FIRST AMENDMENT TO
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LIMITED LIABILITY COMPANY AGREEMENT
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OF XXXXXXXXXXX.XXX, LLC
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This FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement"), dated as of June 26, 2000, is made by Point West Capital
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Corporation, as a Member of XxxxxxxXxxx.xxx, LLC, a Delaware limited liability
company (the "Company").
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RECITALS
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A. Point West Capital Corporation, Xxxx X. Xxxx, Xxxxxx X. Xxxxx and
Xxxxxxx X. London have previously entered into that certain Limited Liability
Company Agreement of XxxxxxxXxxx.xxx, LLC, dated as of May 10, 2000 (the
"Operating Agreement"), which is the limited liability company agreement for the
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Company; and
B. Point West, as the holder of a Majority Voting Interest, desires to
amend the Operating Agreement as more particularly set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration (the receipt and adequacy
of which are hereby acknowledged), it is hereby agreed as follows:
Section 1. Defined Terms. Unless otherwise defined herein, each capitalized
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term used herein has the meaning ascribed thereto in the Operating Agreement.
Section 2. Amendment to the Operating Agreement. Notwithstanding anything to
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the contrary contained in the Operating Agreement, upon the effectiveness of
this Agreement in accordance with the terms and conditions hereof, Section 8.4
of the Operating Agreement is hereby deleted in its entirety and a new Section
8.4 substituted therefor as follows:
8.4 Bank Accounts; Contracts. The Manager shall maintain the
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funds of the Company in one or more separate bank accounts in the name
of the Company and shall not permit the funds of the Company to be
commingled in any fashion with the funds of any other Person. The funds
of the Company shall be deposited in such bank or other financial
institution account or accounts, or invested in such interest-bearing
or non-interest-bearing investments, as shall be designated by the
Manager in investments that are at least rated investment grade by one
nationally recognized statistical rating agency. All withdrawals from
any such bank account(s) shall be made only by the Manager or by such
Persons as are duly appointed by the Manager. The Chief Executive
Officer of the Company shall establish the Company's initial bank
account(s) (into which Point West shall deposit any Capital
Contributions required to be made by it under Section 3.1.1) and shall
require at least one signature of an officer of the Manager for any
withdrawal, and such officers of the Company shall provide information
about such account(s) to the Manager as the Manager shall require.
Notwithstanding anything to the contrary contained herein or in any
employment agreement entered into by the Company with any of its
employees, any contract or other obligation involving an obligation on
the part of the Company to pay or contract for services, to pay or
guarantee indebtedness, to make investments or to provide services
shall require at least one signature of an officer of the Manager.
Section 3. Effectiveness of Agreement. This Agreement, which was previously
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delivered to all Members on June 23, 2000, became effective as of the date first
written above.
Section 4. Representations, Warranties and Covenants. Point West represents and
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warrants that, as of the date hereof and as of the date of its execution and
delivery hereof, it is a Member holding a Majority Voting Interest.
Section 5. General Provisions.
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(a) Further Assurances. Point West shall perform any further acts and
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execute and deliver any additional documents that may be reasonably necessary to
carry out the provisions of this Agreement.
(b) Authority of Persons Signing Agreement. Point West represents and
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warrants that it is duly authorized to enter into this Agreement and that the
Agreement is valid, binding and enforceable as to it.
(c) Parties in Interest. Except as expressly provided in the Act,
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nothing in this Agreement shall confer any rights or remedies under or by reason
of this Agreement on any Persons other than the Members and their respective
successors and assigns nor shall anything in this Agreement relieve or discharge
the obligation or liability of any other Person to any party to this Agreement,
nor shall any provision give any other Person any right of subrogation or action
over or against any party to this Agreement.
(d) Amendment of the Operating Agreement. Except as expressly amended
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and modified hereby, the Operating Agreement shall remain unchanged and in full
force and effect.
(e) Severability of Provisions. If any one or more of the provisions
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contained in this Agreement is held to be invalid, illegal, or unenforceable in
any respect, then such provision(s) shall be ineffective only to the extent of
such prohibition or invalidity, and the validity, legality, and enforceability
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
(f) Successors and Assigns. Subject to the provisions of the Operating
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Agreement, this Agreement shall be binding on and shall inure to the benefit of
the Members and the Company and their respective heirs, legal representatives,
successors, and assigns.
(j) Arbitration; Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS
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BE SUBJECT TO SECTIONS 12.20 (ARBITRATION) AND 12.21 (GOVERNING LAW) OF THE
OPERATING AGREEMENT.
Document continues with signature page.
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IN WITNESS WHEREOF, Point West, as a Member of the Company, has
executed and delivered this Agreement as of the date first written above.
POINT WEST CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
