Exhibit 3.1
AMENDED AND RESTATED OPERATING AGREEMENT
OF
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
THIS AMENDED AND RESTATED OPERATING AGREEMENT of INSIGHT COMMUNICATIONS OF
CENTRAL OHIO, LLC is entered into effective as of August 8, 2000, by and among
Coaxial Communications of Central Ohio, Inc., an Ohio corporation, Insight
Holdings of Ohio, LLC, a Delaware limited liability company, Xxxxx Xxxxxxxxxxx,
an individual resident of the State of Florida, Xxxxxx XxXxxxxxxxxx, an
individual resident of the State of Florida, and X. Xxxxxxx XxXxx, an individual
resident of the State of Ohio, and Insight Communications Company, L.P., a
Delaware limited partnership, as Manager, and amends and restates the Operating
Agreement dated as of August 21, 1998.
RECITALS
Xxxxx Xxxxxxxxxxx is the sole member of Coaxial LLC, a Delaware limited
liability company, Xxxxxx XxXxxxxxxxxx is the sole member of Coaxial DJM LLC, a
Delaware limited liability company, and X. Xxxxxxx XxXxx is the sole member of
Coaxial DSM LLC, a Delaware limited liability company. The Shareholders
collectively own all the issued and outstanding shares of Central.
Insight and the Shareholders have entered into certain Management
Agreements, providing for the management by Insight of the Shareholders. Through
its management of the Shareholders, Insight possesses the right to direct the
business and affairs of the Shareholders, subject to certain exceptions.
Central and Insight desire to enter into this Operating Agreement to
provide for the formation and organization of the Company, the allocation of
profits and losses, cash flow, and other proceeds of the Company among the
Members, the respective rights, obligations, and interests of the Members to
each other and to the Company, and certain other matters. Central, Insight, and
the Principals further desire to set forth in this Operating Agreement certain
agreements and understandings among them concerning the ownership and operation
of the Company and Central. The parties intend, therefore, that this Operating
Agreement will constitute both a "limited liability company agreement" among the
Members for purposes of the Act as well as an agreement among all the parties
with respect to the matters set forth herein.
Central's Common Interest in the Company was repurchased by the Company as
of the date hereof.
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The Members wish to appoint Insight Communications Company, L.P. as Manager
of the Company and Insight Communications Company, L.P. is willing to serve as
Manager of the Company.
AGREEMENT
In consideration of the mutual covenants and agreements set forth in this
Agreement, the parties agree as follows.
SECTION 1. DEFINITIONS
1.1 Terms Defined in this Section.
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The following terms, as used in this Agreement, have the meanings set forth
in this Section:
"Act" means the Delaware Limited Liability Company Act, as amended from
time to time.
"Adjusted Capital Account" means with respect to a Member, the balance in
such Member's Capital Account as of the end of the relevant Fiscal Year, after:
(i) crediting to such Capital Account any amounts that such Member is
obligated to restore to the Company pursuant to Treasury Regulations Section
1.704-1(b)(2)(ii)(c) or is deemed to be obligated to restore pursuant to the
penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-
2(i)(5); and
(ii) debiting from such Capital Account the items described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5),
and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account is intended to comply
with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with such Person. For purposes of this
definition and the definition of "Subsidiary," the term "controls" means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise. The terms "controlled by" and "under
common control with" have meanings corresponding to the meaning of "controls."
"Agreement" means this Operating Agreement, as it may be amended from time
to time.
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"Assignee" means a Person that has acquired a beneficial interest in a
Membership Interest in accordance with the provisions of Section 9 but has not
become a Member in accordance with the provisions of Section 9.3.
"Borrowers" means, with respect to the Senior Debt, Central and Phoenix
Associates, and, with respect to the Subordinated Debt, the Shareholders and
Coaxial Financing Corp., a Delaware corporation.
"Business Day" means any day (other than a day that is a Saturday or
Sunday) on which banks are permitted to be open for business in the State of New
York.
"Capital Account" means an account to be maintained for each Member in
accordance with the Code, which, subject to any contrary requirements of the
Code, shall equal (i) the amount of money contributed by such Member to the
Company, if any; (ii) the fair market value without regard to Code Section
7701(g) of property, if any, contributed by such Member to the Company (net of
liabilities secured by such contributed property that the Company or the other
Member is considered to assume under Code Section 752); (iii) allocations to
such Member of Net Profit pursuant to Section 5; and (iv) other additions made
in accordance with the Code; and decreased by (i) the amount of cash distributed
to such Member by the Company; (ii) allocations to such Member of Net Loss
pursuant to Section 5; (iii) the fair market value without regard to Code
Section 7701(g) of property distributed to such Member by the Company (net of
liabilities secured by such distributed property that such Member is considered
to assume or is considered to take under Code Section 752); and (iv) other
deductions made in accordance with the Code. The Members' respective Capital
Accounts shall be determined and maintained at all times in accordance with all
the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv).
"Capital Contributions" means, with respect to each Member, the amount of
money and the net fair market value of property contributed by such Member to
the Company pursuant to this Agreement.
"Central" means Coaxial Communications of Central Ohio, Inc., an Ohio
corporation.
"Closing" and "Closing Date" have the meanings assigned to them in the
Contribution Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any subsequent federal law of similar import, and, to the extent
applicable, the Treasury Regulations.
"Common Interest" means that portion of the Membership Interest of a Member
other than the Preferred A Interest and the Preferred B Interest, including that
portion of the Membership Interest of a Member having the rights and privileges
specified in this Agreement as pertaining to the Common Interest.
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"Company" means the limited liability company formed by the Members
pursuant to this Agreement.
"Contribution Agreement" means the Contribution Agreement, dated as of June
30, 1998, between Central and Insight Communications Company, L.P. (which
assigned its rights and delegated its obligations thereunder to Insight), as
amended by amendments thereto dated as of July 15, 1998 and as of August 21,
1998, and as it may hereafter be amended from time to time in accordance with
its terms.
"Depreciation" means, for each Fiscal Year, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with
respect to an asset for such Fiscal Year, except that if the Gross Asset Value
of an asset differs from its adjusted basis for federal income tax purposes at
the beginning of such Fiscal Year, Depreciation shall be determined in the
manner described in Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3).
"Discount Notes" means the Senior Discount Notes issued by Coaxial LLC and
Coaxial Financing Corp., a Delaware corporation, concurrently with the Closing.
"Distributable Cash" means, on any Guaranteed Payment Date, Preferred A
Distribution Date, or Preferred B Distribution Date, (a) the total amount on
such date of the Company's cash, cash equivalents, and other assets, such as
marketable securities, that can readily be converted into cash, plus (b) the
amount then available to be borrowed by the Company under any existing credit
facility the proceeds of which may be used to make distributions to Members,
plus (c) the amount of any discretionary capital expenditures made by the
Company during the period since the preceding Guaranteed Payment Date, Preferred
A Distribution Date, or Preferred B Distribution Date, as applicable, less (d)
any portion of such amounts that the Company is then prohibited from
distributing to its Members pursuant to Section 18-607(a) of the Act.
"Fiscal Year" means the Company's fiscal year, as specified in Section
2.11.
"Gross Asset Value" means with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a Member
to the Company shall be the gross fair market value of such asset, as agreed to
by the Members;
(ii) The Gross Asset Values of all assets of the Company shall be
adjusted to equal their respective gross fair market values, as determined by
the Manager, as of the following times: (A) the acquisition of an additional
interest in the Company by any new or existing Member in exchange for more than
a de minimis Capital Contribution; (B) the distribution by the Company to a
Member of more than a de minimis amount of property (including cash) as
consideration for an interest in the Company; and (C) the liquidation of the
Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g);
provided, however, that the adjustments pursuant to clauses
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(A) and (B) above shall be made only if and to the extent that the Manager
determines that such adjustments are necessary or appropriate to reflect the
relative economic interests of the Members in the Company;
(iii) The Gross Asset Value of any asset of the Company distributed to
any Member shall be the gross fair market value of such asset on the date of
distribution, as agreed to by the Members or, in the absence of an agreement by
the Members, as determined by the Manager; and
(iv) The Gross Asset Value of the assets of the Company shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and
Section 5.3; provided, however, that Gross Asset Value shall not be adjusted
pursuant to this paragraph (iv) to the extent that the Manager determines that
an adjustment pursuant to paragraph (ii) of this definition is necessary or
appropriate in connection with a transaction that would otherwise result in an
adjustment pursuant to this paragraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to paragraph (i), (ii), or (iv) of this definition, the Gross Asset
Value of such asset shall thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of computing Net Profit and Net
Loss.
"Insight" means Insight Holdings of Ohio, LLC, a Delaware limited liability
company, or any other Person that succeeds to its Membership Interest and is
admitted as a Member in accordance with the provisions of this Agreement.
"Lien" has the meaning specified in the Contribution Agreement.
"Loan Document" means any agreement or other instrument, including any note
or indenture, evidencing all or any part of the Senior Debt or the Subordinated
Debt or pursuant to which all or any part of the Senior Debt or the Subordinated
Debt exists or is outstanding.
"Management Return" means, for each Management Return Payment Date (or for
the date on which a distribution pursuant to Section 10.2(d)(iii)(D) is made),
the product of (x) three percent and (y) the gross revenues received by the
Company from services or goods sold to subscribers or other customers of the
Company (including subscriber fees, pay channel fees, leased channel fees,
installation fees, disconnection fees, launch or incentive fees, and advertising
revenue, but excluding extraordinary or non-recurring income, any customer
deposits (unless forfeited to the Company), interest, dividends, royalties, and
other investment income, and proceeds of the sale of any capital assets or any
financing), determined in accordance with generally accepted accounting
principles consistently applied, during the period beginning on the preceding
Management Return Payment Date (or, in the case of the first Management Return
Payment Date, the Closing Date) and ending
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on the day prior to such Management Return Payment Date (or, in the case of a
distribution pursuant to Section 10.2(d)(iii)(D), the date on which such
distribution is made).
"Manager" means Insight Communications Company, L.P. and any new Manager
appointed in accordance with the provisions of this Agreement.
"Member" means Central, Insight, and any other Person who may hereafter
become a Member pursuant to this Agreement, but does not include any of the
Principals (except to the extent that any of the Principals hereafter becomes a
Member pursuant to this Agreement).
"Membership Interest" means the entire ownership interest of a Member in
the Company at any particular time, including all of its rights and obligations
hereunder and under the Act, which may include one or more of a Common Interest,
a Preferred A Interest, or a Preferred B Interest.
"Net Profit" and "Net Loss" means for each Fiscal Year or other period, an
amount equal to the Company's taxable income or loss for such year or period,
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
(i) Any income of the Company that is exempt from federal income tax
and not otherwise taken into account in computing Net Profit or Net Loss shall
be added to such taxable income or loss;
(ii) Any expenditures of the Company described in Code Section
705(a)(2)(B), or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and which are not otherwise
taken into account in computing such Net Profit or Net Loss, shall be subtracted
from such taxable income or loss;
(iii) If the Gross Asset Value of any asset of the Company is adjusted
pursuant to paragraph (ii) or (iii) of the definition of Gross Asset Value, the
amount of such adjustment shall be taken into account as gain or loss from the
disposition of such asset for purposes of computing Net Profit or Net Loss;
(iv) Gain or loss resulting from any disposition of property by the
Company with respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the Gross Asset Value of the property
disposed of, notwithstanding that the adjusted tax basis of such property
differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such Fiscal Year or other period;
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(vi) Notwithstanding anything to the contrary in the definition of the
terms "Net Profit" and "Net Loss," any items that are specially allocated
pursuant to Section 5.2 of this Agreement shall not be taken into account in
computing Net Profit or Net Loss; and
(vii) For purposes of this Agreement, any deduction for a loss on a
sale or exchange of property that is disallowed to the Company under Code
Section 267(a)(1) or Code Section 707(b) shall be treated as a Code Section
705(a)(2)(B) expenditure.
"Nonrecourse Deductions" means losses, deductions, or Code Section
705(a)(2)(B) expenditures attributable to Partnership Nonrecourse Liabilities.
The amount of Nonrecourse Deductions shall be determined pursuant to Treasury
Regulations Section 1.704-2(c), which provides generally that the amount of
Nonrecourse Deductions for a Fiscal Year shall equal the net increase, if any,
in Partnership Minimum Gain during that Fiscal Year, reduced (but not below
zero) by the aggregate distributions made during that Fiscal Year of proceeds of
a Nonrecourse Liability that are allocable to an increase in Partnership Minimum
Gain.
"Nonrecourse Liability" has the meaning set forth in Treasury Regulations
Section 1.752-1(a)(2).
"Partner Nonrecourse Debt" has the meaning set forth in Treasury
Regulations Section 1.704-2(b)(4), which generally defines "Partner Nonrecourse
Debt" as any liability of the Company to the extent such liability is
nonrecourse and a Member (or related person) bears the economic risk of loss
pursuant to Treasury Regulations Section 1.752-2.
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Treasury Regulations Section 1.704-2(i)(2), which generally defines "Partner
Nonrecourse Debt Minimum Gain" as the Partnership Minimum Gain attributable to
Partner Nonrecourse Debt. The amount of Partner Nonrecourse Debt Minimum Gain
shall be determined in accordance with Treasury Regulations Section 1.704-
2(i)(3).
"Partner Nonrecourse Deductions" means losses, deductions, or Code Section
705(a)(2)(B) expenditures attributable to Partner Nonrecourse Debt. The amount
of Nonrecourse Deductions shall be determined pursuant to Treasury Regulations
Section 1.704-2(i)(2), which provides generally that the amount of Partner
Nonrecourse Deductions for a Fiscal Year shall equal the net increase, if any,
in Partner Nonrecourse Debt Minimum Gain during that Fiscal Year, reduced (but
not below zero) by the proceeds of Partner Nonrecourse Debt distributed during
the Fiscal Year to the Member bearing the economic risk of loss for such Partner
Nonrecourse Debt that are both attributable to such Partner Nonrecourse Debt and
allocable to an increase in Partner Nonrecourse Debt Minimum Gain.
"Partnership Minimum Gain" means the excess of the Partnership Nonrecourse
Liabilities over the adjusted tax basis of property securing such Liabilities.
The amount of Partnership Minimum Gain shall be determined in accordance with
Treasury Regulations Section 1.704-2(d),
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which provides generally that the amount of Partnership Minimum Gain shall be
determined by first computing for each Nonrecourse Liability any gain the
Company would realize if it disposed of the property subject to that Nonrecourse
Liability for no consideration other than full satisfaction of such Nonrecourse
Liability, and then aggregating the separately computed gains.
"Percentage Interest" means, with respect to a Member, the number of Units
assigned to the Common Interest held by such Member divided by the aggregate
number of Units assigned to the Common Interests held by all of the Members.
"Permitted Liens" has the meaning specified in the Contribution Agreement.
"Person" means an individual, corporation, limited liability company,
association, general partnership, limited partnership, limited liability
partnership, joint venture, trust, estate, or other entity or organization.
"Phoenix Associates" means Phoenix Associates, a Florida general
partnership.
"Preferred A Capital Amount" means, at any time, the product of (A)
$140,000,000 times (B) the percentage of the Preferred A Interest that as of
such time has not been redeemed pursuant to Section 4.3.
"Preferred B Capital Amount" means, at any time, the product of (A) the sum
of (i) $30,000,000 and (ii) the cumulative increases in the Preferred B Capital
Amount made pursuant to Section 4.1(a)(iii), times (B) the percentage of the
Preferred B Interest that as of such time has not been redeemed pursuant to
Section 4.3.
"Preferred A Interest" means that portion of the Membership Interest of
Central (or any other Person that succeeds to that portion of the Membership
Interest of Central) represented by a Capital Account balance of $140,000,000 as
of the Closing and having the rights and privileges specified in this Agreement
as pertaining to the Preferred A Interest.
"Preferred B Interest" means that portion of the Membership Interest of
Central (or any other Person that succeeds to that portion of the Membership
Interest of Central) represented by a Capital Account balance of $30,000,000 as
of the Closing and having the rights and privileges specified in this Agreement
as pertaining to the Preferred B Interest.
"Preferred A Preference Amount" means, for each Preferred A Distribution
Date (or for the date on which a distribution pursuant to Section
10.2(d)(iii)(B) is made), an amount equal to the excess of (A) the product of
(x) the Preferred A Rate and (y) the Preferred A Capital Amount, computed for
the period since the later of the Closing Date or the preceding Preferred A
Distribution Date on the basis of a 360-day year of twelve 30-day months, over
(B) with respect to the first Preferred A Distribution Date after the date of
this Agreement, a pro rata portion of the Guaranteed Payment Amount, based on
the ratio of the number of days between the Closing Date and such date
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to the number of days between the preceding Guaranteed Payment Date (although
prior to the Closing Date) and such date, computed on the basis of a 360-day
year of twelve 30-day months, and, with respect to any other Preferred A
Distribution Date, the Guaranteed Payment Amount.
"Preferred B Preference Amount" shall mean, for each Preferred B
Distribution Date (or for the date on which a distribution pursuant to Section
10.2(d)(iii)(C) is made), the product of (x) the Preferred B Rate and (y) the
Preferred B Capital Amount, computed for the period since the later of the
Closing Date or the preceding Preferred B Distribution Date on the basis of a
360-day year of twelve 30-day months.
"Principals" means Xxxxx Xxxxxxxxxxx, Xxxxxx XxXxxxxxxxxx, and X. Xxxxxxx
XxXxx, and their respective permitted successors and assigns, as provided in
Section 14.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means all obligations arising under the Senior Notes and
every subsequent amendment, modification, restructuring, extension, renewal, or
consolidation of any such obligations, and any obligation incurred in
refinancing or replacement of or substitution for any such obligations.
"Senior Notes" means the obligations of Central and Phoenix Associates,
originally incurred under that certain Credit Agreement, dated November 15,
1994, among Central, Phoenix Associates, certain other parties, and the lenders
named therein, as amended, as such obligations shall have been restructured in
connection with the purchase thereof concurrently with the Closing.
"Shareholders" means Coaxial LLC, a Delaware limited liability company,
Coaxial DJM LLC, a Delaware limited liability company, and Coaxial DSM LLC, a
Delaware limited liability company.
"Subordinated Debt" means all obligations arising under the Discount Notes
and the LLC Mirror Notes (as defined in the offering memorandum for the Discount
Notes) issued by Coaxial DJM LLC and Coaxial DSM LLC concurrently with the
Closing, and every subsequent amendment, modification, restructuring, extension,
renewal, or consolidation of any such obligations, and any obligation incurred
in refinancing or replacement of or substitution for any such obligations.
"Subsidiary" means any corporation, limited liability company, general
partnership, limited partnership, limited liability partnership, or joint
venture controlled by the Company.
"Tax Matters Member" means the Member designated pursuant to Section 6.3 as
the "tax matters partner" of the Company in accordance with Code Section
6231(a)(7).
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"Treasury Regulations" means the Income Tax Regulations, including
Temporary Regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Unit" means, for purposes of calculating a Member's Percentage Interest,
the value assigned to such Member's Common Interest in accordance with the
following provisions:
(i) in consideration for the Capital Contributions made pursuant to
Section 3.1(a), there has been assigned to the Common Interest issued to Insight
a number of Units equal to the product of 100,000 times a fraction, the
numerator of which is the sum of $10,000,000 plus the aggregate amount of any
Capital Contributions made by Insight pursuant to Section 2.1(d)(4)(A)(1) of the
Contribution Agreement and the denominator of which is $13,333,333;
(ii) in consideration for the Capital Contributions made pursuant to
Section 3.1(a), after giving effect to the issuance to Central of the Preferred
A Interest and the Preferred B Interest, there was assigned to the Common
Interest issued to Central 25,000 Units;
(iii) in consideration for any Capital Contribution made by any Person
pursuant to Section 2.1(d)(4)(A)(2) of the Contribution Agreement, there shall
be assigned to the Common Interest of such Person, effective as of the date of
this Agreement, a number of Units equal to the product of 100,000 times a
fraction, the numerator of which is the amount of all Capital Contribution made
by such Person pursuant to Section 2.1(d)(4)(A)(2) of the Contribution Agreement
and the denominator of which is $13,333,333; and
(iv) there shall be assigned to any other Common Interest issued
pursuant to Section 7.5, including any additional Common Interest issued to
Insight or Central, the number of Units required to be assigned to such Common
Interest under the terms of its issuance.
"Voting Interests" means, (i) at such time as (a) Central owns the
Preferred A Interest and the Preferred B Interest and (b) the Principals own,
directly or indirectly, the outstanding interests in Central, the Preferred A
Interest and the Preferred B Interest (which shall have, collectively, 30% of
the total voting power) and the Common Interests (which shall have,
collectively, 70% of the total voting power) and (ii) at any other time, the
Common Interests. Voting power shall be allocated to the Common Interest held by
a Member in proportion to the number of Units assigned to the Common Interest
held by such Member divided by the aggregate number of Units assigned to the
Common Interests held by all of the Members.
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1.2 Terms Defined Elsewhere in this Agreement.
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For purposes of this Agreement, the following terms have the meanings set
forth in the sections indicated:
Term Section
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AMT Liability Section 4.1(e)(iii)
April Distribution Section 4.1(a)(iv)
Estimated Tax Distributions Section 4.1(a)(iv)
Guaranteed Payment Amount Schedule III
Guaranteed Payment Date Schedule III
Indemnified Persons Section 11.1
Liquidator Section 10.2(b)
Management Return Payment Date Schedule III
Preferred A Distribution Date Schedule III
Preferred A Rate Schedule III
Preferred B Distribution Date Schedule III
Preferred B PIK Termination Date Schedule III
Preferred B Rate Schedule III
Regular Tax Liability Section 4.1(e)(ii)
Regulatory Allocations Section 5.2(f)
Secretary Section 6.3(c)
Secured Party Section 9.7
Tax Amount Section 4.1(e)
Transfer Section 9.1(a)
SECTION 2. THE COMPANY AND ITS BUSINESS
2.1 Formation.
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The Members agree to form the Company as a limited liability company
pursuant to the provisions of the Act. Except as provided in this Agreement, all
rights, liabilities, and obligations of the Members, both as between themselves
and with respect to Persons not parties to this Agreement, shall be as provided
in the Act, and this Agreement shall be construed in accordance with the
provisions of the Act. To the extent that the rights or obligations of any
Member are different by reason of any provision of this Agreement than they
would be in the absence of such provision, this Agreement shall, to the extent
permitted by the Act, control, except that no Member shall be personally liable
for obligations of the Company beyond the liability provided in the Act.
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2.2 Filing of Certificate of Formation.
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The Manager has caused a Certificate of Formation conforming with the Act
to be filed with the Secretary of State of Delaware. The Manager will cause the
Certificate of Formation to be filed or recorded in any other public office
where filing or recording is required or advisable. The Members and the Company
shall do, and continue to do, all other things that are required or advisable to
maintain the Company as a limited liability company existing pursuant to the
laws of the State of Delaware.
2.3 Company Name.
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The name of the Company shall be "Insight Communications of Central Ohio,
LLC." The business and operations of the Company may be conducted under that
name or any other name or names that the Manager may from time to time select.
The Company shall file any assumed name certificates and similar filings, and
any amendments thereto, that the Manager considers appropriate or advisable.
2.4 Term of the Company.
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The term of the Company commenced on the date of the filing of the
Certificate of Formation of the Company with the Secretary of State of Delaware
and shall continue until the Company is terminated pursuant to Section 10 of
this Agreement.
2.5 Purposes of the Company.
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The purposes of the Company are to do the following, directly or indirectly
through interests in one or more Subsidiaries:
(a) to engage in the business of acquiring, developing, owning, designing,
constructing, maintaining, operating, managing, and selling the cable television
systems and other assets contributed to the Company by Central pursuant to the
Contribution Agreement;
(b) to acquire, develop, own, design, construct, maintain, operate, manage,
and sell additional cable television systems;
(c) to acquire, develop, own, design, construct, maintain, operate, manage,
and sell, or invest in, businesses related to and ancillary to those referred to
above (including high-speed data service, Internet access, telephony services,
and other telecommunications and telephony-related investments or businesses,
and video wireless services and wireless communications services and other
wireless-related investments or businesses);
(d) to conduct other business of the type and character in which cable
television operators generally become involved;
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(e) to possess, transfer, mortgage, pledge, or otherwise deal in, and to
exercise all rights, powers, privileges, and other incidents of ownership or
possession with respect to securities or other assets held or owned by the
Company, and to hold securities or assets in the name of a nominee or nominees;
and
(f) to form and own one or more corporations, trusts, or partnerships (but
no entity so formed or owned, while it is a Subsidiary, may do what the Company
is prohibited by this Agreement from doing).
2.6 Authority of the Company.
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The Company shall be empowered and authorized to do all lawful acts and
things necessary, appropriate, proper, advisable, incidental to, or convenient
for the furtherance and accomplishment of its purposes. Without limiting the
foregoing, the Company shall be empowered and authorized, for itself or on
behalf of any Subsidiary, to the extent necessary, appropriate, proper,
advisable, incidental to, or convenient for the furtherance and accomplishment
of its purposes, to:
(a) construct, operate, maintain, improve, expand, buy, own, sell, convey,
assign, mortgage, refinance, rent, or lease real and personal property, which
shall be held in the name of the Company or a Subsidiary, as applicable;
(b) enter into, perform, and carry out contracts, leases, and agreements of
any kind necessary to, in connection with, or incidental to accomplishing the
purposes of the Company;
(c) operate, maintain, finance, improve, construct, own, grant options with
respect to, sell, convey, assign, mortgage, and lease real and personal
property;
(d) sell, exchange, or otherwise dispose of all or any part of the property
and assets of the Company or of any Subsidiary for property, cash, or on terms,
or any combination thereof;
(e) obtain loans, secured and unsecured, for the Company or any Subsidiary
and secure the same by mortgaging, assigning for security purposes, pledging, or
otherwise hypothecating all or any part of the property and assets of the
Company or of any Subsidiary (and in connection therewith to place record title
to any such property or assets in the name or names of a nominee or nominees);
(f) prepay in whole or in part, refinance, recast, increase, decrease,
modify, amend, restate, or extend any such mortgage, security assignment,
pledge, or other security instrument, and in connection therewith to execute and
deliver, for and on behalf of the Company or any Subsidiary, any extensions,
renewals, or modifications thereof, any new mortgage, security assignment,
pledge, or other security instrument in lieu thereof;
(g) draw, make, accept, endorse, sign, and deliver any notes, drafts, or
other negotiable instruments or commercial paper;
-13-
(h) establish, maintain, and draw upon checking, savings, and other
accounts in the name of the Company or any Subsidiary in such banks or other
financial institutions as the Manager may from time to time select;
(i) employ, fix the compensation of, oversee, and discharge agents and
employees of the Company and of any Subsidiary as it shall deem advisable in the
operation and management of the business of the Company, including such
accountants, attorneys, consultants, engineers, and appraisers, on such terms
and for such compensation, as the Manager shall determine;
(j) enter into management agreements with third parties pursuant to which
the management, supervision, or control of the business or assets of the Company
may be delegated to third parties for reasonable compensation;
(k) enter into joint ventures, general or limited partnerships, or other
agreements relating to the Company's purposes;
(l) compromise any claim or liability due to the Company or any Subsidiary;
(m) execute, acknowledge, verify, and file any notifications, applications,
statements, and other filings that the Manager considers necessary or desirable
to be filed with any state or federal securities administrator or commission;
(n) execute, acknowledge, verify, and file any and all certificates,
documents, and instruments that the Manager considers necessary or desirable to
permit the Company or any Subsidiary to conduct business in any state in which
the Manager deems advisable;
(o) bring and defend actions in law and equity;
(p) to borrow or raise money, and from time to time to issue, accept,
endorse, and execute promissory notes, loan agreements, options, stock purchase
agreements, contracts, documents, checks, drafts, bills of exchange, warrants,
bonds, debentures, and other negotiable or non-negotiable instruments and
evidences of indebtedness, and to secure the payment of any thereof and of the
interest thereon by mortgage upon or pledge, conveyance, or assignment in trust
of, the whole or any part of the property of the Company whether at the time
owned or thereafter acquired and to guarantee the obligations of others and to
sell, pledge, or otherwise dispose of such bonds or other obligations of the
Company for its purposes; and
(q) to maintain an office or offices in such place or places as the Manager
shall determine and in connection therewith to rent or acquire office space,
engage personnel, and do such other acts and things as may be necessary or
advisable in connection with the maintenance of such office, and on behalf of
and in the name of the Company to pay and incur reasonable expenses and
obligations for legal, accounting, investment advisory, consultative, and
custodial services, and other reasonable expenses including taxes, travel,
insurance, rent, supplies, interest, salaries and wages of employees, and all
other reasonable costs and expenses incident to the operation of the Company.
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2.7 [RESERVED]
2.8 Scope of Members' Authority.
---------------------------
Except as otherwise expressly and specifically provided in this Agreement,
no Member shall have any authority to act for, or assume any obligation or
responsibility on behalf of, the Company.
2.9 Principal Office and Other Offices; Registered Agent.
----------------------------------------------------
The address of the Company's registered office that is required to be
maintained by the Company in the State of Delaware pursuant to Section 18-104 of
the Act shall initially be located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000, and the name of the Company's registered agent at such
address is The Corporation Trust Company. The principal office of the Company
shall be located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as the Manager shall from time to time designate. The Company may
maintain any other offices and conduct business at any other places that the
Manager deems advisable. The Company may, upon compliance with the applicable
provisions of the Act, change its principal office or registered agent from time
to time in the discretion of the Manager.
2.10 Foreign Qualification.
---------------------
The Manager shall cause the Company to be authorized to conduct business
legally in the State of Ohio and all other appropriate jurisdictions, including
registration or qualification of the Company as a foreign limited liability
company in those jurisdictions that provide for registration or qualification
and the filing of a certificate of limited liability company in the appropriate
public offices of those jurisdictions that do not provide for registration or
qualification.
2.11 Fiscal Year.
-----------
The Fiscal Year of the Company shall be the calendar year, except that the
first Fiscal Year commenced on the date on which the Company was formed under
the Act and the last Fiscal Year shall end on the date on which the winding up
of the Company is completed. The Company shall have the same Fiscal Year for
income tax purposes and for financial and partnership accounting purposes.
2.12 Addresses of the Members.
------------------------
The respective addresses of the Members are set forth on Schedule I.
2.13 Tax Classification.
------------------
Notwithstanding any other provision of this Agreement, no Member nor any
Affiliate of any Member, nor any employee of the Company, may take any action
(including the filing of a U.S. Treasury Form 8832 Entity Classification
Election) that would cause the Company to be characterized as an entity other
than a partnership for federal income tax purposes without the
-15-
affirmative unanimous consent of the Members and the prior written consent of
the Principals, except that this sentence shall not preclude or in any way limit
any Person from taking any action that would cause any Affiliate of Insight
(other than the Company and any Person more than half of the assets of which
consist of direct or indirect equity interests in the Company at the time such
action is taken) to be characterized as a corporation for federal income tax
purposes. A determination of whether any action would cause the Company to be
characterized as an entity other than a partnership for federal income tax
purposes will be based upon a declaratory judgment or similar relief obtained
from a court of competent jurisdiction, a favorable ruling from the Internal
Revenue Service, or the receipt of an opinion of counsel reasonably satisfactory
to the Members.
SECTION 3. COMPANY CAPITAL
3.1 Contributions.
-------------
(a) Contributions Pursuant to Contribution Agreement. At the Closing,
------------------------------------------------
Central and Insight contributed the assets required to be contributed by the
Contribution Agreement.
(b) Fair Market Value of Contributions. The fair market value of the
----------------------------------
assets contributed to the Company by Central pursuant to Section 3.1(a) was as
specified in the Contribution Agreement.
3.2 Additional Capital Contributions.
--------------------------------
The Manager may, in its reasonable discretion, call for additional Capital
Contributions from the holders of Common Interests. No Member shall be required
to make any such additional Capital Contribution. In the event that a Member
chooses not to make any such additional Capital Contributions, the other holders
of Common Interests may elect, on five (5) days' notice in writing to the other
holders of Common Interests, to make such additional Capital Contributions as
have not been made by the non-contributing Member. If more than one holder of
Common Interests elects to make the additional Capital Contribution, then all
such electing holders shall contribute on a pro rata basis determined by their
respective Percentage Interests. If any additional Capital Contributions are
made, the Units assigned to the Common Interest of each contributing Member
shall be increased by an amount equal to the Gross Asset Value of such
additional Capital Contribution times seventy-five ten thousandths (0.0075).
3.3 Assumption of Liabilities.
-------------------------
In accordance with the terms and conditions of the Contribution Agreement,
the Company, at the Closing, assumed and undertook to pay, discharge, and
perform only those obligations and liabilities of Central and Insight that were
specified in Section 4.1 and Section 12.2 of the Contribution Agreement or were
otherwise required to be paid by the Company pursuant to Section 6.4(b).
-16-
3.4 Return of Contributions.
-----------------------
Except as provided in Section 4.3, no Member shall have the right to demand
a return of all or any part of its Capital Contribution during the term of the
Company, and any return of the Capital Contribution of any Member shall be only
in accordance with the terms of this Agreement.
3.5 Refinancing and Purchase of Senior Debt and Subordinated Debt.
-------------------------------------------------------------
(a) Refinancing.
(i) Insight may obtain and submit to Central and the Principals at any
time and from time to time a proposal from a financial institution of nationally
recognized standing for the refinancing of the Senior Debt or the Subordinated
Debt.
(ii) After obtaining any proposal pursuant to Section 3.5(a)(i),
Insight may require that the Borrowers refinance or modify the Senior Debt or
the Subordinated Debt in accordance with the terms of such proposal, and the
parties agree that the Borrowers will comply with such requirement.
(b) [RESERVED]
(c) Funding Purchase of Debt. The Company may make loans to Insight or any
------------------------
Affiliate of Insight for the purpose of funding the acquisition by such Person
of any of the outstanding Senior Debt or Subordinated Debt. The proceeds used to
make such loans may include the proceeds of the issuance of Membership
Interests. The terms of any such loan shall:
(i) provide that all obligations and liabilities of such Person with
respect to such loan shall be secured by all of such Person's interest in the
Senior Debt or Subordinated Debt so purchased, and any replacements or proceeds
thereof (but such loan shall otherwise be non-recourse to such Person);
(ii) require the payment to the Company, either as principal,
interest, or additional interest, of all amounts received by such Person with
respect to the Senior Debt or Subordinated Debt so purchased; and
(iii) require that the Person to which the loan is made, if other than
Insight, remain an Affiliate of Insight.
(d) RESERVED
(e) RESERVED
-17-
(f) Other General Provisions.
(i) The manner of soliciting and obtaining any refinancing proposal
pursuant to this Section 3.5 shall be determined by Insight. The Principals will
cooperate, as reasonably requested by Insight, in connection with Insight's
efforts to solicit and obtain any refinancing proposal pursuant to this Section
3.5.
(ii) In connection with any refinancing pursuant to this Section 3.5,
the Company shall pay all costs and expenses incurred by any of the Borrowers,
any of the Principals, or any of their respective Affiliates in connection with
the consummation of such refinancing, including the authorization, preparation,
execution, and performance of any agreements or other instruments relating
thereto, to the extent such costs and expenses are similar in kind to the costs
and expenses that the Company would have incurred in issuing indebtedness
similar to the Senior Debt or the Subordinated Debt.
(iii) In connection with any refinancing or purchase of any of the
Senior Debt or the Subordinated Debt pursuant to this Section 3.5, Insight and
the Principals shall agree to appropriate modifications to the terms of the
Preferred A Interest and the Preferred B Interest, to the extent necessary to
preserve the reasonable expectations of Insight and the Principals under this
Agreement. Any agreement between Insight and the Principals pursuant to this
Section 3.5(f)(iii) as to any modification to the terms of the Preferred A
Interest and the Preferred B Interest shall be binding on the Members.
SECTION 4. CASH DISTRIBUTIONS
4.1 Distributions Prior to Liquidation.
----------------------------------
(a) Distributions Generally. Except as provided in Section 10.2(d), the
-----------------------
Company shall make cash distributions as follows:
(i) First, on each Guaranteed Payment Date, commencing on the first
Guaranteed Payment Date after the Closing, so long as the Preferred A Interest
is outstanding, the Company shall distribute to the holder of the Preferred A
Interest (A) on the first such date, a pro rata portion of the Guaranteed
Payment Amount, based on the ratio of the number of days between the Closing
Date and such date to the number of days between the preceding Guaranteed
Payment Date (although prior to the Closing Date) and such date, computed on the
basis of a 360-day year of twelve 30-day months, and (B) on each other such
date, the Guaranteed Payment Amount.
(ii) Second, on each Preferred A Distribution Date, commencing on the
first Preferred A Distribution Date after the Closing, so long as the Preferred
A Interest is outstanding, the Company shall distribute to the holder of the
Preferred A Interest the Preferred A Preference Amount.
-18-
(iii) Third, on each Preferred B Distribution Date, commencing on the
first Preferred B Distribution Date after the Closing, so long as the Preferred
B Interest is outstanding, the Company shall distribute to the holder of the
Preferred B Interest the Preferred B Preference Amount; provided, however, that
on any such Preferred B Distribution Date falling prior to the Preferred B PIK
Termination Date, the Company shall, in lieu of making such distribution, accrue
such amount, and any such accrued and unpaid amount shall be added to the
Preferred B Capital Amount.
(iv) Fourth, no less than three days prior to April 15 of each year,
the Company shall distribute to each Member holding a Common Interest, the
excess of such Member's Tax Amount over the amounts previously distributed to
such Member under this Section 4.1(a)(iv), including Estimated Tax Distributions
(the "April Distribution"). If the Company's taxable income for any year is
increased above the amount used to compute the April Distribution as a result of
an adjustment deemed necessary by the Company or as the result of a tax audit,
the Company shall distribute to the Members holding the Common Interests such
amount as the Manager shall determine is appropriate, in its good faith
discretion, taking into account the respective additional federal, state, and
local tax liability of the Members as a result of such increase and any related
penalties and interest. The Company shall also make distributions ("Estimated
Tax Distributions") for the payment of taxes at such times as any Member would
be required to pay federal estimated taxes in an amount not in excess of the
Company's good faith estimate of the Tax Amount for the period to which such
estimated taxes relate. Notwithstanding anything to the contrary herein,
distributions under this Section 4.1(a)(iv) shall be made in proportion to the
Members' Percentage Interests.
(v) Thereafter, at such times and in such amounts as the Manager may
determine, to the Members holding Common Interests in proportion to their
Percentage Interests.
(b) Late Distributions.
(i) If the Company fails to make any distribution required to be made
pursuant to Section 4.1(a)(i) on or before the applicable Guaranteed Payment
Date, then the Guaranteed Payment Amount payable with respect to that Guaranteed
Payment Date shall be increased at a rate per year equal to the Preferred A Rate
for the number of days from the applicable Guaranteed Payment Date to the date
on which the required distribution is actually made.
(ii) If the Company fails to make any distribution required to be made
pursuant to Section 4.1(a)(ii) on or before the applicable Preferred A
Distribution Date, then the amount to be distributed with respect to that
Preferred A Distribution Date shall be increased at a rate per year equal to the
Preferred A Rate for the number of days from the applicable Preferred A
Distribution Date to the date on which the required distribution is actually
made.
(iii) If the Company fails to make any distribution required to be
made pursuant to Section 4.1(a)(iii) on or before the applicable Preferred B
Distribution Date, then the amount to be distributed with respect to that
Preferred B Distribution Date shall be increased at a rate per year
-19-
equal to the Preferred B Rate for the number of days from the applicable
Preferred B Distribution Date to the date on which the required distribution is
actually made; provided, however, that this Section 4.1(b)(iii) shall apply only
to distributions required to be made on Preferred B Distribution Dates occurring
on or after the Preferred B PIK Termination Date.
(c) Borrowings for Guaranteed Payments. To the extent the Company does not
----------------------------------
have sufficient cash to make the distribution required to be made pursuant to
Section 4.1(a)(i) then the Manager may, but shall not be obligated to, cause the
Company to borrow funds in order to make such distributions in a full and timely
manner.
(d) Treatment of Guaranteed Payments. The distributions provided for in
--------------------------------
Section 4.1(a)(i) are required to be made without regard to the income of the
Company and shall be treated as guaranteed payments as described in Code Section
707(c). No Member shall take a position inconsistent with such treatment.
(e) Determination of Tax Amount. For purposes of Section 4.1(a)(iv), the
---------------------------
"Tax Amount" of a Member holding a Common Interest means, the sum of such
Member's tax liabilities for all previous Fiscal Years, determined in accordance
with, and subject to, the following:
(i) The tax liability of a Member holding a Common Interest for any
Fiscal Year shall be the greater of such Member's Regular Tax Liability or its
AMT Liability for such Fiscal Year.
(ii) The "Regular Tax Liability" of a Member holding a Common Interest
for any Fiscal Year shall be determined separately for ordinary income and each
character of capital gain income to which separate federal income tax rates may
apply, and for each such type of income shall be computed as the product of (A)
the excess of (1) the aggregate amount of taxable income (if any) allocated to
such Member with respect to its Common Interest in such Fiscal Year over (2) the
aggregate amount of taxable losses (if any) allocated to such Member with
respect to its Common Interest for all prior Fiscal Years since the beginning of
the Company and not previously taken into account for purposes of computing such
Member's Tax Amount, and (B) the highest marginal combined federal, state, and
local tax rate (taking into count the provisions of Code Section 68) imposed on
an individual resident in New York City for income of such type.
(iii) The "AMT Liability" of a Member holding a Common Interest for
any Fiscal Year shall be computed as the product of (A) the aggregate amount of
alternative minimum taxable income (if any) allocated to such Member with
respect to its Common Interest in such Fiscal Year (less any alternative minimum
tax losses allocated to such Member with respect to its Common Interest for all
prior Fiscal Years since the beginning of the Company and not previously taken
into account for purposes of computing such Member's Tax Amount) and (B) the
highest marginal combined federal, state, and local tax rate imposed on the
alternative minimum taxable income of an individual resident in New York City
(taking into account the lack of deductibility for state and local taxes under
the federal alternative minimum tax).
-20-
(iv) For purposes of determining a Member's Regular Tax Liability or
AMT Liability, any Member who receives a Common Interest in a transfer with
respect to which an election under Code Section 754 has not been made (or is not
in effect) shall be deemed to have been allocated any taxable losses or income
allocated to the transferor of such Common Interest. For purposes of determining
a Member's April Distribution, any Member who receives a Common Interest in a
transfer with respect to which an election under Code Section 754 has not been
made (or is not in effect) shall be deemed to have received any distributions
made pursuant to Section 4.1(a)(iv) to the transferor of such Common Interest.
(v) Notwithstanding anything to the contrary herein, for purposes of
calculating a Member's Tax Amount under this Section 4.1(e), the taxable income
or taxable loss (including alternative minimum taxable income and alternative
minimum taxable loss) allocated to a Member shall exclude (and no April
Distributions or Estimated Tax Distributions shall be made with respect to) (A)
gain allocated to any Member with respect to the sale, exchange, or other actual
or deemed disposition of any assets contributed to the Company by any Member,
(B) gross income allocated to the holder of the Preferred A Interest with
respect to distributions made under Section 4.1(a)(i), (C) gross income
allocated to the holder of the Preferred A Interest under Section 5.2(h) and (D)
gross income allocated to the holder of the Preferred B Interest under Section
5.2(i).
(f) Delaying Distributions. If (i) any default (other than a notification
----------------------
or delivery default) shall have occurred and be continuing under any of the Loan
Documents, or if Insight in good faith determines that such a default under any
of the Loan Documents is reasonably likely to occur, and (ii) Insight determines
in good faith that, as a result of such existing or anticipated default, it
would be in the best interests of the Company for the Company not to make any
distribution required pursuant to Section 4.1(a)(i), Section 4.1(a)(ii), or
Section 4.1(a)(iii), and (iii) Insight notifies the Principals in writing that
it has made such determination, then Insight may cause the Company not to make
such distribution until such time as Insight shall have determined that it is no
longer in the best interests of the Company for the Company not to make such
distribution. To the extent, but only for so long as, Insight is authorized by
this Section 4.1(f) to cause the Company not to make such distribution, then
neither Insight nor the Company shall have any liability to the holder of the
Preferred A Interest or the holder of the Preferred B Interest as a result of
the Company's failure to make any distribution required pursuant to Section
4.1(a)(i), Section 4.1(a)(ii), or Section 4.1(a)(iii). The provisions of Section
4.1(b) shall apply to the Company's failure to make any distribution required
pursuant to Section 4.1(a)(i), Section 4.1(a)(ii), or Section 4.1(a)(iii)
notwithstanding Insight's rights under this Section 4.1(f) to cause the Company
not to make any such distribution.
4.2 Withholding.
-----------
All amounts withheld pursuant to the Code or any provision of any state or
local tax law with respect to any payment or distribution to the Company or the
Members shall be treated as amounts distributed to Members pursuant to Section 4
for all purposes of this Agreement.
-21-
4.3 Redemption.
----------
(a) Redemption of Preferred B Interest.
----------------------------------
(i) Subject to Section 4.3(a)(iii), the Company shall redeem the
Preferred B Interest in full if (A) the Discount Notes shall be payable in full
(either upon reaching their stated maturity or upon their acceleration), (B) the
holders of the Discount Notes shall have commenced the enforcement of any
remedies available to them under any agreement under which shares of Central and
the LLC Mirror Notes (as defined in the offering memorandum for the Discount
Notes) are pledged as security for the Discount Notes, (C) at least ten days
shall have elapsed since the maturity or acceleration of the Discount Notes, and
(D) the holders of the Discount Notes, acting on their own behalf or through the
trustee of the Discount Notes, shall have requested redemption of the Preferred
B Interest in accordance with the provisions of any agreement under which shares
of Central and the LLC Mirror Notes (as defined in the offering memorandum for
the Discount Notes) are pledged as security for the Discount Notes.
(ii) The Company may redeem the Preferred B Interest, in whole or in
part, at any time at its option.
(iii) The Company shall not redeem the Preferred B Interest if the
Company is required to redeem the Preferred A Interest pursuant to Section
4.3(b)(i) and has not yet done so.
(iv) If the Company redeems all or part of the Preferred B Interest
pursuant to this Section 4.3(a), the redemption price shall equal the sum of (A)
the amount that would be distributed to the holder of the Preferred B Interest
with respect to the redeemed portion of the Preferred B Interest pursuant to
Section 10.2(d)(iii)(C) upon dissolution and liquidation of the Company,
assuming that the distribution pursuant to Section 10.2(d)(iii)(C) was made on
the date of such redemption and that the proceeds of the liquidation of the
Company were sufficient to permit the Company to make the full distribution
provided for in Section 10.2(d)(iii)(C), plus (B) the amount of any premium
required to be paid by the Borrowers to the holders of the Subordinated Debt in
connection with the Borrowers' use of the proceeds of the redemption of the
Preferred B Interest to repay or purchase the Subordinated Debt.
(b) Redemption of Preferred A Interest.
----------------------------------
(i) The Company shall redeem the Preferred A Interest in full if (A)
the Senior Notes shall be payable in full (either upon reaching their stated
maturity or upon their acceleration), (B) the holders of the Senior Notes shall
have commenced the enforcement of any remedies available to them under any
agreement under which the Preferred A Interest is pledged as security for the
Senior Notes, (C) at least ten days shall have elapsed since the maturity or
acceleration of the Senior Notes, and (D) the holders of the Senior Notes,
acting on their own behalf or through the trustee of the Senior Notes, shall
have requested redemption of the Preferred A Interest in accordance with the
provisions of any agreement under which the Preferred A Interest is pledged as
security for the Senior Notes.
-22-
(ii) The Company may redeem the Preferred A Interest, in whole or in
part, at any time at its option.
(iii) If the Company redeems all or part of the Preferred A Interest
pursuant to this Section 4.3(b), the redemption price shall equal the sum of (A)
the amount that would be distributed to the holder of the Preferred A Interest
with respect to the redeemed portion of the Preferred A Interest pursuant to
Section 10.2(d)(iii)(A) and Section 10.2(d)(iii)(B) upon dissolution and
liquidation of the Company, assuming that the distributions pursuant to Section
10.2(d)(iii)(A) and Section 10.2(d)(iii)(B) were made on the date of such
redemption and that the proceeds of the liquidation of the Company were
sufficient to permit the Company to make the full distributions provided for in
Section 10.2(d)(iii)(A) and Section 10.2(d)(iii)(B), plus (B) the amount of any
premium required to be paid by the Borrowers to the holders of the Senior Debt
in connection with the Borrowers' use of the proceeds of the redemption of the
Preferred A Interest to repay or purchase the Senior Debt.
(c) Redemption of Common Interest. The Company may redeem the Common
-----------------------------
Interest held by one or more Members, in whole or in part, at any time, with the
consent of all of the Members and the Principals. If the Company redeems all or
part of the Common Interest pursuant to this Section 4.3(c), the redemption
price may be such amount, payable in cash or property, as the Members may
approve.
SECTION 5. ALLOCATIONS OF PROFITS AND LOSSES
5.1 Allocations of Net Profit and Net Loss.
--------------------------------------
(a) Allocations of Net Profit. For purposes of maintaining Capital
-------------------------
Accounts, except as otherwise provided in this Agreement, Net Profit for each
taxable year (or portion thereof) shall be allocated to the Members as follows:
(i) First, to the Members to reverse any allocations of Net Losses to
the Members pursuant to Section 5.1(b)(iii) and Section 5.1(b)(ii) (in reverse
order to the order in which such Net Losses were allocated to the Members) to
the extent not previously reversed under this Section 5.1(a)(i); and
(ii) Thereafter, to the Members holding Common Interests in proportion
to their Percentage Interests.
(b) Allocations of Net Loss. Net Loss for each taxable year (or portion
-----------------------
thereof) shall be allocated to the Members as follows:
(i) First, to the Members in proportion to their Percentage Interests;
provided, however, that no allocation pursuant to this Section 5.1(b)(i) shall
reduce a Member's Adjusted Capital Account balance below zero;
-23-
(ii) Second, to the Members in proportion to their positive Adjusted
Capital Account balances until each Member's Adjusted Capital Account balance is
at zero; and
(iii) Thereafter, to all Members in proportion to their Percentage
Interests.
5.2 Special Provisions Regarding Allocations of Income and Loss.
-----------------------------------------------------------
The following special allocations for purposes of maintaining Capital
Accounts shall be made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided in Treasury
-----------------------
Regulations Section 1.704-2(f), notwithstanding any other provision of this
Section 5, if there is a net decrease in Partnership Minimum Gain for any Fiscal
Year, each Member shall be specially allocated items of Company income and gain
for such Fiscal Year (and if necessary for succeeding Fiscal Years) in an amount
equal to such Member's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Treasury Regulations Section 1.704-2(g).
Allocations made pursuant to the preceding sentence shall be made in proportion
to the respective amounts required to be allocated to each Member pursuant
thereto. The items of Company income and gain to be allocated pursuant to this
Section 5.2(a) shall be determined in accordance with Treasury Regulations
Section 1.704-2(f)(6) and Treasury Regulations Section 1.704-2(j)(2). The amount
of Partnership Minimum Gain shall be determined in accordance with Treasury
Regulations Section 1.704-2(d). This Section 5.2(a) is intended to comply with
the minimum gain chargeback requirement in Treasury Regulations Section
1.704-2(f) and shall be interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise provided in
-------------------------------
Treasury Regulations Section 1.704-2(i)(4), notwithstanding any other provision
of this Section 5 except Section 5.2(a), if during any Fiscal Year there is a
net decrease in Partner Nonrecourse Debt Minimum Gain, each Member that has a
share of that Partner Nonrecourse Debt Minimum Gain (determined in accordance
with Treasury Regulations Section 1.704-2(i)(5)) as of the beginning of such
Fiscal Year shall be allocated items of Company income and gain for the Fiscal
Year (and, if necessary, for succeeding Fiscal Years) equal to that Member's
share of the net decrease in the Partner Nonrecourse Debt Minimum Gain
(determined in accordance with Treasury Regulations Section 1.704-2(i)(4)).
Allocations pursuant to the preceding sentence shall be made in proportion to
the respective amounts required to be allocated to each Member pursuant thereto.
The items of Company income and gain to be allocated pursuant to this Section
5.2(b) shall be determined in accordance with Treasury Regulations Section
1.704-2(i)(4) and Treasury Regulations Section 1.704-2(j)(2). The amount of
Partner Nonrecourse Debt Minimum Gain shall be determined in accordance with
Treasury Regulations Section 1.704-2(i)(3). This Section 5.2(b) is intended to
comply with the minimum gain chargeback requirement in Treasury Regulations
Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year or
----------------------
other period shall be specially allocated among the Members in proportion to
their Percentage Interests.
-24-
(d) Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions for
------------------------------
any Fiscal Year or other period shall be specially allocated to the Member that
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable in accordance with
Treasury Regulations Section 1.704-2(i).
(e) Qualified Income Offset. If any Member unexpectedly receives any
-----------------------
adjustments, allocations, or distributions described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-
1(b)(2)(ii)(d)(6), items of Company income and gain shall be specially allocated
to such Member in an amount and manner sufficient to eliminate, to the extent
required by the Treasury Regulations, the Adjusted Capital Account of such
Member as quickly as possible; provided, however, that an allocation pursuant to
this Section 5.2(e) shall be made if and only to the extent that such Member
would have an Adjusted Capital Account after all other allocations provided for
in this Section 5 have been tentatively made as if this Section 5.2(e) were not
in this Agreement.
(f) Curative Allocations. The allocations set forth in the foregoing
--------------------
provisions of this Section 5.2 (the "Regulatory Allocations") are intended to
comply with certain requirements of the Treasury Regulations. It is the intent
of the Members that, to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of
other items of Company income, gain, loss, or deduction pursuant to this Section
5.2. Therefore, notwithstanding any other provision of this Section 5 (other
than the Regulatory Allocations), the Company shall make such offsetting special
allocations of Company income, gain, loss, or deduction in whatever manner that
the Manager determines is appropriate so that, after such offsetting allocations
are made, each Member's Capital Account balance is, to the extent possible,
equal to the Capital Account balance such Member would have had if the
Regulatory Allocations were not in this Agreement. In exercising its discretion
under this Section 5.2(f), the Manager shall take into account future Regulatory
Allocations under Section 5.2(a) and Section 5.2(b) that, although not yet made,
are likely to offset other Regulatory Allocations previously made under Section
5.2(c) and Section 5.2(d).
(g) Recharacterization of Payments. If any payments or expenses deducted
------------------------------
for federal income tax purposes by a Member are recharacterized by a final
determination of the Internal Revenue Service as nondeductible contributions to
the Company, any corresponding items of loss or deduction available to the
Company shall be allocated to such Member so that, to the extent possible, such
Member has the same tax consequences as it would have had if such payments or
expenses had been deductible by such Member.
(h) Allocations with Respect to Preferred A Interest. There shall be
------------------------------------------------
allocated to the holder of the Preferred A Interest an amount of gross income of
the Company for any taxable year equal to the cumulative distributions made with
respect to the Preferred A Interest pursuant to Section 4.1(a)(ii) (including
any late payments on such distributions pursuant to Section 4.1(b)(ii)) in such
taxable year.
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(i) Allocations with Respect to Preferred B Interest. There shall be
------------------------------------------------
allocated to the holder of the Preferred B Interest an amount of gross income of
the Company for any taxable year equal to the sum of (A) cumulative
distributions made with respect to the Preferred B Interest pursuant to Section
4.1(a)(iii) (including any late payments on such distributions pursuant to
Section 4.1(b)(iii)) in such taxable year and (B) the cumulative amount of
increases in the Preferred B Capital Amount pursuant to Section 4.1(a)(iii)
occurring during such taxable year.
(j) Allocations Upon Liquidation. Notwithstanding anything to the
----------------------------
contrary herein, upon a liquidation of the Company, allocations of Net Profit
and Net Loss, and if necessary, of gross income and deductions, shall be made so
that, after such allocations have been made, the Capital Accounts of the Members
will equal as closely as possible the amounts to be distributed to the Members
pursuant to Section 10.2(d)(iii), with distributions under Section
10.2(d)(iii)(E) made in proportion to each Member's Percentage Interests.
5.3 Section 754 Adjustments.
-----------------------
To the extent any adjustment to the adjusted tax basis of any asset of the
Company pursuant to Code Section 734(b) or Code Section 743(b) is required,
pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into
account in determining Capital Accounts, the amount of such adjustment shall be
treated as an item of gain (if the adjustment increases the basis of the asset)
or loss (if the adjustment decreases such basis), and such gain or loss shall be
specially allocated to the Members in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to such
section of the Treasury Regulations.
5.4 Allocations for Tax Purposes.
----------------------------
(a) Except as otherwise provided herein, for federal income tax purposes,
(i) each item of income, gain, loss and deduction shall be allocated among the
Members in the same manner as its correlative items of "book" income, gain, loss
or deduction is allocated pursuant to Section 5.1, Section 5.2, and Section 5.3,
and (ii) each tax credit shall be allocated to the Members in the same manner as
the receipt or expenditure giving rise to such credit is allocated pursuant to
Section 5.1, Section 5.2, and Section 5.3.
(b) In accordance with Code Section 704(c) and the Treasury Regulations
thereunder, income, gain, loss, and deduction with respect to any property
contributed to the capital of the Company shall, solely for tax purposes, be
allocated among the Members so as to take account of any variation between the
adjusted basis of such property to the Company for federal income tax purposes
and its initial Gross Asset Value. The Company shall use the "traditional
method" of making Code Section 704(c) allocations (as described in Treasury
Regulations Section 1.704-3(b)).
(c) If the Gross Asset Value of any asset of the Company is adjusted
pursuant to paragraph (ii) of the definition of Gross Asset Value, subsequent
allocations of income, gain, loss, and deduction with respect to such asset
shall take account of any variation between the adjusted
-26-
basis of such asset for federal income tax purposes and its Gross Asset Value in
the same manner as under Code Section 704(c) and the Treasury Regulations
thereunder.
(d) Any elections or other decisions relating to allocations described in
Section 5.4(b) and Section 5.4(c) shall be made by the Manager in any manner
that reasonably reflects the purpose and intention of this Agreement.
Allocations pursuant to Section 5.4(b) and Section 5.4(c) are solely for
purposes of federal, state, and local taxes and shall not affect, or in any way
be taken into account in computing, any Member's Capital Account or share of Net
Profit, Net Loss, other items, or distributions pursuant to any provision of
this Agreement.
5.5 Allocations Following a Transfer of Membership Interest.
-------------------------------------------------------
If a Membership Interest is transferred in accordance with Section 9 of
this Agreement, Net Profit and Net Loss shall be allocated between the periods
before and after the transfer by the interim closing of the Company books method
set forth in Treasury Regulation Section 1.706-1(c)(2)(ii). As of the date of
such transfer, the transferee shall succeed to the Capital Account of the
transferor with respect to the transferred Membership Interest. This paragraph
shall apply for purposes of computing a Member's Capital Account and for federal
income tax purposes.
SECTION 6. AUTHORITY OF THE MANAGER;
OTHER MATTERS AFFECTING MANAGER
6.1 Authority of Manager.
--------------------
Except as otherwise expressly provided in this Agreement, the business and
operations of the Company shall be managed by the Manager. The Manager agrees
that, except as otherwise expressly provided herein, the Manager acting alone
shall not give any consent to any matter or take any other action as the
Manager, including acting on behalf of or binding the Company with respect to
any matter in respect of which approval by the Members is required by the
provisions of this Agreement or the Act, unless such consent, matter, or other
action shall first have been adopted or approved by the Members, or authority to
consent to such matter or to take such other action shall have been expressly
delegated to the Manager by the Members, in each case in accordance with the
provisions of this Agreement or the Act as applicable.
6.2 Resignation as Manager.
----------------------
(a) If the Manager resigns, a majority of the outstanding Voting Interests
shall select a new Manager.
(b) Any change in the identity of the Manager shall be subject to and
conditioned upon receipt of all necessary governmental approvals and other
material third-party consents.
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6.3 Tax Matters Member.
------------------
(a) Insight is hereby designated as the Tax Matters Member of the Company,
as provided in Treasury Regulations pursuant to Code Section 6231 and analogous
provisions of state law. Each Member, by the execution of this Agreement,
consents to such designation of the Tax Matters Member and agrees to execute,
certify, acknowledge, deliver, swear to, file, and record at the appropriate
public offices such documents as may be necessary or appropriate to evidence
such consent.
(b) Insight, as the Tax Matters Member, is authorized to represent the
Company before taxing authorities and courts in tax matters affecting the
Company and the Members in their capacity as Members and is entitled to take any
actions on behalf of the Company in any such tax proceedings that the Tax
Matters Member, in its reasonable business judgment, deems to be in the best
interests of the Company and the Members, except that, without the written
consent of Central and the Principals, the Tax Matters Member shall not extend
the statute of limitations for assessment of tax deficiencies against the
Members with respect to adjustments to the Company's federal, state, and local
tax returns, agree to any deficiency or other adjustment of any kind that
adversely affects Central or any of the Principals, make any material tax
elections, or execute any agreements or other documents relating to or affecting
any tax matters that are binding on the Company or Central or any of the
Principals; provided, however, that intangible assets contributed to the Company
by Central that have an initial Gross Asset Value in excess of their initial
adjusted basis for federal income tax purposes shall be amortized over a 25-year
period.
(c) To the extent and in the manner provided by applicable law and Treasury
Regulations, the Tax Matters Member shall furnish the name, address, profits
interest, and taxpayer identification number of each Member and any Assignee to
the Secretary of the Treasury or his delegate (the "Secretary").
(d) The Tax Matters Member shall notify each Member and each Principal of
any audit that is brought to the attention of the Tax Matters Member by notice
from the Internal Revenue Service, and shall forward to each Member and each
Principal copies of any written notices, correspondence, reports, or other
documents received by the Tax Matters Member in connection with such audit
within ten Business Days following its notification by the Internal Revenue
Service or its receipt, as the case may be. The Tax Matters Member shall provide
each Member and each Principal with reasonable advance notice of, and shall
afford each Member and each Principal the right to participate in, any
administrative proceedings or other material discussions with the Internal
Revenue Service, including any closing conference with the examiner and any
appeals conference, relating to the Company.
(e) The Tax Matters Member shall, at the Company's expense, cause all
federal, state, local, and other tax returns and reports (including amended
returns) required to be filed by the Company or any Subsidiary to be prepared
and timely filed with the appropriate authorities. The Tax Matters Member shall
cause all income or franchise tax returns or reports required to be filed by the
Company or any Subsidiary to be sent to each Member and each Principal for
review at least
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five Business Days prior to filing, and the Tax Matters Member shall afford each
Member and each Principal a reasonable opportunity to comment on any such return
prior to filing.
(f) Any Member that receives a notice of an administrative proceeding under
Code Section 6223 relating to the Company shall promptly notify the Tax Matters
Member of the treatment of any Company item on such Member's federal income tax
return that is or may be inconsistent with the treatment of that item on the
Company's return.
(g) Any Member that enters into a settlement agreement with the Secretary
with respect to any Company item shall notify the Tax Matters Member of such
agreement and its terms within thirty days after its date, and the Tax Matters
Member shall notify each other Member and each Principal of the settlement
agreement within thirty days of such notification.
6.4 Reimbursement of Expenses.
-------------------------
(a) The Company shall reimburse the Manager for all direct, out-of-pocket
expenses incurred by or on behalf of the Manager that directly relate to its
management of the business and operations of the Company, including any such
expenses incurred in connection with the management of the Shareholders pursuant
to the management agreements between the Shareholders and Insight; provided,
however, that the Manager shall not be entitled to reimbursement from the
Company for corporate overhead (including employee bonuses and health, welfare,
retirement, and other employee benefits and overhead expenses of its corporate
office management, development, internal accounting, and finance management
personnel).
(b) The Company shall reimburse the Borrowers for all direct, out-of-pocket
expenses incurred by or on behalf of the Borrowers in complying with the terms
of the Loan Documents (excluding any payment of principal or interest under the
Senior Debt or the Subordinated Debt). The Company shall pay, or shall reimburse
the Borrowers for, any amounts required to be paid by any Borrower as a result
of any indemnification or reimbursement obligation arising under any of the Loan
Documents or otherwise arising in connection with the offer or sale of any of
the Senior Debt or the Subordinated Debt. Notwithstanding the foregoing, no
Borrower shall be entitled to reimbursement from the Company for costs and
expenses incurred in connection with maintaining the legal existence of any
Borrower, preparing and filing tax returns and reports on behalf of the
Borrower, or any other similar recurring expenses.
6.5 Compensation.
------------
On each Management Return Payment Date, commencing on the first Management
Return Payment Date after the date hereof, the Company shall pay to the Manager
the Management Return; provided, however, that such payments shall only be made
if all required distributions have been made pursuant to Sections 4.1(a)(i),
4.1(a)(ii), 4.1(a)(iii) and 4.1(a)(iv). If the Company fails to make any payment
required to be made pursuant to this Section 6.5 on or before the applicable
Management Return Payment Date, then the amount to be distributed with respect
to that
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Management Return Payment Date shall bear interest at the Preferred A Rate from
that Management Return Payment Date to the date that the required payment is
actually made.
SECTION 7. STATUS OF MEMBERS
7.1 No Management and Control.
-------------------------
Except as expressly provided in this Agreement, no Member (other than the
Manager) shall take part in or interfere in any manner with the control,
conduct, or operation of the Company or have any right or authority to act for
or bind the Company or to vote on matters relating to the Company.
7.2 Limited Liability.
-----------------
No Member shall be bound by or personally liable for the expenses,
liabilities, or obligations of the Company. In no event shall any Member be
required to make up a deficiency in its Capital Account upon the dissolution and
termination of the Company.
7.3 Return of Distributions of Capital.
----------------------------------
A Member may, under certain circumstances, be required by law to return to
the Company, for the benefit of the Company's creditors, amounts previously
distributed. No Member shall be obligated by this Agreement to pay those
distributions to or for the account of the Company or any creditor of the
Company. However, if any court of competent jurisdiction holds that,
notwithstanding the provisions of this Agreement, a Member must return or pay
over any part of those distributions, the obligation shall be that of such
Member alone and not of the other Member. Any payment returned to the Company by
a Member or made directly by a Member to a creditor of the Company shall be
deemed a Capital Contribution by such Member.
7.4 Specific Limitations.
--------------------
No Member shall have the right or power to (a) resign as a Member (except
in the case of a Transfer of all of a Member's Membership Interest that is
permitted by this Agreement, where the Assignee of such Member's Membership
Interest has been admitted as a substitute Member in accordance with Section
9.3), (b) reduce its Capital Contribution except as a result of the dissolution
of the Company or as otherwise provided by law, or (c) demand or receive
property other than cash in return for its Capital Contribution. Except as
otherwise set forth in this Agreement or in any agreement permitted to be
entered into under this Agreement with respect to the purchase, redemption,
retirement, or other acquisition of Membership Interests, no Member shall have
priority over the other Member either as to the return of its Capital
Contribution or as to Net Profit, Net Loss, or distributions. Other than upon
the termination and dissolution of the Company as provided by this Agreement,
and except as provided in Section 4.3, there has been no time agreed upon when
the Capital Contribution of any Member will be returned.
-30-
7.5 Issuance of Membership Interests.
--------------------------------
Subject to the consent of a majority of the Voting Interests, the Manager
may issue additional Membership Interests to any Person and may admit to the
Company as additional Members the Persons acquiring such Membership Interests,
if such Persons were not previously admitted as Members. The Persons acquiring
such Membership Interests shall have the rights and be subject to the
obligations attributable to such Membership Interests in the form issued to
them. A Person admitted as a new Member shall only be entitled to distributions
and allocations of Net Profit and Net Loss attributable to the period beginning
on the effective date of its admission to the Company, and the Company shall
attribute Net Profit and Net Loss to the period before the effective date of the
admission of a new Member and to the period beginning on the effective date of
the admission of a new Member by the closing of the books method.
SECTION 8. MANAGEMENT OF THE COMPANY
8.1 to 8.5 [RESERVED]
8.6 Permitted Transactions.
----------------------
(a) Other Businesses. Nothing in this Agreement shall limit the ability of
----------------
any Member, any partner, Affiliate, or agent of any Member, to engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, whether currently existing or hereafter created
and whether or not competitive with or advanced by the business of the Company.
Neither the Company nor the other Members shall have any rights in or to the
income or profits derived therefrom, nor shall any Member have any obligation to
the other Member with respect to any such enterprise or related transaction. The
foregoing provisions shall not impair or otherwise affect any limitation to
which any Member is or may be subject with respect to his business activities
under any other agreement between the Company and such Member.
(b) Dealings with the Company. The Company may, in the discretion of the
-------------------------
Manager, contract with any Person (including any Member or any Person that is an
Affiliate of any Member or in which any Member may be interested) for the
performance of any services that may reasonably be required to carry on the
business of the Company, and any such Person dealing with the Company, whether
as an independent contractor, agent, employee, or otherwise, may receive from
others or from the Company profits, compensation, commissions, or other income
incident to such dealings.
8.7 Other Management Matters.
------------------------
(a) Central and the Shareholders as Affiliates of Insight. The parties
-----------------------------------------------------
agree that each Shareholder shall be an Affiliate of Insight for purposes of
this Agreement so long as the management agreement between Insight and such
Shareholder remains in effect and that Central shall be an Affiliate of Insight
for purposes of this Agreement so long the management agreements between Insight
and Shareholders holding a majority of the outstanding shares of Central remain
in
-31-
effect. Notwithstanding the foregoing or any other provision of this Agreement,
Insight shall not be in violation of any provision of this Agreement restricting
any action by its Affiliates with respect to any action taken by Central or any
Shareholder to the extent that such action was caused to be taken by one or more
of the Principals exercising authority reserved to the Principals under the
management agreements between Insight and the Shareholders, and Insight shall
not be in violation of any provision of this Agreement requiring any action by
its Affiliates with respect to any action not taken by Central or any
Shareholder to the extent that such action was prevented from being taken by one
or more of the Principals exercising authority reserved to the Principals under
the management agreements between Insight and the Shareholders.
SECTION 9. ASSIGNMENT, TRANSFER, OR SALE
OF INTERESTS IN THE COMPANY
9.1 Limitations on Transfers.
------------------------
(a) Except as provided in Section 9.1(b), no Member may sell, assign,
transfer, or otherwise dispose of, or pledge, hypothecate, or otherwise encumber
all or any part of its Membership Interest (any such action, a "Transfer"),
whether voluntarily, involuntarily, or by operation of law, unless approved by a
majority of the Voting Interests. Notwithstanding the approval of the other
Members to any Transfer by a Member, the rights of any Assignee shall be subject
at all times to the limitations set forth in Section 9.2.
(b) The restrictions of Section 9.1(a) shall not apply and no consent of
the other Members shall be required for:
(i) a redemption of the Preferred A Interest or the Preferred B
Interest pursuant to Section 4.3; and
(ii) a Transfer pursuant to Section 9.7.
9.2 Assignee.
--------
If the provisions of this Section 9 have been complied with, an Assignee
shall be entitled to receive distributions of cash or other property, and
allocations of Net Profit and Net Loss and of items of income, deduction, gain,
loss, or credit, from the Company attributable to the assigned Membership
Interests from and after the effective date of the assignment, and shall have
the right to receive a copy of the financial statements required herein to be
provided the Members, but an Assignee shall have no other rights of a Member
herein, such as rights to any other information, an accounting, inspection of
books or records, or voting as a Member on matters required by law, unless and
until such Assignee is admitted as a substitute Member pursuant to the
provisions of Section 9.3. The Company and the Manager shall be entitled to
treat the assignor as the absolute owner of the Membership Interests in all
respects, and shall incur no liability for distributions, allocations of Net
Profit or Net Loss, or transmittal of reports and notices required to be given
to Members that are made in good faith to the assignor until the effective date
of the assignment, or, in the case of the
-32-
transmittal of reports (other than the financial statements referred to above)
or notices, until the Assignee is so admitted as a substitute Member. The
effective date of an assignment shall be the first day of the calendar month
following the month in which the Manager has received an executed instrument of
assignment in compliance with this Section 9 or the first day of a later month
if specified in the executed instrument of assignment. The Assignee shall be
deemed an Assignee on the effective date, and shall be only entitled to
distributions and allocations of Net Profit and Net Loss attributable to the
period beginning on the effective date of assignment. The Company shall
attribute Net Profit and Net Loss to the period before the effective date of
assignment and to the period beginning on the effective date of assignment by
the interim closing of the Company books method set forth in Treasury Regulation
Section 1.706-1(c)(2)(ii). Each Assignee will inherit the balance of the Capital
Account, as of the effective date of assignment, of the assignor with respect to
the Membership Interests assigned.
9.3 Substitute Members.
------------------
An Assignee may not become a substitute Member unless all of the following
conditions are first satisfied:
(a) a duly executed and acknowledged written instrument of assignment shall
have been filed with the Company, specifying the Membership Interests being
assigned and setting forth the intention of the assignor that the Assignee
succeed to the assignor's interest as a substitute Member;
(b) the assignor and Assignee shall have executed and acknowledged any
other instruments that the non-assigning Members deem necessary or desirable for
substitution, including the written acceptance and adoption by the Assignee of
the provisions of this Agreement and the assumption by the Assignee of all
obligations of the assignor under this Agreement (including, in the case of a
Transfer by Insight, the obligations of Insight under Section 3.5);
(c) the assignment to the Assignee shall have complied with the other
provisions of this Section 9.
9.4 Other Consents and Requirements.
-------------------------------
Any Transfer must be in compliance with all requirements imposed by any
state securities administrator having jurisdiction over the Transfer and the
United States Securities and Exchange Commission and must not cause the Company
or any Subsidiary to be in violation of any cable television franchise, any
provision of the Communications Act of 1934, as amended, or any other law
subsequently enacted, or any rule, regulation, or policy of the Federal
Communications Commission promulgated thereunder restricting the ownership and
control of communications properties (including cable television systems,
television broadcast stations, radio broadcast stations, telephone companies,
and newspapers), including those relating to multiple ownership, cross-ownership
and cross-interest, as those terms are commonly understood in the communications
industry.
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9.5 Assignment Not In Compliance.
----------------------------
Any Transfer in contravention of any of the provisions of this Section 9
(whether voluntarily, involuntarily or by operation of law) shall be void and of
no effect, and shall neither bind nor be recognized by the Company.
9.6 [RESERVED]
9.7 Pledge and Assignment of Interest.
---------------------------------
Central may pledge its Membership Interest only for the purposes of
securing the Senior Debt, the Subordinated Debt, and any other obligations and
liabilities arising under the Loan Documents. Insight may pledge its Membership
Interest without limitation. Notwithstanding any provision of this Agreement to
the contrary, any Person to which Central or Insight pledges its Membership
Interest pursuant to this Section 9.7 (each, a "Secured Party") may exercise all
rights and remedies incident to the pledge of such Membership Interest, which
may include authority for the Secured Party (without dissolving the Company
unless dissolution is required by law):
(a) to cause the pledged Membership Interest to be assigned in whole or in
part on one or more occasions to one or more Persons (which may include the
Secured Party);
(b) to cause any assignee of the pledged Membership Interest to be admitted
as a Member having the interest so assigned;
(c) to cause the holder of the pledged Membership Interest to resign as a
Member once all of its Membership Interest has been assigned; and
(d) to cause one or more amended Certificates of Formation to be filed with
respect to the Company.
9.8 Continuing Rights and Privileges.
--------------------------------
Central shall continue to be a Member of the Company so long as it
continues to hold the Preferred A Interest or the Preferred B Interest and shall
have the rights and privileges specified in this Agreement as pertaining to the
Preferred A Interest or the Preferred B Interest or specified in this Agreement
as rights and privileges of Central.
SECTION 10. DISSOLUTION AND TERMINATION OF THE COMPANY
10.1 Events of Dissolution.
---------------------
The Company shall be dissolved upon the happening of any of the following
events:
(a) December 31, 2058;
-34-
(b) upon the affirmative vote of holders of a majority of the outstanding
Voting Interests;
(c) upon the sale of all or substantially all of the assets of the Company
in a manner permitted by this Agreement; or
(d) subject to any provision of this Agreement that limits or prevents
dissolution, the happening of any event that, under applicable law, causes the
dissolution of a limited liability company.
10.2 Liquidation.
-----------
(a) Upon dissolution of the Company for any reason, the Company shall
immediately commence to wind up its affairs. A reasonable period of time shall
be allowed for the orderly termination of the Company business, discharge of its
liabilities, and distribution or liquidation of the remaining assets so as to
enable the Company to minimize the normal losses attendant to the liquidation
process.
(b) Liquidation of the assets of the Company shall be managed on behalf of
the Company by the "Liquidator," which shall be Insight or a liquidating trustee
selected by Insight. The Liquidator shall be responsible for soliciting offers
to purchase the entirety of the Company's assets (including equity interests in
other Persons) or portions or clusters of assets of the Company.
(c) The Liquidator shall cause a full accounting of the assets and
liabilities of the Company to be taken and a statement thereof to be furnished
to each Member and each Principal within thirty days after the distribution of
all of the assets of the Company.
(d) The property and assets of the Company and the proceeds from the
liquidation thereof shall be applied in the following order of priority:
(i) first, to payment of the debts and liabilities of the Company, in
the order of priority provided by law (including any loans by any Member to the
Company) and payment of the expenses of liquidation;
(ii) second, to setting up of such reserves as the Liquidator may deem
reasonably necessary for any contingent or unforeseen liabilities or obligations
of the Company or any obligation or liability not then due and payable;
provided, however, that any such reserve shall be paid over by the Liquidator
into a Company account or a liquidating trust account established for such
purpose, to be held in such account for the purpose of disbursing such reserves
in payment of such liabilities, and, at the expiration of such holdback period
as the Liquidator shall deem advisable, to distribute the balance thereafter
remaining in the manner hereinafter provided; and
(iii) finally, remaining proceeds shall be distributed to the Members
or paid to the Manager as follows:
-35-
(A) First, if the Preferred A Interest is then outstanding, to the
holder of the Preferred A Interest in an amount equal to the sum of (x) the
amount of any distributions that were required to be made pursuant to Section
4.1(a)(i) but were not made (including any increase to such amount pursuant to
Section 4.1(b)(i)), plus (y) a pro rata portion of the Guaranteed Payment
Amount, based on the ratio of the number of days between the immediately
preceding Guaranteed Payment Date and the date on which the distribution is made
pursuant to this Section 10.2(d)(iii)(A) to the number of days between the
immediately preceding Guaranteed Payment Date and the next following Guaranteed
Payment Date, computed on the basis of a 360-day year of twelve 30-day months;
(B) Second, if the Preferred A Interest is then outstanding, to the
holder of the Preferred A Interest in an amount equal to the sum of (x) the
Preferred A Capital Amount, plus (y) the amount of any distributions that were
required to be made pursuant to Section 4.1(a)(ii) but were not made (including
any increase to such amount pursuant to Section 4.1(b)(ii)), plus (z) the amount
by which the Preferred A Preference Amount exceeds the amount described in
clause (y) of Section 10.2(d)(iii)(A);
(C) Third, if the Preferred B Interest is then outstanding, to the
holder of the Preferred B Interest in an amount equal to the sum of (x) the
Preferred B Capital Amount, plus (y) the amount of any distributions that were
required to be made pursuant to Section 4.1(a)(iii) but were not made (including
any increase to such amount pursuant to Section 4.1(b)(iii)), plus (z) the
Preferred B Preference Amount;
(D) Fourth, to the Manager in an amount equal to the sum of (x) the
amount of any distributions that were required to be made pursuant to Section
6.5 but were not made (including any increase to such amount pursuant to Section
6.5), plus (y) the Management Return;
(E) Thereafter, pro rata to the Members in proportion to their
remaining positive Capital Account balances, after reducing the Members' Capital
Account balances to take into account distributions pursuant to the foregoing
paragraphs of this Section 10.2(d)(iii).
The distributions pursuant to this Section 10.2(d)(iii) shall, to the extent
possible, be made prior to the later of the end of the Fiscal Year in which the
dissolution occurs or the ninetieth day after the date of dissolution, or such
other time period which may be permitted under Treasury Regulations Section
1.704-1(b)(2)(ii)(b).
10.3 Distribution in Kind.
--------------------
The Company shall not distribute any non-cash asset to any Member without
the consent of each Member, except that, upon liquidation of the Company, the
Company may distribute identical assets (such as shares of stock or other
securities) to the Members pro rata pursuant to Section 10.2(d)(iii)(E). The
amount distributed and charged to the Capital Account of each Member receiving
any non-cash asset shall be the fair market value of such asset, as agreed to by
the Members (net of any liability secured by such asset that such Member assumes
or takes subject to).
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Gain or loss on the disposition of any asset distributed in kind to one or more
Members shall be determined as if such asset were sold for its fair market
value, as agreed to by the Members, and such gain or loss shall then be
allocated pursuant to Section 5.
10.4 No Action for Dissolution.
-------------------------
The Members acknowledge that irreparable damage would be done to the
goodwill and reputation of the Company if any Member should bring an action in
court to dissolve the Company under circumstances where dissolution is not
required by Section 10.1. This Agreement has been drawn carefully to provide
fair treatment of all parties and equitable payment in liquidation of the
Membership Interests of both Members. Accordingly, except where liquidation and
dissolution are required by Section 10.1, each Member hereby waives and
renounces its right to initiate legal action to seek dissolution or to seek the
appointment of a receiver or trustee to liquidate the Company or to seek
partition of any assets of the Company.
10.5 No Further Claim.
----------------
Upon dissolution, each Member shall look solely to the assets of the
Company for the return of its investment, and if the property of the Company
remaining after payment or discharge of the debts and liabilities of the
Company, including debts and liabilities owed to one or more of the Members, is
insufficient to return the aggregate capital contributions of a Member, no
Member shall have any recourse against the other Members.
SECTION 11. INDEMNIFICATION
11.1 General.
-------
The Company shall indemnify, defend, and hold harmless each Member and its
members, partners, officers, directors, shareholders, employees, and agents, the
employees, officers, and agents of the Company, the Principals and the Manager
(all indemnified persons being referred to as "Indemnified Persons" for purposes
of this Section 11.1), from any liability, loss, or damage incurred by the
Indemnified Person by reason of any act performed or omitted to be performed by
the Indemnified Person in connection with the business of the Company
(including, in the case of Insight, any such act in connection with the
management of the Shareholders pursuant to the management agreements between the
Shareholders and Insight, or arising by reason of Insight's status as manager of
the Shareholders), including costs and attorneys' fees (which attorneys' fees
may be paid as incurred) and any amounts expended in the settlement of any
claims of liability, loss, or damage; provided, however, that, if the liability,
loss, damage, or claim arises out of any action or inaction of an Indemnified
Person, indemnification under this Section 11.1 shall not be available if the
action or inaction constituted fraud, gross negligence, breach of fiduciary duty
(which shall not be construed to encompass mistakes in judgment or any breach of
any Indemnified Person's duty of care that did not constitute gross negligence),
willful misconduct, or a breach of this Agreement by the Indemnified Person; and
provided, further, however, that indemnification under this Section 11.1 shall
be recoverable only from the assets of the Company and not from any assets of
the
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Members. The Company may pay for insurance covering liability of the Indemnified
Persons for negligence in operation of the Company's affairs.
11.2 Exculpation.
-----------
No Indemnified Person shall be liable, in damages or otherwise, to the
Company or to any Member for any loss that arises out of any act performed or
omitted to be performed by it or him pursuant to the authority granted by this
Agreement unless the conduct of the Indemnified Person constituted fraud, gross
negligence, breach of fiduciary duty (which shall not be construed to encompass
mistakes in judgment or any breach of any Indemnified Person's duty of care that
did not constitute gross negligence), willful misconduct, or a breach of this
Agreement by such Indemnified Person.
11.3 Persons Entitled to Indemnity.
-----------------------------
Any Person who is within the definition of "Indemnified Person" at the time
of any action or inaction in connection with the business of the Company shall
be entitled to the benefits of Section 11.1 as an "Indemnified Person" with
respect thereto, regardless of whether such Person continues to be within the
definition of "Indemnified Person" at the time of his or its claim for
indemnification or exculpation hereunder.
SECTION 12. BOOKS, RECORDS, ACCOUNTING, AND REPORTS
12.1 Books and Records.
-----------------
The Company shall maintain at its principal office all of the following:
(a) A current list of the full name and last known business or residence
address of each Member together with the Capital Contributions and Membership
Interest of each Member;
(b) A copy of the Certificate of Formation, this Agreement, and any and all
amendments to either thereof, together with executed copies of any powers of
attorney pursuant to which any certificate or amendment has been executed;
(c) Copies of the Company's federal, state, and local income tax or
information returns and reports, if any, for the six most recent taxable years;
(d) The audited financial statements of the Company for the six most recent
Fiscal Years; and
(e) The Company's books and records for at least the current and past three
Fiscal Years.
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12.2 Delivery to Member and Inspection.
---------------------------------
(a) Upon the request of a Member or a Principal, the Company shall promptly
deliver to the requesting Member or Principal, at the expense of the Company, a
copy of the information required to be maintained by Section 12.1 except for
Section 12.1(e).
(b) Each Member and each Principal, or its duly authorized representative,
has the right, upon reasonable request, to inspect and copy during normal
business hours any of the Company records.
12.3 Annual Statements.
-----------------
(a) The Company shall cause to be prepared for each Member and each
Principal at least annually, at Company expense, audited financial statements of
the Company and a consolidated audited financial statement for the Company and
the Subsidiaries in accordance with generally accepted accounting principles,
along with supplemental information for the Company and each Subsidiary, and
accompanied by a report thereon containing the opinion of Ernst & Young LLP or
other nationally recognized accounting firm chosen by the Manager. The financial
statements will include a balance sheet, statement of income or loss, statement
of cash flows, and statement of Members' equity. The supplemental information
will consist of a consolidating balance sheet and a consolidating statement of
operations and Members' equity for the preceding Fiscal Year. The Company shall
distribute the financial statements or portions thereof to each Member as
follows:
(i) the Company shall distribute to each Member and each Principal a
statement setting forth the net income or loss of the Company for each Fiscal
Year within forty-five days after the close of such Fiscal Year;
(ii) the Company shall distribute to each Member and each Principal
the balance sheet, statement of income or loss, statement of cash flows, and
statement of Members' equity to be included in the financial statements for each
Fiscal Year within forty-five days after the close of such Fiscal Year;
(iii) the Company shall distribute to each Member and each Principal
the complete audited financial statements for each Fiscal Year as soon as
practicable after the close of such Fiscal Year and, in any event, by March 15
of the year following the close of such Fiscal Year.
(b) The Company shall have prepared at least annually, at Company expense,
Company information necessary for the preparation of each Member's federal and
state income tax returns. The Company shall send the information described in
this paragraph to each Member and each Principal within ninety days after the
end of each Fiscal Year and shall use commercially reasonable efforts to send
such information to each Member and each Principal within seventy-five days
after the end of each Fiscal Year.
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(c) The Company shall also cause to be distributed to each Member and each
Principal, within ten days after delivery to the Company, any audited financial
statements that are prepared with respect to any Subsidiary the financial
statements of which are not consolidated with the financial statements of the
Company.
(d) The Company, shall distribute to each Member and each Principal,
promptly after they become available, copies of the Company's federal, state,
and local income tax or information returns for each taxable year.
12.4 Quarterly Financial Statements.
------------------------------
At the close of each of the first three quarters of any Fiscal Year, the
Company shall cause to be distributed to each Member and each Principal a
quarterly report covering each calendar quarter of the operations of the Company
and the Subsidiaries, consisting of unaudited financial statements (comprising a
balance sheet, a statement of income or loss, and a statement of cash flows),
and a statement of other pertinent information regarding the Company and the
Subsidiaries and their activities. The Company shall cause copies of the
statements and other pertinent information (including selected financial data of
the Company that complies with the requirements of APB Opinion No. 18 and Rule
4-08(g) of Regulation S-X under the Securities Act and any other applicable
rules pursuant to Regulation S-X under the Securities Act) to be distributed to
each Member and each Principal within thirty days after the close of the
calendar quarter to which the statements relate. The Company shall distribute to
each Member and each Principal a statement setting forth the net income or loss
of the Company for each calendar quarter within thirty days after the close of
such calendar quarter. The Company shall also cause to be distributed to each
Member and each Principal, within ten days after delivery to the Company, any
quarterly report that is prepared with respect to any Subsidiary the operating
results of which are not included in the quarterly report of the Company.
12.5 Monthly Statements.
------------------
The Company shall cause to be distributed to each Member and each Principal
a monthly report covering each calendar month of the operations of the Company
and each Subsidiary, consisting of unaudited statements of income and loss for
the Company and each Subsidiary. The Company shall cause copies of the
statements to be distributed to each Member and each Principal within thirty
days after the close of the calendar month covered by such report. The Company
shall also cause to be distributed to each Member and each Principal, within ten
days after delivery to the Company, any monthly report that is prepared with
respect to any Subsidiary the operating results of which are not included in the
monthly report of the Company.
12.6 Other Information.
-----------------
The Company shall provide to each Member and each Principal any other
information and reports relating to any cable television systems or other
businesses owned by, and the financial condition of, the Company, each
Subsidiary, and any other Person in which the Company owns,
-40-
directly or indirectly, an equity interest, that such Member or Principal may
reasonably request, including, in the case of Central, any information that
Central is required to distribute to holders of the Senior Debt or the
Subordinated Debt. The Company shall distribute to each Member and each
Principal, promptly after the receipt thereof by the Company, any financial or
other information with respect to any Person in which the Company owns, directly
or indirectly, an equity interest, but which is not a Subsidiary.
12.7 Tax Matters.
-----------
To the extent permitted by law, the Company shall be treated as a
partnership for federal and state income tax and franchise tax purposes. This
Section 12.7 shall not prohibit any Member or any Affiliate of any Member from
taking any action that is not prohibited by Section 2.13.
12.8 Other Filings.
-------------
The Company, at Company expense, shall also prepare and timely file, with
appropriate federal and state regulatory and administrative bodies, all reports
required to be filed by the Company with those entities under then current
applicable laws, rules, and regulations. The reports shall be prepared on the
accounting or reporting basis required by the regulatory bodies. Upon written
request, the Manager shall provide each Member and each Principal with a copy of
any of such reports, without expense to the requesting Member or Principal.
12.9 Non-Disclosure.
--------------
Any Member or Principal to which non-public information is furnished
pursuant to this Agreement agrees to keep such information confidential and not
to disclose such information, in any manner whatsoever, in whole or in part, and
to use the degree of care that it uses with respect to its own confidential
information to prevent disclosure of such information by its agents,
representatives, or employees, in any manner whatsoever, in whole or in part,
except that:
(a) each Member and Principal shall be permitted to disclose such
information to those of its agents, representatives, and employees who need to
be familiar with such information in connection with such Member or Principal's
investment in the Company,
(b) each Member and Principal shall be permitted to disclose such
information to its Affiliates,
(c) Central shall be permitted to disclose such information to its lenders
and to the other Borrowers, and each Borrower shall be permitted to disclose
such information to its lenders;
(d) the Principals may use such information, as appropriate, in the
preparation of their personal financial statements and other similar documents,
which may then be disclosed by the Principals as they deem appropriate;
-41-
(e) each Member shall be permitted to disclose information to the extent
required by law, including federal or state securities laws or regulations, or
by the rules and regulations of any stock exchange or association on which
securities of such Member or any of its Affiliates are traded, so long as such
Member shall have first afforded the Company with a reasonable opportunity to
contest the necessity of disclosing such information,
(f) each Member and Principal shall be permitted to disclose information to
the extent necessary for the enforcement of any right or the performance of any
obligation of such Member and Principal (including obligations of a Member in
its capacity as Manager) arising under this Agreement,
(g) each Member and Principal shall be permitted to disclose information
that is or becomes generally available to the public other than as a result of a
disclosure by such Member or Principal, its agents, representatives, or
employees, and
(h) each Member and Principal shall be permitted to disclose information
that becomes available to such Member or Principal on a nonconfidential basis
from a source (other than the Company, a Member, or their respective agents,
representatives, and employees) that such Member or Principal believes is not
prohibited from disclosing such information to such Member or Principal by a
legal, contractual, or fiduciary obligation to the Company or any Member.
SECTION 13. AMENDMENTS AND WAIVERS
13.1 Amendments to Operating Agreement.
---------------------------------
(a) This Agreement may only be modified or amended with the consent of all
the holders of the Common Interests, except that any amendment which would alter
or change the powers, preferences, rights or obligations of Central or the
Principals with respect to their interests in the Company so as to affect them
adversely shall require the consent of all the Members and the Principals at any
time that any Preferred A Interest or Preferred B Interest is outstanding and
the Principals own, directly or indirectly, any interest in Central or the
Shareholders.
(b) The Company shall prepare and file any amendment to the Certificate of
Formation that may be required to be filed under the Act as a consequence of any
amendment to this Agreement.
13.2 Waivers.
-------
The observance or performance of any term or provision of this Agreement
may be waived (either generally or in a particular instance, and either
retroactively or prospectively) by the party entitled to the benefits of such
term or provision, but no provision of this Agreement may be waived except by a
written instrument specifically waiving such provision and executed by the party
to be charged with such waiver, and no provision of this Agreement may be waived
by Central without the prior written consent of the Principals in a written
instrument specifically consenting to such
-42-
waiver. No delay on the part of any Member in exercising any right, power, or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
waiver on the part of any Member of any right, power, or privilege under this
Agreement operate as a waiver of any other right, power, or privilege under this
Agreement, nor shall any single or partial exercise of any right, power, or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power, or privilege under this Agreement.
SECTION 14. STATUS OF PRINCIPALS
14.1 Principals Not Members.
----------------------
The Principals are not members of the Company for purposes of the Act and
shall have none of the rights of a member of a limited liability company under
the Act, except to the extent that the Principals are afforded such rights under
the express provisions of this Agreement.
14.2 Provisions for the Benefit of Principals.
----------------------------------------
The parties acknowledge that the Principals have a significant economic
interest in the Company through their ownership of the Shareholders and are
relying on the provisions of this Agreement to protect and preserve such
interest. Accordingly, each provision of this Agreement is intended to be for
the benefit of, and shall be enforceable by, the Principals.
14.3 Assignment or Rights.
--------------------
None of the rights of any Principal under this Agreement may be assigned or
otherwise transferred except, following the death of a Principal, pursuant to
the laws of descent and distribution.
14.4 Termination of Rights and Obligations.
-------------------------------------
Notwithstanding any provision of this Agreement to the contrary, all rights
and obligations of the Principals under this Agreement, except for those arising
under Section 12.9, shall terminate at such time as the Principals cease to own,
directly or indirectly, any interest in the Company.
14.5 Actions by Principals.
---------------------
Any action to be taken by the Principals under this Agreement (including
exercising any right, granting any consent or approval, making any election, or
giving any notice) shall be taken by all of the Principals collectively, with
the decision to take or to refrain from taking any such action being made by the
Principals in such manner as they may agree upon among themselves. The
Principals shall from time to time jointly designate one or more agents to
execute on their behalf any instrument necessary to evidence any action taken
collectively by the Principals under this Agreement. The Company and each Member
shall be entitled to rely upon any instrument delivered to it under this
Agreement and purporting to be (a) the joint designation by the Principals of
any such agent or (b) an instrument executed by such agent to evidence any
action taken collectively by the
-43-
Principals under this Agreement, and may assume that any Person signing such
instrument has been duly authorized to do so.
14.6 Limited Recourse.
----------------
Each party agrees that no Principal shall have any personal liability
whatsoever under this Agreement, and any damages suffered by any party as a
result of any failure of a Principal to perform his obligations under this
Agreement, to the extent such party would be entitled to remedy therefor but for
this Section 14.6, shall be satisfied, if at all, from the assets of Central.
SECTION 15. MISCELLANEOUS
15.1 Captions.
--------
All article, section, or paragraph captions contained in this Agreement are
for convenience only and shall not be deemed part of this Agreement.
15.2 Pronouns; Singular and Plural Form.
----------------------------------
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, and neuter as the identity of the Person or Persons
referred to may require, and all words shall include the singular or plural as
the context or the identity of Persons may require. The words "include,"
"includes," and "including" are not limiting.
15.3 Further Action.
--------------
Each Member agrees to execute, with acknowledgment or affidavit, if
required, any documents and writings in furtherance of this Agreement, including
(a) amendments of this Agreement adopted pursuant to this Agreement, (b) any
amendments, certificates, and other documents that the Company deems necessary
or appropriate to qualify or continue the Company as a limited liability company
in all jurisdictions in which the Company conducts or plans to conduct business
or owns or plans to own property, and (c) all agreements, certificates, tax
statements, tax returns, and other documents that may be required of the Company
or its Members under applicable law.
15.4 Entire Agreement.
----------------
This Agreement contains the entire understanding among the parties and
supersedes any prior understandings and agreements among them regarding the
subject matter of this Agreement.
15.5 Agreement Binding.
-----------------
This Agreement shall be binding upon the successors and assigns of the
parties.
-44-
15.6 Equitable Remedies.
------------------
The rights and remedies of the parties under this Agreement are not
mutually exclusive. Each of the parties confirms that damages at law may not
always be an adequate remedy for a breach or threatened breach of this Agreement
and agrees that, in the event of a breach or threatened breach of any provision
of this Agreement, the respective rights and obligations under this Agreement
shall be enforceable by specific performance, injunction, or other equitable
remedy.
15.7 Notices.
-------
All notices, demands, and requests required or permitted to be given under
the provisions of this Agreement shall be in writing and shall be deemed to have
been duly delivered and received (a) on the date of personal delivery, or (b) on
the date of receipt (as shown on the return receipt) if mailed by registered or
certified mail, postage prepaid and return receipt requested, or if sent by
Federal Express or similar courier service, with all charges prepaid, in each
case addressed to the Member or Principal at the address set forth on Schedule I
or at the last address furnished by the Member or Principal to the other parties
by notice pursuant to this Section 15.7. Nothing in this Section 15.7 shall
preclude the delivery of notices by appropriate means other than those described
above, including telex or facsimile.
15.8 Severability.
------------
If any provision or part of any provision of this Agreement shall be
invalid or unenforceable in any respect, such provision or part of any provision
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provision or the
remaining provision of this Agreement.
15.9 Counterparts.
------------
This Agreement may be signed in counterparts with the same effect as if the
signature on each counterpart were upon the same instrument.
15.10 Governing Law.
-------------
This Agreement shall be governed, construed, and enforced in accordance
with the laws of the State of Delaware (without regard to the choice of law
provisions thereof).
15.11 No Third-Party Beneficiaries.
----------------------------
This Agreement is not intended to, and shall not be construed to, create
any right enforceable by any Person that is not a party to this Agreement,
including any creditor of the Company or of any of the Members or Principals.
-45-
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of the date first written above.
MEMBERS:
COAXIAL COMMUNICATIONS OF CENTRAL
OHIO, INC.
By:_________________________
Name:
Title:
INSIGHT HOLDINGS OF OHIO, LLC
By: Insight Communications Company, L.P.,
its member
By: Insight Communications Company, Inc.,
its general partner
By:_________________________
Name:
Title:
PRINCIPALS:
--------------------------------
Xxxxx Xxxxxxxxxxx
--------------------------------
Xxxxxx XxXxxxxxxxxx
--------------------------------
X. Xxxxxxx XxXxx
-46-
MANAGER:
INSIGHT COMMUNICATIONS COMPANY, L.P.
By: Insight Communications Company, Inc.,
its general partner
By:_________________________
Name:
Title:
-47-
SCHEDULE I
TO
OPERATING AGREEMENT
ADDRESSES OF THE PARTIES
Insight Holdings of Ohio, LLC
c/o Insight Communications, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Coaxial Communications of Central Ohio, Inc.
c/o Coaxial Communications
0000 Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
Xxxxx Xxxxxxxxxxx
c/o Coaxial Communications
0000 Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
Xxxxxx XxXxxxxxxxxx
c/o Coaxial Communications
0000 Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
X. Xxxxxxx XxXxx
c/o Coaxial Communications
0000 Xxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
-48-
SCHEDULE II
TO
OPERATING AGREEMENT
[RESERVED]
-49-
SCHEDULE III
TO
OPERATING AGREEMENT
TERMS RELATING TO PREFERRED INTERESTS
"Guaranteed Payment Amount" means $2,991,791.38.
"Guaranteed Payment Date" means each February 15 and August 15 of each
year.
"Management Return Payment Date" means each February 15 and August 15 of
each year.
"Preferred A Distribution Date" means each February 15 and August 15 of
each year.
"Preferred A Rate" means ten percent per year; provided, however, that the
Preferred A Rate shall be increased by the amount of any increase in the
interest rate payable with respect to the Senior Notes pursuant to Section 4 of
the Senior Notes Registration Rights Agreement, dated as of August 21, 1998.
"Preferred B Distribution Date" means each February 15 and August 15 of
each year.
"Preferred B PIK Termination Date" means August 15, 2003.
"Preferred B Rate" means twelve and seven-eighths percent per year;
provided, however, that the Preferred B Rate shall be increased by the amount of
any increase in the interest rate payable with respect to the Discount Notes
pursuant to Section 4 of the Discount Notes Registration Rights Agreement, dated
as of August 21, 1998.
-50-
