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Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
BRESNAN COMMUNICATIONS GROUP LLC
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is
made as of August 5, 1998 by and between BRESNAN COMMUNICATIONS GROUP LLC, a
Delaware limited liability company (the "Company"), and BRESNAN COMMUNICATIONS
COMPANY LIMITED PARTNERSHIP, a Michigan limited partnership (the "Member").
RECITALS:
WHEREAS, on August 5, 1998, a Certificate of Formation of
Bresnan Communications Group LLC was filed with the Secretary of State of the
State of Delaware; and
WHEREAS, in order to effect the business objectives of the
Company, the parties desire to enter into this limited liability company
agreement.
NOW, THEREFORE, the parties hereto, intending to be legally
bound hereby, agree as follows:
ARTICLE I
GENERAL PROVISIONS
1.1 FORMATION. The Member hereby ratifies, in all respects,
the actions taken in connection with the formation of the Company under and
pursuant to the Act (as defined herein). This Agreement is subject to, and to
the extent legally required, governed by, the Act and the Certificate (as
defined herein). In the event of a direct conflict between the provisions of
this Agreement and either the mandatory provisions of the Act or the
Certificate, such mandatory provisions of the Act or the Certificate, as the
case may be, shall control. The Member shall take, or cause to be taken, all
other necessary action required by law to maintain the Company as a limited
liability company under the Act and under the laws of all other jurisdictions in
which the Company may elect to conduct business.
1.2 NAME. The name of the Company shall be "Bresnan
Communications Group LLC" or such other name as the Member shall determine.
1.3 PURPOSE AND BUSINESS OF THE COMPANY. The purpose of the
Company shall be to engage in any lawful business, purpose or activity of every
kind and character for which a limited liability company may be organized under
the Act, including, without limitation, engaging in, or holding investments in
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entities directly or indirectly engaging in, business activities in
the telecommunications industry, and engaging in any business activity related
or incidental thereto.
1.4 PLACE OF BUSINESS. The Company shall maintain its
principal office and place of business at 709 Westchester Avenue, White Plains,
New York 10604. The Company shall continuously maintain a registered office and
registered agent in the State of Delaware as required by the Act. The registered
office of the Company shall be located at the Corporation Trust Center, 1209
Orange Street, Wilmington, Delaware 19801, or at such other place as the Member
may determine. The registered agent at such address shall be The Corporation
Trust Company or as otherwise determined by the Member. The Member may, at any
time and from time to time, change the location of its principal office and
place of business. The Member may establish such additional place or places of
business as it may from time to time determine.
1.5 DURATION OF THE COMPANY. The Company's existence shall
commence on the date the Certificate is filed in accordance with the Act and
shall continue without interruption, subject to the provisions of the Act,
unless terminated at an earlier date in accordance with Article VIII.
1.6 UNRESTRICTED SUBSIDIARY. The Company and each of its
subsidiaries is hereby designated an "Unrestricted Subsidiary" as defined in the
Fourth Amended and Restated Loan Agreement dated as of May 16, 1997, as amended,
by and among the Member and the other parties named therein.
ARTICLE II
DEFINITIONS
For purposes of this Agreement, unless the context otherwise
requires, the following terms shall have the following respective meanings:
2.1 "ACT" means the Delaware Limited Liability Company Act,
codified in Title 6 of the Delaware Code, Sections 18-101 et seq., as it
may be amended from time to time.
2.2 "AGREEMENT" means this Limited Liability Company
Agreement, as it may be amended from time to time.
2.3 "CAPITAL CONTRIBUTION" means the total amount of all cash
and the fair market value of all property contributed by the Member to the
Company pursuant to the terms of this Agreement.
2.4 "CERTIFICATE" means the Certificate of Formation of the
Company which was filed with the Secretary of State of the State of Delaware on
August 5, 1998, as it may be amended from time to time pursuant to the Act and
the terms of this Agreement.
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2.5 "CLAIMS" shall have the meaning assigned to such term in
Section 3.5.
2.6 "COMPANY" means Bresnan Communications Group LLC, a
limited liability company which shall be governed by this Agreement, as said
limited liability company may from time to time be constituted.
2.7 "COMPANY EXPENSES" means, collectively, (i) any costs,
fees or expenses incurred or payable by the Company, the Member or any of the
Member's partners or affiliates in connection with the operation of the
Company's business or the maintenance of the Company's assets and (ii) any
amounts which the Company is obligated to pay to or on behalf of an
Indemnifiable Person pursuant to Section 3.5.
2.8 "INDEMNIFIABLE PERSON" means the Member and any member
(managing or otherwise), general partner, limited partner, officer, director,
agent, affiliate or employee of the Member or its partners or affiliates.
2.9 "MEMBER" means Bresnan Communications Company Limited
Partnership, a Michigan limited partnership, and any and all other Persons who
become a substitute or successor Member in accordance with the provisions of
this Agreement.
2.10 "MEMBERSHIP INTEREST" means the Member's "limited
liability company interest" (as defined in Section 18-101(8) of the Act) in the
Company.
2.11 "ORGANIZATION EXPENSES" means the fees, costs and
expenses of and incidental to organizing and funding the Company.
2.12 "PERSON" means any individual, partnership, joint
venture, firm, association, corporation, trust, limited liability company,
limited liability partnership, joint stock company or other entity or any
government or agency, department, political subdivision or instrumentality
thereof.
2.13 "SECTION" means, except as otherwise indicated, the
applicable section or subsection of this Agreement.
2.14 "TERMINATING DISSOLUTION" shall have the meaning assigned
to such term in Section 8.1.
2.15 "TRANSFER" means, with respect to a Membership Interest,
any sale, assignment, encumbrance, conveyance or other transfer of such
Membership Interest (or any interest therein), whether voluntary or involuntary,
including a transfer by operation of law.
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ARTICLE III
MANAGEMENT OF THE COMPANY
3.1 MANAGEMENT GENERALLY. The business and affairs of the
Company shall be managed by and under the authority of the Member, who shall
have all the rights and powers that may be possessed by a "manager" under the
Act, and such rights and powers as are otherwise conferred by law or by this
Agreement or that are necessary, advisable or convenient to the management of
the business and affairs of the Company.
3.2 ADVISORY COMMITTEE. The Company shall form an Advisory
Committee (the "Advisory Committee") consisting of up to three (3)
representatives from Tele-Communications, Inc., or its controlled affiliates,
and three representatives from each of (i) Blackstone Cable Acquisition Company,
LLC or its affiliates and (ii) the general partner of the Member or its
affiliates. The Member will be responsible for administration of the Advisory
Committee. The Advisory Committee will meet quarterly in a location approved by
the members of the Advisory Committee, and will consult with and advise the
Member with respect to the business of the Company and perform such other
advisory functions as may be requested by the Member from time to time.
3.3 EXPENSES. The Company shall pay all Organization Expenses
and Company Expenses.
3.4 EXCULPATION. No Indemnifiable Person shall have any
liability or obligation to the Company or the Member for any loss suffered by
the Company which arises out of any action or inaction of such Indemnifiable
Person, or of any other Indemnifiable Person, so long as such Indemnifiable
Person, in good faith, shall have determined that such action or inaction was in
the best interest of the Company and such action or inaction did not constitute
fraud or willful misconduct.
3.5 INDEMNIFICATION. The Indemnifiable Persons shall be
indemnified and held harmless by the Company to the fullest extent permitted by
law from and against any losses, claims, demands, liabilities, costs, damages
and causes of action of any nature whatsoever, and amounts paid in settlement of
any claims, including, without limitation, any reasonable legal, accounting or
other expenses incurred in connection with investigating or defending any actual
or threatened claims, investigations, suits, proceedings or actions, arising out
of or incidental to an Indemnifiable Person's conduct of the affairs of the
Company within the scope of authority conferred by this Agreement (collectively,
"Claims"). Notwithstanding the foregoing, no indemnification shall be available
hereunder in respect of any Claim adjudged to be primarily the result of fraud
or willful misconduct of an Indemnifiable Person. Unless the Member otherwise
determines, the Company shall pay the costs and expenses, including reasonable
legal fees, incurred by any Indemnifiable Person in connection with any Claim
for which an Indemnifiable Person may be entitled to indemnification in
accordance with this Section 3.5 in advance of the final disposition of
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such Claim, upon receipt by the Company of an undertaking of such Indemnifiable
Person to repay such payment if there shall be a final adjudication or
determination that such Indemnifiable Person is not entitled to indemnification
as provided herein. The indemnification rights contained in this Section 3.5
shall be cumulative and in addition to any and all other rights, remedies and
recourse to which an Indemnifiable Person shall be entitled, whether pursuant to
the provisions of this Agreement, at law, or in equity. Payment of the
indemnification obligations set forth herein shall be made from assets of the
Company and the Member shall not be personally liable to an Indemnifiable Person
for payment of indemnification hereunder. Notwithstanding anything contained
herein to the contrary, all indemnification obligations of the Company shall
survive the termination of the Company.
ARTICLE IV
MEMBER AND CAPITAL CONTRIBUTIONS
4.1 MEMBER. The address of the Member is 709 Westchester
Avenue, White Plains, New York 10604 Attn: General Counsel and Chief Financial
Officer, telephone number: (914) 993-6600, facsimile number: (914) 993-6693.
4.2 INITIAL CONTRIBUTIONS. Concurrently with the execution of
this Agreement, the Member shall contribute $100.00 to the Company.
4.3 ADDITIONAL CONTRIBUTIONS; RETURN OF DISTRIBUTIONS. Except
as provided in Section 4.2, in Section 18-607 of the Act or by other applicable
law, the Member shall not be required to make any contribution to the capital of
the Company or to return any distribution made to the Company by it; provided,
however, the Member may make additional Capital Contributions in such amounts
and at such times as the Member shall determine.
4.4 LIMITED LIABILITY. Except to the extent provided by
applicable law, the Member shall not be bound by, or personally liable for, the
expenses, debts, liabilities or obligations of the Company.
ARTICLE V
DISTRIBUTIONS AND ALLOCATIONS
5.1 DISTRIBUTIONS. Notwithstanding anything contained herein
to the contrary, from time to time the Company shall make cash distributions to
the Member sufficient to allow the payment by Bresnan Communications Company
Limited Partnership ("BCCLP") of any Tax Distribution (as defined in the Amended
and Restated Partnership Agreement of BCCLP, dated as of February __, 1999 (the
"Partnership Agreement")) to its partners required by the terms of the
Partnership Agreement. All other distributions of cash or other assets of the
Company shall be made to the Member at such times and in such amounts as the
Member may determine.
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5.2 LIMITATION ON DISTRIBUTIONS. No distribution shall be made
to the extent that such distribution would violate Section 18-607 of the Act or
any other applicable law.
5.3 ALLOCATIONS. All items of income, gain, loss, deduction
and credit for federal, state and local income tax purposes shall be allocated
to the Member.
5.4 TAX TREATMENT OF COMPANY. Solely for federal, state and
local income tax purposes, the Member intends that the Company will be
disregarded as an entity separate from the Member as set forth in Treasury
Regulations Section 301.7701-3. The Member shall file Form 8832 with the
Internal Revenue Service in order to effectuate such classification.
ARTICLE VI
BOOKS AND RECORDS; ACCOUNTS
6.1 BOOKS AND RECORDS. The Member shall maintain at the office
of the Company full and accurate books of the Company showing all receipts and
expenditures, assets and liabilities, profits and losses, and all other books,
records and information required by the Act or necessary for recording the
Company's business and affairs including (a) Federal, state and local income tax
or information returns and reports, if any, and (b) financial statements of the
Company. The financial and accounting books and records of the Company may be
maintained in accordance with such accounting procedures and principles as the
Member may deem appropriate.
6.2 BANKING. The Member may open and thereafter maintain one
or more separate bank accounts in the name of the Company in which the funds of
the Company may be deposited. No funds of any other Person shall be deposited in
any such account, and the funds in any such account shall be used solely for the
business of the Company.
6.3 TAX MATTERS; ANNUAL TAX RETURNS. The Member shall include
all items of Company income, gain, loss and deduction on the Member's tax
return. The Member shall prepare or cause to be prepared all tax returns and any
other reports or forms as are required by the Internal Revenue Service or as may
be necessary for the Member to file its Federal or any required state or local
income tax return.
ARTICLE VII
TRANSFER OF MEMBERSHIP INTEREST
The Member may Transfer all or any portion of its Membership
Interest.
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ARTICLE VIII
DISSOLUTION AND WINDING UP OF THE COMPANY
8.1 DISSOLUTION OF THE COMPANY. The Company shall be dissolved
upon the first to occur of any of the following events (each a "Terminating
Dissolution"):
8.1.1 a determination by the Member to dissolve the
Company;
8.1.2 the expiration of the term of the Company set forth
in Article I; or
8.1.3 any other event causing dissolution of the Company
under the Act.
8.2 WINDING UP OF THE COMPANY. Upon a Terminating Dissolution
of the Company, the Member shall wind up the business and affairs of the Company
in an orderly manner and any Company assets not previously distributed to the
Member, or the proceeds therefrom to the extent the Member elects to liquidate
the same, to the extent sufficient therefor, shall be applied and distributed in
the following order:
8.2.1 To the payment and discharge of all of the Company's
debts and liabilities to Persons other than the Member;
8.2.2 To the establishment of any reserve which the Member
may deem reasonably necessary for any contingent liabilities or obligations of
the Company; such reserve may be paid over by the Member to any bank or other
acceptable party, as escrow agent, to be held for disbursement in payment of any
of the aforementioned liabilities and, at the expiration of such reasonable
period as shall be determined by the Member, for distribution of the balance, in
the manner hereinafter provided in this Section 8.2;
8.2.3 To the payment and discharge of all of the Company's
debts and liabilities to the Member (other than in respect of its Membership
Interest); and
8.2.4 The balance of such assets or proceeds shall be
distributed to the Member.
ARTICLE IX
MISCELLANEOUS
9.1 SUCCESSORS AND ASSIGNS. This Agreement and each
provision of this Agreement shall be binding upon and shall inure to the benefit
of the Member and its successors and permitted assigns.
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9.2 AMENDMENTS. Amendments may be made to this Agreement
from time to time by a written document duly executed by each of the parties
hereto.
9.3 NO WAIVER. The failure of the Member to insist upon
strict performance of a covenant under this Agreement or of any obligation under
this Agreement, irrespective of the length of time for which such failure
continues, shall not be a waiver of that Member's right to demand strict
compliance in the future. No consent or waiver, express or implied, to or of any
breach or default in the performance of any obligation under this Agreement
shall constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation under this Agreement. No
provision of this Agreement may be waived except by a writing specifically
waiving such provision and executed by the party chargeable with such waiver.
9.4 ENTIRE AGREEMENT. This Agreement constitutes the full
and complete agreement of the parties to this Agreement with respect to the
subject matter of this Agreement.
9.5 CAPTIONS. The titles or captions of Articles or
Sections contained in this Agreement are inserted only as a matter of
convenience and for reference, are not a part of this Agreement, and in no way
define, limit, extend or describe the scope of this Agreement or the intent of
any provision of this Agreement.
9.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which together shall for all purposes constitute
one agreement, binding on all the parties, notwithstanding that all parties have
not signed the same counterpart.
9.7 SEPARABILITY. In case any of the provisions contained
in this Agreement or any application of any of those provisions shall be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained in this Agreement and other
applications of those provisions shall not in any way be affected or impaired
thereby.
9.8 CONSTRUCTION. Except as expressly provided herein,
none of the provisions of this Agreement shall be for the benefit of, or
enforceable by, any creditors of the Company or other third parties.
9.9 APPLICABLE LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware.
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IN WITNESS WHEREOF, this LIMITED LIABILITY COMPANY AGREEMENT
has been executed as of the date first above written.
MEMBER:
BRESNAN COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP
By: BCI (USA), L.P., its managing general partner
By: BRESNAN COMMUNICATIONS, INC.,
its general partner
By: /s/ Robert Bresnan
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Name: Robert Bresnan
Title: Vice President & General Counsel
COMPANY:
BRESNAN COMMUNICATIONS
GROUP LLC
By: BRESNAN COMMUNICATIONS COMPANY
LIMITED PARTNERSHIP, its member
By: BCI (USA), L.P., its managing general partner
By: BRESNAN COMMUNICATIONS, INC.,
its general partner
By: /s/ Robert Bresnan
..........................................
Name: Robert Bresnan
Title: Vice President & General Counsel