SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
U.S. CABLE TELEVISION GROUP, L.P.
Dated as of
March 18, 1996
TABLE OF CONTENTS
Page
ARTICLE 1 THE LIMITED PARTNERSHIP. . . . . . . . . . . . . . . . . . . . 4
1.1 Formation. . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Certificate of Limited Partnership . . . . . . . . . . . . . 4
1.3 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.5 Principal Offices. . . . . . . . . . . . . . . . . . . . . . 5
1.6 Registered Office; Agent for Service of Process. . . . . . . 5
1.7 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . 5
1.8 Term of the Partnership. . . . . . . . . . . . . . . . . . . 6
1.9 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 2 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Other Definitions. . . . . . . . . . . . . . . . . . . . . .18
ARTICLE 3 [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . .18
ARTICLE 4 [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . .19
ARTICLE 5 [Intentionally Omitted.] . . . . . . . . . . . . . . . . . . .19
ARTICLE 6 CAPITAL CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . .19
6.1 Percentage Interests . . . . . . . . . . . . . . . . . . . .19
6.2 Capital. . . . . . . . . . . . . . . . . . . . . . . . . . .19
6.3 Capital Contributions. . . . . . . . . . . . . . . . . . . .19
6.4 Additional Contributions and Withdrawals . . . . . . . . . .21
6.5 Negative Capital Accounts. . . . . . . . . . . . . . . . . .21
6.6 No Liability for Capital Contributions . . . . . . . . . . .21
6.7 Liability of Limited Partners. . . . . . . . . . . . . . . .22
6.8 No Interest; Consent to Distributions. . . . . . . . . . . .22
6.9 Maintenance of Capital Accounts. . . . . . . . . . . . . . .22
6.10 Additional Limited Partner . . . . . . . . . . . . . . . . .24
6.11 Conversion Right of Class II Partners. . . . . . . . . . . .24
6.12 Withdrawal of Class VI Limited Partner. . . . . . . . . . . . . . .25
ARTICLE 7 CASH DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . .25
7.1 Time of Distributions. . . . . . . . . . . . . . . . . . . .25
7.2 Allocation of Cash Distributions from Partnership
Operations . . . . . . . . . . . . . . . . . . . . . . . .26
7.3 Distribution of Newco Stock. . . . . . . . . . . . . . . . .26
ARTICLE 8 ALLOCATION OF INCOME, GAINS AND LOSSES . . . . . . . . . . . .27
8.1 [Intentionally Omitted.] . . . . . . . . . . . . . . . . . .27
8.2 Allocation of Income and Gains . . . . . . . . . . . . . . .27
8.3 Allocation of Losses . . . . . . . . . . . . . . . . . . . .28
8.3.1 Allocation of Net Losses. . . . . . . . . . . . . . .28
8.3.2 [Intentionally Omitted].. . . . . . . . . . . . . . .30
8.3.3 Allocation of Losses and Gross Income
to the Class I Partners . . . . . . . . . . . . . . 30
8.4 Special Allocations. . . . . . . . . . . . . . . . . . . . .30
8.4.1 Minimum Gain Chargeback . . . . . . . . . . . . . . .31
8.4.2 Partner Minimum Gain Chargeback . . . . . . . . . . .31
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8.4.3 Qualified Income Offset . . . . . . . . . . . . . . .32
8.4.4 Nonrecourse Deductions. . . . . . . . . . . . . . . .32
8.4.5 Partner Nonrecourse Deductions. . . . . . . . . . . .32
8.4.6 Negation Allocation . . . . . . . . . . . . . . . . .32
8.5 Cancellation of Indebtedness Income. . . . . . . . . . . . .33
8.6 Interest of the General Partners . . . . . . . . . . . . . .33
8.7 Adjustments to Allocations . . . . . . . . . . . . . . . . .33
8.8 Allocation of Interest Income. . . . . . . . . . . . . . . .34
8.9 Allocation of Gain or Loss on Distribution of,
or with Respect to Newco Stock . . . . . . . . . . . . . .34
8.10 Continuation of Treatment. . . . . . . . . . . . . . . . . .34
ARTICLE 9 MANAGEMENT OF THE PARTNERSHIP. . . . . . . . . . . . . . . . .35
9.1 Management of the Partnership's Business . . . . . . . . . .35
9.2 USC Partners' Committee. . . . . . . . . . . . . . . . . . .36
9.3 Extraordinary Decisions. . . . . . . . . . . . . . . . . . .39
9.4 Limitation on Agency . . . . . . . . . . . . . . . . . . . .41
9.5 Approval by Certain Limited Partners . . . . . . . . . . . .42
9.6 Liability of the General Partners and the
Members of USC Partners' Committee . . . . . . . . . . . .42
9.7 Indemnification. . . . . . . . . . . . . . . . . . . . . . .44
9.8 Removal of Manager . . . . . . . . . . . . . . . . . . . . .45
9.9 Contingent Authority of Existing General Partner . . . . . .45
9.10 Other Cable Television Systems . . . . . . . . . . . . . . .45
9.11 Exempt Limited Partners. . . . . . . . . . . . . . . . . . .46
ARTICLE 10 COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . .48
10.1 Compensation to Pompadur Representative . . . . . . . . . .48
10.2 Compensation Restricted . . . . . . . . . . . . . . . . . .48
ARTICLE 11 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . .49
ARTICLE 12 ACCOUNTING, ACCOUNTS, RETURNS AND TAX MATTERS . . . . . . . .49
12.1 Books . . . . . . . . . . . . . . . . . . . . . . . . . . .49
12.2 Reports . . . . . . . . . . . . . . . . . . . . . . . . . .49
12.3 Filing of Tax Returns and Tax Reports to
Current and Former Partners. . . . . . . . . . . . . . . .49
12.4.1 Elections. . . . . . . . . . . . . . . . . . . . .50
12.4.2 Change of Partners' Interests. . . . . . . . . . . 51
12.4.3 Tax Matters Partner. . . . . . . . . . . . . . . . 51
ARTICLE 13 TRANSFERS . . . . . . . . . . . . . . . . . . . . . . . . . .54
13.1 General Partners. . . . . . . . . . . . . . . . . . . . . .54
13.2 Transfer of Limited Partner's Interest. . . . . . . . . . .57
13.3 Transferee's Rights . . . . . . . . . . . . . . . . . . . .59
13.4 Allocations and Distributions Subsequent
to Transfer. . . . . . . . . . . . . . . . . . . . . . . .60
13.5 Satisfactory Written Transfer Required. . . . . . . . . . .60
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13.6 Substituted Limited Partner . . . . . . . . . . . . . . . .60
13.7 Substitution Required for Vote. . . . . . . . . . . . . . .61
13.8 Effective Date; Schedule A. . . . . . . . . . . . . . . . .62
13.9 Death, Bankruptcy, Dissolution or Incapacity of a
Limited Partner. . . . . . . . . . . . . . . . . . . . . .62
13.10 Option on the Class II Partnership Interests. . . . . . . .62
13.11 Rights Subsequent to Transfer of Interests . . . . . . . . 63
ARTICLE 14 DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . .62
14.1 Events of Dissolution . . . . . . . . . . . . . . . . . . .62
14.2 Final Accounting. . . . . . . . . . . . . . . . . . . . . .64
14.3 Liquidation and Distribution of Assets. . . . . . . . . . .64
14.4 Cancellation of Certificate . . . . . . . . . . . . . . . .65
ARTICLE 15 POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . .65
15.1 Appointment of New General Partner. . . . . . . . . . . . .65
15.2 Duration of Power . . . . . . . . . . . . . . . . . . . . .66
15.3 Further Assurances. . . . . . . . . . . . . . . . . . . . .67
ARTICLE 16 AMENDMENTS TO AGREEMENT . . . . . . . . . . . . . . . . . . .67
ARTICLE 17 MEETINGS OF THE PARTNERS. . . . . . . . . . . . . . . . . . .67
17.1 Meetings. . . . . . . . . . . . . . . . . . . . . . . . . .67
17.2 Proxy . . . . . . . . . . . . . . . . . . . . . . . . . . .68
17.3 Written Consents. . . . . . . . . . . . . . . . . . . . . .68
ARTICLE 18 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . .68
18.1 Method for Notices. . . . . . . . . . . . . . . . . . . . .68
18.2 Routine Communications. . . . . . . . . . . . . . . . . . .69
18.3 Computation of Time . . . . . . . . . . . . . . . . . . . .69
ARTICLE 19 INVESTMENT REPRESENTATIONS. . . . . . . . . . . . . . . . . .69
19.1 Investment Purpose. . . . . . . . . . . . . . . . . . . . .69
19.2 Investment Restriction. . . . . . . . . . . . . . . . . . .69
ARTICLE 20 GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . .69
20.1 Entire Agreement. . . . . . . . . . . . . . . . . . . . . .69
20.2 Amendment; Waiver . . . . . . . . . . . . . . . . . . . . .70
20.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . .70
20.4 Binding Effect. . . . . . . . . . . . . . . . . . . . . . .70
20.5 Counterparts. . . . . . . . . . . . . . . . . . . . . . . .70
20.6 Separability. . . . . . . . . . . . . . . . . . . . . . . .70
20.7 Headings. . . . . . . . . . . . . . . . . . . . . . . . . .70
20.8 Gender and Number . . . . . . . . . . . . . . . . . . . . .70
20.9 Waiver of Partition . . . . . . . . . . . . . . . . . . . .70
20.10 Partnership Tax Reporting . . . . . . . . . . . . . . . . .70
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Schedule A - Partners and Percentage Interests
Schedule B - Cable Brokers
Schedule C - Exempt Limited Partners
Annex 1 - Business Plan
Annex 2 - Not Used
Annex 3 - Supplemental Side Letter
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SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
U.S. CABLE TELEVISION GROUP, L.P.
THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is
entered into as of the 18th day of March, 1996 (the "Agreement"), by and among
U.S. Cable Partners, a Delaware general partnership, as a general partner (the
"Existing General Partner" or "Class II General Partner"), V Cable GP, Inc., a
Delaware corporation ("V Cable GP"), as a general partner (the "New General
Partner" or the "Class I General Partner"; and, together with the Existing
General Partner, the "General Partners"), and those Persons who have executed,
either personally or by an attorney-in-fact, this Agreement as limited partners
and who are identified as limited partners and whose addresses are set forth in
Schedule A annexed hereto, as the same may be amended from time to time pursuant
to Section 13.8 hereof (the "Limited Partners"). The General Partners and the
Limited Partners are referred to herein collectively as the "Partners."
WHEREAS, U.S. CABLE TELEVISION GROUP, L.P. (the "Partnership" or
"USC") was formed, in accordance with the Delaware Revised Uniform Limited
Partnership Act, 6 DEL. C. Section 17-101, ET. SEQ. (the "Act"), by the filing
by the Existing General Partner of a Certificate of Limited Partnership with the
office of the Secretary of State of the State of Delaware on October 20, 1987
(as amended or restated, the "Certificate"), to acquire and operate cable
television systems and entities that have interests in cable television systems,
and conduct all activities incidental or reasonably related to any of those
purposes; and
WHEREAS, V Cable, Inc., a Delaware corporation ("V Cable") and the
sole owner of all of the outstanding common stock of the New General Partner,
and the New General Partner have previously acquired a limited partner interest
and general partner interest, respectively, in the Partnership and (ii) the
Partnership has acquired shares of Class B Common Stock of VC Holding, Inc., a
Delaware corporation ("Newco") that as of the date of this Agreement owns and
operates the assets previously held by V Cable and owns all of the outstanding
capital stock of certain subsidiaries of V Cable; and
WHEREAS, simultaneously with the execution of this Agreement, the
Partnership is entering into a Partnership Interests Redemption Agreement
pursuant to which the interests of the Original Limited Partners, the Existing
General Partner and General Electric Capital Corporation ("GE Capital") will be
redeemed; and
WHEREAS, concurrently with the execution and delivery hereof:
(a) Cablevision Systems Corporation ("CSC") is making an equity
capital contribution to V Cable in the amount of $570,000,000;
(b) V Cable is applying such funds as follows:
(i) to prepay the outstanding principal amount of the Term
Loan under the V Cable Loan Agreement plus interest accrued thereon
in an aggregate amount of $27,797,797;
(ii) to make an equity capital contribution to V Cable GP
in the amount of $2,000,000, which is being contributed concurrently
by V Cable GP to the equity capital of the Partnership on the terms
set forth in this Agreement;
(iii) to make an equity capital contribution to the
Partnership in the amount of $181,605,958 on the terms set forth in
this Agreement; and
(iv) to make an equity capital contribution to Newco in the
amount of $358,596,245;
(c) the Partnership is applying the funds referred to in clause
(b)(iii) immediately above as follows:
(i) to prepay (A) the Accreted Value of the Zero Coupon
Loan (as defined in the USC Senior Loan Agreement) in the aggregate
amount of $98,835,321, less an agreed upon portion of the credit
referred to in Section 2.20 of the VC Holding Loan Agreement as in
effect immediately prior to the date hereof in the amount of
$2,156,571, and (B) to prepay the Allocable Term Loan Amount (as
defined in the USC Senior Loan Agreement) in the aggregate amount of
$812,039; and
(ii) to make an equity capital contribution to Newco in the
amount of $84,115,169; and
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(d) Newco is applying the funds referred to in clauses (b) (iv) and
(c) (ii) immediately above (i) to prepay in full the outstanding Floating Series
A Loan (as defined in the VC Holding Loan Agreement) plus interest accrued
thereon in the aggregate amount of $248,686,673.09, (ii) to prepay a portion of
the remaining outstanding principal amount of the Series A Term Loan (as defined
in the VC Holding Loan Agreement) plus interest accrued thereon in the aggregate
amount of $126,024,741, and (iii) to make an equity capital contribution to the
Partnership in the amount of $68,000,000 in return for the Class VII Limited
Partnership Interest (as defined herein); and
(e) The Partnership is applying the funds referred to in clauses
(b)(ii) and (d)(iii) to prepay an outstanding principal amount of the Series B
Term Loan (as defined in the USC Senior Loan Agreement) plus interest accrued
thereon in an aggregate amount of $70,000,000; and
(f) CSC is paying to GE Capital on the date hereof the sum of
$742,358.13 as partial payment of or reimbursement for GE Capital's legal fees
and expenses incurred in connection with the (i) consummation of the
transactions contemplated hereby and (ii) execution of the Preferred Stock
Purchase Agreement, dated as of February 2, 1996, by and among GE Capital and
CSC (the "Preferred Stock Purchase Agreement") (the transactions described in
clauses (a), (b), (c), (d), (e) and (f) of this recital are herein referred to
collectively as the "Prepayment Transactions" and the date of the consummation
of the Prepayment Transactions shall hereinafter be referred to as the
"Prepayment Transactions Date"); and
WHEREAS, on the Prepayment Transactions Date the Partnership will
distribute to V Cable the stock of Newco; and
WHEREAS, on the Prepayment Transactions Date CSC is entering into an
Amended and Restated Management Agreement, dated as of March 18, 1996, with the
Partnership, in substantially the form of Exhibit I to the Preferred Stock
Purchase Agreement, providing for the management by CSC of the Partnership and
certain of its subsidiaries (as the same may be amended, modified or
supplemented from time to time, the "Management Agreement"); and
WHEREAS, effective as of the Prepayment Transactions Date, certain
agreements among V Cable, each of those direct and indirect subsidiaries of V
Cable set forth on the signature pages thereto (the "VC Subsidiaries"), the New
General Partner, Newco, the Partnership and GE Capital,
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in its individual capacity and as Agent and Lender under the loan documents
referred to below, are being terminated or amended, including the MPA Agreement
(as such term is hereinafter defined) and the Exchange Agreement (as such term
is hereinafter defined); and
WHEREAS, effective as of the Prepayment Transactions Date,
GE Capital and USC are (A) modifying that certain Senior Loan Agreement, dated
as of December 31, 1992, between USC and GE Capital (as the same has been and
may be amended, modified or supplemented from time to time, the "USC Loan
Agreement") and (B) terminating that certain Junior Subordinated Loan Agreement,
dated as of December 31, 1992, between USC and GE Capital (as the same may be
amended, modified or supplemented from time to time, the "Junior Subordinated
Loan Agreement"); and
WHEREAS, in connection with all of the foregoing, the Partners
desire to, among other things, (i) provide for such capital contributions and
distributions and (ii) modify the interests of the general and limited partners
in the Partnership; and (iii) make such amendments, restatements and revisions
to the Agreement of Limited Partnership of the Partnership as in effect
immediately prior to the execution and delivery of this Agreement (the "Original
Amended Agreement") as set forth below.
NOW, THEREFORE, to reflect the foregoing, the parties hereto agree
that the Original Amended Agreement hereby is amended and restated, effective as
of the Effective Date (as defined herein) to read in its entirety as follows:
ARTICLE 1
THE LIMITED PARTNERSHIP
1.1 FORMATION. The Partnership was formed as a limited partnership
pursuant to the Act.
1.2 CERTIFICATE OF LIMITED PARTNERSHIP. The Partners, acting
personally or through an attorney-in-fact, shall execute such further documents
(including amendments and/or restatements to the Certificate) and take such
further action as shall be appropriate to comply with all requirements of law
for the formation and operation of a limited partnership in the State of
Delaware and all other counties and states where the Partnership may elect to
conduct its operations. A Limited Partner may obtain a copy
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of the Certificate or any amendment and/or restatement thereto upon written
request to the New General Partner.
1.3 NAME. The name of the Partnership shall be U.S. CABLE
TELEVISION GROUP, L.P. but the operations of the Partnership may be conducted
under any other name designated by the New General Partner and, in such event,
the New General Partner shall notify the other Partners of such name change
promptly thereafter.
1.4 PURPOSES. The Partnership shall have as its purpose investing,
directly or indirectly through other entities, in the business of owning,
operating, repairing, maintaining, promoting, leasing, selling and otherwise
exploiting cable television systems and conducting related businesses and
activities. Without limiting the foregoing, the Partnership shall have the
power to own shares of Class B Common Stock of Newco and its limited partner
interest in the Missouri Partnership. The Partnership may maintain one or more
offices and engage personnel for the conduct of the Partnership's activities;
and it may enter into, make and perform contracts, agreements and undertakings
of all kinds as may be necessary, advisable or incidental to the carrying out of
its purposes. In addition to the powers specified above, the Partnership shall
have the power to do all and everything necessary, appropriate or advisable for
the accomplishment of or in furtherance of any of the purposes set forth herein,
and to do every other thing or things incidental or appurtenant to or arising
from or connected with any of such purposes; PROVIDED, HOWEVER, that nothing set
forth herein shall be construed as authorizing the Partnership to possess any
purpose or power, or to do any act or thing, forbidden by law to a limited
partnership formed under the laws of the State of Delaware.
1.5 PRINCIPAL OFFICES. The location of the principal offices of
the Partnership shall be c/o Cablevision Systems Corporation, Xxx Xxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000-0000, or at such other location as may be selected
from time to time by the New General Partner. If the New General Partner
changes the location of the principal offices of the Partnership, the other
Partners shall be notified promptly thereafter by the New General Partner. The
Partnership may maintain such other offices at such other places as the New
General Partner deems advisable.
1.6 REGISTERED OFFICE; AGENT FOR SERVICE OF PROCESS. The address
of the Partnership's registered office in the State of Delaware is c/o United
Corporate Services, Inc., 00 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxx County, Delaware
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19901, and the name of the registered agent for service of process on the
Partnership is United Corporate Services, Inc.
1.7 FISCAL YEAR. The fiscal year of the Partnership shall be the
same as the taxable year of the Partnership for federal income tax purposes (the
"Partnership Year"). The taxable year of the Partnership for federal income tax
purposes shall be selected by the Tax Matters Partner (as such term is
hereinafter defined), subject to the approval of the Class III Limited Partner,
the Class IV Limited Partner and the Class V Limited Partner, in accordance with
the rules contained in the Code (as such term is hereinafter defined).
1.8 TERM OF THE PARTNERSHIP. The term of the Partnership commenced
on October 20, 1987 and shall continue until the earlier of (a) December 1,
2030, or (b) the date the Partnership is dissolved in accordance with Article 14
hereof.
1.9 EFFECTIVE DATE. (a) This Agreement shall be effective as
of the date of the occurrence of the following: (i) the consummation of the
Prepayment Transactions and (ii) the delivery to GE Capital of a certificate
from the Partnership to the effect that the USC System Cash Flow Ratio of the
Partnership and its Subsidiaries, after giving effect to the Prepayment
Transactions and this Amendment on a pro forma basis, does not exceed 5.94:1.0.
(b) GE Capital agrees that upon receipt of the certificate from
CSC referred to in clause (a) above, it shall deliver to CSC a receipt to the
effect that the Prepayment Transactions have been consummated.
ARTICLE 2
DEFINITIONS
2.1 DEFINITIONS. The following defined terms used in this
Agreement shall have the respective meanings specified below.
"Accreted Value" means a cumulative, compounded, annual 16% return
on $35,000,000, payable to the Class III Limited Partner, pursuant to
Section 7.2(f) hereof.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such
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Partner's Capital Account as of the end of the relevant Partnership Year, after
giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Partner is
deemed to be obligated to restore to the Partnership pursuant to the next-
to-last sentences of Treas. Reg. Section 1.704-2(g)(1) and Treas. Reg.
Section 1.704-2(i)(5), and
(ii) Debit to such Capital Account the items described in Treas. Reg.
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
"Affiliate" of a Person means (i) any Person directly or indirectly
controlling, controlled by, or under common control with, such Person, (ii) a
Person owning or controlling ten percent (10%) or more of the outstanding voting
securities of such Person, (iii) any officer, director, partner or employee of
such Person and (iv) any other entity for which any Person identified in clause
(iii) acts in any such capacity.
"Annualized Consolidated System Cash Flow" shall mean for any Fiscal
Quarter, the product of (i) System Cash Flow for such Fiscal Quarter multiplied
by (ii) 4.
"Bankruptcy" of a Partner shall mean (i) the filing by a Partner of
a voluntary petition seeking liquidation, reorganization, arrangement or
readjustment, in any form, of its debts under Title 11 of the United States Code
or any other federal or state insolvency law, or a Partner's filing an answer
consenting to or acquiescing in any such petition, (ii) the making by a Partner
of any assignment for the benefit of its creditors or (iii) the expiration of
sixty days after the filing of an involuntary petition under Title 11 of the
United States Code, an application for the appointment of a receiver for the
assets of a Partner, or an involuntary petition seeking liquidation,
reorganization, arrangement or readjustment of its debts under any other federal
or state insolvency law, provided that the same shall not have been vacated, set
aside or stayed within such sixty-day period.
"Bankruptcy Code" shall mean 11 U.S.C. Sections 101 ET SEQ.
"Business Plan" means the ten (10) year Business Plan of the
Partnership, commencing as of the date of the Original Amended Agreement, in the
form annexed hereto as Annex 1.
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"Cablevision" or "CSC" means Cablevision Systems Corporation, a
Delaware corporation.
"Capital Account" means the account maintained for each Partner on
the books of account of the Partnership in accordance with Section 6.9 hereof.
"Capital Contributions" means, with respect to any Partner, the
amount of cash and the fair market value of any other property contributed or
deemed contributed to the capital of the Partnership by or on behalf of such
Partner, net of any liabilities secured by such property that the Partnership is
considered to assume under, or take subject to under, Code Section 752.
"Change in Control" means (i) any Person or group of Persons, other
than I. Xxxxxx Xxxxxxxx or, at his death, his estate, or a trust or trusts for
the exclusive benefit of his spouse and/or children of which he (or another
person acceptable to the Class III Limited Partner, the Class IV Limited Partner
and the Class V Limited Partner) is the sole trustee, becomes after the date
hereof the beneficial owner (as defined in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, as in effect
on the date hereof) of a majority of the general partnership interests in the
Existing General Partner, (ii) any Person or group of Persons other than I.
Xxxxxx Xxxxxxxx or, at his death, his estate, or a trust or trusts for the
exclusive benefit of his spouse and/or children of which he (or another person
acceptable to the Class III Limited Partner, the Class IV Limited Partner and
the Class V Limited Partner) is the sole trustee, obtains effective control over
the management or policies of the Existing General Partner, or (iii) any Person
or group of Persons acquires all or substantially all of the assets of the
Existing General Partner; PROVIDED, HOWEVER, that (A) the purchase by IMP Cable
Management, Inc. of EHR Cable Management, Inc.'s general partner interest in the
Existing General Partner or the redemption of that interest, (B) the transfer of
any of the general partnership interests in the Existing General Partner or of
any or all of the assets of the Existing General Partner to GE Capital or any of
its Affiliates, (C) GE Capital's (or any of its Affiliate's) obtaining effective
control over the management or policies of the Existing General Partner, or (D)
a change in any Class II Partners due to the exercise of the option in Section
13.10 shall not constitute a Change in Control for purposes of this Agreement.
"Class B Common Stock" means the Class B Common Stock, par value
$.01 per share, of Newco.
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"Class I General Partner" means the holder of the Class I General
Partnership Interest that is admitted to the Partnership as a general partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as the Class I
General Partner of the Partnership.
"Class I General Partnership Interest" means a 1% Percentage
Interest in the Partnership, which interest shall be held by the New General
Partner.
"Class I Limited Partner" means the holder of the Class I Limited
Partnership Interest that is admitted to the Partnership as a limited partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as the Class I
Limited Partner of the Partnership.
"Class I Limited Partnership Interest" means a 19% Percentage
Interest in the Partnership, which interest shall initially be held by V Cable.
"Class I Partners" means the Class I General Partner and the Class I
Limited Partner.
"Class I Partnership Interests" means the Class I General
Partnership Interest and the Class I Limited Partnership Interest.
"Class II General Partner" means the holder of the Class II General
Partnership Interest that is admitted to the Partnership as a general partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as the Class II
General Partner of the Partnership.
"Class II General Partnership Interest" means a 1% Percentage
Interest in the Partnership, which interest shall initially be held by the
Existing General Partner. Such Class II General Partnership Interest shall have
a preference on distributions from the Partnership with respect to its Class II
Unrecovered Capital, in accordance with Section 7.2(b) hereof.
"Class II Limited Partner" means a holder of a Class II Limited
Partnership Interest that is admitted to the Partnership as a limited partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as a Class II
Limited Partner of the Partnership.
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"Class II Limited Partnership Interests" means partnership interests
having initially, in the aggregate, a 7% Percentage Interest in the Partnership,
which interests shall initially be held by the Persons specified on Schedule A
hereto, in the proportions set forth opposite each of their respective names.
Any Percentage Interest converted pursuant to Section 6.11 hereof will decrease
the Percentage Interest of the Class II Limited Partners and will increase the
Percentage Interest of the Class IV Limited Partner by a like amount.
"Class II Partners" means the Class II General Partner and the
Class II Limited Partners.
"Class II Partnership Interests" means the Class II General
Partnership Interest and the Class II Limited Partnership Interests.
"Class II Unrecovered Capital" means $4,000,000 minus (i) any
amounts previously distributed to the Class II Partners pursuant to
Section 7.2(b) hereof and (ii) the amount of any senior debt into which any
Class II Limited Partnership Interest is converted pursuant to Section 6.11
hereof.
"Class III Limited Partner" means the holder of the Class III
Limited Partnership Interest that is admitted to the Partnership as a limited
partner and is shown on the books and records of the Partnership and Schedule A
annexed hereto (as such Schedule A may be amended from time to time) as the
Class III Limited Partner of the Partnership.
"Class III Limited Partnership Interest" means an interest in the
Partnership, which interest shall not have a Percentage Interest. The Class III
Limited Partnership Interest shall initially be held by GE Capital. Such
Partnership Interest will have a preference on distributions from the
Partnership with respect to its Class III Unrecovered Capital, in accordance
with Sections 7.2(b) and 7.2(c) hereof, and with respect to its Class III
Unrecovered Accreted Value in accordance with Section 7.2(d) hereof.
"Class III Unrecovered Accreted Value" means the amount of the
Accreted Value minus any amounts previously distributed to the Class III Limited
Partner pursuant to Section 7.2(d) hereof or its predecessor under the Original
Amended Agreement.
"Class III Unrecovered Capital" means $35,000,000 minus any amounts
previously distributed to the Class III Limited Partner pursuant to
Sections 7.2(b) and 7.2(c)
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hereof or its predecessor under the Original Amended Agreement.
"Class IV Limited Partner" means the holder of the Class IV Limited
Partnership Interest that is admitted to the Partnership as a limited partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as the Class IV
Limited Partner of the Partnership.
"Class IV Limited Partnership Interest" means a 72% Percentage
Interest in the Partnership. The Percentage Interest of such Class IV Limited
Partnership Interest shall automatically increase by the amount of Percentage
Interest (on a fully diluted basis), if any, converted by the Class II Partners
into senior debt of the Partnership in accordance with Section 6.11 hereof.
"Class V Limited Partner" means the holder of the Class V Limited
Partnership Interest that is admitted to the Partnership as a limited partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as the Class V
Limited Partner of the Partnership.
"Class V Limited Partnership Interest" means an interest in the
Partnership, which interest shall have no Percentage Interest. The Class V
Limited Partnership Interest shall initially be held by GE Capital. Such Limited
Partnership Interest will have a preference on distributions from the
Partnership with respect to the Class V Unrecovered Capital in accordance with
Section 7.2(e) hereof or its predecessor under the Original Amended Agreement.
"Class V Unrecovered Capital" means (A) the sum of (i) the amount
the Class V Limited Partner is entitled to receive under the Junior Subordinated
Loan Agreement as of the date hereof and (ii) $165,761,293 together with an
amount equal to the amount of interest that would accrue thereon at the same
rate and compounded in the same manner as provided for the Junior Subordinated
Loan minus (B) any amounts previously distributed to the Class V Limited Partner
pursuant to Section 7.2(e) hereof.
"Class VI Limited Partner" means the holder of the Class VI Limited
Partnership Interest that is admitted to the Partnership as a limited partner
and is shown on the books and records of the Partnership and Schedule A annexed
hereto (as such Schedule A may be amended from time to time) as the Class VI
Limited Partner of the Partnership.
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"Class VI Limited Partnership Interest" means an interest in the
Partnership, which interest shall have no Percentage Interest. The Class VI
Limited Partnership Interest has been issued to V Cable as provided in
Section 6.3(f) hereof and is being redeemed and canceled simultaneously with the
Effective Date of this Agreement as provided in Section 6.12.
"Class VII Limited Partner" means the holder of the Class VII
Limited Partnership Interest that is admitted to the Partnership as a limited
partner and is shown on the books and records of the Partnership and Schedule A
annexed hereto (as such Schedule A may be amended from time to time) as the
Class VII Limited Partner of the Partnership.
"Class VII Limited Partnership Interest" means an interest in the
Partnership, which interest shall have no Percentage Interest. The Class VII
Limited Partnership Interest shall initially be held by VC Holding. Such Limited
Partnership Interest will have a preference on distributions from the
Partnership with respect to the Class VII Unrecovered Capital in accordance with
Section 7.2(a) hereof.
"Class VII Unrecovered Capital" means the excess, if any, of the sum
of (i) all capital contributions made by the Class VII Limited Partner pursuant
to Section 6.3(g) hereof and (ii) a preferred return on such capital
contributions computed at a rate per annum equal to 10.62% per annum, compounded
semiannually, over all amounts theretofore distributed to the Class VII Limited
Partner pursuant to Section 7.2(a) hereof.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time (or any corresponding provisions of succeeding law).
"Exchange Agreement" means the Exchange Agreement, dated as of
December 31, 1992, among the New General Partner, V Cable, the Partnership and
GE Capital, in the form annexed hereto as Annex 2 to the Original Amended
Agreement, as the same has been amended, modified or supplemented from time to
time.
"Excluded Assets" shall have the meaning set forth in Section
9.5(c)(vi) hereof.
"Exempt Limited Partners" shall mean those Limited Partners listed
on Schedule C hereto (as such Schedule may be modified from time to time
pursuant to Section 9.11 hereof). The interests of the Exempt Limited Partners
in
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the Partnership are intended to be nonattributable and exempt from reporting
requirements under FCC Regulations. The involvement of Exempt Limited Partners
in the media-related activities of the Partnership shall be restricted as
provided in Section 9.11.
"Existing U.S. Cable Partners" means the Existing General Partner,
The Rule Trust dated June 11, 1987, I. Xxxxxx Xxxxxxxx, Xxxxxx X. Xxxxx, Xx. and
Pompadur Trust No. 1.
"Extraordinary Decision" shall have the meaning set forth in Section
9.3 hereof.
"FCC" means the Federal Communications Commission.
"FCC Regulations" means all FCC regulations, rules, orders and
policies related to attribution of ownership of cable television systems,
including but not limited to the regulations published at 47 CFR 73.3555 and
76.501.
"Fiscal Quarter" means a calendar quarter ending on March 31,
June 30, September 30 or December 31 of any year.
"Indebtedness" means, for the Partnership and its consolidated
Subsidiaries, (i) all indebtedness of the Partnership and its consolidated
Subsidiaries for borrowed money or for the deferred purchase price of property
or services (including, without limitation, reimbursement and all other
obligations with respect to letters of credit and bankers' acceptances, whether
or not matured, but not including obligations to trade creditors incurred in the
ordinary course of business), (ii) all obligations of the Partnership and its
consolidated Subsidiaries evidenced by notes, bonds, debentures or similar
instruments, (iii) all indebtedness of the Partnership and its consolidated
Subsidiaries created or arising under any conditional sale or other title
retention agreement with respect to property acquired by the Partnership and its
consolidated Subsidiaries (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (iv) all Capital Lease Obligations of the Partnership
and its consolidated Subsidiaries, (v) all Guaranteed Indebtedness of the
Partnership and its consolidated Subsidiaries, (vii) all indebtedness of others
of the types referred to in clause (i), (ii), (iii), (iv) or (v) above secured
by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise,
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to be secured by) any Lien upon or in property (including, without limitation,
accounts and contract rights) owned by the Partnership or any of its
consolidated Subsidiaries, even though the Partnership or such Subsidiaries has
not assumed or become liable for the payment of such indebtedness, and (vii) all
Unfunded Pension Liabilities and all Withdrawal Liabilities (each as defined in
the USC Senior Loan Agreement) of the Partnership and its consolidated
Subsidiaries;
"Interest" or "Partnership Interest" means interest(s) in the
Partnership owned by a Partner.
"Investment Agreement" means the Investment Agreement, dated as of
June 30, 1992, by and among V Cable, the New General Partner, the Partnership
and the Existing General Partner (as the same may be amended, modified or
supplemented from time to time).
"Junior Subordinated Loan" shall mean the "Loans" as defined in the
Junior Subordinated Loan Agreement.
"Junior Subordinated Loan Agreement" shall have the meaning set
forth in the recitals hereto.
"Manager" means CSC in its capacity as the Manager under the USC
Management Agreement.
"Missouri Partnership" means Missouri Cable Partners, L.P., which
has been formed to hold the assets of the five cable television systems serving
Albany, Bethany, Cameron, Excelsior Springs and Richmond, Missouri pursuant to
that certain Limited Partnership Agreement dated June 30, 1992 between the
Partnership and V-C Mo. G.P., Inc.
"MPA Agreement" means the Management Performance Adjustment and
Interborrower Agreement, dated as of December 31, 1992, among V Cable, the VC
Subsidiaries, the New General Partner, Newco, the Partnership and GE Capital in
the form annexed as Annex 3 to the Original Amended Agreement (as the same has
been amended, modified or supplemented from time to time).
"Net Income" or "Net Loss" means for each fiscal year of the
Partnership, an amount equal to the Partnership's net income or loss for federal
income tax purposes, determined in accordance with the accounting methods it has
adopted for such purposes and computed by (i) including any items of non-taxable
income or nondeductible expense of the Partnership, and (ii) excluding any items
of
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income or loss specially allocated pursuant to the provisions of Sections 8.3.3,
8.4, 8.5, 8.8 and 8.9 hereof.
"Nonrecourse Deductions" has the meaning set forth in Treas. Reg.
Section 1.704-2(b)(1). The amount of Nonrecourse Deductions for a fiscal year
shall equal the net increase, if any, in the amount of Partnership Minimum Gain
during such fiscal year reduced by any distributions during such fiscal year of
proceeds of a Nonrecourse Liability that are allocable to an increase in
Partnership Minimum Gain, determined according to the provisions of Treas. Reg.
Section 1.704-2(c) and Treas. Reg. Section 1.704-2(h).
"Nonrecourse Liability" has the meaning set forth in Treas. Reg.
Section 1.704-2(b)(3), but shall not include, for any purpose under this
Agreement, any Partnership liability that would otherwise be considered a
Nonrecourse Liability under such Section of the Treasury Regulations to the
extent there is outstanding with respect to such liability guaranties and/or
letter of credit commitments provided by Partners (or VC Guarantors, as defined
in the MPA Agreement) as contemplated by this Agreement.
"Obligations" has the meaning set forth in the USC Loan Agreement.
"Original Limited Partners" shall have the meaning set forth in
Section 6.3(b)(ii) hereof.
"Partner Nonrecourse Debt" has the meaning set forth in Treas. Reg.
Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" means an amount, with
respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain
that would result if such Partner Nonrecourse Debt were treated as a Nonrecourse
Liability, determined in accordance with Treas. Reg. Section 1.704-2(i).
"Partner Nonrecourse Deductions" has the meaning set forth in Treas.
Reg. Section 1.704-2(i)(2). The amount of Partner Nonrecourse Deductions with
respect to a Partner Nonrecourse Debt for a fiscal year equals the net increase,
if any, in Partner Nonrecourse Debt Minimum Gain during such fiscal year
attributable to such Partner Nonrecourse Debt, reduced by any distributions
during that fiscal year to the Partner that bears the economic risk of loss for
such Partner Nonrecourse Debt to the extent that such distributions are from the
proceeds of such Partner Nonrecourse Debt and are allocable to an increase in
Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse
Debt,
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determined according to the provisions of Treas. Reg. Section 1.704-2(h) and
Treas. Reg. Section 1.704-2(i).
"Partnership Interests Redemption Agreement" means the Partnership
Interests Redemption Agreement, dated as of the date of, by and among the
Partnership, GE Capital, each of the Class II Partners, and V Cable.
"Partnership Minimum Gain" shall have the meaning set forth in
Treas. Reg. Section 1.704-2(d).
"Partnership Year" shall have the meaning set forth in Section 1.7
hereof.
"Percentage Interest" means, with respect to any Partner, the amount
specified in Schedule A hereto and for each class of Partners shall be equal to
the amount specified in the definition of such class; PROVIDED that the
Percentage Interests of the Partners shall be subject to adjustment as provided
in this Agreement.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Pompadur Representative" shall have the meaning set forth in
Section 6.11 hereof.
"Preferred USC Interest Pledge Agreement" means the Preferred USC
Interest Pledge Agreement, dated as of the Original Amended Agreement hereof,
among V Cable, V Cable GP and GE Capital, as Agent (as the same may be amended,
modified or supplemented from time to time).
"Subsidiary" means, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary power (other than stock having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the time
owned by such Person.
"Supplemental Side Letter" means that certain side letter executed
by Cablevision, V Cable and GE Capital, substantially in the form of Annex 3
hereto.
"System Cash Flow" mean, for the Partnership and its consolidated
Subsidiaries during any period, the consolidated operating income (before
extraordinary items, interest, taxes, depreciation, amortization, non-cash
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charges and other non-cash items and, with respect to the Partnership, amounts
constituting Allocation items (as defined in the Management Agreement) that are
payable (whether or not paid) pursuant to the terms of the Management Agreement,
and expenses and costs directly related to the consummation of the Prepayment
Transactions) of the Partnership and its consolidated Subsidiaries (including,
without limitation, Missouri Cable Partners, L.P.) determined in accordance with
GAAP (as defined in the USC Senior Loan Agreement) and (to the extent consistent
with GAAP) in a manner consistent with the past practices of USC; PROVIDED,
HOWEVER, that such amounts shall be determined on the basis of the
capitalization polices of CSC and its affiliates as specified in Schedule 1 to
the USC Senior Loan Agreement; and PROVIDED FURTHER, HOWEVER, that to the extent
that CSC or any of its affiliates provides to any of the Partnership or any of
its Subsidiaries goods or services for consideration which is below the fairly
allocable cost thereof, for purposes of the calculations herein, such goods and
services shall be deemed to be provided at the fairly allocable cost.
"Tax Matters Partner" shall have the meaning set forth in Section
12.4.3 hereof.
"Tier I USC Priority Distribution" means the total amount of cash
that would be distributable pursuant to Section 7.2(a) hereof if there were
sufficient cash available to make such distribution.
"Tier II USC Priority Distribution" means the total amount of cash
that would be distributable pursuant to Section 7.2(b) hereof if there were
sufficient cash available to make such distribution.
"Tier III USC Priority Distribution" means the total amount of cash
that would be distributable pursuant to Section 7.2(c) hereof if there were
sufficient cash available to make such distribution.
"Tier IV USC Priority Distribution" means the total amount of cash
that would be distributable pursuant to Section 7.2(d) hereof if there were
sufficient cash available to make such distribution.
"Tier V USC Priority Distribution" means the total amount of cash
that would be distributable pursuant to Section 7.2(e) hereof if there were
sufficient cash available to make such distribution.
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"USC Loan Agreement" shall have the meaning set forth in the
recitals hereto.
"USC Loan Documents" means the USC Loan Agreement and all other
agreements, instruments, documents and certificates, including, without
limitation, pledges, powers of attorney, consents, assignments, contracts,
notices and all other written matter executed by or on behalf of USC in
connection with the USC Loan Agreement or the transactions contemplated thereby
as the same have been or may be amended (including, without limitation, the
"Loan Documents" as defined therein).
"USC Partners' Committee" shall have the meaning set forth in
Section 9.2 hereof.
"USC Priority Distributions" means all of the Tier I USC Priority
Distribution, Tier II USC Priority Distribution, Tier III USC Priority
Distribution, Tier IV USC Priority Distribution and Tier V USC Priority
Distribution.
"USC System Cash Flow Ratio" means, on any date of determination,
for the Partnership and its consolidated Subsidiaries, the ratio of
(i) Indebtedness of the Partnership and its consolidated Subsidiaries as of such
date to (ii) Annualized Consolidated System Cash Flow for the Fiscal Quarter
most recently ended prior to such date.
"V Cable Loan Agreement" means the loan agreement, dated December
31, 1992, among GE Capital, as agent, the lenders named therein, and V Cable, as
amended and from time to time in effect.
"VC Holding Loan Agreement" means the loan agreement, dated as of
the date hereof, among GE Capital, as agent, the lenders named therein, and
Newco, as amended and from time to time in effect.
2.2 OTHER DEFINITIONS. Certain additional defined terms used in
this Agreement shall have the meanings specified throughout this Agreement.
ARTICLE 3
[Intentionally Omitted.]
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ARTICLE 4
[Intentionally Omitted.]
ARTICLE 5
[Intentionally Omitted.]
ARTICLE 6
CAPITAL CONTRIBUTIONS
6.1 PERCENTAGE INTERESTS. This Agreement provides for the
determination of certain matters on the basis of the Partners' "Percentage
Interests." From and after the Effective Date, the Partners shall have the
Percentage Interests set forth on Schedule A to this Agreement and Newco will be
admitted as a Class VII Limited Partner without the need for any further action
on the part of the Partners.
6.2 CAPITAL. The capital of the Partnership shall consist of the
amount of the Capital Contributions made to the Partnership pursuant to this
Article 6.
6.3 CAPITAL CONTRIBUTIONS. The Capital Contributions of the
Partners shall be as follows:
(a) CLASS I PARTNERSHIP INTERESTS.
(i) The New General Partner has contributed $1,000,000 to the
capital of the Partnership, and the Partnership has issued to the New General
Partner, in exchange therefor, the Class I General Partnership Interest.
(ii) V Cable has contributed $18,970,000 to the capital of the
Partnership, and the Partnership has issued to V Cable, in exchange therefor,
the Class I Limited Partnership Interest.
(iii) On the Prepayment Transactions Date, V Cable is
contributing $181,605,958 and the New General Partner is contributing $2,000,000
to the Partnership, which contributions shall be treated as additional Capital
Contributions in respect of the Class I Limited Partnership Interest and Class I
General Partnership Interest, respectively. Upon receipt of such contribution,
the Partnership shall use such capital contribution to
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consummate the Prepayment Transactions to which it is a part.
(iv) Any payments made by V Cable to the Partnership pursuant
to Section 9.5 of the USC Loan Agreement shall be treated as additional Capital
Contributions in respect of the Class I Limited Partnership Interest.
(b) CLASS II PARTNERSHIP INTERESTS.
(i) The Existing General Partner has previously contributed
$160,000 to the capital of the Partnership in exchange for a general partner
interest which interest was reclassified as the Class II General Partnership
Interest.
(ii) Those Persons specified in Schedule A hereto as Class II
Limited Partners have previously contributed, or are the permitted transferees
of Persons which have previously contributed (collectively, the "Original
Limited Partners"), an aggregate of $3,840,000 to the capital of the Partnership
in exchange for limited partner interests in the respective amounts set forth
opposite each of their names on such schedule, which interests were reclassified
as Class II Limited Partnership Interests.
(c) CLASS III LIMITED PARTNERSHIP INTEREST. GE Capital has
contributed $35,000,000 to the capital of the Partnership by means of the
cancellation of indebtedness owed to GE Capital. In exchange therefor, the
Partnership has issued to GE Capital the Class III Limited Partnership Interest.
(d) CLASS IV LIMITED PARTNERSHIP INTEREST. GE Capital has
contributed $1,000,000 to the capital of the Partnership by means of the
cancellation of indebtedness owed to GE Capital. In exchange therefor, the
Partnership has issued to GE Capital the Class IV Limited Partnership Interest.
(e) CLASS V LIMITED PARTNER. On the Effective Date, GE Capital is
contributing to capital all amounts due under the Junior Subordinated Loan
Agreement. GE Capital, as lender under the Junior Subordinated Loan, and the
Partners have agreed that for income tax purposes, the Junior Subordinated Loan
has been and will be treated as an equity interest in the Partnership. In
addition, GE Capital has contributed $162,799,947 to the capital of the
Partnership by means of the cancellation of debt owed to GE
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Capital. The Partnership has issued to GE Capital, in exchange for all such
contributions, the Class V Limited Partnership Interest.
(f) CLASS VI LIMITED PARTNER. The Partnership has issued the
Class VI Limited Partnership Interest to V Cable in exchange for V Cable's
commitment to make Capital Contributions to the Partnership pursuant to
Sections 3(c), 4(a)(ii)(B) and 4(c) of the MPA Agreement. No such capital
contributions were made and such interest is being redeemed and canceled
simultaneously with the Effective Date.
(g) CLASS VII LIMITED PARTNER. On the Prepayment Transactions
Date, VC Holding is contributing to the capital of the Partnership $68,000,000
and the Partnership is issuing to VC Holding, in exchange therefor, the Class
VII Limited Partnership Interest. Notwithstanding anything herein to the
contrary, in the event that GE Capital has pursuant to the USC Loan Agreement
provided notice to CSC or the Partnership that the certificate delivered to GE
Capital pursuant to Section 1.9(a) hereof was not accurate when made, then VC
Holding shall be entitled to make additional capital contributions to the
Partnership that will be reflected in its Class VII Limited Partnership
Interest.
6.4 ADDITIONAL CONTRIBUTIONS AND WITHDRAWALS. No Partner shall be
entitled or required to make any Capital Contribution to the Partnership other
than the contributions set forth in this Article 6 and Section 9.5 of the USC
Loan Agreement. All Capital Contributions shall be held or expended by the New
General Partner as specified in this Article 6 or in furtherance of the purposes
of the Partnership. Except as set forth in Section 6.11 hereof, no Partner
shall have the right to withdraw from the Partnership or to demand a return of
all or any part of its Capital Contribution during the term of the Partnership,
and any return of such Capital Contribution shall be made solely from the assets
of the Partnership and only in accordance with the terms of this Agreement.
6.5 NEGATIVE CAPITAL ACCOUNTS. At no time during the term of the
Partnership or upon dissolution and liquidation thereof shall a Partner with a
negative balance in its Capital Account have any obligation to the Partnership
or the other Partners to restore such negative balance, except as may be
required by law or in respect of any negative balance resulting from a
withdrawal of capital or dissolution in contravention of this Agreement.
6.6 NO LIABILITY FOR CAPITAL CONTRIBUTIONS. No Partner shall be
personally liable for the return of any
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portion of the Capital Contributions of any of the other Partners; the return of
those Capital Contributions shall be made solely from the Partnership's assets.
6.7 LIABILITY OF LIMITED PARTNERS. Each Limited Partner shall be
liable for the repayment and discharge of debts and obligations of the
Partnership only to the extent of the amounts required to be contributed by that
Limited Partner as provided in this Article 6 and to the extent provided by the
Act. The Limited Partners shall not otherwise have any liability with respect
to the debts and obligations of the Partnership and shall not otherwise be
obligated to make any Capital Contribution to the Partnership beyond that
required in this Article 6.
6. NO INTEREST; CONSENT TO DISTRIBUTIONS. No Partner shall
receive any interest on his Capital Contributions or Capital Account and no
General Partner shall be entitled to any payments or other compensation for
assuming personal liability for any debt or obligation of the Partnership. To
the extent any monies that any Partner is entitled to receive pursuant to this
Agreement would constitute a return of capital, each Partner consents to the
withdrawal of that capital.
6.9 MAINTENANCE OF CAPITAL ACCOUNTS. The Partnership shall
maintain a Capital Account for each Partner for purposes of implementing and
recording the allocations of Partnership income, loss and distributions
attributable to each Partner's interest in the Partnership. Each Partner,
regardless of whether it owns more than one class of interest in the
Partnership, shall only have one Capital Account; PROVIDED, HOWEVER, that, for
purposes of implementing the allocation provisions of Article 8 that refer to
Partners' Capital Account balances, the portion of each Partner's Capital
Account that is attributable to Capital Contributions, allocations and
distributions relating to each class of interest in the Partnership held by such
Partner shall be separately computed and treated as a separate account and
references in such provisions of Article 8 to capital account balances shall be
deemed to refer to such separate portions of each account with respect to which
an allocation is to be made. The balance of each Partner's Capital Account
shall be determined on the basis of an account maintained for that Partner on
the books of account of the Partnership, in accordance with the following
provisions:
(a) The Capital Account of any Partner who was a Partner prior to
the date hereof shall be credited or
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debited with the positive or negative balance of such Partner's Capital Account
to date.
(b) To each Partner's Capital Account there shall be credited such
Partner's Capital Contributions.
(c) To each Partner's Capital Account there shall also be credited
such Partner's distributive share of Net Income allocated to such Partner
pursuant to Sections 8.2 and 8.3.3 and any other items of Partnership income
specially allocated to the Partner pursuant to Sections 8.4, 8.5, 8.6, 8.8 and
8.9 hereof.
(d) To each Partner's Capital Account there shall be debited the
amount of cash and the fair market value of any Partnership property distributed
to such Partner pursuant to Sections 7.2, 7.3, 8.6 and 14.3 hereof (net of any
liabilities secured by such property that such Partner is considered to assume,
or take subject to, under Code Section 752), such Partner's distributive share
of Net Losses allocated to such Partner pursuant to Sections 8.3.1 and 8.3.2,
and any other items of Partnership loss specially allocated to the Partner
pursuant to Sections 8.4 and 8.6 hereof.
(e) In the event any Partnership Interest is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it relates to the transferred
Partnership Interest.
(f) The foregoing provisions of this Section 6.9 and the other
provisions of this Agreement relating to the maintenance of Capital Accounts are
intended to comply with Treas. Reg. Section 1.704-1(b), and shall be interpreted
and applied in a manner consistent with such Treasury Regulations. In the event
that the New General Partner, with the consent of the Class IV Limited Partner,
shall determine that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto, are computed in order to comply with
such Treasury Regulations, the New General Partner may make such modification,
provided that it is not likely to have a material effect on the amounts
distributable to any Partner pursuant to Section 14 hereof upon the dissolution
of the Partnership. The New General Partner, with the consent of the Class IV
Limited Partner, also shall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Partners
and the amount of Partnership capital reflected on the Partnership's balance
sheet, as computed for book purposes, in accordance with Treas. Reg.
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Section 1.704-1(b)(2)(iv)(q); (ii) make any adjustments that are necessary if at
any time Partnership property is reflected on the books of the Partnership at
values which are different than their tax basis; and (iii) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Treas. Reg. Section 1.704-1(b).
6.10 ADDITIONAL LIMITED PARTNER. Except as contemplated by Section
6.1, Section 6.3 and Article 13, no Person shall become an additional Limited
Partner.
6.11 CONVERSION RIGHT OF CLASS II PARTNERS. Upon the earliest to
occur of:
(a) the sale (including, without limitation, a sale pursuant to a
foreclosure) of all or substantially all of the assets of the Partnership and
its Subsidiaries (which shall be deemed to include any sale that satisfies the
conditions set forth in Section 9.5(c) hereof;
(b) the resignation of I. Xxxxxx Xxxxxxxx ("Pompadur") and any
other Person designated by the Class II General Partner to serve with him as
representatives of the Class II General Partner on the USC Partners' Committee
(for purposes of this Section 6.11 and Section 10.1 and Article 9 hereof,
Pompadur and any Person designated by the Class II General Partner to serve with
him as the representatives of the Class II General Partner on the USC Partners'
Committee are hereinafter referred to collectively as the "Pompadur
Representative"), from the USC Partners' Committee at the request of the Class I
General Partner (with the approval of the Class IV Limited Partner) for any
reason other than cause; and
(c) the tenth anniversary of the date of the Original Amended
Agreement;
then, so long as the Pompadur Representative (or a substitute designated by the
Class II General Partner (or upon Pompadur's death, a substitute designated by
his estate)) is then serving on the USC Partners' Committee, the Class II
Partners (acting unanimously) shall be entitled to elect within 60 days after
receipt of notice of the occurrence of the earliest to occur of the events set
forth in clauses (A), (B) and (C) above to convert Class II Limited Partnership
Interests representing 100% of the aggregate Percentage Interest of the Class II
Partnership Interests into an immediately payable debt obligation of the
Partnership in the amount of $4,000,000 that is senior to all other debt for
borrowed money of the Partnership.
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Notwithstanding the foregoing, if the Pompadur Representative is no longer
serving on the USC Partners' Committee immediately prior to the event which
triggers the conversion right described in this Section 6.11, then the Class II
Partners (acting unanimously) shall only be entitled to convert a portion of the
Class II Limited Partnership Interests representing a Percentage Interest equal
to the product of (x) 100% of the aggregate Percentage Interest of the Class II
Partnership Interests, multiplied by (y) a fraction (not greater than one) (the
"Fraction"), the numerator of which is the number of full years the Pompadur
Representative has served on the USC Partners' Committee, and the denominator of
which is ten. If the aggregate Percentage Interest which can be converted by
the Class II Partners is reduced in accordance with the preceding sentence, then
the amount of the debt obligation into which such reduced Percentage Interest
can be converted shall be reduced to an amount equal to $4,000,000 multiplied by
the Fraction. Any conversion made pursuant to this Section 6.11 shall be
treated as if there had been a distribution of Partnership cash in an amount
equal to the face amount of the debt into which the interests have been
converted. Upon any conversion pursuant to this Section 6.11, each Class II
Limited Partner shall continue to be a Class II Limited Partner of the
Partnership with respect to its remaining unconverted Class II Limited
Partnership Interest. For the purposes of this Section 6.11, "cause" shall be
defined as an act of fraud or any act of willful misconduct materially injurious
to the Partnership or against the Partnership (or any of its Subsidiaries) and,
in any case, if such act is not cured promptly after notice thereof to the
Pompadur Representative by the Partnership. The determination as to whether
"cause" (as defined above) shall exist shall be made by a court or other
appropriate tribunal.
6.12 WITHDRAWAL OF CLASS VI LIMITED PARTNER. In exchange for the
cancellation of its obligations to make capital contributions to the
Partnership, V Cable hereby withdraws as the Class VI Limited Partner, and
without the need for any action by any Partner, such interest in the Partnership
is hereby redeemed and canceled.
ARTICLE 7
CASH DISTRIBUTIONS
7.1 TIME OF DISTRIBUTIONS. Distributions of cash or other property
(other than pursuant to Section 14) shall be made by the New General Partner as
set forth in
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Sections 7.2 and Section 7.3 below; PROVIDED, HOWEVER, that no distributions
pursuant to Section 7.2 shall be made unless expressly permitted by the USC Loan
Agreement.
7.2 ALLOCATION OF CASH DISTRIBUTIONS FROM PARTNERSHIP OPERATIONS.
Subject to Section 14.3 hereof, all net cash from Partnership operations and net
cash from sales or refinancings of Partnership assets or debt, respectively,
shall be distributed to the Partners as follows and in the following order of
priority:
(a) first, with respect to the Class VII Limited Partnership
Interest, in an amount equal to the Class VII Unrecovered Capital; PROVIDED,
HOWEVER, that no amount shall be paid or distributed pursuant to this Section
7.2(a) until one year and one day following repayment in full of the obligations
of USC under the USC Senior Loan Agreement;
(b) next, with respect to the Class II Partnership Interests, in an
amount equal to the Class II Unrecovered Capital, and with respect to the Class
III Limited Partnership Interest, in an amount equal to the Class III
Unrecovered Capital, in proportion to the relative amounts of Class II
Unrecovered Capital and Class III Unrecovered Capital;
(c) next, with respect to the Class III Limited Partnership
Interest, an amount equal to the Class III Unrecovered Capital;
(d) next, with respect to the Class III Limited Partnership
Interest, an amount equal to the Class III Unrecovered Accreted Value;
(e) next, with respect to the Class V Limited Partnership Interest,
an amount equal to the Class V Unrecovered Capital; and
(f) the balance, if any, in accordance with the Partner's
Percentage Interests.
Distributions (other than the distribution provided for in Section 7.3) shall be
made (i) only to the extent the Manager, subject to the supervision of the New
General Partner, determines that the Partnership has cash available for
distribution (after taking into account the needs of the Partnership's business,
including reasonable reserves), (ii) subject to Section 7.2(a), within 90 days
after the end of the Partnership Year with respect to such year and (iii) after
the computation of the Net Income and Net Loss have been made with respect to
such year.
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7.3 DISTRIBUTION OF NEWCO STOCK. On the Prepayment Transactions
Date, and after V Cable, the New General Partner and VC Holding have made the
capital contributions required under this Agreement, the Partnership shall
distribute to V Cable all of the Class B Common Stock of Newco owned by the
Partnership. The capital account of V Cable shall be charged with an amount
equal to the tax basis of the Class B Common Stock of Newco distributed pursuant
to this Section 7.3.
ARTICLE 8
ALLOCATION OF INCOME, GAINS AND LOSSES
8.1 [Intentionally Omitted.]
8.2 ALLOCATION OF INCOME AND GAINS. After giving effect to the
special allocations set forth in Section 8.4 hereof, Net Income shall be
allocated for each Partnership Year as follows and in the following order of
priority:
(a) first, any Net Income shall be allocated with respect to
classes of interest to the extent that, in the aggregate, the Capital Accounts
of the Partners holding such classes of interests have a negative balance
(computed before taking into account any distributions to be made pursuant to
Sections 7.2 and 7.3 with respect to such year) at the close of such Partnership
Year, such income to be allocated in proportion to such negative balances, until
each such negative balance is eliminated;
(b) next, with respect to the Class VII Partnership Interest, to
the extent necessary to create a positive Capital Account balance with respect
to such interest equal to the Tier I USC Priority Distribution as of the end of
such Partnership Year;
(c) next, with respect to the Class II Partnership Interest and the
Class III Limited Partnership Interest, to the extent necessary to create a
positive Capital Account balance with respect to each such interest equal to
such interest's share of the Tier II USC Priority Distribution as of the end of
such Partnership Year, such amounts to be allocated in proportion to such
relative shares;
(d) then, with respect to the Class III Limited Partnership
Interest, to the extent necessary to create a positive Capital Account balance
with respect to such interest in an amount equal to the sum of (x) its share of
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the Tier II USC Priority Distribution, (y) the Tier III USC Priority
Distribution and (z) the Tier IV USC Priority Distribution, as of the end of
such Partnership Year;
(e) then, with respect to the Class V Limited Partnership Interest,
to the extent necessary to create a positive Capital Account balance with
respect to such interest in an amount equal to the Tier V USC Priority
Distribution, as of the end of such Partnership Year;
(f) next, if any one or more classes of interest has a Capital
Account positive balance attributable to such interest that is in excess of such
interest's share, if any, of the USC Priority Distributions, with respect to the
classes of interest, to the extent necessary to make the relative excesses for
all interests to be in the ratio of the Partners' respective Percentage
Interests as of the end of such Partnership Year; and
(g) the balance, if any, in accordance with the Partners'
respective Percentage Interests.
8.3 ALLOCATION OF LOSSES.
8.3.1 ALLOCATION OF NET LOSSES. (a) Net Losses (other than those
realized from the sale of all or substantially all of the Partnership's assets),
shall be allocated for each Partnership Year (i) 96% with respect to the Class I
Partnership Interests, in the following manner and order of priority: (x) an
amount equal to 1% of such Net Losses shall be allocated to the Class I General
Partnership Interest, and (y) the balance, if any, with respect to the Class I
Limited Partnership Interest; and (ii) 4% with respect to the Class V
Partnership Interest.
(b) Net Losses realized from the sale or disposition of all or
substantially all of the Partnership's assets shall be allocated in the
following manner and order of priority:
(i) first, with respect to each class of interest, the portion of
the Capital Account positive balance attributable thereto that is in
excess of the sum of each such interest's share, if any, of the USC
Priority Distributions, in proportion to such relative excesses, to
the extent necessary to make such relative excesses in the ratio of
the Partners' respective Percentage Interests;
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(ii) next, with respect to each class of interest, the portion
of the Capital Account balance attributable thereto which is
positive, in proportion to each such interest's Percentage Interest,
until each such positive balance is equal to the sum of each such
interest's share, if any, of the USC Priority Distributions;
(iii) next, with respect to each class of interest, the portion
of the Capital Account balance attributable thereto which is
positive, to the extent necessary to make each such positive balance
equal to the sum of each such interest's share, if any, of the Tier
I USC Priority Distribution, Tier II USC Priority Distribution, Tier
III USC Priority Distribution, Tier IV USC Priority Distribution and
Tier V USC Priority Distribution, in proportion to such shares;
(iv) next, with respect to each class of interest, the portion
of the Capital Account balance attributable thereto which is
positive, to the extent necessary to make each such positive balance
equal to the sum of each such interest's share, if any, of the Tier
I USC Priority Distribution, Tier II USC Priority Distribution, Tier
III USC Priority Distribution and Tier IV USC Priority Distribution,
in proportion to such shares;
(v) next, with respect to each class of interest, the portion of
the Capital Account balance attributable thereto which is positive,
to the extent necessary to make each such positive balance equal to
the sum of each such interest's share, if any, of the Tier I USC
Priority Distribution, Tier II USC Priority Distribution and Tier
III USC Priority Distribution, as of the end of such Partnership
Year, in proportion to such shares;
(vi) next, with respect to each class of interest, the portion
of the Capital Account balance attributable thereto which is
positive, to the extent necessary to make each such positive balance
equal to the amount of each such interest's share, if any, of the
Tier I USC Priority Distribution and Tier II USC Priority
Distribution, as of the end of such Partnership Year, in proportion
to such shares;
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(vii) next, with respect to each class of interest, the portion
of the Capital Account balance attributable thereto which is
positive, to the extent necessary to make each such positive balance
equal to the amount of each such interest's share, if any, of the
Tier I USC Priority Distribution, as of the end of such Partnership
Year, in proportion to such shares;
(viii) next, with respect to each class of interest, the portion
of the Capital Account balance attributable thereto which is
positive, in proportion to such positive balances, until each such
balance has been reduced to zero; and
(ix) the balance, if any, (x) 96% with respect to the Class I
Partnership Interests, in proportion to their relative Percentage
Interests, and (y) 4% with respect to the Class V Limited
Partnership Interest.
8.3.2 [Intentionally Omitted].
8.3.3 ALLOCATION OF LOSSES AND GROSS INCOME TO THE CLASS I
PARTNERS. (A) Notwithstanding any other provision of this Article 8, no
allocation of Partnership loss shall be made with respect to the Class I Limited
Partnership Interest which would create or increase a deficit balance in the
portion of the Capital Account balance attributable to such interest (as
maintained in accordance with Section 6.9 hereof; if, nevertheless, at the end
of any Partnership Year, the portion of the Capital Account attributable to the
Class I Limited Partnership Interest would have a deficit (determined as
described above and after taking into account all other allocations and
distributions with respect to such year), then there shall be allocated with
respect to the Class I Limited Partnership Interest for such year items of gross
income (which items shall be credited to the portion of the Capital Account
attributable to such interest) in an amount sufficient to eliminate such
deficit.
(B) If, at the end of any Partnership Year, the portion of the
Capital Account attributable to the Class I General Partnership Interest would
have a deficit (determined after taking into account all other allocations and
distributions with respect to such year), then there shall be allocated with
respect to the Class I General Partnership Interest for such year items of gross
income (which items shall be credited to the portion of the Capital
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Account attributable to such interest) in an amount sufficient to eliminate such
deficit.
8.4 SPECIAL ALLOCATIONS. The following special allocations shall
be made in the following order:
8.4.1 MINIMUM GAIN CHARGEBACK. Notwithstanding any other provision
of this Article 8, if there is a net decrease in Partnership Minimum Gain during
any Partnership Year, each Partner shall be specially allocated items of
Partnership income and gain for such Partnership Year (and, if necessary,
subsequent Partnership Years) in an amount equal to such Partner's share of the
net decrease in Partnership Minimum Gain, determined in accordance with Treas.
Reg. Section 1.704-2(f) and Treas. Reg. Section 1.704-2(g)(2). Allocations
pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant thereto. The items to
be so allocated shall be determined in accordance with Treas. Reg. Section
1.704-2(f)(6) and Treas. Reg. Section 1.704-2(j)(2)(i) and (iii). The
Partnership shall, however, (i) waive the Minimum Gain Chargeback required by
this Section 8.4.1 and (ii) apply to the Commissioner of the Internal Revenue
Service for approval of such waiver in the event that (x) the Partners have made
Capital Contributions or received income allocations that have restored any
previous Nonrecourse Deductions claimed or any distributions attributable to the
proceeds of a Nonrecourse Liability, and (y) the Minimum Gain Chargeback
requirement would distort the Partners' economic arrangement as reflected in
this Agreement and as evidenced over the term of the Partnership by the
Partnership's allocations and distributions and the Partners' Capital
Contributions and it is not expected that the Partnership will have sufficient
other income to correct that distortion. Except as otherwise modified herein,
this Section 8.4.1 is intended to comply with the Minimum Gain Chargeback
requirement in Treas. Reg. Section 1.704-2(f) and shall be interpreted
consistently therewith.
8.4.2 PARTNER MINIMUM GAIN CHARGEBACK. Notwithstanding any other
provision of this Article 8 except Section 8.4.1, if there is a net decrease in
Partner Nonrecourse Debt Minimum Gain during any Partnership Year, each Partner
who has a share of the Partner Nonrecourse Debt Minimum Gain, determined in
accordance with Treas. Reg. Section 1.704-2(i)(5), shall be specially allocated
items of Partnership income and gain for such Partnership Year (and, if
necessary, subsequent Partnership Years) in an amount equal to such Partner's
share of the net decrease in Partner Nonrecourse Debt Minimum Gain, determined
in accordance with Treas. Reg. Section 1.704-2(g)(2) and Treas. Reg. Section
1.704-2(i)(4).
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Allocations pursuant to the previous sentence shall be made in proportion to the
respective amounts required to be allocated to each Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with Treas. Reg.
Section 1.704-2(f)(5), Treas. Reg. Section 1.704-2(i)(4) and Treas. Reg. Section
1.704-2(j)(2)(ii) and (iii). Except as otherwise modified herein, this
Section 8.4.2 is intended to comply with the Partner Nonrecourse Debt Minimum
Gain Chargeback requirement in Treas. Reg. Section 1.704-2(i)(4) and shall be
interpreted consistently therewith. In addition, rules consistent with the
provisions of Treas. Reg. Section 1.704-2(f)(2), (3), (4) and (5) (including
rules regarding a waiver of the type discussed in Section 8.4.1 above) will
apply to the special allocation required by this Section 8.4.2.
8.4.3 QUALIFIED INCOME OFFSET. In the event any Partner
unexpectedly received any adjustments, allocations, or distributions described
in Treas. Reg. Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Partnership
income and gain shall be specially allocated to such Partner (in respect of its
Capital Account) in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, the Adjusted Capital Account Deficit of such
Partner as quickly as possible, provided that an allocation pursuant to this
Section 8.4.3 shall be made only if and to the extent that such Partner would
have an Adjusted Capital Account Deficit after all other allocations provided
for in this Article 8 have been tentatively made as if this Section 8.4.3 were
not in the Agreement.
8.4.4 NONRECOURSE DEDUCTIONS. Nonrecourse Deductions for any
Partnership Year or other period shall be specially allocated among the Partners
in accordance with their Percentage Interests.
8.4.5 PARTNER NONRECOURSE DEDUCTIONS. Any Partner Nonrecourse
Deductions for any Partnership Year or other period shall be specially allocated
to the Partner who bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable
in accordance with Treas. Reg. Section 1.704-2(i).
8.4.6 NEGATION ALLOCATION. Notwithstanding any provision of this
Agreement, to the extent any allocation is made in any Partnership Year to any
Partner pursuant to the provisions of Section 8.4.1, Section 8.4.2, Section
8.4.3, Section 8.4.4, Section 8.4.5 or Section 8.6, such Partner shall
thereafter be specially allocated items of Partnership gross income or deduction
in order to negate the above-
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described allocations in the same Partnership Year if sufficient items of gross
income or deduction are available and, if not available, in each succeeding
Partnership Year until the aggregate amount of the above described allocations
are fully negated.
8.5 CANCELLATION OF INDEBTEDNESS INCOME. Notwithstanding any other
provision of this Article 8, for purposes of this Agreement (a) any cancellation
of indebtedness income arising from the restructuring of the debt of the
Partnership which was effected in connection with the Original Amended Agreement
will be deemed to be realized and recognized by the Partnership immediately
prior to the admission of V Cable and V Cable GP as partners to the Partnership
and will be specially allocated among the Partners at that time in accordance
with the provisions of the Original Agreement (as defined in the Original
Amended Agreement) and (b) any cancellation of indebtedness income arising from
the contribution to capital and termination of the Junior Subordinated Loan will
be specially allocated to the Class V Limited Partner.
8.6 INTEREST OF THE GENERAL PARTNERS. Notwithstanding the
provisions of Article 7 and Sections 8.2 through 8.5 (but not including Section
8.3.3(B) hereof), the Class I General Partner shall be allocated an amount of
each material item of income, gain, loss, deduction or credit of the Partnership
for any Partnership Year, other than items of income, gain, loss, deduction or
credit allocated pursuant to Section 8.4 hereof, and shall be distributed a
portion of cash of the Partnership with respect to any Partnership Year so that,
after taking into account the allocation and distribution of each such item to
the Class II General Partner pursuant to Article 7 and Sections 8.2 through 8.5
hereof, there will be allocated and distributed not less than 1% of each such
item to the Class I and Class II General Partners in the aggregate and the
amount of any item allocated to the Class I General Partner pursuant to this
Section 8.6 shall reduce, by the same amount, the amount of such item otherwise
allocable to the Class I Limited Partner. If, at any time after the date
hereof, the Class II General Partner shall be the only general partner, for each
Partnership Year there shall be allocated and distributed to such general
partner an aggregate amount of not less than 1% of each such material item. In
addition, if an allocation of income shall be made pursuant to the preceding
sentence, there shall also be allocated to the Class II General Partner an
amount of loss equal to the lesser of (i) the amount of income so allocated or
(ii) the excess of 1% of the aggregate amount of losses of the Partnership for
the period the Class II General Partner was
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a general partner over the aggregate amount of losses previously allocated to
the Class II General Partner for such period.
8.7 ADJUSTMENTS TO ALLOCATIONS. The New General Partner, with the
consent of the Class IV Limited Partner (and the consent of the Class II General
Partner with respect to any change which will have an adverse effect on the
Class II Partners), shall have the authority to make changes in the allocations
provided for in this Article 8 to the extent necessary to conform to the
requirements of Section 704(b) of the Code and any regulations promulgated
thereunder, provided that such changes are not likely to have a material effect
on the amounts distributable to any Partner pursuant to Section 14 hereof upon
the dissolution of the Partnership.
8.8 ALLOCATION OF INTEREST INCOME. Notwithstanding any other
provision of this Article 8, there shall be specially allocated to the Class IV
Limited Partner for each of the taxable years set forth below an amount of
interest income equal to the excess of (x) the amount of interest income
received or accrued by the Partnership for federal income tax purposes with
respect to its loans to Essex Communications Corp. pursuant to those certain
notes dated as of January 1, 1993 over (y) the base amount set forth below for
each such taxable year:
Year Base Amount
---- -----------
1993 5,222,000
1994 5,508,000
1995 5,790,000
1996 6,058,000
1997 6,221,000
1998 6,420,000
1999 6,621,000
2000 6,841,000
2001 7,217,000
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8.9 ALLOCATION OF GAIN OR LOSS ON DISTRIBUTION OF, OR WITH RESPECT
TO NEWCO STOCK. Notwithstanding any other provision of this Agreement, income,
gain or loss, if any, recognized (or to be recognized) by the Partnership in
connection with the distribution of the Class B Common Stock of Newco to V Cable
shall be allocated to V Cable and the amount by which the capital account of V
Cable is charged to reflect such distribution shall be increased or decreased,
as the case may be, to offset the effect of such allocation.
8.10 CONTINUATION OF TREATMENT. The Partners and the Partnership
understand that the Prepayment Transactions will not result in the recognition
of any income, gain or loss by the Partnership and agree that the income tax
return for the Partnership and for each of the Partners for the period including
the closing of the Prepayment Transactions will be filed in a manner consistent
with this understanding.
ARTICLE 9
MANAGEMENT OF THE PARTNERSHIP
9.1 MANAGEMENT OF THE PARTNERSHIP'S BUSINESS.
(a) The General Partners, on behalf of the Partnership, have
entered into the Management Agreement, pursuant to which the Manager will
perform certain management services and duties for, and on behalf of, the
Partnership. Except for actions and determinations which, pursuant to the terms
of this Agreement, are to be taken or made (i) by the New General Partner (or,
following (x) the removal, withdrawal, resignation, liquidation or Bankruptcy of
the New General Partner or any other event that caused the New General Partner
to cease to be a general partner of the Partnership or (y) the termination of
the Management Agreement, the Existing General Partner in accordance with
Section 9.9 hereof) or (ii) only with the consent of the Partners, the Limited
Partners or the Class III Limited Partner, the Class IV Limited Partner and/or
the Class V Limited Partner, as the case may be, the business and affairs of the
Partnership shall be managed and directed exclusively by the New General
Partner, subject to the provisions of this Agreement with respect to the USC
Partners' Committee. Notwithstanding any provision of this Agreement to the
contrary, the New General Partner is hereby expressly authorized to execute the
Partnership Interests Redemption Agreement on behalf of the Partnership and the
Partnership, and the New General Partner acting on behalf of the Partnership, is
expressly authorized to consummate the
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transactions contemplated thereby. Subject to the ultimate authority of the New
General Partner to supervise the Manager, the New General Partner has delegated
certain authority to the Manager in accordance with, and subject to the terms
and provisions contained in, the Management Agreement for so long as the
Management Agreement shall be in effect. Subject to the terms and conditions of
the Management Agreement, the Manager may delegate such of its respective powers
and authority to managers, employees and agents of the Manager or the
Partnership as it shall deem necessary or appropriate for the conduct of the
Partnership's business. The Partners have previously approved the Business
Plan.
(b) Without limiting the generality of the foregoing and except to
the extent consented to by the Class III Limited Partner, the Class IV Limited
Partner and the Class V Limited Partner, the New General Partner, on behalf of
the Partnership, shall maintain in effect during the term of this Agreement
liability insurance in connection with the operation of the Partnership in
substantially the same amount and with substantially the same coverage as the
liability insurance maintained by the Partnership as of the date of the
Investment Agreement.
(c) Notwithstanding the foregoing exceptions to the authority of
the Manager, nothing contained in this Article 9 shall impose any obligation on
any Person (other than CSC or an Affiliate of CSC) doing business or dealing
with the Partnership to inquire as to whether the Manager has exceeded its
authority in executing any contract, agreement, lease, mortgage, note, deed or
other instrument in the name and on behalf of the Partnership, and any such
Person shall be fully protected in relying upon the plenary authority of the
Manager.
(d) No provision of this Agreement or the Management Agreement nor
any action taken by the Manager in accordance with the provisions of this
Agreement or the Management Agreement shall be construed to constitute the
Manager a general partner of the Partnership or to impose on the Manager any
duties, liabilities or obligations except as expressly provided by the
Management Agreement.
(e) The Manager shall keep the USC Partners' Committee informed
with respect to all matters relating to the business and affairs of the
Partnership and its Partners and shall in any event report to the USC Partners'
Committee not less frequently than once each calendar quarter.
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(f) Any action that may be taken under this Agreement by a
general partner of the Partnership, except as provided in Section 9.1(a) or
unless this Agreement provides that a specific General Partner (the New General
Partner, the Tax Matters Partner or the Existing General Partner) may or shall
take such action, may be taken only by joint action of all of the General
Partners of the Partnership, if there is more than one General Partner of the
Partnership at the time of the taking of any such action.
9.2 USC PARTNERS' COMMITTEE.
(a) Each of the General Partners shall designate two individuals,
for a total of four members, to serve on a Partners' Committee of the
Partnership (the "USC Partners' Committee") which shall be responsible for
taking all action required under this Agreement to be taken by the USC Partners'
Committee; PROVIDED, HOWEVER, that in the event of a Change in Control, the
Class IV Limited Partner and the New General Partner shall each appoint an
additional member of the USC Partners' Committee; and PROVIDED, FURTHER, that if
the Class IV Limited Partner shall determine in good faith that the appointment
by it of any such member would conflict with Section 9.11 of this Agreement, the
Class IV Limited Partner shall, instead, assign its right to make such
appointment to such third party not affiliated with GE Capital as the New
General Partner shall reasonably select. If any General Partner shall cease to
be a General Partner under this Agreement pursuant to Section 13.1(e) or
otherwise, such former General Partner shall no longer be entitled to appoint
any member of the USC Partners' Committee, and all members of such committee
appointed by such former General Partner shall automatically be removed. Any
additional member of the USC Partners' Committee appointed by the Class IV
Limited Partner shall be reasonably acceptable to the New General Partner. Each
member of the USC Partners' Committee shall have one vote on all matters to be
voted on by the USC Partners' Committee, except that a Partner may, instead of
appointing two members with one vote each (if it shall otherwise be entitled to
do so), appoint to the USC Partners' Committee one member having the power to
cast two votes on all matters to be voted on by the USC Partners' Committee;
PROVIDED, HOWEVER, if the number of Persons entitled to serve on the USC
Partners' Committee increases to six following a Change in Control, the New
General Partner may, instead of appointing three members with one vote each,
appoint to the USC Partners' Committee one member having the power to cast three
votes on all matters to be voted on by the USC Partners' Committee.
Notwithstanding anything herein to the contrary, the initial Class IV Limited
Partner, or a transferee
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reasonably acceptable to the New General Partner of all or more than 50% of its
Class IV Limited Partnership Interest, shall be entitled, at its option, to
designate one member of the USC Partners' Committee (in addition to any other
member designated by it pursuant to the first sentence of this Section 9.2(a)),
with a single vote, to take the place of one of the then incumbent members of
the USC Partners' Committee (such incumbent member to be replaced shall be
selected by the Class II General Partner) serving as representative of the
Existing General Partner (or, if such representative of the Existing General
Partner shall have been designated to cast two votes, the new member shall be in
addition to the then incumbent members of the USC Partners' Committee, and the
incumbent representative of the Existing General Partner shall then only be
entitled to cast one vote), and any such replaced incumbent member of the USC
Partners' Committee shall be automatically removed from the USC Partners'
Committee; PROVIDED, HOWEVER, that if the Class IV Limited Partner shall
determine in good faith that the appointment by it of any such member would
conflict with Section 9.11 of this Agreement, the Class IV Limited Partner
shall, instead, assign its right to make such appointment to such third party
not affiliated with GE Capital as the New General Partner shall reasonably
select. The USC Partners' Committee shall meet by telephone or, at the request
of any member of the USC Partners' Committee, in Person, as often as shall be
necessary to make any Extraordinary Decision or take any other action required
to be taken or approved by the USC Partners' Committee. Any action that may be
taken at a meeting of the USC Partners' Committee may be taken without a meeting
by written consent of the members of the USC Partners' Committee; PROVIDED,
HOWEVER, that any such written consent shall include the consent of at least one
representative of each Partner that shall then have a representative on the USC
Partners' Committee. Each member of the USC Partners' Committee shall be an
agent for the purposes provided for in this Agreement of the Partner that
appointed such member and shall not be an agent of the Partnership.
(b) The Manager, either General Partner or any member of the USC
Partners' Committee shall have the right to call a meeting of the USC Partners'
Committee by giving three (3) days' prior written notice of the time, date and
location (which shall be at the principal office of the Partnership unless
otherwise agreed) or means of conducting such meeting to the General Partners,
the members of the
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USC Partners' Committee and the Manager. The presence or participation of
members of the USC Partners' Committee entitled to cast at least a majority of
the total number of votes which may be cast by all of the then members of the
USC Partners' Committee shall constitute a quorum for the taking of any action.
Any action required or permitted to be taken by the USC Partners' Committee must
be by an affirmative vote of, or written consent representing, at least a
majority of the total number of votes which may be cast by all of the then
members of the USC Partners' Committee. Notwithstanding anything in this
Article 9 to the contrary, the Class III Limited Partner shall have the right to
designate, from time to time, one observer (the "Class III Observer") to attend
meetings of the USC Partners' Committee. The Manager shall give the Class III
Observer written notice of each meeting of the USC Partners' Committee at the
same time as the Manager receives notice of, or itself schedules, a meeting of
the USC Partners' Committee. The Class III Observer shall be entitled to
attend, as a non-voting observer, all meetings of the USC Partners' Committee,
shall receive reasonable advance notice of all such meetings and shall receive
copies of all materials and information provided to members of the USC Partners'
Committee (whether provided prior to, during or after any such meetings) except
to the extent that the provision of such information would be inconsistent with
Section 9.11 of this Agreement. If the USC Partners' Committee proposes to take
any action by written consent in lieu of a meeting, the Manager shall give
written notice thereof to the Class III Observer prior to the effective date of
such consent, describing in reasonable detail the nature and substance of such
action.
(c) Any member of the USC Partners' Committee may be removed with
or without cause at any time by the Partner which designated such member. If at
any time any Partner entitled to designate one or more representatives to the
USC Partners' Committee removes one or more of such representatives, such
Partner shall give written notice of such removal to the Manager, the General
Partners and any other Partner having a representative then serving on the USC
Partners' Committee (other than the Person or Persons to be removed), and shall
promptly appoint a successor member or members to represent such Partner on the
USC Partners' Committee by giving written notice of such appointment to the
Manager, the General Partners and any other Partner having a representative then
serving on the USC Partners' Committee; PROVIDED, HOWEVER, that any such
successor member or members (i) if appointed by the New General Partner, shall
be a director, officer or employee of CSC or one of its Subsidiaries; (ii) if
appointed by the Existing General Partner, shall be reasonably acceptable to the
New General Partner and (iii) if appointed by the Class IV Limited Partner,
shall be reasonably acceptable to the New General Partner. In the absence of
written notice to the contrary,
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the appointed representatives of any Partner on the USC Partners' Committee
shall be conclusively presumed to be the duly appointed representatives of such
Partner on such USC Partners' Committee. Except as set forth in Section 10.1
hereof, members of the USC Partners' Committee shall serve as such without
compensation.
(d) Any Person acting as a representative of the Existing General
Partner on the USC Partners' Committee may be removed by the New General Partner
for "cause" as such term is defined in Section 6.11 hereof. Any such removal
shall be without prejudice to the right of the Existing General Partner to
select a successor representative in accordance with Section 9.2(c) hereof.
9.3 EXTRAORDINARY DECISIONS. The following actions involving the
Partnership ("Extraordinary Decisions") may be taken only with the prior
approval of the USC Partners' Committee:
(i) subject to Section 9.5 hereof, any sale of all or of a
substantial portion of the operating assets of the Partnership on
terms not contemplated or permitted by the Business Plan or by any
agreement evidencing debt for borrowed money of the Partnership;
(ii) any purchase by the Partnership of material assets on
terms not contemplated or permitted by any agreement evidencing debt
for borrowed money of the Partnership or the Business Plan;
(iii) the incurrence of financial obligations or the making of
any investments by the Partnership not contemplated or permitted by
(a) any agreement evidencing debt for borrowed money of the
Partnership or (b) Section 6.3(a)(iii) hereof;
(iv) subject to Section 9.9 hereof, the undertaking by the USC
Partners' Committee of any management function covered by the
Management Agreement, the discharge of the Manager, the appointment
of a successor manager, any amendment to the Management Agreement or
the termination of the Management Agreement;
(v) any material amendment to the Business Plan, but only to
the extent not contemplated or permitted by any agreement evidencing
debt for borrowed money of the Partnership;
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the admission to the Partnership of any new partner other
than pursuant to Article 13 hereof;
(vii) providing any General or Limited Partner with the authority
to act on behalf of the Partnership, except as otherwise provided in
this Agreement or the Management Agreement or required under
applicable law; or
(viii) subject to Section 9.5 hereof, any action by or on behalf of
the Partnership or any of its Subsidiaries to commence or bring
about, or to file or consent to the filing of any petition
commencing or requesting, (a) appointment of a receiver, custodian,
liquidator or trustee (or similar official) for the Partnership or
any of its Subsidiaries or any substantial part of their respective
assets, (b) any assignment by the Partnership or any of its
Subsidiaries for the benefit of creditors, (c) any dissolution,
liquidation or winding-up of the affairs of the Partnership or any
of its Subsidiaries, (d) any case, proceeding or other relief
involving the Partnership or any of its Subsidiaries or any
substantial part of their respective assets under the Bankruptcy
Code, or any other applicable federal, state or foreign bankruptcy,
insolvency, reorganization or other similar law.
9.4 LIMITATION ON AGENCY. (a) For so long as the Management
Agreement shall be in effect and subject to the ultimate authority of the New
General Partner to supervise the Manager, the Manager shall have exclusive
authority to act for and to assume any obligation or responsibility on behalf of
the Partnership except as (i) otherwise expressly provided in this Agreement and
(ii) expressly restricted by this Agreement or the Management Agreement, and,
without the approval of the USC Partners' Committee, no General Partner or
Limited Partner shall have any authority to act for, or to assume any obligation
or responsibility on behalf of, another Partner or the Partnership (or to
authorize any other Person to do so) except as otherwise expressly provided
herein with respect to a particular General Partner or under the terms of the
Management Agreement. Notwithstanding the previous sentence, whenever a
decision made as to the Partnership or its affairs in accordance with the
limitations set forth in this Agreement and the Management Agreement requires
for its implementation the execution of documents or other action by a Partner
of the Partnership in order to bind the
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Partnership, the New General Partner shall have the exclusive authority to take
action to bind the Partnership in accordance with such decision. Nothing in
this Section 9.4 shall limit any consent or other rights granted to any Limited
Partner under this Agreement.
(b) Each General Partner agrees for the benefit of the Partnership
and the other Partners not to take any action on behalf of the Partnership,
except as otherwise expressly provided herein.
(c) Notwithstanding anything in this Agreement to the contrary, GE
Capital may lend money to and transact other business with the Partnership and,
subject to applicable law, shall have the same rights and obligations with
respect thereto (including, without limitation, pursuant to the USC Loan
Documents) as a Person who is not a partner of the Partnership. If a Limited
Partner is a lender, in exercising its rights as a lender, including in making
its decision on whether to foreclose on property of the Partnership, such lender
will have no duty to consider (i) its status as a partner of the Partnership,
(ii) the interests of the Partnership, or (iii) any duty (including fiduciary
duties) it may have to any Partner or the Partnership.
9.5 APPROVAL BY CERTAIN LIMITED PARTNERS.
(a) Notwithstanding anything in this Agreement, without the prior
written approval of the Class III Limited Partner, the Class IV Limited Partner
and the Class V Limited Partner, none of the Partnership, any Partner acting on
behalf of the Partnership or the Manager shall take any of the following actions
in respect of the Partnership or any of its Subsidiaries: (x) other than in the
ordinary course of business, any sale, transfer or other disposition (including
by means of any transfer of stock or assets by merger or consolidation) of any
material amount of assets of USC or any of its Subsidiaries (any such
transaction is hereinafter referred to as a "Disposition")) or (y) any action
described in Section 9.3(vii) hereof.
(b) The Partnership will not (i) assign, transfer or otherwise
dispose of its limited partnership interest in the Missouri Partnership, or
(ii), in its capacity as a limited partner of the Missouri Partnership, give its
consent under Section 9.4, 10 or 15 of that certain Limited Partnership
Agreement of the Missouri Partnership.
(c) In exercising any approval or other rights granted to the Class
III Limited Partner, the Class IV
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Limited Partner and the Class V Limited Partner in this Agreement, the Act or
any other agreement, such limited partner of the Partnership, shall be entitled
to consider only such interests and factors as it desires and may consider its
own interests, and shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Partnership or other Partners.
9.6 LIABILITY OF THE GENERAL PARTNERS AND THE MEMBERS OF USC
PARTNERS' COMMITTEE. (a) No General Partner shall be liable, in damages or
otherwise, to the Partnership or any Partner for any act or failure to act on
behalf of the Partnership by such General Partner, unless (i) such act or
omission constituted fraudulent or willful misconduct (including an intentional
breach of Section 9.1 or 9.8 of this Agreement or any breach of Section 9.1 or
9.8 of this Agreement arising out of the gross negligence of such General
Partner), or (ii) such act or omission constituted a breach of any of the terms
and conditions of this Agreement other than Sections 9.1 and 9.8 or an act
outside the scope of the authority conferred on such General Partner by this
Agreement, was performed or omitted in bad faith or constituted gross negligence
or a violation of law, provided that, solely for purposes of this clause (ii),
in the case of any act or failure to act with respect to any matter (A)
responsibility for which has been delegated to the Manager pursuant to the
Management Agreement and (B) for which the New General Partner may be deemed to
be responsible pursuant to this Agreement and (C) which does not constitute an
express obligation of the New General Partner pursuant to this Agreement, the
New General Partner shall be liable only if the Manager would be liable to the
Partnership pursuant to the Management Agreement if the Manager had so acted or
failed to act. To the fullest extent permitted by law, each General Partner
shall be indemnified by the Partnership against liability for any claim, demand,
loss, damage, liability or expense (including, without limitation, amounts paid
in settlement, reasonable costs of investigation and reasonable legal expenses)
resulting from any threatened, pending or completed action, suit or proceeding
naming as a defendant the Partnership or such General Partner resulting from or
in connection with the discharge of its duties and responsibilities under this
Agreement, unless such General Partner's actions or omissions were of any of the
types referred to in clauses (i) or (ii) above.
(b) No Person serving on the USC Partners' Committee from time
to time shall be liable, in damages or otherwise, to the Partnership or any
Partner for any act or failure to act on behalf of the Partnership by such
Person, unless such act or omission constituted fraudulent or will-
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ful misconduct (including an act outside the scope of the authority conferred on
such Person by this Agreement), was performed or omitted in bad faith or
constituted gross negligence or a violation of law. To the fullest extent
permitted by law, each Person serving on the USC Partners' Committee shall be
indemnified by the Partnership against liability for any claim, demand, loss,
damage, liability or expense (including, without limitation, amounts paid in
settlement, reasonable costs of investigation and reasonable legal expenses)
resulting from any threatened, pending or completed action, suit or proceeding
naming as a defendant the Partnership or such Person serving on the USC
Partners' Committee resulting from or in connection with the discharge of such
Person's duties and responsibilities under this Agreement, provided such
Person's actions were in good faith and did not constitute gross negligence,
fraud, willful misconduct (including an act outside the scope of the authority
conferred on such Person by this Agreement) or a violation of law.
(c) It is expressly agreed that no Limited Partner will be required
to make a Capital Contribution to the Partnership to satisfy any indemnification
obligation of the Partnership. Notwithstanding the foregoing, nothing in
Sections 9.6(a) or 9.6(b) shall provide for any exculpation or indemnification
of V Cable or Newco with respect to any obligation it may have under the
Supplemental Side Letter.
9.7 INDEMNIFICATION. Any Person asserting a right to
indemnification under Section 9.6 shall so notify the Partnership in writing.
If the facts giving rise to such indemnification shall involve any actual or
threatened claim or demand by or against a third party, the Partnership shall be
entitled to assume the conduct of the defense or prosecution of such claim or
demand in the name of indemnified Person, with counsel reasonably satisfactory
to the indemnified Person, if the Partnership notifies the indemnified Person in
writing of its intention to do so within twenty (20) days of the receipt of such
notice by the Partnership, without prejudice, however, to the right of the
indemnified Person to participate therein through counsel of the indemnified
Person's own choosing, which participation shall be at the indemnified Person's
sole expense unless (i) the indemnified Person shall have been advised by its
counsel that use of the same counsel to represent both the Partnership and the
indemnified Person would present a conflict of interest (which shall be deemed
to include any case where there may be a legal defense or claim available to the
indemnified Person which is different from or additional to those available to
the Partnership), in which case the Partnership shall not have the right to
direct the
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defense of such action on behalf of the indemnified Person, or (ii) the
Partnership shall fail diligently to defend or prosecute such claim or demand
within a reasonable time. Whether or not the Partnership chooses to defend or
prosecute such claim, the parties hereto shall cooperate in the prosecution or
defense of such claim and shall furnish such records, information and testimony
and attend such conferences, discovery proceedings, hearings, trials and appeals
as may reasonably be requested in connection therewith. The Partnership shall
not settle or permit the settlement of any such third party claim or action
without the prior written consent of the indemnified Person. Notwithstanding
the foregoing, nothing in this Section 9.7 shall provide for any exculpation or
indemnification of V Cable or Newco with respect to any obligation under the
Supplemental Side Letter.
9.8 REMOVAL OF MANAGER.
(a) The Manager may be removed or discharged by the USC
Partners' Committee as set forth in Section 9.3 only if the Partnership would
then be entitled to terminate the Management Agreement in accordance with the
terms thereof.
(b) Upon the removal of the Manager in accordance with this
Agreement and the Management Agreement, a new manager shall be appointed by the
USC Partners' Committee as set forth in Section 9.2; PROVIDED, HOWEVER, that,
until a successor manager has been appointed, the Partnership shall be managed
by the New General Partner consistent with the provisions of the Management
Agreement; and PROVIDED FURTHER that during such period the USC Partners'
Committee shall direct the New General Partner in the management of the
Partnership and the New General Partner shall act in accordance with such
direction.
9.9 CONTINGENT AUTHORITY OF EXISTING GENERAL PARTNER.
(a) Notwithstanding anything in this Agreement to the contrary, if an
Event of Default occurs under Section 9.1(m)(i) of the V Cable Loan Agreement
with respect to the Management Agreement and such default is not waived by GE
Capital, then the Existing General Partner, upon receipt of notice of such
default from GE Capital which declares such default to be a "material management
default," shall have the authority to terminate the Management Agreement on
behalf of the Partnership.
(b) In the event that (x) the Management Agreement is terminated in
accordance with the terms thereof or
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(y) the New General Partner withdraws or resigns as general partner of the
Partnership, liquidates or is subject to a Bankruptcy or any other event has
occurred that would cause the New General Partner to cease to be a general
partner of the Partnership, then, without any further action by the Partnership
or the Partners, each of the duties expressly conferred upon the New General
Partner by this Agreement (including those duties conferred upon the New General
Partner in its capacity as Tax Matters Partner) shall devolve upon the Existing
General Partner MUTATIS MUTANDIS.
9.10 OTHER CABLE TELEVISION SYSTEMS. It is understood that,
subject to the provisions of the Non-Competition Agreement, Cablevision and its
Affiliates (including V Cable) may possess interests in and operate other cable
television systems whether or not currently so engaged, which activities may
include (without limitation) the acquisition, construction, management,
operation and sale of cable television systems and the creation and distribution
of programming therefor, and may generally have other business interests and
engage in other business activities in direct competition with the Partnership,
for their own account and for the account of others, and neither the Partnership
nor any of its partners shall have any rights in or to such independent
ventures, businesses or activities or the income or profits derived therefrom;
provided, that nothing in this sentence shall be construed to permit CSC or any
of its Affiliates to own or possess any interest or engage in any activity in
violation of the Non-Competition Agreement, as the same may be amended from time
to time. It is also understood that, except as set forth in Section 6.1 of the
Management Agreement, there is no obligation on the part of Cablevision and its
Affiliates (including V Cable) to offer or provide any interest in such
independent ventures, businesses or activities or any of their own business
opportunities to the Partnership, or any of its Subsidiaries or any of its
partners.
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9.11 EXEMPT LIMITED PARTNERS. It is the express purpose and intent
of the Partners that each Exempt Limited Partner shall be sufficiently insulated
from, and uninvolved in, the media-related activities of the Partnership so as
to be non-attributable pursuant to (and within the meaning of) the FCC
Regulations. Accordingly, the following provisions shall be read and
interpreted with reference to all applicable FCC rules, orders or
interpretations from time to time in effect, and shall apply notwithstanding
anything to the contrary contained in this Agreement:
No Exempt Limited Partner may act as an employee of the Limited Partnership
if said employee's functions, directly or indirectly, relate to the media
enterprises of the Partnership;
No Exempt Limited Partner may serve, in any material capacity, as an
independent contractor or agent with respect to the Partnership's
media enterprises;
No Exempt Limited Partner may communicate with the licensee of the
Partnership's media enterprises or any of the General Partners on
matters pertaining to the day-to-day operations of the Partnership's
media-related business;
The New General Partner (or, if the New General Partner shall cease to
be a general partner of the Partnership, the Existing General Partner)
may veto any admissions of additional General Partners admitted by
vote of the Exempt Limited Partners;
No Exempt Limited Partner may vote on the removal of a General Partner
as a general partner of the Partnership except in situations where
such General Partner is subject to bankruptcy proceedings, as
described in Sections 402 (4)-(5) of the Delaware Revised Uniform
Limited Partnership Act, is adjudicated incompetent by a court of
competent jurisdiction, or is removed for cause, as determined by an
independent party;
No Exempt Limited Partner may perform any services for the Partnership
materially relating to its media activities, with the exception of
making loans to, or acting as a surety for, its businesses; and
Exempt Limited Partners are prohibited from becoming actively involved
in the management or
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operation of the media businesses of the Partnership.
An Exempt Limited Partner may, upon prior written notice to the General Partners
and each other Limited Partner, elect to cease to be deemed an "Exempt Limited
Partner" (and, if applicable FCC Regulations so provide, such Limited Partner
shall thereupon become an attributable Limited Partner), in which case the
prohibitions of this Section 9.11 shall cease to apply to such Limited Partner.
Upon such election, (i) Schedule C hereto shall be appropriately amended to
delete such Limited Partner therefrom and (ii) the New General Partner shall
take such steps (if any) as may be necessary to comply with then-current FCC
Regulations in a prompt and timely fashion, including the filing of any required
notices and/or applications, and the Limited Partner that makes the election
shall cooperate with the New General Partner in that regard.
In addition, if any Exempt Limited Partner shall furnish to the Partnership an
opinion of counsel that any of the prohibitions or other limitations set forth
in this Section 9.11 (or elsewhere in this Agreement with respect to Exempt
Limited Partners) are no longer necessary in order for such Exempt Limited
Partner to maintain its non-attributable status, then (1) such limitations
shall, with respect to such Limited Partner, automatically be null and void and
of no further force and effect, and shall not thereafter apply in any context to
such Limited Partner or (2) to the extent that such opinion states that a
modified form of prohibition or limitation would be sufficient to retain such
partner's non-attributable status (and specifies such modified limitations),
such limitations shall be automatically modified to be consistent with such
opinion.
Each Exempt Limited Partner further agrees that it will not exercise its right,
pursuant to the GE Capital Option, to remove the New General Partner unless such
Exempt Limited Partner has either (i) theretofore exercised its right to cease
to be an "Exempt Limited Partner" as provided above or (ii) furnished the
Partnership with an opinion of counsel that the exercise of such right will not
cause such Limited Partner to become an attributed Limited Partner.
ARTICLE 10
COMPENSATION
10.1 COMPENSATION TO POMPADUR REPRESENTATIVE. The Partnership will
pay to the Pompadur Representative
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$50,000 per annum (payable in quarterly installments in arrears) in
consideration of the Pompadur Representative's services on the USC Partners'
Committee plus all reasonable out-of-pocket expenses incurred by the Pompadur
Representative in connection with the performance of its services as a member of
the USC Partners' Committee. Notwithstanding anything to the contrary in this
Agreement, the right of the Pompadur Representative to receive the compensation
set forth in the immediately preceding sentence shall forthwith terminate
simultaneously with (A) the removal of the Pompadur Representative from service
on the USC Partners' Committee in accordance with Section 9.2(d) hereof or (B)
the voluntary resignation for any reason of the Pompadur Representative from
service on the USC Partners' Committee.
10.2 COMPENSATION RESTRICTED. Except for the payments set forth in
Section 10.1 above, payments made pursuant to the Management Agreement, payments
made pursuant to Sections 9.6 and 9.7 hereof, and the right to be reimbursed in
accordance with Section 12.4.3(b) hereof, neither the General Partners nor their
respective Affiliates shall receive any other compensation or reimbursement of
expenses from the Partnership for services as General Partners.
ARTICLE 11
[Intentionally Omitted]
ARTICLE 12
ACCOUNTING, ACCOUNTS, RETURNS AND TAX MATTERS
12.1 BOOKS. The New General Partner shall maintain, or cause to be
maintained at the Partnership's expense, complete and accurate books of account
of the Partnership's affairs at the Partnership's principal place of business,
including a list of the names and addresses of all Partners and the Partnership
Interests held by each Partner. The books of account of the Partnership shall
be kept on the accrual basis of accounting in accordance with generally accepted
accounting practices applied in a consistent manner. Each Partner shall have
the right to inspect and copy the Partnership's books and records (including the
list of the names and addresses of Partners) at any reasonable time upon advance
request to the New General Partner. Notwithstanding anything in the Act
(including Section 17-305(b) of the Act) or this Agreement
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to the contrary, the General Partners shall not have the right to keep
confidential from the Class III Limited Partner, the Class IV Limited Partner or
the Class V Limited Partner, any information concerning the Partnership.
12.2 REPORTS. The books of account shall be closed promptly after
the end of each Partnership Year. The independent public accountants of the
Partnership shall initially be KPMG Peat Marwick; PROVIDED, HOWEVER, that in the
event that such firm shall be unable or unwilling to so act, the New General
Partner may select another nationally recognized "Big 6" accounting firm (other
than a firm that is utilized by Cablevision) to act as the independent public
accountants of the Partnership. The books and records of the Partnership shall
be audited by the independent public accountants as of the end of each
Partnership Year and audited financial statements (which shall include a
statement of profits and losses and cash flows for the year ended and a balance
sheet as of the close of the Partnership Year) prepared in accordance with
generally accepted accounting principles shall be distributed to the Partners
within ninety (90) days of the end of each Partnership Year.
12.3 FILING OF TAX RETURNS AND TAX REPORTS TO CURRENT AND FORMER
PARTNERS. (a) The New General Partner shall cause the independent public
accountants of the Partnership, selected pursuant to Section 12.2 hereof, to, at
the expense of the Partnership, prepare and timely file a federal information
tax return in compliance with section 6031 of the Code and any required state
and local income tax and information returns for each Partnership Year.
Notwithstanding the preceding sentence, in order to preserve and protect the
financial investments of such partners (and avoid self-dealing by the New
General Partner), no Partnership income tax or information return and no income
tax or information return of any entity owned or controlled by the Partnership
(including the Missouri Partnership) shall be filed with the Internal Revenue
Service or any state and local tax authority unless, at least 30 days prior to
the time for the filing of any such returns, including any extension of time for
filing (but in no event later then three and a half months after the end of each
Partnership Year), such returns have been submitted to the Class III Limited
Partner, the Class IV Limited Partner and the Class V Limited Partner for review
and approval and the New General Partner, the Class III Limited Partner, the
Class IV Limited Partner and the Class V Limited Partner have consented to the
filing of such returns. The New General Partner, at the Partnership's expense,
shall cause the independent public accountants, selected pursuant to Section
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12.2 hereof, to prepare any reports or analyses with respect to the return
requested by any Partner.
(b) Within ninety (90) days of the end of each Partnership Year,
the Partnership shall prepare and mail, or cause its independent public
accountants, selected pursuant to Section 12.2 hereof, to prepare and mail, to
each Partner and, to the extent necessary, to each former Partner (or his or its
legal representatives), a report setting forth in sufficient detail such
information as is required to be furnished to such Partners by law (E.G.,
Section 6031(b) of the Code and the regulations thereunder) which shall enable
such Partners or former Partners (or his, its or their legal representatives) to
prepare their respective federal and state and local income tax or information
returns in accordance with the laws, rules and regulations then prevailing.
12.4.1 ELECTIONS. To the extent that the Partnership may be or is
required, to make elections for federal, state or local income tax purposes, and
to the extent that Partners may be or are required to make elections concerning
the business and properties of the Partnership and those elections may not be
made in different ways by different Partners, the elections shall be made by the
New General Partner, with the prior written consent of the Class IV Limited
Partner (in order to preserve and protect the financial investments of each
partner and avoid self-dealing by the New General Partner). The Partners shall
be required to treat a Partnership item for any taxable year on their federal,
state or local income tax returns in a manner that is consistent with the
treatment of the Partnership item on the Partnership federal, state or local
income tax return with respect to such year.
12.4.2 CHANGE OF PARTNERS' INTERESTS. If there is a change in
the Percentage Interests of the Partners during a Partnership Year, the New
General Partner may elect, subject to the prior written consent of the Class IV
Limited Partner, to adopt either (1) the interim closing of the books method,
whereby the portion of the Partnership Year beginning with the first day of the
Partnership Year (or the first day following an earlier change during that year)
and ending with the date of the change shall be treated as if it were a separate
Partnership Year and the Partnership's Net Income or Net Loss for the entire
Partnership Year (excluding any net gains or losses from dispositions of
Partnership property) shall be allocated
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to the separate Partnership Years in proportion to the number of days in each;
and the Partnership's net gains and losses from dispositions of Partnership
property shall be allocated to the separate Partnership Years in which the
dispositions were consummated; or (2) the pro rata method, whereby the
Partnership's Net Income or Net Loss (including any net gains or losses from
dispositions of Partnership property) shall be prorated among the Partners
according to some reasonable method, previously consented to by the Class IV
Limited Partner, which reflects the portion of the Partnership Year for which
the Partner was a partner of the Partnership.
12.4.3 TAX MATTERS PARTNER. (a) The New General Partner shall be
the "tax matters partner" (as such term is defined in Section 6231(a)(7) of the
Code or under any corresponding provisions of state or local law) for the
Partnership.
(b) The Tax Matters Partner shall exercise the duties and
responsibilities provided in Subchapter C of Chapter 63 of the Code and this
Agreement. Notwithstanding the previous sentence, the Tax Matters Partner,
unless otherwise required by law, (i) shall not take any action pursuant to this
Section 12.4.3 unless such action has been consented to by the Class III Limited
Partner, the Class IV Limited Partner and the Class V Limited Partner and (ii)
in its capacity as Tax Matters Partner, shall perform all such duties and
responsibilities as directed by the Class IV Limited Partner; PROVIDED, HOWEVER,
that in the event the Tax Matters Partner is required to give its approval or
consent in its capacity as the New General Partner with respect to a matter
under this Agreement, the Tax Matters Partner shall not be subject to clauses
(i) and (ii) of this sentence in the giving or withholding of such approval or
consent. The Tax Matters Partner shall be reimbursed by the Partnership for
reasonable expenses incurred as a result of acting in that capacity, including
fees of outside counsel and public accountants.
(c) The Tax Matters Partner shall keep each Partner informed of all
administrative and judicial proceedings for the adjustment at the Partnership
level of Partnership items, and shall provide the Class IV Limited Partner and
any other Partners copies of any notices or communications received from the
Internal Revenue Service or any state or local tax authority. The other
Partners shall promptly provide to the Tax Matters Partner copies of all
correspondence to or from, or summaries of any other communications with, the
Internal Revenue Service or any state or local tax authority regarding any
aspect of the Partnership and Partnership items.
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(d) The Tax Matters Partner shall be responsible for all
negotiations on behalf of the Partnership with the Internal Revenue Service or
the Departments of the Treasury or Justice or any state or local tax authority
with respect to the income tax treatment of Partnership items, and shall provide
the Class IV Limited Partner the opportunity to participate, at its expense, in
any such negotiations. Moreover, the Tax Matters Partner shall not bind the
Class III Limited Partner, the Class IV Limited Partner, the Class V Limited
Partner or any other Partner to a settlement agreement unless that Partner has
given its written consent to such agreement. In addition, the New General
Partner or Tax Matters Partner (whichever may have the authority) shall not
agree to any settlement of any examination or audit of any entity in which the
Partnership owns an interest without the consent of the Class III Limited
Partner, the Class IV Limited Partner and the Class V Limited Partner.
(e) The Tax Matters Partner shall not file a (i) request for an
administrative adjustment of any Partnership item under Section 6227(b) of the
Code, (ii) petition for readjustment of Partnership items under Section 6226(a)
of the Code, or (iii) petition for an adjustment with respect to Partnership
items under Section 6226(a) of the Code without first receiving the written
approval of the Class IV Limited Partner and notifying all other Partners of the
intended action (including the proposed treatment of the Partnership item(s) and
the proposed court, if applicable). No Partner shall file a (1) request for an
administrative adjustment of Partnership items under Section 6227(a) of the
Code, (2) petition for readjustment of Partnership items under Section 6226(b)
of the Code, or (3) civil action for refund under Section 6228(b)(2) of the Code
without first giving reasonable advance notice of the intended action (including
the proposed treatment of the Partnership item(s) and the proposed court, if
applicable) to the New General Partner, the Class III Limited Partner, the Class
IV Limited Partner and the Class V Limited Partner, and no Partner shall appear
before a court in connection with any of the foregoing actions or file a request
for an administrative adjustment of Partnership items under Section 6227(a) of
the Code without first receiving written approval of the New General Partner,
the Class III Limited Partner, the Class IV Limited Partner and the Class V
Limited Partner.
(f) The Tax Matters Partner has an obligation to perform its duties
as Tax Matters Partner in such a manner as will give effect to the terms of this
Agreement and will best serve the interests of the Partnership and the
respective interests of all the Partners, including the Tax Matters Partner.
Notwithstanding the foregoing, the Tax
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Matters Partner shall not be liable to the Partnership, any Partner or any third
party, for any action taken or omitted to be taken by the Tax Matters Partner in
reliance on (i) an express provision of this Agreement, (ii) the instructions of
the Class IV Limited Partner or (iii) the advice of the Partnership's
independent public accountants selected pursuant to Section 12.2 hereof or the
opinion of tax counsel of recognized standing, in each case that such action or
omission to act is required by law or the provisions of this Agreement.
(g) The provisions of this Section regarding the Tax Matters
Partner shall survive the termination of this Agreement or the termination of
any Partner's interest under this Agreement and shall remain binding on the
Partners for a period of time necessary to resolve with the Internal Revenue
Service or any state or local tax authority all matters regarding the taxation
of the Partnership. The terms used in this Section 12.4.1 through 12.4.3 shall
have the meaning accorded them in Sections 6221 through 6232 of the Code.
ARTICLE 13
TRANSFERS
13.1 GENERAL PARTNERS.
(a) Except as otherwise expressly permitted in Section 13.10 hereof
and as provided in the Partnership Interests Redemption Agreement, none of the
General Partners shall resign, withdraw from the Partnership, liquidate, take
any action that would constitute an event of Bankruptcy or any other event that
would cause such General Partner to cease to be a general partner of the
Partnership, or assign, transfer or otherwise dispose of any of its interest as
a general partner of the Partnership.
(b) For purposes of this Section 13.1, if Cablevision, V Cable or
any of their respective Subsidiaries proposes to enter into any transaction or
series of transactions whereby V Cable GP, Inc. would cease to be a directly or
indirectly wholly-owned Subsidiary of Cablevision and V Cable, such transaction
or series of transactions, unless consented to (to the extent permitted by
applicable law) by the Class IV Limited Partner, shall be deemed to be an
assignment of V Cable GP, Inc.'s Partnership Interest and shall be subject to
the provisions of this Section 13.1. For purposes of this Section 13.1, a
Change in Control shall be deemed to be an assignment of the
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Existing General Partner's Partnership Interest and shall be subject to the
provisions of this Section 13.1.
(c) Any other provision of this Agreement to the contrary
notwithstanding, if any General Partner resigns or withdraws from the
Partnership in violation of this Agreement or takes any action of the type
described in Section 9.3(vii) hereof with respect to itself, or any other event
occurs that would cause a General Partner to cease to be a general partner of
the Partnership, then such General Partner or former General Partner shall not
in respect of such resignation, withdrawal, action or event be entitled to the
return of, or any payment in respect of, its Capital Contribution, and shall not
be entitled to continue to participate in any profits, income or gain of the
Partnership accruing after the date of such resignation, withdrawal, action or
event or have any other rights and powers of a general partner hereunder and
shall not be entitled to any distribution which exceeds the positive balance, if
any, of the balance of its Capital Account as of the end of the month in which
such resignation, withdrawal, action or event took place (based on an unaudited
interim closing of the Partnership's books as of the end of such month), except
that such General Partner or former General Partner and its Capital Account
shall be subject to continuing losses of the Partnership. Such payment shall be
made at the time as such amount would have been distributed (subject to the
preceding sentence) if the General Partner resigning, withdrawing or taking such
action or as to which such an event has occurred had remained as a General
Partner in the Partnership. Upon any such resignation or withdrawal from the
Partnership of a General Partner in violation of this Agreement or other event
that would cause a General Partner to cease to be a general partner of the
Partnership, other than in each case with respect to the sole remaining general
partner of the Partnership, the interest of such General Partner shall for all
purposes of this Agreement automatically be converted into a limited partner
interest and such General Partner shall remain a limited partner of the
Partnership until such time as such General Partner would have been able to
resign or withdraw from the Partnership without violation of this Agreement. In
the event of such resignation or withdrawal by the then sole remaining General
Partner or the taking of any action by the sole remaining General Partner of the
type described in Section 9.3(vii) as to itself, the Partnership shall be
dissolved unless the Partners elect to carry on the business of the Partnership
by election of one or more substitute general partners as provided in Section
14.1 hereof. If such resigning or withdrawing General Partner is the Existing
General Partner and the Existing General Partner is
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the then sole remaining General Partner, any substitute general partner elected
in accordance with the immediately preceding sentence shall acquire a 1%
Percentage Interest. Upon the payment of a Capital Contribution by any such
substitute general partner to the Partnership of an amount equal to the fair
market value of the interest in the Partnership received by it (which shall be
determined by the Class IV Limited Partner) or upon the acquisition from one or
more other Partners of at least a 1% Percentage Interest, the written agreement
of the substitute general partner to be bound by the terms of this Agreement and
the admission of the substitute general partner as a general partner of the
Partnership, the Existing General Partner shall cease to be a general partner of
the Partnership and the substitute general partner shall thereafter serve as a
general partner of the Partnership subject to all of the terms, conditions and
liabilities to which the Existing General Partner was then subject. In no event
shall a substitute general partner have any greater rights in the Partnership
than the former Existing General Partner. Except with respect to a sale of the
Existing General Partner's Interest to the substitute general partner, upon the
admission of a substitute general partner as a replacement for the Existing
General Partner, the Existing General Partner's Partnership Interest shall for
all purposes of this Agreement automatically be converted into a limited partner
interest. Notwithstanding anything in this paragraph (c) to the contrary, upon
any foreclosure pursuant to the G.P. and L.P. Non-Recourse Guarantee and Pledge
Agreement (as defined in the USC Loan Documents), GE Capital or any Person
designated by GE Capital may, to the extent not prohibited by applicable law,
become a substitute general partner, which shall then hold the Existing General
Partner's Partnership Interest previously held by the Existing General Partner
prior to the conversion of such interest into a limited partner interest
pursuant to this Section 13.1(c). Nothing in this Section 13.1(c) shall limit
any other remedies available to the Partnership or any Partner in connection
with any breach of this Agreement.
(d) No General Partner may pledge, mortgage or otherwise
encumber or grant any security interest or lien in or against all or any portion
of his or its Interest except for a pledge to GE Capital or any other lender or
assignee under the USC Loan Documents of his or its Partnership Interest or
right to receive distributions (including liquidating distributions) from the
Partnership.
(e) The Class I Partners have entered into this Agreement in
reliance upon the duties of loyalty, trust and confidence which the Class II
General Partner will undertake
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as a general partner entitled to designate members of the USC Partners'
Committee. The Class II General Partner accepts this relationship of loyalty,
trust and confidence the Class I Partners have placed in the Class II General
Partner under this Agreement. Accordingly, the Class II General Partner agrees
that the Class I Partners shall not be required to accept performance (including
the designation of members of the USC Partners' Committee) under this Agreement
from the Class II General Partner if there occurs a Change in Control of the
Class II General Partner, including, without limitation, an event of Bankruptcy
of the Class II General Partner (including, without limitation, instances where
the Class II General Partner becomes a debtor in possession under the Bankruptcy
Code, or any trustee is appointed for the Class II General Partner under the
Bankruptcy Code). If any such event occurs, unless the Class II General Partner
is then the sole remaining general partner of the Partnership, the interest of
the Class II General Partner shall for all purposes of this Agreement
automatically be converted into a limited partner interest (on the same terms as
provided for in Section 13.1(c) above) for all purposes under this Agreement.
13.2 TRANSFER OF LIMITED PARTNER'S INTEREST.
(a) Except as expressly permitted by this Section 13.2 and as
provided in the Partnership Interests Redemption Agreement, no Limited Partner
may sell, transfer, assign, pledge, mortgage, bequeath or otherwise dispose of
or encumber or grant any security interest or lien in or against (each, a
"Transfer") all or any portion of his or its Interest; PROVIDED, HOWEVER, that
each of the Class III Limited Partner, the Class IV Limited Partner and the
Class V Limited Partner and their respective assignees may transfer their
respective interests to a Subsidiary of General Electric Company that consents
in writing in form reasonably satisfactory to the New General Partner to be
bound by the terms of this Agreement, including without limitation, the
agreements contained in Article 15, as if it were the assignor.
(b) Notwithstanding the provisions of Section 13.2(a):
(i) any Original Limited Partner may Transfer any part of
his or its Partnership Interest to any other Original Limited Partner
to the extent permitted by the USC Loan Documents;
(ii) any Original Limited Partner who is a natural Person
may Transfer any part of his
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Partnership Interest to any of his parents, spouse, children or siblings or
to a trustee or trustees of a trust for the benefit of one or more of them
or their issue to the extent permitted by the USC Loan Documents;
(iii) any Original Limited Partner that is a trust may
Transfer any part of its Partnership Interest to the beneficiary or
beneficiaries of that trust, to the issue or a sibling of that
beneficiary, or to a trust that has the same classes of beneficiaries
as the transferor trust to the extent permitted by the USC Loan
Documents;
(iv) any Partner may at any time make a pledge to GE
Capital of his or its Partnership Interest or right to receive
distributions (including liquidating distributions) from the
Partnership;
(v) the Class III Limited Partner and any transferee
thereof may Transfer its Class III Partnership Interest without
restriction;
(vi) at any time after the sale of all or substantially
all of the assets of the Partnership the Class IV Limited Partner and
any transferee thereof may Transfer its Class IV Partnership Interest
without restriction; and
(vii) the Class V Limited Partner and any transferee
thereof may Transfer its Class V Partnership Interest without
restriction.
PROVIDED, HOWEVER, that as part of any Transfer made pursuant to this Section
13.2(b), no Original Limited Partner may assign his or its right to any
distribution pursuant to Section 7.2(h) of this Agreement; and PROVIDED,
FURTHER, that no Transfer permitted by this Section 13.2(b) shall be effective
for any purpose unless:
(i) the transferee consents in writing in form reasonably
satisfactory to the New General Partner to be bound by the terms of
this Agreement, including without limitation, the agreements
contained in Article 15, as if it were the assignor;
(ii) the New General Partner consents in writing to the
Transfer, which consent shall be
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given unless such assignment would, in the discretion of the New
General Partner, jeopardize the status of the Partnership as a
partnership for federal income tax purposes, or would violate, or
cause the Partnership to violate, any applicable law or governmental
rule or regulation;
(iii) if reasonably requested by the New General Partner or the
Class IV Limited Partner, an opinion from counsel to the transferee
(which counsel and opinion shall be satisfactory to the New General
Partner or the Class IV Limited Partner, as the case may be) is
furnished to the Partnership stating that, in the opinion of said
counsel, such Transfer would not jeopardize the status of the
Partnership as a partnership for federal income tax purposes, cause
a termination of the Partnership for purposes of the then applicable
provisions of the Code or violate, or cause the Partnership to
violate, any applicable law or governmental rule or regulation.
By executing this Agreement, each Limited Partner shall be deemed to have
consented to any assignment of a Limited Partner Interest consented to by the
New General Partner. Notwithstanding the provisions of this Section 13.2, no
transferee of any Limited Partner Interest shall become a limited partner of the
Partnership except as and to the extent provided in Section 13.6 hereof.
(c) Except for the transactions contemplated by the Partnership
Interests Redemption Agreement, if General Electric Company or any of its
Subsidiaries proposes to enter into any transaction or series of transactions
whereby any Subsidiary of General Electric Company that holds a Class III
Limited Partnership Interest, a Class IV Limited Partnership Interest or a
Class V Limited Partnership Interest (as the case may be) would cease to be a
Subsidiary of General Electric Company, such transaction or series of
transactions shall be deemed to be a Transfer of such Class III Limited
Partnership Interest, Class IV Limited Partnership Interest or Class V Limited
Partnership Interest (as the case may be) and shall be subject to the provisions
of this Section 13.2. If Cablevision or any of its Subsidiaries proposes to
enter into any transaction or series of transactions whereby V Cable would cease
to be a directly or indirectly wholly-owned Subsidiary of Cablevision, such
transaction or series of transactions shall be deemed to be a Transfer of V
Cable's Class I Limited Partnership Interest and Class VI Limited Partnership
Interest.
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(d) Each Limited Partner agrees, upon request of the New General
Partner, to execute such certificates or other documents and perform such acts
as the New General Partner reasonably deems appropriate to preserve the status
of the Partnership as a limited partnership after the completion of any Transfer
of an Interest under the laws of the jurisdiction in which the Partnership is
conducting its operations. For purposes of this Section 13.2, any transfer of
an Interest, whether voluntary or by operation of law, shall be considered a
Transfer.
(e) Each assigning Limited Partner agrees to pay, prior to the time
the New General Partner consents to a Transfer of its Interest, all expenses,
including attorneys' fees, incurred by the Partnership in connection with such
Transfer.
13.3 TRANSFEREE'S RIGHTS. Any purported Transfer of an Interest or
rights attributable to an Interest which is not in compliance with this
Agreement is hereby declared to be null and void and of no force and effect
whatsoever. A permitted transferee of any Interest shall be entitled to receive
distributions of cash or other property from the Partnership and to receive
allocations of the income, gains, credits, deductions, profits and losses of the
Partnership attributable to such Interest after the effective date of the
Transfer, but shall not be entitled to exercise any other of the rights of a
limited partner against the Partnership or any Partner, unless such transferee
shall become a limited partner of the Partnership in accordance with Section
13.6. The "effective date" of a Transfer of an Interest in the Partnership
under the provisions of this Section 13.3, except as otherwise consented to by
the New General Partner, shall be the first day of the next month, following
receipt by the New General Partner of written notice of Transfer and fulfillment
of all conditions precedent to such Transfer provided for in this Agreement.
13.4 ALLOCATIONS AND DISTRIBUTIONS SUBSEQUENT TO TRANSFER. All
profits and losses of the Partnership attributable to any Interest transferred
by reason of a Transfer and any distributions made with respect thereto shall be
allocated (a) in respect of the portion of the Partnership Year ending on the
effective date of the Transfer, to the transferor and (b) in respect of
subsequent periods, to the transferee.
13.5 SATISFACTORY WRITTEN TRANSFER REQUIRED. Anything herein to
the contrary notwithstanding, the Partnership, the General Partners and the
Manager shall be entitled to treat the transferor of an Interest in the
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Partnership as the absolute owner thereof in all respects, and shall incur no
liability for distributions made in good faith to it, until such time as a
written Transfer that conforms to the requirements of this Article 13 has been
received by and recorded on the books of the Partnership and the transferee has
complied with the requirements of Section 13.2(a)(i).
13.6 SUBSTITUTED LIMITED PARTNER. Notwithstanding anything in this
Agreement to the contrary, in addition to the requirements of Section 13.2(a),
the transferee of any limited partner interest in the Partnership shall not
become a substituted limited partner in place of its transferor without the
written consent of the New General Partner, which consent may be granted or
withheld in the sole and absolute discretion of the New General Partner and in
any event will not be given effect unless all of the following conditions are
satisfied:
(a) a duly executed and acknowledged written instrument of
Transfer, being either a certificate evidencing the Interest in the Partnership
owned by the transferor prior to such Transfer or some other instrument approved
by the New General Partner, is filed with the Partnership setting forth the
intention of the transferor that the transferee become a substituted limited
partner in its place;
(b) the transferee agrees in writing to be bound by the terms of
this Agreement and such transferee (other than a transferee of the Class III
Limited Partnership Interest, the Class IV Limited Partnership Interest or the
Class V Limited Partnership Interest) executes an irrevocable Power of Attorney,
satisfactory to the New General Partner, appointing the New General Partner as
the transferee's lawful attorney-in-fact for the purposes specified in Article
15;
(c) the transferor and transferee execute and acknowledge such
other instruments, in form and substance reasonably satisfactory to the New
General Partner, as the New General Partner may deem necessary or desirable to
effect such substitution;
(d) prior to the substitution, the transferring Limited Partner
pays all reasonable expenses, including attorneys' fees, incurred by the
Partnership in connection with such Transfer and substitution; and
(e) if requested by the New General Partner, an opinion from
counsel to the transferee (which opinion shall
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be satisfactory to the New General Partner) is furnished to the Partnership
stating that, in the opinion of said counsel, such substitution would not
jeopardize the status of the Partnership as a partnership for federal income tax
purposes, or cause a termination of the Partnership for the purposes of the
then-applicable provisions of the Code, or violate, or cause the Partnership to
violate, any applicable law or governmental rule or regulation.
By executing this Agreement, each Limited Partner shall be deemed to
have consented to any substitution of a transferee in the place and stead of a
transferring Limited Partner permitted by the New General Partner and, if
required by Section 13.6 hereof, the Class IV Limited Partner.
13.7 SUBSTITUTION REQUIRED FOR VOTE. Unless and until a transferee
of an Interest becomes a substituted Limited Partner, such transferee shall not
be entitled to exercise or withhold any vote or consent with respect to such
Interest.
13.8 EFFECTIVE DATE; SCHEDULE A. The effective date of a
substitution shall be the first day of the next month following receipt by the
New General Partner of the instrument of assignment effecting substitution and
fulfillment of all conditions precedent to such substitution provided for in
this Agreement. Schedule A hereto shall be automatically amended upon the
effective date of each such substitution to reflect such substitution.
13.9 DEATH, BANKRUPTCY, DISSOLUTION OR INCAPACITY OF A LIMITED
PARTNER. The death, Bankruptcy, dissolution or adjudicated incompetency of a
Limited Partner shall not cause a dissolution of the Partnership, but the rights
of such Limited Partner to share in the profits and losses of the Partnership,
to receive distributions and to assign its Interest pursuant to Section 13.2(a)
or cause the substitution of a substitute limited partner pursuant to
Section 13.6 shall, on the happening of such an event, devolve on its successor,
executor, administrator, guardian, conservator or other legal representative for
the purpose of settling its estate or administering its property, or in the
event of the death of one whose interest is held in joint tenancy, pass to the
surviving joint tenant, subject to the terms and conditions of this Agreement,
and the Partnership shall continue as a limited partnership. Such successor or
Personal representative, however, shall become a substituted limited partner
only as provided in Section 13.6 with respect to an assignee of a Limited
Partner's Interest. The successor or estate of the Limited Partner shall be
liable
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for all the obligations of the deceased, bankrupt, dissolved or incapacitated
Limited Partner.
13.10 OPTION ON THE CLASS II PARTNERSHIP INTERESTS. Subject to the
provisions of Section 9.11 of this Agreement, the Class IV Limited Partner or
its designee, which designee shall be either (i) a direct or indirect Subsidiary
of General Electric Company, or (ii) satisfactory to the New General Partner in
its sole discretion, shall have the option, exercisable at any time upon not
less than five (5) business days' notice to the Class II Partners, to purchase
from the Class II Partners all of the Class II Partnership Interests for an
aggregate of $4 million in cash LESS any amounts previously received by the
Class II Partners pursuant to Sections 6.11 and 7.2(b) hereof, such amount to be
allocated among the Class II Partners in accordance with their relative
Percentage Interests; PROVIDED, however, that as long as the Partnership shall
not have defaulted under the Partnership Interests Redemption Agreement or such
agreement has not terminated, the Class IV Limited Partners agree not to
exercise or transfer to any person (other than the New General Partner or an
affiliate thereof) the option granted pursuant to this Section 13.10.
13.11 RIGHTS SUBSEQUENT TO TRANSFER OF INTERESTS
Upon the Transfer of any Partner's Interest or Interests, as the case may
be, all of such Partner's rights under this Agreement, except for those rights
held by a former Partner with respect to the time such person was a partner,
shall be extinguished.
ARTICLE 14
DISSOLUTION
14.1 EVENTS OF DISSOLUTION.
(a) The Partnership shall continue until December 31, 2030.
Notwithstanding the foregoing, the Partnership shall be dissolved upon the
earliest to occur of the following events:
(i) the removal, withdrawal, resignation, liquidation, event
of Bankruptcy or any other event that causes a General Partner to
cease to be a general partner of the Partnership (an "Event of
Withdrawal") of any General Partner (subject to
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the right to continue the Partnership pursuant to the second proviso
below);
(ii) the Partnership's operations terminate and the Partnership
sells, exchanges or otherwise disposes of all or substantially all
of its assets, which shall cause an immediate dissolution of the
Partnership; or
(iii) the New General Partner and the Class IV Limited Partner
elect to dissolve the Partnership;
PROVIDED, HOWEVER, that upon the occurrence of an Event of Withdrawal, the
Partnership shall not be dissolved if (i) at the time of such Event of
Withdrawal there is at least one remaining General Partner who agrees to carry
on the business of the Partnership (and such remaining General Partner is hereby
authorized to carry on the business of the Partnership upon such an Event of
Withdrawal), or (ii) within ninety (90) days after such Event of Withdrawal all
Partners agree in writing to continue the business of the Partnership and to the
appointment, effective as of the date of such Event of Withdrawal, of one or
more general partners of the Partnership.
(b) In the event of the continuation of the Partnership as provided
in this Section 14.1, the successor general partner(s) will exercise the rights,
powers and obligations hereunder of the Former General Partner (excluding,
however, any obligations of the Former General Partner to the Partners
occasioned by any breach or other violation by the Former General Partner of the
terms of this Agreement or by the Former General Partner's resignation or
withdrawal as general partner in violation of this Agreement), and shall have
such interest in the profits, losses and distributions of the Partnership as
shall be agreed upon by the successor general partner(s) and the Class III
Limited Partner, the Class IV Limited Partner and the Class V Limited Partner
upon the execution by such successor general partner(s) of a written acceptance
of this Agreement.
14.2 FINAL ACCOUNTING. Upon the dissolution of the Partnership and
the failure to continue the Partnership as provided in Section 14.1, a proper
accounting shall be made by the Partnership's independent public accountants
from the date of the last previous accounting to the date of dissolution.
14.3 LIQUIDATION AND DISTRIBUTION OF ASSETS. Upon the dissolution
of the Partnership, the Class I General
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Partner or a liquidating trustee appointed by the Class I General Partner, with
the approval (subject to the provisions of Section 9.11 of this Agreement) of
the Class IV Limited Partner, shall proceed to sell or liquidate the
Partnership's assets within a reasonable time and, after paying or making
reasonable provision for all liabilities (including contingent, conditional or
unmatured liabilities known to the Partnership) to creditors, including Partners
who are creditors, of the Partnership, shall distribute the Partnership's cash
and other assets among the Partners in accordance with the provisions of this
Section 14.3.
14.3.1 The proceeds derived from the sale or liquidation of the
Partnership's assets, together with any assets to be distributed in kind, shall
be distributed to the Partners in the amounts and order of priority set forth in
Section 7.2 hereof; PROVIDED, HOWEVER, that no Partner shall receive a
distribution of an amount which exceeds its positive Capital Account balance
(determined as provided below). If a Partner would be entitled to receive a
distribution which exceeds its positive Capital Account balance, such excess
amount shall instead be distributed (i) first, to Partners whose Capital
Accounts shall have positive balances (after taking into account all other
distributions to be made under this Section 14.3.1 and Section 14.3.2), in the
proportions thereof, until such positive balances shall have been eliminated;
and (ii) the balance, if any, in accordance with the Partners' respective
Percentage Interests.
14.3.2 For purposes of this Section 14.3, (a) Net Income and Net
Loss shall include, in the case of assets distributed in kind, the gain or loss
that would have been recognized by the Partnership if such assets were sold at
their fair market value in a fully taxable transaction, and (b) the Partners'
Capital Accounts shall be determined after making all allocations of Net Income
or Net Loss, and all special allocations required pursuant to Article 8 hereof,
for the year ending with the liquidation of the Partnership and after taking
into account all Capital Contributions or other distributions made, or otherwise
required to be made, for such year.
14.4 CANCELLATION OF CERTIFICATE. Upon the completion of the
distribution of Partnership assets as provided in Section 14.3, or at such other
time as may be required by law, a certificate of cancellation, signed by all
General Partners or, if the General Partners are not winding up the
Partnership's affairs, then by the liquidating trustee, shall be filed with the
Secretary of State of the State of Delaware. The liquidating trustee
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shall take such other actions as may be necessary or appropriate to terminate
the Partnership.
ARTICLE 15
POWER OF ATTORNEY
15.1 APPOINTMENT OF NEW GENERAL PARTNER. Each Limited Partner
(other than the Class I Limited Partner, the Class III Limited Partner, the
Class IV Limited Partner, the Class V Limited Partner and the Class VII Limited
Partner), by the execution of this Agreement, does irrevocably constitute and
appoint the New General Partner, with full power of substitution, as its true
and lawful attorney, in its name, place and stead, to execute, acknowledge,
swear to, deliver, record and/or file, as appropriate (a) this Agreement and any
amendment and/or restatement to this Agreement, (b) the original Certificate and
all amendments thereto required or permitted by law or the provisions of this
Agreement, (c) all certificates and other instruments deemed necessary or
advisable by the New General Partner to carry out the provisions of this
Agreement or to qualify or continue the Partnership as a limited partnership or
partnership wherein the Limited Partners have limited liability in the states
where the Partnership may be conducting its operations, (d) all instruments that
the New General Partner deems appropriate to reflect a change or modification of
this Agreement or the Partnership in accordance with this Agreement, including,
without limitation, the substitution of assignees as substituted limited
partners pursuant to Section 13.6, (e) all conveyances and other instruments
deemed necessary or advisable by the New General Partner to effect the
dissolution and termination of the Partnership, (f) all fictitious or assumed
name certificates required or permitted to be filed on behalf of the Partnership
and (g) all other instruments or papers which may be required or permitted by
law to be filed on behalf of the Partnership.
15.2 DURATION OF POWER. The power of attorney granted pursuant to
Section 15.1 (i) is coupled with an interest and shall be irrevocable and
survive the death, incompetency, Bankruptcy or dissolution of the grantor; (ii)
may be exercised by the New General Partner either by signing separately as
attorney-in-fact for each Limited Partner (other than the Class I Limited
Partner, the Class III Limited Partner, the Class IV Limited Partner, the Class
V Limited Partner and the Class VII Limited Partner) or, after listing all of
the Limited Partners (other than the Class I Limited Partner, the Class III
Limited Partner, the Class IV Limited Partner, the Class V Limited Partner and
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the Class VII Limited Partner) executing an instrument, by signature of the New
General Partner acting as attorneys-in-fact for all of them; and (iii) shall
survive the delivery of an assignment by a Limited Partner (other than the Class
I Limited Partner, the Class III Limited Partner, the Class IV Limited Partner,
the Class V Limited Partner and the Class VII Limited Partner) of the whole or
any fraction of its Partnership Interest, except that, where the assignee of the
whole of such Limited Partner's Partnership Interest has been approved by the
New General Partner and the Class IV Limited Partner, as the case may be, for
admission to the Partnership as a substituted limited partner, the power of
attorney of the assignor shall survive the delivery of such assignment for the
sole purpose of enabling the New General Partner to execute, acknowledge, swear
to, deliver, record and file any instrument necessary or appropriate to effect
such substitution. In the event of any conflict between this Agreement and any
document, instrument, conveyance or certificate executed or filed by the New
General Partner pursuant to such power of attorney, this Agreement shall
control.
15.3 FURTHER ASSURANCES. Each Limited Partner shall execute and
deliver to the New General Partner, within five days after the receipt of the
New General Partner's request therefor, such further designations, powers of
attorney and other instruments as the New General Partner deems reasonably
necessary or appropriate to carry out the provisions of this Agreement.
ARTICLE 16
AMENDMENTS TO AGREEMENT
Except for Section 14.1 hereof, which may only be amended with the
approval or written consent of all of the Partners, this Agreement may be
amended with the approval or written consent of the New General Partner, the
Class I Limited Partner, the Class III Limited Partner, the Class IV Limited
Partner, the Class V Limited Partner and the Class VII Limited Partner.
Notwithstanding anything to the contrary in this Article 16, without the
approval of (i) a majority in Percentage Interest of the Class II Partners
affected thereby, no amendment shall change, alter or modify the provisions of
Section 6.6, Section 6.7, Section 6.11, Section 7.2(a), Section 7.2(b),
Section 7.2(f), Section 10.1 or the provisions of this Article 16 in an
adverse manner to such affected Class II Partner or the provisions of Article 9
in a manner materially adverse to such affected Class II Partner, and (ii) the
Existing General Partner, no amendment
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shall change, alter or modify the provisions of (A) Section 7.2 so as to add any
additional cash distributions prior to the distribution provided for in Section
7.2(b), (B) Section 8.2 so as to allocate additional USC Net Income to the
Existing General Partner or the Class II Limited Partner or (C) Section 6.4 or
Article 8 in an adverse manner to the Existing General Partner or to the Class
II Limited Partners. The New General Partner shall give written notice to all
Partners promptly after any amendment adopted in accordance with this Article 16
has become effective.
ARTICLE 17
MEETINGS OF THE PARTNERS
17.1 MEETINGS. Meetings of the Limited Partners, for any purpose
permitted by this Agreement, may be called by the New General Partner from time
to time, in its discretion. Such meeting shall be held at the principal office
of the Partnership, or at such other place as may be designated by the New
General Partner. Notice of any such meeting shall be delivered to all Partners
in the manner prescribed in Article 18 not fewer than fifteen days nor more than
sixty days before the date of such meeting. The notice shall state the place,
date, hour and purpose or purposes of the meeting. At each meeting of the
Limited Partners, the Limited Partners present or represented by proxy shall
adopt such rules for the conduct of such meeting as they shall deem appropriate.
The expenses of any such meeting, including the cost of providing notice
thereof, shall be borne by the Partnership.
17.2 PROXY. Each Limited Partner may authorize any Person or
Persons to act for it by proxy in all matters in which a Limited Partner is
entitled to participate. Every proxy must be signed by the Limited Partner or
its attorney-in-fact (other than the New General Partner). No proxy shall be
valid after the expiration of six months from the date thereof. Every proxy
shall be revocable by the Limited Partner executing it.
17.3 WRITTEN CONSENTS. Whenever Partners are required or permitted
to take any action by vote or at a meeting, such action may be taken without a
meeting, without prior notice and without a vote, if a written consent setting
forth the action so taken is signed by the Limited Partners owning not less than
the minimum Interests that would be necessary to authorize or take such action
by vote or at a meeting. Notice of any action so taken by written consent shall
be given by the New General Partner to all
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Partners, in the manner prescribed in Article 18, promptly after the taking of
such action.
ARTICLE 18
NOTICES
18.1 METHOD FOR NOTICES. All notices and other communications
hereunder shall be given in writing and shall be deemed to have been duly given
if delivered personally or by overnight courier with receipt acknowledged, upon
such delivery, if transmitted by telecopier to the number(s) designated either
below the signature of each such Person or on Schedule A hereto, upon receipt,
or if mailed by registered or certified mail, postage prepaid, return receipt
requested, five days after being placed in the mail, to the address(es)
designated either below the signature of each such Person or on Schedule A
hereto, or to such other address(es) as any party may specify to the Partnership
in writing from time to time.
18.2 ROUTINE COMMUNICATIONS. Notwithstanding the provisions of
Section 18.1, routine communications such as distribution checks or financial
statements of the Partnership may be sent by first-class mail, postage prepaid.
18.3 COMPUTATION OF TIME. In computing any period of time under
this Agreement, the day of the act, event or default from which the designated
period of time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, Sunday or legal holiday
in the State of Delaware, in which event the period shall run until the end of
the next day which is not a Saturday, Sunday or legal holiday in the State of
Delaware.
ARTICLE 19
INVESTMENT REPRESENTATIONS
19.1 INVESTMENT PURPOSE. Each Limited Partner represents and
warrants to the General Partners that it has acquired its Partnership Interests
for its own account, for investment only and not with a view to the distribution
thereof. Each Limited Partner recognizes that an investment in the Partnership
is speculative and involves certain risks.
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19.2 INVESTMENT RESTRICTION. Each Limited Partner recognizes that
(a) the Interests have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon an exemption from such
registration, and agrees that it will not sell, offer for sale, transfer, pledge
or hypothecate its Interests in the absence of an effective registration
statement covering such Interests under the Securities Act, unless such sale,
offer of sale, transfer, pledge or hypothecation is exempt from registration for
any proposed sale and (b) the restrictions on transfer may severely affect the
liquidity of its investment.
ARTICLE 20
GENERAL PROVISIONS
20.1 ENTIRE AGREEMENT. This Agreement, the Partnership Interests
Redemption Agreement and the Business Plan, constitutes the entire agreement
among the parties thereto with respect to the subject matter thereof, and
supersedes any prior agreement or understanding among the parties thereto with
respect to the subject matter thereof.
20.2 AMENDMENT; WAIVER. Except as provided otherwise herein, this
Agreement may not be amended nor may any rights hereunder be waived except by an
instrument in writing signed by the party sought to be charged with such
amendment or waiver.
20.3 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to the provisions, policies or principles thereof relating to
choice or conflict of laws.
20.4 BINDING EFFECT. Except as provided otherwise herein, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, heirs, successors and
assigns.
20.5 COUNTERPARTS. This Agreement may be executed either
personally or by an attorney-in-fact, in any number of counterparts, each of
which shall be considered an original.
20.6 SEPARABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to
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the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
20.7 HEADINGS. The sections and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
20.8 GENDER AND NUMBER. Whenever required by the context hereof,
the singular shall include the plural and the plural shall include the singular.
The neuter gender shall include the feminine and masculine genders.
20.9 WAIVER OF PARTITION. Each Partner hereby irrevocably waives,
during the term of the Partnership, any right that he may have to maintain any
action for partition with respect to any Partnership property.
20.10 PARTNERSHIP TAX REPORTING. All parties to this Agreement
agree that, for all federal, state and local income tax purposes, including,
without limitation, the filing of all tax returns, reports or information
returns or communication with the Internal Revenue Service, they shall not take
a position which is inconsistent with the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
either directly or by an attorney-in-fact, to be effective as of the day and
year first above written.
GENERAL PARTNERS: LIMITED PARTNERS:
V CABLE GP, INC. Those Persons named on
Schedule A hereto
By:/s/ Xxxxx X'Xxxxx /s/ Xxxxxx X. Xxxxx, Xx.
----------------- ------------------------
Name: Xxxxx X'Xxxxx Xxxxxx X. Xxxxx, Xx.
Title:
U.S. CABLE PARTNERS /s/ I. Xxxxxx Xxxxxxxx
----------------------
I. Xxxxxx Xxxxxxxx
By: IMP Cable Management, Inc., POMPADUR TRUST NO. 1
a general partner
By:/s/ I. Xxxxxx Xxxxxxxx By:/s/ Xxxxxx Xxxxxxxx
---------------------- -------------------
Name: I. Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx, Trustee
Title: President
By:/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx, Trustee
By:___________________________
Xxxx Xxxxxxxx, Trustee
By: Golden Holdings Inc., V CABLE, INC.
a general partner
By:I. Xxxxxx Xxxxxxxx By: X. X'Xxxxx
------------------ ----------
Name: Name:
Title: Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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THE RULE TRUST DATED
June 11, 1987
By: /s/ Xxxxx X. Rule
------------------
Xxxxx X. Rule, Trustee
VC HOLDING, INC.
By: /s/ Xxxxx X'Xxxxx
-----------------
Name: Xxxxx X'Xxxxx
Title:
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SCHEDULE A
U.S. CABLE TELEVISION GROUP, L.P.
Names of Partners, Type of Partner,
Percentage Interest and Class of Partnership Interest
Type of
Partner (i.e., Initial
general or Percentage Class of
Partner limited) Interest Interests
------- -------------- ---------- ---------
V Cable GP, Inc. Class I General 1% Class I General
c/o Cablevision Partner, a general Partnership
Systems Corporation partner Interest
Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx
00000
Attention: General
Counsel
Telecopy: (516)
496-1780
V Cable, Inc. Class I Limited 19% Class I Limited
c/o Cablevision Partner, a limited Partnership
Systems Corporation partner Interest
Xxx Xxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx
00000
Attention: General
Counsel
Telecopy: (516)
496-1780
U.S. Cable Partners Class II General 1% Class II General
000 Xxxx Xxxxxx Partner, a general Partnership
New York, partner Xxxxxxxx
Xxx Xxxx 00000
Attention: I. Xxxxxx
Xxxxxxxx
Telecopy: (212)
980-8374
I. Xxxxxx Xxxxxxxx Class II Limited 2.71586% Class II Limited
00 Xxxxxxxx Xxxxx Partner, a limited Partnership
Greenwich, partner Xxxxxxxx
XX 00000
Telecopy: ( )
[ ]
A-1
Type of
Partner (i.e., Initial
general or Percentage Class of
Partner limited) Interest Interests
------- -------------- ---------- ---------
The Rule Trust dated Class II Limited 3.44556% Class II Limited
June 11, 1987 Partner, a limited Partnership
c/o Hayes, Hume, partner Interest
Petas, Xxxxxxxx &
Cohanne
00000 Xxx Xxxxxx
Xxxx. Xxxxx 000
Xxx Xxxxxxx,
Xxxxxxxxxx 00000
Telecopy:
Attention : Xxxx
Xxxx, Esq.
Pompadur Trust No. 1 Class II Limited 0.72898% Class II Limited
000 Xxxx Xxxxxx Partner, a limited Partnership
New York, partner Xxxxxxxx
Xxx Xxxx 00000
Attention: I. Xxxxxx
Xxxxxxxx
Telecopy: (212)
[ ]
Xxxxxx X. Xxxxx, Xx. Class II Limited 0.10960% Class II Limited
c/o Commonwealth Partner, a limited Partnership
Partners partner Interest
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy:
General Electric Class III Limited 0% Class III
Capital Corporation Partner, a limited Limited
000 Xxxx Xxxxx Xxxx partner Patnership
Stamford, Connecticut Interest
06902
Attention: Region
Operations Manager
and Xxxx Xxxxxx
Telecopy: (203)
357-4025 and (203)
357-3047,
respectively.
A-2
Type of
Partner (i.e., Initial
general or Percentage Class of
Partner limited) Interest Interests
------- -------------- ---------- ---------
General Electric Class IV Limited 72% Class IV Limited
Capital Corporation Partner, a limited Partnership
000 Xxxx Xxxxx Xxxx partner Interest
Xxxxxxxx, Xxxxxxxxxxx
00000
Attention: Region
Operations Manager
and Xxxx Xxxxxx
Telecopy: (203)
357-4025 and (203)
357-3047,
respectively
General Electric Class V Limited 0% Class V Limited
Capital Corporation Partner, a limited Partnership
000 Xxxx Xxxxx Xxxx partner Interest
Xxxxxxxx, Xxxxxxxxxxx
00000
Attention: Region
Operation Manager and
Xxxx Xxxxxx
Telecopy: (203)
357-4025 and (203)
357-3047,
respectively
VC Holding, Inc. Class VII Limited 0% Class VII
c/o Cablevision Partner, a limited Limited
Systems Corporation partner Partnership
Xxx Xxxxx Xxxxxxxxx Xxxxxxxx
Xxxxxxxx, Xxx Xxxx
00000
Attention: General
Counsel
Telecopy: (516)
496-1780
A-3
SCHEDULE B
CABLE BROKERS
Communications Equity Associates Inc.
Xxxxxxx & Associates
Xxxxxx Capital Corporation
Lazard Freres & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc.
B-1
SCHEDULE C
EXEMPT LIMITED PARTNERS
General Electric Capital Corporation, as Class III Limited Partner,
Class IV Limited Partner and Class V Limited Partner.
C-1
