EXHIBIT 3.7
TLP HOLDINGS, LLC
LIMITED LIABILITY COMPANY OPERATING AGREEMENT
This limited liability company operating agreement of TLP Holdings, LLC, a
Delaware limited liability company, is adopted as of the 14 day of August, 2001,
by TransCore Holdings, Inc., a Delaware corporation, as the sole Member.
SECTION 1
DEFINED TERMS; OPERATION OF COMPANY
1.1 Defined Terms. When used in this Agreement, the following capitalized
terms shall have the meanings set forth below:
"Act" means the Delaware Limited Liability Company Act.
"Agreement" means this limited liability company agreement, as the
same may be amended from time to time.
"Board" means the Company's Board of Managers.
"Capital Contribution" means the amount of money and the fair market
value of any property contributed to the Company by the Member (net of any
liabilities to which such property is subject or that are assumed by the Company
in connection with such contribution).
"Certificate" means the certificate of formation for the Company, and
any amendments thereto.
"Company" means the limited liability company formed and operated
pursuant to the terms of this Agreement.
"Manager" means any Person hereafter elected to the Board as provided
in this Agreement, but does not include any Person who has ceased to be a member
of the Board.
"Member" means the Person listed as the Member in the preamble to this
Agreement, and any Person subsequently admitted as a Member in accordance with
the terms of this Agreement.
"Net Cash Flow" means gross cash proceeds of the Company from all
sources other than Capital Contributions, including reductions in Reserves that
reduced Net Cash Flow for prior periods, reduced by the portion of such cash
proceeds used (i) to pay Company expenses, including debt service, (ii) to
acquire capital improvements, and (iii) to fund Reserves.
"Person" means any individual or any partnership, corporation, trust,
limited liability company or other legal entity.
"Profits" and "Losses" mean, for each year or other period, an amount
equal to the Company's federal taxable income or loss for such year or period,
and all corresponding items of income, gain, loss, deduction, and credit.
"Reserves" means amounts set aside to pay future costs or expenses
that are anticipated to exceed cash available to pay such costs or expenses when
due, as determined in the sole discretion of the Board.
1.2 Formation; Name. The Company was formed by the filing of the
Certificate. The Company shall be operated as a limited liability company
pursuant to this Agreement and the Act. Whenever the terms of this Agreement
conflict with any provision of the Act, the terms of this Agreement shall
control except to the extent any provision of the Act cannot be waived or
altered by a limited liability company operating agreement. The Company shall be
operated under the name "TLP Holdings, LLC." The Board shall cause an authorized
Person to file such other certificates and documents as are necessary to qualify
the Company to conduct business in any jurisdiction in which the Company
conducts business.
1.3 Registered Agent and Office; Principal Office. The registered agent
and office of the Company required under the Act shall be as designated in the
Certificate, and may be changed by the Board in accordance with the Act. The
principal business office of the Company shall be at such place as the Board may
designate from time to time which need not be in the State of Delaware and the
Company shall maintain records there.
1.4 Purpose. The purpose and business of the Company is to engage in any
lawful act or activity for which limited liability companies may be formed under
the Act. The Company is authorized to do any and all acts and things necessary,
appropriate, advisable, incidental to, or convenient for the furtherance and
accomplishment of its purposes, and for the protection and benefit of the
Company.
1.5 Term. The term of the Company shall commence on the date of filing of
the Certificate, and the Company shall continue until the Company is terminated
in accordance with this Agreement.
SECTION 2
CAPITAL CONTRIBUTIONS
2.1 Capital Contributions. The capital contribution of the Member along
with the shares held by the Member in the Company are as set forth on Exhibit
"A" attached hereto. The Member shall not be obligated to make any additional
Capital Contributions to the Company.
SECTION 3
DISTRIBUTIONS
3.1 Distributions of Net Cash Flow. All Net Cash Flow shall be distributed
to the Member at such times and in such amounts as shall be determined by the
Board.
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SECTION 4
PROFITS AND LOSSES
4.1 Tax Classification. The Member intends that the Company be a
disregarded entity for federal income tax purposes, in accordance with Treasury
Regulation Section 301.7701-3(b)(ii). All of the Profits and Losses of the
Company shall be reported by the Member in accordance with such classification.
SECTION 5
MANAGEMENT OF COMPANY
5.1 Management. The Managers shall serve as representatives of the Member
for all purposes of this Agreement. Accordingly, except as otherwise expressly
provided by this Agreement or by the Act, (i) the powers of the Company shall be
exercised by or under the authority of, and the business and affairs of the
Company shall be managed under the direction of the Board and (ii) the Board
shall make all decisions and take all actions for the Company.
5.2 Board of Managers.
5.2.1 The number and identity of the Managers on the Board shall be as
set forth by the Member from time to time. Initially, the Member shall elect
three (3) persons to constitute the Board of Managers.
5.2.2 The following is a list of the names of each individual
initially elected to the Board by the Member:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
5.3 Management by Officers.
5.3.1. The Board may, from time to time, designate one or more Persons
to be officers of the Company. No officer need be a resident of the State of
Delaware or a Manager. Any officers so designated shall have such authority and
perform such duties as the Board may, from time to time, delegate to them. The
Board may assign titles to particular officers. If such title is one commonly
used for officers of a business corporation formed under the Delaware General
Corporation Law ("DGCL"), the assignment of such title shall constitute the
delegation to such officer of the authority and duties that are normally
associated with that office, subject to any specific delegation of authority and
duties made to such officer by the Board. Each officer shall hold office until
his successor shall be duly designated and shall qualify or until his death or
until he shall resign or shall have been removed in a manner consistent with
this Agreement or the Act. Any number of offices may be held by the same Person.
The salaries or other compensation, if any, of the officers and agents of the
Company shall be fixed from time to time by the Board.
5.3.2. Any officer may resign as such at any time. Such resignation
shall be made in writing and shall take effect at the time specified therein, or
if no time be specified, at
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the time of its receipt by the Board. The acceptance of a resignation shall not
be necessary to make it effective, unless expressly so provided in the
resignation. Any officer may be removed as such, either with or without cause,
by the Board whenever in its judgement the best interests of the Company will be
served thereby; provided, however, that such removal shall be without prejudice
to the contract rights, if any, of the Person so removed. Designation of an
officer shall not of itself create contract rights. Any vacancy occuring in any
office of the Company may be filled by the Board.
5.3.3. If required by the Board, any officer shall give the Company a
bond in such sum, and with such surety or sureties as may be satisfactory to the
Board, for the faithful discharge of the duties of his or her office and for the
restoration to the Company, in the case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Company.
5.4 Company Expenses. All expenses of the Company shall be billed directly
to and paid by the Company. The Managers and officers shall be reimbursed for
all expenses incurred by them for or on behalf of the Company, including travel,
telephone, and secretarial costs. The Managers and officers shall be entitled to
such compensation for services as the Member may determine.
SECTION 6.
MEETINGS OF THE BOARD
6.1 Place of Meetings, Meetings by Telephone. Meetings of the Board shall
be held at the principal place of business of the Company, or at such other
places as a majority of the Board may designate from time to time. Any such
meeting may be held by conference telephone or similar communication equipment
so long as all members of the Board participating in the meeting can hear one
another, and all members of the Board participating by telephone or similar
communication equipment shall be deemed to be present in person at the meeting.
6.2 Call of Meetings; Minutes. Meetings of the Board may be called at any
time by any member of the Board or by the President of the Company. Written
minutes shall be taken at each meeting of the Board and distributed to the
members of the Board promptly after such meeting and prior to, and for approval
at, the next meeting; provided, however, that any action taken or any matter
agreed upon by the Board at the meeting shall be deemed effective and final,
whether or not written minutes of the meeting have been prepared or formalized.
6.3 Notice of Meetings of the Board. All notices of meetings of the Board
shall be sent or otherwise given in accordance with Section 6.4; provided,
however, that (i) notice of regular meetings of the Board is not required and
(ii) special meetings of the Board may be called by any Manager on at least 24
hours' notice to each other Manager. The notice shall specify (i) the place,
date and hour of the meeting, and (ii) the general nature of the business to be
transacted.
6.4 Manner of Giving Notice. Notice of any meeting of the Board shall be
given to each member thereof by first class mail, by telegram or facsimile (or
similar electronic means) or by a nationally recognized overnight courier,
charges prepaid, addressed to that member of the
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Board at the address of that member appearing on the books of the Company or
given by the member to the Company for the purpose of notice. Notice shall be
deemed to have been given at the time when delivered, or within three days of
the time when deposited in the mail or the following day when deposited with a
nationally recognized overnight courier, or the same day when sent by telegram
or facsimile (or similar electronic means).
6.5 Adjourned Meeting; Notice. Any meeting of the Board, whether or not a
quorum is present, may be adjourned from time to time by the vote of the Board.
When any meeting of the Board is adjourned to another time or place, notice need
not be given of the adjourned meeting, unless the adjournment is for more than
thirty (30) days from the date set for the original meeting, in which case the
Manager calling the original meeting shall give notice in accordance with the
provisions of Sections 6.3 and 6.4 hereof. At the next meeting after an
adjourned meeting, the Company may transact any business that might have been
transacted at the original meeting.
6.6 Waiver of Notice by Consent of Absent Members of Board. A member of
the Board may waive notice of any meeting either explicitly or by attending a
meeting for which he or she did not receive notice; provided, however, that
attendance at a meeting is not a waiver of receipt of notice if attendance is
made for the purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting was not lawfully called or
convened; provided further that attendance at a meeting is not a waiver of any
right to object to the consideration of matters not included in the notice of
the meeting if that objection is expressly made at the beginning of the meeting.
6.7 Board Action by Written Consent Without a Meeting. Any action that may
be taken at any meeting of the Board may be taken without a meeting and without
prior notice if a consent in writing setting forth the action so taken is signed
by the number of Managers that would be necessary to take such action at a
meeting at which all Managers entitled to vote on the action were present and
voted. Any such written consent may be executed and given by telecopy or similar
electronic means. Such consents shall be filed with the Company and shall be
maintained in the Company's records.
6.8 Quorum; Voting. At any meeting of the Board, a majority of the members
of the Board then serving shall constitute a quorum for the transaction of
business. All matters and all actions taken by the Board shall be determined or
done by consent or vote of a majority of the members of the Board.
SECTION 7
BOOKS AND RECORDS; FINANCIAL MATTERS
7.1 Books and Records. The Company books and records shall be maintained
at the principal office of the Company. The Company books shall be closed and
balanced at the end of each year.
7.2 Fiscal Year. The fiscal year of the Company shall end on the same day
as the last day of the fiscal year of the Member.
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7.3 Banking. All funds of the Company shall be deposited in the name of
the Company in such checking account or accounts as shall be designated by the
Board. All withdrawals therefrom are to be made upon checks signed by a Person
or Persons authorized by the Board.
SECTION 8
TRANSFERS AND ADMISSIONS
8.1 Transfers. The Member may transfer, sell, assign, encumber, or
otherwise dispose of all or any portion of the Member's interest in the Company
without the consent of any other Person.
8.2 Admissions. Any Person may be admitted as an additional or substitute
Member with the consent of the Member, on such terms and conditions as shall be
determined by the Member.
SECTION 9
TERMINATION AND DISSOLUTION
9.1 Dissolution Events. The Company shall be terminated and dissolved at
such time or upon the happening of such events as shall be determined by the
Member.
9.2 Liquidation.
9.2.1 Winding Up. Upon the dissolution of the Company, the Company's
business shall be liquidated in an orderly manner. The Board shall determine
which Company property shall be distributed in-kind and which Company property
shall be liquidated. The liquidation of Company property shall be carried out as
promptly as is consistent with obtaining the fair value thereof.
9.2.2 Payments and Distributions. Company property or the proceeds
therefrom, to the extent sufficient therefor, shall be applied and distributed
in the following order of priority, with no distribution being made in any
category set forth below until each preceding category has been satisfied in
full:
(a) To the payment and discharge of all of the Company's debts
and liabilities, and the establishment of Reserves (which Reserves, to the
extent no longer needed by the Company, shall be distributed in accordance with
subsection (b) hereof) ;
(b) The balance shall be distributed to the Member.
SECTION 10
MISCELLANEOUS
10.1 Successors. This Agreement shall inure to the benefit of and shall be
binding upon all of the parties and their respective heirs, successors and
assigns.
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10.2 Applicable Law. This Agreement and the rights of the parties hereunder
shall be interpreted in accordance with the laws of the State of Delaware.
10.3 Amendment. No change or modification to this Agreement shall be valid
unless the same be approved by the Member.
10.4 Severability. If any provision of this Agreement or the application
thereof to any Person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other Persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
10.5 Construction. When from the context it appears appropriate, each term
stated either in the singular or the plural shall include the singular and the
plural and pronouns stated either in the masculine, the feminine or the neuter
shall include the masculine, the feminine and the neuter.
10.6 Headings and Captions. The headings and captions contained in this
Agreement are inserted only as a matter of convenience and in no way define,
limit or extend the scope or intent of this Agreement or any provisions hereof.
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IN WITNESS WHEREOF, the Member has executed this Operating Agreement of TLP
Holdings, LLC as of the day and year first above written.
MEMBER:
TRANSCORE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
[SIGNATURE PAGE TO OPERATING AGREEMENT]
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TLP HOLDINGS, LLC
OPERATING AGREEMENT
EXHIBIT "A"
MEMBER CAPITAL CONTRIBUTION
CAPITAL SHARES
CONTRIBUTION HELD
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$10,000 100
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