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Exhibit (d)(5)
CONNING INVESTMENT PARTNERS VI, L.L.C.
CITYPLACE II
000 XXXXXX XXXXXX
XXXXXXXX, XX 00000
Xxxxx 0, 0000
Xxxxxxxxxxxx Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter agreement is executed and delivered to confirm certain agreements
with respect to the participation of Metropolitan Life Insurance Company
("MetLife") in Conning Capital Partners VI, L.P., a Delaware limited partnership
(the "Partnership"), and the execution, delivery and performance by MetLife of
the Limited Partnership Agreement of the Partnership dated as of February 25,
2000 (as amended, restated or modified from time to time, the "Partnership
Agreement"). Any capitalized term used herein but not otherwise defined herein
shall have the meaning ascribed to such term in the Partnership Agreement.
In order to induce MetLife to purchase a Limited Partnership Interest, the
General Partner, on behalf of itself and the Partnership, hereby agrees as
follows:
1. Advisory Committee. In accordance with the provisions of Section 5.3(a) of
the Partnership Agreement, at such time as the sum of (x) the Capital
Commitment of MetLife and (y) the Capital Commitment of any of its
subsidiaries (including, without limitation, Conning Corporation and its
subsidiaries) exceeds an aggregate of $40,000,000, at the request of
MetLife, the General Partner shall select a designee of MetLife as a
member of the Advisory Committee (the "MetLife Representative"). In the
event of any removal, resignation or other replacement of the MetLife
Representative to the Advisory Committee, the General Partner agrees to
select an alternative designee of MetLife as a member of the Advisory
Committee (it being agreed that any such alternative designee shall be
considered the "MetLife Representative" for all purposes under this
paragraph); provided that MetLife will use its reasonable efforts to
provide prior notice to, and to consult with, the General Partner in
respect of any resignation of the MetLife Representative and determination
of an alternative designee of MetLife to serve as the MetLife
Representative.
2. Side Letters. Neither the Partnership, the General Partner, nor any of the
General Partner's officers shall have entered into any side letter or
similar agreement with any Limited Partner, except as disclosed to MetLife
in writing on or prior to the date hereof. If at any time and from time to
time any Limited Partner receives
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Metropolitan Life Insurance Company
March 7, 2000
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any other side letter or similar agreement, MetLife will be given copies
of such agreements.
3. Counsel. The General Partner agrees that, in connection with any opinion
of Limited Partner's counsel, in-house counsel shall be deemed reasonably
acceptable counsel for MetLife to the General Partner.
This letter agreement supplements the Partnership Agreement as between
MetLife and the General Partner, and the terms hereof shall control with respect
to MetLife in the event any conflict exists between the Partnership Agreement
and the contents hereof. Except as set forth in this letter agreement, all the
terms of the Partnership Agreement shall remain and continue in full force and
effect as between MetLife and the General Partner.
This letter agreement may be signed in any number of counterparts
(including by facsimile), each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Neither this letter agreement nor any provision hereof is intended to confer
upon any person or entity other than the parties hereto any rights or remedies
hereunder.
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Metropolitan Life Insurance Company
March 7, 2000
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This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to any conflicts-of-law
principles thereof.
Very truly yours,
CONNING INVESTMENT PARTNERS VI, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager Member
CONNING CAPITAL PARTNERS VI, L.P.
By: Conning Investment Partners VI,
L.L.C., its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager Member
Acknowledged and
agreed as of the date
first set forth above:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
