EXHIBIT 7(G)
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 ▇▇▇▇▇ Corporation Limited, a
corporation organized under the laws of the Province of Ontario ("▇▇▇▇▇"),
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, ▇▇▇▇▇ has
agreed to cause ▇▇▇▇▇ Holdings U.S.A. Inc., a Delaware corporation and a
wholly-owned subsidiary of ▇▇▇▇▇, 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 ▇▇▇▇▇ and the Partnership (the "CONVERSION INDUCEMENT
AGREEMENT");
WHEREAS, it is a condition to the issuance of the Subco Preferred Shares
and the agreement of ▇▇▇▇▇ 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 ▇▇▇▇▇ 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/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇, 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 ▇▇▇▇▇ 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
▇▇▇▇▇ and the Partnership (the "EXISTING REGISTRATION RIGHTS AGREEMENT").
Promptly after any written request is made by either Primary Investor to
▇▇▇▇▇ 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
▇▇▇▇▇, 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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
BTIP/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
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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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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 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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