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EXHIBIT 10.10
SECOND AMENDMENT
Effective as of December 31, 1996
To the
SKYLINE ASSET MANAGEMENT, L.P.
(A Delaware Limited Partnership)
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
Dated August 31, 1995
The Amended and Restated Limited Partnership Agreement of Skyline Asset
Management, L.P. dated August 31, 1995, as amended on August 1, 1996 (the
"Partnership Agreement") is hereby amended effective as of this 31st day of
December, 1996 as set forth below. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to such terms in the
Partnership Agreement.
1. Section 5.2(c) of the Partnership Agreement is hereby amended to
read in its entirety as follows:
(c) Allocation of Income and Gain. Subject to Section 5.2(e)
and Sections 5.4 and 5.5 hereof, all items of Partnership income and gain shall
be allocated among the Partners' Capital Accounts at the end of every month as
follows:
(i) first, items of income and gain shall be allocated
to the General Partner in an amount equal to the Free Cash
Flow (net of Free Cash Flow Expenditures) for such month
multiplied by a fraction, the numerator of which is the number
of Partnership Points held by the General Partner for such
month, and the denominator of which is the total number of
Vested Partnership Points outstanding for such month;
(ii) second, the General Partner shall be allocated
items of income and gain until the General Partner has been
allocated cumulative income and gain equal to the cumulative
amount of losses and deductions allocated to the General
Partner under Section 5.2(d)(iii);
(iii) third, items of income and gain shall be
allocated among all Limited Partners in accordance with (and
in proportion to) each Limited Partner's respective number of
Vested Partnership Points for such
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month, until the aggregate amount of such items allocated to
the Partners pursuant to Section 5.2(c)(i) and this Section
5.2(c)(iii) for such month equals the aggregate amount of Free
Cash Flow for such month; and
(iv) fourth, items of Partnership income and gain for
such month shall be allocated among the Limited Partners in
proportion to each Limited Partner's respective number of
Vested Partnership Points for such month until the cumulative
aggregate amount of such items of Partnership income and gain
allocated to the Limited Partners pursuant to this Section
5.2(c)(iv) for such month and all prior months in that fiscal
year equals the cumulative aggregate amount of items of
Partnership deduction and loss allocated to the Limited
Partners for such month and all prior months in that fiscal
year pursuant to the provisions of Section 5.2(d)(ii) hereof.
2. Section 5.3 of the Partnership Agreement is hereby amended to read
in its entirety as follows:
(a) Subject to Section 5.3(b) hereof, from and after the date
hereof, within thirty (30) days after the end of each fiscal quarter, the
General Partner shall, based on the unaudited financial statements for such
fiscal quarter prepared in accordance with Section 9.3 hereof (after approval
thereof by the General Partner), cause the Partnership (X) to distribute to the
General Partner the amount of income and gain allocated to the General Partner
for such fiscal quarter pursuant to Section 5.2(c)(i) and (ii), minus any losses
and deductions allocated to the General Partner under Section 5.2(d)(iii), and
(Y) to distribute to the Limited Partners the amount of any income and gain
allocated to the Limited Partners under Section 5.2(c)(iii), minus any losses
and deductions allocated to the Limited Partners under Section 5.2(d)(ii).
Within ninety-five (95) days after the end of each fiscal year of the
Partnership, the General Partner shall, based on the audited financial
statements prepared in accordance with Section 9.3 hereof, cause the Partnership
to make a distribution of (i) the remaining amounts, if any, for the preceding
fiscal year not previously distributed, in accordance with the foregoing clauses
(X) and (Y) of this Section 5.3(a), and (ii) the amount of any income and gain
allocated to the Limited Partners under Section 5.2(c)(iv). In the event that,
in connection with the preparation of audited financial statements or otherwise
it shall be determined that any prior distributions were not made in the proper
amounts, the General Partner shall be authorized to increase or decrease one or
more subsequent distributions in such manner and to such extent as it shall deem
necessary or appropriate.
(b) The General Partner may, from time to time and with a
Majority Vote, reserve and refrain from making a distribution that is otherwise
required under Section 5.3(a) for Partnership purposes, including, without
limitation, to increase the net worth of the Partnership.
(c) Within ninety-five (95) days after the end of each fiscal
year of the Partnership (or such earlier date as may be agreed to by the General
Partner with either a Majority Vote or the consent of the CEO), the General
Partner shall, based on the audited
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financial statements prepared in accordance with Section 9.3 hereof, cause the
Partnership to make a distribution to each Limited Partner of the amount, if
any, which was allocated to such Limited Partner for the previous fiscal year
pursuant to the provisions of Section 5.5(c) hereof.
(d) Except as otherwise set forth herein, all other amounts or
proceeds available for distribution, if any, shall be distributed to the
Partners at such time as may be determined by the General Partner in its sole
discretion provided that any such distribution shall be made among the Partners
(i) in accordance with the positive balances (if any) in their respective
Capital Accounts (as determined immediately prior to such distribution) until
all such positive Capital Account balances have been reduced to zero, and (ii)
thereafter among all Partners in accordance with their respective number of
Vested Partnership Points at the time of such distribution.
(e) Notwithstanding any other provision herein to the
contrary, if any Limited Partner has received a distribution under Section
5.3(a) or Section 5.3(c) during a fiscal year and, based on the audited
financial statements prepared in accordance with Section 9.3 hereof, there are
at the end of such fiscal year any unrecovered excess deductions, such that the
General Partner will be entitled to an allocation pursuant to Section 5.2(c)(ii)
at the time of the next allocation of gross income of the Partnership, then the
Limited Partners shall promptly (and in any event within ninety-five (95) days
after the end of such fiscal year of the Partnership) contribute to the
Partnership in accordance with (and in proportion to) the aggregate amount of
distributions received by such Limited Partner under Section 5.3(a) and Section
5.3(c) with respect to such fiscal year, cash in the aggregate amount of such
unrecovered excess deductions. The obligation of each Limited Partner to make
contributions to the Partnership pursuant to this Section 5.3(e) with respect to
any fiscal year shall be limited to the aggregate amount of distributions
received by such Limited Partner under Sections 5.3(a) and Section 5.3(c) with
respect to such fiscal year.
3. Section 5.5 of the Partnership Agreement is hereby amended by the
addition of a new Section 5.5(c) which will read in its entirety as
follows:
(c) If, at the end of a fiscal year, (i) the aggregate amount
of items of income and gain allocated to the Limited Partners pursuant to the
provisions of Section 5.2(c)(iv) equals the aggregate amount of items of
Partnership deduction and loss for such fiscal year, and (ii) there are
additional items of income and gain for such fiscal year which have not been
allocated pursuant to the provisions of Section 5.2 hereof or the other
provisions of this Section 5.5 hereof, then such additional items of income and
gain (i.e., the unallocated items of income and gain in excess of the aggregate
amount of items of deduction and loss attributable to such fiscal year) which
were not previously allocated shall be allocated to the Limited Partners and in
the amounts as may be selected by the CEO or, if there is no CEO, then by a
Majority Vote; provided, that if no determination is made within ninety-five
(95) days after the end of a fiscal year, such items of income and gain shall be
allocated among the Limited Partners in proportion to each Limited Partner's
respective number of Vested Partnership Points as of the end of such fiscal
year.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to the
Partnership Agreement to be executed as of this ___ day of March, 1997.
GENERAL PARTNER
AFFILIATED MANAGERS GROUP,
INC.
By:/s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
LIMITED PARTNERS
WMD CORP.
By:/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
KSK CORP.
By:/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
GXL CORP.
By:/s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: President
MXM CORP.
By:/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President