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Exhibit 10.2(d)
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made as of the __ day
of _____, 1999, by and between Charter Communications Holding Company, LLC, a
Delaware limited liability company (the "Company"), and Charter Communications,
Inc., a Delaware corporation (the "Manager").
A. The Company desires to retain the Manager to manage
and operate the cable television systems owned by the
Company and its subsidiaries and any cable television
systems subsequently acquired by the Company and its
subsidiaries (except those cable television systems
managed under a separate management agreement between
the Manager and Charter Communications Operating,
LLC) (the "Cable Systems").
B. The Manager has agreed to manage and operate the
Cable Systems, all upon the terms and conditions
hereinafter set forth.
In consideration of the mutual covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Retention of the Manager. The Company hereby appoints the
Manager as a manager for the Cable Systems, and the Manager
hereby agrees to serve the Company as a manager for the Cable
Systems, pursuant to the terms and conditions hereinafter set
forth.
2. Authority and Duties of the Manager.
(a) The Company agrees to seek the advice of the Manager regarding
the business, properties and activities of the Cable Systems
during the term hereof, and subject to the direction, control
and general supervision of the Company, the Manager agrees to
provide such advice. The Manager shall give such advice in a
businesslike, efficient, lawful and professional manner in
accordance with this Agreement.
(b) Without limiting the generality of the foregoing, the Manager
shall provide all management services with respect to the
operation of the Cable Systems, including, but not limited to
the following:
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(i) advice concerning the hiring, termination, performance and training of
personnel;
(ii) review, consultation and advice concerning personnel, operations,
engineering and other management and operating policies and procedures;
(iii) review, consultation and advice concerning maintenance standards for
plant and equipment of the Cable Systems, advice as to the Cable
Systems' normal repairs, replacements, maintenance and plant upgrades,
and provide for periodic inspections;
(iv) recommendations on all necessary action to keep the operation of the
Cable Systems in compliance, in all material respects, with the
conditions of the Company's franchises and all applicable rules,
regulations and orders of any federal, state, county or municipal
authority having jurisdiction over the Cable Systems;
(v) assistance in the negotiation, on behalf of the Company, of operating
agreements (including, but not limited to, pole attachment agreements,
office and headend leases, easements and right-of-way agreements),
contracts for the purchase, lease, license or use of properties,
equipment and rights as may be necessary or desirable in connection
with the operation or maintenance of the Cable Systems and such other
agreements on behalf of the Company as are necessary or advisable for
the furnishing of program services for the Cable Systems;
(vi) development of recommendations for, and negotiate the acquisition and
maintenance of, such insurance coverage with respect to the Cable
Systems as the Company may determine upon advice and consultation of
the Manager;
(vii) guidance on all marketing, sales promotions and advertising for the
Cable Systems;
(viii) assistance in the financial budgeting process and the implementation of
appropriate accounting, financial, administrative and managerial
controls for the Cable Systems;
(ix) preparation for use by the Company of financial reports and maintenance
of books of accounts and other records reflecting the results of
operation of each Cable System and/or subsidiary; and
(x) advice and consultation with the Company in connection with any and all
aspects of the Cable Systems and the day to day operation thereof and
consultation with the Company with respect to the selection of
attorneys, consultants and
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accountants.
10. Management Expenses.
(a) All expenses, costs, losses, liabilities or damages incurred with
respect to the ownership or operation of the Cable Systems, including, without
limitation, wages, salaries and other labor costs incurred in the construction,
maintenance, expansion or operation of the Cable Systems, or personnel working
on special projects or services for the Company, will be paid by the Company
and, to the extent that the Manager pays or incurs any obligation for any such
expenses, costs, losses, liabilities or damages, the Company, subject to the
limitations set forth in Section 5, will pay or reimburse the Manager therefor,
as well as for any reasonable out-of-pocket expenses incurred by the Manager in
the performance of its obligations under this Agreement. Subject to the payment
priority provisions of this Section 3, the Company agrees to pay the Manager
such costs and expenses, which shall include all the costs, expenses,
liabilities and damages incurred by the Manager in performing its obligations
hereunder and any payments that the Manager may become obligated to pay pursuant
to the Mutual Services Agreement (the "Management Expenses") set forth above
monthly in arrears. Accrual of such Management Expenses shall commence upon the
Effective Date (as defined below) of this Agreement. The Management Expenses
payable pursuant to this paragraph for any month shall be reduced by the amount
of any management fees and expenses of a subsidiary of the Company and
separately paid to the Manager for such month pursuant to a separate management
agreement between the Manager and a subsidiary of the Company.
Notwithstanding the foregoing, the Management Expenses due and
payable as provided in this Section 3 shall be subordinated and junior
in right of payment to the prior payment in full in cash of all of the
Senior Debt (as defined below) and shall not be paid except to the
extent allowed under the Credit Agreement (as defined below). In the
event of any bankruptcy or similar proceeding relative to the Company
(a "Reorganization"), then all of the Senior Debt shall first be paid
in full in cash before any payment of the Management Expenses is made,
and in any Reorganization any amount payable in respect of the
Management Expenses shall be paid directly to the Funding Agent
referred to below, unless all the Senior Debt has been paid in full in
cash. The Manager hereby irrevocably authorizes the Funding Agent, as
attorney-in-fact for the Manager, to vote, file or prove any claim or
proof of claim in any Reorganization in respect of the Management
Expenses and to demand, xxx for, collect and receive any such payment.
The Manager shall take any actions requested by the Funding Agent in
order to accomplish any of the foregoing. If the Manager receives any
payment hereunder in violation of the terms hereof or in connection
with any Reorganization (prior to the payment in full in cash of the
Senior Debt), the Manager shall hold such payment in trust for the
benefit of the holders of the Senior Debt and forthwith pay it over to
the Funding Agent. Amounts payable to the Manager in accordance with
this Section 3 which remain unpaid by reason of the foregoing shall be
accrued as a liability of the Company and shall be payable as soon as
the conditions to payment are fulfilled. The deferred portion of the
Management Expenses will bear interest at the rate of ten percent (10%)
per annum,
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compounded annually, from the date otherwise due and payable until the
payment thereof.
As used herein, (i) "Credit Agreement" means the Credit
Agreement, dated as of March 18, 1999, among Charter Communications
Operating, LLC ("Charter Operating"), certain of its affiliates, the
Lenders parties thereto and the Funding Agent, Documentation Agent,
Syndication Agents and Administrative Agents named therein, as amended,
restated, supplemented or otherwise modified from time to time, and
(ii) "Senior Debt" means the principal amount of all loans and
guarantee obligations from time to time outstanding or owing under the
Credit Agreement and the other loan documents executed and delivered by
Charter Operating pursuant thereto, together with interest thereon
(including any interest subsequent to any filing for Reorganization,
whether or not such interest would constitute an allowed claim,
calculated at the rate set forth for overdue loans in the Credit
Agreement) and all other obligations of Charter Operating under the
Credit Agreement and such other loan documents.
(b) Notwithstanding any termination of this Agreement pursuant
to Section 4, the Manager shall, subject to the limitations set forth above,
remain entitled (i) to receive the Management Expenses set forth in Section 3(a)
for any costs or expenses incurred prior to the date of termination which have
not been paid to the Company; and (ii) to receive payment of the deferred
Management Expenses at the time of such termination if, and to the extent that,
payment thereof is otherwise permitted under Section 3(a).
4. Effective Date. This Agreement shall become effective only upon the
closing (the "Effective Date") of the initial public offering of the
Manager as contemplated by its Registration Statement on Form S-1 filed
with the Securities and Exchange Commission. If such closing does not
occur for any reason, or has not occurred by January 1, 2000, this
Agreement shall be of no force or effect and neither the Company nor
the Manager shall have any rights, obligations or liabilities under or
arising out of this Agreement.
5. Term of Agreement. The term of this Agreement shall be ten years
commencing on the Effective Date, unless sooner terminated pursuant to
the terms of this Agreement. This Agreement may be terminated as
follows: (a) by the Company immediately upon written notice to the
manager for Cause (as defined below) or (b) automatically on the
consummation of the sale of all or substantially all of the Company's
assets. For purposes hereof, "Cause" shall exist if the Manager has
engaged in gross negligence or willful misconduct in the performance of
its duties hereunder which could have a material adverse effect on the
Company.
6. Liability. The Company shall bear any and all expenses, liabilities,
losses or damages resulting from the operation of the Cable Systems,
and the Manager, its partners, officers, directors and employees shall
not, under any circumstances, be held liable therefor,
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except that the Manager shall be liable for any loss or damage which
results from its own gross negligence or willful misconduct. Neither
the Manager nor any of its partners, members, officers, directors and
employees shall be held to have incurred any liability to the Company,
the Cable Systems or any third party by virtue of any action not
constituting gross negligence or willful misconduct taken in good faith
by it in discharge of its duties hereunder, and the Company agrees to
indemnify the manager and its shareholders, partners, directors,
officers and employees and hold the Manager and its partners,
directors, officers and employees harmless with respect of the
foregoing, including, but not limited to, reasonable attorneys' fees.
7. Notices. All notices, demands, requests or other communications which
may be or are required to be given, served or sent by a party pursuant
to this Agreement shall be in writing and shall be deemed given upon
receipt if personally delivered (including by messenger or recognized
delivery or courier service) or on the date of receipt on the return
receipt if mailed by registered or certified mail, return receipt
requested, postage prepaid, delivered or addressed as set forth below.
Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed
receipt of the notice:
(a) If to the Company:
Charter Communications Holding Company, LLC
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
(b) If to the Manager:
Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
8. Governing Law. This Agreement and the rights and obligations of the
parties hereunder and the persons subject hereto shall be governed by,
and construed and interpreted in accordance with, the laws of the State
of New York, without giving effect to the choice of law principles
thereof.
9. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by and against the parties hereto and
their respective successors and assigns. This Agreement embodies the
entire agreement and understanding among the parties hereto with
respect to the subject matter hereof and supercedes all prior
agreements and understandings relating to the subject matter hereof.
The headings in this
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Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. This Agreement is not transferable or
assignable by any of the parties hereto except as may be expressly provided
herein. This Agreement may not be amended, supplemented or otherwise modified
except in accordance with the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written and effective as of the Effective
Date.
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
a Delaware limited liability company
By:_________________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
CHARTER COMMUNICATIONS, INC.,
a Delaware corporation
By:_________________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
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