AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RENAISSANCE MEDIA GROUP LLC (a Delaware Limited Liability Company)
Exhibit
3.6(b)
AMENDED
AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
RENAISSANCE
MEDIA GROUP LLC
(a
Delaware Limited Liability Company)
This
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended from time
to time, this "Agreement")
is
entered into as of June 19, 2003 by Charter Communications, LLC, a Delaware
limited liability company ("Charter"),
as
the sole member of Renaissance Media Group LLC, a Delaware limited liability
company (the "Company").
W
I T N E
S S E T H:
WHEREAS,
the Certificate of Formation of the Company was executed and filed in the office
of the Secretary of State of the State of Delaware on March 13, 1998;
and
WHEREAS,
Charter is the sole member of the Company;
NOW,
THEREFORE, in consideration of the terms and provisions set forth herein, the
benefits to be gained by the performance thereof and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
party hereby agrees as follows:
SECTION
1. General.
(a) Formation.
Effective as of the date and time of filing of the Certificate of Formation
in
the office of the Secretary of State of the State of Delaware, the Company
was
formed as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del.C.§ 18-101,
et.
seq.,
as
amended from time to time (the "Act").
Except as expressly provided herein, the rights and obligations of the Members
(as defined in Section 1(h)) in connection with the regulation and management
of
the Company shall be governed by the Act.
(b) Name.
The
name of the Company shall be "Renaissance Media Group LLC." The business of
the
Company shall be conducted under such name or any other name or names that
the
Manager (as defined in Section 4(a)(i) hereof) shall determine from time to
time.
(c) Registered
Agent.
The
address of the registered office of the Company in the State of Delaware shall
be c/o CorpAmerica, Inc., ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The
name and address of the registered agent for service of process on the Company
in the State of Delaware shall be CorpAmerica, Inc., ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇ ▇▇▇▇▇. The registered office or registered agent of the Company
may be changed from time to time by the Manager.
(d) Principal
Office.
The
principal place of business of the Company shall be at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. At any time, the Manager may change the location of the
Company's principal place of business.
(e) Term.
The
term of the Company commenced on the date of the filing of the Certificate
of
Formation in the office of the Secretary of State of the State of Delaware,
and
the Company will have perpetual existence until dissolved and its affairs wound
up in accordance with the provisions of this Agreement.
(f) Certificate
of Formation.
The
execution of the Certificate of Formation and the filing thereof in the office
of the Secretary of State of the State of Delaware are hereby ratified,
confirmed and approved.
(g) Qualification;
Registration.
The
Manager shall cause the Company to be qualified, formed or registered under
assumed or fictitious name statutes or similar laws in any jurisdiction in
which
the Company transacts business and in which such qualification, formation or
registration is required or desirable. The Manager, as an authorized person
within the meaning of the Act, shall execute, deliver and file any certificates
(and any amendments and/or restatements thereof) necessary for the Company
to
qualify to do business in a jurisdiction in which the Company may wish to
conduct business.
(h) Voting.
Each
member of the Company (if there is only one member of the Company, the
"Member";
or if
there are more than one, the "Members")
shall
have one vote in respect of any vote, approval, consent or ratification of
any
action (a "Vote")
for
each one percentage point of Percentage Interest (as defined in Section 7)
held
by such Member (totaling 100 Votes for all Members) (any fraction of such a
percentage point shall be entitled to an equivalent fraction of a Vote). Any
vote, approval, consent or ratification as to any matter under the Act or this
Agreement by a Member may be evidenced by such Member's execution of any
document or agreement (including this Agreement or an amendment hereto) which
would otherwise require as a precondition to its effectiveness such vote,
approval, consent or ratification of the Members.
SECTION
2. Purposes.
The
Company was formed for the object and purpose of, and the nature of the business
to be conducted by the Company is, engaging in any lawful act or activity for
which limited liability companies may be formed under the Act.
SECTION
3. Powers.
The
Company shall have all powers necessary, appropriate or incidental to the
accomplishment of its purposes and all other powers conferred upon a limited
liability company pursuant to the Act.
SECTION
4. Management.
(a) Management
by Manager.
i) Charter,
as the sole member of the Company, hereby confirms the election of Charter
Communications, Inc., a Delaware corporation ("CCI"),
or
its successor-in-interest that acquires directly or indirectly substantially
all
of the assets or business of CCI, as the Company's manager (the "Manager").
CCI
shall be the Manager until a simple majority of the Votes elects otherwise.
No
additional person may be elected as Manager
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without
the approval of a simple majority of the Votes (for purposes of this Agreement,
to the extent the context requires, the term "person" refers to both individuals
and entities). Except as otherwise required by applicable law and as provided
below with respect to the Board, the powers of the Company shall at all times
be
exercised by or under the authority of, and the business, property and affairs
of the Company shall be managed by, or under the direction of, the Manager.
The
Manager is a "manager" of the Company within the meaning of the Act. Any
person
appointed as Manager shall accept its appointment by execution of a consent
to
this Agreement.
ii) The
Manager shall be authorized to elect, remove or replace directors and officers
of the Company, who shall have such authority with respect to the management
of
the business and affairs of the Company as set forth herein or as otherwise
specified by the Manager in the resolution or resolutions pursuant to which
such
directors or officers were elected.
iii) Except
as
otherwise required by this Agreement or applicable law, the Manager shall be
authorized to execute or endorse any check, draft, evidence of indebtedness,
instrument, obligation, note, mortgage, contract, agreement, certificate or
other document on behalf of the Company without the consent of any Member or
other person.
iv) No
annual
or regular meetings of the Manager or the Members are required. The Manager
may,
by written consent, take any action which it is otherwise required or permitted
to take at a meeting.
v) The
Manager's duty of care in the discharge of its duties to the Company and the
Members is limited to discharging its duties pursuant to this Agreement in
good
faith, with the care a director of a Delaware corporation would exercise under
similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company and its Members.
vi) Except
as
required by the Act, no Manager shall be liable for the debts, liabilities
and
obligations of the Company, including without limitation any debts, liabilities
and obligations under a judgment, decree or order of a court, solely by reason
of being a manager of the Company.
(b) Board
of Directors.
i) Notwithstanding
paragraph (a) above, the Manager may delegate its power to manage the business
of the Company to a board of natural persons designated as "directors" (the
"Board")
which,
subject to the limitations set forth below, shall have the authority to exercise
all such powers of the Company and do all such lawful acts and things as may
be
done by a manager of a limited liability company under the Act and as are not
by
statute, by the Certificate of Formation (as amended from time to time, the
“Certificate”),
or by
this Agreement (including without limitation Section 4(c) hereof) directed
or
required to be exercised or done by the Manager. Except for the rights and
duties that are assigned to officers of the Company, the rights and duties
of
the directors may not be assigned or delegated to any person. No action,
authorization or approval of the Board shall be required,
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necessary
or advisable for the taking of any action by the Company that has been approved
by the Manager. In the event that any action of the Manager conflicts with
any
action of the Board, the action of the Manager shall control.
ii) Except
as
otherwise provided herein, directors shall possess and may exercise all the
powers and privileges and shall have all of the obligations and duties to the
Company and the Members granted to or imposed on directors of a corporation
organized under the laws of the State of Delaware.
iii) The
number of directors on the date hereof is one, which number may be changed
from
time to time by the Manager. The director as of the date hereof shall be as
set
forth on Exhibit
A
hereto,
provided that Exhibit A need not be amended whenever the director(s) or his
or
her successors are changed in accordance with the terms of this
Agreement.
iv) Each
director shall be appointed by the Manager and shall serve in such capacity
until the earlier of his or her resignation, removal (which may be with or
without cause) or replacement by the Manager.
v) No
director shall be entitled to any compensation for serving as a director. No
fee
shall be paid to any director for attendance at any meeting of the Board;
provided, however, that the Company may reimburse directors for the actual
reasonable costs incurred in such attendance.
(c) Consent
Required.
i) None
of
the Members, Managers, directors, or officers of the Company shall:
(1) do
any act in contravention of this Agreement;
(2) cause
the Company to engage in any business not permitted by the Certificate or the
terms of this Agreement;
(3) cause
the Company to take any action that would make it impossible to carry on the
usual course of business of the Company (except to the extent expressly provided
for hereunder); or
(4) possess
Company property or assign rights in Company property other than for Company
purposes.
ii) One
hundred percentage (100%) of the Votes shall be required to:
(1) issue
limited liability company interests in the Company to any person;
(2) change
or reorganize the Company into any other legal form;
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(3) approve
a merger or consolidation of the Company with another person;
(4) sell
all or substantially all of the assets of the Company; or
(5) voluntarily
dissolve the Company.
iii) In
addition to any approval that may be required under Section 15(b) to the extent
amendment of this Agreement is required for any of the following actions, the
affirmative vote, approval, consent or ratification of the Manager shall be
required to:
(1) alter
the primary purposes of the Company as set forth in Section 2;
(2) issue
limited liability company interests in the Company to any person;
(3) enter
into or amend any agreement which provides for the management of the business
or
affairs of the Company by a person other than the Manager (and the
Board);
(4) change
or reorganize the Company into any other legal form;
(5) approve
a merger or consolidation of the Company with another person;
(6) sell
all or substantially all of the assets of the Company;
(7) operate
the Company in such a manner that the Company becomes an "investment company"
for purposes of the Investment Company Act of 1940;
(8) except
as otherwise provided or contemplated herein, enter into any agreement to
acquire property or services from any person who is a director or officer of
the
Company;
(9) settle
any litigation or arbitration with any third party, any Member, or any affiliate
of any Member, except for any litigation or arbitration brought or defended
in
the ordinary course of business where the present value of the total settlement
amount or damages will not exceed $5,000,000;
(10) materially
change any of the tax reporting positions or elections of the
Company;
(11) make
or commit to any expenditures which, individually or in the aggregate, exceed
or
are reasonably expected to exceed the Company's
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total
budget (as approved by the Manager) by the greater of 5% of such budget or
Five
Million Dollars ($5,000,000);
(12) make
or incur any secured or unsecured indebtedness which, individually or in the
aggregate, exceeds Five Million Dollars ($5,000,000), provided that this
restriction shall not apply to (i) any refinancing of or amendment to existing
indebtedness which does not increase total borrowing (including obligations
under that certain Credit Agreement with Charter Communications Operating,
LLC
as the borrower, dated as of March 18, 1999, as amended and restated as of
January 3, 2002 and as further amended and restated by the Second Amended and
Restated Credit Agreement dated as of June 19, 2003 (as it may be amended,
supplemented, modified, restated, refunded, renewed, replaced or refinanced
from
time to time, the “Credit Agreement”) and the Loan Documents
(as defined in the Credit Agreement), all of which have been, and are hereby,
ratified and confirmed), (ii) any indebtedness to (or guarantee of indebtedness
of) any entity controlled by or under common control with the Company
("Intercompany Indebtedness"), (iii) the pledge of any assets
to support any otherwise permissible indebtedness of the Company or any
Intercompany Indebtedness or (iv) indebtedness necessary to finance a
transaction or purchase approved by the Manager; or
(13) voluntarily
dissolve the Company.
(d) Board
Meetings.
i) Regular
Meetings. Regular
meetings of the Board may be held without notice at such time and at such place
as shall from time to time be determined by the Board, but not less often than
annually.
ii) Special
Meetings. Special
meetings of the Board may be called by the President or any director on
twenty-four (24) hours' notice to each director; special meetings shall be
called by the President or Secretary in like manner and on like notice on the
written request of Members holding a simple majority of the Votes. Notice of
a
special meeting may be given by facsimile. Attendance in person of a director
at
a meeting shall constitute a waiver of notice of that meeting, except when
the
director objects, at the beginning of the meeting, to the transaction of any
business because the meeting is not duly called or convened.
iii) Telephonic
Meetings. Directors
may participate in any regular or special meeting of the Board, by means of
conference telephone or similar communications equipment, by means of which
all
persons participating in the meeting can hear each other. Participation in
a
meeting pursuant to this Section 4(d)(iii) will constitute presence in person
at
such meeting.
iv) Quorum.
At
all
meetings of the Board, a majority of the directors shall constitute a quorum
for
the transaction of business, and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board, except
as may be otherwise specifically provided by statute, the Certificate or this
Agreement. If a quorum is not present at any meeting of the Board, the directors
present
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thereat
may adjourn the meeting from time to time until a quorum shall be present.
Notice of such adjournment shall be given to any director not present at
such
meeting.
v) Action
Without Meeting. Unless
otherwise restricted by the Certificate or this Agreement, any action required
or permitted to be taken at any meeting of the Board may be taken without a
meeting if all directors consent thereto in writing and such written consent
is
filed with the minutes of proceedings of the Board.
(e) Director's
Duty of Care.
Each
director's duty of care in the discharge of his or her duties to the Company
and
the Members is limited to discharging his duties pursuant to this Agreement
in
good faith, with the care a director of a Delaware corporation would exercise
under similar circumstances, in the manner he or she reasonably believes to
be
in the best interests of the Company and its Members.
SECTION
5. Officers.
(a) Officers.
The
Company shall have such officers as may be necessary or desirable for the
business of the Company. The officers may include a Chairman of the Board,
a
President, a Treasurer and a Secretary, and such other additional officers,
including one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers as the Manager, the Board, the Chairman of the Board, or the
President may from time to time elect. Any two or more offices may be held
by
the same individual.
(b) Election
and Term.
The
President, Treasurer and Secretary shall, and the Chairman of the Board may,
be
appointed by and shall hold office at the pleasure of the Manager or the Board.
The Manager, the Board, or the President may each appoint such other officers
and agents as such person shall deem desirable, who shall hold office at the
pleasure of the Manager, the Board, or the President, and who shall have such
authority and shall perform such duties as from time to time shall, subject
to
the provisions of Section 5(d) hereof, be prescribed by the Manager, the Board,
or the President.
(c) Removal.
Any
officer may be removed by the action of the Manager or the action of at least
a
majority of the directors then in office, with or without cause, for any reason
or for no reason. Any officer other than the Chairman of the Board, the
President, the Treasurer or the Secretary may also be removed by the Chairman
of
the Board or the President, with or without cause, for any reason or for no
reason.
(d) Duties
and Authority of Officers.
i) President.
The
President shall be the chief executive officer and (if no other person has
been
appointed as such) the chief operating officer of the Company; shall (unless
the
Chairman of the Board elects otherwise) preside at all meetings of the Members
and Board; shall have general supervision and active management of the business
and finances of the Company; and shall see that all orders and resolutions
of
the Board or the Manager are carried into effect; subject, however, to the
right
of the directors to delegate any specific powers to any other officer or
officers. In the absence of direction by the Manager, Board, or the Chairman
of
the Board to the contrary, the President shall have the power to vote all
securities held by the Company and to issue proxies therefor. In the absence
or
disability of the President, the Chairman of the Board (if any) or, if there
is
no
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Chairman
of the Board, the most senior available officer appointed by the Manager
or the
Board shall perform the duties and exercise the powers of the President with
the
same force and effect as if performed by the President, and shall be subject
to
all restrictions imposed upon him.
ii) Vice
President. Each
Vice
President, if any, shall perform such duties as shall be assigned to such person
and shall exercise such powers as may be granted to such person by the Manager,
the Board or by the President of the Company. In the absence of direction by
the
Manager, the Board or the President to the contrary, any Vice President shall
have the power to vote all securities held by the Company and to issue proxies
therefor.
iii) Secretary.
The
Secretary shall give, or cause to be given, a notice as required of all meetings
of the Members and of the Board. The Secretary shall keep or cause to be kept,
at the principal executive office of the Company or such other place as the
Board may direct, a book of minutes of all meetings and actions of directors
and
Members. The minutes shall show the time and place of each meeting, whether
regular or special (and, if special, how authorized and the notice given),
the
names of those present at Board meetings, the number of Votes present or
represented at Members' meetings, and the proceedings thereof. The Secretary
shall perform such other duties as may be prescribed from time to time by the
Manager or the Board.
iv) Treasurer.
The
Treasurer shall have custody of the Company funds and securities and shall
keep
or cause to be kept full and accurate accounts of receipts and disbursements
in
books of the Company to be maintained for such purpose; shall deposit all moneys
and other valuable effects of the Company in the name and to the credit of
the
Company in depositories designated by the Manager or the Board; and shall
disburse the funds of the Company as may be ordered by the Manager or the Board.
v) Chairman
of the Board.
The
Chairman of the Board, if any, shall perform such duties as shall be assigned,
and shall exercise such powers as may be granted to him or her by the Manager
or
the Board.
vi) Authority
of Officers.
The
officers, to the extent of their powers set forth in this Agreement or otherwise
vested in them by action of the Manager or the Board not inconsistent with
this
Agreement, are agents of the Company for the purpose of the Company's business
and the actions of the officers taken in accordance with such powers shall
bind
the Company.
SECTION
6. Members.
(a) Members.
The
Members of the Company shall be set forth on Exhibit B
hereto
as amended from time to time. At the date hereof, Charter is the sole Member,
and it (or its predecessor) has heretofore contributed to the capital of the
Company. Charter is not required to make any additional capital contribution
to
the Company; however, Charter may make additional capital contributions to
the
Company at any time in its sole discretion (for which its capital account
balance shall be appropriately increased). Each Member shall have a capital
account in the Company, the balance of which is to be determined in accordance
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with
the
principles of Treasury Regulation section 1.704-1(b)(2)(iv). The provisions
of this Agreement, including this Section 6, are intended to benefit the
Members
and, to the fullest extent permitted by law, shall not be construed as
conferring any benefit upon any creditor of the Company. Notwithstanding
anything to the contrary in this Agreement, Charter shall not have any duty
or
obligation to any creditor of the Company to make any contribution to the
Company.
(b) Admission
of Members.
Other
persons may be admitted as Members from time to time pursuant to the provisions
of this Agreement. If an admission of a new Member results in the Company having
more than one Member, this Agreement shall be amended in accordance with the
provisions of Section 15(b) to establish the rights and responsibilities of
the
Members and to govern their relationships.
(c) Limited
Liability.
Except
as required by the Act, no Member shall be liable for the debts, liabilities
and
obligations of the Company, including without limitation any debts, liabilities
and obligations of the Company under a judgment, decree or order of a court,
solely by reason of being a member of the Company.
(d) Competing
Activities.
Notwithstanding any duty otherwise existing at law or in equity, (i) neither
a
Member nor a Manager of the Company, or any of their respective affiliates,
partners, members, shareholders, directors, managers, officers or employees,
shall be expressly or impliedly restricted or prohibited solely by virtue of
this Agreement or the relationships created hereby from engaging in other
activities or business ventures of any kind or character whatsoever and (ii)
except as otherwise agreed in writing or by written Company policy, each Member
and Manager of the Company, and their respective affiliates, partners, members,
shareholders, directors, managers, officers and employees, shall have the right
to conduct, or to possess a direct or indirect ownership interest in, activities
and business ventures of every type and description, including activities and
business ventures in direct competition with the Company.
(e) Bankruptcy.
Notwithstanding any other provision of this Agreement, the bankruptcy (as
defined in the Act) of a Member shall not cause the Member to cease to be a
member of the Company and, upon the occurrence of such an event, the Company
shall continue without dissolution.
SECTION
7. Percentage
Interests. For
purposes of this Agreement, “Percentage
Interest”
shall
mean with respect to any Member as of any date the proportion (expressed as
a
percentage) of the respective capital account balance of such Member to the
capital account balances of all Members. So long as Charter is the sole member
of the Company, Charter’s Percentage Interest shall be 100 percent.
SECTION
8. Distributions.
The
Company may from time to time distribute to the Members such amounts in cash
and
other assets as shall be determined by the Members acting by simple majority
of
the Votes. Each such distribution (other than liquidating distributions) shall
be divided among the Members in accordance with their respective Percentage
Interests. Liquidating distributions shall be made to the Members in accordance
with their respective positive capital
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account
balances. Each
Member shall be entitled to look solely to the assets of the Company for
the
return of such Member's positive capital account balance. Notwithstanding
that
the assets of the Company remaining after payment of or due provision for
all
debts, liabilities, and obligations of the Company may be insufficient to
return
the capital contributions or share of the Company’s profits reflected in such
Member's positive capital account balance, a Member shall have no recourse
against the Company or any other Member.
Notwithstanding any provision to the contrary contained in this Agreement,
the
Company shall not be required to make a distribution to the Members on account
of their interest in the Company if such distribution would violate the Act
or
any other applicable law.
SECTION
9. Allocations.
The
profits and losses of the Company shall be allocated to the Members in
accordance with their Percentage Interests from time to time.
SECTION
10. Dissolution;
Winding Up.
(a) Dissolution.
The
Company shall be dissolved upon (i) the adoption of a plan of dissolution by
the
Members acting by unanimity of the Votes and the approval of the Manager or
(ii)
the occurrence of any other event required to cause the dissolution of the
Company under the Act.
(b) Effective
Date of Dissolution.
Any
dissolution of the Company shall be effective as of the date on which the event
occurs giving rise to such dissolution, but the Company shall not terminate
unless and until all its affairs have been wound up and its assets distributed
in accordance with the provisions of the Act and the Certificate is
cancelled.
(c) Winding
Up.
Upon
dissolution of the Company, the Company shall continue solely for the purposes
of winding up its business and affairs as soon as reasonably practicable.
Promptly after the dissolution of the Company, the Manager shall immediately
commence to wind up the affairs of the Company in accordance with the provisions
of this Agreement and the Act. In winding up the business and affairs of the
Company, the Manager may, to the fullest extent permitted by law, take any
and
all actions that it determines in its sole discretion to be in the best
interests of the Members, including, but not limited to, any actions relating
to
(i) causing written notice by registered or certified mail of the Company's
intention to dissolve to be mailed to each known creditor of and claimant
against the Company, (ii) the payment, settlement or compromise of existing
claims against the Company, (iii) the making of reasonable provisions for
payment of contingent claims against the Company and (iv) the sale or
disposition of the properties and assets of the Company. It is expressly
understood and agreed that a reasonable time shall be allowed for the orderly
liquidation of the assets of the Company and the satisfaction of claims against
the Company so as to enable the Manager to minimize the losses that may result
from a liquidation.
SECTION
11. Transfer.
At
such
time as the Company has more than one Member, no Member shall transfer (whether
by sale, assignment, gift, pledge, hypothecation, mortgage, exchange or
otherwise) all or any part of his, her or its limited liability company interest
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in
the
Company to any other person without the prior written consent of each of
the
other Members; provided,
however,
that
this Section 11 shall not restrict the ability of any Member to transfer
(at any time) (i) all or a portion of its limited liability company interest
in
the Company to another Member or (ii) pursuant to the Loan Documents (as
defined
in the Credit Agreement). Upon the transfer of a Member's limited liability
company interest, the Manager shall provide notice of such transfer to each
of
the other Members and shall amend Exhibit B
hereto
to reflect the transfer.
SECTION
12. Admission
of Additional Members. The
admission of additional or substitute Members to the Company shall be
accomplished by the amendment of this Agreement, including Exhibit B, in
accordance with the provisions of Section 15(b), pursuant to which amendment
each additional or substitute Member shall agree to become bound by this
Agreement.
SECTION
13. Tax
Matters.
As of
the date of this Agreement, the Company is a single-owner entity for United
States federal tax purposes. So long as the Company is a single-owner entity
for
federal income tax purposes, it is intended that for federal, state and local
income tax purposes the Company be disregarded as an entity separate from its
owner for income tax purposes and its activities be treated as a division of
such owner. In the event that the Company has two or more Members for federal
income tax purposes, it is intended that (i) the Company shall be treated as
a
partnership for federal, state and local income tax purposes, and the Members
shall not take any position or make any election, in a tax return or otherwise,
inconsistent therewith and (ii) this Agreement will be amended to provide for
appropriate book and tax allocations pursuant to subchapter K of the Internal
Revenue Code of 1986, as amended.
SECTION
14. Exculpation
and Indemnification.
(a) Exculpation.
Neither
the Members, the Manager, the directors of the Company, the officers of the
Company, their respective affiliates, nor any person who at any time shall
serve, or shall have served, as a director, officer, employee or other agent
of
any such Members, Manager, directors, officers, or affiliates and who, in such
capacity, shall engage, or shall have engaged, in activities on behalf of the
Company (a "Specified
Agent")
shall
be liable, in damages or otherwise, to the Company or to any Member for, and
neither the Company nor any Member shall take any action against such Members,
Manager, directors, officers, affiliates or Specified Agent, in respect of
any
loss which arises out of any acts or omissions performed or omitted by such
person pursuant to the authority granted by this Agreement, or otherwise
performed on behalf of the Company, if such Member, Manager, director, officer,
affiliate, or Specified Agent, as applicable, in good faith, determined that
such course of conduct was in the best interests of the Company and within
the
scope of authority conferred on such person by this Agreement or approved by
the
Manager. Each Member shall look solely to the assets of the Company for return
of such Member's investment, and if the property of the Company remaining after
the discharge of the debts and liabilities of the Company is insufficient to
return such investment, each Member shall have no recourse against the Company,
the other Members or their affiliates, except as expressly provided herein;
provided, however, that the foregoing shall not relieve any Member or the
Manager of any fiduciary duty, duty of care or duty of fair dealing to the
Members that it may have hereunder or under applicable law.
(b) Indemnification.
In any
threatened, pending or completed claim, action, suit or proceeding to which
a
Member, a Manager, a director of the Company, any officer of the
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Company,
their respective affiliates, or any Specified Agent was or is a party or
is
threatened to be made a party by reason of the fact that such person is or
was
engaged in activities on behalf of the Company, including without limitation
any
action or proceeding brought under the Securities Act of 1933, as amended,
against a Member, a Manager, a director of the Company, any officer of the
Company, their respective affiliates, or any Specified Agent relating to
the
Company, the Company shall to the fullest extent permitted by law indemnify
and
hold harmless the Members, Manager, directors of the Company, officers of
the
Company, their respective affiliates, and any such Specified Agents against
losses, damages, expenses (including attorneys' fees), judgments and amounts
paid in settlement actually and reasonably incurred by or in connection with
such claim, action, suit or proceeding; provided,
however,
that
none of the Members, Managers, directors of the Company, officers of the
Company, their respective affiliates or any Specified Agent shall be indemnified
for actions constituting bad faith, willful misconduct, or fraud. Any act
or
omission by any such Member, Manager, director, officer, or any such affiliate
or Specified Agent, if done in reliance upon the opinion of independent legal
counsel or public accountants selected with reasonable care by such Member,
Manager, director, officer, or any such affiliate or Specified Agent, as
applicable, shall not constitute bad faith, willful misconduct, or fraud
on the
part of such Member, Manager, director, officer, or any such affiliate or
Specified Agent.
(c) No
Presumption.
The
termination of any claim, action, suit or proceeding by judgment, order or
settlement shall not, of itself, create a presumption that any act or failure
to
act by a Member, a Manager, a director of the Company, any officer of the
Company, their respective affiliates or any Specified Agent constituted bad
faith, willful misconduct or fraud under this Agreement.
(d) Limitation
on Indemnification.
Any
such indemnification under this Section 14 shall be recoverable only out of
the assets of the Company and not from the Members.
(e) Reliance
on the Agreement.
To the
extent that, at law or in equity, a Member, Manager, director of the Company,
officer of the Company or any Specified Agent has duties (including fiduciary
duties) and liabilities relating thereto to the Company or to any Member or
other person bound by this Agreement, such Member, Manager, director, officer
or
any Specified Agent acting under this Agreement shall not be liable to the
Company or to any Member or other person bound by this Agreement for its good
faith reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Member, Manager, director of the Company, officer of the Company or any
Specified Agent otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Member,
Manager, director or officer or any Specified Agent.
SECTION
15. Miscellaneous.
(a) Certificate
of Limited Liability Company Interest.
A
Member's limited liability company interest may be evidenced by a certificate
of
limited liability company interest executed by the Manager or an officer in
such
form as the Manager may approve; provided that such certificate of limited
liability company interest shall not bear a legend
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that
causes such limited liability company interest to constitute a security under
Article 8 (including Section 8-103) of the Uniform Commercial Code as enacted
and in effect in the State of Delaware, or the corresponding statute of any
other applicable jurisdiction.
(b) Amendment.
The
terms and provisions set forth in this Agreement may be amended, and compliance
with any term or provision set forth herein may be waived, only by a written
instrument executed by each Member. No failure or delay on the part of any
Member in exercising any right, power or privilege granted hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise thereof
or
the exercise of any other right, power or privilege granted
hereunder.
(c) Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the Members and
their respective successors and assigns.
(d) Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware, without regard to any conflicts of law principles that
would require the application of the laws of any other
jurisdiction.
(e) Severability.
In the
event that any provision contained in this Agreement shall be held to be
invalid, illegal or unenforceable for any reason, the invalidity, illegality
or
unenforceability thereof shall not affect any other provision
hereof.
(f) Multiple
Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(g) Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties hereto with respect
to
the subject matter hereof and supersedes and replaces any prior or
contemporaneous understandings. This Agreement amends and restates the Amended
and Restated Limited Liability Company Agreement of the Company dated as of
April 29, 1999.
(h) Relationship
between the Agreement and the Act.
Regardless of whether any provision of this Agreement specifically refers to
particular Default Rules (as defined below), (i) if any provision of this
Agreement conflicts with a Default Rule, the provision of this Agreement
controls and the Default Rule is modified or negated accordingly, and (ii)
if it
is necessary to construe a Default Rule as modified or negated in order to
effectuate any provision of this Agreement, the Default Rule is modified or
negated accordingly. For purposes of this Section 15(h), “Default
Rule”
shall
mean a rule stated in the Act which applies except to the extent it may be
negated or modified through the provisions of a limited liability company’s
Limited Liability Company Agreement.
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IN
WITNESS WHEREOF, the party has caused this Agreement to be duly executed on
the
date first above written.
CHARTER
COMMUNICATIONS, LLC, a Delaware limited liability company
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:Vice
President
Accepting
its appointment as the Company's Manager subject to the provisions of this
Agreement, approving the amendment and restatement of the prior limited
liability company agreement by this Agreement, and agreeing to be bound by
this
Agreement:
CHARTER
COMMUNICATIONS, INC., a Delaware corporation
By:
/s/▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Vice President
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EXHIBIT
A
Director
▇▇▇▇
▇▇▇▇▇
EXHIBIT
B
Member
Charter
Communications, LLC