EXHIBIT 10.46
AMENDMENT TO THE AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT OF XXXXXX XXXXXXXXX
XxXXXXX, LLC DATED JUNE 28, 2002
Xxxxxx Xxxxxxxxx XxXxxxx, LLC
000 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
June 28, 2002
WT Investments, Inc.
Wilmington Trust Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxxx X. XxXxxxx
Xxxx X. Xxxxxx
Xxx X. Xxxxxxxx
Xxxxxx, Rosenthal, McGlynn, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Reference is made to that certain Second Amended and Restated Limited
Liability Company Agreement of Xxxxxx Xxxxxxxxx XxXxxxx, LLC (the "Company") by
and among the Company, WT Investments, Inc. ("WTI"), Xxxxxx, Rosenthal, McGlynn,
Inc., Wilmington Trust Corporation, and certain individuals dated as of January
1, 2001 (the "LLC Agreement"). The parties to the LLC Agreement wish to modify
the LLC Agreement as hereinafter set forth. All capitalized terms used but not
otherwise defined in this letter have the same meanings ascribed to them in the
LLC Agreement.
Notwithstanding any provisions contained in Section 6.3 of the LLC
Agreement to the contrary, (i) Profits or Losses for a Fiscal Year shall be
determined without regard to items of deduction relating to the aggregate bonus
payments made to certain employees of the Company listed on Schedule A hereto
during such Fiscal Year pursuant to those letter agreements dated June 28, 2002
between the Company and such employees (the "Bonuses"), which items of deduction
shall be separately determined and specially allocated entirely to WTI;
provided, however, all other Profits or Losses for any such Fiscal Year of the
Company shall be allocated among the Members as provided in Section 6.3 of the
LLC Agreement, and (ii) Available Cash to be distributed to the Members during
any Fiscal Year in which Bonuses are paid or during the following Fiscal Year
shall be distributed among the Members as follows: (A) first, the Company shall
determine the amount of Available Cash that would have been available for
distribution to the Members if the Bonuses had not been paid; (B) next, the
Company shall determine the portion of such amount that otherwise would have
been distributed to each Member in accordance with (and in proportion to) its
respective Membership Points
for such Fiscal Year in accordance with Section 6.3(a) of the LLC Agreement; and
(C) finally, the Company shall reduce such amount of Available Cash that would
have been distributed to WTI under clause (B) above by the amount of the Bonuses
paid and that have not been previously taken into account under this clause.
This arrangement will be appropriately reflected in the tax returns of the LLC.
For purposes of calculations to be made after the date hereof pursuant
to the methodology described in Exhibit B to the LLC Agreement, the amounts of
the Bonuses shall not be treated as expenses of the LLC.
Except as modified hereby, the LLC Agreement remains unchanged and, as
so modified, continues in full force and effect.
Please acknowledge your acceptance of, and agreement with, this letter
by signing it in the appropriate place set forth below.
XXXXXX XXXXXXXXX XxXXXXX, LLC
By: /s/ Xxxxxx X. XxXxxxx
-------------------------
Xxxxxx X. XxXxxxx
President and
Chief Executive Officer
AGREED TO AND ACCEPTED:
XXXXXX, ROSENTHAL, McGLYNN, INC.
By: /s/ Xxxxxx X. XxXxxxx
----------------------------
Xxxxxx X. XxXxxxx
President
Chief Executive Officer
WT INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Title: CFO
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WILMINGTON TRUST CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Title: CFO
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. XxXxxxx
----------------------------
Xxxxxx X. XxXxxxx
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
/s/ Xxx X. Xxxxxxxx
----------------------------
Xxx X. Xxxxxxxx
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