Exhibit 10.5
AMENDED AND RESTATED MANAGEMENT AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT AGREEMENT is made and entered into on
the 1st day of October, 1999, by and between Insight Communications of Indiana,
LLC, a Delaware limited liability company (the "Company") and Insight
Communications Company, L.P., a Delaware limited partnership ("Insight" and,
together with any permitted assigns hereunder, the "Manager").
RECITALS
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A. Pursuant to an Operating Agreement, dated as of May 14, 1998 (as the
same may be amended or modified from time to time, the "Operating Agreement"),
the Company was formed to own and operate certain cable television systems and
certain other assets, as more fully described in the Operating Agreement. The
business and operations of the Company, as the same may be conducted from and
after the date hereof, are hereinafter referred to as the "Business."
B. On October 30, 1998, the Company entered into a Management Agreement
with Manager providing for the management of the Business on the terms and
conditions as set forth therein.
C. On April 18, 1999 the Company and Manager entered into a Contribution
and Formation Agreement, and, as a result of the consummation of the
transactions contemplated in the Contribution and Formation Agreement, Company
and Manager desire to amend and restate the Management Agreement in its entirety
as set forth herein.
D. The Company is a subsidiary of Insight Midwest, L.P., a Delaware
limited partnership ("Insight Midwest"), and reference is hereby made to that
certain Limited Partnership Agreement, dated as of October 1, 1999, of Insight
Midwest (as the same may be amended from time to time, the "Midwest Partnership
Agreement").
AGREEMENTS
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In consideration of the covenants and agreements contained herein, the
Company and Manager agree as follows:
SECTION 1 DEFINITIONS. Except as otherwise defined herein, the following
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terms shall have the following meanings when used in this Agreement:
Affiliate. With respect to either the Company or Manager, any other Person
that directly or indirectly through one or more intermediaries controls or is
controlled by or under direct or indirect common control with such party.
Applicable Law. Any statute, ordinance, law, rule or regulation of any
Governmental Authority, or any order, decree, injunction, writ, judgment or
award of any court, arbitrator or other Governmental Authority, applicable to
the Company or the Business.
Authorizations. Any governmental or non-governmental license, permit,
franchise or other authorization, and applications therefor, which are necessary
to conduct the Business.
GAAP. Generally accepted accounting principles as in effect from time to
time.
Governmental Authority. Any governmental authority or regulatory body, or
any department, agency, division, bureau or other legal body thereof having
jurisdiction over the Company, the Business, or general jurisdiction over all
Persons.
Person. Any individual, corporation, partnership, firm, limited liability
company, joint venture, association, trust, joint stock company, unincorporated
organization or other entity, or a government or any agency or political
subdivision thereof.
Capitalized terms not otherwise defined herein shall have the meanings
given such terms in the Midwest Partnership Agreement.
SECTION 2 APPOINTMENT. On the terms and conditions hereinafter provided,
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the Company hereby ratifies its appointment of Manager, and Manager hereby
ratifies its acceptance of such appointment, as manager for all of the
operations and conduct of the Business for the period commencing on October 30,
1998 and expiring as provided in Section 5 of this Agreement.
SECTION 3. MANAGEMENT AUTHORITY; MANAGEMENT SERVICES.
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3.1 Authority and Services To Be Performed By Manager. (a)(i) Subject to
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the limitations set forth in Section 3.1(b) below, Manager shall have full and
exclusive authority to do all such acts and things as may be incidental to, or
necessary, proper or advisable in the furtherance of, the management of the day-
to-day operations and conduct of the Business. Subject to the terms and
conditions of this Agreement, Manager shall provide the Company with such
services as may, from time to time, be appropriate or reasonably required for
the proper and
efficient operation and conduct of the Business in accordance with sound
business principles and practices customary in the cable television industry
(collectively, the "Management Services"). The Management Services shall be
provided both at such times as Manager may reasonably deem appropriate and at
such times as the Company may reasonably request.
(ii) Without limiting the generality of the preceding paragraph, the
Management Services shall include the following, but subject to any applicable
limitations set forth in this Agreement:
(1) (A) Evaluation of new equipment, materials and techniques and
making recommendations in accordance with its evaluations, (B) establishment of
general technical standards and procedures and directing their implementation,
and (C) establishment of programs for preventive maintenance and monitoring
their effectiveness;
(2) Supervision of all construction and development arising out of or
related to the operation of the Business, including, without limitation, the
selection and appointment of all subcontractors, equipment suppliers and
vendors;
(3) Supervision of the purchasing of property, real, personal or
mixed, and all materials and supplies, if any, necessary to complete any
construction and development arising out of or related to the Business;
(4) Sale, lease, trade, exchange or other disposition of the Company's
assets in the ordinary course of business and the negotiation of, and entrance
into, in the name of and on behalf of the Company, of all agreements relating to
any of the foregoing;
(5) Negotiation of, and entrance into, in the name of and on behalf of
the Company, of all, contracts, leases, deeds, releases, assignments and any
other agreements on behalf of the Company for the purchase, lease, license or
use of such properties and rights as may be necessary or reasonably desirable in
connection with the Business;
(6) Formulation and supervision of all advertising, marketing and
sales programs and engagement and appointment on behalf of the Company of
advertising, marketing and public relations agencies and consultants for such
purposes;
(7) Subject to the provisions of all Authorizations, Applicable Law
and applicable agreements to which the Company is a party, the selection and
pricing of all services to be provided to the customers of the cable television
systems included in the Business;
(8) Supervision of performance of all aspects of the daily operation
and maintenance of the Business, instruction and supervision of all personnel
necessary to conduct
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daily operations of the Business and the setting of salaries and wages for such
personnel (with all such employees to be paid by the Company);
(9) Entrance into, in the name of and on behalf of the Company, of any
agreements arising out of or related to the Business, including, without
limitation, cable television franchises or collective bargaining agreements with
employees of the Company;
(10) Supervision of the maintenance of all accounting, bookkeeping,
billing, collections and other financial systems and records relating to the
Business;
(11) Engagement of, on behalf of the Company, attorneys, accountants,
engineers, consultants and other qualified professionals;
(12) Preparation and filing, or causing to be prepared and filed, all
necessary applications, filings, reports, statements and other documents as are
required in connection with the Business with Governmental Authorities
(including any income tax filings);
(13) Purchase of such policies of insurance (including Manager's
blanket coverage) as Manager may from time to time consider necessary and
appropriate in accordance with normal industry practice, with such policy naming
both the Company and Manager (and any other Member of the Company) as insured
thereunder as their interests may appear;
(14) Representation of the Company before all Governmental Authorities
with respect to any matter necessary or desirable to the management of the
Business; and
(15) Taking of any other action in connection with the construction,
development, operation and maintenance of the Business in the ordinary course of
business which is commercially reasonable, appropriate and necessary.
(b) Notwithstanding the foregoing in Section 3.1(a), the Manager
acknowledges that the Manager shall be subject to all express limitations of the
Midwest Partnership Agreement requiring approvals of the Partners of Insight
Midwest prior to taking of certain actions by the Company and shall otherwise be
subject to the terms of the Midwest Partnership Agreement, including Section
16.1 thereof.
3.2 Standard of Care. Manager will use reasonable commercial efforts in
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managing the Business; provided, however, that notwithstanding anything
contained herein or Applicable Law to the contrary, neither Manager (nor any of
its direct or indirect partners, shareholders, members, officers, directors,
Affiliates, employees or agents) shall have any liability, express or implied,
for any action taken or omitted to be taken by Manager or for any failure or
delay in performing or exercising any obligation, duty, right, power or
authority possessed by Manager under this Agreement, or any other document
related hereto except for actual losses, if any,
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suffered by the Company that are proximately caused either by Manager's gross
negligence, willful misconduct or willful breach of this Agreement.
3.3 Compliance with Authorizations. Notwithstanding anything in this
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Agreement to the contrary, the Company shall continue to be the franchisee,
licensee and permittee, as applicable, of all Authorizations of any nature
whatsoever issued by any Governmental Authority in connection with the operation
of the Business and shall retain ultimate control over the Business. The
Company shall also retain ultimate responsibility for compliance with all
Applicable Law and the terms of any applicable Authorizations.
3.4 Payment of Expenses. The Company shall be responsible for the payment
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of all costs, expenses and liabilities of any nature whatsoever in connection
with the construction, development, operation, maintenance, repair and ownership
of the Business and the Company shall be the responsible party under all
agreements entered into on behalf of the Company by Manager pursuant hereto.
3.5 Inspection of Records. Originals or copies of all books and records
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related to this Management Agreement shall be maintained at the principal office
of Manager and shall be open to the inspection and examination of the Company
and Insight Midwest's Partners during normal business hours upon reasonable
notice.
SECTION 4 COMPENSATION AND EXPENSES.
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4.1 Management Fee. As compensation to Manager for the performance of its
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services hereunder, the Company shall pay to Manager a management fee
("Management Fee") for each twelve month period during the term of this
Agreement, commencing on the date hereof, equal to three percent (3%) of the
total Gross Operating Revenues of the Company for that year.
4.2 Gross Operating Revenues. The term "Gross Operating Revenues" means
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all revenues arising out of or in connection with the operation of the Business,
but exclusive of all proceeds from the sale of assets or from other
extraordinary or non-recurring items and exclusive of all interest, dividends,
royalties, and other similar types of investment income that do not arise from
the operation of the Business in the ordinary course.
4.3 Quarterly Statement. Within 30 days after the end of each fiscal
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quarter, the Manager shall submit to the Company a quarterly and a cumulative
year-to-date Gross Operating Revenues statement indicating the quarterly
Management Fee payable and the cumulative year-to-date Management Fee payable to
Manager together with appropriate supporting documentation. Each quarterly
Management Fee payable hereunder shall be adjusted to reflect any cumulative
year-to-date adjustments in Gross Operating Revenues. The Management Fee
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shall be payable each quarter within 10 days after the Management Fee statement
for such quarter has been received by the Company.
4.4 Annual Statement. Within 90 days after the end of each fiscal year,
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the Company shall cause its independent public accountants to determine the
Gross Operating Revenues of the Company for that year and the amount of the
Management Fee payable to Manager for that year and deliver a copy to Manager.
Manager shall have the right to consult with the accountants regarding the
determination of Gross Operating Revenues prior to the final determination of
Gross Operating Revenues by the accountants. The accountants' determination
shall be final and binding on the Company and Manager.
4.5 Expense Reimbursement. The Management Fee described above shall be
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exclusive of reimbursement by the Company to Manager for all direct, out-of-
pocket expenditures incurred by or on behalf of Manager relating to its
obligations under this Agreement as provided for herein, including without
limitation, reimbursement for travel expenses. Manager shall be entitled to
reimbursement by the Company for services that would ordinarily be direct
expenditures of the Company. Manager shall act in good faith and in a reasonable
manner in making determinations of reimbursement. It is understood and agreed
that the intent of the expense reimbursement provisions contained in this
Section 4.5 is to reimburse Manager only for expenses incurred that are directly
related to the operation of the Business and not to reimburse Manager for any
corporate overhead (including bonuses and health, welfare, retirement and other
benefits and overhead expenses of its corporate office management, development,
internal accounting and finance management personnel), which shall be paid out
of the Management Fee. Payment of expense reimbursement shall be made monthly
by the Company to Manager within five days after receipt by the Company of a
statement (the "Monthly Expense Statement") of Manager's estimated reimbursable
expenses for the preceding month. The Monthly Expense Statement shall include
an adjustment to reflect the amount by which actual reimbursable expenses
incurred during the month immediately preceding the month of payment exceeded,
or were exceeded by, Manager's estimated reimbursable expenses with respect to
such month.
4.6 Subordination. Manager acknowledges and agrees that notwithstanding
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anything else contained herein, payment of the Management Fee may be limited by
the provisions of loan agreements of the Company and that the Management Fee
shall be paid if and only to the extent that such payment will not create a
default under such loan agreements. To the extent that all or any portion of
the Management Fee may not be paid because of the terms of the loan agreements,
any portion of the Management Fee that is deferred shall be paid as soon as the
same may be paid without violating the provisions of the loan agreements.
Payments of any outstanding Management Fees (whether or not deferred) shall be
paid prior to payment of any members distributions or similar payments to the
members of the Company.
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SECTION 5 DEFAULT AND TERMINATION.
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5.1 A default by Manager or the Company shall occur under this Agreement
if Manager or the Company shall willfully breach in any material respect any
material covenant of this Agreement to be kept and performed by it.
5.2 Subject to Section 5.3 hereof, this Agreement shall be terminated
automatically upon the termination of the Company and may be terminated as
follows:
(a) by either the Company or Manager on written notice to the other
party in the event of any default (as defined in Section 5.1 hereof) by the
other party, as provided in Section 5.1, which is not cured within 90 days after
written notice thereof is received by the defaulting party (or if not curable
within that time period, within a reasonable time thereafter);
(b) by either the Company or Manager on written notice to the other
party upon a sale or other disposition of all or substantially all of the assets
of the Company.
(c) Upon the resignation or removal of Insight as General Partner of
Insight Midwest pursuant to and in accordance with the terms of the Midwest
Partnership Agreement, other than in connection with a transfer by Insight of
its Partnership Interest in Insight Midwest to an Affiliate of Insight that is
permitted under the terms of the Midwest Partnership Agreement.
5.3 In the event of termination of this Agreement pursuant to the terms
hereof, Manager shall be entitled to receive promptly following termination, and
in any event within 30 days thereafter, the amount of any accrued but unpaid
Management Fees and any expense reimbursements.
SECTION 6 INDEMNIFICATION.
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6.1 Indemnification by the Company. The Company will indemnify and hold
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harmless Manager, its Affiliates, and all direct and indirect officers,
directors, employees, stockholders, partners, members and agents of Manager and
its Affiliates (individually, a "Manager Indemnitee") from and against any and
all claims, demands, costs, damages, losses, liabilities, joint and several,
expenses of any nature (including reasonable attorneys', accountants' and
experts' fees and disbursements, all of which shall be paid by the Company as
incurred by the Manager Indemnitee(s)), judgments, fines, settlements and other
amounts (collectively, "Damages") arising from any and all claims, demands,
actions, suits or proceedings, civil, criminal, administrative, or investigative
(collectively "Claims") in which a Manager Indemnitee may be involved or
threatened to be involved, as a party or otherwise, arising out of Manager's
performance of its obligations under this Agreement or arising out of, related
to or in connection with, the Business regardless of whether this Agreement
continues to be in effect or such
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Manager Indemnitee continues to be an Affiliate, or an officer, director,
employee, stockholder, partner or agent of Manager, at the time any such Claims
are made or Damages incurred, provided that in respect of any matter in which
indemnification is sought, to the extent applicable: (i) the Manager Indemnitee
acted in good faith and in a manner it reasonably believed to be in the best
interest of the Company and, with respect to any criminal proceeding, had no
reasonable cause to believe its conduct was unlawful, and (ii) the Manager
Indemnitee's conduct for which indemnification is sought did not constitute
gross negligence, willful misconduct or a willful breach of this Agreement. Any
indemnification hereunder will be satisfied solely out of the assets of the
Company.
6.2 Indemnification by Manager. Manager will indemnify and hold harmless
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the Company, its Affiliates, and all officers, directors, employees,
stockholders, partners, members and agents of the Company and its Affiliates
(individually, a "Company Indemnitee") from and against all Damages arising from
any Claim in which a Company Indemnitee may be involved or threatened to be
involved, as a party or otherwise, arising out of Manager's gross negligence,
willful misconduct or willful breach of this Agreement.
6.3 Right to Indemnification Not Exclusive Remedy. The indemnification
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rights contained in this Section 6 will be cumulative of and in addition to any
and all other rights, remedies and recourse to which a Manager Indemnitee or a
Company Indemnitee, its heirs, successors, assigns and administrators are
entitled, whether pursuant to some other provision of this Agreement, at law or
in equity; provided, however, it is understood and agreed that notwithstanding
anything contained herein to the contrary, neither Manager (nor any of its
shareholders, officers, directors, employees or agents) shall have any liability
with respect to a breach of, or non-performance under this Agreement except as
expressly specified in this Agreement. The indemnification provided in this
Section 6 will inure to the benefit of the heirs, successors, assigns and
administrators of each Manager Indemnitee and Company Indemnitee.
6.4 Insurance. Manager may purchase, at the Company's expense, and
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maintain insurance on behalf of Manager and such other persons as Manager may
reasonably determine against any liability that may be asserted against it or
them in connection with the performance of Manager's obligations under this
Agreement; provided, however, that Manager will not purchase or maintain
insurance against liabilities of Manager or any other person arising out of acts
or omissions which were not made in good faith or which constituted gross
negligence, willful misconduct or a willful breach of this Agreement.
6.5 Interested Transactions. A Manager Indemnitee will not be denied
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indemnification in whole or in part under this Section 6 solely because the
Manager Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was otherwise permitted by the terms
of this Agreement.
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SECTION 7 MISCELLANEOUS.
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7.1 Relationship Among the Parties. Nothing herein contained shall be
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deemed to make Manager a partner, co-venturer or other participant in the
business or operations of the Company or in any manner to render Manager liable
as a principal, surety, guarantor, agent or otherwise for any of the debts,
obligations or liabilities of the Company, whether incurred directly by the
Company or by Manager on behalf of the Company in accordance with this
Agreement.
7.2 Other Activities of Manager. Nothing in this Agreement shall limit or
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restrict the right of Manager to engage in any other business or to devote its
time and attention to the management or other aspects of any other business or
to render services of any kind. The Company acknowledges that Manager and its
Affiliates own, manage or operate cable television systems throughout the United
States. Manager will devote such of its attention, time, efforts and resources
to the Business as shall be reasonably necessary for it to carry out its duties
hereunder.
7.3 Notices. All notices and other communications given or made pursuant
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to this Agreement shall be in writing and shall be deemed to have been duly
given or made as of the date delivered if delivered by hand, by telecopier
device (confirmed by hand delivery or overnight courier service) or by overnight
courier service to the parties at the following address (or at such other
address for a party as shall be specified by like notice):
if to the Company, to:
c/o Insight Communications Company, Inc.
126 E. 56th Street
New York, New York 10022
Attention: Mr. Michael Willner
Telecopier: (212) 371-1549
with a copy to:
Tele-Communications, Inc. (d/b/a/ AT&T Broadband and Internet
Services)
9197 Peoria Street
Englewood, Colorado 80111
Attention: Mr. Derek Chang
Telecopier: (720) 875-5396
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if to Manager, to:
c/o Insight Communications Company, Inc.
126 E. 56th Street
New York, New York 10022
Attention: Mr. Michael Willner
Telecopier: (212) 371-1549
7.4 Assignability; Benefit and Binding Effect. The Company agrees that
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Manager may assign this Agreement, without the consent of the Company, to any
Affiliate of Manager, or any successor to Manager by merger, consolidation or
otherwise. Except as set forth in the preceding sentence, neither party hereto
may assign this Agreement without the prior written consent of the other party.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
7.5 Governing Law. This Agreement shall be governed by the laws of the
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State of Delaware as to all matters, including but not limited to matters of
validity, construction, effect, performance and remedies (without giving effect
to the principles of conflicts of law thereof).
7.6 Headings. The headings preceding the text of sections and
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subsections of this Agreement are included for ease of reference only and shall
not be deemed part of this Agreement.
7.7 Gender and Number. Words used herein, regardless of the gender and
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number specifically used, shall be deemed and construed to include any other
gender, masculine, feminine or neuter, and any other number, singular or plural,
as the context requires.
7.8 Entire Agreement. This Agreement represents the entire understanding
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and agreement between the Company and Manager with respect to the specific
subject matter hereof. This Agreement supersedes all prior negotiations between
the parties and cannot be amended, supplemented or changed except by an
agreement in writing which makes specific reference to this Agreement or an
agreement delivered pursuant hereto, as the case may be, and which is signed by
the party against which enforcement of any such amendment, supplement or
modification is sought. Notwithstanding the foregoing, this Agreement shall not
impair or affect any of the rights and obligations of the parties under the
prior Management Agreement for the period April 30, 1998 through October 1,
1999.
7.9 Further Assurances. The parties shall take any actions and execute
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any other documents that may be necessary or desirable to the implementation and
consummation of this Agreement or that may be reasonably requested by any other
party hereto. Each party will cooperate with the other party and provide any
assistance reasonably requested by the other party to effectuate the intent of
this Agreement.
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7.10 Severability. If any provision of this Agreement or the application
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thereof to any person or circumstance shall be held invalid or unenforceable to
any extent by any court of competent jurisdiction, the remainder of this
Agreement and the application of such provision to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
7.11 Counterparts. This Agreement may be signed in counterparts, each of
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which shall be deemed to be an original but which, when taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Management Agreement has been executed by the
parties hereto as of the date first above written.
THE COMPANY:
INSIGHT COMMUNICATIONS OF INDIANA, LLC
By: Insight Midwest, L.P., Sole Member
By: Insight Communications Company, L.P.,
its General Partner
By: Insight Communications Company, Inc.,
its General Partner
By:____________________________________
Name: Kim D. Kelly
Title: Executive Vice President, Chief
Operating Officer and Chief Financial
Officer
MANAGER:
INSIGHT COMMUNICATIONS COMPANY, L.P.
By: Insight Communications Company, Inc.,
its General Partner
By:____________________________________
Name: Kim D. Kelly
Title: Executive Vice President, Chief
Operating Officer and Chief Financial
Officer
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