AMENDED AND RESTATED OPERATING AGREEMENT ZAYO MANAGED SERVICES, LLC
Exhibit 3.6
AMENDED AND RESTATED OPERATING AGREEMENT
ZAYO MANAGED SERVICES, LLC
This Amended and Restated Operating Agreement (the “Agreement”) of Zayo Managed Services,
LLC, a Delaware limited liability company (the “Company”), is made as of June 20, 2008, 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”).
Now, Therefore, the parties agree as follows:
1. Name. The name of the Company is Zayo Managed Services, 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 shall commence upon the filing of the Company’s Certificate of Formation
in the Office of the Secretary of State of the State of Delaware and shall continue until the
Manager (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. As of the date of this Agreement the officers of the Company shall be: (i) Xxxx Xxxxxxx,
President and Assistant Secretary and (ii) Xxxxx Beer, Vice President, 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 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 LLC Agreement.
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.
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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. 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 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, 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 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.
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;
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(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.
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In
Witness Whereof, this Operating Agreement has been executed as of the date first
above written.
| Member: | ||||||
| Onvoy, Inc. | ||||||
| By: | /s/ Xxxxx X. Beer
|
|||||
| Name: Xxxxx X. Beer | ||||||
| Title: Vice President, General Counsel & 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
zayo managed services, LLC Operating Agreement
zayo managed services, LLC Operating Agreement
EXHIBIT A
Zayo Managed Services, LLC
Member
Name & Address |
Capital Commitment | Units | ||||||
Onvoy, Inc. 000 Xxxxxx Xx., Xxx 0X Xxxxxxxxxx, XX 00000 |
1,000 | |||||||
EXHIBIT B
Form of Unit Certificate
