EXHIBIT 10.17
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AGREEMENT
OF LIMITED PARTNERSHIP
OF
CHARTER COMMUNICATIONS ENTERTAINMENT II, L.P.
Dated as of September 29, 1995
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Table of Contents
Page
Article I
Formation of the Partnership.................................... 1
1.1 Formation.................................................. 1
1.2 Partnership Name........................................... 1
1.3 Purpose.................................................... 1
1.4 Place of Business.......................................... 1
1.5 Registered Office and Registered Agent..................... 2
1.6 Term....................................................... 2
1.7 Partnership Powers......................................... 2
Article II
Capital......................................................... 3
2.1 Capital Contributions...................................... 3
2.2 Additional Capital......................................... 3
2.3 Liability, etc............................................. 4
2.4 Withdrawal of Capital...................................... 4
2.5 Priority................................................... 4
2.6 Capital Accounts........................................... 4
2.7 Adjustments................................................ 4
Article III
Accounting, Distributions and Taxes................................... 5
3.1 Allocations of Net Profits and Net Losses........................ 5
3.2 Qualified Income Offsets, Restorative
Allocations...................................................... 5
3.3 Partnership Minimum Gain......................................... 6
3.4 Minimum Gain Attributable to Partner
Nonrecourse Debt................................................. 6
3.5 Nonrecourse Deductions........................................... 7
3.6 Partner Nonrecourse Deductions................................... 7
3.7 Section 754 Adjustments.......................................... 7
3.8 Tax Allocations; Section 704(c).................................. 7
3.9 Distributions.................................................... 8
3.10 Accounting Method............................................... 8
3.11 Certain Federal Income Tax Matters.............................. 8
3.12 Election under Section 754...................................... 9
3.13 Tax Withholdings................................................ 9
Article IV
General Partner....................................................... 9
4.1 Management....................................................... 9
4.2 Reliance on Authority of General Partner......................... 10
4.3 Interested Party Contracts....................................... 10
4.4 Expenditures By General Partner.................................. 10
4.5 Other Relationships.............................................. 10
4.6 Proscriptions.................................................... 11
4.7 Bank Accounts.................................................... 11
Article V
Restrictions Regarding Transfer, Substitution, etc.................... 11
5.1 Transfer of Interests by General Partner......................... 11
5.2 Additional General Partner....................................... 11
5.3 Transfer of Interests by Limited Partners........................ 12
5.4 Additional Limited Partners...................................... 12
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Article VI
Indemnification........................................................ 12
6.1 Exculpatory Provisions............................................ 12
6.2 Indemnification of General Partner................................ 12
6.3 Advance of Expenses............................................... 13
6.4 Non-Exclusivity................................................... 13
6.5 Satisfaction from Partnership Assets.............................. 13
6.6 Notices of Claims, etc............................................ 13
6.7 Exculpation and Indemnification of Manager........................ 14
Article VII
Dissolution and Liquidation............................................ 14
7.1 Events of Dissolution; Accounting................................. 14
7.2 Liquidating Trustee............................................... 14
7.3 Distribution in Liquidation....................................... 15
Article VIII
Power of Attorney...................................................... 16
Article IX
Construction........................................................... 16
9.1 Headings.......................................................... 16
9.2 Notices........................................................... 16
9.3 Governing Law..................................................... 18
9.4 Entire Understanding and Amendment................................ 18
9.5 Miscellaneous..................................................... 18
Article X
Definitions............................................................ 19
SCHEDULE A -- Partners, Capital Contributions and Capital Accounts
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AGREEMENT OF LIMITED PARTNERSHIP
OF
CHARTER COMMUNICATIONS ENTERTAINMENT II, L.P.
AGREEMENT OF LIMITED PARTNERSHIP, dated as of September 29, 1995,
among CCT Holdings Corp., a Delaware corporation, as general partner (the
"General Partner"), and the entities identified as limited partners in Schedule
A hereto, as limited partners (which entities, together with any other entities
who, in accordance with the terms hereof, may be admitted hereafter as limited
partners, are herein collectively referred to as the "Limited Partners").
Capitalized terms used herein without definition are defined in
Article X.
Article I
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Formation of the Partnership
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1.1 Formation. The parties to this Agreement hereby form a limited
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partnership (the "Partnership") pursuant to and in accordance with the
provisions of the Delaware Revised Uniform Limited Partnership Act (as amended
from time to time, the "Act"). The Certificate of Limited Partnership of the
Partnership was filed with the Secretary of State of the State of Delaware on
April 20, 1995.
1.2 Partnership Name. The name of the Partner ship shall be Charter
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Communications Entertainment II, L.P.
1.3 Purpose. The purpose of the Partnership is, directly or
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indirectly, to acquire, finance, franchise, construct, develop, own, alter,
repair, maintain, promote, program, operate, manage, lease, sell, exchange or
otherwise dispose of cable television systems and to engage in such
activities as the General Partner, subject to the terms set forth herein, deems
necessary, advisable or incidental to the foregoing.
1.4 Place of Business. The principal place of business of the
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Partnership shall be c/o Charter Communications, Inc., 00000 Xxxxxxxxxxx
Xxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, or such other place or places as
may be designated at any time and from time to time by the General Partner. The
General Partner will inform the Limited Partners of any change in the principal
office of the Partnership.
1.5 Registered Office and Registered Agent. The registered office of
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the Partnership in the State of Delaware shall be c/o The Corporation Trust
Company, Corporation Trust Company Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000, and the registered agent for service of process
on the Partnership in the State of Delaware at such address is The Corporation
Trust Company.
1.6 Term. Unless sooner terminated by the General Partner, the
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Partnership shall continue until the earliest to occur of:
(a) The assignment for the benefit of creditors by the General
Partner, appointment of a receiver for or adjudication of bankruptcy of the
General Partner which appointment or order remains unstayed for more than
90 days, or seizure by a judgment creditor of the General Partner's
interest in the Partnership;
(b) The sale, exchange or involuntary conversion of all, or
substantially all, of the assets of the Partnership;
(c) The resignation or withdrawal of any Partner or the assignment or
transfer by any Partner of any of such Partner's interest in the
Partnership; or
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(d) December 31, 2055.
1.7 Partnership Powers. In furtherance of the Partnership's purpose
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specified in Section 1.3, the Partnership shall have all of the powers available
to it as a limited partnership under the laws of the State of Delaware,
including, without limitation, the power to engage in all activities and
transactions necessary or advisable to carry out the Partnership's purpose. The
General Partner is authorized to exercise all such powers in the name and on
behalf of the Partnership, including, without limitation, the authority:
(a) to invest in any other entity and to sell, transfer, assign,
convey, exchange or otherwise dispose of any or all of the properties or
assets of the Partnership or its Subsidiaries for cash, stock, securities
or any combination thereof on such terms and conditions as may, at any time
and from time to time, be determined by the General Partner;
(b) (i) to enter into any instruments or agreements constituting
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Indebtedness; (ii) to apply the proceeds of any borrowings under any
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instruments or agreements evidencing or creating any Indebtedness in such
manner and for such purposes as the General Partner shall determine; (iii)
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to grant security interests in assets of the Partnership or its
Subsidiaries to secure the obligations of the Partnership or its
Subsidiaries or any of their respective affiliates with respect to any
Indebtedness; and (iv) to guarantee the obligations of the Partnership or
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its Subsidiaries or any of their respective affiliates with respect to any
Indebtedness;
(c) to enter into, deliver, perform and carry out contracts and
agreements of every kind necessary or incidental to the Partnership's
purpose;
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(d) to open, maintain, and close bank accounts and draw checks or
other orders for the payment of money; and
(e) to take or perform such acts and to execute such agreements,
certificates, documents and instruments necessary or advisable to carry out
the Partnership's purpose.
Article II
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Capital
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2.1 Capital Contributions. As of the date of this Agreement, each
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Partner shall have contributed or caused to be contributed to the capital of the
Partnership property having an agreed upon value equal to the amount set forth
opposite such Partner's name on Schedule A hereto.
2.2 Additional Capital. No additional capital contributions or
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assessments therefor beyond the amounts provided for in Section 2.1 shall be
required from any Partner. No additional capital contribution will be accepted
from any person (including the Partners) except for capital contributions
approved by the General Partner. Upon the making of any additional capital
contribution by any Partner, the General Partner shall amend Schedule A to
reflect the capital contribution of such Partner.
2.3 Liability, etc. The Limited Partners shall not have any personal
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liability with respect to the liabilities or the obligations of the
Partnership. The Partners shall not be required to lend funds to the
Partnership for any purpose. The Limited Partners, in their capacity as such,
shall not (a) take part in the management of the business of the Partnership,
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except to the extent provided herein and as permitted under the Act, (b)
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transact any business for the Partnership or (c) have the power to sign for or
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to bind the Partnership.
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2.4 Withdrawal of Capital. No Partner shall be entitled to the
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return of such Partner's capital contribution except by reason of the
distribution to such Partner of cash or other property pursuant to Section 3.9
or 7.3 or upon the consent of the General Partner. No Partner shall have the
right to receive a distribution of property other than cash from the
Partnership.
2.5 Priority. Except as expressly otherwise provided herein, there
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shall be no priority of one or more of the Partners over the other Partners as
to return of contributions, withdrawals or distributions of cash or other
property.
2.6 Capital Accounts. There shall be established and maintained for
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each Partner on the books of the Partnership a capital account (each, a "Capital
Account"), which shall be comprised of two subaccounts, an Ordinary Capital
Account and a Preferred Capital Account. The opening balance in each Partner's
Capital Account shall be as shown in Schedule A hereto. Whenever this Agreement
refers to the balance in a Partner's Capital Account, such reference shall mean
the sum of the balances of such Partner's Ordinary Capital Account and Preferred
Capital Account.
2.7 Adjustments. (a) As of each Adjustment Date, the balance of
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each Ordinary Capital Account shall be adjusted by (i) increasing such balance
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by such Partner's (x) allocable share of Net Profits (allocated in accordance
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with Section 3.1) and (y) the amount of money or the fair market value of any
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property contributed to the Partnership by such Partner (net of any liabilities
secured by such contributed property that the Partnership is considered to
assume or take subject to under Section 752 of the Code) and (ii) decreasing
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such balance by (x) the amount of cash or the fair market value of property
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distributed or deemed distributed to such Partner pursuant to Sections 3.9(a),
3.9(b)(ii) and 7.3 (net of any liabilities secured by such distributed property
that the distributee Partner is
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considered to assume or take subject to under Section 752 of the Code) and (y)
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such Partner's allocable share of Net Losses (allocated in accordance with
Section 3.1). Each Partner's Ordinary Capital Account shall be further adjusted
with respect to any special allocations pursuant to Sections 3.2 through 3.7.
(b) As of each Adjustment Date, the balance of each Preferred Capital
Account shall be adjusted by (i) increasing such balance by any Preferred Return
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during the relevant Fiscal Period and (ii) decreasing such balance by any
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payments made pursuant to Section 3.9(b)(i) during the relevant Fiscal Period.
Such increase and any related payment pursuant to Section 3.9(b)(i) shall be
treated for all purposes of this Agreement as a payment described in Section
707(c) of the Code.
(c) Any question with respect to a Partner's Capital Account shall be
resolved by the General Partner in good faith and in its reasonably exercised
discretion, applying principles consistent with this Agreement. The provisions
of this Agreement relating to the maintenance of Capital Accounts are intended
to comply with Treasury Regulations Section 1.704-1(b) and shall be
interpreted and applied in a manner consistent with such Treasury Regulations.
Article III
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Accounting, Distributions and Taxes
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3.1 Allocations of Net Profits and Net Losses. Except as provided in
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Sections 3.2 through 3.8, the Net Profits or Net Losses of the Partnership for
any Fiscal Period shall be allocated among the Partners in accordance with their
Percentage Interests.
3.2 Qualified Income Offsets, Restorative Allocations. (a) If (i)
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any Partner unexpectedly receives any
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adjustment, allocation or distribution described in Treasury Regulations Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) and (ii) such adjustment, allocation or
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distribution causes or increases a deficit in such Partner's Adjusted Capital
Account as of the end of the Fiscal Period to which such adjustment, allocation
or distribution relates (a "Deficit"), then items of gross income for such
Fiscal Period and each subsequent Fiscal Period shall be specifically allocated
to each such Partner pro rata in proportion to its Deficits in an amount and
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manner sufficient to eliminate, to the extent required by the Treasury
Regulations, such Deficit as quickly as possible, provided that an allocation
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pursuant to this Section 3.2 shall be made only if and to the extent that such
Partner would have a Deficit after all other allocations provided for in this
Article III have been tentatively made as if this Section 3.2 were not in this
Agreement.
(b) Any special allocations of items of income or gain pursuant to
this Section 3.2 shall be taken into account in computing subsequent
allocations pursuant to this Agreement, so that the net amount for any item so
allocated and all other items allocated to each Partner pursuant to this
Agreement shall be equal, to the extent possible, to the net amount that would
have been allocated to each Partner pursuant to the provisions of this
Agreement if such special allocations had not occurred.
3.3 Partnership Minimum Gain. Except as otherwise provided in
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Treasury Regulations Section 1.704-2(f), if there is a net decrease in
Partnership Minimum Gain during any Partnership Fiscal Year, each Partner shall
be specially allocated items of Partnership income and gain for such period
(and, if necessary, subsequent periods) in proportion to, and to the extent of,
an amount equal to the portion of such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Treasury Regulations
Section 1.704-2(g). This Section 3.3 is intended to comply with the chargeback
of items of income
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and gain requirement in Treasury Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.
3.4 Minimum Gain Attributable to Partner Nonrecourse Debt. Except as
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otherwise provided in Treasury Regulations Section 1.704-2(i), if there is a net
decrease in Minimum Gain Attributable to Partner Nonrecourse Debt during any
Partnership Fiscal Year, each Partner with a share of Minimum Gain Attributable
to Partner Nonrecourse Debt shall be specially allocated items of Partnership
income and gain for such period (and, if necessary, subsequent periods) in
proportion to, and to the extent of, an amount equal to the portion of such
Partner's share of the net decrease in the Minimum Gain Attributable to Partner
Nonrecourse Debt, determined in accordance with Treasury Regulations Section
1.704-2(i)(4). This Section 3.4 is intended to comply with the chargeback of
items of income and gain requirement in Treasury Regulations Section 1.704-
2(i)(4) and shall be interpreted consistently therewith.
3.5 Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal
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Year shall be allocated to the Partners in the same ratios that Net Profits are
allocated for the Fiscal Year in accordance with Treasury Regulations Section
1.704-2(b)(1).
3.6 Partner Nonrecourse Deductions. Partner Nonrecourse Deductions
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for any Fiscal Year shall be allocated 100% to the Partner that bears the
economic risk of loss (as defined in Treasury Regulations Section 1.704-2(b))
with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse
Deductions are attributable in accordance with Treasury Regulations Section
1.704-2(i). If more than one Partner bears the economic risk of loss with
respect to a Partner Nonrecourse Debt, such Partner Nonrecourse Deductions
attributable thereto shall be allocated between or among such Partners in
accordance with the ratios in which they share such economic risk of loss.
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3.7 Section 754 Adjustments. To the extent an adjustment to the
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adjusted basis of any Partnership asset pursuant to Section 734(b) of the Code
or Section 743(c) of the Code is required, pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustment to Capital Accounts shall be treated as
an item of gain (if the adjustment increases the basis of the asset) or loss (if
the adjustment decreases such basis) and such gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in which their
Adjusted Capital Accounts are required to be adjusted pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(m).
3.8 Tax Allocations; Section 704(c). (a) Except as provided in
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subsection (b) below, the income, gains, losses, credits and deductions
recognized by the Partnership shall be allocated among the Partners, for U.S.
federal, state and local income tax purposes, to the extent permitted under the
Code and the Treasury Regulations, in the same manner that each such item
affects the balances in the Partners' Capital Accounts.
(b) In accordance with Section 704(c) of the Code and the Treasury
Regulations thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for tax
purposes, be allocated among the Partners so as to take account of any variation
between the adjusted basis of such property to the Partnership for federal
income tax purposes and its fair market value as determined by the General
Partner.
3.9 Distributions. The General Partner may from time to time declare
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distributions of cash or other Partnership property. Such distributions shall
be made or applied as follows:
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(a) First, all distributions for Permitted Expenses shall be
distributed in a manner designed to permit payment of such expenses.
(b) Following the Partnership's distribution of amounts pursuant to
Section 3.9(a) above, the Partnership shall make all other distributions to the
Partners in accordance with the following order of priority:
(i) first, to each Partner whose Preferred Capital Account
balance shall be greater than zero to the extent of such positive
balance in the ratio that its respective Preferred Capital Account
balance bears to all such positive Preferred Capital Account balances;
and
(ii) thereafter, to the Partners in accordance with their
Percentage Interests.
3.10 Accounting Method. The books of account of the Partnership shall
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be kept pursuant to the accrual method of accounting. Except to the extent
required by law, the Partnership shall not change its accounting principles in a
manner adverse to any Partner without the consent of such Partner.
3.11 Certain Federal Income Tax Matters. The Partners understand and
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intend that under the Code the Partnership constitutes a "limited partnership."
The General Partner shall be the "tax matters partner" of the Partnership
pursuant to Section 6231(a)(7) of the Code. Each Partner hereby consents to such
designation and agrees that upon the request of the General Partner it will
execute, certify, acknowledge, deliver, swear to, file and record at the
appropriate public offices such documents as may be necessary or appropriate to
evidence such consent.
3.12 Election under Section 754. The General Partner, on behalf of
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the Partnership, may in its sole
10
discretion file an election under Section 754 of the Code in accordance with the
procedures set forth in the applicable Treasury Regulations.
3.13 Tax Withholdings. The Partnership shall at all times be entitled
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to make payments with respect to any Partner in amounts required to discharge
any legal obliga tion of the Partnership pursuant to any provision of the Code
or any other tax provision or any provision enacted in the future imposing a
similar obligation on the Partnership to withhold or make payments to any
governmental authority with respect to any U.S. federal, state and local tax
liability of such Partner arising as a result of such Partner's interest in the
Partnership. Each such payment shall be deemed to be a loan by the Partnership
to such Partner and shall not be deemed to be a distribution. The amount of
such payments made with respect to any Partner, plus interest at an annual rate
equal to the interest rate publicly announced by Chemical Bank from time to time
as its base rate on each such amount from the date of each such payment until
such amount is repaid to the Partnership, shall be repaid to the Partnership by
(i) deduction from the current or next succeeding distribution or distributions
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otherwise payable to such Partner pursuant to this Agreement or (ii) earlier
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payment of such amounts and interest by the Partner to the Partnership.
Article IV
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General Partner
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4.1 Management. The management and control of and the determination
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of policy with respect to the Partnership and its affairs shall be vested
exclusively in the General Partner and in connection therewith the General
Partner may exercise all of the powers and authority set forth in Section 1.7.
Notwithstanding the foregoing, the General Partner may retain the Manager to
manage the Partnership and its Subsidiaries and may delegate such
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powers and authority to the Manager and assign such duties to the Manager as the
General Partner in its reasonable discretion deems necessary or advisable, such
powers, authority and duties to be set forth, and limited in the manner set
forth, in the Management Agreement. The Management Agreement may not be amended
or modified without the prior written consent of the General Partner, which
consent may be granted or withheld in its sole discretion.
4.2 Reliance on Authority of General Partner. Nothing herein
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contained shall impose any obligation on any person or firm doing business with
the Partnership to inquire as to whether or not the General Partner has
exceeded its authority in executing or causing to be executed any contract,
lease, deed or other instrument on behalf of the Partnership, and any such third
person shall be fully protected in relying upon such authority.
4.3 Interested Party Contracts. The General Partner may cause the
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Partnership to enter into contracts and transactions with the General Partner or
any of its affiliates, provided that the terms of any such contract or
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transaction are entered into in good faith, and are fair and reasonable to the
Partnership.
4.4 Expenditures By General Partner. The General Partner shall be
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entitled to reimbursement by the Partnership for any reasonable expenditures
incurred by the General Partner on behalf of the Partnership which are paid by
or on behalf of the General Partner other than out of the funds of the
Partnership. The General Partner shall not be compensated for its services as a
General Partner of the Partnership.
4.5 Other Relationships. The General Partner shall devote so much of
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its time to the business of the Partnership as in the judgment of the General
Partner the conduct of the Partnership's business shall reasonably require. The
General Partner may engage in other business ventures of any nature and
description independently or with
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others, and neither the Partnership nor any of the other Partners shall have any
rights in and to such independent ventures or the income or profits derived
therefrom. Except as otherwise specifically provided herein, nothing contained
in this Agreement shall, or shall be deemed to, prohibit, restrict or limit in
any manner any business or investment activities of the General Partner or any
of its affiliates, including, without limitation, rendering any business,
management or consulting advice to the Partnership or its Subsidiaries.
4.6 Proscriptions. Without the written consent of or ratification by
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90% or more of the Percentage Interests of the Limited Partners, the General
Partner shall have no authority to do any act in contravention of this Agreement
or of the Act.
4.7 Bank Accounts. All funds of the Partnership shall be deposited
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in the Partnership name in such bank account or accounts and in such bank or
banks as shall be designated from time to time by the General Partner. All
withdrawals therefrom shall be made upon the signature of the General Partner or
of such other person or persons as the General Partner may from time to time
designate. The Partnership's funds shall not be commingled with funds not
belonging to the Partnership and shall be used only for the affairs or business
of the Partnership as herein provided.
Article V
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Restrictions Regarding Transfer, Substitution, etc.
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5.1 Transfer of Interests by General Partner. The General Partner may
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not (a) sell, transfer, assign, convey, or otherwise dispose of, all or a
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portion of its general partner interest in the Partnership or (b) resign or
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withdraw from the Partnership, provided, however, that nothing herein shall
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prohibit any General Partner from assigning its rights to receive cash
distributions pursuant
13
to Section 3.9 or 7.3 in connection with the pledge of any partnership interest
to any creditor of the Partnership.
5.2 Additional General Partner. Without the prior written consent of
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the General Partner and a Majority in Interest, no party shall become an
additional General Partner hereof unless and until it has executed such
certificates and other documents and performed such acts as may be necessary to
constitute such party as a general partner, and to preserve the status of the
Partnership as a limited partnership. In the event that any additional General
Partner(s) shall be admitted to the Partnership in accordance with this Section
5.2, any provision of this Agreement pursuant to which the consent of the
General Partner is required shall be deemed also to require the consent of any
such additional General Partner(s).
5.3 Transfer of Interests by Limited Partners. No Limited Partner may
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sell, transfer, assign, convey, or otherwise dispose of, partner interest in the
Partnership, provided, however, that nothing herein shall prohibit any Limited
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Partner from assigning its rights to receive cash distributions pursuant to
Section 3.9 or 7.3 in connection with the pledge of any partnership interest to
any creditor of the Partnership.
5.4 Additional Limited Partners. No party shall become an additional
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Limited Partner hereof without the consent of the General Partner and unless and
until it has executed such certificates and other documents and performed such
acts as may be necessary to constitute such party as a limited partner, and to
preserve the status of the Partnership as a limited partnership.
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Article VI
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Indemnification
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6.1 Exculpatory Provisions. None of the General Partner or any of
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its affiliates, or the partners, officers, directors, employees or control
persons (as such term is defined in the Securities Act of 1933, as amended, and
the rules and regulations thereunder) of the General Partner or affiliate
(collectively, the "Indemnified Persons") shall be liable, directly or
indirectly, to the Partnership or any Partner for any act or omission (in
relation to the Partnership or this Agreement) taken or omitted by such
Indemnified Person in good faith, provided that such act or omission did not
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constitute gross negligence, fraud, willful violation of the law, willful
violation of this Agreement or reckless disregard of the duties of such
Indemnified Person.
6.2 Indemnification of General Partner. The Partnership shall, to
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the fullest extent permitted by applicable law, indemnify and hold harmless each
Indemnified Person against all claims, liabilities and expenses of whatever
nature ("Claims") relating to activities undertaken in connection with the
Partnership, including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel, accountants'
and experts' and other fees, costs and expenses reasonably incurred in
connection with the investigation, defense or disposition (including by
settlement) of any action, suit or other proceeding, whether civil or criminal,
before any court or administrative body in which such Indemnified Person may be
or may have been involved, as a party or otherwise, or with which such
Indemnified Person may be or may have been threatened, while acting as such
Indemnified Person, provided that no indemnity shall be payable hereunder
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against any liability incurred by such Indemnified Person by reason of gross
negligence, fraud, willful violation of the law, willful violation of this
Agreement, reckless disregard of the duties of such Indemnified Person or with
respect to any matter as to which such
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Indemnified Person shall have been adjudicated not to have acted in good faith,
and provided further that as to any action, suit or other proceeding disposed of
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by settlement or a compromise payment, pursuant to a consent decree or
otherwise, no indemnification (whether for such payment or for any other Claim)
shall be provided unless there has been a determination that such compromise is
in or not opposed to the best interests of the Partnership and that such
Indemnified Person has acted in good faith and did not involve gross negligence,
fraud, willful violation of the law, willful violation of this Agreement or
reckless disregard of the duties of such Indemnified Person.
6.3 Advance of Expenses. Expenses incurred by an Indemnified Person
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in defense or settlement of any Claim that may be subject to a right of
indemnification hereunder may be advanced by the Partnership prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall ultimately be determined
that the Indemnified Person is not entitled to be indemnified by the
Partnership.
6.4 Non-Exclusivity. The right of any Indemnified Person to the
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indemnification provided herein shall be cumulative of, and in addition to, any
and all rights to which such Indemnified Person may otherwise be entitled by
contract or as a matter of law or equity and shall extend to such Indemnified
Person's successors, assigns and legal representatives.
6.5 Satisfaction from Partnership Assets. All judgments against the
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Partnership or an Indemnified Person, in respect of which such Indemnified
Person is entitled to indemnification, shall first be satisfied from Partnership
assets before the Indemnified Person is responsible therefor.
6.6 Notices of Claims, etc. Promptly after receipt by an Indemnified
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Person of notice of the
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commencement of any action or proceeding or threatened action or proceeding
involving a Claim referred to in this Article VI, such Indemnified Person will,
if a claim for indemnification in respect thereof is to be made against the
Partnership, give written notice to the Partnership of the commencement of such
action, provided that the failure of any Indemnified Person to give notice as
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provided herein shall not relieve the Partnership of its obligations under this
Article VI, except to the extent that the Partnership is actually prejudiced by
such failure to give notice. Each such Indemnified Person shall keep the General
Partner apprised of the progress of any such proceeding.
6.7 Exculpation and Indemnification of Manager. Notwithstanding the
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foregoing provisions of this Article VI, the liability of the Manager to the
Partnership and the Partnership's obligation to indemnify the Manager acting
solely in its capacity as Manager with respect to any action or inaction in
connection with the performance of the services and duties contemplated by the
Management Agreement shall be governed by the provisions of the Management
Agreement. For purposes of this Section 6.7, the Manager shall include its
officers, directors, employees and affiliates.
Article VII
------------
Dissolution and Liquidation
---------------------------
7.1 Events of Dissolution; Accounting. (a) The Partnership shall
---------------------------------
dissolve upon the earliest to occur of the events described in Section 1.6.
(b) In the event of the dissolution and liquidation of the
Partnership, a proper accounting shall be made of the Capital Account of each
Partner and of the Net Profits or Net Losses of the Partnership from the date
of the last previous accounting to the date of dissolution. Financial statements
presenting such accounting shall be audited
17
and shall include a report of a nationally recognized ac counting firm.
7.2 Liquidating Trustee. Upon the dissolution and liquidation of the
-------------------
Partnership's business for any reason, the General Partner shall act as
liquidating trustees, or, if there shall then be no General Partner, the Limited
Partners may elect a liquidating trustee. The liquidating trustee(s) shall have
full power to sell, assign and encumber Partnership assets.
7.3 Distribution in Liquidation. In the event of the termination of
---------------------------
the Partnership pursuant to this Article VII or for any other reason, the
Partnership assets shall be liquidated. The proceeds of such liquidation shall
be distributed as follows:
(a) first, to the payment of the expenses of the liquidation;
(b) second, to the (i) payment of creditors of the Partnership and
-
(ii) establishment of reserves to provide for contingent liabilities, if
---
any, in the order of priority as provided by law;
(c) third, to each Partner whose Preferred Capital Account balance
shall be greater than zero (determined after all adjustments for the Fiscal
Period in which such dissolution occurs) to the extent of such positive
balance in the ratio that its respective Preferred Capital Account balance
bears to all such positive Preferred Capital Account balances;
(d) fourth, to each Partner whose Ordinary Capital Account balance
shall be greater than zero (determined after all adjustments for the Fiscal
Period in which such dissolution occurs) to the extent of such positive
balance in the ratio which its respective Ordinary Capital Account balance
bears to all such positive Ordinary Capital Account balances; and
18
(e) thereafter, to the Partners in accordance with their Percentage
Interests at the time of liquidation.
Payments to Partners described in subsections (a) through (e) above
may be made in cash or in kind if so determined by the General Partner or a
liquidating trustee appointed pursuant to Section 7.2. Any distributions to
Partners upon liquidation shall be made by the end of the taxable year in which
the liquidation of the Partnership occurs (or, if later, within 90 days after
the date of such liquidation).
Article VII
------------
Power of Attorney
-----------------
Concurrently with the execution of this Agreement, each Limited
Partner hereby appoints the General Partner as its true and lawful attorneys
coupled with an interest, in its name, place and stead to sign, execute,
acknowledge, swear to and file any and all documents which in the reasonable
discretion of such attorney are required to be signed, executed, acknowledged,
sworn to or filed by each Limited Partner to discharge the purposes of the
Partnership as hereinabove stated. Without limitation, among the documents
which the General Partner may execute on behalf of each Limited Partner shall be
a Certificate of Limited Partnership and all amendments thereto required by
applicable law or by the provisions of this Agreement.
Article IX
----------
Construction
------------
9.1 Headings. The headings, titles and subtitles herein are inserted
--------
for convenience of reference only and
19
shall not control or affect the meaning or construction of any of the provisions
hereof.
9.2 Notices. All notices, requests, demands, letters, waivers and
-------
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
-
personally, (b) mailed, by certified or registered mail with postage prepaid,
-
(c) sent by next-day or overnight mail or delivery or (d) transmitted by
- -
telecopy or telegram, as follows:
(i) If to the General Partner:
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxx & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
(ii) If to the Limited Partners, to each of them:
20
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
with a copy to:
Xxxxx & Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, XX, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
or to such other person or address as any party shall specify by notice in
writing to the other Partners. All such notices, requests, demands, letters,
waivers and other communications shall be deemed to have been received (w) if by
-
personal delivery on the day after such delivery, (x) if by certified or
-
registered mail, on the fifth business day after the mailing thereof, (y) if by
-
next-day or overnight mail or delivery, on the day delivered or (z) if by
-
telecopy or telegram, on the next day following the day on which such telecopy
or telegram was sent, provided that a copy is also sent by certified or
registered mail.
9.3 Governing Law. This Agreement, and its validity, construction
-------------
and performance, shall be governed by the laws of the State of Delaware, without
regard to the conflict of laws rules thereof.
21
9.4 Entire Understanding and Amendment. This Agreement embodies the
----------------------------------
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings among the parties hereto
relating to the subject matter contained herein, other than those expressly set
forth or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter. This
Agreement may be amended or modified with the written consent of the General
Partner. Notwithstanding the foregoing, this Agreement may not be amended or
modified without the prior written consent of the General Partner and, if in the
judgment of the General Partner such amendment or modification would materially
and adversely affect the rights of a Limited Partner, a Majority in Interest.
9.5 Miscellaneous. Except as provided in Article V, this Agreement
-------------
may not be assigned or transferred by operation of law or otherwise. This
Agreement is not intended to confer upon any other person except the parties
hereto any rights or remedies hereunder. If any provision of this Agreement or
the application thereof to any person or circumstance shall be prohibited by or
invalid under applicable law, the remainder of this Agreement or the application
of such provision to other persons or circumstances shall not be affected
thereby. This Agreement may be executed in one or more counterparts, all of
which shall constitute one and the same instrument. Each counterpart may
consist of a number of copies each signed by less than all, but together signed
by all, the parties hereto. Notwithstanding anything to the contrary in this
Agreement, nothing in this Agreement shall be interpreted to prohibit, or to
cause a dissolution on account of, the pledge of any partnership interest to any
creditor of the Partnership.
22
Article X
---------
Definitions
-----------
As used in this Agreement and the Schedules hereto, the following
terms shall have the following meanings:
Act: as defined in Section 1.1 of this Agreement.
---
Adjusted Capital Account: means, with respect to any Partner, as of
------------------------
the end of any Fiscal Year, such Partner's Capital Account balance (whether
positive or negative) as of the end of such Fiscal Year, (i) increased by the
- ---------
sum of (A) such Partner's share of Partnership Minimum Gain and (B) any amount
- -
for which such Partner is personally liable with respect to liabilities of the
Partnership as of the end of such Fiscal Year (except to the extent that such
amount would duplicate the amount of any increase under clause (A) above) and
(ii) decreased by such Partner's share of the reasonably expected net
--- ---------
allocations and distributions described in Treasury Regulations Sections 1.704-
1(b)(2)(ii)(d)(4), (5) and (6).
Adjustment Date: means (a) the close of business on the last day of
--------------- -
each Fiscal Year of the Partnership, (b) the day before the effective date of
-
the admission of any additional Partner to the Partnership, (c) the day before
-
any distribution is made by the Partnership or (d) any other date selected by
-
the General Partner, in its reasonable discretion, for an interim closing of
the Partner ship books. For purposes of this definition, the day before the
date of this Agreement shall be considered an Adjustment Date.
Capital Account: as defined in Section 2.6 of this Agreement.
---------------
Cencom Loan Agreement: means the Senior Subordinated Loan Agreement,
---------------------
dated as of September 29, 1995,
23
between the General Partner and Cencom Cable Television, Inc., including any
amendment, renewal, extension, substitution, refinancing, replacement or other
modification thereof.
Claims: as defined in Section 6.2 of this Agreement.
------
Code: means the Internal Revenue Code of 1986, as amended.
----
Deficit: as defined in Section 3.2 of this Agreement.
-------
Fiscal Period: means a period beginning on the day following any
-------------
Adjustment Date and ending on the next succeeding Adjustment Date.
Fiscal Year: means a year beginning on January 1 of one calendar year
-----------
and ending on December 31 of the same calendar year, provided, however, that the
-------- -------
term "Fiscal Year" shall mean with respect to the Partnership's first period of
operations the period commencing on the date hereof and ending on December 31
of the same calendar year.
General Partner: as defined in the first paragraph of this Agreement.
---------------
Indebtedness: means any indebtedness, whether or not for money
------------
borrowed, including any amendment, renewal, extension, substitution,
refinancing, replacement or other modification thereof, directly or indirectly
created, incurred or assumed by any entity, including, without limitation,
indebtedness arising under or pursuant to the Loan Agreement and the Cencom Loan
Agreement.
Indemnified Party: as defined in Section 6.1 of this Agreement.
-----------------
24
Limited Partners: as defined in the first paragraph of this
----------------
Agreement.
Loan Agreement: means the Loan Agreement, dated as of September 29,
--------------
1995, among the Partnership, Chemical Bank as Documentation Agent, Nationsbank
of Texas, N.A. as Administrative Agent, and the lenders named therein, including
any amendment, renewal, extension, substitution, refinancing, replacement or
other modification thereof.
Majority in Interest: means a majority in interest of the Limited
--------------------
Partners, based on their Percentage Interests.
Management Agreement: means the Management Agreement, dated as of
--------------------
September 29, 1995, as the same shall be amended from time to time in accordance
with the terms hereof, between the Partnership and the Manager.
Manager: means Charter Communications, Inc., a Delaware corporation,
-------
or any successor manager approved by the General Partner.
Minimum Gain Attributable to Partner Nonrecourse Debt: means that
-----------------------------------------------------
amount determined in accordance with the principles of Treasury Regulations
Section 1.704-2(i)(3), (4) and (5).
Net Profits and Losses: means, for any Fiscal Period, the net income
----------------------
or net loss of the Partnership for such Fiscal Period, including any items that
are separately stated for purposes of Section 702(a) of the Code, as determined
in accordance with federal income tax accounting principles with the following
adjustments:
(i) any income of the Partnership that is exempt from federal income
tax shall be included as income;
(ii) any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Sec-
25
tion 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(1) shall be treated as current expenses;
(iii) no effect shall be given to any adjustments made pursuant to
Section 734 or Section 743 of the Code;
(iv) the basis of property contributed to the Partnership shall
initially be treated as equal to the agreed upon valuation of such property
as reflected on Schedule A hereto and all gain, loss, depreciation and
amortization on such property shall be determined based on such agreed upon
value in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g);
(v) if the Partnership distributes any property in kind, the
Partnership shall be deemed to have sold such property for its fair market
value immediately before such distribution and the proceeds of such deemed
sale shall be deemed to have been distributed to the Partners for all
purposes of this Agreement; and
(vi) notwithstanding any other provisions of this definition, any
items that are specially allocated pursuant to Sections 3.2 through 3.8
shall not be taken into account.
Nonrecourse Deductions: has the meaning set forth in Treasury
----------------------
Regulations Section 1.704-2(b)(1).
Nonrecourse Liability: has the meaning set forth in Treasury
---------------------
Regulations Section 1.704-2(b)(3).
Ordinary Capital Account: as described in Section 2.6 of this
------------------------
Agreement.
Partner Nonrecourse Debt: means debt of the Partnership within the
------------------------
meaning of Treasury Regulations Section 1.704-2(b)(4).
26
Partner Nonrecourse Deductions: has the meaning set forth in Treasury
------------------------------
Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).
Partners: means the General Partner and the Limited Partners.
--------
Partnership: as defined in Section 1.1 of this Agreement.
-----------
Partnership Minimum Gain: has the meaning set forth in Sections
------------------------
1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.
Percentage Interest: means each Partner's proportionate share of the
-------------------
Net Profits or Net Losses of the Partnership, as set forth in Schedule A
hereto.
Permitted Expenses: means, to the extent permitted pursuant to any
------------------
instrument or agreement constituting Indebtedness, general and administrative
expenses, all U.S. federal and state income taxes, state franchise taxes,
accounting fees, fees and expenses of technical and other consultants, and fees
and expenses of other professionals of the Partnership or its affiliates or any
direct or indirect partner in the Partnership.
Preferred Capital Account: as defined in Section 2.6 of this
-------------------------
Agreement.
Preferred Return: means, for any Fiscal Period, in the case of
----------------
Charter Communications Entertainment, L.P., the sum of (a) the "Preferred
-
Return" accruing in respect of the "Preferred Capital Account" of CCT Holdings
Corp., a Delaware corporation, as such terms are defined in, and pursuant to,
the Agreement of Limited Partnership of Charter Communications Entertainment,
L.P., as amended from time to time and (b) the Ratable Portion of the Excess
-
Amount. For purposes of this definition, (i) the "Excess Amount" shall equal
-
the excess of (w) the initial Preferred Capital
-
27
Account balance of CCT Holdings Corp. in respect of its partnership interest in
Charter Communications Entertainment, L.P. over (x) the initial Preferred
-
Capital Account balance of Charter Communications Entertainment, L.P. in the
Partnership and (ii) the "Ratable Portion" shall mean the ratable portion for
--
such Fiscal Period of the Excess Amount amortized (on a straight-line basis)
over the term of the "Cencom Loan Agreement" (as defined in the Agreement of
Limited Partnership of Charter Communications Entertainment, L.P.).
Subsidiaries: means any corporation, partnership, limited liability
------------
company or other entity of which the Partnership owns, directly or indirectly,
more than 50% of the equity.
Treasury Regulations: means the Regulations of the Treasury
--------------------
Department of the United States issued pursuant to the Code.
28
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and year first above written.
GENERAL PARTNER: LIMITED PARTNERS:
CCT HOLDINGS CORP. CCA HOLDINGS CORP.
By /s/ Xxxxxxxx X. Xxxxxx, XX By /s/ Xxxxxxxx X. Xxxxxx, XX
-------------------------- --------------------------
Executive Vice President Executive Vice President
CHARTER COMMUNICATIONS
ENTERTAINMENT, L.P.
By /s/Xxxxxxxx X. Xxxxxx, XX
-------------------------
Executive Vice President
29
SCHEDULE A
General Partner:
---------------
Initial Initial
Ordinary Preferred
Percentage Initial Capital Capital Capital
Partner Interset Contribution Account Account
------- -------- ------------ ------- -------
CCT Holdings 1%
Corp.
Limited Partners:
----------------
Initial Initial
Ordinary Preferred
Percentage Initial Capital Capital Capital
Partner Interset Contribution Account Account
------- -------- ------------ ------- -------
CCA Holdings 1.22%
Corp.
Charter 97.78%
Communications
Entertainment,
L.P.
