EXHIBIT 3.3
SECOND AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
FRONTIERVISION PARTNERS, L.P.
THIS AGREEMENT MADE as of the 1st day of October, 1999, by and among
ADELPHIA GP HOLDINGS, LLC, a Delaware limited liability company, as the general
partner (the "General Partner" or "Holdings") and ACC OPERATIONS, INC., a
Delaware corporation, as the limited partner (the "Limited Partner" or
"Operations"). The General Partner and the Limited Partner are sometimes
collectively referred to as the "Partners".
WITNESSETH:
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WHEREAS, the Partnership was formed on April 17, 1995; and
WHEREAS, on the date hereof, Holdings became the sole general partner
of the Partnership and Operations became the sole limited partner of the
Partnership through the completion of a series of transactions pursuant to, and
in connection with, the Purchase Agreement dated as of February 22, 1999, as
amended, by and among the Partnership, FVP GP, L.P. and certain direct and
indirect limited partners of the Partnership and Adelphia Communications
Corporation; and
WHEREAS, the parties desire to amend and restate the First Amended and
Restated Limited Partnership Agreement dated as of August 11, 1995 in order to
reflect such direct and indirect transfers of partner interests in the
Partnership.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto, intending to be legally bound hereby, do covenant
and agree to be bound by the terms of this Agreement.
1. DEFINITIONS
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1.1 Definitions: As used herein the following terms shall have the
following meanings:
Affiliate(s) means any person who is in the Immediate Family of any
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Partner, any person who is an officer, director and/or holder of 10%
or more of the outstanding equity of any Partner or any person who,
directly or indirectly, controls, is controlled by or is under common
control with any Partner. Adelphia is an Affiliate of each of the
Partners.
Agreement means this Second Amended and Restated Limited Partnership
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Agreement, as hereafter amended from time to time.
Capital Account(s) means the individual account(s) maintained by the
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Partnership with respect to each Partner.
Capital Contribution(s) means the amount of cash or the agreed value
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of the property or services contributed by each Partner to the
Partnership.
CATV means community antenna television.
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CATV System means the CATV systems owned and operated by the
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Partnership from time to time, including any expansions or extensions
thereof.
Certificate means the Limited Partnership Certificate filed by the
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Partnership with the Department of State of the State of Delaware on
April 17, 1995, as amended from time to time.
Code means the Internal Revenue Code of 1986, as amended.
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General Partner(s) means Holdings and any person or entity who becomes
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an additional or successor General Partner pursuant to the terms of
this Agreement.
Holdings means Adelphia GP Holdings, LLC, a Delaware limited liability
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company.
Immediate Family means the spouse, child, mother, father, sister,
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brother, niece or nephew (whether natural or adopted) of a specified
person.
Limited Partner means Operations and any other person who may become a
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Limited Partner pursuant to the terms hereof.
Net Cash Flow means for any fiscal period the gross cash receipts of
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the Partnership in connection with the operation and management of the
business of the Partnership, including without limitation, cash
receipts from (i) the operations of the CATV System; (ii) any
refinancing of any indebtedness secured by Partnership assets, a sale
of a portion but less than all or substantially all of the CATV
System, or any similar transaction which in accordance with generally
accepted accounting principles is treated as a capital transaction but
which does not result in the dissolution of the Partnership pursuant
to Article 9 hereof; and (iii) other sources and amounts which the
General Partner determines are no longer reasonably necessary or
appropriate to be maintained in reserves created pursuant to Section
4.3(N) hereof (but excluding Capital Contributions of Partners and
proceeds of loans) less (1) the operating expenses of the Partnership
in connection with the operation and management of the business
(including but not limited to management fees and expenses, payments
of interest on debt service,
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Partnership accounting, audit and legal expenses, but excluding
expenses which are paid from Capital Contributions, borrowings and
Partnership reserves); (2) such amounts as may reasonably be deemed
necessary or appropriate by the General Partner to be maintained in
reserves created pursuant to Section 4.3(N) hereof, or any other
reserves, and sums that are contributed to such reserves by the
Partnership; and (3) sums expended for acquisitions, repairs,
replacements, maintenance and/or improvements or refinancing costs.
Operations means ACC Operations, Inc., a Delaware corporation.
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Partners means the General Partner and the Limited Partner
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collectively, and Partner shall mean any one of the Partners.
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Partnership means FRONTIERVISION PARTNERS, L.P., the Delaware limited
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partnership organized pursuant to this Agreement.
Partnership Act means the Delaware Revised Uniform Limited Partnership
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Act, as amended from time to time.
Partnership's Accountant means the firm of independent certified
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public accountants retained by the Partnership pursuant to Section 8.3
hereof.
Securities Act means the Securities Act of 1933, as amended.
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2. THE PARTNERSHIP
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2.1 Name. The name of the Partnership shall be FRONTIERVISION PARTNERS,
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L.P., provided, however, that the business of the Partnership may be
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conducted under any other name designated by the General Partner. The
General Partner shall have the authority to change the name of the
Partnership from time to time.
2.2 Offices. The executive office of the Partnership shall be located at
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Xxx Xxxxx Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000. The
Partnership shall maintain such other offices, including one or more
business offices for the CATV System, as the General Partner shall
determine.
2.3 Purposes. The purpose of the Partnership shall be to engage in the
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business of acquiring, owning, operating, developing, maintaining,
promoting, selling and disposing of the CATV System and any other
activity necessary, appropriate, desirable or incidental thereto.
2.4 Authority of the Partnership. In order to carry out its purposes, and
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not in limitation thereof, and as part of its business, the
Partnership is empowered and authorized to do any and all acts
necessary, appropriate, proper, advisable,
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incidental to or convenient for the furtherance and accomplishment of
its purposes, including, but not limited to, the following:
(A) Acquire, operate, maintain, improve, extend, buy, own, sell,
convey, assign, mortgage, pledge, hypothecate or otherwise
encumber, refinance, rent or lease all or any portion of the CATV
System, other real or tangible or intangible personal property or
any interest therein;
(B) Engage in any kind of activity, and engage in, perform and carry
out contracts and agreements of any kind necessary to, in
connection with, or incidental to, accomplishing the purposes of
the Partnership.
(C) Borrow money and issue evidences of indebtedness in furtherance
of the Partnership business and secure any such indebtedness by
mortgage, guaranty, security interest, hypothecation or other
lien;
(D) Maintain and operate the Partnership's assets;
(E) Negotiate for and conclude agreements for the sale, exchange or
other disposition of all or any part of the assets of the
Partnership;
(F) Hire and compensate employees, agents, independent contractors,
attorneys and accountants; and
(G) Bring and defend actions in law or in equity.
2.5 Prohibited Activities. The Partnership shall not:
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(A) Commingle Partnership funds with the separate funds of the
General Partner or its Affiliates or any other person,
partnership or entity; or
(B) Underwrite securities of any other person, other than securities
of other persons controlled directly or indirectly by the
Partnership.
2.6 Execution and Filing of the Amendment to the Certificate. To the
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extent required by law, whenever any additional parties are admitted
as Partners, the General Partner shall, as soon as practicable, amend
and record such changes in the Certificate, and the General Partner
shall do, and continue to do, all other things as may be required or
advisable to maintain the Partnership as a limited partnership
existing pursuant to the laws of the State of Delaware and as provided
herein.
2.7 Other Qualifications. The Partners agree that the Partnership shall
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exist under the laws of the State of Delaware and, to the extent that
the business of the Partnership is conducted in any jurisdiction other
than Delaware, under the laws of such other jurisdiction to the extent
necessary or desirable to do business in such jurisdiction and/or
promote the limitation of liability for the Limited Partners
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in such jurisdiction. Each Partner hereby authorizes the General
Partner to execute on its behalf any document and to take any other
action which may be necessary or desirable in order to permit the
Partnership to do business (or facilitate the doing of business) in
any such jurisdiction and secure the limitation of liability for the
Limited Partners therein.
3. CAPITAL CONTRIBUTIONS
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3.1 Capital Accounts.
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(A) A separate Capital Account shall be maintained for each Partner
and each Partner's Capital Account shall be credited with (1) the
cash, the adjusted basis of property contributed by him to the
Partnership (net of liabilities assumed by the Partnership and
liabilities to which such contributed property is subject) and
the amount of any loans made by him to the Partnership which he
has forgiven and (2) his distributive share of Partnership income
(including income exempt from tax) and gain (or item thereof),
and shall be debited with (a) the cash and the Partnership's
adjusted basis of property distributed to him (net of liabilities
assumed by such Partner and liabilities to which such distributed
property is subject), (b) his distributive share of Partnership
loss and deduction (or item thereof) and (c) his distributive
share of expenditures of the Partnership described in section
705(a)(2)(B) of the Code.
(B) Except as otherwise specifically provided in this Agreement, a
Partner's Capital Account shall be determined after giving effect
to all allocations of items of income, gain, loss and deduction
for transactions effected prior to the time as of which such
determination is made, and to all distributions theretofore made
for such year under Article 7 hereof. Any transferee of a
Partnership interest shall have the same Capital Account as the
Capital Account of the transferor immediately preceding such
transfer except as such Capital Account may be adjusted pursuant
to an election made by the General Partner under Section 8.6
hereof.
3.2 No Return of or Interest on Capital; No Partition. All Capital
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Contributions shall be expended by the General Partner in furtherance
of the business of the Partnership. Except as specifically provided in
this Agreement, no Partner shall be entitled to withdraw any amount
from his Capital Account, demand a return of any amount of his Capital
Contribution or be paid interest on his Capital Contribution or his
Capital Account. Each Partner waives his right to partition
Partnership property.
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3.3 Partnership Interests. Each Partner shall have and own an undivided
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interest in the Partnership equal to its percentage interest in the
Partnership. The percentage interests ("Percentage Interests") of the
Partners in the Partnership are as follows:
Holdings 1%
Operations 99%
4. MANAGEMENT OF THE PARTNERSHIP
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4.1 Rights and duties of Partners; Management Authority. The Limited
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Partner shall take no part in the control, management, direction or
operation of the affairs of the Partnership and shall have no power to
act for or bind the Partnership. At all times the sole control and
management of the Partnership shall rest exclusively with the General
Partner. No prior consent or approval of the Limited Partner shall be
required in respect of any act or transaction to be taken by the
General Partner or the Partnership unless otherwise provided in this
Agreement.
4.2 Fiduciary Duties of General Partner. The General Partner shall have
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fiduciary responsibility for the safekeeping and use of all funds and
assets of the Partnership, whether or not in its immediate possession
or control, and the General Partner shall not employ, or permit
another to employ, such funds or assets in any manner except for the
exclusive benefit of the Partnership.
4.3 Power of the General Partner. The General Partner shall have the
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complete and exclusive right, power and authority to manage and
control all of the business, affairs, assets and properties of the
Partnership and is authorized and empowered to carry out and implement
any and all of the purposes of the Partnership, subject to the terms
of this Agreement. The General Partner shall be required to devote to
the conduct of the business of the Partnership only such time and
attention as it may from time to time deem necessary or desirable.
Subject to any and all limitations expressly set forth in this
Agreement, the General Partner is expressly authorized and directed on
behalf of the Partnership to:
(A) Expend the capital and revenues of the Partnership in furtherance
of Partnership business;
(B) Acquire and convey real property and tangible and intangible
personal property and interests therein including, without
limitation, leases, easements and rights of way and the sale and
resultant leasing back of any such real and personal property;
(C) Open, maintain and close bank accounts and to draw checks and
other orders for the deposit and payment of money;
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(D) Incur indebtedness as may be necessary or appropriate in
connection with the business of the Partnership, and to make,
issue, accept, endorse and execute promissory notes, guaranty
agreements, drafts, bills of exchange, loan agreements and other
instruments and evidences of indebtedness, and to secure the
payment thereof by mortgage, hypothecation, pledge or other
assignment, or granting of security interests in all or any part
of the properties then owned or thereafter acquired by the
Partnership;
(E) Grant replacements of any mortgage, encumbrance, pledge,
hypothecation or other security device, obtain secondary or
other financing, and prepay, in whole or in part, refinance,
increase, modify, consolidate, or extend any loan or any
mortgage, encumbrance, pledge, hypothecation or other
security device given as security therefor;
(F) Execute and deliver deeds, deeds of trust, notes, leases,
subleases, mortgages, bills of sale, financing statements,
security agreements and any and all other instruments
necessary or incidental to the conduct of the business of the
Partnership, including, without limitation, such instruments
and documents as may be requested by any lending institution;
(G) Make investments in interest-bearing and noninterest bearing
bank deposits, money market funds, short-term commercial
paper pending disbursement of the Partnership's funds, or
make such investments in order to provide a source from which
to meet Partnership contingencies;
(H) Subject to Section 4.7 hereof, enter into agreements and
contracts with third parties, terminate such agreements and
institute, defend and settle litigation arising therefrom and
give receipts, releases and discharges with respect to all of
the foregoing and any matters incident thereto;
(I) Maintain, at the expense of the Partnership, adequate records
and accounts of all operations and expenditures;
(J) Purchase, at the expense of the Partnership, liability,
casualty, fire and such other insurance and bonds to protect
the Partnership's properties and business and to protect the
Partners as would normally be carried by an experienced and
prudent entity in the business in which the Partnership is
engaged;
(K) Sell, lease, trade, exchange or otherwise dispose of all or
any portion of the assets of the partnership;
(L) Employ, at the expense of the Partnership, consultants,
accountants, attorneys, brokers, engineers, escrow agents and
other agents or employees and terminate such employment;
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(M) Determine the accounting methods and conventions to be used in
the preparation of all tax returns and make such elections as it
deems appropriate under the Code and tax laws of the states and
other jurisdictions as to the treatment of items of income, gain,
loss, deduction and credit of the Partnership, or any other
method or procedure related to the preparation of tax returns;
(N) To the extent funds of the Partnership are sufficient therefor,
the General Partner may maintain a reserve for operating expenses
in such amount or amounts as may reasonably be deemed necessary
by the General Partner for the proper conduct of the ongoing
operation and business of the Partnership. In addition, to the
extent of available funds, the General Partner may maintain a
replacement reserve account in an amount deemed reasonable by the
General Partner for the purpose of improvement and replacement of
and additions to fixtures and equipment as well as capital
improvements to the CATV System. To the extent it may deem
necessary or advisable, the General Partner shall be entitled to
spend funds deposited in the replacement reserve account, as well
as any other funds of the Partnership, for the acquisition,
repair, replacement, maintenance and/or improvement of the CATV
System.
(O) Prepare or cause to be prepared in conformity with good business
practice all reports that are to be furnished to the Partners or
that are required by taxing bodies or other governmental
agencies, including the financial statements and reports referred
to in Article 8 hereof; and
(P) To enter into, make and perform such contracts, agreements and
other undertakings as may be deemed necessary or advisable for
the conduct of the business of the Partnership, and to do any act
or to execute any document on behalf of the Partnership as the
General partner, in its sole discretion, deems necessary,
convenient, incidental or appropriate to the furtherance of the
business of the Partnership.
4.4 Costs and Expenses. The Partnership shall pay all reasonable costs
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and expenses of the Partnership and shall reimburse the General
Partner or anyone acting on behalf of the General Partner, including
any Affiliate of the General Partner, for all reasonable out-of-pocket
costs incurred in furtherance of the business of the Partnership.
4.5 Permitted Transactions. Any of the Partners and their Affiliates
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may engage in or possess an interest in other business ventures of any
nature and description, independently or with others, including
limited partnerships or other business entities engaged in any and all
aspects of the CATV industry, including, but not limited to, the
acquisition, construction, ownership, operation and management of CATV
systems, including businesses which are competitive with the
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Partnership's business. Neither the Partnership nor the Partners
shall, by virtue of their interest in the Partnership, have any right
in or to such other ventures including any opportunities developed by,
or the income or profits derived from, such other ventures.
4.6 Partners and their Affiliates Dealing with Partnership. The fact
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that any Partner, including a General Partner or any Affiliate of a
General Partner, or any officer or director of any of the foregoing,
is employed by, or is directly or indirectly interested in or
affiliated or connected with, an enterprise engaged by the Partnership
to sell goods, render or perform services, including construction
materials and services for the CATV System, or make loans to the
Partnership shall not prohibit the General Partner from employing such
enterprise or from otherwise dealing with it on behalf of the
Partnership; provided, however, the General Partner or any of its
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Affiliates may contract or otherwise deal with the Partnership for the
provision of goods, services, loans or leases of real or personal
property to the Partnership, only if the General Partner reasonably
determines that the compensation paid or promised for such goods,
services or loans is on terms at least as favorable to the Partnership
as those available from unrelated parties for comparable goods,
services or loans. The Partnership and any Partners as such shall not
have any right in or to any income or profits derived from any such
employment or other dealing by any such enterprise.
4.7 General Partner may be Limited Partners. The General Partner and
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its Affiliates may participate as a Limited Partner on the same terms
and conditions as any other Limited Partner.
4.8 Holding of Property. Property owned by the Partnership shall
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beheld in the name of the Partnership or in nominee name.
5. EXCULPATION AND INDEMNIFICATION
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5.1 Exculpation. No Partner, including the General Partner, shall be
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liable to the Partnership or to any other Partner (other than the
liability of the General Partner to Partners who are holding debt
instruments of the Partnership) for losses or liabilities arising
from any act performed or failure to act in the conduct of the
affairs of the Partnership including the conduct of the affairs
of the Partnership including the conduct of any employee or agent
of the Partnership except in the event that such losses or
liabilities arise from the willful misconduct, gross negligence
or material breach of this Agreement by such Partner, employee or
agent.
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5.2 Indemnification of the General Partner.
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(A) The Partnership shall indemnify and hold harmless the General
Partner and each Partnership employee or agent, against any and
all damages, losses, fines, costs and expenses (including
attorney's fees and disbursements), resulting from or relating in
any way to any claim or demand made or threatened, or any action,
proceeding or investigation commenced or threatened, arising out
of or in any way relating to any action taken or omitted to have
been taken (or alleged to have been taken or omitted to have been
taken) by such person in connection with the organization,
business or other affairs of the Partnership (including any
amounts paid or property transferred, and all costs and expenses,
including attorney's fees and disbursements, incurred in
connection with any settlement of any such claim, action,
proceeding or investigation); provided, however that any
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such action of such person is not determined to constitute
willful misconduct, gross negligence or a material breach of this
Agreement with respect to the matter or matters as to which
indemnity is sought.
(B) For the purposes of section 5.2(A) hereof, the determination that
the action or omission of any person constitutes willful
misconduct, gross negligence or material breach of this Agreement
shall be made by the court of competent jurisdiction or other
body before which the relevant action, proceeding or
investigation is pending. In the absence of a determination shall
be made by independent legal counsel in a written legal opinion
to the Partnership.
(C) Costs and expenses incurred in defending or responding to any
pending or threatened civil or criminal action, proceeding or
investigation may be advanced by the Partnership to the person
who is the subject thereof in advance of the final disposition of
such action, proceeding or investigation, upon receipt of an
undertaking by the person seeking such advance to repay such
amount if it shall ultimately be determined that he is not
entitled to be indemnified pursuant to this Section 5.2.
5.3 Limited Liability of the Limited Partners. Except as
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otherwise provided in the Act and except as and to the extent
expressly assumed by a Partner, a Limited Partner shall be
bound by or personally liable for the liabilities or
obligations of the Partnership beyond the amount of its
Capital Contribution.
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6. RIGHTS, OBLIGATIONS AND REPRESENTATIONS OF LIMITED PARTNERS
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6.1 Liability of Limited Partners. Except in the case of a Limited
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Partner who is also a General Partner:
(A) No Limited Partner shall have any personal liability with
respect to the liabilities or obligations of the Partnership
except to the extent that he expressly and voluntarily assumes
in writing any obligations of the Partnership; and
(B) No Limited Partner shall be personally liable or obligated,
except as otherwise required by law, either (1) to pay to the
Partnership, any other Partner or any creditor of the Partnership
any deficiency in his Capital Account, or (2) to return to the
Partnership or to pay any creditor or any other Partner the
amount of any return of his Capital Contribution to him or other
distribution made to him.
7. ALLOCATIONS OF INCOME AND LOSS FROM OPERATIONS;
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CASH FLOW DISTRIBUTIONS
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7.1 Allocation of Profits, Losses and Credits. All losses, profits
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and credits shall be allocated for purposes of Federal, state
and municipal income taxes to the Partners in accordance with
their Percentage Interests. The term "profits" and "losses" as
used in this Article 7 shall mean taxable income and losses as
determined for Federal income tax purposes using the accounting
methods followed by the Partnership.
7.2 Distributions of Net Cash Flow. For all periods prior to
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dissolution and liquidation of the Partnership in accordance
with Article 9 hereof, all Net Cash Flow shall be distributed
according to the Percentage Interests of the Partners.
7.3 Timing and Amounts of Distributions from Net Cash Flow. Net Cash
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Flow for any fiscal year shall be distributed by the General
Partner at such times and in such amounts as it shall determine
in its sole discretion.
8. ACCOUNTING AND TAX MATTERS
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8.1 Books and Records. The General Partner shall keep, or cause to
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be kept, complete and accurate books of account of the
Partnership's affairs. The books of account shall be kept on the
cash receipts and disbursements method or the accrual method as
the General Partner may elect. Said books of account, together
with all correspondence, papers and other documents, shall be
open for examination by any Partner at the executive office of
the Partnership during reasonable business hours.
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8.2 Fiscal Year. The fiscal year and the taxable year of the
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Partnership shall end as of December 31 of each year; subject to
the right of the General Partner to change the fiscal year and
taxable year of the Partnership.
8.3 Partnership's Accountant. The Partnership's accountant and
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regular independent auditors (the "Partnership Accountant")
shall be selected or changed by the General Partners from time
to time.
8.4 Tax Matters Partner. Holdings is hereby designated as the "Tax
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Matters Partner" in accordance with Section 6231(a)(7) of the
Code and, in connection therewith and in addition to all other
powers given thereunder, shall have all other powers needed to
fully perform hereunder, including, without limitation, the
power to retain all attorneys and accountants of his choice.
Such General Partner shall give notice to each other Partner of
a Partnership audit. The designation made in this paragraph is
hereby expressly consented to by each Partner as an express
condition to becoming a Partner.
8.5 Federal Income Tax Elections. In the event of a distribution of
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property to a Partner or the transfer of an interest in the
Partnership by sale, exchange or upon the death of a Partner,
the General Partner may, in its discretion, cause the Partnership to
file an election under Section 754 of the Code in accordance with the
Regulations promulgated thereunder to adjust the basis of Partnership
property in the manner provided in Sections 734 and 743 of the Code.
All other elections required or permitted to be made by the
Partnership under the Code shall be made by the General Partner in
such manner as in its reasonable judgment will be most advantageous to
the Partners. The General Partner may, in its discretion, make an
election under Section 754 of the Code and the General Partner shall
be absolved from all liability for any and all consequences to any
previously admitted or subsequently admitted Partners resulting from
its making or failing to make such election. Upon request each of the
Partners will supply the information necessary to give proper effect
to any such election.
8.6 Deposit of Partnership Funds. All revenues, assessments, bank
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loan proceeds and other receipts will be deposited and maintained in
such account or accounts and all expenses, costs and the like will be
paid from such account or accounts by the General Partner for
Partnership purposes. Partnership revenue and proceeds of borrowings
by the Partnership will be maintained on deposit (including time
deposits) in such account or accounts, with or without interest, or
invested in short-term governmental securities, certificates of
deposit, or commercial paper as the General Partner, in its reasonable
discretion, deems advisable. Partnership funds on deposit shall be
withdrawn on the signature or oral authorization of the General
Partner or such other person or persons as the General Partner shall
authorize. Any interest or other income generated by such deposits or
investments will be for the Partnership's account. Partnership funds
from any of the various sources mentioned above may not be commingled
with the separate
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funds of the General Partner or its Affiliates or any other person,
partnership or entity, and may be withdrawn, expended and distributed
only as authorized by the terms and provisions of this Agreement.
9. TERM AND DISSOLUTION
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9.1 Term. The term of the Partnership commenced on the date of the
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filing of the Certificate and shall continue until terminated
pursuant to the provisions of this Agreement.
9.2 Dissolution. The Partnership shall be dissolved and shall
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terminate and wind-up its affairs upon the first to occur of the
following:
(A) The determination by the General Partner that the
Partnership should be dissolved;
(B) The entry of a final judgment, order or decree of a court
of competent jurisdiction adjudicating the Partnership to
be a bankrupt, and the expiration of the period, if any,
allowed by applicable law in which to appeal therefrom;
(C) The resignation, removal, dissolution, adjudication of
bankruptcy or incompetence or the death of a General
Partner if (1) there is no remaining General Partner or
(2) if a successor General Partner is not timely
designated in accordance with Article 11 hereof;
(D) The sale of the CATV System or otherwise of all or
substantially all Partnership assets; or
(E) Any other event which under applicable law results in the
dissolution of the Partnership, unless the intent to dissolve
upon the occurrence of such event is expressly negated by the
provisions of this Agreement.
9.3 Obligation to Repay Negative Capital Accounts. Upon the dissolution of
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the Partnership and liquidation of its assets pursuant to Section
9.4(A)(2), any General Partner who has a negative balance in his
Capital Account shall be obligated to pay to the Partnership, in cash,
an amount equal to such negative balance, which amount shall be
applied and distributed as provided in Section 9.4 hereof; provided,
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however, that in no event shall the obligation of the General Partner
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under this Section 9.3 exceed the aggregate amount of $50,000.
Notwithstanding the foregoing, upon the dissolution and liquidation of
the Partnership, the General Partner will in all events contribute to
the Partnership an amount equal to the lesser of (I) the deficit
balance in their Capital Accounts; or (ii) the excess of 1.01 percent
of the total Capital Contributions of the Limited
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Partners over the Capital Contributions previously contributed by
the General Partner.
9.4 Gain, Loss, and Distribution on Liquidation. Upon the dissolution
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of the Partnership pursuant to Section 9.2, each of the following
shall occur:
(A) The General Partner, or in the event of the resignation,
death, adjudication of insanity or bankruptcy of the last
remaining General Partner such liquidating agents as may be
appointed by a majority of the Partners, shall:
(1) Cause to be prepared a statement setting forth the assets
and liabilities of the Partnership as of the date of the
termination or dissolution, and such statement shall be
furnished to all Partners;
(2) Liquidate the Partnership assets as promptly as possible in
an orderly and businesslike manner so as not to involve
undue detriment;
(3) Proceed to collect from the Partners the amounts , if any,
required to be paid pursuant to Section 9.3 hereof in
respect of negative balances, if any, in their respective
Capital Accounts; and
(4) Distribute the assets of the Partnership in accordance with
Section 9.4(D).
(B) Any income or gain as determined for Federal income tax purposes
realized by the Partnership upon the sale of the CATV System or
all or substantially all of the Partnership assets (after
crediting or charging thereto the appropriate portion of all net
income, net losses and other items for the then current year, and
all depreciation for such year), and after giving effect to all
amounts distributed or to be distributed for such year from
operations prior to the time of liquidation, shall be allocated
to the Capital Accounts of the Partners in accordance with the
allocation provisions of Section 7.1 hereof.
(C) Any net loss incurred by the Partnership upon the sale or other
disposition of assets upon termination or dissolution pursuant to
this Section 9.4 shall be charged to the Capital Accounts of the
Partners (after crediting or charging thereto the appropriate
portion of all net income, net losses and other items and all
depreciation for such year, and after giving effect to all
distributions for such year) in accordance with the allocation
provisions of Section 7.1 hereof.
(D) In the case of the liquidation and dissolution of the
Partnership, the proceeds from the sale or other disposition of
the assets of the Partnership
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shall be applied and distributed as follows and in the following
order of priority:
(1) To the payment of the debt and liabilities of the
Partnership; and
(2) The remaining balance, if any, in accordance with the
positive balances in the Partners' Capital Accounts.
10. TRANSFERS OF PARTNERSHIP INTERESTS
----------------------------------
10.1 Binding Effect and Benefit of this Agreement. This Agreement
--------------------------------------------
shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective heirs, executors, administrators,
successors and assigns.
10.2 Transfer of Partner's Interests in the Partnership. Except as
--------------------------------------------------
otherwise provided in this Agreement, the Partners shall have the
right to transfer their interests in the Partnership as provided in
the Act. No sale or other disposition of the interest of a Limited
Partner shall be made except in accordance with the Securities Act and
the rules and regulations promulgated thereunder and any applicable
state securities laws and regulations, as the same may be amended from
time to time, and upon request of the General Partner, an opinion of
counsel satisfactory to the General Partner to the effect that the
transfer as proposed to be made will comply in all respects with the
Securities Act, the rules and regulations promulgated thereunder, and
any applicable state securities laws and regulations. A Limited
Partner who proposes to transfer any or all of its limited partnership
interest in the Partnership shall be required to pay to the
Partnership a sum sufficient to cover all reasonable expenses
(including legal and accounting fees) in connection with the General
Partner's consideration and processing of such proposed transfer. No
transfer or assignment of a Limited Partner's interest in the
Partnership may be made without the prior written consent of the
General Partner, which consent, may be given or withheld in the sole
discretion of the General Partner.
10.3 Substitution of a Limited Partner.
---------------------------------
(A) No assignee (including, without limitation, any transferee, heir,
legatee or purchaser) of all or any part of a Partnership
interest of a Limited Partner shall be substituted as a Limited
Partner without the prior written consent of he General Partner.
The consent of the General Partner within its sole discretion and
in no event shall such consent be given unless the assignee shall
have:
(1) Accepted and assumed, in form satisfactory to the General
Partner, all the terms and provisions of this Agreement;
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(2) Provided, if requested by the General Partner, an opinion of
counsel, in form and substance satisfactory to counsel for
the Partnership, that neither the offering nor the
assignment of the Partnership interest violates any
registration provision of any Federal or State securities or
comparable law;
(3) Executed such other documents or instruments, or provided
such other opinions of counsel, as the General Partner may
require to effect the admission of such assignee as a
substituted Limited Partner; and
(4) Paid all legal, accounting, recording and other expenses as
the Partnership may incur in connection with such
substitution.
(B) The term "Limited Partner" as used in this Agreement shall
include the assignee of the whole or part of a Partnership
interest of a Limited Partner only if such assignee shall have
become a substituted Limited Partner in accordance with this
Agreement.
(C) The General Partner is authorized without requesting the consent
of the Limited Partners in each case, to amend this Agreement and
the Certificate to reflect the admission of any person complying
with the aforesaid provisions of Section 10.3(A) and each Partner
agrees to execute such amendment or authorizes the General
Partner to executes such amendment on its/his behalf.
10.4 Amendment of Certificate. After a person has become an additional
------------------------
or substituted Partner, the General Partner shall cause an amendment
to the Certificate to be prepared and recorded promptly, and each
Limited Partner agrees that his attorney-in-fact (appointed in
accordance with Section 12.2 hereof) may execute such amendment on his
behalf and each General Partner who may hereafter withdraw from the
Partnership appoints any remaining or successor General Partner his
attorney-in-fact and agrees that said attorney-in-fact may execute
such amendment on his behalf. However, the Partnership shall recognize
the substituted Partner by no later than ten days after the date on
which such assignee satisfies the conditions of this Article 10, even
if the amendment to the Certificate is filed subsequently.
11. WITHDRAWAL OF GENERAL PARTNER, SUCCESSOR GENERAL PARTNER
--------------------------------------------------------
11.1 Removal or Bankruptcy of a General Partner. A General Partner may be
------------------------------------------
removed by the action of two-thirds of the Percentage Interest of the
other Partners in the Partnership only for specified conduct
constituting gross negligence, willful misconduct and material breach
of this Agreement and such action shall effectuate
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the removal of such General Partner until such time as a court of
competent jurisdiction shall determine that such specified conduct did
not constitute gross negligence, willful misconduct or material breach
of this Agreement. A General Partner shall be automatically removed
without action by the Partners in the event of his filing of a
voluntary petition in bankruptcy, the filing of an involuntary
petition in bankruptcy against him which is not withdrawn within 30
days of such filing or a final adjudication of bankruptcy against him.
Notwithstanding the foregoing, no General Partner shall be removed
until such General Partner shall have been indemnified by the
Partnership regarding Partnership obligations arising after the
effective date of his or its removal. However, the foregoing sentence
of this Section shall not reduce the General Partner's liability for
his willful misconduct, gross negligence or material breach of this
Agreement.
11.2 Removal or Bankruptcy of Last Remaining General Partner. The
-------------------------------------------------------
removal, filing of a voluntary petition in bankruptcy, filing of an
involuntary petition in bankruptcy which is not withdrawn within 30
days of such filing or a final adjudication of bankruptcy of the last
remaining General Partner will cause the dissolution of the
Partnership unless within 60 days of such event Adelphia
Communications Corporation, or its designated Affiliate acceptable to
a majority of the Limited Partners, agrees to become the successor
General Partner. If Adelphia refuses to become or to designate an
Affiliate to become the successor General Partner or, if at the time
of the removal or final adjudication of bankruptcy of such General
Partner, Adelphia is no longer an Affiliate of the General Partner,
then a majority of the Limited Partners may elect a successor General
Partner not later than 90 days after the expiration of the
aforementioned 60 day period. A person or entity who becomes a
successor General Partner pursuant to this Section 11.2, shall
immediately upon such succession receive a one percent interest in all
allocations and distributions of the Partnership otherwise allocable
to the former General Partner and the Partnership interest of the
former General Partner shall be reduced by said one percent interest
transferred to the successor General Partner.
11.3 Purchase of Former General Partner's Interest. In the event of the
---------------------------------------------
removal or withdrawal of a General Partner pursuant to Section 11.1
and the continuation of the Partnership under either the successor
General Partner or any remaining General Partner and unless the former
General partner and successor or remaining General Partner agree on
the terms of a purchase of the former General Partner's interest by
the successor or remaining General Partner, such successor or
remaining General Partner, at his sole election, may request that a
valuation of the former General Partner's interest at the time of
withdrawal (which shall exclude the one percent interest transferred
to the successor General Partner under Section 11.2) be made by two
independent appraisers, one selected by the former General Partner (or
his legal representative) and one selected by the successor General
Partner. In the event such two appraisers are unable to agree on the
valuation, they shall jointly appoint a third independent appraiser
whose determination shall
-17-
be final and binding. The former General Partner and the successor or
remaining General Partner shall each forfeit their respective right to
have an appraisal made by an appraiser selected by him if his
appraiser shall fail to render such appraisal within 60 days after the
successor General Partner is designated or, if a General Partner is
remaining, within 60 days after the removal or final adjudication of
bankruptcy of the former General Partner. The former General Partner
and the successor or remaining General Partner shall each bear the
fees of the appraiser he selects and they shall share equally the fees
of the third appraiser, if any. The successor or remaining General
Partner shall be entitled, at his sole election, to purchase all or
any portion of the former General Partner's interest at 90% of the
appraised valuation either agreed to by the first two appraisers or
determined by the third appraiser, as the case may be. Unless the
former General Partner and the successor or remaining General Partner
otherwise agree, the purchase price shall be payable by the delivery
of a nonrecourse promissory note (secured only by the Partnership
interest so acquired) payable in five equal annual installments,
subject to acceleration upon the liquidation of the Partnership, and
bearing simple interest at the rate of 9% per annum. In the event that
all of the former General Partner's interest is not sold or otherwise
transferred to the successor or remaining General Partner, the former
General Partner shall be treated as provided in Section 11.5 hereof.
Notwithstanding the foregoing, any successor or last remaining General
Partner must at all times maintain at least a 1% interest in all items
of Partnership income, gain, loss, deduction and credit.
11.4 Continuation of the Partnership After Death, Incompetence or
------------------------------------------------------------
Resignation of Last Remaining General Partner. Within 120 days
---------------------------------------------
after the withdrawal by the last remaining General Partner because of
his death, final adjudication of incompetence or resignation, the
former General Partner (or his executor, administrator, conservator or
other personal representative) shall designate as successor General
Partner either Adelphia or an Affiliate of Adelphia (if at that time
Adelphia is an Affiliate of the General Partner) or other person or
entity who is approved by a majority of the Limited Partners. A person
or entity who becomes a successor General Partner pursuant to this
Section 11.4 shall immediately upon such succession receive a one
percent interest in all allocations and distributions of the
Partnership otherwise allocable to the former General Partner and the
Partnership interest of the former General Partner shall be reduced by
said one percent interest transferred to the successor General
Partner. All or any portion of the remainder of the former General
Partner's interest may be transferred to the successor General Partner
on such terms as they shall agree and, if they fail to agree, then the
interest of such former General Partner, at the sole election of the
successor General Partner, may be appraised and sold to the successor
General Partner in the manner described in Section 11.3. Any portion
of such former General Partner's interest which is not transferred to
the successor General Partner shall be treated as provided in Section
11.5. The last remaining General Partner may resign from the
Partnership only by designating as successor
-18-
General Partner either Adelphia, an Affiliate of Adelphia or a person
or entity who is approved by a majority of the Limited Partners prior
to his resignation.
11.5 Status of Former General Partner. If any General Partner is
--------------------------------
removed pursuant to Section 11.1, or withdraws pursuant to Section
11.4, and does not sell or otherwise transfer all his Partnership
interest to the successor or remaining General Partner, such former
General Partner's interest shall be converted to a special class of
limited partner interest with respect to that portion of Partnership
interest retained by him and, as such, shall not have any right to
participate in the management of the business of the Partnership,
shall not be deemed a Limited Partner for purposes of any action
requiring the approval of Limited Partners, shall not be entitled to
vote on any Partnership matter and shall not be entitled to any amount
or distribution allocable or payable to or among the Limited Partners.
Such special limited partner shall be entitled to all allocations and
distributions which would have been allocable or payable if such
special limited partner had remained a General Partner, with respect
to that portion of his Partnership interest not transferred to the
successor General Partner pursuant to Section 11.2 or Section 11.4, as
the case may be, or not sold pursuant to Section 11.3 or Section 11.4,
as the case may be.
11.6 Additional General Partners. An additional General Partner may be
---------------------------
designated by the General Partners at any time upon the consent of a
majority of the Limited Partners upon and subject to execution of this
Agreement as a party hereto and such other documents and instruments
as may be necessary or appropriate to affect the admission of such
person as a General Partner. Any such additional General Partner shall
have all the rights and obligations of a General Partner, provided
that the amount of his interest in the allocations and distributions
of the Partnership shall be as agreed to among the General Partners
and such additional General Partner.
12. GENERAL PROVISIONS
------------------
12.1 Certificates, etc. At the expense of the Partnership, the General
-----------------
Partner shall promptly have prepared and executed all legally required
fictitious name or other applications, registrations, publications,
certificates and affidavits for filing with the proper governmental
authorities and have arranged for the proper advertisement,
publication and filing of record thereof.
12.2 Partners' Relationships Inter Se. Nothing herein contained shall
--------------------------------
be construed to constitute any Partner the agent of any other Partner,
except as expressly provided herein, or in any manner to limit the
Partners in the carrying on of their own respective business or
activities.
-19-
12.3 Notices, etc. Except as otherwise expressly provided herein, all
------------
notices which are required or contemplated by this Agreement shall be
in writing. Delivery of such notices shall be deemed to be made when
the same are either personally served upon the person entitled thereto
or deposited in the mails, by certified or registered mail, with
postage prepaid or delivered to the telegraph company, addressed to
such person at his last known mailing address.
12.4 Integration and Amendments. This Agreement represents the entire
--------------------------
understanding of the parties with respect to the subject matter
hereof. No termination, revocation, waiver, modification or amendment
of this Agreement shall be binding unless in writing and approved by
the General Partners and a majority of the Limited Partners; provided,
--------
however, that approval of the Limited Partners shall not be required
-------
in the case of any amendment or supplement made to this Agreement by
the General Partners pursuant to this Section 12.4 of any other
provision of this Agreement specifically authorizing such amendment or
supplement to be made without the approval of such Partners; and,
provided, further, that no amendment or supplement shall be made to
-----------------
this Agreement if such amendment or supplement would: (a) result in
the loss of any Limited Partner's limited liability; (b) amend this
Section 12.4, or (c) amend Articles 3, 7 and/or 9 of this Agreement,
in each such case, in a manner which would have a materially adverse
effect upon the Limited Partners, without the unanimous consent of
such Partners. A Partner shall be deemed to have consented to any
amendment or supplement hereto if he does not respond in writing to a
written request for such approval, accompanied by the text of the
proposed amendment or supplement, within 30 days after the date of
mailing of the same to him by a General Partner. Notice of any
amendment or supplement made to this Agreement shall be sent to all of
the Partners. Notwithstanding the foregoing, the General Partner is
specifically authorized, without being required to obtain the approval
of the Limited Partners to enter into any amendment to this Agreement
which it shall deem necessary or desirable in order to satisfy any
requirements, conditions, guidelines or options contained in any
opinion, directive, order, ruling or regulation of the Securities and
Exchange Commission, the Internal Revenue Service or any other
Federal, state or local governmental authority or agency, or to comply
with any Federal, state or local law, rule or regulation of any
judgment, decree, writ, injunction or order of any court,
administrative agency , arbitrator or governmental authority or
agency.
12.5 Interpretation. This Agreement shall be interpreted and construed
--------------
in accordance with the laws of the State of Delaware. As used in this
Agreement, the masculine gender shall include the feminine or neuter
gender, and the plural shall include the singular wherever
appropriate. The titles of the Articles and Sections herein have been
inserted as a matter of convenience of reference only and shall not
control or affect the meaning or construction of any of the terms or
provisions hereof.
-20-
12.6 Counterparts. The parties hereto may execute this Agreement in any
------------
number of counterparts, each of which, when executed and delivered,
shall be an original; but all such counterparts shall constitute one
and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Limited
Partnership Agreement on the date and year first above written.
GENERAL PARTNER:
ADELPHIA GP HOLDINGS, LLC
By: ACC Operations, Inc., Sole Member
By:/s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
LIMITED PARTNER:
ACC OPERATIONS, INC.
By: /s/Xxxxxxx X. Xxxxx
-------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
-22-
