EXECUTION COPY
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LIMITED PARTNERSHIP AGREEMENT
OF
CHANCERY LANE/GSC INVESTORS L.P.
DATED AS OF DECEMBER 12, 2000
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TABLE OF CONTENTS
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ARTICLE I
DEFINED TERMS
Section 1.1 Definitions.....................................................1
Section 1.2 Headings........................................................7
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1 Partnership Certificate.........................................8
Section 2.2 Initial Partners................................................8
Section 2.3 Name............................................................8
Section 2.4 Term............................................................8
Section 2.5 Registered Agent and Office.....................................8
Section 2.6 Principal Place of Business.....................................8
Section 2.7 Qualification in Other Jurisdictions............................8
ARTICLE III
PURPOSE AND POWERS OF THE PARTNERSHIP
Section 3.1 Purposes and Powers.............................................9
ARTICLE IV
CAPITAL ACCOUNTS; DISTRIBUTIONS; ALLOCATIONS
Section 4.1 Capital Accounts................................................9
Section 4.2 Distributions..................................................10
Section 4.3 Allocations....................................................11
Section 4.4 Redemption or Exchange of Class A Limited Partnership
Interests......................................................11
Section 4.5 Pro Rata Treatment.............................................13
Section 4.6 Class B Limited Partnership Exchange ..........................13
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ARTICLE V
PARTNERSHIP INTERESTS
Section 5.1 Liability of Limited Partners..................................13
Section 5.2 Transfer of Partnership Interests..............................14
Section 5.3 Voting Rights..................................................14
Section 5.4 Representative Class A Limited Partner; Consent Requirements...14
Section 5.5 No Withdrawal or Redemption....................................15
Section 5.6 Currency.......................................................15
Section 5.7 Control........................................................16
Section 5.8 Bankruptcy of a Limited Partner................................16
ARTICLE VI
BOOKS AND RECORDS; TAX RETURNS
Section 6.1 Books and Records..............................................16
Section 6.2 Tax Returns and Information....................................16
Section 6.3 Tax Elections..................................................16
Section 6.4 Tax Matters Partner............................................17
Section 6.5 Accountants....................................................17
ARTICLE VII
MANAGEMENT OF THE PARTNERSHIP
Section 7.1 Powers.........................................................17
Section 7.2 Authority......................................................18
Section 7.3 Filing and Publication.........................................18
Section 7.4 Limitation of Liability........................................18
Section 7.5 Successor General Partner......................................18
Section 7.6 Information Rights.............................................18
Section 7.7 Affiliate Transactions.........................................18
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND WINDING UP
Section 8.1 Events Causing Dissolution.....................................19
Section 8.2 Winding Up.....................................................19
Section 8.3 Liquidation....................................................19
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Section 8.4 Order of Distribution..........................................20
Section 8.5 Termination....................................................20
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 Entire Agreement...............................................20
Section 9.2 Laws Governing.................................................20
Section 9.3 Successors and Assigns.........................................20
Section 9.4 Severability...................................................21
Section 9.5 Amendment......................................................21
Section 9.6 Headings.......................................................21
Section 9.7 Notices........................................................21
Section 9.8 Expenses.......................................................22
Section 9.9 Counterparts...................................................22
Section 9.10 Right to Delivery of Debentures/Conversion Shares..............22
Annex I Capital Contributions
Schedule A Class A Limited Partners
Schedule B Class B Limited Partners and General Partner
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LIMITED PARTNERSHIP AGREEMENT
OF
CHANCERY LANE/GSC INVESTORS L.P.
This Limited Partnership Agreement of Chancery Lane/GSC Investors L.P.,
a Delaware limited partnership (the "PARTNERSHIP"), is made as of December 12,
2000, among CLGI, Inc., a Delaware corporation ("CLGI"), as the General Partner,
each person listed on Schedule A attached hereto, each as a Class A Limited
Partner, and each person listed on Schedule B hereto, each as a Class B Limited
Partner. Capitalized terms used herein but not defined when used have the
meanings assigned to such terms in Section 1.1.
WHEREAS, the Partnership was formed as a limited partnership pursuant
to the Delaware Revised Uniform Limited Partnership Act, 6 Del. C.ss. 17-101, et
seq., as amended from time to time (the "DELAWARE ACT"), by filing a Certificate
of Limited Partnership (the "PARTNERSHIP CERTIFICATE") with the office of the
Secretary of State of the State of Delaware;
WHEREAS, the Partnership is being formed for the sole purpose of
purchasing the Debentures and exercising all indicia of ownership thereof; and
WHEREAS, the Partners wish to enter into this Agreement to establish
their respective rights and obligations with respect to the Partnership.
NOW, THEREFORE, in consideration of the agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 DEFINITIONS. Unless the context otherwise requires, the
terms defined in this Article I shall, for the purposes of this Agreement, have
the meanings specified herein.
"AFFILIATE" means, with respect to a specified Person, any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; provided that no Partner shall be deemed an Affiliate of
any other Partner or such other Partner's Affiliates solely by reason of any
investment in the Partnership. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract (including arrangements pursuant to an investment management or
investment advisory agreement) or otherwise.
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"AGREEMENT" means this Limited Partnership Agreement of the
Partnership, as it may be amended, modified, supplemented or restated from time
to time.
"AVAILABLE DISPOSAL AMOUNT" has the meaning set forth in Section 4.6
hereof.
"BUSINESS DAY" means any day other than a day on which banking
institutions are required to close in New York, New York or Toronto, Ontario.
"CAPITAL ACCOUNT" has the meaning assigned to it in Section 4.1(b) of
this Agreement.
"CAPITAL CONTRIBUTION" shall mean, with respect to any Partner, the
aggregate amount of money and the Fair Market Value of any property (other than
money), net of any liabilities secured by the property or to which the property
is subject, contributed to the Partnership with respect to such Partner's
Partnership Interest including, without limitation, the Initial Capital
Contribution. In the case of a Partner that acquires an interest in the
Partnership by virtue of an assignment or transfer in accordance with the terms
of this Agreement, "Capital Contribution" means the Capital Contribution of such
Partner's predecessor in interest.
"CLASS A DEFERRAL PREFERENCE" means, with respect to a Class A Limited
Partnership Interest, the amount of any accumulated and undistributed Class A
Periodic Distributions from and after the Class A Periodic Distribution Date
therefor, together with the amount of any other overdue payments with respect to
a Class A Limited Partner Interest.
"CLASS A DISTRIBUTION PERIOD" means each period from and including a
January 1, April 1, July 1 and October 1 to and including the next succeeding
March 31, June 30, September 30 and December 31, respectively, except that the
initial Class A Distribution Period shall commence on the date of initial
issuance of the Class A Limited Partnership Interests and end on March 31, 2001,
and no additional Class A Distribution Period shall commence on January 1, 2001.
"CLASS A LIMITED PARTNER" means each holder of a Class A Limited
Partnership Interest.
"CLASS A LIMITED PARTNERSHIP INTEREST" means a limited partnership
interest in the Partnership entitling the holder thereof to the distributions
and allocations set forth in Section 4.2 of this Agreement and to the other
rights, preferences, qualifications, privileges and limitations set forth in
other provisions of this Agreement specified to be applicable to a Class A
Limited Partnership Interest.
"CLASS A MATURITY REDEMPTION DATE" has the meaning set forth in Section
4.4(c) hereof.
"CLASS A PERIODIC DISTRIBUTION" means cumulative distributions in
respect of the Class A Limited Partnership Interest, distributable quarterly on
each Class A Periodic Distribution Date for the Class A Distribution Period
ended immediately prior thereto (a) at the rate of 13% per annum applied to the
Class A Principal Preference and (b) at the rate of 15% per annum until paid
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applied to the Class A Deferral Preference, if any, in each case compounded and
calculated on the same basis as the Debentures. Notwithstanding anything to the
contrary, it is understood by the Partners that (a) Class A Periodic
Distributions shall be paid only out of legally available funds under Section
17-607 of the Delaware Act, which shall include interest payments on the
Debentures made by Moore to the Partnership from time to time in accordance with
the terms of the Debentures and (b) unpaid Class A Periodic Distributions shall
increase the Class A Deferral Preference.
"CLASS A PERIODIC DISTRIBUTION DATE" means each March 31, June 30,
September 30 and December 31, except that the initial Class A Distribution Date
shall be March 31, 2001. If any such Class A Periodic Distribution Date is not a
Business Day, then the next succeeding Business Day shall be the related Class A
Periodic Distribution Date.
"CLASS A PREFERENCE" means, with respect to a Class A Limited
Partnership Interest, the Class A Principal Preference plus the amount, if any,
of the Class A Deferral Preference related to such Class A Limited Partnership
Interest.
"CLASS A PRINCIPAL PREFERENCE" means, with respect to a Class A Limited
Partnership Interest, the Initial Capital Contribution in respect of such Class
A Limited Partnership interest, as reduced by any partial redemption or exchange
in respect thereof.
"CLASS A REDEMPTION EVENT" means Moore giving notice of redemption of
the outstanding Debentures in accordance with Sections 2, 3 and 4 of the
Debentures.
"CLASS A STOCK REDEMPTION AMOUNT" means (i) at any time that all of the
Class A Limited Partnership Interests issued in respect of the Initial Capital
Contribution are outstanding, Debentures in the aggregate principal amount of
$28,200,000, or Conversion Shares in the amount issuable upon conversion of
Debentures in the aggregate principal amount of $28,200,000 (initially 8,676,923
Conversion Shares), as applicable, and (ii) at any time that less than all of
the Class A Limited Partnership Interests issued in respect of the Initial
Capital Contribution are outstanding, Conversion Shares or Debentures in the
amounts described in the immediately preceding clause (i), as applicable,
multiplied by a fraction, the numerator of which is the Class A Principal
Preference as of the date of determination and the denominator of which is the
Class A Principal Preference as of the date of the closing under the Debenture
Purchase Agreement; the Class A Stock Redemption Amount as to any Class A
Limited Partnership Interest shall be allocated pro rata among the Class A
Limited Partners based upon their Percentage Interests.
"CLASS B LIMITED PARTNERS" means the holders of the Class B Limited
Partnership Interests.
"CLASS B LIMITED PARTNERSHIP INTEREST" means a limited partnership
interest in the Partnership entitling the holder thereof to the distribution set
forth in Section 4.2 of this Agreement and to the other rights, preferences,
qualifications, privileges and limitations set forth in other provisions of this
Agreement specified to be applied to the Class B Limited Partnership Interests.
"CLGI" has the meaning specified in the Preamble.
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"CODE" means the Internal Revenue Code of 1986, as amended from time to
time, or any corresponding U.S. federal tax statute enacted after the date of
this Agreement. A reference to a specific section of the Code refers not only to
such specific section but also to any corresponding provision of any federal tax
statute enacted after the date of this Agreement, as such specific section or
corresponding provision is in effect on the date of application of the
provisions of this Agreement containing such reference.
"CONVERSION SHARES" means the shares of common stock of Moore into
which Debentures may be converted and any other shares of capital stock into
which such common stock may have been changed, exchanged or otherwise
reclassified; such term shall include all Conversion Shares owned or to which a
Partner may be entitled pursuant to the Limited Partnership Agreement, whether
as a holder of Class A Limited Partnership Interests or Class B Limited
Partnership Interests.
"COVERED PERSON" has the meaning specified in Section 7.4.
"DB CAPITAL" means DB Capital Investors, L.P., a Delaware limited
partnership.
"DEBENTURES" has the meaning specified in the Debenture Purchase
Agreement.
"DEBENTURE PURCHASE AGREEMENT" means the Debenture Purchase Agreement
dated as of December 12, 2000 by and between Moore and the Partnership.
"DELAWARE ACT" has the meaning specified in the Recital to this
Agreement.
"FAIR MARKET VALUE" as of any date of determination, (i) with respect
to any securities ("Assessable Securities"), the price per share of such
Assessable Securities determined as follows:
(A) If, at the time at which the Fair Market Value is to be
determined, the Assessable Securities are listed on a national
securities exchange in the United States or Canada or quoted
through the NASDAQ - National Market System, then the Fair
Market Value shall be deemed to be the average closing price
(rounded to the nearest penny) at which the Assessable
Securities are sold on the principal national securities
exchange or quoted through the NASDAQ - National Market System
for the 10 consecutive trading day period ending 2 trading
days prior to such date of determination; provided, however,
that in connection with an underwritten public offering of the
Assessable Securities, the Fair Market Value shall be deemed
to be the initial public offering price in such underwritten
offering (without giving effect to any underwriting discounts
or commissions).
(B) In the absence of trading of the Assessable Securities as
described in the immediately preceding subparagraph (A), then
the Fair Market Value shall be determined as follows: first,
the Representative Class
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A Limited Partner and the General Partner shall use their
respective best efforts to determine the fair market value of
Assessable Securities within 10 days after the date of notice
from the Partnership to the Representative Class A Limited
Partner and the General Partner to the effect that a
determination of the fair market value of securities or other
property is necessary (a "Partnership Property Assessment
Notice"). If the Representative Class A Limited Partner and
the General Partner cannot agree on the fair market value per
share of the Assessable Securities within such 10-day period,
then, within the following 10-day period the Representative
Class A Limited Partner and the General Partner shall mutually
select an investment banker or retired investment banker to
make a determination of the fair market value per share of
such Fully-Diluted Assessable Securities as of the date of the
Partnership Property Assessment Notice. If the Representative
Class A Limited Partner and General Partner cannot agree on
such investment banker within such 10-day period, then they
shall request that the American Arbitration Association
promptly select an investment banker or retired investment
banker to make such determination. Within 45 days following
selection of such investment banker, the investment banker
shall submit a written report to the Representative Class A
Limited Partner and the General Partner setting forth its
determination of the Fair Market Value based on its
determination of the fair market value of the Fully-Diluted
Assessable Securities (the "Appraisal"). The Fair Market Value
as so determined shall be final, conclusive and binding on the
parties. The Partnership shall bear the fees, costs and
expenses of the investment banker; or
(ii) with respect to any property other than Assessable Securities
("Assessable Other Property"), the price per item of such Assessable Other
Property determined as follows: (A) the Representative Class A Limited Partner
and the General Partner shall use their respective best efforts to determine the
fair market value of the Assessable Other Property as of such date of
determination within 10 days after the date of the applicable Partnership
Property Assessment Notice; (B) if the Representative Class A Limited Partner
and the General Partner cannot agree on the fair market value of the Assessable
Other Property then the Fair Market Value thereof shall be determined in
accordance with the procedures set forth above in subparagraph (i)(C) with
respect to Assessable Securities, which subparagraph shall be construed to read
for the purposes of this subparagraph (ii)(B) as if the phrase "Assessable Other
Property" were substituted therein for the phrase "Assessable Securities."
The parties shall cooperate with each other and each other's authorized
representatives and with the investment banker selected as aforesaid in
determining the Fair Market Value of the property in question as promptly as
practicable. In the event that there is no longer a Representative Class A
Limited Partner, Fair Market Value pursuant to clause (i) (B) and (ii) of this
definition shall be determined by the General Partner.
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"GENERAL PARTNER" means CLGI, in its capacity as general partner of the
Partnership, or any Person who, at the time of reference thereto, is admitted as
a general partner of the Partnership.
"INITIAL CAPITAL CONTRIBUTION" means, as to each initial Partner, the
amount set forth opposite such Partner's name on Annex I.
"LIMITED PARTNER" means each holder of a Limited Partnership Interest.
"LIMITED PARTNERSHIP INTEREST" means any Class A Limited Partnership
Interest or any Class B Limited Partnership Interest.
"MOORE" means Moore Corporation Limited, a corporation organized under
the laws of Ontario, Canada.
"NYSE" means the New York Stock Exchange.
"PARTNER" means any partner in the Partnership and includes the General
Partner and the Limited Partners.
"PARTNERSHIP" has the meaning set forth in the Preamble of this
Agreement.
"PARTNERSHIP CERTIFICATE" has the meaning specified in the Recitals to
this Agreement.
"PARTNERSHIP FISCAL YEAR" means each twelve-month period commencing on
January 1 and ending on the next succeeding December 31 (except that the initial
Partnership Fiscal Year shall commence on the date on which this Agreement is
entered into and end on the next succeeding December 31).
"PARTNERSHIP INTERESTS" means the general partnership interest and the
Limited Partnership Interests.
"PERCENTAGE INTEREST" means, as to any class of Limited Partners, the
ratio (expressed as a percentage) of the Capital Contribution of each Partner in
such class divided by the aggregate of the Capital Contributions of all Partners
in such class (carried to four decimal places). The General Partner shall be
treated as a Class B Limited Partner for the purpose of determining Percentage
Interests.
"PERMITTED TRANSFER" has the meaning specified in Section 5.2(b).
"PERMITTED TRANSFEREE" means with respect to any Partner, any general
or limited partner or member or shareholder, or any corporation, partnership or
other entity, that is an Affiliate of such Partner; provided, however, that
"Permitted Transferee" shall not include any portfolio companies of such Partner
or its Affiliates. Notwithstanding the foregoing, in the case of any Partner who
is a natural Person, the term "Permitted Transferee" shall include (i) upon such
person's death,
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a transferee or transferees by will or by operation of law to a beneficiary or
beneficiaries selected by such person and (ii) a transferee or transferees to
facilitate the tax and estate planning of such person, provided that the General
Partner shall have consented to such transferee, such approval not to be
unreasonably withheld or delayed.
"PERSON" means any individual, partnership, limited liability company,
corporation, joint venture, trust, business trust, cooperative or association
and the heirs, executors, administrators, legal representatives, successors and
assigns of such Person where the context so admits.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
to be entered into between the Partnership and Moore as of the closing under the
Debenture Purchase Agreement.
"REPRESENTATIVE CLASS A LIMITED PARTNER" means Greenwich Street Capital
Partners II, L.P. or its successors and permitted assigns.
"RESTRICTED SECURITIES AGREEMENT" means the Restricted Securities
Agreement dated the date hereof among the Partners.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"STANDSTILL AGREEMENT" means the Standstill Agreements dated the date
hereof between Moore and the Partnership, as amended from time to time.
"TAX MATTERS PARTNER" shall have the meaning assigned to such term in
Section 6.4.
"TRANSFER" has the meaning specified in Section 5.2(b)
"TREASURY REGULATIONS" means the regulations of the U.S. Internal
Revenue Service promulgated under the Code, as amended from time to time.
Section 1.2 HEADINGS. The headings and subheading in this Agreement are
included for convenience and identification normally and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1 PARTNERSHIP CERTIFICATE. The General Partner may execute,
deliver and file on behalf of the Partnership any and all amendments to and
restatements of the Partnership Certificate.
Section 2.2 INITIAL PARTNERS. The parties hereto acknowledge that,
contemporaneously with the execution and delivery of this Agreement, (i) CLGI
has made its Initial
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Capital Contribution and is admitted as a General Partner, (ii) each Class A
Limited Partner has made or subscribed for its Initial Capital Contribution and
upon payment of its Initial Capital Contribution will automatically be admitted
as a Class A Limited Partner and (iii) each Class B Limited Partner has made or
subscribed for its Initial Capital Contribution and upon payment of its Initial
Capital Contribution will automatically be admitted as a Class B Limited
Partner.
Section 2.3 NAME. The name of the Partnership being formed hereby is
"Chancery Lane/GSC Investors L.P."
Section 2.4 TERM. The term of the Partnership commenced on the date the
Partnership Certificate was filed with the office of the Secretary of State of
the State of Delaware and shall continue perpetually, unless the Partnership is
dissolved in accordance with the provisions of the Delaware Act and this
Agreement. The existence of the Partnership as a separate legal entity shall
continue until the cancellation of the Partnership Certificate in the manner
required by the Delaware Act.
Section 2.5 REGISTERED AGENT AND OFFICE. The Partnership's registered
agent in the State of Delaware shall be The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, and its
office shall be c/o the registered agent. At any time, the General Partner may
designate another registered agent and/or registered office.
Section 2.6 PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Partnership shall be at 3 East 54th Street, Suite 1700, New
York, NY 10022. The General Partner may change the location of the Partnership's
principal place of business within the City of New York, State of New York with
notice to all Partners.
Section 2.7 QUALIFICATION IN OTHER JURISDICTIONS. The General Partner
shall cause the Partnership to be qualified or registered under assumed or
fictitious name statutes or similar laws in any jurisdiction in which the
Partnership conducts business and in which such qualification or registration is
required by law or deemed advisable by the General Partner. The General Partner
and its authorized officers may execute, deliver and file on behalf of the
Partnership any certificates (and any amendments or restatements thereof)
necessary for the Partnership to qualify to do business in each jurisdiction in
which the General Partner has determined that the Partnership shall conduct
business.
ARTICLE III
PURPOSE AND POWERS OF THE PARTNERSHIP
Section 3.1 PURPOSES AND POWERS. The purpose of the Partnership is to
issue the Partnership Interests to the initial Partners (and their successors to
the extent transfers are permitted under this Agreement), and to acquire, hold
and exercise all rights, subject to the terms and conditions of this Agreement,
related to the Debentures and the Conversion Shares. The Partnership shall have
the power and authority to take any and all actions necessary, appropriate,
proper,
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advisable, incidental or convenient to or for the furtherance of the purposes of
the Partnership set forth herein.
ARTICLE IV
CAPITAL ACCOUNTS; DISTRIBUTIONS; ALLOCATIONS
Section 4.1 CAPITAL ACCOUNTS. (a) Contributions to the capital of the
Partnership have been made by the General Partner and the Limited Partners in
the amounts set forth on Annex 1. No interest shall accrue on any Capital
Account balance of a Partner, and no Partner shall have the right to withdraw or
to be repaid any of its Capital Contributions so made, except as specifically
provided in this Agreement. Except as set forth in Section 4.1(d), no Partner
may or shall be required to lend or otherwise provide any funds or other
property to the Partnership or to make any additional capital contributions to
the Partnership. No Limited Partner shall have any personal liability for the
repayment of any Capital Contribution of any other Limited Partner.
(b) There shall also be established on the books of the Partnership a
capital account ("CAPITAL ACCOUNT") for each Partner that shall initially have a
balance set forth on Annex 1 and shall be (i) increased by (A) any additional
Capital Contributions made by such Partner to the Partnership that are permitted
by Section 4.1(d) and (B) any income or gains from time to time allocated to the
Capital Account of such Partner pursuant to Section 4.3 below; and (ii)
decreased by (A) any distributions to such Partner, and (B) any losses or
expenses from time to time allocated to the Capital Account of such Partner
pursuant to Section 4.3 below.
(c) For purposes of maintaining Capital Accounts when Partnership
property is distributed to any Partner in-kind, (i) the Partnership shall treat
such property as if it had been sold for its Fair Market Value on the date of
distribution; (ii) any gain or loss deemed to have been realized by the
Partnership on such distribution shall be allocated to the Capital Accounts of
the Partners pursuant to Section 4.3 below; and (iii) the Capital Account of any
Partner receiving a distribution of Partnership property shall be reduced by the
Fair Market Value of the property so received, net of any liabilities secured by
the property or to which the property is subject.
(d) Additional Capital Contributions shall be made only at the request
of the General Partner with the prior written consent of the Representative
Class A Limited Partner. Each Class B Partner shall be given a reasonable
opportunity to make any additional Capital Contributions pro rata with the other
Class B Partners in proportion to their respective Percentage Interests, but
none shall be required by this Agreement to do so.
(e) This Section 4.1 and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with the
Treasury Regulations Section 1.704-1(b) and will be interpreted and applied in a
manner consistent with such Treasury Regulations and any amendment or successor
provision thereto.
Section 4.2 DISTRIBUTIONS. (a) On each Class A Periodic Distribution
Date after January 1, 2001, the Class A Limited Partners shall be entitled to
receive the Class A Periodic
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Distribution for the Class A Distribution Period ended immediately prior to such
Class A Periodic Distribution Date. Each Class A Periodic Distribution shall be
payable to the Class A Limited Partners of record on the Partnership Register on
the day preceding such Class A Periodic Distribution Date. To the extent that
the Partnership does not have cash available without liquidating any property of
the Partnership to distribute the Class A Periodic Distribution in full or
otherwise cannot make such payment, the General Partner shall give notice to the
Class A Limited Partners that the Partnership will not distribute the entire
Class A Periodic Distribution in full on such Class A Periodic Distribution
Date, in which case any Class A Periodic Distribution not so distributed shall
be added to the Class A Deferral Preference, if any, and shall accrue additional
distributions until paid as set forth in the definition of Class A Periodic
Distributions.
(b) Except for distributions of Debentures or Conversion Shares
contemplated by Section 5.4(b)(9), and except for cash distributions to Class B
Limited Partners in amounts sufficient to permit payment of taxes on any
Partnership income allocated to them (assuming the highest marginal tax rate
applicable to individuals resident in the City of New York, State of New York
(and assuming the deductibility of state and local taxes for federal income tax
purposes)), no distribution of any kind (other than liquidating distributions in
accordance with Section 8.4) may be made by the Partnership in respect of the
Class B Limited Partnership Interests until the entire Class A Preference has
been paid in full or no Class A Limited Partnership Interests are outstanding.
(c) Subject to Section 4.2(b), the Partnership may pay to the General
Partner and Class B Limited Partners, pursuant to the terms of this Agreement
and the Delaware Act in proportion to their respective Percentage Interests,
distributions to the extent of funds legally available therefor and subject to
the General Partner's determination to pay the same.
(d) To the extent the Partnership is required by law to withhold or to
make tax payments on behalf of or with respect to any Partner, the Partnership
shall, after consultation with the affected Partner, withhold such amounts from
distributions to the Partner and make such tax payments as required. Any amount
so withheld from a distribution shall be treated as having been distributed to
such Partner for all purposes. Any amounts withheld from payments made to the
Partnership and any payments made by the Partnership to any other Person in
respect of taxes on behalf of or with respect to any Partner shall be treated in
a similar manner. Each Partner shall furnish to the General Partner any and all
information, certificates and affidavits reasonably requested by the General
Partner with respect to compliance with any applicable legal requirements.
Section 4.3 ALLOCATIONS. (a) All items of income and gain shall be
allocated, first, to the Class A Limited Partners, and among them in accordance
with the Class A Limited Partner Percentage Interests, until the amounts
allocated equal the Class A Periodic Distributions that have been paid through
the last Class A Periodic Distribution Date, and thereafter to the Class B
Limited Partners and the General Partner, and among them in accordance with
their Percentage Interests.
(b) All items of expense and loss shall be allocated to the Class B
Limited Partners and the General Partner, and among them in accordance with
their Percentage Interests.
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(c) For U.S. federal income tax purposes, all items of income, gain,
loss, deduction or credit, shall be allocated in the same manner as the
corresponding book items are allocated under Sections 4.3(a) or 4.3(b).
Section 4.4 REDEMPTION OR EXCHANGE OF CLASS A LIMITED PARTNERSHIP
INTERESTS.
(a) Partnership Right to Redeem or Exchange at Certain Conversion Share
Price. If, at any time after the second anniversary of this Agreement, the price
per Conversion Share for 20 consecutive trading days is at least $10.8333
(subject to adjustment for changes to the Conversion Shares and anti-dilution
adjustments), the Partnership shall have the right, but not the obligation, to
redeem or exchange all or part of the then outstanding Class A Limited
Partnership Interests (pro rata among the Class A Limited Partners based upon
their Percentage Interests), as follows. The Partnership shall give written
notice to the Representative Class A Limited Partner of the Partnership's
election to exercise such right. Within 10 days of the Representative Class A
Limited Partner's receipt of such notice, the Representative Class A Limited
Partner shall notify the Partnership in writing whether it wishes to have the
Class A Limited Partnership Interests (i) redeemed for cash in an amount equal
to the Class A Preference and any accrued but unpaid Class A Periodic
Distributions in respect of the Class A Limited Partnership Interests to be
exchanged, (ii) exchanged for Debentures or Conversion Shares in the Class A
Stock Redemption Amount and a cash payment for any accrued and unpaid Class A
Periodic Distributions in respect of the Class A Limited Partnership Interests
to be exchanged or (iii) exchanged for a combination of such cash and
securities. The Partnership shall then be obligated to redeem or exchange the
Class A Limited Partnership Interests in accordance with the Representative
Class A Limited Partner's notice within 15 days of receipt thereof by the
Partnership.
(b) Class A Redemption Event. In addition, following the occurrence of
a Class A Redemption Event, and prior to acceptance by the Partnership from
Moore of the redemption price for the Debentures, conversion by the Partnership
of the Debentures or notice by the Partnership to Moore declining to redeem the
Debentures in connection with such event, the Representative Class A Limited
Partner shall have the right, but not the obligation, to elect to have all or
part of the Class A Limited Partnership Interests redeemed or exchanged (or
held), as follows. The Partnership shall give prompt written notice to the
Representative Class A Limited Partner of the occurrence of a Class A Redemption
Event. Within 10 days of the Representative Class A Limited Partner's receipt of
such notice, such Partner shall notify the Partnership in writing whether it
wishes to have the Class A Limited Partnership Interests (i) redeemed for cash
in an amount equal to the Class A Preference and any accrued but unpaid Class A
Periodic Distributions in respect of the Class A Limited Partnership Interests
to be exchanged, (ii) exchanged for Conversion Shares in the Class A Stock
Redemption Amount and a cash payment for any accrued and unpaid Class A Periodic
Distributions in respect of the Class A Limited Partnership Interests to be
exchanged or (iii) exchanged for a combination of such cash and securities. The
Partnership shall then be obligated to redeem or exchange the Class A Limited
Partnership Interests in accordance with the Representative Class A Limited
Partner's notice within 15 days of receipt thereof by the Partnership. If the
Class A Redemption Event occurs pursuant to Section 3 of the Debentures
(Additional Amounts and Contingent Rights of Redemption), then the
Representative Class A Limited Partner
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may choose to hold the Class A Limited Partnership Interests in whole or in part
instead of redeeming or exchanging them.
(c) Partnership Obligation to Redeem or Exchange Class A Limited
Partnership Interests at Maturity. The Partnership shall redeem or exchange any
outstanding Class A Limited Partnership Interests on the fifth anniversary of
their initial issuance (the "Class A Maturity Redemption Date"), as follows. The
Partnership shall deliver written notice to the Representative Class A Partner
not less than 30 days prior to the Class A Maturity Redemption Date requesting
such Partner to notify the Partnership whether such Partner wishes to redeem or
exchange the Class A Limited Partnership Interests. Within 5 days of receipt of
the Partnership's notice, the Representative Class A Partner shall notify the
Partnership in writing whether it wishes to (i) redeem the Class A Limited
Partnership Interests for cash in the amount of the Class A Preference and any
accrued but unpaid Class A Periodic Distributions in respect of the Class A
Limited Partnership Interests to be exchanged, (ii) exchange such interests for
Debentures or Conversion Shares in the Class A Stock Redemption Amount and a
cash payment for any accrued but unpaid Class A Periodic Distributions in
respect of the Class A Limited Partnership Interests to be exchanged or (iii)
exchange such interests for a combination of such cash and securities. The
Partnership shall then be obligated to redeem or exchange the Class A Limited
Partnership Interests in accordance with the Representative Class A Limited
Partner's notice on the Class A Maturity Redemption Date. Notwithstanding the
foregoing, the Partnership has the right not to redeem the relevant portion of
the Class A Limited Partnership Interests for cash, and may instead keep such
interests outstanding, in which case such interests thereafter shall accrue
Class A Periodic Distributions at the rate of 15% per annum on the Class A
Principal Preference and the Class A Deferral Preference until paid. If the
interests remain outstanding, the Partnership thereafter may at any time redeem
or exchange such outstanding interests in accordance with the notice procedures,
periods and right of the Representative Class A Limited Partner to elect its
form of consideration as set forth above for the Class A Maturity Redemption
Date. The Partnership shall in any event be required to redeem or exchange such
outstanding interests in accordance with such notice procedures, periods and
right of the Representative Class A Limited Partner to elect its form of
consideration as set forth above for the Class A Maturity Redemption Date, no
later than the eight and one-half year anniversary of the closing under the
Debenture Purchase Agreement.
(d) Class A Limited Partner Exchange Right. Each Class A Limited
Partner shall have the right, but not the obligation, exercisable at any time
upon at least 10 day's prior written notice to the Partnership, to require the
Partnership to exchange its Class A Limited Partner Interest, in whole or in
part, for Debentures or Conversion Shares or any combination thereof in an
amount equal to the Class A Stock Redemption Amount, together with a cash
payment for any accrued and unpaid Class A Periodic Distributions in respect of
the Class A Limited Partnership Interests to be exchanged (less the amount of
any accrued and unpaid Class A Periodic Distributions associated with
Debentures, if any, received in such exchange).
(e) Unpaid Class A Periodic Distributions and Interest on Debentures in
Debenture Exchange. Without limiting the Partnership's obligation to pay any
accrued and unpaid Class A Periodic Distributions in connection with an exchange
of Class A Limited Partnership Interests for Debentures or Conversion Shares,
whenever this Agreement provides that a Person shall receive accrued but unpaid
Class A Periodic Distributions in respect of a Class A Limited
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Partnership Interest being exchanged for Debentures, the person receiving the
Debentures in such exchange (the "Exchanging Partner") shall not receive, and
the Partnership shall retain all rights to, accrued but unpaid interest on such
Debentures to the date of exchange. If, after the exchange any Class A Periodic
Distributions are unpaid in respect of any Class A Limited Partnership Interest
exchanged for Debentures, the Partnership shall pay to the Exchanging Partner
interest received in respect of such Debentures to the extent necessary to
satisfy such unpaid Class A Periodic Distributions. The Exchanging Partner
agrees to execute such documents as the Partnership may reasonably request to
assure that interest payments are paid from the Company as set forth above.
Section 4.5 PRO RATA TREATMENT. Notwithstanding anything to the
contrary set forth in this Agreement or elsewhere, in no event shall any
distribution, payment or other transfer of property be made by the Partnership
with respect to the Class B Limited Partnership Interests, nor shall any offer
be made to redeem any Class B Limited Partnership Interests, in each case other
than on a pro rata basis with respect to all Class B Partnership Interests based
upon their respective Percentage Interests.
Section 4.6 CLASS B LIMITED PARTNERSHIP EXCHANGE. To the extent that
the General Partner may cause the Partnership to dispose of Debentures or
Conversion Shares pursuant to Section 5.4(b)(9) without the consent of the
Representative Class A Limited Partner (the amount of disposable Debentures or
Conversion Shares being the "Available Disposal Amount"), each Class B Limited
Partner shall have the right to require the General Partner to cause the
Partnership to deliver to the Class B Limited Partner up to such Class B Limited
Partner's Percentage Interest in the Available Disposal Amount of Debentures or
Conversion Shares in exchange for an appropriate portion of its Class B Limited
Partnership Interest.
ARTICLE V
PARTNERSHIP INTERESTS
Section 5.1 LIABILITY OF LIMITED PARTNERS. (a) Except as otherwise
provided by the Delaware Act, (i) the debts, obligations and liabilities of the
Partnership, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Partnership and (ii) no Limited
Partner shall be obligated personally for any such debt, obligation or liability
of the Partnership solely by reason of being a Limited Partner in the
Partnership.
(b) A Limited Partner, in its capacity as such, shall have no liability
in excess of (i) the amount of its Capital Contribution, (ii) its share of any
assets and undistributed profits of the Partnership, (iii) any amounts required
to be paid by such Limited Partner pursuant to this Agreement or any payment
and/or indemnity in connection with the registration of transfers of Partnership
Interests and (iv) the amount of any distributions wrongfully distributed to it
to the extent set forth in the Delaware Act.
Section 5.2 TRANSFER OF PARTNERSHIP INTERESTS. (a) Except for any
Permitted Transfer, no Partner may, directly or indirectly, sell, or assign,
transfer, grant a participation in, pledge or otherwise dispose of (each such
action, a "TRANSFER") its Partnership Interest or withdraw from the Partnership
in its capacity as a Partner without the consent of the General Partner, which
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may be given or withheld in the General Partner's sole and absolute discretion;
provided that, such discretion will not be applied in a manner that
discriminates unreasonably against any Partner. The general partnership interest
and the Limited Partnership Interests will be evidenced solely by the
Partnership Agreement and will not be evidenced by separate definitive
certificates. Notwithstanding the foregoing, the Class A Limited Partners may
Transfer their Class A Limited Partner Interests without the consent of the
General Partner or any other Partner to any Person, subject only to clauses (ii)
and (iii) of Section 5.2(b).
(b) A Partner may Transfer its Partnership Interest only if (i) the
transferee would be a Permitted Transferee immediately upon consummation of such
Transfer, and (ii) such transferee shall have agreed in writing to be bound by
the terms of this Agreement, the Restricted Securities Agreement and the
Standstill Agreement to the extent applicable to the Transferring Partner and
(iii) such transfer shall not violate any applicable federal or state securities
laws or the Debenture Purchase Agreement or the Standstill Agreement to the
extent applicable to the Transferring Partner (a "PERMITTED TRANSFER").
(c) No Partnership Interest shall be Transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this Agreement.
Any Transfer or purported Transfer of any Partnership Interest not made in
accordance with this Agreement shall be null and void.
Section 5.3 VOTING RIGHTS. Except as provided otherwise in this
Agreement or the Delaware Act, the General Partner shall have sole authority to
vote or consent on all matters subject to a vote of Partners. Except as required
by law or to the contrary elsewhere in this Agreement, Limited Partners shall
not be entitled to vote.
Section 5.4 REPRESENTATIVE CLASS A LIMITED PARTNER; CONSENT
REQUIREMENTS. (a) The Class A Limited Partners shall be represented by the
Representative Class A Limited Partner and, to the extent provided in this
Agreement, all rights and powers of each Class A Limited Partner shall be
exercised exclusively by the Representative Class A Limited Partner on behalf of
and in the name of the Class A Limited Partners.
(b) So long as any Class A Limited Partnership Interests are
outstanding, the General Partner shall not take, except as may be required by
applicable law, without the prior written consent of the Representative Class A
Limited Partner, any of the actions set forth below or elsewhere in this
Agreement as requiring such consent:
(1) approving any plan of merger, acquisition or consolidation, or plan
for the sale of all or substantially all of the assets, of the Partnership,
except in connection with the redemption in full of the Class A Limited
Partnership Interests;
(2) the issuance of any additional Partnership Interest (other than the
issuances contemplated in this Agreement), or any other securities
convertible into, or any rights, warrants or options to acquire, any
Partnership Interest;
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(3) the redemption, transfer, sale, pledge or other disposition of any
Partnership Interest (except for the redemption of the Class A Limited
Partnership Interests pursuant to Section 4.4 of this Agreement);
(4) incurring any Indebtedness of the Partnership, other than the
amounts owing in the ordinary course for legal and accounting expenses and
other than in connection with the redemption in full of Class A Limited
Partnership Interests;
(5) effecting any transactions for value between the Partnership and
the General Partner or any of their respective Affiliates;
(6) effecting any change in the principal providers of outside legal,
accounting, tax, banking, financing and other services to the Partnership;
(7) dissolving or liquidating the Partnership;
(8) agreeing to any amendment to the Debenture Purchase Agreement or
any of the Ancillary Agreements (as defined in the Debenture Purchase
Agreement); and
(9) directly or indirectly selling, assigning, pledging, hypothecating
or otherwise disposing of, any of the Debentures or any Conversion Shares,
except to the extent of a pro rata amount of the Class B Limited Partners'
proportionate share of the Debentures or Conversion Shares that corresponds to
the proportion of the Debentures and Conversion Shares that have been received
by the Class A Limited Partners upon the exchange or redemption of their Class A
Limited Partnership Interests.
(c) If no Class A Limited Partnership Interests are outstanding, the
General Partner shall not take any of the actions specified in Sections
5.4(b)(1) through (8) without the prior written approval of holders of a
majority of the Class B Limited Partnership Interests.
Section 5.5 NO WITHDRAWAL OR REDEMPTION. No Partner will have a right
to withdraw from the Partnership and require payment to it of all or any portion
of its Capital Contributions or to require a redemption of its Partnership
Interest, except in connection with a dissolution of the Partnership as provided
in Article VIII.
Section 5.6 CURRENCY. All distributions and other payments and all
other monetary rights and obligations in respect of the Partnership Interests
shall be performed in United States dollars.
Section 5.7 CONTROL. The Limited Partners shall not participate in the
control of the business of the Partnership, or transact any business for the
Partnership, or have any power to sign for or to bind or otherwise act for the
Partnership.
Section 5.8 BANKRUPTCY OF A LIMITED PARTNER. The bankruptcy or
dissolution of any of the Limited Partners shall not result in the dissolution
or termination of the Partnership, but the rights of such bankrupt or dissolved
Limited Partner under this Agreement shall accrue to
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its respective estate or successor. Except as expressly provided for in this
Agreement, no other event affecting any of the Limited Partners (including but
not limited to insolvency or incapacity) shall affect the Partnership or this
Agreement.
ARTICLE VI
BOOKS AND RECORDS; TAX RETURNS
Section 6.1 BOOKS AND RECORDS. The General Partner shall maintain or
cause to be maintained full and accurate books of account with respect to the
operations of the Partnership and shall maintain such books of account at the
principal place of business of the Partnership. Any Partner or its designated
representative shall have the right to have access to and inspect and copy the
contents of such books and records. The Partnership's books and records shall be
filed and preserved for a period of at least seven(7) years or such longer
period as required by law.
Section 6.2 TAX RETURNS AND INFORMATION. The General Partner shall
prepare and file or cause to be prepared and filed all tax returns that the
Partnership is required to file. The Partnership's tax returns shall be
furnished no later than 30 days prior to the statutory date for filing to the
Representative Class A Limited Partner for review and approval (which shall not
be unreasonably withheld or delayed) prior to the statutory filing date such tax
returns. Within the shorter of (i) such period as may be required by applicable
law or regulation, and (ii) 90 days after the end of each calendar year, the
General Partner shall send or deliver to each Person who was a Partner at any
time during such year such tax information as shall be reasonably necessary for
the preparation by such Person of its federal income tax return and state income
and other tax returns.
Section 6.3 TAX ELECTIONS. The Partners intend that the Partnership be
treated as a partnership for all U.S. federal, state and local tax purposes. The
Partnership, if requested by the Representative Class A Limited Partner, shall
make the election under Section 754 of the Code and the Partnership and the
Representative Class A Limited Partner, if required, shall execute and deliver
any agreement, certificate or any other document to effect such election. The
General Partner is authorized to make, or cause the Partnership to make or
refrain from making, such other elections relating to tax matters as the General
Partner deems appropriate; provided, however, that such decisions are subject to
the review and approval of the Representative Class A Limited Partner; and
provided, further that the Representative Class A Limited Partner shall have the
right to compel the General Partner to take certain actions relating to tax
elections.
Section 6.4 TAX MATTERS PARTNER. The tax matters partner (as defined in
Section 6231 of the Code) of the Partnership shall be the General Partner (the
"TAX MATTERS PARTNER"). The Representative Class A Limited Partner shall be
considered to have retained such rights as are provided for under the Code with
respect to any examination, proposed adjustment or proceeding relating to
Partnership items. The Tax Matters Partner shall promptly notify the Partners if
any tax return of the Partnership is audited or if any adjustments are proposed
and shall promptly furnish to the Partners all notices concerning administrative
or judicial proceedings relating to tax matters. In addition, the Tax Matters
Partner shall supply such information to the Internal Revenue Service as may be
necessary to identify the Partners as "notice partners" under Section 6231 of
the
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Code. During the pendency of any administrative or judicial proceeding, the Tax
Matters Partner shall furnish to the Partners periodic reports concerning the
status of any such proceeding. The Representative Class A Limited Partner shall
be entitled to review all submissions and other correspondence to be made by the
Partnership pursuant to any administrative or other hearing or meeting, and the
Tax Matters Partner shall not offer or agree to a settlement of any
administrative or other proceeding without the prior written consent of the
Representative Class A Limited Partner, which consent will not be unreasonably
withheld or delayed. The Representative Class A Limited Partner shall be
entitled to engage its own independent counsel and accountants of its choice in
any administrative or other proceeding, and the Tax Matters Partner shall
provide such counsel or accountants with any assistance, including copies of
returns or documents, that such counsel or accountants shall reasonably request.
The Tax Matters Partner shall not resign as tax matters partner of the
Partnership, except upon the General Partner's withdrawal from the Partnership.
The Tax Matters Partner shall receive no additional compensation from the
Partnership for its services in that capacity, but all out-of-pocket expenses
incurred by the Tax Matters Partner in connection with the Partnership shall be
borne by the Partnership. Any amounts paid by the Tax Matters Partner on behalf
of the Partnership shall constitute an advance to the Partnership subject to
reimbursement and not a contribution to its capital.
Section 6.5 ACCOUNTANTS. The selection of the accountants for the
Partnership shall be made by the General Partner reasonably satisfactory to the
Representative Class A Limited Partner.
ARTICLE VII
MANAGEMENT OF THE PARTNERSHIP
Section 7.1 POWERS. Except as otherwise expressly provided herein,
including as provided in Section 5.4, the management and operation of the
Partnership shall be vested exclusively in the General Partner, who shall have
the power on behalf and in the name of the Partnership to carry out any and all
of the purposes of the Partnership and to perform all acts and enter into and
perform all contracts and other undertakings that it may deem necessary or
advisable or incidental thereto. Except as otherwise expressly provided, the
General Partner shall have, and shall have full authority in its discretion to
exercise, on behalf of and in the name of the Partnership, all rights and powers
of a general partner of a limited partnership under the Delaware Act necessary
or convenient to carry out the purposes of the Partnership.
Section 7.2 AUTHORITY. Whenever in this Agreement or elsewhere, it is
provided that consent is required of, or a demand shall be made by, or an act or
thing shall be done by or at the direction of, the Partnership, or whenever any
words of like import are used, all such consents, demands, acts and things are
to be made, given or done upon the consent of the General Partner or Person
acting under the authority of the General Partner, unless a contrary intention
is expressly indicated.
Section 7.3 FILING AND PUBLICATION. The General Partner shall file or
record with the appropriate public authorities and, if required, publish the
Partnership Certificate and any amendments thereto. The General Partner shall
use its best efforts to qualify or license the
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Partnership in each jurisdiction where the activities of the Partnership make
such qualification or licensing necessary or where failure to so qualify or
become licensed might have an adverse effect on the limited liability of the
Limited Partners.
Section 7.4 LIMITATION OF LIABILITY. Neither the General Partner, the
shareholders of the General Partner nor their Affiliates, nor any partner,
member, employee, stockholder or agent of any of such Persons, nor any Partner,
agent, employee or representative of the Partnership (each a "COVERED PERSON")
shall be liable to any other Partner for any action taken or omitted to be taken
by it or by any other Partner or other Person with respect to the Partnership,
except in the case of his or its own willful misconduct, fraud or gross
negligence. In furtherance and not in limitation of the foregoing, each Covered
Person shall be fully protected and justified with respect to any action or
omission taken or suffered by it in good faith to the extent that such action or
omission is taken or suffered in reliance upon and in accordance with the
written opinion as to matters of law of nationally recognized outside legal
counsel, or, as to matters of accounting, upon an internationally recognized
accounting firm, selected by it (or, in the case of an Affiliate, by the General
Partner) with reasonable care.
Section 7.5 SUCCESSOR GENERAL PARTNER. The General Partner may withdraw
at any time and cause another entity controlled by Theodore Ammon to be
substituted as General Partner. If Theodore Ammon 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 Mr. Ammon and designate a
new General Partner.
Section 7.6 INFORMATION RIGHTS. Upon the request of any Limited
Partner, the General Partner shall request from Moore on behalf of the
Partnership any information concerning Moore that the Partnership is legally
entitled to obtain from Moore and provide to such Limited Partner, subject to
such reasonable confidentiality agreements as the Partnership may require.
Section 7.7 AFFILIATE TRANSACTIONS. Subject to the rights of the Class
A Limited Partners under Section 5.4(b)(5), the General Partner agrees that all
transactions between it and the Partnership shall be effected on customary terms
and conditions as would be available at the time from unaffiliated third parties
negotiating with the Partnership on an arm's-length basis.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND WINDING UP
Section 8.1 EVENTS CAUSING DISSOLUTION. The Partnership shall be
dissolved upon the first to occur of the following:
(i) a resolution authorizing the Partnership's dissolution is adopted
by the General Partner's board of directors, and if any Class A Limited
Partnership Interests are outstanding, approved by the Representative Class
A Limited Partners;
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(ii) the entry of a decree of judicial dissolution;
(iii) the full conversion of all Debentures owned by the Partnership
into Conversion Shares or the full redemption of Debentures owned by the
Partnership at any time after no Class A Limited Partnership Interests are
outstanding; or
(iv) the maturity of the Debentures.
Section 8.2 WINDING UP. If the Partnership is dissolved pursuant to
Section 8.1, the Partnership's affairs shall be wound up by the General Partner
as soon as reasonably practicable in the manner set forth below.
Section 8.3 LIQUIDATION. In winding up the affairs of the Partnership,
the General Partner shall have full right and unlimited discretion, for and on
behalf of the Partnership:
(i) to prosecute and defend civil, criminal or administrative suits;
(ii) to collect assets, including obligations owed to the Partnership;
(iii) to settle and close the Partnership's business;
(iv) to pay all reasonable costs and expenses incurred in connection
with the winding up;
(v) to discharge the Partnership's known liabilities and, if necessary,
to set up, and retain, for such period as will be reasonably likely to
provide compensation for all known and unknown clauses likely to arise or
become known, such cash reserves as the General Partner may deem reasonably
necessary for any contingent or unforeseen liabilities or obligations of
the Partnership;
(vi) to prepare, execute, acknowledge and file a certificate of
cancellation under the Delaware Act and any other certificates, tax returns
or instruments necessary or advisable under any applicable law to effect
the winding up and termination of the Partnership; and
(vii) to exercise, without further authorization or consent of any of
the parties hereto or their legal representatives or successors in
interest, all of the powers necessary or desirable in the good faith
judgment of the General Partner to perform its duties and functions.
Section 8.4 ORDER OF DISTRIBUTION. Upon any dissolution, liquidation or
winding up of the Partnership, after paying any creditors of the Partnership as
required by ss. 17-804 of the Delaware Act, the assets of the Partnership will
be applied as follows:
(i) to pay to each Class A Limited Partner an amount in cash equal to
its Class A Preference and accrued but unpaid Class A Periodic
Distributions (to the extent not already included in the Class A
Preference) as of the date of distribution or, if the Partnership
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holds Debentures or Conversion Shares, the Representative Class A Limited
Partner may elect to receive a distribution in-kind of Debentures or
Conversion Shares in an amount equal to the Class A Stock Redemption Amount
in satisfaction in whole or in part of the Class A Preference and any
accrued but unpaid Class A Periodic Distributions as of the date of
distribution; and
(ii) to pay to the Class B Limited Partners and the General Partner any
amount remaining, either in-kind or in cash, in proportion to their
respective Class B Percentage Interests as of the date of such
distribution.
Section 8.5 TERMINATION. The Partnership shall terminate when all of
the assets of the Partnership, after payment of or due provision for all debts,
liabilities and obligations of the Partnership, shall have been distributed to
the Partners in the manner provided for in this Section 8.4 and the Partnership
Certificate shall have been canceled in the manner required by the Delaware Act.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1 ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the Partners relating to the subject matter hereof and all prior
agreements relative hereto which are not contained herein are terminated.
Section 9.2 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.
Section 9.3 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.
Section 9.4 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.
Section 9.5 AMENDMENT. Except as expressly provided herein, this
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 this Agreement without the consent of such
affected Limited Partner and after there are no Class A Limited Partnership
Interests outstanding, no such amendment shall be approved without the written
consent of a majority of the Class B Limited Partnership Interests.
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Section 9.6 HEADINGS. The Article and Section headings appearing in
this Agreement are for convenience of reference only and are not intended, to
any extent or for any purposes, to limit or define the text of any Article or
Section hereof.
Section 9.7 NOTICES. All notices provided for in this Agreement shall
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(i) If given to the Partnership, to:
Chancery Lane/GSC Investors L.P.
c/o CLGI, Inc.,
General Partner
3 East 54th Street - Suite 1700
New York, New York 10022
Attention: Chief Executive Officer
Fax: 212-223-4074
(ii) If given to a Class A Limited Partner to:
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.
c/o Greenwich Street Investments II, L.L.C., General Partner
12 East 49th Street
Suite 3200
New York, New York 10017
Attention: Matthew Kaufman
Fax: 212-884-6184
(iii) If given to any Class B Limited Partner (other than a former
Class A Limited Partner), to the address set forth opposite such Class B
Limited Partner name in Schedule B hereto.
(iv) Any Person who becomes a Partner shall provide its address and fax
number to the Partnership, which shall promptly provide such information to
each Partner.
Section 9.8 EXPENSES. The General Partner shall direct Moore and shall
pay or cause Moore to pay to the account of GSCP (NJ) LP at the closing under
the Debenture Purchase Agreement the amount of $1.5 million in cash by wire
transfer of immediately available funds to an account designated in writing by
the Representative Class A Limited Partner to the General Partner. In addition,
the General Partner shall reimburse or direct and cause Moore to reimburse the
Representative Class A Limited Partner, Chancery Lane Capital LLC and DB Capital
for all of their respective reasonable out-of-pocket expenses incurred in
connection with the execution, delivery,
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performance and closing of the transactions under the Debenture Purchase
Agreement and the Ancillary Agreements, and under this Agreement, the Restricted
Securities Agreement and the Subscription Agreement.
Section 9.9 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.
Section 9.10 RIGHT TO DELIVERY OF DEBENTURES/CONVERSION SHARES. The
right of any Partner under this Agreement to elect to receive Debentures or
Conversion Shares shall be limited to the extent the party required to deliver
the Debentures or Conversion Shares has or has the right to receive such
securities.
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L.P. Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
CLGI, INC. CHANCERY LANE MIC, L.P.
By: CLGI, Inc., General Partner
By:__________________________ By:____________________________
Name: Mark Angelson Name: Mark Angelson
Title: Deputy Chairman Title: Deputy Chairman
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:__________________________
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P., its General Partner
By: DB Capital Partners, Inc., its General Partner
By:_________________________________
Name: William J. Lovejoy
Title: Director
Address: 130 Liberty Street, 25th Floor
New York, NY 10006
Fax: (212) 250-7651
Email: [email protected]
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<PAGE>
L.P. Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
BTIP/BERENSON MINELLA
By:____________________________________
Name: Gregg Feinstein
Title: Partner / Berenson Minella & Co.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
ROBERT G. BURTON
--------------------
Address: 170 Clapboard Ridge Rd.
Greenwich, CT 06831
Phone: (203) 869-1315
Facsimile: (203) 869-1319
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above stated.
JAMES E. LILLIE
--------------------
Address: 49 Powederhorn Hill Road
Wilton, CT 06897
Phone: (203) 761-9953
Facsimile: (203) 761-9938
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
ROBERT E. LEWIS
--------------------
Address: 55 Tanners Drive
Wilton, CT 06897
Phone: (203) 762-2235
Facsimile: (203) 834-1332
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
THOMAS QUINLAN III
--------------------
Address: 564 Bement Avenue
Staten Island, NY 10310
Phone: (718) 273-0643
Facsimile: (718) 442-6223
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
MARK HILTWEIN
--------------------
Address: 515 Bradford Avenue
Westfield, NJ 07090
Phone: (908) 232-3801
Facsimile: (908) 232-3482
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
ROBERT BURTON JR.
--------------------
Address: 170 Clapboard Ridge Rd.
Greenwich, CT 06831
Phone: (203) 869-1315
Facsimile: (203) 869-1319
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
MICHAEL BURTON
--------------------
Address: 170 Clapboard Ridge Rd.
Greenwich, CT 06831
Phone: (203) 869-1315
Facsimile: (203) 869-1319
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
ROGER ALTMAN
--------------------
Address: 65 East 55th Street, 33rd Floor
New York, NY 10022
Phone: (212) 857-3110
Facsimile: (212) 857-3112
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
AUSTIN BEUTNER
--------------------
Address: 65 East 55th Street, 33rd Floor
New York, NY 10022
Phone: (212) 857-3120
Facsimile: (212) 857-3172
Email: [email protected]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
MARK ALAN ANGELSON 1997 TRUST
By:____________________
Name: Mark Alan Angelson
Title: Trustee
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<PAGE>
ANNEX I
CAPITAL CONTRIBUTIONS
<TABLE>
<CAPTION>
CLASS A CLASS B
LIMITED CLASS A LIMITED CLASS B
PARTNERSHIP PERCENTAGE PARTNERSHIP PERCENTAGE
PARTNER INTEREST INTEREST INTEREST INTEREST*
-------------------------------------------------- ----------------- ------------------------------ --------------
<S> <C> <C> <C> <C>
Greenwich Street Capital Partners II, L.P. $41,988,766 89.3378%
GSCP Offshore Fund, L.P. $875,375 1.8625%
Greenwich Fund, L.P. $1,422,314 3.0262%
Greenwich Street Employees Fund, L.P. $2,506,604 5.3332%
TRV Executive Fund, L.P. $206,941 0.4403%
Total Class A $47,000,000
Chancery Lane MIC, L.P. $4,999,999 21.2766%
Greenwich Street Capital Partners II, L.P. $4,466,890 19.0080%
GSCP Offshore Fund, L.P. $93,125 0.3963%
Greenwich Fund, L.P. $151,310 0.6439%
Greenwich Street Employees Fund, L.P. $266,660 1.1347%
TRV Executive Fund, L.P. $22,015 0.0937%
BTIP/Berenson Minella $5,000,000 21.2766%
DB Capital Investors, L.P. $5,000,000 21.2766%
Mark Alan Angelson 1997 Trust $150,000 0.6383%
Roger Altman $100,000 0.4255%
Austin Beutner $100,000 0.4255%
Robert Burton $2,000,000 8.5106%
James E. Lillie $300,000 1.2766%
Robert B. Lewis $300,000 1.2766%
Thomas Quinlan, III $250,000 1.0638%
Mark Hiltwein $100,000 0.4255%
<FN>
--------
*Approximate percentages, the final digit has been rounded.
</FN>
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
Robert Burton, Jr. $100,000 0.4255%
Michael Burton $100,000 0.4255%
CLGI, Inc. $1 0.0000%
-----------
Total Class B $23,500,000
</TABLE>
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<PAGE>
SCHEDULE A
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.
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<PAGE>
SCHEDULE B
Class B Limited Partners and General Partner
NAME ADDRESS
Chancery Lane MIC, L.P. 3 East 54th Street, 17th Floor,
New York, NY 10022
Greenwich Street Capital Partners II, L.P. 500 Campus Drive
Florham, NJ 07932
GSCP Offshore Fund, L.P. 500 Campus Drive
Florham, NJ 07932
Greenwich Fund, L.P. 500 Campus Drive
Florham, NJ 07932
Greenwich Street Employees Fund, L.P. 500 Campus Drive
Florham, NJ 07932
TRV Executive Fund, L.P. 500 Campus Drive
Florham, NJ 07932
BTIP/Berenson Minella 667 Madison Avenue
New York, NY 10021
DB Capital Investors, L.P. 130 Liberty Street
New York, NY 10006
Mark Alan Angelson 1997 Trust 876 Park Avenue
New York, NY 10021
Roger Altman Evercore Partners
65 East 55th Street, 33rd Floor
New York, NY 10022
Austin Beutner Evercore Partners
65 East 55th Street, 33rd Floor
New York, NY 10022
Robert Burton 170 Clapboard Ridge Rd.
Greenwich, CT 06831
James E. Lillie 49 Powderhorn Hill Road
Wilton, CT 06897
Robert B. Lewis 55 Tanners Drive
Wilton, CT 06897
Thomas Quinlan, III 564 Bement Avenue
Staten Island, NY 10310
-39-
<PAGE>
Mark Hiltwein 515 Bradford Avenue
Westfield, NJ 07090
Robert Burton, Jr. 170 Clapboard Ridge Rd.
Greenwich, CT 06831
Michael Burton 170 Clapboard Ridge Rd.
Greenwich, CT 06831
CLGI, Inc. 3 East 54th Street, 17th Floor
New York, NY 10022
-40-
