EXECUTION COPY
SECOND AMENDMENT TO PARTNERSHIP AGREEMENT
AND CONVERSION AGREEMENT
This Second Amendment to the Limited Partnership Agreement of Chancery
Lane/GSC Investors L.P., dated as of December 12, 2000 (as heretofore amended,
the "Partnership Agreement"), and Conversion Agreement (this "Agreement") is
executed as of December 28, 2001. Capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned thereto in the
Partnership Agreement.
WHEREAS, pursuant to the terms of the Partnership Agreement, MIC
Investors, Inc. has been substituted for CLGI, Inc. as the General Partner;
WHEREAS, Sections 7.5 and 7.8 of the Partnership Agreement have been
previously amended to the effect set forth in the Consent and Amendment dated as
of November 14, 2001;
WHEREAS, the Class A Limited Partners and Xxxxx Corporation Limited, a
corporation organized under the laws of the Province of Ontario ("Xxxxx"),
desire to provide for the conversion of the Debentures that are held by the
Partnership;
WHEREAS, Section 5.4(b)(9) of the Partnership Agreement provides that
the Partnership shall not convert the Debentures without the written consent of
the Representative Class A Limited Partner so long as any Class A Limited
Partnership Interests are outstanding;
WHEREAS, as an inducement to the Partnership executing and delivering
this Agreement to effect the conversion of the Debentures prior to the time such
Debentures would have otherwise been converted by the Partnership, Xxxxx has
agreed to cause Xxxxx Holdings U.S.A. Inc., a Delaware corporation and a
wholly-owned subsidiary of Xxxxx, to issue the Subco Preferred Shares and has
agreed to deliver, at its option, the Contingent Cash Payments or the Additional
Shares (the "Contingent Consideration"), in each case as defined in and on the
terms and conditions set forth in the Conversion Inducement Agreement dated as
of the date hereof between Xxxxx and the Partnership (the "Conversion Inducement
Agreement");
WHEREAS, it is a condition to the issuance of the Subco Preferred
Shares and the agreement of Xxxxx to deliver the Contingent Consideration that
all of the Debentures be converted into Conversion Shares concurrently with such
issuance;
WHEREAS, in order to effect the conversion of the Debentures as
contemplated by the Conversion Inducement Agreement, the Partnership is entering
into this Agreement to provide for (i) certain amendments to the Partnership
Agreement, (ii) the exchange by certain Class B Limited Partners of their
Partnership Interests for their pro rata share of the Debentures (immediately
before the issuance of the Subco Preferred Shares to the Partnership), subject
to the conversion of such Debentures by such Class B Limited Partners into
Conversion Shares, (iii) the exchange by the Class A Limited Partners of their
Partnership Interests for their pro rata share of the Debentures and the Subco
Preferred Shares and the rights of the Partnership to the Contingent
Consideration,
subject to the conversion of such Debentures by the Class A
Limited Partners into Conversion Shares, and (iv) the conversion by the
Partnership of any undistributed portion of the Debentures into Conversion
Shares and the distribution of such Conversion Shares to the Partnership's
remaining Limited Partners through the liquidation of the Partnership following
such conversion in accordance with Sections 8.1 and 8.4 of the Partnership
Agreement;
WHEREAS, Section 9.5 of the Partnership Agreement provides that, except
as expressly provided in the Partnership Agreement, the Partnership Agreement
may be amended only by the General Partner and the Representative Class A
Limited Partner for so long as Class A Limited Partnership Interests are
outstanding; provided, that no such amendment shall adversely affect the rights
of any Limited Partner under the Partnership Agreement without the consent of
such affected Limited Partner;
WHEREAS, MIC Investors, Inc., as the General Partner, and Greenwich
Capital Partners II, L.P., as the Representative Class A Limited Partner, are
each executing this Agreement to effect such amendments, along with the holders
of a majority-in-interest of the Class B Limited Partnership Interests.
IT IS HEREBY AGREED AS FOLLOWS:
1. AMENDMENTS TO THE PARTNERSHIP AGREEMENT. MIC Investors, Inc. and
Greenwich Street Capital Partners II, L.P., as the Representative Class A
Limited Partner, are executing this Agreement to effect the following amendments
to the Partnership Agreement in accordance with Section 9.5 of the Partnership
Agreement. The following additional definitions shall be included:
"ADDITIONAL SHARES" has the meaning specified in the Conversion
Inducement Agreement.
"CLASS A REDEMPTION AMOUNT" means, with respect to the Class A Limited
Partnership Interests, the aggregate Class A Stock Redemption Amount, all
of the Initial Shares and the right to receive any Contingent Cash Payments
or Additional Shares with respect to the Initial Shares as contemplated by
the Conversion Inducement Agreement.
"CONTINGENT CASH PAYMENTS" has the meaning specified in the Conversion
Inducement Agreement.
"CONTINGENT CONSIDERATION" has the meaning specified in the Conversion
Inducement Agreement.
"CONVERSION INDUCEMENT AGREEMENT" means the Conversion Inducement
Agreement dated as of December 28, 2001 between Xxxxx and the Partnership
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"ESCROW AGREEMENT" means that certain Escrow Agreement to be entered
into on the date hereof between the Representative Class A Limited Partner
and the escrow agent therein.
"INITIAL SHARES" has the meaning specified in the Conversion
Inducement Agreement.
"SUBCO PREFERRED SHARES" has the meaning specified in the Conversion
Inducement Agreement.
2. EXCHANGE OF CERTAIN CLASS B LIMITED PARTNERSHIP INTERESTS.
(a) REQUEST. Each of DB Capital Investors, L.P. and BTIP/Xxxxxxxx
Xxxxxxx, as a Class B Limited Partner, by its execution of this Agreement,
hereby requests the Partnership to and the Partnership shall pursuant to
Section 4.6 of the Partnership Agreement, prior to acceptance of delivery
of the Subco Preferred Shares, deliver to each of such Class B Limited
Partners $9,000,000 principal amount of Debentures, representing each such
Class B Limited Partner's Percentage Interest in the Available Disposal
Amount of Debentures (after giving effect to the Class A Limited Partner
exchange described in Section 3 below) in exchange for all of each such
Class B Limited Partner's Partnership Interest.
(b) AGREEMENT TO CONVERT DEBENTURES. Each of DB Capital Investors,
L.P. and BTIP/Xxxxxxxx Xxxxxxx, as a Class B Limited Partner, by its
execution of this Agreement, hereby agrees to and shall convert any
Debentures received upon exchange of its Class B Limited Partnership
Interest as contemplated by Section 2(a) above in full into Conversion
Shares immediately following such exchange.
(c) REPRESENTATIVE CLASS A LIMITED PARTNER'S CONSENT. The
Representative Class A Limited Partner, by its execution of this Agreement,
hereby consents pursuant to Section 5.4(b)(9) to the requests of and
distributions of Debentures to each of DB Capital Investors, L.P. and
BTIP/Xxxxxxxx Xxxxxxx as contemplated by Section 2(a) above, provided such
Class B Partners convert the Debentures delivered to them in full into
Conversion Shares immediately following such exchange as contemplated by
Section 2(b) above.
3. CLASS A LIMITED PARTNER EXCHANGE/GSC CLASS B LIMITED PARTNER
EXCHANGE.
(a) EXCHANGE. Each Class A Limited Partner, by its execution of this
Agreement, hereby requires the Partnership to and the Partnership shall
pursuant to Section 4.4(d) of the Partnership Agreement exchange such Class
A Limited Partner's entire Class A Limited Partnership Interest for the
Class A Redemption Amount allocable to such Class A Limited Partner as set
forth in Exhibit A hereto, together with a cash payment for any accrued and
unpaid Class A Periodic Distributions in respect of such exchanged Class A
Limited Partnership Interest (less the amount of any accrued and unpaid
Class A Periodic Distributions
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associated with Debentures, if any, received in such exchange by such Class
A Limited Partner), which cash payment shall be as set forth in Exhibit A
hereto. Notwithstanding the foregoing, the Representative Class A Limited
Partner, by its execution of this Agreement, hereby requires the
Partnership to and the Partnership shall deposit or cause to be deposited
by Xxxxx, on behalf of the Representative Class A Limited Partner, that
principal amount of Debentures allocable to the Representative Class A
Limited Partner pursuant to the foregoing exchange that is required to be
deposited by the Representative Class A Limited Partner into the escrow as
described in Section 3(c) below. In addition, each Class A Limited Partner,
acting in its capacity as a Class B Limited Partner (in such capacity, a
"GSC Class B Limited Partner"), by its execution of this Agreement, hereby
requests the Partnership to and the Partnership shall pursuant to Section
4.6 of the Partnership Agreement deliver to GSC Class B Limited Partner its
allocable portion of $9,000,000 principal amount of Debentures as set forth
in Exhibit A hereto, representing its Percentage Interest in the Available
Disposal Amount of Debentures (after giving effect to the Class A
Limited Partner exchange described in the first sentence of this Section
3(a)) in exchange for all of such GSC Class B Limited Partner's Class B
Limited Partnership Interest).
(b) AGREEMENT TO CONVERT DEBENTURES. Each Class A Limited Partner
(other than the Representative Class A Limited Partner), and each GSC Class
B Limited Partner (other than the Representative Class A Limited Partner in
its capacity as a GSC Class B Limited Partner), by its execution of this
Agreement, hereby agrees to and shall convert any Debentures received by it
upon exchange of its Class A Limited Partnership Interest and its Class B
Limited Partnership Interest, as the case may be, in full into Conversion
Shares immediately following the exchange contemplated by Section 3(a)
above. The Representative Class A Limited Partner, in its capacities both
as a Class A Limited Partner and as a GSC Class B Limited Partner, by its
execution of this Agreement, shall convert $12,314,523 of the Debentures
received by it upon exchange of its Class A Limited Partnership Interest
and its Class B Limited Partnership Interest in full into Conversion Shares
immediately following the exchange contemplated by Section 3(a) above.
(c) AGREEMENT OF REPRESENTATIVE CLASS A LIMITED PARTNER TO DEPOSIT
REMAINING DEBENTURES IN ESCROW. The Representative Class A Limited Partner,
by its execution of this Agreement, hereby requires the Partnership to and
the Partnership shall deposit or cause to be deposited by Xxxxx with the
escrow agent under the Escrow Agreement dated as of the date of this
Agreement by and between the Representative Class A Limited Partner and
such escrow agent (the "Escrow Agreement"), $20,919,139 principal amount of
the Debentures that the Representative Class A Limited Partner otherwise
is entitled to receive upon exchange of its Class A Limited Partnership
Interest and its Class B Limited Partnership Interest pursuant to
Section 3(a) above (which deposited Debentures will be held in
accordance with the Escrow Agreement).
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4. CONVERSION BY PARTNERSHIP OF REMAINING DEBENTURES. As contemplated
by the Conversion Inducement Agreement, the General Partner hereby agrees
to and shall convert any Debentures held by the Partnership after the
exchanges contemplated by Sections 2 and 3 above in full into Conversion
Shares concurrently with the issuance of the Initial Shares under the
Conversion Inducement Agreement and shall distribute such Conversion Shares
to the remaining Limited Partners in accordance with the Partnership
Agreement as contemplated by Section 5 below.
5. DISSOLUTION OF THE PARTNERSHIP. Section 8.1(iii) of the Partnership
Agreement provides that the full conversion of all Debentures owned by the
Partnership into Conversion Shares is an event requiring the dissolution of
the Partnership. In connection with such dissolution, pursuant to Section
8.4(ii) of the Partnership Agreement, the Partnership hereby makes to the
Class B Partners and the General Partner an in-kind distribution of the
Conversion Shares received by the Partnership upon conversion of the
Debenture as provided in Section 4 above in proportion to their respective
Percentage Interests.
6. ASSIGNMENT OF CONVERSION INDUCEMENT AGREEMENT TO CLASS A LIMITED
PARTNERS. The Partnership hereby assigns, conveys, transfers and otherwise
disposes of all right, title and interest of the Partnership in, to and
under the Conversion Inducement Agreement with respect to the ownership and
exchange of the Subco Preferred Shares for the Initial Shares and the
Contingent Consideration to each Class A Limited Partner, all of which is
expressly permitted by such agreement and the Class A Limited Partners
accept and acknowledge such assignment and assume all of the Partnership's
covenants thereunder with respect to the ownership and exchange of the
Subco Preferred Shares for the Initial Shares and rights to the Contingent
Consideration (but not any of the Partnership's representations and
warranties or any other obligations of the Partnership related to such
representations and warranties or otherwise).
7. REGISTRATION RIGHTS AGREEMENT.
(a) Following the dissolution of the Partnership, the Class A
Limited Partners, taken together, and Chancery Lane MIC, L.P. (each, a
"Primary Investor") each shall have the right to utilize one of the
two rights of the Partnership to make a Demand Filing as defined in
and under the Registration Rights Agreement dated as of December 21,
2000 between Xxxxx and the Partnership (the "Existing Registration
Rights Agreement"). Promptly after any written request is made by
either Primary Investor to Xxxxx for a Demand Filing or a Piggyback
Filing (as defined in the Existing Registration Rights Agreement), the
Primary Investor making the request shall notify the other Primary
Investor and each of the other Limited Partners receiving Debentures
or Conversion Shares as contemplated by this Agreement. In addition,
except as provided above in this Section 7(a), the rights of such
other Limited Partners with respect to the Existing Registration
Rights Agreement shall be as set forth in Section 2.4 of the
Restricted Securities Agreement dated as of December 21, 2001 by and
among the Partnership, Chancery Lane MIC, L.P., the Class A Limited
Partners and the other investors named therein.
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(b) Following the dissolution of the Partnership, each of the
Limited Partners receiving Debentures or Conversion Shares as
contemplated by this Agreement shall have the right to utilize the
rights of the Partnership under Section 3 and any related provisions
of the Registration Rights Agreement dated as of December 28, 2001 by
and among Xxxxx, the Partnership and the Class A Limited Partners (as
the "GSC Investors" therein).
8. MISCELLANEOUS.
(a) LAWS GOVERNING. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to its principles of conflicts of laws.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the Partners and their respective
heirs, legal representatives, successors and assigns.
(c) SEVERABILITY. The provisions of this Agreement are intended
to be performed in accordance with, and only to the extent permitted
by, all applicable laws, ordinances, rules and regulations. If any
provision of this Agreement or the application thereof to any Person
or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Agreement and the application of
such provision to other Persons or circumstances shall not be affected
thereby, but rather shall be enforced to the greatest extent permitted
by law.
(d) CONSENT TO AMENDMENT TO PARTNERSHIP AGREEMENT. By their
execution hereof, the Partners executing this Agreement, constituting
the General Partner, all of the Class A Limited Partners and a
majority in interest of the Class B Limited Partners, agree to the
amendments to the Partnership Agreement contemplated hereby,
including, without limitation, the amendments to the Partnership
Agreement set forth in Section 1 of this Agreement.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this
Agreement and all of which together shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
GENERAL PARTNER:
MIC INVESTORS, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: President
CLASS A LIMITED PARTNERS:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investments II, L.L.C.,
General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
CLASS B LIMITED PARTNERS:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investments II, L.L.C.,
General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
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DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P.
its General Partner
By: DB Capital Partners, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
BTIP/XXXXXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Managing Director of
Xxxxxxxx Xxxxxxx & Company
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EXHIBIT A
Debenture Amounts, Cash Payments and Initial Share Amounts
GREENWICH STREET CAPITAL PARTNERS II, L.P.
Class A Redemption Amount: $ 25,193,260 Principal amount of Debentures
1,474,074 Subco Preferred Shares
$1,301,076.57 Cash payment
Debentures for Class B Partnership Interest:
$ 8,040,402 Principal amount of Debentures
TOTALS: $ 33,233,662 Principal amount of Debentures
GSCP OFFSHORE FUND, L.P.
Class A Redemption Amount: $ 525,225 Principal amount of Debentures
30,731 Subco Preferred Shares
$ 27,124.63 Cash payment
Debentures for Class B Partnership Interest:
$ 167,625 Principal amount of Debentures
TOTALS: $ 692,850 Principal amount of Debentures
GREENWICH FUND, L.P.
Class A Redemption Amount: $ 853,388 Principal amount of Debentures
49,932 Subco Preferred Shares
$ 44,072.25 Cash payment
Debentures for Class B Partnership Interest:
$ 272,358 Principal amount of Debentures
TOTALS: $ 1,125,746 Principal amount of Debentures
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XXXXXXXXX XXXXXX EMPLOYEES FUND, L.P.
Class A Redemption Amount: $ 1,503,962 Principal amount of Debentures
87,998 Subco Preferred Shares
$ 77,670.38 Cash payment
Debentures for Class B Partnership Interest:
$ 479,988 Principal amount of Debentures
TOTALS: $ 1,983,950 Principal amount of Debentures
TRV EXECUTIVE FUND, L.P.
Class A Redemption Amount: $ 124,165 Principal amount of Debentures
7,265 Subco Preferred Shares
$6,412.34 Cash payment
Debentures for Class B Partnership Interest:
$ 39,627 Principal amount of Debentures
TOTALS: $ 163,792 Principal amount of Debentures
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