[Execution Copy]
CONSENT AND AMENDMENT
This Consent and Amendment is executed as of November 14, 2001 in
accordance with the provisions of Sections 7.5 and 9.5 of the Limited
Partnership Agreement of Chancery Lane/GSC Investors L.P. dated as of December
12, 2000 (the "Agreement"). Capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned thereto in the Agreement.
WHEREAS, Section 7.5 of the Agreement provides that if Xxxxxxxx Xxxxx
ceases for any reason to control the General Partner, the Class B Limited
Partners shall have the right by written approval of a majority of the Class B
Limited Partnership Interests to remove the General Partner formerly controlled
by Xx. Xxxxx and designate a new General Partner;
WHEREAS, Xxxxxxxx Xxxxx has ceased to control the General Partner;
WHEREAS, a majority of the Class B Limited Partners have requested that
CLGI, Inc., which is the General Partner formerly controlled by Xx. Xxxxx, be
removed as the General Partner and that MIC Investors, Inc. be designated the
new General Partner;
WHEREAS, Section 9.5 of the Agreement provides that, except as
expressly provided in the Agreement, the 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
Agreement without the consent of such affected Limited Partner;
WHEREAS, Class A Limited Partnership Interests are outstanding and
Greenwich Street Capital Partners II, L.P., the Representative Class A Limited
Partner, has requested that the Agreement be amended in the manner set forth
below;
WHEREAS, MIC Investors, Inc., the new General Partner, is executing
this Consent and Amendment to effect such amendments as required by the
Agreement; and
WHEREAS, the $1 capital contribution of CLGI, Inc. is being returned
and MIC Investors, Inc. is making a $1 capital contribution to the Partnership.
IT IS HEREBY AGREED AS FOLLOWS:
1. REMOVAL OF EXISTING GENERAL PARTNER AND DESIGNATION OF NEW GENERAL
PARTNER. The undersigned Class B Limited Partners, representing a majority of
the Class B Limited Partnership Interests, are executing this Consent and
Agreement to remove
CLGI, Inc. as the General Partner and to designate MIC Investors, Inc. as the
new General Partner.
2. ACCEPTANCE OF DESIGNATION BY NEW GENERAL PARTNER. MIC Investors,
Inc. hereby accepts designation as the new General Partner and acknowledges that
its capital contribution to the Partnership is $1.
3. AMENDMENTS TO THE AGREEMENT. MIC Investors, Inc. and Greenwich
Street Capital Partners II, L.P., as the Representative Class A Limited Partner,
are executing this Consent and Amendment to effect the following amendments to
the Agreement in accordance with Section 9.5 of the Agreement:
(a) The second sentence of Section 7.5 of the Agreement shall
be deleted and replaced with the following:
If Xxxx Xxxxxxxx ceases for any reason to control the General
Partner, the Class B Limited Partners shall have the right by
written approval of a majority of the Class B Limited
Partnership Interests to remove the General Partner formerly
controlled by Xx. Xxxxxxxx and designate a new General
Partner.
(b) A new Section 7.8 of the Agreement shall be inserted
providing as follows:
Section 7.8 DESIGNATION OF NOMINEES AS DIRECTORS OF XXXXX.
Except as set forth in this Section 7.8, if at any time the
Partnership shall have the right to designate two Persons for
nomination as directors of the Board of Directors of Xxxxx
pursuant to Section 6.1(b) of the Debenture Purchase
Agreement, one of the Partnership's designees shall be chosen
by the General Partner and one of the Partnership's designees
shall be chosen by the Representative Class A Limited Partner,
in each case subject to the provisions of the Debenture
Purchase Agreement. Notwithstanding the foregoing, in the
event that (i) the Partnership is only entitled to designate
one Person for nomination as a director of the Board of
Directors of Xxxxx as a result of the operation of Section 6.3
of the Debenture Purchase Agreement or otherwise, or (ii)
there are no longer any Class A Limited Partnership Interests
outstanding, all Persons to be nominated as directors of the
Board of Directors of Xxxxx by the Partnership pursuant to
Section 6.1(b) of the Debenture Purchase Agreement shall be
chosen by the General Partner. Further, in the event of a
vacancy on the Board of Directors of Xxxxx as a result of the
resignation, removal, death or other inability or
unwillingness to serve of the director chosen for nomination
by the General Partner or the Representative Class A Limited
Partner, the Person (either the General Partner or the
Representative Class A Limited Partner) that chose such
director for nomination shall have the right to
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choose who the Partnership shall designate as such director's
successor as a director, in all cases in accordance with
Section 6.1(b) of the Debenture Purchase Agreement and Xxxxx'x
constituent documents.
4. MISCELLANEOUS.
(a) LAWS GOVERNING. This Consent and Amendment 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 Consent and Amendment 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 Consent and Amendment
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 Consent and Amendment 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 Consent and
Amendment 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) COUNTERPARTS. This Consent and Amendment may be executed
in any number of counterparts, each of which shall be deemed an
original of this Consent and Amendment 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.
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:
Title:
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 Xxxxx
------------------------
Name:
Title:
BTIP/XXXXXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name:
Title:
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NEW GENERAL PARTNER:
MIC INVESTORS, INC.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
REPRESENTATIVE CLASS A LIMITED PARTNER:
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: Greenwich Street Investments II, L.L.C.,
General Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
