FIRST AMENDMENT TO
OPERATING AGREEMENT
OF
XXXXX CAPITAL PARTNERS, LLC
a Delaware Limited Liability Company
THIS AMENDMENT, dated as of December 1, 2000, to the Operating
Agreement, entered into effective as of the 30th day of November, 1999 (the
"Original Agreement"), by and among Xxxxx National Corporation, RCP Investments,
L.P, and J. Xxxxxx Xxxxx, Xx. (the "Members"), being all of the members of XXXXX
CAPITAL PARTNERS, LLC, a Delaware limited liability company (the Company");
W I T N E S S E T H:
WHEREAS, the Members wish to amend the Original Agreement in
certain respects, as set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual promises hereinafter set forth, the parties hereto do hereby amend the
Original Agreement as follows:
1. Section 1.21 of the Original Agreement is amended to
read in its entirety as follows:
1.21 "Distributable Amounts" means Net Cash Flow from
investments made by the Company for which J. Xxxxxx Xxxxx, Xx., or RCP
Investments, L.P., has served as the Investment Advisor, or from any
reinvestment of proceeds from such investments.
2. Section 1.24 of the Original Agreement is amended to
read in its entirety as follows:
"Investment Advisor" shall mean RCP Investments, L.P., or such
other person as may hereafter be designated as investment advisor to
the Company.
3. Section 5.9 of the Original Agreement is amended to
read in its entirety as follows:
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5.9 Compensation. The Managing Member shall not be
entitled to any fee or other compensation, other than reimbursement
of expenses incurred by it on behalf of or for the benefit of the
Company, in consideration for its service as Managing Member. The
Company shall enter into an Investment and Management Agreement with
the Investment Advisor, which will entitle the Investment Advisor to
receive an annual management fee equal to Two Percent (2%) of
$100,000,000, or Two Million Dollars ($2,000,000), out of which
amount the Investment Advisor shall fund all expenses of operating
and managing the Company, excluding origination expenses for raising
funds from additional Members, but including, without limitation,
any expenses for goods or services provided to or for the benefit
of the Company or the Investment Advisor pursuant to an Operating
and Services Agreement with Xxxxx Bank N.A.
4. Except as specifically provided herein, the Original
Agreement shall remain in full force and effect. This Amendment may be executed
in any number of counterparts, all of which shall constitute a single
instrument. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns.
IN WITNESS WHEREOF, the undersigned have set their hands as of
the day and year first above written.
XXXXX NATIONAL CORPORATION
By /s/ XXXXXXX X. XXXXXXXX /s/ J. XXXXXX XXXXX, XX.
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Xxxxxxx X. Xxxxxxxx, President J. Xxxxxx Xxxxx, Xx.
RCP Investments, L.P.
By /s/ J. XXXXXX XXXXX, XX.
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J. Xxxxxx Xxxxx, Xx., General Partner
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