EXHIBIT C
SECOND AMENDMENT
TO
OPERATING AGREEMENT FOR
TRILON DOMINION PARTNERS, L.L.C.
(f.k.a. Venture Capital Equities, L.L.C.)
This Amendment to the Operating Agreement (the "Amendment") dated as of
July 31, 2000, is entered into between Dominion Capital, Inc. ("DCI") and VC
Holdings, Inc. ("VC Holdings"). All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the
Operating Agreement (as defined below).
RECITALS
--------
A. DCI and VC HOLDINGS entered into an Operating Agreement for Venture
Capital Equities, L.L.C. as of June 30, 1995, as amended by a first
amendment thereto, dated as of December 3, 1998 (the agreement, as
amended by such amendments, hereinafter, the "Operating Agreement").
B. DCI and VC HOLDINGS wish to make certain modifications to the
Operating Agreement in connection with, among other things, a decision
by DCI and VC HOLDINGS to extend the term of the Company beyond
December 31, 2000, as currently provided in Section 2.5 of the
Operating Agreement.
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
1. The first paragraph of the Operating Agreement shall be deleted
and replaced with the following:
AGREEMENT made as of and June 30, 1995, by and between VC
Holdings, Inc. ("VC Holdings"), a Delaware corporation, having an
office c/o Xxxxxx X. Xxxxxxxx, 00 Xxxxxxxx Xxxx Xxxx, Xxx
Xxxxxxxxx, XX 00000, and Dominion Capital, Inc. ("DCI"), a
Virginia corporation, having an office at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, XX 00000-0000 (hereinafter VC Holdings and DCI are
sometimes referred to individually as "Member" and collectively
as the "Members").
2. Section 2.4 shall be deleted and replaced with the following:
Principal Office. The principal office of business of the
Company shall be c/o Xxxxxx X. Xxxxxxxx, 00 Xxxxxxxx Xxxx Xxxx,
Xxx Xxxxxxxxx, XX, 00000.
At any time, the Company may change the location of its principal
place of business and may establish additional offices.
3. Section 2.5 shall be deleted and replaced with the following:
Term. The Company shall commence upon the filing of the
Certificate of Formation, and shall continue in full force and
effect until April 30, 2003, (unless otherwise extended on a
year-to-year basis upon the prior written consent of each of the
Members); provided, however, that the Company shall be dissolved
prior to such date upon the happening of any of the events
described in Article 11.
4. Sections 4.1(a), (b) shall be deleted and Section 4.1(c) shall
remain, so that Section 4.1(c) shall read as follows:
Additional Contribution. VC Holdings shall make additional
contributions to the Company from time to time as may be
necessary to maintain the Capital Interest in the Company, as
reflected in the audited financial statements of the Company, at
not less than 3% of the total Capital Interests in the Company.
5. The second paragraph of Section 4.1(d) shall be deleted and
replaced with the following:
The parties agree that the Company shall reimburse VC Holdings
for its pro rata share of office and administrative expenses, not
to exceed $112,500 per annum. The Operating Budget for the
Company shall reflect such expense. The Company will also pay VC
Holdings an annual administration fee of $250,000 beginning on
August 1, 2000 (the "Administration Fee").
6. Section 7.7 shall be deleted and replaced with the following:
Manager Representatives. The officers and directors of VC
Holdings are as follows:
Xxxxxx Xxxxxxxx will be President and Director; Xxxx X. Xxxxx
will be Executive Vice President, Chief Financial Officer and
Director; and Xxxxxx Xxxx-Page will be
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Secretary, Treasurer and Director. No mortgagee, person, firm
trustee, grantee, partnership, corporation, limited liability
company or other entity shall be required to inquire into (i) the
authority of VC Holdings or the Officers and Directors of VC
Holdings or the Manager of the Company or (ii) the authority of
the Manager to execute and perform any documents on behalf of the
Company.
7. Section 11.1(a) shall be deleted and replaced with the following:
(a) after August 1, 2001, (i) upon 12 months written notice from
DCI or (ii) immediately upon the payment of a lump sum equal
to (A) one year's Administration Fee plus (B) an amount
sufficient to reimburse VCH for its pro rata share of office
and administrative expense for a twelve-month period, such
amount not to exceed $112,500.
8. Section 15.4 shall be deleted and replaced with the following:
Notices. Unless otherwise specified in this Agreement, all
notices, demands, requests or other communications which any of
the parties to this Agreement may desire or be required to give
hereunder (hereinafter referred to collectively as "Notices")
shall be in writing and shall be delivered by personal delivery
against receipt or by any nationally recognized overnight courier
to the appropriate Member at the address first set forth below:
If to VC Holdings to:
Xxxxxx X. Xxxxxxxx
00 Xxxxxxxx Xxxx Xxxx
Xxx Xxxxxxxxx, XX 00000
If to DCI to:
Dominion Capital, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
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9. Section 15.8 shall be amended to delete the brackets around
"[75%]".
10. Except as expressly modified and amended in this Amendment all of
the terms, provisions and conditions of the Operating Agreement
shall remain unchanged.
11. This Amendment may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same
instrument.
12. This Amendment shall be governed and construed and interpreted in
accordance with the laws of the State of New York.
This Amendment is executed as of the day and year first written above.
DOMINION CAPITAL, INC. VC HOLDINGS, INC.
By: s/Xxxxxxx Condrief By: s/Xxxxxx X. Xxxxxxxx
------------------ --------------------
Its: Its:
------------------ --------------------
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AMENDMENT
TO
OPERATING AGREEMENT FOR
TRILON DOMINION PARTNERS, L.L.C.
(f.k.a. Venture Capital Equities, L.L.C.)
This Amendment to the Operating Agreement (this "Amendment") dated as of
December 3, 1998, is entered into between Dominion Capital, Inc. ("DCI") and VC
Holdings, Inc. ("VCH"). All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Operating
Agreement (as defined below).
RECITALS
--------
A. DCI and VCH entered into the Operating Agreement for Venture Capital
Equities, L.L.C. as of June 30, 1995 (the "Operating Agreement").
B. DCI and VCH wish to make certain modifications to the Operating
Agreement in connection with DCI's decision not to exercise its option, pursuant
to Section 11.1 of such Agreement, to dissolve the Company on the 31st of
December 1998.
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Effective January 1, 1999, the Operating Agreement shall be amended to add
a Section 4.1(d), to read as follows:
"DCI shall have the right to approve the operating budget of the Company.
DCI shall contribute to the Company, on a quarterly basis, such additional
capital as necessary to cover agreed-upon quarterly budgeted operating
expenses of the Company for the upcoming quarter. DCI shall further
contribute to the Company, within 10 days of notice of such requirement,
such additional capital as necessary to cover any shortfall between the
budgeted amount and actual bona fide operating expenses for such quarter.
In the event actual bona fide expenses are less than the budgeted amount,
any excess paid by DCI shall be used as a credit towards its obligation to
fund amounts for the next quarter, or, at its option, will be returned to
DCI. Upon dissolution of the Company, any excess amounts shall be returned
to DCI".
The parties agree that the Company will reimburse VCH for its pro rata
share of office and administrative expenses, not to exceed $75,000 per
annum, for fiscal year 1999. The Operating Budget for the Company will
reflect such expense. The Company will also pay VCH an annual
administration fee of $250,000 beginning on January 1, 1999 (the
"Administration Fee").
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2. Section 11.1(a) shall be deleted and replaced with the following:
(a) after June 30, 1999, (i) upon 12 months written notice from DCI or (ii)
immediately upon the payment of a lump sum equal to (A) one year's
Administration Fee plus (B) an amount sufficient to reimbursement VCH for
its pro rata share of office and administrative expenses for a twelve month
period, such amount not to exceed $75,000.
3. Section 4.2 of the Operating Agreement shall be amended to insert, after
the phrase "or to fund the revolving line of credit pursuant to Section
4.1(b)", the following phrase: ", or to fund such additional amounts as
required by Section 4.1(d)."
4. Section 7.4 shall be deleted in its entirety and replaced with the
following:
"Management Fee. The Manager shall receive an annual "Management Fee" of
(i) $200,000 plus (ii) the amount of .00189 times the aggregate of the
Members' Unrecovered Capital Contribution as of the determination date,
paid in advance."
5. Effective as of December 31, 1998, Sections 7.2(g) and 7.2(h) of the
Operating Agreement shall be deleted. The parties hereby agree that if,
after the payment of all accrued expenses for 1998, any amounts are
remaining in the two Reserve Accounts established pursuant to these
sections, such amounts will be returned to DCI or, at its option, used to
reduce its future funding obligations pursuant to the Operating Agreement.
6. Section 15.4 is hereby amended to delete: "with a copy to:
McGuire, Woods, Battle & Xxxxxx
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: R. Xxxxxxxx Xxxxxxxx"
And replace it with: "with a copy to:
Dominion Resources, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx"
7. Except as expressly modified and amended in this Amendment, all of the
terms, provisions and conditions of the Operating Agreement shall remain
unchanged.
8. This Amendment may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
9. This Amendment shall be governed by and construed and interpreted in
accordance with the laws of the State of New York.
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This Amendment is executed as of the day and year first written above.
DOMINION CAPITAL, INC. VC HOLDINGS, INC.
By: signature illegible By: signature illegible
------------------------- ---------------------------
Its: President and CEO Its: President
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[VC HOLDINGS, INC. LETTERHEAD]
December 2, 1996
Dominion Capital, Inc.
Riverfront Plaza
West Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Amendment of Operating Agreement
--------------------------------
Gentlemen:
VC Holdings, Inc. and Dominion Capital, Inc. are parties to a certain
Operating Agreement (the "Operating Agreement") for Trilon Dominion Partners,
L.L.C. (f/k/a Venture Capital Equities, L.L.C.). The following sets forth our
agreement with respect to a certain amendment to the Operating Agreement.
Capitalized terms not otherwise defined herein are as defined in the Agreement.
1. Section 7.6(c) of the Operating Agreement and the related Amendment
dated November 9, 1995 (see attached) are hereby deleted in their entirety and
the following is hereby substituted in lieu thereof:
"To borrow money from banks, other lending institutions, the Members, or
Affiliates, or any third party and in connection therewith, to hypothecate,
encumber and grant security interests in the assets of the Company to
secure repayment of the borrowed sums provided; provided, however, that the
Manager shall be permitted to pledge up to $14,000,000 of the Company's
marketable securities to support up to a $6,500,000 margin line of credit.
However, any and all borrowings under such margin line of credit shall
require the prior written consent of each Member, which consent shall not
be unreasonably withheld."
2. This amendment may be executed in one or more counterparts, all of which
together shall constitute one and the same instrument, and any party hereto may
execute this Agreement by signing any such counterpart.
3. Except as specifically amended or modified by this Amendment, all other
terms and provisions of the Operating Agreement shall remain in full force and
effect.
8
Please indicate your agreement to the foregoing by signing the attached
copy of this amendment as indicated below.
Very truly yours,
VC HOLDINGS, INC.
By: /s/Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Agreed to and Accepted:
DOMINION CAPITAL, INC.
By: /s/ Xxx Xxxxxxxx
----------------
Name: Xxx Xxxxxxxx
Title: Vice President
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[VC HOLDINGS, INC. LETTERHEAD]
November 9, 1995
Dominion Capital, Inc.
Riverfront Plaza
West Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: Amendment of Operating Agreement
--------------------------------
Gentlemen:
VC Holdings, Inc. and Dominion Capital, Inc. are parties to a certain
Operating Agreement (the "Operating Agreement") for Trilon Dominion Partners,
L.L.C. (f/k/a Venture Capital Equities, L.L.C.). The following sets forth our
agreement with respect to a certain amendment to the Operating Agreement.
Capitalized terms not otherwise defined herein are as defined in the Agreement.
1. Section 7.6(c) of the Operating Agreement is hereby deleted in its
entirety and the following is hereby substituted in lieu thereof:
"To borrow money from banks, other lending institutions, the Members, or
Affiliates, or any third party and in connection therewith, to hypothecate,
encumber and grant security interests in the assets of the Company to
secure repayment of the borrowed sums provided; provided, however, that the
Manager shall be permitted to pledge up to $10,000,000 of the Company's
marketable securities to support up to a $5,000,000 margin line of credit.
However, any and all borrowings under such margin line of credit shall
require the prior written consent of each Member, which consent shall not
be unreasonably withheld."
2. This amendment may be executed in one or more counterparts, all of which
together shall constitute one and the same instrument, and any party hereto may
execute this Agreement by signing any such counterpart.
3. Except as specifically amended or modified by this Amendment, all other
terms and provisions of the Operating Agreement shall remain in full force and
effect.
10
Please indicate your agreement to the foregoing by signing the attached
copy of this amendment as indicated below.
Very truly yours,
VC HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Vice President
Agreed to and Accepted:
DOMINION CAPITAL, INC.
By: /s/ Xxx Xxxxxxxx
----------------
Name: Xxx Xxxxxxxx
Title: Vice President
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