EXHIBIT 3.11
AMENDMENT NO. 1
TO THE
FIRST AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF FVP GP, L.P.
DATED AS OF AUGUST 11, 1995
-----------------------------------------
This Amendment No. 1 to the First Amended and Restated Agreement of Limited
Partnership of FVP GP, L.P., dated as of August 11, 1995 (the "Agreement"), is
dated as of September __, 1996.
The Agreement is hereby amended as follows:
1. Paragraph 2.5 of the Agreement is hereby amended by replacing the
clause "June 30, 2002, which period shall be extended by the General Partner for
up to two additional one-year periods from such date" with the clause "December
31, 2005, which period shall be extended by the General Partner to a date not
later than June 30, 2007,".
2. Paragraph 3.11 of the Agreement is hereby amended and restated to read
in its entirety as set forth on Exhibit A hereto.
3. A new paragraph 3.12 is hereby added, to read in its entirety as set
forth on Exhibit B hereto.
4. Schedule A to the Agreement is hereby amended to read in its entirety
as set forth in the Schedule A attached hereto.
Except as expressly amended hereby, the Agreement is, and shall remain, in
full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1 as
of the ____ day of September, 1996.
GENERAL PARTNER:
---------------
FRONTIERVISION INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: President
LIMITED PARTNERS:
----------------
X.X. XXXXXX INVESTMENT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
------------------------
Title: Vice President
-----------------------
1818 II CABLE CORP.
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
---------------------------
Title: Secretary
--------------------------
OLYMPUS CABLE CORP.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: President
--------------------------
FIRST UNION CAPITAL PARTNERS,
INC.
By: /s/ X. Xxxxx Xxxxxxx, III
-----------------------------
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Name: X. Xxxxx Xxxxxxx, III
___________________________
Title: Senior Vice President
__________________________
/s/ Xxxxx X. Xxxxxx
____________________________________
XXXXX X. XXXXXX
/s/ Xxxx X. Xxx
____________________________________
XXXX X. XXX
Accepted and agreed to
as to paragraph 3.11(e):
/s/ Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxx
------------------------
Xxxx X. Xxx
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Exhibit A
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To Amendment No. 1 to the
First Amended and Restated Agreement of
Limited Partnership of FVP GP, L.P.
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3.11 Deferral of Capital Commitment Payments; Loans.
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(a) Each Partner shall have an absolute and unconditional obligation
to make payments with respect to such Partner's Capital Commitment as provided
in paragraph 3.3.1. However, Xx. Xxxxxx has advised the Partnership that he
wishes to defer making payments with respect to his Capital Commitment in excess
of $149,957.55 until the earlier of (the "Final Payment Date") (i) June 30, 2007
and (ii) such time as the Partnership has been liquidated and any liquidation
proceeds have been distributed to the Partners. Xx. Xxxxxx shall have an
absolute obligation to pay his Capital Commitment obligation in excess of
$149,957.55 on the Final Payment Date (to the extent such payment has been
called by the Partnership and has not previously been made by Xx. Xxxxxx). Any
failure by Xx. Xxxxxx to make such payments at such time shall constitute a
material breach of, and default under, this Agreement. In addition, in the
event that at any time or from time to time after August 15, 1996 Xx. Xxxxxx
receives payments in respect of his interests as a limited partner of, or as a
participant in certain bonus pools relating to, various partnerships affiliated
with Triax Communications Corporation (each such event a "Xxxxxx Funding
Event"), he shall be required to make payments with respect to his Capital
Commitment (to the extent such payments have been called by the Partnership and
have not previously been made by Xx. Xxxxxx) to the extent of the net after tax
proceeds of such payments (each such payment a "Xxxxxx Funding Payment"),
calculated using the highest effective marginal combined federal and applicable
state and local income tax rate then in effect. Any failure by Xx. Xxxxxx to
make such payments at such time shall constitute a material breach of, and
default under, this Agreement. If Xx. Xxxxxx shall fail to make any payment
with respect to his Capital Commitment obligation prior to the Final Payment
Date (in which case, he shall be a "Non-Paying Partner"), he shall not be deemed
to have breached, or to be in default under, this Agreement provided that at the
time of such nonpayment (i) he otherwise is in compliance with the terms and
provisions of this Agreement and
(ii) he has made (and thereafter shall continue to make) the Xxxxxx Funding
Payments upon the occurrence of the Xxxxxx Funding Events. Similarly, Xx. Xxx
has advised the Partnership that he wishes to defer making payments with respect
to his Capital Commitment in excess of $80,914.86 until the Final Payment Date.
Xx. Xxx shall have an absolute obligation to make all payments with respect to
his Capital Commitment (to the extent such payments have been called by the
Partnership and have not previously been made by Xx. Xxx) no later than the
Final Payment Date. Any failure by Xx. Xxx to make such payments at such time
shall constitute a material breach of, and default under, this Agreement. If Xx.
Xxx shall fail to make any payment with respect to his Capital Commitment prior
to the Final Payment Date (in which case he shall be a "Non-Paying Partner"), he
shall not be deemed to have breached, or to be in default under, this Agreement
provided that on such date he otherwise is in compliance with the terms and
provisions of this Agreement. Upon any failure of a Non-Paying Partner to make a
required payment as aforesaid, the Class X and Class Z Limited Partners shall,
in proportion to their Capital Commitments, loan an aggregate amount equal to
such payment to the Partnership (that portion of such aggregate amount loaned by
each such Class X or Class Z Limited Partner, a "Special Loan", and each such
Class X and Class Z Limited Partner, a "Special Lending Partner").
(b) Each Special Loan shall mature on the Final Payment Date and shall
be evidenced by a promissory note (a "Special Note") of the Partnership payable
to the Lending Partner in the amount of the Special Loan. Interest on the
original principal amount of each Special Loan, at the rate of 12% per annum,
compounded annually (or, if less, the maximum rate permitted by applicable
provisions of law) shall be payable on the date such Special Loan is paid. Any
capital contributions made by the Non-Paying Partner for whose benefit the
Special Loan was made, any distributions that otherwise would have been made to
such Non-Paying Partner (except, in the case of distributions, for "Permitted
Distributions" (as defined in paragraph 3.11(f) below), which will continue to
be distributed to the Non-Paying Partner) and any Deferred Compensation Payments
(as hereinafter defined) that otherwise would have been paid by FrontierVision
to such Non-Paying Partner (except, in the case of Deferred Compensation
Payments, for amounts necessary to enable the Non-Paying Partner to pay taxes on
the related income, which will continue to be paid) will be applied to reduce
the Special Loans
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(including accrued interest) made with respect to such Non-Paying Partner and,
in the case of distributions and Deferred Compensation Payments, will be treated
as if they had been distributed or paid, as applicable, to such Non-Paying
Partner and then were contributed by such Non-Paying Partner to the Partnership
in respect of his Capital Commitment. To the extent (if any) of the amount of
the principal of, and accrued interest on, a Special Loan that is repaid by the
Partnership other than out of capital contributions made by, or distributions
that otherwise would have been made to, or Deferred Compensation Payments that
otherwise would have been paid by FrontierVision to, the Non-Paying Partner for
whose benefit the Special Loan was made (e.g., out of amounts that otherwise
----
would have been available to pay distributions to the Partners other than the
Non-Paying Partner) (the "Repayment Amount"), whether by reason of the maturity
of the Special Loan prior to sufficient available capital contributions by and
distributions to the Non-Paying Partner, its acceleration or otherwise, any
capital contributions thereafter made by, any distributions that thereafter
would have been made to, and any Deferred Compensation Payments that thereafter
would have been paid by FrontierVision to, the Non-Paying Partner for whose
benefit the Special Loan was made (except, in the case of distributions and
Deferred Compensation Payments, for amounts necessary to enable the Non-Paying
Partner to pay taxes on his allocable share of the related income, which will
continue to be distributed or paid, as applicable) will be distributed to the
other Partners in proportion to their Capital Commitments, until the other
Partners have so received an amount equal to the Repayment Amount and, in the
case of distributions and Deferred Compensation Payments, will be treated as if
such amounts had been distributed or paid, as applicable, to the Non-Paying
Partner and then were contributed by such Non-Paying Partner to the Partnership
in respect of his Capital Commitment. Each Special Loan shall be non-recourse to
any Partner of the Partnership, other than the Non-Paying Partner for whose
benefit the Special Loan was made. As used in this paragraph 3.11(b), "Deferred
Compensation Payments" means amounts payable to a Partner pursuant to the
FrontierVision Executive Deferred Compensation Plan, as amended from time to
time.
(c) When and as a Non-Paying Partner makes the payments in respect of
his Capital Commitment that he previously deferred, he shall make such payments
as a Capital Contribution to the Partnership and the proceeds thereof shall be
applied to
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the reduction of the Special Loan(s) made with respect to such Non-Paying
Partner.
(d) If any of the following events shall occur and be continuing for
any reason whatsoever (and whether it shall be voluntary or involuntary or occur
or be effected by operation of law or otherwise):
(i) the Partnership defaults in the payment when due of any
principal of or interest on any Special Loan or Special Note,
(ii) any event of default occurs (and is not waived) under the
Senior Subordinated Notes or Junior Subordinated Notes, or any other
indebtedness of the Partnership, FrontierVision or any Operating Entity for
borrowed money in an aggregate amount in excess of $5,000,000, and, as a
result of such event of default, such indebtedness becomes or is declared
due and payable prior to its stated maturity,
(iii) the Partnership, FrontierVision or any Operating Entity
shall (A) be generally not paying its debts as they become due, (B) file,
or consent by answer or otherwise to the filing against it of, a petition
for relief or reorganization or arrangement or any other petition in
bankruptcy, for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, (C) make an assignment for the benefit
of its creditors, (D) consent to the appointment of a custodian, receiver,
trustee or other officer with similar powers of itself or of any
substantial part of its property, (E) be adjudicated insolvent or be
liquidated or (F) take partnership action for the purpose of any of the
foregoing, or
(iv) a court or governmental authority of competent jurisdiction
shall enter an order appointing, without consent by the Partnership,
FrontierVision or the Operating Entity, as applicable, a custodian,
receiver, trustee or other officer with similar powers with respect to it
or with respect to any substantial part of its property, or if an order for
relief shall be entered in any case or proceeding for liquidation or
reorganization or otherwise to take advantage of any bankruptcy or
insolvency law of any
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jurisdiction, or ordering the dissolution, winding-up or liquidation of the
Partnership, FrontierVision or any Operating Entity, or if any petition for
any such relief shall be filed against the Partnership, FrontierVision or
any Operating Entity and such petition shall not be dismissed within 60
days,
then (x) upon the occurrence of any event of default described in clause (iii)
or (iv), the unpaid principal amount of and the accrued interest on the Special
Notes shall automatically become immediately due and payable, without
presentment, demand, protest or other requirements of any kind, all of which are
hereby expressly waived by the Partnership or (y) upon the occurrence of any
other event of default, the holder or holders of at least 51% of the unpaid
principal amount of the Special Notes at the time outstanding may, by written
notice to the Partnership, declare all of the Special Notes to be, and the same
shall forthwith become, due and payable, together with accrued interest thereon
which shall be deemed matured. Nevertheless, if at any time after acceleration
of the maturity of any Special Note or Notes, the Partnership shall pay all
arrears of interest and all payments on account of principal which shall have
become due otherwise than by acceleration (with interest on principal at the
rate specified in the Special Notes) and all events of default (other than non-
payment of principal of and accrued interest on Special Notes due and payable
solely by virtue of acceleration) shall be remedied or waived by the holder or
holders of at least 51% of the unpaid principal amount of the Special Notes at
the time outstanding by written notice to the Partnership, then the acceleration
and its consequences shall be rescinded and annulled; but such action shall not
affect any subsequent event of default or impair any right consequent thereon.
(e) During such time as any Special Loan is outstanding with respect
to Xx. Xxxxxx or Xx. Xxx, he shall from time to time provide to each of the
Special Lending Partners, within 120 days after a written request therefor, his
personal financial statement as of the date specified in the request.
(f) For purposes of determining the "Permitted Distributions" to which
a Non-Paying Partner is entitled, the Limited Partnership Interest of a Non-
Paying Partner shall be treated as if divided into two Limited Partnership
Interests, one (the "Paid Partnership Interest") with a Capital Commitment equal
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to the Capital Contributions actually made by such Non-Paying Partner to the
Partnership (expressly excluding any distributions applied to reduce the Special
Loans and treated as contributions by the Non-Paying Partner) and the other (the
"Unpaid Partnership Interest") with a Capital Commitment equal to the amount by
which the Capital Commitment of the Non-Paying Partner exceeds the Capital
Contributions actually made by such Non-Paying Partner to the Partnership
(expressly excluding any distributions applied to reduce the Special Loans and
treated as contributions by the Non-Paying Partner). With respect to the Non-
Paying Partner's Paid Partnership Interest, "Permitted Distributions" shall mean
distributions of an amount equal to the greater of (i) the amount of
distributions that are payable in respect of the Paid Partnership Interest
pursuant to paragraph 4.2, but only if, and to the extent that, (A) no event of
default of a type described in paragraph 3.11(d) has occurred and (B) after
giving effect to such distributions, the fair market value of such Non-Paying
Partner's Limited Partnership Interest in the Partnership (as determined in good
faith by the General Partner with the Consent of the Special Lending Partners
whose Special Loans represent at least 51% of the principal amount of all
Special Loans made in respect of such Non-Paying Partner) exceeds 150% of the
sum of the then outstanding principal amount of, and accrued interest on, all
Special Loans made in respect of such Non-Paying Partner and all then existing
unused commitments of the Class X and Class Z Limited Partners to make Special
Loans in respect of such Non-Paying Partner; and (ii) the amount necessary to
enable the Non-Paying Partner to pay taxes on his allocable share of the taxable
income that relates to the distributions that, but for paragraph 3.11(b), would
have been payable to the Non-Paying Partner in respect of his Paid Partnership
Interest. With respect to the Non-Paying Partner's Unpaid Partnership Interest,
"Permitted Distributions" shall mean distributions of the amount necessary to
enable the Non-Paying Partner to pay taxes on his allocable share of the taxable
income that relates to the distributions that, but for paragraph 3.11(b), would
have been payable to the Non-Paying Partner in respect of his Unpaid Partnership
Interest.
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Exhibit B
---------
To Amendment No. 1 to the
First Amended and Restated Agreement of
Limited Partnership of FVP GP, L.P.
---------------------------------------
3.12. August 1996 Offering. Pursuant to a Limited Partnership
--------------------
Interest and Notes Purchase Agreement made as of the 15th day of August, 1996,
by and among FrontierVision, the Partnership, and the Persons set forth on
Schedule 1 thereto (the "New FrontierVision Purchase Agreement"), FrontierVision
offered (the "August 1996 Offering") to each of its partners as of July 31, 1996
the opportunity to acquire up to $10,336,000 of partnership interests (the "New
Partnership Interests"), $20,064,000 of 14% junior subordinated notes of
FrontierVision (the "New Junior Subordinated Notes") and $45,600,000 of 12%
senior subordinated notes of FrontierVision (the "New Senior Subordinated
Notes"). Pursuant to the New FrontierVision Purchase Agreement, the Partnership
has agreed to increase its capital commitment to FrontierVision by one percent
(1%) of the amount of New Partnership Interests, including those held by the
Partnership (the Partnership's "New FrontierVision Capital Commitment") and to
purchase New Junior Subordinated Notes and New Senior Subordinated Notes in an
amount equal to one percent (1%) of the aggregate amount of New Junior
Subordinated Notes and New Senior Subordinated Notes (including those held by
the Partnership). (The amount the Partnership is required to loan to
FrontierVision under the New FrontierVision Purchase Agreement is sometimes
referred to herein as the Partnership's "New FrontierVision Loan Amount.") To
enable the Partnership to make capital contributions to FrontierVision pursuant
to its New FrontierVision Capital Commitment and loans to FrontierVision under
its New FrontierVision Loan Amount, the Capital Commitments of the Class Y
Limited Partners and of the General Partner to the Partnership are being
increased effective upon the closing of the August 1996 Offering. Such increase
in the Capital Commitments of each of the Class Y Limited Partners and the
General Partner is sometimes hereinafter referred to as such Partner's "New
Capital Commitment."
3.12.1(a) Pursuant to paragraph 3.12.2 of the FrontierVision
Partnership Agreement (being adopted on the date hereof), no later than six
months after the closing of the August
1996 Offering, the Partnership, with the approval of the FrontierVision Advisory
Committee, may (but in no event shall be required to) reduce the amount each of
the partners of FrontierVision is required to contribute and loan to
FrontierVision pursuant to the New Purchase Agreement. In the event the
Partnership's New FrontierVision Capital Commitment and New FrontierVision Loan
Amount are reduced pursuant to paragraph 3.12.2 of the FrontierVision
Partnership Agreement, the General Partner shall correspondingly reduce the New
Capital Commitments of the Class Y Limited Partners and the General Partner.
(b) Any reduction of the New Capital Commitments of the Class Y
Limited Partners and the General Partner pursuant to this paragraph 3.12.1 shall
be made by the General Partner, with the Consent of a majority in Interest of
the Class X Limited Partners, in a manner such that, to the extent practicable,
the General Partner's and each Class Y Partner's New Capital Commitment is
reduced proportionately.
(c) Each Partner hereby authorizes the General Partner to amend
Schedule A hereto to reflect any reduction in the New Capital Commitments of the
Class Y Limited Partners pursuant to this paragraph 3.12.1, without any further
Consent or other action by such Partner. The General Partner shall give a
Partner notice after the General Partner effects any such reduction in such
Partner's New Capital Commitment.
3.12.2 The Partnership shall "book-up" the Capital Account of each
Partner as of the close of business on the day preceding the closing of the
August 1996 Offering so that the balance of the Capital Account of each Partner
as of that date shall equal the amount of such Partner's Capital Commitment as
of that date. After such book-up, when calculating the Adjusted Capital Account
of a Partner, only the nonduplicative portion of such Partner's Capital
Commitment shall be credited (i.e., the portion of such Partner's Capital
----
Commitment not already reflected in such Partner's Capital Account).
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SCHEDULE A
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AS OF SEPTEMBER 27, 1996
------------------------
NAME AND ADDRESS
OF PARTNER CLASS OF INTEREST CAPITAL COMMITMENT
---------------- ----------------- ------------------
GENERAL PARTNER:
---------------
FrontierVision Inc. General Partnership $ 20,343
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx X 000
Xxxxxx, Xxxxxxxx 00000
LIMITED PARTNERS:
----------------
CLASS X LIMITED PARTNERS:
------------------------
X.X. Xxxxxx Investment Class X 173,753
Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
1818 II Cable Corp. Class X 173,753
c/o Brown Brothers
Xxxxxxxx & Co.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Olympus Cable Corp. Class X 173,753
x/x Xxxxxxx Xxxxxx Xxxx XX, X.X.
Metro Center
Xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
First Union Capital Class X 104,251
Partners, Inc. -------
One First Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, XX 00000
All Class X Limited Partners $ 625,510
CLASS Y LIMITED PARTNERS:
------------------------
Xxxxx X. Xxxxxx Class Y $1,067,981
0000 Xxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Xxxx X. Xxx Class Y $ 320,394
000 Xxxxxx Xxxxxx ----------
Xxxxxx, Xxxxxxxx 00000
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SCHEDULE A (CONT'D)
-------------------
All Class Y Limited Partners $1,388,375
All Limited Partners $2,013,885
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All Partners $2,034,228
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