{"id":41663,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/slingshot-networks-llc-operating-agreement-anschutz-digital.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"slingshot-networks-llc-operating-agreement-anschutz-digital","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/slingshot-networks-llc-operating-agreement-anschutz-digital.html","title":{"rendered":"Slingshot Networks LLC Operating Agreement &#8211; Anschutz Digital Media Inc. and Qwest Communications International Inc."},"content":{"rendered":"<pre> \n                             AMENDED AND RESTATED\n                              OPERATING AGREEMENT\n                                      OF\n                            SLINGSHOT NETWORKS, LLC\n\n     This AMENDED AND RESTATED OPERATING AGREEMENT (the 'Agreement') is entered\ninto as of October 22, 1999, between Anschutz Digital Media, Inc., a Colorado\ncorporation ('ADMI'), and Qwest Communications International Inc., a Delaware\ncorporation ('Qwest'), both of which are referred to as the 'Members' and\nindividually as a 'Member.' Promptly following the execution of this Agreement,\nQwest intends to transfer all of its interest in the Company to US Telesource,\nInc., its indirect wholly owned subsidiary ('UST') (upon such event, the term\n'Qwest' as used herein shall be deemed to apply to UST for all purposes of this\nAgreement).\n\n     A limited liability company was formed in accordance with the provisions of\nthe Delaware Limited Liability Company Act (the 'Act') under the name of\nSlingshot Networks, LLC (the 'Company') pursuant to a Certificate of Formation\nfiled July 14, 1999, with the Delaware Secretary of State. An Operating\nAgreement of the Company was entered into as of that same date, under which ADMI\nwas the sole member. Pursuant to a Subscription Agreement by and between Qwest\nand the Company dated as of October 22, 1999 (the 'Subscription Agreement'),\nQwest agreed to purchase an equity interest in the Company in exchange for the\nCapital Note (as hereinafter defined). Additionally, ADMI agreed under a\nContribution Agreement dated as of October 22, 1999 by and among ADMI and the\nCompany (the 'Contribution Agreement') to contribute certain assets (the 'ADMI\nContributed Assets') to the Company. In light of the foregoing, the Members now\ndesire to amend and restate the Operating Agreement of the Company. Accordingly,\nfrom and after the date hereof, the affairs of the Company will be governed by\nthis Amended and Restated Operating Agreement. In consideration of the\nforegoing, and of the mutual promises contained herein, the Members agree as\nfollows:\n\n                                   ARTICLE 1\n                                   ---------\n\n                         THE LIMITED LIABILITY COMPANY\n\n     1.1   Name. The name of the limited liability company shall be Slingshot\nNetworks, LLC.\n\n     1.2   Certificate of Formation. A Certificate of Formation that complies\nwith the requirements of the Act has been properly filed with the Delaware\nSecretary of State. In the future, the Managers shall execute such further\ndocuments (including amendments to the Certificate of Formation) and take such\nfurther action as shall be appropriate or necessary to comply with the\nrequirements of law for the formation and operation of a limited liability\ncompany in all states and counties where the Company elects to carry on its\nbusiness.\n\n \n     1.3   Business. The business of the Company shall be (a) to provide \nadvanced digital production, post-production and transmission facilities,\ndigital media storage and distribution services, telephony-based data storage\nand enhanced services, access and routing services; (b) to do any and all other\nthings necessary, desirable or incidental to the foregoing purposes; and (c) to\nengage in such other legal and lawful business activities as the Management\nCommittee may deem desirable. The Company may sell or otherwise dispose of all\nor substantially all of its assets and any such sale or disposition shall be\nconsidered to be within the scope of the Company's business.\n\n     1.4   Registered Office; Agent. The registered office of the Company shall\nbe at 555 Seventeenth Street, Suite 2400, Denver, Colorado 80202, or such other\nplace in Colorado as may be selected by the Management Committee. The Company's\nregistered agent at such address shall be Richard M. Jones.\n\n                                   ARTICLE 2\n                                   ---------\n\n                                  DEFINITIONS\n\n     2.1   Cash Flow. 'Cash Flow' shall mean the excess of all cash receipts of\nthe Company over all cash disbursements of the Company.\n\n     2.2   Code. 'Code' shall mean the Internal Revenue Code of 1986, as \namended, or any successor statute.\n\n     2.3   Manager. 'Manager' is defined in Section 7.1(a).\n\n     2.4   Profit or Loss. 'Profit' or 'Loss' shall mean the profit or loss of\nthe Company as determined under the capital accounting rules of Treasury\nRegulation (S) 1.704-1(b)(2)(iv) for purposes of adjusting the capital accounts\nof the Members including, without limitation, the provisions of paragraphs (b),\n(f) and (g) of those regulations relating to the computation of items of income,\ngain, deduction and loss.\n\n     2.5   Sharing Ratio. 'Sharing Ratio' shall mean the percentage representing\nthe ratio that the number of Units owned by a Member bears to the aggregate\nnumber of Units owned by all of the Members. Upon the issuance of additional\nUnits or the transfer, repurchase or cancellation of any outstanding Units, the\nSharing Ratios of the Members shall be recalculated as of the date of such\nissuance, transfer, repurchase or cancellation. The recalculated Sharing Ratio\nof each Member shall be the percentage representing the ratio that the number of\nUnits owned by the Member bears to the aggregate number of Units owned by all of\nthe Members after giving effect to the issuance, transfer, repurchase or\ncancellation.\n\n     2.6   Treasury Regulations. 'Treasury Regulations' shall mean regulations\nissued by the Department of Treasury under the Code. Any reference to a specific\nsection or sections of \n\n                                       2\n\n \nthe Treasury Regulations shall be deemed to include a reference to any\ncorresponding provision of future regulations under the Code.\n\n     2.7   Units. 'Unit' shall mean an equity interest in the Company. The\nCompany shall have two classes of Units: Class A and Class B. The two classes of\nUnits shall be identical in all respects except for their respective Voting\nInterests. The number of Units owned by each Member shall be determined in\nconnection with the issuance of a membership interest in the Company in exchange\nfor the capital contribution made by such Member. Initially the Units shall not\nbe represented by certificates. If the Management Committee determines that it\nis in the interest of the Company to issue certificates representing the Units,\ncertificates shall be issued and the Units shall be represented by such\ncertificates. The Company is authorized to issue 200,000,000 Class A Units and\n100,000,000 Class B Units.\n\n     2.8   Voting Interest. (a) With respect to the Class A Units, 'Voting\nInterest' shall mean that number of Class A Units held by a Member, and (b) with\nrespect to the Class B Units, 'Voting Interest' shall mean that number of Class\nB Units held by a Member divided by 10.\n\n                                   ARTICLE 3\n                                   ---------\n\n                             CAPITAL CONTRIBUTIONS\n\n     3.1   Initial Capital Contributions.\n\n     (a)   In accordance with the terms of the Contribution Agreement, ADMI has\ncontributed to the Company all of its right, title and interest in and to the\nADMI Contributed Assets. As a result of such contribution, ADMI has been\ncredited with a capital account equal to $84,816,696, and has received\n84,816,696 Class A Units.\n\n     (b)   In accordance with the terms of the Subscription Agreement, Qwest has\nagreed to contribute to the Company, effective as of the date hereof, a\npromissory note (the 'Capital Note') in the amount of $84,816,696, and such\namount shall be credited to its capital account when and as the payments of\nprincipal are made on the Capital Note. As a result of its agreement to make\nsuch contribution and pursuant to the Subscription Agreement, Qwest is hereby\nadmitted as a Member of the Company, and has received 84,816,696 Class A Units.\n\n     (c)   As a result of the transactions described above, the Members own the\nnumber and classes of Units and have capital account balances attributable to\nthe Units as set forth below:\n\n\n\n--------------------------------------------------------------------------------\n               Class A Units       Class B Units       Capital Account Balance  \n               -------------       -------------       -----------------------  \n--------------------------------------------------------------------------------\n                                                                    \nADMI             84,816,696            -0-                  $84,816,696         \n--------------------------------------------------------------------------------\nQwest            84,816,696            -0-                  $         0         \n--------------------------------------------------------------------------------\n\n\n                                       3\n\n \n     (d)   Based on the above, the initial Sharing Ratio of ADMI is 50%, and the\ninitial Sharing Ratio of Qwest is 50%.\n \n     3.2   Additional Capital Contributions.\n\n     (a)   If, from time to time in the reasonable judgment of the Management\nCommittee, the Company requires additional capital for any purpose, the\nManagement Committee is hereby authorized to cause the Company to issue\nadditional Units, on terms and conditions and with repayment priorities as\napproved by the Management Committee. Notwithstanding the foregoing, until a\nthird party becomes a Member, Units shall not be issued at a price per Unit that\nis less than $1.00.\n\n     (b)   If the Company desires to issue additional Units pursuant to (a)\nabove, the Company hereby grants to the Members the right of first refusal to\npurchase a pro rata share (equaling the Member's respective Sharing Ratio on the\nday before such additional Units are to be issued) of the additional Units which\nthe Company proposes to issue. If the Company proposes to issue such additional\nUnits, it shall give the Members written notice of its intention, describing the\nprice and terms upon which the Company proposes to issue the Units. Each Member\nshall have 15 days from the date such notice is sent by the Company to agree to\npurchase the portion of the additional Units issued which it is entitled to\npurchase for the price and upon the terms so specified in the notice. Such\nnotice shall be in writing and shall specify the quantity of additional Units to\nbe purchased. If any Member fails to exercise the right of first refusal within\nthe 15-day period, the Company shall have the right thereafter to sell or issue\nthose additional Units upon terms no more favorable to the purchasers of the\nadditional Units than specified in the Company's notice to Members.\n\n     3.3   Return of Capital Contributions. Capital contributions shall be\nexpended in furtherance of the business of the Company. All costs and expenses\nof the Company shall be paid from its funds. No interest shall be paid on\ncapital contributions. No Manager shall have any personal liability for the\nrepayment of any capital contribution to a Member.\n\n     3.4   Loans.\n\n     (a)   The Company may borrow additional capital from any source, including\nany Member. No Member shall be obligated to make a loan to the Company.\n\n     (b)   If from time to time in the reasonable judgment of the Management\nCommittee the Company requires additional capital for any purpose related to the\nbusiness of the Company, the Management Committee is authorized to cause the\nCompany to borrow such capital, on terms and conditions as approved by the\nManagement Committee. If the Management Committee decides to borrow such capital\nfrom a Member (the 'Loan Amount), each Member shall be given the opportunity,\nbut shall not be obligated, to loan its share of the Loan Amount to the Company.\nA Member's share of the Loan Amount shall be the Loan Amount multiplied by the\nMember's Sharing Ratio. The loans shall be made within 10 days after request by\nthe Management\n\n                                       4\n\n \nCommittee to the Members. Such request shall be in writing and shall specify the\namount of the Loan Amount. If a Member does not loan its share of the Loan\nAmount (the 'Shortfall Amount') and the other Member does loan its share (a\n'Participating Member'), the Participating Member shall have the right,\nexercisable within 10 days after notice, to loan the Company the Shortfall\nAmount. The loans to the Company by the Participating Members shall be\nunsecured, evidenced by promissory Note of the Company, shall accrue interest at\na rate determined by the Management Committee, shall be payable on a pro rata\nbasis solely from Cash Flow prior to any distributions to Members, and shall not\ncontain any default interest or penalty provisions.\n\n                                   ARTICLE 4\n                                   ---------\n\n                                 DISTRIBUTIONS\n\n     4.1   Nonliquidating Distributions. Cash Flow shall be distributed to the\nMembers in amounts deemed appropriate by the Management Committee after\nestablishing appropriate reserves. Except as provided in Section 4.2, all\ndistributions of Cash Flow shall be made among the Members in accordance with\ntheir respective Sharing Ratios.\n\n     4.2   Liquidating Distributions. All distributions made in connection with\nthe sale or exchange of all or substantially all of the Company assets and all\ndistributions made in connection with the liquidation of the Company shall be\nmade to the Members in accordance with their relative capital account balances\nat the time of distribution.\n\n                                   ARTICLE 5\n                                   ---------\n\n                         ALLOCATION OF PROFIT AND LOSS\n\n     5.1   Determination of Profit and Loss. Profit or Loss shall be determined\non an annual basis and for such other periods as may be required.\n\n     5.2   Loss Allocation. Except as provided in Section 5.4, Loss shall be\nallocated among the Members in accordance with their relative Sharing Ratios.\n\n     5.3   Profit Allocation.\n\n     (a)   Except as provided in Section 5.3(b) and Section 5.4, Profit shall be\nallocated among the Members in accordance with their relative Sharing Ratios.\n\n     (b)   Any Profit with respect to the sale, exchange or other disposition of\nall or substantially all of the Company assets or with respect to the\nliquidation of the Company shall be allocated among the Members so that their\ncapital account balances are proportionate to their Sharing Ratios.\n\n                                       5\n\n \n     (c)   For purposes of Section 5.3(b), the capital accounts of the Members\nshall be determined (i) before giving effect to distributions under Section 4.2;\n(ii) after allocating all other items of Profit and Loss; and (iii) after making\nall distributions under Section 4.1.\n\n     5.4   Regulatory Allocations and Curative Provision.\n\n     (a)   The 'qualified income offset' provisions of Treasury Regulation\nSection 1.704-1(b)(2)(ii)(d) are incorporated herein by reference and shall\napply to adjust the allocation of Profit and Loss otherwise provided for under\nSections 5.2 and 5.3 to the extent provided in that regulation.\n\n     (b)   The 'minimum gain' provisions of Treasury Regulation Section 1.704-2\nare incorporated herein by reference and shall apply to adjust the allocation of\nProfit and Loss otherwise provided for under Sections 5.2 and 5.3 to the extent\nprovided in that regulation.\n\n     (c)   Notwithstanding the provisions of Section 5.2, if during any fiscal\nyear of the Company the allocation of any loss or deduction, net of any income\nor gain, to a Member would cause or increase a negative balance in a Member's\ncapital account as of the end of that fiscal year, only the amount of such loss\nor deduction that reduces the balance to zero shall be allocated to the Member\nand the remaining amount shall be allocated to the other Member. For the purpose\nof the preceding sentence, a capital account shall be reduced by the\nadjustments, allocations and distributions described in Treasury Regulations\n(S)(S) 1.704-1(b)(2)(d)(4), (5) and (6), and increased by the amount, if any,\nthat the Member is obligated to restore to the Member's capital account within\nthe meaning of Treasury Regulation (S) 1.704-1(b)(2)(ii)(c) as of that time or\nis deemed obligated to restore under Treasury Regulation (S) 1.704-2(g)(1) or\n(S) 1.704-2(i)(5).\n\n     (d)   All allocations pursuant to the foregoing provisions of this Section\n5.4 (the 'Regulatory Allocations') shall be taken into account in computing\nallocations of other items under Sections 5.2 and 5.3, including, if necessary,\nallocations in subsequent fiscal years, so that the net amounts reflected in the\nMembers' capital accounts and the character for income tax purposes of the\ntaxable income recognized (e.g., as capital or ordinary) will, to the extent\npossible, be the same as if no Regulatory Allocations had been given effect.\n\n                                   ARTICLE 6\n                                   ---------\n\n                     ALLOCATION OF TAXABLE INCOME AND LOSS\n\n     6.1   In General.\n\n     (a)   Except as provided in Section 6.2, each item of income, gain, loss\nand deduction of the Company for federal income tax purposes shall be allocated\namong the Members in the same manner as such item is allocated for capital\naccount purposes under Article 5.\n\n                                       6\n\n \n     (b)   To the extent of any recapture income (as defined below) resulting\nfrom the sale or other taxable disposition of a Company asset, the amount of any\ngain from such disposition allocated to (or recognized by) a Member (or its\nsuccessor in interest) for federal income tax purposes shall be deemed to\nconsist of recapture income to the extent such Member (or such Member's\npredecessor in interest) has been allocated or has claimed any deduction\ndirectly or indirectly giving rise to the treatment of such gain as recapture\nincome. For this purpose 'recapture income' shall mean any gain recognized by\nthe Company (but computed without regard to any adjustment required by sections\n734 and 743 of the Code) upon the disposition of any property or asset of the\nCompany that does not constitute capital gain for federal income tax purposes\nbecause such gain represents the recapture of deductions previously taken with\nrespect to such property or assets.\n\n     6.2   Allocation of Section 704(c) Items. The Members recognize that with\nrespect to property contributed to the Company by a Member and with respect to\nproperty revalued in accordance with Treasury Regulation (S) 1.704-\n1(b)(2)(iv)(f), there will be a difference between the agreed values or\n'carrying values' of such property at the time of contribution or revaluation\nand the adjusted tax basis of such property at that time. All items of tax\ndepreciation, cost recovery, amortization, amount realized and gain or loss with\nrespect to such assets shall be allocated among the Members to take into account\nthe book-tax disparities in accordance with the provisions of sections 704(b)\nand 704(c) of the Code and the Treasury Regulations under those sections.\n\n     6.3   Integration With Section 754 Election. All items of income, gain,\nloss, deduction and credit recognized by the Company for federal income tax\npurposes and allocated to the Members in accordance with the provisions hereof\nand all basis allocations to the Members shall be determined without regard to\nany election under section 754 of the Code that may be made by the Company;\nprovided, however, such allocations, once made, shall be adjusted as necessary\nor appropriate to take into account the adjustments permitted by sections 734\nand 743 of the Code.\n\n                                   ARTICLE 7\n                                   ---------\n\n                                  MANAGEMENT\n\n     7.1   Management Committee.\n\n     (a)   Management of the Company shall be vested in a management committee\n(the 'Management Committee'). The Management Committee shall consist of six\nmembers (each, a 'Manager'), three of whom shall be appointed by ADMI, three of\nwhom shall be appointed by Qwest. The Management Committee shall have the\nexclusive power and authority to conduct the business of the Company. In\nconducting the business of the Company, the Management Committee shall have all\nrights, duties and powers conferred by the Act, except as limited hereby. The\nManagement Committee is hereby expressly authorized on behalf of the Company to\nmake all decisions with respect to the Company's business and to take all\nactions necessary to carry out such decisions. No actions shall be taken, nor\nany decisions made, by any Manager or\n\n                                       7\n\n \nofficer of the Company without the prior approval of, or pursuant to an express\ndelegation of authority by, the Management Committee. The act of the majority of\nthe members of the Management Committee shall be the act of the Management\nCommittee. Notwithstanding the foregoing, all documents executed on behalf of\nthe Company need only be signed by a Manager or by an officer of the Company who\nhas been given the power and authority to do so by the Management Committee.\n\n     (b)   The Management Committee shall appoint an individual to serve as the\nChief Executive Officer of the Company. In addition, the Management Committee\nshall have the right to delegate all or portions of its management authority to\none or more officers of the Company. Any officer may be removed or its authority\nwithdrawn at any time by the Management Committee.\n\n     7.2   Management Committee Meetings.\n\n     (a)   The Management Committee will hold regular quarterly meetings without\ncall or notice at such time as will from time to time be fixed by standing\nresolution of the Management Committee.\n\n     (b)   Special meetings of the Management Committee may be called by any two\nManagers. All meetings will be held upon 10 days' notice by mail or 72 hours'\nnotice delivered personally or by telephone or facsimile. A notice need not\nspecify the purpose of any meeting. Notice of a special meeting need not be\ngiven to any Manager who signs a waiver of notice or a consent to holding the\nmeeting or an approval of the minutes thereof, whether before or after the\nmeeting, or who attends the meeting without protesting, prior to its\ncommencement, the lack of notice to such Manager. All such waivers, consents and\napprovals will be filed with the Company records or made a part of the minutes\nof the meeting.\n\n     (c)   Meetings of the Management Committee may be held at any place within\nor without the State of Delaware that has been designated in the notice of the\nmeeting or at such place as may be approved by the Management Committee.\nManagers may participate in a meeting through use of conference telephone or\nsimilar communications equipment, so long as all Managers participating in such\nmeeting can hear one another. Participation in a meeting in such manner\nconstitutes a presence in person at such meeting.\n\n     7.3   Duties. The Managers shall carry out their duties in good faith, in a\nmanner the Managers believe to be in the best interests of the Company, and with\nsuch care as an ordinarily prudent person in a like position would use under\nsimilar circumstances. A Manager who so performs its duties shall not have any\nliability by reason of being or having been a Manager of the Company.\n\n     7.4   Time Devoted to Business. The Members and the Managers shall devote\nsuch time to the business of the Company as they, in their discretion, deem\nnecessary for the efficient carrying on of the Company's business. The Members\nand the Managers shall at all times be \n\n                                       8\n\n \nfree to engage for their own account in any business that competes with any\nbusiness of the Company.\n\n     7.5   Reliance by Third Parties. No third party dealing with the Company\nshall be required to ascertain whether any Manager is acting in accordance with\nthe provisions of this Agreement. All third parties may rely on a document\nexecuted by a Manager (or an officer duly authorized by the Management Committee\nto execute such document) as binding the Company. The foregoing provisions shall\nnot apply to third parties who are affiliates of a Member, the Managers, or an\nofficer of the Company. A Manager or officer acting without authority shall be\nliable to the Members for any damages arising out of its unauthorized actions.\n\n     7.6   Resignation. Any Manager may be removed at any time with or without\ncause by the Member who appointed such Manager. Any Manager may resign at any\ntime by giving written notice to the Members. Unless otherwise specified in the\nnotice, the resignation shall take effect upon receipt by the Members, and the\nacceptance of the resignation shall not be necessary to make it effective. Upon\nthe resignation, retirement, death or removal of any Manager, the Member who\nappointed such Manager will nominate and appoint a replacement Manager.\n\n     7.7   Transactions Between Company and Managers. The Members hereby\nacknowledge that the Company may be required to borrow funds from any Manager or\nsuch Manager's affiliates, from time to time and at any time, in connection with\nthe business of the Company. Each Manager is hereby authorized, without further\napproval by the Members, to execute all documents and take all action necessary\nto consummate any loans, secured and\/or unsecured by the assets of the Company,\nto the Company by such Manager or an affiliate of such Manager, on terms and\nconditions that are acceptable to such Manager and consistent with the\nprovisions of Section 3.4. In addition, each Manager is hereby authorized to\ncontract and deal with the Company, or cause any person or entity affiliated\nwith such Manager to otherwise contract or deal with the Company, provided such\ncontracts and dealings either are on terms comparable to and competitive with\nthose available to the Company from others dealing at arm's length or are\napproved by disinterested Members having more than 50% of the Sharing Ratios of\nall disinterested Members.\n\n     7.8   Reimbursements. Each Manager and each officer shall be reimbursed by\nthe Company for any reasonable out-of-pocket costs incurred on behalf of the\nCompany and a reasonable charge for the cost of general office and\nadministrative overhead attributable to the performance of their duties to the\nCompany, together with reasonable interest that has accrued on such amounts from\nthe date incurred until paid.\n\n     7.9   Insurance. The Company shall maintain for the protection of the\nCompany and all of its Members such insurance as the Management Committee, in\nits sole discretion, deems necessary for the operations being conducted.\n\n                                       9\n\n \n     7.10  Exculpation. The Management Committee and any officer appointed by\nthe Management Committee shall not be liable to the Company or to any Member for\nany act or failure to act, nor for any errors of judgment, but only for willful\nmisconduct or gross negligence. The Company shall indemnify and hold harmless\neach member of the Management Committee, each officer and their agents and\nemployees against and from any liability other than such person's willful\nmisconduct or gross negligence. Any such indemnification shall be paid only from\nthe assets of the Company, and no Member, Manager, officer or third party shall\nhave recourse against the personal assets of any Member for such\nindemnification.\n\n     7.11  Informal Action. Any action required or permitted to be taken by the\nManagement Committee may be taken without a meeting if the action is evidenced\nby a written consent describing the action taken, signed by each member of the\nManagement Committee. Action taken under this section is effective when all\nmembers of the Management Committee have signed the consent, unless the consent\nspecifies a different effective date.\n\n                                   ARTICLE 8\n                                   ---------\n\n                                    MEMBERS\n\n     8.1   Participation. A Member, in its capacity as a Member, shall take no\npart in the control, management, direction or operation of the affairs of the\nCompany and shall have no power to bind the Company.\n\n     8.2   Quorum. A majority of the outstanding Voting Interests, represented\nin person or by proxy, shall be necessary to constitute a quorum at meetings of\nthe Members. Each of the Members hereby consents and agrees that one or more\nMembers may participate in a meeting of the Members by means of conference\ntelephone or similar communication equipment by which all persons participating\nin the meeting can hear one another at the same time, and such participation\nshall constitute presence in person at the meeting. If a quorum is present, the\naffirmative vote of the majority of the Voting Interests represented at the\nmeeting and entitled to vote on the subject matter shall be the act of the\nMembers, unless a greater number is required by the Act. In the absence of a\nquorum, those present may adjourn the meeting for any period, but in no event\nshall such period exceed 60 days.\n\n     8.3   Informal Action. Any action required or permitted to be taken at a\nmeeting of the Members may be taken without a meeting if the action is evidenced\nby a written consent describing the action taken, signed by each Member entitled\nto vote. Action taken under this section is effective when all Members entitled\nto vote have signed the consent, unless the consent specifies a different\neffective date.\n\n     8.4   Meetings. Meetings of the Members for any purpose or purposes may be\ncalled by the Management Committee or by holders of not less than 10% of all\nVoting Interests. The place of meeting shall be the registered office of the\nCompany.\n\n                                       10\n\n \n     8.5   Notice of Meeting. Written notice stating the place, day and hour of\nthe meeting of the Members and the purpose or purposes for which the meeting is\ncalled, shall be delivered either personally or by mail, by or at the direction\nof the Management Committee or other person calling the meeting, to each Member\nof record entitled to vote at such meeting. If mailed, such notice shall be\ndeemed delivered as provided in the Act. Waiver of notice and actions taken at a\nmeeting shall be effective as provided in the Act.\n\n     8.6   Proxies. At all meetings of Members, a Member may vote in person or\nby proxy executed in writing by the Member or by his duly authorized \nattorney-in-fact. Such proxy shall be filed with the Management Committee before\nor at the time of the meeting. No proxy shall be valid after eleven months from\nthe date of its execution, unless otherwise provided in the proxy.\n\n     8.7   Conduct of Meeting. At each meeting of the Members, a Chairman for\nthat particular meeting shall be elected. The Chairman shall be the Member in\nattendance who has received the vote of the majority of the Voting Interests\nrepresented at the meeting. The Chairman shall preside over and conduct the\nmeeting and shall appoint someone in attendance to make accurate minutes of the\nmeeting. Following each meeting, the minutes of the meeting shall be sent to the\nManagement Committee and each Member.\n\n     8.8   Tax Matters Member. ADMI is hereby designated as the tax matters\nMember for the Company pursuant to section 6231(a) of the Code. ADMI is\nauthorized to perform, on behalf of the Company or any Member, any act that may\nbe necessary to make this designation effective.\n\n                                   ARTICLE 9\n                                   ---------\n\n                           ACCOUNTING AND REPORTING\n\n     9.1   Books. The Management Committee shall maintain complete and accurate\nbooks of account at the registered office of the Company. The Management\nCommittee shall provide any Member any information requested relating to the\nbusiness of the Company. During ordinary business hours any Member or its\nauthorized representative shall have access to all books, records and materials\nregarding the Company and its activities.\n\n     9.2   Capital Accounts. The Management Committee shall maintain a separate\ncapital account for each Member in accordance with the Treasury Regulations\nunder section 704(b) of the Code and such other accounts as may be necessary or\ndesirable to comply with the requirements of applicable laws and regulations.\n\n     9.3   Transfers During Year. In order to avoid an interim closing of the\nCompany's books, the share of profits and losses under Article 5 of a Member who\ntransfers part or all of its interest in the Company during the Company's\naccounting year may be determined by taking its pro rata share of the amount of\nsuch profits and losses for the year. The proration shall be based on the\nportion of the Company's accounting year that has elapsed prior to the transfer\nor may be\n\n                                       11\n\n \ndetermined under any other reasonable method; provided, however, that any gain\nor loss from the sale of Company assets shall be allocated to the owner of the\nCompany interest at the time of such sale. The balance of the profits and losses\nattributable to the Company interest transferred shall be allocated to the\ntransferee of such interest.\n\n     9.4   Reports. The books of account shall be closed promptly after the end\nof each fiscal year. As soon as practicable thereafter, the Management Committee\nshall deliver a written report to each Member, which shall include a statement\nof receipts, expenditures, profits and losses for the year, a statement of each\nMember's capital account and such additional statements with respect to the\nstatus of the Company's assets and the distribution of Company funds as are\nnecessary to advise the Members properly about their investment in the Company.\nPrior to March 15th of each year, the Members shall also be provided with a copy\nof the Company federal income tax return (Form 1065) to be filed for the\npreceding year.\n\n     9.5   Section 754 Election. If requested by a Member the Company shall make\nthe election provided for under section 754 of the Code. Any costs attributable\nto making such election shall be borne solely by the requesting Member.\n\n                                  ARTICLE 10\n                                  ----------\n\n                       TRANSFERS; RIGHT OF FIRST REFUSAL\n\n     10.1  Additional Members. Additional Members shall not be admitted to the\nCompany without the written consent of Members having a Sharing Ratio of more\nthan 50%.\n\n     10.2  Offer to Other Members. If at any time any Member proposes to sell,\nassign or otherwise transfer all or any part of its interest in the Company,\nsuch Member ('Offeror') shall first make a written offer to sell such interest\nin the Company to the other Members on the same terms and subject to the same\nconditions as those on which the Offeror proposes to transfer the interest in\nthe Company. Such offer shall state the name of the proposed transferee and all\nthe terms and conditions of the proposed transfer, including the price to the\nproposed transferee. Notwithstanding anything in this Section 10.2 to the\ncontrary, any Member shall be free to transfer all or any portion of its\ninterest in the Company free of the right of first refusal provided that such\nMember transfers its interest to an entity controlled by the transferor. A\ntransferee of a Member pursuant to the foregoing sentence shall be subject to\nthe right of first refusal contained in this Section 10.2.\n\n     10.3  Acceptance of Offer. The other Members shall have the right for a\nperiod of 30 days after receipt of the offer from the Offeror, or such longer\nperiod as may be required under Section 10.5, to elect to purchase all of the\ninterest in the Company offered. In exercising their right to purchase, the\nother Members may divide the interest offered in any manner to which they all\nagree and in the absence of agreement the offered interest shall be divided\namong the Members in proportion to the relative Sharing Ratios of the Members\nwho choose to participate. To exercise their rights to purchase, the other\nMembers shall give written notice to\n\n                                       12\n\n \nthe Offeror. Upon the exercise of a right to purchase and provided the right is\nexercised with respect to all of the interest in the Company offered, the\npurchase shall be closed and payment made on the same terms and conditions as\nthose on which the Offeror proposes to transfer the interest in the Company.\n\n     10.4  Failure to Accept Offer. If the other Members do not elect to\npurchase all of the interest in the Company offered, the Offeror may transfer\nthe offered interest to the proposed transferee named in the offer to the\nCompany. However, if that transfer is not made within 90 days after the end of\nthe period provided for in Section 10.3, a new offer shall be made to the other\nMembers and the provisions of Sections 10.1, 10.2 and 10.3 shall again apply.\n\n     10.5  Cash Equivalents. If the proposed offer under Section 10.2 is for\nconsideration other than cash or cash plus deferred payments of cash, the\npurchasing Members may pay the present value cash equivalent of such other\nconsideration or may pay using the same instrument as contemplated by the\nproposed offer. The Offeror and the purchasing Members shall attempt to agree\nupon a cash equivalent of such other consideration. If they cannot agree within\n20 days after the beginning of the 30-day period under Section 10.3, any of such\nMembers may, by five days' written notice to the others, initiate arbitration\nproceedings for determination of the cash equivalent without regard to income\ntax consequences to the Offeror as a result of receiving cash rather than the\nother consideration. The purchasing Members may elect to purchase the interest\nat the determined cash equivalent by notice of such election to the Offeror\nwithin 10 days after the arbitrator's decision.\n\n     10.6  Direct and Indirect Transfers. For purposes of this agreement,\nrestrictions upon the sale, assignment or other transfer of a Member's interest\nshall extend to any direct or indirect transfer including, without limitation,\nan involuntary transfer such as a transfer pursuant to a foreclosure sale or a\ntransfer resulting by operation of law.\n\n     10.7  Substitution of a Member.\n\n     (a)   No assignee, legatee, or transferee (by conveyance, operation of law\nor otherwise) of the whole or any portion of a Member's interest in the Company\nshall have the right to become a substituted Member without the written consent\nof Members having a Sharing Ratio of more than 50%; provided, that ADMI hereby\nconsents to UST becoming a substitute Member upon the transfer of Qwest's Class\nA Units to UST. The granting or denial of a request for such written consent\nshall be within the absolute discretion of each Member. A substituted Member\nshall succeed to all the rights and interest of its assignor in the Company. An\nassignee of a Member that is not admitted as a Member shall be entitled only to\nthe distributions to which its assignor would otherwise be entitled.\n\n     (b)   If a Member shall be dissolved, merged or consolidated, its successor\nin interest shall have the same rights and obligations that such Member would\nhave had if it had not been dissolved, merged or consolidated, except that the\nsuccessor shall not become a substituted Member without the prior written\nconsent of Members having a Sharing Ratio of more than 50%.\n\n                                       13\n\n \n     (c)   As conditions to its substitution as a Member (a) any successor of a\nMember shall execute and deliver such instruments, in form and substance\nsatisfactory to the Management Committee, as the Management Committee shall deem\nnecessary, and (b) such successor shall pay all reasonable expenses in\nconnection with its admission as a substituted Member.\n\n     10.8  Conditions to Transfer. No transfer of any interest in the Company\notherwise permitted under this agreement shall be effective for any purpose\nwhatsoever until the transferee shall have assumed the transferor's obligations\nto the extent of the interest transferred and shall have agreed to be bound by\nall the terms and conditions hereof, by written instrument, duly acknowledged,\nin form and substance reasonably satisfactory to the Management Committee.\n\n     10.9  Transfer to US Telesource. Notwithstanding anything to the contrary\nherein, the transfer by Qwest of its interest in the Company to UST shall not be\nsubject to the right of first refusal or any other restriction on transfer set\nforth in this Agreement.\n\n                                  ARTICLE 11\n                                  ----------\n\n                               TAG-ALONG RIGHTS\n\n     Subject to the provisions of Section 10, in the event a Member (an\n'Offering Member') intends to transfer all or any part of its interest in the\nCompany (also referred to as 'Offered Interests'), such Offering Member shall\nnotify each other Member who has a Sharing Ratio of more than 10%, in writing,\nof such proposed transfer and its terms and conditions, including, without\nlimitation, (i) its bona fide intention to sell or transfer the Offered\nInterests, (ii) the number and class of Units of Offered Interests to be\ntransferred, (iii) the price and terms, if any, for which it proposes to\ntransfer the Offered Interests and (iv) the name and address of the proposed\npurchaser or transferee and that such purchaser or transferee is committed to\nacquire the stated number of Units on the stated price and terms ('Offering\nMember Notice'). Within ten days of the date of such notice, each Member (other\nthan the Offering Member) shall notify the Offering Member in writing (the 'Co-\nSale Notice') if it elects to participate in such transfer. Each Member that so\nnotifies the Offering Member shall have the right to sell, at the same price and\non the same terms as the Offering Member, an amount of Units equal to the Units\nthe third party proposes to purchase multiplied by a fraction, the numerator of\nwhich shall be the number of Units owned by such Member and the denominator of\nwhich shall be the aggregate number of Units owned by the Offering Member and\neach Member exercising its rights under this Section 11. Nothing contained in\nthis Section 11 shall in any way limit or restrict the Offering Member's ability\nto amend, modify or terminate any agreement with a third party with respect to\nany transfer of its Units pursuant to this Section 11, and the Offering Member\nshall have no liability to any Member with respect to such amendment,\nmodification or termination unless any of the foregoing breaches this Agreement.\nIf no Co-Sale Notice is received during the ten-day period referred to above (or\nif the Co-Sale Notice does not cover all of the Units proposed to be\ntransferred), the Offering Member shall have the right, for a sixty-day period\nafter the expiration of the ten-day period referred to above, to transfer the\nUnits so specified in the Offering Member\n\n                                       14\n\n \nNotice (or the remaining Units) at the same or a lower price and on other terms\nand conditions no more favorable than those stated in the Offering Member\nNotice.\n\n                                  ARTICLE 12\n                                  ----------\n\n                                     TERM\n\n     The Company shall continue until dissolved by the written consent of\nMembers having a Sharing Ratio of more than 50% or upon sale of all or\nsubstantially all of its assets.\n\n                                  ARTICLE 13\n                                  ----------\n\n                            INITIAL PUBLIC OFFERING\n\n     13.1  Conversion to Corporation. If the Company decides to initiate an\ninitial public offering, and if that decision requires that the Company be\nrestructured into a corporation (the 'Resulting Corporation'), then, subject to\nthe approval of the Management Committee pursuant to Section 7.1:\n\n     (a)   the Resulting Corporation will be organized and incorporated under\nthe Laws of the State of Delaware;\n\n     (b)   the Certificate of Incorporation and Bylaws of the Resulting\nCorporation will include standard and customary provisions as will then be\napplicable to public corporations incorporated under the Laws of the State of\nDelaware, and such other provisions as may be agreed upon by the Management\nCommittee; and\n\n     (c)   the Members and the Company will negotiate in good faith with the\nintent of entering into a shareholders' agreement that will contain customary\nprovisions, including 'tag along' rights.\n\n                                  ARTICLE 14\n                                  ----------\n\n                          DISSOLUTION AND TERMINATION\n\n     14.1  Final Accounting. In case of the dissolution of the Company, a\nproper accounting shall be made as provided in Section 9.4 from the date of the\nlast previous accounting to the date of dissolution.\n\n     14.2  Liquidation. Upon the dissolution of the Company, the Management\nCommittee shall select a person to act as liquidator to wind up the Company. The\nliquidator shall have full power and authority to sell, assign and encumber any\nor all of the Company's assets and to wind up and liquidate the affairs of the\nCompany in an orderly and businesslike manner. All proceeds from liquidation\nshall be distributed in the following order of priority: (i) to the payment of\ndebts \n\n                                       15\n\n \nand liabilities of the Company and the expenses of liquidation; (ii) to the\nsetting up of such reserves as the liquidator may reasonably deem necessary for\nany contingent liabilities of the Company; and (iii) to the Members in\naccordance with Article 4.\n\n     14.3  Distribution in Kind. If the liquidator shall determine that a\nCompany asset should be distributed in kind, the liquidator shall obtain an\nindependent appraisal of the fair market value of the asset as of a date\nreasonably close to the date of liquidation. Any unrealized appreciation or\ndepreciation with respect to such asset shall be allocated among the Members (in\naccordance with the provisions of Article 5 assuming that the asset was sold for\nthe appraised value) and taken into consideration in determining the balance in\nthe Members' capital accounts as of the date of liquidation. Distribution of any\nsuch asset in kind to a Member shall be considered a distribution of an amount\nequal to the asset's fair market value for purposes of Section 14.2. The\nliquidator, in its sole discretion, may distribute any percentage of any asset\nin kind to a Member even if such percentage exceeds the percentage in which the\nMember shares in distributions as long as the sum of the cash and fair market\nvalue of all the assets distributed to each Member equals the amount of the\ndistribution to which each Member is entitled.\n\n     14.4  Waiver of Right to Court Decree of Dissolution. The Members agree\nthat irreparable damage would be done to the Company if any Member brought an\naction in court to dissolve the Company. Accordingly, each of the Members\naccepts the provisions of this Agreement as its sole entitlement on termination\nof the Member's membership in the Company. Each Member hereby waives and\nrenounces all rights to seek a court decree of dissolution or to seek the\nappointment by a court of a liquidator for the Company.\n\n     14.5  Articles of Dissolution. Upon the completion of the distribution of\nCompany assets as provided in this Article 14, the Company shall be terminated\nand the person acting as liquidator shall file articles of dissolution and shall\ntake such other actions as may be necessary to terminate the Company.\n\n                                  ARTICLE 15\n                                  ----------\n\n                                    NOTICES\n\n     15.1  Method of Notices. All notices required or permitted by this\nagreement shall be in writing and shall be hand delivered or sent by registered\nor certified mail, postage prepaid, and shall be effective when received or, if\nmailed, on the date set forth on the receipt of registered or certified mail, or\non the fifth day after mailing, whichever is earlier.\n\n     15.2  Computation of Time. In computing any period of time under this\nagreement, the day of the act, event or default from which the designated period\nof time begins to run shall not be included. The last day of the period so\ncomputed shall be included, unless it is a Saturday, Sunday or legal holiday, in\nwhich event the period shall run until the end of the next day which is not a\nSaturday, Sunday or legal holiday.\n\n                                       16\n\n \n                                  ARTICLE 16\n                                  ----------\n\n                          INVESTMENT REPRESENTATIONS\n\n     16.1  Investment Purpose. In acquiring an interest in the Company, each\nMember represents and warrants to the Company that it is acquiring such interest\nfor its own account for investment and not with a view to its sale or\ndistribution. Each Member recognizes that investments such as those contemplated\nby the Company are speculative and involve substantial risk. Each Member further\nrepresents and warrants that it has not received any guaranty or representation\nupon which it has relied concerning the possibility or probability of profit or\nloss as a result of its acquisition of an interest in the Company.\n\n     16.2  Investment Restriction. Each Member recognizes that: (a) its Units\nhave not been registered under the Securities Act of 1933, as amended, in\nreliance upon an exemption from such registration, (b) a Member may not sell,\noffer for sale, transfer, pledge or hypothecate all or any part of its interest\nin the Company in the absence of an effective registration statement covering\nsuch interest under the Securities Act of 1933, as amended, unless such sale,\noffer of sale, transfer, pledge or hypothecation is exempt from registration\nunder the Securities Act of 1933, as amended, (c) the Company has no obligation\nto register any Member's interest for sale, or to assist in establishing an\nexemption from registration for any proposed sale, and (d) the restrictions on\ntransfer may severely affect the liquidity of a Member's investment.\n\n                                  ARTICLE 17\n                                  ----------\n\n                              GENERAL PROVISIONS\n\n     17.1  Entire Agreement. This Agreement embodies the entire understanding\nand agreement among the parties concerning the Company and supersedes any and\nall prior negotiations, understandings or agreements in regard thereto.\n\n     17.2  Amendment. This Agreement may not be amended nor may any rights\nhereunder be waived except by an instrument in writing signed by Members having\na Sharing Ratio of more than 50% in the aggregate.\n\n     17.3  Applicable Law. This Agreement shall be construed in accordance with\nand governed by the laws of the State of Delaware.\n\n     17.4  Pronouns. References to a Member, including by use of a pronoun,\nshall be deemed to include masculine, feminine, singular, plural, individuals,\npartnerships, corporations or other legal entities where applicable.\n\n                                       17\n\n \n     17.5  Counterparts. This instrument may be executed in any number of\ncounterparts each of which shall be considered an original.\n\n                        *    *    *    *    *    *    *\n\n                           [SIGNATURE PAGE FOLLOWS]\n                           \n\n                                       18\n\n \n     IN WITNESS WHEREOF the parties have executed this Agreement effective as of\nthe date first above written.\n\n                                  ANSCHUTZ DIGITAL MEDIA, INC.\n \n \n                                  By: \/s\/ Scott Carpenter\n                                      ------------------------------------------\n                                  Name:   Scott Carpenter\n                                        ----------------------------------------\n                                  Title:  Vice President\n                                         ---------------------------------------\n\n                                  QWEST COMMUNICATIONS\n                                   INTERNATIONAL INC.\n \n \n                                  By:  \/s\/ Robert S. Woodruff\n                                      ------------------------------------------\n                                  Name:    Robert S. Woodruff\n                                        ----------------------------------------\n                                  Title:   Executive Vice President - Finance \n                                         ---------------------------------------\n                                  and Chief Financial Officer\n                                  ----------------------------------------------\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8630],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9573,9576],"class_list":["post-41663","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-qwest-communications-international-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-formation","corporate_contracts_types-formation__llc"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41663","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41663"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41663"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41663"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41663"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}