EXHIBIT D
AMENDMENT NO. 1 TO THE FIFTH AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT OF U-C HOLDINGS, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
This Amendment No. 1 to the Fifth Amended and Restated Limited Liability
Company Agreement of U-C Holdings, L.L.C. (this "AMENDMENT") dated as of
November 30, 2001, is executed, adopted and agreed by Xxxxxx Xxxxx & Partners,
L.P., a Delaware limited partnership ("WSPI"), Xxxxxx Xxxxx & Partners II, L.P.,
a Delaware limited partnership ("WSPII"), Xxxxxx Xxxxx & Partners Dutch, L.P., a
Delaware limited partnership ("WSP DUTCH" and, together with WSPI and WSPII the
"WSP PARTIES"), and the other Persons listed on Schedule A to the LLC Agreement.
The WSP Parties and the other Persons listed on Schedule A to the LLC Agreement
sometimes are referred to herein individually as a "PARTY" and collectively as
the "PARTIES."
WHEREAS, the Parties are party to the Fifth Amended and Restated Limited
Liability Company Agreement of U-C Holdings, L.L.C. (the "LLC AGREEMENT"), dated
as of April 5, 2001.
WHEREAS, the LLC Agreement was originally executed on April 25, 1997 and
was amended and restated in its entirety on May 15, 1997, July 23, 1999,
August 31, 1999 and April 5, 2001.
WHEREAS, pursuant to Section 13.4 of the LLC Agreement, the undersigned,
being the holders of a majority of the Investor Units, Management Units and
Preferred Units, desire to amend the LLC Agreement, and are willing to do so on
the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINED TERMS. Terms defined (directly or indirectly by
reference) in the LLC Agreement and used without other definition herein shall
have the respective meanings assigned to such terms in the LLC Agreement. The
rules of interpretation set forth in the LLC Agreement shall likewise govern
this Amendment.
2. CAPITAL CONTRIBUTIONS. Section 5.7 of the LLC Agreement shall be
and hereby is amended to add the following as a new paragraph (c) in Section
5.7:
"(c) Notwithstanding the foregoing, in the event all or any portion of
the principal of, or accrued but unpaid interest on, a Management Note
is (i) satisfied by the sale and/or surrender of Units and/or (ii)
cancelled, an amount equal to the amount thereby satisfied and/or
cancelled with respect to a Management Note issued in connection with
the Round One
Investment shall be treated as an additional Capital Contribution made
by WSPI with respect to Class A Investor Units (in each case as of the
date on which such satisfaction and/or cancellation is effective); and
an amount equal to the amount thereby satisfied and/or cancelled with
respect to a Management Note issued in connection with the Round Two
Investment shall be treated as an additional Capital Contribution made
by WSPII and WSP Dutch with respect to Class B Investor Units (in each
case as of the date on which such satisfaction and/or cancellation is
effective)."
3. REPRESENTATIONS. Each of the Parties hereby represents and
warrants that, as of the date hereof, the representations and warranties set
forth in Section 3.6 of the LLC Agreement are true and correct.
4. ACKNOWLEDGMENT. The parties hereby acknowledge that the dividend
made by CTN in the amount of $665,000 was deemed to have been made pro rata on
the Series A Convertible Preferred Stock of CTN based on accrued but unpaid
dividends.
5. EFFECT OF AMENDMENT. Except as provided herein, the LLC Agreement
shall continue in full force and effect in accordance with its terms. Reference
to this specific Amendment need not be made in the LLC Agreement, or any other
instrument or document executed in connection therewith, or in any certificate,
letter or communication issued or made pursuant to or with respect to the LLC
Agreement, any reference in any of such items to the LLC Agreement being
sufficient to refer to the LLC Agreement as amended hereby.
6. INCORPORATION BY REFERENCE. Sections 13.1, 13.6, 13.7, 13.11,
13.13 and 13.15 of the LLC Agreement shall be incorporated herein by reference
except that the term "Agreement," where used in such sections, shall be read as
"Amendment."
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date hereof.
XXXXXX XXXXX & PARTNERS, L.P.
By: Xxxxxx Xxxxx & Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Its: Managing Director
XXXXXX XXXXX & PARTNERS II, L.P.
By: Xxxxxx Xxxxx & Partners Management II, L.P.
Its: General Partner
By: Xxxxxx Xxxxx & Partners Management II, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Its: Managing Director
XXXXXX XXXXX & PARTNERS DUTCH, L.P.
By: Xxxxxx Xxxxx & Partners Management II, L.P.
Its: General Partner
By: Xxxxxx Xxxxx & Partners Management II, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Its: Managing Director
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Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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Xxxxxx X. Xxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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Xxxxxx Xxxxx
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Xxxxxx Xxxxxxxxx
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Xxxx Xxxxxx
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Xxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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Xxxxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
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Xxxxxxx Xxxxx
