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 CCO
NR Holdings, LLC, a Delaware limited liability company (“Charter”), as the sole
member of CC V Holdings, LLC, a Delaware limited liability company (the
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
October 21, 1998; and
WHEREAS, simultaneously with the execution hereof, (i) Charter
Communications Holdings, LLC, a Delaware limited liability company
(“Holdings”), the sole member of the Company prior to giving effect to this
Agreement, is transferring its entire limited liability company interest in the
Company to Charter, (ii) Charter is being admitted to the Company as a member
in respect of such limited liability company interest, (iii) immediately after
the admission of Charter pursuant to clause (ii) above, Holdings is deemed
withdrawn from the Company, and (iv) the Company is continuing without
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 “CC V Holdings, 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 Corporation Service Company, 2711
Centerville Road, Suite 400, Wilmington, Delaware 19808. The name and address
of the registered agent for
service of process on the Company in the State of Delaware shall be
Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington,
Delaware 19808. 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 12405 Powerscourt Drive, St. Louis, MO 63131. 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
(f) Certificate of Formation. The execution of the Certificate of
Formation by Barbara A. Beach and the Certificate of Amendment by Linda C.
Reisner and the filing thereof on October 21, 1998 in the office of the
Secretary of State of the State of Delaware are hereby ratified, confirmed and
(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.
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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 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
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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,
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
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
(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:
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(1) issue limited liability company interests in the Company to any
(2) change or reorganize the Company into any other legal form;
(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
(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
(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;
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(10) materially change any of the tax reporting positions or elections of
(11) 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);
(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,
(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 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.
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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 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
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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 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
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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
(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
(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 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
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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 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) all or a portion of its limited liability company
interest in the Company to another Member. Upon the transfer of a Member’s
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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
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
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 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
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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
(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
(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
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 that causes such limited liability
company interest to constitute a security under Article 8
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(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
(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
(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 First Amended and Restated Limited Liability Company Agreement
of the Company dated as of November 15, 1999, as amended.
(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
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IN WITNESS WHEREOF, the party has caused this Agreement to be duly
executed on the date first above written.
CCO NR HOLDINGS, LLC, a Delaware limited
/s/ Marcy A. Lifton
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