units equal
to the excess of (A) the number of Post-Repurchase Period LP Units over
(B) 20% of the number of LP Units of NEIC outstanding on the Closing
Date, rounded down to the nearest whole number. Immediately upon the
determination by NEIC of the Redeemable Number of LP Units for
repurchase from HALP (whether in its capacity as principal and/or as
agent for one or more of the Partners or Permitted Transferees)
pursuant to this Section 1.2(a)(iii), HALP and/or each Partner or
Permitted Transferee for whom HALP acts as agent for purposes of this
Section 1.2(a)(iii) will have irrevocably surrendered its respective
portion, if any, of the Redeemable Number of LP Units and forfeited all
rights as a holder of such LP Units, including any rights to
distributions on such LP Units the record date for which fell on the
Closing Date or during the 16 days immediately following the Closing
Date. HALP (on behalf of itself and/or each such Partner or Permitted
Transferee) shall promptly deliver to NEIC the certificates for HALP's
or such Partner's or such Permitted Transferee's portion of the
Redeemable Number of LP Units. Each LP Unit issued to HALP on the
Closing Date is expressly subject to NEIC's rights under this Section
1.2(a)(iii).
The Redeemable Number of LP Units which NEIC elects to purchase shall
be purchased from the Partners listed below (the "Agreed Upon
Sellers"), or from HALP on behalf of such Agreed Upon Sellers, each in
proportion to the percentage which the Defaulted Units (as defined
below) held by each such Partner bears to the Defaulted Units held by
all such Partners. As used herein, (A) "Agreed Upon Amounts" means the
number of Units to be sold by each Agreed Upon Seller as set forth in
the preceding sentence, and (B) "Defaulted Units" means the product of
the original number of LP Units distributed by HALP to such Partner
multiplied by the excess if any, of the percentage set forth below over
the actual percentage of LP Units distributed by HALP to such Partner
for which such Partner delivered a Repurchase Notice.
PERCENTAGE OF UNITS FOR
WHICH A REPURCHASE
AGREED UPON SELLERS NOTICE SHALL BE GIVEN
------------------- -----------------------
Xxxxxxxx, Xxxxxx X. Rev. Trust UAD 3/25/81....... 100
Xxxxxx Associates, Inc. ......................... 100
Xxxxx, Xxxxx X. ................................. 80
Xxxx, Xxxxxx X. ................................. 00
Xxxxxxx, Xxxxxxx X. ............................. 80
XxXxxxxx, Xxxxx X. .............................. 50
Xxxxxxxxxxx, Xxxxxx X. .......................... 30
Xxxxxxx, Xxxxxx Marital Trust.................... 85
Xxxxxx, Xxxxxxx X. .............................. 95
Xxxxx, Xxxx X. .................................. 65
Xxxx, Xxxxxx X. ................................. 60
Xxxxxx, Xxxx X. Xx. ............................. 33
Xxxxxxx, Xxxxxx X. .............................. 50
Xxxxx, Xxxxx X. ................................. 33
Xxxxx, Xxxxxx Rev. Trust UAD 2/1/89.............. 50
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d. The following Section 1.2(a)(iv) is hereby added to the end of Section
1.2(a):
"(iv) On the date 16 days immediately following the Closing Date (or
if such date is not a Trading Date, the next Trading Day), NEIC shall
deliver to each of HALP and any Partners from whom LP Units have been
repurchased pursuant to Section 1.2(a)(ii) or 1.2(a)(iii) a promissory
note in substantially the form attached hereto as Exhibit 1.2(a)(iv)
evidencing NEIC's obligation to pay to HALP or such Partner the
aggregate Repurchase Price with respect to LP Units repurchased from
HALP or such Partner pursuant to Section 1.2(a)(ii) and the aggregate
Fixed Repurchase Price with respect to LP Units repurchased from HALP
or such Partner pursuant to Section 1.2(a)(iii)."
e. Section 1.2(c) is hereby amended by adding the following text to the
end of the first sentence of such section;
"and except that the LP Units issued hereunder are expressly subject to
the contingent repurchase rights of NEIC set forth in Section
1.2(a)(iii) hereof;"
f. Section 2.1(a) is hereby amended to read in its entirety as follows:
"(a) HALP and the Partners shall at Closing (i) deliver to NEIC any
contribution, assignment and other instruments relating to the Asset
Contribution as NEIC and its counsel reasonably request to effect (A)
the contribution and transfer of such Assets, (B) the withdrawal of the
General Partner as the general partner of HASLP and its replacement by
NHGP and (C) the Investment Partnership GP Admission and Withdrawal,
all as contemplated by this Agreement;"
g. Section 2.1(d) is hereby corrected so that the section reference in
the fifth line is changed from "Section 1.1(d)" to "Section 1.1(c)".
h. The first sentence of Section 6.14(d) is hereby amended to read in its
entirety as follows:
"On the Closing Date prior to the Closing, (i) NEIC shall make a
long-term loan to NHLP, in a principal amount equal to the aggregate of
the Investment Partnership GP Amounts for the Investment Partnerships
and the Designated Investments Amount, such loan to bear interest at
NEIC's long-term intercompany borrowing rate in effect from time to
time, and (ii) NHLP shall contribute an amount equal to the aggregate
of the Investment Partnership GP Amounts and the Designated Investments
Amount as a capital contribution to NHLP-Sub. Such capital contribution
shall be made in such a way that an appropriate percentage of the
capital (such percentage to be determined in the sole discretion of
NEIC and its affiliates) is first contributed to Xxxxxx Partners, Inc.,
a Delaware corporation and a wholly-owned subsidiary of NHLP ("HPI")
and is then contributed by HPI to NHLP-Sub in exchange for an equity
interest in NHLP-Sub. The remainder of such capital shall be
contributed directly by NHLP to NHLP-Sub in exchange for a separate
equity interest in NHLP-Sub."
i. Section 7.2(a) is hereby amended to read in its entirety as follows:
"(a) DELIVERY OF ASSETS AND MINIMUM CASH/CAPITAL REQUIREMENT. HALP
shall have delivered to NEIC any contribution, assignment or other
instruments relating to the Asset Contribution as NEIC and its counsel
reasonably request to effect the contribution and transfer of HALP's
Assets (other than the Investment Partnership GP Interests) and the
General Partner's withdrawal as the general partner of HASLP and its
replacement by NHGP. HALP shall have delivered to NEIC or loaned to
NHLP, as the case may be, the amount, if any, required to satisfy the
Minimum Cash/Capital Requirement, such amount to be transferred in such
manner as NEIC may request. HALP shall have delivered to NEIC any
instruments relating to the Investment Partnership GP Admission and
Withdrawal as NEIC and its counsel reasonably request to effect the
admission of NHLP-Sub, followed immediately by the withdrawal of HALP,
as a general partner of each Investment Partnership."
j. The following Section 7.3(e) is hereby added to the end of Section
7.3:
"(e) LETTER OF CREDIT. In order to secure NEIC's obligation to pay
HALP and/or any of its Partners for all repurchases of LP Units
pursuant to Section 1.2(a)(ii) and (iii), NEIC shall have delivered to
HALP a letter of credit in substantially the form attached hereto as
Exhibit 7.3(e), the amount of which shall be no less than the aggregate
amount required to be paid by NEIC to Xxxxxx
40
and/or any of its partners pursuant to Sections 1.2(a)(ii) and (iii);
provided, however, that in no event shall the amount of such letter of
credit be required to exceed $80 million."
k. Item 26 of Schedule 3.13 is hereby corrected so that the date in the
second line is changed from "January 1, 1990" to "January 1, 1994."
2. REPRESENTATIONS AND WARRANTIES.
a. HALP and the General Partner hereby represent and warrant, jointly and
severally, to NEIC as follows:
(i) ORGANIZATION AND GENERAL PARTNER AND LIMITED PARTNERSHIP AUTHORITY.
HALP is a limited partnership duly formed, validly existing and in good
standing and the General Partner is a Delaware corporation, duly organized,
validly existing and in good standing, each under the laws of the State of
Delaware, with full power and authority to own or lease and use its
properties and assets, to carry on its business as such business is now
conducted, to execute and deliver this Amendment No. 1 to the Partnership
Admission Agreement ("Amendment No. 1") and to consummate the transactions
contemplated hereby, all proper actions of the Partners and the board of
directors and the shareholders of the General Partner authorizing the
execution, delivery and performance hereof having been taken. Amendment No.
1 has been duly executed and delivered by HALP and the General Partner and
constitutes the valid and legally binding obligation of HALP and the
General Partner enforceable in accordance with their respective terms,
except as the enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting the rights of creditors generally and judicial limitations
upon the specific performance of certain types of obligations.
(ii) NO VIOLATION. Neither the execution and delivery by the General
Partner and HALP of Amendment No. 1 nor consummation of the transactions
herein contemplated, nor compliance with the terms, conditions and
provisions hereof will conflict with or violate any provision of law or the
certificate of limited partnership of HALP or any of the Investment
Partnerships or the Agreement of Limited Partnership of HALP or any of the
Investment Partnerships or the certificate of incorporation or by-laws of
the General Partner or result in a violation or default in any provision of
any regulation, order, writ, injunction or decree of any court or
governmental agency or authority or of any agreement or instrument to which
the General Partner or HALP is a party or by which the General Partner or
HALP is bound or to which the General Partner or HALP is subject, or
constitute a default thereunder (except as contemplated by the Partnership
Admission Agreement or where such violation or default would not have a
Material Adverse Effect), assuming that all of the consents contemplated by
Sections 7.1 and 7.2 of the Partnership Admission Agreement have been
received and provided that the actions contemplated by Articles VII and
VIIA of the Partnership Admission Agreement are taken and the provisions of
the HSR Act shall have been complied with pursuant to Section 7.1(b) of the
Partnership Admission Agreement.
(iii) APPROVALS. No approval, authorization, order, license or consent of
or registration, qualification or filing with any governmental authority
and no approval or consent by any other person or entity is required in
connection with the execution, delivery or performance by HALP or the
General Partner, as the case may be, of Amendment No. 1, other than as
contemplated by Articles VII and VIIA.
(iv) LITIGATION. There are no legal, administrative or arbitration
actions, suits, proceedings or investigations of any kind pending, or, to
the best of HALP's and each Investment Partnership's knowledge after due
inquiry, threatened before any court, commission, agency or other
administrative authority by or against, or affecting, any Investment
Partnership's businesses or properties or the Investment Partnership GP
Interests, and neither HALP nor any Investment Partnership is the subject
of any order or decree. There are no actions, suits or proceedings pending
or, to the knowledge of HALP or any Investment Partnership, threatened
before any court, commission, agency or other administrative authority by
or against HALP or any Investment Partnership which, if adversely
determined, would adversely affect the Investment Partnership GP Admission
and Withdrawal contemplated hereby or which would restrain or enjoin the
consummation of the transactions contemplated by Amendment No. 1 or declare
unlawful the transactions or events contemplated by Amendment No. 1 or
cause such transactions to be rescinded. There are no
41
judgments, injunctions, orders or other judicial or administrative mandates
outstanding against or affecting HALP or any Investment Partnership which
would restrain or enjoin the consummation of the transactions contemplated
by Amendment No. 1.
(v) INVESTMENT PARTNERSHIPS. No amount has been credited during calendar
year 1995 to HALP's capital account in any of Stellar Partners L.P.,
Pleiades Partners L.P. and Perseus Partners Limited Partnership pursuant to
Section 2.05(c) of the agreement of limited partnership of any such
Investment Partnership.
b. NEIC hereby represents and warrants to HALP as follows:
(i) ORGANIZATION AND GENERAL PARTNER AND LIMITED PARTNERSHIP
AUTHORITY. NEIC is a limited partnership duly formed, validly existing and
in good standing under the laws of the State of Delaware, with full power
and authority to own or lease and use its properties and assets, to carry
on its business as such business is now conducted, to execute and deliver
this Amendment No. 1 and to consummate the transactions contemplated
hereby, all proper actions of NEIC and of NEIC's general partner
authorizing the execution, delivery and performance hereof having been
taken, except for the approval by holders of LP Units as contemplated by
Section 6.3 of the Partnership Admission Agreement. Amendment No. 1 has
been duly executed and delivered by NEIC and constitutes the valid and
legally binding obligation of NEIC enforceable in accordance with its
terms, except as the enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting the rights of creditors generally and judicial limitations
upon the specific performance of certain types of obligations.
(ii) NO VIOLATION. Neither the execution and delivery by NEIC of
Amendment No. 1 nor consummation of the transactions herein contemplated,
nor compliance with the terms, conditions and provisions hereof will
conflict with or violate any provision of law or the certificate of limited
partnership of NEIC or the agreement of limited partnership of NEIC or
result in a violation or default in any provision of any regulation, order,
writ, injunction or decree of any court or governmental agency or authority
or of any agreement or instrument to which NEIC is a party or by which NEIC
is bound or to which NEIC is subject, or constitute a default thereunder
(except as contemplated by the Partnership Admission Agreement or where
such violation or default would not have a Material Adverse Effect),
assuming that all of the consents contemplated by Sections 7.1 and 7.2 of
the Partnership Admission Agreement have been received and provided that
the actions contemplated by Articles VII and VIIA of the Partnership
Admission Agreement are taken and the provisions of the HSR Act shall have
been complied with pursuant to Section 7.1(b) of the Partnership Admission
Agreement.
(iii) APPROVALS. No approval, authorization, order, license or consent of
or registration, qualification or filing with any governmental authority
and no approval or consent by any other person or entity is required in
connection with the execution, delivery or performance by NEIC of Amendment
No. 1, other than as contemplated by Articles VII and VIIA.
(iv) LITIGATION. There are no actions, suits or proceedings pending or,
to NEIC's knowledge, threatened before any court, commission, agency or
other administrative authority by or against NEIC which, if adversely
determined, would adversely affect the Investment Partnership GP Admission
and Withdrawal contemplated hereby or which would restrain or enjoin the
consummation of the transactions contemplated by Amendment No. 1 or declare
unlawful the transactions or events contemplated by Amendment No. 1 or
cause such transactions to be rescinded. There are no judgments,
injunctions, orders or other judicial or administrative mandates
outstanding against or affecting NEIC which would restrain or enjoin the
consummation of the transactions contemplated by Amendment No. 1.
3. MISCELLANEOUS.
a. Terms used herein and not defined herein are used with the meaning given
to them in the Partnership Admission Agreement.
42
b. Except as amended hereby, the terms and provisions of the Partnership
Admission Agreement shall remain in full force and effect and are hereby
ratified and confirmed.
c. This Amendment No. 1 may be executed in counterparts (including executed
counterparts delivered and exchanged by facsimile transmission) each of which
shall be deemed to constitute an original, but all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties have duly executed this Amendment No. 1, all
as of the date first written above.
Xxxxxx Associates L.P.
By: XXXXXX ASSOCIATES, INC.,its
general partner
/s/ Xxxxxx X. Xxxxxxxxxxx
By: _________________________________
Xxxxxx X. Xxxxxxxxxxx
President
Xxxxxx Associates, Inc.
/s/ Xxxxxx X. Xxxxxxxxxxx
By: _________________________________
Xxxxxx X. Xxxxxxxxxxx
President
New England Investment Companies,
L.P.
By: NEW ENGLAND INVESTMENT
COMPANIES, INC., its general
partner
/s/ Xxxxx X. Xxxx
By: _________________________________
Xxxxx X. Xxxx
Chairman
Acknowledged and Agreed to as to
Section 6.14(d):
GLS Partners, L.P.
By: GLS PARTNERS INC.,its general
partner
/s/ Xxxxxx X. Xxxxxxxxx
By: _________________________________
Title: President
43
