Page
Article I – DEFINITIONS			2
	SECTION 1.1	Definitions	2
	SECTION 1.2	Terms Generally	26
Article II – GENERAL PROVISIONS			27
	SECTION 2.1	Formation	27
	SECTION 2.2	Name	27
	SECTION 2.3	Term	27
	SECTION 2.4	Purpose; Powers	27
	SECTION 2.5	Registered Office; Registered Agent; Principal Office; Other Offices	28
	SECTION 2.6	No State-Law Partnership	28
Article III – UNITS			28
	SECTION 3.1	Authorized Units; Certificates; Article 8 Opt-in	28
	SECTION 3.2	Capital Structure of the Company and Charter	30
	SECTION 3.3	Optional Conversion of Convertible Preferred Units	34
	SECTION 3.4	Other Conversion or Redemption of Convertible Preferred Units	44
	SECTION 3.5	Automatic Exchange/Conversion of Units Pursuant to a Foreclosure.	46
	SECTION 3.6	Mandatory Redemption of Series A Preferred Units	47
	SECTION 3.7	General	48
	SECTION 3.8	Voting	49
Article IV – MANAGEMENT			49
	SECTION 4.1	Manager	49
	SECTION 4.2	Members	49
	SECTION 4.3	Officers	50
	SECTION 4.4	Management Matters	52
	SECTION 4.5	Liability of Members	52
	SECTION 4.6	Exculpation; Indemnification by the Company	52
	SECTION 4.7	Manager Expenses	54
	SECTION 4.8	Exclusivity of Business	55
Article V – ALLOCATIONS; DISTRIBUTIONS			57
	SECTION 5.1	Capital Account Creation	57
	SECTION 5.2	Capital Account Negative Balance	57
	SECTION 5.3	Allocations of Net Income and Net Loss	57

	SECTION 5.4	Distributions	63
Article VI – RESIGNATION; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS			77
	SECTION 6.1	Member Withdrawal	77
	SECTION 6.2	Dissolution	77
	SECTION 6.3	Transfer by Members	79
	SECTION 6.4	Admission or Substitution of New Members	80
	SECTION 6.5	Right of First Offer and Matching Right.	81
Article VII – REPORTS TO MEMBERS; TAX MATTERS			84
	SECTION 7.1	Books of Account	84
	SECTION 7.2	Reports	84
	SECTION 7.3	Fiscal Year	85
	SECTION 7.4	Certain Tax Matters	85
Article VIII – MISCELLANEOUS			90
	SECTION 8.1	Exhibits	90
	SECTION 8.2	Governing Law; Severability; Selection of Forum; Waiver of Trial by Jury	90
	SECTION 8.3	Successors and Assigns; No Third-Person Beneficiaries	91
	SECTION 8.4	Confidentiality	91
	SECTION 8.5	Amendments	91
	SECTION 8.6	Notices	91
	SECTION 8.7	Counterparts	92
	SECTION 8.8	Non-Circumvention	92
	SECTION 8.9	Entire Agreement	92
	SECTION 8.10	Specific Performance	92
	SECTION 8.11	Control of Subsidiaries	92
	SECTION 8.12	Section 16b-3	92

Schedule I	Members
Exhibit A	Example Calculation of Assumed Tax Rate
Exhibit B	Form of Convertible Preferred Unit Certificate
Exhibit C	Form of Joinder Agreement
Exhibit D	Form of Conversion Notice
Exhibit E	Transferee Tax Representations
Exhibit F	Make-Whole Table
Exhibit G	Preferred Unit Valuation Assumptions
Exhibit H	Form of Tax Loan Agreement

1.

Charter Communications, Inc., a Delaware corporation (“Charter”);

2.

CCH II, LLC, a Delaware limited liability company (“CCH II”);

3.

Cox Communications Equity Holdings, Inc., a Delaware corporation (“Cox”);

4.

Segra Acquisition Holdings, Inc., a Delaware corporation (“NewCo 2”);

5.

Fiber Holdings Acquisition Holdings, Inc., a Delaware corporation (“NewCo 3”);

6.

Fiber Blocker Acquisition Holdings, Inc., a Delaware corporation (“NewCo 4”);

7.

RapidScale Acquisition Holdings, Inc. (“NewCo 5”);

8.

CCH Holding Company, LLC, a Delaware limited liability company (“CCH Holding”);

9.

Hunter Acquisition Holding, Inc., a Delaware corporation (“Hunter”);

10.

Insight Blocker, LLC, a Delaware limited liability company (“Insight Blocker”);

11.

Cabot Acquisition Group, Inc., a Delaware corporation (“Cabot Acquiror,” and together with CCH II, NewCo 2, NewCo 3, NewCo 4, NewCo 5, CCH Holding, Hunter, Insight Blocker and any Person or Persons in the Charter Group to whom CCH II, NewCo 2, NewCo 3, NewCo 4 or NewCo 5 transfers any Units or who otherwise holds any Units, the “Charter Member”);

12.

Advance/Newhouse Partnership, a New York partnership (“A/N”);

13.

the Company; and

14.

each other Person who at any time after the date hereof becomes a Member in accordance with the terms of this Agreement and the Act.

(i)

any Capital Contributions made by such Member;

(ii)

allocations to such Member of Net Income (or items of income or gain) pursuant to Section 5.3(a) and any items in the nature of income or gain that are specially allocated to such Member pursuant to Section 5.3(c); and

(iii)

the amount of any Company liabilities assumed by such Member as provided in Regulations Section 1.704-1(b)(2)(iv)(c)(1).

(i)

the amount of money and the Gross Asset Value of any property distributed to such Member by the Company in respect of such Member’s Membership Interest;

(ii)

allocations to the Member of any Net Loss (or items of loss or deduction) pursuant to Section 5.3(a) and any items in the nature of loss or deduction that are specially allocated to such Member pursuant to Section 5.3(c); and

(iii)

the amount of any liabilities of such Member assumed by the Company as provided in Regulations Section 1.704-1(b)(2)(iv)(c)(2).

(i)           In accordance with Section 704(c) of the Code and the Regulations promulgated thereunder, but subject to Section 5.3(b)(iii), each item of income, gain, loss and deduction with respect to any property or liability contributed to the capital of the Company through the date hereof 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 or liability to the Company for U.S. federal income tax purposes and its initial Gross Asset Value using the “traditional method” pursuant to Regulations Section 1.704-3(b), provided that, to the extent permitted under the Code and Regulations, with respect to any such Company asset or liability that was contributed to the Company through the date hereof, the remaining amount of contributed tax basis in such asset or liability shall be allocated entirely to the forward Section 704(c) layer, if any, that is attributable to such contributed asset or liability and no portion of such tax basis shall be allocated to any reverse Section 704(c) layer that is attributable to such contributed asset or liability in the event the Gross Asset Value of such Company asset or liability is subsequently adjusted pursuant to Section 5.3(b)(ii) and Section 5.3(b)(iii).

 

(ii)          In the event the Gross Asset Value of any Company asset is adjusted pursuant to clause (2) 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 basis of such asset for United States federal income tax purposes and its Gross Asset Value in the same manner as under Section 704(c) of the Code and the Regulations promulgated thereunder using any method permitted under Regulations Section 1.704-3 as reasonably determined by the Manager, subject to Section 5.3(b)(iii).

 

(iii)        With respect to any Company liability that is interest-bearing indebtedness for money borrowed that has a Gross Asset Value that differs from its adjusted issue price, if and to the extent the Company’s Section 704(c) method of allocating tax items of income, gain, loss or deduction with respect to such differences results in an allocation to Cox of total interest expense with respect to such liabilities that is less than the amount of such interest expense that would have been allocated to Cox if such interest expense were allocated in accordance with Percentage Interests as determined for the relevant tax period (such difference, the “704(c) Shortfall”), the Manager shall use commercially reasonable efforts to apply Section 704(c) methodologies (including the use of limited curative allocations under Regulations Section 1.704-3(c)) to cause the Company to allocate, to the extent legally possible, additional tax items of loss or deduction to Cox in an amount equal to the 704(c) Shortfall.

 

(iv)         In the event of the exercise of the conversion right of any Convertible Preferred Units pursuant to Section 3.3(a) by any Member or pursuant to Section 3.4(a) and if and to the extent of a corresponding re-allocation of the Members’ Capital Account balances under Regulations Section 1.704-1(b)(2)(iv)(s)(3), the Company shall, beginning with the Taxable Period in which the conversion right is exercised and in all succeeding Taxable Periods until the required allocations are fully taken into account, make corrective allocations of items of income, gain, loss, deduction and credit solely for tax purposes to adjust for such capital account re-allocation, as required under Regulations Section 1.704-1(b)(4)(x).

 

(v)          Subject to the provisions of Section 5.3(b)(i), (ii) and (iii), items of Company income, gain, loss, deduction and credit to be allocated for tax purposes shall, for each Taxable Period, be allocated among the Members in the same manner and in the same proportion as such items are allocated among the Members’ respective Adjusted Capital Accounts.

 

(vi)          Allocations pursuant to this Section 5.3(b) are solely for U.S. federal, state and local income tax purposes, and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Net Income, Net Loss, other items, or distributions pursuant to any provision of this Agreement.

 

(c)          Special Allocations.

 

(i)           Certain Special Allocations.  Notwithstanding anything to the contrary set forth in this Agreement, the following special allocations, if applicable, shall be made in the order set forth below.

 

(A)          Company Minimum Gain Chargeback.  Except as otherwise provided in Regulations Section 1.704-2(f), notwithstanding any other provision of this Section 5.3, if there is a net decrease in Company Minimum Gain during any Taxable Period, each Member shall be specially allocated items of Company income and gain for such Taxable Period (and, if necessary, subsequent Taxable Periods) in an amount equal to such Member’s share of such net decrease in Company Minimum Gain during such Taxable Period, determined in accordance with Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 5.3(c)(i)(A) is intended to comply with the minimum gain chargeback requirements set forth in Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.

 

(B)          Member Minimum Gain Chargeback.  Except as otherwise provided in Regulations Section 1.704-2(i)(4), notwithstanding any other provision of this Section 5.3, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Taxable Period, each Member that has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Taxable Period (and, if necessary, subsequent Taxable Periods) in an amount equal to such Member’s share of such net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt during such Taxable Period, determined in accordance with Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto.  The items to be so allocated shall be determined in accordance with Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2).  This Section 5.3(c)(i)(B) is intended to comply with the minimum gain chargeback requirement set forth in Regulations Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

 

(C)         Qualified Income Offset.  In the event any Member unexpectedly receives any adjustments, allocations or distributions described in subparagraphs (4), (5) or (6) of Regulations Section 1.704-1(b)(2)(ii)(d), 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 such Regulations, such Member’s Adjusted Capital Account Deficit as quickly as possible; provided that an allocation pursuant to this Section 5.3(c)(i)(C) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Section 5.3 have been tentatively made as if this Section 5.3(c)(i)(C) were not in this Agreement.  This Section 5.3(c)(i)(C) is intended to comply with the “qualified income offset” requirements set forth in Regulations Section 1.704-1(b)(2)(ii)(d)(3) and shall be interpreted consistently therewith.

 

(D)          Gross Income Allocation.  In the event any Member has a deficit Capital Account at the end of any Taxable Period that is in excess of the sum of (i) the amount such Member is obligated to restore, if any, pursuant to any provision of this Agreement, and (ii) the amount such Member is obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess, as quickly as possible; provided that an allocation pursuant to this Section 5.3(c)(i)(D) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other allocations provided for in this Section 5.3 have been tentatively made as if Section 5.3(c)(i)(C) and this Section 5.3(c)(i)(D) were not in this Agreement.

 

(E)          Nonrecourse Deductions.  Nonrecourse Deductions for any Taxable Period shall be specially allocated among the Members in accordance with a Member’s share of Company profits under Regulations Section 1.752-3(a)(3).

 

(F)          Member Nonrecourse Deductions.  Any Member Nonrecourse Deductions for any Taxable Period shall be specially allocated to the Member that bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Regulations Section 1.704-2(i)(1).

 

(G)          Section 754 Adjustments.  To the extent an adjustment to the adjusted tax basis for U.S. federal income tax purposes of any Company asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Member in complete liquidation of such Member’s Membership Interest, the amount of such adjustment to Capital Accounts 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 pro rata in accordance with the manner in which it would be allocated under Section 5.3(a) in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to whom such distribution was made, in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.

 

(H)          For each Taxable Period, items of Company gross income and gain shall be allocated (I) to the Members holding Convertible Preferred Units at the beginning of such Taxable Period in an amount equal to the aggregate Convertible Preferred Unallocated Yield with respect to all Convertible Preferred Units held by such Member during the Taxable Period, pro rata in proportion to the aggregate Convertible Preferred Unallocated Yield with respect to the Convertible Preferred Units held by each such Member during the Taxable Period and (II) to the Members holding Series A Preferred Units at the beginning of such Taxable Period in an amount equal to the aggregate Series A Preferred Dividend Amounts for all Series A Preferred Dividend Payment Dates in such Taxable Period with respect to all Series A Preferred Units held by each such Member during the Taxable Period, pro rata in proportion to such aggregate Series A Preferred Dividend Amounts with respect to the Series A Preferred Units held by each such Member during the Taxable Period.  For the avoidance of doubt, any Member whose Convertible Preferred Units are converted pursuant to Section 3.3(a) or pursuant to Section 3.4(a) during the current Taxable Period will be allocated gross income and gain in the current Taxable Period pursuant to the prior sentence with respect to the Convertible Preferred Units so converted.

 

(I)           In the event of the exercise of the conversion right of any Convertible Preferred Units pursuant to Section 3.3(a) by any Member or pursuant to Section 3.4(a) during the current Taxable Period (“Current Period Converted Units”), after giving effect to the allocations in Section 5.3(c)(i)(A)-(H), the Company shall make allocations in respect of the Current Period Converted Units in accordance with the principles outlined in Regulations Section 1.704-1(b)(2)(iv)(s). For the avoidance of doubt, the portion of a Member’s Capital Account that is attributable to such Member’s Current Period Converted Units will be increased or decreased under this Section 5.3(c)(i)(I) to an amount that represents such Member’s rights to partnership capital in respect of the Units received by such Member in respect of the Current Period Converted Units. If a Member’s Capital Account is to be increased under this Section 5.3(c)(i)(I), such Member shall be specially allocated a pro-rata share of all items of gain attributable to increases in the Gross Asset Values of Company property resulting from adjustments to the Gross Asset Value of Company property for the current Taxable Period in an amount equal to such increase. If a Member’s Capital Account is to be reduced under this Section 5.3(c)(i)(I), such Member shall be specially allocated a pro-rata share of all items of loss attributable to decreases in the Gross Asset Values of Company property resulting from adjustments to the Gross Asset Value of Company property for the current Taxable Period in an amount equal to such decrease. To the extent that there are insufficient items of gain or loss to make the allocations required by this Section 5.3(c)(i)(I), the Company will re-allocate amounts among the Capital Accounts of the Members in the manner outlined in Regulations Section 1.704-1(b)(2)(iv)(s)(3).

 

(J)           Curative Allocations.  The allocations set forth in Section 5.3(c)(i)(A)–(G) (the “Regulatory Allocations”) are intended to comply with certain requirements of the 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 5.3(c)(i)(J).  Therefore, notwithstanding any other provision of this Section 5.3 (other than the Regulatory Allocations), the Company shall make such offsetting special allocations of Company income, gain, loss or deduction in whatever manner it determines 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 part of this Agreement and all Company items were allocated pursuant to Section 5.3(a) and Section 5.3(d) of this Agreement. For the avoidance of doubt, in making allocations pursuant to this Section 5.3(c)(i)(J), the Company shall take into account future Regulatory Allocations under Section 5.3(c)(i)(A) and Section 5.3(c)(i)(B) that, although not yet made, are likely to offset other Regulatory Allocations previously made under Section 5.3(c)(i)(E) and Section 5.3(c)(i)(F) of this Agreement.

 

(d)          Other Allocation Rules.

 

(i)           The allocation provisions set forth in this Section 5.3 and other provisions of this Agreement relating to maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner consistent with such Regulations.

 

(ii)          For purposes of determining the Net Income, Net Loss or any other items allocable to any period, Net Income, Net Loss and any such other items shall be determined on a daily, monthly or other basis, as determined by the Tax Matters Member using any permissible method under Section 706 of the Code and the Regulations thereunder.

 

(iii)          If the Percentage Interest of any one or more Members changes or any Convertible Preferred Units or Series A Preferred Units are Transferred during the Fiscal Year, all items of Company income, loss, deduction and credit shall be allocated among the Members for such Fiscal Year in a reasonable manner, as determined by the Manager, that takes into account the varying Percentage Interests of the Members in the Company and/or such Transfer of Convertible Preferred Units or Series A Preferred Units during such Fiscal Year in accordance with Section 706 of the Code; provided that the “interim closing method” and the “calendar day convention” pursuant to Regulations Section 1.706-4 shall be used for such purpose with respect to the Transaction (as defined in the Transaction Agreement) and the Closing Date.

 

(iv)          The Members are aware of the income tax consequences of the allocations made hereby and hereby agree to be bound by the provisions of this Agreement in reporting their shares of Company income and loss for income tax purposes.

 

(v)          The Manager shall determine, in its reasonable discretion, the methodology for determining the allocation of “excess nonrecourse liabilities” of the Company (within the meaning of Regulations Section 1.752-3(a)(3)) among the Members and the methodology for allocating “nonrecourse liabilities” among assets of the Company for purposes of Regulations Section 1.752-3(b); provided, however, that in exercising its discretion, the Manager shall act in good faith to make such determinations in a manner that is fair and reasonable with respect to each Member and to the Members as a whole and, without limiting the generality of the foregoing, shall use commercially reasonable efforts to minimize, to the extent possible, (A) the amount of any gain, including Section 731(a) of the Code gains, recognized by a Member due to deemed distributions under Section 752(b) of the Code, and (B) any limitation on the allowance of Company losses under Section 704(d) of the Code due to a Member having insufficient basis in its Units to claim its distributive share of losses of the Company, provided that such efforts do not require the Company to incur additional liabilities. Consistent with the foregoing, if a Member transfers less than all of its Units, the Manager shall use its discretion in determining methodologies for the year of the transfer so that, to the greatest extent reasonably possible, (X) the transferring Member’s share of Company liabilities under Section 752 of the Code immediately after such transfer, divided by such Member’s share of Company liabilities under Section 752 of the Code immediately prior to such transfer, equals (Y) the proportion of the transferring Member’s Capital Account immediately prior to such transfer (determined as if the Members’ Capital Accounts were revalued pursuant to Regulations Section 1.704-1(b)(2)(iv)(f) immediately prior to such transfer) that is attributable to the Units retained by the transferring Member.

 

SECTION 5.4      Distributions.

 

(a)          Distributions Generally.

 

(i)           Subject to and in accordance with this Section 5.4 (including, for the avoidance of doubt, subject to and in accordance with the limitations set forth in Section 5.4(c)), the Company shall make distributions to the Members as follows:

 

(A)          to the Members holding Convertible Preferred Units, when, as and if declared by the Manager, cumulative preferential cash distributions in an amount equal to the Convertible Preferred Yield per Convertible Preferred Unit.   If declared, such distributions will be payable quarterly in arrears, and, if not declared, shall be deemed to have become due quarterly and in arrears, on the first calendar day of January, April, July and October of each year (each a “Convertible Preferred Unit Distribution Payment Date”), commencing on the first of such payment dates to occur following the original date of issuance of each such Convertible Preferred Unit.  If any date on which distributions are to be made on the Convertible Preferred Units is not a Business Day, then payment of the distribution to be made on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.  The Members holding Convertible Preferred Units shall not be entitled to any distributions in respect of such Convertible Preferred Units, whether payable in cash, other property or otherwise, in excess of the full cumulative distributions described in this Section 5.4(a)(i)(A), which full cumulative distributions include any unpaid Preferred Accrued Distribution Amounts.  For the avoidance of doubt, all Preferred Tax Distributions shall be considered distributions paid pursuant to this Section 5.4(a)(i)(A) or Section 5.4 (a)(i)(B) (as the case may be) for purposes of this Agreement. Any distribution payment made on the Convertible Preferred Units shall (x) first be credited against the earliest accrued but unpaid Preferred Accrued Distribution Amount due with respect to such Convertible Preferred Units which remain payable and (y) not be treated as proceeds with respect to a “disguised sale” within the meaning of Section 707 of the Code and the Regulations thereunder;

 

(B)          to the Members holding Series A Preferred Units, when, as and if declared by the Manager, out of funds legally available therefor, preferential dividends that shall accrue and cumulate as provided in this Section 5.4(a)(i)(B):

 

(I)           Dividends on each Series A Preferred Unit shall accrue on a daily basis at the Series A Preferred Dividend Rate of the Series A Preferred Stated Rate from and including the Series A Preferred Dividend Accrual Commencement Date (which, for the avoidance of doubt, may be prior to the date of this Agreement and prior to the time any Series A Preferred Units have been issued) to and including the date on which the Series A Preferred Liquidation Price or Series A Preferred Redemption Price of such Series A Preferred Unit is paid pursuant to Section 6.2(c)(ii) or Section 3.6, respectively, whether or not such dividends have been declared and whether or not there are any funds of the Company legally available for the payment of dividends, and such dividends shall be cumulative; provided, however, if on the Series A Preferred Dividend Accrual Commencement Date a Series A Preferred Dividend Default exists, then the Series A Preferred Dividend Rate shall accrue in accordance with the terms and subject to the conditions of Section 5.4(a)(i)(B)(II) below, as applicable.  Accrued dividends on the Series A Preferred Units shall be payable, in accordance with the terms and conditions set forth in this Section 5.4(a)(i)(B), quarterly on each Series A Preferred Dividend Payment Date, to the holders of record of the Series A Preferred Units as of the close of business on the applicable Series A Preferred Record Date; provided, however, if any such payment date is not a Business Day, then payment of any dividend otherwise payable on that date will be made on the next succeeding day that is a Business Day, without any interest or other payment in respect of such delay.  For purposes of determining the amount of dividends “accrued” (i) as of any date that is not a Series A Preferred Dividend Payment Date, such amount shall be calculated on the basis of the foregoing rate per annum for actual days elapsed from the last preceding Series A Preferred Dividend Payment Date (or in the event the first Series A Preferred Dividend Payment Date has not yet occurred, the Series A Preferred Dividend Accrual Commencement Date) to the date as of which such determination is to be made, based on a 365-day year, and (ii) as of any Series A Preferred Dividend Payment Date, such amount shall be calculated on the basis of the foregoing rate per annum, based on a 360-day year of twelve 30-day months.

 

(II)          If the Company fails to pay cash dividends on the Series A Preferred Units in full for any four (4) consecutive or non-consecutive Series A Preferred Dividend Periods, including, without limitation, any failure to pay as a result of Section 5.4(a)(i)(B)(IV) (a “Series A Preferred Dividend Default”), then:

 

(a)          the Series A Preferred Dividend Rate shall increase to the Series A Preferred Penalty Rate, commencing on the first day after the Series A Preferred Dividend Payment Date on which a Series A Preferred Dividend Default occurs and for each subsequent Series A Preferred Dividend Period thereafter; provided, however, that the Series A Preferred Dividend Rate will revert to the Series A Preferred Stated Rate at such time as the Company has paid all LBRD Unpaid Dividends (if any) and all accrued and unpaid dividends (whether or not declared) which pursuant to Section 5.4(a)(i)(B)(V) have been added to and then remain part of the Series A Preferred Liquidation Price as of such date; and

 

(b)          when the Series A Preferred Dividend Default is cured and the Series A Preferred Dividend Rate reverts to the Series A Preferred Stated Rate, each subsequent Series A Preferred Dividend Default shall not occur until the Company has an additional four (4) failures to pay cash dividends on the Series A Preferred Units, whether consecutive or non-consecutive after the prior Series A Preferred Dividend Default has been cured.

 

For purposes of determining whether the first instance of a Series A Preferred Dividend Default (if any) has occurred after the original issuance of the Series A Preferred Units (but not for any subsequent Series A Preferred Dividend Default), any failure to pay cash dividends by LBRD on shares of the LBRD Series A Preferred Stock pursuant to the LBRD Certificate of Designations on any LBRD Dividend Payment Date shall be considered to have been a failure to pay cash dividends on the Series A Preferred Units on a Series A Preferred Dividend Payment Date pursuant to this Section 5.4(a)(i)(B) until such time as any LBRD Unpaid Dividends no longer remain part of the Series A Preferred Liquidation Price when repaid in accordance with this Section 5.4(a)(i)(B).

 

(III)        If at any time or from time to time the Series A Preferred Stock fails to be Publicly Traded for ninety (90) consecutive days or longer (a “Series A Preferred Listing Default”), then the Series A Preferred Dividend Rate shall increase to the Series A Preferred Penalty Rate, commencing on the day after the Series A Preferred Listing Default and continuing until such time as Charter has cured the Series A Preferred Listing Default by again causing the Series A Preferred Stock to be Publicly Traded, at which time the Series A Preferred Dividend Rate shall revert to the Series A Preferred Stated Rate.

 

(IV)        If, on any Series A Preferred Dividend Payment Date, the Company, pursuant to applicable Law or the terms of any Debt Instrument or Senior Units, shall not have funds legally available to pay or shall otherwise be prohibited or restricted from paying to the holders of the Series A Preferred Units the full Series A Preferred Dividend Amount to which such holders are entitled and to the holders of any Parity Units then entitled to receive payment of a dividend the full amount to which such holders are entitled, the amount available for such payment pursuant to applicable Law and which is not restricted or prohibited by the terms of any Debt Instrument or Senior Units shall be distributed, when and as declared by the Board of Directors, among the holders of the Series A Preferred Units and any Parity Units to which dividends are then owed ratably in proportion to the full amounts to which they would otherwise be entitled.

 

(V)         To the extent the Series A Preferred Dividend Amount is not paid in full on a Series A Preferred Dividend Payment Date for any reason, all dividends (whether or not declared) that have accrued on a Series A Preferred Unit during the Series A Preferred Dividend Period ending on such Series A Preferred Dividend Payment Date and which are unpaid will be added to the Series A Preferred Liquidation Price (as provided in the definition thereof) of such Series A Preferred Unit and will remain a part thereof until such dividends are paid, together with all dividends that have accrued to the date of such payment with respect to that portion of the Series A Preferred Liquidation Price which consists of such accrued and unpaid dividends.  Such accrued and unpaid dividends, together with any LBRD Unpaid Dividends, and, collectively, with all unpaid dividends accrued thereon, may be declared and paid at any time (subject to the concurrent satisfaction of any dividend arrearages then existing with respect to any Parity Units), without reference to any regular Series A Preferred Dividend Payment Date, to holders of record as of the close of business on such date, not more than sixty (60) days preceding the payment date thereof, as may be fixed by the Board of Directors and, to the extent LBRD Unpaid Dividends are so paid, they will no longer be a part of the Series A Preferred Liquidation Price.

 

(VI)        So long as any Series A Preferred Units or Convertible Preferred Units, as applicable, shall be outstanding, the Company shall not declare or pay any dividend whatsoever with respect to any Junior Units or any other Parity Units, whether in cash, property or otherwise, nor shall the Company declare or make any distribution on any Junior Units or any other Parity Units, or set aside any cash or property for any such purposes, nor shall any Junior Units or other Parity Units be purchased, redeemed or otherwise acquired by the Company or any of its Subsidiaries, nor shall any monies be paid, set aside for payment or made available for a sinking fund for the purchase or redemption of any Junior Units or other Parity Units, unless and until (i) all dividends to which the holders of the Series A Preferred Units or Convertible Preferred Units, as applicable, shall have been entitled for all current and all previous Series A Preferred Dividend Periods and Convertible Preferred Unit Distribution Payment Dates, as applicable, and all LBRD Unpaid Dividends, shall have been paid or declared and the consideration sufficient for the payment thereof set aside so as to be available for the payment thereof and (ii) the Company shall have paid, in full, or set aside the consideration sufficient for the payment thereof, all redemption payments with respect to the Series A Preferred Units or the Convertible Preferred Units that it is then obligated to pay; provided, however, that nothing contained in this Section 5.4(a)(i)(B)(VI) shall prevent (A) purchases, redemptions or other acquisitions of Junior Units in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants; (B) purchases of Junior Units pursuant to a contractually binding requirement to buy Units, provided that such contract or plan was entered into prior to the Company’s failure to pay dividends on the Series A Preferred Units or distributions on the Convertible Preferred Units (or, in the case of LBRD Unpaid Dividends, prior to or on the date upon which LBRD failed to pay dividends on the LBRD Series A Preferred Stock pursuant to and in accordance with the LBRD Certificate of Designations); (C) exchanges or conversions of any class or series of Junior Units, or the securities of another company, for any other class or series of Junior Units; (D) the purchase of fractional interests in Junior Units pursuant to the conversion or exchange provisions of such Junior Units or the security being converted or exchanged; (E) the payment of any dividends in respect of Junior Units where the dividend is in the form of the same Units as that on which the dividend is being paid; (F) distributions of Junior Units or rights to purchase Junior Units; (G) direct or indirect distributions of equity interests of a Subsidiary or other Person (whether by redemption, dividend, share distribution, merger or otherwise) to all or substantially all of the holders of one or more classes or series of Common Units, on a pro rata basis with respect to each such class or series (other than with respect to the payment of cash in lieu of fractional Units), or such equity interests of such Subsidiary or other Person are available to be acquired by such holders of one more classes or series of Common Units (including through any rights offering, exchange offer, exercise of subscription rights or other offer made available to such holders), on a pro rata basis with respect to each such class or series (other than with respect to the payment of cash in lieu of fractional Units), whether voluntary or involuntary; (H) stock splits, stock dividends or other distributions, reclassifications, recapitalizations; (I) the declaration and payment of dividends ratably on the Series A Preferred Units and each series or class of Parity Units as to which dividends are payable or in arrears so that the amount of dividends declared and paid per Series A Preferred Unit and per each series or class of such Parity Units are in proportion to the respective total amounts of accrued and unpaid dividends with respect to the Series A Preferred Units and any LBRD Unpaid Dividends, on the one hand, and all such classes and series of Parity Units, on the other hand; (J) the payment of Tax Distributions or the making of Tax Loans pursuant to Section 5.4(b); or (K) payments made pursuant to Section 5.4(a)(i)(A); and

 

(C)          to the Members holding Common Units, pro rata in accordance with their respective Percentage Interests, at the times and in the aggregate amounts determined by the Manager; provided that, so long as any Convertible Preferred Units or Series A Preferred Units are outstanding, no distribution of cash or other property shall be authorized, declared, paid or set apart for payment on or with respect to the Common Units, nor shall any Common Units be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinking fund for the redemption of any such Common Units) by the Company (except for the Exchange of Class B Common Units or Class C Common Units for shares of Class A Common Stock pursuant to the Exchange Agreement) unless, in each case, all unpaid Preferred Accrued Distribution Amounts with respect to the Convertible Preferred Units pursuant to Section 5.4(a)(i)(A) and all unpaid amounts payable with respect to the Series A Preferred Units pursuant to Section 5.4(a)(i)(B) have been or contemporaneously are authorized and paid.  The foregoing sentence will not prohibit the payment of Tax Distributions or the making of Tax Loans pursuant to Section 5.4(b).

 

(ii)          The Company may offset damages for a judicially and finally determined breach of this Agreement by a Member whose Membership Interest is liquidated (either upon the resignation of the Member or the liquidation of the Company) against any amount otherwise distributable to the Member.

 

(iii)         Distributions made upon liquidation of the Company shall be made as provided in Section 6.2(c).

 

(b)          Tax Distributions.

 

(i)           Anything to the contrary in this Agreement notwithstanding, subject, in each case, to Section 5.4(c), Section 5.4(b)(ii)(F) and Section 5.4(b)(viii):

 

(A)          (1) At least five (5) days prior to the due date prescribed by the Code for corporations to pay quarterly installments of estimated tax, the Company shall distribute in cash to each Member (or former Member) who held Common Units during such Fiscal Quarter, (x) the weighted average number of Common Units held by such Member (or former Member) from the beginning of the Fiscal Year until the last day of the month prior to the immediately preceding month (e.g., April 30th for a Tax Distribution made with respect to the second Fiscal Quarter), multiplied by (y) the estimated Common Per Unit Tax Distribution Amount calculated as of the end of the Fiscal Quarter with respect to which such quarterly installments of estimated tax are due, (2) no later than fifteen (15) days after the Convertible Preferred Unit Distribution Payment Date that follows the end of the applicable Fiscal Quarter, to each Member (or former Member) who held Convertible Preferred Units during such Fiscal Quarter, (x) the weighted average number of Convertible Preferred Units held by such Member (or former Member) during such Fiscal Quarter, multiplied by (y) the estimated Convertible Preferred Per Unit Tax Distribution Amount for the Fiscal Quarter with respect to which such quarterly installments of estimated tax are due, and (3) no later than fifteen (15) days after the Series A Preferred Dividend Payment Date that follows the end of the applicable Fiscal Quarter, to each Member (or former Member) who held Series A Preferred Units during such Fiscal Quarter, (x) the weighted average number of Series A Preferred Units held by such Member (or former Member) during such Fiscal Quarter, multiplied by (y) the estimated Series A Preferred Per Unit Tax Distribution Amount for the Fiscal Quarter with respect to which such quarterly installments of estimated tax are due.  Solely for purposes of calculating a Member’s (or former Member’s) estimated Common Per Unit Tax Distribution Amount, any Member (or former Member) that held Common Units as of the date specified in clause (1)(x) of this Section 5.4(b)(i)(A) shall be treated as if such Member (or former Member) continued to hold Common Units as of the end of the relevant Fiscal Quarter. Notwithstanding anything to the contrary herein, with respect to the first Fiscal Quarter in which Cox holds Common Units, for purposes of clause (1)(x) of this Section 5.4(b)(i)(A), the weighted average number of Common Units held by Cox for such Fiscal Quarter shall be calculated from the first day of the Fiscal Quarter through the last day of the Fiscal Quarter, assuming for this purpose that from the Closing Date until the end of the Fiscal Quarter, Cox holds the number of Common Units issued to it on the Closing Date.

 

(B)          As promptly as practicable after the end of each Fiscal Year, but in no event later than five (5) days prior to the estimated tax due date of the succeeding fiscal quarter (or, if earlier, any date on which taxes are due in connection with an application for an extension of time to file any tax returns) the Company shall distribute in cash (1) to each Member (or former Member) who held Common Units during such Fiscal Year, (x) the weighted average number of Common Units held by such Member (or former Member) during such Fiscal Year multiplied by (y) the Common Per Unit Tax Distribution Amount calculated as of the end of such Fiscal Year, (2) to each Member (or former Member) who held Convertible Preferred Units during such Fiscal Year, (x) the weighted average number of Convertible Preferred Units held by such Member (or former Member) during such Fiscal Year, multiplied by (y) the Convertible Preferred Per Unit Tax Distribution Amount for such Fiscal Year, and (3) to each Member (or former Member) who held Series A Preferred Units during such Fiscal Year, (x) the weighted average number of Series A Preferred Units held by such Member (or former Member) during such Fiscal Year, multiplied by (y) the Series A Preferred Per Unit Tax Distribution Amount for such Fiscal Year.

 

(C)          Upon the request of a Member (or former Member that is entitled to a Tax Distribution pursuant to Section 5.4(b)(i)(B)) that is subject to CAMT in a Fiscal Year in which Tax Distributions are made pursuant to this Section 5.4(b)(i), the Manager shall calculate such Member’s (or former Member’s) Common Cumulative Assumed Tax Liability, Convertible Preferred Cumulative Assumed Tax Liability and/or Series A Preferred Cumulative Assumed Tax Liability, as applicable, for such Fiscal Year for purposes of making Tax Distributions pursuant to Section 5.4(b)(i)(B) by reference to, and the Manager and such Member (or former Member) shall cooperate in good faith to determine, such Member’s (or former Member’s) tax liability under CAMT rules then in effect with respect to AFSI of the Company for such Fiscal Year (such tax liability, such Member’s (or former Member’s) “CAMT Tax Liability”).  Such Member’s (or former Member’s) Common Cumulative Assumed Tax Liability, Convertible Preferred Cumulative Assumed Tax Liability and/or Series A Preferred Cumulative Assumed Tax Liability, as applicable, shall be equal to such Member’s (or former Member’s) CAMT Tax Liability attributable to such Member’s (or former Member’s) Common Units, Convertible Preferred Units, and/or Series A Preferred Units, as applicable, for such Fiscal Year, including for purposes of determining the Common Per Unit Tax Distribution Amount as of the end of such Fiscal Year, the Convertible Preferred Per Unit Tax Distribution Amount and/or the Series A Preferred Per Unit Tax Distribution Amount, as applicable, payable pursuant to Section 5.4(b)(i)(B) (but not, for the avoidance of doubt, for purposes of calculating any amounts payable pursuant to Section 5.4(b)(i)(A)). If a Member’s (or former Member’s) Common Cumulative Assumed Tax Liability, Convertible Preferred Cumulative Assumed Tax Liability and/or Series A Preferred Cumulative Assumed Tax Liability, as applicable, is so determined, then such Member’s (or former Member’s) Common Cumulative Assumed Tax Liability, Convertible Preferred Cumulative Assumed Tax Liability and/or Series A Preferred Cumulative Assumed Tax Liability, as applicable, for subsequent Fiscal Years shall take into account any credit against such Member’s (or former Member’s) regular tax liability available to such Member (or former Member)  under CAMT in such Fiscal Years.

 

(ii)          Notwithstanding anything in this Section 5.4(b) to the contrary (other than the immediately following sentence), the Manager may waive, in whole or in part, any or all Common Tax Distributions to which the Charter Member is entitled, provided that such waiver shall be allowed solely to the extent a Common Tax Distribution to the Charter Member would exceed the taxes payable in respect of the Charter Member’s applicable estimated, extension, tax return or other tax liability, including any such tax liability of LBRD or which the Charter Member otherwise inherits or agrees to be responsible for in connection with the LBRD Merger and related transactions, and the obligations of Charter or any other member of the Charter Group under the Tax Receivables Agreement (taking into account cash or cash equivalents available for the paying of any such taxes in accordance with Section 4.8(a), Preferred Tax Distributions and net operating loss carryforwards, tax credits, or other tax attributes available to offset such tax liability) (such excess, the “Excess Tax Distribution Amount”). Notwithstanding anything to the contrary herein, (I) if the Waiver Limitation Conditions are satisfied, (1) in no event shall the Manager waive any portion of the Excess Tax Distribution Amount that would cause the Common Per Unit Tax Distribution Amount for the end of the relevant Fiscal Quarter or Fiscal Year to be lower than the greater of (A) the Common Per Unit Excess Cumulative Tax Liability of Cox and (B) the Common Per Unit Excess Cumulative Tax Liability of A/N, in each case, for the end of the relevant Fiscal Quarter or Fiscal Year (such portion of the Excess Tax Distribution Amount not subject to waiver, the “Minimum Tax Pool Amount”), and (2) in connection therewith, Charter shall invoke a Pro-Rata Excess Redemption in accordance with Section 3.2(b)(iv) and Section 5.4(b)(ii)(F) in respect of, and in an amount not less than, such Minimum Tax Pool Amount (such Pro-Rata Excess Redemption, a “Minimum Tax Pool Redemption”) and (II) if the Rating Agency Condition is not satisfied but the other Waiver Limitation Conditions are satisfied, the Manager shall agree to limit the waiver of the Excess Tax Distribution Amount to the maximum amount of the Minimum Tax Pool Amount such that the Rating Agency Condition is satisfied, and shall invoke a Pro-Rata Excess Redemption in accordance with Section 3.2(b)(iv) and Section 5.4(b)(ii)(F) in an amount not less than such maximum amount (which redemption shall be a Minimum Tax Pool Redemption hereunder); provided, that in each case of clauses (I) and (II), (x) Charter may invoke a Repurchase Suspension with respect to a Minimum Tax Pool Redemption solely to the extent and solely for so long as any Waiver Limitation Condition is not satisfied (such a Repurchase Suspension, a “Minimum Tax Pool Repurchase Suspension”), and (y) if the Tax Distribution Conditions would not be satisfied following a distribution of the Minimum Tax Pool Amount, Section 5.4(b)(v) through Section 5.4(b)(viii) shall apply. To the extent that the Manager elects to waive Common Tax Distributions pursuant to this Section 5.4(b)(ii):

 

(A)         Such waiver shall reduce the total Common Tax Distribution to the Charter Member under Section 5.4(b)(i) and shall reduce Common Tax Distributions made to all other Members (or former Members) in an amount equal to (x) the reduction to the total Common Tax Distribution to the Charter Member pursuant to this Section 5.4(b)(ii)(A), divided by (y) the weighted average number of Common Units held by the Charter Member during the relevant period, multiplied by (z) the weighted average number of Common Units held by such Member (or former Member) as of the date of such waiver (the aggregate amount of such reduction with respect to each Member (or former Member), the “Shortfall Amount”).

 

(B)          Subject to Section 5.4(b)(ii)(C) and the terms and conditions of the applicable Tax Loan Agreement, each Member (and former Member) that is not a member of the Charter Group shall have the option, in its discretion, by written notice (which may be by email and which may be substantially in the form of a Notice of Borrowing (as defined in the applicable Tax Loan Agreement) or otherwise in accordance with the applicable Tax Loan Agreement) provided to Charter no later than seven (7) days after receipt of the applicable Initial Estimated Quarterly Tax Statement pursuant to Section 7.2(a), to receive or waive an advance (a “Tax Loan”) from the Company or its applicable Affiliate, as lender (the “Tax Loan Lender”), under the applicable Tax Loan Agreement up to an amount equal to the lesser of (i) such Member’s (or former Member’s) Shortfall Amount or (ii) such Member’s (or former Member’s) Common Excess Cumulative Tax Liability reduced by any Common Tax Distributions to be made to such Member (or former Member) in respect of such period (after any tax distribution waiver by the Manager under Section 5.4(b)(ii) and, for the avoidance of doubt, without duplication of clause (b) of the definition of “Common Excess Cumulative Tax Liability”), it being agreed that the borrower in respect of any such Tax Loan shall be a newly formed special purpose Delaware limited liability company that is a direct or indirect wholly owned subsidiary of such Member (or former Member) (a “Tax Loan Borrower”).  Prior to or substantially concurrently with the incurrence of any Tax Loan, the conditions precedent set forth in Section 8(b) of the applicable Tax Loan Agreement shall be satisfied (or waived by the applicable Tax Loan Lender) to the extent required thereby.

 

(C)          Notwithstanding anything to the contrary in Section 5.4(b)(ii)(B), (i) the applicable Tax Loan Lender and the applicable Tax Loan Borrower shall, promptly upon the request (which may be by email) of the applicable Member (or former Member), execute and deliver a Tax Loan Agreement, (ii) the applicable Charter Issuers (as defined in the Tax Loan Agreement), the applicable Tax Loan Lender and the applicable Tax Loan Borrower shall, promptly upon the request (which may be by email) of such Member (or former Member), execute and deliver an Issuer Control Agreement (as defined in such Tax Loan Agreement) in connection with such Tax Loan Agreement, (iii) the applicable Tax Loan Lender, the applicable Tax Loan Borrower and the direct parent of such Tax Loan Borrower shall, promptly upon the request (which may be by email) of such Member (or former Member), execute and deliver a Borrower Control Agreement (as defined in such Tax Loan Agreement) in connection with such Tax Loan Agreement and (iv) the applicable Tax Loan Lender shall fund Tax Loans to the applicable Tax Loan Borrower from time to time in accordance with Section 5.4(b)(ii)(B) and in accordance with the applicable Tax Loan Agreement, subject to the terms and conditions set forth herein and therein. All Tax Loans with respect to a given Member (or former Member) shall be governed by definitive documentation signed by the applicable Tax Loan Lender and Tax Loan Borrower (in the capacities set forth therein), in form and substance substantially consistent with Exhibit H (as amended, restated, supplemented or otherwise modified from time to time as permitted thereunder, a “Tax Loan Agreement”).  Notwithstanding anything in this Agreement or the Stockholders Agreement to the contrary, (x) no Collateral shall be deemed to comprise pledged equity for purposes of Section 3.5 of the Stockholders Agreement and (y) no provision of any Tax Loan Agreement or other Loan Document (as defined in the applicable Tax Loan Agreement) shall be construed or deemed to otherwise restrict Cox, A/N, or their respective Affiliates (other than the applicable Tax Loan Borrower, its direct parent party to any Loan Document (as defined in the applicable Tax Loan Agreement) and any of their Subsidiaries, in each case, as specified in the applicable Tax Loan Agreement) from creating, incurring, assuming or permitting to exist any lien on any of their respective assets or property (including stock or other securities).  For the avoidance of doubt, (x) in addition to any pledge in favor of the applicable Tax Loan Lender of Collateral that secures any Tax Loan under a Tax Loan Agreement, Cox, A/N and their respective Subsidiaries and Affiliates (other than any Tax Loan Borrower or its direct parent party to any Loan Document (as defined in the applicable Tax Loan Agreement)) may pledge shares of Company Common Stock (as defined in the Stockholders Agreement) and/or Units (in each case, not constituting Collateral) in respect of any Stand Alone Margin Loan or Equity Linked Financing (each as defined in the Stockholders Agreement), respectively, to the extent of fifty percent (50%) of the Company Equity (as defined in the Stockholders Agreement) beneficially owned or held by Cox and its Subsidiaries, collectively, or A/N and its Subsidiaries, collectively, respectively measured at the time of such initial pledge (and not at the time of any amendment, extension, novation or rollover thereof), together with additional shares of Company Common Stock or Units (in each case, not constituting Collateral) to satisfy or, in a commercially reasonable manner, prevent a subsequent margin call, in accordance with Section 3.5 of the Stockholders Agreement and (y) each Tax Loan Lender shall be subject to those limitations on remedies against Company Common Stock (as defined in the Stockholders Agreement) and/or Units set forth in the applicable Tax Loan Agreement or the other “Loan Documents” as defined therein.

 

(D)          Without limiting the last sentence of Section 5.4(b)(ii)(B), to the extent that any Tax Loan Borrower owes any Tax Loans (or accrued and unpaid interest thereon) as of the effective date of a dissolution pursuant to Section 6.2, then, subject to Section 5.4(b)(ii)(E), immediately prior to the distribution of the Company’s assets pursuant to such dissolution, an amount of Common Units owned by the applicable Member equal to the lesser of (1) the quotient of (i) the outstanding amount of such Tax Loan Borrower’s Tax Loans (including accrued and unpaid interest thereon) divided by (ii) the VWAP of the Class A Common Stock for the twenty (20) consecutive Trading Days ending on the date preceding the date of the dissolution, and (2) the amount of Class B Common Units or Class C Common Units that such Member holds, shall be automatically cancelled in satisfaction of an amount of such Tax Loan Borrower’s Tax Loans (including accrued and unpaid interest thereon) equal to (x) (i) the number of Common Units so cancelled multiplied by (ii) the VWAP of the Class A Common Stock for the twenty (20) consecutive Trading Days ending on the date preceding the date of the dissolution. Any deemed payment pursuant to this Section 5.4(b)(ii)(D) shall be applied first to the amount of a Tax Loan Borrower’s Tax Loans and second to the accrued interest thereon.  Such cancellation shall not require any action on the part of any Person, including Charter or the Company.

 

(E)          In the event a Member to which Section 5.4(b)(ii)(D) would otherwise be applicable, Exchanges Class B Common Units or Class C Common Units for shares of Class A Common Stock or cash in connection with an Exchange in connection with, and immediately prior to, a Fundamental Change, then “the VWAP of the Class A Common Stock for the twenty (20) consecutive Trading Days ending on the date preceding the date of the dissolution” shall be replaced with “the fair market value, as determined by the Board of Directors in good faith, of the per share consideration to be received by the holders of the Class A Common Stock in connection with the Fundamental Change.”

 

(F)          Notwithstanding anything to the contrary in Section 3.2(b)(iv), if, in respect of any applicable period, any or all Common Tax Distributions to which the Charter Member is entitled are not waived pursuant to Section 5.4(b)(ii), then:  if Charter plans to invoke a pro-rata redemption under Section 3.2(b)(iv) using the Excess Tax Distribution Amount (such redemption, a “Pro-Rata Excess Redemption”), then it shall notify each Member that is not a member of the Charter Group in the applicable Initial Estimated Quarterly Tax Statement pursuant to Section 7.2(a), and such Member shall be entitled to determine in its sole discretion, by written notice (which may be by email) provided to Charter no later than seven (7) days after receipt of such Initial Estimated Quarterly Tax Statement, whether to decline to participate in such Pro-Rata Excess Redemption entirely or whether to participate in whole or in part.  To the extent such Member elects not to participate in such Pro-Rata Excess Redemption, the Company shall not distribute to such Member the portion of its Common Tax Distribution corresponding to the waived Pro-Rata Excess Redemption (the “Declined Pro-Rata Excess Redemption Amount”), no Common Units of such Member shall be redeemed and the redemptions otherwise contemplated by Section 3.2(b)(iv) (excluding, for the avoidance of doubt, any redemptions in respect of the Declined Pro-Rata Excess Redemption Amount) shall be consummated as promptly as practicable (and, in any case, prior to the Company making any further distributions).  Further, to the extent a Member elects not to participate in a Pro-Rata Excess Redemption in whole or in part, then at such Member’s option, by written notice (which may be by email and which may be substantially in the form of a Notice of Borrowing (as defined in the applicable Tax Loan Agreement) or otherwise in accordance with the applicable Tax Loan Agreement) provided to Charter no later than seven (7) days after receipt of the applicable Initial Estimated Quarterly Tax Statement pursuant to Section 7.2(a) (the “Response Deadline”), the applicable Tax Loan Lender shall make a Tax Loan under Section 5.4(b)(ii)(B) to such Member in an aggregate principal amount identified by such Member, not to exceed the Declined Pro-Rata Excess Redemption Amount (any such Tax Loan pursuant to this sentence, a “Member Initiated Tax Loan”). Regardless of whether a Member elects to participate in such Pro-Rata Excess Redemption, if the repurchase of Tax Distribution Repurchased Units from such Member pursuant to Section 3.2(b)(iv) in respect of such Pro-Rata Excess Redemption would cause (or would have caused) such Member’s Equity Interest (as defined in the Stockholders Agreement) to be less than twenty point two percent (20.2%), in the case of Cox, or nine point two percent (9.2%), in the case of A/N, as applicable (the “Minimum Ownership Threshold”), then, within ten (10) days following the completion of the repurchase of the ETD Repurchase Shares in respect of the applicable Pro-Rata Excess Redemption and prior to the repurchase of any Tax Distribution Repurchased Units from such Member, Charter shall provide notice to such Member of the portion of its Common Tax Distribution corresponding to the amount of its Pro-Rata Excess Redemption that would cause (or would have caused) such Member’s Equity Interest to be less than the Minimum Ownership Threshold (such amount of the Common Tax Distribution, the “Minimum Ownership Threshold Distribution Amount”) and, at such Member’s option, by written notice  (which may be by email and which may be substantially in the form of a Notice of Borrowing (as defined in the applicable Tax Loan Agreement) or otherwise in accordance with the applicable Tax Loan Agreement) provided to Charter no later than seven (7) days after receipt of Charter’s notice regarding such Minimum Ownership Threshold Distribution Amount, the applicable Tax Loan Lender shall make a Charter Initiated Tax Loan under Section 5.4(b)(ii)(B) to such Member in an aggregate principal amount identified by such Member (not to exceed such Minimum Ownership Threshold Distribution Amount), in lieu of such Member’s participation (if any) in such Pro-Rata Excess Redemption in respect of the Minimum Ownership Threshold Distribution Amount.

 

(G)          If one or more Members elect to participate in a Pro-Rata Excess Redemption of the type referred to in Section 5.4(b)(ii)(F) and, following such date, Charter provides written notice to all such Members that it has suspended share repurchases for any reason (or, with respect to a Minimum Tax Pool Redemption, solely in connection with a Minimum Tax Pool Repurchase Suspension and for so long as such Minimum Tax Pool Repurchase Suspension is in effect) and as a result will not complete the repurchase of all ETD Repurchase Shares in respect of the Excess Tax Distribution Amount distributed to the Charter Member (a “Repurchase Suspension”), then, Charter and the Company (as applicable) shall repurchase the remaining ETD Repurchase Shares and Common Units from the Charter Member and any other Member after the applicable Repurchase Suspension is lifted at the ETD Repurchase Price, unless the Company and such Member mutually agree on an alternative treatment.  If Charter has not lifted the applicable Repurchase Suspension and completed the repurchase of all ETD Repurchase Shares in respect of any portion of the Excess Tax Distribution Amount distributed to the Charter Member prior to the later of (x) the end of the tax year in which such portion of such Excess Tax Distribution Amount was initially distributed and (y) the end of the sixth (6th) Repurchase Period following the Repurchase Period in which such portion of such Excess Tax Distribution Amount was initially distributed (such date, the “Repurchase Suspension Outside Date”), then (a) the Charter Member shall return such portion of such unused Excess Tax Distribution Amount to the Company, and (b) the Company shall notify the applicable Member in writing (which may be by email) not more than seven (7) days after the Repurchase Suspension Outside Date of such Member’s respective Common Tax Distribution corresponding to the remainder of the Excess Tax Distribution Amount (after giving effect to repurchases of ETD Repurchase Shares and Common Units prior to such Repurchase Suspension) (such amount, the “Unused Common Tax Distribution”), provided that (x) if the Repurchase Suspension Outside Date is expected to occur after the end of the tax year in which such portion of such Excess Tax Distribution Amount was initially distributed, the applicable Member or, at its election, a wholly-owned Subsidiary thereof, shall enter into an unsecured, short-term loan agreement, repayable at any time without penalty with the Company on commercially reasonable terms to reflect such Member’s (or wholly-owned Subsidiary thereof’s) Unused Common Tax Distribution as a short-term non-interest-bearing loan which shall not be due and payable prior to the completion of the transactions contemplated by this Section 5.4(b)(ii)(G) in respect of such Unused Common Tax Distribution and (y) if clause (x) hereof does not apply, then the Unused Common Tax Distribution shall be treated as a contingent advance of the Unused Common Tax Distribution to be paid in accordance with Section 3.2(b)(iv), subject to conversion to a Tax Loan in accordance with Section 5.4(b)(ii)(G)(I) or return to the Company in accordance with Section 5.4(b)(ii)(G)(II), at the applicable Member’s election, to the extent of any Unused Common Tax Distribution remaining as of the Repurchase Suspension Outside Date.  Each applicable Member shall have the option, in its sole discretion, by written notice (which may be by email and which may be substantially in the form of a Notice of Borrowing (as defined in the applicable Tax Loan Agreement) or otherwise in accordance with the applicable Tax Loan Agreement) (the “Response Notice”) provided to the Company no later than three (3) Business Days after receipt of written notice from the Company to:

 

(I)          convert all or a portion of such Member’s Unused Common Tax Distribution into a Charter Initiated Tax Loan under Section 5.4(b)(ii)(B) (in an aggregate principal amount equal to the amount of such Member’s Unused Common Tax Distribution); provided that the date on which such Tax Loan shall be deemed to be incurred shall in no event be earlier than the Repurchase Suspension Outside Date; or

 

(II)          return to the Company the applicable portion of the Unused Common Tax Distribution that was not converted into a Charter Initiated Tax Loan pursuant to Section 5.4(b)(ii)(G)(I).

 

(H)         For the avoidance of doubt, the Common Tax Distribution shall be paid to the applicable Member (or former Member) in full as and when due in accordance with Section 5.4(b)(i), and no portion of the applicable Member’s (or former Member’s) Common Tax Distribution shall be (x) required to be repaid to the Company or any of its Affiliates (except as expressly set forth in Section 5.4(b)(ii)(G)(II)) or (y) delayed until the remaining ETD Repurchase Shares and Common Units are repurchased or as a result of the declaration of any Repurchase Suspension.

 

(I)           Notwithstanding anything to the contrary in this Agreement, under no circumstances shall Charter or the Company make any repurchases of ETD Repurchase Shares or Common Units in respect of any portion of the Common Tax Distribution that has been treated as a Tax Loan without the prior written consent of the Tax Loan Borrower under such Tax Loan; provided that, if the Tax Loan Borrower under such Tax Loan consents to such repurchase, then the portion of the Tax Loan attributable to such Common Tax Distribution (including any interest accruing thereon) shall be deemed satisfied upon the redemption of such ETD Repurchase Shares and the corresponding Common Units from such Tax Loan Borrower.

 

(iii)          In the event that the Company pays any Preferred Tax Distribution, the amount treated as distributed shall be deducted from the next succeeding distribution payable pursuant to Section 5.4(a)(i)(A) and Section 5.4(a)(i)(B) with respect to such Member’s (or former Member’s) Convertible Preferred Units or Series A Preferred Units, as applicable (and, if necessary, from any succeeding distributions thereafter), until such amounts have been fully deducted from such distribution(s) pursuant to Section 5.4(a)(i)(A) or Section 5.4(a)(i)(B) (as the case may be).    All Preferred Tax Distributions shall be treated for purposes of this Agreement as having been distributed pursuant to Section 5.4(a)(i)(A) or Section 5.4(a)(i)(B) (as the case may be), whether or not deducted from a succeeding distribution pursuant to this Section 5.4(b)(iii).

 

(iv)          Common Tax Distributions and Preferred Tax Distributions shall have priority over (and shall be made before) any distributions under Section 5.4(a).  For the avoidance of doubt, rights to Tax Distributions shall apply to all Members holding Units (and former Members) and with respect to all Units.

 

(v)          If there is insufficient cash to pay the aggregate amount of Tax Distributions that would otherwise be payable in accordance with Section 5.4(b) because, after giving effect to such Tax Distributions, the Tax Distribution Conditions would not be satisfied, then Tax Distributions under Section 5.4(b) shall instead be paid, in the maximum amount such that the Tax Distribution Conditions are satisfied, to all the Members (and former Members) in proportion to their Common Per Unit Excess Cumulative Tax Liability, Series A Preferred Excess Cumulative Tax Liability or Convertible Preferred Excess Cumulative Tax Liability, as applicable.

 

(vi)          If there is insufficient cash to make the aggregate amount of Tax Loans elected pursuant to Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) or Section 5.4(b)(ii)(G) because, after giving effect to such Tax Loans, the Tax Distribution Conditions would not be satisfied, Tax Loans under Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) and Section 5.4(b)(ii)(G) shall instead be made, in the maximum amount such that the Tax Distribution Conditions are satisfied to all the Members (and former Members) electing Tax Loans in proportion to their Common Per Unit Excess Cumulative Tax Liability, Series A Preferred Excess Cumulative Tax Liability or Convertible Preferred Excess Cumulative Tax Liability, as applicable.  Any election made by a Member (or former Member) to receive a Tax Loan under Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) or Section 5.4(b)(ii)(G) shall be deemed modified as necessary to account for the amount of Tax Loans made to such Member (or former Member) in accordance with this clause (vi).

 

(vii)        If the Company determines in good faith that, after paying the aggregate amount of Tax Distributions that would otherwise be payable in accordance with Section 5.4(b), there would be insufficient cash to make the aggregate amount of Tax Loans elected pursuant to Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) or Section 5.4(b)(ii)(G) because, after giving effect to such Tax Distributions and Tax Loans, the Tax Distribution Conditions would not be satisfied, (x) the Company shall notify the applicable Member (or former Member) in writing as soon as reasonably practicable after making such determination and in any event prior to the applicable Member (or former Member) making an election to receive a Tax Loan under Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) or Section 5.4(b)(ii)(G) and (y) Tax Distributions shall be paid in full prior to Charter or the Company making any Tax Loans.  Without limiting the foregoing, if the Company makes such a determination and, for any reason, fails to notify the applicable Member (or former Member) that there will be insufficient cash to pay Tax Loans pursuant to Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) or Section 5.4(b)(ii)(G) prior to such Member (or former Member) making an election to receive a Tax Loan under Section 5.4(b)(ii)(B), Section 5.4(b)(ii)(F) or Section 5.4(b)(ii)(G), then such Member (or former Member) shall be entitled to change its election.

 

(viii)       Notwithstanding anything to the contrary herein, Charter or the Company shall notify each Member (and former Member) in writing as soon as reasonably practicable upon becoming aware that any one or more of the Tax Distribution Conditions would not or would not reasonably be expected to be satisfied, as and when a Tax Distribution is required or permitted to be made in accordance with this Agreement (provided that failure to timely deliver such notice shall not be deemed admission that the Tax Distribution Conditions are satisfied and shall not require the making of a Tax Distribution if any Tax Distribution Condition is not satisfied). The Company and its Subsidiaries shall act in good faith to cause the Tax Distribution Conditions to be satisfied in accordance with the definition thereof, as and when a Tax Distribution is required to be made in accordance with this Agreement.

 

(ix)         Notwithstanding anything to the contrary herein, upon expiration of the Response Deadline, if a Member (or former Member) (the “Electing Member”) (A) elects to receive a Tax Loan under Section 5.4(b)(ii)(B) and another unaffiliated Member (or former Member) does not elect to receive a Tax Loan, in whole or in part, or (B) elects to participate in a Pro-Rata Excess Redemption, in whole or in part, in each case, pursuant to Section 5.4(b)(ii)(F) and another unaffiliated Member declines to participate in a Pro-Rata Excess Redemption, then the Company shall promptly (and in any event within one (1) Business Day after the Response Deadline) give the Electing Member written notice of such different election (which may be by email) setting forth in reasonable detail the election of the other Members (or former Members), and each Electing Member shall then have one (1) Business Day from its receipt of such notice to change its election (in whole or in part), including by requesting a Tax Loan in accordance with the Tax Loan Agreement or by declining to participate in a Pro-Rata Excess Redemption.  For the avoidance of doubt, if any Member (or former Member) changes its election, the Tax Loan Lender shall not be required to fund any Tax Loan in respect of such Pro-Rata Excess Redemption to such Member (or former Member) until at least three (3) Business Days after the later of the Response Deadline and the Company’s receipt of such Member’s different election, and, in any event, no earlier than the funding date specified in the latest notice of borrowing delivered by the applicable Member (or former Member) in accordance with the Tax Loan Agreement.

 

(x)          For purposes of (i) this Section 5.4(b), references to “former Member” are limited to former Members that are entitled to Common Tax Distributions or Preferred Tax Distributions for the relevant period pursuant to Section 5.4(b)(i) and (ii) this Section 5.4(b) (other than Section 5.4(b)(ii)(D) through Section 5.4(b)(ii)(G)), any references to “Member” shall be deemed to include a reference to “former Member” who meets the requirements described in the foregoing clause (i), regardless of whether a “former Member” is expressly referenced.

 

(c)          Limitations on Distributions.  Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member (or former Member) on account of its interest in the Company if such distribution would violate the Act or other applicable Law.  A Member (or former Member) that receives a distribution (i) in violation of this Agreement or (ii) that is required to be returned to the Company under the Act shall return such distribution immediately upon demand therefor by the Manager or the Board of Directors.

 

(d)          Form of Distributions.  Except as otherwise set forth in this Agreement, distributions to the Members (or former Members) may be made in cash or in kind, or partly in cash and partly in kind, as determined by the Manager, provided that the form of any distribution shall be identical for all Members holding Common Units (and former Members who held Common Units and are entitled to a Tax Distribution pursuant to Section 5.4(b)(i)).

 

(e)          Withholding of Certain Amounts.  The Company may withhold from any distributions otherwise payable to a Member (or former Member) under this Agreement any amount sufficient to satisfy any current or estimated future federal, state, local and foreign withholding tax requirements relating thereto; and any amounts so withheld, and any payment made by the Company or credit received by the Company resulting in items that the Member (or former Member) may use to satisfy the Member’s (or former Member’s) current or estimated future federal state, local and foreign tax liability, shall be treated as if an amount equal to such withheld amounts or items had been distributed to such Member (or former Member).  If such amount is not withheld and the Company is required to pay an amount to any taxing authority, each Member (and former Member) agrees to promptly remit such amount to the Company upon request.

 

(f)          Distributions Made Solely With Respect to Membership Interests.  Nothing in this Section 5.4 shall be applied to release any Member from its obligations pursuant to any relationship between the Company and such Member acting in a capacity other than as a Member.

 

(g)          Successors.  For purposes of determining the amount of distributions under this Section 5.4, each Member (or former Member) shall be treated as having received amounts received by its predecessors in respect of any of such Member’s Units (or former Member’s prior Units).  Notwithstanding anything in this Agreement to the contrary, any transferee (other than a member of the Charter Group) that receives Common Units shall be treated as if such transferee had received any Tax Loans previously advanced and currently outstanding with respect to such Common Units for purposes of determining such transferee’s Tax Distributions for and after the first Fiscal Quarter following such Transfer, including for purposes of Section 5.4(b)(ii)(C).

 

ARTICLE VI– RESIGNATION; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS

 

SECTION 6.1      Member Withdrawal.  No Member shall have the power or right to withdraw, otherwise resign, or require the repayment of its Capital Contribution (if any) or the redemption of its Units, prior to the dissolution and winding up of the Company, except pursuant to a Transfer of Units permitted under this Agreement as provided in Section 6.3. Notwithstanding the foregoing, the Manager shall not have the power or right to withdraw or otherwise resign without the consent of both (a) the holders of a majority of the Class B Common Units and (b) the holders of a majority of the Class C Common Units (including Class C Common Units issuable upon conversion of the Convertible Preferred Units).

 

SECTION 6.2      Dissolution.

 

(a)          Events.  To the fullest extent permitted by Law and subject to Sections 2.12 and 2.13 of the Stockholders Agreement, so long as the Exchange Agreement is in effect, the Company shall not be dissolved.  Following such time and subject to Sections 2.12 and 2.13 of the Stockholders Agreement, the Company shall be dissolved and its affairs shall be wound up on the first to occur of the following:

 

(i)           the termination of the legal existence or the membership in the Company of the last remaining Member (unless within ninety (90) days, (x) such Member’s personal representative or nominee agrees in writing to continue the Company and to be admitted as a Member, or (y) a Member is otherwise admitted in accordance with this Agreement, in each case, effective as of the occurrence of the event that terminated the continued membership of such Member);

 

(ii)          any event that makes it unlawful for all or substantially all of the business of the Company and its Subsidiaries to continue; and

 

(iii)         the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act, provided, however, that no Member or its Affiliates or agents shall apply for entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act at any time that the Exchange Agreement is in effect.

 

Except as provided in Section 6.2(a), the death, retirement, resignation, expulsion, bankruptcy or dissolution of a Member or the occurrence of any other event that terminates the continued membership of a Member in the Company shall not cause a dissolution of the Company, and the Company shall continue in existence subject to the terms and conditions of this Agreement. For the avoidance of doubt, nothing contained in this Agreement shall limit the provisions of Sections 2.12 and 2.13 of the Stockholders Agreement, which shall apply as if set forth in this Agreement.

 

(b)          Actions Upon Dissolution.  When the Company is dissolved, the business and property of the Company and its Subsidiaries shall be wound up and liquidated by the Manager or, in the event of the unavailability of the Manager, such other Member or other liquidating trustee as shall be named by the Manager.  In such event, the Manager (or such other Member or liquidating trustee, as applicable) shall have the full right and discretion to manage such process, including the power to prosecute and defend suits, collect debts, dispose of property, settle and close the business of the Company and its Subsidiaries, discharge the liabilities of the Company and its Subsidiaries, pay reasonable costs and expenses incurred in the winding up, distribute remaining assets to Members in accordance with this Agreement and execute and file a certificate of cancellation under the Act.

 

(c)          Priority.  After the effective date of dissolution of the Company, the assets of the Company shall be distributed in the following manner and order:

 

(i)            first, to the satisfaction (whether by payment or the reasonable provision for payment) of the liabilities of the Company to creditors, in the order of priority established by the instruments creating or governing such obligations and to the extent otherwise permitted by Law, including to the establishment of reserves which the Manager or other liquidating trustee as may be selected considers necessary for the reasonable provision for payment for (A) any known contingent, conditional or unmatured contractual claims against the Company, (B) any claim against the Company that is the subject of a pending action, suit or proceeding to which the Company is a party and (C) any claim that is not known to the Company or has not arisen but that, based on the facts known to the Company, is likely to arise or to become known to the Company within ten (10) years after the date of dissolution, which reserves shall be held by the Manager (or other liquidating trustee if applicable) for the purpose of disbursing such reserves in payment in respect of any of the aforementioned claims (provided that at the expiration of such period as the Manager (or other liquidating trustee, if applicable) shall deem advisable, any balance of any such reserves not required to discharge such liabilities or obligations shall be distributed as provided in Section 6.2(c)(ii));

 

(ii)          second, (A) to the holders of Convertible Preferred Units pro rata according to the number of Convertible Preferred Units held by each such holder until such holder has received the aggregate Liquidation Preference of such Convertible Preferred Units and any unpaid Preferred Accrued Distribution Amounts, after giving effect to all contributions, distributions and allocations for all periods (through the time of such distribution) and (B) to the holders of Series A Preferred Units pro rata according to the number of Series A Preferred Units held by each such holder until such holder has received the aggregate Series A Preferred Liquidation Price of such Series A Preferred Units plus all unpaid dividends (whether or not declared) accrued through the date of distribution of amounts payable to holders of Series A Preferred Units in connection with such dissolution of the Company since the immediately preceding Series A Preferred Dividend Payment Date (or, if such date of distribution occurs prior to the first Series A Preferred Dividend Payment Date, since the Series A Preferred Dividend Accrual Commencement Date); and

 

(iii)         third, to the Members pro rata in accordance with their respective Percentage Interests as of the effective date of such dissolution.

 

(d)          No Recourse.  Each Member shall look solely to the assets of the Company for all distributions with respect to the Company and shall have no recourse therefor, upon dissolution or otherwise, against any Member or the Manager, except to the extent otherwise provided in the Act, the Exchange Agreement or in this Agreement, including in the event of the breach of this Agreement by the Manager.  No Member shall have any right to demand or receive property other than cash upon dissolution of the Company; provided that, for the sake of clarity, the Manager shall have the right to cause the Company to make distributions of property other than cash upon dissolution of the Company based upon the fair market value of such property on the date of distribution, as reasonably determined by the Manager.

 

(e)          Cancellation of Certificate.  On completion of the distribution of the Company assets as provided in this Agreement, the Company shall file a certificate of cancellation with the Secretary of State of the State of Delaware and take such other actions as may be necessary to terminate the Company, and the Company shall at such time be terminated.

 

SECTION 6.3      Transfer by Members.

 

(a)          No Member may Transfer any Units (or any part of its Membership Interest), except as expressly provided in this Section 6.3.  A/N and Cox may Transfer Units if and to the extent such Transfer is (i) made in compliance with the Stockholders Agreement and Section 6.3(c), Section 6.3(d), Section 6.3(e) and Section 6.5 of this Agreement, (ii) made in compliance with (x) the Stockholders Agreement and (y) Section 6.3(f) or Section 6.3(g) or (iii) in the case of Common Units, required under the Exchange Agreement.  Any member of the Charter Group may Transfer any Class A Common Units or Series A Preferred Units to any other member of the Charter Group.  All Transfers required by the Exchange Agreement shall be permitted Transfers hereunder.

 

(b)          Except (i) with respect to the rights of former Members pursuant to Section 4.2(b)(iii) and Section 5.4(b), including the rights to receive Common Tax Distributions or Preferred Tax Distributions pursuant to Section 5.4(b)(i) or Tax Loans pursuant to Section 5.4(b)(ii), as applicable (which shall survive ceasing to be a Member), and (ii) with respect to Transfers of Units allowed under Section 6.3(f) or Section 6.3(g), any Member who Transfers any Units in accordance with this Section 6.3 shall cease to be a Member with respect to the Units so Transferred and shall no longer have any rights or privileges of a Member with respect to the Units so Transferred.

 

(c)          Except with respect to Transfers of Units allowed under Section 6.3(f) or Section 6.3(g) or required pursuant to the Exchange Agreement, any Person who acquires any Units in accordance with this Section 6.3 that is not an existing Member of the Company shall agree to be subject to, and bound by, all of the terms and conditions of this Agreement to which the predecessor in such Units was subject, and by which such predecessor was bound by executing the Joinder Agreement in the form set forth in Exhibit C.  No Approved A/N Transferee or Approved Cox Transferee (as applicable) that is a party to a Stand Alone Margin Loan or Equity Linked Financing shall be required to sign the Joinder Agreement in connection with a Transfer of Units allowed under Section 6.3(f) or Section 6.3(g) or any exercise of remedies pursuant thereto (provided that such Person may not become a Member by acquiring Units through a foreclosure in full or partial satisfaction of debt). In the event that such Person fails to do so entirely or fails to do so in a timely manner, such Person shall be deemed by its acceptance of the benefits of the acquisition of such Units to have agreed to be subject to, and bound by, all of the terms and conditions of this Agreement to which the predecessor in such Units was subject, and by which such predecessor was bound, and, only with respect to a Transfer to another A/N Party or another Cox Party, for all purposes shall be deemed to be a Member.

 

(d)          Except with respect to Transfers of Units allowed under Section 6.3(f) or Section 6.3(g) or required pursuant to the Exchange Agreement or Transfers of Units allowed under the third sentence of Section 6.3(a) above, no Transfer shall be given effect and no Member may Transfer any of such Member’s Units unless (in addition to such Transfer being otherwise permitted under this Section 6.3) the transferee delivers to the Company the representations set forth in Exhibit E, and the Manager determines, in its reasonable discretion (including obtaining an opinion of counsel, if deemed appropriate by the Manager), that such Transfer or attempted Transfer would not cause the Company to be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code; it being understood that such determination shall be made reasonably promptly.

 

(e)          Notwithstanding any provision of this Agreement to the contrary, no Transfer of Units may be made (i) except in compliance with all federal, state and other applicable Laws, including federal and state securities Laws and “blue sky” Laws (other than Transfers to the Company or Charter as required by the Exchange Agreement) and (ii) if such Transfer would cause the Company to become subject to the reporting obligations under the Exchange Act.

 

(f)          Notwithstanding any provision of this Agreement to the contrary, A/N may Transfer or permit the Transfer of (as applicable) all or a portion of its Units at any time, in each case, to the extent permitted under the Stockholders’ Agreement, (A) to any Approved A/N Transferee, either (x) in connection with any Equity Linked Financing or Stand Alone Margin Loan, provided that such Transfer does not result in a change of beneficial ownership of the Transferred Units for U.S. federal income tax purposes on the date of such Transfer up to and including the date of an automatic exchange pursuant to Section 3.5(a) of this Agreement and Section 3.5(d) of the Stockholders Agreement (or such earlier time when such Units are exchanged into Class A Common Stock in connection with the exercise of any customary default remedies), or (y) other than in connection with any Equity Linked Financing or Stand Alone Margin Loan, so long as (i) A/N retains voting control over such Units and (ii) such Transfer would not reasonably be expected to result in or constitute a default under any other pledge of Units to which A/N is a party (including, for the avoidance of doubt, any Tax Loan Agreement) or (B) as contemplated by or in connection with the applicable Tax Loan Agreement, including any Transfers to or from the applicable Tax Loan Borrower, the direct parent of the applicable Tax Loan Borrower and/or the Company, as the lender thereunder.

 

(g)          Notwithstanding any provision of this Agreement to the contrary, Cox may Transfer or permit the Transfer of (as applicable) all or a portion of its Units at any time, in each case, to the extent permitted under the Stockholders’ Agreement, (A) to any Approved Cox Transferee, either (x) in connection with any Equity Linked Financing or Stand Alone Margin Loan, provided that such Transfer does not result in a change of beneficial ownership of the Transferred Units for U.S. federal income tax purposes on the date of such Transfer up to and including the date of an automatic exchange pursuant to Section 3.5(a) of this Agreement and Section 3.5(d) of the Stockholders Agreement (or such earlier time when such Units are exchanged into Class A Common Stock in connection with the exercise of any customary default remedies), or (y) other than in connection with any Equity Linked Financing or Stand Alone Margin Loan, so long as (i) Cox retains voting control over such Units and (ii) such Transfer would not reasonably be expected to result in or constitute a default under any other pledge of Units to which Cox is a party (including, for the avoidance of doubt, any Tax Loan Agreement) or (B) as contemplated by or in connection with the applicable Tax Loan Agreement, including any Transfers to or from the applicable Tax Loan Borrower, the direct parent of the applicable Tax Loan Borrower and/or the Company, as the lender thereunder.

 

(h)      Any attempted Transfer of Units by any Member not permitted by or made in accordance with this Section 6.3 and Section 6.5 shall, to the fullest extent permitted by Law, be ineffective, null and void.

 

SECTION 6.4      Admission or Substitution of New Members.

 

(a)          Admission.  The Manager shall have the right, but not the obligation, to admit as a new Member, any Person who acquires Units from a Member or from the Company, respectively.  Concurrently with the admission of a new Member, the Manager shall forthwith cause any necessary papers to be filed and recorded and notice to be given wherever and to the extent required showing the substitution of a transferee as a Member in place of the transferring Member, or the admission of a new Member, all at the expense, including payment of any professional and filing fees incurred, of the new Member.

 

(b)          Registration of Transfer.  In furtherance of the foregoing, with respect to the Convertible Preferred Units, the Company shall maintain a register which, subject to such reasonable regulations as the Manager may prescribe, will provide for the registration and Transfer of Convertible Preferred Units Transferred in accordance with Section 6.3.  The Manager may appoint the Transfer Agent to be the registrar and transfer agent for the purposes of registration of the Convertible Preferred Units and Transfers of such Convertible Preferred Units as provided herein.  In the absence of manifest error, the register kept by or on behalf of the Company shall be conclusive as to the identity of the holders of the Convertible Preferred Units.  Upon surrender of any Convertible Preferred Unit Certificate for registration of Transfer of any Convertible Preferred Units evidenced by Convertible Preferred Unit Certificate in accordance with Section 6.3, the Company shall deliver or cause to be delivered, in the name of the holder of record thereof (or the designated transferee or transferees) one or more new Convertible Preferred Unit Certificate(s) evidencing the same aggregate number of Convertible Preferred Units evidenced by the Convertible Preferred Unit Certificate so surrendered.  In the case of any Transfer of Convertible Preferred Units permitted pursuant to Section 6.3, the transferor shall provide the address and other contact information for each transferee as contemplated by Section 8.6.  No charge shall be imposed by the Company for such Transfer; provided that, as a condition to the issuance of any new Convertible Preferred Unit Certificate or the registration of any such Transfer, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed with respect thereto.

 

(c)          Conditions.  Subject to Section 6.3(c), the admission of any Person as a new Member shall be conditioned upon such Person’s written acceptance of and adoption of all of the terms and provisions of this Agreement by execution and delivery of the Joinder Agreement to this Agreement in the form set forth in Exhibit C.

 

SECTION 6.5      Right of First Offer and Matching Right.

 

(a)          Grant of Right of First Offer.  For as long as any Convertible Preferred Units remain outstanding, and subject to the terms and procedures set forth in Section 6.5(b) below, each Cox Party (as applicable, the “Preferred Transferor”) hereby grants to the Company a right of first offer (the “Preferred ROFO”) over any Transfer of Convertible Preferred Units proposed to be Transferred (including to any A/N Party) by any Cox Party (other than (i) a Transfer to any other Cox Party, (ii) a Transfer (or deemed Transfer) effected by a Cox Party in compliance with Section 3.5(c) or Section 3.5(d) of the Stockholders Agreement and any exercise of remedies by a financial institution party to the respective Stand Alone Margin Loan or Equity Linked Financing pursuant to the terms thereof (for the avoidance of doubt, no Preferred ROFO applies to any foreclosure sale and/or appropriation of any shares of Company Common Stock issuable upon exchange of the Convertible Preferred Units pledged in compliance with Section 3.5(c) or Section 3.5(d) of the Stockholders Agreement), or (iii) a Preferred Private Placement Offering that is conducted in compliance with this Section 6.5) (a “ROFO Covered Transfer”).

 

(b)          Terms and Procedures.  For as long as any Convertible Preferred Units remain outstanding, the Preferred Transferor shall not effect a ROFO Covered Transfer, unless it shall first comply with the following provisions:

 

(i)           If at any time a Preferred Transferor proposes to effect a ROFO Covered Transfer, then such Preferred Transferor shall promptly give the Company written notice of the Preferred Transferor’s intention to make a ROFO Covered Transfer (the “Preferred ROFO Notice”).  The Preferred ROFO Notice shall specify (i) the number of Convertible Preferred Units to be Transferred (“Offered Preferred Units”) and (ii) the minimum cash price per Offered Preferred Unit that the Preferred Transferor is willing to accept (the “ROFO Specified Price”).

 

(ii)          Within ten (10) Business Days following the Company’s receipt of a Preferred ROFO Notice, the Company may irrevocably accept, by written notice to the Preferred Transferor (the “Company ROFO Acceptance Notice”), to acquire all, but not less than all, of the Offered Preferred Units specified in the Preferred ROFO Notice at the ROFO Specified Price and on the other terms and conditions set forth in the Preferred ROFO Notice.  If a Company ROFO Acceptance Notice is not delivered by the Company to the Preferred Transferor within such ten (10) Business Day period, then the Company will be deemed to have waived the Preferred ROFO with respect to the Offered Preferred Units to the extent set forth in Section 6.5(b)(iv).  For the avoidance of doubt, during such ten (10) Business Day period, the Preferred Transferor may not effect a ROFO Covered Transfer (unless prior to the expiration thereof, the Company provides written notice to the Preferred Transferor that it is expressly waiving the Preferred ROFO with respect to the Offered Preferred Units).

 

(iii)          Upon delivery of a Company ROFO Acceptance Notice, the Company will be obligated to buy, and the Preferred Transferor will be obligated to sell, the Offered Preferred Units specified in the Company ROFO Acceptance Notice at the ROFO Specified Price.  The closing of such sale and purchase (the “ROFO Closing”) shall occur at such time and place as the parties thereto may agree, but in any event no later than the tenth (10th) Business Day after the Company ROFO Acceptance Notice is delivered to the Preferred Transferor, or, if later, five (5) Business Days after receipt of all material required governmental and regulatory approvals for such sale and purchase.  For the avoidance of doubt, during such period, the Preferred Transferor may not effect a ROFO Covered Transfer to anyone except for the Company.  If any ROFO Closing does not occur within the time limits set forth in this Section 6.5(b)(iii) as a result of bad faith actions or inactions of the Company, Charter or any of their respective Subsidiaries, or the receipt of any such governmental or regulatory approval, if any, is materially delayed due to the failure by the Company, Charter or any of their respective Subsidiaries to use reasonable best efforts to obtain such approvals, then the Preferred Transferor shall be free to effect a ROFO Covered Transfer of any or all of the Offered Preferred Units subject to the associated Company ROFO Acceptance Notice at any price and clauses (a) and (b) of this Section 6.5 will terminate and be of no force or effect with respect to any future Transfer of Convertible Preferred Units by any Cox Party.

 

(iv)         If the Company has waived, or is deemed to have waived, the Preferred ROFO, the Preferred Transferor shall be free to effect a ROFO Covered Transfer of all of the Offered Preferred Units with respect to which the Company has, or is deemed to have, waived the Preferred ROFO, during the period of thirty (30) Business Days following the expiration of the ten (10) Business Day period specified in clause (ii) above for a price that is equal to or greater than the ROFO Specified Price.  Any such Offered Preferred Units in respect of which the Preferred Transferor has not effected a ROFO Covered Transfer prior to the expiration of such thirty (30) Business Day period shall thereafter again be subject to all of the terms and conditions of this Section 6.5 with respect to any ROFO Covered Transfer.

 

(c)          If at any time a Preferred Transferor proposes to effect a Preferred Private Placement Offering:

 

(i)           Such Preferred Transferor shall promptly give the Company written notice of the Preferred Transferor’s intention to do so (the “Preferred Private Placement Notice”), specifying the number of Convertible Preferred Units to be Transferred in the Preferred Private Placement Offering (the “Private Placement Preferred Units”).

 

(ii)          For ten (10) Business Days following the Company’s receipt of a Preferred Private Placement Notice (the “Preferred Private Placement ROFO Period”), the Company and the Preferred Transferor(s) will cooperate in good faith and use their respective reasonable best efforts to agree on updated assumptions in the categories set out on Exhibit G for the calculation of a then-current per-unit value of a Convertible Preferred Unit, based on market conditions as of the applicable time (the “Preferred Updated Valuation”).  Other than the agreed updates to such assumptions set out on Exhibit G, the Preferred Updated Valuation will be calculated based on the same Kynex-based methodology used to produce the valuation that determined the table set forth in Exhibit F.

 

(iii)         Prior to the expiration of the Preferred Private Placement ROFO Period, the Company may, but is not obligated to, make a binding, irrevocable offer to purchase the Private Placement Preferred Units entirely for cash, without any financing or other contingency other than receipt of all material required governmental and regulatory approvals for such purchase, either (A) in an amount per unit greater than or equal to the Preferred Updated Valuation (a “Preferred At the Market Offer”), or (B) in an amount per unit less than the Preferred Updated Valuation or in any amount if no Preferred Updated Valuation is agreed (a “Preferred Other Offer”).  The amount per unit set forth in any Preferred Other Offer shall be determined by the Company in good faith, and the Preferred Other Offer shall include the Company’s reasoning for the amount offered.

 

(iv)          Upon delivery of a Preferred At the Market Offer, the Company will be obligated to buy, and the Preferred Transferor(s) will be obligated to sell, the Private Placement Preferred Units at the price specified in such Preferred At the Market Offer.

 

(v)          Following delivery of a Preferred Other Offer, the Preferred Transferor(s) shall be permitted to pursue a Preferred Private Placement Offering of the Private Placement Preferred Units that would provide the Preferred Transferor(s) with net proceeds per unit greater than the amount per unit set forth in the Preferred Other Offer for a period of 21 Business Days following such delivery (the “Preferred Private Placement Offering Period”).  Throughout the Preferred Private Placement Offering Period, the Preferred Transferor(s) shall keep the Company apprised on a current basis of the progress of the Preferred Private Placement Offering, including the anticipated time of pricing, and permit the Company to participate as a potential buyer in the Preferred Private Placement Offering.  At any time prior to 28 hours prior to the anticipated pricing of the Preferred Private Placement Offering, the Company may, but shall not be obligated to, deliver an updated Preferred Other Offer on the same terms as the then-existing Preferred Other Offer except setting forth an all cash amount per unit higher than the then-existing Preferred Other Offer.  If, at the pricing of the Preferred Private Placement Offering, proceeds (net of any underwriters’ discounts or commissions) per unit to the Preferred Transferor(s) would be less than or equal to the amount per unit set forth in the Preferred Other Offer (taking into account any updates made prior to 28 hours prior to such pricing), then the Preferred Transferor(s) will be obligated to sell, and the Company will be obligated to buy, the Private Placement Preferred Units at the price specified in the Preferred Other Offer (taking into account any updates made prior to 28 hours prior to such pricing).  If, at the pricing of the Preferred Private Placement Offering, proceeds (net of any underwriters’ discounts or commissions) per unit to the Preferred Transferor(s) would be greater than the amount per unit set forth in the Preferred Other Offer (taking into account any updates made prior to 28 hours prior to such pricing), then the Preferred Transferor(s) shall be permitted to consummate the Preferred Private Placement Offering at a price (net of underwriters’ discounts and commissions) that is at or above the price set forth in the Preferred Other Offer. At any time during the Preferred Private Placement Offering, the Preferred Transferor(s) may, but are not obligated to, abandon the Preferred Private Placement Offering and accept the then-existing Preferred Other Offer.  If the Company updates its Preferred Other Offer in accordance with this paragraph, the Company will also pay the reasonable fees and expenses of the advisors of the Preferred Transferor(s) in the marketing process of the Preferred Private Placement Offering.

 

(vi)         If the Company does not make any Preferred At the Market Offer or Preferred Other Offer before the expiration of the Preferred Private Placement ROFO Period, the Preferred Transferors shall be free to pursue and consummate a Preferred Private Placement Offering for a period of 21 Business Days following the expiration of the Preferred Private Placement ROFO Period without any restraint as to pricing.  The Preferred Transferor(s) shall permit the Company to participate as a potential buyer in the Preferred Private Placement Offering.

 

(vii)        The closing of any sale by Preferred Transferor(s) and purchase by the Company in accordance with clauses (iv) and (v) of this Section 6.5(c) shall occur at such time and place as the parties thereto may agree, but as promptly as reasonably practicable and in any event no later than the tenth (10th) Business Day after the obligation to purchase and sell becomes effective, or, if later, five (5) Business Days after receipt of all material required governmental and regulatory approvals for such sale and purchase.  For the avoidance of doubt, during such period, the Preferred Transferor may not effect a Preferred Private Placement Offering.  If (A) any such purchase and sale does not occur within the time limits set forth in this Section 6.5(c)(vii) as a result of bad faith actions or inactions of the Company, Charter or any of their respective Subsidiaries, or (B) the receipt of any such governmental or regulatory approval, if any, is materially delayed due to the failure by the Company, Charter or any of their respective Subsidiaries to use reasonable best efforts to obtain such approvals, then the Preferred Transferor shall be free to pursue and consummate a Preferred Private Placement Offering of any or all of the Private Placement Preferred Units that were to be so purchased and sold without any restraint as to pricing and, in the case of the foregoing clause (A), this Section 6.5(c) will terminate and be of no force or effect with respect to any future Transfer of Convertible Preferred Units by any Cox Party.

 

ARTICLE VII – REPORTS TO MEMBERS; TAX MATTERS

 

SECTION 7.1      Books of Account.  Appropriate books of account shall be kept by the Company and its Subsidiaries, in accordance with the generally accepted accounting principles of the United States, at the principal place of business of the Company, and each Member shall have access to all books, records and accounts of the Company and its Subsidiaries and the right to make copies thereof for any purpose reasonably related to the Member’s interest as a member of the Company, in each case, under such conditions and restrictions as the Manager may reasonably prescribe.

 

SECTION 7.2      Reports.  All references to Members in this Section 7.2 refer to only those Members holding at least one percent (1%) of the Convertible Preferred Units or Common Units (as applicable) then held by all Members.

 

(a)          Quarterly Tax Reports.  As promptly as possible, but in no event later than fifteen (15) days prior to the estimated tax due date of each fiscal quarter (i.e., no later than March 31, May 31, August 31 and November 30) the Manager shall cause to be prepared and delivered substantially concurrently to each Member estimated statements of the Common Per Unit Tax Distribution Amount for the end of such Fiscal Quarter, the Convertible Preferred Per Unit Tax Distribution Amount and the Series A Preferred Per Unit Tax Distribution Amount for such fiscal quarter, as applicable, the calculation of the Assumed Tax Rate, and the estimated taxable income (or estimated AFSI) to be allocated to such Member with respect to such fiscal quarter in order to permit such Member to pay quarterly installments of estimated tax (each, an “Initial Estimated Quarterly Tax Statement”), which Initial Estimated Quarterly Tax Statement shall state, as applicable, (1) whether the Manager has elected to waive Common Tax Distributions pursuant to Section 5.4(b)(ii) and the resulting Shortfall Amount and/or (2) whether Charter has elected to invoke a Pro-Rata Excess Redemption pursuant to Section 5.4(b)(ii)(F).  Solely to the extent necessary to reflect changes to the information set forth in the applicable Initial Estimated Quarterly Tax Statement, as promptly as possible, but in no event later than five (5) days prior to the estimated tax due date of each fiscal quarter (i.e., no later than April 10, June 10, September 10 and December 10), the Manager shall cause to be prepared and delivered to each Member revised statements of the Common Per Unit Tax Distribution Amount for the end of such Fiscal Quarter (or Fiscal Year, if applicable), the Convertible Preferred Per Unit Tax Distribution Amount and the Series A Preferred Per Unit Tax Distribution Amount for such fiscal quarter, as applicable, the calculation of the Assumed Tax Rate, and the estimated taxable income (or estimated AFSI) to be allocated to such Member with respect to such fiscal quarter in order to permit such Member to pay quarterly installments of estimated tax.

 

(b)          Schedules K-1.  Within sixty (60) days after the close of each taxable year, the Manager shall cause to be provided to each Member an estimate of taxable income for such taxable year.  Within two hundred and ten (210) days after the close of each taxable year, the Manager shall cause to be provided any completed IRS Schedule K-1 and such other financial, tax or other information (including information required for such Member to comply with the CAMT rules) as reasonably requested by a Member to comply with any applicable public disclosure, external financial reporting, federal, state or local tax filings or any other legal requirements to which such Member is subject.

 

(c)          Members’ Tax Filings.  To the extent permitted by the Code, each Member agrees to file all tax returns consistently with the treatment of the Company as a partnership with respect to the determination of the taxable income of the Company.

 

(d)          Access to Information.  The Manager shall not have the authority to withhold any confidential information from the Members.  Any Member shall have the right to access any information of the Company on a reasonable basis so long as the Member keeps such information confidential pursuant to Section 8.4.  The Manager will use commercially reasonable efforts to promptly provide any Member with information reasonably requested by such Member to prepare U.S. federal income tax returns and any state, local or foreign income tax returns (including information required for such Member to comply with the CAMT rules). The Manager will use commercially reasonable efforts to promptly provide any additional financial and accounting information reasonably requested by any Member to support its quarterly reporting requirements.

 

(e)          Determinations.  All determinations, valuations and other matters of judgment required to be made for non-tax accounting purposes under this Agreement shall be made in the Manager’s sole discretion.

 

SECTION 7.3      Fiscal Year.  The fiscal year of the Company (the “Fiscal Year”) shall end on December 31 of each calendar year unless otherwise determined by the Manager in accordance with Section 706 of the Code.

 

SECTION 7.4      Certain Tax Matters.

 

(a)          Certain Tax Elections.

 

(i)           Partnership Treatment.  The Company shall not file any election pursuant to Regulations Section 301.7701-3(c) to be treated as an entity other than a partnership.  The Company shall not elect, pursuant to Section 761(a) of the Code, to be excluded from the provisions of subchapter K of the Code.  If requested by the Manager, each Member agrees to provide the Company with such assistance as would be required (including signing any election forms) to cause any new direct or indirect Subsidiaries acquired by the Company or any of its Subsidiaries or organized by the Company or any of its Subsidiaries to elect to be treated as a partnership or disregarded entity for U.S. federal tax purposes, such election to be effective on or before the date such new Subsidiary is acquired or organized.

 

(ii)          Elections by the Company.  Except as otherwise provided in Section 7.4(a)(i), relating to the tax classification of the Company, Section 7.4(a)(v), relating to Section 754 elections, and Section 7.4(f), relating to CAMT methods, the Manager may make, but shall not be obligated to make, any tax election provided under the Code, or any provision of state, local or foreign tax Law.  All decisions and other matters concerning the computation and allocation of items of income, gain, loss, deduction and credit among the Members, and accounting procedures not specifically and expressly provided for by the terms of this Agreement, shall be determined by the Manager.  Any determination made pursuant to this Section 7.4(a)(ii) by the Manager shall be conclusive and binding on all Members.

 

(iii)         Elections by Members.  Without the consent of the Manager, no Member shall make the election provided by Section 732(d) of the Code, relating to the basis of property distributed by a Company to certain Members.  In the event any Member makes any tax election that requires the Company to furnish information to such Member to enable such Member to compute its own tax liability, or requires the Company to file any tax return or report with any tax authority, or adjust the basis of Company property, in any case that would not be required in the absence of such election made by such Member, the Manager may, as a condition to furnishing such information, or filing such return or report, or making such basis adjustment, require such member to pay to the Company any incremental expenses incurred in connection therewith.

 

(iv)         Member Obligations.  Promptly upon request, each Member shall provide the Manager with any information related to such Member necessary to allow the Company to comply with any tax reporting, tax withholding or tax payment obligations of the Company.

 

(v)          Section 754 Elections.  A valid election pursuant to Section 754 of the Code has been made for the first relevant taxable year during which a distribution of partnership property or transfer of a partnership interest occurred and shall be in full effect in respect of the Company, and no Member shall take any action to affect the effectiveness or validity of such election.  In addition:

 

(A)          the Manager shall make such adjustments to the definition of Gross Asset Value and Net Income and Net Loss, and to the Regulatory Allocations required by Section 5.3(c) as are necessary to carry out the provisions of Regulations Section 1.704-1(b)(2)(iv)(m)(2) and 1.704-1(b)(2)(iv)(m)(4); and

 

(B)          a Member who acquires any Units shall furnish to the Manager such information as the Manager shall reasonably require to enable it to compute the adjustments required by Sections 743 and 755 of the Code and the Regulations thereunder.

 

(vi)         Section 721(c) Partnership.  The Charter Group and the Manager shall ensure that (i) the Company is not treated as a “section 721(c) partnership” and (ii) no foreign person related to any member of the Charter Group is a “direct or indirect partner” in the Company, in each case, within the meaning of Regulations Section 1.721(c)-1.

 

(b)          Preparation of Returns.  The Manager shall cause to be prepared all federal, state, and local tax returns of the Company for each year for which such returns are required to be filed and shall cause such returns to be timely filed.  Except to the extent otherwise expressly provided in this Agreement, the Manager shall determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax Laws of the United States, the several states and other relevant jurisdictions as to the treatment of any such item or any other method or procedure related to the preparation of such tax returns.  Notwithstanding the foregoing, with respect to any allocation under Section 704(c) of the Code, (a) the Manager shall provide the draft allocation and supporting calculations in sufficient detail to A/N and Cox reasonably in advance of any applicable filing due date (taking into account any applicable extensions) for A/N’s and Cox’s review; and (b) the Manager shall consider in good faith any of A/N’s and Cox’s comments thereon; it being understood that if the Manager, A/N and Cox, to the extent applicable, are unable to reach an agreement with respect to any allocation under Section 704(c) of the Code, the Manager’s determination shall control. The Company shall prepare and file all returns and reports, and maintain all records, as may be necessary to implement and comply with any election or method made pursuant to Section 7.4(f) of this Agreement.

 

(c)          Tax Matters Member.

 

(i)           Designation and Powers.  The partnership representative within the meaning of Section 6223(a) of the Code, and the tax matters partner within the meaning of Section 6231(a)(7) of the Code prior to the amendment by the Bipartisan Budget Act of 2015 (the “Pre-Amendment Code”), shall be, in each case, the Manager or the Manager’s designee (the “Tax Matters Member”).  The Tax Matters Member shall have all of the rights, authority and power, and shall be subject to all of the obligations, as applicable, of a tax matters partner to the extent provided in the Pre-Amendment Code and the Regulations relating to the Pre-Amendment Code, and of a partnership representative to the extent provided in the Code and Regulations.  The Tax Matters Member shall take such action as may be reasonably necessary to cause each other eligible Member to become a “notice partner” within the meaning of Section 6231(a)(8) of the Pre-Amendment Code.  To the extent and in the manner provided by applicable Code sections and Regulations thereunder, the Tax Matters Member (i) shall furnish the name, address, profits interest and taxpayer identification number of each Member to the IRS and (ii) shall keep the Members informed of all administrative and judicial proceedings for the adjustment of Company items required to be taken into account by a Member for income tax purposes.

 

(ii)          Member Retained Rights.  The Tax Matters Member shall notify the other Members, within forty-five (45) Business Days after it receives notice from the IRS (or any state or local tax authority), of any administrative proceeding with respect to an examination of, or proposed adjustment to, any Company income tax items pursuant to a federal income tax proceeding or that would reasonably be expected to result in a material increase in the income tax liability of one or more Members.  The Tax Matters Member shall provide the other Members with notice of its intention to extend the statute of limitations or file a tax claim in any court, with respect to a federal income tax proceeding of the Company or a tax proceeding that would reasonably be expected to result in a material increase in the income tax liability of one or more Members, at least twenty (20) days before taking such action.  In the event that the other Members notify the Tax Matters Member of their intention to represent themselves, or to obtain independent counsel and other advisors to represent them, in connection with any such examination, proceeding or proposed adjustment, the Tax Matters Member agrees to supply the other Members and their counsel and other advisors, as the case may be, with copies of all written communications received by the Tax Matters Member with respect thereto, together with such other information as they may reasonably request in connection therewith.  The Tax Matters Member further agrees, in that event, to cooperate with the other Members and their counsel and other advisors, as the case may be, in connection with their separate representation, to the extent reasonably practicable and at the sole cost and expense of such other Members.  In addition to the foregoing, the Tax Matters Member shall notify the other Members at least twenty (20) days prior to submitting a request for administrative adjustment on behalf of the Company with respect to a federal income tax proceeding or that would reasonably be expected to result in a material increase in the income tax liability of one or more Members.

 

(iii)         State and Local Tax Law.  If any state or local tax Law provides for a tax matters partner, partnership representative or person having similar rights, powers, authority or obligations, the Tax Matters Member shall also serve in such capacity.  In all other cases, the Tax Matters Member shall represent the Company in all tax matters to the extent allowed by Law.

 

(iv)          Expenses of the Tax Matters Member.  All reasonable out-of-pocket expenses incurred by the Tax Matters Member in its capacity as such shall be borne by the Company as an ordinary expense of its business.  Such expenses shall include fees of attorneys and other tax professionals, accountants, appraisers and experts, filing fees and reasonable out-of-pocket costs.

 

(v)           Inconsistent Return Positions.  No Member shall file a notice with the IRS under Section 6222(b) of the Pre-Amendment Code in connection with such Member’s intention to treat an item on such Member’s federal income tax return in a manner that is inconsistent with the treatment of such item on the Company’s federal income tax return, unless such Member has, not less than thirty (30) days prior to the filing of such notice, provided the Tax Matters Member with a copy of the notice and thereafter in a timely manner provides such other information related thereto as the Tax Matters Member shall reasonably request.

 

(vi)         Election into TEFRA.  In the event that the Company is not subject to the consolidated audit rules of Sections 6221 through 6234 of the Pre-Amendment Code, during any Fiscal Year, then so long as such rules remain in effect, each Person who was a Member at any time during such Fiscal Year hereby agrees to sign an election pursuant to Section 6231(a)(1)(B)(ii) of the Pre-Amendment Code and Section  301.6231(a)(1)-1(b)(2) of the Regulations thereunder, to be filed with the Company’s federal income tax return for such Fiscal Year to have such consolidated audit rules apply to the Company.

 

(d)          Bipartisan Budget Act of 2015 Elections.  The Company will not elect into the partnership audit procedures enacted under Section 1101 of the Bipartisan Budget Act of 2015 (the “BBA Procedures”) for any tax year beginning before January 1, 2018, and, to the extent permitted by applicable law and regulations, the Company will annually elect out of the BBA Procedures for tax years beginning on or after January 1, 2018. For any year for which applicable law and regulations do not permit the Company to elect out of the BBA Procedures, then within forty-five (45) days of any notice of final partnership adjustment, the Company will (i) elect the alternative procedure under Section 6226 of the Code and any corresponding provision of state and local law, and furnish to the Internal Revenue Service and/or other relevant taxing authorities and each partner of the Company during the year or years to which the notice of final partnership adjustment relates a statement of the partner’s share of any adjustment set forth in the notice of final partnership adjustment or (ii) with respect to any Fiscal Year beginning after the Closing Date, otherwise resolve any audit brought under the BBA Procedures in any manner in accordance with the BBA Procedures as agreed by the Members. 

 

(e)          Treatment of the Contributions.

 

(i)           The Members acknowledge and agree that, for income tax purposes, (A) each of MTN Infrastructure TopCo Blocker, LLC, Fiber Platform Holdings, LLC, Fiber Platform Blocker, LLC, Fiber Platform, LLC and RapidScale, LLC (collectively, the “NewCo Subsidiaries”) is, as of the NewCo Contribution Closing Date, a disregarded entity pursuant to Regulations Section 301.7701-3 (or alternatively, in the case of Fiber Platform LLC, a partnership), and that for income tax purposes, each of the NewCo Contributions shall be treated as a contribution of all of the assets of the applicable NewCo Subsidiary as of the NewCo Contribution Closing Date, subject to the liabilities of the applicable NewCo Subsidiary (collectively, the “NewCo Contributed Property”), (B) the issuance of Common Units in connection with each of the NewCo Contributions in respect of the NewCo Contributed Property pursuant to the NewCo Contribution Agreement shall be treated as a transaction described in Section 721 of the Code, and (C) the distribution of a portion of the proceeds of the “Borrowing” (as defined in the Transaction Agreement) by the Company to the Charter Member, including cash sufficient to fund the payments described in Section 2.3(a)(i) of the Transaction Agreement, shall be treated as a distribution in redemption of the Charter Member’s Common Units governed by Section 731 of the Code and as a “debt-financed transfer” under Regulations Section 1.707-5(b)(1) (which is not subject to the “disguised sale” rules of Section 707 of the Code and the Regulations thereunder) to the extent financed by the “Borrowing” (as defined in the Transaction Agreement).

 

(ii)          The Members acknowledge and agree to treat the transactions and entities described in Section 5.21(a) and (b) of the Transaction Agreement in accordance with Section 5.21(a) and (b) of the Transaction Agreement.  

 

(iii)          The Members acknowledge and agree that, for income tax purposes, the liabilities assumed by the Company in connection with the LBRD Merger shall be treated as qualified liabilities as described in Regulations Section 1.707-5 to the maximum extent permitted pursuant to applicable Law.

 

(iv)          The Members acknowledge that, for income tax purposes, transfers of money or other consideration by the Company to any Cox Party or to members of the Charter Group (including distributions and deemed distributions) shall be treated as reimbursement for capital expenditures to the extent permitted by Regulations Section 1.707-4(d) but only to the extent that the Cox Party or the Charter Group, as applicable, provides information reasonably satisfactory to the Manager (or the Manager’s accountants) with respect to such expenditures.

 

(v)          Without limitation of any other information rights held by the Cox Parties, the Manager will use commercially reasonable efforts to provide any Cox Party with information reasonably requested by such Cox Party to determine whether and to what extent transfers of money or other consideration by the Company to any Cox Party may be considered either an “operating cash flow distribution” as defined under Regulations Section 1.707-4(b)(2) or a “debt-financed transfer” under Regulations Section 1.707-5(b).

 

(f)          CAMT Partnership Methods.  The Manager shall reasonably cooperate with the other Members in selecting for CAMT purposes a method of determining AFSI and any other relevant CAMT items for any Taxable Period, provided that, the Manager shall use reasonable best efforts to select a CAMT method that would result in Cox minimizing AFSI on its Contribution (as defined in the Transaction Agreement) to the Company (taking into account allocations and distributions related to such Contribution).  Each Member hereby agrees to provide any written consent or take any other action, in each case reasonably necessary to effect any CAMT election which the Manager has determined to make pursuant to this Section 7.4(f).

 

(g)          For the avoidance of doubt and notwithstanding any provision to the contrary contained in this Agreement, the provisions of this Agreement related to taxes, including Section 5.3, Section 5.4(b) and this Section 7.4, shall be subject to Section 2.13 of the Stockholders Agreement.

 

ARTICLE VIII– MISCELLANEOUS

 

SECTION 8.1      Exhibits.  Without in any way limiting the provisions of Section 7.2, the Manager may from time to time execute on behalf of the Company and deliver to the Members exhibits which set forth the then-current Capital Account balances of each Member and any other matters deemed appropriate by the Manager or required by applicable Law.  Such exhibits shall be for information purposes only and shall not be deemed to be part of this Agreement for any purpose whatsoever.

 

SECTION 8.2      Governing Law; Severability; Selection of Forum; Waiver of Trial by Jury.  THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION.  In the event of a direct conflict between the provisions of this Agreement and any provision of the Certificate, this Agreement shall control; in the event of a direct conflict between the provisions of this Agreement and any mandatory provision of the Act, the applicable provision of the Act shall control.  The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the application thereof to any Person or circumstance, is invalid or unenforceable to any extent, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, and such invalidity or unenforceability shall not affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.  Each party agrees that it shall bring any action, suit, demand or proceeding (including counterclaims) in respect of any claim arising out of or related to this Agreement or the transactions contemplated hereby, exclusively in the Court of Chancery of the State of Delaware or, solely if that court does not have subject matter jurisdiction, any federal court sitting in the State of Delaware (the “Chosen Courts”), and solely in connection with claims arising under this Agreement or the transactions contemplated hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to laying venue in any such action, suit, demand or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such action, suit, demand or proceeding shall be effective if notice is given in accordance with Section 8.6.  Each party irrevocably waives any and all right to trial by jury in any action, suit, demand or proceeding (including counterclaims) arising out of or related to this Agreement or the transactions contemplated hereby.

 

SECTION 8.3      Successors and Assigns; No Third-Person Beneficiaries.  This Agreement is binding upon the parties to this Agreement and their respective permitted successors and assigns.  This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and each of their respective permitted successors and assigns and other than the Covered Persons with respect to Section 4.6.

 

SECTION 8.4      Confidentiality.  The Company shall use reasonable best efforts to preserve the confidentiality of the confidential information of the Company and its Subsidiaries.  By executing this Agreement, for the period during which a Member is a party to this Agreement and for two (2) years thereafter, each Member expressly agrees to maintain the confidentiality of, and not to disclose to any Person other than the Company or its Subsidiaries, another Member or any of their respective financial advisors, accountants, attorneys or other advisors, without the consent of Manager but subject to the first sentence of this Section 8.4, any information relating to the business, financial structure, financial position or financial results, customers, suppliers or affairs of the Company and its Subsidiaries, except (i) as otherwise required by Law or by any Government Entity or Self-Regulatory Organization having jurisdiction over such Members; provided that the disclosing Member will exercise reasonable best efforts to minimize disclosure of such information that is confidential or proprietary and to seek confidential treatment for any such information to the maximum extent permissible, (ii) the delivery by a Member of financial statements of the Company and its Subsidiaries to its direct or indirect partners, stockholders or members, provided that such parties are bound by appropriate confidentiality provisions, including in their ability to use such information, (iii) the disclosure of any information that was or becomes available to such Member on a non-confidential basis from a source other than the Company or its representatives, financial advisors, accountants, attorneys or other advisors provided such other source is not known by such Member, after reasonable inquiry, to be bound by a confidentiality obligation with respect to such information, or (iv) the disclosure of any information that was or becomes generally available to the public (other than as a result of a breach by such Member of this Agreement). This provision shall survive any termination of this Agreement either generally or in regard to any Member.  Each Member agrees that monetary damages may not be an adequate remedy for a breach of this Section 8.4, and that, in addition to any other remedies, each Member shall be entitled to seek injunctive relief to restrain any such breach, whether threatened or actual, without the necessity of proving the inadequacy of monetary damages as a remedy.

 

SECTION 8.5      Amendments.  No amendment of any provision of this Agreement shall be effective against the Company or the Members unless such amendment is approved by the Manager or holders of a majority of the outstanding Common Units (including Common Units issuable upon conversion of the Convertible Preferred Units), except as otherwise expressly provided herein and without limiting Section 4.2(b).  This Agreement and any provision hereof may only be waived by a writing signed by the party against whom the waiver is to be effective.  The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

SECTION 8.6      Notices.  Whenever notice is required or permitted by this Agreement to be given, such notice shall be in writing and shall be given to any Member at its address, telecopy number or email address shown in the Company’s books and records, or, if given to the Company, at the addresses listed on Schedule I or such other address as may be designated by the parties from time to time.  Each proper notice shall be effective upon any of the following:  (i) personal delivery to the recipient, (ii) when telecopied or emailed to the recipient if the telecopy is promptly confirmed by automated or telephone confirmation thereof or if the email is promptly confirmed by email or telephone confirmation thereof, or (iii) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), provided that, unless the Company has not been provided with an email address of the applicable party, no notice telecopied or sent via reputable overnight courier service (charges prepaid), shall be effective unless the Company shall also send a copy of such notice by e-mail to the e-mail address shown in the Company’s books and records, or, if given to the Company, the e-mail addresses listed on Schedule I or such other e-mail address as may be designated by the parties from time to time.

 

SECTION 8.7      Counterparts.  This Agreement may be executed in any number of counterparts (including by means of telecopied signature pages), each of which shall be deemed an original, and all of which together shall constitute one and the same agreement.

 

SECTION 8.8      Non-Circumvention.  Nothing in this Agreement shall abridge or alter any rights provided for in the Stockholders Agreement.  The Company agrees not to take any action (or omit to take any action) that is prohibited by, or inconsistent with, the Exchange Agreement.

 

SECTION 8.9      Entire Agreement.  This Agreement, including the Exhibits and Schedules to this Agreement, the Specified Documents, the Transaction Agreement and the NewCo Contribution Agreement embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained in this Agreement.  This Agreement supersedes all prior agreements and understandings between the parties with respect to the subject matter hereof and thereof, other than the Specified Documents.

 

SECTION 8.10    Specific Performance.  Each party hereto acknowledges that the remedies at law of the other parties for a breach or threatened breach of this Agreement would be inadequate and, in recognition of this fact, any party to this Agreement, without posting any bond or furnishing other security, and in addition to all other remedies that may be available, shall be entitled to equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy that may then be available and no party shall oppose the granting of such relief on the basis that money damages would be sufficient.

 

SECTION 8.11    Control of Subsidiaries.  To the extent that this Agreement obligates the Company or any member of the Charter Group other than Charter, Charter shall take all action necessary to ensure that such party fulfills its obligations hereunder.

 

SECTION 8.12    Section 16b-3.  So long as an Investor Party has the right to designate an “Investor Director” as defined in and pursuant to the Stockholders Agreement, the Board of Directors shall use commercially reasonable efforts to take such action as is necessary to cause the exemption of the sale by such Investor Party of the Class A Common Stock and/or Units pursuant to any redemption contemplated by Section 3.2(b), Section 3.4 and Section 5.4(b)(ii) of this Agreement from the liability provisions of Section 16(b) of the Exchange Act pursuant to Rule 16b-3.

 

[THE REMAINDER OF THIS PAGE LEFT BLANK INTENTIONALLY — SIGNATURE PAGES FOLLOW]

 

IN WITNESS WHEREOF, the parties have executed this Second Amended and Restated Limited Liability Company Agreement as of the day and year first above written.

 

	THE COMPANY:
	CHARTER COMMUNICATIONS HOLDINGS, LLC
By:	/s/ Jessica M. Fischer

	Name:	Jessica M. Fischer
	Title:	Chief Financial Officer

 

 

Members

 

[***]

 

EXHIBIT A

 

 

 

EXHIBIT B

 

Certificate Evidencing Convertible Preferred Units

in

Charter Communications Holdings, LLC

 

In accordance with the Second Amended and Restated Limited Liability Company Agreement, dated as of [    ] (as amended, supplemented or restated from time to time, the “Agreement”) of Charter Communications Holdings, LLC, a Delaware limited liability company (the “Company”), the Company hereby certifies that [            ] (the “Holder”) is the registered owner of [            ] Convertible Preferred Unit(s) in the Company (the “Convertible Preferred Units”) transferable on the books of the Company, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. The rights, preferences and limitations of the Convertible Preferred Units are set forth in, and this Certificate and the Convertible Preferred Units represented hereby are issued and shall in all respects be subject to the terms and provisions of, the Agreement. The Agreement is on file at, and a copy will be furnished without charge on delivery of written request to the Company, the principal office of the Company located at [    ], or such other address as may be specified by notice under the Agreement. Capitalized terms used herein but not defined shall have the meanings given them in the Agreement.

 

The holder of this Certificate, by acceptance of this Certificate, shall be deemed to have agreed to be subject to and bound by all of the terms and conditions of the Agreement. Any attempted transfer of this Certificate or the Convertible Preferred Units not in accordance with the Agreement shall be null and void ab initio.

 

This Certificate is governed by and shall be construed in accordance with the laws of the State of Delaware, excluding any conflict-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction.

 

This Certificate shall not be valid for any purpose unless it has been countersigned and registered by the Transfer Agent.

 

Countersigned and Registered by:

(reverse side of certificate)

 

THE CONVERTIBLE PREFERRED UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS.  SUCH UNITS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR AN EXEMPTION THEREFROM.

 

THE CONVERTIBLE PREFERRED UNITS REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER SPECIFIED IN THE AGREEMENT, INCLUDING THE CONDITION THAT SUCH TRANSFER NOT CAUSE THE COMPANY TO BE TREATED AS A “PUBLICLY TRADED PARTNERSHIP” WITHIN THE MEANING OF SECTION 7704 OF THE CODE.  ANY TRANSFER IN VIOLATION OF SUCH RESTRICTIONS SHALL BE NULL AND VOID.

 

The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

 

Additional abbreviations may also be used though not in the above list.

 

FOR VALUE RECEIVED,                         hereby sell, assign and transfer unto

 

Please insert Social Security or other identifying number of Assignee

(Please print or typewrite name and address, including zip code, of Assignee)

 

 

                 Attorney to transfer the said units on the books of the Company with full power of substitution

 

in the premises.

 

Dated                         .

 

No transfer of the Convertible Preferred Units evidenced hereby will be registered on the books of the Company unless the Certificate evidencing the Convertible Preferred Units to be transferred is surrendered for registration of transfer.  No transfer of the Convertible Preferred Units evidenced hereby will be registered on the books of the Company unless the transferee executes and delivers a Joinder Agreement in the form set forth in Exhibit C to the Agreement, as such form of Joinder Agreement may be amended from time to time.

EXHIBIT C

 

 

The undersigned is executing and delivering this Joinder Agreement pursuant to Section 6.4(c) of the Second Amended and Restated Limited Liability Company Agreement, dated as of [    ] (as amended, supplemented or restated from time to time, the “Agreement”) of Charter Communications Holdings, LLC, a Delaware limited liability company (the “Company”).  Capitalized terms used herein but not otherwise defined herein have the meanings ascribed to them in the Agreement.

 

By executing and delivering this Joinder Agreement to the Agreement, the undersigned hereby agrees to be bound by, and to comply with the provisions of the Agreement in the same manner as if the undersigned were an original signatory to the Agreement and agrees, pursuant to Section 6.3(c) of the Agreement, to assume the responsibility of the Transferring Member in respect of the Units Transferred by such Transferring Member.

 

[Notwithstanding anything to the contrary herein or in the Agreement, the undersigned shall not become a Member of the Company unless and until agreed to in writing by the Manager.] [applicable for non-Cox Parties and non-A/N Parties]

 

[By executing and delivering this Joinder Agreement to the Agreement, the undersigned hereby agrees to become a Member of the Company.] [only for Cox Parties and A/N Parties]

 

This Joinder Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware, excluding any conflict-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction.

 

Accordingly, the undersigned has executed and delivered this Joinder Agreement as of the __ day of ____________, 2___.

 

	Signature of Unitholder
	Print Name of Unitholder

 

EXHIBIT D

 

 

The undersigned holder(s) of Convertible Preferred Units of Charter Communications Holdings, LLC, a Delaware limited liability company (the “Company”, such units, the “Convertible Preferred Units” and the holder(s) thereof, the “Holder(s)”) hereby tenders for conversion [_______] Convertible Preferred Units [represented by certificate no(s).  [___] which [has/have] been enclosed with this Conversion Notice] in accordance with the terms of Section 3.3(a) of the Second Amended and Restated Limited Liability Company Agreement, dated as of [    ] (as amended, supplemented or restated from time to time, the “Agreement”) of the Company.  The undersigned Holder surrenders such Convertible Preferred Units as of the Conversion Date set forth below.  Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Agreement.

 

	Name(s) and Address(es) of Registered Holders1
	Total number of Convertible Preferred Units owned prior to the Conversion:
	Number of Convertible Preferred Units to be converted:
	Conversion Rate:
	Conversion Date:
	[Class A Common Stock/Class C Common Units]2 to be [issued by][Charter/the Company]:
	Total number of Convertible Preferred Units Owned following the Conversion:
	The undersigned Holder(s):

 

(i) directs that the [shares of Class A Common Stock/Common Units/other consideration] deliverable pursuant to this Conversion Notice be delivered in accordance with the following instructions:

 

[_______________________________________]

 

(ii) represents, warrants, certifies and agrees that: (A) it has, and on the Conversion Date will have, good, valid and marketable title to the Convertible Preferred Units to be converted pursuant to this Conversion Notice, free and clear of all liens, encumbrances, rights of first refusal and similar restrictions; (B) it has, and on the Conversion Date will have, the full right, power and authority to tender and surrender such Convertible Preferred Units.

[Remainder of Page Intentionally Left Blank]

¹          [Name must be exactly as it appears on the books and records of the Company.]

²          [Where the Holder is Cox or any Cox Party, only Class C Common Units may be designated.  Where the Holder is any Person other than Cox or any Cox Party, only Class A Common Stock may be selected.]

IN WITNESS WHEREOF, the undersigned Holder has caused this Notice of Conversion to be executed as of the date first written above.

 

 

EXHIBIT E

 

 

Either:

 

 

 

Such transferee did not purchase, and will not sell, its interest through (a) a national, foreign, regional, local or other Securities exchange, (b) PORTAL or (c) over the counter market (including an interdealer quotation system that regularly disseminates firm buy or sell quotations by identified brokers or dealers by electronic means or otherwise);

 

Such transferee did not purchase, and will not sell, its interest from, to or through (a) a person, such as a broker or dealer, that makes a market in, or regularly quotes prices for, such interests or (b) a person that regularly makes available to the public (including customers or subscribers) bid or offer quotes with respect to the Interest and stands ready to effect, buy or sell transactions at the quoted prices for itself or on behalf of others; and

 

Such transferee will only sell its interest to a buyer who provides representations similar to these.

 

The representations set forth above are intended to ensure that the Company will not be treated as a corporation for federal income tax purposes as a result of any transfer.  The Manager may waive any or all of the representations set forth above on the advice of counsel that the transfer of an interest to such transferee will not cause the Company to be treated as a corporation for federal income tax purposes, and shall endeavor in good faith to do so if so advised by counsel to the Company upon request for waiver by a Member proposing to transfer, or upon receipt of an opinion from legal counsel to the transferee (provided such legal counsel is of national reputation and specializes in the legal matters involved in such determination) that such transfer will not cause the Company to be treated as a publicly traded partnership within the meaning of Section 7704 of the Code.  These representations may from time to time be revised by the Manager on the advice of counsel to the extent necessary to ensure that a transfer will not cause the Company to be treated as a corporation for federal income tax purposes.

 

EXHIBIT F

 

 

EXHIBIT G

 

 

EXHIBIT H

 

 

H-1