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EXHIBIT 3.14C
OPERATING AGREEMENT
OF
DIGITAL TELEVISION SERVICES OF INDIANA, LLC
a Georgia limited liability company
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OPERATING AGREEMENT
OF
DIGITAL TELEVISION SERVICES OF INDIANA, LLC
A GEORGIA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is made and entered into as of October 7,
1997, (the "Effective Time") by DTS Management, LLC, a Georgia limited liability
company ("Management") the sole Member. Unless otherwise indicated, capitalized
words and phrases in this Operating Agreement (the "Agreement") shall have the
meanings set forth in the Glossary of Terms attached hereto as Exhibit B.
RECITALS
A. On February 7, 1997, Management organized Digital Television
Services of Alabama, LLC, a Georgia limited liability company (the "LLC") for
the purpose of effectuating the acquisition of a National Rural
Telecommunications Cooperative ("NRTC") System located in the State of Alabama
(the "Alabama Acquisition").
B. The Alabama Acquisition was not consummated, the LLC had no assets
or liabilities, was not a signatory to any agreements or other documents, and
did not engage in any business through the date hereof.
C. Management executed that certain term sheet for the purpose of
agreeing to the purchase of NRTC System No. 0020 from Satellite Television
Services, Inc., an Indiana corporation (the "Seller") (the "Term Sheet").
D. The Term Sheet was executed by Digital Television Services, LLC on
behalf of itself and/or any direct or indirect subsidiary thereof in
contemplation of the creation of a subsidiary of Management having the specific
purpose of entering into, delivering, and performing an acquisition agreement
for the purpose of acquiring and holding the assets purchased as contemplated by
the Term Sheet.
E. As of October 2, 1997, the board of managers of Management took
several actions including with respect to the approval of the Term Sheet.
F. Articles of Amendment to Articles of Organization of Digital
Television Services of Alabama, LLC were executed and filed to change the name
of the LLC to Digital Television Services of Indiana, LLC.
NOW THEREFORE, in consideration of the mutual promises of the parties
hereto, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
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ARTICLE I
FORMATION
SECTION 1.1. FORMATION.
The LLC was formed on February 7, 1997 upon the filing by the Secretary
of State of Georgia of the LLC's Articles of Organization. The name of the LLC
was changed to Digital Television Services of Indiana, LLC upon the filing of
Articles of Amendment to Articles of Organization of the LLC.
The rights and obligations of the Member and the terms and conditions
of the LLC shall be governed by the Act and this Agreement, including all the
Exhibits to this Agreement. To the extent the Act and this Agreement are
inconsistent with respect to any subject matter covered in this Agreement, this
Agreement shall govern, but only to the extent permitted by law.
SECTION 1.2. NAME. The name of the LLC shall be as set forth in the
Articles of Amendment to Articles of Organization attached hereto as Exhibit A.
SECTION 1.3. PURPOSES. The purposes of the LLC shall be (i) to perform
the obligations under the Purchase Agreement, (ii) to own and operate the
Business, (iii) to further develop the Business in such areas and under such
terms as provided in the NRTC Agreements, (iv) to manage, maintain, repair,
dispose of and otherwise deal with the Business within such service area, (v) to
mortgage or otherwise encumber all or any part of the assets of the Business,
(vi) to engage in other businesses ancillary to the Business as encompassed in
the NRTC Agreements, and (vii) to conduct such other activities as may be
necessary or incidental to the foregoing, all on the terms and conditions and
subject to the limitations set forth in this Agreement and in the Act. Nothing
in this Agreement shall prohibit any Member from engaging in any business,
investment or other activity in any service area even if such business,
investment or activity is competitive with the Business.
SECTION 1.4. REGISTERED AGENT; REGISTERED OFFICE. The LLC's registered
agent shall be Xxxxxxx X. Xxxxxxxx, Xx. and the LLC's registered office shall be
000 Xxxxxxx Xxxxxx Xx., Xxxx. X-000, Xxxxxxx, XX 00000. The LLC's registered
agent or registered office may be changed as provided in Act Section 00-00-000,
or successor provision.
SECTION 1.5. COMMENCEMENT AND TERM. The term of the LLC commenced at
the Effective Time. The term of the LLC shall continue until it is dissolved,
its affairs are wound up and final liquidating distributions are made pursuant
to this Agreement. Except as otherwise provided herein, the LLC shall have
perpetual existence.
SECTION 1.6. TAX CLASSIFICATION; REQUIREMENT OF SEPARATE BOOKS AND
RECORDS AND SEGREGATION OF ASSETS AND LIABILITIES. The parties acknowledge that
because the LLC will have a single Member pursuant to Treasury Regulations
Section 301.7701-3, the LLC shall be disregarded as an entity separate from its
owner for federal income tax purposes until the effective date of any election
it may make (but only as may be permitted under the Parent LLC Agreement) to
change its classification for federal income tax purposes to that of a
corporation
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by filing IRS Form 8832, Entity Classification Election or until the LLC has
more than one Member in which case it would be treated as a partnership for
federal income tax purposes (provided that the LLC has not elected on Form 8832
to be treated as a corporation). In all events, however, the LLC shall keep
books and records separate from those of its Member and shall at all times
segregate and account for all of its assets and liabilities separately from
those of its sole Member.
SECTION 1.7. TITLE TO ASSETS; TRANSACTIONS. The LLC shall keep title to
all of its assets in its own name and not in the name of its Member. The LLC
shall enter into and engage in all transactions in its own name and not in the
name of its Member. In furtherance thereof, the LLC shall evidence its execution
of instruments as follows:
Digital Television Services of Indiana, LLC,
a Georgia limited liability company
By: DTS Management, LLC,
a Georgia limited liability company
Its: Member
By:__________________________________
Title:_________________________________
ARTICLE II
CAPITAL CONTRIBUTIONS
SECTION 2.1. CAPITAL CONTRIBUTIONS. As of the date hereof, the Member
has made Capital Contributions to the LLC on the dates and equal to the amounts
reflected in the books and records of the LLC. The Member shall make additional
Capital Contributions in such form and at such time as the Member shall
determine in its sole and absolute discretion; provided, however, that any such
additional Capital Contributions shall be evidenced in writing and recorded in
the books and records of the LLC.
SECTION 2.2. LIABILITY OF MEMBERS. No Member shall be liable for any
debts or losses of capital or profits of the LLC or be required to contribute or
lend funds to the LLC.
ARTICLE III
DISTRIBUTIONS
SECTION 3.1. DISTRIBUTIONS. Subject only to (i) the laws of fraudulent
conveyance of the State of Georgia, (ii) any and all restrictions in the Parent
LLC Agreement, and (iii) any and all other contractual restrictions agreed to by
the LLC or its Member in writing, the Member shall have authority to cause the
LLC to distribute cash or property to the Member, in such amounts, at such times
and as of such record dates as the Member shall determine.
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ARTICLE IV
MANAGEMENT
SECTION 4.1. MANAGEMENT. The LLC shall be managed by its Member, who
shall have complete authority and exclusive control over the business and
affairs of the LLC.
SECTION 4.2. LIMITATION OF LIABILITY; INDEMNIFICATION. Notwithstanding
any other provision to the contrary contained in this Agreement, no manager,
member, or member of the board of managers of the Member shall be liable,
responsible, or accountable in damages or otherwise to the LLC or to any member
or assignee of a member for any loss, damage, cost, liability, or expense
incurred by reason of or caused by any act or omission performed or omitted by
such manager, member, or member of the board of managers of the Member, whether
alleged to be based upon or arising from errors in judgment, negligence, or
breach of duty (including alleged breach of any duty of care or duty of loyalty
or other fiduciary duty), except for (i) acts or omissions the manager, member,
or member of the board of managers of the Member knew at the time of the acts or
omissions were clearly in conflict with the interest of the LLC, or (ii) any
transaction from which the manager, member, or member of the board of managers
of the Member derived an improper personal benefit, (iii) a willful breach of
this Agreement, or (iv) gross negligence, recklessness, willful misconduct, or
knowing violation of law. Without limiting the foregoing, no manager, member, or
member of the board of managers of the Member shall in any event be liable for
(A) the failure to take any action not specifically required to be taken by the
manager, member or member of the board of managers of the Member under the terms
of this Agreement, (B) any action or omission taken or suffered by any other
manager, member or member of the board of managers of the Member, or (C) any
mistake, misconduct, negligence, dishonesty or bad faith on the part of any
employee or other agent of the LLC appointed in good faith by such manager,
member or member of the board of managers of the Member. The provisions
regarding the indemnification of certain Persons are set forth in the
Indemnification Exhibit attached hereto as Exhibit C.
ARTICLE V
TRANSFER OF INTERESTS
SECTION 5.1. TRANSFER OF INTERESTS. Subject to the Parent LLC
Agreement, the Member may transfer its Interest at such time, in such amount and
pursuant to such terms, in whole or in part, as the Member shall in its sole
discretion determine.
ARTICLE VI
DISSOLUTION, WINDING UP AND LIQUIDATING DISTRIBUTIONS
SECTION 6.1. DISSOLUTION TRIGGERS. The LLC shall dissolve only upon the
first to occur of any of the following events:
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(a) Upon the delivery for filing with the Secretary of State of a
Statement of Commencement of Winding Up of the LLC pursuant to Act Section
00-00-000.
(b) The entry of a decree of judicial dissolution under Act Section
14-11-603(a).
SECTION 6.2. WINDING UP. Pursuant to Act Section 00-00-000, upon
dissolution of the LLC the Member shall wind up the LLC's affairs.
SECTION 6.3. LIQUIDATING DISTRIBUTIONS. Following the dissolution of
the LLC, the assets of the LLC shall be applied to satisfy claims of creditors
and distributed to the Member in liquidation as provided in the Act by the
Persons charged with winding up the affairs of the LLC.
ARTICLE VII
BOOKS AND RECORDS
SECTION 7.1. BOOKS AND RECORDS. The LLC shall keep books and records at
its principal place of business, which shall set forth an accurate account of
all transactions of the LLC and which shall enable the LLC to comply with the
requirement under Section 1.6 above that it segregate and account for its assets
and liabilities separately from those of the Member. The LLC shall prepare
financial statements at least annually, which shall include at least a balance
sheet and income statement prepared in accordance with GAAP, which financial
statements need not be audited, except in connection with any audit that the
Member or the LLC's ultimate parent entity may obtain.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. BINDING EFFECT. Except as otherwise provided in this
Agreement, every covenant, term, and provision of this Agreement shall be
binding upon and inure to the benefit of the Members, and their successors,
transferees, and assigns.
SECTION 8.2. CONSTRUCTION. Every covenant, term and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Member. No provision of this Agreement is to be
interpreted as a penalty upon, or a forfeiture by, any party to this Agreement.
SECTION 8.3. ENTIRE AGREEMENT; NO ORAL OPERATING AGREEMENTS. This
Agreement constitutes the entire agreement with respect to the affairs of the
LLC and the conduct of its business, and supersedes all prior agreements and
understandings, whether oral or written. The LLC shall have no oral operating
agreements.
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SECTION 8.4. HEADINGS. Section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof.
SECTION 8.5. SEVERABILITY. Every provision of this Agreement is
intended to be severable. If any term or provision hereof is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
validity or legality of the remainder of this Agreement.
SECTION 8.6. VARIATION OF PRONOUNS. All pronouns and any variations
thereof shall be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the Person or Persons may require.
SECTION 8.7. GOVERNING LAW; CONSENT TO JURISDICTION. The laws of the
State of Georgia shall govern the validity of this Agreement, the construction
and interpretation of its terms, and organization and internal affairs of the
LLC and the limited liability of its managers, Members, and other owners. The
Members hereby irrevocably consent to the personal jurisdiction of the courts of
the State of Georgia with respect to matters arising out of or related to the
enforcement of the provisions of this Agreement.
SECTION 8.8. COUNTERPART EXECUTION; FACSIMILE EXECUTION. This Agreement
may be executed in any number of counterparts with the same effect as if all of
the Members had signed the same document. Such executions may be transmitted to
the LLC and/or any other Member by facsimile and such facsimile execution shall
have the full force and effect of an original signature. All fully executed
counterparts, whether original executions or facsimile executions or a
combination, shall be construed together and shall constitute one and the same
agreement.
SECTION 8.9. TIME OF THE ESSENCE. Time is of the essence with respect
to each and every term and provision of this Agreement.
SECTION 8.10. EXHIBITS. The Exhibits to this Agreement, each of which
are incorporated by reference, are:
EXHIBIT A: Articles of Organization.
EXHIBIT B: Glossary of Terms.
EXHIBIT C: Indemnification Exhibit.
IN WITNESS WHEREOF, the Members have executed this Agreement on the
following execution page, to be effective as of the date described in Article I.
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EXECUTION PAGE
TO THE
OPERATING AGREEMENT
OF
DIGITAL TELEVISION SERVICES OF INDIANA, LLC,
a Georgia limited liability company
MEMBER:
DTS MANAGEMENT, LLC,
a Georgia limited liability company
By: ___________________________
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President
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