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EXHIBIT 3.4
LIMITED LIABILITY COMPANY
AGREEMENT OF
TRANSWESTERN PUBLISHING COMPANY LLC
LIMITED LIABILITY COMPANY AGREEMENT of TRANSWESTERN PUBLISHING COMPANY
LLC, dated as of November 6, 1997 (this "Agreement"), is adopted, executed and
agreed to, for good and valuable consideration, by the sole Initial Member.
Capitalized terms used and not otherwise defined herein have the meanings set
forth in Section 1.6.
ARTICLE I
GENERAL PROVISIONS; CAPITAL CONTRIBUTIONS; DEFINITIONS
Section 1.1 Formation. The formation of TransWestern Publishing
Company LLC (the "LLC") pursuant to and in accordance with the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101, et seq., as amended from time
to time (the "Act"), occurred on November 4, 1997. An authorized person within
the meaning of the Act executed, delivered and filed the certificate of
formation of the LLC on such date (the "Certificate"). Upon the Initial
Member's (i) execution of this Agreement or a counterpart hereof and (ii) the
making of the capital contribution required by Section 1.5, such Initial Member
shall be admitted to the LLC as its sole Member.
Section 1.2 Name. The name of the LLC will be "TransWestern Publishing
Company LLC" or such other name or names as the Manager may from time to time
designate.
Section 1.3 Purpose. The LLC's purpose shall be to carry on any business,
purpose or activity which may be lawfully carried on by a limited liability
company organized pursuant to the Act, including but not limited to: the
operation of companies that publish yellow page directories and related
properties; the carrying on of any business relating thereto or arising
therefrom in the United States; the entering into of any partnership, joint
venture or other similar arrangement to engage in any of the foregoing or the
ownership of any interest in any entity engaged in any of the foregoing; and
exercising such powers as are necessary in connection with the foregoing or are
incidental or ancillary thereto.
Section 1.4 Registered Office; Registered Agent; Place of Business. The
registered office of the LLC required by the Act to be maintained in the State
of Delaware shall be the office of the initial registered agent named in the
Certificate or such other office (which need not be a place of business of the
LLC) as the Manager may designate from time to time in the manner provided by
law. The registered agent of the LLC in the State of Delaware shall be the
initial registered agent named in the Certificate or such other person or
persons as the Manager may designate from time to time in the manner provided
by law. The principal office of the LLC shall be at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or at such other place or places as the
Manager may designate from time to time.
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Section 1.5 Capital Contributions; Liability.
(a) The Initial Member shall, promptly following the execution of
this Agreement, contribute to the LLC all of its businesses, assets and
properties, including without limitation the assets specified on Schedule
I attached hereto (the "Initial Contribution"). The Manager shall amend
Schedule I from time to time to reflect any future capital contribution
made by any Member. Persons hereafter admitted as Members of the LLC
shall make such contributions of cash (or promissory obligations),
property or services to the LLC as shall be determined by the Manager and
the Member making the contribution in their sole discretion at the time
of each such admission.
(b) No Member shall have any responsibility to restore any
negative balance in his, her or its Capital Account or return
distributions made by the LLC except as required by the Act or other
applicable law. Except as required by the Act, the debts, obligations
and liabilities of the LLC, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities
of the LLC and no Member or officer of the LLC shall be obligated
personally for any such debt, obligation or liability of the LLC solely
by reason of being a Member or acting as an officer of the LLC. The
failure of the LLC to observe any formalities or requirements relating to
the exercise of its powers or management of its business or affairs
under this Agreement or the Act shall not be grounds for imposing
personal liability on the Members for liabilities of the LLC.
(c) No interest shall be paid by the LLC on capital
contributions or on balances in Capital Accounts.
(d) A Member shall not be entitled to withdraw any part of his,
her or its Capital Account or to receive any distributions from the LLC
except as provided in Articles III and V; nor shall a Member be entitled
to make any capital contribution to the LLC other than as expressly
provided herein. Any Member may, with the approval of the Manager, make
loans to the LLC, and any loan by a Member to the LLC shall not be
considered to be a capital contribution for any purpose and shall not
result in an increase in the amount of the Capital Account of such Member.
Section 1.6 Definitions. For purposes of this Agreement:
"Act" has the meaning set forth in Section 1.1.
"Book Value" means, with respect to any LLC property, the LLC's adjusted
basis for federal income tax purposes, except that the initial Book Value of
any property contributed to the LLC shall be the value of such property on the
date of such contribution, as agreed by the Manager and the Member contributing
the property, and the Book Value of any LLC property shall be adjusted pursuant
to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in connection with a
distribution of such property) or (f) (in connection with a revaluation of
Capital Accounts).
"Capital Account" has the meaning set forth in Section 2.1.
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"Certificate" has the meaning set forth in Section 1.1.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
"Event of Withdrawal" means the death, expulsion, bankruptcy, dissolution
or withdrawal of a Member.
"Initial Member" means TransWestern Holdings, L.P., a Delaware limited
partnership.
"Losses" for any period means all items of LLC loss, deduction and expense
for such period determined according to Section 2.2.
"Majority in Interest" means the Member(s) holding a majority of the
Percentage Interests of all Members.
"Manager" means TransWestern Communications Company, Inc., a Delaware
corporation, or its successor as provided for in Section 4.1(d) below.
"Member" means the Initial Member and any of the parties admitted as a
member after the date of this Agreement in accordance with the terms hereof, in
each case for so long as such person continues to be a member hereunder.
"Percentage Interest" means, in respect of each Member, such Member's
interest in the income, gains, losses, deductions and expenses of the LLC as
set forth on Schedule I.
"Profits" for any period means all items of LLC income and gain for such
period determined according to Section 2.2.
"Tax Matters Partner" has the meaning set forth in Section 8.3(d).
"Transfer" has the meaning set forth in Section 4.3(a).
"Treasury Regulation" means the United States Treasury Regulations
promulgated under the Code, and any reference to any particular Treasury
Regulation section shall be interpreted to include any final or temporary
revision of or successor to that section regardless of how numbered or
classified.
Section 1.7 Term. The LLC shall continue until dissolved and terminated in
accordance with Article V of this Agreement.
Section 1.8 No State-Law Partnership. The Member(s) intend that the LLC
not be a partnership (including, without limitation, a limited partnership) or
joint venture, and that no Member be a partner or joint venturer of any other
Member, for any purposes other than federal and,
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if applicable, state income tax purposes, and neither this Agreement nor any
other document entered into by the LLC or any Member shall be construed to
suggest otherwise. The Member(s) intend that (i) for so long as the LLC
has only one Member, the LLC shall be disregarded as a separate entity for
federal and, if applicable, state income tax purposes and (ii) if and when the
LLC has more than one Member, the LLC shall be treated as a partnership for
federal and, if applicable, state income tax purposes, and that each Member
and the LLC shall file all tax returns and shall otherwise take all tax and
financial reporting positions in a manner consistent with such treatment.
ARTICLE II
CAPITAL ACCOUNTS
Section 2.1 Capital Accounts. A capital account will be established for
each Member on the books of the LLC (each, a "Capital Account") and will be
adjusted as follows:
(a) Such Member's contributions to the capital of the LLC will be
credited to his, her or its Capital Account when received by the LLC.
(b) At the end of each fiscal year of the LLC and upon dissolution
and winding up of the LLC pursuant to Article V, Profits for such period
allocated to such Member pursuant to Section 3.2 shall be credited and
Losses for such period allocated to such Member pursuant to Section 3.2
shall be debited, as the case may be, to such Member's Capital Account.
(c) Any amounts distributed to such Member will be debited against
his, her or its Capital Account.
(d) Such Member's Capital Account will otherwise be adjusted in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv).
Notwithstanding the foregoing, for so long as the Initial Member remains the
sole Member of the LLC, the LLC shall not maintain a Capital Account for such
Member.
Section 2.2 Computation of Amounts. For purposes of computing the amount
of any item of income, gain, loss, deduction or expense to be reflected in
Capital Accounts, the determination, recognition and classification of each
such item shall be the same as its determination, recognition and
classification for federal income tax purposes; provided that:
(a) any income that is exempt from Federal income tax shall be added
to such taxable income or losses and any expenditures of the LLC described
in Section 705(a)(2)(B) of the Code or treated as Code Section
705(a)(2)(B) expenditures pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(i), shall be subtracted from such taxable income or
losses;
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(b) if the Book Value of any LLC property is adjusted
pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(e) (in
connection with a distribution of such property) or (f) (in connection
with a revaluation of Capital Accounts), the amount of such adjustment
shall be taken into account as gain or loss from the disposition of such
property; and
(c) if property that is reflected on the books of the LLC has
a Book Value that differs from the adjusted tax basis of such property,
depreciation, amortization and gain or loss with respect to such property
shall be determined by reference to such Book Value.
Section 2.3 Distribution in Kind. If property is to be distributed in
kind to the Members pursuant to this Agreement, (i) the value of such property
shall first be adjusted pursuant to Section 2.2(b) to its value (as determined
pursuant to Article VI as of the date of such distribution), (ii) the Capital
Accounts of the Member(s) shall be adjusted immediately prior to the
distribution as if such property were sold at its value (as so determined) and
(iii) the value of such property (as so determined) received by each Member
shall be debited against his, her or its respective Capital Account at the time
of distribution.
ARTICLE III
DISTRIBUTIONS AND ALLOCATIONS
Section 3.1 Distributions. Distributions of cash or other assets of
the LLC shall be made at such times and in such amounts as the Manager may
determine. Unless the Manager determines otherwise, distributions shall be made
to Members pro rata based on the Percentage Interests held by each Member.
Notwithstanding any provision to the contrary contained in this Agreement, the
LLC shall not make a distribution to any Member on account of his, her or its
interest in the LLC if such distribution would violate Section 18-607 of the
Act or other applicable law.
Section 3.2 Allocation of Profits and Losses. Except as may be
required by the Code, Profits and Losses shall be allocated among the Member(s)
in proportion to the Percentage Interests held by each Member.
ARTICLE IV
MANAGEMENT AND MEMBER RIGHTS
Section 4.1 Management Authority.
(a) The Manager shall have the sole right to manage the business of
the LLC and shall have all of the powers and rights necessary, appropriate
or advisable to effectuate and carry out the purposes and business of the
LLC, including the authority to act for and bind
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the LLC, and no Member, unless such Member is also the Manager, shall
have any authority to act for or bind the LLC but shall have only the
right to vote on or approve the actions herein specified to be voted on
or approved by the Members or as otherwise specified in the Act.
(b) The Manager may appoint such officers, to such terms and to
perform such functions as the Manager shall determine in its sole
discretion. The Manager may appoint, employ or otherwise contract with
such other persons or entities for the transaction of the business of the
LLC or the performance of services for or on behalf of the LLC as it
shall determine in its sole discretion. The Manager may delegate to any
such officer, person or entity such authority to act on behalf of the LLC
as the Manager may from time to time deem appropriate in its sole
discretion.
(c) When the taking of such action has been authorized by the
Manager, any officer of the LLC or any other person or entity
specifically authorized by the Manager, may execute any contract or other
agreement or document on behalf of the LLC and may execute and file on
behalf of the LLC with the Secretary of State of the State of Delaware
any certificates of amendment to the LLC's Certificate, one or more
restated certificates of formation and certificates of merger or
consolidation and, upon the dissolution and completion of winding up of
the LLC, at any time when there are no Members, or as otherwise provided
in the Act, a certificate of cancellation canceling the LLC's
Certificate.
(d) The Manager may be removed, with or without cause, and without
notice, by the affirmative vote of a Majority in Interest of the
Member(s). Upon such removal, a Majority in Interest of the Member(s)
shall appoint a successor Manager; provided that such successor Manager
shall not be a Member. The Manager may resign at any time upon ten days'
prior notice to the Member(s). Upon such resignation, a Majority in
Interest of the Members shall appoint a successor Manager; provided that
such successor Manager shall not be a Member.
(e) All decisions regarding the management and affairs of the LLC
shall be made by the Manager.
(f) At any given time, there shall only be one Manager.
Section 4.2 Indemnification. Except as limited by law and subject to
the provisions of this Section 4.2, each person and entity shall be entitled to
be indemnified and held harmless on an as incurred basis by the LLC (but only
after first making a claim for indemnification available from any other source
and only to the extent indemnification is not provided by that source) to the
fullest extent permitted under the Act (including indemnification for gross
negligence and breach of fiduciary duty to the extent so authorized) as
amended from time to time (but, in the case of any such amendment, only to the
extent that such amendment permits the LLC to provide broader indemnification
rights than such law permitted the LLC to provide prior to such amendment)
against all losses, liabilities and expenses, including attorneys' fees and
expenses, arising from claims, actions and proceedings in which such person or
entity may be involved, as a
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party or otherwise, by reason of his, her or it being or having been the
Manager, a Member or an officer of the LLC, or by reason of his, her or it
serving at the request of the LLC as a director, officer, manager, member,
partner, employee or agent of another limited liability company or of a
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan whether or not such person or
entity continues to be such or serve in such capacity at the time any such
loss, liability or expense is paid or incurred. The rights of indemnification
provided in this Section 4.2 will be in addition to any rights to which such
person or entity may otherwise be entitled by contract or as a matter of law
and shall extend to his, her or its successors and assigns. In particular, and
without limitation of the foregoing, such person or entity shall be entitled to
indemnification by the LLC against expenses (as incurred), including attorneys'
fees and expenses, incurred by such person or entity upon the delivery by such
person or entity to the LLC of a written undertaking (reasonably acceptable to
the Manager) to repay all amounts so advanced if it shall ultimately be
determined that such person or entity is not entitled to be indemnified under
this Section 4.2. The LLC may, to the extent authorized from time to time by
the Manager, grant rights to indemnification and to advancement of expenses to
any employee or agent of the LLC to the fullest extent of the provisions of
this Section 4.2 with respect to the indemnification and advancement of
expenses of the Manager, Members and officers of the LLC.
Section 4.3 Transfer of LLC Interest.
(a) No Member shall sell, assign, transfer or otherwise dispose of,
whether voluntarily or involuntarily or by operation of law (a
"Transfer"), all or any portion of his, her or its interest in the LLC
without the prior written consent of the Manager, which consent may be
given or withheld in its sole discretion. No Member shall pledge or
otherwise encumber all or any portion of his, her or its interest in the
LLC, without the prior written consent of the Manager, which consent may
be given or withheld in its sole and absolute discretion.
(b) Notwithstanding any other provision of this Agreement, any
Transfer by the Members in contravention of any of the provisions of this
Section 4.3 shall be void and ineffective, and shall not bind, or be
recognized by, the LLC.
(c) If and to the extent any Transfer of an interest in the LLC is
made pursuant to and in accordance with the terms of this Agreement, this
Agreement (including the Schedules hereto) shall be amended by the
Manager to reflect the Transfer of the LLC interest to the transferee, to
admit the transferee as a Member and to reflect the elimination of the
transferring Member (or the reduction of such transferring Member's
interest in the LLC) and (if and to the extent then required by the Act)
a certificate of amendment to the Certificate reflecting such admission
and elimination (or reduction) shall be filed in accordance with the Act.
The effectiveness of the Transfer of an interest in the LLC permitted
hereunder and the admission of any substitute Member pursuant to this
Section 4.3 shall be deemed effective upon the later to occur of the time
of Transfer of an interest in the LLC to such transferee or the first
date that the Manager receives evidence of such Transfer, including the
terms thereof. If the transferring Member has transferred all or any of
its interest in the LLC pursuant to this Section 4.3, then, upon the
later to occur of the time of
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such Transfer or the first date that the Manager receives evidence of
such Transfer, including the terms thereof, the transferring Member shall
cease to be a Member with respect to such interest.
(d) Any person or entity who acquires in any manner whatsoever any
interest in the LLC, irrespective of whether such person or entity has
accepted and adopted in writing the terms and provisions of this
Agreement, shall be deemed by the acceptance of the benefits of the
acquisition thereof to have (i) made all of the capital contributions,
(ii) received all of the distributions, and (iii) agreed to be subject to
and bound by all of the terms and conditions of this Agreement, that any
predecessor in such interest in the LLC made, received and was subject to
or bound.
Section 4.4 Member Rights; Meetings.
(a) No Member, unless such Member is also the Manager, shall have any
right, power or duty, including the right to approve or vote on any matter,
except as expressly required by the Act or other applicable law or as expressly
provided for hereunder.
(b) Unless a greater vote is required by the Act or as expressly
provided for hereunder, the affirmative vote of a Majority in Interest of the
Member(s) entitled to vote shall be required to approve any proposed action
required to be voted on by the Member(s).
(c) Meetings of the Member(s) for the transaction of such business as
may properly come before such Member(s) shall be held at such place, on such
date and at such time as the Manager shall determine. Special meetings of the
Member(s) for any proper purpose or purposes may be called at any time by the
Manager or the Member(s) holding a Majority in Interest. The LLC shall deliver
oral or written notice (written notice may be delivered by mail) stating the
date, time, place and purposes of any meeting to each Member entitled to vote
at the meeting. Such notice shall be given not less than five (5) and no more
than thirty (30) days before the date of the meeting.
(d) Any action required or permitted to be taken at an annual or
special meeting of the Member(s) may be taken without a meeting, without prior
notice, and without a vote; provided that written consents, setting forth all
proposed actions to be taken at such meeting, are signed by the Member(s)
holding at least the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all Member(s) entitled to
vote on such action were present and voted. Every written consent shall bear
the date and signature of each Member who signs such consent. Prompt notice of
the taking of action without a meeting by less than unanimous written consent
shall be given to all Members who have not consented in writing to such action.
(e) Members may participate in a meeting by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Agreement shall constitute presence
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in person at such meeting. All resolutions adopted at any such meeting shall
be reduced to writing and included in the minutes of such meeting.
(f) Any meeting of Members may be adjourned from time to time, to
reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the LLC
may transact any business which might have been transacted at the original
meeting.
(g) Each Member shall be entitled to one vote for each outstanding
Percentage Interest held by such Member.
(h) Whenever notice is required to be given by law or under any provision
of this Agreement, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Members need be specified in any written
notice or waiver of notice of meeting.
(i) In order that the LLC may determine the Members entitled to notice of
or to vote at any meeting of Members or any adjournment thereof or to consent
to action in writing without a meeting, the Members or any officer of the LLC
may fix a record date, which record date shall not be more than 60 nor less
than 10 days before the date of such meeting or consent, as applicable. If no
record date is set, the record date for determining Members entitled to notice
of or to vote at a meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. If no record date is set, the record date for determining Members
entitled to consent to action in writing without a meeting shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the LLC. A determination of Members of
record entitled to notice of or to vote at a meeting shall apply to any
adjournment of the meeting; provided that a new record date for the adjourned
meeting may be established.
Section 4.5 Additional Members. The Manager shall have the sole right to
admit additional Members upon such terms and conditions and at such time or
times as the Manager shall in its sole discretion determine. In connection
with any such admission, the Manager shall amend Schedule I to reflect the
name, address and capital contribution of the additional Member and the new
Percentage Interests of all Members and such additional Member shall execute a
supplement or amendment to this Agreement or a restatement of this Agreement
whereby such additional Member agrees to be bound by the provisions of this
Agreement.
Section 4.6 Outside Businesses. Any Member may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar
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or dissimilar to the business of the LLC, and the LLC and the Members shall
have no rights by virtue of this Agreement in and to such independent ventures
or the income or gains derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the LLC, shall not be deemed wrongful
or improper. No Member shall be obligated to present any particular investment
opportunity to the LLC even if such opportunity is of a character that, if
presented to the LLC, could be taken by the LLC, and any Member shall have the
right to take for his, her or its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment
opportunity.
ARTICLE V
DURATION
Section 5.1 Duration. Subject to the provisions of Section 5.2 of this
Agreement, the LLC shall be dissolved and its affairs wound up and terminated
upon the first to occur of the following:
(a) The determination of the Manager to dissolve, wind up and terminate;
(b) The occurrence of an Event of Withdrawal with respect to the Initial
Member; or
(c) The entry of a decree of judicial dissolution under Section 18-802
of the Act.
Except as otherwise set forth in this Article V, the Member(s) intend for the
LLC to have perpetual existence.
Section 5.2 Continuation of the LLC. Notwithstanding the provisions of
Section 5.1(b) hereof, the occurrence of an Event of Withdrawal with respect to
the Initial Member shall not dissolve the LLC if within ninety (90) days after
the occurrence of such Event of Withdrawal, the business of the LLC is
continued by the agreement of remaining Member(s) holding not less than a
majority in interest (as defined in Revenue Procedure 94-46 or any successor
thereto) of the remaining Member(s).
Section 5.3 Winding Up.
Upon dissolution of the LLC, the LLC shall be liquidated in an orderly
manner. The Manager shall be the liquidator pursuant to this Agreement and
shall proceed diligently to wind up the affairs of the LLC and make final
distributions as provided herein and in the Act. The costs of liquidation
shall be borne as a LLC expense. The steps to be accomplished by the
liquidator are as follows:
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(a) First, the liquidator shall satisfy all of the LLC's debts,
liabilities and obligations to creditors, including Members (whether by
payment or the reasonable provision for payment thereof), other than
liabilities and obligations for distributions to Members pursuant to
Section 18-601 or 18-604 of the Act; and
(b) Second, all remaining assets shall be distributed in the
following manner: (i) if the Initial Member remains the sole Member of
the LLC, to such Initial Member and (ii) otherwise to the Members in
accordance with their respective Capital Account balances relative to the
sum of all Capital Account balances (after taking into account any
adjustments to the Book Values of assets distributed in kind pursuant to
this Agreement).
Section 5.4 Termination. The LLC shall terminate when all of the assets
of the LLC, after payment of or due provision for all debts, liabilities and
obligations of the LLC, shall have been distributed to the Members in the
manner provided for in this Article V, and the Certificate of the LLC shall
have been canceled in the manner required by the Act.
ARTICLE VI
VALUATION
Section 6.1 Valuation. For purposes of this Agreement, the value of any
property contributed by or distributed to any Member shall be valued as
determined by the Member(s) in accordance with the principles set forth in
Article II hereof.
ARTICLE VII
CERTIFICATION OF MEMBERSHIP INTERESTS
Section 7.1 Membership Interests. Every holder of a membership interest in
the LLC shall be entitled to a certificate, signed by, or in the name of the
LLC by, the Manager, or any officer of the LLC provided with such authority
pursuant to Section 4.1(b) above, certifying such Member's Percentage Interest
in the LLC. All certificates for membership interests shall be consecutively
numbered or otherwise identified. The name of the person or entity to whom the
membership interests thereby are issued, with the Percentage Interest and date
of issue, shall be entered on the books of the LLC. Membership interests of
the LLC shall only be transferred on the books of the LLC by the holder of
record thereof or by such holder's attorney duly authorized in writing, upon
surrender to the LLC of the certificate for such membership interests endorsed
by the appropriate person or persons, with such evidence of the authenticity of
such endorsement, transfer, authorization, and other matters as the LLC may
require. In that event, it shall be the duty of the LLC to issue a new
certificate to the person or entity entitled thereto, cancel the old
certificate, and record the transaction on its books. The Manager may appoint
a bank or trust company organized
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under the laws of the United States or any state thereof to act as its transfer
agent or registrar, or both in connection with the transfer of any membership
interests of the LLC.
Section 7.2 Lost Certificates. The Manager may direct a new certificate
or certificates to be issued in place of any certificate or certificates
previously issued by the LLC alleged to have been lost, stolen, or destroyed,
upon the making of an affidavit of that fact by the person or entity claiming
the certificate to be lost, stolen, or destroyed. When authorizing such
issuance of a new certificate or certificates, the Manager may, in its sole
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen, or destroyed certificate or certificates, or his,
her or its legal representative, to give the LLC a bond sufficient to indemnify
the LLC against any claim that may be made against the LLC on account of the
loss, theft or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VIII
BOOKS OF ACCOUNT
Section 8.1 Books. The Manager will maintain on behalf of the LLC
complete and accurate books of account of the LLC's affairs at the LLC's
principal office, which books will be open to inspection by any Member (or his
authorized representative) at any time during ordinary business hours and shall
be maintained in accordance with the Act.
Section 8.2 Fiscal Year. The fiscal year of the LLC shall end on
December 31 of each year or such other annual accounting period as may be
established by the Manager.
Section 8.3 Tax Allocation and Reports.
(a) The income, gains, losses, deductions and credits of the LLC
will be allocated, for federal, state and local income tax purposes,
among the Members in accordance with the allocation of such income,
gains, losses, deductions and credits among the Members for computing
their Capital Accounts, except as otherwise provided in the Code or other
applicable law.
(b) In accordance with Code Section 704(c) and the Treasury
Regulations thereunder, income, gain, loss, deduction and expense with
respect to any property contributed to the capital of the LLC shall,
solely for tax purposes, be allocated among the Members so as to take
account of any variation between the adjusted basis of such property to
the LLC for federal income tax purposes and its fair market value at the
time of contribution.
(c) Within 75 days after the end of each fiscal year, the Tax Matters
Partner (as defined below) shall cause the LLC to furnish each Member
with a copy of the LLC's tax return and Schedule K-1 for such fiscal
year.
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(d) The LLC hereby designates the Initial Member to act as the
"Tax Matters Partner" (as defined in Section 6231(a)(7) of the Code) in
accordance with Sections 6221 through 6233 of the Code.
(e) Notwithstanding the other provisions of this Section 8.3, for
so long as the Initial Member remains the sole Member of the LLC, all
taxable items of income, gain, loss, deduction or credit of the LLC shall
be calculated and allocated to such Member as if the LLC were a division
of such Member.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments. This Agreement may be amended or modified and
any provision hereof may be waived only by the Manager; provided that any
amendment or modification reducing disproportionately a Member's Percentage
Interest or other interest in the Profits, Losses or distributions or
increasing such person's or entity's capital contribution shall be effective
only with that person's or entity's consent.
Section 9.2 Successors. Except as otherwise provided herein, this
Agreement will inure to the benefit of and be binding upon the Members and their
respective legal representatives, heirs, successors and permitted assigns.
Section 9.3 Governing Law; Severability. The Agreement will be
construed in accordance with the laws of the State of Delaware, and, to the
maximum extent possible, in such manner as to comply with all of the terms and
conditions of the Act. If it is determined by a court of competent
jurisdiction that any provision of this Agreement is invalid under applicable
law, such provision will be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of this Agreement.
Section 9.4 Notices. All notices, demands and other communications to
be given and delivered under or by reason of provisions under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered, mailed by first class mail (postage prepaid and return receipt
requested), sent by telecopy or sent by reputable overnight courier service
(charges prepaid) to the addresses or telecopy numbers set forth in Schedule I
or to such other addresses or telecopy numbers as have been supplied in writing
to the LLC.
Section 9.5 Complete Agreement; Headings, Counterparts. This Agreement
terminates and supersedes all other agreements concerning the subject matter
hereof previously entered into among any of the parties. Descriptive headings
are for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement. Wherever from the context it
appears appropriate, each term stated in either the singular or the plural
shall include the singular and the plural, and pronouns stated in either the
masculine, feminine or the neuter gender shall include the masculine, the
feminine and the neuter. This Agreement may be executed
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in any number of counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts together will
constitute one agreement.
Section 9.6 Waivers. Each Member waives, until termination of the LLC,
any and all rights that he, she or it may have to maintain an action for
partition of the LLC's property and all rights he, she or it may have under
Section 18-604 of the Act with respect to being paid the fair value of such
Member's membership interest in the LLC upon resignation from the LLC.
Section 9.7 Fiduciary Duties. To the extent that, at law or in equity,
any Member or officer of the LLC has duties (including fiduciary duties) and
liabilities relating thereto to the LLC or to another Member or officer of the
LLC, (a) such person or entity acting under this Agreement shall not be liable
to the LLC or to any other person or entity as a consequence of such person's
or entity's good faith reliance on the provisions of this Agreement and (b)
such person's or entity's duties and liabilities are restricted by the
provisions of this Agreement to the extent that such provisions restrict the
duties and liabilities of such persons or entities otherwise existing at law or
in equity.
Section 9.8 Liabilities. No Member shall be liable for any debts,
obligations and liabilities, whether arising in contract, tort or otherwise,
of any other Member or officer of the LLC, and no officer of the LLC shall be
liable for any debts, obligations and liabilities, whether arising in contract,
tort or otherwise, of any Member or other officer of the LLC.
* * * * *
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IN WITNESS WHEREOF, the party hereto has caused this Agreement to be
signed as of the date first above written.
TRANSWESTERN HOLDINGS L.P.,
its sole Initial Member
By: TransWestern Communications Company, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Its: Vice President
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