SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CHARTER COMMUNICATIONS HOLDINGS, LLC (a Delaware Limited Liability Company)
Exhibit
10.21
SECOND
AMENDED AND RESTATED
LIMITED
LIABILITY COMPANY
AGREEMENT
OF
CHARTER
COMMUNICATIONS HOLDINGS, LLC
(a
Delaware Limited Liability Company)
This
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CHARTER
COMMUNICATIONS HOLDINGS, LLC (this "Agreement"), is entered into as of October
31, 2005 by CCHC, LLC, a Delaware limited liability company ("CCHC"), the sole
member of CHARTER COMMUNICATIONS HOLDINGS, LLC, a Delaware limited liability
company (the "Company").
W
I T N E
S S E T H:
WHEREAS,
the Company is governed by that certain Amended and Restated Limited Liability
Company Agreement dated as of October 30, 2001, as amended (the "Prior
Agreement"); and
WHEREAS,
CCHC, as the sole member of the Company, wishes to amend and restate the Prior
Agreement to reflect the current membership of the Company; and
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) Effective
as of the date and time of filing of the Certificate of Formation (the
"Certificate") 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. Except as expressly provided herein, the rights and
obligations of the members in connection with the regulation and management
of
the Company shall be governed by the Delaware Limited Liability Company Act
(6
Del.C. § 18-101, et. seq.) (the "Delaware Limited Liability Company
Act").
(b) The
name
of the Company shall be "CHARTER COMMUNICATIONS HOLDINGS, LLC." The business
of
the Company shall be conducted under such name or any other name or names that
the Manager shall determine from time to time.
(c) 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) 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) The
term
of the Company commenced on the date of the filing of the Certificate in the
office of the Secretary of State of the State of Delaware, and will continue
and
have perpetual existence until dissolved and its affairs wound up in accordance
with the provisions of this Agreement.
(f) The
execution of the Certificate and the filing thereof in the office of the
Secretary of State of the State of Delaware, are hereby ratified, confirmed
and
approved by the members.
(g) 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 Delaware Limited Liability Company 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.
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 Delaware Limited
Liability Company Act and engaging in any and all activities necessary,
convenient, desirable or incidental to the foregoing.
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 Delaware Limited Liability Company
Act.
SECTION
4. Management.
(a) Management
by Managers.
CCHC,
as the sole member of the Company, hereby elects Charter Communications, Inc.
("CCI"), a Delaware corporation, or its successor-in-interest, as the Company's
Manager. CCI shall be the Manager until the member elects otherwise. No
additional person may be elected as Manager without the approval of the member.
Except as otherwise required by applicable law and as provided below with
respect to the Board of Directors, 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 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
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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.
Except
as
otherwise required by applicable law, CCI, in its capacity as 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.
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.
(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 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 Delaware Limited Liability
Company Act and as are not by statute, by the Certificate, or by this Agreement
directed or required to be exercised or done by the Manager. The rights and
duties of the members of the Board may not be assigned or delegated to any
person or entity.
ii) Except
as
otherwise provided herein, members of the Board 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 shall initially be two (2), which number may be changed
from
time to time by the Manager. The initial directors shall be as set forth on
Exhibit A hereto.
iv) Each
director shall be appointed by the Manager and shall serve in such capacity
until the earlier of his resignation, removal 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.
The
affirmative vote, approval, consent or ratification of the Manager shall be
required to:
i) alter
the
primary purposes of the Company as set forth in Section 2;
ii) issue
membership interests in the Company to any Person and admit such Person as
a
member;
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iii) do
any
act in contravention of this Agreement or any resolution of the members, or
cause the Company to engage in any business not authorized by the Certificate
or
the terms of this Agreement or that which would make it impossible to carry
on
the usual course of business of the Company;
iv) 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;
v) change
or
reorganize the Company into any other legal form;
vi) amend
this Agreement;
vii) approve
a
merger or consolidation with another Person;
viii) sell
all
or substantially all of the assets of the Company;
ix) change
the status of the Company from one in which management is vested in the Manager
to one in which management is vested in the members or in any other manager,
other than as may be delegated to the Board and the officers
hereunder;
x) possess
any Company property or assign the rights of the Company in specific Company
property for other than a Company purpose;
xi) operate
the Company in such a manner that the Company becomes an "investment company"
for purposes of the Investment Company Act of 1940;
xii) 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;
xiii) 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;
xiv) materially
change any of the tax reporting positions or elections of the
Company;
xv) make
or
commit to any expenditures which, individually or in the aggregate, exceed
or
are reasonably expected to exceed the Company's total budget (as approved by
the
Manager) by the greater of 5% of such budget or Five Million Dollars
($5,000,000); or
xvi) 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, (ii) any indebtedness
to
(or guarantee of indebtedness of) any company controlled by or under common
control with the Company ("Intercompany Indebtedness"), (iii) the pledge of
any
assets to support any otherwise
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permissible
indebtedness of the Company or any Intercompany Indebtedness or (iv)
indebtedness necessary to finance a transaction or purchase approved by the
Manager.
(d) Board
of Director 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 member of the Board
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 majority of the Common Units held by all
members. Notice of a special meeting may be given by facsimile.
iii) Telephonic
Meetings.
Members
of the Board 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.
Subject
to the provisions of Section 4(c), 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 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 of Formation 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 members of the Board consent thereto in writing
and such written consent is filed with the minutes of proceedings of the
Board.
(e) Board's
Duty of Care.
The
Board'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 corporate director of like position would exercise under
similar circumstances, in the manner it reasonably believes to be in the best
interests of the Company. In discharging its duties, the Board shall not be
liable to the Company or to any member for any mistake or error in judgment
or
for any act or omission believed in good faith to be within the scope of
authority conferred by this Agreement or approved by the Manager.
SECTION
5. Officers.
(a) Officers.
The
officers shall be a President, a Treasurer and a Secretary, and such other
additional officers, including a Chairman of the Board, one or more Chairmen,
Vice Presidents, Assistant Secretaries and Assistant Treasurers as the Board,
the Manager or the
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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 be elected by and shall hold office
at
the pleasure of the Board or the Manager. The Board, the Manager or the
President may elect such other officers and agents as it shall deem desirable,
who shall hold office at the pleasure of the Board, the Manager or the
President, and who shall have such authority and shall perform such duties
as
from time to time shall be prescribed by the Board, the Manager or the
President.
(c)
Removal.
Any
officer may be removed by the affirmative vote of the Manager or the affirmative
vote 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 President,
the Treasurer or the Secretary may be removed by 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 preside
at
all meetings of the members and directors; shall have general supervision and
active management of the business and finances of the Company; 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 Board
or
Manager 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, any Chairman (if any) or, if there is no Chairman,
the most senior available officer appointed by the Board or the Manager 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 him
or
her and shall exercise such powers as may be granted to him or her by the
Manager, the Board or by the President of the Company. In the absence of
direction by the Board, the Manager or the President to the contrary, the any
Senior Vice President shall have the power to vote all securities held by the
Company and to issue proxies therefor.
iii) The
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 directors' meetings, the number of shares present
or
represented at shareholders'
6
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) The
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) The
Chairman.
The
Chairman, 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.
SECTION
6. Members.
(a) The
members of the Company shall be as set forth on Exhibit B hereto as amended
from
time to time. At the date hereof, CCHC is the sole member. 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.
(b) No
member
shall be liable for the debts, liabilities and obligations of the Company,
including any debts, liabilities and obligations under a judgment, decree or
order of a court.
(c) Neither
a
member nor any of its affiliates, partners, members, directors, managers,
officers or employees shall be expressly or impliedly restricted or prohibited
by virtue of this Agreement or the relationships created hereby from engaging
in
other activities or business ventures of any kind or character whatsoever.
Except as otherwise agreed in writing, each member and its affiliates, partners,
members, 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.
SECTION
7. Percentage
Interests. As
of the
date hereof, the Percentage Interests or number of membership units held by
each
member shall be as set forth in Exhibit B attached hereto. So long as CCHC
is
the sole member of the Company, CCHC'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. Each such distribution,
including liquidating distributions, shall be divided among the members in
accordance with their Percentage Interests.
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SECTION
9. Allocations.
The
profits and losses of the Company shall be allocated to the members in
accordance with their Percentage Interests or number of membership
units.
SECTION
10. Dissolution;
Winding Up.
(a) The
Company shall be dissolved upon (i) the adoption of a plan of dissolution by
the
members or (ii) the occurrence of any event required to cause the dissolution
of
the Company under the Delaware Limited Liability Company Act.
(b) 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 Delaware Limited Liability Company
Act.
(c) 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 Delaware Limited Liability Company Act. In winding
up
the business and affairs of the Company, the Manager may 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.
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 members to the Company shall be accomplished by the
amendment of this Agreement and, if required by the Delaware Limited Liability
Company Act.
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,
8
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) Neither
the members, the Manager, the directors, their affiliates, nor any person who
at
any time shall serve, or shall have served, as a director, officer, employee
or
other agent of any member or any such affiliate 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, their affiliates or any Specified Agent, in respect of
any
loss which arises out of any acts or omissions performed or omitted by it
pursuant to the authority granted by this Agreement, or otherwise performed
on
behalf of the Company, if such member, such affiliate, or such Specified Agent,
as applicable, in good faith, determined that such course of conduct was in
the
best interests of the Company. Each member shall look solely to the assets
of
the Company for return of his, her or its 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 of any fiduciary duty or duty of fair dealing to the other
members that it may have under applicable law.
(b) In
any
threatened, pending or completed claim, action, suit or proceeding to which
a
member, any of such member's 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, any of such member's affiliates, or any Specified
Agent relating to the Company, the Company shall indemnify and hold harmless
the
members, any such 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, any
of
their affiliates or any Specified Agent shall be indemnified for actions
constituting bad faith, willful misconduct, or fraud. Any act or omission by
any
member, any of such member's affiliates or any Specified Agent, if done in
reliance upon the opinion of independent legal counsel or public accountants
selected with reasonable care by such member, such affiliate or such Specified
Agent, as applicable, shall not constitute bad faith, willful misconduct, or
fraud on the part of such member, affiliate or Specified Agent.
(c) 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, such member's
affiliate or any Specified Agent constituted bad faith, willful misconduct
or
fraud under this Agreement.
(d) Any
such
indemnification under this Section 14 shall be recoverable only out of the
assets of the Company and not from the members.
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SECTION
15. Miscellaneous.
(a) If
the
Manager, the Board or any officer of the Company executes a written consent
or
approval or otherwise takes an action on behalf of the Company prior to such
person's appointment by or as set forth in this Agreement, then such consent,
approval or action shall be effective and binding on the Company so long as
the
effective date or time of such consent, approval or action is after the date
or
time on which such person has been appointed in the manner set forth in this
Agreement.
(b) 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.
(c) 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.
(d) This
Agreement shall be binding upon and inure to the benefit of the members and
their respective successors and assigns.
(e) 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.
(f) 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.
(g) This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
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IN
WITNESS WHEREOF, the party has caused this Agreement to be duly executed on
the
date first above written.
CCHC,
LLC
_s/
▇▇▇▇▇▇▇ Placke_
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Title:
Assistant Corporate Secretary
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EXHIBIT
A
Directors
1. ▇▇
▇▇▇▇▇
▇▇▇▇▇▇
2. ▇▇▇▇
▇▇▇▇
EXHIBIT
B
Member
Name Number
of Units
CCHC,
LLC 217,585,246.1