AMENDED AND RESTATED OPERATING AGREEMENT ZAYO BANDWIDTH TENNESSEE, LLC
Exhibit 3.14
AMENDED AND RESTATED OPERATING AGREEMENT
ZAYO BANDWIDTH TENNESSEE, LLC
This Amended and Restated Operating Agreement (the “Agreement”) of Zayo Bandwidth
Tennessee, LLC, a Tennessee limited liability company (the “Company”), is made as of August 22,
2007, 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”) to amend and restate in
its entirety the Operating Agreement of Memphis Networx, LLC (the “Prior Agreement”), and to
specify the business and operation of the Company.
Whereas, the Members desire to amend and restate in its entirety the Prior
Agreement as set forth in this Agreement;
Whereas, this amendment and restatement is made in connection with the
acquisition by the Member of 100% of the outstanding membership interests of the Company
pursuant to that certain Membership Interest Purchase Agreement, dated as of June 7, 2007,
by and among the Company, the Member, Memphis Broadband, LLC and Memphis Light Gas & Water
Division;
Whereas, the Member is a wholly owned subsidiary of Communications
Infrastructure Investments, LLC, a Delaware limited liability company (“CII”);
Now, Therefore, the parties agree as
follows:
1. Name. The name of the Company is Zayo Bandwidth Tennessee, 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 Tennessee.
3. Amendment and Restatement of Prior Agreement; Conversion.
(a) This Agreement amends and restates in its entirety the Prior Agreement.
This Agreement (including any attachments and exhibits hereto) contain the parties’
sole and entire agreement regarding the subject matter hereof, and supersedes any
and all other agreements, statements and representations of the parties with respect
to the subject matter hereof, including, without limitation, the Prior Agreement.
(b) Upon the execution of this Agreement, all membership interests held by the
Member shall be converted, automatically and without any action by the Member
thereof, into the number of Units (as defined below) shown to be held by the Member
as set forth on Exhibit A, and shall represent such membership interest from and
after the date hereof. The Member shall be deemed to have ceased to be the holder
of the membership interests held by the Member that are so converted, and to have
become the holder of the Units so converted in connection herewith.
4. Term. The Company shall commence upon the filing of the Company’s Articles of
Organization in the Office of the Secretary of State of the State of Tennessee and shall
continue until the Manager (as defined below) consents to the Company’s dissolution.
5. 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 Tennessee.
6. 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
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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. As of the date of this Agreement the officers of
the Company shall be: (i) ▇▇▇▇ ▇▇▇▇▇▇▇, President and Assistant Secretary and (ii) ▇▇▇▇▇ Beer,
General Counsel and Secretary.
(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 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 LLC Agreement.
7. 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.
8. 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.
9. 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.
10. Exculpation. Each Manager, such 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. Each Manager, such Manager’s 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.
11. Indemnification. The Company shall indemnify, out of the assets of the Company
only, each Manager, such Manager’s 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 an intentional 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.
12. 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.
13. 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.
14. 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 Tennessee, without reference to such
state’s conflicts of law principles.
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In Witness Whereof, this Amended and Restated
Operating Agreement has been executed as of the date first above written.
| Zayo Group, LLC |
||||
| By: | /s/ ▇▇▇▇▇ ▇. Beer | |||
| Name: | ▇▇▇▇▇ ▇. 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.
EXHIBIT A
ZAYO Bandwidth Tennessee, LLC
| Member Name & Address | Capital Commitment | Units | ||||
Zayo Group, LLC
|
1,000 | |||||
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ |
||||||
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||||
EXHIBIT B
Form of Unit Certificate