Exhibit 10.6
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
INSIGHT COMMUNICATIONS OF KENTUCKY, L.P.
DATED AS OF
OCTOBER 1, 1999
TABLE OF CONTENTS
- --------------------------------------------------------------------------------
Page
----
ARTICLE 1 DEFINITIONS............................................................... 2
1.1 Terms Defined in this Section............................................. 2
1.2 Terms Defined Elsewhere in this Agreement................................. 7
1.3 Terms Generally........................................................... 8
ARTICLE 2 FORMATION AND PURPOSE..................................................... 8
2.1 Formation................................................................. 8
2.2 Name 8
2.3 Principal and Registered Office........................................... 9
2.4 Term 9
2.5 Purposes of Partnership................................................... 9
2.6 Certificate............................................................... 11
2.7 Addresses of the Partners................................................. 11
2.8 Foreign Qualification..................................................... 11
2.9 Tax Classification........................................................ 11
ARTICLE 3 PARTNERSHIP CAPITAL....................................................... 12
3.1 Contributions............................................................. 12
3.2 Additional Capital Contributions.......................................... 12
3.3 Return of Contributions................................................... 12
ARTICLE 4 DISTRIBUTIONS; ALLOCATIONS OF PROFIT AND LOSS............................. 12
4.1 Distributions of Cash..................................................... 12
4.2 Allocations of Net Profit and Net Loss.................................... 14
4.3 Special Provisions Regarding Allocations of Profit and Loss............... 14
4.4 Tax Allocations: Code Section 704(c)...................................... 16
4.5 Allocation in Event of Transfer........................................... 17
4.6 Alternative Allocations................................................... 17
ARTICLE 5 AUTHORITY OF THE GENERAL PARTNER;OTHER MATTERS AFFECTING GENERAL PARTNER.. 17
5.1 Authority of General Partner.............................................. 17
5.2 No Personal Liability..................................................... 18
5.3 Withdrawal of General Partner............................................. 18
5.4 Tax Matters Partner....................................................... 18
ARTICLE 6 STATUS OF LIMITED PARTNER; OTHER LIMITATIONS ON PARTNERS.................. 21
6.1 No Management and Control................................................. 21
6.2 Limited Liability......................................................... 21
6.3 Return of Distributions of Capital........................................ 21
-i-
6.4 Specific Limitations...................................................... 21
ARTICLE 7 TRANSFER OF PARTNERSHIP INTERESTS......................................... 22
7.1 Transferees............................................................... 22
7.2 Other Consents and Requirements........................................... 23
7.3 Assignment Not In Compliance.............................................. 23
7.4 Division of Partnership Interests......................................... 23
7.5 Pledge of Partnership Interests........................................... 23
ARTICLE 8 DISSOLUTION AND LIQUIDATION OF PARTNERSHIP................................ 24
8.1 Events of Dissolution..................................................... 24
8.2 Liquidation............................................................... 24
8.3 Distribution in Kind...................................................... 26
8.4 No Action for Dissolution................................................. 26
8.5 No Further Claim.......................................................... 26
ARTICLE 9 INDEMNIFICATION........................................................... 26
9.1 General................................................................... 26
9.2 Exculpation............................................................... 27
9.3 Persons Entitled to Indemnity............................................. 27
9.4 Procedure Agreements...................................................... 27
ARTICLE 10 BOOKS, RECORDS, ACCOUNTING, AND REPORTS................................... 28
10.1 Books and Records......................................................... 28
10.2 Delivery to Partner and Inspection........................................ 28
10.3 Tax Matters............................................................... 28
10.4 Other Filings............................................................. 29
10.5 Non-Disclosure............................................................ 29
ARTICLE 11 REPRESENTATIONS BY THE PARTNERS........................................... 30
11.1 Binding Agreement......................................................... 30
11.2 Tax Position.............................................................. 30
ARTICLE 12 AMENDMENTS AND WAIVERS.................................................... 30
12.1 Amendments to Operating Agreement......................................... 30
12.2 Waivers................................................................... 30
ARTICLE 13 MISCELLANEOUS............................................................. 31
13.1 Additional Documents...................................................... 31
13.2 Inspection................................................................ 31
13.3 General................................................................... 31
13.4 Notices, Etc.............................................................. 31
13.5 Execution of Papers....................................................... 31
13.6 Attorneys' Fees........................................................... 32
13.7 No Third-Party Beneficiaries.............................................. 32
13.8 Headings.................................................................. 32
-ii-
SCHEDULES
Schedule I Addresses of the Partners
Schedule II Capital Accounts; Percentage Interest
-iii-
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
INSIGHT COMMUNICATIONS OF KENTUCKY, L.P.
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF INSIGHT
COMMUNICATIONS OF KENTUCKY, L.P. (formerly known as InterMedia Partners Group
VI, L.P.) is made and entered into as of October 1, 1999, by and between INSIGHT
MIDWEST, L.P., a Delaware limited partnership (successor to InterMedia Capital
Partners VI, L.P.), as general partner, and INSIGHT KENTUCKY CAPITAL, LLC, a
Delaware limited liability company, as limited partner.
RECITALS
--------
A. Pursuant to the Contribution and Formation Agreement dated as of April
18, 1999 (the "Contribution Agreement"), by and between Insight Communications
Company L.P., a Delaware limited partnership ("Insight") and TCI of Indiana
Holdings, LLC, a Colorado limited liability company ("TCI"), each of TCI and
Insight contributed a 50% partnership interest in InterMedia Capital Partners
VI, L.P., a Delaware limited partnership ("ICP-VI") to Insight Midwest, L.P. As
a result of such contributions, ICP-VI was dissolved by virtue of Insight
Midwest, L.P.'s ownership of 100% of the partnership interests in ICP-VI.
B. Immediately prior to ICP-VI's dissolution, it was the sole general
partner of the Partnership, which was formerly known as InterMedia Partners
Group VI, L.P. Concurrently with the closing under the Contribution Agreement
and the resulting dissolution of ICP-VI, Insight Midwest, L.P. became the sole
general partner of the Partnership.
C. Pursuant to the Contribution Agreement, Insight and TCI formed Insight
Kentucky Capital, LLC (owned 50% by Insight and 50% by TCI), and Insight
assigned its right to purchase a .001% limited partnership interest in the
Partnership to Insight Kentucky Capital, LLC. Concurrently with the closing of
the Contribution Agreement and the resulting dissolution of ICP-VI, Insight
Kentucky Capital, LLC purchased such limited partnership interest, resulting in
Insight Kentucky Capital, LLC becoming the sole limited partner of the
Partnership.
D. Concurrently with the closing under the Contribution Agreement, the
parties hereto desire to amend and restate the Agreement of Limited Partnership
of the Partnership dated as of October 30, 1997 in its entirety as set forth
herein.
NOW, THEREFORE, the parties agree as follows:
-1-
ARTICLE 1
DEFINITIONS
-----------
1.1 Terms Defined in this Section.
-----------------------------
For purposes of this Agreement, the following terms shall have the
following meanings (all terms used in this Agreement that are not defined in
this Section 1.1 shall have the meanings set forth elsewhere in this Agreement
as indicated in Section 1.2, except as otherwise provided in this Agreement):
"Act" means the Delaware Revised Uniform Limited Partnership Act.
"Adjusted Capital Account Deficit" means with respect to either Partner,
the deficit balance, if any, in such Partner's Capital Account as of the end of
the relevant Fiscal Year, after:
(i) crediting to such Capital Account any amounts that such Partner is
obligated to restore to the Partnership pursuant to Treasury Regulations Section
1.704-1(b)(2)(ii)(c) or is deemed to be obligated to restore pursuant to the
penultimate sentences of Treasury Regulations Sections 1.704-2(g)(1) and 1.704-
2(i)(5); and
(ii) debiting from such Capital Account the items described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5),
and 1.704-1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d)
and shall be interpreted consistently therewith.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by, or under common control with such Person. For
purposes of this definition," the term "control" means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of Voting Stock or other
equity interests, by contract, or otherwise, and the terms "controlled by" and
"under common control with" have meanings corresponding to the meaning of
"control."
"Agreement" means this Agreement, as it may be amended from time to time.
"Business Day" means any day (other than a day that is a Saturday or
Sunday) on which banks are permitted to be open for business in the State of New
York.
"Capital Account" means a separate account to be maintained for each
Partner in accordance with the Code, which, subject to any contrary requirements
of the Code, shall equal such Partner's initial Capital Account balance as of
the date of this Agreement as provided in Section 3.1(a), increased by: (i)
the amount of money contributed by such Partner to the Partnership after the
date of this Agreement, if any; (ii) the fair market value without regard to
Code Section 7701(g) of
-2-
property, if any, contributed by such Partner to the Partnership after the date
of this Agreement (net of liabilities that are secured by such contributed
property or that the Partnership or any other Partner is considered to assume or
take subject to under Code Section 752); (iii) allocations to the Partner of Net
Profit and items of income and gain pursuant to Article 4 that are made after
the date of this Agreement; and (iv) other additions made in accordance with the
Code; and decreased by (i) the amount of cash distributed to such Partner by the
Partnership after the date of this Agreement; (ii) allocations to the Partner of
Net Loss and items of loss and deduction pursuant to Article 4 that are made
after the date of this Agreement; (iii) the fair market value without regard to
Code Section 7701(g) of property distributed to such Partner by the Partnership
after the date of this Agreement (net of liabilities that are secured by such
distributed property or that such Partner is considered to assume or take
subject to under Code Section 752); and (iv) other deductions made in accordance
with the Code. The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to comply
with Treasury Regulations under Code Section 704(b) and, to the extent not
inconsistent with the provisions of this Agreement, shall be interpreted and
applied in a manner consistent with such Treasury Regulations.
"Capital Contributions" means, with respect to either Partner, the amount
of money and the net fair market value of property contributed by such Partner
to the Partnership pursuant to this Agreement.
"Certificate" means the certificate of limited partnership filed with
respect to the Partnership pursuant to the Act.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any subsequent federal law of similar import, and, to the extent
applicable, the Treasury Regulations.
"Depreciation" means, for each Fiscal Year, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with
respect to an asset for such Fiscal Year, except that if the Gross Asset Value
of an asset differs from its adjusted basis for federal income tax purposes at
the beginning of such Fiscal Year, Depreciation shall be determined in the
manner described in Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3) or
Treasury Regulations Section 1.704-3(d)(2), as applicable.
"Fiscal Year" means the fiscal year of the Partnership, which shall be the
calendar year.
"General Partner" means Insight Midwest.
"Gross Asset Value" means with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(i) The Gross Asset Values of all assets of the Partnership shall be
adjusted to equal their respective gross fair market values, as determined by
the mutual agreement of the Partners, as of the following times: (A) the
acquisition of an additional interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis Capital Contribution; (B) the
distribution by the Partnership to a Partner of more than a de minimis amount of
property of the
-3-
Partnership as consideration for an interest in the Partnership; and (C) the
liquidation of the Partnership within the meaning of Treasury Regulations
Section 1.704-1(b)(2)(ii)(g); provided, however, that the adjustments pursuant
to clauses (A) and (B) above shall be made only if the Partners determine by
mutual agreement that such adjustments are necessary or appropriate to reflect
the relative economic interests of the Partners in the Partnership;
(ii) The Gross Asset Value of any asset of the Partnership distributed
to either Partner shall be the gross fair market value of such asset on the date
of distribution; and
(iii) The Gross Asset Value of the assets of the Partnership shall be
increased (or decreased) to reflect any adjustments to the adjusted basis of
such assets pursuant to Code Section 734(b) or Code Section 743(b), but only to
the extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) and
Section 4.3(g); provided, however, that Gross Asset Value shall not be adjusted
pursuant to this paragraph (iv) to the extent that the Partners determine by
mutual agreement that an adjustment pursuant to paragraph (ii) of this
definition is necessary or appropriate in connection with a transaction that
would otherwise result in an adjustment pursuant to this paragraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to paragraph (i) or (iii) of this definition, the Gross Asset Value of
such asset shall thereafter be adjusted by the Depreciation taken into account
with respect to such asset for purposes of computing Net Profit and Net Loss.
"Insight Kentucky Capital" means Insight Kentucky Capital, LLC or any other
Person that succeeds to its Partnership Interest and is admitted as a Partner in
accordance with the provisions of this Agreement, provided that to the extent
Insight Kentucky Capital, LLC transfers less than all of its Partnership
Interest to any other Person(s) and such Person(s) is/are admitted as a Partner
in accordance with the provisions of this Agreement, "Insight Kentucky Capital"
shall refer to Insight Kentucky Capital, LLC and such other Person(s)
collectively.
"Insight Midwest" means Insight Midwest, L.P. or any other Person that
succeeds to its Partnership Interest and is admitted as a Partner in accordance
with the provisions of this Agreement, provided that to the extent Insight
Midwest, L.P. transfers less than all of its Partnership Interest to any other
Person(s) and such Person(s) is/are admitted as a Partner in accordance with the
provisions of this Agreement, "Insight Midwest" shall refer to Insight Midwest,
L.P. and such other Person(s) collectively.
"Insight Midwest Partnership Agreement" means the Limited Partnership
Agreement of Insight Midwest, L.P. dated as of October 1, 1999.
"Limited Partner" means Insight Kentucky Capital.
"Net Profit and Net Loss" means for each Fiscal Year or other period, an
amount equal to the Partnership's taxable income or loss for such Fiscal Year or
other period, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss, or deduction
-4-
required to be stated separately pursuant to Code Section 703(a)(1) shall be
included in taxable income or loss), with the following adjustments:
(i) Any income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Net Profit or Net Loss
shall be added to such taxable income or loss;
(ii) Code Section 705(a)(2)(B) expenditures of the Partnership that
are not otherwise taken into account in computing Net Profit or Net Loss shall
be subtracted from such taxable income or loss;
(iii) If the Gross Asset Value of any asset of the Partnership is
adjusted pursuant to paragraph (i) or (ii) of the definition of Gross Asset
Value, the amount of such adjustment shall be taken into account as gain or loss
from the disposition of such asset for purposes of computing Net Profit or Net
Loss;
(iv) Gain or loss resulting from any disposition of property of the
Partnership with respect to which gain or loss is recognized for federal income
tax purposes shall be computed by reference to the Gross Asset Value of the
property disposed of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;
(v) In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such Fiscal Year or other period;
(vi) Notwithstanding anything to the contrary in the definition of the
terms "Net Profit" and "Net Loss," any items that are specially allocated
pursuant to Section 4.3 of this Agreement shall not be taken into account in
computing Net Profit or Net Loss; and
(vii) For purposes of this Agreement, any deduction for a loss on a
sale or exchange of property of the Partnership that is disallowed to the
Partnership under Code Section 267(a)(1) or Code Section 707(b) shall be treated
as a Code Section 705(a)(2)(B) expenditure.
"Nonrecourse Deductions" means losses, deductions, or Code Section
705(a)(2)(B) expenditures attributable to Nonrecourse Liabilities of the
Partnership. The amount of Nonrecourse Deductions shall be determined pursuant
to Treasury Regulations Section 1.704-2(c), which provides generally that the
amount of Nonrecourse Deductions for a Fiscal Year shall equal the net increase,
if any, in Partnership Minimum Gain during that Fiscal Year, reduced (but not
below zero) by the aggregate distributions made during that Fiscal Year of
proceeds of a Nonrecourse Liability that are allocable to an increase in
Partnership Minimum Gain.
"Nonrecourse Liability" has the meaning set forth in Treasury Regulations
Section 1.752-1(a)(2).
-5-
"Partner" means each of the signatories hereto in their respective
capacities as partners of the Partnership, and any additional Person that is
admitted as a partner in accordance with the provisions of this Agreement.
"Partner Nonrecourse Debt" has the meaning set forth in Treasury
Regulations Section 1.704-2(b)(4), which generally defines "Partner Nonrecourse
Debt" as any Partnership liability to the extent such liability is nonrecourse
and a Partner (or related Person) bears the economic risk of loss pursuant to
Treasury Regulations Section 1.752-2.
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Treasury Regulations Section 1.704-2(i)(2), which generally defines "Partner
Nonrecourse Debt Minimum Gain" as the Partnership Minimum Gain attributable to
Partner Nonrecourse Debt. The amount of Partner Nonrecourse Debt Minimum Gain
shall be determined in accordance with Treasury Regulations Section 1.704-
2(i)(3).
"Partner Nonrecourse Deductions" means losses, deductions, or Code Section
705(a)(2)(B) expenditures attributable to Partner Nonrecourse Debt. The amount
of Partner Nonrecourse Deductions shall be determined pursuant to Treasury
Regulations Section 1.704-2(i)(2), which provides generally that the amount of
Partner Nonrecourse Deductions for a Fiscal Year shall equal the net increase,
if any, in Partner Nonrecourse Debt Minimum Gain during that Fiscal Year,
reduced (but not below zero) by the proceeds of Partner Nonrecourse Debt
distributed during the Fiscal Year to the Partner bearing the economic risk of
loss for such Partner Nonrecourse Debt that are both attributable to such
Partner Nonrecourse Debt and allocable to an increase in Partner Nonrecourse
Debt Minimum Gain.
"Partnership" means the limited partnership formerly known as InterMedia
Partners Group VI, L.P. formed by ICP-VI and InterMedia Management, Inc.
pursuant to an Agreement of Limited Partnership dated October 30, 1997 and
continued under this Agreement.
"Partnership Interest" means the entire ownership interest of a Partner in
the Partnership at any particular time, including all of its rights and
obligations hereunder and under the Act.
"Partnership Minimum Gain" means the excess of the Nonrecourse Liabilities
of the Partnership over the adjusted tax basis of property securing such
Nonrecourse Liabilities of the Partnership. The amount of Partnership Minimum
Gain shall be determined in accordance with Treasury Regulations Section 1.704-
2(d), which provides generally that the amount of Partnership Minimum Gain shall
be determined by first computing for each Nonrecourse Liability any gain the
Partnership would realize if it disposed of the property subject to that
Nonrecourse Liability for no consideration other than full satisfaction of such
Nonrecourse Liability, and then aggregating the separately computed gains.
"Percentage Interest" means initially, with respect to each Partner, the
respective percentage specified on Schedule II hereto.
-6-
"Person" means an individual, partnership, joint venture, association,
corporation, trust, estate, limited liability company, limited liability
partnership, or any other legal entity.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, at any time, any Person that is controlled by the
Partnership at such time.
"Transferee" means any Person that acquires a Partnership Interest from a
Partner in accordance with the provisions of this Agreement.
"Treasury Regulations" means the Income Tax Regulations, including
Temporary Regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Voting Stock" means ownership interests in a Person of any class or kind
ordinarily giving the holder the power to vote for the election of directors,
managers, or other members of the governing body of such Person or (as may be
the case with general partnership interests in a partnership) giving the holder
the power to exercise rights typically exercised by directors of a corporation.
1.2 Terms Defined Elsewhere in this Agreement.
-----------------------------------------
For purposes of this Agreement, the following terms have the meanings set
forth in the sections indicated:
Term Section
- ---- -------
Contribution Agreement Recital A
ICP-VI Recital A
Indemnified Persons Section 9.1
Insight Recital A
Liquidator Section 8.2(b)
Regulatory Allocations Section 4.3(i)
Secretary Section 5.4(b)
TCI Recital A
Transfer Section 7.1(a)
Withholding Advance Section 4.1(c)(2)
-7-
1.3 Terms Generally.
---------------
The definitions in Section 1.1 and elsewhere in this Agreement shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context requires, any pronoun includes the corresponding masculine,
feminine, and neuter forms. The words "include," "includes," and "including"
are not limiting. Any reference in this Agreement to a "day" or number of
"days" (without the explicit qualification of "Business") shall be interpreted
as a reference to a calendar day or number of calendar days. If any action or
notice is to be taken or given on or by a particular calendar day, and such
calendar day is not a Business Day, then such action or notice shall be deferred
until, or may be taken or given on, the next Business Day.
ARTICLE 2
FORMATION AND PURPOSE
---------------------
2.1 Formation.
---------
The Partnership has been formed as a limited partnership pursuant to the
Act. The rights and liabilities of the Partners shall be determined pursuant to
the Act and this Agreement. To the extent that the rights or obligations of
either Partner are different by reason of any provision of this Agreement than
they would be in the absence of such provision, this Agreement shall, to the
extent permitted by the Act, control.
2.2 Name.
----
(a) The name of the Partnership is Insight Communications of Kentucky,
L.P. Except as provided in Section 2.2(b), the business of the Partnership may
be conducted under that name or, upon compliance with applicable laws, any other
name that the General Partner deems appropriate or advisable. The Partnership
shall file any assumed name certificates and similar filings, and any amendments
thereto, that the General Partner considers appropriate or advisable. Such
names and any trade or service names, marks, emblems or logos used by the
Partnership shall be exclusive property of the Partnership and no Person shall
have any right to use, and each Partner agrees not to use, any of said names,
marks, emblems or logos other than on behalf of the Partnership (other than any
of the foregoing that incorporates the name "Insight" or any variant thereof,
which shall remain the exclusive property of Insight and its Affiliates and may
be used by Insight and its Affiliates without limitation).
(b) The Partnership shall not conduct business under the name "Tele-
Communications, Inc.," "TCI," or any variation thereof without the approval of
TCI. The parties agree that "Communications" is not a variation of "Tele-
Communications, Inc." for purposes of this Section 2.2(b).
-8-
2.3 Principal and Registered Office.
-------------------------------
The office required to be maintained by the Partnership in the State of
Delaware pursuant to Section 17-104 of the Act shall initially be located at
1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The resident
agent of the Partnership pursuant to Section 17-104 of the Act shall initially
be The Corporation Trust Company. The Partnership may, upon compliance with the
applicable provisions of the Act, change its principal office or resident agent
from time to time in the discretion of the General Partner. The principal
office of the Partnership shall be located at 126 E. 56th Street, New York, New
York 10022, or at such other place as the General Partner shall from time to
time designate by written notice to the other Partner. The Partnership may
conduct business at such additional places as the General Partner shall deem
advisable.
2.4 Term.
----
The term of the Partnership commenced when the Certificate was filed with
the Secretary of State of Delaware, and shall continue until October 1, 2011,
unless sooner terminated as provided in this Agreement.
2.5 Purposes of Partnership.
-----------------------
The purposes of the Partnership are:
(a) to engage in the business, directly or indirectly through
interests in one or more Subsidiaries, of acquiring, developing, owning,
operating, managing, and selling cable television systems in the State of
Indiana and in the Commonwealth of Kentucky;
(b) to acquire, develop, own, operate, manage, and sell additional
cable television systems in the State of Indiana and the Commonwealth of
Kentucky and such other States as the General Partner may determine;
(c) to acquire, develop, own, operate, manage, and sell, or invest in,
businesses related to and ancillary to the ownership and operation of the cable
television systems referred to above (including, but not limited to, high speed
data service, Internet access, telephony services and other telephony-related
investments or businesses, and video wireless services and wireless
communications services and other wireless-related investments or businesses but
not including multipoint distribution systems ("MDS"), multichannel multipoint
distribution systems ("MMDS"), direct-to-home satellite systems ("DTH") or
Internet Backbone Services (as defined in the Insight Midwest Partnership
Agreement), it being agreed that the use of IP technology to provide telephone,
fax, video, video conferencing, telecommuting, virtual private networks,
security and energy management services to subscribers of the Partnership's
cable television systems does not constitute engaging in an Internet Backbone
Service and, subject to Section 16.1(b) of the Insight Midwest Partnership
Agreement, is within the purposes of the Partnership;
(d) to conduct other businesses as determined by the General Partner;
-9-
(e) in connection with the businesses described in Section 2.5(a)-(d),
to possess, transfer, mortgage, pledge, or otherwise deal in, and to exercise
all rights, powers, privileges, and other incidents of ownership or possession
with respect to securities or other assets held or owned by the Partnership, and
to hold securities or assets in the name of a nominee or nominees;
(f) in connection with the businesses described in Section 2.5(a)-(d),
to borrow or raise money, and from time to time to issue, accept, endorse, and
execute promissory notes, loan agreements, options, stock purchase agreements,
contracts, documents, checks, drafts, bills of exchange, warrants, bonds,
debentures, and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of any thereof and of the interest
thereon by mortgage upon or pledge, conveyance, or assignment in trust of, the
whole or any part of the property of the Partnership whether at the time owned
or thereafter acquired and to guarantee the obligations of others and to sell,
pledge, or otherwise dispose of such bonds or other obligations of the
Partnership for its purposes;
(g) in connection with the businesses described in Section 2.5(a)-(d),
to guarantee the obligations of others in connection with the purchase or
acquisition by the Partnership of securities or assets;
(h) to maintain an office or offices in such place or places as the
General Partner shall determine and in connection therewith to rent or acquire
office space, engage personnel, and do such other acts and things as may be
necessary or advisable in connection with the maintenance of such office, and on
behalf of and in the name of the Partnership to pay and incur reasonable
expenses and obligations for legal, accounting, investment advisory,
consultative and custodial services, and other reasonable expenses including
taxes, travel, insurance, rent, supplies, interest, salaries and wages of
employees, and all other reasonable costs and expenses incident to the operation
of the Partnership;
(i) to form and own one or more corporations, trusts, partnerships or
other entities (but no entity so formed or owned, while it is a Subsidiary, may
do what the Partnership is prohibited by this Agreement from doing); and
(j) to own, lease, or otherwise acquire any and all assets and
services related to the foregoing purposes and to engage in such other
activities related either directly or indirectly to the foregoing purposes as
may be necessary, advisable, or appropriate, in the opinion of the General
Partner, for the promotion or conduct of the business of the Partnership.
2.6 Certificate.
-----------
The General Partner shall cause any amendment to the Certificate required
under the Act to be filed or recorded with the Secretary of State of Delaware
and in any other public office where filing or recording is required or is
deemed by the General Partner to be advisable.
-10-
2.7 Addresses of the Partners.
-------------------------
The respective addresses of the Partners are set forth on Schedule I.
2.8 Foreign Qualification.
---------------------
The General Partner shall take all necessary actions to cause the
Partnership to be authorized to conduct business legally in all appropriate
jurisdictions, including registration or qualification of the Partnership as a
foreign limited partnership in those jurisdictions that provide for registration
or qualification and the filing of a certificate of limited partnership in the
appropriate public offices of those jurisdictions that do not provide for
registration or qualification.
2.9 Tax Classification.
------------------
Notwithstanding any other provision of this Agreement, no Partner or
employee of the Partnership may take any action (including the filing of a U.S.
Treasury Form 8832 Entity Classification Election) that would cause the
Partnership to be characterized as an entity other than a partnership for
federal income tax purposes without the agreement of the other Partner. A
determination of whether any action will have the effect described in the
preceding sentence will be based upon a declaratory judgement or similar relief
obtained from a court of competent jurisdiction, a favorable ruling from the
Internal Revenue Service, or the receipt of an opinion of counsel reasonably
satisfactory to the Partners.
ARTICLE 3
PARTNERSHIP CAPITAL
-------------------
3.1 Contributions.
-------------
(a) Applicable Percentages; Capital Account Balances. Schedule II
------------------------------------------------
sets forth the Percentage Interest of each Partner as of the date of this
Agreement. The Capital Account balances of the Partners as of the date of this
Agreement will be determined pursuant to the provisions of the Insight Midwest
Partnership Agreement by mutual agreement of TCI and Insight.
(b) Determining Fair Market Value of Additional Contributed Assets.
--------------------------------------------------------------
Except as otherwise mutually agreed to by the Partners, the fair market value of
any asset contributed by a Partner to the Partnership after the date of this
Agreement shall be that value determined by the General Partner.
3.2 Additional Capital Contributions.
--------------------------------
There shall be no further assessments for additional Capital Contributions
by the Partners to the Partnership.
-11-
3.3 Return of Contributions.
-----------------------
Neither Partner shall have the right to demand a return of all or any part
of its Capital Contribution during the term of the Partnership, and any return
of the Capital Contribution of either Partner shall be made solely from the
assets of the Partnership and only in accordance with the terms of this
Agreement. No interest shall be paid to either Partner with respect to its
Capital Contribution to the Partnership.
ARTICLE 4
DISTRIBUTIONS; ALLOCATIONS OF PROFIT AND LOSS
---------------------------------------------
4.1 Distributions of Cash.
---------------------
(a) Amount and Timing of Distributions. Distributions shall be made
----------------------------------
to the Partners at the times and in the aggregate amounts determined by the
General Partner. Notwithstanding any other provision of this Agreement to the
contrary, no distribution shall be made that would render the Partnership
insolvent or which is prohibited by the Act.
(b) Allocation of Distributions. All distributions shall be made to
---------------------------
the Partners in proportion to their Percentage Interests.
(c) Tax Withholding.
---------------
(1) The Partnership shall seek to qualify for and obtain exemptions
from any provision of the Code or any provision of state, local, or foreign tax
law that would otherwise require the Partnership to withhold amounts from
payments or distributions to the Partners. If the Partnership does not obtain
any such exemption, the Partnership is authorized to withhold from any payment
or distribution to either Partner any amounts that are required to be withheld
pursuant to the Code or any provision of any state, local, or foreign tax law
that is binding on the Partnership.
(2) Any amount withheld with respect to any payment or distribution
to either Partner shall be credited against the amount of the payment or
distribution to which the Partner would otherwise be entitled. If the Code or
any provision of any state, local, or foreign tax law that is binding on the
Partnership requires that the Partnership remit to any taxing authority any
withholding tax with respect to, or for the account of, either Partner in its
capacity as a Partner, the Partnership shall, to the extent that Partnership
funds are available therefor, remit the full required amount of such withholding
tax to the taxing authority and shall notify such Partner in writing of its
obligation to pay to the Partnership such withholding tax to the extent it
exceeds the amount of any payment or distribution to which such Partner would
otherwise then be entitled. Each Partner shall pay to the Partnership, within
five Business Days after its receipt of written notice from the Partnership that
withholding is required with respect to such Partner, any amounts required to be
remitted by the Partnership to any taxing authority with respect to such Partner
that are in excess of the amount of any payment or distribution to which such
Partner would otherwise be entitled. If the Partnership is required to remit any
withholding tax with respect to, or for the account of, either
-12-
Partner prior to the Partnership's receipt of any payment required to be made by
such Partner pursuant to the preceding sentence, the amount of the payment
required to be made by such Partner shall be treated as a loan (the "Withholding
Advance") from the Partnership to the Partner, which shall accrue interest from
the date the Partnership is required to remit such withholding tax until paid by
such Partner or credited against payments or distributions to which such Partner
would otherwise be entitled as provided in Section 4.1(c)(3) at a rate of
fifteen percent per year, compounded semi-annually.
(3) Any Withholding Advance made to a Partner and any interest accrued
thereon shall be credited against, and shall be offset by, the amount of any
later payment or distribution to which the Partner would otherwise be entitled
(without duplication of the credit provided in the first sentence of Section
4.1(c)(2)), with any credit for accrued and unpaid interest as of the date such
payment or distribution would otherwise have been made being applied before any
credit for the amount of the Withholding Advance. Any Withholding Advance made
to a Partner and any interest accrued thereon, to the extent it has not
previously been paid by the Partner in cash or fully credited against payments
or distributions to which the Partner would otherwise be entitled, shall be paid
by the Partner to the Partnership upon the earliest of (A) the dissolution of
the Partnership, (B) the date on which the Partner ceases to be a Partner of the
Partnership, or (C) demand for payment by the Partnership.
(4) All amounts that are credited against payments or distributions to
which a Partner would otherwise be entitled pursuant to this Section 4.1(c)
shall be treated as amounts distributed to such Partner pursuant to Section
4.1(a) for all purposes of this Agreement.
4.2 Allocations of Net Profit and Net Loss.
--------------------------------------
(a) Allocations of Net Profit and Net Loss. Except as provided in
--------------------------------------
Section 4.2(b), Net Profit and Net Loss for each Fiscal Year (or portion
thereof) shall be allocated between the Partners in proportion to their
Percentage Interests.
(b) Allocations of Net Profit and Net Loss Following Dissolution.
------------------------------------------------------------
Notwithstanding Section 4.2(a), following the dissolution of the Partnership
pursuant to Section 8.1, beginning in the Fiscal Year in which such dissolution
occurs or beginning in any Fiscal Year prior to the Fiscal Year in which such
dissolution occurs if the Partnership's Federal income tax return for such prior
Fiscal Year has not yet been required to be filed (not including extensions),
items of income and gain, loss, and deduction shall be allocated between the
Partners so as to cause the credit balances in the Partners' Capital Accounts to
be in proportion to their Percentage Interests.
-13-
4.3 Special Provisions Regarding Allocations of Profit and Loss.
-----------------------------------------------------------
(a) Minimum Gain Chargeback. Notwithstanding any other provision of
-----------------------
this Article 4, if there is a net decrease in Partnership Minimum Gain for any
Fiscal Year, each Partner shall be specially allocated items of Partnership
income and gain for such Fiscal Year (and if necessary for succeeding Fiscal
Years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Treasury Regulations
Section 1.704-2(g); provided, however, that this Section 4.3(a) shall not apply
to the extent the circumstances described in Treasury Regulations Sections
1.704-2(f)(2), 1.704-2(f)(3), 1.704-2(f)(4), or 1.704-2(f)(5) exist.
Allocations made pursuant to the preceding sentence shall be made in proportion
to the respective amounts required to be allocated to each Partner pursuant
thereto. The items of Partnership income and gain to be allocated pursuant to
this Section 4.3(a) shall be determined in accordance with Treasury Regulations
Section 1.704-2(f)(6). This Section 4.3(a) is intended to comply with the
minimum gain chargeback requirement in Treasury Regulations Section 1.704-2(f)
and shall be interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Notwithstanding any other
-------------------------------
provision of this Article 4 except Section 4.3(a), if during any Fiscal Year
there is a net decrease in Partner Nonrecourse Debt Minimum Gain, each Partner
with a share of that Partner Nonrecourse Debt Minimum Gain (determined in
accordance with Treasury Regulations Section 1.704-2(i)(5)) as of the beginning
of such Fiscal Year must be allocated items of Partnership income and gain for
the Fiscal Year (and, if necessary, for succeeding Fiscal Years) equal to that
Partner's share of the net decrease in the Partner Nonrecourse Debt Minimum Gain
(determined in accordance with Treasury Regulations Section 1.704-2(i)(4));
provided, however, that this Section 4.3(b) shall not apply to the extent the
circumstances described in the third and fifth sentences of Treasury Regulations
Section 1.704-2(i)(4) exist. Allocations pursuant to the preceding sentence
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant thereto. The items of Partnership income and gain to
be allocated pursuant to this Section 4.3(b) shall be determined in accordance
with Treasury Regulations Section 1.704-2(i)(4). This Section 4.3(b) is
intended to comply with the minimum gain chargeback requirement in Treasury
Regulations Section 1.704-2(i)(4) and shall be interpreted consistently
therewith.
(c) Qualified Income Offset. If a Partner unexpectedly receives any
-----------------------
adjustments, allocations, or distributions described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-
1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially
allocated to such Partner in an amount and manner sufficient to eliminate, to
the extent required by the Treasury Regulations, the Adjusted Capital Account
Deficit of such Partner as quickly as possible; provided, however, that an
allocation pursuant to this Section 4.3(c) shall be made if and only to the
extent that such Partner would have an Adjusted Capital Account Deficit after
all other allocations provided for in this Article 4 have been tentatively made
as if this Section 4.3(c) were not in this Agreement. Allocations made pursuant
to the preceding sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto.
-14-
(d) Gross Income Allocation. If a Partner has a deficit Capital
-----------------------
Account at the end of any Fiscal Year that is in excess of the sum of (1) the
amount such Partner is obligated to restore to the Partnership pursuant to
Treasury Regulations Section 1.704-1(b)(2)(ii)(c), (2) the amount such Partner
is deemed to be obligated to restore pursuant to the penultimate sentence of
Treasury Regulations Section 1.704-2(g)(1), and (3) the amount such Partner is
deemed to be obligated to restore pursuant to the penultimate sentence of
Treasury Regulations Section 1.704-2(i)(5), such Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible; provided, however, that an allocation pursuant to this
Section 4.3(d) shall be made if and only to the extent that such Partner would
have a deficit Capital Account in excess of such sum after all other allocations
provided for in this Article 4 have been tentatively made as if Section 4.3(c)
and this Section 4.3(d) were not in this Agreement. Allocations made pursuant
to the preceding sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto.
(e) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal
----------------------
Year or other period shall be specially allocated between the Partners in
proportion to their Percentage Interests.
(f) Partner Nonrecourse Deductions. Any Partner Nonrecourse
------------------------------
Deductions for any Fiscal Year or other period shall be specially allocated to
the Partner that bears the economic risk of loss with respect to the Partner
Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable
in accordance with Treasury Regulations Section 1.704-2(i).
(g) Section 754 Adjustment. To the extent any adjustment to the
----------------------
adjusted tax basis of any asset of the Partnership pursuant to Code Section
734(b) or Code Section 743(b) is required, pursuant to Treasury Regulations
Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital
Accounts, the amount of such adjustment shall be treated as an item of gain (if
the adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such gain or loss shall be specially allocated to the
Partners in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to such section of the Treasury
Regulations.
(h) Excess Nonrecourse Liabilities. For purposes of determining a
------------------------------
Partner's proportionate share of the "excess nonrecourse liabilities" of the
Partnership within the meaning of Treasury Regulations Section 1.752-3(a)(3),
each Partner's interest in Partnership profits shall be deemed to be equal to
such Partner's Percentage Interest.
(i) Curative Allocations. The allocations set forth in this Article 4
--------------------
(other than Section 4.3(g), Section 4.3(h), and this Section 4.3(i)) (the
"Regulatory Allocations") are intended to comply with certain requirements of
the Treasury Regulations. The Partners intend that, to the extent possible, all
Regulatory Allocations shall be offset either with other Regulatory Allocations
or with special allocations of other items of Partnership income, gain, loss, or
deduction pursuant to this Section 4.3(i). Therefore, notwithstanding any other
provision of this Article 4 (other than the Regulatory Allocations), offsetting
special allocations of Partnership income, gain, loss, or deduction shall be
made so that, after such offsetting allocations are made, each Partner's Capital
-15-
Account balance is, to the extent possible, equal to the Capital Account balance
such Partner would have had if the Regulatory Allocations were not part of this
Agreement and all Partnership items were allocated pursuant to Section 4.2. In
making such offsetting special allocations, future Regulatory Allocations under
Section 4.3(a) and Section 4.3(b) that, although not yet made, are likely to
offset Regulatory Allocations made under Section 4.3(e) and Section 4.3(f),
shall be taken into account.
4.4 Tax Allocations: Code Section 704(c).
------------------------------------
(a) In accordance with Code Section 704(c) and the Treasury
Regulations thereunder, income, gain, loss, and deduction with respect to any
property contributed to the capital of the Partnership shall, solely for tax
purposes, be allocated between the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes and its initial Gross Asset Value using the
traditional allocation method described in Treasury Regulations Section 1.704-
3(b).
(b) If the Gross Asset Value of any asset of the Partnership is
adjusted pursuant to paragraph (ii) of the definition of Gross Asset Value,
subsequent allocations of income, gain, loss, and deduction with respect to such
asset shall take account of any variation between the adjusted basis of such
asset for federal income tax purposes and its Gross Asset Value in the same
manner as under Code Section 704(c) and the Treasury Regulations thereunder.
(c) Allocations pursuant to this Section 4.4 are solely for purposes
of federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, either Partner's Capital Account or share of Net
Profit, Net Loss, other items, or distributions pursuant to any provision of
this Agreement.
4.5 Allocation in Event of Transfer.
-------------------------------
If an interest in the Partnership is transferred in accordance with Article
7 of this Agreement, the Net Profit and Net Loss of the Partnership and each
item thereof, and all other items attributable to the transferred interest for
such Fiscal Year, shall be divided and allocated between the transferor and the
transferee pursuant to the interim closing of the Partnership books method set
forth in Treasury Regulation Section 1.706-1(c)(2)(ii) unless the parties
otherwise mutually agree. This Section shall apply for purposes of computing a
Partner's Capital Account and for federal income tax purposes.
-16-
4.6 Alternative Allocations.
-----------------------
The General Partner is authorized and directed to allocate items of income,
gain, loss, or deduction arising in any Fiscal Year differently from the manner
that is otherwise provided for in this Agreement if, and to the extent that, the
General Partner believes that the allocation of items of income, gain, loss, or
deduction in the manner otherwise provided for in this Agreement would cause the
credit balances in the Partners' Capital Accounts not to be in proportion to
their Percentage Interests immediately prior to any distributions pursuant to
Section 8.2(d)(3) if the Partnership were dissolved and terminated on the last
day of such Fiscal Year. Any allocation that is made pursuant to this Section
4.6 shall be deemed to be a complete substitute for any allocation that is
otherwise provided for in this Agreement and no amendment to this Agreement
shall be required.
ARTICLE 5
AUTHORITY OF THE GENERAL PARTNER;
---------------------------------
OTHER MATTERS AFFECTING GENERAL PARTNER
---------------------------------------
5.1 Authority of General Partner.
----------------------------
(a) Except as otherwise expressly provided for herein, the business of
the Partnership shall be managed by the General Partner pursuant to the
provisions of this Agreement. The General Partner shall have exclusive
authority and full discretion with respect to the management of the business of
the Partnership and the Subsidiaries, subject to Sections 5.1(b) and (c).
Notwithstanding the foregoing, the General Partner shall not take any action
with respect to the Partnership or its Partnership Interest that requires the
consent of the limited partner of the General Partner pursuant to the Insight
Midwest Partnership Agreement without first obtaining such consent, including
any Transfer of its Partnership Interest.
(b) The General Partner may delegate such general or specific
authority to the officers of the Partnership with respect to the business and
day-to-day operations of the Partnership as it from time to time considers
desirable, and the officers of the Partnership may exercise the authority
granted to them, subject to any restraints or limitations imposed by any express
provisions of this Agreement.
(c) The General Partner agrees that acting alone it shall not give any
consent on any matter or take any other action as the General Partner,
including, without limitation, acting on behalf of or binding the Partnership
with respect to any matter in respect of which approval by the Limited Partner
is required by the provisions of this Agreement or the Act, unless such consent,
matter or other action shall first have been adopted or approved by the Limited
Partner in accordance with the provisions of this Agreement or the Act as
applicable.
-17-
5.2 No Personal Liability.
---------------------
The General Partner shall not have any personal liability for the repayment
of the Capital Contributions of any other Partner; provided that the General
Partner shall promptly return to the Partnership or to the Partner or Partners
entitled thereto any distributions received by the General Partner in excess of
those to which the General Partner is entitled under this Agreement.
5.3 Withdrawal of General Partner.
-----------------------------
(a) The General Partner may not resign or withdraw from the
Partnership without the consent of the Limited Partner, other than upon the
dissolution and winding up of the Partnership in accordance with the provisions
of Article 8.
(b) For purposes of this Agreement, the term "withdrawal" does not
include the happening of any event described in Section 17-402(a)(4) or (5) of
the Act, and no Partner shall cease to be a Partner solely upon the happening of
such event(s).
(c) The withdrawal of the General Partner shall not alter the
allocations and distributions to be made to the Partners pursuant to this
Agreement.
(d) Notwithstanding Section 5.3(a), the General Partner may withdraw
from the Partnership upon the transfer of all of its Partnership Interest to any
Transferee that is admitted to the Partnership as a Partner and substituted for
the General Partner in accordance with Section 7.1(b).
5.4 Tax Matters Partner.
-------------------
(a) The General Partner is hereby designated as the Tax Matters
Partner of the Partnership, as provided in Treasury Regulations pursuant to Code
Section 6231 and analogous provisions of state law. Each Partner, by the
execution of this Agreement, consents to such designation of the Tax Matters
Partner and agrees to execute, certify, acknowledge, deliver, swear to, file,
and record at the appropriate public offices such documents as may be necessary
or appropriate to evidence such consent.
(b) To the extent and in the manner provided by applicable law and
Treasury Regulations, the Tax Matters Partner shall furnish the name, address,
profits interest, and taxpayer identification number of each Partner and any
Transferee to the Secretary of the Treasury or his delegate (the "Secretary").
(c) The Tax Matters Partner shall notify each Partner of any audit
that is brought to the attention of the Tax Matters Partner by notice from the
Internal Revenue Service, and shall forward to each Partner copies of any
written notices, correspondence, reports, or other documents received by the Tax
Matters Partner in connection with such audit within ten Business Days following
its notification by the Internal Revenue Service or its receipt, as the case may
be. The Tax Matters Partner shall provide TCI with reasonable advance notice of
administrative proceedings with
-18-
the Internal Revenue Service, including any closing conference with the examiner
and any appeals conference.
(d) The Tax Matters Partner shall give the Partners written notice of
its intent to initiate judicial review, file a request for administrative
adjustment on behalf of the Partnership, extend the period of limitations for
making assessments of any tax against a Partner with respect to any Partnership
item, or enter into any agreement with the Internal Revenue Service that would
result in the settlement of any alleged tax deficiency or other tax matter, or
to any adjustment of taxable income or loss or any item included therein,
affecting the Partnership or any Partner. The Tax Matters Partner shall not
take any such action if TCI elects within thirty days after its receipt of the
Tax Matters Partner's notice to require that the Tax Matters Partner refrain
from taking such action.
(e) Subject to the foregoing provisions of this Section 5.4, the Tax
Matters Partner is hereby authorized, but not required:
(1) to enter into any settlement with the Internal Revenue Service
or the Secretary with respect to any tax audit or judicial review, in which
agreement the Tax Matters Partner may expressly state that such agreement shall
bind the other Partners, except that such settlement agreement shall not bind
either Partner that (within the time prescribed pursuant to the Code and
Treasury Regulations thereunder) files a statement with the Secretary providing
that the Tax Matters Partner shall not have the authority to enter into a
settlement agreement on the behalf of such Partner;
(2) if a notice of a final administrative adjustment at the
Partnership level of any item required to be taken into account by a Partner for
tax purposes (a "final adjustment") is mailed to the Tax Matters Partner, to
seek judicial review of such final adjustment, including the filing of a
petition for readjustment with the Tax Court, the District Court of the United
States for the district in which the Partnership's principal place of business
is located, or elsewhere as allowed by law, or the United States Claims Court;
(3) to intervene in any action brought by any other Partner for
judicial review of a final adjustment;
(4) to file a request for an administrative adjustment with the
Secretary at any time and, if any part of such request is not allowed by the
Secretary, to file a petition for judicial review with respect to such request;
(5) to enter into an agreement with the Internal Revenue Service to
extend the period for assessing any tax that is attributable to any item
required to be taken into account by a Partner for tax purposes, or an item
affected by such item; and
(6) to take any other action on behalf of the Partners (with respect
to the Partnership) or the Partnership in connection with any administrative or
judicial tax proceeding to the extent permitted by applicable law or Treasury
Regulations.
-19-
(f) The Partnership shall indemnify and reimburse the Tax Matters
Partner for all expenses (including legal and accounting fees) incurred pursuant
to this Section 5.4 in connection with any administrative or judicial proceeding
with respect to the tax liability of the Partners. The payment of all such
reasonable expenses shall be made before any distributions are made to the
Partners. The taking of any action and the incurring of any expense by the Tax
Matters Partner in connection with any such proceeding, except to the extent
provided herein or required by law, is a matter in the sole discretion of the
Tax Matters Partner and the provisions on limitations of liability of the
General Partner and indemnification set forth in Article 9 shall be fully
applicable to the General Partner in its capacity as the Tax Matters Partner.
(g) Any Partner that receives a notice of an administrative proceeding
under Code Section 6233 relating to the Partnership shall promptly notify the
Tax Matters Partner of the treatment of any Partnership item on such Partner's
federal income tax return that is or may be inconsistent with the treatment of
that item on the Partnership's return.
(h) Either Partner that enters into a settlement agreement with the
Secretary with respect to any Partnership item shall notify the Tax Matters
Partner of such agreement and its terms within thirty days after its date, and
the Tax Matters Partner shall notify the other Partners of the settlement
agreement within thirty days of such notification.
ARTICLE 6
STATUS OF LIMITED PARTNER; OTHER LIMITATIONS ON
-----------------------------------------------
PARTNERS
--------
6.1 No Management and Control.
-------------------------
Except as expressly provided in this Agreement, no Limited Partner shall
take part in or interfere in any manner with the control, conduct, or operation
of the Partnership or have any right or authority to act for or bind the
Partnership or to vote on matters relating to the Partnership. The Limited
Partner shall not take any action with respect to the Partnership or its
Partnership Interest that requires the consent of its members pursuant to its
operating agreement without first obtaining such consent, including any Transfer
of its Partnership Interest.
6.2 Limited Liability.
-----------------
No Limited Partner shall be bound by or personally liable for the expenses,
liabilities, or obligations of the Partnership. In no event shall any Partner
be required to make up a deficiency in its Capital Account upon the dissolution
and termination of the Partnership.
-20-
6.3 Return of Distributions of Capital.
----------------------------------
A Limited Partner may, under certain circumstances, be required by law to
return to the Partnership, for the benefit of the Partnership's creditors,
amounts previously distributed. No Limited Partner shall be obligated by this
Agreement to pay those distributions to or for the account of the Partnership or
any creditor of the Partnership. However, if any court of competent
jurisdiction holds that, notwithstanding the provisions of this Agreement, a
Limited Partner must return or pay over any part of those distributions, the
obligation shall be that of such Limited Partner alone and not of any other
Partner. Any payment returned to the Partnership by a Partner or made directly
by a Partner to a creditor of the Partnership shall be deemed a Capital
Contribution by such Partner.
6.4 Specific Limitations.
--------------------
No Partner shall have the right or power to: (a) (i) withdraw as a Partner
except upon the disposition of all of its Partnership Interest in accordance
with the terms of this Agreement or (ii) reduce its Capital Contribution except
as a result of the dissolution of the Partnership or as otherwise provided by
law, (b) bring an action for partition against the Partnership or any assets of
the Partnership, (c) cause the termination and dissolution of the Partnership,
except as set forth in this Agreement, or (d) demand or receive property other
than cash in return for its Capital Contribution. Except as otherwise set forth
in this Agreement or in any agreement permitted to be entered into under this
Agreement with respect to the purchase, redemption, retirement, or other
acquisition of Partnership Interests, no Partner shall have priority over any
other Partner either as to the return of its Capital Contribution or as to Net
Profit, Net Loss, or distributions. Other than upon the termination and
dissolution of the Partnership as provided by this Agreement, there has been no
time agreed upon when the Capital Contribution of any Partner will be returned.
ARTICLE 7
TRANSFER OF PARTNERSHIP INTERESTS
---------------------------------
7.1 Transferees.
-----------
(a) No sale, assignment, transfer or other disposition (any or all of
the foregoing, a "Transfer") of a Partnership Interest will be effective nor
will any purported Transferee become a Partner or otherwise be entitled to any
of attributes of ownership of the Partnership purportedly Transferred unless
such Transfer is made in accordance with the provisions of this Article 7 and
the transferor and Transferee have complied with the following conditions:
(1) the transferor has executed and delivered to the Partnership a
copy of the assignment of the Partnership Interest to Transferee in form and
substance satisfactory to the Partnership;
(2) the Transferee, if not already a party to this Agreement,
becomes a party to this Agreement, assumes all of the obligations hereunder of
its transferor and agrees to be bound by the terms and conditions hereof in the
same manner as the transferor.
-21-
(b) Upon compliance with Section 7.1(a), any Transferee shall be
substituted as a Partner for, and shall enjoy the same rights and be subject to
the same obligations as, its predecessor as a Partner hereunder.
(c) If there is a permitted Transfer of a Partnership Interest under
this Agreement:
(1) A Transferee's Percentage Interest shall equal the Percentage
Interest transferred to it by the transferring Partner;
(2) A Transferee's Capital Account shall initially be equal to the
Capital Account balance transferred to it by the transferring Partner;
(3) If requested to do so by any transferring Partner or by the
Transferee by notice given to the Partners, the Partnership shall make an
election under Section 754 of the Code (and a corresponding election under
applicable state and local law). Upon the request of either Partner, the
Partnership shall also make a timely election under Section 754 of the Code upon
a distribution of property or money to a Partner.
7.2 Other Consents and Requirements.
-------------------------------
Any Transfer must be in compliance with all requirements imposed by any
state securities administrator having jurisdiction over the Transfer and the
United States Securities and Exchange Commission and must not cause the
Partnership or any Subsidiary to be in violation of any Ownership Restriction
(as defined in the Insight Midwest Partnership Agreement).
7.3 Assignment Not In Compliance.
----------------------------
Any Transfer in contravention of any of the provisions of this Article 7
(whether voluntarily, involuntarily or by operation of law) shall be void and of
no effect, and shall neither bind nor be recognized by the Partnership.
7.4 Division of Partnership Interests.
---------------------------------
The several rights and obligations inherent in the Capital Account and
Percentage Interest attributable to a Partner's Partnership Interest are
indivisible except in equal proportions, such that the assignment of a specified
percentage of a Partner's Partnership Interest may only represent an equal
percentage of the total Capital Account and Percentage Interest that were
attributable to such Partner's Partnership Interest prior to the assignment.
-22-
7.5 Pledge of Partnership Interests.
-------------------------------
At the request of the General Partner, each Partner agrees to pledge its
Partnership Interest to secure any indebtedness of Insight Midwest, L.P. or its
Subsidiaries (as defined in the Insight Midwest Partnership Agreement) that is
permitted under this Agreement and the Insight Midwest Partnership Agreement, on
terms determined by the General Partner, so long as all Partners are required to
pledge their Partnership Interests and the terms of the pledge do not impose any
personal liability on any Partner. In negotiating the terms of any such pledge,
the General Partner will require that the secured party agree to enforce its
rights against the Partnership Interests of the Partners proportionately (based
on the Percentage Interest of each Partner). If the secured party under any
such pledge enforces its rights against the Partnership Interests of the
Partners other than proportionately, the Partners will afford each other such
rights of contribution and indemnity as are necessary to cause all liabilities,
losses, and damages suffered by the Partners as a result of the exercise by the
secured party of its rights under such pledge to be borne by the Partners
proportionately.
ARTICLE 8
DISSOLUTION AND LIQUIDATION OF PARTNERSHIP
------------------------------------------
8.1 Events of Dissolution.
---------------------
The Partnership shall be dissolved upon the happening of any of the
following events:
(a) the withdrawal of the General Partner;
(b) the expiration of the term of the Partnership as set forth in
Section 2.4;
(c) the sale, exchange, involuntary conversion, or other disposition
or transfer of all or substantially all of the assets of the Partnership;
(d) upon mutual agreement of the Partners; or
(e) subject to any provision of this Agreement that limits or prevents
dissolution, the happening of any event that, under applicable law, causes the
dissolution of a limited partnership.
8.2 Liquidation.
-----------
(a) Upon dissolution of the Partnership for any reason, the
Partnership shall immediately commence to wind up its affairs. A reasonable
period of time shall be allowed for the orderly termination of the Partnership
business, discharge of its liabilities, and distribution or liquidation of the
remaining assets so as to enable the Partnership to minimize the normal losses
attendant to the liquidation process.
-23-
(b) Liquidation of the assets of the Partnership shall be managed on
behalf of the Partnership by the "Liquidator," which shall be (1) if the
Partnership is being liquidated following a withdrawal by the General Partner,
the Limited Partner, and (2) in all other events, the General Partner or a
liquidating trustee selected by the General Partner. The Liquidator shall be
responsible for soliciting offers to purchase the entirety of the Partnership's
assets (including equity interests in other Persons) or portions or clusters of
assets of the Partnership. The Liquidator shall afford each Partner an
opportunity to offer to purchase any assets of the Partnership that are offered
for sale in connection with the liquidation of the Partnership to the extent
doing so would be consistent with the orderly liquidation of the Partnership.
(c) The Liquidator shall cause a full accounting of the assets and
liabilities of the Partnership to be taken and a statement thereof to be
furnished to each Partner within thirty days after the distribution of all of
the assets of the Partnership.
(d) The property and assets of the Partnership and the proceeds from
the liquidation thereof shall be applied in the following order of priority:
(1) first, to payment of the debts and liabilities of the
Partnership, in the order of priority provided by law (including any loans by
either Partner to the Partnership) and payment of the expenses of liquidation;
(2) second, to setting up of such reserves as the Liquidator may
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Partnership or any obligation or liability not then due and
payable; provided, however, that any such reserve shall be paid over by the
Liquidator into a Partnership account or a liquidating trust account established
for such purpose, to be held in such account for the purpose of disbursing such
reserves in payment of such liabilities, and, at the expiration of such holdback
period as the Liquidator shall deem advisable, to distribute the balance
thereafter remaining in the manner hereinafter provided; and
(3) finally, to payment to the Partners, in accordance with Section
4.1(b). The distributions pursuant to this Section 8.2(d)(3) shall, to the
extent possible, be made prior to the later of the end of the Fiscal Year in
which the dissolution occurs or the ninetieth day after the date of dissolution,
or such other time period which may be permitted under Treasury Regulations
Section 1.704-1(b)(2)(ii)(b).
(e) If in the course of the liquidation and dissolution of the
Partnership pursuant to this Article 8, the Liquidator determines that a sale by
all the Partners to any Person of their Partnership Interests, instead of a sale
by the Partnership and the Subsidiaries of their respective assets, would more
efficiently effect the liquidation of the Partners' economic interests in the
Partnership or would reduce negative tax consequences to the Partners and the
Partnership, but would not adversely affect the rights and obligations of either
Partner (including the tax consequences to either Partner), then each Partner
agrees to sell its Partnership Interest to such Person, and the Liquidator shall
have the authority, pursuant to the power of attorney granted in Section
13.5(b), to execute, acknowledge, deliver, swear to, file, and record all
agreements,
-24-
instruments, and other documents that may be necessary or appropriate to effect
the sale of such Partner's Partnership Interest.
(f) Following the dissolution of the Partnership pursuant to Section
8.1, the Partners will use commercially reasonable efforts to structure the
liquidation of the Partnership in a manner that minimizes negative tax
consequences to the Partners and the Partnership to the extent doing so would
not materially adversely affect either Partner (except to the extent such
Partner is adequately compensated by the other Partner for such adverse effect).
Any structure agreed to by the Partners pursuant to this Section 8.2(f) shall
supersede the other provisions of this Article 8 to the extent it is
inconsistent with such other provisions, but nothing in this Section 8.2(f)
shall modify or otherwise affect the other provisions of this Article 8 if the
Partners are unable to agree on such a structure.
8.3 Distribution in Kind.
--------------------
The Partnership shall not distribute any non-cash asset to either Partner
without the consent of each Partner. Any asset distributed in kind to one or
more Partners shall first be valued at its fair market value to determine the
gain or loss used in determining Net Profit or Net Loss that would have resulted
if such asset were sold for such value, such gain or loss shall then be
allocated pursuant to Article 4, and the Partners' Capital Accounts shall be
adjusted to reflect such gain or loss. The amount distributed and charged to
the Capital Account of each Partner receiving an interest in such distributed
asset shall be the fair market value of such interest (net of any liability
secured by such asset that such Partner assumes or takes subject to). The fair
market value of any asset distributed in kind in connection with the liquidation
of the Partnership shall be determined by an independent appraiser (any such
appraiser must be nationally recognized as an expert in valuing the type of
asset involved) selected by the Liquidator.
8.4 No Action for Dissolution.
-------------------------
The Partners acknowledge that irreparable damage would be done to the
goodwill and reputation of the Partnership if either Partner should bring an
action in court to dissolve the Partnership under circumstances where
dissolution is not required by Section 8.1. This Agreement has been drawn
carefully to provide fair treatment of all parties and equitable payment in
liquidation of the Partnership Interests of both Partners. Accordingly, except
where liquidation and dissolution are required by Section 8.1, each Partner
hereby waives and renounces its right to initiate legal action to seek
dissolution or to seek the appointment of a receiver or trustee to liquidate the
Partnership.
8.5 No Further Claim.
----------------
Upon dissolution, each Partner shall look solely to the assets of the
Partnership for the return of its investment, and if the property of the
Partnership remaining after payment or discharge of the debts and liabilities of
the Partnership, including debts and liabilities owed to one or more of the
Partners, is insufficient to return the aggregate capital contributions of a
Partner, no Partner shall have any recourse against any other Partner.
-25-
ARTICLE 9
INDEMNIFICATION
---------------
9.1 General.
-------
The Partnership shall indemnify, defend, and hold harmless each Partner and
their respective members, partners, officers, directors, shareholders,
employees, and agents, the employees, officers, and agents of the Partnership
(all indemnified persons being referred to as "Indemnified Persons" for purposes
of this Article 9), from any liability, loss, or damage incurred by the
Indemnified Person by reason of any act performed or omitted to be performed by
the Indemnified Person in connection with the business of the Partnership,
including costs and attorneys' fees (which attorneys' fees may be paid as
incurred) and any amounts expended in the settlement of any claims of liability,
loss, or damage; provided, however, that, if the liability, loss, damage, or
claim arises out of any action or inaction of an Indemnified Person,
indemnification under this Section 9.1 shall not be available if the action or
inaction is finally adjudicated to have constituted fraud, gross negligence,
breach of fiduciary duty (which shall not be construed to encompass mistakes in
judgment or any breach of any Indemnified Person's duty of care that did not
constitute gross negligence), or willful misconduct by the Indemnified Person;
and provided, further, however, that indemnification under this Section 9.1
shall be recoverable only from the assets of the Partnership and not from any
assets of the Partners. The Partnership may pay for insurance covering
liability of the Indemnified Persons for negligence in operation of the
Partnership's affairs.
9.2 Exculpation.
-----------
No Indemnified Person shall be liable, in damages or otherwise, to the
Partnership or to either Partner for any loss that arises out of any act
performed or omitted to be performed by it or him pursuant to the authority
granted by this Agreement unless the conduct of the Indemnified Person is
finally adjudicated to have constituted fraud, gross negligence, breach of
fiduciary duty (which shall not be construed to encompass mistakes in judgment
or any breach of any Indemnified Person's duty of care that did not constitute
gross negligence), or willful misconduct by such Indemnified Person.
9.3 Persons Entitled to Indemnity.
-----------------------------
Any Person who is within the definition of "Indemnified Person" at the time
of any action or inaction in connection with the business of the Partnership
shall be entitled to the benefits of this Article 9 as an "Indemnified Person"
with respect thereto, regardless of whether such Person continues to be within
the definition of "Indemnified Person" at the time of his or its claim for
indemnification or exculpation hereunder.
-26-
9.4 Procedure Agreements.
--------------------
The Partnership may enter into agreements with any of its Partners,
employees, officers, and agents, any of the officers, directors, shareholders,
employees, and agents of the General Partner, and any member of the Advisory
Committee or other Indemnified Person, setting forth procedures for implementing
the indemnities provided in this Article 9.
ARTICLE 10
BOOKS, RECORDS, ACCOUNTING, AND REPORTS
---------------------------------------
10.1 Books and Records.
-----------------
The Partnership shall maintain at its principal office all of the
following:
(a) A current list of the full name and last known business or
residence address of each Partner together with the Capital Contributions and
Partnership Interest of each Partner;
(b) A copy of the Certificate, this Agreement, and any and all
amendments to either thereof, together with executed copies of any powers of
attorney pursuant to which any certificate or amendment has been executed;
(c) Copies of the Partnership's federal, state, and local income tax
or information returns and reports, if any, for the six most recent taxable
years;
(d) The audited financial statements of the Partnership for the six
most recent Fiscal Years; and
(e) The Partnership's books and records for at least the current and
past three Fiscal Years.
10.2 Delivery to Partner and Inspection.
----------------------------------
(a) Upon the request of a Partner, the Partnership shall promptly
deliver to the requesting Partner, at the expense of the Partnership, a copy of
the information required to be maintained by Section 10.1 except for Section
10.1(e).
(b) Each Partner, or its duly authorized representative, has the
right, upon reasonable request, to inspect and copy during normal business hours
any of the Partnership records.
-27-
10.3 Tax Matters.
-----------
The Partnership shall be treated as a partnership for federal and state
income tax and franchise tax purposes. The Partnership, at Partnership expense,
shall prepare and timely file with the appropriate authorities all income tax
returns for the Partnership required to be filed by the Partnership.
10.4 Other Filings.
-------------
The Partnership, at Partnership expense, shall also prepare and timely
file, with appropriate federal and state regulatory and administrative bodies,
all reports required to be filed by the Partnership with those entities under
then current applicable laws, rules, and regulations. The reports shall be
prepared on the accounting or reporting basis required by the regulatory bodies.
Upon written request, each Partner shall be provided with a copy of any of the
reports without expense to the requesting Partner.
10.5 Non-Disclosure.
--------------
Each Partner agrees that, except as otherwise consented to by the other
Partner, all non-public information furnished to it or to which it has access
pursuant to this Agreement will be kept confidential and will not be disclosed
by such Partner (it being agreed that the standard each Partner shall adhere to
is to use the same degree of care it would use for its own confidential
information), or by any of its agents, representatives, or employees, in any
manner whatsoever, in whole or in part, except that:
(a) each Partner shall be permitted to disclose such information to
those of its agents, representatives, and employees who need to be familiar with
such information in connection with such Partner's investment in the
Partnership,
(b) each Partner shall be permitted to disclose such information to
its Affiliates,
(c) each Partner shall be permitted to disclose information to the
extent required by law, including federal or state securities laws or
regulations, or by the rules and regulations of any stock exchange or
association on which securities of such Partner or any of its Affiliates are
traded, so long as such Partner shall have first afforded the Partnership with a
reasonable opportunity to contest the necessity of disclosing such information,
(d) each Partner shall be permitted to disclose information to the
extent necessary for the enforcement of any right of such Partner arising under
this Agreement,
(e) each Partner shall be permitted to disclose information to a
permitted Transferee, so long as (1) such Partner shall first have provided to
the other Partner written notice thereof and of the identity of the Person to
whom the disclosure is to be made and (2) such Person agrees (in a writing which
provides the Partnership with an independent right of enforcement) to be bound
by the provisions of this Section 10.9,
-28-
(f) each Partner shall be permitted to disclose information that is
or becomes generally available to the public other than as a result of a
disclosure by such Partner, its agents, representatives, or employees, and
(g) each Partner shall be permitted to disclose information that
becomes available to such Partner on a nonconfidential basis from a source
(other than the Partnership, any other Partner, or their respective agents,
representatives, and employees) that, to the best of such Partner's knowledge,
is not prohibited from disclosing such information to such Partner by a legal,
contractual, or fiduciary obligation to the Partnership or any other Partner.
ARTICLE 11
REPRESENTATIONS BY THE PARTNERS
-------------------------------
Each Partner represents and warrants to, and agrees with, the other Partner
and the Partnership as follows:
11.1 Binding Agreement.
-----------------
This Agreement is and will remain its valid and binding agreement,
enforceable in accordance with its terms (subject, as to the enforcement of
remedies, to any applicable bankruptcy, insolvency, or other laws affecting the
enforcement of creditor's rights).
11.2 Tax Position.
------------
Unless it provides prior written notice to the Partnership, it will not
take a position on its federal income tax return, on any claim for refund, or in
any administrative or legal proceedings that is inconsistent with any
information return filed by the Partnership or with the provisions of this
Agreement.
ARTICLE 12
AMENDMENTS AND WAIVERS
----------------------
12.1 Amendments to Operating Agreement.
---------------------------------
(a) This Agreement may only be modified or amended with the consent
of both Partners.
(b) The Partnership shall prepare and file any amendment to the
Certificate that may be required to be filed under the Act as a consequence of
any amendment to this Agreement.
-29-
12.2 Waivers.
-------
The observance or performance of any term or provision of this Agreement
may be waived (either generally or in a particular instance, and either
retroactively or prospectively) by the party entitled to the benefits of such
term or provision.
ARTICLE 13
MISCELLANEOUS
-------------
13.1 Additional Documents.
--------------------
At any time and from time to time after the date of this Agreement, upon
the request of the Partnership or the other Partner, each Partner shall do and
perform, or cause to be done and performed, all such additional acts and deeds,
and shall execute, acknowledge, and deliver, or cause to be executed,
acknowledged, and delivered, all such additional instruments and documents, as
may be required to best effectuate the purposes and intent of this Agreement.
13.2 Inspection.
----------
Each Partner shall have the right at reasonable times to inspect the books
and records of the Partnership.
13.3 General.
-------
This Agreement: (a) shall be binding on the executors, administrators,
estates, heirs, and legal successors of the Partners; (b) be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to conflicts of law principles thereunder; (c) may be executed in more than one
counterpart as of the day and year first above written; and (d) contains the
entire agreement between the Partners as to the subject matter of this
Agreement. The waiver of any of the provisions, terms, or conditions contained
in this Agreement shall not be considered as a waiver of any of the other
provisions, terms, or conditions of this Agreement.
13.4 Notices, Etc.
------------
All notices and other communications required or permitted hereunder shall
be in writing and shall be deemed effectively given or delivered upon personal
delivery, confirmation of telex or telecopy, or receipt (which may be evidenced
by a return receipt if sent by registered mail), addressed (a) if to either
Partner, at the address of such Partner set forth on Schedule I or at such other
address as such Partner shall have furnished to the Partnership in writing, (b)
if to the Partnership, at 126 E. 56th Street, New York, New York 10022.
13.5 Execution of Papers.
-------------------
(a) The Partners agree to execute such instruments, documents, and
papers as the General Partner deems necessary or appropriate to carry out the
intent of this Agreement.
-30-
(b) Each Partner, including each additional and substituted Partner,
by the execution of this Agreement, irrevocably constitutes and appoints the
Liquidator its true and lawful attorney-in-fact with full power and authority in
its name, place, and stead to execute, acknowledge, deliver, swear to, file, and
record all agreements, instruments, and other documents that may be necessary or
appropriate to effect the sale of such Partner's Partnership Interest pursuant
to Section 8.2(e).
(c) The power of attorney granted pursuant to Section 13.5(b) shall
be deemed to be a power coupled with an interest, in recognition of the fact
that each of the Partners under this Agreement will be relying upon the power of
the Liquidator to act as contemplated by this Agreement in any filing and other
action by it on behalf of the Partnership, and shall survive the bankruptcy,
death, adjudication of incompetence or insanity, or dissolution of any Person
hereby giving such powers and the transfer or assignment of all or any part of
such Person's Partnership Interest; provided, however, that in the event of a
Transfer by a Partner, the powers of attorney given by the transferor shall
survive such Transfer only until such time as the Transferee shall have been
admitted to the Partnership as a substituted Partner and all required documents
and instruments shall have been duly executed, filed, and recorded to effect
such substitution.
(d) Each Partner agrees to be bound by any actions taken by the
Liquidator acting in good faith pursuant to the power of attorney granted
pursuant to Section 13.5(b) that are consistent with and subject to the
provisions of this Agreement and hereby waives any and all defenses that may be
available to contest, negate, or disaffirm any action of the Liquidator taken in
good faith under the power of attorney granted pursuant to Section 13.5(b) that
are consistent with and subject to the provisions of this Agreement.
13.6 Attorneys' Fees.
---------------
In the event of commencement of suit or other action by either party to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to receive such attorneys' fees and costs as the court or other forum in which
such suit or action is adjudicated may determine reasonable in addition to all
other relief granted.
13.7 No Third-Party Beneficiaries.
----------------------------
This Agreement is not intended to, and shall not be construed to, create
any right enforceable by any Person not a party hereto, including any partner or
Partner of either Partner or any creditor of the Partnership or of either of the
Partners.
13.8 Headings.
--------
The headings herein are included for ease of reference only and shall not
control or affect the meaning or construction of the provisions of this
Agreement.
-31-
IN WITNESS WHEREOF, the Partners have hereunto set their hands as of the
day first heretofore mentioned.
INSIGHT MIDWEST, L.P.
By: Insight Communications Company, L.P., its
general partner
By: Insight Communications Company, Inc., its
general partner
By:_________________________________________
Name:
Title:
INSIGHT KENTUCKY CAPITAL, LLC
By: Insight Communications Company, L.P., its
authorized member
By: Insight Communications Company, Inc., its
general partner
By:_________________________________________
Name:
Title:
SCHEDULE I
TO
LIMITED PARTNERSHIP AGREEMENT
ADDRESSES OF THE PARTNERS
Insight Midwest, L.P.
126 E. 56th Street
New York, New York 10022
Attention: Sidney R. Knafel
Facsimile: (212) 371-1549
Insight Kentucky Capital, LLC
126 E. 56th Street
New York, New York 10022
Attention: Sidney R. Knafel
Facsimile: (212) 371-1549
SCHEDULE II
TO
LIMITED PARTNERSHIP AGREEMENT
PERCENTAGE INTEREST
The Percentage Interests of the Partners as of the date of this Agreement are:
Insight Midwest 99.999%
Insight Kentucky Capital .001%