Exhibit 4
SECOND AMENDMENT
TO
OPTION AND VOTING AGREEMENT
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THIS SECOND AMENDMENT TO OPTION AND VOTIG AGREEMENT (this "Second
Amendment") is made effective as of the 6th day of September, 2001, by and among
NOMURA ASSET CAPITAL CORPORATION, a Delaware corporation ("NOMURA"), PARTNERSHIP
ACQUISITION TRUST V, a Delaware business trust (the "TRUST"), and MEI HOLDINGS,
L.P., a Delaware limited partnership ("MEIH").
RECITALS
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A. On March 30, 2001, the parties hereto entered into that certain
Option and Voting Agreement (the "Original Agteement").
B. On or about August 23, 2001, the parties hereto entered into that
certain First Amendment to Option and Voting Agrement dated as of August 23,
2001 (the "First Amendment").
C. The First Amendment contemplated that the parties would enter into
this Second Amendment in connection with the transactions contemplated by the
First Amendment.
D. The parties hereto desire to enter into this Second Amendment to
amend certain provisions of the Original Agreement, on the terms and conditions
set forth herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the covenants and agreements set forth
in this Second Amendment, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Second Amendment hereby agree as follows:
Section 1. Definitions. Capitalized terms ued and not otherwise defined
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herein shall have respective meanings ascribed thereto in the Original
Agreement.
Section 2. Amendment to the Original Agreement.
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(a) In the event that the Option is exercised on or prior to September 30,
2001 by MEIH and/or its designee (the parties agreeing that, pursuant to Section
5.5 of the Original Agreement, MEIH has the right to transfer or assign the
Option in whole or in part to its designee) in accordance with the provisions of
the Original Agreement and the First Amendment, the from and after the date on
which the Option is exercised, the Trust and Nomura shall no longer have any
rights under the provisions of (1) Section 1.1(b) (relating to an obligation to
transfer Common Stock to the Trust under certain circumstances), Section 1.5
(relaing to the cancellation or conversion of Preferred Stock), Section 2.1
(relaing to designation of board members) or Section 2.2 (relating to the
expenses of board members) of the Original Agreement, which provisions shall no
longer be applicable or of any further force or effect, or (ii) Section 2.2(a)
(relating to rights to require additional purchases of Series AA Preferred
Stock, as such term is defined in the Recapitalization Agreement), Section
2.2(d) (relating to purchases of additional Series AA Preferred Stock), Section
3.5 (relating to preemptive rights), Section 4.2 (relaing to pruchases of
additional Series CC Preferred Stock, as such term is defined in the
Recapitalization Agreement), Section 9.1(a)(relating to the right to receive
working capital statements of the Copany in certain circumstances), Section
9.1(b) relating to the right to receive budgets of the Company in certain
circumstances) and Section 9.12 (relating to tag-along rights) of the
Recapitalization Agreement.
Section 3. No Other Amendments. Except as amended hereby, the Original
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Agreement shall remain in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their duly authorized representatives effective
as of the day and year first written above.
NOMURA:
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NOMURA ASSET CAPITAL CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Director
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Trust:
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PARTNERSHIP ACQUISITION TRUST V
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Attorney In Fact
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MEIH:
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MEI HOLDINGS, L.P.
By: MEI GenPar, L.P.
its general partner,
By: HH GenPar Partners,
its general partner,
By: Hampstead Associates, Inc.,
a managing general partner,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President