LNP, L.L.C.

 

 

 

 

AMENDED AND RESTATED LIMITED LIABILITY

COMPANY OPERATING AGREEMENT

(Revised 11/04/97)

TABLE OF CONTENTS

Page

Article I Definitions and Rules of Construction...................................................................... 1

1.1 Definitions..................................................................................................... 1

1.2 Rules of Construction.................................................................................... 4

1.3 Effect of Agreement; Severability and Reformation...................................... 5

Article II Formation of Company............................................................................................. 6

2.1 Formation...................................................................................................... 6

2.2 Name............................................................................................................. 6

2.3 Principal Office............................................................................................. 6

2.4 Resident Agent and Office............................................................................ 6

2.5 Term.............................................................................................................. 7

Article III Business and Nature of the Company...................................................................... 7

3.1 Permitted Businesses.................................................................................... 7

3.2 No Partnership Intended for Non-Tax Purposes.......................................... 8

Article IV Rights and Obligations of Members.......................................................................... 9

4.1 Membership Interest and Voting Rights....................................................... 9

4.2 Limitation of Liability................................................................................... 10

4.3 Nature of Interests........................................................................................ 11

4.4 Access to Company Books and Records...................................................... 11

4.5 Priority and Return of Capital...................................................................... 11

4.6 Internal Dispute, Review, Arbitration and Mediation.................................. 11

4.7 No Preemptive Rights................................................................................... 12

Article V Rights and Duties of, Designation and Election of, and Conduct of

Business by Members................................................................................................ 13

5.1 Management................................................................................................... 13

5.2 Meetings......................................................................................................... 13

5.3 Place of Meetings........................................................................................... 14

5.4 Notice of Meetings......................................................................................... 14

5.5 Record Date.................................................................................................... 14

5.6 Quorum.......................................................................................................... 14

5.7 Manner of Acting........................................................................................... 15

5.8 Proxies............................................................................................................ 19

5.9 Compensation; Reimbursement of Expenses................................................. 19

5.10 Conference Telephone.................................................................................... 19

5.11 Action by Members Without a Meeting........................................................ 20

5.12 Waiver of Notice............................................................................................. 20

Article VI Duties and Limitation of Liability Members, Officers

and Persons Serving on Advisory Committees; Indemnification................................ 20

6.1 Duties of Members; Limitation of Liability.................................................... 20

6.2 Members Have No Exclusive Duty to Company........................................... 21

6.3 Protection of Members and Officers............................................................... 21

6.4 Indemnification and Insurance......................................................................... 22

6.5 Duties of Persons Serving on Advisory Committees;

Limitation of Liability; Indemnification.......................................................... 24

Article VII Officers........................................................................................................................ 25

7.1 Officers of Company...................................................................................... 25

7.2 Election and Term of Office............................................................................ 25

7.3 Removal........................................................................................................... 25

7.4 Vacancies......................................................................................................... 25

7.5 President.......................................................................................................... 25

7.6 The Treasurer.................................................................................................. 26

7.7 The Secretary.................................................................................................. 26

Article VIII Contributions to the Company; Assessments for Administrative

Expenses; and Capital Accounts................................................................................. 27

8.1 Capital Contributions...................................................................................... 27

8.2 Assessments for Administrative Expenses..................................................... 27

8.3 Capital Accounts............................................................................................. 29

8.4 General Rules Relating to Capital of the Company........................................ 29

Article IX Allocations, Income Tax, Distributions, Elections, Books and

Records and Returns................................................................................................... 30

9.1 Allocation of Profits and Losses..................................................................... 30

9.2 Distributions Prior to Dissolution and Termination....................................... 30

9.3 Books, Records and Reports........................................................................... 31

9.4 Methods of Accounting.................................................................................. 32

9.5 Returns and Other Elections........................................................................... 32

9.6 Tax Matters Partner........................................................................................ 32

Article X Transferability and Withdrawal.................................................................................. 33

10.1 Restrictions on Transferability....................................................................... 33

10.2 Voluntary Withdrawal.................................................................................... 33

10.3 Involuntary Withdrawal................................................................................. 33

Article XI Membership............................................................................................................... 34

11.1 Admission to Membership............................................................................ 34

11.2 Membership Requirements............................................................................ 34

Article XII Dissolution and Termination..................................................................................... 35

12.1 Dissolution........................................................ ........................................... 35

12.2 Winding Up, Liquidation, and Distribution of Assets.................................. 36

12.3 Articles of Dissolution.................................................................................. 37

12.4 Return of Contribution - Nonrecourse to Other Members........................... 38

Article XIII Miscellaneous Provisions......................................................................................... 38

13.1 Further Assurances....................................................................................... 38

13.2 Notices.......................................................................................................... 38

13.3 Choice of Law and Forum; FCC and ICC Applicability.............................. 39

13.4 Entire Agreement.......................................................................................... 39

13.5 Amendment.................................................................................................. 39

13.6 Effect of Waiver of Consent........................................................................ 40

13.7 Facsimiles.................................................................................................... 40

13.8 Limitation on Rights of Others.................................................................... 40

13.9 Rights and Remedies Cumulative................................................................ 41

13.10 Successors and Assigns............................................................................... 41

13.11 Investment Representations....................................................................... 41

13.12 Counterparts............................................................................................... 43

13.13 Proposed Treasury Regulation Section 301.7701-2................................... 43

13.14 Confidentiality............................................................................................ 43

EXHIBIT A LIST OF MEMBERS............................................................................................ A-1

EXHIBIT B TERMS AND CONDITIONS GOVERNING INTELLECTUAL

PROPERTY AND CONFIDENTIAL INFORMATION.................................... B-1

LNP, L.L.C.

AMENDED AND RESTATED LIMITED LIABILITY

COMPANY OPERATING AGREEMENT

 

This AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT ("Agreement") is made as of the 6th day of November, 1996, by and among each of the parties listed on Exhibit A hereto (collectively, the "Members").

RECITALS

WHEREAS, the Members desire to establish LNP, L.L.C. ("LNP" or the "Company") as a new Illinois limited liability company for the purpose of engaging in business activities related to implementing number portability in the Midwest Region;

WHEREAS, the parties desire to enter into a limited liability company operating agreement in order to set forth the details of their relationship and the governance and management of the Company;

NOW THEREFORE, in consideration of the premises and the mutual agreements and representations herein contained, and intending to be legally bound hereby, the parties agree as follows:

Article I

Definitions and Rules of Construction

1.1 Definitions. The following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein):

(a) "Abstention from Voting" shall mean that on any matter that is required or allowed to be approved by vote, a Member whose vote is cast as "Abstain" shall not be construed to mean an affirmative or negative vote and shall be noted in the record as so. Only votes cast in the affirmative or negative shall be considered in matters needing unanimous, extraordinary majority, and majority consensus.

(b) "Agreement" shall mean this Limited Liability Company Operating Agreement as originally executed and as amended from time to time.

(c) "Articles of Organization" shall mean the Articles of Organization of the Company as filed with the Secretary of State of Illinois, as amended from time to time.

(d) "Capital Account" shall have the meaning set forth in Section 8.3.

(e) "Capital Contribution" shall mean any contribution to the capital of the Company in cash or property by a Member whenever made. "Initial Capital Contribution" shall mean the initial contribution to the capital of the Company pursuant to this Agreement.

(f) "Commission" shall refer to any or all of the state public utility commissions of Illinois, Indiana, Michigan, Ohio and Wisconsin in which Members are porting numbers or intend to port numbers under the Master Contract.

(g) "Company" or "LNP" shall refer to LNP, L.L.C.

(h) "Distributable Cash" shall mean all cash, revenues and funds received by the Company from Company operations, less the sum of the following to the extent paid or set aside by the Company: (i) all principal and interest payments on indebtedness of the Company and all other sums paid to lenders; (ii) all cash expenditures incurred in the normal operation of the Companyís business; and (iii) such reserves as the Members deem reasonably necessary for the proper operation of the Companyís business.

(i) "Entity" shall mean any individual person, general partnership, limited partnership, limited liability company, corporation, joint venture, trust, business trust, cooperative, association, foreign trust, or foreign business organization.

(j) "Extraordinary Majority Vote" shall mean the affirmative vote of at least two-thirds of the Members present and eligible to vote.

(k) "Fiscal Year" shall mean the Companyís fiscal year, which shall be the calendar year.

(l) "Illinois Act" shall mean the Illinois Liability Company Act at 805ILCS 180/1-1, et seq.

(m) "IRC" shall mean the Internal Revenue Code of 1986 or corresponding provisions of subsequent superseding federal revenue laws.

(n) "LNP" shall refer to the LNP, L.L.C.

(o) "Majority Vote" shall mean the affirmative vote of more than fifty percent of the Members present and eligible to vote.

(p) "Master Contract(s)" shall refer to the contract(s) between the NSP and the Prime Vendor(s).

(q) "Member" shall mean, in connection with the formation of the Company, each party who executes this Agreement as a Member and, after the formation of the Company, each party who satisfies the eligibility criteria in, and may be admitted as a Member in accordance with Section 11.1 of this Agreement. The names and addresses of the initial Members are as set forth in Exhibit A.

(r) "Membership Interest" shall mean a Memberís entire interest in the LNP, including the Memberís right to participate in the management of the business and affairs of the LNP, including the right to vote on, consent to, or otherwise participate in any decision or action of or by the Members granted pursuant to this Agreement and the Illinois Act and the right to inspect the books and records of the LNP.

(s) "Midwest Region" shall refer to any or all of the states of Illinois, Indiana, Michigan, Ohio and Wisconsin in which Members are porting numbers or intend to port numbers under the Master Contract.

(t) "Prime Vendor(s)" shall mean the Entity(ies) that enter into the Master Contract(s) with the LNP to: (1) establish, administer and maintain the number porting administration center and the service management system, and (2) perform other duties associated with the number porting administration center and service management system as directed by LNP. The Prime Vendor shall provide access to all such services on a nondiscriminatory basis.

(u) "Treasury Regulations" shall include proposed, temporary and final regulations promulgated under the IRC.

(v) "Unanimous Vote" shall mean the affirmative vote by all Members present and eligible to vote.

1.2 Rules of Construction. Unless the context otherwise requires:

(a) A term has the meaning assigned to it;

(b) "Or" is not exclusive;

(c) References in the singular or to "him," "her," "it," "itself," or other like references, and references in the plural or the feminine or masculine reference, as the case may be, shall also, when the context so requires, be deemed to include the plural or singular, or the masculine or feminine reference, as the case may be;

(d) References to Articles and Sections shall refer to articles and sections of this Agreement, unless otherwise specified; and

(e) The headings in this Agreement are for convenience and identification only and are not intended to describe, interpret, define or limit the scope, extent, or intent of this Agreement or any provision thereof.

1.3 Effect of Agreement; Severability and Reformation. It is the express intention of the Members that, except to the extent a provision of this Agreement expressly incorporates federal income tax rules by reference to the IRC or the Treasury Regulations or is expressly prohibited or ineffective under the Illinois Act, this Agreement shall govern the relations among the Members in their capacities as Members. If any provision of this Agreement or the application thereof to any person or circumstance shall be held invalid or unenforceable to any extent, (a) such provision shall be ineffective to the extent, and only to the extent, of such unenforceability or prohibition and shall be enforced to the extent permitted by law; (b) such unenforceability or prohibition in any jurisdiction shall not invalidate or render unenforceable such provision as applied (i) to other persons or circumstances or (ii) in any other jurisdiction; and (c) such unenforceability or prohibition shall not affect or invalidate any other provision of this Agreement. To the extent any provision of this Agreement is prohibited or ineffective under the Illinois Act, this Agreement shall be considered amended to the least degree possible in order to make this Agreement effective under the Illinois Act. In the event the Illinois Act is subsequently amended or interpreted in such a way as to make valid any provision of this Agreement that was formerly invalid, such provision shall be considered to be valid from the effective date of such interpretation or amendment.

To the extent any provision of this Agreement is held invalid or unenforceable, the Members shall negotiate, in good faith, concerning an amendment to this Agreement that will achieve, to the extent possible, consistent with applicable law, the intended effect of the invalid or unenforceable provision.

Article II

Formation of the Company

2.1 Formation. The Company was organized by executing and delivering the Articles of Organization to the Illinois Secretary of State in accordance with and pursuant to the Illinois Act.

2.2 Name. The name of the Company is LNP, L.L.C.

2.3 Principal Office. The Companyís initial principal office shall be at AT&T, 227 West Monroe Street, Chicago, Illinois 60606. The Company may locate its principal office at any place or places within the State of Illinois as the Members may from time to time deem advisable.

2.4 Registered Agent and Office. The Companyís initial registered office of its registered agent shall be at 208 South LaSalle Street, Chicago, Illinois, and the name of its initial registered agent at such address shall be CT Corporation System. The registered office and registered agent may be changed from time to time by filing the address of the new registered office and/or the name of the new registered agent with the Illinois Secretary of State pursuant to the Illinois Act.

2.5 Term. The term of the Company shall be fifty (50) years from and after the date of the formation of the Company in accordance with and pursuant to the Illinois Act, unless the Company is earlier dissolved in accordance with either the provisions of this Agreement or the Illinois Act.

Article III

Business and Nature of the Company

3.1 Permitted Businesses. The business of the Company shall be:

(a) To issue a Request for Proposals ("RFPs") to solicit bids from vendors interested in entering into the Master Contract(s) to perform the functions of the Prime Vendor(s);

(b) To develop and implement procedures for reviewing bids from the vendors responding to the RFP and selecting the Prime Vendor(s);

(c) To ratify, after a bid is selected and before execution of the Master Contract(s), the award of the Master Contract(s) to the Prime Vendor(s);

(d) To negotiate and execute the Master Contract(s) and to negotiate and execute other contracts for goods or services, to negotiate changes in terms and conditions of the Master Contract(s) and any other contract, to renew or rebid the Master Contract(s) and any other contract, and to terminate the Master Contract(s) and any other contract as circumstances require;

(e) To supervise and oversee the Prime Vendor(s) as well as any subcontractor or vendor to ensure compliance with Master Contract(s) requirements;

(f) To own, license or otherwise control any or all intellectual property rights and any other proprietary rights associated with local number portability technology and all confidential information associated with the activities of the LNP, pursuant to the terms and conditions set forth in Exhibit B;

(g) To purchase or own such facilities and other assets as the LNP may, from time to time, reasonably require for this business; and to exercise all other powers necessary to or reasonably related to the LNPís business that may legally be exercised by limited liability companies under the Illinois Act;

(h) To engage in all activities necessary, customary, convenient, incidental or related to any of the foregoing; and

(i) The activities of the Company may be expanded so that membership in the Company is available with respect to wireline and wireless telecommunications carriers or in other areas or territories, provided that appropriate amendments to this Agreement are adopted with the Extraordinary Majority Vote of the Members.

3.2 No Partnership Intended for Non-Tax Purposes. The Members have formed the Company under the Illinois Act, and expressly do not intend hereby to form a partnership under any state partnership act or limited partnership act. The Members do not intend to be partners one to another, or partners as to any third party.

Article IV

Rights and Obligations of Members

4.1 Membership Interest and Voting Rights.

(a) Except as otherwise provided in this Agreement, each Member shall have and retain a Membership Interest equal in every respect to the Membership Interest of any other Member, and such Membership Interest shall entitle a Member at all times to one vote, and thus, equal voting power, on all matters set forth in this Agreement requiring the vote of Members.

(b) In the event that any Member ("Controlled Member") is controlled by one or more other Members ("Controlling Member(s)"), such Controlled Member shall not be entitled to vote. Each Controlling Member shall be entitled to one vote. A Controlling Member may delegate its vote to a Member it controls, provided that no Controlled Member may have more than one (1) vote. Any such delegation must be in writing and must be delivered to the President prior to or at the meeting at which such delegation is to be effective. For purposes of this Agreement, a Member shall be deemed to control another Member if such Member possesses, directly or indirectly, the power (i) to vote 10% or more of the securities having ordinary voting power for the election of directors of such other Member or (ii) to direct or cause direction of the management and policies of such other Member, whether through the ownership of voting securities, by contract or otherwise. If any Member satisfies both definitions of "Controlled Member" and "Controlling Member", it shall be deemed to be a "Controlled Member".

(c) Each Member shall provide to the President of the Company a written statement, attested to by an Officer of the Member ("Officerís Statement"), which states whether such Member is a Controlled Member or Controlling Member under Section 4.1(b). Such Officers Statement shall be provided by each Member within thirty (30) days of: (1) admission into the Company, (2) any change in circumstances which would cause a change in the statement, or (3) a request of the Company, as determined by a simple majority vote. Each Memberís voting rights shall be based upon the most recent Officerís Statement provided to the President of the Company.

(d) Any Member qualifying for membership under Section 11.1 that does not commence porting numbers in the Midwest Region within either: (1) 9 months from the date such Member declares to the LNP its intent to port numbers in the Midwest Region, if such declaration is made in writing after the first date any local exchange carrier utilizes the system under the Master Contract(s) to port numbers, or (2) 9 months after the first date any local exchange carrier utilizes the system under the Master Contract(s) to port numbers, if the Member declares to the LNP its intent to port numbers in the Midwest Region at a time when local number portability is not available in the Midwest Region, shall relinquish all its voting rights on all matters set forth in this Agreement requiring the vote of Members until such time as it commences porting numbers in the Midwest Region. During the time that voting rights are relinquished, such Member may continue as a non-voting Member of the Company.

4.2 Limitation of Liability. No Member shall be personally liable to creditors of the Company for any debt, obligation or liability of the Company, whether arising in contract, tort or otherwise, beyond such Memberís Capital Contributions, except as otherwise provided by law.

4.3 Nature of Interests. There shall not be limited liability company interests in the Company other than Membership Interests as defined in this Agreement.

4.4 Access to Company Books and Records. In accordance with Section 9.3 herein, the Members shall maintain and preserve, during the term of the Company, the accounts, books and other relevant Company documents. Upon reasonable request, each Member or its duly authorized representative shall have the right, during ordinary business hours, as reasonably determined by the Members, to inspect and copy Company books and records at the requesting Memberís expense, for any purpose reasonably related to the Memberís Membership Interest.

4.5 Priority and Return of Capital. Except as otherwise expressly provided in this Agreement, no Member shall have priority over any other Member, either for the return of Capital Contributions or for net profits, net losses, or distributions.

4.6 Internal Dispute, Review, Arbitration and Mediation. In the event of a dispute or disagreement regarding a decision or action of the Members as to any material matter, the Members may unanimously agree to submit the dispute to binding arbitration in accordance with procedures to be agreed upon by the Members. If binding arbitration is not pursued, any Member shall seek review or mediation of such decision or action by the relevant state or federal commission with jurisdiction over the dispute or disagreement. After consultation with the staff of the relevant commission, the Member seeking review or mediation of such decision or action shall file an appropriate petition, letter, pleading or other request for action in accordance with applicable rules, if any, of the relevant commission within 30 calendar days of a decision or action by the Members. Thereafter, the Members will participate in good faith in any proceeding convened by the relevant commission for the purpose of resolving the matters in issue and will comply with the decisions of the relevant commission as may be appropriate. However, the action that is subject of the review or mediation shall not be delayed or postponed unless otherwise agreed by the Members or unless otherwise ordered by the relevant commission. If the relevant commission determines that it does not have legal jurisdiction or is unable for any other reason to review or mediate the matter, the Members may obtain final resolution of the matter by submitting to it binding arbitration in accordance with procedures to be agreed upon by the Members, or may pursue other lawful remedies. For purposes of this paragraph, "material matter" means a matter of sufficient magnitude as to impose a significant impact upon any aspect of the business of the Company or upon any of its Members regarding their participation in matters that are the subject of the business or the Company or related thereto, either collectively, individually or upon certain Members as a group. "Significant impact" includes but is not limited to matters of financial, operational, legal, regulatory or personnel-related concern pertaining to the business of the Company or matters related thereto. For purposes of this paragraph, "material" does not refer to any financial standard of materiality as applied in the administration of generally accepted accounting practices. The provisions of Section 4.6 shall not be construed as limiting such legal and procedural remedies as may be otherwise available to any Member. Section 4.6 shall not be applicable to, and thus the remedies provided under Section 4.6 shall not be available for, review or mediation of disputes or disagreements concerning the LNPís selection, ratification, approval, termination or renewal of the Prime Vendor(s), in connection with any aspect of the Prime Vendor(s) performance under the Master Contract(s).

4.7 No Preemptive Rights. No Member shall have any preemptive or preferential right, including any such right with respect to (a) additional Capital Contributions; (b) issuance or sale of Membership Interests, whether unissued or hereafter created; (c) issuance of any obligations, evidences of indebtedness or other securities of the Company convertible into or exchangeable for, or carrying or accompanied by any rights to receive, purchase or subscribe to, any such unissued Membership Interest; (d) issuance of any right of, subscription to or right to receive, or any warrant or option for the purchase of, any of the foregoing securities; or (e) issuance or sale of any other securities that may be issued or sold by the Company.

Article V

Rights and Duties of, Designation and Election of,

and Conduct of Business by Members

5.1 Management. The business and affairs of the LNP shall be managed by the Members. The Members shall in all cases act collectively as provided in this Article V, and no Member acting individually shall be the agent of the LNP or shall have authority to bind the LNP and no debt shall be contracted or liability incurred by or on behalf of the LNP, except by the Members acting collectively as provided in this Article V or by one or more agents or employees of the LNP acting pursuant to the authority granted to them by the Members. The Members shall, by a Majority Vote, appoint officers of the Company who, to the extent provided by the Members of the Company or this Agreement, may have and may exercise all the powers and authority of the Members in the conduct of the business and affairs of the Company.

5.2 Meetings. Meetings of the Members, for any purpose or purposes, shall be called by at least two (2) Members eligible to vote.

5.3 Place of Meetings. The Members may designate any place, either within or outside the Midwest Region, as the place of meeting for any meeting of the Members. If no designation is made, or if a special meeting be otherwise called, the place of the meeting shall be the principal place of business of the Company.

5.4 Notice of Meetings. Written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than five (5) nor more than sixty (60) days before the date of the meeting unless otherwise provided, either personally or by mail, by or at the direction of the Members calling the meeting, to each Member entitled to vote at such meeting. In addition, such meeting notice shall include identification of any matter on which Members will be asked to vote, if approval of such matter requires an extraordinaty majority or unanimous vote of Members.

5.5 Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of the Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make determination of Members for any other purpose, the date on which notice of the meeting is provided pursuant to Section 13.2 or the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of the Members has been made as provided in the Section, such determination shall apply to any adjournment thereof.

5.6 Quorum. Members holding at least an Extraordinary Majority Vote in the Company represented in person or by proxy, shall constitute a quorum at any meeting of Members. In the absence of a quorum at any such meeting, a majority of the Members so represented may adjourn the meeting from time to time for a period not to exceed sixty (60) days without further notice. However, if the adjournment is for more than sixty (60) days, or if after the adjournment a new record date is fixed for another meeting, a notice of the adjourned meeting shall be given to each member of record entitled to vote at the meeting. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal during such meeting of that number of Members whose absence would cause less than a quorum.

5.7 Manner of Acting.

(a) If a quorum is present, the affirmative vote of a majority of the Members so represented shall be the act of the Members, unless the vote of a greater or lesser proportion or number is otherwise required by the Act, by the Articles of Organization or by this Agreement.

(b) Notwithstanding the provisions of Section 5.7(a), the ratification, renewal, amendment or termination of a Master Contract(s) to the Prime Vendor(s) (except as provided in Section 5.7(c)(i), requires the Extraordinary Majority Vote of Members having no direct material financial interest in the Master Contract(s).

(c) Notwithstanding the provisions of Sections 5.7(a) and (b), an Extraordinary Majority Vote is required to effect the following actions:

(i) to amend the Master Contract(s) or to otherwise contract to provide an enhanced feature (i.e., a service which is not part of the Master Contract(s); provided, however, that an amendment or contract for

1. an enhanced feature for which the development costs exceed $400,000 in any twelve (12) month period, or

2. an enhanced feature whose development cost exceeds $750,000 over its lifetime, or

3. any amendment for an enhanced feature which would cause the cost of all enhanced features approved in a twelve-month period to exceed $400,000,

must have a Unanimous vote of all members present and eligible to vote; and that written notice of the scheduled vote on the enhanced feature is issued to all members one month prior to the date of the meeting at which the enhanced feature is voted upon. Development costs for an enhanced feature requested by and paid for by an individual Member shall not be included in these amounts. Development costs shall include costs recovered in upfront fees, in service charges, or otherwise; and

(ii) to amend this Agreement provided, however, that an amendment to Section 5.7(c)(i) shall require the unanimous vote or unanimous written consent of all Members eligible to vote.

(d) The Company upon Majority vote of the Members may authorize the Prime Vendor(s) to provide an enhanced feature at the instance of a Member if either:

(i) (a) such enhanced feature does not require the incurring of any cost or increase any cost to those purchasing number porting or other goods and services made available by the Prime Vendor(s) of the system; (b) the making of such enhanced feature does not delay the commencement or completion of enhanced features to the system authorized by at least an Extraordinary Majority Vote of the Members, (c) such enhanced feature does not render the system less useful to any Member, and (d) the benefit of such enhanced feature shall be made available to all users, on the same, uniform terms and conditions on which the benefits of such enhanced features are made available to the requesting Member or any other Member, without discrimination, provided that the subsequent users reimburse the original requesting Member(s) their proportionate share of the upfront development costs paid for such enhanced feature, if any, or

(ii) (a) the cost of such enhanced feature is funded entirely by the Member or Members seeking such enhanced feature in accordance with the funding and funding recovery methods established with the Majority Approval of the Members, (b) the making of such enhanced feature does not increase any cost to those purchasing number porting or other goods and services made available by the Prime Vendor(s) of the system, (c) the provision of such enhanced feature does not delay the commencement or completion of to the system authorized by at least an Extraordinary Majority vote of the Members, (d) such enhanced feature does not render the system less useful to any Member and (e) the benefit of such enhanced feature shall be made available to all users, on the same, uniform terms and conditions on which the benefits of such enhanced features are made available to the requesting Member or any other Member, without discrimination, provided that the subsequent users reimburse the original requesting Member(s) their proportionate share of the upfront development costs paid for such enhanced feature, if any.

The Company may otherwise condition its authorization to the Prime Vendor(s) to provide an enhanced feature to the System to be made at the instance of a Member in accordance with this Section 5.7(d) on such reasonable terms and conditions as the Company may determine appropriate to achieve the purposes of this Agreement, including, without limitation, (1) a requirement that the enhanced feature be made within a schedule which does not interrupt the continuing utility of the System to all Members and (2) a requirement that the enhanced feature be made within a schedule which does not delay the completion of enhanced features previously authorized by the Company.

(e) Notwithstanding the provisions of Sections 5.7(a), (b) and (c), the unanimous vote or written consent of all Members eligible to vote is required to effect the following actions:

(i) Formation or acquisition of subsidiaries and entering into partnerships, limited liability company agreements, and joint ventures.

(ii) Incurrence of (1) any indebtedness (other than trade payables incurred in the ordinary course of business) or lease, guaranty, indemnification or suretyship obligations, or (2) any indebtedness to a Member or an affiliate of a Member.

(iii) The approval of (1) the merger or consolidation of the Company with or into another Entity; (2) the sale, exchange, or other disposition of all, or substantially all, of the Companyís assets which is to occur as part of a single transaction or plan; and (3) the reorganization of the Company pursuant to an event of bankruptcy.

(iv) Payment of a distribution of the Companyís moneys or other assets to any Member prior to dissolution and termination of the Company.

(v) Issuance of any public policy or public statement by the Company.

(vi) Entry into any new line of business.

(f) An amendment to any section or matter calling for a unanimous vote shall require the unanimous vote or unanimous written consent of all members eligible to vote.

5.8 Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the Company before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.

5.9 Compensation; Reimbursement of Expenses. No compensation shall be paid to any member by the Company or any Member. However, a Member may be reimbursed for any authorized expenses reasonably incurred by it in conjunction with the business and affairs of the Company.

5.10 Conference Telephone. Any Member may participate in a meeting of the Members 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 the meeting by means of such equipment shall constitute presence in person at such meeting.

5.11 Action by Members Without A Meeting. Action required or permitted to be taken at a meeting of Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each Member entitled to vote and delivered to the Company for inclusion in the minutes or for filing with the Company records. Action taken under this Section is effective when all Members entitled to vote have signed the consent, unless the consent specifies a different effective date.

5.12 Waiver of Notice. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice, whether before, at or after the time stated therein, shall be equivalent to the giving of such notice.

Article VI

Duties and Limitation of Liability Members, Officers and

Persons Serving on Advisory Committees; Indemnification

6.1 Duties of Members: Limitation of Liability. The Members shall perform their duties in good faith, in a manner they reasonably believe to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. A Member or officer shall not have any liability to the Company or any other Member by reason of being or having been a Member or officer. A Member or officer shall not be liable to the Company or to any other Member or officer for any loss or damage sustained by the Company or any other Member or officer, unless the loss or damage shall have been the result of fraud, deceit, gross negligence, willful misconduct, or a wrongful taking by the Member or officer.

6.2 Members Have No Exclusive Duty to Company. The Members shall not be required to manage the Company as their sole and exclusive function and they may have other business interests and may engage in other investments or activities in addition to those relating to the Company. Neither the Company nor any other Member shall have any right, by virtue of this Agreement, to share or participate in such other business interests, investments or activities of a Member or the income or proceeds derived therefrom. No Member shall incur liability to the Company or to any other Member solely by reason of engaging in any such other business, investment or activity.

6.3 Protection of Members and Officers.

(a) As used in this Section 6.3, the term "Protected Party" refers to the Members and officers of the Company.

(b) To the extend that, at law or in equity, a Protected Party has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any other Protected Party, a Protected Party acting under this Agreement shall not be liable to the Company or to any other Protected Party for its good faith reliance on the provisions of this Agreement, the records of the Company, and such information, opinions, reports or statements presented to the Company by any person as to matters the Protected Party reasonably believes are within such other personís professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other fact pertinent to the existence and amount of assets from which distributions to Members might properly be paid. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Protected Party to the Company or to any other Protected Party otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Protected Party.

(c) Whenever in this Agreement a Protected Party is permitted or required to make a decision (i) in its "discretion" or under a grant of similar authority or latitude, the Protected Party shall be entitled to consider only such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company or any other Person, or (ii) in its "good faith" or under another express standard, the Protected Party shall act under such express standard and shall not be subject to any other or different standard imposed by this Agreement or other applicable law.

6.4 Indemnification and Insurance.

(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative or otherwise and whether formal or informal (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a Member, officer or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise, whether the basis of such proceeding is alleged action in an official capacity as a Member, officer or agent or in any other capacity while serving as such a Member, officer or agent of the Company, shall be indemnified and held harmless by the Company, if the Member, officer or agent acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the Company and, with respect to any criminal proceeding, such Member, officer or agent had reasonable cause to believe that the act or omission was lawful.

(b) Advancement of Expenses. Expenses (including attorneysí fees) incurred by an indemnified person in defending any proceeding shall be paid in advance of the proceedingís final disposition upon receipt of an undertaking by such person to repay the amount so advanced if the person is ultimately found not to be entitled to indemnification under Section 6.4(a).

(c) Non-Exclusivity of Rights. The right to indemnification and the advancement of expenses conferred in this Section 6.4 shall not be exclusive of any right which any person may have or hereafter acquire under any statute, provision of this Agreement, contract, agreement, vote of Members or otherwise. The Members and officers are expressly authorized to adopt and enter into indemnification agreements for Members, officers and advisory committee members.

(d) Insurance. The Members may cause the Company to purchase and maintain insurance for the Company or its Members and officers on behalf of any person who is or was or has agreed to become a Member or officer advisory committee member or agent of the Company or is or was serving at the request of the Company as a manager, director, officer, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred in any such capacity or arising out of such status, whether or not the Company would have the power to indemnify such person.

(e) Effect of Amendment. No amendment, repeal or modification of this Section 6.4 shall adversely affect any rights hereunder with respect to any action or omission occurring prior to the date when such amendment, repeal or modification became effective.

6.5. Duties of Persons Serving on Advisory Committees; Limitation of Liability; Indemnification. The Members shall have the right to form advisory committees. Persons serving on an advisory committee, whether or not a Member or officer, shall perform their duties in good faith, in a manner they reasonably believe to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. A person serving on an advisory committee who so performs shall not have any liability to the Company or to any Member or officer and shall be entitled to indemnification and insurance in the manner provided for Members in this Article VI. A person serving on an advisory committee shall not be liable to the Company or to any Member or officer for any loss or damage sustained by the Company or any Member or officer, unless the loss or damage was the result of fraud, deceit, gross negligence, willful misconduct, or a wrongful taking by such person.

Article VII

Officers

7.1 Officers of Company. The officers of the Company shall consist of a president, a treasurer and a secretary, or other officers or agents as may be elected and appointed by the Members. The officers shall act in the name of the Company and shall supervise its operation under the direction and management of the Members, as further described below.

7.2 Election and Term of Office. The officers of the Company shall be elected annually by the Members by a Majority Vote, in a manner such that the Members shall rotate offices each year. Vacancies may be filled or new offices created and filled at any meeting of the Members. Each officer shall hold office until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided. Election or appointment of an officer or agent shall not of itself create contract right.

7.3 Removal. Any officer or agent may be removed by the Members whenever in their judgment the best interests of the Company would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.

7.4 Vacancies. A vacancy is any office because of death, resignation, removal, disqualification or otherwise may be filed by the Members for the unexpired portion of the term.

7.5 President. The president shall be the chief executive officer of the Company and shall preside at all meetings of the Members. He or she shall have such other powers and perform such duties as are specified in this Agreement and as may from time to time be assigned to them by the Members of the Company.

7.6 The Treasurer. The treasurer shall be the chief financial officer of the Company. The treasurer shall not be required to give a bond for the faithful discharge of his or her duties. He or she shall: (i) have charge and custody of and be responsible for all funds and securities of the Company; (ii) in the absence of the president, preside at meetings of the Members; (iii) receive and give receipts for moneys due and payable to the Company from any source whatsoever, and deposit all such moneys in the name of the Company in such banks, trust companies or other depositaries as shall be selected by the Members of the Company; and (iv) in general perform all the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him or her by the president or by the Members of the Company.

7.7 Secretary. The secretary shall: (i) keep the minutes of the Membersí meetings in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of this Agreement or as required by law; (iii) be custodian of Company records; (iv) keep a register of the post office address of each Member which shall be furnished to the secretary by such Member; (v) certify the resolutions of the Members, and other documents to the Company as true and correct thereof; (vi) in the absence of the president and treasurer, preside at meetings of the Members and (vii) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him or her by the president or the Members of the Company.

Article VIII

Contributions to the Company;

Assessments for Administrative Expenses; and Capital Accounts

8.1 Capital Contributions.

(a) Each Member shall make an Initial Capital Contribution to the Company of cash within 30 days of its admission as a Member to the Company in an amount equal to $10,000.

(b) Other than the Initial Capital Contributions of the Members pursuant to Section 8.1(a), no Member shall have any obligation to make any further Capital Contributions or to lend any funds to the Company; provided, however, that the foregoing shall not be construed to limit the obligation of any Member to pay its share of assessments made under Section 8.2.

8.2 Assessments for Administrative Expenses.

(a) As used in this Article VIII, the term "Administrative Expenses" shall mean those expenses incurred by the Company in the ordinary course of its operations, including but not limited to expenses incurred for insurance, bank accounts and banking services, resident agents of the Company, professional services, postage, letterhead, office supplies, and materials and services related to the issuance of any request for proposals.

(b) Each Member shall be obligated to pay in cash to the Company from time to time its proportionate share of all assessments for Administrative Expenses of the Company. Assessments for Administrative Expenses under this Section 8.2 shall be subject to the following terms and conditions:

(1) Assessments may be made only for funds required by the Company to pay Administrative Expenses actually paid or incurred by the Company or reasonably anticipated to be due and payable by the Company within 180 days of the date on which the capital call is made.

(2) Assessments for Administrative Expenses may be made only for amounts approved by a Majority Vote.

(3) Assessments under this Section 8.2 shall be made no more frequently than once per calendar month.

(4) Assessments under this Section 8.2 shall not be considered Capital Contributions to the Company and a Memberís Capital Account shall not be credited with the amount of any assessments paid by it to the Company hereunder.

(c) Assessments for Administrative Expenses under this Section 8.2 shall be made by the treasurer or secretary by delivery of written notice (an "Assessment Notice") to each Member describing (i) the total amount then being assessed to the Members for Administrative Expenses, (ii) the uses and applications of the assessments, (iii) that Memberís share of the total assessment then being made, and (iv) the date the assessment is required to be paid by the Members, which date shall not be less than 30 days after the Assessment Notice has been given.

(d) Each Member admitted after the date of this Agreement shall pay to the company upon its admission its pro rata share of Administrative Expenses subject to any adjustment at any time agreed upon by the Members.

8.3 Capital Accounts. An individual capital account (the "Capital Account") shall be maintained for each Member. The Capital Account of a Member shall consist of its initial Capital Contribution and shall be increased by (i) the amount of any additional Capital Contributions and (ii) the amount of all net profits (and any item thereof) allocated to such Member, and decreased by (iii) the amount of all distributions to such Member and (iv) the amount of all net losses (any item thereof) allocated to such Member. The Capital Accounts shall be determined, maintained and adjusted in accordance with Section 704(b) of the IRC and the Treasury Regulations thereunder. If the Company determines that the manner in which Capital Accounts are to be maintained pursuant to the preceding provisions of this Section 8.3 should be modified in order to comply with Code Section 704(b) and the Treasury Regulations, then notwithstanding anything to the contrary contained in the preceding provisions of this Section 8.3, the method in which Capital Accounts are maintained shall be so modified; provided, however, that any change in the manner of maintaining Capital Accounts shall not materially alter the economic agreement between or among the Members as set forth in this Agreement.

8.4 General Rules Relating to Capital of the Company.

(a) No Member shall be personally liable for the return of the Capital Contributions of the Members, or any portion thereof, it being expressly understood that such return of contributions, if any, shall be made solely from Company assets.

(b) No Member shall have the right to withdraw its Capital Contribution or receive any return of its Capital Contributions. No Member shall have any right to demand or receive property (in return of its Capital Contribution).

Article IX

Allocations, Income Tax, Distributions, Elections,

Books and Records and Returns

9.1 Allocation of Profits and Losses.

(a) Net profits or net losses of the Company, as the case may be, shall be determined for each Fiscal Year of the Company in accordance with generally accepted accounting principles as from time to time in effect. Net profits, net losses for each Fiscal Year and all items of income, gain, loss or deduction shall be allocated equally to the Members.

(b) Except as may be otherwise required under the IRC or the Treasury Regulations thereunder, all items of income, gain, loss and deduction (and items thereof) for income tax purposes shall be allocated among the Members in the same manner as its correlative item of "book" income, gain, loss or deduction is allocated pursuant to Section 9.1(a) were allocated to the Members hereunder.

9.2 Distributions Prior to Dissolution and Termination.

(a) Prior to the dissolution and termination of the Company, no distributions of Distributable Cash shall be made by the Company to the Members without the unanimous consent of the Members. Any distributions of Distributable Case under this Section 9.2 shall be made equally to the Members.

(b) No distributions shall be made and paid if, after the distribution is made either (i) the Company would be insolvent; or (ii) the net assets of the Company would be less than zero. The Members may base a determination that a distribution may be made under Section 9.2 in good faith reliance upon a balance sheet and profit and loss statement of the Company fairly reflecting the financial condition of the Company represented to be correct by the Secretary or certified by an independent public or certified public accountant or firm of accountants.

9.3 Books, Records and Reports.

(a) The books and records of the Company shall be maintained by the secretary and shall be available for examination by an Member, or its duly-authorized representatives, during regular business hours. At a minimum, the secretary shall keep at the Companyís principal place of business the following records:

(i) A current list of the full name and post office address of each Member;

(ii) A copy of the Articles of Organization and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any amendment has been executed;

(iii) Copies of the Companyís financial statements and federal, state and local income tax returns and reports, if any, for the three most recent years; and

(iv) Copies of the Companyís currently effective written Limited Liability Operating Agreement, as amended.

(b) The treasurer shall cause the Company to furnish to the Members within ninety (90) days of the end of each fiscal year (i) a complete accounting of the affairs of the Company, and (ii) appropriate information to be used by the Members for reporting their respective shares of the profits and losses of the Company for income tax purposes. The cost of such financial and tax reports shall be an expense of the Company.

9.4 Methods of Accounting. The method of accounting to be used in keeping the books of the Company shall be determined by the Members in accordance with applicable law.

9.5 Returns and Other Elections. The treasurer shall cause the preparation and timely filing of all tax returns required to be filed by the Company pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. Copies of such returns or pertinent information therefrom shall be furnished to the Members within a reasonable time after the end of the Companyís Fiscal Year. All elections permitted to be made by the Company under federal or state laws shall be made by the treasurer in his or her sole discretion. In recognition of the fact that the Company expects to be treated as a partnership for U.S. federal income tax purposes, the Members agree to treat their Membership Interest as partnership interests for U.S. federal and state income tax reporting purposes.

9.6 Tax Matters Partner. AT&T Communications of Illinois, Inc. is designated the "Tax Matters Partner" (as defined in Code Section 6231), and is authorized and required to represent the Company (at the Companyís expense) in connection with all examinations of the Companyís affairs by tax authorities, including, without limitation, administrative and judicial proceedings, and to expend Company funds for professional services and costs associated therewith. The Members agree to cooperate with each other and to do or refrain from doing any and all things reasonably required to conduct such proceedings.

Article X

Transferability and Withdrawal

10.1 Restrictions on Transferability. No Member shall sell, give, pledge, encumber, assign, transfer or otherwise dispose of, voluntarily or involuntarily or by operation of law (hereinafter referred to as "Transfer"), all of any portion of its Membership Interest without the prior written consent of a majority of the Members. Any attempted transfer in contravention of any of the provisions of this Agreement shall be void ab initio and shall not bind or be recognized by the Company or the other Members. A transfer to a parent of a Member or to an affiliate in which the Member holds at least a 50% interest or which holds at least a 50% interest in the Member, shall not be deemed to be a transfer for purposes of this paragraph.

10.2 Voluntary Withdrawal. Any Member may, at any time and for any reason, withdraw from the Company as a Member upon 90 daysí prior written notice to such effect delivered to the Company and each other Member, provided, however, that, prior to dissolution and liquidation of the Company, no Member shall have any right to receive any return of its Capital Contributions or any positive balance in its Capital Account upon any such voluntary withdrawal.

10.3 Involuntary Withdrawal. A Member may be removed at any time with cause by a vote of two-thirds of all Members eligible to vote and all of its Membership Interest shall be repurchased. The Company shall pay to the removed Member any positive balance in its Capital Account within ninety (90) days from the date of the removal. The remaining Members shall have the right in their sole discretion at any time within sixty (60) days of the removal to determine all net profits and net losses of the Company as of the date of such removal, to determine and deduct the amount of unpaid assessments and to make appropriate credits and debits to the Membersí Capital Accounts. The Capital Account of the removed Member as of the date of determination shall be conclusively deemed to be the fair value of all of its Membership Interest and the payment provided for in this Section 10.3, shall be the full and only consideration for the redemption of the removed Memberís Membership Interest.

Article XI

Membership

11.1 Admission to Membership. From the date of the formation of the Company, membership in the Company will be limited to: (a) all facilities-based carriers certificated by a Commission to provide local exchange telecommunications service in a state in the Midwest Region that express an intent in writing to LNP to port numbers in the Midwest Region, after the first date any local exchange carrier utilizes the system under the Master Contract(s) to port numbers, or (b) other facilities-based carriers that have filed to provide local exchange telecommunications service in the Midwest Region and express an intent in writing to LNP to port numbers in the Midwest Region after the first date any local exchange carrier utilizes the system under the Master Contract(s) to port numbers. The Members have the right to modify this membership criteria from time to time as appropriate.

11.2 Membership Requirements. To become a Member of the Company and thereby obtain a Membership Interest in the Company, an Entity must: (1) demonstrate to the Members that it meets the admissions criteria in Section 11.1, (2) execute this Agreement or a written counterpart to this Agreement, and (3) contribute its initial Capital Contribution in accordance with Section 8.1 and pay its share of prior assessments of Administrative Expenses accrued in the prior 180 days, as determined by the Members. Failure to satisfy the aforementioned requirements will result in denial of membership or revocation of membership which shall be implemented by the Members any time after 30 days written notice an opportunity to cure has been provided to the Member. To maintain status as a Member of the Company and to maintain a Membership Interest in the Company, a Member must comply with all terms and conditions of this Agreement, including (without limitation) paying its share of assessments made under Section 8.2, and any failure to so comply will result in revocation of membership which shall be implemented by the Members any time after 30 days written notice has been provided to the Member.

Article XII

Dissolution and Termination

12.1 Dissolution. The Company shall be dissolved upon the occurrence of either of the following events:

(a)

(i) the expiration of the term of the Company as specified in Section 2.5; or

(ii) by two-thirds of all of the Members.

(b) Dissolution of the Company shall be effective on expiration of the term of the Company or on the day written consent of the Members is had, as the case may be, but the Company shall not terminate until the articles of dissolution shall be filed with the Secretary of State of the State of Illinois and the assets of the Company are distributed as provided in Section 12.2 below. Notwithstanding the dissolution of the Company, prior to the termination of the Company, the business of the Company and the affairs of the Members shall continue to be governed by this Agreement.

12.2 Winding Up, Liquidation, and Distribution of Assets. Upon dissolution, an accounting shall be made by the Companyís independent accountants of the accounts of the Company and of the Companyís assets, liabilities, and operations, from the date of the last previous accounting until the date of dissolution. The Members shall immediately proceed to wind up the affairs of the Company. If the Company is dissolved and its affairs are to be wound up, the Members shall:

(a) sell or otherwise liquidate all of the Companyís assets as promptly as practicable (except to the extent the Members, by Majority Vote, may determine to distribute any assets to the Members in kind);

(b) allocate any profit or loss resulting from such sales to the Membersí Capital Accounts;

(c) discharge all liabilities of the Company, including liabilities to Members who are creditors, to the extent otherwise permitted by law, other than liabilities to Members for distributions, and establish such reserves as may be reasonably necessary to provide for contingencies or liabilities of the Company (for purposes of determining the Capital Accounts of the Members, the amounts of such reserves shall be deemed to be an expense of the Company);

(d) distribute the remaining assets in the following order:

(1) If any assets of the Company are to be distributed in kind, the net fair market value of those assets as of the date of dissolution shall be determined by independent appraisal or by agreement of the Members. Those assets shall be deemed to have been sold as of the date of dissolution for their fair market value, and the Capital Accounts of the Members shall be adjusted pursuant to the provisions of Section 8.3 of this Agreement to reflect such deemed sale.

(2) Distributions shall be made according to the positive balance(s) (if any) of the Membersí and former Memberís Capital Accounts (as determined after taking into account all Capital Account adjustments for the Companyís taxable year during which the liquidation occurs), either in cash or in kind, as determined by the Members, with any assets distributed in kind being valued for this purpose at their fair market value.

(e) provide that notwithstanding anything to the contrary in this Agreement, upon the dissolution and termination of the Company, no Member shall have any obligation to make a Capital Contribution to restore a negative balance in the Memberís Capital Account, and the negative balance of the Memberís Capital Account shall not be considered a debt owed by the Member to the Company or to any other Person for any purpose whatsoever.

(f) terminate the Company for tax purposes upon completion of the winding up, liquidation, and distribution of the assets.

(g) comply with any applicable requirements of applicable law pertaining to the winding up of the affairs of the Company and the final distribution of its assets.

12.3 Articles of Dissolution. When all debts, liabilities, and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Members, an Articles of Dissolution shall be executed, which Articles shall set forth the information required by the Illinois Act. Upon the filing of the Articles of Dissolution, the existence of the Company shall cease, except for the purpose of suits, other proceedings, and appropriate action as provided in the Illinois Act. The Members shall have authority to distribute any Company property discovered after dissolution, convey real estate, and take such other action as may be necessary on behalf of and in the name of the Company.

12.4 Return of Contribution - Nonrecourse to Other Members. Except as provided by law or as otherwise expressly provided in this Agreement, upon dissolution, each Member shall look solely to the assets of the Company for the return of its Capital Contribution or Capital Account. Except as provided by law or as otherwise expressly provided in this Agreement, if the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return the cash contribution or Capital Account of one or more Members, the Members shall have no recourse against any other Member.

Article XIII

Miscellaneous Provisions

13.1 Further Assurances. At any time and from time to time after the date of this Agreement, each Member will, upon the reasonable request of another Member, perform, execute, acknowledge and deliver all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required to effect or evidence the transactions contemplated hereby or to comply with any laws, rules or regulations.

13.2 Notices. All necessary notices, demands and requests required or permitted to be given hereunder shall be in writing and addressed as set forth in Exhibit A. Notice shall be delivered by a recognized courier service or by U.S. mail and shall be effective upon receipt, provided that notices shall be presumed to have been received if given by U.S. mail or courier service, on the second business day following delivery of the notice to a recognized courier service before the deadline for delivery on or before the second business day following delivery to such service, delivery costs prepaid, addressed as aforesaid.

13.3 Choice of Law and Forum; FCC and Commission Applicability. This Agreement and any claims arising hereunder or related hereto, whether in contract or tort, shall be governed by the domestic laws of the State of Illinois, except provisions relating to conflict of laws. Any suit regarding this Agreement must be brought in a court of competent jurisdiction in Cook County, Illinois. Any suit brought by one Member against another Member concerning the subject matter of this Agreement must be brought within one year from the date such cause of action accrues. This Agreement is subject to any FCC promulgations or Commission rules and regulations on local number portability which may control.

13.4 Entire Agreement. This Agreement constitutes the entire agreement of the Members relating to the subject matter hereof and supersedes all prior contracts or agreements, whether oral or written, relating to the subject matter hereof. There are no representations, agreements, arrangements or understandings, oral or written, between or among the Members relating to the subject matter of this Agreement which are not fully expressed in this Agreement.

13.5 Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented or modified orally, but only by an instrument in writing executed by Members holding an Extraordinary Majority Vote, except for provisions requiring a unanimous vote herein, which provision shall require a unanimous vote to amend.

13.6 Effect of Waiver of Consent. No waiver or consent, express or implied, by the Company or any Member to or of any breach or default by the Company or any Member in the performance by the Company or such Member of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by the Company or such Member of the same or any other obligations of the Company or such Member hereunder. No single or partial exercise of any right or power, or any abandonment or discontinuance of steps to enforce any right or power, shall preclude any other or further exercise thereof or the exercise of any other right or power. Failure on the part of the Company or a Member to complain of any act of the Company or any Member or to declare the Company or any Member in default, irrespective of how long such failure continues, shall not constitute a waiver by the Company or such Member of its rights hereunder until the applicable statute of limitation period has run.

13.7 Facsimiles. For purposes of this Agreement, any copy, facsimile, telecommunication or other reliable reproduction of a writing, transmission or signature may be substituted or used in lieu of the original writing, transmission or signature for any and all purposes for which the original writing, transmission or signature could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing, transmission or signature, as the case may be.

13.8 Limitation on Rights of Others. Nothing in this Agreement, whether express or implied, shall be construed to give any person (other than the Members hereto and their respective legal representatives, permitted successors and assigns and as expressly provided herein) any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenants, conditions or provisions contained herein, as a third party beneficiary or otherwise. Without limiting the generality of the foregoing, none of the provisions of this Agreement shall be for the benefit of, or enforceable by, any creditors of the Company or any other person. Except and only to the extend provided by applicable statute, no such creditor or other third party shall have any rights under this Agreement or any agreement between the Company and any Member with respect to any Capital Contribution or otherwise.

13.9 Rights and Remedies Cumulative. Except as otherwise provided in Section 4.6, the rights and remedies provided by this Agreement are cumulative and use of any one right to remedy by any Member shall not preclude or waive the right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Members may have by law, statute, ordinance, or otherwise.

13.10 Successors and Assigns. Each and all of the covenants, terms, provisions, and agreements contained in this Agreement shall be binding upon and inure to the benefit of the Members hereto and, to the extent permitted by this Agreement, their respective successors and assigns.

13.11 Investment Representations. The parties to this Agreement agree as follows with respect to investment representations:

(a) The undersigned Members understand:

(i) that the Membership Interests evidenced by this Agreement have not been registered under the Securities Act of 1993, 15 U.S.C. ß77a et seq., the Illinois Securities Act or any other state securities law (the "Securities Acts") because the Company is issuing these Membership Interests in reliance upon the exemptions from the registration requirements of the Securities Acts providing for issuance of securities not involving a public offering:

(ii) that the Company has relied upon the fact that a Membership Interest is to be held by each Member for investment; and

(iii) that exemption from resignation under the Securities Acts would not be available if a Membership Interest was acquired by a Member with a view to distribution.

(b) Accordingly, each Member hereby confirms to the Company that the Membership is acquiring the Membership Interest for the Memberís own account, for investment and not with a view to resale or distribution.

(i) In addition to the other restrictions set forth herein, each Member agrees not to transfer, sell or offer for sale any portion of its Membership Interest unless there is an effective registration or other qualification relating thereto under the Securities Act of 1933 and under any applicable state securities laws or unless the holder of the Membership Interest delivers to the Company an opinion of counsel, satisfactory to the Company, that the registration or other qualification under the Securities Act of 1933 and applicable state securities laws is not required in connection with the transfer, offer or sale.

(ii) Each Members understands that the Company is under no obligation to register the Membership Interests or to assist the Member in complying with any exemption from registration under the Securities Acts if the Member should at a later date wish to dispose of its Membership Interest.

(iii) Furthermore, each Member realizes that the Membership Interests are unlikely to qualify for disposition under Rule 144, 17 C.F.R. ß230.144, of the Securities and Exchange Commission unless the Member is not an "affiliate" (as defined in the Securities Act of 1933) of the Company and the Membership Interest has been beneficially owned and fully paid for by the Member for the last three years.

(c) Before acquiring a Membership Interest, each Member has investigated the Company and its business and has made available to each Member all information necessary for the Member to make an informed decision to acquire the Membership Interest. Each Member considers itself to be an Entity possessing experience and sophistication as an investor adequate for the evaluation of the merits and risks of the Memberís investment in the Membership Interest.

13.12 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.

13.13 Proposed Treasury Regulation Section 301.7701-2. Upon finalization of proposed Treasury Regulation Section 301.7701-2 the Members shall take such actions and execute such documents they deem necessary, if any, under such Treasury Regulations in order to elect the classification of partnership for the Company for federal tax purposes.

13.14 Confidentiality. Each Member shall protect the confidential nature of information provided by third parties, other than a Member, or to which the receiving party obtains access by virtue of its performance under this Agreement, that either has been identified as confidential by the disclosing party or by its nature warrants confidential treatment. The receiving party shall use such information only for the purposes of this Agreement and shall not disclose it to anyone except its employees who have a need to know the information. These nondisclosure obligations shall not apply to information that is or becomes public through no breach of this Agreement, is received from a third party free to disclose it, is independently developed by the receiving party or is required by law to be disclosed. Confidential information shall be returned to the disclosing party upon its request.

(Signatures appear on the next page)

IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered in its name and on its behalf, all as of the day and year first above written.

AT&T Communications of Illinois, Inc. Ameritech Information Industries Services, a

Division of Ameritech Services, Inc., on

behalf of Ameritech Illinois

 

BY: BY:

Name: Name: Roger Marshall

Title: Title: Director

 

 

MCImetro Access Transmission Services, Inc. WorldCom Technologies, Inc.

 

 

BY: BY:

Name: Name:

Title: Title:

 

 

Teleport Communications Group Inc. Sprint/United Management Company

 

 

 

BY: BY:

Name: Name:

Title: Title:

EXHIBIT A

LIST OF MEMBERS

 

 

Name of Member, Memberís State(s) of Incorporation, Address of Member

Teleport Communications Group Inc.

a Delaware corporation

One Teleport Drive

Staten Island, NY 10311-1004

Attn: General Counsel

 

AT&T Communications of Illinois, Inc.

an Illinois corporation

227 West Monroe Street

Chicago, IL 60606

Attn: Vice President Law and Government Affairs

 

Ameritech Information Industry Services, a division of Ameritech Services, Inc.,

a Delaware corporation

350 North Orleans, Third Floor

Chicago, IL 60654

Attn: Vice President and General Counsel

 

MCImetro Access Services, Inc.

a Delaware corporation

2250 Lakeside Blv.

Richardson, Texas 75082

with a copy to:

MCI Telecommunications Corporation

205 North Michigan Avenue, Ste 3700

Chicago, IL 60601

Attn: Law and Public Policy

 

WorldCom Technologies, Inc.

One Tower Lane, Suite 1600

Oakbrook Terrace, IL 60181

Attn: Senior Manager, LNP Planning & Implementation

 

 

Sprint/United Management Company

a Kansas corporation

2330 Shawnee Mission Pkwy.

Westwood, KS 66205

Attn: Vice President Network Planning

Mailstop: KSWESB0312

EXHIBIT B

TERMS AND CONDITIONS GOVERNING INTELLECTUAL PROPERTY

AND CONFIDENTIAL INFORMATION

 

 

II. Intellectual Property

(A) Rights In and To Technology:

(1) To the extent that any new technology and/or any improvements, enhancements or modifications to existing technology are developed for LNP ("LNP Technology"), LNP may endeavor to obtain appropriate ownership or use rights in and to LNP Technology and all intellectual property and other proprietary rights therein.

(2) To the extend LNP obtains ownership or use rights, upon request and to the extent allowed by the owner and/or licensor, a Member may obtain a license for the use of LNP Technology on terms and conditions for Member use of LNP Technology to be developed by LNP ("LNP Terms and Conditions").

(3) Any such Member license rights are assignable to a Memberís affiliate (as defined in Section 4.1(b).

(4) Upon the withdrawal or expulsion of a Member from LNP, any license rights in and to LNP Technology shall be treated in accordance with the LNP Terms and Conditions.

(5) Upon the dissolution and termination of LNP, rights in and to LNP Technology shall be disposed of as determined by LNP Members at the time of any such dissolution and termination.

(6) Each member retains all rights in and to its own technology and does not hereby grant any right to or in such technology to LNP or any individual Member.

(B) Rights In and To Trademarks, Service Marks,

Logos and Other Proprietary Marks.

(1) To the extent that LNP develops any trademarks, service marks, logos and other proprietary marks ("Marks"), LNP shall hold all rights in and to any LNP Marks.

(2) To the extent that LNP develops any LNP Marks, upon request, a Member may obtain the right to use the LNP Marks for uses consistent with policies to be developed by LNP for Member use of LNP Marks.

(3) Any such Member use rights are assignable to a Memberís affiliate (as defined in Section 4.1(b).

(4) Upon the withdrawal or expulsion of a Member from LNP, any use rights in and to the LNP Marks automatically shall terminate.

(5) Upon the dissolution and termination of LNP, rights in and to LNP Marks shall be disposed of as determined by the LNP Members at the time of any such dissolution and termination.

(6) Each Member retains all rights in and to its own trademarks, service marks, logos and other proprietary marks and does not hereby grant any right in or to such marks to LNP or any individual Member.

III. Confidential Information

(A) Rights in And to Confidential Information.

(1) To the extend that any LNP business, financial, trade secrets, data or other technical information shall be deemed confidential by LNP ("LNP Confidential Information"), each Member shall protect any LNP Confidential Information to which it is exposed as a result of LNP activities from disclosure to other than LNP Members using the same degree of care used to protect the Memberís own confidential information. To the extent that any Member business, financial, trade secrets, data or other technical information shall be deemed by that Member confidential ("Member Confidential Information"), each Member shall protect any Member Confidential Information to which it is exposed as a result of LNP activities from disclosure to a Non-Member Entity using the same degree of care used to protect the Memberís own Membership Confidential Information. A Member may utilize LNP and Member Confidential Information (collectively, "Confidential Information") solely for the purposes of LNP activities.

(2) All Confidential Information is the property of LNP or the respective Member, as appropriate. Upon the written request of LNP or the owning Member at any time, or upon the withdrawal or expulsion of a Member from LNP, a recipient of Confidential Information shall return or destroy, as directed by the owner, all such Confidential Information held in tangible form and no such Confidential Information shall be retained in any form.

(3) Upon the dissolution and termination of LNP, rights in and to LNP Confidential Information shall be disposed of as determined by the Members at the time of dissolution and termination.

(4) Each Member retains all right in and to its own Member Confidential Information, including but not limited to its customer information, and does not hereby grant any right in or to any such Member Confidential Information to LNP or any individual Member.