EXHIBIT 3.12
AMENDMENT NO. 8 TO AGREEMENT OF LIMITED PARTNERSHIP
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This Amendment No. 8 to the Agreement of Limited Partnership of
Brylane, L.P. (this "Amendment") is made as of December 5, 1996 by and among
Brylane, L.P., a Delaware limited partnership (the "Partnership"), VGP
Corporation, a Delaware corporation ("FS General Partner"), VLP Corporation, a
Delaware corporation ("FS Limited Partner"), Lane Xxxxxx Direct Holding, Inc., a
Delaware corporation ("Lane Xxxxxx") (as successor in interest to Lane Xxxxxx
Direct, Inc., a Delaware corporation, Xxxxxx Direct, Inc., a Delaware
corporation, and Roaman's, Inc., a Delaware corporation), WearGuard Corporation,
a Delaware corporation ("WearGuard"), Xxxxxxxx'x, Inc., a Massachusetts
corporation ("Xxxxxxxx'x"), Leeway & Co., a Massachusetts partnership, as
nominee for the Long-Term Investment Trust, a trust governed by the laws of the
State of New York ("Leeway"), and NYNEX Master Trust, a trust governed by the
laws of the State of New York ("NYNEX"), with reference to the following
background.
R E C I T A L S:
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A. FS General Partner, FS Limited Partner, Lane Xxxxxx and WearGuard
are parties to that certain Agreement of Limited Partnership of the Partnership
made as of the 30th day of August, 1993 and amended by Amendment Xx. 0,
Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0, Amendment Xx. 0, Xxxxxxxxx Xx. 0, Xxxxxxxxx
Xx. 0 and Amendment No. 7 thereto (as amended, the "Partnership Agreement").
B. The Partnership has determined that it is in its best interest to
purchase substantially all of the assets (the "Acquisition") used in the
"Xxxxxxxx'x of Boston" catalog division (the "Division") of the TJX Companies,
Inc., a Delaware corporation ("TJX"), pursuant to the terms and conditions of
that certain Asset Purchase Agreement by and among TJX, Xxxxxxxx'x Inc., (a
wholly-owned subsidiary of TJX) and the Partnership dated October 18, 1996 (the
"Purchase Agreement").
C. In connection with the Purchase Agreement, the Partnership has
issued to Xxxxxxxx'x that certain Convertible Subordinated Note in the principal
amount of $20,000,000 due 2006 (the "Note"), which Note is convertible at any
time, in whole or in part, at the option of Xxxxxxxx'x into a total of 727,273
Units at a conversion price of $27.50 per Unit as part of the consideration paid
to Xxxxxxxx'x by the Partnership for the Acquisition, all pursuant to the terms
and conditions of the Purchase Agreement and the Note.
D. The FS General Partner and the FS Limited Partner are wholly-
owned subsidiaries of VP Holding Corporation, a Delaware corporation ("VP
Holding"), which is controlled by FS Equity Partners II, L.P., a California
limited partnership ("FSEP II"), FS Equity Partners III, L.P., a Delaware
limited partnership ("FSEP III") and FS Equity Partners
International, L.P., a Delaware limited partnership ("FSEP International", and
collectively with FSEP II and FSEP III, the "Xxxxxxx Xxxxxx Funds").
E. In connection with the Acquisition Leeway and NYNEX each desire
to become a Limited Partner and to subscribe for and acquire from the
Partnership 500,000 and 500,000 Units, respectively, for a purchase price of
$20.00 per Unit, all pursuant to the terms and conditions of that certain Unit
Subscription Agreement by and among the Partnership, FS General Partner, FS
Limited Partner, Leeway, and NYNEX dated as of the date hereof (the
"Subscription Agreement") and this Amendment.
F. In connection with the Acquisition, FS Limited Partner desires to
subscribe for and acquire from the Partnership 1,500,000 additional Units at a
price of $20.00 per Unit, all pursuant to the terms and conditions of the
Subscription Agreement and this Amendment.
G. In connection with the Acquisition, WearGuard desires to
subscribe for and acquire from the Partnership 66,445 additional Units for a
price of $20.00 per Unit, all pursuant to the terms and conditions of the
Subscription Agreement and this Amendment.
H. In connection with the Acquisition, VP Holding Corporation, a
Delaware corporation, has agreed to issue 75,000 shares of its Series A
Convertible Redeemable Preferred Stock (the "Preferred Stock") to certain former
employees of the Division (the "Preferred Stockholders") for a price of $20.00
per share, and VP Holding Corporation desires to contribute the proceeds of such
issuance to the Partnership.
I. The parties hereto have determined it is in their mutual best
interests to amend the Partnership Agreement in the manner set forth below in
connection with (i) the issuance of the Note to Xxxxxxxx'x, the election by
Xxxxxxxx'x to convert the Note into Units and the admission of Xxxxxxxx'x as a
Limited Partner of the Partnership upon such conversion, (ii) the issuance of
the Preferred Stock to the Preferred Stockholders, the conversion of the
Preferred Stock into common stock of VP Holding and any repurchase or redemption
of Preferred Stock or common stock from the Preferred Stockholders, (iii) the
issuance of 500,000 and 500,000 Units to Leeway and NYNEX, respectively, the
admission of Leeway and NYNEX as Limited Partners of the Partnership and (iv)
the issuance of 1,505,980 Units to FS Limited Partner, and (v) the issuance of
66,445 Units to WearGuard.
J. The parties hereto have determined it is in their mutual best
interests to subject the Note to transferability restrictions substantially
equivalent to the restrictions on the transferability of Units of Limited
Partners set forth in Sections 9.01, 9.03, 9.04 and 9.06 of the Partnership
Agreement.
K. Certain of the parties hereto have formed Brylane Inc., a
Delaware corporation ("Brylane Inc.") and entered into that certain
Incorporation and Exchange
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Agreement dated as of October 14, 1996 by and among the Xxxxxxx Xxxxxx Funds,
The Limited, Inc., a Delaware corporation ("The Limited"), Lane Xxxxxx,
WearGuard and Brylane Inc. (as amended from time to time, the "Incorporation
Agreement") in order to implement Article X of the Partnership Agreement.
L. In light of the Acquisition, the issuance by the Partnership of
the Note and the admission of Leeway and NYNEX as Limited Partners, the parties
to the Incorporation and Exchange Agreement, Xxxxxxxx'x, Leeway and NYNEX have
amended and restated the Incorporation by entering into that certain First
Amended and Restated Incorporation and Exchange Agreement dated as of December
5, 1996.
A G R E E M E N T:
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NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Each term used herein which is
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not defined herein, or otherwise specified, shall have the meaning assigned to
such term in the Partnership Agreement. Unless otherwise defined herein, the
term "Closing" shall mean the closing of the transactions contemplated by the
Purchase Agreement. Each reference to "hereof," "hereunder," "herein" and
"hereby" and each other similar reference and each reference to "this Agreement"
and each other similar reference contained in the Partnership Agreement shall
from and after the date hereof refer to the Partnership Agreement as amended
hereby.
SECTION 2. Issuance of Additional Units to FS Limited Partner and
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WearGuard. At the closing of the transactions contemplated by the Subscription
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Agreement, and subject to the terms and conditions thereof, the Partnership will
issue to (i) FS Limited Partner 1,505,980 additional Units at a price of $20.00
per Unit, as consideration for the $30,119,600 Capital Contribution made by FS
Limited Partner under the Subscription Agreement and (ii) WearGuard 66,445
additional Units at a price of $20.00 per Unit as consideration for the
$1,328,900 Contribution made by WearGuard under the Subscription Agreement.
To effectuate the foregoing, a new subsection (c) shall be added to
Section 3.02 as follows:
(c) As of the closing of that certain Unit Subscription Agreement
by and among the Partnership, VP Holding, the Xxxxxxx Xxxxxx Funds, FS
Limited Partner, Leeway & Co., a Massachusetts partnership, as nominee
for the Long-Term Investment Trust, a trust governed by the laws of
the State of New York
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("Leeway"), and NYNEX Master Trust, a trust governed by the laws of
the State of New York ("NYNEX") dated December 5, 1996, (the
"Subscription Agreement"), the Partnership will issue to FS Limited
Partner 1,500,000 Units, at a price of $20.00 per Unit, as
consideration for FS Limited Partner having made a Capital
Contribution pursuant to the Subscription Agreement of $30,000,000,
with respect to such Units. As a result of the foregoing, FS Limited
Partner will have a total of 6,509,167 Units and a 42.07% Percentage
Interest.
To effectuate the foregoing, a new subsection (d) shall be added to
Section 3.02 as follows:
(d) As of the closing of the Subscription Agreement, the
Partnership will issue to WearGuard 66,445 Units at a price of $20.00
per Unit as consideration for WearGuard having made a Capital
Contribution pursuant to the Subscription Agreement of $1,328,900 with
respect to such Units. As a result of the foregoing, WearGuard will
have a total of 399,778 Units and a 2.58% Percentage Interest.
SECTION 3. Admission of Each of Xxxxxxxx'x, Leeway and NYNEX as a
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Limited Partner and Amendment of Section 3.02 of the Partnership Agreement.
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(a) At the closing of the transactions contemplated under the
Subscription Agreement, and subject to the terms and conditions thereof, the
Partnership will issue to Leeway 500,000 Units at a price of $20.00 per Unit as
consideration for the $10,000,000 Capital Contribution made by Leeway with
respect to such Units. Upon the issuance of these Units, Leeway shall be
admitted as a Limited Partner of the Partnership. By its execution hereof, and
in consideration of the representations, covenants and agreements contained in
the Partnership Agreement, Leeway confirms and agrees that it shall be bound by
all of the provisions of the Partnership Agreement as amended by this Amendment
applicable to Limited Partners, and as amended from time to time.
To effectuate the foregoing, a new subsection (e) shall be added to
Section 3.02 as follows:
(e) As of the closing of the Subscription Agreement, Leeway shall
be admitted as a Limited Partner and the Partnership will issue
500,000 Units to Leeway at a price of $20.00 per Unit as consideration
for
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Leeway having made a Capital Contribution pursuant to the
Subscription Agreement of $10,000,000 with respect to such Units,
which amount shall be its initial Capital Account. As a result of the
foregoing, Leeway will have a 3.23% Percentage Interest.
(b) At the closing of the transactions contemplated under the
Subscription Agreement, and subject to the terms and conditions thereof, the
Partnership will issue to NYNEX 500,000 Units at a price of $20.00 per Unit as
consideration for the $10,000,000 Capital Contribution made by NYNEX with
respect to such Units. Upon the issuance of these Units, NYNEX shall be
admitted as a Limited Partner of the Partnership. By its execution hereof, and
in consideration of the representations, covenants and agreements contained in
the Partnership Agreement, NYNEX confirms and agrees that it shall be bound by
all of the provisions of the Partnership Agreement as amended by this Amendment
applicable to Limited Partners, and as amended from time to time.
To effectuate the foregoing, a new subsection (f) shall be added to
Section 3.02 as follows:
(f) As of the closing of the Subscription Agreement, NYNEX shall
be admitted as a Limited Partner and the Partnership will issue
500,000 Units to NYNEX at a price of $20.00 per Unit as consideration
for NYNEX having made a Capital Contribution pursuant to the
Subscription Agreement of $10,000,000 with respect to such Units,
which amount shall be its initial Capital Account. As a result of the
foregoing, NYNEX will have a 3.23% Percentage Interest.
(c) Upon Xxxxxxxx'x election to convert the Note into Units, and
subject to the terms and conditions of the Note, the Partnership will issue to
Xxxxxxxx'x the number of Units into which the Note shall have been duly and
validly converted. Upon such issuance of Units, Xxxxxxxx'x shall be admitted as
a Limited Partner of the Partnership. By its execution hereof, and in
consideration of the representations, covenants and agreements contained in the
Partnership Agreement, Xxxxxxxx'x confirms and agrees that it shall be bound by
all of the provisions of the Partnership Agreement as amended by this Amendment
applicable to Limited Partners, and as amended from time to time.
To effectuate the foregoing, a new subsection (g) shall be added to
Section 3.02 of the Partnership Agreement as follows:
(g) Upon the due and valid conversion of all or part of that
certain Convertible Subordinated Note in
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the principal amount of TWENTY MILLION DOLLARS ($20,000,000) issued by
the Partnership to Xxxxxxxx'x, a Massachusetts corporation
("Xxxxxxxx'x"), due 2006 (the "Note") in accordance with the terms of
the Note, Xxxxxxxx'x shall be admitted as a Limited Partner and the
Partnership will issue to Xxxxxxxx'x the number of Units into which
the converted portion shall have been duly and validly converted at a
conversion price of $27.50 per Unit (as adjusted pursuant to the terms
of the Note) up to 727,273 Units, and Xxxxxxxx'x shall be treated as
having received the principal amount of the Note converted with
respect to such Units and as having made a Capital Contribution in
such amount, which amount shall be its initial Capital Account, which
shall be increased from time to time in connection with further
conversions of the Note, if any.
SECTION 4. Amendment of Section 3.04(d) of the Partnership Agreement.
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The last sentence of Section 3.04(d) shall be amended and restated as follows:
The rights of a Partner under this Section 3.04(d) shall terminate (i)
with respect to Lane Xxxxxx, on the one hand, and the FS General
Partner and the FS Limited Partner, on the other hand, at such time as
Lane Xxxxxx or the FS General Partner and the FS Limited Partner (as a
group), as the case may be, shall have sold at least one-half of the
Units held by such entity (in the case of Lane Xxxxxx) or such group
(in the case of the FS Limited Partner and the FS General Partner) as
of the closing ("Closing") of the transactions contemplated by that
certain Asset Purchase Agreement by and among the TJX Companies, Inc.,
a Delaware corporation ("TJX"), Xxxxxxxx'x and the Partnership dated
October 18, 1996 (the "Purchase Agreement") and (ii) with respect to
any other Partner, at such time as such Partner's Percentage Interest
shall be less than 10%; provided that the rights of each of WearGuard
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and Xxxxxxxx'x under this Section 3.04(d) shall not terminate until
the Percentage Interest of WearGuard or Xxxxxxxx'x, as applicable,
shall be less than 3% and 3%, respectively; provided further, that the
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rights of Leeway or NYNEX, as applicable, under this Section 3.04(d)
shall not terminate until Leeway or NYNEX, as applicable, shall hold
less than
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50% of the Units it held as of the date of the Closing; and
provided further that Units retired in accordance with Section 8.09
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shall be excluded from any determination under clause (i) of this
sentence.
SECTION 5. Amendment of Section 6.01 of the Partnership Agreement. A
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new subsection (d) shall be added to Section 6.01 of the Partnership Agreement
as follows:
(d) Notwithstanding anything to the contrary contained in this
Section 6.01, the Partners expressly agree that the provisions of
Section 6.01(a) and 6.01(b) shall not apply to Xxxxxxxx'x, TJX,
Leeway, NYNEX or any of their respective Subsidiaries or Affiliates.
SECTION 6. Amendment of Section 7.04 of the Partnership Agreement.
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(a) A new clause shall be added to the end of subsection (a) of
Section 7.04 of the Partnership Agreement as follows:
provided that each of WearGuard and Xxxxxxxx'x, regardless of its
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Percentage Interest, shall have rights under this Section 7.04(a),
which rights shall terminate when the Percentage Interest of each of
WearGuard and Xxxxxxxx'x, as applicable, shall be less than 1.5% and
3.0%, respectively.
(b) A new subsection (f) shall be added to the end of Section
7.04 of the Partnership Agreement as follows:
(f) Notwithstanding anything contained in this Section 7.04 to
the contrary, each of Leeway and NYNEX, regardless of its Percentage
Interest, shall have rights under Sections 7.04(a), 7.04(b) and
7.04(d), which rights shall terminate when each of Leeway and NYNEX,
as applicable, shall hold less than 50% of the Units it held as of the
date of the Closing.
SECTION 7. Amendment of subsection (d) to Section 8.03 of the
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Partnership Agreement. Subsection 8.03(d) of the Partnership Agreement shall be
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amended and restated as follows:
(d) Each of WearGuard, Leeway and NYNEX is entitled to receive
all notices of: (i) the time
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and place of any regularly scheduled or specially called meetings of
the Board or (ii) the time and place of any regularly scheduled or
specially called meetings of any committee of the Board. Additionally,
all information disseminated to the Board pertaining to any Board
meeting or to any unanimous written consent of the Board shall be
distributed to each of WearGuard, Leeway and NYNEX at the same time
and in the same manner as the distribution of such information to all
other members of the Board. Further, each of WearGuard, Leeway and
NYNEX shall be entitled to have one representative attend and
participate in all in-person and telephonic meetings of the Board and
all in-person and telephonic meetings of any committee of the Board,
in all cases as a nonvoting participant; provided, that this right
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shall not prohibit the holding of any meeting as long as each of
WearGuard, Leeway and NYNEX has been provided with the notice referred
to in the first sentence of this Section 8.03(d). The rights of
WearGuard pursuant to this Section 8.03(d) shall terminate when
WearGuard has sold more than 175,000 Units. The rights of Leeway or
NYNEX, as applicable, pursuant to this Section 8.03(d) shall terminate
when each of Leeway or NYNEX, as applicable, shall hold less than 50%
of the Units it held as of the date of the Closing. The rights granted
to each of WearGuard, Leeway and NYNEX under this Section 8.03(d) or
Section 7.04 shall not entitle WearGuard, Leeway nor NYNEX to receive
or have any access to any material non-public information concerning
the trademarks licensed under the Trademark License Agreement at any
time when WearGuard, ARAMARK, Leeway or NYNEX, or any of their
respective Affiliates, compete with any retail or catalogue business
conducted by The Limited or any of its Affiliates as of the Closing.
SECTION 8. Addition of Section 8.10 and Section 8.11 of the
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Partnership Agreement. A new Section 8.10 shall be added to the Partnership
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Agreement as follows:
8.10 Actions Related to VP Holding Preferred Stock.
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(a) Upon the sale of 75,000 shares of VP Holding Series A
Convertible Redeemable Preferred Stock (the "Preferred Stock") to
certain former employees
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of "Xxxxxxxx'x of Boston" catalog division of TJX (the "Preferred
Stockholders") at a price of $20.00 per share, VP Holding shall
contribute to the Partnership (through FS General Partner or FS
Limited Partner, as the case may be) the aggregate $1,500,000 proceeds
of such sale.
(b) At the request of VP Holding, the Partnership shall
distribute funds to VP Holding (through FS General Partner or FS
Limited Partner) (at the rate of $20.00 (as adjusted for stock
dividends or splits) per share redeemed or repurchased) in order to
(i) permit VP Holding to redeem any shares of Preferred Stock as
required or permitted by the terms of the Preferred Stock or (ii)
repurchase any shares of Preferred Stock or common stock of VP Holding
from the Preferred Stockholders pursuant to a right of first refusal.
Prior to the Initial Public Offering, in the event VP Holding is
required to redeem shares under the terms of the Preferred Stock the
Partnership agrees for the benefit of the Preferred Stockholders that
it shall distribute the required funds (up to $20.00 per share of
Preferred Stock) to VP Holding to make such redemption. In the event
that the Preferred Stock is exchanged for the preferred stock of
another corporation, prior to such corporation's initial public
offering, in the event it is required to redeem shares of such
preferred stock the Partnership agrees for the benefit of the
Preferred Stockholders that it shall distribute the required funds to
make such redemption.
(c) Immediately upon any conversion of shares of Preferred Stock
into common stock of VP Holding pursuant to the terms of the Preferred
Stock, the Partnership shall issue to FS General Partner or the FS
Limited Partner, as the case may be, a number of Units equal to the
number of shares of common stock of VP Holding issued upon such
conversion (based on a ratio of one (1) share of common stock of VP
Holding to one (1) Unit); provided that the number of Units to be
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issued pursuant to this Section 8.10(c) shall be adjusted as
appropriate to reflect any stock dividends, stock splits, reverse
stock splits or similar actions with respect to the capital stock of
VP Holding or analogous actions with respect to Units. Upon any
distribution to FS General
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Partner or FS Limited Partner referred to in clause (b)(ii) above with
respect to a repurchase of common stock of VP Holding, the Partnership
shall retire a number of Units held by the FS General Partner or FS
Limited Partner, as the case may be, equal to the number of shares of
common stock of VP Holding repurchased with the funds so distributed;
provided that the number of Units to be retired shall be adjusted as
appropriate to reflect any stock dividends, stock splits, reverse
stock splits or similar actions with respect to the capital stock of
VP Holding or analogous actions with respect to Units.
(d) No issuance of Units in accordance with Section 8.10 shall
cause the Partners to lose any rights set forth in Section 3.04, 7.04,
8.01, 8.02, 8.03 or Article IX where such party would have retained
such rights but for such issuance of Units.
A new Section 8.11 shall be added to the Partnership Agreement as
follows:
8.11 ERISA Matters.
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If the Partnership (a) has knowledge that any assets of the
Partnership will be treated as "plan assets" (within the meaning of
Department of Labor regulations 29 CFR (S) 25103-101), (b) proposes to
enter into a transaction which, to the Partnership's knowledge, could
result in the Partnership's assets (or any portion thereof) being
treated as plan assets, or (c) has knowledge that the continued
ownership of the Units by NYNEX or Leeway constitutes or results in
any non-exempt prohibited transaction under the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or the Internal
Revenue Code of 1986, as amended (the "Code"), or any other violation
under ERISA, the Partnership shall consult with Leeway and NYNEX and
together endeavor to take such commercially reasonable actions or
structure such transaction in a commercially reasonable manner which
would avoid such treatment; provided, however, that the Partnership
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shall have no obligation to take any action or structure any
transaction to avoid such treatment if the Partnership determines, in
its sole discretion, that it is not in the interests of the
Partnership to do so.
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Notwithstanding the foregoing, if the Partnership has knowledge that
the Partnership's assets will be treated as plan assets or that the
ownership of the Units by NYNEX or Leeway constitutes or results in
any non-exempt prohibited transactions under ERISA or the Code, or any
other violation under ERISA, the Partnership shall promptly advise
Leeway and NYNEX of such fact.
SECTION 9. Amendment of Sections 9.03, 9.05, 9.06 and 9.08 of the
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Partnership Agreement.
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(a) A new sentence shall be added to the end of Section 9.03(a)
as follows:
Notwithstanding anything to the contrary herein, (A) Leeway may
Transfer all or any portion of its Units to a successor trust or plan
(each, a "Leeway Assignee," and collectively with Leeway, the "Leeway
Group") in connection with a reorganization of the Long-Term
Investment Trust (or a constituent trust or plan or the sponsor of a
constituent trust or plan), provided that (i) such Transfer shall not
materially adversely affect the legal or tax status of the
Partnership, (ii) such Transfer does not result in an increase of more
than one beneficial owner of Units for purposes of Section 3(C)(1) of
the Investment Company Act of 1940 or an increase of more than one
Partner of the Partnership for purposes of Treasury Regulation Section
1.7704-1(h), subject to Sections 9.01 and 9.06 and (B) NYNEX may
transfer all of its Units to a successor trust or a plan as a result
of, or in connection with, the consummation of the proposed merger of
Xxxx Atlantic and NYNEX Corporation, subject to Sections 9.01 and
9.06.
(b) A new sentence shall be added to the end of Section 9.05(e)
as follows:
After the Drag Along/Tag Along Date, notwithstanding anything
contained in this Section 9.05(e) to the contrary, in the event the
Eligible Purchasers collectively elect to purchase all of the Offered
Units with respect to any Offer Notice delivered by the FS General
Partner or the FS Limited Partner ("FS Offered Units"), each of
WearGuard, Leeway and NYNEX shall nonetheless have a Tag Along Right
with respect to such FS Offered Units
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and the Eligible Purchasers shall be obligated, with respect to the
exercise by WearGuard, Leeway and/or NYNEX of its Tag Along Right, to
purchase the Units of WearGuard, Leeway or NYNEX, as the case may be.
(c) A new sentence shall be added to the end of Section 9.06(f)
of the Partnership Agreement as follows:
In the event WearGuard, Leeway or NYNEX is required to Transfer their
Units as a result of a Partner exercising its rights under Section
9.05(b), none of WearGuard, Leeway or NYNEX shall be required to make
any representation or warranty in connection with such Transfer other
than as to such Person's valid ownership of its Units, free and clear
of all liens and encumbrances other than those arising under
applicable securities laws, and such Person's authority, power and
right to enter into and consummate such Transfer without violating any
other agreement or instrument.
(d) The last sentence of Section 9.08 of the Partnership
Agreement shall be amended and restated as follows:
Notwithstanding anything to the contrary contained in this Section
9.08, each of WearGuard, Leeway, NYNEX and Xxxxxxxx'x, regardless of
the Percentage Interest any of them then holds in the Partnership,
shall at all times have the Tag Along Right set forth in Section
9.05(e) available to Partners with a Percentage Interest of 10% or
more as provided in clause (iii) of this Section 9.08. The
Partnership shall provide 40 days notice to Xxxxxxxx'x of any
transaction in which the Tag Along Rights set forth in Section 9.05(e)
may be exercised by holders of Units.
SECTION 10. Restrictions on Transferability of the Note. A new
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subsection (g) shall be added to Section 9.06 of Partnership Agreement as
follows:
(g) Notwithstanding anything to the contrary contained in this
Article IX, Xxxxxxxx'x, the Note and any Transferee of the Note (or
any portion thereof) shall be subject to the transferability
restrictions, terms and conditions set forth in Sections 9.01, 9.03,
9.04 and 9.06 hereof applicable to Limited Partners as if Xxxxxxxx'x
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were a Limited Partner and the Note were Units. In applying the
provisions of such Sections to Xxxxxxxx'x, the Note (or portion
thereof) and any Transferee of the Note (or portion thereof), (i) all
terms applicable to Limited Partners in such Sections shall be
applicable to Xxxxxxxx'x and any Transferee of the Note (or portion
thereof), (ii) the term "Unit" or "Units" shall be replaced by the
term "Note" or "Note Portion," as the context requires, (iii) the term
"Offered Units" shall be replaced by the term "Offered Note Portion,"
and (iv) the term "Remaining Offered Units" shall be replaced by the
term "Remaining Note Portion." As a condition precedent to any
Transfer of the Note (or portion thereof), each Transferee (if not
already a party hereto) shall execute and deliver to each party hereto
an instrument or instruments substantially in the form of Attachment A
or otherwise reasonably satisfactory to such parties confirming that
the Transferee agrees to be bound by the terms of (i) this Agreement
applicable to the transferor of the Note (or portion thereof) to be
Transferred and (ii) that certain First Amended and Restated
Incorporation and Exchange Agreement dated as of December 9, 1996 by
and among FS Equity Partners II, L.P., a California limited
partnership, FS Equity Partners III, L.P., a Delaware limited
partnership, FS Equity Partners International, L.P., a Delaware
limited partnership, Lane Xxxxxx Direct Holding, Inc., a Delaware
corporation, The Limited, Inc., a Delaware corporation, Xxxxxxxx'x,
Leeway & Co. as nominee for the Long-Term Investment Trust, and NYNEX
Master Trust and Brylane Inc., a Delaware corporation (as amended from
time to time, the "Incorporation Agreement"), as such Incorporation
Agreement may be amended from time to time (including the exhibits
thereto), in the same manner and to the extent applicable to the
transferor of the Note. The provisions of this subsection 9.06(g)
shall not apply to any Transfer of the Note to a controlled Affiliate
of TJX, provided that such controlled Affiliate Transferee, prior to
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such Transfer, agrees in writing to be bound by all of the provisions
of (i) the Partnership Agreement, as amended from time to time, and
(ii) the Incorporation Agreement (including the exhibits thereto).
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SECTION 11. Amendment of Section 10.01(b) of the Partnership
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Agreement. The last sentence of Section 10.01(b) of the Partnership Agreement
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shall be amended by adding the following language of the end thereof and a new
sentence shall be added as follows:
and none of Xxxxxxxx'x, WearGuard, Leeway nor NYNEX shall be required
to act in accordance with clauses (i) and (ii) above if the FS General
Partner, the FS Limited Partner and the Xxxxxxx Xxxxxx Funds shall
have determined, in their sole discretion, that the FS General
Partner, the FS Limited Partner and the Xxxxxxx Xxxxxx Funds are not
required to and do not act in accordance with clauses (i) and (ii)
above. Notwithstanding anything contained in this Article X to the
contrary, the FS General Partner will consult, discuss and analyze
with each of Xxxxxxxx'x, Leeway and NYNEX prior to finalizing the
structure of any transaction (each, a "Different Transaction")
contemplated under this Section 10.01(b) (other than the transaction
contemplated in the Incorporation Agreement) in order to assess the
tax impact such Different Transaction would have on each of
Xxxxxxxx'x, Leeway and NYNEX in an effort to avoid any material
detriment to the tax position of Xxxxxxxx'x, Leeway or NYNEX;
provided, however, that in the event that any advice, request or
-------- -------
desire of either Xxxxxxxx'x, Leeway or NYNEX with respect to the
structure of any such Different Transaction is for any reason not
reflected in or accommodated by the final structure (approved by the
FS General Partner and Lane Xxxxxx) of such Different Transaction
contemplated under this Section 10.01(b), each of Xxxxxxxx'x, Leeway
and NYNEX shall nonetheless be bound by the provisions of this Article
X.
SECTION 12. Amendment of Section 10.01(d) of the Partnership
------------------------------------------------
Agreement. Section 10.01(d) of the Partnership Agreement shall be amended and
---------
restated as follows:
(d) If the Xxxxxxx Xxxxxx Funds or any Affiliate or Affiliates of
the Xxxxxxx Xxxxxx Funds holding stock of Newco (the "FS Stockholder")
elect to distribute any or all of their shares of Newco in the Initial
Public Offering, each of (i) the Affiliate or Affiliates of The
Limited holding stock of Newco (the "Limited Stockholder"), (ii)
WearGuard, (iii) Xxxxxxxx'x,
14
(iv) Leeway and (v) NYNEX shall have a right to distribute a pro rata
portion (based on the proportion that the shares the FS Stockholder
seeks to distribute in the Initial Public Offering bears to the total
shares then held by the FS Stockholder) of its or their shares of
Newco in such Initial Public Offering.
SECTION 13. Amendment of Section 10.02 of the Partnership Agreement.
-------------------------------------------------------
Clause (ii) of Section 10.02 of the Partnership Agreement shall be amended and
restated as follows:
(ii) the FS Stockholder, the Limited Stockholder, WearGuard, Leeway,
NYNEX and Xxxxxxxx'x shall enter into a Registration Rights Agreement
substantially in the form of Exhibit 4.03A to the Incorporation
-------------
Agreement (the "Registration Rights Agreement") and a Stockholders
Agreement substantially in the form of Exhibit 4.03B to the
-------------
Incorporation Agreement (the "Stockholders Agreement"), it being
understood and agreed that there will be no restrictions on, or rights
with respect to transfers of, the Note or equity interests in Newco,
except as set forth in such Registration Rights Agreement and
Stockholders Agreement.
SECTION 14. Amendment of Section 13.02 of the Partnership Agreement.
-------------------------------------------------------
A new sentence shall be added to the end of Section 13.02 of the Partnership
Agreement as follows:
Notwithstanding anything to the contrary contained in this Section
13.02, any amendment to this Agreement which would adversely affect
the specific rights of Leeway, NYNEX or Xxxxxxxx'x as set forth in
this Agreement, the Note, the Registration Rights Agreement, the
Incorporation Agreement or the Stockholders Agreement shall require
the prior written consent of Leeway, NYNEX or Xxxxxxxx'x,
respectively, with regard to any such amendment; provided, however,
--------
that any issuance of Units in accordance with the terms of this
Agreement and grant of additional rights to the holder of such Units
in connection therewith is not prohibited by the foregoing (if not
prohibited by this Agreement, the Note, the Registration Rights
Agreement, the Incorporation Agreement or the Stockholders Agreement);
and provided
--------
15
further that with respect to any grant of additional rights hereunder
-------
or in any other agreement covering the matters contemplated by this
Agreement, Leeway and NYNEX shall be treated equally.
SECTION 15. Change of Measurement Date for Termination of Rights.
----------------------------------------------------
Notwithstanding anything contained herein or in the Partnership Agreement to the
contrary, the parties hereto hereby agree that in applying the provisions of the
Partnership Agreement where the rights of a Partner or group terminate if such
party has sold more than a certain number or percentage of the Units it held "as
of the date hereof," as of "August 30, 1993," as of "the date of the Partnership
Agreement" or as of dates similarly phrased, the date "August 30, 1993" shall be
replaced by the date of the Closing and the phrases "as of the date hereof," "as
of the date of the Partnership Agreement" and all similar phrases shall be
replaced by the phrase "as of the Closing."
SECTION 16. No Violation of Section 6.01 or Section 3.3(b). All
----------------------------------------------
parties hereto hereby expressly consent to the purchase of substantially all of
the assets of the Division and agree and acknowledge that such purchase and
operation of the business of the Division substantially as the Division is
operated as of the date hereof will not violate Section 6.01 of the Partnership
Agreement and will not violate Section 3.3(b) of the Stockholders Agreement.
The Limited also expressly approves and consents to all Sections hereof.
SECTION 17. Waiver of Rights Under Section 3.04(d); Tag Along Rights.
--------------------------------------------------------
(a) Each of The Limited and Lane Xxxxxx hereby expressly waives its
rights under Section 3.04(d) of the Partnership Agreement with respect to (i)
the Units issued to FS Limited Partner, WearGuard, Leeway and NYNEX pursuant to
the Subscription Agreement and Sections 2 and 3 hereof, (ii) to the Units that
may be issued to Xxxxxxxx'x upon conversion of the Note pursuant to Section 3
hereof and (iii) Units that may be issued to FS General Partner and/or FS
Limited Partner upon conversion of the VP Holding Preferred Stock as
contemplated by Section 8 hereof.
(b) Each of the parties hereto and The Limited agrees and acknowledges
that the Xxxxxxx Xxxxxx Funds have granted to (i) certain employees of the
Partnership and/or its subsidiaries, (ii) Leeway and (iii) NYNEX Trust certain
tag along rights ("FS Tag Along Rights") with respect to the Units indirectly
held by the Xxxxxxx Xxxxxx Funds, which FS Tag Along Rights are exercisable
prior to the Tag Along/Drag Along Date. In the event of a transfer of Units by
the FS General Partner and/or the FS Limited Partner (directly or indirectly)
prior to the Tag Along/Drag Along Date with respect to which Lane Xxxxxx desires
to exercise its Right of First Offer set forth in Section 9.04 or the Limited's
Right of First Refusal in Section 9.04, or their Tag Along Right set forth in
Section 9.05(e) of the Partnership Agreement, then the number of Units sold
(directly or indirectly) by each of
16
FS General Partner, FS Limited Partner, Lane Xxxxxx or WearGuard, as the case
may be, shall be reduced to accommodate the FS Tag Along Rights.
SECTION 18. Consent by Brylane Inc. and the Xxxxxxx Xxxxxx Funds.
----------------------------------------------------
Brylane Inc. and the Xxxxxxx Xxxxxx Funds hereby expressly approve and consent
to all Sections of this Amendment.
SECTION 19. Assignment of Rights and Obligations. Notwithstanding
------------------------------------
anything contained herein or in the Partnership Agreement to the contrary, each
of WearGuard, Leeway and NYNEX may (i) assign their rights under Section 9.05
and Section 9.06(f) of the Partnership Agreement to one purchaser of more than
50% of the Units then held by such Person (or, in the case of the Leeway Group,
to one purchaser of more than 50% of the Units then collectively held by the
Leeway Group) and (ii) Transfer its Units to a controlled Affiliate of
WearGuard, Leeway and NYNEX, as the case may be, subject to Sections 9.01 and
9.06 (but not subject to Sections 9.03, 9.04 and 9.05) of the Partnership
Agreement, provided that, prior to any such assignment or Transfer, each such
assignee Person or controlled Affiliate transferee, as the case may be, shall
enter into a written agreement to be bound by the terms and conditions of this
Amendment, the Partnership Agreement and the Incorporation Agreement (including
all exhibits thereto) applicable to WearGuard, Leeway and NYNEX, as the case may
be, and provided, further, that their respective rights, if any, under Sections
-------- -------
3.04(d), 7.04 and 8.03(d) may not be assigned.
SECTION 20. Transaction Agreement. Each of Xxxxxxxx'x, WearGuard,
---------------------
Leeway and NYNEX is hereby expressly made a third party beneficiary to Section
7.04 of the Transaction Agreement.
SECTION 21. Governing Law. This Amendment and the rights of the
-------------
parties hereunder shall be interpreted in accordance with the laws of the State
of Delaware, and all rights and remedies shall be governed by such laws without
regard to principles of conflicts of laws.
SECTION 22. Effectiveness. This Amendment shall become effective, if
-------------
at all, only on the date of Closing (as such term is defined in the Purchase
Agreement).
SECTION 23. Counterparts. This Amendment may be executed in
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
17
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
BRYLANE, L.P.,
a Delaware limited partnership
By: VGP Corporation
Its General Partner
By: /s/ Xxxx X. Xxxx
-----------------------
Name: Xxxx X. Xxxx
---------------
Title: President
--------------
VGP CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
-----------------------
Name: Xxxx X. Xxxx
---------------
Title: President
--------------
VLP CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
-------------------------
Title: President
------------------------
LANE XXXXXX DIRECT, INC.,
a Delaware corporation
By: LANE XXXXXX DIRECT HOLDING, INC.,
a Delaware corporation,
Its: Successor in Interest
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------
Title: Vice President
------------------------
18
WEARGUARD CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
-------------------------
Title: Treasurer
------------------------
XXXXXXXX'X, INC.,
a Massachusetts corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------
Title: Vice President
------------------------
LEEWAY & CO.,
as nominee for the Long-Term Investment Trust
By: State Street Bank and Trust, as Trustee for
the Long-Term Investment Trust
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
--------------------------
Title: Assistant Vice President
-------------------------
19
MASTER NYNEX TRUST
By: Mellon Bank, N.A., as Trustee for NYNEX
Master Trust, as directed by NYNEX
Corporation
By: /s/
--------------------------------
Name:
-------------------------
Title: Vice President
------------------------
For Purposes of Sections 16 and 17 only:
THE LIMITED,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: Vice President of Finance
--------------------------
For Purposes of Section 18 only:
FS EQUITY PARTNERS II, L.P.
By: Xxxxxxx Xxxxxx & Co.
Its: General Partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: Vice President
------------------------
20
FS EQUITY PARTNERS III, L.P.
By: FS Capital Partners, L.P.
Its: General Partner
By: FS Holdings, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: Vice President
------------------------
FS EQUITY PARTNERS INTERNATIONAL,
L.P.
By: FS&Co. International, L.P.
Its: General Partner
By: FS International Holdings, Limited
Its: General Partner
By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: Vice President
------------------------
21