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EXHIBIT 10.2(c)
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Agreement") is made as of the
fourteenth day of February, 2000, by and among each of CC VIII Operating, LLC, a
Delaware limited liability company ("CC VIII Operating"), Charter Telephone of
Michigan, LLC, a Delaware limited liability company ("Charter Michigan"),
Charter Telephone of Minnesota, LLC, a Delaware limited liability company
("Charter Minnesota") and Midwest Video Electronics, Inc., a Minnesota
corporation ("Midwest" and collectively with CC VIII Operating, Charter
Michigan, and Charter Minnesota, 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 (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 are 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:
(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
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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 of, or directly negotiate,
on behalf of the Company, 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 Cable Systems and
assistance in the procuring, or directly procuring, on behalf of the Company,
such programming, billing and other services and equipment deemed necessary and
advisable 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 accountants.
3. Management Expenses.
(a) The Manager shall charge to, or be reimbursed by the Company
for, all expenses, costs, losses, liabilities or damages incurred by the Manager
attributable to the ownership or operation of the Cable Systems, including,
where applicable, pro rata allocation for services and purchases made by the
Manager on behalf of the Cable Systems and other companies and cable systems
managed by the Manager, subject to the limitations set forth in Section 6 (the
"Company Expenses"). In addition to reimbursement for Company Expenses, the
Manager shall be reimbursed for all other expenses, costs, losses, liabilities
or damages incurred by the Manager in connection with the performance of its
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duties hereunder, including, without limitation, the Manager's costs for
overhead, administration and salaries (collectively, the "Management Fee"),
provided that the Management Fee shall not include expenses incurred by Manager
that are in the nature of the "Company Expenses" and are paid to the Manager by
another company or cable system managed by Manager. Management Fees shall only
be paid to the Manager by the Company to the extent permitted by the Credit
Agreement (as defined below) and any other material agreement applicable to the
Company or the Manager.
Notwithstanding the foregoing, the Management Fees
(but not other Company Expenses) due and payable as provided in the preceding
paragraph of 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
Fees is made, and in any Reorganization any amount payable in respect of the
Management Fees shall be paid directly to the Administrative Agent referred to
below, unless all the Senior Debt has been paid in full in cash. The Manager
hereby irrevocably authorizes the Administrative Agent (under and as defined in
the Credit Agreement), 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 Fees and to demand, xxx for, collect and receive any such payment.
The Manager shall take any actions requested by the Administrative 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 Administrative 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 Fees will bear interest at the rate of ten percent
(10%) per annum, 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 February 2, 1999, as amended and restated as of
February ___, 2000 among CC VIII Holdings, LLC, a Delaware limited liability
company, CC VIII Operating, as borrower thereunder, the Lenders parties thereto
and the Documentation Agents, Syndication Agents and Administrative Agent 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 the Company
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 the Company 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 in the
preceding paragraphs
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above, remain entitled (i) to receive the Management Fees set forth in Section
3(a) incurred prior to the date of termination which have not been paid to the
Company; and (ii) to receive payment of the deferred Management Fees at the time
of such termination if, and to the extent that, payment thereof is otherwise
permitted under Section 3(a).
4. Term of Agreement. The term of this Agreement shall be ten years
commencing on the date hereof, 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.
5. 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, 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.
6. 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:
c/o Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
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(b) If to the Manager:
Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
7. 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.
8. 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 supersedes all prior agreements and understandings relating to the
subject matter hereof. The headings in this 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.
"Company"
CC VIII OPERATING, LLC
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
CHARTER TELEPHONE OF MICHIGAN, LLC,
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
CHARTER TELEPHONE OF MINNESOTA, LLC,
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
MIDWEST VIDEO ELECTRONICS, INC.
a Minnesota corporation
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
CHARTER COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
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