Exhibit 3.8
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN TELECASTING DEVELOPMENT, LLC
(a Delaware Limited Liability Company)
Effective
as of
October 20, 2008
LIMITED LIABILITY COMPANY AGREEMENT
of
AMERICAN TELECASTING DEVELOPMENT, LLC
(a Delaware Limited Liability Company)
THIS LIMITED LIABILITY COMPANY AGREEMENT, effective as of October 20, 2008, is made by and between American Telecasting Development, LLC (the “Company”) and American Telecasting, Inc., a Delaware corporation, as the sole member of the Company (the “Member”). The Company is formed as a Delaware limited liability company under the Delaware Limited Liability Company Act, 6 Del.C. § 18-101 et seq., as it may be amended from time to time, and any successor to such statute (the “Act”).
1. Certificate of Formation. A Certificate of Formation was filed on October 20, 2008, stated to be effective upon filing, the date on which the term of the Company shall begin. The Company has been formed under the provisions of the Act for the purposes and on the terms set forth in this Agreement.
2. Name. The name of the Company is “American Telecasting Development, LLC.”
3. Purpose. The purpose and business of the Company is to engage in any and all lawful activity permitted to be conducted by a limited liability company under the Act, and to exercise all other powers necessary or reasonably connected or incidental to such purpose and business that may be legally exercised by the Company.
4. Term. The term of the Company shall continue until the Company is dissolved in accordance with Section 10.
5. Principal Place of Business. The principal place of business of the Company shall be 6200 Sprint Parkway, Overland Park, Kansas, 66251. The Manager may relocate the principal place of business or establish additional offices from time to time.
6. Registered Office and Registered Agent. The Company's initial registered agent and the address of its initial registered office are Corporation Service Company, 2711 Centreville Road, Suite 400, County of New Castle, Wilmington, Delaware 19808. The registered office and registered agent may be changed from time to time as determined by the Manager.
7. Member. The Member is American Telecasting, Inc.
8. Management.
8.1 Management by Manager. The business and affairs of the Company shall be managed by American Telecasting, Inc. (the “Manager”). The Manager shall have full and complete authority, power and discretion to manage and control the business, affairs and properties of the Company and to perform any and all other acts or activities customary or incident to the management of the Company in the ordinary course of its business. The Manager may be removed by the Member at any time and from time to time, with or without cause, and the Member may appoint another person (including the Member) to serve as Manager of the Company.
8.2 Officers and Agents. The Manager may authorize one or more officers and agents to enter into any contract or to otherwise act on behalf of the Company to the extent that the Manager could take such action. Such authority may be general or be defined to specific instances. Unless authorized to do so by this Agreement or by the Manager, no employee, officer, or other agent of the Company shall have any power or authority to bind the Company in any way, to pledge its credit or to render it liable for any purpose.
9. Financial Matters.
9.1 Capital Contributions. The Member has made a capital contribution of $1.00 to the Company in exchange for all of the outstanding membership interests in the Company.
9.2 Distributions. The Manager may, in its discretion, cause the Company to make distributions to the Member from time to time as permitted by the Act.
9.3 U.S. Federal Income Tax Reporting. For all periods when there is only one member of the Company, (a) the Company shall be treated for U.S. federal income tax purposes as an entity disregarded as separate from the Member, and (b), all items of income, gain, loss, deduction and credit of the Company attributable to such periods shall be reported on the Member's U.S. federal income tax return.
10. Dissolution and Liquidation.
10.1 Events of Dissolution. The Company shall dissolve upon the earlier of:
(a) the sale, transfer or other disposition of all or substantially all of the Company's assets unless otherwise determined by the Member in writing;
(b) the entry of a decree of judicial dissolution under Section 17-802 of the Act; or
(c) at any time there are no Members of the Company, unless the Company is continued in accordance with the Act.
11. Limitation of Liability; Indemnification.
11.1 Limitation of Liability. Neither the Member nor the Manager shall have any liability to the Company for monetary damages for conduct as the Member or the Manager, respectively, except as otherwise provided by the Act. If the Act is hereafter amended to authorize Company action further limiting the personal liability of members and managers, then the liability of the Member and the Manager shall be eliminated or limited to the full extent permitted by the Act, as so amended. No repeal or modification of the Act or this Section 11.1 shall adversely affect any right or protection of the Member or the Manager existing at the time of such repeal or modification for or with respect to an act or omission of the Member or the Manager occurring prior to such repeal or modification.
11.2 Indemnification. The Company shall indemnify the Member and the Manager from and against any judgments, settlements, penalties, fines or expenses incurred in a proceeding to which the Member or the Manager is a party because it is, or was, the Member or the Manager to the fullest extent as permitted by the Act. The right to indemnification and payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section 11.2 shall not be exclusive of any other right the Member or the Manager may have or hereafter acquire under any statute, this Agreement or otherwise. No repeal or modification of the Act or this Section 11.2 shall adversely affect any right of the Member or the Manager to indemnification existing at the time of such repeal or modification for or with respect to indemnification related to an act or omission of the Member or the Manager occurring prior to such repeal or modification.
12. Miscellaneous.
12.1 Assignment. The Member may assign in whole or in part its membership in the Company.
12.2 Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of Delaware, including without limitation, the Act.
12.3 Amendments. This Agreement may not be amended except by the written agreement of the Member.
12.4 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law.
12.5 Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective heirs, legal representatives, successors and assigns.
12.6 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company.
Executed as of the date first above written by the undersigned.
| COMPANY: | MEMBER: | |||
| American Telecasting Development, LLC | American Telecasting, Inc. | |||
By: American Telecasting, Inc. | ||||
Title: Manager and Sole Member | By: /s/ Timothy P. O’Grady Name: Timothy P. O’Grady Title: Vice President | |||
By:/s/ Timothy P. O’Grady Name: Timothy P. O’Grady Title: Vice President |
ACKNOWLEDGEMENT AGREEMENT
THIS ACKNOWLEDGEMENT AGREEMENT (this “Agreement”), dated as of November 28, 2008 (the “Effective Time”), is entered into by and among Sprint HoldCo, LLC, Delaware limited liability company (the “Contributor”), SX Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of the Contributor (the “LLC”) and each of the entities set forth on Exhibit A (the “Transfer Entities”).
WHEREAS, the Contributor was the owner of membership interests in the Transfer Entities and the sole member of the Transfer Entities;
WHEREAS, pursuant to the Contribution Agreement by and between the Contributor and the LLC dated as of November 28, 2008, the Contributor transferred to the LLC, and the LLC accepted from the Contributor all of Contributors membership interests in each of the Transfer Entities, and the LLC became the sole member of each of the Transfer Entities.
NOW, THEREFORE, BE IT RESOLVED, that in consideration of the foregoing recitals and the mutual covenants and agreements contained in this Agreement, the parties agree as follows:
| 1. | Member: The LLC is the sole Member (as defined in the applicable limited liability company agreements governing each of the Transfer Entities) for each of the Transfer Entities. |
| 2. | Manager: The LLC is the Manager (as defined in the applicable limited liability company agreements governing each of the Transfer Entities) for each of the Transfer Entities. |
| 3. | Amendments to Limited Liability Company Agreements: The limited liability company agreements governing each of the Transfer Entities are hereby amended to provide for the LLC as the sole Member and Manager for each of the Transfer Entities. |
| 4. | Capital Contribution: The contribution of the membership interest in each of the Transfer Entities shall be deemed a capital contribution of Contributor to LLC. |
| 5. | Miscellaneous: |
| a | Assignment: This Agreement shall be binding on, and shall inure to the benefit of, the parties hereto and their respective successors and assigns. |
| b | Governing Law: This Agreement shall be construed in accordance with, and governed by, the laws of the State of Delaware. |
| c | Further Assurances: Each of the parties will, and will cause their respective affiliates to, execute and deliver such further certificates, agreements and other documents and to take such other actions as the other parries may reasonably request to consummate or implement the transactions contemplated by this Agreement or to evidence such events or matters. To the extent any Contributed Interests are not transferred on the date hereof, the Contributor will transfer any such interests to LLC as soon as reasonably practicable after such interests become transferable. |
[Signature pages follow]
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first written above.
Sprint HoldCo, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| SX Sub, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| NSAC, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
WBC NY, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
ATL MDS, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| LA MDS, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
| NY MDS, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| SF MDS, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| Via/Net, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| Wavepath Sub, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| Sprint (Bay Area), LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| Transworld Telecom II, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| WHI Sub, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| Bay Area Cablevision, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
| TWTV Spokane, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| TTI Acquisition, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| WHI SD LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| ATI Sub, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting Development, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Anchorage, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Bend, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Bismarck, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
| American Telecasting of Cincinnati, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Colorado Springs, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Columbus, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Denver, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Ft. Collins, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Fort Myers, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
| American Telecasting of Green Bay, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
| American Telecasting of Jackson, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
| American Telecasting of Lansing, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Lincoln, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Little Rock, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Louisville, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Medford, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Michiana, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
American Telecasting of Monterey, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Oklahoma, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Portland, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Redding, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Salem/Eugene, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Santa Barbara, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
ATI of Santa Rosa, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
American Telecasting of Seattle, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Sheridan, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Toledo, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Youngstown, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
American Telecasting of Yuba City, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
PCTV Sub, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | ||
Title: | Vice President |
Signature Page to Acknowledgement Agreement
Alda Gold II, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Alda Tucson, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
PCTV Gold II, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
People’s Choice TV of Albuquerque, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
People’s Choice TV of Houston, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
PCTV of Milwaukee, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
PCTV of Salt Lake City, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Signature Page to Acknowledgement Agreement
People’s Choice TV of St. Louis, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Preferred Entertainment, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
SpeedChoice of Detroit, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
SpeedChoice of Phoenix, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Wireless Cable of Indianapolis, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
G&S TV LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Signature Page to Acknowledgement Agreement
WCOF, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
TDI Acquisition Sub, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS California, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS Idaho, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS Montana, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Wireless Broadband Services of America, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Sprint Wireless Broadband Company LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Signature Page to Acknowledgement Agreement
Wireless Broadcasting Systems of Knoxville, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS Washington, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS Oregon, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS of America, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS of Sacramento, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS of Ft. Pierce, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Signature Page to Acknowledgement Agreement
WBS of Melbourne, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
WBS of West Palm, LLC | ||
By: | /s/ Timothy P. O’Grady | |
Name: | Timothy P. O’Grady | |
Title: | Vice President |
Signature Page to Acknowledgement Agreement
EXHIBIT A