THIRD AMENDED AND RESTATED OPERATING AGREEMENT OF ZAYO FIBER SOLUTIONS, LLC
Exhibit 3.12
THIRD AMENDED AND RESTATED OPERATING AGREEMENT
OF
ZAYO FIBER SOLUTIONS, LLC
This Operating Agreement (this “Agreement”) of Zayo Fiber Solutions, LLC, a Delaware limited
liability company (the “Company”), is made as of July 1, 2010, by those persons or entities set
forth on Exhibit A hereto, which may be amended from time to time as set forth herein (each a
“Member” and collectively the “Members”).
Recitals
A. The Company was formed on August 15, 2000 by filing a certificate of formation
(the “Certificate of Formation”) with the Delaware Secretary of State.
B. On July 1, 2010, the Company was acquired by Zayo Group, LLC, a Delaware
limited liability company (“Zayo Group”), pursuant to a Membership Interest Purchase
Agreement, dated as of March 23, 2010, by and among the Company, Zayo Group and AGL
Investments, Inc., a Georgia corporation (the “Former Member”).
C. On July 1, 2010, the Company changed its name from “AGL Networks, LLC” to
“Zayo Fiber Solutions, LLC” by filing a certificate of amendment with the Delaware Secretary
of State.
D. Since December 20, 2002, the business and affairs of the Company have been
governed by the Second Amended and Restated Operating Agreement of the Company, dated as
of December 20, 2002 (the “Second A/R Operating Agreement”), by the Former Member.
E. The Member desires to amend and restate the Second A/R Operating Agreement
pursuant to this Agreement.
Agreement
Now, Therefore, the parties agree as follows:
1. Name. The name of the Company is Zayo Fiber Solutions, LLC.
2. Purposes and Powers. The Company is organized for the purpose of engaging in
any lawful act or activity for which a limited liability company may be organized under the
laws of the State of Delaware.
3. Term. The Company commenced its existence on the effective date of the
Certificate of Formation and shall continue until the “Board” (as defined below) consents to
the Company’s dissolution.
4. Members; Capital Commitments; Membership Units.
(a) The economic interests in the Company shall be represented by
membership interest units (the “Units”). The Member’s interest in the Company, including the
Member’s interest in income, gains, losses, deductions and expenses of the Company and the
right to vote on certain matters as provided in this Agreement, shall be represented by the
Units
owned by the Member. The ownership of Units shall entitle the Member to allocations of income
and loss and other items and distributions of cash and other property as set forth in this
Agreement. Each Unit shall entitle the Member owning such Unit to one vote on any matter
voted on by the Members as provided in this Agreement or as required by applicable law. The
name, place of residence and capital commitment (“Capital Commitment”) to the Company of
the Member and the number of Units held by the Member are set forth on Exhibit A attached
hereto and incorporated herein by reference. Upon the consent of the Manager, the Company
may issue additional Units, provided, however, that no person or entity shall become a Member
unless and until such person or entity has explicitly accepted, assumed and agreed to be
subject
to and bound by all of the terms, obligations and conditions of this Agreement, as the same
may
have been further amended. The Member shall contribute the Member’s Capital Commitment to
the Company upon the execution of this Agreement in accordance with Exhibit A. In no event
shall the Member be required to contribute any amount in excess of the Member’s Capital
Commitment as set forth on Exhibit A.
(b) The form of Unit certificate attached hereto as Exhibit B is hereby
approved and adopted as the form of Unit certificate of the Company. The Company hereby
authorizes the issuance of a Unit certificate to the Member of the Company reflecting its
membership interest in the Company. For all purposes under this Agreement, the membership
interest represented by such Unit certificate and the certificate representing the same shall
be
deemed a “security” or “securities” governed by Article 8 of the Uniform Commercial Code as
in effect from time to time in the State of Delaware.
5. Management.
(a) The Company shall be managed under the direction of a Board of Managers (the “Board,” and
each member thereof being referred to as a “Manager”) who shall be responsible for setting policies
and procedures for the operation of the Company. Except as set forth herein, the management and
operation of the Company are vested exclusively in the Board and the Board shall have the power on
behalf of and in the name of the Company to carry out and implement any and all of the objects and
purposes of the Company. The Board may, from time to time, delegate to one or more persons
(including any Member, officer or employee of the Company) such authority and responsibility as the
Board may deem advisable. Any delegation pursuant to this section may be revoked at any time by the
Board. The Board of Managers hereby designates to the officers of the Company the authority and
responsibilities for the day-to-day ordinary course operation of the Company. The officers of the
Company shall conduct the day to day operations of the Company in accordance with and subject to
the policies, procedures and guidelines approved and adopted by the Board. The initial officers
shall be appointed by the Member pursuant to this Agreement. As of the date of this Agreement, the
officers of the Company shall be: (i) Xxxx Xxxxxxxx, President and Assistant Secretary, (ii) Xxxxx
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Beer, Vice President, General Counsel and Secretary and (iii) Xxx xxxXxxxxxxx, Vice President and
Chief Financial Officer.
(b) The Board shall initially consist of seven (7) Managers, who shall be comprised of the
same Managers that comprises the Board of Managers of Communications Infrastructure Investments,
LLC, a Delaware limited liability company (“CII”), as such Managers may be appointed and removed
pursuant to CII’s Amended and Restated Limited Liability Company Agreement dated as of May 22,
2007, as may be amended from time to time (the “CII LLC Agreement”). At any meeting of the Board,
each Manager shall have the same number of votes as such Manager shall then have as a manager of
CII pursuant to the CII LLC Agreement. As of the date of this Agreement, the Managers of the
Company shall be Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxx, Xxxx X. Xxxxxx, Xxxx Xxxxxx, Xxx
Xxxxxxxx and Xxxx Xxxxxx.
6. Allocations and Certain Tax Matters. A capital account will be maintained for the Member
in accordance with the rules set forth in Treasury Regulation Section 1.704-1(b)(2)(iv). All
income, gains, losses and expenses of the Company will be allocated (for capital accounting and
income tax purposes) so as to cause the sum of (1) the Member’s capital account, (2) the Member’s
share of “partnership minimum gain” (as defined in Treasury Regulation Section 1.704-2(b)(2)), and
(3) the Member’s “partner nonrecourse debt minimum gain” (as determined in accordance with
Treasury Regulation Section 1.704-2(i)(3)), to be equal to the amount that would be distributed to
the Member under this Agreement if the Company were to (a) liquidate the assets of the Company for
an amount equal to the book value of such property as determined for capital account purposes as
of the end of such fiscal period and (b) distribute the proceeds in accordance with the
distribution provision of this Agreement.
7. Distributions to Members. To the extent available after meeting the financial
obligations of the Company, and after providing any necessary reserves as determined by the
Manager, the Company shall distribute cash and other assets to the Member in a manner determined
by the Manager, at such times and on such terms and conditions as deemed appropriate by the
Manager.
8. Liability of Members. Except as otherwise required by applicable law and as
explicitly set forth in this Agreement, no Member shall have any personal liability whatever
in such Member’s capacity as a Member, whether to the Company, to any other Member, to the
creditors of the Company or to any other third party, for the debts, liabilities, commitments
or any other obligations of the Company or for any losses of the Company, and therefore, the
Member shall be liable only to contribute the Member’s Capital Commitment to the Company as
set forth on Exhibit A, subject to the terms and conditions of this Agreement. The Member, as
such, shall not be required to lend any funds to the Company or to make any additional
contribution of capital to the Company. The Member may, with the consent of the Manager,
make loans to the Company, and any loan by the Member to the Company shall not be
considered to be a capital contribution.
9. Exculpation. The Manager, the Manager’s members, directors, officers and
partners (collectively, the “Manager Affiliates”) and the officers of the Company shall not be
liable to the Member or any director, officer or partner of the Company for any conduct or
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actions, except for conduct or actions adjudged not to have been undertaken in good faith or to
constitute recklessness, willful misconduct, gross negligence, a knowing violation of law or an
intentional material breach of this Agreement. The Manager, the Manager Affiliates and officers of the
Company may consult with counsel and accountants respecting Company affairs and shall be fully
protected and justified in acting in accordance with the advice of counsel or accountants,
provided they have been selected with reasonable care.
10. Indemnification. The Company shall indemnify, out of the assets of the
Company only, the Manager, the Manager Affiliates and the officers of the Company, and their
respective agents, to the fullest extent permitted by law and shall save and hold them
harmless
from and in respect of all (A) reasonable fees, costs, and expenses, including legal fees, paid
in
connection with or resulting from any claim, action, or demand against the Company, the
Member, the Manager, the officers of the Company, or their respective agents that arise out of
or
in any way relate to the Company, the Company’s properties, business or affairs and (B) such
claims, actions, and demands and any losses or damages resulting from such claims, actions and
demands, including amounts paid in settlement or compromise (if recommended by attorneys for
the Company) of any such claim, action or demand; provided, however, that this indemnity shall
not extend to conduct not undertaken in good faith nor to any conduct that constitutes
recklessness, willful misconduct, gross negligence, a knowing violation of law or and
international
and material breach of this Agreement. Expenses incurred by any indemnified person in
defending a claim or proceeding covered by this section shall be paid by the Company in
advance of the final disposition of such claim or proceeding provided the indemnified person
undertakes to repay such amount if it is ultimately determined that such person was not
entitled
to be indemnified. The provisions of this section shall remain in effect as to each indemnified
person whether or not such indemnified person continues to serve in the capacity that entitled
such person to be indemnified.
11. Liquidation. Upon termination, the Company shall be dissolved and wound-up.
the Manager shall proceed with the orderly sale or liquidation of the assets of the Company
and
shall apply and distribute the proceeds of such sale or liquidation in the following order of
priority, unless otherwise required by law: (A) first, to pay all expenses of liquidation; (B)
second, to pay all creditors of the Company in the order of priority provided by law or
otherwise;
(C) third, to the establishment of any reserve that the Manager may deem necessary (such
reserve
may be paid over to an escrow agent); and (D) fourth, to the Member. A reasonable amount of
time shall be allowed for the orderly liquidation of the assets of the Company and the
discharge
of liabilities to creditors so as to enable the Manager to minimize the losses attendant upon
such
liquidation.
12. Amendments. The terms and provisions of this Agreement may be modified or
amended at any time and from time to time with the written consent of the Manager and the
Member.
13. Miscellaneous. This Agreement constitutes the full, complete, and final operating
agreement of the Company and shall be binding upon the heirs, personal representatives and
other successors of the Member. This Agreement shall be construed in accordance with the
internal laws of the State of Delaware, without reference to such state’s conflicts of law
principles. This Agreement may be executed in any number of counterparts (including by pdf,
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facsimile or other electronic means) each of which shall be considered an original. References
to a Member or Manager, including by use of a pronoun shall be deemed to include masculine,
feminine, singular, plural, individuals, partnerships, limited liability companies or corporations
where applicable. References in this Agreement to terms in the singular shall include the plural
and vice versa.
[Signature(s) on Following Page]
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In Witness Whereof, this Agreement has been executed as of the date first above
written.
| MEMBER: ZAYO GROUP, LLC |
||||
| By: | /s/ Xxxxx X. Beer | |||
| Name: | Xxxxx X. Beer | |||
| Title: | Vice President, General Counsel and Secretary | |||
THE SECURITIES EVIDENCED BY THIS OPERATING AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED
UNLESS PURSUANT TO SEC RULE 144 OR THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF THESE
SECURITIES REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
ACT.
Signature Page to
Third Amended and Restated Operating Agreement of Zayo Fiber Solutions, LLC
Third Amended and Restated Operating Agreement of Zayo Fiber Solutions, LLC
EXHIBIT A
Zayo Fiber Solutions, LLC
| Member Name & Address | Units | Capital Commitment | ||||||
Zayo Group,
LLC 000 Xxxxxxxxxx Xxxxxxx, Xxxxx 000 Xxxxxxxxxx, XX 00000 |
1,000 | $ | 71,500,000 | |||||
A-1
EXHIBIT B
Form of Unit Certificate
B-1
