AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
TRANSPORTAL NETWORK, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
2
ARTICLE 1 DEFINITIONS.................................................. 2
1.1 Definitions............................................... 2
ARTICLE 2 ORGANIZATION OF THE COMPANY.................................. 9
2.1 Continuation of the Company............................... 9
2.2 Name...................................................... 9
2.3 Principal Place of Business............................... 10
2.4 Registered Office and Registered Agent.................... 10
2.5 Duration of the Company................................... 10
ARTICLE 3 NAMES AND ADDRESSES OF MEMBERS............................... 10
3.1 Names and Addresses of Members............................ 10
ARTICLE 4 PURPOSES OF THE COMPANY...................................... 10
4.1 Purposes of the Company................................... 10
4.2 Partnership............................................... 11
ARTICLE 5 CAPITAL CONTRIBUTIONS; ISSUANCES OF UNITS; CAPITAL
ACCOUNTS..................................................... 12
5.1 Capital Accounts.......................................... 12
5.2 Initial Capital Contributions............................. 12
5.3 Additional Capital Contributions.......................... 13
5.4 Recalculation of Percentage Interests and Number of
Units..................................................... 14
5.5 Capital Contributions as Loans............................ 15
5.6 Issuance of Additional Membership Interests............... 15
5.7 Temporary Investment of Funds............................. 16
ARTICLE 6 ALLOCATION OF INCOME, PROFITS AND LOSSES..................... 16
6.1 Allocations of Net Profit and Net Loss.................... 16
6.2 Regulatory Allocations.................................... 17
6.3 Curative Allocations...................................... 19
6.4 Other Rules............................................... 19
6.5 Tax Allocations. Code Section 704(c)...................... 19
6.6 Allocations in Event of Sale.............................. 20
6.7 Deficit Capital Account Balances.......................... 20
ARTICLE 7 DISTRIBUTIONS................................................ 20
7.1 Discretionary Distributions............................... 20
7.2 Amounts Withheld From Distributions....................... 20
3
7.3 Distributions Upon Liquidation............................ 21
7.4 Distributions In Kind..................................... 21
7.5 Limitation Upon Distributions............................. 21
ARTICLE 8 MANAGEMENT................................................... 21
8.1 Management................................................ 21
8.2 Certain Special Voting Requirements....................... 23
8.3 Officers.................................................. 24
8.4 Limitation of Liability of Members........................ 24
8.5 Manager Standard of Care; Liability to Members............ 24
8.6 Indemnity of Members, Managers, Officers, Employees
and Other Agents.......................................... 24
8.7 Tax Matters Partner....................................... 25
8.8 Outside Activities of TNI................................. 25
ARTICLE 9 RECORDS AND REPORTS.......................................... 26
9.1 Records, Audits, and Reports.............................. 26
9.2 Financial Statements...................................... 26
9.3 Notice of Material Litigation............................. 27
9.4 Bank Accounts............................................. 27
ARTICLE 10 TRANSFERABILITY.............................................. 27
10.1 No Pledge of Membership Interests......................... 27
10.2 Restrictions on Transfer.................................. 27
10.3 Conditions to Transfer.................................... 28
10.4 Termination of a Member................................... 29
10.5 Termination of Article 10 Provisions...................... 29
ARTICLE 11 REORGANIZATION INCIDENT TO PUBLIC OFFERING................... 29
11.1 Initial Public Offering................................... 29
11.2 Reorganization............................................ 30
11.3 Issuance of Class A Common Stock.......................... 30
11.4 Implementing Agreements................................... 30
ARTICLE 12 DISSOLUTION AND TERMINATION.................................. 31
12.1 Dissolution............................................... 31
12.2 Effect of Commencement of Dissolution Proceedings......... 31
12.3 Winding Up, Liquidation, and Distribution of Assets....... 31
12.4 Distributions In Kind on Liquidation...................... 32
4
12.5 Certificate of Cancellation............................... 32
12.6 Effect of Filing Certificate of Cancellation.............. 32
12.7 Return of Contribution Nonrecourse to Other Members....... 32
12.8 Withdrawal or Reduction of Members' Contributions to
Capital................................................... 33
ARTICLE 13 CERTAIN ADDITIONAL COVENANTS AND REPRESENTATIONS OF THE
MEMBERS...................................................... 33
13.1 Confidentiality........................................... 33
13.2 Transactions Between a Member and the Company
Generally................................................. 33
13.3 Publicity................................................. 34
13.4 Independent Activities.................................... 34
13.5 Representations and Warranties of the Members............. 34
13.6 Indemnification by Members................................ 34
ARTICLE 14 MISCELLANEOUS PROVISIONS..................................... 35
14.1 Notices................................................... 35
14.2 Application of Delaware Law............................... 36
14.3 Waiver of Action for Partition............................ 37
14.4 Amendments................................................ 37
14.5 Execution of Additional Instruments....................... 37
14.6 Compliance with Laws...................................... 37
14.7 Headings.................................................. 37
14.8 Waivers................................................... 38
14.9 Rights and Remedies Cumulative............................ 38
14.10 Severability.............................................. 38
14.11 Successors and Assigns.................................... 38
14.12 Creditors................................................. 38
14.13 Counterparts.............................................. 38
14.14 Use of Language........................................... 38
14.15 Integration............................................... 38
5
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF
TRANSPORTAL NETWORK, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of
TRANSPORTAL NETWORK, LLC, dated as of July 5, 2000, is entered into by and among
Transportal Network, LLC (the "Company"), Transportal Network, Inc., a Delaware
corporation ("TNI"), Transportal Investment Corp., a Delaware corporation (the
"Crescent Member") (each of TNI and the Crescent Member, together with any other
Person who is admitted to the Company as a Member in accordance with the terms
of this Agreement and who has agreed to become a party to this Agreement and be
bound by all of the terms and conditions hereof, individually referred to herein
as a "Member" and collectively as the "Members") and, solely for the purpose of
Sections 4.2, 8.22, 10.3.1(iv) and 10.3.2 of this Agreement, Crescent Real
Estate Equities Company, a Texas real estate investment trust ("Crescent
Equities").
RECITALS
The Company was organized as a limited liability company by TNI
pursuant to a Limited Liability Company Agreement, dated as of July 5, 2000,
between TNI and the Company. TNI has contributed to the Company all of its
tangible and intangible assets, including its contract rights (other than
related to employee matters) and its business plan and design, and the Company
assumed all the liabilities and obligations of TNI relating to such assets,
including a Note (the "Note") payable to the Crescent Member in the amount of
$1.2 million (together, the "Net Assets")
Immediately after contributing the Net Assets to the Company, TNI
distributed 2400 Class B Units to one of its shareholders, Crescent Operating,
Inc. ("COPI"), in partial liquidation of COPI's interest in TNI.
Immediately after the receipt of the interest in the Company from TNI,
COPI sold the 2400 Class B Units to the Crescent Member.
In connection with entering in this Agreement, the Company is issuing
240 Class A Units to the Crescent Member in exchange for the cancellation of the
Note.
The Members desire to enter into this Amended and Restated Limited
Liability Company Agreement to provide for the continuation of the Company, the
allocation of profits and losses, cash flow and other proceeds of the Company
among the Members, the respective rights, obligations and interests of the
Members to each other and to the Company, and certain other matters.
AGREEMENT
In consideration of the mutual covenants and agreements set forth in
this Agreement, the Members hereby agree as follows:
6
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms used in this Agreement shall have
the following meanings (unless otherwise expressly provided herein):
"Accreted Interest" shall mean, as of a specified date, the amount
obtained by assuming interest accrued at a 10% per annum rate, on a monthly
compounded basis, from the date of this Agreement to such specified date, on the
aggregate balances in the Capital Accounts of all Members as of the first day of
each month preceding such specified date.
"Accreted Value of the Company" shall mean, as of a specified date, the
sum of (a) the aggregate balances in the Capital Accounts of all Members as of
such date and (b) the amount of Accreted Interest as of such date.
"Adjusted Capital Account Balance" shall mean, with respect to any
Member, the balance in such Member's Capital Account as of the end of the
relevant Fiscal Year or other period, after giving effect to the following
adjustments:
(a) Crediting to such Capital Account any amounts which such
Member is obligated to restore to the Company pursuant to any provision
of this Agreement or is deemed to be obligated to restore pursuant to
the penultimate sentences of Treasury Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debiting to such Capital Account the items described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6).
This definition of Adjusted Capital Account Balance is intended to
comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)
and shall be interpreted consistently therewith.
"Affiliate" with respect to any Person or Member, shall mean any other
Person directly or indirectly controlling, controlled by or under common control
with, such first Person or Member.
"Agreement" shall mean this Amended and Restated Limited Liability
Company Agreement of Transportal Network, LLC, as it may be amended, restated,
modified or supplemented from time to time in accordance with its terms.
"Annual Budget" shall mean the Company's annual operating and capital
expenditures budget for each Fiscal Year, in the form approved by the Manager.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies in the
State of Georgia are authorized or obligated by law to close.
-2-
7
"Capital Account" shall have the meaning given such term in Section
5.1.1.
"Capital Contributions" shall mean the contributions in cash or other
property to the capital of the Company made by the Members, net of any
liabilities secured by such contributed property or which the Company assumes or
subject to which the Company takes the property. Capital Contributions shall not
include obligations to contribute cash at a future date, until such
contributions of cash are actually made.
"Certificate of Formation" shall mean the Certificate of Formation of
Transportal Network, LLC, filed with the Secretary of State of the State of
Delaware on July 5, 2000, and as the same may be amended from time to time.
"Class A Initial Preference Amount" shall have the meaning given such
term in Section 5.2.2.
"Class A Membership Interest" shall mean a Member's ownership interest
in the Class A Preference Amount and shall include any and all benefits to which
the holder of such Class A Membership Interest may be entitled as provided in
this Agreement, together with all obligations of such Person to comply with the
terms and provisions of this Agreement and the Delaware Act, as applicable. A
Class A Membership Interest may be expressed as a number of Class A Units.
"Class A Preference Amount" shall mean the Class A Initial Preference
Amount and any additional Capital Contribution pursuant to Section 5.3.1 for
which Class A Units are issued.
"Class A Units" shall mean an undivided share of the Class A Membership
Interests issued pursuant to Article 5 in such number as set forth on Exhibit A
attached hereto, as such Exhibit A may be amended from time to time. The Company
may issue fractional Class A Units to Members.
"Class B Membership Interest" shall mean a Member's ownership interest
in the Company, other than the Class A Membership Interest, and shall include
any and all benefits to which the holder of such Class B Membership Interest may
be entitled as provided in this Agreement, together with all obligations of such
Person to comply with the terms and provisions of this Agreement and the
Delaware Act, as applicable. A Class B Membership Interest may be expressed as a
number of Class B Units.
"Class B Percentage Interest" shall mean, with respect to each Member,
the fraction, expressed as a percentage, obtained by dividing the Class B Units
owned by such Member by the total number of Class B Units then outstanding as
specified on Exhibit A attached hereto, as such Exhibit A may be amended from
time to time in accordance with this Agreement.
"Class B Units" shall mean an undivided share of the Class B Membership
Interests issued pursuant to Article 5 in such number as set forth on Exhibit A
attached hereto, as such Exhibit A may be amended from time to time. The Company
may issue fractional Class B Units to Members.
-3-
8
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time (or any corresponding provisions of succeeding law), and, to the
extent applicable, the Treasury Regulations promulgated thereunder.
"Company" shall have the meaning given such term in the preamble to
this Agreement.
"Company Confidential Information" shall mean any and all trade secrets
and other confidential proprietary information, data or know-how of the Company,
or of other Persons that is in the possession of the Company, relating to the
business or operations of the Company, including, without limitation, any
software, system, technology, tools, list of customers, list of advertisers
and/or advertising pricing, business plans, marketing plans, financial