EXHIBIT 3.4(b)
OPERATING AGREEMENT
OF
CBRE/LJM MORTGAGE COMPANY, L.L.C.
THIS OPERATING AGREEMENT (the "Agreement") is made and entered into as of
the 26th day of January, 1999, by and between CBRE/LJM - NEVADA, INC., a
Delaware corporation as the sole Member (the "Member"), and CBRE/LJM MORTGAGE
COMPANY, L.L.C., a Delaware limited liability company (the "Company").
1. Formation. The Member has formed a Delaware limited liability
company under the name "CBRE/LJM MORTGAGE COMPANY, L.L.C." pursuant to the
Delaware Limited Liability Company Act (the "Act"), effective upon the filing of
the Certificate of Formation (the "Certificate") for the Company on January 26,
1999 (the "Effective Date").
2. Principal Office and Place of Business. The principal office and
place of business (the "Principal Office") of the Company shall be c/o L.J.
Melody & Company, 5847 San Felipe, Suite 4400, Houston, Texas 77057, or such
other place as the Member from time to time shall determine.
3. Agent for Service of Process. The agent for service of process
for the Company shall be c/o The Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware, or such other person as the Member shall appoint from time
to time.
4. Purpose. The Company shall have the power to pursue any and all
activities necessary, appropriate, proper, advisable, incidental to or
convenient for the furtherance and accomplishment of such purposes as are
determined from time to time by the Member that are permissible under the Act.
5. Term. The term of the Company shall commence on the Effective
Date and shall continue until dissolved.
6. Capital Contributions. The Member may make capital contributions
to the Company in such amounts and at such times as the Member shall determine
in its sole discretion.
7. Distributions of Available Cash Flow. Distributions of available
cash flow shall be made in such amounts and at such times as the Member shall
determine in its sole discretion.
8. Management. The Member shall have full, exclusive and complete
power to manage and control the business and affairs of the Company and shall
have all of the rights and powers provided to a member of a member-managed
limited liability company by law, including the power and authority to execute
instruments and documents, to mortgage or dispose of any real property held in
the name of the Company, and to take any other actions on behalf of the Company,
whether or not such actions are for carrying on the business of the Company in
its usual way.
9. Banking Resolution. The Member shall open all banking accounts as
it deems necessary and enter into any deposit agreements as are required by the
financial institution at which such accounts are opened. The Member and such
other persons or entities designated in writing by the Member shall have signing
authority with respect to such bank accounts. Funds deposited into such accounts
shall be used only for the business of the Company.
10. Indemnification of the Member. The Company, its successors,
receivers or trustees shall indemnify, defend and hold harmless the Member and
its Affiliates (each, an "Indemnitee"), to the extent of the Company's assets,
for, from and against any liability, damage, cost, expense, loss, claim or
judgment incurred by the Indemnitee arising out of any claim based upon acts
performed or omitted to be performed by the Indemnitee in connection with the
business of the Company, including without limitation, attorneys' fees and costs
incurred by the Indemnitee in settlement or defense of such claims.
Notwithstanding the foregoing, no Indemnitee shall be so indemnified, defended
or held harmless for claims based upon acts or omissions in breach of this
Agreement or which constitute fraud, gross negligence, or willful misconduct.
Amounts incurred by an Indemnitee in connection with any action or suit arising
out of or in connection with Company affairs shall be reimbursed by the Company.
"Affiliate" means a person or entity who, with respect to the Member: (a)
directly or indirectly controls, is controlled by or is under common control
with the Member; (b) owns or controls 10 percent or more of the outstanding
voting securities of the Member; (c) is an officer, director, shareholder,
partner or member of the Member; or (d) if the Member is an officer, director,
shareholder, partner or member of any entity, the entity for which the Member
acts in any such capacity.
11. Liability. No Indemnitee shall be personally liable, responsible,
accountable in damages or otherwise to the Company for any act or omission
performed or omitted by such Indemnitee in connection with the Company or its
business. The Member's liability for the debts and obligations of the Company
shall be limited as set forth in the Act and other applicable law.
12. Reimbursable Expenses. The Company will reimburse the Member for
all actual out-of-pocket third-party expenses incurred in connection with the
carrying out of the duties set forth in this Agreement.
13. Records. The Member shall keep or cause to be kept at the
Principal Office of the Company the following: (a) a written record of the full
name and business, residence or mailing address of the Member; (b) a copy of the
initial Certificate and all amendments thereto; (c) copies of all written
operating agreements and all amendments to such agreements, including any prior
written operating agreements no longer in effect; (d) copies of any written and
signed promises by the Member to make capital contributions to the Company; (e)
copies of the Company's federal, state and local income tax returns and reports,
if any, for the three most recent years; (f) copies of any prepared financial
statements of the Company for the three most recent years; and (g) minutes of
every meeting as well as any written consents or actions taken without a
meeting.
14. Dissolution. The Company shall be dissolved upon the election of
the Member. A Withdrawal Event with respect to the Member shall not dissolve the
Company, unless any assignees of the Member's interest do not elect to continue
the Company and admit a
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member within 90 days of such Withdrawal Event. "Withdrawal Event" shall mean
those events and circumstances set forth in Section 18-304 of the Act.
15. Liquidation. Upon dissolution of the Company, it shall be wound
up and liquidated as rapidly as business circumstances permit, the Member shall
act as the liquidating trustee, and the assets of the Company shall be
liquidated and the proceeds thereof shall be paid (to the extent permitted by
applicable law) in the following order: (a) first, to creditors, including the
Member if it is a creditor, in the order and priority required by applicable
law; (b) second, to a reserve for contingent liabilities to be distributed at
the time and in the manner as the liquidating trustee determines in its sole
discretion; and (c) third, to the Member.
16. Certificate of Cancellation. 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, a
Certificate of Cancellation shall be executed and filed by the liquidating
trustee with the Delaware Secretary of State as required by the Act.
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to its
conflicts of laws principles.
18. Severability. If any provision of this Agreement shall be
conclusively determined by a court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement shall not be
affected thereby.
19. Binding Effect. Except as otherwise provided herein, this
Agreement shall inure to benefit of and be binding upon the Member and its
respective successors and assigns.
20. Titles and Captions. All article, section and paragraph titles
and captions contained in this Agreement are for convenience only and are not a
part of the context hereof.
21. Pronouns and Plurals. All pronouns and any variations thereof are
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the appropriate person may require.
22. No Third Party Rights. This Agreement is in ended to create
enforceable rights between the parties hereto only, and creates no rights in, or
obligations to, any other persons.
23. Amendments. This Agreement may not be amended except by a written
document executed by the Member and the Company.
24. Creditors. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of the Company.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
MEMBER: COMPANY:
CBRE/LJM - NEVADA, INC., a Nevada CBRE/LJM MORTGAGE COMPANY,
corporation L.L.C., a Delaware limited liability company
By: CBRE/LJM - NEVADA, INC., a Nevada
Corporation
/s/ Raymond E. Wirta Its: Sole Member
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By: Raymond E. Wirta
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Its: President
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/s/ Walter V. Stafford
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By: Walter V. Stafford
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Its: Vice President and Secretary
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