<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(MARK ONE)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
FOR THE PERIOD ENDED SEPTEMBER 30, 1995 OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
FOR THE TRANSITION PERIOD FROM TO
Commission File Number 1-9215
UNITED ASSET MANAGEMENT CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 04-2714625
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 330-8900
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. /x/ Yes / / No
The number of shares of common stock outstanding as of October 25, 1995 was
30,329,384.
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<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements. (F-1 to F-4)
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations. (F-5 to F-7)
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
Certain of the Company's subsidiaries are subject to legal proceedings
arising in the ordinary course of business. On the basis of
information presently available and advice received from counsel, it
is the opinion of management that the disposition or ultimate
determination of such legal proceedings will not have a material
adverse effect on the financial position of the Company.
Item 2. Changes in Securities. Not Applicable
Item 3. Defaults Upon Senior Securities. None
Item 4. Submission of Matters to a Vote of Security Holders. Not Applicable
Item 5. Other Information. None
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibit 2 - Not Applicable
Exhibit 4 - Not Applicable
Exhibit 10.1 - Note Purchase Agreement dated as of August 1,
1995
Exhibit 10.2 - First Amendment and Consent dated as of August
1, 1995 to the Second Amended and Restated
Credit Agreement dated as of November 18, 1994
Exhibit 11 - Calculation of Earnings Per Share (F-8)
Exhibit 15 - Not Applicable
Exhibit 18 - Not Applicable
Exhibit 19 - Not Applicable
Exhibit 20 - Not Applicable
Exhibit 23 - Not Applicable
Exhibit 24 - Not Applicable
Exhibit 25 - Not Applicable
Exhibit 28 - Not Applicable
(b) There have been no reports on Form 8-K filed by the Company for
the quarter ended September 30, 1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNITED ASSET MANAGEMENT CORPORATION
November 8, 1995 /s/ William H. Park
- ---------------------- ---------------------------------
(Date) William H. Park
Executive Vice President and
Chief Financial Officer
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
UNITED ASSET MANAGEMENT CORPORATION
CONSOLIDATED STATEMENT OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------- ---------------------------
1995 1994 1995 1994
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Revenues . . . . . . . . . . . . . . $175,861,000 $118,922,000 $497,950,000 $355,787,000
Operating expenses:
Compensation and related
expenses. . . . . . . . . . . . . 84,445,000 57,910,000 236,177,000 172,053,000
Amortization of cost assigned
to contracts acquired . . . . . . 24,570,000 13,551,000 68,432,000 40,200,000
Other operating expenses . . . . . 25,783,000 18,806,000 75,585,000 57,589,000
------------ ------------ ------------ ------------
134,798,000 90,267,000 380,194,000 269,842,000
------------ ------------ ------------ ------------
Operating income . . . . . . . . . . 41,063,000 28,655,000 117,756,000 85,945,000
------------ ------------ ------------ ------------
Non-operating expenses:
Interest expense, net. . . . . . . 11,811,000 2,599,000 31,147,000 8,094,000
Other amortization . . . . . . . . 449,000 304,000 1,212,000 934,000
------------ ------------ ------------ ------------
12,260,000 2,903,000 32,359,000 9,028,000
------------ ------------ ------------ ------------
Income before income tax expense . . 28,803,000 25,752,000 85,397,000 76,917,000
Income tax expense . . . . . . . . . 12,328,000 10,996,000 36,548,000 32,963,000
------------ ------------ ------------ ------------
Net income . . . . . . . . . . . . . $ 16,475,000 $ 14,756,000 $ 48,849,000 $ 43,954,000
------------ ------------ ------------ ------------
------------ ------------ ------------ ------------
Earnings per share:
Primary earnings per share . . . . $.53 $.50 $1.57 $1.49
Fully diluted earnings per
share . . . . . . . . . . . . . . $.53 $.50 $1.56 $1.48
Dividends per share. . . . . . . . . $.30 $.26 $ .86 $ .74
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
F-1
<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
September 30, December 31,
1995 1994
(Unaudited)
- ------------------------------------------------------------------------------------
Assets
<S> <C> <C>
Current assets:
Cash and cash equivalents . . . . . . . . . $ 96,446,000 $ 89,050,000
Investment advisory fees receivable . . . . 114,377,000 77,292,000
Other current assets. . . . . . . . . . . . 13,958,000 12,922,000
-------------- ------------
Total current assets . . . . . . . . . . . . 224,781,000 179,264,000
Fixed assets, net. . . . . . . . . . . . . . 25,598,000 19,351,000
Cost assigned to contracts acquired, net . . 1,051,854,000 656,130,000
Other assets . . . . . . . . . . . . . . . . 63,322,000 60,882,000
-------------- ------------
Total assets . . . . . . . . . . . . . . . . $1,365,555,000 $915,627,000
-------------- ------------
-------------- ------------
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable and accrued expenses . . . $ 83,604,000 $ 65,032,000
Accrued compensation. . . . . . . . . . . . 70,254,000 48,048,000
Current portion of notes payable. . . . . . 1,741,000 1,009,000
-------------- ------------
Total current liabilities. . . . . . . . . . 155,599,000 114,089,000
Senior notes payable . . . . . . . . . . . . 158,500,000 172,000,000
Subordinated notes payable . . . . . . . . . 515,716,000 192,330,000
Deferred income taxes. . . . . . . . . . . . 42,722,000 37,367,000
-------------- ------------
Total liabilities. . . . . . . . . . . . . . 872,537,000 515,786,000
-------------- ------------
Commitments and contingencies
Stockholders' equity:
Common stock, par value $.01 per share. . . 308,000 283,000
Capital in excess of par value. . . . . . . 341,673,000 255,162,000
Retained earnings . . . . . . . . . . . . . 167,401,000 150,951,000
-------------- ------------
509,382,000 406,396,000
Less treasury shares at cost. . . . . . . . (16,364,000) (6,555,000)
-------------- ------------
Total stockholders' equity . . . . . . . . . 493,018,000 399,841,000
-------------- ------------
Total liabilities and stockholders'
equity. . . . . . . . . . . . . . . . . . . $1,365,555,000 $915,627,000
-------------- ------------
-------------- ------------
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
F-2
<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------- ----------------------------
1995 1994 1995 1994
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Cash flow from operating activities:
Net income . . . . . . . . . . . . $ 16,475,000 $ 14,756,000 $ 48,849,000 $ 43,954,000
Adjustments to reconcile net
income to net cash flow
from operating activities:
Amortization of cost assigned
to contracts acquired. . . . . 24,570,000 13,551,000 68,432,000 40,200,000
Depreciation . . . . . . . . . . 1,671,000 1,165,000 4,428,000 3,218,000
Other amortization . . . . . . . 449,000 304,000 1,212,000 934,000
------------ ------------ ------------- ------------
Net income plus amortization and
depreciation . . . . . . . . . . 43,165,000 29,776,000 122,921,000 88,306,000
Changes in assets and liabilities:
(Increase) decrease in
investment advisory fees
receivable . . . . . . . . . . (8,168,000) (1,518,000) (36,984,000) 1,605,000
(Increase) decrease in other
current assets . . . . . . . . (369,000) 391,000 (1,031,000) (1,456,000)
Increase (decrease) in
accounts payable and
accrued expenses . . . . . . . 8,254,000 (1,231,000) 18,567,000 (5,535,000)
Increase in accrued
compensation . . . . . . . . . 16,083,000 2,139,000 22,171,000 21,907,000
Increase in deferred income
taxes. . . . . . . . . . . . . 797,000 1,702,000 5,355,000 2,202,000
------------ ------------ ------------- ------------
Net cash flow from operating
activities. . . . . . . . . . . . 59,762,000 31,259,000 130,999,000 107,029,000
------------ ------------ ------------- ------------
Cash flow used in investing
activities:
Cash additions to cost assigned
to contracts acquired. . . . . . (201,000) (14,408,000) (40,862,000) (23,950,000)
Change in other assets . . . . . . (3,347,000) (1,280,000) (13,926,000) (6,900,000)
------------ ------------ ------------- ------------
Net cash flow used in investing
activities . . . . . . . . . . . . (3,548,000) (15,688,000) (54,788,000) (30,850,000)
------------ ------------ ------------- ------------
Cash flow from (used in) financing
activities:
Purchase of treasury shares. . . . (12,088,000) (2,697,000) (31,894,000) (13,397,000)
Reductions in long-term debt, net. (22,343,000) (14,769,000) (19,702,000) (40,374,000)
Issuance or reissuance of equity
securities . . . . . . . . . . . 2,128,000 1,456,000 8,837,000 7,448,000
Dividends declared . . . . . . . . (9,178,000) (7,307,000) (26,302,000) (20,819,000)
------------ ------------ ------------- ------------
Net cash flow used in financing
activities . . . . . . . . . . . . (41,481,000) (23,317,000) (69,061,000) (67,142,000)
------------ ------------ ------------- ------------
Effect of foreign exchange rate
changes on cash flow . . . . . . . (266,000) 478,000 246,000 1,717,000
Net increase (decrease) in cash and
cash equivalents. . . . . . . . . 14,467,000 (7,268,000) 7,396,000 10,754,000
Cash and cash equivalents at beginning
of period. . . . . . . . . . . . . 81,979,000 80,829,000 89,050,000 62,807,000
------------ ------------ ------------- ------------
Cash and cash equivalents at end of
period . . . . . . . . . . . . . . $ 96,446,000 $ 73,561,000 $ 96,446,000 $ 73,561,000
------------ ------------ ------------- ------------
------------ ------------ ------------- ------------
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
F-3
<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------------
(Unaudited)
Note 1
In the opinion of management, the accompanying unaudited Condensed
Consolidated Financial Statements contain all adjustments, consisting only of
normal recurring accruals, necessary to present fairly the financial position
of the Company and its subsidiaries at September 30, 1995 and their results
of operations and cash flows for the three and nine-month periods ended
September 30, 1995 and 1994. These Financial Statements should be read in
conjunction with the Company's Annual Report on Form 10-K for the year ended
December 31, 1994.
Note 2
Accumulated depreciation of fixed assets was $32,201,000 and
$27,773,000 at September 30, 1995 and December 31, 1994, respectively. The
accumulated amortization of cost assigned to contracts acquired was
$340,876,000 and $272,444,000 at September 30, 1995 and December 31, 1994,
respectively.
Note 3
The Company has a systematic program to repurchase shares of its
common stock to meet the requirements for future issuance of shares upon the
exercise of stock options and warrants. During the three month period ended
September 30, 1995, the Company repurchased 315,800 shares of its common
stock at a cost of $12,088,000. For the nine months ended September 30,
1995, common stock repurchases totaled 850,800 shares at a cost of
$31,894,000. During the three and nine-month periods ended September 30,
1995, exercises of warrants and stock options resulted in the Company
extinguishing subordinated notes, receiving cash proceeds and issuing stock
as follows:
<TABLE>
<CAPTION>
Three Months Nine Months
Ended Ended
September 30, 1995 September 30, 1995
------------------ ------------------
<S> <C> <C>
Subordinated notes extinguished $6,025,000 $23,636,000
Cash proceeds received $2,024,000 $7,732,000
Shares issued - 659,426
Treasury shares reissued 265,778 601,924
</TABLE>
As of September 30, 1995, the Company held 438,602 treasury shares.
As of September 30, 1995, 5,627,000 warrants and 3,635,000 stock options
were outstanding at average exercise prices of $38.98 and $30.35,
respectively.
F-4
<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The revenues of UAM's affiliated firms are derived from fees for investment
advisory services provided to institutional and other clients. Investment
advisory fees are generally a function of the overall fee rate charged to each
account and the level of assets under management by the affiliated firms.
Assets under management can be affected by the addition of new client accounts
or client contributions to existing accounts, withdrawals of assets from or
terminations of client accounts and investment performance, which may depend on
general market conditions.
During the third quarter of 1995, UAM experienced a net increase in assets
under management of $5.7 billion to a total of $139.2 billion as of September
30, 1995. Investment performance added $8.5 billion. This increase was
partially offset by negative net client cash flow of $2.8 billion.
AMORTIZATION OF COST ASSIGNED TO CONTRACTS ACQUIRED AND OPERATING CASH FLOW (NET
INCOME PLUS AMORTIZATION AND DEPRECIATION)
Cost assigned to contracts acquired, net of accumulated amortization,
represented 77% of the Company's total assets as of September 30, 1995.
Amortization of cost assigned to contracts acquired, which is a non-cash charge,
represented 18% of the Company's operating expenses for both the three and nine-
month periods ended September 30, 1995. Recording the cost assigned to
contracts acquired as an asset, with the resulting amortization as an operating
expense, reflects the application of generally accepted accounting principles to
acquisitions by UAM of investment management firms in transactions accounted for
as purchases, where the principal assets acquired are the contracts which
evidence the firms' ongoing relationships with their clients.
Although the contracts acquired are typically terminable on 30 days notice,
analyses conducted by independent consultants retained by UAM to assist the
Company in allocating the purchase price among the assets acquired and the
experience of UAM's firms to date have indicated that: 1) contracts are usually
relatively long-lived; 2) the duration of contracts can be reasonably estimated;
and 3) the value of the cost assigned to contracts acquired can be estimated
based on the present value of their projected income stream.
The cost assigned to contracts acquired is amortized on a straight-line
basis over the estimated weighted average useful life of the contracts of
individual firms acquired. These lives are estimated through statistical
analyses of historical patterns of terminations and the size and age of the
contracts acquired as of the acquisition date.
When actual terminations differ from the statistical patterns developed, or
upon the occurrence of certain other events, the Company updates the lifing
analyses discussed above. If the update indicates that any of the estimates of
the average remaining lives should be shortened, the remaining cost assigned to
contracts acquired will be amortized over the shorter life commencing in the
year in which the new estimate is determined. There has been no material effect
on the Company's financial position or results of operations as a result of
these updates.
Cost assigned to contracts acquired is amortized as an operating expense.
It does not, however, require the use of cash and therefore, management believes
that it is important to distinguish this expense from other operating expenses
in order to evaluate the performance of the Company. Amortization of cost
assigned to contracts acquired per share referred to below has been calculated
by dividing total amortization by the same number of shares used in the fully
diluted earnings per share calculation.
For purposes of this discussion, Operating Cash Flow is defined as net
income plus amortization and depreciation, as reflected in the Company's
Condensed Consolidated Statement of Cash Flows. Management uses Operating Cash
Flow not to the exclusion of net income, but rather as an additional important
measure of the Company's performance.
F-5
<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
OPERATING RESULTS
NINE MONTHS ENDED SEPTEMBER 30, 1995
-----------------------------------
COMPARED TO
NINE MONTHS ENDED SEPTEMBER 30, 1994
------------------------------------
Revenues increased 40% to $497,950,000 for the nine months ended
September 30, 1995, from $355,787,000 for the first nine months of 1994, due to
several factors. This increase is the result of acquisitions, as well as the
impact of favorable portfolio performance achieved by UAM's affiliated firms
partially offset by the effect of net client cash outflows. The revenues of
Suffolk Capital Management, Inc. and JMB Institutional Realty acquired July 14,
1994 and December 2, 1994, respectively, have been included in the first nine
months of 1995. In addition, the revenues of Provident Investment Counsel and
Pilgrim Baxter & Associates, acquired February 15, 1995 and April 28, 1995,
respectively, have been included since their acquisition dates.
Compensation and related expenses together with other operating expenses
increased 36% to $311,762,000 from $229,642,000 primarily reflecting the
acquisitions described in the preceding paragraph and higher compensation earned
at existing affiliates. The amortization of cost assigned to contracts acquired
increased 70% to $68,432,000 from $40,200,000 as a result of the acquisitions
discussed above.
Interest expense, net increased to $31,147,000 from $8,094,000, reflecting
the cost of financing the acquisitions discussed above.
Income before income tax expense increased 11% to $85,397,000 from
$76,917,000, reflecting the net result of the circumstances discussed above.
The Company's estimated annual effective tax rate approximates 43% for both the
nine months ended September 30, 1995 and 1994.
Net income increased 11% to $48,849,000 from $43,954,000 reflecting the
factors described above. Fully diluted earnings per share increased 5% to $1.56
from $1.48, reflecting higher net income and the effect of the Company's common
stock repurchased, partially offset by the impact of the issuance of shares of
common stock, the Company's higher common stock price and the exercise of
warrants and stock options on the calculation of earnings per share under the
modified treasury stock method. Amortization of cost assigned to contracts
acquired on a per-share basis increased to $2.06 from $1.35 primarily as a
result of the acquisitions described above.
THREE MONTHS ENDED SEPTEMBER 30, 1995
-------------------------------------
COMPARED TO
THREE MONTHS ENDED SEPTEMBER 30, 1994
--------------------------------------
Revenues increased 48% to $175,861,000 for the three months ended
September 30, 1995, from $118,922,000 for the third quarter of 1994 due to
several factors. The revenues of Suffolk Capital Management, Inc., JMB
Institutional Realty, Provident Investment Counsel and Pilgrim Baxter &
Associates acquired July 14, 1994, December 2, 1994, February 15, 1995 and April
28, 1995, respectively, have been included for the full three months ended
September 30, 1995. The portfolio performance achieved by UAM's affiliated
firms, partially offset by the effect of net client cash outflows, added to
assets under management and thus higher revenues.
Compensation and related expenses together with other operating expenses
increased 44% to $110,228,000 from $76,716,000 primarily reflecting the activity
described above and higher compensation earned at existing affiliates. The
amortization of cost assigned to contracts acquired increased 81% to $24,570,000
from $13,551,000 as a result of the acquisitions discussed above.
F-6
<PAGE>
Interest expense, net increased to $11,811,000 from $2,599,000, reflecting
the cost of financing the acquisitions discussed above.
Income before income tax expense increased 12% to $28,803,000 from
$25,752,000, reflecting the net result of the circumstances described above. The
Company's estimated annual effective tax rate approximates 43% for both the
three months ended September 30, 1995 and 1994.
Net income increased 12% to $16,475,000 from $14,756,000 reflecting the
factors described above. Fully diluted earnings per share increased 6% to $.53
for the third quarter of 1995 from $.50 in the third quarter of 1994, reflecting
higher net income and the effect of the Company's common stock repurchased,
partially offset by the impact of the issuance of shares of common stock, the
Company's higher common stock price and the exercise of warrants and stock
options on the calculation of earnings per share under the modified treasury
stock method. Amortization of cost assigned to contracts acquired on a per-
share basis increased to $.73 from $.46 primarily as a result of the
acquisitions described above.
CHANGES IN FINANCIAL CONDITION AND LIQUIDITY
--------------------------------------------
The Company generated $122,921,000 and $43,165,000 in Operating Cash Flow
(net income plus amortization and depreciation) for the nine and three-month
periods ended September 30, 1995, respectively. The primary use of this
Operating Cash Flow was to fund the cash portions of acquisitions, to repurchase
shares of the Company's common stock and to pay dividends to shareholders. There
was $8,500,000 in borrowings outstanding under the Company's $400,000,000
Revolving Credit Facility (the Credit Agreement) at September 30, 1995.
The Company completed a $150,000,000 private offering of senior secured
notes with a group of twelve insurance companies effective August 25, 1995. The
notes bear interest at a 7.12% fixed rate and mature in accordance with a
scheduled payment plan beginning in the year 2000 and ending in the year 2005.
The proceeds from the issuance of the notes were used to repay outstanding
debt borrowed under the Credit Agreement. In conjunction with the private
offering, the Company reduced the total commitment available under the Credit
Agreement from $500,000,000 to $400,000,000. Including the $150,000,000
private offering, the Company's committed senior borrowing capacity has
increased from $500,000,000 to $550,000,000.
Management believes that the Company's existing capital, together with
Operating Cash Flow and borrowings available under its revolving line of credit,
will provide the Company with sufficient resources to meet its present and
reasonably foreseeable future cash needs. Management expects that the principal
need for financial resources will be to acquire additional investment management
firms, to fund commitments related to acquisitions of investment management
firms, to fund shareholder dividends and to repurchase shares of the Company's
common stock, which will require cash, the issuance of additional UAM
securities, or some combination thereof. Whether the Company ultimately
completes any such additional acquisitions or the timing of such acquisitions is
not certain.
F-7
<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
Exhibit 11
CALCULATION OF EARNINGS PER SHARE
(In thousands, except per-share amounts)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ -------------------
1995 1994 1995 1994
---- ---- ---- ----
Common and common equivalent shares:
<S> <C> <C> <C> <C>
Net income. . . . . . . . . . . . . . . . . . . . . . . . $16,475 $14,756 $48,849 $43,954
Adjustments thereto (1) . . . . . . . . . . . . . . . . . 1,454 - 3,336 -
------- ------- ------- -------
Adjusted net income . . . . . . . . . . . . . . . . . . . $17,929 $14,756 $52,185 $43,954
------- ------- ------- -------
------- ------- ------- -------
Average shares outstanding. . . . . . . . . . . . . . . . 30,330 28,060 30,204 28,082
Adjustments thereto (2) . . . . . . . . . . . . . . . . . 3,379 1,494 2,939 1,516
------- ------- ------- -------
Shares used in computation. . . . . . . . . . . . . . . . 33,709 29,554 33,143 29,598
------- ------- ------- -------
------- ------- ------- -------
Per Share. . . . . . . . . . . . . . . . . . . . . . . . . . $ .53 $ .50 $ 1.56 $ 1.48
------- ------- ------- -------
------- ------- ------- -------
Common shares -- assuming full dilution:
Net income. . . . . . . . . . . . . . . . . . . . . . . . $16,475 $14,756 $48,849 $43,954
Adjustments thereto (1) . . . . . . . . . . . . . . . . . 1,343 - 2,787 -
------- ------- ------- -------
Adjusted net income . . . . . . . . . . . . . . . . . . . $17,818 $14,756 $51,636 $43,954
------- ------- ------- -------
------- ------- ------- -------
Average shares outstanding. . . . . . . . . . . . . . . . 30,330 28,060 30,204 28,082
Adjustments thereto (2) . . . . . . . . . . . . . . . . . 3,379 1,572 2,939 1,647
------- ------- ------- -------
Shares used in computation. . . . . . . . . . . . . . . . 33,709 29,632 33,143 29,729
------- ------- ------- -------
------- ------- ------- -------
Per Share. . . . . . . . . . . . . . . . . . . . . . . . . . $ .53 $ .50 $ 1.56 $ 1.48
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
- ------------------------
(1) The proceeds from the exercise of stock options and warrants in accordance
with the modified treasury stock method are first used to buy back up to
20% of the Company's common stock at the average price for the period in
the primary calculation and at the higher of the average or closing price
in the fully diluted calculation. Any remaining proceeds are used to
retire debt, and this adjusts income for interest assumed to be saved net
of income tax from the use of such proceeds.
(2) Adjusts shares for stock options and warrants under the modified treasury
stock method and contingently issuable shares based on the probability of
issuance, after adjusting for the stock assumed repurchased in accordance
with (1) above.
F-8
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
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 32
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SECTION 11. 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 Sue 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
One International Place
Boston, Massachusetts 02110
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.
<PAGE>
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 Heitman Pledge Agreement dated as of
August 25, 1993 by and between Heitman 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 "HEITMAN 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 Heitman Guaranty dated as of the date of this
Agreement made by Heitman in favor of the holders of the
Notes, as the same may be amended, supplemented or otherwise
modified from time to time (the "HEITMAN 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 Heitman 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 Heitman 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 & Barlow, One International
Place, Boston, Massachusetts 02110-2607, 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, 100 Federal Street, Boston,
Massachusetts, 02100, A.B.A. No. 011-000-390. 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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<PAGE>
(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 & Barlow, 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 Chapman and Cutler, 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,
J.P. Morgan 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 mark, 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 mark, 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 Heitman 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, Heitman 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
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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.
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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 bill quotations to bond-
equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the 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
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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:
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(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,
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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
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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
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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
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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
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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-
<PAGE>
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-
<PAGE>
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
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<PAGE>
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.
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<PAGE>
SECTION 22.7. ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO SUE. (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-
<PAGE>
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 PATRICIA W. WILSON
By
---------------------------------
Name STEVEN M. LAUDE
Authorized Signatories
-45-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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 LEONARD M. RUBENSTEIN
PRESIDENT, GAIMCO
-45-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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 CARY D. BUSSEMA
VICE PRESIDENT
-45-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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
---------------------------------
Diane W. Dales
Assistant Vice President
-45-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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
---------------------------------
CRAIG H. FARNSWORTH
Its 2nd Vice President
-45-
<PAGE>
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
3100 Sanders Road, Ste. J2A $1,000,000
Northbrook, Illinois 60062
Attention: Private Placements Department
Telephone Number: (708) 408-4394
Telecopier Number: (708) 402-3092
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 = Harris Trust and Savings Bank
ABA #071000288]
BNF = Allstate Life Insurance Company
Account #168-117-0
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)
<PAGE>
Notices
All notices of scheduled payments and written confirmation of each such payment,
to be addressed:
Allstate Insurance Company
Investment Operations---Private Placements
3075 Sanders Road, Ste. G4A
Northbrook, Illinois 60062 - 7127
Telephone: (708) 402-8709
Telecopy: (708) 402-7331
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: 36-2554642
A-2
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
BANKERS SECURITY LIFE INSURANCE SOCIETY $1,000,000
c/o Washington Square Capital, Inc.
100 Washington Square, Suite 800
Minneapolis, MN 55401-2147
Ref: Jim Tobin
Telephone Number: (612) 342-3204
Telefacsimile Number: (612) 372-5368
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 #021000128
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: SIGLER & CO.
Taxpayer I.D. Number: 53-0242530
A-3
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
CM LIFE INSURANCE COMPANY $4,000,000
140 Garden Street
Hartford, Connecticut 06154-0001
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 #021000018)
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
c/o The Bank of New York
P. O. Box 19266
Attention: P&I Department
Newark, New Jersey 07195
with a copy to:
CM Life Insurance Company
140 Garden Street
Hartford, Connecticut 06154
Attention: Private Placements, MS 272
A-4
<PAGE>
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
c/o The Bank of New York
P. O. Box 19266
Attention: P&I Department
Newark, New Jersey 07195
Name of Nominee in which Notes are to be issued: CM Life Insurance Co.
Taxpayer I.D. Number: 06-1041383
A-5
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
CONNECTICUT MUTUAL LIFE INSURANCE COMPANY $13,000,000
140 Garden Street $3,000,000
Hartford, Connecticut 06154
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 #021000018)
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
140 Garden Street
Hartford, Connecticut 06154
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
c/o The Bank of New York
P. O. Box 19266
Attention: P&I Department
Newark, New Jersey 07195
Name of Nominee in which Notes are to be issued: Connecticut Mutual Life
Insurance Co.
Taxpayer I.D. Number: 06-0304620
A-6
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
GENERAL AMERICAN LIFE INSURANCE COMPANY $6,000,000
700 Market Street
St. Louis, Missouri 63101
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 #021000018)
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. Box 418
St. Louis, Missouri 63166
Attention: Investment Accounting
and
GALICO
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
A-7
<PAGE>
All notices and communications, other than those in respect to payments to be
addressed to:
General American Life Insurance Company
P. O. Box 396
St. Louis, Missouri 63166
Attention: Securities Division
and
GALICO
c/o The Bank of New York
P. O. Box 19266
Newark, New Jersey 07195
Name of Nominee in which Notes are to be issued: GALICO
Taxpayer I.D. Number: 43-6168630
A-8
<PAGE>
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
8515 East Orchard Road
Englewood, Colorado 80111
Attention: U.S. Private Placements
3rd Floor, Tower 2
Telecopier Number: (303) 689-6193
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 #091000019
NW MPLS/TRUST CLEARING ACCT Number 08-40-245
Attention: Account Number 12368900
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.
733 Marquette Avenue, Investors Bldg., 5th Floor
Minneapolis, Minnesota 55479-0047
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: 84-1096239
A-9
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
JEFFERSON-PILOT LIFE INSURANCE COMPANY $10,000,000
P.O. Box 21008
Greensboro, North Carolina 27420
Attention: Securities Administration 3630
Telefacsimile: (910) 691-3025
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 #053 000 196)
Charlotte, North Carolina
(Greensboro office)
for credit to: Jefferson-Pilot Life Insurance Company
Account Number 020-000-014
Attention: Cash Management (910) 691-3133
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: 56-0359860
A-10
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-11
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-12
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-13
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-14
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-15
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-16
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
Private Placement Processing
New York, New York
Account Number 99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-0472300
A-17
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
New York, New York
Private Placement Processing
A/C #99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 35-1716060
A-18
<PAGE>
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.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
New York, New York
Private Placement Processing
A/C #99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: SALKELD & CO
Taxpayer I.D. Number for London Life International Reinsurance Corporation: 98-
0107498
Taxpayer I.D. Number for SALKELD & CO: 13-6065491
A-19
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $8,000,000
COMPANY
1295 State Street
Springfield, Massachusetts 01111
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 #021000021)
4 Chase MetroTech Center
New York, New York 10081
for credit to: Massachusetts Mutual Life Insurance Company
Pension Management Account Number 910-2594018
with telephone advice to the Securities Custody and Collection Department of
Massachusetts Mutual Life Insurance Company at (413) 744-3878.
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: 04-1590850
A-20
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE $8,000,000
COMPANY
1295 State Street
Springfield, Massachusetts 01111
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 #021000128)
4 Chase MetroTech Center
New York, New York 10081
for credit to: Massachusetts Mutual Life Insurance Company
IFM Traditional Account Number 910-1388131
with telephone advice to the Securities Custody and Collection Department of
Massachusetts Mutual Life Insurance Company at (413) 744-3878.
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: 04-1590850
A-21
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
NEW ENGLAND MUTUAL LIFE INSURANCE $10,000,000
COMPANY
501 Boylston Street
Boston, Massachusetts 02117
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 #021000128)
4 New York Plaza
New York, New York
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
501 Boylston Street
Boston, Massachusetts 02117
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: 04-1662730
A-22
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
NORTHERN LIFE INSURANCE COMPANY $4,000,000
c/o Washington Square Capital
100 Washington Square, Suite 800
Minneapolis, Minnesota 55401-2147
Attention: Securities Department
Telecopier Number: (612) 372-5368
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 #091000022)
601 2nd Avenue South
Attention: 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: 41-1295933
A-23
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
NORTHWESTERN NATIONAL LIFE INSURANCE $5,000,000
COMPANY
c/o Washington Square Capital
100 Washington Square, Suite 800
Minneapolis, Minnesota 55401-2147
Attention: Securities Department
Telecopier Number: (612) 372-5368
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 #091000022)
601 2nd Avenue South
Minneapolis, Minnesota 55402
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: 41-0451140
A-24
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
OXFORD LIFE INSURANCE COMPANY $900,000
c/o Lincoln Investment Management, Inc.
200 East Berry Street
Renaissance Square
Fort Wayne, Indiana 46802
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 #021001033)
New York, New York
Private Placement Processing
A/C #99-911-145
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 998
Bowling Green Station
New York, New York 10274
Attention: Private Placement Unit
Name of Nominee in which Notes are to be issued: SALKELD & CO
Taxpayer I.D. Number for Oxford Life Insurance Company: 86-0216483
Taxpayer I.D. Number for SALKELD & CO: 13-6065491
A-25
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
PACIFIC MUTUAL LIFE INSURANCE COMPANY $5,000,000
700 Newport Center Drive $5,000,000
Newport Beach, California 92658-9000
Attention: Fixed Income Securities Department
Telephone: (714) 760-4834; Facsimile: (714) 640-3199
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 #021001318)
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
P.O. Box 9000
Newport Beach, California 92658-9000
With a copy to:
Atwell & Co.
P.O. Box 456, Wall Street Station
New York, New York 10005
Name of Nominee in which Notes are to be issued: ATWELL & CO
Taxpayer I.D. Number: 13-6065575
A-26
<PAGE>
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
One Fountain Square
Chattanooga, Tennessee 37402
Telefacsimile: (423) 755-3351*
Confirmation: (423) 755-1365*
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 #021001033)
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.: 13-2895637
A-27
<PAGE>
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.
1300 South Clinton Street
Fort Wayne, Indiana 46801
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 #011900445)
777 Main Street
Hartford, Connecticut 06115
for credit to: Security-Connecticut Life Insurance Company (SPDA)
Account Number 0156196
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
20 Security Drive
Avon, Connecticut 06001
Attention: Jodi Dean
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: 35-1468921
A-28
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE TRAVELERS INSURANCE COMPANY $18,000,000
One Tower Square
Hartford, Connecticut 06183-2030
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 #021000021)
One Chase Manhattan Plaza
New York, New York 10081
for credit to: The Travelers Insurance Company---
Consolidated Private Placement Account Number 910-2-587434
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: 06-0566090
A-29
<PAGE>
NAME AND ADDRESS OF PURCHASER PRINCIPAL AMOUNT OF
NOTES TO BE PURCHASED
THE TRAVELERS INSURANCE COMPANY $2,000,000
One Tower Square
Hartford, Connecticut 06183-2030
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 #021000021)
One Chase Manhattan Plaza
New York, New York 10081
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: CUDD & CO
Taxpayer I.D. Number: 06-0566090
A-30
<PAGE>
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 Morgan 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, Morgan
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)
<PAGE>
"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 Heitman 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
<PAGE>
(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
<PAGE>
"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
<PAGE>
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 Morgan
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, Heitman, 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
<PAGE>
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
<PAGE>
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, Heitman, 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).
"HEITMAN" means Heitman 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
<PAGE>
(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
<PAGE>
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
<PAGE>
"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, Heitman or UAM U.K. Holdings, as
the case may be, to the Collateral Agent pursuant to the Pledge Agreement,
the Subsidiaries Pledge Agreement, the Heitman 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, choate 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
<PAGE>
"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
<PAGE>
"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
<PAGE>
SCHEDULE 4.11
(TO NOTE PURCHASE AGREEMENT)
CHANGE IN CORPORATE STRUCTURE
The Company succeeded to certain liabilities of Pilgrim Baxter &
Associates, Ltd. in connection with its acquisition by the Company on
April 28, 1995.
<PAGE>
SCHEDULE 5.3
(TO NOTE PURCHASE AGREEMENT)
DISCLOSURE
None
<PAGE>
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 Murray
Johnstone Limited (Scotland), Murray 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 Heitman Exempted
Subsidiary, a Murray Johnstone 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 Heitman Financial
Ltd. ("Heitman"), Heitman is restricted from declaring
or paying dividends or making distributions to
shareholders other than distributions required by the
Revenue Sharing Agreement between Heitman and the Company.
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Alpha Global Fixed Income Managers, Inc. (DE) 100 100% Company
Analytic Investment Management, Inc. (CA) 3,400 100% Company
Barrow, Hanley, Mewhinney & Strauss, Inc. (NV) 100 100% Company
Cambiar Investors, Inc. (CO) 100 100% Company
The Campbell Group, Inc. (DE) 100 100% Company
**/***Timber Pacific Properties, Inc. (OR) 100 100% The Campbell Group, Inc.
Chicago Asset Management Company (DE) 100 100% Company
Cooke & Bieler, Inc. (PA) 5,462 100% Company
**/***Baxter & Stewart, Inc. (PA) 100 100% Cooke & Bieler, Inc.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 1
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
C. S. McKee & 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
Hamilton, Allen & Associates, Inc. (DE) 100 100% Company
HIMCO, INC., d/b/a Hanson Investment Management
Company (CA) 400 100% Company
Investment Counselors of Maryland, Inc. (MD) 7,500 100% Company
Investment Research Company (IL) 100 100% Company
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 2
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
**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.
John K. Dwight 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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 3
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 4
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
**/***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.
Nelson, Benson & Zellmer, Inc. (DE) 100 100% Company
2/**Investment Trust Company (CO) 25,000 100% Nelson, Benson & Zellmer,
Inc.
Newbold's Asset Management, Inc. (PA) 100 100% Company
Northern Capital Management Incorporated (WI) 100 100% Company
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 5
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
NWQ Investment Management Company, Inc. (MA) 200,000 100% United Asset Management
Holdings, Inc.
Olympic Capital Management, Inc. (WA) 100 100% Company
Pilgrim Baxter & 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, James & Associates (CA) 100 100% Company
Rothschild Pell Rudman, Inc. (MD)
(formerly named The Rothschild Company) 638.6316 100% Company
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 6
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY)
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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
Thompson, Siegel & Walmsley, 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
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 7
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Acadian Asset Management, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
Dewey Square Investors Corporation (DE) 100 100% United Asset Management
Holdings, Inc.
HT Investors, Inc. (DE) 100 100% Dewey 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.
Hagler, Mastrovita & Hewitt, Inc. (DE) 50,000 100% United Asset Management
Holdings, Inc.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 8
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Hellman, Jordan Management Company, Inc. (DE) 449.5 100% United Asset Management
Holdings, Inc.
Pell, Rudman & Co., Inc. (DE) 100 100% United Asset Management
Holdings, Inc.
**/***Atlantic Trust Company, National Association 3 100% Pell, Rudman & Co., Inc.
2/**Boston Harbor Trust Company, National Association 4,670 100% Pell, Rudman & Co., Inc.
Provident Investment Counsel, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
Tom Johnson Investment Management, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 9
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
**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
**Heitman Financial Ltd. (IL) 100 100% Company
**Heitman Financial Services Ltd. (IL) 1,000 100% Heitman Financial Ltd.
+/**Heitman FEW 2 Corp. (IL) 1,000 100% Heitman Financial Services
Ltd.
+/**HMI Management Company (IL) 9,400 100% Heitman Financial Services
Ltd.
+/**Philadelphian Realty Corporation (DE) 1,000 100% Heitman Financial Services
Ltd.
+/**Heitman Holdings, Ltd. (DE) 1,000 100% Heitman Financial Services
Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 10
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Equities Corporation (DE) 1,000 100% Heitman Financial Services
Ltd.
+/*/**Heitman Securities Corporation (DE) 1,000 100% Heitman Financial Services
Ltd.
+/**HRC - OCC, Inc. (NV)
(formerly named HRC, Inc.) 1,000 100% Heitman Financial Services
Ltd.
+/**HRC - York Corporation (IL) 1,000 100% Heitman Realty Corporation
+/**Heitman Realty Corporation (IL) 1,000 100% Heitman Financial Services
Ltd.
+/**Heitman Snowmass Corporation (IL) 100 100% Heitman Financial Services
Ltd.
+/**HRC III, Inc. (NV) 100 100% Heitman Financial Services
Ltd.
+/**H.E. One, Inc. (DE) 3,385 100% Heitman Financial Services
Ltd.
+/**HRC IV, Inc. (NV) 100 100% Heitman Financial Services
Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 11
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**HRC V, Inc. (NV) 100 100% Heitman Financial Services
Ltd.
+/**HRC VI, Inc. (DE) 100 100% Heitman Financial Services
Ltd.
+/**Castle Loan Corporation (IL) 1,000 100% Heitman Financial Services
Ltd.
+/**HRC - LLC, Inc. (WY) 100 100% Heitman Financial Services
Ltd.
+/**Heitman Financial U.K. Ltd. (IL) 1,000 100% Heitman Financial Ltd.
Heitman/JMB Advisory Corporation (IL)
(formerly named Heitman Advisory Corporation) 1,000 100% Heitman 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
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 12
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
**Heitman Properties Ltd. (IL) 39,763 100% Heitman 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.
+/**Heitman 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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 13
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**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.
+/**Heitman D.C. 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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 14
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 15
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 16
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Properties of Colorado, Ltd. (CO) 100
(preferred) 100%
800 80% Heitman Properties Ltd.
(common)
+/**Heitman Properties of Connecticut, Ltd. (CT) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Delaware, Ltd. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Georgia, Ltd. (GA) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Maryland, Ltd. (MD) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Massachusetts, Ltd. (MA) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of New Jersey, Ltd. (NJ) 1,000 100% Heitman Properties Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 17
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Properties of Oklahoma, Ltd. (OK) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Washington, Ltd. (WA) 1,000 100% Heitman Properties Ltd.
+/**Heitman Development Co. Ltd. (IL) 1,000 100% Heitman Properties Ltd.
+PRA Securities Advisors, Inc. (IL) 1,000 100% Heitman Financial Ltd.
+/** Heitman/JMB Institutional Advisors (IL
general partnership) --- 60% Heitman/JMB Advisory
Corporation (IL)
--- 40% Heitman/JMB Institutional
Realty Advisors, Inc. (IL)
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 18
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman/JMB Endowment Advisors, L.P. (IL) --- 60% Heitman/JMB Advisory
Corporation (IL)
--- 40% Heitman/JMB Institutional
Realty Advisors, Inc. (IL)
+/**Heitman/JMB Institutional Realty Advisors,
L.P. (IL) --- 99% Heitman/JMB Advisory
Corporation (IL)
--- 1% Heitman/JMB Institutional
Realty Advisors, Inc. (IL)
**United Asset Management U.K. Holdings,
Inc. (DE) 1 100% Company
**Murray Johnstone Holdings Limited (Scotland) 8,092,361 100% United Asset Management
U.K. Holdings, Inc.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 19
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1/**Murray Johnstone International Limited
(Scotland) 1,000,000
(ordinary) 100% Murray Johnstone Limited
400,000 A00% Murray Johnstone Limited
(preferred)
1/**Murray Johnstone Limited (Scotland) 1,001,000 100% Murray Johnstone Holdings
Limited
1/**Murray Johnstone Investment Trust Management
Limited (Scotland) 2 100% Murray Johnstone Limited
1/**Murray Johnstone Private Equity Limited
(Scotland) (formerly named Murray Johnstone
Developments Limited) 2 100% Murray Johnstone Limited
1/**Murray Johnstone Europe Limited (Scotland) 2 100% Murray Johnstone Limited
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 20
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1/**Murray Johnstone Asset Management Limited
(Scotland) 500 100% Murray Johnstone Limited
1/**Murray Johnstone Personal Asset Management
Limited (Scotland) 100,000 60% Murrah Johnstone Limited
(ordinary)
400,000 100% Murray Johnstone Limited
(preferred)
1/**Murray Johnstone (General Partner) Limited
(England) 5,000 100% Murray Johnstone Limited
1/**BIG (General Partner) Limited (Scotland) 5,000 100% Murray Johnstone Limited
1/**Murray Johnstone Unit Trust Management
Limited (Scotland) 50,000 100% Murray Johnstone Limited
1/**Embankment Properties (Management) Limited
(Jersey) 25,000 67% Murray Johnstone Limited
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 21
<PAGE>
July 19, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
PERCENTAGE OF
CAPITAL STOCK
TOTAL CAPITAL (OR EQUITY
STOCK ISSUED AND INTEREST)
NAME OUTSTANDING OWNED OWNER
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1/**Murray Johnstone (Jersey) Limited
(Jersey) 25,000 100% Murray Johnstone Limited
1/**Murray Johnstone Buyout Management (Jersey)
Limited (Jersey) 27,824 100% Murray Johnstone Limited
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
3 = Not pledged to Collateral Agent
Page 22
<PAGE>
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.
<PAGE>
SCHEDULE 5.8
(to Note Purchase Agreement)
----------------------------
Litigation
----------
None
<PAGE>
SCHEDULE 5.11
(TO NOTE PURCHASE AGREEMENT)
LICENSES, PERMITS, ETC.
None
<PAGE>
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.
<PAGE>
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, Mewhinney & Strauss, 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) Heitman 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 Heitman Financial Ltd. to
LaSalle National Bank, pursuant to an agreement made by the Company in
favor
<PAGE>
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 Heitman 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;
<PAGE>
HEITMAN PERMITTED INDEBTEDNESS
(1) Indebtedness of Heitman 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 Heitman Financial
Ltd. and a Revolving Credit Note dated as of March 15, 1994 of Heitman
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
Heitman Financial Ltd. to LaSalle National Bank by the following:
(a) Heitman/JMB Advisory Corporation and all of its subsidiary
corporations; (b) Heitman Financial Services Ltd. and all of its
subsidiary corporations; (c) Heitman Properties Ltd. and all of its
subsidiary corporations; (d) Heitman 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 Heitman 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 Heitman Properties Ltd.
and Bank of America Illinois and a Note dated March 5, 1992, as
amended, of Heitman Properties Ltd. payable to the order of Bank of
America Illinois in the principal sum of $5,000,000.
(4) Indebtedness of Heitman 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 Heitman Properties Ltd. and Bank of America
Illinois and a Second Amended and Restated Note dated as of June 14,
1994 of Heitman Properties Ltd. payable to the order of Bank of America
Illinois in the principal sum of $1,096,277.17.
<PAGE>
(5) Guaranty of Payment dated March 5, 1992 of Heitman Financial Ltd. in favor
of Bank of America Illinois of the obligations of Heitman Properties Ltd.
to Bank of America Illinois.
(6) A Guaranty in favor of Bank of America Illinois of the obligations of
Heitman Properties Ltd. to Bank of America Illinois by all of the
subsidiary corporations of Heitman Properties Ltd. as required under the
terms of the Bank of America Loan Agreement.
(7) Indebtedness of Heitman Holdings Ltd. and Heitman 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 Heitman Holdings Ltd. and Heitman 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 Heitman Financial Ltd. in
favor of General Electric Capital Corporation of the obligations of
Heitman Financial Services Ltd. to General Electric Capital Corporation.
(10) Corporate Guaranty dated October 25, 1991 of Heitman Financial Ltd. in
favor of General Electric Capital Corporation of the obligations of
Heitman Holdings Ltd. to General Electric Capital Corporation.
(11) Corporate Guaranty dated October 25, 1991 of Heitman Advisory Corporation
in favor of General Electric Capital Corporation of the obligations of
Heitman Financial Services Ltd. to General Electric Capital Corporation.
(12) Corporate Guaranty dated October 25, 1991 of Heitman Advisory Corporation
in favor of General Electric Capital Corporation of the obligations of
Heitman Holdings Ltd. to General Electric Capital Corporation.
<PAGE>
Personal and Confidential
-------------------------
UNITED ASSET MANAGEMENT CORPORATION
MEMORANDUM
TO: Nancy Douglas
FROM: United Asset Management Corporation
DATE: August 7, 1995
SUBJECT: Senior Debt Balance
Maturity Date Bank Amount
------------- ---- ------
8/14/95 Morgan $ 5,000,000
8/24/95 Credit Lyonnais 3,000,000
8/31/95 Morgan 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
<PAGE>
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 James P. Barrow 0.00 01/07/95 0.085
James P. Barrow 0.00 03/01/95 0.085
James P. Barrow 379,356.08 03/01/96 0.085
James P. Barrow 379,356.08 03/01/97 0.085
James P. Barrow 0.00 03/01/95 0.085
James P. Barrow 381,163.65 03/01/96 0.085
James P. Barrow 381,163.65 03/01/97 0.085
James P. Barrow 381,163.65 03/01/98 0.085
------------
1,902,203.11
Bryant M. Hanley, Jr. 0.00 01/07/95 0.085
Bryant M. Hanley, Jr. 0.00 03/01/95 0.085
Bryant M. Hanley, Jr. 379,356.08 03/01/96 0.085
Bryant M. Hanley, Jr. 379,356.08 03/01/97 0.085
Bryant M. Hanley, Jr. 0.00 03/01/95 0.085
Bryant M. Hanley, Jr. 381,163.65 03/01/96 0.085
Bryant M. Hanley, Jr. 381,163.65 03/01/97 0.085
Bryant M. Hanley, Jr. 381,163.65 03/01/98 0.085
------------
1,902,203.11
Michael C. Mewhinney 0.00 01/07/95 0.085
Michael C. Mewhinney 0.00 03/01/95 0.085
Michael C. Mewhinney 379,356.08 03/01/96 0.085
Michael C. Mewhinney 379,356.08 03/01/97 0.085
Michael C. Mewhinney 0.00 03/01/95 0.085
Michael C. Mewhinney 381,163.65 03/01/96 0.085
Michael C. Mewhinney 381,163.65 03/01/97 0.085
Michael C. Mewhinney 381,163.65 03/01/98 0.085
------------
1,902,203.11
John L. Strauss 0.00 01/07/95 0.085
John L. Strauss 0.00 03/01/95 0.085
John L. Strauss 379,356.08 03/01/96 0.085
John L. Strauss 379,356.08 03/01/97 0.085
John L. Strauss 0.00 03/01/95 0.085
John L. Strauss 381,163.65 03/01/96 0.085
John L. Strauss 381,163.65 03/01/97 0.085
John L. Strauss 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
=============================================================================
Dwight John K. Dwight 5,376,000.00 01/04/01 0.055
John K. Dwight 992,670.00 01/31/02 0.055
------------
6,368,670.00
============================================================================
<PAGE>
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 Philip Arnold - Trust 700,000.00 06/24/96 0.090
Philip & Ellen Arnold
Charitable Trust 77,250.00 06/24/96 0.090
-------------
777,250.00
Robert Thornburgh 85,000.00 08/08/96 0.090
Robert Thornburgh 9,375.00 06/24/96 0.090
-------------
94,375.00
John Borland, Jr. 255,000.00 08/08/96 0.090
John Borland, Jr. 28,125.00 06/24/96 0.090
-------------
283,125.00
-------------
1,154,750.00
============================================================================
GSB Mark J. Stupfel 3,358,693.60 01/02/01 0.055
Frank P. Ganucheau, III 2,190,434.25 01/02/01 0.055
Elisabeth M. Ganucheau 2,190,434.25 01/02/01 0.055
Mark L. Johnson 730,172.50 01/02/01 0.055
Charles P. Lamb 438,100.73 01/02/01 0.055
William M. Bowen, IV 219,057.30 01/02/01 0.055
Lyle E. Brumley 1,460,331.12 01/02/01 0.055
Ronald J. Goldman 730,172.50 01/02/01 0.055
William A. Landreth, Jr. 730,172.50 01/02/01 0.055
Hal Ford Smith 365,086.25 01/02/01 0.055
Dee M. Perkins 730,172.50 01/02/01 0.055
Scott Sherman 730,172.50 01/02/01 0.055
-------------
13,873,000.00
============================================================================
<PAGE>
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
Neil G. Bluhm 347,643.00 12/02/01 0.065
Neil G. Bluhm 4,710.00 01/31/02 0.065
-------------
352,353.00
Barry A. Malkin 115,881.00 12/02/01 0.065
Barry A. Malkin 1,570.00 01/31/02 0.065
-------------
117,451.00
Randi H. Malkin 115,881.00 12/02/01 0.065
Randi H. Malkin 1,570.00 01/31/02 0.065
-------------
117,451.00
Stephen J. Malkin 115,881.00 12/02/01 0.065
Stephen J. Malkin 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
James P. Owen 3,510,000.00 09/30/99 0.060
James P. Owen 682,500.00 09/30/99 0.060
-------------
4,192,500.00
Edward C. Friedel, Jr. 2,026,800.00 09/30/99 0.060
Edward C. Friedel, Jr. 394,100.00 09/30/99 0.060
-------------
2,420,900.00
James H. Galbreath 1,573,200.00 09/30/99 0.060
James H. Galbreath 305,900.00 09/30/99 0.060
-------------
1,879,100.00
Mary-Gene Slaven 723,600.00 09/30/99 0.060
Mary-Gene Slaven 140,700.00 09/30/99 0.060
-------------
864,300.00
-------------
37,762,900.00
============================================================================
<PAGE>
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 Edward I. Rudman 2,070,000.00 03/29/00 0.060
Anthony D. Pell 2,070,000.00 03/29/00 0.060
-------------
4,140,000.00
============================================================================
PB&A Donna S. Archer 255,092.00 01/02/96 0.065
Donna S. Archer 67,168.00 01/02/96 0.065
Donna S. Archer 149,006.00 04/28/02 0.065
Donna S. Archer 173,254.00 04/28/02 0.065
-------------
644,520.00
Harold J. Baxter 12,003,511.00 01/02/96 0.065
Harold J. Baxter 3,160,620.00 01/02/96 0.065
Harold J. Baxter 7,011,566.00 04/28/02 0.065
Harold J. Baxter 8,152,565.00 04/28/02 0.065
-------------
30,328,262.00
Brian F. Bereznak 1,020,369.00 01/02/96 0.065
Brian F. Bereznak 268,671.00 01/02/96 0.065
Brian F. Bereznak 596,025.00 04/28/02 0.065
Brian F. Bereznak 693,015.00 04/28/02 0.065
-------------
2,578,080.00
Loraine E. McEvoy 170,061.00 01/02/96 0.065
Loraine E. McEvoy 44,779.00 01/02/96 0.065
Loraine E. McEvoy 99,337.00 04/28/02 0.065
Loraine E. McEvoy 115,503.00 04/28/02 0.065
-------------
429,680.00
Bruce J. Muzina 2,720,985.00 01/02/96 0.065
Bruce J. Muzina 716,457.00 01/02/96 0.065
Bruce J. Muzina 1,589,399.00 04/28/02 0.065
Bruce J. Muzina 1,848,043.00 04/28/02 0.065
-------------
6,874,884.00
Gary L. Pilgrim 12,003,511.00 01/02/96 0.065
Gary L. Pilgrim 3,160,620.00 01/02/96 0.065
Gary L. Pilgrim 7,011,566.00 04/28/02 0.065
Gary L. Pilgrim 8,152,565.00 04/28/02 0.065
-------------
30,328,262.00
Arline M. Wolstenholme 170,061.00 01/02/96 0.065
Arline M. Wolstenholme 44,779.00 01/02/96 0.065
Arline M. Wolstenholme 99,337.00 04/28/02 0.065
Arline M. Wolstenholme 115,503.00 04/28/02 0.065
-------------
429,680.00 0.065
-------------
71,613,368.00
============================================================================
<PAGE>
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 Robert M. Kommerstad 58,821,543.00 01/02/96 0.065
Robert M. Kommerstad 4,862,332.00 02/15/02 0.065
--------------
63,683,875.00
George E. Handtmann III 46,357,218.00 01/02/96 0.065
George E. Handtmann III 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Larry D. Tashjian 46,357,218.00 01/02/96 0.065
Larry D. Tashjian 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Jeffrey J. Miller 46,357,218.00 01/02/96 0.065
Jeffrey J. Miller 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Thomas J. Condon 46,357,218.00 01/02/96 0.065
Thomas J. Condon 3,832,000.00 02/15/02 0.065
--------------
50,189,218.00
Lauro F. Guerra 2,518,045.00 01/02/96 0.065
Lauro F. Guerra 208,148.00 02/15/02 0.065
--------------
2,726,193.00
F. Brown Windle 2,518,045.00 01/02/96 0.065
F. Brown Windle 208,148.00 02/15/02 0.065
--------------
2,726,193.00
Thomas M. Mitchell 2,518,045.00 01/02/96 0.065
Thomas M. Mitchell 208,148.00 02/15/02 0.065
--------------
2,726,193.00
--------------
272,619,326.00
=============================================================================
Sirach Wilmington Trust Co (Boyd E. Sharp) 750,780.00 03/31/97 0.0875
George B. Kauffman 834,197.00 03/31/97 0.0875
J. Michael Flinn 442,155.92 01/04/96 0.0875
J. Michael Flinn 834,197.00 03/31/97 0.0875
-------------
1,276,352.92
William B. Sanders 215,515.47 01/04/96 0.0875
William B. Sanders 834,197.00 03/31/97 0.0875
-------------
1,049,712.47
Estate of Laurence O. Elvins 0.00 03/31/97 0.0875
-------------
3,911,042.39
=============================================================================
<PAGE>
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 Alexander W. McAlister 20,000.00 08/26/98 0.075
Alexander W. McAlister 36,203.00 11/30/00 0.075
Alexander W. McAlister 3,987.00 01/31/01 0.075
------------
60,190.00
David M. Ralston 205,000.00 08/26/98 0.075
David M. Ralston 343,925.00 11/30/00 0.075
David M. Ralston 37,863.00 01/31/01 0.075
------------
586,788.00
Mark W. Whalen 205,000.00 08/26/98 0.075
Mark W. Whalen 343,925.00 11/30/00 0.075
Mark W. Whalen 37,863.00 01/31/01 0.075
------------
586,788.00
------------
1,233,766.00
============================================================================
Suffolk Donald M. Gilbert 2,512,883.40 07/14/01 0.060
Donald M. Gilbert 1,072,303.79 02/28/02 0.060
------------
3,585,187.19
Erich G. Weissenberger, Jr. 2,056,216.10 07/14/01 0.060
Erich G. Weissenberger, Jr. 856,605.23 02/28/02 0.060
------------
2,912,821.33
Hiram F. Moody, Jr. 235,370.50 07/14/01 0.060
Hiram F. Moody, Jr. 340,395.71 02/28/02 0.060
------------
575,766.21
Richard G. Phillips 48,530.00 07/14/01 0.060
Richard G. Phillips 22,922.27 02/28/02 0.060
------------
71,452.27
------------
7,145,227.00
============================================================================
TJIM Thomas E. Johnson 9,735,000.00 12/09/99 0.060
Jerry L. Wise 990,000.00 12/09/99 0.060
Richard H. Parry 165,000.00 12/09/99 0.060
Lori A. Calfy 110,000.00 12/09/99 0.060
--------------
11,000,000.00
============================================================================
Sub-Total 512,902,626.15
Pell Rudman Debt (Brown Brothers) 1,083,330.00
HFL Long Term Debt 2,196,000.00
--------------
Total 516,181,956.15
============================================================================
<PAGE>
[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 Morgan 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)
<PAGE>
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
<PAGE>
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)
<PAGE>
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
<PAGE>
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
<PAGE>
* [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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY
The closing opinion of Hill & Barlow, 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)
<PAGE>
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
<PAGE>
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 & Barlow 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
<PAGE>
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of Chapman and Cutler, 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 Chapman and Cutler shall also state that the opinion of
Hill & Barlow is satisfactory in scope and form to Chapman and Cutler 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, Chapman and
Cutler 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 Chapman and Cutler 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)
<PAGE>
With respect to matters of fact upon which such opinion is based,
Chapman and Cutler may rely on appropriate certificates of public officials
and officers of the Company.
E-4.4(b)-2
<PAGE>
M&S DRAFT 08/24/95
FIRST AMENDMENT AND CONSENT
FIRST AMENDMENT AND CONSENT (this "AMENDMENT"), dated as of August 1,
1995 by and among UNITED ASSET MANAGEMENT CORPORATION (the "COMPANY"), UAM
REALTY ADVISORS INVESTMENT CORPORATION, DEWEY SQUARE INVESTORS CORPORATION,
UNITED ASSET MANAGEMENT HOLDINGS, INC., UNITED ASSET MANAGEMENT TRADEMARK, INC.,
UAM INVESTMENT CORPORATION, HEITMAN FINANCIAL LTD., UNITED ASSET MANAGEMENT U.K.
HOLDINGS, INC., MORGAN GUARANTY TRUST COMPANY OF NEW YORK ("Morgan"), THE FIRST
NATIONAL BANK OF BOSTON ("BKB"), MELLON BANK, N.A. ("Mellon"), DEUTSCHE BANK
A.G. NEW YORK BRANCH/CAYMAN ISLANDS BRANCH ("Deutsche Bank"), CHEMICAL BANK
("Chemical"), CREDIT LYONNAIS NEW YORK BRANCH ("Credit Lyonnais New York"),
CREDIT LYONNAIS CAYMAN ISLAND BRANCH ("Credit Lyonnais Cayman Island"), SHAWMUT
BANK, N.A. ("Shawmut"), NATIONSBANK, N.A. ("Nationsbank"), BANK HAPOALIM B.M.
("Bank Hapoalim"), THE DAIWA BANK, LIMITED ("Daiwa"), FLEET BANK OF
MASSACHUSETTS ("Fleet"), BAYBANK BOSTON, N.A. ("BayBank"), WACHOVIA BANK OF
GEORGIA, N.A. ("Wachovia"), BROWN BROTHERS HARRIMAN & CO. ("BBH"); Morgan, BKB,
Mellon, Deutsche Bank, Chemical, Credit Lyonnais New York, Credit Lyonnais
Cayman Island, Shawmut, NationsBank, Bank Hapoalim, Daiwa, Fleet, BayBank,
Wachovia and BBH, each, a "Bank", and collectively, the "Banks"), MORGAN, as
Agent (the "Agent"), and BKB, as Collateral Agent (the "Collateral Agent").
R E C I T A L S:
A. The Company, the Banks, the Agent and the Collateral Agent are
parties to the Second Amended and Restated Credit Agreement dated as of November
18, 1994 (as heretofore amended, the "CREDIT AGREEMENT").
B. Section 5.12(o) of the Credit Agreement permits the Company to
incur Indebtedness in the aggregate principal amount not to exceed $100,000,000
incurred in a private placement or public offering of debt securities of the
Company, subject to certain restrictions contained in such Section and in
Section 5.21(c), and Section 5.14(l) of the Credit Agreement permits the Company
and its Subsidiaries to create Encumbrances on the Collateral securing such
Indebtedness, in each case pursuant to documentation acceptable in form and
substance to the Required Banks.
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C. The Company proposes to issue up to $150,000,000 in aggregate
principal amount of its Senior Secured Notes (the "Senior Notes") due August 25,
2005 pursuant to several Note Purchase Agreements substantially in the form of
Exhibit A hereto (as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof, the "Note Purchase
Agreements"). The obligations of the Company in respect of the Senior Notes are
to be guaranteed by each of the Guaranty Subsidiaries pursuant to guarantees
substantially in the forms annexed hereto as Exhibits B-1 through B-4,
respectively (as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof, the "Senior Note
Guaranties"). The obligation of the Company and the Guaranty Subsidiaries in
respect of the Senior Notes and the Senior Note Guaranties are to be secured by
the Collateral from time to time held by the Collateral Agent. The relative
rights and priorities of the Banks, the Agents and the holders of the Senior
Notes with respect to the Collateral and the guaranties made by the Guaranty
Subsidiaries in favor of the Agents and the Banks and the holders of the Senior
Notes, respectively, are to be governed by a Collateral Agency and Intercreditor
Agreement substantially in the form of Exhibit C hereto (as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, the "Intercreditor Agreement").
D. The parties hereto desire to enter into this Amendment in order
to (i) permit the Company to enter into the Note Purchase Agreements and to
issue the Senior Notes pursuant thereto and to perform its obligations
thereunder, (ii) permit the Guaranty Subsidiaries to enter into the Senior Note
Guaranties and to perform their respective obligations thereunder, (iii) amend
the Security Documents to provide that the obligations of the Company and the
Guaranty Subsidiaries in respect of the Note Purchase Agreements, the Senior
Notes and the Senior Note Guaranties, respectively, constitute secured
obligations under such Security Documents, (iv) authorize and direct the Agent
and the Collateral Agent to enter into the Intercreditor Agreement, and (v) to
effect certain other amendments to the Credit Agreement and certain of the Loan
Documents, all as more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
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ARTICLE I.
DEFINITIONS
Section 1.1. DEFINITIONS INCORPORATED. Unless the context requires
otherwise, all capitalized terms used in this Amendment without definition shall
have the meanings provided therefor in the Credit Agreement as herein amended.
ARTICLE II.
CONSENTS, DIRECTION TO AGENTS
Section 2.1. CONSENTS.
(a) Upon the terms and subject to the conditions set forth
herein, each of the Banks hereby consents to (i) the Company entering into the
Note Purchase Agreements and issuing the Senior Notes pursuant thereto in an
aggregate principal amount not to exceed $150,000,000 (ii) the Company
performing its obligations under the Note Purchase Agreements and the Senior
Notes, including, but not limited to, the payment of the Indebtedness evidenced
by the Senior Notes in accordance with the terms of the Note Purchase Agreements
and the Senior Notes, (iii) the Company entering into the documents contemplated
by the Note Purchase Agreements to be entered into by the Company, including,
but not limited to, the Trademark Subordination Agreement (as defined in the
Note Purchase Agreements) and performing its obligations, if any, thereunder,
(iv) each of the Guaranty Subsidiaries entering into the documents contemplated
by the Note Purchase Agreements to be entered into by each of the Guaranty
Subsidiaries and performing its obligations, if any, thereunder, (v) the
amendments to the Security Documents contained in this Amendment and in the
Supplementary Pledge Agreement referred to in Section 2.2 hereof, (vi) each of
the Guaranty Subsidiaries executing and delivering the Senior Note Guaranties to
be executed by it and performing its obligations thereunder and (vii) the
appointment of the Collateral Agent to act as Collateral Agent under the
Security Documents and the Intercreditor Agreement for and on behalf of the
"Secured Parties" (as defined therein). The Company hereby agrees to furnish
the Agent, the Collateral Agent and each Bank with copies, certified by the
Secretary or an Assistant Secretary of the Company as true, complete and
correct, of each Note Purchase Agreement and each agreement, instrument and
document related thereto, promptly after the execution and delivery thereof.
(b) Each of the Banks hereby further consents to the transfer,
on or about February 22, 1995, by HT
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Investors, Inc. of all of its assets to DSI. The Company hereby represents and
warrants that all of such assets have been so transferred.
(c) Notwithstanding the provisions of Section 5.23 of the Credit
Agreement, the Company may, during the period commencing August 29, 1995 and
ending August 29, 1996 (the "twelve-month period"), so long as no other Default
or Event of Default has occurred and is continuing or would as a result of such
payment or declaration occur, make payments to purchase shares of its common
stock, so long as the total of (i) the aggregate amounts paid by the Company to
purchase shares of its common stock and (ii) all dividends declared or paid by
the Company, do not in the aggregate exceed $80,000,000 during the twelve-month
period.
Section 2.2. DIRECTIONS TO AGENT AND COLLATERAL AGENT. Each of the
Banks hereby irrevocably and unconditionally authorizes and directs (i) the
Agent and the Collateral Agent to execute and deliver the Intercreditor
Agreement and all other agreements, instruments and documents set forth in or
contemplated by this Agreement or the Intercreditor Agreement and to perform
their respective obligations thereunder and (ii) the Collateral Agent to execute
and deliver the Supplementary Pledge Agreement in substantially the form of
Exhibit H hereto and to perform its obligations thereunder.
ARTICLE III.
CERTAIN AMENDMENTS AND AGREEMENTS
Section 3.1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement
is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended to add
the following definitions thereto in their proper alphabetical order:
"INTERCREDITOR AGREEMENT. The Collateral Agency and
Intercreditor Agreement, dated as of August 1, 1995, among the
Collateral Agent, the Agent, the Banks and each of the Senior
Noteholders, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms
thereof and hereof."
"NOTE PURCHASE AGREEMENTS. Collectively, each of the Note
Purchase Agreements dated as of August 1, 1995 by and between the
Company and the purchasers named therein, pursuant to
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which the Company has issued or will issue up to $150,000,000 in principal
amount of its 7.12% Senior Secured Notes due August 25, 2005, as each may be
amended, supplemented or otherwise modified in accordance with the terms thereof
and hereof".
"SENIOR NOTE GUARANTIES. Collectively, the Subsidiaries
Guaranty, the UAM Realty Advisors Guaranty, the Heitman Guaranty
and the UAM U.K. Holdings Guaranty, as each such term is defined
in the Note Purchase Agreements, and any other guaranty that may,
pursuant to the requirements of the Note Purchase Agreements, be
executed and delivered to the Senior Noteholders by any
Subsidiary of the Company concurrently with the execution and
delivery by such Subsidiary of a corresponding guaranty in favor
of the Agents and the Banks, as each may be amended, supplemented
or otherwise modified from time to time in accordance with the
terms thereof and hereof."
"SENIOR NOTEHOLDERS. Collectively, each of the purchasers
parties to the Note Purchase Agreements from time to time, and
their respective successors and assigns."
"SENIOR NOTES. The Company's 7.12% Senior Secured Notes due
August 25, 2005 issued pursuant to the Note Purchase Agreements."
(b) The definition of "Collateral" contained in Section 1.1 of
the Credit Agreement is hereby amended (i) to delete the word "and" appearing at
the end of clause (a) of such definition and (ii) to add the following at the
end of such definition:
"; and (c) any and all other collateral security at any time
granted by the Company or any of its Subsidiaries to the
Collateral Agent in accordance with the terms of this Agreement."
(c) The definition of "Security Documents" contained in Section
1.1 of the Credit Agreement is hereby amended to insert the phrase ", the
Trademark Subordination Agreement" immediately following the phrase "the UAM
U.K. Holdings Pledge Agreement".
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(d) The definition of "Trademark Subordination Agreement"
contained in Section 1.1 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"TRADEMARK SUBORDINATION AGREEMENT. The Amended and
Restated Subordination Agreement dated as of August 1, 1995 by
and between the Company and UAM Trademark in favor of the Banks,
the Agents and the Senior Noteholders, as the same may be
amended, supplemented or otherwise modified from time to time."
(e) Subsection (b) of Section 4.2 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(b) there shall exist no Default or Event of Default, and
no Notice of Actionable Default (as defined in the Intercreditor
Agreement) shall have been given to the Collateral Agent and not
rescinded in accordance with the terms of the Intercreditor
Agreement; and"
(f) Section 5.12(o) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(o) Indebtedness of the Company in the aggregate original
principal amount not to exceed $150,000,000 incurred in respect
of the Senior Notes pursuant to the Note Purchase Agreements, as
the principal amount of such Indebtedness is reduced at any time,
and from time to time, in accordance with the Note Purchase
Agreements; and"
(g) Section 5.12 of the Credit Agreement is hereby amended to
add the following as a new subsection (p) thereto:
"(p) Indebtedness of the Guaranty Subsidiaries under the
Senior Note Guaranties."
(h) Section 5.14(i) of the Credit Agreement is hereby amended to
read in its entirety as follows:
"(i) Encumbrances in favor of the Collateral Agent securing
obligations to the Agent, the Collateral Agent or the Banks under
this Agreement and the other Loan Documents and obligations of
the Company and the Guaranty Subsidiaries to the Senior
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<PAGE>
Noteholders under the Note Purchase Agreements, the Senior Notes
and the Senior Note Guaranties;"
(i) Section 5.14 of the Credit Agreement is hereby further
amended (i) to add the word "and" at the end of subsection (j) thereof, (ii) to
delete the semicolon and the word "and" at the end of subsection (k) thereof and
to replace such material with a period and (iii) to delete subsection (l)
thereof.
(j) Subsection (c) of Section 5.21 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(c) effect or permit any change in or amendment to the
Note Purchase Agreements, the Senior Notes or the Senior Note
Guaranties, in each case which would have the effect of including
in any such documentation any covenants, warranties,
representations or events of default (or any other type of
restriction which would have the practical effect of any of the
foregoing) which are materially more burdensome or more
restrictive to the Company or any Subsidiary of the Company than
the covenants, warranties, representations and Events of Default
set forth herein and in the other Loan Documents or more
favorable to the holders of the Senior Notes than corresponding
provisions of this Agreement and the other Loan Documents in
favor of the Banks and the Agents;"
(k) Section 5.21 of the Credit Agreement is hereby further
amended to (i) delete the word "or" appearing at the end of subsection (b)
thereof and (ii) to add the following as a new subsections (d) and (e),
respectively:
"(d) except with respect to the Revenue Sharing Agreements
and except for restrictions contained in Section 5.2 (B) of the
Amended and Restated Loan Agreement dated as of March 15, 1995
between LaSalle National Bank and Heitman, enter into or suffer
to exist, or 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
(i) pay dividends or make other distributions to the Company or
prepay any Indebtedness owed to the Company or (b) transfer any
of its properties or assets to the Company (other than with
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<PAGE>
respect to assets subject to Encumbrances permitted by Section
5.14); or
(e) enter into or suffer to exist, or 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
the Company or any Subsidiary to enter into amendments,
modifications or supplements to this Agreement or any of the
other Loan Documents."
(l) Subsection (g) of Section 6.1 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"(g)(i) the Company shall fail to pay when due the
principal of or interest on any Senior Note, or the Company or
any of its Subsidiaries shall fail to pay when due the principal
of or any interest on or premium in respect of any other
Indebtedness having an aggregate outstanding principal amount of
at least $10,000,000, or (ii) the Company or any of its
Subsidiaries shall fail to observe or perform any covenant or
agreement contained in any agreement or instrument relating to
any such Indebtedness (including, without limitation, the Note
Purchase Agreements, the Senior Notes and the Senior Note
Guaranties) within any applicable grace period provided for in
the agreement(s) or instrument(s) creating or evidencing such
Indebtedness, or any other event or condition shall occur if the
effect of such failure or other event or condition is to
accelerate, or to permit, or with the giving of notice or lapse
of time or both would permit, the holder of such Indebtedness or
any other Person to accelerate the maturity of such Indebtedness;
or any such Indebtedness shall be required to be prepaid,
repurchased or redeemed in whole or in part prior to its stated
maturity (except, as to the Senior Notes, for scheduled
prepayments required by the terms of the Note Purchase Agreements
and for optional prepayments required to be made as a result of
the Company having given a notice of its election to make such
prepayment pursuant to Section 8.2 of the Note Purchase
Agreements); or (iii) an Event of Default as defined in any Note
Purchase Agreement shall occur and be continuing; or"
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(m) Section 6.3 of the Credit Agreement is hereby amended (i) to
insert the phrase "Except to the extent otherwise provided for in the
Intercreditor Agreement," at the beginning of such Section and (ii) to delete
the phrase "PRO RATA to the Obligations outstanding according to the respective
amount due to the Banks under the Notes and Money Market Loans", and to replace
such deleted material with the phrase "as provided in the Intercreditor
Agreement,".
(n) The parties hereto hereby agree that to the extent that the
provisions of the Intercreditor Agreement governing the rights and obligations
of the Collateral Agent conflict with the provisions of Section VII of the
Credit Agreement, the provisions of the Intercreditor Agreement governing the
rights and obligations of the Collateral Agent shall control.
(o) Section 8.6 of the Credit Agreement is hereby amended to
insert the phrase "Except as otherwise expressly set forth in the Intercreditor
Agreement and" at the beginning of such Section.
(p) Exhibit D to the Credit Agreement is hereby amended to read
in its entirety as set forth on Exhibit J hereto.
(q) Exhibit G to the Credit Agreement is hereby amended to read
in its entirety as set forth on Exhibit I hereto.
(r) Exhibit K to the Credit Agreement is hereby amended to read
in its entirety as set forth on Exhibit D hereto.
(s) The fifth paragraph of the Letter Agreement dated January
20, 1995 among the Company, the Agents, the Banks and Guaranty Subsidiaries is
hereby amended to increase the dollar amount of $500,000,000 referred to therein
to $550,000,000.
Section 3.2. AMENDMENTS TO SECURITY DOCUMENTS.
(a) All references in each of the Security Documents to the
Collateral Agent shall hereafter refer to the Collateral Agent acting in such
capacity for all "Secured Parties" (as defined in the Intercreditor Agreement)
pursuant to the terms of the Intercreditor Agreement.
(b) Notwithstanding anything to the contrary contained in the
Security Documents, all liens and security interests which have been, and will
be, assigned, conveyed, mortgaged, pledged, hypothecated, transferred or granted
to, and held by
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the Collateral Agent shall hereafter be held by the Collateral Agent for the
ratable benefit of the "Secured Parties" (as defined in the Intercreditor
Agreement) pursuant to the terms of the Intercreditor Agreement.
(c) The term "Obligations", as such term is defined in each of
the Pledge Agreement and the Security Agreement, shall henceforth include (i)
the aggregate unpaid principal amount of, premium, if any, payable with respect
to, and accrued interest on, the Notes and the Senior Notes, (ii) all commitment
and other fees owing by the Company under or in connection with the Credit
Agreement to the Agent, the Collateral Agent or the Banks, (iii) the aggregate
unpaid principal amount of, and accrued interest on, all Money Market Loans, and
(iv) any and all other indebtedness, obligations and liabilities of the Company
to the Collateral Agent, the Agent, any Bank or any holder of the Senior Notes,
whether now existing or hereafter incurred or created under, arising out of or
in connection with the Credit Agreement, any other Loan Document, the Note
Purchase Agreements, the Senior Notes, the Senior Note Guaranties or any other
agreement, instrument or document relating to the foregoing; in each case,
whether direct or indirect, absolute or contingent, joint, several or
independent, due or to become due or liquidated or unliquidated, and whether
created directly or acquired by assignment or otherwise.
(d) The term "Obligations", as such term is defined in the
Subsidiaries Pledge Agreement, shall henceforth include (i) all obligations of
UAM Holdings pursuant to the Subsidiaries Guaranty (as defined in the Credit
Agreement) and all obligations of UAM Holdings pursuant to the Subsidiaries
Guaranty (as defined in the Note Purchase Agreements), and (ii) any and all
other indebtedness, obligations and liabilities of UAM Holdings to the
Collateral Agent, the Agent, any Bank or any holder of the Senior Notes, whether
now existing or hereafter incurred or created under, arising out of or in
connection with the Credit Agreement, any other Loan Document, the Note Purchase
Agreements, the Senior Notes, the Senior Note Guaranties or any other agreement,
instrument or document relating to the foregoing; in each case, whether direct
or indirect, absolute or contingent, joint, several or independent, due or to
become due or liquidated or unliquidated, and whether created directly or
acquired by assignment or otherwise.
(e) The term "Obligations", as such term is defined in the
Subsidiaries Security Agreement, shall henceforth include, as to UAM Holdings,
UAM Trademark and UAM Investment, as the case may be, (i) all obligations of
such Guaranty Subsidiary under the Subsidiaries Guaranty (as defined in the
Credit Agreement) and all obligations of such Guaranty Subsidiary under the
Subsidiaries Guaranty (as defined in the Note Purchase Agreements), and (ii) any
and all
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other indebtedness, obligations and liabilities of such Guaranty Subsidiary to
the Collateral Agent, the Agent, any Bank or any holder of the Senior Notes,
whether now existing or hereafter incurred or created under, arising out of or
in connection with the Credit Agreement, any other Loan Document, the Note
Purchase Agreements, the Senior Notes, the Senior Note Guaranties or any other
agreement, instrument or document relating to the foregoing; in each case,
whether direct or indirect, absolute or contingent, joint, several or
independent, due or to become due or liquidated or unliquidated, and whether
created directly or acquired by assignment or otherwise.
(f) The term "Obligations", as such term is defined in the
Heitman Pledge Agreement, shall henceforth include (i) all obligations of
Heitman pursuant to the Heitman Guaranty (as defined in the Credit Agreement)
and all obligations of Heitman pursuant to the Heitman Guaranty (as defined in
the Note Purchase Agreements), and (ii) any and all other indebtedness,
obligations and liabilities of Heitman to the Collateral Agent, the Agent, any
Bank or any holder of the Senior Notes, whether now existing or hereafter
incurred or created under, arising out of or in connection with the Credit
Agreement, any other Loan Document, the Note Purchase Agreements, the Senior
Notes, the Senior Note Guaranties or any other agreement, instrument or document
relating to the foregoing; in each case, whether direct or indirect, absolute or
contingent, joint, several or independent, due or to become due or liquidated or
unliquidated, and whether created directly or acquired by assignment or
otherwise.
(g) The term "Obligations", as such term is defined in the
Assignment of Partnership Interest, shall henceforth include (i) all obligations
of UAM Realty Advisors pursuant to the UAM Realty Advisors Guaranty (as defined
in the Credit Agreement) and all obligations of UAM Realty Advisors pursuant to
the UAM Realty Advisors Guaranty (as defined in the Note Purchase Agreements),
and (ii) any and all other indebtedness, obligations and liabilities of UAM
Realty Advisors to the Collateral Agent, the Agent, any Bank or any holder of
the Senior Notes, whether now existing or hereafter incurred or created under,
arising out of or in connection with the Credit Agreement, any other Loan
Document, the Note Purchase Agreements, the Senior Notes, the Senior Note
Guaranties or any other agreement, instrument or document relating to the
foregoing; in each case, whether direct or indirect, absolute or contingent,
joint, several or independent, due or to become due or liquidated or
unliquidated, and whether created directly or acquired by assignment or
otherwise.
(h) Except where the context otherwise requires or as otherwise
provided herein, all references in
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the Security Documents to "Banks" shall hereafter be deemed to be a reference to
the "Secured Parties" as defined in the Intercreditor Agreement, and all
references to "the ratable benefit of the Banks" shall hereafter be deemed to be
a reference to "the ratable benefit of the Secured Parties" as defined in the
Intercreditor Agreement.
(i) All references in the Security Documents to "Event of
Default" shall hereafter include, without limitation, an "Event of Default" as
defined in the Credit Agreement and/or an "Event of Default" as defined in the
Note Purchase Agreements.
(j) Whenever by the terms of any Security Documents, any
amendment, consent, waiver or other action requires the approval of "the Banks",
the "Required Banks" or the Collateral Agent, the action or approval required
shall be the action or approval of such Secured Parties as is required pursuant
to the terms of the Intercreditor Agreement.
(k) All references in the Security Documents to the "Loan
Documents" shall hereafter include the "Loan Documents" as defined in the Credit
Agreement, the Note Purchase Agreements, the Senior Notes and the "Security
Documents" as such term is defined in the Note Purchase Agreements.
(l) The references to Section 5.4 of the Credit Agreement
contained in Section 5(d) of the Security Agreement and the Subsidiaries
Security Agreement shall hereafter be deemed to include Section 5.4 of the
Credit Agreement and Section 9.4 of the Note Purchase Agreements.
(m) The reference to the Credit Agreement contained in Section
8(a)(ii) of the Security Agreement and the Subsidiaries Security Agreement shall
hereafter be deemed to be a reference to the Intercreditor Agreement.
(n) All provisions of the Security Documents which require that
notices be given to the Banks shall be deemed to include the requirement that
the same notices shall be given to the Senior Noteholders in the manner provided
in Section 18 of the Note Purchase Agreements.
(o) Without limiting the foregoing, the provisions of each of
the Security Documents (including, without limitation, those provisions which
incorporate by reference Article VII of the Credit Agreement as it relates to
the Collateral Agent) shall be subject to the terms of the Intercreditor
Agreement. In the event that any provision in any Security Document conflicts
with the provisions of the Intercreditor Agreement, the provisions of the
Intercreditor Agreement shall control.
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(p) Section 17 of the Pledge Agreement is hereby amended to
delete the phrase "such Guarantor" contained therein and to replace it with the
phrase "the Pledgor".
(q) Schedule A to the Pledge Agreement is hereby amended to read
in its entirety as set forth on Exhibit E hereto.
(r) Schedule A to the Subsidiaries Pledge Agreement is hereby
amended to read in its entirety as set forth on Exhibit F hereto.
(s) Schedule A to the Heitman Pledge Agreement is hereby amended
to read in its entirety as set forth on Exhibit G hereto.
(t) Each of the DSI Guaranty and the DSI Pledge Agreement are
hereby terminated and shall be of no further force and effect, and the security
interest granted by DSI pursuant to the DSI Pledge Agreement is hereby released.
Each of the Banks hereby directs the Collateral Agent to release to DSI all
stock certificates and related stock powers held by the Collateral Agent
pursuant to the DSI Pledge Agreement. Upon the effectiveness of this Amendment,
DSI shall cease to be a Guaranty Subsidiary.
Section 3.3. CERTAIN AGREEMENTS OF THE COMPANY AND THE GUARANTY
SUBSIDIARIES RELATING TO THE INTERCREDITOR AGREEMENT.
(a) The Company and each of the Guaranty Subsidiaries hereby
acknowledge and consent to the terms of the Intercreditor Agreement (provided,
however, that neither the Company nor any Guaranty Subsidiary is or shall be
deemed to be a party to the Intercreditor Agreement).
(b) Nothing contained in the Intercreditor Agreement shall in
any way relieve the Company or any Guaranty Subsidiary from compliance with
their respective covenants and agreements contained in the Credit Documents (as
defined in the Intercreditor Agreement).
(c) The Company and each Guaranty Subsidiary agree to execute
and deliver such other documents and instruments, in form and substance
satisfactory to the Collateral Agent, and to take such other action, in each
case as the Collateral Agent or any Secured Party may reasonably request, to
effectuate and carry out the provision of the Intercreditor Agreement and each
of the Security Documents (for purposes of this Section 3.3, as defined in the
Intercreditor Agreement), including, without limitation, (i) by recording or
filing in such places as the requesting party may deem desirable, the
Intercreditor Agreement, the Security
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Documents or any other documents and instruments, and (ii) the execution and
delivery of such agreements, instruments and documents as may be necessary or
desirable in connection with any substitution of the Collateral Agent in
accordance with the terms of the Intercreditor Agreement.
(d) The Company and each Guaranty Subsidiary agrees (a) to
reimburse the Collateral Agent, on demand, for any expenses incurred by the
Collateral Agent, including reasonable counsel fees and disbursements and
compensation of agents, arising out of, in any way connected with, or as a
result of, the execution or delivery of the Intercreditor Agreement or any
Security Document or any Subsidiary Guaranty (for purposes of this Section 3.3,
as defined in the Intercreditor Agreement) or any agreement or instrument
contemplated thereby or the performance by the parties thereto of their
respective obligations thereunder or in connection with the enforcement or
protection of the rights of the Collateral Agent and the Secured Parties under
the Intercreditor Agreement or any Security Document or any Subsidiary Guaranty,
(b) to indemnify and hold harmless the Collateral Agent and its directors,
officers, employees and agents, on demand, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Collateral Agent in its capacity
as the Collateral Agent or any of them in any way relating to or arising out of
the Intercreditor Agreement or any Security Document or any Subsidiary Guaranty
or any action taken or omitted by them under the Intercreditor Agreement or any
Security Document or any Subsidiary Guaranty; PROVIDED that the Company and the
Guaranty Subsidiaries shall not be liable to the Collateral Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Collateral Agent or any of its
directors, officers, employees or agents as determined by a final non-appealable
order of a court of competent jurisdiction and (c) to indemnify and hold
harmless the Collateral Agent, on demand, from and against any and all
liabilities which may be imposed on or incurred by the Collateral Agent (in its
capacity as Collateral Agent) for the net amount of taxes (after taking into
account any deduction, credit or other tax reduction or benefit available by
reason of the imposition of any such tax) in any jurisdiction in which the
Collateral Agent would not otherwise be subject to tax except by reason of its
acting under the Intercreditor Agreement or the Security Documents (directly or
through agents); PROVIDED that such indemnification for taxes (i) shall apply
only in respect of taxes attributable to the performance of the Collateral
Agent's obligations under the Intercreditor Agreement and the Security Documents
and (ii)
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shall in no event cover any federal, state, local or other taxes imposed upon
the Collateral Agent with respect to or measured by its gross or net income or
profits. A statement by the Collateral Agent that is submitted to the Company
with respect to the amount of such expenses and containing a basic description
thereof and/or the amount of its indemnification obligation shall be PRIMA FACIE
evidence of the amount thereof owing to the Collateral Agent.
ARTICLE IV.
CONDITIONS
Section 4.1. CONDITIONS TO EFFECTIVENESS.
The amendments and consents set forth in this Amendment shall not be
effective until each of the following conditions precedent shall have been
satisfied:
(a) the Agent shall have received counterparts of this
Amendment, duly executed on behalf of each of the parties hereto;
(b) The Agent shall have received the opinion of Hill & Barlow,
counsel to the Company and its Subsidiaries, in form and substance
satisfactory to the Agent;
(c) The Agent shall have received a certificate dated as of the
date hereof of a senior officer of the Company to the effect that (i)
there exists no Default or Event of Default or "Default" or "Event of
Default" (as such terms are defined in the Note Purchase Agreements)
and (ii) all of the representations and warranties of the Company
contained in this Amendment, the Credit Agreement, as herein amended,
and the agreements executed in connection with the Credit Agreement by
the Company are true and correct in all material respects as of the
date hereof with the same force and effect as if made on and as of
such date, except to the extent that such representations and
warranties expressly relate to an earlier date or as to matters which
have changed in accordance with or as permitted under the Credit
Agreement;
(d) All corporate and legal proceedings and all agreements and
instruments in connection with the transactions contemplated by this
Amendment shall be satisfactory in form, scope, and substance to the
Agent and its counsel, and the Banks and their respective counsel
shall have received all
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<PAGE>
information and copies of all proceedings which each may reasonably
have requested in connection therewith, such documents where
appropriate to be certified by proper government authorities; and
(e) The Agent shall have received such further agreements,
instruments, documents and certificates as the Agent shall have
reasonably requested.
ARTICLE V.
MISCELLANEOUS
Section 5.1. FURTHER ASSURANCES. Each of the parties hereto hereby
agrees to do such further acts and things and to execute, deliver and
acknowledge such additional agreements, powers and instruments as any other
party hereto may reasonably require to carry into effect the purposes of this
Amendment.
Section 5.2. COSTS, EXPENSES AND TAXES. The provisions of Section
8.2 of the Credit Agreement are hereby incorporated by reference as if fully set
forth herein, MUTATIS MUTANDIS, and shall apply to this Amendment and the
Intercreditor Agreement and related matters.
Section 5.3. CERTAIN REPRESENTATIONS AND WARRANTIES BY THE COMPANY.
The Company and each of the Guaranty Subsidiaries (where applicable) represents
and warrants that (i) it has the right, power and capacity and has been duly
authorized and empowered by all required corporate and shareholder action to
enter into, execute, deliver and perform this Amendment; (ii) this Amendment
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as enforcement thereof may be subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law); (iii) the execution and delivery of the Note Purchase
Agreements and the issuance of the Senior Notes pursuant thereto by the Company,
the execution and delivery of the Senior Note Guaranties by the Guaranty
Subsidiaries, and its execution, delivery and performance of this Amendment and
the Intercreditor Agreement, do not and will not violate any provision of its
certificate of incorporation or by-laws or any contractual provision to which it
is a party or to which it or any of its property is subject; and (iv) all
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true and correct in all material respects with the same
effect as
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<PAGE>
though such representations and warranties had been made on and as of the date
hereof, except to the extent that such representations and warranties expressly
relate to an earlier date or as to any matters which have changed in accordance
with or as permitted under the Credit Agreement.
Section 5.4. REPRESENTATION BY ALL PARTIES HERETO. Each of the
parties hereto represents and warrants that its execution, delivery and
performance of this Amendment will not violate any provisions of its certificate
of incorporation or by-laws or any contractual provision to which it is a party
or to which it or its property is subject.
Section 5.5. RATIFICATION, CONFIRMATION AND NO DEFAULT. The Company
and each Guaranty Subsidiary hereby ratifies and confirms the Credit Agreement
and each of the other Loan Documents, as herein amended, and all agreements,
instruments and documents related thereto to which it is now a party, and agrees
that all liens, security interests, guaranties and other rights granted thereby
shall apply to all indebtedness and other obligations outstanding under the
Credit Agreement and each of the other Loan Documents (as amended by this
Amendment), and the Company hereby represents and warrants to the Agents and the
Banks that no Default or Event of Default exists as of the date hereof under the
Credit Agreement (as amended by this Amendment) or would exist after giving
effect to the transactions contemplated by this Amendment. It is understood and
agreed that the amendments and consents set forth in this Amendment are limited
to the matters expressly set forth herein and shall not be deemed to (a) be a
consent under, or a waiver or modification of, any other terms, provisions or
conditions of the Credit Agreement or any agreement, instrument or document
related thereto, (b) be a consent to any transaction (except to the extent
expressly set forth herein), or (c) prejudice any rights which the Banks or the
Agents, or any of them, may now or in the future have in connection with the
Credit Agreement as herein amended or any agreement, instrument or document
related thereto.
Section 5.6. COUNTERPARTS. This Amendment may be executed in one or
more counterparts, each of which, when so executed and delivered, shall be
deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Amendment with the same force and effect as if
the signatures of all of the parties were on a single counterpart, and it shall
not be necessary in making proof of this Amendment to produce more than one such
counterpart.
Section 5.7. HEADINGS. Headings used in this Amendment are for
convenience of reference only and shall not affect the construction of this
Amendment.
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<PAGE>
Section 5.8. INTEGRATION. This Amendment constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
Section 5.9. GOVERNING LAW. This Amendment shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
York (without reference to conflict of laws principles).
Section 5.10. BINDING EFFECT. This Amendment shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns; PROVIDED that neither the Company nor any
Guaranty Subsidiary may assign or transfer any of its rights, interests or
obligations hereunder without the prior written consent of the Banks.
Section 5.11. AMENDMENT; WAIVER. No delay on the part of the Banks
or the Agents in exercising any of their respective rights, remedies, powers and
privileges hereunder or partial or single exercise thereof, shall constitute a
waiver thereof. None of the terms and conditions of this Amendment may be
changed, waived, modified or varied in any manner whatsoever, except in
accordance with Section 8.6 of the Credit Agreement. Upon the effectiveness of
this Amendment, each reference in any Loan Document to the Credit Agreement or
any Loan Document shall be a reference to the Credit Agreement or such Loan
Document as amended by this Amendment.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, this First Amendment and Consent has been duly
executed and delivered as of the date first above written.
UNITED ASSET MANAGEMENT CORPORATION
By:
--------------------------------
Title: Executive Vice President
UAM REALTY ADVISORS
INVESTMENT CORPORATION
By:
--------------------------------
Title: President
DEWEY SQUARE INVESTORS
CORPORATION
By:
--------------------------------
Title: President
UNITED ASSET MANAGEMENT
HOLDINGS, INC.
By:
--------------------------------
Title: President
UNITED ASSET MANAGEMENT
TRADEMARK, INC.
By:
--------------------------------
Title: President
UAM INVESTMENT CORPORATION
By:
--------------------------------
Title: President
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<PAGE>
HEITMAN FINANCIAL LTD.
By:
--------------------------------
Title: Executive Vice President
UNITED ASSET MANAGEMENT U.K.
HOLDINGS, INC.
By:
--------------------------------
Title: President
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, as a Bank and as
Agent
By:
--------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By:
--------------------------------
Title: Managing Director
THE FIRST NATIONAL BANK OF BOSTON,
as Collateral Agent
By:
--------------------------------
Title: Senior Account Manager
MELLON BANK, N.A.
By:
--------------------------------
Title: Assistant Vice President
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<PAGE>
DEUTSCHE BANK A.G. NEW YORK BRANCH/
CAYMAN ISLANDS BRANCH
By:
--------------------------------
Title: Assistant Vice President
By:
--------------------------------
Title: Vice President 8.7.95
CHEMICAL BANK
By:
--------------------------------
Title: Vice President
CREDIT LYONNAIS NEW
YORK BRANCH
By:
--------------------------------
Title: First Vice President
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By:
--------------------------------
Authorized Signature:
SHAWMUT BANK, N.A.
By:
--------------------------------
Title: Vice President
NATIONSBANK, N.A.
By:
--------------------------------
Title: Senior Vice President
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<PAGE>
BANK HAPOALIM B.M.
By:
--------------------------------
Title: Vice President
By:
--------------------------------
Title: Vice President
THE DAIWA BANK, LIMITED
By:
--------------------------------
Title: Vice President & Manager
By:
--------------------------------
Title: Assistant Vice President
FLEET BANK OF MASSACHUSETTS
By:
--------------------------------
Title: Senior Vice President
BAYBANK BOSTON, N.A.
By:
--------------------------------
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By:
--------------------------------
Title: Senior Vice President
BROWN BROTHERS HARRIMAN & CO.
By:
--------------------------------
Title: Deputy Manager
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<PAGE>
EXHIBIT A
TO
FIRST AMENDMENT AND CONSENT
Draft of August 16, 1995
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED ASSET MANAGEMENT CORPORATION
$150,000,000
7.12% Senior Secured Notes due August __, 2005
_________________________
NOTE PURCHASE AGREEMENT
_________________________
Dated as of August 1, 1995
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
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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<PAGE>
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 32
-ii-
<PAGE>
SECTION 11. EVENTS OF DEFAULT 32
SECTION 12. REMEDIES ON DEFAULT, ETC 34
Section 12.1. Acceleration 34
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 38
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 39
Section 17.3. Binding Effect, Etc 40
Section 17.4. Notes Held by Company, Etc 40
SECTION 18. NOTICES 40
SECTION 19. REPRODUCTION OF DOCUMENTS 41
SECTION 20. CONFIDENTIAL INFORMATION 41
SECTION 21. SUBSTITUTION OF PURCHASER 42
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<PAGE>
SECTION 22. MISCELLANEOUS 42
Section 22.1. Successors and Assigns 42
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 Sue 43
Signature 45
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<PAGE>
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 __, 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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<PAGE>
UNITED ASSET MANAGEMENT CORPORATION
One International Place
Boston, Massachusetts 02110
7.12% Senior Secured Notes due August __, 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 __, 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.
<PAGE>
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 Heitman Pledge Agreement dated as of
August 25, 1993 by and between Heitman 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 "HEITMAN 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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<PAGE>
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 Heitman Guaranty dated as of the date of this
Agreement made by Heitman in favor of the holders of the
Notes, as the same may be amended, supplemented or otherwise
modified from time to time (the "HEITMAN 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 Heitman 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 Heitman 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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<PAGE>
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 & Barlow, One International
Place, Boston, Massachusetts 02110-2607, at 10:00 a.m., Boston, Massachusetts
time, at a closing (the "CLOSING") on August __, 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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<PAGE>
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, 100 Federal Street, Boston,
Massachusetts, 02100, A.B.A. No. 011-000-390. 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 & Barlow, 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 Chapman and Cutler, 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,
J.P. Morgan 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 mark, 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 mark, 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 Heitman 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, Heitman 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
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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 __, 2000 and on each
August __ thereafter to and including August __, 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.
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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 bill quotations to bond-
equivalent yields in accordance with accepted financial
practice and (b) interpolating linearly between (1) the
actively traded U.S. Treasury security with the 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
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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:
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(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,
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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
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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
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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
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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
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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) 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
(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
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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
(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
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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).
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.
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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 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
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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 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
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<PAGE>
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
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
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<PAGE>
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 liability in connection
with the exercise or performance of any of its powers or duties thereunder.
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<PAGE>
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 Collateral Documents, the Subsidiary
Guaranties and the Intercreditor Agreement obtained in conformity with such
requirements shall bind all holders of the Notes.
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<PAGE>
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.
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
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<PAGE>
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 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
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<PAGE>
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 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
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<PAGE>
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.
SECTION 22.7. ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO SUE. (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
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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.
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<PAGE>
If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it
to the Company, whereupon the foregoing shall become a binding agreement
between you and the Company.
Very truly yours,
UNITED ASSET MANAGEMENT CORPORATION
By
---------------------------------
[Title]
The foregoing is hereby agreed
to as of the date thereof.
[VARIATION]
By ____________________________
Its
<PAGE>
INFORMATION RELATING TO PURCHASERS
[Distributed Separately]
SCHEDULE A
(to Note Purchase Agreement)
<PAGE>
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 Morgan 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, Morgan
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)
<PAGE>
"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 Heitman 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
<PAGE>
(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.
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<PAGE>
"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
<PAGE>
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 Morgan
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, Heitman, 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
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<PAGE>
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
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<PAGE>
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, Heitman, 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).
"HEITMAN" means Heitman 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
<PAGE>
(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
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<PAGE>
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.
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<PAGE>
"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, Heitman or UAM U.K. Holdings, as
the case may be, to the Collateral Agent pursuant to the Pledge Agreement,
the Subsidiaries Pledge Agreement, the Heitman 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, choate 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
<PAGE>
"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
<PAGE>
"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.
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<PAGE>
[FORM OF NOTE]
UNITED ASSET MANAGEMENT CORPORATION
7.12% Senior Secured Note Due August __, 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
__, 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 ______ day of
February and August in each year, commencing February __, 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 Morgan 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 __, 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)
<PAGE>
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
<PAGE>
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)
<PAGE>
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
<PAGE>
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
<PAGE>
* [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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
[SUBJECT TO REVIEW OF FINAL DOCUMENTATION]
FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY
The closing opinion of Hill & Barlow, 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)
<PAGE>
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
<PAGE>
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 & Barlow 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
<PAGE>
FORM OF OPINION OF SPECIAL COUNSEL
TO THE PURCHASERS
The closing opinion of Chapman and Cutler, 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 Chapman and Cutler shall also state that the opinion of
Hill & Barlow is satisfactory in scope and form to Chapman and Cutler 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, Chapman and
Cutler 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 Chapman and Cutler 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)
<PAGE>
With respect to matters of fact upon which such opinion is based,
Chapman and Cutler may rely on appropriate certificates of public officials
and officers of the Company.
E-4.4(b)-2
<PAGE>
EXHIBIT B-1
TO
FIRST AMENDMENT AND CONSENT
Draft Dated August 2, 1995
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY dated as of August 1, 1995 (as the same may be
amended, supplemented or otherwise modified from time to time, this "GUARANTY"),
made by United Asset Management Holdings, Inc., a Delaware corporation ("UAM
HOLDINGS"), United Asset Management Trademark, Inc., a Delaware corporation
("UAM TRADEMARK"), and UAM Investment Corporation, a Delaware corporation ("UAM
INVESTMENT"; UAM Holdings, UAM Trademark and UAM Investment each, a "GUARANTOR"
and collectively, the "GUARANTORS"), in favor of the Beneficiaries (as
hereinafter defined). Certain capitalized terms used herein are defined in
Section 1 of this Guaranty.
RECITALS:
A. United Asset Management Corporation, a Delaware corporation (the
"COMPANY"), proposes to enter into separate and several Note Purchase
Agreements, each dated as of August 1, 1995 (as the same may be amended,
supplemented or otherwise modified from time to time, the "NOTE PURCHASE
AGREEMENTS") with the Purchasers listed on Schedule A thereto (collectively, the
"PURCHASERS"), pursuant to which the Purchasers have agreed to purchase and the
Company has agreed to sell $150,000,000 aggregate principal amount of the
Company's 7.12% Senior Secured Notes due August __, 2005 (the "NOTES"), subject
to the terms and conditions set forth in the Note Purchase Agreements.
B. It is a condition precedent to the purchase of the Notes by the
Purchasers that each of the Guarantors guarantee the Guaranteed Obligations (as
hereinafter defined).
C. The Guarantors, as part of an affiliated group of corporations with
the Company, will receive substantial direct and indirect benefits by reason of
such issue and sale by the Company of the Notes and the purchase thereof by the
Purchasers.
NOW, THEREFORE, in order to induce the Purchasers to enter into the Note
Purchase Agreements and to purchase the Notes and in consideration thereof, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantors hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Guaranty, and unless the context requires a different
meaning, capitalized terms not otherwise defined herein have the respective
meanings provided for such terms in the Note Purchase Agreements and the
following terms have the meanings indicated below, all such definitions to be
equally applicable to the singular and plural forms of the terms defined:
<PAGE>
"ADJUSTED NET WORTH" of any Guarantor shall mean, as of any date of
determination thereof, the excess of (i) the amount of the "present fair
saleable value" of the assets of such Guarantor as of the date of such
determination, over (ii) the amount of all "liabilities of such Guarantor,
contingent or otherwise" as of the date of such determination, as such
quoted terms (or similar terms) are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors. In determining the Adjusted Net Worth of such
Guarantor for purposes of calculating the Limit of Liability for such
Guarantor in respect of any of the Guaranteed Obligations, the liabilities
of such Guarantor to be used in such determination pursuant to clause (ii)
of the preceding sentence shall exclude the liabilities of such Guarantor
hereunder in respect of the Guaranteed Obligations.
"BENEFICIARIES" means the Purchasers, any subsequent holder of the
Notes, and their respective successors and assigns.
"GUARANTEED OBLIGATIONS" has the meaning assigned to that term in
Section 2(a).
"INVESTMENT ADVISORS ACT" shall mean the Investment Advisors Act of
1940, as amended.
"LIMIT OF LIABILITY" means, as to any Guarantor, as of any date of
determination thereof, the sum of (i) with respect to any of the Guaranteed
Obligations (or portion thereof), the proceeds of which (or any portion
thereof) are used to make a Valuable Transfer to such Guarantor, the amount
of such Guaranteed Obligations (or such portion thereof) PLUS (ii) with
respect to any of the Guaranteed Obligations (or portion thereof), the
proceeds of which are not used to make a Valuable Transfer to such
Guarantor, the lesser of (A) the outstanding amount of such Guaranteed
Obligations (or such portion thereof) as of such date and (B) ninety-five
percent (95%) of the Adjusted Net Worth of such Guarantor at the time of
the incurrence of such Guaranteed Obligations. Notwithstanding the
foregoing, that portion of the Limit of Liability of each Guarantor
calculated pursuant to clause (ii)(B) shall be increased (but not
decreased) on the last day of each fiscal year of such Guarantor, to an
amount equal to ninety-five percent (95%) of the Adjusted Net Worth of such
Guarantor, as determined on such date, if such amount is greater than that
portion of the Limit of Liability pursuant to clause (ii)(B) in effect
immediately prior to such date.
"SUBORDINATE CLAIMS" has the meaning assigned to that term in Section
3.
"VALUABLE TRANSFER" means, as to any Guarantor, (i) all loans,
advances or capital contributions made to such Guarantor with proceeds of
Guaranteed Obligations, or any portion thereof, (ii) all debt securities or
other obligations of such Guarantor acquired from such Guarantor or retired
by such Guarantor with proceeds of Guaranteed Obligations, or any portion
thereof, (iii) the fair market value of all property acquired with proceeds
of Guaranteed Obligations, or any portion thereof, and transferred,
absolutely and not as collateral, to such Guarantor and (iv) the value of
any quantifiable economic benefits not included in clauses (i) through
(iii) above,
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but included in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, accruing to such Guarantor as
a result of the incurrence of Guaranteed Obligations.
SECTION 2. GUARANTEE OF OBLIGATIONS.
(a) Each Guarantor hereby, jointly and severally, unconditionally and
irrevocably guarantees to each of the Beneficiaries, as the primary obligation
and debt of such Guarantor and not as a surety, the due and punctual payment of,
without duplication, (i) all principal, interest, fees, premium, if any, and
other amounts required to be paid, from time to time, by the Company under or in
respect of the Note Purchase Agreements and the Notes, when and as the same
shall be or become due and payable, whether on the due date therefor, upon
stated maturity, by acceleration, upon demand or otherwise, according to the
terms of the Note Purchase Agreements and the Notes, and (ii) all other present
and future obligations and liabilities (whether absolute, fixed or contingent,
matured or unmatured, joint, several or independent and howsoever acquired) of
the Company to the Beneficiaries, or any of them, arising out of or in any way
relating to the Note Purchase Agreements, the Notes and any and all Security
Documents and the transactions contemplated thereby (all of the foregoing,
collectively, the "GUARANTEED OBLIGATIONS"). In case of the failure of the
Company to duly, punctually and indefeasibly make any such payment in full as
and when due and payable, each Guarantor hereby agrees to duly, punctually and
indefeasibly make such payment as and when the same shall become due and
payable, whether on the due date therefor, upon stated maturity, by
acceleration, upon demand or otherwise, in accordance with the terms of this
Guaranty, the Note Purchase Agreements, the Notes and the other Security
Documents.
(b) Each Guarantor hereby agrees that its joint and several obligations
hereunder shall be continuing, absolute and unconditional under any and all
circumstances and not subject to any reduction, limitation, impairment,
termination, defense (other than prior, final and indefeasible payment in full),
set-off, abatement, counterclaim or recoupment whatsoever (all of which are
hereby expressly waived by each Guarantor), whether by reason of any claim of
any character whatsoever, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, or by reason of any liability at
any time to the Company, any other Guarantor or any other Subsidiary of the
Company or otherwise, whether based upon any agreement, instrument or document
evidencing or securing the Guaranteed Obligations or any other agreement,
instrument or document (including, without limitation, this Guaranty) or
otherwise, and howsoever arising, whether out of action or inaction or otherwise
and whether resulting from default, willful misconduct, negligence or otherwise,
and without limiting the foregoing, irrespective of (i) any insolvency,
bankruptcy, reorganization or dissolution, or any proceeding in respect of any
thereof, of the Company, any other Guarantor, any other Subsidiary of the
Company or any other guarantor of all or any portion of the Guaranteed
Obligations, (ii) the genuineness, validity, regularity or enforceability of any
agreement, instrument or document evidencing or securing the Guaranteed
Obligations or any other agreement, instrument or document or the extension or
renewal thereof, in whole or in part, with or without notice to or assent from
the Company, any other Guarantor, any other Subsidiary of the Company or any
other guarantor of all or any portion of the Guaranteed Obligations, (iii) the
validity, enforceability or priority of any lien or security interest securing
the payment of the Guaranteed Obligations or any portion thereof, (iv) any
rescission, compromise, alteration, amendment, modification, extension, renewal,
release, change, waiver, consent, grant of any indulgence, or other action in
respect of any of the terms, provisions, covenants or conditions contained in
any agreement, instrument or document evidencing or securing the Guaranteed
Obligations or in any other agreement, instrument or document, (v) the absence
of notice or the absence of or any delay in any action to enforce any obligation
or to exercise any right or remedy against the Company, any other Guarantor, any
other Subsidiary of the Company or
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any other guarantor of all or any portion of the Guaranteed Obligations, whether
under any agreement, instrument or document evidencing or securing the
Guaranteed Obligations or under any other agreement, instrument or document, or
any indulgence or extension or waiver granted to or compromise with the Company,
any other Guarantor, any other Subsidiary of the Company or any other guarantor
of all or any portion of the Guaranteed Obligations, or any action or proceeding
taken or not taken with respect to or by or on behalf of the Company, any other
Guarantor, any other Subsidiary of the Company or any other guarantor of all or
any portion of the Guaranteed Obligations, or the holder of any agreement,
instrument or document evidencing or securing the Guaranteed Obligations, (vi)
any default, failure or delay in the performance of any obligation, covenant,
duty, representation, warranty or agreement contained in any agreement,
instrument or document evidencing or securing the Guaranteed Obligations or in
any other agreement, instrument or document, or arising pursuant to law, (vii)
any act or thing or omission to do or delay in doing any act or thing which
might in any manner result in any lack of proper authorization or any invalid
execution of any agreement, instrument or document evidencing or securing the
Guaranteed Obligations or any other agreement, instrument or document, (viii)
any assumption by any Person of any obligation under any agreement, instrument
or document evidencing or securing the Guaranteed Obligations or under any other
agreement, instrument or document, (ix) any event of FORCE MAJEURE, (x) any
release or substitution of any collateral for, or any obligor in respect of, the
payment of the Guaranteed Obligations or obligations under any other agreement,
instrument or document, in whole or in part, with or without notice to or assent
from the Company, any other Guarantor, any other Subsidiary of the Company or
any other guarantor of all or any portion of the Guaranteed Obligations, (xi)
whether a lien on any collateral shall have been perfected or shall continue to
be perfected, or whether any collateral shall be impaired in any manner, or
whether any steps shall have been taken to enforce rights against the Company,
any other Guarantor, any other Subsidiary of the Company or any other guarantor
of all or any portion of the Guaranteed Obligations or to sell, exchange,
release, surrender, realize upon or otherwise deal with, in any manner and in
any order, any collateral and (xii) any other circumstances which might
constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) Each Guarantor hereby (i) waives diligence, presentment, demand (of
payment or otherwise), protest, notice, filing of claims with a court in the
event of the merger or bankruptcy of the Company, any other Guarantor, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed Obligations, any right to require a proceeding first against the
Company, any other Guarantor or any other Subsidiary of the
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Company or any other guarantor of all or any portion of the Guaranteed
Obligations or to marshall or realize on any collateral, with respect to the
Guaranteed Obligations, (ii) agrees that its obligations hereunder constitute
guarantees of payment and not of collection and are not in any way conditional
or contingent upon any attempt to collect from or enforce any rights against the
Company, any other Guarantor or any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations or upon any other
condition or contingency, (iii) acknowledges that any agreement, instrument or
document evidencing and/or securing the Guaranteed Obligations may be
transferred (upon and subject to the terms and conditions thereof) and that the
benefit of such Guarantor's obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing and/or securing the Guaranteed
Obligations automatically and without notice to such Guarantor, (iv) covenants
that this Guaranty will not be discharged except by final, complete,
indefeasible and irrevocable payment and performance of the obligations
contained in the agreements, instruments and documents evidencing or securing
the Guaranteed Obligations and this Guaranty and (v) waives acceptance of this
Guaranty by the Beneficiaries or notice or proof of reliance.
(d) Each Guarantor further agrees that if at any time all or any part of
any payment theretofore applied by any Beneficiary to any of the Guaranteed
Obligations is, or must be, rescinded or returned by such Beneficiary for any
reason whatsoever, including, without limitation, the insolvency, bankruptcy or
reorganization of the Company, any other Guarantor, any other Subsidiary of the
Company or any other guarantor of all or any portion of the Guaranteed
Obligations, such Guaranteed Obligations or applicable portion thereof, for
purposes of this Guaranty, to the extent that such payment is or must be
rescinded or returned, shall be deemed to have continued in existence
notwithstanding such application, and this Guaranty shall continue to be
effective or be reinstated, as the case may be, as to such Guaranteed
Obligations or applicable portion thereof as though such application had not
been made, irrespective of whether any note or other evidence of indebtedness
has been surrendered or cancelled.
(e) Notwithstanding anything to the contrary contained in this Guaranty,
the obligations and liabilities of each of the Guarantors pursuant to this
Guaranty shall at all times be subject to such Guarantor's Limit of Liability.
SECTION 3. SUBROGATION.
So long as any of the Guaranteed Obligations shall be outstanding or
subject to any rescission or revocation of payment, all claims of any kind or
character of any Guarantor or any of its successors and assigns against the
Company, any other Guarantor or any Subsidiary of the Company or with respect to
any collateral for the Guaranteed Obligations, to the extent such claims
(whether by right of subrogation, contribution or otherwise) arise by reason of
such Guarantor's payment of any sum or sums to any Beneficiary under this
Guaranty (all such claims of any kind or character of such Guarantor or any of
its successors and assigns being hereinafter referred to as "SUBORDINATE
CLAIMS"), shall be subordinated in right of payment to the prior indefeasible
payment in full of such Guaranteed Obligations as follows:
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(a) The Beneficiaries shall first be entitled to receive final and
indefeasible payment in full of principal of Guaranteed Obligations,
premium, if any, and accrued and unpaid interest thereon (including,
without limitation, interest thereon accruing after the commencement of any
bankruptcy, insolvency or receivership proceedings at the applicable rate
provided therefor in the Note Purchase Agreements and the Notes), and all
other amounts due under any agreement, instrument or document evidencing or
securing such Guaranteed Obligations before any direct or indirect payment
or distribution (whether in cash, property or securities, or by set-off,
counterclaim or otherwise) shall be made on, or received by any Guarantor
in respect of, Subordinate Claims.
(b) Any payment or distribution of assets of the Company, any other
Guarantor or any of the Company's other Subsidiaries of any kind or
character, whether in cash, property or securities, which would be made on
account of Subordinate Claims but for the provisions of this Section, shall
be paid by the Company, such other Guarantor or such other Subsidiary, as
the case may be (or the trustee or agent or other Person making such
payment or distribution), directly to the Beneficiaries, for the ratable
application to the Guaranteed Obligations, to the extent necessary to make
indefeasible payment in full of all sums due upon the Guaranteed
Obligations and remaining unpaid after giving effect to any concurrent
payment or distribution to or for the benefit of such Beneficiaries in
respect of the Guaranteed Obligations. In furtherance of the foregoing, no
holder of Subordinate Claims shall exercise any right of set-off or
counterclaim with respect to any Subordinate Claim held by it, and any
reduction of Subordinate Claims, by reason of exercise by the holder
thereof of a right of set-off or counterclaim or otherwise in violation of
the provisions of this subsection, in respect of any obligations of such
holder to the Company, such other Guarantor or such other Subsidiary, as
applicable, shall be deemed to be a payment by the Company, such other
Guarantor or such other Subsidiary, as the case may be, in respect of such
Subordinate Claims to which this subsection shall apply.
(c) In the event that any payment or distribution of assets of the
Company, any other Guarantor or any of the Company's other Subsidiaries of
any kind or character, whether in cash, property or securities, shall be
received by any Guarantor or on its behalf at any time when the making of
such payment or distribution shall have been in violation of the foregoing
subsections (a) or (b), then such payment, distribution or amount shall be
held in trust for the benefit of, and shall be paid over or delivered to,
the Beneficiaries, for ratable application to the Guaranteed Obligations
then remaining unpaid to the extent necessary to pay in full all such
Guaranteed Obligations in accordance with their terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the
Beneficiaries in respect of the Guaranteed Obligations.
(d) Nothing contained in this Section is intended to or shall impair,
as between the Company or any of its Subsidiaries, as the case may be, and
their respective creditors (other than the Beneficiaries), the obligations
of the Company and
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each such Subsidiary, as the case may be, to pay to each Guarantor and its
successors or assigns all sums due from it to any such holder of
Subordinate Claims as and when the same shall become due and payable in
accordance with their terms, subject to the terms hereof; PROVIDED that no
such holder of Subordinate Claims shall initiate any legal proceedings with
respect to any of the Subordinate Claims prior to the indefeasible payment
in full of the Guaranteed Obligations.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each Guarantor hereby acknowledges and agrees that it has received a copy
of the Note Purchase Agreements, the Notes and all Security Documents and hereby
(i) agrees that the representations and warranties contained in Section 5 of the
Note Purchase Agreements are incorporated herein by reference and are hereby
made by each Guarantor to the extent such representations and warranties are
applicable to each such Guarantor, (ii) agrees to comply with all covenants and
agreements contained in the Note Purchase Agreements to the extent applicable to
it and as the same may be amended or modified from time to time in accordance
with the terms thereof and (iii) makes the following further representations,
warranties and agreements:
(a) FINANCIAL ACCOMMODATIONS. Except as expressly set forth in the
Note Purchase Agreements, no Beneficiary is obligated to give or to
continue any financial accommodations to the Company, any Guarantor or any
of the Company's other Subsidiaries or to change or extend the time of
payment of, or renew or alter, any liability of the Company, any Guarantor
or any of the Company's other Subsidiaries, any security therefor or any
liability incurred directly or indirectly in respect thereof.
(b) ACTS OF BENEFICIARIES. None of the Beneficiaries or any other
Person has made any representations or promises to any Guarantor as to the
making or continuance of any extension of credit to the Company (other than
the purchase of the Notes pursuant to, and in accordance with, the terms of
the Note Purchase Agreements) or as to the financial condition of the
Company, any other Guarantor or any of the Company's other Subsidiaries or
any other Person or as to the type or value of any security for the
Guaranteed Obligations, or as to the perfection thereof, and none of the
Beneficiaries is obligated to notify any Guarantor of any change in the
financial condition of the Company, any other Guarantor or any of the
Company's other Subsidiaries or any other Person or in the type, value,
priority or perfection of any collateral security for the Guaranteed
Obligations.
(c) NATURE OF BUSINESS. Each of the Guarantors agrees that it will
not engage in any business or activity other than (i) in the case of UAM
Holdings, holding the capital stock of the Corporations listed on Schedule
A hereto and any other Subsidiaries which are Massachusetts corporations or
are doing business in Massachusetts (PROVIDED that upon the acquisition or
formation of any such Subsidiary, all outstanding shares of capital stock
of such Subsidiary are promptly pledged to the Collateral Agent pursuant to
the Subsidiaries Pledge Agreement), (ii) in the case of UAM Trademark,
entering into a license agreement with the Company for use of the
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"United Asset Management" trademark, and further licensing such trademark
to certain Subsidiaries of the Company and (iii) in the case of UAM
Investment, holding (A) the Indebtedness of Barrow, Hanley, Mewhinney &
Strauss, 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 BHM&S payable to the Company in the principal amount of
$75,000,000 and endorsed by the Company to the order of UAM Investment as
the same may be amended with the consent of the Required Holders; (B) the
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 as the same
may be amended with the consent of the Required Holders; and (C) the
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 as the same
may be amended with the consent of the Required Holders. Each Guarantor
further agrees that it will not (i) create, incur, assume or suffer to
exist, contingently or otherwise, any Indebtedness other than the
Indebtedness evidenced by this Guaranty and the Guaranty given to the Banks
pursuant to the Bank Credit Agreement or (ii) own any material assets other
than as contemplated by the first sentence of this Section 4(c) and, in the
case of UAM Holdings and UAM Trademark, cash or Cash Equivalents
(hereinafter defined); PROVIDED, HOWEVER, that neither UAM Holdings nor UAM
Trademark shall maintain cash or Cash Equivalents in excess of $3,000,000
for more than five (5) Business Days at any one time, any such excess to be
distributed promptly (as a dividend or otherwise) to the Company. "CASH
EQUIVALENTS" shall mean (i) securities with maturities of ninety (90) days
or less from the date of acquisition thereof issued by United States of
America or by an instrumentality or agency thereof and fully guarantied or
insured as to payment of principal, interest and premium, if any, by the
full faith and credit of the United States of America, (ii) certificates of
deposit with maturities of ninety (90) days or less from the date of
acquisition thereof issued by Morgan Guaranty Trust Company of New York or
by a commercial banking institution which is a member of the Federal
Reserve System and whose certificates of deposit with ninety (90) days or
less to maturity are rated in the highest or the second highest category by
any nationally recognized credit rating agency and (iii) commercial paper
of a domestic issuer (other than the Company or any of its affiliates)
rated at least either A-1 by Standard & Poor's Corporation or P-1 by
Moody's Investors Service, Inc. with maturities of one hundred eighty (180)
days or less from the date of acquisition thereof.
SECTION 5. BREACH OF COVENANTS.
(a) In the event that any Guarantor shall fail to comply with any of its
covenants or agreements contained in this Guaranty or in any of the other
Security Documents to which it is a party, then in any such event and at any
time thereafter (so long as such failure shall not have been cured or waived in
accordance with Section 6(c)), the Required Holders may,
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declare the obligations of the Company under the Note Purchase Agreements and
the Notes (whether or not then due) immediately due and payable pursuant to this
Guaranty as to the Guarantors, and any Beneficiary shall be entitled to enforce
the joint and several obligations of the Guarantors hereunder.
(b) Subject to any applicable agreements in effect from time to time
relating to the sharing and priority of payment of proceeds of collateral, the
net proceeds of any collection, recovery, receipt, appropriation or realization,
after deducting all costs and expenses of every kind incurred in connection with
the foregoing, including reasonable attorneys' fees and legal expenses, shall be
applied to the ratable payment in whole or in part of the Guaranteed
Obligations.
SECTION 6. MISCELLANEOUS.
(a) THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID STATE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(b) Any provision of this Guaranty 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 or affecting the validity or enforceability of such provision
in any other jurisdiction. Notwithstanding the foregoing, in lieu of such
prohibited or unenforceable provision, there shall automatically be deemed
incorporated herein (without further act or deed by any party hereto) a
provision as similar to such prohibited or unenforceable provision as possible
and as shall be enforceable and not prohibited pursuant to applicable law. If
this Guaranty would be held or determined by a court of competent jurisdiction
in a judicial proceeding to be void, voidable, invalid or unenforceable on
account of the amount of the aggregate liability of any Guarantor under this
Guaranty or by reason of any inconsistent contractual provision binding on any
Guarantor and in effect on or prior to the date hereof, then, notwithstanding
any other provision of this Guaranty to the contrary, the aggregate amount of
the liability of such Guarantor under this Guaranty shall, without any further
action by any Guarantor, the Beneficiaries or any other Person, be automatically
limited and reduced to the maximum amount which is valid and enforceable.
(c) No failure or delay on the part of any Beneficiary in exercising any
right, power or remedy under this Guaranty shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies provided for in this Guaranty are
cumulative and are not exclusive of any remedies that may be available to any
Beneficiary at law or in equity or otherwise. No amendment, modification,
supplement, termination or waiver of or to any provision of this Guaranty, nor
consent to any departure by any Guarantor therefrom, shall be effective unless
the same shall be consented to in writing by the Required Holders pursuant to
Section 17 of the Note Purchase Agreements. Any amendment, modification or
supplement of or to any provision
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of this Guaranty, any waiver of any provision of this Guaranty, and any consent
to any departure by any Guarantor from the terms of any provision of this
Guaranty, shall be effective only in the specific instance and for the specific
purpose for which made or given. Except where notice is specifically required
by this Guaranty, no notice to or demand on any Guarantor in any case shall
entitle such Guarantor or any other Guarantor to any other or further notice or
demand in similar or other circumstances.
(d) Each Guarantor agrees that copies of the Note Purchase Agreements, the
Notes and the other Security Documents received by it constitute adequate notice
of all matters contained therein and consents to the execution and delivery of
such agreements and the performance of all transactions provided for or
contemplated therein; PROVIDED that none of the Beneficiaries shall be obligated
to furnish to any Guarantor any copies of any amendments, modifications or
supplements or waivers with respect to the Note Purchase Agreements, the Notes
or any of the other Security Documents.
(e) All notices, requests and other communications to any Guarantor or
Beneficiary hereunder shall be in writing (including bank wire, telex, telecopy
or similar teletransmission or writing) and shall be given (i) if to a
Beneficiary, at its address or telex or telecopier number specified in Section
18 of the Note Purchase Agreements or (ii) if to a Guarantor, at its address or
telex or telecopier number specified on the signature page hereof or such other
address or telex or telecopier number as such Guarantor may hereafter specify by
written notice to the Beneficiaries. Each such notice, request or other
communication shall be effective when actually received.
(f) This Guaranty shall be binding upon each Guarantor and its successors
and assigns and shall inure to the benefit of, and shall be enforceable by each
of the Beneficiaries and their respective successors and assigns, PROVIDED that
no Guarantor may assign or transfer any of its obligations under this Guaranty
without the prior written consent of the Required Holders.
(g) Each Guarantor, jointly and severally, agrees to do such further acts
and things and to execute and deliver such additional agreements, powers and
instruments, as the Beneficiaries may require or deem advisable to carry into
effect the purposes of this Guaranty or to better assure and confirm unto the
Beneficiaries their rights, powers and remedies under this Guaranty, under the
Note Purchase Agreements, the Notes or under any of the other Security
Documents.
(h) Each Guarantor, jointly and severally, hereby irrevocably and
unconditionally consents and submits to the nonexclusive jurisdiction of any
United States Federal or New York State court sitting in New York County in any
action or proceeding arising out of or relating to this Guaranty, and each
Guarantor, jointly and severally, hereby irrevocably and unconditionally agrees
that all claims in respect of such action or proceeding brought against any of
the Beneficiaries in respect of this Guaranty shall be brought in such United
States Federal or New York State court. Each Guarantor, jointly and severally,
irrevocably consents to the service of any and all process in any such action or
proceeding brought in any court in or of the State of New York by the delivery
of copies of such process to such
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Guarantor at its address specified in Section 6(e) or by certified or registered
mail directed to such address. Each Guarantor hereby irrevocably and
unconditionally waives any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of FORUM NON
CONVENIENS, or that it or its assets is exempt or immune from attachment or
execution, which it may now or hereafter have to the bringing or maintaining of
any such action or proceeding in such respective jurisdictions. Nothing herein
shall affect the right of any of the Beneficiaries to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against any Guarantor in any other jurisdiction.
(i) Each Guarantor, jointly and severally, agrees to pay promptly, to the
extent not previously finally and indefeasibly paid in full by the Company, (i)
all reasonable costs and expenses of the Purchasers in connection with the
negotiation, preparation, execution, issuance, delivery, filing and recording of
this Guaranty and any other documents which may be delivered in connection with
this Guaranty, including, without limitation, the reasonable fees and expenses
of Chapman and Cutler, special counsel for the Purchasers, with respect thereto
and with respect to advising the Beneficiaries from time to time as to their
rights and responsibilities under or in respect of this Guaranty and any
amendment or modification of, or waiver under, this Guaranty and (ii) from and
after the occurrence of any Event of Default or Default, all costs and expenses
(including reasonable counsel fees and expenses) in connection with (A) any and
all amounts which any Beneficiary has paid relative to the curing of any default
resulting from the acts or omissions of any Guarantor under this Guaranty, (B)
any amendment or modification of, or waiver under, this Guaranty and (C) the
enforcement of this Guaranty and the preservation of the Beneficiaries' rights
hereunder. Each Guarantor, jointly and severally, shall pay, to the extent not
previously finally and indefeasibly paid in full by the Company, any and all
stamp and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing and recording of this Guaranty, financing
and continuation statements and any other documents which may be delivered in
connection with this Guaranty, and agrees to save the Beneficiaries harmless
from and against any and all liabilities with respect to or resulting from any
delay in paying or omission to pay such taxes and fees. The joint and several
obligations of each Guarantor under this subsection shall survive the payment of
such Guarantor's other obligations hereunder and the termination of this
Guaranty.
(j) This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Guaranty.
(k) Section and other headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.
(l) The obligations of the Guarantors under this Guaranty are secured by,
among other things, the collateral security provided for in the Subsidiaries
Pledge Agreement and the Subsidiaries Security Agreement.
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(m) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING UNDER OR RELATING TO THIS
GUARANTY OR ANY LOAN DOCUMENT. EACH BENEFICIARY, BY THE ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY, SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO TRIAL BY
JURY IN RESPECT OF ANY ACT OR PROCEEDING IN WHICH THE GUARANTORS HAVE WAIVED
THEIR RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Subsidiaries
Guaranty to be duly executed and delivered by its proper and duly authorized
officer as of the day and year first above written.
UNITED ASSET MANAGEMENT HOLDINGS, INC.
Address:
103 Springer Building
3411 Silverside Road
Wilmington, Delaware 19810
By
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Name:
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Title:
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UNITED ASSET MANAGEMENT TRADEMARK, INC.
Address:
103 Springer Building
3411 Silverside Road
Wilmington, Delaware 19810
By
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Name:
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Title:
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UAM INVESTMENT CORPORATION
Address:
103 Springer Building
3411 Silverside Road
Wilmington, Delaware 19810
By
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Name:
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Title:
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SUBSIDIARIES OF UAM HOLDINGS
1. Dewey Square Investors Corporation, a Delaware corporation
2. UAM Realty Advisors Investment Corporation, a Delaware
corporation
3. Hellman, Jordan Management Company, Inc., a Delaware corporation
4. Hagler, Mastrovita & Hewitt, Inc., a Delaware corporation
5. First Pacific Advisors, Inc., a Massachusetts corporation
6. Acadian Asset Management, Inc., a Massachusetts corporation
7. Pell, Rudman & Co., Inc., a Delaware corporation
8. NWQ Investment Management Company, Inc., a Massachusetts
corporation
9. Provident Investment Councel, Inc., a Massachusetts corporation
10. Tom Johnson Investment Management, Inc., a Massachusetts
corporation
SCHEDULE A
(to Subsidiaries Guaranty)
<PAGE>
Draft Dated August 2, 1995
EXHIBIT B-2
TO
FIRST AMENDMENT AND CONSENT
UAM REALTY ADVISORS GUARANTY
UAM REALTY ADVISORS GUARANTY dated as of August 1, 1995 (as the same may be
amended, supplemented or otherwise modified from time to time, this "GUARANTY"),
made by UAM Realty Advisors Investment Corporation, a Delaware corporation (the
"GUARANTOR"), in favor of the Beneficiaries (as hereinafter defined). Certain
capitalized terms used herein are defined in Section 1 of this Guaranty.
RECITALS:
A. United Asset Management Corporation, a Delaware corporation (the
"COMPANY"), proposes to enter into separate and several Note Purchase
Agreements, each dated as of August 1, 1995 (as the same may be amended,
supplemented or otherwise modified from time to time, the "NOTE PURCHASE
AGREEMENTS"), with the Purchasers listed on Schedule A thereto (collectively,
the "PURCHASERS"), pursuant to which the Purchasers have agreed to purchase and
the Company has agreed to sell $150,000,000 aggregate principal amount of the
Company's 7.12% Senior Secured Notes, due August __, 2005 (the "NOTES"), subject
to the terms and conditions set forth in the Note Purchase Agreements.
B. It is a condition precedent to the purchase of the Notes by the
Purchasers that the Guarantor guarantees the Guaranteed Obligations (as
hereinafter defined).
C. The Guarantor, as part of an affiliated group of corporations with the
Company, will receive substantial direct and indirect benefits by reason of such
issue and sale by the Company of the Notes and the purchase thereof by the
Purchasers.
NOW, THEREFORE, in order to induce the Purchasers to enter into the Note
Purchase Agreements and to purchase the Notes and in consideration thereof, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantor hereby agrees as follows:
SECTION 1. DEFINITIONS.
As used in this Guaranty, and unless the context requires a different
meaning, capitalized terms not otherwise defined herein have the respective
meanings provided for such terms in the Note Purchase Agreements and the
following terms have the meanings indicated, all such definitions to be equally
applicable to the singular and plural forms of the terms defined:
"ADJUSTED NOT WORTH" of the Guarantor shall mean, as of any date of
determination thereof, the excess of (i) the amount of the "present fair
saleable value" of the assets of the Guarantor as of the date of such
determination, over (ii) the amount of all "liabilities of the Guarantor,
contingent or otherwise" as of the date of such determination, as such
quoted terms (or similar terms) are determined in
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accordance with applicable federal and state laws governing determinations
of the insolvency of debtors. In determining the Adjusted Net Worth of the
Guarantor for purposes of calculating the Limit of Liability for the
Guarantor in respect of any of the Guaranteed Obligations, the liabilities
of the Guarantor to be used in such determination pursuant to clause (ii)
of the preceding sentence shall exclude the liabilities of the Guarantor
hereunder in respect of the Guaranteed Obligations.
"BENEFICIARIES" means the Purchasers, any subsequent holder of the
Notes, and their respective successors and assigns.
"GUARANTEED OBLIGATIONS" has the meaning assigned to that term in
Section 2(a).
"INVESTMENT ADVISORS ACT" shall mean the Investment Advisors Act of
1940, as amended.
"LIMIT OF LIABILITY" means, as of any date of determination thereof,
the sum of (i) with respect to any of the Guaranteed Obligations (or
portion thereof), the proceeds of which (or any portion thereof) are used
to make a Valuable Transfer to the Guarantor, the amount of such Guaranteed
Obligations (or such portion thereof) PLUS (ii) with respect to any of the
Guaranteed Obligations (or portion thereof), the proceeds of which are not
used to make a Valuable Transfer to the Guarantor, the lesser of (A) the
outstanding amount of such Guaranteed Obligations (or such portion thereof)
as of such date and (B) ninety-five percent (95%) of the Adjusted Net Worth
of the Guarantor at the time of the incurrence of such Guaranteed
Obligations. Notwithstanding the foregoing, that portion of the Limit of
Liability of the Guarantor calculated pursuant to clause (ii)(B) shall be
increased (but not decreased) on the last day of each fiscal year of the
Guarantor, to an amount equal to ninety-five percent (95%) of the Adjusted
Net Worth of the Guarantor, as determined on such date, if such amount is
greater than that portion of the Limit of Liability pursuant to clause
(ii)(B) in effect immediately prior to such date.
"SUBORDINATE CLAIMS" has the meaning assigned to that term in Section
3.
"VALUABLE TRANSFER" means (i) all loans, advances or capital
contributions made to the Guarantor with proceeds of Guaranteed
Obligations, or any portion thereof, (ii) all debt securities or other
obligations of the Guarantor acquired from the Guarantor or retired by the
Guarantor with proceeds of Guaranteed Obligations, or any portion thereof,
(iii) the fair market value of all property acquired with proceeds of
Guaranteed Obligations, or any portion thereof, and transferred, absolutely
and not as collateral, to the Guarantor and (iv) the value of any
quantifiable economic benefits not included in clauses (i) through (iii)
above, but included in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, accruing to the
Guarantor as a result of the incurrence of Guaranteed Obligations.
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SECTION 2. GUARANTEE OF OBLIGATIONS.
(a) The Guarantor hereby unconditionally and irrevocably guarantees to
each of the Beneficiaries, as the primary obligation and debt of the Guarantor
and not as a surety, the due and punctual payment of, without duplication, (i)
all principal, interest, fees, premium, if any, and other amounts required to be
paid, from time to time, by the Company under or in respect of the Note Purchase
Agreements and the Notes, when and as the same shall be or become due and
payable, whether on the due date therefor, upon stated maturity, by
acceleration, upon demand or otherwise, according to the terms of the Note
Purchase Agreements and the Notes, and, (ii) all other present and future
obligations and liabilities (whether absolute, fixed or contingent, matured or
unmatured, joint, several or independent and howsoever acquired) of the Company
to the Beneficiaries, or any of them, arising out of or in any way relating to
the Note Purchase Agreements, the Notes and any and all Security Documents and
the transactions contemplated thereby (all of the foregoing, collectively, the
"GUARANTEED OBLIGATIONS"). In case of the failure of the Company to duly,
punctually and indefeasibly make any such payment in full as and when due and
payable, the Guarantor hereby agrees to duly, punctually and indefeasibly make
such payment as and when the same shall become due and payable, whether on the
due date therefor, upon stated maturity, by acceleration, upon demand or
otherwise, in accordance with the terms of this Guaranty, the Note Purchase
Agreements, the Notes and the other Security Documents.
(b) The Guarantor hereby agrees that its obligations hereunder shall be
continuing, absolute and unconditional under any and all circumstances and not
subject to any reduction, limitation, impairment, termination, defense (other
than prior, final and indefeasible payment in full), set-off, abatement,
counterclaim or recoupment whatsoever (all of which are hereby expressly waived
by the Guarantor), whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, or by reason of any liability at any time to the
Company or any other Subsidiary of the Company or otherwise, whether based upon
any agreement, instrument or document evidencing or securing the Guaranteed
Obligations or any other agreement, instrument or document (including, without
limitation, this Guaranty) or otherwise, and howsoever arising, whether out of
action or inaction or otherwise and whether resulting from default, willful
misconduct, negligence or otherwise, and without limiting the foregoing,
irrespective of (i) any insolvency, bankruptcy, reorganization or dissolution,
or any proceeding in respect of any thereof, of the Company, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed Obligations, (ii) the genuineness, validity, regularity or
enforceability of any agreement, instrument or document evidencing or securing
the Guaranteed Obligations or any other agreement, instrument or document or the
extension or renewal thereof, in whole or in part, with or without notice to or
assent from the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations, (iii) the
validity, enforceability or priority of any lien or security interest securing
the payment of the Guaranteed Obligations or any portion thereof, (iv) any
rescission, compromise, alteration, amendment, modification, extension, renewal,
release, change, waiver, consent, grant of any indulgence or other action in
respect of any of the terms, provisions, covenants or conditions contained in
any agreement, instrument or document evidencing or securing the Guaranteed
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Obligations or in any other agreement, instrument or document, (v) the absence
of notice or the absence of or any delay in any action to enforce any obligation
or to exercise any right or remedy against the Company, any other Subsidiary of
the Company or any other guarantor of all or any portion of the Guaranteed
Obligations, whether under any agreement, instrument or document evidencing or
securing the Guaranteed Obligations or under any other agreement, instrument or
document, or any indulgence or extension or waiver granted to or compromise with
the Company, any other Subsidiary of the Company or any other Guarantor of all
or any portion of the Guaranteed Obligations, or any action or proceeding taken
or not taken with respect to or by or on behalf of the Company, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed Obligations, or the holder of any agreement, instrument or document
evidencing or securing the Guaranteed Obligations, (vi) any default, failure or
delay in the performance of any obligation, covenant, duty, representation,
warranty or agreement contained in any agreement, instrument or document
evidencing or securing the Guaranteed Obligations or in any other agreement,
instrument or document, or arising pursuant to law, (vii) any act or thing or
omission to do or delay in doing any act or thing which might in any manner
result in any lack of proper authorization or any invalid execution of any
agreement, instrument or document evidencing or securing the Guaranteed
Obligations or any other agreement, instrument or document, (viii) any
assumption by any Person of any obligation under any agreement, instrument or
document evidencing or securing the Guaranteed Obligations or under any other
agreement, instrument or document, (ix) any event of FORCE MAJEURE, (x) any
release or substitution of any collateral for, or any obligor in respect of, the
payment of the Guaranteed Obligations or obligations under any other agreement,
instrument or document, in whole or in part, with or without notice to or assent
from the Company, any other Subsidiary of the Company or any other guarantor of
all or any portion of the Guaranteed Obligations, (xi) whether a lien on any
collateral shall have been perfected or shall continue to be perfected, or
whether any collateral shall be impaired in any manner, or whether any steps
shall have been taken to enforce rights against the Company, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed Obligations or to sell, exchange, release, surrender, realize upon or
otherwise deal with, in any manner and in any order, any collateral and (xii)
any other circumstances which might constitute a legal or equitable discharge or
defense of a surety or guarantor.
(c) The Guarantor hereby (i) waives diligence, presentment, demand (of
payment or otherwise), protest, notice, filing of claims with a court in the
event of the merger or bankruptcy of the Company, any other Subsidiary of the
Company or any other guarantor of all or any portion of the Guaranteed
Obligations, any right to require a proceeding first against the Company, any
other Subsidiary of the Company or any other guarantor of all or any portion of
the Guaranteed Obligations or to marshall or realize on any collateral, with
respect to the Guaranteed Obligations, (ii) agrees that its obligations
hereunder constitute guarantees of payment and not of collection and are not in
any way conditional or contingent upon any attempt to collect from or enforce
any rights against the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations or upon any other
condition or contingency, (iii) acknowledges that any agreement, instrument or
document evidencing and/or securing the Guaranteed Obligations may be
transferred (upon and subject to the terms and conditions thereof) and that the
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benefit of the Guarantor's obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing and/or securing the Guaranteed
Obligations automatically and without notice to the Guarantor, (iv) covenants
that this Guaranty will not be discharged except by final, complete,
indefeasible and irrevocable payment and performance of the obligations
contained in the agreements, instruments and documents evidencing or securing
the Guaranteed Obligations and this Guaranty and (v) waives acceptance of this
Guaranty by the Beneficiaries or notice or proof of reliance.
(d) The Guarantor further agrees that if at any time all or any part of
any payment theretofore applied by any Beneficiary to any of the Guaranteed
Obligations is, or must be, rescinded or returned by such Beneficiary for any
reason whatsoever, including, without limitation, the insolvency, bankruptcy or
reorganization of the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations, such Guaranteed
Obligations or applicable portion thereof, for purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, shall be deemed to
have continued in existence notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Guaranteed Obligations or applicable portion thereof as though such application
had not been made, irrespective of whether any note or other evidence of
indebtedness has been surrendered or cancelled.
(e) Notwithstanding anything to the contrary contained in this Guaranty,
the obligations and liabilities of the Guarantor pursuant to this Guaranty shall
at all times be subject to the Guarantor's Limit of Liability.
SECTION 3. SUBROGATION.
So long as any of the Guaranteed Obligations shall be outstanding or
subject to any rescission or revocation of payment, all claims of any kind or
character of the Guarantor or any of its successors and assigns against the
Company or any Subsidiary of the Company or with respect to any collateral for
the Guaranteed Obligations, to the extent such claims (whether by right of
subrogation, contribution or otherwise) arise by reason of the Guarantor's
payment of any sum or sums to any Beneficiary under this Guaranty (all such
claims of any kind or character of the Guarantor or any of its successors and
assigns being hereinafter referred to as "SUBORDINATE CLAIMS"), shall be
subordinated in right of payment to the prior indefeasible payment in full of
such Guaranteed Obligations as follows:
(a) The Beneficiaries shall first be entitled to receive final and
indefeasible payment in full of principal of Guaranteed Obligations,
premium, if any, and accrued and unpaid interest thereon (including,
without limitation, interest thereon accruing after the commencement of any
bankruptcy, insolvency or receivership proceedings at the applicable rate
provided therefor in the Note Purchase Agreements and the Notes), and all
other amounts due under any agreement, instrument or document evidencing or
securing such Guaranteed Obligations before any direct or indirect payment
or distribution (whether in cash, property or securities, or by set-off,
counterclaim or
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otherwise) shall be made on, or received by the Guarantor in respect of,
Subordinate Claims.
(b) Any payment or distribution of assets of the Company or any of
the Company's Subsidiaries of any kind or character, whether in cash,
property or securities, which would be made on account of Subordinate
Claims but for the provisions of this Section, shall be paid by the Company
or such other Subsidiary, as the case may be (or the trustee or agent or
other Person making such payment or distribution), directly to the
Beneficiaries, for the ratable application to the Guaranteed Obligations to
the extent necessary to make indefeasible payment in full of all sums due
upon the Guaranteed Obligations and remaining unpaid after giving effect to
any concurrent payment or distribution to or for the benefit of such
Beneficiaries in respect of the Guaranteed Obligations. In furtherance of
the foregoing, no holder of Subordinate Claims shall exercise any right of
set-off or counterclaim with respect to any Subordinate Claim held by it,
and any reduction of Subordinate Claims, by reason of exercise by the
holder thereof of a right of set-off or counterclaim or otherwise in
violation of the provisions of this subsection, in respect of any
obligations of such holder to the Company or such Subsidiary, as
applicable, shall be deemed to be a payment by the Company or such
Subsidiary, as the case may be, in respect of such Subordinate Claims to
which this subsection shall apply.
(c) In the event that any payment or distribution of assets of the
Company or any of the Company's Subsidiaries of any kind or character,
whether in cash, property or securities, shall be received by the Guarantor
or on its behalf at any time when the making of such payment or
distribution shall have been in violation of the foregoing subsection (a)
or (b), then such payment, distribution or amount shall be held in trust
for the benefit of, and shall be paid over or delivered to, the
Beneficiaries, for ratable application to the Guaranteed Obligations then
remaining unpaid to the extent necessary to pay in full all such Guaranteed
Obligations in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
Beneficiaries in respect of the Guaranteed Obligations.
(d) Nothing contained in this Section is intended to or shall impair,
as between the Company or any of its Subsidiaries, as the case may be, and
their respective creditors (other than the Beneficiaries), the obligations
of the Company and each such Subsidiary, as the case may be, to pay to the
Guarantor and its successors or assigns all sums due from it to any such
holder of Subordinate Claims as and when the same shall become due and
payable in accordance with their terms, subject to the terms hereof;
PROVIDED that no such holder of Subordinate Claims shall initiate any legal
proceedings with respect to any of the Subordinate Claims prior to the
indefeasible payment in full of the Guaranteed Obligations.
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SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Guarantor hereby acknowledges and agrees that it has received a copy of
the Note Purchase Agreements, the Notes and all Security Documents and hereby
(i) agrees that the representations and warranties contained in Section 5 of the
Note Purchase Agreements are incorporated herein by reference and are hereby
made by the Guarantor to the extent such representations and warranties are
applicable to such Guarantor, (ii) agrees to comply with all covenants and
agreements contained therein to the extent applicable to it and as the same may
be amended or modified from time to time in accordance with the terms of the
Note Purchase Agreements and (iii) makes the following representations,
warranties and agreements:
(a) FINANCIAL ACCOMMODATIONS. Except as expressly set forth in the
Note Purchase Agreements, no Beneficiary is obligated to give or to
continue any financial accommodations to the Company, the Guarantor or any
of the Company's other Subsidiaries or to change or extend the time of
payment of, or renew or alter, any liability of the Company, the Guarantor
or any of the Company's other Subsidiaries, any security therefor or any
liability incurred directly or indirectly in respect thereof.
(b) ACTS OF BENEFICIARIES. None of the Beneficiaries or any other
Person has made any representations or promises to the Guarantor as to the
making or continuance of any extension of credit to the Company (other than
the purchase of the Notes pursuant to, and in accordance with, the terms of
the Note Purchase Agreements and the Notes) or as to the financial
condition of the Company or any of the Company's Subsidiaries or any other
Person or as to the type or value of any security for the Guaranteed
Obligations, or as to the perfection thereof, and none of the Beneficiaries
is obligated to notify the Guarantor of any change in the financial
condition of the Company or any of the Company's Subsidiaries or any other
Person or in the type, value, priority or perfection of any collateral
security for the Guaranteed Obligations.
(c) NATURE OF BUSINESS. The Guarantor agrees that it will not engage
in any business or activity other than as a limited partner of Aldrich,
Eastman & Waltch, L.P., a Delaware limited partnership. The Guarantor
further agrees that, subject to the Assignment of Partnership Interest, any
distributions received by it and arising out of such interest as a limited
partner shall promptly be distributed (as a dividend or otherwise) in the
form received (endorsed as appropriate) to UAM Holdings.
SECTION 5. BREACH OF COVENANTS.
(a) In the event that the Guarantor shall fail to comply with any of its
covenants or agreements contained in this Guaranty or in any of the other
Security Documents to which it is a party, then in any such event and at any
time thereafter (so long as such failure shall not have been cured or waived in
accordance with Section 6(c)), the Required Holders may, declare the obligations
of the Company under the Note Purchase Agreements and the Notes (whether or not
then due) immediately due and payable pursuant to this Guaranty as to the
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Guarantor, and any Beneficiary shall be entitled to enforce the obligations of
the Guarantor hereunder in respect of such obligations.
(b) Subject to any applicable agreements in effect from time to time
relating to the sharing and priority of payment of proceeds of collateral, the
net proceeds of any collection, recovery, receipt, appropriation or realization,
after deducting all costs and expenses of every kind incurred in connection with
the foregoing, including reasonable attorneys' fees and legal expenses, shall be
applied to the ratable payment in whole or in part of the Guaranteed
Obligations.
SECTION 6. MISCELLANEOUS.
(a) THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID STATE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(b) Any provision of this Guaranty 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 or affecting the validity or enforceability of such provision
in any other jurisdiction. Notwithstanding the foregoing, in lieu of such
prohibited or unenforceable provision, there shall automatically be deemed
incorporated herein (without further act or deed by any party hereto) a
provision as similar to such prohibited or unenforceable provision as possible
and as shall be enforceable and not prohibited pursuant to applicable law. If
this Guaranty would be held or determined by a court of competent jurisdiction
in a judicial proceeding to be void, voidable, invalid or unenforceable on
account of the amount of the aggregate liability of the Guarantor under this
Guaranty or by reason of any inconsistent contractual provision binding on the
Guarantor and in effect on or prior to the date hereof, then, notwithstanding
any other provision of this Guaranty to the contrary, the aggregate amount of
the liability of the Guarantor under this Guaranty shall, without any further
action by the Guarantor, the Beneficiaries or any other Person, be automatically
limited and reduced to the maximum amount which is valid and enforceable.
(c) No failure or delay on the part of any Beneficiary in exercising any
right, power or remedy under this Guaranty shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies provided for in this Guaranty are
cumulative and are not exclusive of any remedies that may be available to any
Beneficiary at law or in equity or otherwise. No amendment, modification,
supplement, termination or waiver of or to any provision of this Guaranty, nor
consent to any departure by the Guarantor therefrom, shall be effective unless
the same shall be consented to in writing by the Required Holders, pursuant to
Section 17 of the Note Purchase Agreements. Any amendment, modification or
supplement of or to any provision of this Guaranty, any waiver of any provision
of this Guaranty, and any consent to any departure by the Guarantor from the
terms of any provision of this Guaranty, shall be
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effective only in the specific instance and for the specific purpose for which
made or given. Except where notice is specifically required by this Guaranty,
no notice to or demand on the Guarantor in any case shall entitle the Guarantor
to any other or further notice or demand in similar or other circumstances.
(d) The Guarantor agrees that copies of the Note Purchase Agreements, the
Notes and the other Security Documents received by it constitute adequate notice
of all matters contained therein, and consents to the execution and delivery of
such agreements and the performance of all transactions provided for or
contemplated therein; PROVIDED that none of the Beneficiaries shall be obligated
to furnish to the Guarantor any copies of any amendments, modifications or
supplements or waivers with respect to the Note Purchase Agreements, the Notes
or any of the other Security Documents.
(e) All notices, requests and other communications to the Guarantor or any
Beneficiary hereunder shall be in writing (including bank wire, telex, telecopy
or similar teletransmission or writing) and shall be given (i) if to a
Beneficiary, at its address or telex or telecopier number specified in Section
18 of the Note Purchase Agreements, or (ii) if to the Guarantor, at its address
or telex or telecopier number specified on the signature pages hereof or such
other address or telex or telecopier number as the Guarantor may hereafter
specify by written notice to the Beneficiaries and the Company. Each such
notice, request or other communication shall be effective when actually
received.
(f) This Guaranty shall be binding upon the Guarantor and its successors
and assigns and shall inure to the benefit of, and shall be enforceable by, each
of the Beneficiaries and their respective successors and assigns, PROVIDED that
the Guarantor may not assign or transfer any of its obligations under this
Guaranty without the prior written consent of the Required Holders.
(g) The Guarantor agrees to do such further acts and things and to execute
and deliver such additional agreements, powers and instruments, as the
Beneficiaries may require or deem advisable to carry into effect the purposes of
this Guaranty or to better assure and confirm unto the Beneficiaries their
rights, powers and remedies under this Guaranty, under the Note Purchase
Agreements, the Notes or under any of the other Security Documents.
(h) The Guarantor hereby irrevocably and unconditionally consents and
submits to the nonexclusive jurisdiction of any United States Federal or New
York State court sitting in New York County in any action or proceeding arising
out of or relating to this Guaranty, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of such action or proceeding
brought against any of the Beneficiaries in respect of this Guaranty shall be
brought in such United States Federal or New York State court. The Guarantor
irrevocably consents to the service of any and all process in any such action or
proceeding brought in any court in or of the State of New York by the delivery
of copies of such process to the Guarantor at its address specified in Section
6(e) or by certified or registered mail directed to such address. The Guarantor
hereby irrevocably and unconditionally waives any objection, including, without
limitation, any objection to the
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laying of venue or based on the grounds of FORUM NON COVENIENS, or that it or
its assets is exempt or immune from attachment or execution, which it may now or
hereafter have to the bringing or maintaining of any such action or proceeding
in such respective jurisdictions. Nothing herein shall affect the right of any
of the Beneficiaries to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Guarantor in any
other jurisdiction.
(i) The Guarantor agrees to pay promptly, to the extent not previously
finally and indefeasibly paid in full by the Company, (i) all reasonable costs
and expenses of the Beneficiaries in connection with the negotiation,
preparation, execution, issuance, delivery, filing and recording of this
Guaranty and any other documents which may be delivered in connection with this
Guaranty, including, without limitation, the reasonable fees and expenses of
Chapman and Cutler, special counsel for the Purchasers, with respect thereto and
with respect to advising the Beneficiaries from time to time as to their rights
and responsibilities under or in respect of this Guaranty and any amendment or
modification of, or waiver under, this Guaranty and (ii) from and after the
occurrence of any Event of Default or Default, all costs and expenses (including
reasonable counsel fees and expenses) in connection with (A) any and all
amounts which any Beneficiary has paid relative to the curing of any default
resulting from the acts or omissions of the Guarantor under this Guaranty, (B)
any amendment or modification of, or waiver under, this Guaranty and (C) the
enforcement of this Guaranty and the preservation of the Beneficiaries' rights
hereunder. The Guarantor shall pay, to the extent not previously finally and
indefeasibly paid in full by the Company, any and all stamp and other taxes
payable or determined to be payable in connection with the execution, delivery,
filing and recording of this Guaranty, financing and continuation statements and
any other documents which may be delivered in connection with this Guaranty, and
agrees to save the Beneficiaries harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees. The obligations of the Guarantor under this subsection
shall survive the payment of the Guarantor's other obligations hereunder and the
termination of this Guaranty.
(j) This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Guaranty.
(k) Section and other headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.
(l) The obligations of the Guarantor under this Guaranty are secured by,
among other things, the collateral security provided for in the Assignment of
Partnership Interests.
(m) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING UNDER OR RELATING TO THIS
GUARANTY OR ANY LOAN DOCUMENT. EACH BENEFICIARY, BY THE ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY, SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO
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TRIAL BY JURY IN RESPECT OF ANY ACT OR PROCEEDING IN WHICH THE GUARANTOR HAS
WAIVED ITS RIGHT TO TRIAL BY JURY.
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<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this UAM Realty Advisors
Guaranty to be duly executed and delivered by its proper and duly authorized
officer as of the day and year first above written.
Address: UAM REALTY ADVISORS INVESTMENT
CORPORATION
One International Place
100 Oliver Street
Boston, Massachusetts 02110 By
---------------------------------------
Attn: William H. Park Name
Telecopier No.: (617) 330-1133 Title
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<PAGE>
EXHIBIT B-3
TO
FIRST AMENDMENT AND CONSENT
Draft Dated August 2, 1995
HEITMAN GUARANTY
HEITMAN GUARANTY dated as of August 1, 1995 (as the same may be amended,
supplemented or otherwise modified from time to time, this "GUARANTY"), made by
Heitman Financial Ltd., an Illinois corporation (the "GUARANTOR"), in favor of
the Beneficiaries (as hereinafter defined). Certain capitalized terms used
herein are defined in Section 1 of this Guaranty.
RECITALS:
A. United Asset Management Corporation, a Delaware corporation (the
"COMPANY"), proposes to enter into separate and several Note Purchase
Agreements, each dated as of August 1, 1995 (as the same may be amended,
supplemented or otherwise modified from time to time, the "NOTE PURCHASE
AGREEMENTS"), with the Purchasers listed on Schedule A thereto (collectively,
the "PURCHASERS"), pursuant to which the Purchasers have agreed to purchase and
the Company has agreed to sell $150,000,000 aggregate principal amount of the
Company's 7.12% Senior Secured Notes due August __, 2005 (the "NOTES"), subject
to the terms and conditions set forth in the Note Purchase Agreements.
B. It is a condition precedent to the purchase of the Notes by the
Purchasers that the Guarantor guarantees the Guaranteed Obligations (as
hereinafter defined).
C. The Guarantor, as part of an affiliated group of corporations with the
Company, will receive substantial direct and indirect benefits by reason of such
issue and sale by the Company of the Notes and the purchase thereof by the
Purchasers.
NOW, THEREFORE, in order to induce the Purchasers to enter into the Note
Purchase Agreements and to purchase the Notes and in consideration thereof, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantor hereby agrees as follows:
SECTION 1. DEFINITIONS.
As used in this Guaranty, and unless the context requires a different
meaning, capitalized terms not otherwise defined herein have the respective
meanings provided for such terms in the Note Purchase Agreements, and the
following terms have the meanings indicated below, all such definitions to be
equally applicable to the singular and plural forms of the terms defined:
"ADJUSTED NET WORTH" of the Guarantor shall mean, as of any date of
determination thereof, the excess of (i) the amount of the "present fair
saleable value" of the assets of the Guarantor as of the date of such
determination, over (ii) the amount of all "liabilities of the Guarantor,
contingent or otherwise" (including, without limitation, all liabilities and
<PAGE>
obligations of the Guarantor to LaSalle National Bank in connection with the
$10,000,000 Revolving Loan Facility under and pursuant to that certain Loan
Agreement, dated as of March 27, 1992, as the same may be amended from time to
time) as of the date of such determination, as such quoted terms (or similar
terms) are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors. In determining the
Adjusted Net Worth of the Guarantor for purposes of calculating the Limit of
Liability for the Guarantor in respect of any of the Guaranteed Obligations, the
liabilities of the Guarantor to be used in such determination pursuant to clause
(ii) of the preceding sentence shall exclude the liabilities of the Guarantor
hereunder in respect of the Guaranteed Obligations.
"BENEFICIARIES" means the Purchasers, any subsequent holder of the Notes,
and their respective successors and assigns.
"GUARANTEED OBLIGATIONS" has the meaning assigned to that term in Section
2(a).
"INVESTMENT ADVISORS ACT" shall mean the Investment Advisors Act of 1940,
as amended.
"LIMIT OF LIABILITY" means, as of any date of determination thereof, the
sum of (i) with respect to any of the Guaranteed Obligations (or portion
thereof), the proceeds of which (or any portion thereof) are used to make a
Valuable Transfer to the Guarantor, the amount of such Guaranteed Obligations
(or such portion thereof) PLUS (ii) with respect to any of the Guaranteed
Obligations (or portion thereof), the proceeds of which are not used to make a
Valuable Transfer to the Guarantor, the lesser of (A) the outstanding amount of
such Guaranteed Obligations (or such portion thereof) as of such date and (B)
ninety-five percent (95%) of the Adjusted Net Worth of the Guarantor at the time
of the incurrence of such Guaranteed Obligations. Notwithstanding the
foregoing, that portion of the Limit of Liability of the Guarantor calculated
pursuant to clause (ii)(B) shall be increased (but not decreased) on the last
day of each fiscal year of the Guarantor, to an amount equal to ninety-five
percent (95%) of the Adjusted Net Worth of the Guarantor, as determined on such
date, if such amount is greater than that portion of the Limit of Liability
pursuant to clause (ii)(B) in effect immediately prior to such date.
"SUBORDINATE CLAIMS" has the meaning assigned to that term in Section 3.
"VALUABLE TRANSFER" means (i) all loans, advances or capital contributions
made to the Guarantor with proceeds of Guaranteed Obligations, or any portion
thereof, (ii) all debt securities or other obligations of the Guarantor acquired
from the Guarantor or retired by the Guarantor with proceeds of Guaranteed
Obligations, or any portion thereof, (iii) the fair market value of all property
acquired with proceeds of Guaranteed Obligations, or any portion thereof, and
transferred, absolutely and not as collateral, to the Guarantor and (iv) the
value of any quantifiable economic benefits not included in clauses (i) through
(iii) above, but included in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, accruing to the Guarantor
as a result of the incurrence of Guaranteed Obligations, PROVIDED that for
purposes of this definition, a
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"Valuable Transfer" shall not include any repayment of monies by the Company to
the Guarantor, which monies were originally paid by the Guarantor to the Company
pursuant to that certain Revenue Sharing Agreement, dated as of August 25, 1993,
by and among the Company, the Guarantor and the individuals named therein (the
"REVENUE SHARING AGREEMENT") that are repaid pursuant to the determination of
the Guarantor and the Company that such original payments exceeded the amount of
the Guarantor's obligations under the Revenue Sharing Agreement, and PROVIDED
FURTHER that any claim of the Guarantor for any such repayment by the Company
shall be included as an asset for purposes of the definition of "Adjusted Net
Worth."
SECTION 2. GUARANTEE OF OBLIGATIONS.
(a) The Guarantor hereby unconditionally and irrevocably guarantees to
each of the Beneficiaries, as the primary obligation and debt of the Guarantor
and not as a surety, the due and punctual payment of, without duplication, (i)
all principal, interest, fees, premium, if any, and other amounts required to be
paid, from time to time, by the Company under or in respect of the Note Purchase
Agreements and the Notes, when and as the same shall be or become due and
payable, whether on the due date therefor, upon stated maturity, by
acceleration, upon demand or otherwise, according to the terms of the Note
Purchase Agreements and the Notes, and (ii) all other present and future
obligations and liabilities (whether absolute, fixed or contingent, matured or
unmatured, joint, several or independent and howsoever acquired) of the Company
to the Beneficiaries, or any of them, arising out of or in any way relating to
the Note Purchase Agreements, the Notes and any and all Security Documents and
the transactions contemplated thereby (all of the foregoing, collectively, the
"GUARANTEED OBLIGATIONS"). In case of the failure of the Company to duly,
punctually and indefeasibly make any such payment in full as and when due and
payable, the Guarantor hereby agrees to duly, punctually and indefeasibly make
such payment as and when the same shall become due and payable, whether on the
due date therefor, upon stated maturity, by acceleration, upon demand or
otherwise, in accordance with the terms of this Guaranty, the Note Purchase
Agreements, the Notes and the other Security Documents.
(b) The Guarantor hereby agrees that its obligations hereunder shall be
continuing, absolute and unconditional under any and all circumstances and not
subject to any reduction, limitation, impairment, termination, defense (other
than prior, final and indefeasible payment in full), set-off, abatement,
counterclaim or recoupment whatsoever (all of which are hereby expressly waived
by the Guarantor), whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, or by reason of any liability at any time to the
Company or any other Subsidiary of the Company or otherwise, whether based upon
any agreement, instrument or document evidencing or securing the Guaranteed
Obligations or any other agreement, instrument or document (including, without
limitation, this Guaranty) or otherwise, and howsoever arising, whether out of
action or inaction or otherwise and whether resulting from default, willful
misconduct, negligence or otherwise, and without limiting the foregoing,
irrespective of (i) any insolvency, bankruptcy, reorganization or dissolution,
or any proceeding in respect of any thereof, of the Company, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed
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<PAGE>
Obligations, (ii) the genuineness, validity, regularity or enforceability of any
agreement, instrument or document evidencing or securing the Guaranteed
Obligations or any other agreement, instrument or document or the extension or
renewal thereof, in whole or in part, with or without notice to or assent from
the Company, any other Subsidiary of the Company or any other guarantor of all
or any portion of the Guaranteed Obligations, (iii) the validity, enforceability
or priority of any lien or security interest securing the payment of the
Guaranteed Obligations or any portion thereof, (iv) any rescission, compromise,
alteration, amendment, modification, extension, renewal, release, change,
waiver, consent, grant of any indulgence or other action in respect of any of
the terms, provisions, covenants or conditions contained in any agreement,
instrument or document evidencing or securing the Guaranteed Obligations or in
any other agreement, instrument or document, (v) the absence of notice or the
absence of or any delay in any action to enforce any obligation or to exercise
any right or remedy against the Company, any other Subsidiary of the Company or
any other guarantor of all or any portion of the Guaranteed Obligations, whether
under any agreement, instrument or document evidencing or securing the
Guaranteed Obligations or under any other agreement, instrument or document, or
any indulgence or extension or waiver granted to or compromise with the Company,
any other Subsidiary of the Company or any other guarantor of all or any portion
of the Guaranteed Obligations, or any action or proceeding taken or not taken
with respect to or by or on behalf of the Company, any other Subsidiary of the
Company or any other guarantor of all or any portion of the Guaranteed
Obligations, or the holder of any agreement, instrument or document evidencing
or securing the Guaranteed Obligations, (vi) any default, failure or delay in
the performance of any obligation, covenant, duty, representation, warranty or
agreement contained in any agreement, instrument or document evidencing or
securing the Guaranteed Obligations or in any other agreement, instrument or
document, or arising pursuant to law, (vii) any act or thing or omission to do
or delay in doing any act or thing which might in any manner result in any lack
of proper authorization or any invalid execution of any agreement, instrument or
document evidencing or securing the Guaranteed Obligations or any other
agreement, instrument or document, (viii) any assumption by any Person of any
obligation under any agreement, instrument or document evidencing or securing
the Guaranteed Obligations or under any other agreement, instrument or document,
(ix) any event of FORCE MAJEURE, (x) any release or substitution of any
collateral for, or any obligor in respect of, the payment of the Guaranteed
Obligations or obligations under any other agreement, instrument or document, in
whole or in part, with or without notice to or assent from the Company, any
other Subsidiary of the Company or any other guarantor of all or any portion of
the Guaranteed Obligations, (xi) whether a lien on any collateral shall have
been perfected or shall continue to be perfected, or whether any collateral
shall be impaired in any manner, or whether any steps shall have been taken to
enforce rights against the Company, any other Subsidiary of the Company or any
other guarantor of all or any portion of the Guaranteed Obligations or to sell,
exchange, release, surrender, realize upon or otherwise deal with, in any manner
and in any order, any collateral and (xii) any other circumstances which might
constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) The Guarantor hereby (i) waives diligence, presentment, demand (of
payment or otherwise), protest, notice, filing of claims with a court in the
event of the merger or bankruptcy of the Company, any other Subsidiary of the
Company or any other guarantor of
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all or any portion of the Guaranteed Obligations, any right to require a
proceeding first against the Company, any other Subsidiary of the Company or any
other guarantor of all or any portion of the Guaranteed Obligations or to
marshall or realize on any collateral, with respect to the Guaranteed
Obligations, (ii) agrees that its obligations hereunder constitute guarantees of
payment and not of collection and are not in any way conditional or contingent
upon any attempt to collect from or enforce any rights against the Company, any
other Subsidiary of the Company or any other guarantor of all or any portion of
the Guaranteed Obligations or upon any other condition or contingency, (iii)
acknowledges that any agreement, instrument or document evidencing and/or
securing the Guaranteed Obligations may be transferred (upon and subject to the
terms and conditions thereof) and that the benefit of the Guarantor's
obligations hereunder shall extend to each holder of any agreement, instrument
or document evidencing and/or securing the Guaranteed Obligations automatically
and without notice to the Guarantor, (iv) covenants that this Guaranty will not
be discharged except by final, complete, indefeasible and irrevocable payment
and performance of the obligations contained in the agreements, instruments and
documents evidencing or securing the Guaranteed Obligations and this Guaranty
and (v) waives acceptance of this Guaranty by the Beneficiaries or notice or
proof of reliance.
(d) The Guarantor further agrees that if at any time all or any part of
any payment theretofore applied by any Beneficiary to any of the Guaranteed
Obligations is, or must be, rescinded or returned by such Beneficiary for any
reason whatsoever, including, without limitation, the insolvency, bankruptcy or
reorganization of the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed obligations, such Guaranteed
Obligations or applicable portion thereof, for purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, shall be deemed to
have continued in existence notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Guaranteed Obligations or applicable portion thereof as though such application
had not been made, irrespective of whether any note or other evidence of
indebtedness has been surrendered or cancelled.
(e) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS GUARANTY,
(i) THE OBLIGATIONS AND LIABILITIES OF THE GUARANTOR PURSUANT TO THIS GUARANTY
SHALL AT ALL TIMES BE SUBJECT TO THE GUARANTOR'S LIMIT OF LIABILITY, AND (ii)
RECOURSE SHALL BE HAD UNDER THIS GUARANTY ONLY TO THE "PLEDGED SECURITIES" AND
THE OTHER "COLLATERAL" (AS SUCH TERMS ARE DEFINED IN THE HEITMAN PLEDGE
AGREEMENT), AND NO RECOURSE SHALL BE HAD TO ANY OTHER ASSETS OF THE GUARANTOR
OTHER THAN SUCH PLEDGED SECURITIES AND OTHER COLLATERAL.
SECTION 3. SUBROGATION.
So long as any of the Guaranteed Obligations shall be outstanding or
subject to any rescission or revocation of payment, all claims of any kind or
character of the Guarantor or any of its successors and assigns against the
Company or any Subsidiary of the Company or with respect to any collateral for
the Guaranteed Obligations, to the extent such claims
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<PAGE>
(whether by right of subrogation, contribution or otherwise) arise by reason of
the Guarantor's payment of any sum or sums to any Beneficiary under this
Guaranty (all such claims of any kind or character of the Guarantor or any of
its successors and assigns being hereinafter referred to as "SUBORDINATE
CLAIMS"), shall be subordinated in right of payment to the prior indefeasible
payment in full of such Guaranteed Obligations as follows:
(a) The Beneficiaries shall first be entitled to receive final and
indefeasible payment in full of principal of Guaranteed Obligations,
premium, if any, and accrued and unpaid interest thereon (including,
without limitation, interest thereon accruing after the commencement of any
bankruptcy, insolvency or receivership proceedings at the applicable rate
provided therefor in the Note Purchase Agreements and the Notes), and all
other amounts due under any agreement, instrument or document evidencing or
securing such Guaranteed Obligations before any direct or indirect payment
or distribution (whether in cash, property or securities, or by set-off,
counterclaim or otherwise) shall be made on, or received by the Guarantor
in respect of, Subordinate Claims.
(b) Any payment or distribution of assets of the Company or any of
the Company's Subsidiaries of any kind or character, whether in cash,
property or securities, which would be made on account of Subordinate
Claims but for the provisions of this Section, shall be paid by the Company
or such other Subsidiary, as the case may be (or the trustee or agent or
other Person making such payment or distribution), directly to the
Beneficiaries, for the ratable application to the Guaranteed Obligations,
to the extent necessary to make indefeasible payment in full of all sums
due upon the Guaranteed Obligations and remaining unpaid after giving
effect to any concurrent payment or distribution to or for the benefit of
such Beneficiaries in respect of the Guaranteed Obligations. In
furtherance of the foregoing, no holder of Subordinate Claims shall
exercise any right of set-off or counterclaim with respect to any
Subordinate Claim held by it, and any reduction of Subordinate Claims, by
reason of exercise by the holder thereof of a right of set-off or
counterclaim or otherwise in violation of the provisions of this
subsection, in respect of any obligations of such holder to the Company or
such Subsidiary, as applicable, shall be deemed to be a payment by the
Company or such Subsidiary, as the case may be, in respect of such
Subordinate Claims to which this subsection shall apply.
(c) In the event that any payment or distribution of assets of the
Company or any of the Company's Subsidiaries of any kind or character,
whether in cash, property or securities, shall be received by the Guarantor
or on its behalf at any time when the making of such payment or
distribution shall have been in violation of the foregoing subsections (a)
or (b), then such payment, distribution or amount shall be held in trust
for the benefit of, and shall be paid over or delivered to, the
Beneficiaries, for ratable application to the Guaranteed Obligations then
remaining unpaid to the extent necessary to pay in full all such Guaranteed
Obligations in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
Beneficiaries in respect of the Guaranteed Obligations.
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(d) Nothing contained in this Section is intended to or shall impair,
as between the Company or any of its Subsidiaries, as the case may be, and
their respective creditors (other than the Beneficiaries), the obligations
of the Company and each such Subsidiary, as the case may be, to pay to the
Guarantor and its successors or assigns all sums due from it to any such
holder of Subordinate Claims as and when the same shall become due and
payable in accordance with their terms, subject to the terms hereof;
PROVIDED that no such holder of Subordinate claims shall initiate any legal
proceedings with respect to any of the Subordinate Claims prior to the
indefeasible payment in full of the Guaranteed Obligations.
SECTION 4. REPRESENTATIONS WARRANTIES AND COVENANTS.
The Guarantor hereby acknowledges and agrees that it has received a copy of
the Note Purchase Agreements, the Notes and all Security Documents and hereby
(i) agrees that the representations and warranties contained in Section 5 of the
Note Purchase Agreements are incorporated herein by reference and are hereby
made by the Guarantor to the extent such representations and warranties are
applicable to such Guarantor, (ii) agrees to comply with all covenants and
agreements contained therein to the extent applicable to it and as the same may
be amended or modified from time to time in accordance with the terms of the
Note Purchase Agreements and (iii) makes the following representations,
warranties and agreements:
(a) FINANCIAL ACCOMMODATIONS. Except as expressly set forth in the
Note Purchase Agreements, no Beneficiary is obligated to give or to
continue any financial accommodations to the Company, the Guarantor or any
of the Company's other Subsidiaries or to change or extend the time of
payment of, or renew or alter, any liability of the Company, the Guarantor
or any of the Company's other Subsidiaries, any security therefor or any
liability incurred directly or indirectly in respect thereof.
(b) ACTS OF BENEFICIARIES. None of the Beneficiaries or any other
Person has made any representations or promises to the Guarantor as to the
making or continuance of any extension of credit to the Company (other than
the purchase of the Notes pursuant to, and in accordance with, the terms of
the Note Purchase Agreements and the Notes) or as to the financial
condition of the Company or any of the Company's subsidiaries or any other
Person or as to the type or value of any security for the Guaranteed
Obligations, or as to the perfection thereof, and none of the Beneficiaries
is obligated to notify the Guarantor of any change in the financial
condition of the Company or any of the Company's Subsidiaries or any other
Person or in the type, value, priority or perfection of any collateral
security for the Guaranteed Obligations.
(c) NATURE OF BUSINESS. The Guarantor agrees that it will not engage
in any business or activity other than the business and activity currently
conducted by the Guarantor as of the date hereof.
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SECTION 5. BREACH OF COVENANTS.
(a) In the event that the Guarantor shall fail to comply with any of its
covenants or agreements contained in this Guaranty or in any of the other
Security Documents to which it is a party, then in any such event and at any
time thereafter (so long as such failure shall not have been cured or waived in
accordance with Section 6(c)), the Required Holders may, declare the obligations
of the Company under the Note Purchase Agreements and the Notes (whether or not
then due) immediately due and payable pursuant to this Guaranty as to the
Guarantor, and any Beneficiary shall be entitled to enforce the obligations of
the Guarantor hereunder.
(b) Subject to any applicable agreements in effect from time to time
relating to the sharing and priority of payment of proceeds of collateral, the
net proceeds of any collection, recovery, receipt, appropriation or realization,
after deducting all costs and expenses of every kind incurred in connection with
the foregoing, including reasonable attorneys' fees and legal expenses, shall be
applied to the ratable payment in whole or in part of the Guaranteed
Obligations.
SECTION 6. MISCELLANEOUS.
(a) THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID STATE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(b) Any provision of this Guaranty 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 or affecting the validity or enforceability of such provision
in any other jurisdiction. Notwithstanding the foregoing, in lieu of such
prohibited or unenforceable provision, there shall automatically be deemed
incorporated herein (without further act or deed by any party hereto) a
provision as similar to such prohibited or unenforceable provision as possible
and as shall be enforceable and not prohibited pursuant to applicable law. If
this Guaranty would be held or determined by a court of competent jurisdiction
in a judicial proceeding to be void, voidable, invalid or unenforceable on
account of the amount of the aggregate liability of the Guarantor under this
Guaranty or by reason of any inconsistent contractual provision binding on the
Guarantor and in effect on or prior to the date hereof, then, notwithstanding
any other provision of this Guaranty to the contrary, the aggregate amount of
the liability of the Guarantor under this Guaranty shall, without any further
action by the Guarantor, the Beneficiaries or any other Person, be automatically
limited and reduced to the maximum amount which is valid and enforceable.
(c) No failure or delay on the part of any Beneficiary in exercising any
right, power or remedy under this Guaranty shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies
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provided for in this Guaranty are cumulative and are not exclusive of any
remedies that may be available to any Beneficiary at law or in equity or
otherwise. No amendment, modification, supplement, termination or waiver of or
to any provision of this Guaranty, nor consent to any departure by the Guarantor
therefrom, shall be effective unless the same shall be consented to in writing
by all the Required Holders, pursuant to Section 17 of the Note Purchase
Agreements. Any amendment, modification or supplement of or to any provision of
this Guaranty, any waiver of any provision of this Guaranty, and any consent to
any departure by the Guarantor from the terms of any provision of this Guaranty,
shall be effective only in the specific instance and for the specific purpose
for which made or given. Except where notice is specifically required by this
Guaranty, no notice to or demand on the Guarantor in any case shall entitle the
Guarantor to any other or further notice or demand in similar or other
circumstances.
(d) The Guarantor agrees that copies of the Note Purchase Agreements, the
Notes and the other Security Documents received by it constitute adequate notice
of all matters contained therein, and consents to the execution and delivery of
such agreements and the performance of all transactions provided for or
contemplated therein; PROVIDED that none of the Beneficiaries shall be obligated
to furnish to the Guarantor any copies of any amendments, modifications or
supplements or waivers with respect to the Note Purchase Agreements, the Notes
or any of the other Security Documents.
(e) All notices, requests and other communications to the Guarantor or any
Beneficiary hereunder shall be in writing (including bank wire, telex, telecopy
or similar teletransmission or writing) and shall be given (i) if to a
Beneficiary, at its address or telex or telecopier number specified in Section
18 of the Note Purchase Agreements or (ii) if to the Guarantor at its address or
telex or telecopier number specified on the signature page hereof or such other
address or telex or telecopier number as the Guarantor may hereafter specify by
written notice to the Beneficiaries. Each such notice, request or other
communication shall be effective when actually received.
(f) This Guaranty shall be binding upon the Guarantor and its successors
and assigns and shall inure to the benefit of, and shall be enforceable by, each
of the Beneficiaries and their respective successors and assigns, PROVIDED that
the Guarantor may not assign or transfer any of its obligations under this
Guaranty without the prior written consent of the Required Holders.
(g) The Guarantor agrees to do such further acts and things and to execute
and deliver such additional agreements, powers and instruments, as the Agent may
require or deem advisable to carry into effect the purposes of this Guaranty or
to better assure and confirm unto the Beneficiaries their rights, powers and
remedies under this Guaranty, under the Note Purchase Agreements or under any of
the other Security Documents.
(h) The Guarantor hereby irrevocably and unconditionally consents and
submits to the nonexclusive jurisdiction of any United States Federal or New
York State court sitting in New York County in any action or proceeding arising
out of or relating to this Guaranty, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of
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such action or proceeding brought against any of the Beneficiaries in respect of
this Guaranty shall be brought in such United States Federal or New York State
court. The Guarantor irrevocably consents to the service of any and all process
in any such action or proceeding brought in any court in or of the State of New
York by the delivery of copies of such process to the Guarantor at its address
specified in Section 6(e) or by certified or registered mail directed to such
address. The Guarantor hereby irrevocably and unconditionally waives any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of FORUM NON CONVENIENS, or that it or its assets is
exempt or immune from attachment or execution, which it may now or hereafter
have to the bringing or maintaining of any such action or proceeding in such
respective jurisdictions. Nothing herein shall affect the right of any of the
Beneficiaries to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Guarantor in any
other jurisdiction.
(i) The Guarantor agrees to pay promptly, to the extent not previously
finally and indefeasibly paid in full by the Company, (i) all reasonable costs
and expenses of the Beneficiaries in connection with the negotiation,
preparation, execution, issuance, delivery, filing and recording of this
Guaranty and any other documents which may be delivered in connection with this
Guaranty, including, without limitation, the reasonable fees and expenses of
Chapman and Cutler, special counsel for the Purchasers, with respect thereto and
with respect to advising the Beneficiaries from time to time as to their rights
and responsibilities under or in respect of this Guaranty and any amendment or
modification of, or waiver under, this Guaranty and (ii) from and after the
occurrence of any Event of Default or Default, all costs and expenses (including
reasonable counsel fees and expenses) in connection with (A) any and all amounts
which any Beneficiary has paid relative to the curing of any default resulting
from the acts or omissions of the Guarantor under this Guaranty, (B) any
amendment or modification of, or waiver under, this Guaranty and (C) the
enforcement of this Guaranty and the preservation of the Beneficiaries' rights
hereunder. The Guarantor shall pay, to the extent not previously finally and
indefeasibly paid in full by the Company, any and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Guaranty, financing and continuation
statements and any other documents which may be delivered in connection with
this Guaranty, and agrees to save the Beneficiaries harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees. The obligations of the Guarantor under
this subsection shall survive the payment of the Guarantor's other obligations
hereunder and the termination of this Guaranty.
(j) This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Guaranty.
(k) Section and other headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.
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(l) The obligations of the Guarantor under this Guaranty are secured by,
among other things, the collateral security provided for in the Heitman Pledge
Agreement.
(m) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING UNDER OR RELATING TO THIS
GUARANTY OR ANY LOAN DOCUMENT. EACH BENEFICIARY, BY THE ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY, SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO TRIAL BY
JURY IN RESPECT OF ANY ACT OR PROCEEDING IN WHICH THE GUARANTOR HAS WAIVED ITS
RIGHT TO TRIAL bY JURY.
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IN WITNESS WHEREOF, the Guarantor has caused this Heitman Guaranty to be
duly executed and delivered by its proper and duly authorized officer as of the
day and year first above written.
Address: HEITMAN FINANCIAL LTD.
180 North LaSalle Street
Chicago, Illinois 60601
Attn: Rodger E. Smith
Executive Vice President
Telecopier No.: (312) 629-5840 By
-------------------------------------
Name:
Title:
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Draft Dated August 2, 1995 EXHIBIT B-4
TO
FIRST AMENDMENT AND CONSENT
UAM U.K. HOLDINGS GUARANTY
UAM U.K. HOLDINGS GUARANTY dated as of August 1, 1995 (as the same may be
amended, supplemented or otherwise modified from time to time, this "GUARANTY"),
made by United Asset Management U.K. Holdings, Inc., a Delaware corporation (the
"GUARANTOR"), in favor of the Beneficiaries (as hereinafter defined). Certain
capitalized terms used herein are defined in Section 1 of this Guaranty.
RECITALS:
A. United Asset Management Corporation, a Delaware corporation (the
"COMPANY"), proposes to enter into separate and several Note Purchase
Agreements, each dated as of August 1, 1995 (as the same may be amended,
supplemented or otherwise modified from time to time, the "NOTE PURCHASE
AGREEMENTS"), with the Purchasers listed on Schedule A thereto (collectively,
the "PURCHASERS"), pursuant to which the Purchasers have agreed to purchase and
the Company has agreed to sell $150,000,000 aggregate principal amount of the
Company's 7.12% Senior Secured Notes due August ___, 2005 (the "NOTES"), subject
to the terms and conditions set forth in the Note Purchase Agreements.
B. It is a condition precedent to the purchase of the Notes by the
Purchasers that the Guarantor guarantees the Guaranteed Obligations (as
hereinafter defined).
C. The Guarantor, as part of an affiliated group of corporations with the
Company, will receive substantial direct and indirect benefits by reason of such
issue and sale by the Company of the Notes and the purchase thereof by the
Purchasers.
NOW, THEREFORE, in order to induce the Purchasers to enter into the Note
Purchase Agreements and to purchase the Notes and in consideration thereof, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantor hereby agrees as follows:
SECTION 1. DEFINITIONS.
As used in this Guaranty, and unless the context requires a different
meaning, capitalized terms not otherwise defined herein have the respective
meanings provided for such terms in the Note Purchase Agreements and the
following terms have the meanings indicated below, all such definitions to be
equally applicable to the singular and plural forms of the terms defined:
"ADJUSTED NET WORTH" of the Guarantor shall mean, as of any date of
determination thereof, the excess of (i) the amount of the "present fair
saleable value" of the assets of the Guarantor as of the date of such
determination, over (ii) the amount of all "liabilities of the Guarantor,
contingent or otherwise" as of the date of such determination, as such quoted
terms (or similar terms) are determined in accordance with applicable federal
and state laws governing determinations of the insolvency of debtors. In
determining the Adjusted Net
<PAGE>
Worth of the Guarantor for purposes of calculating the Limit of Liability for
the Guarantor in respect of any of the Guaranteed Obligations, the liabilities
of the Guarantor to be used in such determination pursuant to clause (ii) of the
preceding sentence shall exclude the liabilities of the Guarantor hereunder in
respect of the Guaranteed Obligations.
"BENEFICIARIES" means the Purchasers, any subsequent holder of the Notes,
and their respective successors and assigns.
"GUARANTEED OBLIGATIONS" has the meaning assigned to that term in Section
2(a).
"INVESTMENT ADVISORS ACT" shall mean the Investment Advisors Act of 1940,
as amended.
"LIMIT OF LIABILITY" means, as of any date of determination thereof, the
sum of (i) with respect to any of the Guaranteed Obligations (or portion
thereof), the proceeds of which (or any portion thereof) are used to make a
Valuable Transfer to the Guarantor, the amount of such Guaranteed Obligations
(or such portion thereof) PLUS (ii) with respect to any of the Guaranteed
Obligations (or portion thereof), the proceeds of which are not used to make a
Valuable Transfer to the Guarantor, the lesser of (A) the outstanding amount of
such Guaranteed Obligations (or such portion thereof) as of such date and (B)
ninety-five percent (95%) of the Adjusted Net Worth of the Guarantor at the time
of the incurrence of such Guaranteed Obligations. Notwithstanding the
foregoing, that portion of the Limit of Liability of the Guarantor calculated
pursuant to clause (ii)(B) shall be increased (but not decreased) on the last
day of each fiscal year of the Guarantor, to an amount equal to ninety-five
percent (95%) of the Adjusted Net Worth of the Guarantor, as determined on such
date, if such amount is greater than that portion of the Limit of Liability
pursuant to clause (ii)(B) in effect immediately prior to such date.
"SUBORDINATE CLAIMS" has the meaning assigned to that term in Section 3.
"VALUABLE TRANSFER" means (i) all loans, advances or capital contributions
made to the Guarantor with proceeds of Guaranteed Obligations, or any portion
thereof, (ii) all debt securities or other obligations of the Guarantor acquired
from the Guarantor or retired by the Guarantor with proceeds of Guaranteed
Obligations, or any portion thereof, (iii) the fair market value of all property
acquired with proceeds of Guaranteed Obligations, or any portion thereof, and
transferred, absolutely and not as collateral, to the Guarantor and (iv) the
value of any quantifiable economic benefits not included in clauses (i) through
(iii) above, but included in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, accruing to the Guarantor
as a result of the incurrence of Guaranteed Obligations.
SECTION 2. GUARANTEE OF OBLIGATIONS.
(a) The Guarantor hereby unconditionally and irrevocably guarantees to
each of the Beneficiaries, as the primary obligation and debt of the Guarantor
and not as a surety, the due and punctual payment of, without duplication, (i)
all principal, interest, fees, premium,
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if any, and other amounts required to be paid, from time to time, by the Company
under or in respect of the Note Purchase Agreements and the Notes, when and as
the same shall be or become due and payable, whether on the due date therefor,
upon stated maturity, by acceleration, upon demand or otherwise, according to
the terms of the Note Purchase Agreements and the Notes, and (ii) all other
present and future obligations and liabilities (whether absolute, fixed or
contingent, matured or unmatured, joint, several or independent and howsoever
acquired) of the Company to the Beneficiaries, or any of them, arising out of or
in any way relating to the Note Purchase Agreements and the Notes and any and
all Security Documents and the transactions contemplated thereby (all of the
foregoing, collectively, the "GUARANTEED OBLIGATIONS"). In case of the failure
of the Company to duly, punctually and indefeasibly make any such payment in
full as and when due and payable, the Guarantor hereby agrees to duly,
punctually and indefeasibly make such payment as and when the same shall become
due and payable, whether on the due date therefor, upon stated maturity, by
acceleration, upon demand or otherwise, in accordance with the terms of this
Guaranty, the Note Purchase Agreements, the Notes and the other Security
Documents.
(b) The Guarantor hereby agrees that its obligations hereunder shall be
continuing, absolute and unconditional under any and all circumstances and not
subject to any reduction, limitation, impairment, termination, defense (other
than prior, final and indefeasible payment in full), set-off, abatement,
counterclaim or recoupment whatsoever (all of which are hereby expressly waived
by the Guarantor), whether by reason of any claim of any character whatsoever,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, or by reason of any liability at any time to the
Company or any other Subsidiary of the Company or otherwise, whether based upon
any agreement, instrument or document evidencing or securing the Guaranteed
Obligations or any other agreement, instrument or document (including, without
limitation, this Guaranty) or otherwise, and howsoever arising, whether out of
action or inaction or otherwise and whether resulting from default, willful
misconduct, negligence or otherwise, and without limiting the foregoing,
irrespective of (i) any insolvency, bankruptcy, reorganization or dissolution,
or any proceeding in respect of any thereof, of the Company, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed Obligations, (ii) the genuineness, validity, regularity or
enforceability of any agreement, instrument or document evidencing or securing
the Guaranteed Obligations or any other agreement, instrument or document or the
extension or renewal thereof, in whole or in part, with or without notice to or
assent from the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations, (iii) the
validity, enforceability or priority of any lien or security interest securing
the payment of the Guaranteed Obligations or any portion thereof, (iv) any
rescission, compromise, alteration, amendment, modification, extension, renewal,
release, change, waiver, consent, grant of any indulgence or other action in
respect of any of the terms, provisions, covenants or conditions contained in
any agreement, instrument or document evidencing or securing the Guaranteed
Obligations or in any other agreement, instrument or document, (v) the absence
of notice or the absence of or any delay in any action to enforce any obligation
or to exercise any right or remedy against the Company, any other Subsidiary of
the Company or any other guarantor of all or any portion of the Guaranteed
Obligations, whether under any agreement, instrument or document evidencing or
securing the Guaranteed Obligations or
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under any other agreement, instrument or document, or any indulgence or
extension or waiver granted to or compromise with the Company, any other
Subsidiary of the Company or any other guarantor of all or any portion of the
Guaranteed Obligations, or any action or proceeding taken or not taken with
respect to or by or on behalf of the Company, any other Subsidiary of the
Company or any other guarantor of all or any portion of the Guaranteed
Obligations, or the holder of any agreement, instrument or document evidencing
or securing the Guaranteed Obligations, (vi) any default, failure or delay in
the performance of any obligation, covenant, duty, representation, warranty or
agreement contained in any agreement, instrument or document evidencing or
securing the Guaranteed Obligations or in any other agreement, instrument or
document, or arising pursuant to law, (vii) any act or thing or omission to do
or delay in doing any act or thing which might in any manner result in any lack
of proper authorization or any invalid execution of any agreement, instrument or
document evidencing or securing the Guaranteed Obligations or any other
agreement, instrument or document, (viii) any assumption by any Person of any
obligation under any agreement, instrument or document evidencing or securing
the Guaranteed Obligations or under any other agreement, instrument or document,
(ix) any event of FORCE MAJEURE, (x) any release or substitution of any
collateral for, or any obligor in respect of, the payment of the Guaranteed
Obligations or obligations under any other agreement, instrument or document, in
whole or in part, with or without notice to or assent from the Company, any
other Subsidiary of the Company or any other guarantor of all or any portion of
the Guaranteed Obligations, (xi) whether a lien on any collateral shall have
been perfected or shall continue to be perfected, or whether any collateral
shall be impaired in any manner, or whether any steps shall have been taken to
enforce rights against the Company, any other Subsidiary of the Company or any
other guarantor of all or any portion of the Guaranteed Obligations or to sell,
exchange, release, surrender, realize upon or otherwise deal with, in any manner
and in any order, any collateral and (xii) any other circumstances which might
constitute a legal or equitable discharge or defense of a surety or guarantor.
(c) The Guarantor hereby (i) waives diligence, presentment, demand (of
payment or otherwise), protest, notice, filing of claims with a court in the
event of the merger or bankruptcy of the Company, any other Subsidiary of the
Company or any other guarantor of all or any portion of the Guaranteed
Obligations, any right to require a proceeding first against the Company, any
other Subsidiary of the Company or any other guarantor of all or any portion of
the Guaranteed Obligations or to marshall or realize on any collateral, with
respect to the Guaranteed Obligations, (ii) agrees that its obligations
hereunder constitute guarantees of payment and not of collection and are not in
any way conditional or contingent upon any attempt to collect from or enforce
any rights against the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations or upon any other
condition or contingency, (iii) acknowledges that any agreement, instrument or
document evidencing and/or securing the Guaranteed Obligations may be
transferred (upon and subject to the terms and conditions thereof) and that the
benefit of the Guarantor's obligations hereunder shall extend to each holder of
any agreement, instrument or document evidencing and/or securing the Guaranteed
Obligations automatically and without notice to the Guarantor, (iv) covenants
that this Guaranty will not be discharged except by final, complete,
indefeasible and irrevocable payment and
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<PAGE>
performance of the obligations contained in the agreements, instruments and
documents evidencing or securing the Guaranteed Obligations and this Guaranty
and (v) waives acceptance of this Guaranty by the Beneficiaries or notice or
proof of reliance.
(d) The Guarantor further agrees that if at any time all or any part of
any payment theretofore applied by any Beneficiary to any of the Guaranteed
Obligations is, or must be, rescinded or returned by such Beneficiary for any
reason whatsoever, including, without limitation, the insolvency, bankruptcy or
reorganization of the Company, any other Subsidiary of the Company or any other
guarantor of all or any portion of the Guaranteed Obligations, such Guaranteed
Obligations or applicable portion thereof, for purposes of this Guaranty, to the
extent that such payment is or must be rescinded or returned, shall be deemed to
have continued in existence notwithstanding such application, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Guaranteed Obligations or applicable portion thereof as though such application
had not been made, irrespective of whether any note or other evidence of
indebtedness has been surrendered or cancelled.
(e) Notwithstanding anything to the contrary contained in this Guaranty,
the obligations and liabilities of the Guarantor pursuant to this Guaranty shall
at all times be subject to the Guarantor's Limit of Liability.
SECTION 3. SUBROGATION.
So long as any of the Guaranteed Obligations shall be outstanding or
subject to any rescission or revocation of payment, all claims of any kind or
character of the Guarantor or any of its successors and assigns against the
Company or any Subsidiary of the Company or with respect to any collateral for
the Guaranteed Obligations, to the extent such claims (whether by right of
subrogation, contribution or otherwise) arise by reason of the Guarantor's
payment of any sum or sums to any Beneficiary under this Guaranty (all such
claims of any kind or character of the Guarantor or any of its successors and
assigns being hereinafter referred to as "SUBORDINATE CLAIMS"), shall be
subordinated in right of payment to the prior indefeasible payment in full of
such Guaranteed Obligations as follows:
(a) The Beneficiaries shall first be entitled to receive final and
indefeasible payment in full of principal of Guaranteed Obligations,
premium, if any, and accrued and unpaid interest thereon (including,
without limitation, interest thereon accruing after the commencement of any
bankruptcy, insolvency or receivership proceedings at the applicable rate
provided therefor in the Note Purchase Agreements and the Notes), and all
other amounts due under any agreement, instrument or document evidencing or
securing such Guaranteed Obligations before any direct or indirect payment
or distribution (whether in cash, property or securities, or by set-off,
counterclaim or otherwise) shall be made on, or received by the Guarantor
in respect of, Subordinate Claims.
(b) Any payment or distribution of assets of the Company or any of
the Company's Subsidiaries of any kind or character, whether in cash,
property or
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securities, which would be made on account of Subordinate Claims but for the
provisions of this Section, shall be paid by the Company or such other
Subsidiary, as the case may be (or the trustee or agent or other Person making
such payment or distribution), directly to the Beneficiaries, for the ratable
application to the Guaranteed Obligations, to the extent necessary to make
indefeasible payment in full of all sums due upon the Guaranteed Obligations and
remaining unpaid after giving effect to any concurrent payment or distribution
to or for the benefit of such Beneficiaries in respect of the Guaranteed
Obligations. In furtherance of the foregoing, no holder of Subordinate Claims
shall exercise any right of set-off or counterclaim with respect to any
Subordinate Claim held by it, and any reduction of Subordinate Claims, by reason
of exercise by the holder thereof of a right of set-off or counterclaim or
otherwise in violation of the provisions of this subsection, in respect of any
obligations of such holder to the Company or such Subsidiary, as applicable,
shall be deemed to be a payment by the Company or such Subsidiary, as the case
may be, in respect of such Subordinate Claims to which this subsection shall
apply.
(c) In the event that any payment or distribution of assets of the
Company or any of the Company's Subsidiaries of any kind or character,
whether in cash, property or securities, shall be received by the Guarantor
or on its behalf at any time when the making of such payment or
distribution shall have been in violation of the foregoing subsections (a)
or (b), then such payment, distribution or amount shall be held in trust
for the benefit of, and shall be paid over or delivered to, the
Beneficiaries, for ratable application to the Guaranteed Obligations then
remaining unpaid to the extent necessary to pay in full all such Guaranteed
Obligations in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the
Beneficiaries in respect of the Guaranteed Obligations.
(d) Nothing contained in this Section is intended to or shall impair,
as between the Company or any of its Subsidiaries, as the case may be, and
their respective creditors (other than the Beneficiaries), the obligations
of the Company and each such Subsidiary, as the case may be, to pay to the
Guarantor and its successors or assigns all sums due from it to any such
holder of Subordinate Claims as and when the same shall become due and
payable in accordance with their terms, subject to the terms hereof;
PROVIDED that no such holder of Subordinate Claims shall initiate any legal
proceedings with respect to any of the Subordinate Claims prior to the
indefeasible payment in full of the Guaranteed Obligations.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Guarantor hereby acknowledges and agrees that it has received a copy of
the Note Purchase Agreements, the Notes and all Security Documents and hereby
(i) agrees that the representations and warranties contained in Section 5 of the
Note Purchase Agreements are incorporated herein by reference and are hereby
made by the Guarantor to the extent such representations and warranties are
applicable to such Guarantor, (ii) agrees to comply with all covenants and
agreements contained therein to the extent applicable to it and as the same
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may be amended or modified from time to time in accordance with the terms of the
Note Purchase Agreements and (iii) makes the following representations,
warranties and agreements:
(a) FINANCIAL ACCOMMODATIONS. Except as expressly set forth in the
Note Purchase Agreements, no Beneficiary is obligated to give or to
continue any financial accommodations to the Company, the Guarantor or any
of the Company's other Subsidiaries or to change or extend the time of
payment of, or renew or alter, any liability of the Company, the Guarantor
or any of the Company's other Subsidiaries, any security therefor or any
liability incurred directly or indirectly in respect thereof.
(b) ACTS OF BENEFICIARIES. None of the Beneficiaries or any other
Person has made any representations or promises to the Guarantor as to the
making or continuance of any extension of credit to the Company (other than
the purchase of the Notes pursuant to, and in accordance with, the terms of
the Note Purchase Agreements) or as to the financial condition of the
Company or any of the Company's Subsidiaries or any other Person or as to
the type or value of any security for the Guaranteed Obligations, or as to
the perfection thereof, and none of the Beneficiaries is obligated to
notify the Guarantor of any change in the financial condition of the
Company or any of the Company's Subsidiaries or any other Person or in the
type, value, priority or perfection of any collateral security for the
Guaranteed Obligations.
(c) NATURE OF BUSINESS. The Guarantor agrees that it will not engage
in any business or activity other than holding the capital stock of Murray
Johnstone Holdings Limited (Scotland) and its Subsidiaries. The Guarantor
further agrees that any dividends or other distributions received by it and
arising out of its ownership of the capital stock of Murray Johnstone
Holdings Limited (Scotland) and its Subsidiaries shall promptly be
distributed (as a dividend or otherwise) in the form received (endorsed as
appropriate) to the Company.
SECTION 5. BREACH OF COVENANTS.
(a) In the event that the Guarantor shall fail to comply with any of its
covenants or agreements contained in this Guaranty or in any of the other
Security Documents to which it is a party, then in any such event and at any
time thereafter (so long as such failure shall not have been cured or waived in
accordance with Section 6(c)), the Required Holders may, declare the obligations
of the Company under the Note Purchase Agreements and the Notes (whether or not
then due) immediately due and payable pursuant to this Guaranty as to the
Guarantor, and any Beneficiary shall be entitled to enforce the obligations of
the Guarantor hereunder.
(b) Subject to any applicable agreements in effect from time to time
relating to the sharing and priority of payment of proceeds of collateral, the
net proceeds of any collection, recovery, receipt, appropriation or realization,
after deducting all costs and expenses of every kind incurred in connection with
the foregoing, including reasonable attorneys' fees
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and legal expenses, shall be applied to the ratable payment in whole or in part
of the Guaranteed Obligations.
SECTION 6. MISCELLANEOUS.
(a) THIS GUARANTY SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE INTERNAL
LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID STATE, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.
(b) Any provision of this Guaranty 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 or affecting the validity or enforceability of such provision
in any other jurisdiction. Notwithstanding the foregoing, in lieu of such
prohibited or unenforceable provision, there shall automatically be deemed
incorporated herein (without further act or deed by any party hereto) a
provision as similar to such prohibited or unenforceable provision as possible
and as shall be enforceable and not prohibited pursuant to applicable law. If
this Guaranty would be held or determined by a court of competent jurisdiction
in a judicial proceeding to be void, voidable, invalid or unenforceable on
account of the amount of the aggregate liability of the Guarantor under this
Guaranty or by reason of any inconsistent contractual provision binding on the
Guarantor and in effect on or prior to the date hereof, then, notwithstanding
any other provision of this Guaranty to the contrary, the aggregate amount of
the liability of the Guarantor under this Guaranty shall, without any further
action by the Guarantor, the Beneficiaries or any other Person, be automatically
limited and reduced to the maximum amount which is valid and enforceable.
(c) No failure or delay on the part of any Beneficiary in exercising any
right, power or remedy under this Guaranty shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. The remedies provided for in this Guaranty are
cumulative and are not exclusive of any remedies that may be available to any
Beneficiary at law or in equity or otherwise. No amendment, modification,
supplement, termination or waiver of or to any provision of this Guaranty, nor
consent to any departure by the Guarantor therefrom, shall be effective unless
the same shall be consented to in writing by the Required Holders, pursuant to
Section 17 of the Note Purchase Agreements. Any amendment, modification or
supplement of or to any provision of this Guaranty, any waiver of any provision
of this Guaranty, and any consent to any departure by the Guarantor from the
terms of any provision of this Guaranty, shall be effective only in the specific
instance and for the specific purpose for which made or given. Except where
notice is specifically required by this Guaranty, no notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further notice
or demand in similar or other circumstances.
(d) The Guarantor agrees that copies of the Note Purchase Agreements, the
Notes and the other Security Documents received by it constitute adequate notice
of all matters
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contained therein, and consents to the execution and delivery of such agreements
and the performance of all transactions provided for or contemplated therein;
PROVIDED that none of the Beneficiaries shall be obligated to furnish to the
Guarantor any copies of any amendments, modifications or supplements or waivers
with respect to the Note Purchase Agreements, the Notes or any of the other
Security Documents.
(e) All notices, requests and other communications to the Guarantor or any
Beneficiary hereunder shall be in writing (including bank wire, telex, telecopy
or similar teletransmission or writing) and shall be given (i) if to a
Beneficiary, at its address or telex or telecopier number specified in Section
18 of the Note Purchase Agreements or (ii) if to the Guarantor at its address or
telex or telecopier number specified on the signature page hereof or such other
address or telex or telecopier number as the Guarantor may hereafter specify by
written notice to the Beneficiaries and the Company. Each such notice, request
or other communication shall be effective when actually received.
(f) This Guaranty shall be binding upon the Guarantor and its successors
and assigns and shall inure to the benefit of, and shall be enforceable by, each
of the Beneficiaries and their respective successors and assigns, PROVIDED that
the Guarantor may not assign or transfer any of its obligations under this
Guaranty without the prior written consent of the Required Holders.
(g) The Guarantor agrees to do such further acts and things and to execute
and deliver such additional agreements, powers and instruments, as the
Beneficiaries may require or deem advisable to carry into effect the purposes of
this Guaranty or to better assure and confirm unto the Beneficiaries their
rights, powers and remedies under this Guaranty, under the Note Purchase
Agreements, the Notes or under any of the other Security Documents.
(h) The Guarantor hereby irrevocably and unconditionally consents and
submits to the nonexclusive jurisdiction of any United States Federal or New
York State court sitting in New York County in any action or proceeding arising
out of or relating to this Guaranty, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of such action or proceeding
brought against any of the Beneficiaries in respect of this Guaranty shall be
brought in such United States Federal or New York State court. The Guarantor
irrevocably consents to the service of any and all process in any such action or
proceeding brought in any court in or of the State of New York by the delivery
of copies of such process to the Guarantor at its address specified in Section
6(e) or by certified or registered mail directed to such address. The Guarantor
hereby irrevocably and unconditionally waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
FORUM NON CONVENIENS, or that it or its assets is exempt or immune from
attachment or execution, which it may now or hereafter have to the bringing or
maintaining of any such action or proceeding in such respective jurisdictions.
Nothing herein shall affect the right of any of the Beneficiaries to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the Guarantor in any other jurisdiction.
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(i) The Guarantor agrees to pay promptly, to the extent not previously
finally and indefeasibly paid in full by the Company, (i) all reasonable costs
and expenses of the Beneficiaries in connection with the negotiation,
preparation, execution, issuance, delivery, filing and recording of this
Guaranty and any other documents which may be delivered in connection with this
Guaranty, including, without limitation, the reasonable fees and expenses of
Chapman and Cutler, special counsel for the Purchasers, with respect thereto and
with respect to advising the Beneficiaries from time to time as to their rights
and responsibilities under or in respect of this Guaranty and any amendment or
modification of, or waiver under, this Guaranty and (ii) from and after the
occurrence of any Event of Default or Default, all costs and expenses (including
reasonable counsel fees and expenses) in connection with (A) any and all amounts
which any Beneficiary has paid relative to the curing of any default resulting
from the acts or omissions of the Guarantor under this Guaranty, (B) any
amendment or modification of, or waiver under, this Guaranty and (C) the
enforcement of this Guaranty and the preservation of the Beneficiaries' rights
hereunder. The Guarantor shall pay, to the extent not previously finally and
indefeasibly paid in full by the Company any and all stamp and other taxes and
fees payable or determined to be payable in connection with the execution,
delivery, filing and recording of this Guaranty, financing and continuation
statements and any other documents which may be delivered in connection with
this Guaranty, and agrees to save the Beneficiaries harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees. The obligations of the Guarantor under
this subsection shall survive the payment of the Guarantor's other obligations
hereunder and the termination of this Guaranty.
(j) This Guaranty may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Guaranty.
(k) Section and other headings used in this Guaranty are for convenience
only and shall not affect the construction of this Guaranty.
(l) The obligations of the Guarantor under this Guaranty are secured by,
among other things, the collateral security provided for in the UAM U.K.
Holdings Pledge Agreement.
(m) THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN CONNECTION WITH ANY ACTION OR PROCEEDING UNDER OR RELATING TO THIS
GUARANTY OR ANY LOAN DOCUMENT. EACH BENEFICIARY, BY THE ACCEPTANCE OF THE
BENEFITS OF THIS GUARANTY, SHALL BE DEEMED TO HAVE WAIVED ITS RIGHT TO TRIAL BY
JURY IN RESPECT OF ANY ACT OR PROCEEDING IN WHICH THE GUARANTOR HAS WAIVED ITS
RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the Guarantor has caused this UAM U.K. Holdings
Guaranty to be duly executed and delivered by its proper and duly authorized
officer as of the day and year first above written.
Address: UNITED ASSET MANAGEMENT U.K.
HOLDINGS, INC.
________________________
________________________
________________________
Attn: __________________ By______________________________________
Telex No.: ______________ Name:
Answerback: ______________ Title:
Telecopier No.: _________
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EXHIBIT C TO
FIRST AMENDMENT
AND CONSENT
COLLATERAL AGENCY
AND INTERCREDITOR AGREEMENT
This COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT (this "Agreement")
is made as of the 1st day of August, 1995, among (i) The First National Bank of
Boston, as collateral agent (in such capacity, the "Collateral Agent") for the
Secured Parties (as hereinafter defined), (ii) Morgan Guaranty Trust Company of
New York, as Agent (in such capacity, the "Agent") under the Original Credit
Agreement (as hereinafter defined), (iii) each of the Banks (as hereinafter
defined), and (iv) each of the Senior Noteholders (as hereinafter defined).
Capitalized terms used in this Agreement shall have the meanings given to such
terms in accordance with Section 1.
R E C I T A L S:
A. Pursuant to that certain Second Amended and Restated Credit
Agreement dated as of November 18, 1994 (as heretofore amended by a Letter
Agreement dated as of January 20, 1995 and by the First Amendment and Consent
referred to below and as the same may be further amended, supplemented, restated
or otherwise modified from time to time (including by increasing the amount of
Indebtedness thereunder), the "Original Credit Agreement"), among United Asset
Management Corporation, a Delaware corporation (the "Company"), the financial
institutions party thereto from time to time as "Banks" (the "Banks"), the Agent
and the Collateral Agent (acting in its capacity as collateral agent for the
Banks thereunder), the Banks have, upon the terms and subject to the conditions
contained therein, agreed to make Loans to the Borrower.
B. Pursuant to the Original Credit Agreement, the Collateral Agent
acts as collateral agent for the Banks thereunder and under the "Security
Documents" referred to therein.
C. In addition to Loans made under the Original Credit Agreement,
one or more Banks may from time to time make Money Market Loans to the Company.
<PAGE>
D. Pursuant to the Bank Guaranty Documents each of the Guaranty
Subsidiaries has agreed to guaranty all of the Company's obligations to the
Banks, the Agent and the Collateral Agent under or in respect of the Original
Credit Agreement and the other Loan Documents and in respect of Money Market
Loans.
E. Pursuant to the Security Documents, the Company and the Guaranty
Subsidiaries have granted to the Collateral Agent (acting in such capacity under
and pursuant to the Original Credit Agreement), for the ratable benefit of the
Banks, the Agent and the Collateral Agent, security interests in and to the
collateral security described therein, to secure their respective obligations to
the Banks, the Agent and the Collateral Agent under the Original Credit
Agreement, the Bank Guaranty Documents and the other Loan Documents and in
respect of Money Market Loans.
F. Pursuant to several Note Purchase Agreements dated as of August
1, 1995 in substantially the form heretofore approved by the Banks (each, a
"Note Purchase Agreement", and collectively, the "Note Purchase Agreements")
between the Company and the purchasers parties thereto (each, a "Senior
Noteholder" and collectively, the "Senior Noteholders"), the Company has agreed
to issue, and the Senior Noteholders have agreed to purchase, an aggregate
$150,000,000 in principal amount of the Company's 7.12% Senior Secured Notes due
August 25, 2005 (the "Senior Notes").
G. Pursuant to the Senior Note Guaranty Documents each of the
Guaranty Subsidiaries has agreed to guarantee all of the Company's obligations
to the Senior Noteholders under or in respect of the Note Purchase Agreements,
the Senior Notes and all documents executed in connection therewith.
H. Pursuant to (i) a First Amendment and Consent dated as of August
1, 1995 and (ii) a Supplementary Pledge Agreement dated as of August 1, 1995
between United Asset Management U.K. Holdings, Inc. and the Collateral Agent,
the Security Documents have been amended to include the obligations of the
Company under the Note Purchase Agreements and the Senior Notes and the
obligations of the Guaranty Subsidiaries under the Senior Note Guaranty
Documents as secured obligations thereunder.
I. It is a condition precedent to the obligations of the Senior
Noteholders to purchase the Senior Notes that the Collateral Agent, the Agent,
the Banks and the Senior Noteholders enter into this Agreement, in order to set
forth the relative rights and priorities with respect to the Collateral (as
hereinafter defined) and to provide for sharing of any amounts otherwise
recovered under the Bank Guaranty Documents and the Senior Note Guaranty
Documents.
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NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
ACT. The meaning given to such term in Section 2.3.
ACTIONABLE DEFAULT. Any Event of Default under and as defined in
the Credit Agreement or an Event of Default under and as defined in the Note
Purchase Agreements.
AGENT. The meaning given to such term in the preamble hereto.
AGREEMENT. This Collateral Agency and Intercreditor Agreement,
as amended, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
BANKS. The meaning given to such term in the Recitals hereto,
together with their respective successors and assigns, and shall include any
additional, replacement or successor Banks under the Credit Agreement.
BANK GUARANTY DOCUMENTS. Collectively, the Subsidiaries
Guaranty, the UAM Realty Advisors Guaranty, the Heitman Guaranty, the UAM U.K.
Holdings Guaranty (as each such term is defined in the Original Credit
Agreement) and any future guaranty executed by a Subsidiary of the Company under
and in accordance with the Credit Agreement.
BANK LOAN DOCUMENTS. The "Loan Documents", as defined in the
Original Credit Agreement, or any like term of the same meaning contained in any
other Credit Agreement.
BANK OBLIGATIONS. At any time, without duplication, any and all
then outstanding obligations of the Company and all obligations of each Guaranty
Subsidiary to the Agent, the Collateral Agent or the Banks, in each case, of
every kind and description, direct or indirect, absolute or contingent, primary
or secondary, joint, several or independent, due or to become due, liquidated or
unliquidated, and whether created directly or acquired by assignment or
otherwise, arising under or in connection with the Credit Agreement, the
Security Documents or any of the other Loan Documents or any other instruments,
documents or agreements executed in connection with any of the foregoing, or
under or in connection with any instruments,
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documents or agreements executed in connection with any Money Market Loan.
Bank Obligations shall include without limitation, any interest (including
post-petition interest) and collection costs to the extent allowable under
applicable bankruptcy laws.
BANKRUPTCY CODE. Title 11 of the United Sates Code entitled
"Bankruptcy", as now or hereafter in effect, or any successor thereto.
BUSINESS DAY. The meaning given to such term in the Original
Credit Agreement.
COLLATERAL. Any of the properties and assets (including the
proceeds thereof) of whatever nature, tangible or intangible, now owned or
existing or hereafter acquired or arising, of the Company or any Subsidiary of
the Company (including, without limitation, all assets of the Company and the
Guaranty Subsidiaries held as of the date hereof as collateral by the Collateral
Agent acting in such capacity under the Original Credit Agreement) in which,
pursuant to any Security Document, the Company or such Subsidiary has at the
time of reference granted a Lien to the Collateral Agent to secure both the Bank
Obligations and the Senior Note Obligations and which has not been released in
accordance with the terms hereof. Collateral shall include any amounts or
property rights received by the Collateral Agent as adequate protection in
respect of the Collateral under the Bankruptcy Code.
COLLATERAL AGENT. As defined in the preamble hereto unless and
until a successor Collateral Agent shall have been appointed pursuant to Section
6.4, and thereafter "Collateral Agent" shall mean such successor Collateral
Agent.
COMPANY. As defined in Recital A hereto.
CREDIT AGREEMENT. The Original Credit Agreement and the Loan
Documents, and any agreement or agreements designated as a "Credit Agreement"
hereunder by written notice by the Company to the Collateral Agent with the
written consent of the Agent and governing Indebtedness all or part of which is
incurred to refund, refinance or replace all or any portion of the Indebtedness
under the Original Credit Agreement, as the same may hereafter be amended,
restated, supplemented or otherwise modified (including by increasing the amount
of Indebtedness thereunder) from time to time.
CREDIT DOCUMENTS. Collectively, the Credit Agreement, the Bank
Guaranty Documents, the Note Purchase Agreements, the Senior Notes, the Senior
Note Guaranty Documents and the Security Documents.
GUARANTY SUBSIDIARIES. The meaning given to such term in the
Original Credit Agreement and shall include each Subsidiary of the Company
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hereafter executing any guaranty of the Bank Obligations and the Senior Note
Obligations.
LIEN. Any consensual mortgage, security deed, deed of trust,
pledge, lien, security interest or other voluntary encumbrance, whether now
existing or hereafter created, acquired or arising.
LOAN DOCUMENTS. The meaning given to such term in the Original
Credit Agreement.
LOANS. The meaning given to such term in the Original Credit
Agreement.
MONEY MARKET LOANS. The meaning given to such term in the
Original Credit Agreement.
NOTE PURCHASE AGREEMENT. The meaning given to such term in the
Recitals hereto.
NOTICE OF ACTIONABLE DEFAULT. A written notice by the Required
Banks, the Agent or the Required Senior Noteholders delivered to the Collateral
Agent, stating that an Actionable Default has occurred and that it is a Notice
of Actionable Default under this Agreement. A Notice of Actionable Default
shall be deemed to have been given to the Collateral Agent when the notice
referred to in the preceding sentence has actually been received by the
Collateral Agent and to have been rescinded when the Collateral Agent has
actually received from the notifying party or parties a written notice
withdrawing such Notice. A Notice of Actionable Default shall be deemed to be
outstanding at all times after such Notice has been given until such time, if
any, as such Notice has been rescinded. In the event that one or more parties
have given a Notice of Actionable Default to the Collateral Agent and
subsequently the Actionable Default or Defaults upon which such Notice of
Actionable Default is based are cured, waived or otherwise are not continuing,
then, so long as no other Actionable Default is then continuing, the notifying
party or parties shall promptly rescind such Notice of Actionable Default in the
manner set forth herein.
ORIGINAL CREDIT AGREEMENT. The meaning given to such term in the
Recitals hereto.
PERSON. Any individual, corporation, partnership, trust,
unincorporated association, business or other legal entity, and any government
or any governmental agency or political subdivision thereof.
REQUIRED BANKS. The meaning given to such term in the Credit
Agreement.
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REQUIRED SECURED PARTIES. (i) At any time of determination at
which a Notice of Actionable Default given by the Required Senior Noteholders
has been received by the Collateral Agent and not rescinded or withdrawn,
Secured Parties holding more than fifty percent (50%) of the aggregate of the
then outstanding Secured Obligations of the type described in item SECOND of
Section 4(a), and (ii) at all other times, Banks having more than fifty percent
(50%) of the Commitments (as defined in the Credit Agreement).
REQUIRED SENIOR NOTEHOLDERS. At any time of determination,
Senior Noteholders holding more than fifty percent (50%) in outstanding
principal amount of the Senior Notes.
SECURED OBLIGATIONS. Collectively, the Bank Obligations and the
Senior Note Obligations, in each case so long as such Secured Obligations are
secured by the Collateral or are guaranteed pursuant to one or more of the
Subsidiary Guaranties.
SECURED PARTIES. The Banks, the Agent, the Collateral Agent and
the Senior Noteholders.
SECURITY DOCUMENTS. The Security Documents as defined in the
Original Credit Agreement, and any other instrument or agreement pursuant to
which a Lien in Collateral is created or arises to secure either or both of the
Bank Obligations and the Senior Note Obligations.
SENIOR NOTEHOLDERS. The meaning given to such term in the
Recitals hereto, together with their respective successors and assigns.
SENIOR NOTE OBLIGATIONS. At any time, without duplication, any
and all then outstanding obligations of the Company and all obligations of each
Guaranty Subsidiary to the Senior Noteholders, in each case, of every kind and
description, direct or indirect, absolute or contingent, primary or secondary,
joint, several or independent, due or to become due, liquidated or unliquidated,
and whether created directly or acquired by assignment or otherwise, arising
under or in connection with the Note Purchase Agreements, the Senior Notes, any
of the Security Documents (as defined in the Note Purchase Agreements) or any
other instruments, documents or agreements executed in connection with any of
the foregoing. Senior Note Obligations shall include, without limitation, any
interest (including post-petition interest) and collection costs to the extent
allowable under applicable bankruptcy laws.
SENIOR NOTE GUARANTY DOCUMENTS. Collectively, the Subsidiaries
Guaranty, the UAM Realty Advisors Guaranty, the Heitman Guaranty, the UAM U.K.
Holdings Guaranty (as each such term is defined in the Note Purchase Agreements)
and any future guaranty executed by a Subsidiary of the Company under and in
accordance with the terms of the Note Purchase Agreements.
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SENIOR NOTES. The meaning given to such term in the Recitals
hereto.
SUBSIDIARY. The meaning given to such term in the Original
Credit Agreement, as in effect on the date hereof.
SUBSIDIARY GUARANTIES. The Bank Guaranty Documents and the
Senior Note Guaranty Documents.
1.2. TERMS GENERALLY. The definitions in Section 1.1 shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". All
references herein to Sections shall be deemed references to Sections of this
Agreement unless the context shall otherwise require.
2. PARITY OF SECURITY INTERESTS; RECOURSE OF SECURED PARTIES; ACTS OF
SECURED PARTIES.
2.1. PARITY OF SECURITY INTERESTS. Notwithstanding any contrary
provision contained in the Uniform Commercial Code, any applicable law or
judicial decision or the Credit Documents, or whether any Secured Party has
possession of all or any part of the Collateral, as among the Secured Parties,
the respective rights of each Secured Party in respect of liens and security
interests existing under the Security Documents shall at all times remain on a
parity with one another without preference, priority or distinction, and such
interests shall be governed by and subject to the terms of this Agreement.
2.2. RECOURSE OF SECURED PARTIES. Each of the Secured Parties
acknowledges and agrees that (a) it shall only have recourse to the Collateral
through the Collateral Agent and that it shall have no independent recourse to
the Collateral and (b) the Collateral Agent shall have no obligation to take any
action, or refrain from taking any action, except upon instructions from the
Required Secured Parties in accordance with Section 2.3 hereof.
2.3. ACTS OF SECURED PARTIES. Any request, demand, authorization,
direction, notice, consent, waiver or other action permitted or required by this
Agreement to be given or taken by any Secured Party or by the Required Secured
Parties, may be and, at the request of the Collateral Agent, shall be embodied
in and evidenced by one or more instruments reasonably satisfactory in form to
the Collateral Agent and signed by or on behalf of such Secured Party or the
Required Secured Parties, as the case may be, and, except as otherwise expressly
provided in any such instrument, any such action shall become effective when
such instrument or instruments shall have been delivered to the Collateral
Agent. The instrument or
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instruments evidencing any action (and the action embodied therein and
evidenced thereby) are sometimes referred to herein as an "Act" of the persons
signing such instrument or instruments. The Collateral Agent shall be entitled
to rely absolutely upon an Act of any Secured Party or of the Required Secured
Parties if such Act purports to be taken by or on behalf of such Secured Party
or the Required Secured Parties, as the case may be. Any Act to be taken by any
Bank may be taken by the Agent on behalf of and at the direction of such Bank.
3. DUTIES OF COLLATERAL AGENT.
3.1. NOTICES TO THE SECURED PARTIES AND COMPANY. In the event that
the Collateral Agent shall receive any of the following, the Collateral Agent
shall within three (3) Business Days following receipt thereof furnish to each
of the Agent, the Banks, the Senior Noteholders and the Company:
(a) a copy of each Notice of Actionable Default received by the
Collateral Agent;
(b) a copy of each certificate received by the Collateral Agent
rescinding a Notice of Actionable Default;
(c) written notice of any release or subordination by the
Collateral Agent of any Collateral;
(d) a copy of each consent, termination, waiver, extension of
time, amendment, modification or release of or under any Security Document or
any Subsidiary Guaranty;
(e) such other notices required by the terms of this Agreement
to be furnished by the Collateral Agent; and
(f) such additional information as may from time to time be
reasonably requested by any Secured Party.
3.2. ACTIONS UNDER SECURITY DOCUMENTS. The Collateral Agent shall not
be obligated to take any action under this Agreement or any of the Security
Documents except for the performance of such duties as are specifically set
forth herein or therein. Subject to the provisions of this Section and Section
6 hereof, the Collateral Agent shall take any action under or with respect to
the Security Documents which is requested by the Required Secured Parties and
which is not inconsistent with or contrary to the provisions of this Agreement
or the Credit Documents. At any time when a Notice of Actionable Default shall
have been given and shall be outstanding, the Collateral Agent shall, subject
in all cases to the provisions of Section 6 hereof, exercise or refrain from
exercising all such rights, powers and remedies as shall be available to it
under the Security Documents or any
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of them in accordance with any written instructions received from the Required
Secured Parties. The Collateral Agent shall have the right to decline to follow
any such direction if the Collateral Agent, being advised by counsel, determines
that the directed action is not permitted by the terms of this Agreement, the
Security Documents or the Credit Documents, may not lawfully be taken or would
involve it in personal liability, and the Collateral Agent shall not be required
to take any such action unless any indemnity which is required hereunder in
respect of such action has been provided. Subject to Section 6 hereof, the
Collateral Agent may rely on any such direction given to it by the Required
Secured Parties and shall be fully protected, and shall under no circumstances
(absent the gross negligence and willful misconduct of the Collateral Agent) be
liable to the Company, any Guaranty Subsidiary, any holder of any Secured
Obligations or any other Person for taking or refraining from taking action in
accordance therewith. Absent written instructions from the Required Secured
Parties (a) at a time when a Notice of Actionable Default shall be outstanding
or (b) in the case of an emergency in order to protect any of the Collateral,
the Collateral Agent may take, but shall have no obligation to take, any and all
such actions under the Security Documents or any of them or otherwise as it
shall deem to be in the best interests of the Secured Parties. Except as
provided in the preceding sentence and in the last sentence of Section 6.3(d),
in the absence of written instructions (which may relate to the exercise of
specific remedies or to the exercise of remedies in general) from the Required
Secured Parties, the Collateral Agent shall not exercise remedies available to
it under any Security Documents with respect to the Collateral or any part
thereof.
4. ALLOCATION OF PROCEEDS OF COLLATERAL.
(a) The Collateral Agent, the Agent, acting on behalf of itself
and the Banks under the Credit Agreement, and the Senior Noteholders agree,
INTER SE, that the cash proceeds of any collection, recovery, receipt,
appropriation, realization or sale of any or all of the Collateral or the
enforcement of the Security Documents that have been received by the Collateral
Agent shall be held by the Collateral Agent as cash collateral in a special
collateral account from which only the Collateral Agent may effect withdrawals
and shall be allocated to the Secured Obligations and distributed from time to
time by the Collateral Agent to the Secured Parties in accordance with the
following priorities:
FIRST, to the costs and expenses of the Collateral Agent incurred
in connection with the execution of its duties as Collateral Agent;
SECOND, after payment in full of all amounts set forth in item
FIRST, to the payment to the Agent (for the benefit of itself and the Banks) and
to the Senior Noteholders, PRO RATA, in accordance with the respective amounts
of (i) the Bank Obligations constituting (A) the then aggregate unpaid principal
amount of the Loans and Money Market Loans, together with all accrued and unpaid
interest thereon at such time, and (B) all commitment fees then owing by the
Company to any Bank
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under the Credit Agreement (provided that such commitment fees included in this
item SECOND shall be limited to such amounts that are computed at a rate not in
excess of the rate provided for in the Credit Agreement as in effect on the date
hereof, any commitment fees in excess of such amount to be included in item
FOURTH) and (ii) the Senior Note Obligations constituting the then aggregate
unpaid principal amount of the Senior Notes together with all accrued and unpaid
interest thereon at such time, for application to such Bank Obligations and such
Senior Note Obligations, without priority of one over the other;
THIRD, after payment in full of all amounts set forth in item
SECOND, to the payment to the Agent in the amount of all agents fees then owing
by the Company or any Guaranty Subsidiary to the Agent under the Credit
Agreement or any of the other Bank Loan Documents (provided that such agents
fees included in this item THIRD shall be limited to such amounts that are
computed at a rate not in excess of the rate in effect on the date hereof, any
agents fee in excess of such amount to be included in item FOURTH);
FOURTH, after payment in full of all amounts set forth in item
THIRD, to the payment to the Agent (for the benefit of itself and the Banks) and
the Senior Noteholders PRO RATA, in accordance with the respective amounts of
(i) all other Bank Obligations and (ii) all other Senior Note Obligations,
without priority of one over the other; and
FIFTH, after payment in full of all amounts set forth in item
FOURTH, if no other Secured Obligations shall then be outstanding, to or at the
direction of the Company, or as a court of competent jurisdiction may otherwise
direct.
(b) If the Collateral Agent receives any non-cash distributions
or proceeds in respect of the Collateral, then the Collateral Agent shall hold
such non-cash distributions and proceeds as Collateral upon the terms of this
Agreement and the Security Documents until converted to cash and thereupon
distributed in accordance with Section 4(a).
(c) For purposes of subsection (a) of this Section 4, any Make-
Whole Amount (as defined in the Note Purchase Agreements) payable in respect of
the Senior Notes shall not be included in item SECOND above, but shall be
included in item FOURTH of Section 4(a).
(d) For purposes of allocating proceeds of Collateral pursuant
to Section 4(a), the Collateral Agent may rely without inquiry on certificates
of any Secured Party setting forth in reasonable detail the amount and type of
Secured Obligations then outstanding to such Secured Party, and unless and until
the Collateral Agent has received such certificates from all Secured Parties,
the Collateral Agent may decline to allocate proceeds as so provided.
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5. SHARING OF RECOVERIES UNDER GUARANTY DOCUMENTS.
(a) Any and all amounts at any time recovered by any Secured
Party from any Guaranty Subsidiary as a result of the enforcement by such
Secured Party of its rights and remedies under the Bank Guaranty Documents or
the Senior Note Guaranty Documents, as the case may be, following the occurrence
and during the continuance of an Actionable Default of which Notice of
Actionable Default has been given to the Collateral Agent shall be shared by the
Secured Parties and allocated to the Secured Obligations in accordance with the
priorities specified in Section 4 in the manner specified in Section 5(b).
(b) In the event that any Secured Party shall obtain any payment
or reduction of any Secured Obligation as a result of the enforcement of the
Bank Guaranty Documents or the Senior Note Guaranty Documents in excess of its
ratable share obtained by all of the Secured Parties as set forth in (a) above,
such Secured Party shall forthwith (i) notify each other Secured Party and the
Collateral Agent of such receipt and (ii) purchase from the other Secured
Parties such Secured Obligations as shall be necessary to cause such purchasing
Secured Party to share the excess payment or reduction, net of costs incurred in
connection therewith, ratably with each of them in accordance with subsection
(a) above, provided that if all or any portion of such excess payment or
reduction is thereafter recovered from such purchasing Secured Party, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery. All purchases pursuant to this subsection (b) shall be
coordinated by and effected at the direction of the Collateral Agent.
6. CONCERNING THE COLLATERAL AGENT.
6.1. APPOINTMENT OF COLLATERAL AGENT.
(a) Each of the Banks and the Senior Noteholders hereby appoint
The First National Bank of Boston, acting as collateral agent for the Banks
under the Original Credit Agreement and the Security Documents, to act as
Collateral Agent pursuant to the terms of this Agreement and the Security
Documents, and the Collateral Agent hereby accepts such appointment and shall
have all of the rights and obligations of the Collateral Agent hereunder.
(b) Each of the Secured Parties hereby acknowledges and agrees
that the Collateral Agent shall continue to perform its duties as collateral
agent under the Original Credit Agreement and the other Bank Loan Documents,
PROVIDED, HOWEVER, that to the extent that the provisions of the Original Credit
Agreement or any of the other Bank Loan Documents governing the duties of the
Collateral Agent thereunder conflicts with any provision of this Agreement, the
provisions of this Agreement shall control.
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(c) The relationship between the Collateral Agent and the
holders of the Secured Obligations is and shall be that of agent and principal
only, and nothing contained in this Agreement or any of the Credit Documents
shall be construed to constitute the Collateral Agent as a trustee or other
fiduciary for any such holder.
6.2. LIMITATIONS ON RESPONSIBILITY OF COLLATERAL AGENT. The
Collateral Agent shall not be responsible in any manner whatsoever for the
correctness of any recitals, statements, representations or warranties contained
herein or in any Security Document, except for those made by it herein or
therein. The Collateral Agent makes no representation as to the value or
condition of the Collateral or any part thereof, as to the title of the Company
or any Guaranty Subsidiary to the Collateral, as to the security afforded by
this Agreement or any Security Document or, except as set forth in Section 7, as
to the validity, execution, enforceability, legality or sufficiency of this
Agreement or any Security Document, and the Collateral Agent shall incur no
liability or responsibility in respect of any such matters. The Collateral
Agent shall not be responsible for insuring the Collateral, for the payment of
taxes, charges, assessments or liens upon the Collateral or otherwise as to the
maintenance of the Collateral, except as provided in the immediately following
sentence when the Collateral Agent has possession of the Collateral. The
Collateral Agent shall have no duty to the Company or any Guaranty Subsidiary or
to the holders of any of the Secured Obligations as to any Collateral in its
possession or control or in the possession or control of any agent or nominee
of the Collateral Agent or any income thereon or as to the preservation of
rights against prior parties or any other rights pertaining thereto, except the
duty of an agent to act in good faith, the duty to accord such of the Collateral
as may be in its possession substantially the same care as it accords its own
assets and the duty to account for monies received by it. The Collateral Agent
shall not be responsible for any loss suffered with respect to any investment
permitted to be made under this Agreement and shall not be responsible for the
consequences of any oversight or error of judgment whatsoever, except that the
Collateral Agent may be liable for losses due to its willful misconduct or gross
negligence. The Collateral Agent shall not be required to ascertain or inquire
as to the performance by the Company or any Guaranty Subsidiary of any of the
covenants or agreements contained herein or in any of the Credit Documents.
Neither the Collateral Agent nor any officer, agent or representative thereof
shall be personally liable for any action taken or omitted to be taken by any
such Person in connection with this Agreement or any Security Document except
for such Person's own gross negligence or willful misconduct. Neither the
Collateral Agent nor any officer, agent or representative thereof shall be
personally liable for any action taken by any such Person in accordance with any
notice given by the Required Secured Parties pursuant to the terms of this
Agreement even if, at the time such action is taken by any such Person, the
Required Secured Parties or Persons purporting to be the Required Secured
Parties are not entitled to give such notice, except where the account officer
of the Collateral Agent active upon the Company's account has actual knowledge
that such Required Secured Parties or Persons purporting to be the
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Required Secured Parties are not entitled to give such notice. The Collateral
Agent may execute any of the powers granted under this Agreement or any of the
Security Documents and perform any duty hereunder or thereunder either directly
or by or through agents or attorneys-in-fact, and shall not be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it
without gross negligence or willful misconduct.
6.3. RELIANCE BY COLLATERAL AGENT; ETC. (a) Whenever in the
performance of its duties under this Agreement the Collateral Agent shall deem
it necessary or desirable that a matter be proved or established with respect to
any Person in connection with the taking, suffering or omitting of any action
hereunder by the Collateral Agent, such matter may be conclusively deemed to be
proved or established by a certificate executed by an officer of such Person,
and the Collateral Agent shall have no liability with respect to any action
taken, suffered or omitted in reliance thereon.
(b) The Collateral Agent may consult with counsel and shall be
fully protected in taking any action hereunder in accordance with any advice of
such counsel. The Collateral Agent shall have the right but not the obligation
at any time to seek instructions concerning the administration of this
Agreement, the duties created hereunder, or any of the Collateral from any court
of competent jurisdiction.
(c) The Collateral Agent shall be fully protected in relying
upon any resolution, statement, certificate, instrument, opinion, report,
notice, request, consent, order or other paper or document which it in good
faith believes to be genuine and to have been signed or presented by the proper
party or parties. In the absence of its gross negligence or willful misconduct,
the Collateral Agent may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificate or
opinions furnished to the Collateral Agent in connection with this Agreement.
(d) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect notice or knowledge of the occurrence of any
Actionable Default unless and until the Collateral Agent shall have received a
Notice of Actionable Default. The Collateral Agent shall have no obligation
whatsoever either prior to or after receiving such a Notice of Actionable
Default to inquire whether an Actionable Default has, in fact, occurred and
shall be entitled to rely conclusively, and shall be fully protected in so
relying, on any certificate so furnished to it and shall have no obligation,
absent written instructions from the Required Secured Parties, to take or omit
to take any action with respect to such Notice of Actionable Default.
(e) If the Collateral Agent has been requested by the Required
Secured Parties to take any specific action pursuant to any provision of this
Agreement, the Collateral Agent shall not be under any obligation to exercise
any of
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the rights or powers vested in it by this Agreement in the manner so requested
unless, if so requested by the Collateral Agent, it shall have been provided
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred by it in compliance with such request or direction. Any such
indemnity given by a Secured Party which is a bank, a trust company, a savings
and loan association, a pension plan, an investment company, an insurance
company, a broker or dealer or any other similar financial institution or
entity, regardless of legal form, may be unsecured.
(f) If any dispute or disagreement shall arise as to the
allocation of any sum of money received by the Collateral Agent hereunder or
under any Security Document, the Collateral Agent shall have the right to
deliver such sum to a court of competent jurisdiction and therein commence an
action for interpleader.
6.4. RESIGNATION AND REMOVAL OF THE COLLATERAL AGENT.
(a) The Collateral Agent may at any time resign as the
Collateral Agent under this Agreement, the Credit Agreement and the Security
Documents by giving sixty (60) days' prior written notice thereof to each
Secured Party and the Company, provided that no resignation shall be effective
until a successor for the Collateral Agent is appointed. In addition, at any
time following the occurrence and during the continuance of an Actionable
Default of which Notice of Actionable Default has been given to the Collateral
Agent, either the Required Banks or the Required Senior Noteholders may by
written notice to the Collateral Agent, the Company and each other Secured Party
remove the Collateral Agent as the collateral agent under this Agreement, the
Credit Agreement and the Security Documents, provided that no removal shall be
effective until a successor for the Collateral Agent is appointed. Upon such
notice of resignation or removal, the Required Banks shall have the right to
appoint a successor Collateral Agent as provided in the Credit Agreement. If no
successor Collateral Agent shall have been so appointed by the Required Banks
and shall have accepted such appointment within sixty (60) days after the
retiring Collateral Agent's giving of notice of resignation or its removal by
the Required Banks or the Required Senior Noteholders, then the retiring or
removed Collateral Agent may, on behalf of the Secured Parties, appoint a
successor Collateral Agent, which meets the requirements of Section 6.4(c).
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Collateral Agent, and the retiring or removed
Collateral Agent shall be discharged from further duties and obligations
hereunder. After any retiring Collateral Agent's resignation or removal, the
provisions of this Agreement and the Security Documents shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Collateral Agent.
(b) The Required Banks appointing a successor Collateral Agent
pursuant to this Section 6.4 shall make such appointment by written notice to
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all Secured Parties, the Company and to such successor Collateral Agent.
Following receipt of such notice, such successor Collateral Agent, if it
consents to such appointment, shall execute, acknowledge and deliver to its
predecessor Collateral Agent, the Company and each Secured Party, an instrument
in writing accepting such appointment hereunder and, thereupon, without any
further act, deed or conveyance, succeed to all rights and obligations of the
Collateral Agent hereunder.
(c) Every successor to the Collateral Agent appointed pursuant
to this Section 6.4 shall be a bank or trust company in good standing and having
power to so act, incorporated under the laws of the United States or any state
thereof, and having its principal corporate trust office within the forty-eight
(48) contiguous states, having a combined capital and surplus of at least
$100,000,000. In addition, in the event that the Collateral Agent is removed by
the Required Senior Noteholders pursuant to Section 6.4(a), no Bank under the
Credit Agreement shall be appointed as the successor Collateral Agent by the
Required Banks if so demanded in writing by the Required Senior Noteholders.
6.5. EXPENSES AND INDEMNIFICATION BY SECURED PARTIES. Each of the
Secured Parties severally agrees (a) to reimburse the Collateral Agent, on
demand, in accordance with its PRO RATA share, for any expenses incurred by the
Collateral Agent, including reasonable counsel fees and disbursements and
compensation of agents, arising out of, in any way connected with, or as a
result of, the execution or delivery of this Agreement or any Security Document,
any Subsidiary Guaranty or any agreement or instrument contemplated hereby or
thereby or the performance by the parties hereto or thereto of their respective
obligations hereunder or thereunder or in connection with the enforcement or
protection of the rights of the Collateral Agent and the Secured Parties
hereunder or under the Security Documents or any Subsidiary Guaranty, in each
case to the extent that the foregoing shall not have been reimbursed by the
Company and the Guaranty Subsidiaries or paid from the proceeds of Collateral as
provided herein, provided, that the obligation of the Senior Noteholders to
reimburse the Collateral Agent for any such expenses shall be limited to those
expenses accruing after a Notice of Actionable Default shall have been received
by the Collateral Agent, (b) to the extent not reimbursed by the Company and the
Guaranty Subsidiaries or paid from the proceeds of Collateral, to indemnify and
hold harmless the Collateral Agent and its directors, officers, employees and
agents, on demand, in accordance with its PRO RATA share, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the
Collateral Agent in its capacity as the Collateral Agent or any of them in any
way relating to or arising out of this Agreement or any Security Document or any
Subsidiary Guaranty or any action taken or omitted by them under this Agreement
or any Security Document or any Subsidiary Guaranty; PROVIDED that no Secured
Party shall be liable to the Collateral Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct
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of the Collateral Agent or any of its directors, officers, employees or agents
as determined by a final non-appealable order of a court of competent
jurisdiction, and (c) to the extent not reimbursed by the Company and the
Guaranty Subsidiaries or paid from the proceeds of Collateral, to indemnify and
hold harmless the Collateral Agent, on demand, in accordance with its PRO RATA
share, from and against any and all liabilities which may be imposed on or
incurred by the Collateral Agent (in its capacity as Collateral Agent) for the
net amount of taxes (after taking into account any deduction, credit or other
tax reduction or benefit available by reason of the imposition of any such tax)
in any jurisdiction in which the Collateral Agent would not otherwise be subject
to tax except by reason of its acting under this Agreement or the Security
Documents (directly or through agents); PROVIDED that such indemnification for
taxes (i) shall apply only in respect of taxes attributable to the performance
of the Collateral Agent's obligations hereunder and (ii) shall in no event cover
any federal, state, local or other taxes imposed upon the Collateral Agent with
respect to or measured by its gross or net income or profits. A statement by
the Collateral Agent that is submitted to each Secured Party with respect to the
amount of such expenses and containing a basic description thereof and/or the
amount of its indemnification obligation shall be PRIMA FACIE evidence of the
amount thereof owing to the Collateral Agent absent manifest error. For the
purposes of this Section 6.5, PRO RATA shares shall be determined based upon the
aggregate amount of Secured Obligations of the type described in item SECOND of
Section 4(a) held by or for each Secured Party at the time of the act, omission
or transaction giving rise to the reimbursement or indemnity required by this
Section 6.5.
6.6. STATUS OF MONEYS RECEIVED. All moneys received by the Collateral
Agent shall, until used or applied as herein provided, be held by the Collateral
Agent in a special collateral account from which only the Collateral Agent may
effect withdrawals for the purposes for which they were received. Without
limiting the foregoing, the Collateral Agent shall, to the extent practicable,
at the direction of the Required Secured Parties, invest and reinvest any funds
from time to time held by the Collateral Agent in direct obligations of the
United States of America or obligations for which the full faith and credit of
the United States is pledged to provide for the payment of principal and
interest, maturing not more than 90 days from the date of such investment, or in
repurchase agreements with respect to the foregoing.
7. REPRESENTATIONS AND WARRANTIES. Each of the parties hereto represents
and warrants to the other parties hereto that (a) the execution, delivery and
performance of this Agreement (i) have been duly authorized by all requisite
corporate action on its part and, in the case of the Agent, by each of the
Banks, and (ii) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which it is subject or any
judgment, order, writ, injunction, license or permit applicable to it and will
not conflict with any provision of its corporate charter or bylaws or any
agreement or other instrument binding upon it; and (b) this Agreement has been
duly executed and delivered by it
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and constitutes its legal, valid and binding obligation, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally.
8. CERTAIN INTERCREDITOR ARRANGEMENTS.
8.1. TURNOVER OF COLLATERAL. If any Secured Party acquires custody,
control or possession of any Collateral or proceeds therefrom, other than
pursuant to the terms of this Agreement, such Secured Party shall promptly cause
such Collateral or proceeds to be delivered to or put in the custody, possession
or control of the Collateral Agent or, if the Collateral Agent shall so
designate, an agent of the Collateral Agent (which agent may be a branch or
affiliate of the Collateral Agent or any Bank) in the same form of payment
received, with appropriate endorsements, in the country in which such Collateral
is held for distribution in accordance with the provisions of Section 4. Until
such time as the provisions of the immediately preceding sentence have been
complied with, such Secured Party shall be deemed to hold such Collateral and
proceeds thereof in trust for the Collateral Agent.
8.2. SETOFFS. If any Secured Party exercises any right of setoff,
banker's lien or similar right with respect to any Collateral for payment of any
Secured Obligations, the amounts so set off shall constitute Collateral for
purposes of this Agreement, and such Secured Party shall promptly cause such
amounts to be delivered to or put in the custody, possession or control of the
Collateral Agent for disposition or distribution in accordance with the
provisions of Section 4. Until such time as the provisions of the immediately
preceding sentence have been complied with, such Secured Party shall be deemed
to hold such Collateral and proceeds thereof in trust for the Collateral Agent.
8.3. INDEPENDENT ACTIONS BY SECURED PARTIES. Nothing contained in
this Agreement shall prohibit any Secured Party from accelerating the maturity
of or demanding payment on any indebtedness of the Company to such Secured
Party, from exercising a right of set-off against any amounts owed to the
Company or from instituting legal action against the Company or any Subsidiary
to obtain a judgment or other legal process in respect of such indebtedness,
provided, however, that (i) any action to foreclose or otherwise realize on the
Collateral shall be taken only by the Collateral Agent in accordance with the
terms of this Agreement, and (ii) any proceeds of Collateral (including proceeds
of any setoff with regard to any Collateral) or amounts recovered under the
Subsidiary Guaranties shall be subject to the terms of this Agreement and, if
received by a Secured Party, shall be turned over to the Collateral Agent or
distributed among the Secured Parties to the extent required hereunder for
application as set forth herein.
8.4. PARITY OF TREATMENT. Each Secured party agrees that it will not
accept from the Company or any other Person any guarantee or any collateral
security
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in addition to that provided for by the Subsidiary Guaranties and the Security
Documents, as in effect on the date hereof, without the prior written consent of
each other Secured Party, unless any such collateral security is held by the
Collateral Agent for the ratable benefit of all Secured Parties in accordance
with this Agreement or unless any such third party shall simultaneously
guarantee all of the Secured Obligations to the same extent.
8.5. NOTICES OF DEFAULT. Each of the Secured Parties agrees to use
its best efforts to provide to each other Secured Party copies of any written
formal notice of the occurrence or existence of any default or event of default
under any Credit Document sent to the Company simultaneously with the sending of
such notice to the Company, PROVIDED, that the failure to do so shall not affect
the validity of such notice or create any claim or cause of action against the
party failing to send such copies or create any claim or right on behalf of any
third party.
9. RELEASE OR SUBORDINATION OF COLLATERAL; FREEDOM TO DEAL.
9.1. RELEASE OF COLLATERAL. The Collateral Agent is hereby
authorized, upon receipt of instructions from the Required Secured Parties, and
subject to Section 9.3, to release all or any portion of the Collateral and to
provide releases and termination statements with respect to any Lien of the
Collateral Agent on any Collateral in connection with any sale, exchange or
other disposition thereof or otherwise, provided, however, that to the extent
that the consent of a greater percentage of the Banks is required to release
Collateral under the Original Credit Agreement, the Collateral Agent shall
release Collateral only with such consent.
9.2. SUBORDINATION OF LIEN. The Collateral Agent shall, on the
written instructions of the Required Secured Parties, and subject to Section
9.3, subordinate by written instrument the Lien on all or any portion of the
Collateral to any other lender extending to the Company or any Guaranty
Subsidiary Indebtedness permitted by the terms of the Credit Documents.
9.3. LEGALLY REQUIRED RELEASES. Whether or not so instructed by the
Required Secured Parties, the Collateral Agent may release any Lien of the
Collateral Agent on any Collateral and may provide any release, termination
statement or instrument of subordination required by order of a court of
competent jurisdiction or otherwise required by applicable law.
9.4. AMENDMENTS TO SECURITY DOCUMENTS. Without in any way limiting
the provisions of Sections 9.1 through 9.3, the Collateral Agent may, at any
time and from time to time, subject to the proviso contained in Section 9.1,
enter into any modification, extension of time, amendment, consent, release,
termination or waiver with respect to the Security Documents and the Collateral
with the consent of the Required Secured Parties, it being the intent of the
parties that unless the
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Collateral Agent shall be in receipt of a Notice of Actionable Default given by
the Required Senior Noteholders which has not been withdrawn, the Collateral
Agent shall, subject to the proviso contained in Section 9.1, act with respect
to the Security Documents and the Collateral at the direction of the Required
Banks and without any consent of or direction from any Senior Noteholder,
PROVIDED, HOWEVER, that all Collateral held by the Collateral Agent at any time
and not released in accordance with this Section 9 shall secure the Bank
Obligations and the Senior Note Obligations ratably in accordance with this
Agreement.
9.5. SECURED PARTIES FREEDOM OF DEALING; ETC.. (a) The Senior
Noteholders agree, with respect to the Bank Obligations, any and all guaranties
thereof and any and all Collateral, that the Company and the Banks may agree to
increase or decrease the amount of the Bank Obligations or otherwise modify or
waive the terms of any of the Bank Obligations, and the Banks may grant
extensions of the time of payment or performance to and make compromises,
including releases of guaranties or Collateral as set forth in Sections 9.1
through 9.4 hereof, and settlements with the Company and all other Persons, in
each case without the consent of any Senior Noteholder (subject to the rights of
any Senior Noteholder as a holder of Bank Obligations pursuant to Section 5) and
without affecting the agreements of the Senior Noteholders or the Company
contained in this Agreement.
(b) The Banks agree, with respect to the Note Purchase
Agreements, the Senior Notes, any and all guarantees thereof, and any and all
Collateral, that the Company and the Senior Noteholders may agree to increase or
decrease the amount of the Senior Notes or otherwise modify or waive the terms
of any of the Note Purchase Agreements or the Senior Notes, and the Senior
Noteholders may grant extensions of the time of payment or performance to and
make compromises, including releases of guarantees and settlements with the
Company and all other Persons, in each case without the consent of the Agent or
any Bank (subject to the rights of any Bank as a holder of Senior Note
Obligations pursuant to Section 5) and without affecting the agreements of the
Banks or the Company contained in this Agreement.
(c) Nothing contained in this Agreement shall in any way relieve
the Company or any Guaranty Subsidiary from compliance with their respective
covenants and agreements contained in any Credit Document.
10. AMENDMENT OF THIS AGREEMENT.
(a) No modification or amendment of this Agreement shall be
effective unless the same shall be in writing and signed by all Secured Parties
(or, in the case of any Bank by the Agent acting at the direction of such Bank).
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(b) No waiver of any provision of this Agreement and no consent
to any departure by any party hereto from the provisions hereof shall be
effective unless such waiver or consent shall be set forth in a written
instrument executed by the party against which it is sought to be enforced, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on any party hereto in
any case shall entitle such party to any other or further notice or demand in
the same, similar or other circumstances.
11. COLLATERAL AGENT AS AGENT AND BANK. In its individual capacity, The
First National Bank of Boston shall have the same obligations and the same
rights, powers and privileges as it would have had were it not also the
Collateral Agent.
12. MISCELLANEOUS.
12.1. FURTHER ASSURANCES. The Agent, the Banks and the Senior
Noteholders agree to execute and deliver such other documents and instruments,
in form and substance reasonably satisfactory to the Collateral Agent, and shall
take such other action, in each case as the Collateral Agent or any Secured
Party may reasonably request (at the sole cost and expense of the Company), to
effectuate and carry out the provisions of this Agreement including, without
limitation, by recording or filing in such places as the requesting party may
deem desirable, this Agreement or such other documents or instruments.
12.2. NO INDIVIDUAL ACTION; MARSHALLING; ETC. No holder of any
Secured Obligations may require the Collateral Agent to take or refrain from
taking any action hereunder or under any of the Security Documents or with
respect to any of the Collateral except as and to the extent expressly set forth
in this Agreement. The Collateral Agent shall have no duty to, and the Secured
Parties hereby waive any and all right to require the Collateral Agent to,
marshal any assets or otherwise to take any actions with respect to marshalling.
12.3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and
inure to the benefit of the Collateral Agent, each of the Banks, the Agent and
the Senior Noteholders and their respective successors and permitted assigns.
Each Secured Party agrees with each other Secured Party that it shall not
transfer or assign any indebtedness owing to it which is subject to the terms of
this Agreement except upon receipt of a written acknowledgement and agreement
from such transferee or assignee binding such assignee or transferee and all
successive assignees and transferees to the terms and conditions of this
Agreement, and a copy of such acknowledgement and agreement will promptly be
delivered to the Collateral Agent.
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12.4. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole
and exclusive benefit of the Secured Parties and their respective successors and
permitted assigns, including each subsequent holder or transferee of the Loans
or Senior Notes, and no other Person (including the Company or any Guaranty
Subsidiary) shall under any circumstances be deemed to be a third party
beneficiary hereof.
12.5. NOTICES. All notices and other communications made or required
to be given pursuant to this Agreement shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier or sent by telegraph, telecopy,
facsimile or telex, confirmed by delivery via courier or postal service
addressed to the parties at the addresses specified on Exhibit A hereto;
PROVIDED that a notice sent by overnight courier shall only be effective if
delivered to a street address designated for such purpose. Any such notice and
other communications shall be deemed to have been duly given or made and to have
become effective upon actual receipt by the party to which it is addressed.
12.6. TERMINATION. This Agreement shall terminate automatically when
the security interests granted under the Security Documents have terminated, the
Collateral has been released and the Guaranty Subsidiaries have been released of
their obligations under the Bank Guaranty Documents and the Senior Note Guaranty
Documents.
12.7. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. THE PARTIES
AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND CONSENT
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE PARTIES BY MAIL AT THE ADDRESSES SPECIFIED IN
SECTION 12.5. THE PARTIES HEREBY WAIVE ANY OBJECTION THAT THEY MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
12.8. WAIVER OF RIGHTS. Neither any failure nor any delay on the part
of any party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, and a single or partial exercise thereof shall not
preclude any other or further exercise or the exercise of any other right, power
or privilege.
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12.9. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance herefrom.
12.10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
12.11. SECTION HEADINGS. The section headings used herein are for
convenience of reference only and are not to affect the construction of or be
taken into consideration in interpreting this Agreement.
12.12. COMPLETE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof
and supersedes all prior representations, negotiations, writings, memoranda and
agreements. To the extent any provision of this Agreement conflicts with the
Credit Agreement, any Note Purchase Agreement or any other Credit Document, as
among the Secured Parties the provisions of this Agreement shall be controlling.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person other than the parties hereto any rights or remedies under or by reason
of this Agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Collateral Agent, the Agent, the Banks and the
Senior Noteholders have caused this Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
THE FIRST NATIONAL BANK OF BOSTON,
in its capacity as Collateral Agent
By: _______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By: _______________________________
Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, in its capacity as Agent
and as a Bank
By: _______________________________
Name:
Title:
MELLON BANK, N.A.
By: _______________________________
Name:
Title:
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DEUTSCHE BANK A.G. NEW YORK
BRANCH/CAYMAN ISLANDS BRANCH
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
CHEMICAL BANK
By: _______________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By: _______________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By: _______________________________
Authorized Signature
SHAWMUT BANK, N.A.
By: _______________________________
Name:
Title:
NATIONSBANK, N.A.
By: _______________________________
Name:
Title:
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BANK HAPOALIM B.M.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
THE DAIWA BANK, LIMITED
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
FLEET BANK OF MASSACHUSETTS
By: _______________________________
Name:
Title:
BAYBANK BOSTON, N.A.
By: _______________________________
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By: _______________________________
Name:
Title:
-25-
<PAGE>
BROWN BROTHERS HARRIMAN & CO.
By: _______________________________
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By: _______________________________
Name:
By: _______________________________
Name:
Authorized Signatories
BANKERS SECURITY LIFE INSURANCE
SOCIETY
By: _______________________________
Its
CM LIFE INSURANCE COMPANY
By: _______________________________
Its
CONNECTICUT MUTUAL LIFE INSURANCE
COMPANY
By: _______________________________
Its
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: _______________________________
Its
-26-
<PAGE>
GWL PROPERTIES, INC.
By: _______________________________
Its
By: _______________________________
Its
JEFFERSON PILOT LIFE INSURANCE
COMPANY
By: _______________________________
Its:
THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By: _______________________________
Its
LINCOLN NATIONAL REINSURANCE
(BARBADOS) LIMITED
By: Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By: ____________________________
Its
LONDON LIFE INTERNATIONAL
REINSURANCE CORPORATION
By: Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By: _______________________________
Its
-27-
<PAGE>
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: _______________________________
Its
NEW ENGLAND MUTUAL LIFE INSURANCE
COMPANY
By: _______________________________
Its
NORTHERN LIFE INSURANCE COMPANY
By: _______________________________
Its:
NORTHWESTERN NATIONAL LIFE
INSURANCE COMPANY
By: _______________________________
Its
OXFORD LIFE INSURANCE
COMPANY
By: Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By: _______________________________
Its
-28-
<PAGE>
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
By: _______________________________
Its
By: _______________________________
Its
PROVIDENT LIFE AND ACCIDENT
INSURANCE COMPANY
By: _______________________________
Its
SECURITY-CONNECTICUT LIFE
INSURANCE COMPANY
By: Lincoln Investment Management,
Inc., Its Attorney-In-Fact
By: _______________________________
Its
THE TRAVELERS INSURANCE COMPANY
By: _______________________________
Its
-29-
<PAGE>
EXHIBIT A
ADDRESSES FOR NOTICES
IF TO THE COLLATERAL AGENT: The First National Bank of Boston
Blue Hills Office Park
150 Royall Street
Canton, Massachusetts 02021
Attention: Corporate Trust Division
Mail Stop 45-02-15
(United Asset Management
Corporation, 1995 Collateral Agency)
Facsimile: (617) 575-2078
IF TO THE AGENT OR ANY BANK: The address for notices provided in the Credit
Agreement
IF TO ANY SENIOR NOTEHOLDER: The address for notices provided in the
applicable Note Purchase Agreement
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES EXHIBIT D
TO
FIRST AMENDMENT AND CONSENT
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Alpha Global Fixed Income Managers, Inc. (DE) 100 100% Company
Analytic Investment Management, Inc. (CA) 3,400 100% Company
Barrow, Hanley, Mewhinney & Strauss, Inc. (NV) 100 100% Company
Cambiar Investors, Inc. (CO) 100 100% Company
The Campbell Group, Inc. (DE) 100 100% Company
**/***Timber Pacific Properties, Inc. (OR) 100 100% The Campbell Group, Inc.
Chicago Asset Management Company (DE) 100 100% Company
Cooke & Bieler, Inc. (PA) 5,462 100% Company
**/***Baxter & Stewart, Inc. (PA) 100 100% Cooke & Bieler, Inc.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 1
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
C. S. McKee & Company, Incorporated (PA) 21,100 Class A 100% Company
7,430 Class B 100% Company
Fiduciary Management Associates, Inc. (DE) 900 100% Company
GSB Investment Management, Inc. (DE) 100 100% Company
Hamilton, Allen & Associates, Inc. (DE) 100 100% Company
HIMCO, INC., d/b/a Hanson Investment Management
Company (CA) 400 100% Company
Investment Counselors of Maryland, Inc. (MD) 7,500 100% Company
Investment Research Company (IL) 100 100% Company
**JAM Asset Management, Inc. (DE) 100 100% Company
(application pending as an investment adviser)
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 2
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
John K. Dwight 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.
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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 3
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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.
**/***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.
Nelson, Benson & Zellmer, Inc. (DE) 100 100% Company
2/**Investment Trust Company (CO) 25,000 100% Nelson, Benson & Zellmer,
Inc.
Newbold's Asset Management, Inc. (PA) 100 100% Company
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 4
<PAGE>
JULY 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Northern Capital Management Incorporated (WI) 100 100% Company
NWQ Investment Management Company, Inc. (MA) 200,000 100% United Asset Management
Holdings, Inc.
Olympic Capital Management, Inc. (WA) 100 100% Company
Pilgrim Baxter & 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, James & Associates (CA) 100 100% Company
Rothschild Pell Rudman, Inc. (MD)
(formerly named The Rothschild Company) 638.6316 100% Company
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 5
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
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
Thompson, Siegel & Walmsley, 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
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 6
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Acadian Asset Management, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
Dewey Square Investors Corporation (DE) 100 100% United Asset Management
Holdings, Inc.
HT Investors, Inc. (DE) 100 100% Dewey 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.
Hagler, Mastrovita & Hewitt, Inc. (DE) 50,000 100% United Asset Management
Holdings, Inc.
Hellman, Jordan Management Company, Inc. (DE) 449.5 100% United Asset Management
Holdings, Inc.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 7
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Pell, Rudman & Co., Inc. (DE) 100 100% United Asset Management
Holdings, Inc.
**/***Atlantic Trust Company, National Association 3 100% Pell, Rudman & Co., Inc.
2/**Boston Harbor Trust Company, National Association 4,670 100% Pell, Rudman & Co., Inc.
Provident Investment Counsel, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
Tom Johnson Investment Management, Inc. (MA) 100 100% United Asset Management
Holdings, Inc.
**UAM Realty Advisors Investment Corporation (DE) 100 100% United Asset Management
Holdings, Inc.
**United Asset Management (Japan), Inc. (DE) 1,000 100% Company
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 8
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
**United Asset Management Trademark, Inc. (DE) 100 100% Company
**Heitman Financial Ltd. (IL) 100 100% Company
**Heitman Financial Services Ltd. (IL) 1,000 100% Heitman Financial Ltd.
+/**Heitman FEW 2 Corp. (IL) 1,000 100% Heitman Financial
Services Ltd.
+/**HMI Management Company (IL) 9,400 100% Heitman Financial
Services Ltd.
+/**Philadelphian Realty Corporation (DE) 1,000 100% Heitman Financial
Services Ltd.
+/**Heitman Holdings, Ltd. (DE) 1,000 100% Heitman Financial
Services Ltd.
+/**Heitman Equities Corporation (DE) 1,000 100% Heitman Financial
Services Ltd.
+/*/**Heitman Securities Corporation (DE) 1,000 100% Heitman Financial
Services Ltd.
+/**HRC - OCC, Inc. (NV)
(formerly named HRC, Inc.) 1,000 100% Heitman Financial
Services Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 9
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**HRC - York Corporation (IL) 1,000 100% Heitman Realty
Corporation
+/**Heitman Realty Corporation (IL) 1,000 100% Heitman Financial
Services Ltd.
+/**Heitman Snowmass Corporation (IL) 100 100% Heitman Financial
Services Ltd.
+/**HRC III, Inc. (NV) 100 100% Heitman Financial
Services Ltd.
+/**H.E. One, Inc. (DE) 3,385 100% Heitman Financial
Services Ltd.
+/**HRC IV, Inc. (NV) 100 100% Heitman Financial
Services Ltd.
+/**HRC V, Inc. (NV) 100 100% Heitman Financial
Services Ltd.
+/**HRC VI, Inc. (DE) 100 100% Heitman Financial
Services Ltd.
+/**Castle Loan Corporation (IL) 1,000 100% Heitman Financial
Services Ltd.
+/**HRC - LLC, Inc. (WY) 100 100% Heitman Financial
Services Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 10
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Financial U.K. Ltd. (IL) 1,000 100% Heitman Financial Ltd.
Heitman/JMB Advisory Corporation (IL)
(formerly named Heitman Advisory Corporation) 1,000 100% Heitman 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
**Heitman Properties Ltd. (IL) 39,763 100% Heitman 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.
+/**Heitman Florida Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Pennsylvania Management Inc. (DE) 1,000 100% Heitman Properties Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 11
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**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.
+/**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.
+/**Heitman D.C. Properties Ltd. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Louisiana Ltd. (DE) 1,000 100% Heitman Properties Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 12
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**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.
+/**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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 13
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Properties of North Carolina Ltd. (NC) 1,000 100% Heitman Properties Ltd.
+/**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.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 14
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Properties of Colorado, Ltd. (CO) 100 100% Heitman Properties Ltd
(preferred)
800
(common) 80% Heitman Properties Ltd.
+/**Heitman Properties of Connecticut, Ltd. (CT) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Delaware, Ltd. (DE) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Georgia, Ltd. (GA) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Maryland, Ltd. (MD) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Massachusetts, Ltd. (MA) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of New Jersey, Ltd. (NJ) 1,000 100% Heitman Properties Ltd.
+/**Heitman Properties of Oklahoma, Ltd. (OK) 1,000 100% Heitman Properties Ltd.
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 15
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
+/**Heitman Properties of Washington, Ltd. (WA) 1,000 100% Heitman Properties Ltd.
+/**Heitman Development Co. Ltd. (IL) 1,000 100% Heitman Properties Ltd.
+PRA Securities Advisors, Inc. (IL) 1,000 100% Heitman Financial Ltd.
**United Asset Management U.K. Holdings,
Inc. (DE) 1 100% Company
**Murray Johnstone Holdings Limited (Scotland) 8,092,361 100% United Asset Management
U.K. Holdings, Inc.
1/**Murray Johnstone International Limited
(Scotland) 1,000,000
(ordinary) 100% Murray Johnstone Limited
400,000
(preferred) 100% Murray Johnstone Limited
1/**Murray Johnstone Limited (Scotland) 1,001,000 100% Murray Johnstone Holdings
Limited
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 16
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1/**Murray Johnstone Investment Trust Management
Limited (Scotland) 2 100% Murray Johnstone Limited
1/**Murray Johnstone Private Equity Limited
(Scotland) (formerly named Murray Johnstone
Developments Limited) 2 100% Murray Johnstone Limited
1/**Murray Johnstone Europe Limited (Scotland) 2 100% Murray Johnstone Limited
1/**Murray Johnstone Asset Management Limited
(Scotland) 500 100% Murray Johnstone Limited
1/**Murray Johnstone Personal Asset Management
Limited (Scotland) 100,000
(ordinary) 60% Murray Johnstone Limited
400,000
(preferred) 100% Murray Johnstone Limited
1/**Murray Johnstone (General Partner) Limited
(England) 5,000 100% Murray Johnstone Limited
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 17
<PAGE>
July 12, 1995
UNITED ASSET MANAGEMENT CORPORATION
SUBSIDIARIES
<TABLE>
<CAPTION>
TOTAL CAPITAL PERCENTAGE OF
STOCK ISSUED AND CAPITAL STOCK
NAME OUTSTANDING OWNED OWNER
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1/**BIG (General Partner) Limited (Scotland) 5,000 100% Murray Johnstone Limited
1/**Murray Johnstone Unit Trust Management Limited (Scotland) 50,000 100% Murray Johnstone Limited
1/**Embankment Properties (Management) Limited
(Jersey) 25,000 67% Murray Johnstone Limited
1/**Murray Johnstone (Jersey) Limited
(Jersey) 25,000 100% Murray Johnstone Limited
1/**Murray Johnstone Buyout Management (Jersey)
Limited (Jersey) 27,824 100% Murray Johnstone Limited
</TABLE>
* = 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 = Murray Johnstone Exempted Subsidiary
2 = Special Exempted Subsidiary
Page 18
<PAGE>
EXHIBIT E
TO
FIRST AMENDMENT AND CONSENT
---------------------------
SCHEDULE A TO PLEDGE AGREEMENT BY AND BETWEEN
UNITED ASSET MANAGEMENT CORPORATION AND THE
FIRST NATIONAL BANK OF BOSTON, AS COLLATERAL AGENT
--------------------------------------------------
The Collateral covered by the Pledge Agreement to which this Schedule
A is annexed includes, without limitation, the following (and all proceeds
thereof):
A. The following shares of stock (the "First Priority Pledged
Securities"), certificates representing which are hereby delivered to the
Collateral Agent in good transferable form, endorsed by the Pledgor in
blank:
<TABLE>
<CAPTION>
Percentage
Number of Outstanding Certificate
Issuer of Shares Shares Number
- ------ --------- -------------- -----------
<S> <C> <C> <C>
Chicago Asset 100 100% 1
Management Company
Nelson, Benson 100 100% 1
& Zellmer, Inc.
Hamilton, Allen & 100 100% 2
Associates, Inc.
Thompson, Siegel 2,898 100% 18,19
& Walmsley, Inc.
Analytic Investment 3,400 100% 20
Management, Inc.
Northern Capital 100 100% 1
Management Incorporated
(certificate in name of
NCM Newco, Inc.)
Cooke & Bieler, Inc. 5,462 100% 208,209
Olympic Capital 100 100% 76
Management, Inc.
Fiduciary Management 900 100% 11,12
Associates, Inc.
Investment Counselors 7,500 100% 52
of Maryland, Inc.
<PAGE>
(Rothschild Pell
Rudman, Inc.
(formerly named
The Rothschild 638.6316 100% 12
Company)
Sterling Capital 7,757 100% 7,8
Management Company
Rice, Hall, James 100 100% 2
& Associates
C.S. McKee & Company, 21,000 100% 55,127
Incorporated Class A
7,430
Class B
HIMCO, Inc. 400 100% 6
(d/b/a Hanson
Investment Management
Company)
Barrow, Hanley, 100 100% 2
Mewhinney & Strauss,
Inc.
Sirach Capital Management, 100 100% 3
Inc.
United Asset Management 100 100% 1
Holdings, Inc.
United Asset Management 100 100% 1
Trademark, Inc.
The Campbell Group, Inc 100 100% 2
Newbold's Asset 100 100% 10
Management, Inc.
UAM Investment 100 100% 1
Corporation
Cambiar Investors, 100 100% 16
Inc.
Spectrum Asset 100 100% 3
Management, Inc.
Regis Retirement Plan 7000 100% 3
Services, Inc.
(formerly named RFI
Distributors, Inc.)
<PAGE>
Alpha Global Fixed
Income Managers, Inc. 100 100% 1
Ki Pacific Asset 100 100% 2
Management, Inc.
L&B Realty Advisors, Inc. 3,710 95% A-2
United Asset Management 1 100% 2
U.K. Holdings, Inc.
Regis Administrative 100 100% 4
Services, Inc.
(formerly named
Newco Acquisition Corp.)
Heitman Financial Ltd. 100 100% 3
GSB Investment
Management, Inc. 100 100% 2
John K. Dwight Asset
Management Company, Inc. 100 100% 3
Investment Research Company 100 100% 13
Suffolk Capital
Management, Inc. 100 100% 3
UAM Investment Services, 1,000 100% 2
Inc.
United Asset Management 1,000 100% 2
(Japan), Inc.
Pilgrim Baxter &
Associates, Ltd. 100 100% 3
JAM Asset
Management, Inc. 100 100% 2
</TABLE>
B. The following shares of stock (the "Second Priority Pledged
Securities"), certificates representing which are held pursuant to
Stockholder Pledge Agreements, by which selling stockholders have been
granted first priority liens in such shares, as follows:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Percentage Stockholder
Number of Outstanding Certificate Certificate Pledge
Issuer of Shares Shares Number Holder Agreement
- ------ --------- -------------- ----------- ----------- -----------
</TABLE>
NONE
<PAGE>
EXHIBIT F
TO
FIRST AMENDMENT AND CONSENT
SCHEDULE A TO
SUBSIDIARIES PLEDGE AGREEMENT
BY AND BETWEEN UNITED ASSET MANAGEMENT
HOLDINGS, INC. AND THE FIRST NATIONAL
BANK OF BOSTON, AS COLLATERAL AGENT
The Collateral covered by the Subsidiaries Pledge Agreement to
which this Schedule A is annexed includes, without limitation, the
following shares of stock, certificates representing which are hereby
delivered to the Collateral Agent in good transferable form, endorsed by
the Pledgor in blank (and all proceeds thereof):
Percentage of
Number of Shares Certificate
Issuer Shares Outstanding Number
------ --------- ------------- -----------
Hellman, Jordan 449.5 100% 30
Management
Company, Inc.
Hagler, Mastrovita
& Hewitt, Inc. 50,000 100% 11
Dewey Square Investors 100 100% 1
Corporation
UAM Realty Advisors 100 100% 1
Investment Corporation
First Pacific 200,000 100% 2
Advisors, Inc.
Acadian Asset 100 100% 7
Management, Inc.
NWQ Investment Management 200,000 100% 2
Company, Inc.
Pell, Rudman & Co., Inc. 100 100% 2
Tom Johnson Investment 100 100% 2
Management, Inc.
Provident Investment 100 100% 2
Counsel, Inc.
<PAGE>
EXHIBIT G
TO
FIRST AMENDMENT AND CONSENT
SCHEDULE A TO
HEITMAN PLEDGE AGREEMENT
BY AND BETWEEN HEITMAN FINANCIAL LTD.
AND THE FIRST NATIONAL
BANK OF BOSTON, AS COLLATERAL AGENT
The Collateral covered by the Heitman Pledge Agreement to which
this Schedule A is annexed includes, without limitation, the following shares
of stock, certificates representing which are hereby delivered to the
Collateral Agent in good transferable form, endorsed by the Pledgor in blank
(and all proceeds thereof):
Percentage of
Number of Shares Certificate
Issuer Shares Outstanding Number
------ --------- ------------- -----------
Heitman Financial
Services Ltd. 1,000 100% 2
Heitman/JMB Advisory
Corporation 1,000 100% 2
Heitman Properties
Ltd. 39,763 100% 24
<PAGE>
EXHIBIT H TO
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
-------------------------
SUPPLEMENTARY PLEDGE AGREEMENT
between
UNITED ASSET MANAGEMENT U.K. HOLDINGS, INC
and
THE FIRST NATIONAL BANK OF BOSTON
as Collateral Agent
<PAGE>
SUPPLEMENTARY PLEDGE
AGREEMENT
between
UNITED ASSET MANAGEMENT U.K. HOLDINGS,
INC, a Delaware corporation having its
principal place of business and chief
executive office at 103 Springer Building,
3411 Silverside Road, Wilmington, Delaware
19810 (hereinafter referred to as the
COMPANY);
and
THE FIRST NATIONAL BANK OF BOSTON as
collateral agent for the Banks and the
Senior Noteholders referred to below
(the COLLATERAL AGENT)
CONSIDERING THAT:
(A) Pursuant to a Credit Agreement dated 18th May 1992 among INTER ALIA
United Asset Management Corporation, a Delaware corporation ("UAM"),
the financial institutions party thereto from time to time as BANKS
(the "BANKS"), the Agent and the Collateral Agent (acting in its
capacity as collateral agent for the Banks thereunder) as amended and
restated by (i) an Amended and Restated Credit Agreement dated as of
August 29, 1994 and (ii) a Second Amended and Restated Credit Agreement
dated as of 18th November 1994 and as further amended by a Letter
Agreement as of dated 20th January 1995 (together the "ORIGINAL CREDIT
AGREEMENT") and to be amended by the First Amendment and Consent
referred to below (the Original Credit Agreement as amended by the
First Amendment and Consent being referred to as the "CREDIT AGREEMENT"),
the Banks have, upon the terms and subject to the conditions contained
therein, agreed to make Loans to the Borrower.
(B) Pursuant to the Credit Agreement, the Collateral Agent acts as
collateral agent for the Banks thereunder and under the "SECURITY
DOCUMENTS" referred to therein.
(C) In addition to Loans made under the Original Credit Agreement, one or
more Banks may from time to time make Money Market Loans to the Company.
<PAGE>
-2-
(D) The Company has granted in favour of the Collateral Agent a Pledge
Agreement dated 17th November 1993 (the "PLEDGE AGREEMENT") to secure
its respective obligations to the Banks, the Agent and the Collateral
Agent under the Original Credit Agreement, and the other Loan Documents
and in respect of Money Market Loans.
(E) Pursuant to several Note Purchase Agreements dated as of 1st August 1995
(each, a "NOTE PURCHASE AGREEMENT", and collectively, the "NOTE
PURCHASE AGREEMENTS") between UAM and the purchasers parties thereto
(each a "SENIOR NOTEHOLDER" and collectively, the "SENIOR
NOTEHOLDERS"), UAM has agreed to issue, and the Senior Noteholders
have agreed to purchase, an aggregate US$150,000,000 in principal amount
of the Company's 7.12% Senior Secured Notes due August 2005 (the
"SENIOR NOTES").
(F) Pursuant to the UAM UK Holdings Guaranty (as defined in the Note
Purchase Agreements), the Company has agreed to guarantee all of the
Company's obligations to the Senior Noteholders under or in respect of
the Note Purchase Agreements, the Senior Notes and all documents executed
in connection therewith.
(G) As a condition precedent to their separate purchases of the Notes, the
Senior Noteholders have required, and the Company has agreed, that the
Pledge Agreement be amended to include, in addition to the Secured
Liabilities, as defined therein, the obligations of the Company under the
Note Purchase Agreements, the Senior Notes and the UAM U.K. Holdings
Guaranty (as defined in the Note Purchase Agreements) as secured
obligations thereunder.
(H) Each of the Banks and the Senior Noteholders have appointed the
Collateral Agent to act as Collateral Agent pursuant to the terms of
(i) a Collateral Agency and Intercreditor Agreement dated as of
1st August 1995 among the Collateral Agent, the Agent, the Banks and
each of the Senior Noteholders and (ii) the Security Documents.
NOW THEREFORE IT IS AGREED AS FOLLOWS:-
1. AMENDMENTS TO PLEDGE AGREEMENT
(1) The following definitions will be added to Clause 1(1) of the Pledge
Agreement in their proper alphabetical order:-
<PAGE>
-3-
"EVENT OF DEFAULT" means an Event of Default as defined in the Credit
Agreement or an Event of Default as defined in the Note Purchase
Agreements;
"INTERCREDITOR AGREEMENT" means the Collateral Agency and
Intercreditor Agreement dated as of 1st August 1995 among the Collateral
Agent, the Agent, the Banks and each of the Senior Noteholders;
"NOTE PURCHASE AGREEMENTS" means, collectively, each of the Note
Purchase Agreements dated as of 1st August 1995 by and between UAM and
the Purchasers named therein pursuant to which UAM has issued or will
issue up to US$150,000,000 in principal amount of its 7.12% Senior
Secured Notes due August 2005;
"SENIOR NOTEHOLDERS" means, collectively, each of the purchasers
parties to the Note Purchase Agreements from time to time, and their
respective successors and assignees;
"SENIOR NOTES" means UAM's 7.12% Senior Secured Notes due August
2005 issued pursuant to the Note Purchase Agreements.
(2) The definition of "SECURED LIABILITIES" in Clause 1(1) of the Pledge
Agreement shall be amended to read as follows:-
"SECURED LIABILITIES" means all indebtedness, obligations and
liabilities of the Company to the Collateral Agent, the Agent and the
Banks (or any of them) or the Senior Noteholders (or any of them)
whether now existing or hereafter incurred or created under, arising out
of or in connection with the Credit Agreement, any other Loan Document,
the Note Purchase Agreements, the Senior Notes, the Security Documents
(as defined in the Note Purchase Agreements) or any other agreement,
instrument or document relating to the foregoing, in each case whether
direct or indirect, absolute or contingent, joint, several or
independent, due or to become due or liquidated or unliquidated and
whether created directly or acquired by assignment or otherwise and
including, without limitation, all indebtedness, obligations and
liabilities of the Company hereunder, under the UAM U.K. Holdings
Guaranty (as defined in the Credit Agreement) and the UAM U.K. Holdings
Guaranty (as defined in the Note Purchase Agreements) and/or any deed
or document supplemental thereto.
<PAGE>
-4-
(3) The following clauses shall be inserted after Clause 1(6), as follows:-
(7) All references in this Deed to the Collateral Agent shall refer to
the Collateral Agent acting in such capacity for the rateable benefit
of all Secured Parties (as defined in the Intercreditor Agreement)
pursuant to the terms of the Intercreditor Agreement.
(8) Except where the context otherwise requires, or as otherwise
provided in the Credit Agreement, all references in this Deed to
"Banks" shall be deemed to be references to the "Secured Parties"
(as defined in the Intercreditor Agreement).
(9) If, in terms of this Deed, any amendment, consent, waiver or other
action requires the approval of "the Banks", the "Required Banks"
or the Collateral Agent, the action or approval required shall be
the action or approval of such Secured Parties as is required
pursuant to the terms of the Intercreditor Agreement.
(10) All references in this Deed to the "Loan Documents" shall include
the "Loan Documents" as defined in the Credit Agreement and the
"Security Documents" as such term is defined in the Note Purchase
Agreements. All references in this Deed to the "Agreement" shall mean
the Credit Agreement.
(11) All notices to be given to the Banks hereunder shall also be given
to the Senior Noteholders in the manner provided in Section 18 of
the Note Purchase Agreements.
(12) This Deed is subject to the terms of the Intercreditor Agreement.
In the event that any provision of this Deed conflicts with the
provisions of the Intercreditor Agreement, the provisions of the
Intercreditor Agreement shall prevail."
2. MISCELLANEOUS PROVISIONS
(1) Capitalised terms used herein (including the recitals hereto) have the
meanings ascribed to them in the Pledge Agreement as hereby amended except
as otherwise provided herein.
(2) All references in the Pledge Agreement to "this Deed" shall include a
reference to this Supplementary Pledge Agreement and to the Pledge
Agreement as amended and varied by this Supplementary Pledge Agreement.
<PAGE>
-5-
(3) The words "herein" and "hereunder" where used in the Pledge Agreement
shall include a reference to this Supplementary Pledge Agreement.
(4) References in this Supplementary Pledge Agreement to Clauses are to
Clauses of the Pledge Agreement (as hereby amended).
3. CONTINUATION
Save as amended and varied hereby, the Pledge Agreement is and remains
in full force and effect.
4. MISCELLANEOUS
The terms of Clauses 13 (Expenses), 14 (Notices), 15 (Governing Law) and
16 (Consent to Registration) of the Pledge Agreement shall apply to this
Supplementary Pledge Agreement IN WITNESS WHEREOF these presents
typewritten on this and the preceding four pages are executed as follows:-
SUBSCRIBED for and on behalf of
UNITED ASSET MANAGEMENT U.K. HOLDINGS, INC.
at
on
by
.......................................President, authorised signatory
before
.......................................Witness
.......................................Full name
.......................................Address
.......................................
.......................................Occupation
<PAGE>
SUPPLEMENTARY PLEDGE
AGREEMENT
between
UNITED ASSET MANAGEMENT U.K.
HOLDINGS, INC
and
THE FIRST NATIONAL BANK OF
BOSTON
as Collateral Agent
<PAGE>
EXHIBIT I
TO
FIRST AMENDMENT AND CONSENT
<PAGE>
EXHIBIT G TO
SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
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
<PAGE>
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, 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 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, 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, 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
<PAGE>
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.
3
<PAGE>
* [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 liability 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
4
<PAGE>
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 he 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,
5
<PAGE>
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.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Subordination Agreement as of the date first above written.
UNITED ASSET MANAGEMENT CORPORATION
By_________________________________
Norton H. Reamer, President
ABC ASSOCIATES, INC.
By_________________________________
Title
7
<PAGE>
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.
8
<PAGE>
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
9
<PAGE>
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 Norton H. Reamer, President
10
<PAGE>
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.
11
<PAGE>
EXHIBIT J TO
FIRST AMENDMENT
AND CONSENT
EXHIBIT D TO
AMENDED AND
RESTATED CREDIT AGREEMENT
HEITMAN PERMITTED INDEBTEDNESS AND RELATED EMCUMBRANCES
(1) Indebtedness of Heitman Financial Ltd. to LaSalle National Bank in the
principal sum not to exceed $12,000,000 pursuant to the terms of an
Amended and Restated Loan Agreement dated as of March 15, 1995
(the "LaSalle Loan Agreement"), by and between LaSalle National Bank
and Heitman Financial Ltd. and a Revolving Credit Note dated as of
March 15, 1995 of Heitman 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
Heitman Financial Ltd. to LaSalle National Bank by the following:
(a) Heitman/JMB Advisory Corporation and all of its subsidiary
corporations; (b) Heitman Financial Services Ltd. and all of its
subsidiary corporations; (c) Heitman Properties Ltd. and all of its
subsidiary corporations; (d) Heitman 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 Heitman 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 Heitman Properties Ltd.
and Bank of America Illinois and a Note dated March 5, 1992, as
amended, of Heitman Properties Ltd. payable to the order of Bank of
America Illinois in the principal sum of $5,000,000.
(4) Indebtedness of Heitman 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 "B of A Loan
Agreement"), by and between Heitman
<PAGE>
Properties Ltd. and Bank of America Illinois and a Second Amended and
Restated Note dated as of June 14, 1994 of Heitman 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 Heitman Financial Ltd. in favor
of Bank of America Illinois of the obligations of Heitman Properties Ltd.
to Bank of America Illinois.
(6) A Guaranty in favor of Bank of America Illinois of the obligations of
Heitman Properties Ltd. to Bank of America Illinois by all of the
subsidiary corporations of Heitman Properties Ltd. as required under the
terms of the B of A Loan Agreement.
(7) Indebtedness of Heitman Holdings Ltd. and Heitman 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
$1,890,000.
(8) Indebtedness of Heitman Holdings Ltd. and Heitman 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 Heitman Financial Ltd. in
favor of General Electric Capital Corporation of the obligations of
Heitman Financial Services Ltd. to General Electric Capital Corporation.
(10) Corporate Guaranty dated October 25, 1991 of Heitman Financial Ltd. in
favor of General Electric Capital Corporation of the obligations of
Heitman Holdings Ltd. to General Electric Capital Corporation.
(11) Corporate Guaranty dated October 25, 1991 of Heitman Advisory Corporation
in favor of General Electric Capital Corporation of the obligations of
Heitman Financial Services Ltd. to General Electric Capital Corporation.
(12) Corporation Guaranty dated October 25, 1991 of Heitman Advisory Corporation
in favor of General Electric Capital Corporation of the obligations of
Heitman Holdings Ltd. to General Electric Capital Corporation.
-2-
<PAGE>
SCHEDULE OF LIENS
(1) Aircraft Chattel Mortgage dated October 25, 1991 by and between
Heitman Holdings Ltd., as mortgagor, and General Electric
Capital Corporation, as mortgagee, in which the mortgagor
pledges and mortgages a 1983 Gates Learjet to the mortgagee
to secure a Promissory Note dated October 25, 1991 of Heitman
Holdings Ltd. and Heitman Financial Services Ltd. payable to
the order of General Electric Capital Corporation in the principal
sum of $1,890,000.
(2) Aircraft Chattel Mortgage dated October 25, 1991 by and between
Heitman Holdings Ltd., as mortgagor, and General Electric Capital
Corporation, as mortgagee, in which the mortgagor pledges and
mortgages a 1978 Gates Learjet to the mortgagee to secure a Promissory
Note dated October 25, 1991 of Heitman Holdings Ltd. and Heitman
Financial Services, Ltd. payable to the order of General Electric
Capital Corporation in the principal sum of $1,450,000.
(3) Collateral Assignment and Security Agreement (Assignment of Notes)
dated as of March 5, 1992 by Heitman Properties Ltd. in favor of
Bank of America Illinois which collaterally assigns all of the right,
title, and interest of Heitman Properties Ltd. in, to, and under
(i) a Note dated March 5, 1992 in the original principal amount of
$3,000,000 executed by Mayfair Joint Venture, an Illinois general
partnership, payable to the order of Heitman Properties Ltd., and
(ii) a Note dated March 5, 1992 in the original principal amount of
$2,500,000 executed by HC Partnership, an Illinois general partnership,
payable to the order of Heitman Properties Ltd.
-3-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This financial data schedule contains summary financial information extracted
from the Company's nine months ended September 30, 1995 consolidated Statement
of Income and the condensed Balance Sheet. This information is qualified in its
entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> SEP-30-1995
<CASH> 96,446
<SECURITIES> 0
<RECEIVABLES> 114,377
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 224,781
<PP&E> 57,799
<DEPRECIATION> 32,201
<TOTAL-ASSETS> 1,365,555<F1>
<CURRENT-LIABILITIES> 155,599
<BONDS> 674,216<F2>
<COMMON> 308
0
0
<OTHER-SE> 492,710
<TOTAL-LIABILITY-AND-EQUITY> 1,365,555
<SALES> 0
<TOTAL-REVENUES> 497,950
<CGS> 0
<TOTAL-COSTS> 311,762
<OTHER-EXPENSES> 68,432<F3>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 32,359
<INCOME-PRETAX> 85,397
<INCOME-TAX> 36,548
<INCOME-CONTINUING> 48,849
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 48,849
<EPS-PRIMARY> 1.57
<EPS-DILUTED> 1.56
<FN>
<F1>Includes $1,051,854,000 of cost assigned to contracts acquired, net.
<F2>Includes $158,500,000 in Senior notes payable and $515,716,000 in Subordinated
notes payable.
<F3>Represents amortization of cost assigned to contracts acquired for the nine
months ended September 30, 1995.
</FN>
</TABLE>
