Exhibit 10.31


 


EXECUTION VERSION


 


Amendment No. 5 to the

Amended and Restated Limited Liability Company Operating Agreement


 


of


 


VGG HOLDING LLC


 


This Amendment No. 5 (this “Amendment”)
to the Amended and Restated Limited Liability Company Operating Agreement of
VGG Holding LLC, a Delaware limited liability company (the “Company”),
is entered into and shall be effective as of March 4, 2009, by and among
the Company, the Persons listed as Additional Class A Members on the
signature pages hereof (the “Newly Admitted Members”).


 


WHEREAS, the Company was
formed pursuant to that certain Limited
Liability Company Operating Agreement, dated as of July 13, 2007, as
amended and restated by that certain Amended and Restated Limited Liability
Company Operating Agreement, dated as of August 15, 2007, by and among the
Persons listed as Class A Members on the signature pages thereof, as
amended by Amendment No. 1 to the Amended and Restated Limited Liability
Company Operating Agreement, dated September 13, 2007, by and among the
Company and the Persons listed as Class B Members on the signature pages thereof,
as further amended by Amendment No. 2 to the Amended and Restated Limited
Liability Company Operating Agreement, dated as of September 21, 2007, by and among the Company,
TCW/Crescent Mezzanine Partners IV, L.P., a Delaware limited partnership,
TCW/Crescent Mezzanine Partners IVB, L.P., a Delaware limited partnership, MAC
Equity Holdings, LLC, a Delaware limited liability company, and Newstone
Capital Partners, L.P., a Delaware limited partnership, as further amended by
Amendment No. 3 to the Amended and Restated Limited Liability Company
Operating Agreement, dated as of October 26, 2007, by and among the
Company and the Persons listed as Additional Class B Members on the
signature pages thereof, and as further amended by Amendment No. 4 to
the Amended and Restated Limited Liability Company Operating Agreement, dated
as of November 30, 2007, by and among the Company, the Persons listed as
Original Golden Gate Members on the signature pages thereof and CCG AV,
LLC - Series E, a Delaware limited liability company and an Affiliate of
the Original Golden Gate Members (the “Operating Agreement”).


 


WHEREAS, the Board of Managers of the Company has
approved the issuance of Class A Percentage Interests to the Newly
Admitted Members in exchange for Capital Contributions from such Newly Admitted
Members and desires to admit the Newly Admitted Members to the Company as
Additional Class A Members (the “Admission”);


 


WHEREAS, in connection with the Admission, the
Company desires to amend certain provisions of the Operating Agreement
pertaining to the admittance of Additional Members (the “Amendment”);


 


WHEREAS, each of Veritas, Goldman and Golden Gate
have approved the Admission;


 

















 


NOW,
THEREFORE, in consideration of the mutual agreements made herein, the Company
and the Newly Admitted Members hereby agree to amend the Operating Agreement as
follows:


 


1.             Unless otherwise
defined herein, capitalized terms shall have the meanings ascribed to them in
the Operating Agreement.


 


2.             In accordance with Sections
3.3 and 7.1(a) of the Operating Agreement, effective as of the
date hereof, the Newly Admitted Members are hereby admitted to the Company as
Additional Class A Members.


 


3.             Schedule A
and Schedule B to the Operating Agreement are hereby amended in the
forms annexed hereto to reflect the names, addresses, Capital Contributions, Class A
Percentage Interests and Class B Percentage Interests of the Members after
the admission of the Newly Admitted Members to the Company.


 


4.           The definition of “Invested Capital Contribution Date” in Article I
of the Operating Agreement is hereby amended by adding the following at the end
of the definition:


 


“;
provided, with respect to Additional Class A Member admitted
pursuant to Section 3.3(a), the Board of Managers, in its
reasonable discretion (acting in good faith and on behalf of the Company), in
order to take into account any accrued value of the Membership Interests issued
prior to the admission of such Additional Class A Member, may deem the
Invested Capital Contribution Date for such Additional Class A Members to
be a date prior than the date such Additional Class A Member actually made
a contribution of Invested Capital; provided, further, that in no event shall
the Board of Managers set the Invested Capital Contribution Date for any
Additional Class A Members prior to August 15, 2007.”


 


5.             Section 3.3
of the Operating Agreement is hereby amended by adding the following language
immediately prior to the words “; provided, however,” in the second
sentence:


 


“(taking
into consideration any accrued value of the Membership Interests issued prior
to the admission of such Additional Class A Member)”


 


6.             The Invested
Capital Contribution Date of the Class A Membership Interests issued to
the Newly Admitted Members is deemed to be August 15, 2007.


 


7.             All other terms of
the Operating Agreement shall remain in full force and effect and, by their
execution of this Amendment, each Newly Admitted Member makes the representations
and warranties set forth in Section 5.2 of the Operating Agreement and
agrees to be bound by all of the terms and conditions of the Operating
Agreement applicable to the Members.


 


8.            This Amendment may
be executed in several counterparts, and all counterparts so executed shall
constitute one agreement, binding on all of the parties hereto, notwithstanding
that all of the parties are not signatory to the original or same counterpart.


 


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IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the
date first above written.


 


 


	
   

  	
  VGG
  HOLDING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert B. McKeon

  
	
   

  	
   

  	
  Name:

  	
  Robert
  B. McKeon

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


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