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EXHIBIT 10.60
CONSENT AND FIRST AMENDMENT OF AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP FOR HALCYON COMMUNICATIONS LIMITED PARTNERSHIP
THIS CONSENT AND FIRST AMENDMENT, dated as of January 31,
1996, is made and entered into by and among the undersigned parties.
Halcyon Communications Limited Partnership, an Oklahoma
limited partnership (the "Partnership"), was formed under the Oklahoma Revised
Limited Partnership Act pursuant to a Limited Partnership Agreement dated as of
January 1, 1994 (the "Original Agreement") among Halcyon Communications, Inc.,
an Oklahoma corporation ("HCI"), TCI Cablevision of Nevada, Inc., a Nevada
corporation ("TCINV"), TCI Cablevision of Utah, Inc., a Utah corporation
("TCIU"), TEMPO Cable, Inc., an Oklahoma corporation ("Tempo"), American
Televenture of Minersville, Inc., a Colorado corporation ("ATM"), and pursuant
to a Certificate of Limited Partnership filed with the Oklahoma Secretary of
State on January 6, 1994. The Original Agreement was thereafter amended and
restated by an Amended and Restated Limited Partnership Agreement dated as of
June 22, 1994 (the "Restated Partnership Agreement"), among the parties to the
Original Agreement.
The undersigned parties desire to (i) consent to the
assignment to Xxxxxx Communications Associates, L.L.C., a Colorado limited
liability company, ("FCA") by each of TCINV, TCIU and Tempo of one-third of
their respective limited partnership interests in the Partnership, (ii) consent
to the assignment by ATM to FCA of one-third of ATM's general partnership
interest in the Partnership and the conversion of such assigned interest into a
limited partnership interest, (iii) consent to the grant to FCA by TCINV, TCIU,
Tempo and ATM of options to acquire the entire balances of their respective
partnership interests in the Partnership and any future exercise of such
options and (iv) consent to the admission of FCA to the Partnership as a
limited partner. The undersigned parties also desire to amend the Restated
Partnership Agreement in certain respects.
Therefore, for and in consideration of the premises and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged by each party, the parties hereto agree as follows:
1. Certain Consents and Agreements; Section 754 Election.
(a) HCI, ATM, TCINV, TCIU and Tempo, in their capacities
as, and constituting all of, the partners of the Partnership hereby (i) consent
to (A) the sale to FCA, pursuant to the Agreement of Purchase and Sale of
Partnership Interests, dated as of the date hereof, among the parties hereto
(the "Purchase Agreement"), of the Purchased Interest (as defined in the
Purchase Agreement) of each of ATM, TCINV, TCIU and Tempo, (B) the grant to FCA
by each of ATM, TCINV, TCIU and Tempo of options to acquire the entire balances
of their respective partnership interests in the Partnership pursuant to
separate Option Agreements, each substantially in the form of Exhibit B to the
Purchase Agreement
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(collectively, the "Option Agreements"), (C) the conversion of the Purchased
Interest of ATM from a general partnership interest into a limited partnership
interest in the Partnership, (D) the admission of FCA, as the holder of the
Purchased Interests of TCINV, TCIU and Tempo and the converted Purchased
Interest of ATM, to the Partnership as a limited partner effective as of the
date hereof and (E) any future exercise by FCA (or any of its permitted
assignees) of its option and rights under each of the Option Agreements
pursuant to the terms thereof and, upon such exercise, the transfer of the
partnership interests and consummation of the other transactions contemplated
thereby (including, without limitation, the withdrawal contemplated by, the
last sentence of paragraph 3(c) of each such Option Agreement); and (ii) agrees
that the Partnership shall file, in a timely manner for the tax year of the
Partnership in which the sale referred to in subclause (i)(A) of this sentence
occurs, an election, pursuant to Section 754 of the Internal Revenue Code of
1986, as amended (the "Code") and applicable Treasury Regulations, to have the
Partnership's assets adjusted as provided in Section 743 of the Code, and if
requested by FCA (or any of its permitted assignees) upon any purchase of any
additional partnership interest or interests in the Partnership in connection
with the exercise of any option under any of the Option Agreements, also shall
make such election in a timely manner for the tax year of the Partnership in
which such exercise occurs. FCA hereby agrees to be admitted to the Partnership
as a Limited Partner and, as such, to be bound by the provisions of the
Restated Partnership Agreement, as amended hereby.
(b) Without in any way limiting the generality of the
definitions of the terms "Partnership Interest" and "Purchased Interest" in the
Purchase Agreement or the definition of "Option Interest" in any of the Option
Agreements, the parties acknowledge, confirm and agree that (i) for purposes of
Section 12.6 of the Restated Partnership Agreement and any other provision of
the Restated Partnership Agreement pursuant to which the rights of a partner of
the Partnership are based upon or determined by reference to such partner's
initial or additional Capital Contributions (as defined in the Restated
Partnership Agreement) as of any time of determination, FCA shall be deemed to
have made (in addition to any Capital Contributions actually made by it) a pro
rata portion of all Capital Contributions made by ATM, TCINV, TCIU or Tempo
prior to the date hereof, with such portion being equal to the aggregate
percentage of the Partnership Interest of ATM, TCINV, TCIU or Tempo (as the
case may be) which FCA shall have acquired, at or before such time, pursuant to
the Purchase Agreement or the applicable Option Agreement; and (ii) as of the
date hereof, automatically by virtue of the sale of the Purchased Interests to
FCA, all rights of ATM under or by virtue of the Amended and Restated
Management Agreement, dated as of June 22, 1994, between the Partnership and
HCI, as "Manager," as heretofore amended (the "Management Agreement") shall be
rights of each of ATM and FCA; provided, however, that in the event of the
removal of Manager pursuant to Section 5.2 by the mutual consent of ATM and
FCA, then, subject to the last sentence of Section 5.2 of the Management
Agreement, ATM shall serve as manager and the Managing Partner of the
Partnership unless ATM and FCA agree to select a new manager or new Managing
Partner.
2. Amendments to Restated Partnership Agreement. The
undersigned parties hereby agree that, effective as of the date hereof, the
Restated Partnership Agreement is
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hereby amended as follows:
(a) Section 1.3 of the Restated Partnership Agreement is
amended to read in its entirety as follows:
"1.3 TCI Cablevision of Nevada, Inc., a
Nevada corporation, TCI Cablevision of Utah, Inc., a
Utah corporation, TEMPO Cable, Inc., an Oklahoma
corporation, and Xxxxxx Communications Associates,
L.L.C., a Colorado limited liability company, are
sometimes hereinafter referred to as TCI/Nevada,
TCI/Utah, TEMPO and FCA, respectively."
(b) Section 2.3 of the Partnership Agreement is amended
to read in its entirety as follows:
"2.3 'Affiliate,' when used with respect to
a specified Person, means any other Person that
directly, indirectly or through one or more
intermediaries Controls, is Controlled by or is under
Common Control with such Person. For purposes of the
foregoing, 'Control,' as to any Person, means the
possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of such Person (whether through ownership of
securities, partnership interests or other ownership
interests, by contract, by partnership or involvement
in the board of directors, management committee or
other management structure of such Person, or
otherwise). The terms 'Controlled,' 'Controlling' and
similar variations shall have correlative meanings."
(c) The defined term "Initial Limited Partners" set forth
in Section 2.18 of the Restated Partnership Agreement is amended to read in its
entirety as follows:
"2.18 'Initial Limited Partners' means
TCI/Nevada, TCI/Utah and TEMPO."
(d) The defined term "Limited Partner" set forth in
Section 2.19 of the Restated Partnership Agreement is amended to read in its
entirety as follows:
"2.19 'Limited Partner' means each Initial
Limited Partner, FCA and each other Person, if any,
who is admitted as a successor or additional limited
partner of the Partnership in accordance with this
Agreement, in each case unless and until such Person
ceases to be a limited partner of the Partnership in
accordance with this Agreement."
(e) Section 21 of the Restated Partnership Agreement is
amended to read in its entirety as follows:
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"Section 21. Assignability of Partnership Interests;
Admission of Additional Partners.
"21.1 No Partner shall mortgage, pledge,
hypothecate, transfer, sell, assign or otherwise
dispose of all or any part of its interest in the
Partnership, whether voluntarily, by operation of law
or otherwise, orany right, title or interest in or to
such interest without obtaining the prior written
consent of the other Partners, except as provided for
in this Agreement. Notwithstanding the foregoing, ATM
or any Limited Partner shall have the right, in its
sole discretion, to transfer all or any part of its
interest in the Partnership to (i) Tele-
Communications, Inc., a Delaware corporation, or any
Affiliate thereof or (ii) FCA or any FCA Permitted
Transferee (as hereinafter defined). For purposes of
this Agreement, the term 'FCA Permitted Transferee'
shall mean (i) any Affiliate of Xxxxx X. Xxxxxx,
currently a resident of Littleton, Colorado
('Xxxxxx'), (ii) any member of Xxxxxx'x immediate
family (i.e., wife, parents, children, including
those adopted before the age of 18, grandchildren,
brothers, sisters, and the spouses or children of the
foregoing), (iii) any custodian under the Uniform
Gifts to Minors Act or similar fiduciary for the
exclusive benefit of Xxxxxx'x children during their
lives, (iv) in the event of Xxxxxx'x adjudication of
incompetency, his legal representatives, (v) in the
event of Xxxxxx'x death, his executors or the
administrators of his estate and his heirs who are
members of his immediate family, and (v) any trust
described in Section 664 of the Code of which Xxxxxx
or one or more members of his immediate family (and
no other persons) are income beneficiaries. Subject
to the last sentence of this Section 21.1, in the
event of a permitted transfer of any interest in the
Partnership, the transferee (other than, with respect
to clauses (1) of this sentence below, a transferee
who was already a partner prior to the permitted
transfer) shall, by written instrument in form and
substance reasonably satisfactory to the
non-transferring Partners (i) agree to become a
Partner of the same class as the transferor and
accept and adopt the terms and provisions of this
Agreement and (ii) assume the obligations of the
transferor Partner under this Agreement with respect
to the transferred partnership interest. If required
by the nontransferring Partners, the transferee shall
deliver to the Partnership an opinion, reasonably
satisfactory in form and substance to the
nontransferring Partners, of counsel reasonably
satisfactory to the nontransferring Partners to the
effect that the transfer is in compliance with
applicable state and Federal securities laws. Upon
completion of any permitted transfer in accordance
with the foregoing, the transferee (if not already a
Partner) shall be admitted as a substituted Partner
in the place and stead of the transferor Partner with
respect to the transferred partnership interest
(subject to the last sentence of this Section 21.1),
without any further action, and if such transfer is
of the
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entire partnership interest of the transferor
Partner, such transferor Partners shall be deemed to
have withdrawn from the Partnership without further
action. If the partnership interest transferred in a
permitted transfer is a general partnership interest,
the transferred interest shall be converted into a
limited partnership interest if and to the extent
requested by the transferor Partner and the
transferee.
"21.2 Except for the transferee of a
partnership interest permitted by and in accordance
with Section 21.1, no Person shall be admitted as a
general or limited partner of the Partnership without
the prior written consent of all the Partners."
(f) Section 24.1 of the Restated Partnership Agreement is
amended by (i) deleting the word "or" at the end of subsection 24.1.2, (ii)
redesignating subsection 24.1.3 thereof as subsection 24.1.4, and (iii) adding,
immediately after subsection 24.1.2, a new subsection 24.1.3 which shall read
in its entirety as follows:
"24.1.3 The sale of all or substantially all
of the Partnership Assets: or"
(g) Clause (i) of the last sentence of Section 24.2 is
amended to read in its entirety as follows:
"(i) is an Affiliate of Tele-
Communications, Inc., a Delaware corporation ('TCI')
or is an Affiliate of Xxxxx X. Xxxxxx,"
(h) Section 25.4 of the Restated Partnership Agreement is
amended by substituting the word "Person" for the word "entity" appearing
therein and by adding at the end of clause (ii) thereof the following:
"or (iii) FCA or an FCA Permitted Transferee."
(i) Subsection 25.5.2 of the Restated Partnership
Agreement is amended to read in its entirety as follows:
"25.5.2 If to ATM or any Limited Partner
other than FCA, to such Person at:
Terrace Tower II
0000 XXX Xxxxxxx
Xxxxxxxxx, XX
00000-0000
Attention: General Counsel"
(j) Section 25.5 of the Restated Partnership Agreement is
further amended by adding a new subsection 25.5.3 which shall read in its
entirety as follows:
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"25.5.3 If to FCA, to it at:
0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000"
3. Reaffirmation. The undersigned parties hereby
acknowledge that each of the Restated Partnership Agreement and the Management
Agreement, in each case as amended, modified or supplemented hereby, remains in
full force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned parties have duly executed
and delivered this Consent and First Amendment as of the date first above
written.
GENERAL PARTNERS:
HALCYON COMMUNICATIONS, INC. AMERICAN TELEVENTURE OF
MINERSVILLE, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
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Name: XXXXXX X. XXXXX Name: XXXXXXX X. XXXXX
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Title: PRESIDENT Title:
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EXISTING LIMITED PARTNERS:
TCI CABLEVISION OF NEVADA, INC. TCI CABLEVISION OF UTAH, INC.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX Name: XXXXXXX X. XXXXX
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Title: Title:
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TEMPO CABLE, INC. NEW LIMITED PARTNER:
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXX X. XXXXXX
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Name: XXXXXXX X. XXXXX Xxxxx X. Xxxxxx, Member
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Title:
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