AMENDED AND RESTATED OPERATING AGREEMENT LOCAL FIBER, LLC
Exhibit 3.20
AMENDED AND RESTATED
OPERATING AGREEMENT
OPERATING AGREEMENT
LOCAL FIBER, LLC
This Amended and Restated Operating Agreement (the “Agreement”) of Local Fiber,
LLC, a New York limited liability company (the “Company”), is made as of September 9, 2009, 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 Local Fiber, 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 New York.
3. 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 New York 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 Board, 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 New York.
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 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) Xxxxxx X. Xxxxxx,
Chief Executive Officer, (ii) Xxxx Xxxxxxx, President and Assistant Secretary, (iii)
Xxxxx Beer, Vice President, General Counsel and Secretary, (iv) Xxx xxxXxxxxxxx,
Vice President and Chief Financial Officer, and (v) Xxxxxxxxxxx X. Xxxx, Assistant
Secretary.
(b) The Board shall initially consist of five (5) 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 Second
Amended and Restated Limited Liability Company Agreement dated as of February 9,
2009, 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
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Board, the Company shall distribute cash and other assets to the Member in a manner determined by
the Board, at such times and on such terms and conditions as deemed appropriate by the Board.
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 Board, 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 Manager, 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, such Manager’s 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, each Manager, such Manager’s 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, each 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.
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11. Liquidation. Upon termination, the Company shall be dissolved and wound-up.
The Board 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 Board 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 Board 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 Board 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 New York, 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: FiberNet Telecom, Inc. |
||||
| 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
Local Fiber, LLC Operating Agreement
Local Fiber, LLC Operating Agreement
EXHIBIT A
Local Fiber, LLC
| Capital | ||||||||
| Member Name & Address | Units | Commitment | ||||||
FiberNet Telecom, Inc. |
||||||||
000 Xxxxx Xxxxxx, Xxxxx 000 |
||||||||
Xxxxxxxxxx, XX 00000 |
1,000 | $ | 1,000 | |||||
EXHIBIT B
Form of Unit Certificate
