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EXHIBIT 3.5(b)
OPERATING AGREEMENT
OF
DIGITAL TELEVISION SERVICES OF COLORADO, LLC
A GEORGIA LIMITED LIABILITY COMPANY
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TABLE OF CONTENTS
OF THE
OPERATING AGREEMENT
OF
DIGITAL TELEVISION SERVICES OF COLORADO, LLC
A GEORGIA LIMITED LIABILITY COMPANY
RECITALS.......................................................................1
ARTICLE I - FORMATION..........................................................1
SECTION 1.1. Formation; Conversion; Assignment......................1
SECTION 1.2. Name...................................................2
SECTION 1.3. Purposes...............................................2
SECTION 1.4. Registered Agent; Registered Office....................2
SECTION 1.5. Commencement and Term..................................2
SECTION 1.6. Tax Classification; Requirement of Separate
Books and Records and Segregation of Assets
and Liabilities........................................3
SECTION 1.7. Title to Assets; Transactions..........................3
ARTICLE II - CAPITAL CONTRIBUTIONS.............................................3
SECTION 2.1. Capital Contributions..................................3
SECTION 2.2. Liability of Members .................................3
ARTICLE III - DISTRIBUTIONS....................................................4
SECTION 3.1. Distributions..........................................4
ARTICLE IV - MANAGEMENT........................................................4
SECTION 4.1. Management.............................................4
SECTION 4.2. Limitation of Liability; Indemnification...............4
ARTICLE V - TRANSFER OF INTERESTS..............................................5
SECTION 5.1. Transfer of Interests..................................5
ARTICLE VI - DISSOLUTION, WINDING UP AND LIQUIDATING DISTRIBUTIONS.............5
SECTION 6.1. Dissolution Triggers...................................5
SECTION 6.2. Winding Up.............................................5
SECTION 6.3. Liquidating Distributions..............................5
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ARTICLE VII - BOOKS AND RECORDS................................................5
SECTION 7.1. Books and Records......................................5
ARTICLE VIII - MISCELLANEOUS...................................................6
SECTION 8.1. Binding Effect.........................................6
SECTION 8.2. Construction...........................................6
SECTION 8.3. Entire Agreement; No Oral Operating Agreements.........6
SECTION 8.4. Headings...............................................6
SECTION 8.5. Severability...........................................6
SECTION 8.6. Variation of Pronouns..................................6
SECTION 8.7. Governing Law; Consent to Jurisdiction.................6
SECTION 8.8. Counterpart Execution; Facsimile Execution.............6
SECTION 8.9. Time of the Essence....................................6
SECTION 8.10. Exhibits...............................................7
EXHIBIT A: Certificate of Election and Articles of Organization.
EXHIBIT B: Glossary of Terms.
EXHIBIT C: Indemnification Exhibit.
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OPERATING AGREEMENT
OF
DIGITAL TELEVISION SERVICES OF COLORADO, LLC
A GEORGIA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT is made and entered into as of 10:00 A.M.
Eastern Time, February 7, 1997, (the "Effective Time") by and between Digital
Television Services, LLC, a Delaware limited liability company (formerly
Columbia DBS Holdings, LLC, a Delaware limited liability company (successor by
conversion to DBS Holdings, L.P., a Delaware limited partnership)) ("Holdings"),
and DTS Management, LLC (formerly Columbia DBS Management, LLC) a Georgia
limited liability company ("Management"). 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. Digital Television Services of Colorado, LP, a Georgia limited
partnership (the "Partnership"), was formed on June 21, 1996.
B. The Partnership had two partners from its formation until the
effective date of this Agreement, specifically, Management, as general partner
with a 1% interest and Holdings as limited partner with a 99% interest.
C. Management and Holdings as the partners of the Partnership have
approved of the Partnership's election to become a limited liability company
pursuant to Act Section 14-11-212(a) as evidenced by their execution of the
Certificate of Election, attached hereto as Exhibit A and delivered for filing
with the Secretary of State of Georgia; and Management has executed and
delivered for filing with the Secretary of State of Georgia "Articles of
Organization" pursuant to Sections ▇▇-▇▇-▇▇▇ and ▇▇-▇▇-▇▇▇, all for the purpose
of causing the Partnership to become a limited liability company.
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:
ARTICLE I
FORMATION
SECTION 1.1. FORMATION; CONVERSION; ASSIGNMENT.
The LLC is the successor in interest by conversion (the "Conversion")
to the Partnership effective as of the Effective Time and as of the Effective
Time, Management and Holdings became the initial Members of the LLC. By virtue
of the Conversion, Management's 1% general partner interest in the Partnership
shall be converted into a 1% member Interest in the LLC and Holdings' 99%
limited partner interest in the Partnership shall be converted into a 99% member
Interest in the LLC, with each such member Interest (and the proceeds thereof)
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continuing in all respects to be subject to the security interest granted under
Section 3 of the Guarantee and Collateral Agreement (the "Security Interest").
By virtue of its execution of this Agreement and without the necessity
of the execution or delivery of any other document or instrument, Holdings
hereby assigns and transfers all of its right, title and interest in and to its
99% member Interest in the LLC to Management, as a capital contribution with
respect to its interest in Management, and shall be deemed to have withdrawn as
a Member of the LLC, all effective 10:01 A.M. Eastern Time, February 7, 1997,
which assignment and transfer shall be in all respects subject to the Security
Interest, with the effect that as of 10:01 A.M. Eastern Time, February 7, 1997,
Management shall hold 100% of the Interests in the LLC, and thus become the sole
member of the LLC, with its entire Interest subject to the Security Interest.
Holdings hereby represents and warrants to the LLC and to Management that, with
the exception of the Security Interest, its Interest in the LLC assigned hereby
is free and clear of all liens, claims, and encumbrances of any nature
whatsoever. Holdings shall cause or take all necessary further action as may be
requested by the LLC or by Management to confirm and ensure the complete
assignment of its Interest as provided herein.
The rights and obligations of the Members 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 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and the LLC's registered office shall be
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇. ▇-▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The LLC's registered
agent or registered office may be changed as provided in Act Section ▇▇-▇▇-▇▇▇,
or successor provision.
SECTION 1.5. COMMENCEMENT AND TERM. The term of the LLC commenced at
the Effective Time with the LLC being the successor in interest by conversion to
the Partnership. 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.
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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 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 Colorado, 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.
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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 board of managers of the Member shall
determine.
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.
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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:
(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
▇▇-▇▇-▇▇▇.
(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 ▇▇-▇▇-▇▇▇, 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.
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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.
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
Member hereby irrevocably consents 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.
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SECTION 8.10. EXHIBITS. The Exhibits to this Agreement, each of which
are incorporated by reference, are:
EXHIBIT A: Certificate of Election and 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 COLORADO, LLC,
A GEORGIA LIMITED LIABILITY COMPANY
INITIAL AND CONTINUING MEMBER:
DTS MANAGEMENT, LLC,
A GEORGIA LIMITED LIABILITY COMPANY
By: ___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
INITIAL AND WITHDRAWING MEMBER:
(Signing solely for the purpose
of acknowledging and consenting
to the provisions of Section 1.1.)
DIGITAL TELEVISION SERVICES, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: DTS Management, LLC,
a Georgia limited liability company
Its: Manager
By: ______________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
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