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EXHIBIT 10.10
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (this "Management Agreement") is made and
entered into as of the 30th day of July, 1996, by and between INTERMEDIA
PARTNERS OF WEST TENNESSEE, L.P., a California limited partnership ("IPWT"), and
INTERMEDIA CAPITAL MANAGEMENT IV, L.P., a California limited partnership (the
"Manager").
W I T N E S S E T H:
Whereas the Manager is the general partner of InterMedia Partners IV,
L.P., a California limited partnership ("IP-IV"), a limited partner and the
general partner of IPWT; and
Whereas IPWT is the owner and operator of certain cable television
systems servicing areas located in Tennessee (such systems, together with any
other cable television systems acquired by IPWT in the future, the "Systems");
and
Whereas the Manager has experience in the operation and management of
cable television systems such as the Systems; and
Whereas IPWT and the Manager have agreed to enter into this Management
Agreement, pursuant to which the Manager, from and after the date hereof, shall
manage the Systems:
Now, Therefore, in consideration of the foregoing and the mutual
covenants and agreements contained herein and the mutual benefits to be derived
therefrom, IPWT and the Manager hereby agree as follows:
I. Appointment of Manager. IPWT hereby designates the Manager and the
Manager hereby accepts the designation as exclusive manager of the Systems on
behalf of IPWT, upon the conditions and for the term and compensation set forth
herein.
II. Term. The appointment of the Manager shall become effective as of
the date hereof, and shall continue for the duration of IPWT's existence,
subject to Section 8 below.
III. Duties of Manager. Subject to the limitations on the authority of
the Manager set forth in Section 4 and subject to the right of IPWT, after
consultation with the Manager, to perform certain functions itself and to direct
the Manager to take or omit to take actions specified by
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IPWT and/or to otherwise supervise the conduct of the business by the Manager,
and in each case where the same would not violate any existing franchise,
license, contract, law or regulation applicable to the Systems, the Manager
shall have the following authority:
A. Supervision and Consulting. The Manager shall supervise and conduct
the day-to-day operations of the Systems in the ordinary course of business.
B. Programming. Subject to the provisions of all applicable franchises
or ordinances or other binding contracts or legislation, the Manager shall
select, provide and price, at the lowest cost available to IPWT, all programming
and services to be provided to the customers of the Systems; provided, however,
all costs and expenses incurred for programming and services will be borne by
IPWT. Authority is hereby confirmed on the Manager to enter into programming
contracts on behalf of IPWT or the Systems with such parties as the Manager
deems appropriate. To its knowledge the Manager believes that the services of
Satellite Services, Inc. ("SSI") will be available to the Systems. The Manager
shall use its best efforts to make the services of SSI available to the Systems
and shall use all reasonable efforts to retain access to SSI on behalf of the
Systems.
C. Maintenance and Construction of Systems. The Manager shall maintain
the Systems in good working order and repair and shall cause to be made such
capital improvements as (i) are necessary or appropriate to maintain the Systems
in compliance with the franchises for the Systems or (ii) are consistent with
the past practices of the Systems.
D. Employees. The Manager shall select, determine the compensation of,
supervise, instruct, discharge and otherwise manage all servants, employees,
agents, attorneys, accountants, engineers, consultants or contractors considered
by the Manager to be necessary for the efficient operation of the Systems
subject to the approval of IPWT. All such servants, employees, agents,
attorneys, engineers, consultants or contractors shall remain and be in the
employ of and be compensated by IPWT.
E. Negotiations of Contracts. The Manager shall assist IPWT in the
negotiation of all contracts and the performance of all tasks necessary for the
financing, operation, construction, installation, maintenance, budgeting,
servicing, repair, protection, improvement, expansion, upkeep and other
management of the Systems, which contracts may be executed by the Manager on
behalf of IPWT as owner of the Systems, provided IPWT would have the authority
to execute such contracts under the terms of IPWT's Amended and
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Restated Agreement of Limited Partnership dated as of October 3, 1994 (the "IPWT
Agreement").
F. Filings. The Manager shall assist IPWT in the timely filing of all
federal, state and local reports with respect to the Systems as may be required
by franchise ordinances, Federal Communications Commission regulations or
copyright regulations.
G. Records. The Manager shall keep or cause to be kept all necessary
and appropriate books and records of all affairs relating to the Systems.
Originals or copies of such books and records shall be maintained at the
principal office of the Manager and shall be open to inspection and examination
by IPWT or its representatives at any reasonable time during the term of this
Agreement.
H. Accounting. The Manager shall establish and/or maintain all
accounting, bookkeeping, billing, collections and other financial systems and
records relating to the Systems and the preparation of appropriate monthly
financial reports to be furnished to IPWT.
I. Representation. To the extent appropriate, the Manager shall
represent IPWT and the Systems before all governmental authorities with respect
to any matter necessary or desirable to the efficient management thereof.
J. Other Responsibilities. The Manager shall perform all other
management services necessary or desirable for the management, operation and
maintenance of the Systems as the Manager, in its reasonable discretion deems
appropriate or necessary in order to manage and operate the Systems. The
enumeration of services to be performed by the Manager herein shall not be
deemed to be exclusive, nor shall such enumeration prevent the Manager from
delegating its authority hereunder to IPWT.
K. Cooperation. IPWT shall cooperate with the Manager in the
performance of the Manager's duties hereunder and shall execute such documents,
instruments and certificates as may be necessary to evidence the Manager's
authority hereunder, to permit it to collect all revenue of the Systems, or to
permit the Manager to finalize necessary reports, filings, contracts or other
matters.
IV. Authority of Manager. Notwithstanding any provision of this
Agreement to the contrary, the Manager shall not take any action under this
Agreement without the consent of the limited partner of IPWT if the Manager is
prohibited from taking such action without the consent of the limited partner of
IPWT under the terms of the IPWT Agreement. The Manager shall be authorized to
perform all services necessary for the management of the Systems, subject to the
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preceding sentence and except that the Manager shall not have the authority to
sell or trade any assets of the Systems. To the extent IPWT has entered into an
agreement with InterMedia Management, Inc., a California corporation ("IMI"), to
provide administrative services to the Systems, the Manager shall not be
responsible for providing such services and shall coordinate with IMI with
regard to the administration of the Systems.
V. Compensation of Manager. As compensation for its services hereunder,
the Manager shall be entitled to receive in cash an annual fee equal to one
percent (1%) of the total capital contributions that have been made to IPWT
determined as of the beginning of each calendar quarter. The fee shall be paid
quarterly in advance, one-fourth of one percent (.25%) per quarter, on the first
business day of each calendar quarter. Any portion of the such fee which shall
be past due shall bear interest from the date due until paid at the lower of a
rate of ten percent (10%) per annum or the highest amount permitted by law.
VI. Bank Account.
A. Consolidation Accounts. The Manager shall create and maintain bank
accounts (hereinafter referred to as the "Consolidation Accounts") in which the
funds generated by the Systems shall be deposited. All funds in said accounts
from time to time shall be the property of the Systems, but said funds shall be
disbursed from said account by the Manager on the Systems' behalf in accordance
with the provisions of this Management Agreement. Only such person or persons as
are designated by the Manager or IPWT shall have authority to draw checks or
drafts upon or make withdrawals from said accounts.
B. Payments. The Manager shall make or cause to be made all payments of
costs, expenses and charges payable with respect to the operations of the
Systems.
VII. Indemnification.
A. Indemnification by IPWT. IPWT shall indemnify and defend the
Manager, its partners, employees and control persons and hold them harmless from
any and all claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees and court costs) which they may incur by reason of
the performance of the Manager's duties on behalf of IPWT hereunder, except
where such claims, damages, liabilities, costs and expenses are due to the gross
negligence, fraud or willful misconduct of the Manager and/or such persons.
Notwithstanding the foregoing, the Manager shall not be entitled to
indemnification hereunder with respect to any action or omission by the Manager
to the extent that the Manager would not be entitled to
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indemnification with respect to such action or omission under the IPWT
Agreement, had such action or omission been taken by the Manager.
B. Indemnification by Manager. The Manager shall indemnify, defend and
hold IPWT harmless from any and all claims, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs) suffered by IPWT
as a result of the Manager's performance of its duties on behalf of IPWT
hereunder only where such claims, damages, liabilities, costs and expenses are
due to the gross negligence, fraud or willful misconduct of the Manager, its
partners, employees or control persons, provided, however, the Manager shall not
be responsible for the acts or omissions of employees hired and supervised with
due care.
VIII. Termination.
A. Termination at Option of IPWT. This Agreement shall be terminable at
the option of IPWT in the event: (i) the Manager is convicted of a felony which
becomes final following expiration of the applicable appeal period; (ii) the
Manager shall file a voluntary petition in bankruptcy or shall be adjudicated a
bankrupt or insolvent, or shall file any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future federal,
state, or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors; or shall seek to consent to or acquiesce in the
appointment of any trustee, receiver or liquidator or shall make any general
assignment for the benefit of creditors, or shall admit in writing its inability
to pay its debts generally as they become due; (iii) a court of competent
jurisdiction shall enter an order, judgment or decree approving a petition filed
against the Manager seeking any reorganization, dissolution or similar relief
under any present or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors, and such order,
judgment or decree shall remain unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive) from the first date of entry thereof; or
any trustee, receiver or liquidator of the Manager shall be appointed without
the consent or acquiescence of the Manager and such appointment shall remain
unvacated and unstayed for an aggregate of sixty (60) days (whether or not
consecutive); (iv) a final judgment shall be rendered against the Manager in
which it is determined that the Manager has engaged in fraudulent conduct (a)
materially and adversely affecting the Manager's ability to discharge its
obligations under this Agreement or (b) against IPWT; (v) the Manager shall have
engaged in an act of gross negligence, fraud or willful misconduct, or in a
pattern of conduct wherein it shall have failed to perform
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its duties hereunder; (vi) the dissolution of the Manager; or (vii) the
occurrence of any event permitting the Manager to be removed as general partner
of IPWT under the Amended and Restated Limited Partnership Agreement of IPWT,
dated as of October 3, 1994. This Agreement shall also be terminable at the
option of IPWT upon not less than ninety (90) days' prior written notice to the
Manager if: 1. IPWT sells or enters into a contract to sell substantially all of
the assets of the Systems; or 2. any third party service contracts to be entered
into by the Manager on behalf of IPWT, which were taken into consideration by
the parties hereto in determining to enter into this Agreement, are not entered
into or are materially changed or the operating economics of IPWT are otherwise
materially adversely affected. The giving or receipt of notice to terminate
shall not relieve the Manager of its obligations during the period prior to the
time such termination takes effect.
B. Return of Information. Upon termination of this Management
Agreement, all books and records in the possession of the Manager relating to
the maintenance and operation of and accounting for the Systems together with
all supplies and other items of property owned by IPWT and in the Manager's
possession shall be delivered to IPWT, and the Manager's right to compensation
shall cease; provided, however, that the Manager shall be entitled to be fully
compensated for services rendered prior to the date of termination and shall be
entitled to retain copies of any records necessary to the Manager; and provided
further, that the provisions of Section 9 hereof shall remain in full force and
effect and shall survive such termination.
IX. Confidentiality. The terms of this Management Agreement and all
information furnished or made available by the Manager or IPWT to the other in
connection with this Management Agreement, whether before or after the date
hereof, are confidential and such terms or information or any part thereof may
not be disclosed to any person or entity other than officers, directors and
employees of the parties hereto, and their accountants, attorneys and investment
bankers and other persons or entities to the extent that such disclosure is
necessary for a party to perform its obligations under this Management
Agreement. The obligations with respect to the disclosure of confidential
information set forth in this Section 9, are not applicable to confidential
information which, according to tangible evidence, (i) becomes available from a
source, other than a party to this Management Agreement, who has no obligation
of confidentiality with respect to the confidential information and who did not
obtain such information pursuant to a breach of this Section 9; (ii) is
developed independently or is within the knowledge of the party to whom it is
delivered prior to receipt thereof; (iii) is within, or later falls within, the
public domain without breach of this Management
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Agreement by the party hereto receiving such information; or (iv) is required to
be disclosed in connection with any legal proceeding pending before a court or
other governmental entity of competent jurisdiction, provided that the party
required to make such disclosure shall give immediate notice that it is
compelled to make such disclosure so that the other party may, if it so desires,
seek a protective order with respect to the confidentiality of the information
covered thereby. Each party to this Management Agreement agrees to use its
reasonable efforts to protect the confidential information and prevent its
disclosure, publication, or dissemination to third parties. No party shall be
liable for the inadvertent or accidental disclosure by it of confidential
information if such disclosure occurs despite the exercise of its reasonable
efforts to protect the confidentiality of such information.
X. Miscellaneous.
A. Notices. Except as otherwise provided in this Management Agreement,
any notice, approval, consent, waiver or other communication required or
permitted to be given or to be served upon any person in connection with this
Management Agreement shall be in writing and shall be hand delivered (including
by messenger or recognized commercial delivery or courier service), sent
facsimile transmission or sent by registered or certified mail, postage prepaid,
with return receipt requested addressed to the party intended at the address set
forth below or at such other address as such party may designate by notice given
to the other parties in the manner aforesaid and shall be deemed given and
received on the date it is delivered, in the case of delivery by hand or by
facsimile, or, in the case of delivery by mail, actual delivery as shown by the
addressee's return receipt. Rejection or other refusal to accept or inability to
deliver because of a change of address of which no notice was given shall be
deemed to be receipt of the notice.
To IPWT:
InterMedia Partners of West Tennessee, L.P.
235 Montgomery Street
Suite 420
San Francisco, CA 94104
Telecopy: (415) 397-3978
Attention: Mr. Leo J. Hindery, Jr.
With a copy to:
Pillsbury Madison & Sutro LLP
Post Office Box 7880
San Francisco, CA 94120-7880
Attention: Gregg Vignos, Esq.
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To the Manager:
InterMedia Capital Management IV, L.P.
235 Montgomery Street
Suite 420
San Francisco, CA 94104
Telecopy: (415) 397-3978
Attention: Mr. Leo J. Hindery, Jr.
B. Successors and Assigns. This Management Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns subject to all restrictions on the transfer of the
interests set forth in this Management Agreement.
C. Governing Law. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO
CONFLICTS OR CHOICE OF LAW PRINCIPLES.
D. Independent Contractor. The Manager and IPWT are not partners or
joint venturers with each other and nothing herein shall be construed so as to
make them such partners or joint ventures or impose any liability as such on
either of them.
E. Assignment. No party hereto shall have the right to assign this
Management Agreement without the written consent of the other party, nor shall
this Management Agreement or any of the rights or obligations of the parties
hereunder be transferable by operation of law or otherwise, except that either
party's interest may be assigned to: (i) a wholly owned subsidiary of such
party; (ii) a corporation or partnership which owns 100% of the capital interest
(either stock or partnership interest, as the case may be) in such party
immediately prior to such assignment; or (iii) a wholly owned subsidiary of the
corporation or partnership referred to in clause (ii) above; provided, however,
that any assignment to any entity described in clause (i), (ii) or (iii)
immediately above may be made only in the event that the management of such
assignee shall be essentially the same as the management of the assigning party
immediately prior to such assignment.
F. Amendment. This Management Agreement may not be modified, altered or
amended in any manner except by agreement in writing duly executed by the
parties hereto.
G. Attorneys' Fees. If any action, suit or proceeding is brought by any
of the parties hereto arising out of or relating to the Management Agreement or
its breach, the successful or prevailing party in any such actions, suit or
proceeding shall be entitled to the full amount of its reasonable expenses,
including all court costs and attorneys
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fees paid or incurred in connection therewith, in addition to such other relief
as such party shall be entitled.
H. Counterparts. This Management Agreement may be signed in any number
of counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Management Agreement
as of the day and year first above written.
IPWT:
INTERMEDIA PARTNERS OF WEST TENNESSEE,
L.P., a California limited
partnership
By InterMedia Partners IV,
L.P., a California limited
partnership, its general
partner
By InterMedia Capital
Management IV, L.P., a
California limited partnership,
its general partner
By /s/ Leo J. Hindery, Jr.
_________________________________
Leo J. Hindery, Jr.
Managing General Partner
THE MANAGER:
INTERMEDIA CAPITAL MANAGEMENT IV, L.P., a
California limited partnership
By /s/ Leo J. Hindery, Jr.
__________________________________________
Leo J. Hindery, Jr.
Managing General Partner
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