<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event Reported) December 31, 1996
-----------------
COX COMMUNICATIONS, INC.
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
1-06590 58-2112288
------------------------------- ------------------------------
(Commission File Number) (I.R.S. Employer
Identification Number)
1400 Lake Hearn Drive, N.E.
Atlanta, Georgia 30319
- ------------------------------ ------------------------------
(Address of principal (Zip Code)
executive officer)
Registrant's telephone number, including area code 404-843-5000
---------------------------
- --------------------------------------------------------------------------------
(Former name or former address, if changed since last report)
<PAGE> 2
Item 5. Other Events.
Cox Communications, Inc. ("CCI"), through Cox Pioneer Partnership
("CPP"), and Sprint Spectrum Holding Company, L.P. ("Sprint PCS") formed a new
limited partnership on December 31, 1996 named Cox Communications PCS, L.P.
("PioneerCo") to operate the personal communication services ("PCS") system in
the Los Angeles-San Diego major trading area ("MTA"). The Federal
Communications Commission ("FCC") awarded the license for the Los Angeles-San
Diego MTA to CCI under the FCC's pioneer preference program. Sprint PCS, in
which CCI indirectly owns a 15% interest, was formed in March 1995 by
subsidiaries of CCI, Tele-Communications, Inc., Comcast Corporation and Sprint
Corporation. PioneerCo is owned 49% by Sprint PCS as its limited partner and
51% by CPP as its general partner. CPP is a partnership formed on December 31,
1996, which is owned approximately 78% by CCI and approximately 22% by Cox
Enterprises, Inc. ("CEI") and controlled jointly by CCI and CEI.
The assignment to PioneerCo of CCI's PCS license for the Los
Angeles-San Diego MTA is subject to FCC approval. CCI's obligation to pay the
FCC for the license will be assumed by CPP. CPP may pay this amount to the FCC,
or PioneerCo may assume the obligation, in which event CPP would be required to
contribute the amount to PioneerCo. CCI and CEI's contributions to CPP to fund
the cost of the PCS license or these contributions to PioneerCo will be
approximately $164.6 million and $87.3 million, respectively. Sprint PCS's
capital contributions to PioneerCo will be made primarily in cash and will be
used for the initial construction of the PCS system in the Los Angeles-San
Diego MTA.
The foregoing description is qualified in its entirety by reference to
the Agreement of Limited Partnership of Cox Communications PCS, L.P. and the
Partnership Agreement of CPP, copies of which are filed as exhibits hereto.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial Statements
None.
(b) Pro Forma Financial Information
None.
<PAGE> 3
(c) Exhibits
(10) Agreement of Limited Partnership of Cox Communications
PCS, L.P., dated as of December 31, 1996, between Cox Pioneer
Partnership and Sprint Spectrum Holding Company, L.P.*
(10) Partnership Agreement of Cox Pioneer Partnership,
dated as of December 31, 1996, between Cox Communications
Pioneer, Inc. and CEI Pioneer, Inc.
- ---------------
* Schedules and exhibits intentionally omitted.
- 2 -
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: January 23, 1997 COX COMMUNICATIONS, INC.
By: /s/ Jimmy W. Hayes
------------------------------
Jimmy W. Hayes
Senior Vice President/Finance
- 3 -
<PAGE> 5
COX COMMUNICATIONS, INC.
Index to Exhibits to Form 8-K dated January 23, 1997
Exhibit Description
------- -----------
10.1 Agreement of Limited Partnership of Cox Communications
PCS, L.P., dated as of December 31, 1996, between Cox
Pioneer Partnership and Sprint Spectrum Holding Company,
L.P.*
10.2 Partnership Agreement of Cox Pioneer Partnership, dated
as of December 31, 1996, between Cox Communications
Pioneer, Inc. and CEI Pioneer, Inc.
- ----------------
* Schedules and exhibits intentionally omitted.
<PAGE> 1
EXHIBIT 10.1
AGREEMENT OF LIMITED PARTNERSHIP
OF
COX COMMUNICATIONS PCS, L.P.
A DELAWARE LIMITED PARTNERSHIP
dated as of December 31, 1996
by and between
COX PIONEER PARTNERSHIP
AND
SPRINT SPECTRUM HOLDING COMPANY, L.P.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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SECTION 1. THE PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Formation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
---------
1.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
----
1.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-------
1.4 Principal Executive Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
--------------------------
1.5 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
----
1.6 Filings; Agent for Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-------------------------------------
1.7 Title to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-----------------
1.8 Payments of Individual Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
----------------------------------
1.9 Independent Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
----------------------
1.10 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
-----------
1.11 Additional Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------------------
1.12 Terms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
---------------
SECTION 2. PARTNERS' CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.1 Percentage Interests; Preservation of Percentages of Interests Held as General
-------------------------------------------------------------------------------
Partner and as Limited Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
------------------------------
2.2 Partners' Original Capital Contributions and Interest Payments . . . . . . . . . . . . . . . . . . . . 23
--------------------------------------------------------------
2.3 Additional Capital Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
--------------------------------
2.4 Failure to Contribute Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-----------------------------
2.5 Partnership Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
-----------------
2.6 Partner Loans; Other Borrowings; Purchase of Partner Loans . . . . . . . . . . . . . . . . . . . . . . 32
----------------------------------------------------------
2.7 Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
-------------
2.8 Sale of Assets and Reimbursement of Research and Experimental Expenditures and
-------------------------------------------------------------------------------
Start-Up Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
---------------------
2.9 Interim Funding Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
---------------------
SECTION 3. ALLOCATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.1 Profits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
-------
3.2 Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
------
3.3 Special Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
-------------------
3.4 Curative Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
--------------------
3.5 Loss Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
---------------
3.6 Other Allocation Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
----------------------
3.7 Tax Allocations: Code Section 704(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
-------------------------------------
3.8 Special Profits and Special Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
----------------------------------
3.9 Allocations for Financial Reporting Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
--------------------------------------------
SECTION 4. PAYMENTS AND DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Available Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
--------------
4.2 Cash Distributed by LeasingCo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-----------------------------
</TABLE>
-i- December 12, 1996
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4.3 Amounts Withheld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
----------------
SECTION 5. MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.1 Authority of the General Partners and the Managing Partner . . . . . . . . . . . . . . . . . . . . . . 41
----------------------------------------------------------
5.2 Business Plan and Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
------------------------
5.3 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
---------
5.4 Limitation of Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
--------------------
5.5 Liability of Partners and Partnership Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
-----------------------------------------------
5.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
---------------
5.7 Temporary Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
---------------------
SECTION 6. PARTNERSHIP OPPORTUNITIES; CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.1 Engaging in Wireless Business in the Los Angeles MTA . . . . . . . . . . . . . . . . . . . . . . . . . 48
----------------------------------------------------
6.2 Enforceability and Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
------------------------------
6.3 General Exceptions to Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
------------------------------
6.4 Freedom of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
-----------------
6.5 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
---------------
SECTION 7. ROLE OF EXCLUSIVE LIMITED PARTNERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8. TRANSACTIONS WITH PARTNERS; CERTAIN ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . 54
8.1 Transactions with Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
--------------------------
8.2 Additional Agreements of the Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
-------------------------------------
8.3 Certain Additional Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
-----------------------------
8.4 Parent Undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
------------------
8.5 Cooperation on Transactions With Vendors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
----------------------------------------
8.6 Holdings's Right to Investigate Qualified Pre-Operating Expenses, Research and
-------------------------------------------------------------------------------
Experimental Expenditures and Start-Up Expenditures; Arbitration of Disputes . . . . . . . . . . . . 62
----------------------------------------------------------------------------
8.7 Management of PCS System Before License Contribution Date . . . . . . . . . . . . . . . . . . . . . . 63
---------------------------------------------------------
8.8 Product Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
-------------------
SECTION 9. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.1 Representations and Warranties of the Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
----------------------------------------------
9.2 Representations and Warranties of CPP Regarding the License and the System Assets . . . . . . . . . . 66
---------------------------------------------------------------------------------
SECTION 10. CONDITIONS TO ORIGINAL CAPITAL CONTRIBUTION OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . 69
10.1 Conditions to Each Partner's Obligation to Contribute the License . . . . . . . . . . . . . . . . . . 69
-----------------------------------------------------------------
10.2 Conditions to Holdings's Obligation to Contribute the Holdings License . . . . . . . . . . . . . . . . 69
----------------------------------------------------------------------
10.3 Conditions to CPP's Obligation to Make Original Capital Contribution . . . . . . . . . . . . . . . . . 70
--------------------------------------------------------------------
</TABLE>
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10.4 Condition to Holdings's Obligation to Make Certain Cash Contributions Prior to the License
------------------------------------------------------------------------------------------
Contribution Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
-----------------
SECTION 11. ACCOUNTING, BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
11.1 Accounting, Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
-----------------------------
11.2 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
-------
11.3 Tax Returns and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
---------------------------
11.4 Proprietary Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
-----------------------
SECTION 12. ADVERSE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
12.1 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
--------
12.2 Adverse Act Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
--------------------
12.3 Net Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
----------
12.4 Gross Appraised Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
---------------------
12.5 Extension of Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
-----------------
SECTION 13. DISPOSITIONS OF INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
13.1 Restriction on Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
---------------------------
13.2 Permitted Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
-------------------
13.3 Conditions to Permitted Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
---------------------------------
13.4 Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
----------------------
13.5 Tagalong Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
---------------
13.6 Put and Call Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
-------------------
13.7 Prohibited Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
-----------------------
13.8 Representations Regarding Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
-----------------------------------
13.9 Distributions and Allocations in Respect of Transferred Interests . . . . . . . . . . . . . . . . . . 99
-----------------------------------------------------------------
SECTION 14. CONVERSION OF INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
14.1 Conversion of Holdings Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
-------------------------------
14.2 Termination of Status as General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
----------------------------------------
14.3 Restoration of Status as General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
----------------------------------------
SECTION 15. DISSOLUTION AND WINDING UP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
15.1 Liquidating Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
------------------
15.2 Winding Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
----------
15.3 Compliance With Certain Requirements of Regulations; Deficit Capital Accounts . . . . . . . . . . . . 104
-----------------------------------------------------------------------------
15.4 Deemed Distribution and Recontribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
--------------------------------------
15.5 Rights of Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
------------------
15.6 Buy/Sell Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
---------------------
15.7 Notice of Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
---------------------
SECTION 16. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
16.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
-------
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16.2 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
--------------
16.3 Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
------------
16.4 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
----
16.5 Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
---------------------------
16.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
------------
16.7 Incorporation by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
--------------------------
16.8 Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
--------------
16.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
-------------
16.10 Waiver of Action for Partition; No Bill For Partnership Accounting . . . . . . . . . . . . . . . . . . 109
------------------------------------------------------------------
16.11 Counterpart Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
---------------------
16.12 Specific Performance; Attorneys' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
-------------------------------------
16.13 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
----------------
16.14 Limitation on Rights of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
------------------------------
16.15 Waivers; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
-----------------
16.16 Jurisdiction; Consent to Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
-------------------------------------------
16.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
--------------------
16.18 No Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
-------------------
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-iv- December 12, 1996
<PAGE> 6
AGREEMENT OF LIMITED PARTNERSHIP
OF
COX COMMUNICATIONS PCS, L.P.,
A DELAWARE LIMITED PARTNERSHIP
This AGREEMENT OF LIMITED PARTNERSHIP is entered into as of the 31st
day of December 1996, by and between Cox Pioneer Partnership, a general
partnership ("CPP"), as a General Partner and a Limited Partner, and Sprint
Spectrum Holding Company, L.P. (formerly known as MajorCo, L.P.), a Delaware
limited partnership ("Holdings"), as an Exclusive Limited Partner, pursuant to
the provisions of the Delaware Revised Uniform Limited Partnership Act, on the
following terms and conditions:
SECTION 1. THE PARTNERSHIP
1.1 Formation.
The Partners hereby form the Partnership as a limited partnership
pursuant to the provisions of the Act for the purposes and upon the terms and
conditions set forth in this Agreement.
1.2 Name.
The name of the Partnership shall be Cox Communications PCS, L.P., and
all business of the Partnership shall be conducted in such name or, in the
discretion of the Managing Partner, under any other names (but excluding a name
that includes the name of a Partner unless such Partner has consented thereto).
1.3 Purpose.
(a) Subject to, and upon the terms and conditions of this
Agreement, the purposes and business of the Partnership shall be to acquire and
hold the Los Angeles MTA Block "A" 30 MHz PCS license (the "License"), and to
build out, own, operate, maintain, and dispose of a PCS system in the Los
Angeles MTA under the License and any other Wireless Business license
(including a 10 MHz PCS license) acquired by the Partnership or under which the
Partnership operates a PCS system in the Los Angeles MTA through an affiliation
agreement or other arrangement with the licensee thereof.
(b) The Partnership shall have all the powers now or
hereafter conferred by the laws of the State of Delaware on limited
partnerships formed under the Act and, subject to the limitations of this
Agreement, may do any and all lawful acts or things that are necessary,
appropriate, incidental or convenient for the furtherance and accomplishment of
the purposes of the Partnership. Without limiting the generality of the
foregoing, and subject to the terms of this Agreement, the Partnership may
enter into, deliver and perform all contracts, agreements
December 12, 1996
<PAGE> 7
and other undertakings and engage in all activities and transactions that may
be necessary or appropriate to carry out its purposes and conduct its business.
1.4 Principal Executive Office.
The principal executive office of the Partnership shall be located in
such place as is determined by the Managing Partner, and the Managing Partner
may change the location of the principal executive office of the Partnership to
any other place within or without the State of Delaware upon ten (10) Business
Days prior notice to the other Partner; provided that such principal executive
office shall be located in the United States. The Managing Partner may
establish and maintain such additional offices and places of business of the
Partnership, within or without the State of Delaware, as it deems appropriate.
1.5 Term.
The term of the Partnership shall commence on the date the certificate
of limited partnership described in Section 17-201 of the Act (the
"Certificate") is filed in the office of the Secretary of State of Delaware in
accordance with the Act and shall continue until the winding up and liquidation
of the Partnership and its business is completed following a Liquidating Event,
as provided in Section 15.
1.6 Filings; Agent for Service of Process.
(a) Promptly following the execution of this Agreement,
CPP shall cause the Certificate to be filed in the office of the Secretary of
State of Delaware in accordance with the Act. The General Partner or, if there
is more than one, the General Partners shall take any and all other actions
reasonably necessary to perfect and maintain the status of the Partnership as a
limited partnership under the laws of Delaware. The General Partner or, if
there is more than one, the General Partners shall cause amendments to the
Certificate to be filed whenever required by the Act. The Managing Partner
shall furnish to the other Partner a copy of any document filed or recorded as
contemplated by this Section 1.6 promptly following the filing or recording
thereof.
(b) The General Partner or, if there is more than one,
the General Partners shall execute and cause to be filed original or amended
Certificates and shall take any and all other actions that may be reasonably
necessary to perfect and maintain the status of the Partnership as a limited
partnership or similar type of entity under the laws of any other states or
jurisdictions in which the Partnership engages in business, including
qualifying the Partnership to do business as a foreign limited partnership in
the states of California, Nevada and Arizona.
(c) The registered agent for service of process on the
Partnership shall be The Corporation Trust Company or any successor appointed
by the Managing Partner in accordance with the Act. The registered office of
the Partnership in the State of Delaware shall be located at Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801 or at the
-2- December 12, 1996
<PAGE> 8
principal office in Delaware of any successor registered agent appointed by the
Managing Partner in accordance with the Act.
1.7 Title to Property.
Neither Partner shall have any ownership interest in its individual
name or right in any real or personal property owned, directly or indirectly,
by the Partnership, and each Partner's Interest and Special Interest shall be
personal property for all purposes. The Partnership shall hold all of its
Property in the name of the Partnership or its nominee and not in the name of
either Partner.
1.8 Payments of Individual Obligations.
The Partnership's credit and assets shall be used solely for the
benefit of the Partnership, and no asset of the Partnership shall be
transferred or encumbered for, or in payment of, any individual obligation of
either Partner.
1.9 Independent Activities.
Each Partner shall be required to devote only such time to the affairs
of the Partnership as such Partner determines in its sole discretion may be
necessary to manage and operate the Partnership to the extent contemplated by
this Agreement, and, except as expressly provided herein, each Partner and its
Affiliates shall be free to serve any other Person or enterprise in any
capacity that it may deem appropriate in its discretion.
1.10 Definitions.
Capitalized words and phrases used in this Agreement have the
following meanings:
"Accountants" means, as of any time, such firm of nationally
recognized independent certified public accountants that, as of such time, has
been appointed by the Managing Partner as the accountants for the Partnership.
"Act" means the Delaware Revised Uniform Limited Partnership
Act, as set forth in Del. Code Ann. tit. 6, Sections 17-101 to 17-1111.
"Additional Capital Contributions" means, with respect to each
Partner, the Capital Contributions made by such Partner pursuant to Section
2.3, but excluding Special Contributions pursuant to Section 2.4(b), reduced by
the amount of any liabilities of such Partner assumed by the Partnership in
connection with such Capital Contributions or which are secured by any property
contributed by such Partner as a part of such Capital Contributions. In the
event all or a portion of an Interest is Transferred in accordance with the
terms of this Agreement, the transferee shall succeed to the Additional Capital
Contributions of the transferor to the extent they relate to the Transferred
Interest.
-3- December 12, 1996
<PAGE> 9
"Adjusted Capital Account Deficit" means, with respect to any
Exclusive Limited Partner, the deficit balance, if any, in such Exclusive
Limited Partner's Capital Account as of the end of the relevant Allocation
Year, after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts
which such Exclusive Limited Partner is obligated to restore pursuant to any
provision of this Agreement or is deemed to be obligated to restore pursuant to
the penultimate sentences of Regulations Sections 1.704- 2(g)(1) and
1.704-2(i)(5); and
(ii) Debit to such Capital Account the items
described in 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 Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
"Adverse Act" means, with respect to Holdings or CPP, as
applicable, the occurrence of any of the following:
(i) Failure to make an Original Capital
Contribution under Section 2.2 or the failure to make an Additional Capital
Contribution that was required to be made by it under Section 2.3(a), in any
case within ten (10) days following the date on which such Capital Contribution
was required to be made;
(ii) Such Partner Disposes, or has Disposed of,
all or any part of its Interest or Special Interest except as required or
permitted by this Agreement; provided, however, that no Adverse Act shall be
considered to have occurred until thirty (30) days following the involuntary
encumbrance of all or any part of such Interest or Special Interest if during
such thirty (30) day period the affected Partner acts diligently to, and prior
to the end of such thirty (30) day period does, remove such encumbrance,
including effecting the posting of a bond to prevent foreclosure where
necessary;
(iii) Such Partner has committed a material breach
of any material covenant contained in this Agreement (other than as otherwise
expressly enumerated in this definition) or a material default on any material
obligation provided for in this Agreement (other than as otherwise expressly
enumerated in this definition) and such breach or default continues for thirty
(30) days after the date written notice thereof has been given to such Partner
by the other Partner; provided that if such breach or default is not a failure
to pay money and is of such a nature that it cannot reasonably be cured within
such thirty (30) day period, but is curable and such Partner in good faith
begins efforts to cure it within such thirty (30) day period and continues
diligently to do so, such breach or default shall not constitute an Adverse Act
unless such Partner fails to effect a cure thereof within a reasonable
additional period after such thirty (30) day period (which shall not exceed an
additional ninety (90) days unless otherwise approved by the other Partner);
and provided further that if, within thirty (30) days after the date written
-4- December 12, 1996
<PAGE> 10
notice of such breach or default has been given to such Partner, such Partner
delivers a Contest Notice to the other Partner, such breach or default shall
not constitute an Adverse Act unless and until (and assuming that such breach
or default has not theretofore been cured in full and that any applicable cure
period has expired) there is a Final Determination that such Partner's actions
or failures to act constituted such a breach or default; and provided further
that this subparagraph (iii) shall not apply in the event of a breach of
Section 8.2(d) hereof, which breach shall constitute an Adverse Act (if at all)
pursuant to subparagraph (viii) below;
(iv) The Bankruptcy of such Partner or the
occurrence of any other event that would permit a trustee or receiver to
acquire control of the affairs or assets of such Partner;
(v) The occurrence of an IXC Transaction with
respect to such Partner;
(vi) With respect to CPP, the occurrence of a
Change in Control of CPP without the consent of Holdings;
(vii) Such Partner otherwise causes a dissolution
of the Partnership in contravention of the terms of this Agreement (other than
solely by reason of the Bankruptcy of such Partner); or
(viii) The occurrence of, or the existence of, any
event with respect to such Partner that causes such Partner to become a BOC;
provided, however, that no Adverse Act shall have occurred if such Partner has
taken actions which have cured the circumstances that would otherwise have
constituted an Adverse Act under this subparagraph (viii) within ninety (90)
days after the date written notice of the occurrence of such event has been
given to such Partner by the other Partner; and provided further that if,
within ninety (90) days after the date written notice of such occurrence has
been given to such Partner, such Partner delivers a Contest Notice to the other
Partner that it contests such occurrence (or contests whether such occurrence
constitutes an Adverse Act under this subparagraph (viii)), such occurrence
shall not constitute an Adverse Act unless and until (and assuming that such
circumstances have not theretofore been cured in full and the applicable cure
period has expired) there is a Final Determination that such occurrence
constitutes an Adverse Act under this subparagraph (viii).
An "Adverse Partner" is a Partner with respect to which an
Adverse Act has occurred.
"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly through one or more intermediaries controls,
is controlled by, or is under common control with such Person. For purposes of
this definition, the term "controls" 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 securities, by contract or
otherwise. The terms "controlled by" and "under common control with" have
meanings corresponding to the meaning of "controls." Notwithstanding the
foregoing, (i) neither the
-5- December 12, 1996
<PAGE> 11
Partnership nor any Person controlled by the Partnership shall be deemed to be
an Affiliate of either Partner or any Affiliate of either Partner, and (ii) no
partner of Holdings or MinorCo, nor any of its Affiliates, shall be deemed to
control Holdings, MinorCo, or any Person controlled by Holdings or MinorCo
(including Sprint Spectrum L.P. and WirelessCo), solely as a result of such
partner's interest in Holdings or MinorCo, unless such partner, together with
its Controlled Affiliates, owns seventy- five percent (75%) or more of the
Voting Percentage Interests (as defined in the Holdings Partnership Agreement)
of Holdings.
"Agreement" means this Agreement of Limited Partnership,
including all Schedules hereto, as amended from time to time.
"Allocation Year" means (i) the period commencing on the date
of this Agreement and ending on December 31, 1996, (ii) any subsequent twelve
(12) month period commencing on January 1 and ending on December 31, or (iii)
any portion of the period described in clauses (i) or (ii) for which the
Partnership is required to allocate Profits, Losses, and other items of
Partnership income, gain, loss or deduction pursuant to Section 3.
"Available Cash" means as of any date the cash of the
Partnership as of such date less such portion thereof as the Managing Partner
determines to reserve for Partnership expenses, debt payments, capital
improvements, replacements, and contingencies and less any cash distributed to
the Partnership by LeasingCo pursuant to Section 4.1(a) of the Agreement of
Limited Partnership of LeasingCo and any cash distributed to the Partnership by
LeasingCo pursuant to Section 8.2 of the Agreement of Limited Partnership of
LeasingCo to the extent such distributions pursuant to Section 8.2 do not
exceed the Partnership's "Preferred Capital Contribution" (as defined in the
Agreement of Limited Partnership of LeasingCo).
"Bankruptcy" means, with respect to any Person, a "Voluntary
Bankruptcy" or an "Involuntary Bankruptcy." A "Voluntary Bankruptcy" means,
with respect to any Person, the inability of such Person generally to pay its
debts as such debts become due (other than any obligation of such Person to
make capital contributions under this Agreement), or an admission in writing by
such Person of its inability to pay its debts generally or a general assignment
by such Person for the benefit of creditors; the filing of any petition or
answer by such Person seeking to adjudicate it bankrupt or insolvent, or
seeking for itself any liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of such Person or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking, consenting to, or acquiescing in the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
official for such Person or for any substantial part of its property; or
corporate action taken by such Person to authorize any of the actions set forth
above. An "Involuntary Bankruptcy" means, with respect to any Person, without
the consent or acquiescence of such Person, the entering of an order for relief
or approving a petition for relief or reorganization or any other petition
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or other similar relief under any present or future
bankruptcy, insolvency or similar statute, law or regulation, or the filing of
any such petition against such Person which petition shall not be dismissed
within ninety (90) days,
-6- December 12, 1996
<PAGE> 12
or, without the consent or acquiescence of such Person, the entering of an
order appointing a trustee, custodian, receiver or liquidator of such Person or
of all or any substantial part of the property of such Person which order shall
not be dismissed within sixty (60) days.
"BOC" means a "BOC" or one of the "Bell Operating Companies"
as defined in Section IV.C of the Modification of Final Judgment agreed to by
the American Telephone and Telegraph Company and the U.S. Department of Justice
and approved by the U.S. District Court for the District of Columbia on August
24, 1982, as reported in United States v. Western Electric Company, Inc., et
al., 552 F. Supp. 131 (D.D.C. 1982), aff'd sub nom Maryland v. United States,
460 U.S. 1001 (1983).
"Business Day" means a day of the year on which banks are not
required or authorized to close in the State of New York.
"Capital Account" means, with respect to either Partner, the
Capital Account maintained for such Partner in accordance with the following
provisions:
(i) To each Partner's Capital Account there shall
be credited such Partner's Capital Contributions, such Partner's distributive
share of Profits and any items in the nature of income or gain that are
specially allocated pursuant to Section 3.3, Section 3.4 or Section 3.8, and
the amount of any Partnership liabilities that are assumed by such Partner or
secured by any Property distributed to such Partner as permitted by this
Agreement.
(ii) To each Partner's Capital Account there shall
be debited the amount of cash and the Gross Asset Value of any Property
distributed or deemed to be distributed to such Partner pursuant to any
provision of this Agreement, such Partner's distributive share of Losses and
any items in the nature of expenses or losses that are specially allocated
pursuant to Section 3.3, Section 3.4 or Section 3.8, and the amount of any
liabilities of such Partner assumed by the Partnership (other than liabilities
assumed by the Partnership that reduce the amount of any Capital Contribution
by such Partner) or any Nonrecourse Liabilities of such Partner that are
secured by any Property contributed by such Partner to the Partnership.
(iii) In the event all or a portion of an Interest
or Special Interest is Transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the Transferred Interest or Special
Interest.
(iv) In determining the amount of any liability
for purposes of the definitions of "Additional Capital Contributions" and
"Original Capital Contribution" and subparagraphs (i) and (ii) of this
definition of "Capital Account," there shall be taken into account Code Section
752(c) and any other applicable provisions of the Code and Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b),
-7- December 12, 1996
<PAGE> 13
and shall be interpreted and applied in a manner consistent with such
Regulations. If the Managing Partner determines that it is prudent to modify
the manner in which the Capital Accounts, or any debits or credits thereto
(including debits or credits relating to liabilities that are secured by
contributed or distributed property or are assumed by the Partnership or by
either Partner), are computed in order to comply with such Regulations, the
Managing Partner may make such modification if it is not likely to have a
material effect on the amounts distributable to either Partner pursuant to
Section 15 upon the dissolution and winding up of the Partnership. The
Managing Partner also shall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Partners
and the amount of Partnership capital reflected on the Partnership's balance
sheet, as computed for book purposes, in accordance with Regulations Section
1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with
Regulations Section 1.704-1(b). Any such decision or action permitted to be
taken by the Managing Partner under this paragraph shall require the consent of
the Non-Managing Partner, which consent shall not be unreasonably withheld.
"Capital Contribution" means, with respect to either Partner,
the amount of money and the initial Gross Asset Value of any property (other
than money) contributed or deemed to be contributed to the Partnership with
respect to the Interest or Special Interest held by such Partner (other than
any amount paid pursuant to Section 2.2(e) or any Special Contribution pursuant
to Section 2.4(b)), reduced, in the case of the contribution of the CPP
License, by the amount of the FCC Payment Obligations assumed by the
Partnership pursuant to Section 2.2(a)(iv) (other than any portion of the FCC
Payment Obligations representing interest with respect to payments that are
permitted by the FCC to be deferred). For purposes of this definition, a
contribution of Interim Funding Loans pursuant to Section 2.2(b)(iv) shall be
deemed to be a contribution of money in an amount equal to the outstanding
principal amount and accrued unpaid interest with respect to such Interim
Funding Loans on the date of their contribution to the Partnership.
"Carrier" has the meaning set forth in the definition of "IXC"
below.
"Change in Control" means, with respect to CPP, CPP ceasing to
be a Subsidiary of Cox Parent other than in connection with a Permitted
Transaction.
"Chief Executive Officer" means the chief executive officer of
the Partnership, including any interim chief executive officer.
"Code" means the Internal Revenue Code of 1986, and "Code
Section" refers to a section of the Code.
"Contest Notice" means a written notice by a Partner to the
other Partner that contests the other Partner's notice of a breach under
subparagraph (iii) or subparagraph (viii) of the definition of "Adverse Act."
-8- December 12, 1996
<PAGE> 14
"Contribution Date" means the date on which a Capital
Contribution is to be made pursuant to Section 2.2(c) or Section 2.3.
"Controlled Affiliate" of any Person means the Parent of such
Person and each Subsidiary of such Parent. As used in Section 6, Section
8.2(b) and Section 8.2(d), the term "Controlled Affiliate" also includes any
Affiliate of a Person that such Person or its Parent can directly or indirectly
unilaterally cause to take or refrain from taking any of the actions required,
prohibited or otherwise restricted by such Section, whether through ownership
of voting securities, contractually or otherwise. As used in Section 13.4, the
term "Controlled Affiliate" also includes any Affiliate of a Person that such
Person or its Parent can directly or indirectly unilaterally cause to take or
refrain from taking any action regarding the Partnership, whether through
ownership of voting securities, contractually or otherwise.
"Cox California" means Cox California PCS, Inc., a Delaware
corporation.
"Cox Parent" means Cox Communications, Inc. and any successor
(by merger, consolidation, Transfer or otherwise) to all or substantially all
of its business and assets.
"CPP License" means an undivided fractional interest in the
License, which interest equals a fraction the numerator of which is
$404,883,238 and the denominator of which is $422,530,297.
"Depreciation" means, for each Allocation Year, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such Allocation 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 Allocation Year, Depreciation
shall be determined in the manner described in Regulations Section
1.704-1(b)(2)(iv)(g)(3) or Regulations Section 1.704-3(d)(2), whichever is
applicable.
"Dispose" means, with respect to any Interest or Special
Interest, to Transfer, pledge, hypothecate or otherwise dispose of such
Interest or Special Interest, in whole or in part, voluntarily or
involuntarily, except by operation of law in connection with a merger,
consolidation or other business combination of the Partnership and except that
such term shall not include any pledge or hypothecation of, or granting of a
security interest in, an Interest or Special Interest in connection with any
financing obtained on behalf of the Partnership. The terms "Disposed of,"
"Disposition" and "Disposed" have meanings corresponding to the meaning of
"Dispose."
"ESMR" means any commercial mobile radio service, and the
resale of such service, authorized under the rules for Specialized Mobile Radio
Services designated under Subpart S of Part 90 of the FCC's rules in effect on
the date hereof, including the networking, marketing, distribution, sales,
customer interface and operations functions relating thereto.
-9- December 12, 1996
<PAGE> 15
"Exclusive Limited Partner" means any Limited Partner that is
not also a General Partner.
"FCC" means the Federal Communications Commission.
"FCC Payment Obligations" means any payment obligations of Cox
Parent or any of its Affiliates to the FCC that were imposed as a condition to
the issuance of the License to Cox Parent, as set forth in FCC Public Notice,
Report No. 52746 (released March 13, 1995), and any obligation to pay interest
with respect to any such payments that are permitted by the FCC to be deferred,
as set forth in FCC Public Notice, Report No. WT 96-5 (adopted March 8, 1996,
released March 11, 1996).
"Final Determination" means (i) a determination set forth in a
binding settlement agreement between the Partner alleged to have committed the
Adverse Act and the other Partner or (ii) a final judicial determination, not
subject to further appeal, by a court of competent jurisdiction.
"Fiscal Year" means (i) the period commencing on the date of
this Agreement and ending on December 31, 1996, (ii) any subsequent twelve (12)
month period commencing on January 1, and ending on December 31, or (iii) the
period commencing on the immediately preceding January 1 and ending on the date
on which all Property is distributed to the Partners pursuant to Section 15.2.
When used in connection with the Initial Business Plan, "Fiscal Year" also
means the period commencing on the effective date of the Initial Business Plan
and ending on December 31, 1996.
"GAAP" means generally accepted accounting principles in
effect in the United States of America from time to time.
"General Partner" means any Person that (i) is referred to as
such in the first paragraph of this Agreement or has become a General Partner
pursuant to the terms of this Agreement, and (ii) has not, at any given time,
ceased to be a General Partner pursuant to the terms of this Agreement.
"General Partners" means all such Persons.
"Governmental Authority" means any foreign, federal, state or
local court, administrative agency, board, bureau or commission or other
governmental department, authority or instrumentality.
"Gross Asset Value" means, with respect to any asset, the
asset's adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset
contributed by a Partner to the Partnership shall be the gross fair market
value of such asset, as determined pursuant to Section 2.2(a)(i) in the case of
the CPP License, Section 2.2(b)(i) in the case of the System Assets (which
values take into account the liabilities and obligations to be assumed by the
-10- December 12, 1996
<PAGE> 16
Partnership pursuant to Section 2.2(b)(iii)) and Section 2.2(a)(ii) in the case
of the Holdings License, and otherwise as agreed to by the Partners;
(ii) The Gross Asset Value of all Partnership
assets shall be adjusted to equal their gross fair market value, as determined
by any reasonable means selected by the Managing Partner with the consent of
the Non-Managing Partner, which consent shall not be unreasonably withheld, as
of the following times: (A) the acquisition of an Interest by any new 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 as consideration for an Interest; (C) the liquidation of the
Partnership within the meaning of Regulations Section 1.704- 1(b)(2)(ii)(g);
(D) the conversion of a General Partner to an Exclusive Limited Partner if, and
only if, in the judgment of the Managing Partner, such adjustment would either
cause the Person that is being converted to an Exclusive Limited Partner to
have a deficit balance in its Capital Account or increase the amount of such a
deficit balance; (E) the conversion of an Exclusive Limited Partner to a
General Partner if, and only if, in the judgment of the Managing Partner, such
adjustment would either cause any existing General Partner to have a deficit
balance in its Capital Account or increase the amount of such a deficit
balance; and (F) the adjustment of the Percentage Interests of the Partners
pursuant to Section 2.3(a)(iii);
(iii) The Gross Asset Value of any Partnership
asset distributed to a Partner shall be adjusted to equal the gross fair market
value of such asset on the date of distribution, as agreed to by the Partners;
(iv) The Gross Asset Values of Partnership assets
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 Regulation Section
1.704-1(b)(2)(iv)(m) and subparagraph (vi) of the definition of "Profits" and
"Losses" and Section 3.3(g); provided, however, that Gross Asset Values shall
not be adjusted pursuant to this subparagraph (iv) to the extent that an
adjustment pursuant to subparagraph (ii) hereof is made in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (iv).
If the Gross Asset Value of an asset has been determined or adjusted
pursuant to subparagraph (ii) or (iv) of this definition, such Gross Asset
Value shall thereafter be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing Profits and Losses.
"Holdings License" means an undivided fractional interest in
the License, which interest equals $17,647,059 divided by $422,530,297.
"Holdings Partners" means, at any time, all Persons then
admitted as partners of Holdings, together with their respective
predecessors-in-interest, if any. For purposes of Section 8.1(i), "Holdings
Partners" shall mean Sprint Enterprises, L.P. and its Affiliates (other than
any
-11- December 12, 1996
<PAGE> 17
LEC (as defined in the Holdings Partnership Agreement)) and the Cable
Subsidiaries (as defined in the Holdings Partnership Agreement) and their
respective Controlled Affiliates.
"Holdings Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of Holdings, dated as of January 31,
1996, among Sprint Enterprises, L.P. (formerly known as Sprint Spectrum L.P.),
TCI Network Services, Comcast Telephony Services and Cox Telephony Partnership.
"Initial Buildout Completion Date" means the earlier of (i)
December 14, 1997 or (ii) the date on which the Partnership has fully satisfied
the construction requirements applicable to the five-year buildout period
specified in Section 24.203(a) of the FCC rules and regulations with respect to
the Los Angeles MTA and has filed with the FCC appropriate documentation
demonstrating its compliance with such requirements pursuant to Section
24.203(c) of the FCC rules and regulations.
"Intermediate Subsidiary" means, with respect to the Parent of
a Partner, a Subsidiary of such Parent that holds a direct or indirect equity
interest in such Partner.
"Interest" means, as to either Partner, all of the interests
(other than any Special Interest) of such Partner in the Partnership, including
any and all benefits to which the holder of an interest in the Partnership may
be entitled as provided in this Agreement and under the Act, together with all
obligations of such Partner to comply with the terms and provisions of this
Agreement.
"IXC" means each of AT&T Corp., MCI Communications Corporation
and British Telecommunications plc (each, a "Carrier"), each successor to the
long distance telecommunications business of any of the foregoing entities and
each respective Affiliate of each such Carrier or successor.
"IXC Transaction" means, with respect to either Partner, that
(i) an IXC has become the beneficial owner of an equity interest in such
Partner or an equity interest in any Intermediate Subsidiary (other than a
Publicly Held Intermediate Subsidiary) of the Parent of such Partner, (ii) an
IXC has become the beneficial owner of securities representing fifteen percent
(15%) or more of the voting power of the outstanding voting securities of the
Parent of such Partner or any Publicly Held Intermediate Subsidiary of such
Parent, and, if such Parent or Publicly Held Intermediate Subsidiary is subject
to a State Statute or has a shareholder rights plan, such Parent or Publicly
Held Intermediate Subsidiary or the board of directors or other governing body
of such Parent or Publicly Held Intermediate Subsidiary has approved such
beneficial ownership or otherwise has taken action to waive any applicable
restrictions with respect to such ownership or the exercise by the IXC of its
rights arising from such ownership under such State Statute or shareholder
rights plan, (iii) an IXC has become the beneficial owner of securities
representing twenty-five percent (25%) or more of the voting power of the
outstanding voting securities of such Parent or any such Publicly Held
Intermediate Subsidiary, provided that, if such IXC is an Affiliate of a
Carrier, such Affiliate has identified a Carrier as
-12- December 12, 1996
<PAGE> 18
a Person controlling such Affiliate either (a) pursuant to General Instruction
C to Schedule 13D, in a Schedule 13D (filed with the Securities and Exchange
Commission in accordance with Section 13(d) of the Securities Exchange Act of
1934) or (b) pursuant to General Instruction C to Schedule 14D-1, in a Schedule
14D-1 (filed with the Securities and Exchange Commission in accordance with
Section 14(d) of the Securities Exchange Act of 1934), (iv) such Parent or any
such Publicly Held Intermediate Subsidiary has sold or issued beneficial
ownership in any equity interest in such Parent or Publicly Held Intermediate
Subsidiary to an IXC or granted to an IXC any rights with respect to the
governance of such Parent or Publicly Held Intermediate Subsidiary that are not
possessed generally by the owners of outstanding equity interests in such
Parent or Publicly Held Intermediate Subsidiary; or (v) such Partner has
otherwise become an Affiliate of an IXC. Solely for the purposes of this
definition, the terms "beneficial owner" and "beneficial ownership" shall have
the same meaning as in Rule 13d-3 under the Securities Exchange Act of 1934.
"LeasingCo" means PCS Leasing Co., L.P., a Delaware limited
partnership, to be formed by Holdings and the Partnership pursuant to Section
8.1(h).
"LeasingCo Interest" means, as to either Partner, all of the
interests of such Partner in LeasingCo, including any and all benefits to which
the holder of an interest in LeasingCo may be entitled as provided in the
Agreement of Limited Partnership of LeasingCo and under the Act, together with
all obligations of such Partner to comply with the terms and provisions of the
Agreement of Limited Partnership of LeasingCo.
"License Contribution Date" means (i) the fifth Business Day
following the satisfaction or waiver of the latest to be satisfied or waived of
the conditions set forth in Section 10.1(a) if all other conditions to the
obligations of the Partners set forth in Section 10 have been satisfied or
waived as of such date or (ii) such other date as may be agreed to in writing
by the Partners.
"Lien" means any lien, pledge, claim, encumbrance, mortgage or
security interest in real or personal property.
"Limited Partner" means any Person (i) that is referred to as
such in the first paragraph of this Agreement or that has become a Limited
Partner pursuant to the terms of this Agreement, and (ii) that, at any given
time, holds an Interest or a Special Interest. "Limited Partners" means all
such Persons.
"Los Angeles MTA" means the MTA encompassing the Los Angeles
and San Diego, California metropolitan areas and the Las Vegas, Nevada
metropolitan area, which MTA is identified in the FCC Public Notice regarding
the PCS Auction as Market No. M-2 (Report No. AUC-94-04, Auction No. 4).
"MinorCo" means MinorCo, L.P., a Delaware limited partnership
formed by Sprint Enterprises, L.P. (formerly known as Sprint Spectrum L.P.),
TCI Network Services,
-13- December 12, 1996
<PAGE> 19
Comcast Telephony Services and Cox Telephony Partnership on March 28, 1995, and
any successor (by merger, consolidation, Transfer or otherwise) to all or
substantially all of MinorCo's business and assets.
"MTA" means a Major Trading Area as defined in FCC rules to be
codified at 47 C.F.R. Section 24.13.
"Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704- 2(b)(1).
"Nonrecourse Liability" has the meaning set forth in
Regulations Section 1.704- 2(b)(3).
"Original Capital Contribution" means, with respect to each
Partner, the Capital Contribution to be made by such Partner pursuant to
Section 2.2. In the event all or a portion of an Interest or Special Interest
is Transferred in accordance with the terms of this Agreement, the transferee
shall succeed to the Original Capital Contribution of the transferor to the
extent it relates to the Transferred Interest or Special Interest.
"Parent" means, except as otherwise provided below with
respect to a Permitted Transfer or a Permitted Transaction, (i) with respect to
Holdings and each Subsidiary of Holdings, Holdings and (ii) with respect to CPP
and each Subsidiary of Cox Parent, Cox Parent. With respect to any other
Person hereafter admitted to the Partnership as a Partner, the Parent with
respect to such Partner shall be the Person identified as such in a Schedule to
be attached to this Agreement in connection with the admission of such Partner.
In the event of a Permitted Transfer or a Permitted Transaction, the new Parent
of the applicable Partner immediately following such Permitted Transfer or
Permitted Transaction will be the ultimate parent entity (as determined in
accordance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and
the rules and regulations promulgated thereunder (the "HSR Act")) of such
Partner (or such Partner if it is its own ultimate parent entity); provided
that (i) if such ultimate parent entity is not a Publicly Held Person then the
next highest entity in the ownership chain from such ultimate parent entity to
and including such Partner which is a Publicly Held Person shall be deemed to
be the new Parent, and (ii) if (A) the Partner is a Subsidiary of Cox Parent or
(B) the new Partner and Cox Parent are both Subsidiaries of Cox Enterprises,
Inc. and more than fifty percent (50%) of the ownership interests of the new
Partner are owned or controlled, directly or indirectly through one or more
Subsidiaries, by Cox Parent, then the Parent of the new Partner shall be Cox
Parent. If there is no intermediate Publicly Held Person, the Parent shall be
the highest entity in the ownership chain from the ultimate parent entity to
and including such Partner which is not an individual. For purposes of the
definition of Controlled Affiliate, the Parent of a Person that is neither a
Partner nor a Controlled Affiliate of a Partner is the ultimate parent entity
(as determined in accordance with the HSR Act) of such Person.
"Parent Undertaking" means a written instrument in
substantially the form of Exhibit 1.10.
-14- December 12, 1996
<PAGE> 20
"Partner" means any Person that is either a General Partner, a
Limited Partner, or both a General Partner and a Limited Partner, and
"Partners" means all of such Persons.
"Partner Nonrecourse Debt" has the meaning set forth in
Regulations Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" means an amount, with
respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain
that would result if such Partner Nonrecourse Debt were treated as a
Nonrecourse Liability, determined in accordance with Regulations Section
1.704-2(i)(3).
"Partner Nonrecourse Deductions" has the meaning set forth in
Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).
"Partnership" means the partnership formed pursuant to this
Agreement and the partnership continuing the business of this Partnership in
the event of dissolution as herein provided.
"Partnership Minimum Gain" has the meaning set forth in
Regulations Sections 1.704-2(b)(2) and 1.704-2(d).
"PCS" means a radio communications system authorized under the
rules for broadband personal communications services designated as Subpart E of
Part 24 of the FCC's rules, including the network, marketing, distribution,
sales, customer interface and operations functions relating thereto.
"PCS Auction" means the series of simultaneous multiple round
auctions for broadband PCS licenses conducted by the FCC under the authority of
Section 309(j) of the Communications Act of 1934, 47 U.S.C. Section 309(j)
(1993), in accordance with the rules promulgated thereunder by the FCC.
"Percentage Interest" means, except as provided in Section
2.3(a)(iii), in the case of CPP, fifty-one percent (51%) and, in the case of
Holdings, forty-nine percent (49%). In the event all or any portion of an
Interest is Transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Percentage Interest of the transferor to the
extent it relates to the Transferred Interest.
"Permitted Transaction" means (i) with respect to CPP, a
transaction or series of related transactions in which (A) CPP ceases to be a
Subsidiary of Cox Parent or CPP Transfers its Interest to a Person that is not
a Controlled Affiliate of Cox Parent and (B) the new Parent of CPP (or CPP if
it is its own Parent) or the Parent of the transferee of the Interest after
giving effect to such transaction, or the last transaction in a series of
related transactions, owns, directly and indirectly through
-15- December 12, 1996
<PAGE> 21
its Controlled Affiliates, at least 75% (based on the number of basic
subscribers) of the cable television systems owned by Cox Parent, directly and
indirectly through its Controlled Affiliates, in the United States of America
(including its territories and possessions other than Puerto Rico) immediately
prior to the commencement of such transaction or series of transactions, and
(ii) with respect to Holdings, a transaction or series of related transactions
in which (A) Holdings Transfers its Interest to a Person that is not a
Controlled Affiliate of Holdings and (B) the transferee of the Interest after
giving effect to such transaction, or the last transaction in a series of
related transactions, owns, directly and indirectly through its Controlled
Affiliates, Wireless Business assets serving at least 75% of the aggregate
number of customers served by the Wireless Business owned by Holdings, directly
and indirectly through its Subsidiaries.
"Person" means any individual, partnership, corporation,
trust, or other entity.
"Prime Rate" means the rate announced from time to time by
Citibank, N.A. as its prime rate.
"Profits" and "Losses" means, for each Allocation Year, an
amount equal to the Partnership's taxable income or loss for such Allocation
Year, determined in accordance with Code Section 703(a) (for this purpose, all
items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or
loss), with the following adjustments (without duplication):
(i) Any income of the Partnership that is exempt
from federal income tax and not otherwise taken into account in computing
Profits or Losses pursuant to this definition of "Profits" and "Losses" shall
be added to such taxable income or loss;
(ii) Any expenditures of the Partnership described
in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not
otherwise taken into account in computing Profits or Losses pursuant to this
definition of "Profits" and "Losses," shall be subtracted from such taxable
income or loss;
(iii) In the event the Gross Asset Value of any
Partnership asset is adjusted pursuant to subparagraph (ii) or (iii) 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 Profits or Losses;
(iv) Gain or loss resulting from any disposition
of Property 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
-16- December 12, 1996
<PAGE> 22
account Depreciation for such Allocation Year, computed in accordance with the
definition of Depreciation;
(vi) To the extent an adjustment to the adjusted
tax basis of any Partnership asset pursuant to Code Section 734(b) is required
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into
account in determining Capital Accounts as a result of a distribution other
than in liquidation of a Partner's Interest, 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 the basis of the asset) from
the disposition of the asset and shall be taken into account for purposes of
computing Profits or Losses; and
(vii) Notwithstanding any other provision of this
definition of "Profits" or "Losses," any items which are specially allocated
pursuant to Section 3.3 or Section 3.4, Special Profits and Special Losses
shall not be taken into account in computing Profits or Losses.
The amounts of the items of Partnership income, gain, loss or deduction
available to be specially allocated pursuant to Section 3.3 and Section 3.4
shall be determined by applying rules analogous to those set forth in this
definition of "Profits" and "Losses."
"Property" means all real and personal property acquired by
the Partnership and any improvements thereto, and shall include both tangible
and intangible property.
"Publicly Held" means, with respect to any Person, that such
Person has a class of equity securities registered under Section 12(b) or 12(g)
of the Securities Exchange Act of 1934.
"Publicly Held Intermediate Subsidiary" means, with respect to
the Parent of a Partner, an Intermediate Subsidiary of such Parent that is
Publicly Held.
"Qualified Pre-Operating Expenses" means all expenses incurred
and paid by Cox Parent or any Subsidiary of Cox Parent after October 1, 1994
and on or before the earlier of the License Contribution Date or December 31,
1996 in connection with the business of the Partnership, other than (i) legal
and other similar expenses incurred in obtaining the License, (ii) expenses
incurred by Cox Parent or any Subsidiary of Cox Parent for payments made to
Ericsson for GSM technology development for which Cox Parent or any Subsidiary
of Cox Parent is entitled to reimbursement by Holdings under a letter
agreement, dated as of February 28, 1996, between Cox California and Holdings,
(iii) any payments made to the FCC with respect to the FCC Payment Obligations,
(iv) costs and expenses relating to any assets acquired by Cox Parent or any
Subsidiary of Cox Parent that are not included in the System Assets (other than
assets that would have been included in the System Assets had they not been
consumed, retired or otherwise disposed of in the development of the business
of the Partnership), (v) expenses incurred by Cox Parent or any Subsidiary of
Cox Parent in connection with the formation of the Partnership, including fees
and expenses incurred in connection with the
-17- December 12, 1996
<PAGE> 23
negotiation and preparation of this Agreement and the agreements contemplated
herein, (vi) Research and Experimental Expenditures and (vii) Start-Up
Expenditures.
"Regulations" means the Income Tax Regulations, including
Temporary Regulations, promulgated under the Code, and "Regulations Section"
refers to a section of the Regulations.
"Research and Experimental Expenditures" means all expenses
incurred and paid by Cox Parent or any Subsidiary of Cox Parent after October
1, 1994 and on or before the earlier of the License Contribution Date or
December 31, 1996 in connection with the business of the Partnership that are
"research or experimental expenditures" as defined in Regulations Section
1.174-2, other than any such expenses described in clauses (i) through (v) of
the definition of "Qualified Pre-Operating Expenses."
"Special Interest" means an interest in the Partnership (and
any portion thereof) to be received by CPP pursuant to Section 2.2(a)(i) that
entitles the holder thereof to distributions pursuant to Section 4.2 and
allocations of Special Profits and Special Losses pursuant to Section 3.8.
"Special Profits" and "Special Losses" means, for each
Allocation Year, an amount equal to the Partnership's taxable income or loss
for such Allocation Year, determined by taking into account only items of
income, gain, deduction or loss allocable to the Partnership pursuant to
Section 3.1(b) or Section 3.2(b) of the Agreement of Limited Partnership of
LeasingCo
"Sprint Brand" means the trademark "Sprint" together with the
related "Diamond" logo.
"Sprint Spectrum L.P." means Sprint Spectrum L.P. (formerly
known as MajorCo Sub, L.P.), a Delaware limited partnership formed by Holdings
and MinorCo on March 28, 1995.
"Start-Up Expenditures" means all expenses incurred and paid
by Cox Parent or any Subsidiary of Cox Parent after October 1, 1994 and on or
before the earlier of the License Contribution Date or December 31, 1996 in
connection with the business of the Partnership that are "start-up
expenditures" as defined in Code Section 195(c)(1), other than any such
expenses described in clauses (i) through (vi) of the definition of "Qualified
Pre-Operating Expenses."
"State Statutes" means any business combination statute,
anti-takeover statute, fair price statute, control share acquisition statute or
any other state statute or regulation that contains any similar prohibition,
limitation, obligation, restriction or other provision adopted and in effect in
the jurisdiction of organization of a Person that affects the rights of any
other Person that acquires a specified percentage ownership interest in such
Person without the consent or approval
-18- December 12, 1996
<PAGE> 24
of the board of directors or other governing body of such other Person and
includes, with respect to Cox Parent, Section 203 of the Delaware General
Corporation Law.
"Subsidiary" of any Person as of any relevant date means a
corporation, company or other entity (i) more than fifty percent (50%) of whose
outstanding shares or equity securities are, as of such date, owned or
controlled, directly or indirectly through one or more Subsidiaries, by such
Person, and the shares or equity securities so owned entitle such Person and/or
its Subsidiaries to elect at least a majority of the members of the board of
directors or other managing authority of such corporation, company or other
entity notwithstanding the vote of the holders of the remaining shares or
equity securities so entitled to vote or (ii) which does not have outstanding
shares or securities, as may be the case in a partnership, joint venture or
unincorporated association, but more than fifty percent (50%) of whose
ownership interest is, as of such date, owned or controlled, directly or
indirectly through one or more Subsidiaries, by such Person, and in which the
ownership interest so owned entitles such Person and/or Subsidiaries to make
the decisions for such corporation, company or other entity. If each of CPP
and Cox Parent is a Subsidiary of Cox Enterprises, Inc. under the foregoing
definition and more than fifty percent (50%) of the ownership interests of CPP
are owned or controlled, directly or indirectly through one or more
Subsidiaries, by Cox Parent, then CPP shall be deemed to be a Subsidiary of Cox
Parent for purposes of this Agreement.
"System Assets" means all tangible and intangible assets owned
by Cox Parent or any of its Subsidiaries that are held for use in the
development of a PCS system in the Los Angeles MTA under the License, including
any technology rights and the other assets identified on Schedule 1.10 hereto,
but excluding the License.
"Technical Information" means all technical information,
regardless of form and however transmitted and shall include, among other
forms, computer software, including computer program code, and system and user
documentation, drawings, illustrations, diagrams, reports, designs,
specifications, formulae, know-how, procedural protocols and methods and
manuals.
"Transfer" means, as a noun, any sale, exchange, assignment or
transfer and, as a verb, to sell, exchange, assign or transfer.
"Voluntary Bankruptcy" has the meaning set forth in the
definition of "Bankruptcy."
"Wireless Business" means all wireless communications services
that use radio spectrum for cellular, PCS, ESMR, paging, mobile
telecommunications and any other voice or data wireless services, whether fixed
or mobile, excluding the provision of video wireless services and the provision
of satellite or broadband microwave transmission services.
-19- December 12, 1996
<PAGE> 25
"WirelessCo" means WirelessCo, L.P., a Delaware limited
partnership, and any successor (by merger, consolidation, Transfer or
otherwise) to all or substantially all of WirelessCo's business and assets.
"WirelessCo Partnership Agreement" means the Agreement of
Limited Partnership of WirelessCo, dated as of October 24, 1994, among Sprint
Spectrum, Inc., TCI Network, Inc., Comcast Telephony Services and Cox
Communications Wireless, Inc.
1.1 Additional Definitions
<TABLE>
<CAPTION>
Defined Term Defined in
------------ ----------
<S> <C>
"Adjusted Net Equity" Section 2.3(a)(iii)(C)
"Agents" Section 6.5(a)
"Attribution Cap" Section 8.2(b)(i)(C)
"Base Value" Section 2.3(a)(iii)(D)
"Brief" Section 5.2(c)(ii)
"Budget" Section 5.2(b)
"Budget Objection" Section 5.2(c)
"Business Plan" Section 5.2(b)
"Certificate" Section 1.5
"Competitive Activity" Section 6.1
"Confidential Information" Section 6.5(a)
"Damages" Section 12.1(a)(ii)
"Delinquent Partner" Section 2.4(a)
"Election Notice" Section 12.2(a)
"Election Period" Section 12.2(b)
"Environmental Laws" Section 9.2(j)(i)
"Floating Rate" Section 2.4(c)
"Firm Offer" Section 13.4(b)
"First Appraiser" Section 12.4
"Foreign Ownership Restriction" Section 8.2(b)(i)(A)
"Foreign Ownership Threshold" Section 8.2(b)(i)(B)
"Free to Sell Period" Section 13.4(f)
"General Partner Percentage Interest" Section 2.1
"Gross Appraised Value" Section 12.4
"Holdings Required Cash Contribution" Section 2.2(c)
"Initial Business Plan" Section 5.2(a)
"Initial Offer" Section 15.6(b)
"Interested Party Decision" Section 8.2(a)
"Interim Funding Loans" Section 2.9(a)
"Interim Lender" Section 2.9(a)
"Leased Employees" Section 8.1(c)(ii)
"Leased Employment Termination Date" Section 8.1(c)(i)
</TABLE>
-20- December 12, 1996
<PAGE> 26
<TABLE>
<S> <C>
"License" Section 1.3(a)
"Liquidating Events" Section 15.1(a)
"Liquidator" Section 15.2
"Limited Partner Percentage Interest" Section 2.1
"MajorCorp" Section 13.6(e)(ii)
"Managing Partner" Section 5.1(b)
"Mediator" Section 5.2(c)(ii)
"Non-Adverse Partner" Section 12.1(a)
"Non-Managing Partner" Section 5.1(b)
"Net Equity" Section 12.3
"Net Equity Notice" Section 12.3
"Offer Notice" Section 13.4(b)
"Offer Period" Section 13.4(c)
"Offer Price" Section 13.4(a)
"Offered Interest" Section 13.4
"Offeree" Section 13.4(b)
"Partner Loan" Section 2.6
"Partnership Technical Information" Section 8.1(e)
"Penalty" Section 2.4(a)
"Permitted Transfer" Section 13.2
"Proposed Budget" Section 5.2(c)
"Proposed Business Plan" Section 5.2(c)
"Proprietary Technical Information" Section 8.8(b)
"Purchase Notice" Section 12.2(b)
"Purchase Offer" Section 13.4(a)
"Purchaser" Section 13.4(a)
"Receiving Party" Section 6.5(b)(i)
"Regulatory Allocations" Section 3.4
"Requesting Party" Section 8.8(b)
"Restricted Party" Section 6.5(a)
"Second Appraiser" Section 12.4
"Seller" Section 13.4
"Senior Credit Agreement" Section 2.6
"Special Contribution" Section 2.4(b)
"System Assets Sales Agreement" Section 2.8(a)
"Tagalong Notice" Section 13.5(a)
"Tagalong Offer" Section 13.5(a)
"Tagalong Period" Section 13.5(a)
"Tagalong Purchaser" Section 13.5(a)
"Tagalong Transaction" Section 13.5(a)
"Tax Matters Partner" Section 11.3(a)
"Third Appraiser" Section 12.4
"Trademark License" Section 8.1(a)
"Transferring Partner" Section 13.5(a)
</TABLE>
-21- December 12, 1996
<PAGE> 27
<TABLE>
<S> <C>
"Unpaid Amount" Section 2.4(a)
"Unpaid Holdings Required Cash Contribution" Section 2.2(e)(i)
</TABLE>
1.12 Terms Generally.
The definitions in Section 1.10 and elsewhere in this Agreement shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
The words "herein," "hereof" and "hereunder" and words of similar import refer
to this Agreement (including the Schedules hereto) in its entirety and not to
any part hereof unless the context shall otherwise require. All references
herein to Articles, Sections (other than Code Sections or Regulations
Sections), Exhibits and Schedules shall be deemed references to Articles and
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Unless the context shall otherwise require, any
references to any agreement or other instrument or statute or regulation are to
it as amended and supplemented from time to time (and, in the case of a statute
or regulation, to any corresponding provisions of successor statutes or
regulations). 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.
SECTION 2. PARTNERS' CAPITAL CONTRIBUTIONS.
2.1 Percentage Interests; Preservation of Percentages of
Interests Held as General Partner and as Limited Partner.
The initial Percentage Interest of CPP represents the sum of the
"General Partner Percentage Interest" and "Limited Partner Percentage Interest"
of CPP. The initial Percentage Interest of Holdings represents the "Limited
Partner Percentage Interest" of Holdings. Except as expressly provided in this
Agreement, or as may result from a Transfer of Interests required or permitted
by this Agreement, the Percentage Interest of a Partner shall not be subject to
increase or decrease without such Partner's prior consent. With respect to a
Partner that holds its Interest as both a General Partner and a Limited
Partner:
(a) such Partner will hold ninety-nine percent (99.0%) of
its Interest as a General Partner and one percent (1.0%) of its Interest as a
Limited Partner;
(b) the amount of any Capital Contributions made by such
Partner pursuant to Section 2, and any allocations and distributions to such
Partner pursuant to Section 3 or Section 4 shall be allocated ninety-nine
percent (99.0%) to the Interest held by such Partner as a General Partner and
one percent (1.0%) to the Interest held by such Partner as a Limited Partner;
-22- December 12, 1996
<PAGE> 28
(c) if such Partner Transfers all or any portion of its
Interest pursuant to this Agreement, ninety-nine percent (99.0%) of the
aggregate Interest so Transferred shall be treated as attributable to the
Interest held by the transferring Partner as a General Partner and one percent
(1.0%) of the aggregate Interest so Transferred shall be treated as
attributable to the Interest held by the transferring Partner as a Limited
Partner;
(d) if the Interest of such Partner is otherwise
increased or decreased pursuant to this Agreement, the amount of the increase
or decrease, as the case may be, shall be allocated ninety-nine percent (99.0%)
to the Interest held by such Partner as a General Partner and one percent
(1.0%) to the Interest held by such Partner as a Limited Partner; and
(e) such Partner will be treated for purposes of this
Agreement as though it holds a single Interest.
2.2. Partners' Original Capital Contributions and Interest
Payments.
(a) License.
(i) On the License Contribution Date, CPP shall
contribute to the Partnership the CPP License. For purposes hereof, the
contribution to the Partnership by CPP of an undivided fractional interest in
the License may be effected through the direct conveyance by Cox Parent of the
License to the Partnership. For purposes of paragraph (i) of the definition of
Gross Asset Value in Section 1.10, the initial Gross Asset Value of the CPP
License is $404,883,238. In consideration for that portion of its contribution
pursuant to this Section 2.2(a)(i) having an initial Gross Asset Value equal to
the amount of capital contributions required to be made by the Partnership to
LeasingCo pursuant to Section 2.1(a) of the Agreement of Limited Partnership of
LeasingCo, the Partnership shall issue to CPP all of the Special Interests in
the Partnership.
(ii) On the License Contribution Date, Holdings
shall contribute to the Partnership the Holdings License. For purposes hereof,
the contribution to the Partnership by Holdings of an undivided fractional
interest in the License may be effected through the direct conveyance by Cox
Parent of the License to the Partnership. For purposes of paragraph (i) of the
definition of Gross Asset Value in Section 1.10, the initial Gross Asset Value
of the Holdings License is $17,647,059.
(iii) The initial Gross Asset Value of the License
is $422,530,297.
(iv) If the FCC, in granting its consent to the
assignment of the License to the Partnership, consents to the assumption of the
FCC Payment Obligations by the Partnership in a manner that allows CPP
reasonably to determine that it would not be required by GAAP to reflect the
FCC Payment Obligations as a liability on its balance sheet were the
-23- December 12, 1996
<PAGE> 29
FCC Payment Obligations to be assumed by the Partnership, then, upon the
contribution of the License,
(A) the Partnership shall assume, and shall
undertake to pay, satisfy and discharge, the FCC Payment Obligations; and
(B) the Partnership shall reimburse Cox
Parent for any interest payments made by Cox Parent or any of its Affiliates
prior to the contribution of the License with respect to any portion of the FCC
Payment Obligations.
(v) If the FCC, in granting its consent to the
assignment of the License to the Partnership, does not consent to the
assumption of the FCC Payment Obligations by the Partnership in a manner that
allows CPP reasonably to determine that it would not be required by GAAP to
reflect the FCC Payment Obligations as a liability on its balance sheet were
the FCC Payment Obligations to be assumed by the Partnership, then, upon the
contribution of the License, the Partnership shall reimburse Cox Parent for any
interest payments made by Cox Parent or any of its Affiliates prior to the
contribution of the License with respect to any portion of the FCC Payment
Obligations to the extent that such interest payments exceed the amount of
interest that would have been payable by Cox Parent or any of its Affiliates to
the FCC had the interest rate applicable to the FCC Payment Obligations been
five and seven-eighths percent (5.875%).
(vi) Prior to the contribution of the License, CPP
or Cox Parent shall provide written notice to Holdings of (A) its determination
whether CPP would be required by GAAP to reflect the FCC Payment Obligations as
a liability on its balance sheet were the FCC Payment Obligations to be assumed
by the Partnership, and (B) the amount of any interest payments made by Cox
Parent or any of its Affiliates prior to the contribution of the License with
respect to any portion of the FCC Payment Obligations, including evidence of
such payments.
(vii) The contribution of the License to the
Partnership and the assumption by the Partnership of the liabilities and
obligations described in Section 2.2(a)(iv) shall be effected through the
execution of conveyancing documents, assumption agreements and other
instruments in form and substance reasonably satisfactory to each of the
Partners.
(b) System Assets and Interim Funding Loans.
(i) If the Partnership assumes the FCC Payment
Obligations pursuant to Section and the License Contribution Date precedes a
purchase and sale of the System Assets pursuant to the System Assets Sales
Agreement, then, on the License Contribution Date, CPP shall contribute to the
Partnership the System Assets held by Cox Parent or any Subsidiary of Cox
Parent on the License Contribution Date. For purposes hereof, the contribution
to the Partnership by CPP of the System Assets held by Cox Parent or any
Subsidiary of Cox Parent on the License Contribution Date (A) may be effected
through the
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<PAGE> 30
direct conveyance by Cox Parent or one or more of its Subsidiaries of the
System Assets to the Partnership, LeasingCo or any other Subsidiary of the
Partnership and (B) shall be effected through the execution of conveyancing
documents and other instruments in form and substance reasonably satisfactory
to each of the Partners.
(ii) For purposes of paragraph (i) of the
definition of Gross Asset Value in Section 1.10, the aggregate initial Gross
Asset Value of the System Assets shall equal the sum of (A) the Qualified
Pre-Operating Expenses as of the License Contribution Date, (B) the Research
and Experimental Expenditures as of the License Contribution Date, (C) the
Start-Up Expenditures as of the License Contribution Date, plus (D) interest on
the amount of each item of expense included in the Qualified Pre-Operating
Expenses, the Research and Experimental Expenditures or the Start-Up
Expenditures at a rate of 10.0% per year from the date such expense was paid
until the date of this Agreement and at a rate of 7.25% per year from the date
of this Agreement until the License Contribution Date. Following the
determination of the aggregate initial Gross Asset Value of the System Assets
pursuant to this Agreement, the Partners will agree upon the initial Gross
Asset Value of each item of tangible and intangible property included in such
System Assets. In determining the initial Gross Asset Value of each item of
tangible and intangible property included in such System Assets, the Partners
will endeavor to achieve, to the extent possible and consistent with Code
Section 704(c), the same tax consequences for the Partners as would have
resulted had the Partnership (A) been in existence when the Qualified Pre-
Operating Expenses, the Research and Experimental Expenditures and the Start-Up
Expenditures were incurred and (B) incurred such expenses itself. If the
Partners are unable to agree upon the initial Gross Asset Value of any item of
tangible or intangible property included in such System Assets within ninety
(90) days following the determination of the aggregate initial Gross Asset
Value of the System Assets, the Partners shall jointly designate an independent
certified public accountant to resolve any dispute between them regarding such
initial Gross Asset Value. The accountant's resolution of the dispute shall be
final and binding on the Partners. Any fees or expenses of this accountant
shall be paid by the Partnership.
(iii) Upon the contribution to the Partnership of
any System Assets pursuant to Section 2.2(b)(i), the Partnership shall assume,
and shall undertake to pay, satisfy and discharge, all liabilities and
obligations of Cox Parent and any of its Affiliates arising out of or relating
to such System Assets, other than (A) liabilities and obligations constituting
Qualified Pre- Operating Expenses, Research and Experimental Expenditures or
Start-Up Expenditures and (B) any liability or obligation arising on or before
the contribution of the System Assets to the Partnership to the extent that Cox
Parent or any of its Affiliates would be compensated for such liability or
obligation under any insurance policy of Cox Parent or any of its Affiliates in
the absence of the assumption thereof hereunder, and Cox Parent and its
Affiliates shall be released from all such assumed liabilities and obligations.
The assumption by the Partnership of the liabilities and obligations described
in this Section 2.2(b)(iii) shall be effected through the execution of
assumption agreements and other instruments in form and substance reasonably
satisfactory to each of the Partners.
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<PAGE> 31
(iv) If the Partnership assumes the FCC Payment
Obligations pursuant to Section 2.2(a)(iv), then, on the License Contribution
Date, CPP shall contribute to the Partnership on the License Contribution Date
all rights of each Interim Lender as of the License Contribution Date to any
payment of principal or interest with respect to the Interim Funding Loans
(other than Interim Funding Loans required to be repaid pursuant to Section
2.9(c)).
(c) Holdings Cash Contributions. Holdings shall be
obligated to contribute to the Partnership cash in an amount equal to
$371,358,405 less the amount of capital contributions required to be made by
Holdings to LeasingCo pursuant to Section 2.1(a) of the Agreement of Limited
Partnership of LeasingCo. The Original Capital Contribution required to be made
pursuant to this Section 2.2(c) (the "Holdings Required Cash Contribution")
shall be made in cash by wire transfer of immediately available funds in
accordance with the following procedures:
(i) Prior to the date that the Partnership is
required to make any payment to Cox Parent pursuant to the System Assets Sales
Agreement, as described in Section 2.8(a), or to repay any Interim Funding
Loans in accordance with Section 2.9(b) or Section 2.9(c), Holdings shall
contribute to the Partnership the amount required to be paid to Cox Parent
pursuant to the System Assets Sales Agreement or to any Interim Lender with
respect to any Interim Funding Loans.
(ii) Subject to the following sentence, until such
time as the aggregate amount of Capital Contributions made by Holdings pursuant
to this Section 2.2(c) equals the Holdings Required Cash Contribution, Holdings
shall contribute to the Partnership cash in the amount stated in a request for
Capital Contributions made by the Managing Partner. If the Partnership assumes
the FCC Payment Obligations pursuant to Section 2.2(a)(iv), Holdings shall not
be required to make any cash Capital Contributions pursuant to this Section
2.2(c) after the date on which the Partnership assumes the FCC Payment
Obligations and prior to such time as CPP has made aggregate cash Capital
Contributions pursuant to Section 2.2(d) in an amount equal to the CPP Required
Cash Contribution. The Managing Partner's request for Capital Contributions by
Holdings pursuant to this Section 2.2(c) shall:
(A) state the amount being requested, which
shall not exceed the amount that the Managing Partner reasonably anticipates
will be required to fund the cash needs of the Partnership, based upon the
Budget then in effect, for the six (6) months following the Contribution Date
specified in the Managing Partner's request (taking into account any requests
for Capital Contributions made or to be made to CPP pursuant to Section
2.2(d));
(B) specify in reasonable detail the
purposes for which the Capital Contribution is required;
(C) identify the Contribution Date upon
which the Capital Contribution is to be made, which shall be not more than
forty-five (45) days nor less than thirty (30) days after the date of such
notice; and
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<PAGE> 32
(D) specify the account of the Partnership
to which the Capital Contribution is to be made.
(iii) Notwithstanding the foregoing, following the
occurrence of a Liquidating Event, except as provided in Section 15.2 with
respect to the occurrence of the event described in Section 15.1(a)(iv), on or
before the later of (A) the end of the Allocation Year in which the
"liquidation" of Holdings's interest in the Partnership occurs, and (B) 90 days
after the date of such "liquidation," (as "liquidation" is defined in
Regulations Section 1.704-1(b)(2)(ii)(g)), Holdings shall contribute to the
Partnership in cash the amount, if any, by which the Capital Contributions
previously made by Holdings pursuant to this Section 2.2(c) are less than the
Holdings Required Cash Contribution.
(d) CPP Cash Contributions. If the FCC, in granting its
consent to the assignment of the License to the Partnership, consents to the
assumption of the FCC Payment Obligations by the Partnership in a manner that
allows CPP reasonably to determine that it would not be required by GAAP to
reflect the FCC Payment Obligations as a liability on its balance sheet were
the FCC Payment Obligations to be assumed by the Partnership, then CPP shall be
obligated to contribute to the Partnership cash in an aggregate amount equal to
the FCC Payment Obligations (other than any portion of the FCC Payment
Obligations representing interest with respect to payments that are permitted
by the FCC to be deferred) less the sum of the aggregate initial Gross Asset
Value of any System Assets contributed to the Partnership, as determined
pursuant to Section 2.2(b)(ii), plus the outstanding principal amount and
accrued unpaid interest with respect to any Interim Funding Loans contributed
to the Partnership pursuant to Section 2.2(b)(iv) (other than Interim Funding
Loans required to be repaid pursuant to Section 2.9(c)). The Original Capital
Contribution required to be made pursuant to this Section 2.2(d) (the "CPP
Required Cash Contribution") shall be made in cash by wire transfer of
immediately available funds in accordance with the following procedures:
(i) Until such time as the aggregate amount of
cash Capital Contributions made by CPP pursuant to this Section 2.2(d) equals
the CPP Required Cash Contribution, CPP shall contribute to the Partnership
cash in the amount stated in a request for Capital Contributions made by the
Managing Partner. The Managing Partner's request shall:
(A) state the amount being requested, which
shall not exceed the amount that the Managing Partner reasonably anticipates
will be required to fund the cash needs of the Partnership, based upon the
Budget then in effect, for the six (6) months following the Contribution Date
specified in the Managing Partner's request;
(B) specify in reasonable detail the
purposes for which the Capital Contribution is required;
-27- December 12, 1996
<PAGE> 33
(C) identify the Contribution Date upon
which the Capital Contribution is to be made, which shall be not more than
forty-five (45) days nor less than thirty (30) days after the date of such
notice; and
(D) specify the account of the Partnership
to which the Capital Contribution is to be made.
(ii) Notwithstanding the foregoing, following the
occurrence of a Liquidating Event, except as provided in Section 15.2 with
respect to the occurrence of the event described in Section 15.1(a)(iv), on or
before the later of (A) the end of the Allocation Year in which the
"liquidation" of CPP's interest in the Partnership occurs, and (B) 90 days
after the date of such "liquidation," (as "liquidation" is defined in
Regulations Section 1.704-1(b)(2)(ii)(g)), CPP shall contribute to the
Partnership in cash the amount, if any, by which the Capital Contributions
previously made by CPP pursuant to this Section 2.2(d) are less than the CPP
Required Cash Contribution.
(e) Interest Payments.
(i) Concurrently with the making of each Capital
Contribution pursuant to Section 2.2(c) (including Section 2.2(c)(iii)),
Holdings shall pay to the Partnership interest at the rate provided below on
the amount, if any, by which the Holdings Required Cash Contribution exceeds
the aggregate cash Capital Contributions previously made by Holdings pursuant
to Section 2.2(c) (such excess, at any time, the "Unpaid Holdings Required Cash
Contribution"). Interest shall accrue for purposes of this Section 2.2(e)(i)
at the rate of seven and one-quarter percent (7.25%) per year from the later of
(A) the first date on which interest began to accrue on the obligation of Cox
Parent to pay the FCC for the License or (B) March 1, 1996.
(ii) Concurrently with the making of each Capital
Contribution pursuant to Section 2.2(d) (including Section 2.2(d)(ii)), CPP
shall pay to the Partnership interest at the rate of five and seven-eighths
percent (5.875%), compounded quarterly, from the later of (A) the first date on
which interest began to accrue on the obligation of Cox Parent to pay the FCC
for the License or (B) March 1, 1996, on the principal amount specified in the
following sentence. For the period ending on the License Contribution Date,
the principal amount shall be the amount of the FCC Payment Obligations (other
than any portion of the FCC Payment Obligations representing interest with
respect to payments that are permitted by the FCC to be deferred) and, for the
period after the License Contribution Date, the principal amount shall be the
amount, if any, by which the CPP Required Cash Contribution exceeds the
aggregate cash Capital Contributions previously made by CPP pursuant to Section
2.2(d).
(iii) Interest paid or payable pursuant to this
Section 2.2(e) shall not, for any purpose, be deemed to be a Capital
Contribution.
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<PAGE> 34
(iv) For purposes of this Section 2.2(e), the
first date on which interest began to accrue on the obligation of Cox Parent to
pay the FCC for the License shall be determined from the amount of interest
ultimately assessed against Cox Parent and required to be paid to the FCC
regardless of the date specified for the commencement of such accrual in any
FCC order.
2.3 Additional Capital Contributions.
(a) Additional Capital Contributions Pursuant to Capital
Calls.
(i) After the amount of Capital Contributions made by CPP
pursuant to Section 2.2(d) equals the CPP Required Cash Contribution and the
amount of Capital Contributions made by Holdings pursuant to Section 2.2(c)
equals the Holdings Required Cash Contribution, the Managing Partner may from
time to time, subject to the right of the Non-Managing Partner to consent to
such request pursuant to Section 5.1(d), request Additional Capital
Contributions from the Partners to fund the cash needs of the Partnership by
delivering a written notice which shall:
(A) state the amount of Additional Capital
Contributions being requested of all Partners, which shall not exceed the
amount that the Managing Partner reasonably anticipates will be required to
fund the cash needs of the Partnership, based upon the Budget then in effect,
for the six (6) months following the Contribution Date specified in the
Managing Partner's request;
(B) specify in reasonable detail the
purposes for which the requested Additional Capital Contributions are required;
(C) identify the Contribution Date upon
which the requested Additional Capital Contributions are to be made, which
shall be not more than forty-five (45) days nor less than thirty (30) days
after the date of such notice;
(D) specify the account of the Partnership
to which requested Additional Capital Contributions are to be made; and
(E) if the consent of the Non-Managing
Partner was not required pursuant to Section 5.1(d) with respect to such
request for Additional Capital Contributions, state the Base Value, the
estimated Gross Appraised Value and the estimated aggregate Adjusted Net Equity
of the Interests of all Partners as of the applicable Contribution Date.
(ii) Except as otherwise provided in this Section
2.3(a)(ii), with respect to each request for Additional Capital Contributions
pursuant to Section 2.3(a), each Partner shall be required to make an
Additional Capital Contribution to the Partnership in an amount equal to such
Partner's Percentage Interest times the amount of Additional Capital
Contributions requested by the Managing Partner, except that, if the consent of
the Non-Managing Partner was
-29- December 12, 1996
<PAGE> 35
not required pursuant to Section 5.1(d) with respect to a request for
Additional Capital Contributions pursuant to Section 2.3(a), then:
(A) the Non-Managing Partner may decline to
make all or part of the Additional Capital Contribution requested of it by
giving written notice to the Managing Partner within fifteen (15) days of its
receipt of the Managing Partner's request for Additional Capital Contributions;
and
(B) if the Non-Managing Partner declines to
make all or part of the Additional Capital Contribution requested of it, the
Managing Partner shall be required to make an Additional Capital Contribution
to the Partnership in an amount equal to the amount of Additional Capital
Contributions requested by the Managing Partner minus the amount, if any, of
the Additional Capital Contribution that the Non-Managing Partner is required
to make.
(iii) If the Non-Managing Partner declines to make
all or part of any Additional Capital Contribution requested of it pursuant to
Section 2.3(a), the Percentage Interests of the Partners shall be adjusted and
thereafter determined in accordance with this Section 2.3(a)(iii):
(A) Such determination shall be made on the
tenth (10th) day following the applicable Contribution Date and shall be
effective as of the Contribution Date.
(B) The adjusted Percentage Interest of a
Partner shall equal a fraction (expressed as a percentage) the numerator of
which shall be the sum of (1) the Adjusted Net Equity of the Interest of such
Partner plus (2) the Additional Capital Contribution made by such Partner with
respect to such request, and the denominator of which shall be the sum of (3)
the aggregate Adjusted Net Equity of the Interests of all Partners plus (4) the
aggregate Additional Capital Contributions made by all Partners with respect to
such request.
(C) The "Adjusted Net Equity" of the
Interest of a Partner shall be the amount that would be distributed as of the
applicable Contribution Date to such Partner in liquidation of the Partnership
pursuant to Section 15.2(c) if (1) all of the Partnership's business and assets
(excluding the amounts of any Additional Capital Contributions made pursuant to
such request) were sold substantially as an entirety for Gross Appraised Value
(determined in accordance with Section 2.3(a)(iii)(D)), (2) Profits and Losses
and items specially allocated in accordance with Section 3.3 and Section 3.4
for the Allocation Year ending on the date of such determination, including any
gain or loss resulting from the deemed sale described in clause (1), were
allocated in accordance with Section 3, (3) the Partnership paid its
liabilities and established reserves pursuant to Section 15.2 for the payment
of reasonably anticipated contingent or unknown liabilities and (4) the
Partnership distributed the remaining proceeds to the Partners in liquidation,
all as of such Contribution Date.
(D) Whenever Adjusted Net Equity is required
to be determined pursuant to Section 2.3(a)(iii)(B), Gross Appraised Value
shall be determined in good faith by
-30- December 12, 1996
<PAGE> 36
the Managing Partner based upon the most recent determination of Gross
Appraised Value (the "Base Value") pursuant to Section 2.3(a)(iii)(E). In
making its determination of Gross Appraised Value pursuant to this Section
2.3(a)(iii)(D), the Managing Partner shall adjust the Base Value for any
Capital Contributions by and distributions to the Partners and for the
operating results and other transactions of the Partnership from the date as of
which the Base Value was last determined until the applicable Contribution
Date.
(E) Gross Appraised Value shall be
determined as of December 31 of the Fiscal Year immediately preceding the first
Fiscal Year during which the consent of the Non-Managing Partner is not
required (or during which any transaction is pending upon the consummation of
which the consent of the Non-Managing Partner would not be required) with
respect to any request for Additional Capital Contributions pursuant to Section
2.3(a), and thereafter shall be determined as of December 31 of each Fiscal
Year. Gross Appraised Value shall be determined as provided in Section 12.4,
and the Managing Partner shall designate the First Appraiser not less than
twenty (20) days prior to the date as of which Gross Appraised Value is to be
determined, and the Non-Managing Partner shall appoint the Second Appraiser
within ten (10) Business Days of receiving notice of the appointment of the
First Appraiser. The Managing Partner shall estimate Gross Appraised Value and
the Adjusted Net Equity of the Interests of the Partners from time to time as
necessary to comply with the notice requirement set forth in Section
2.3(a)(i)(E).
(b) Other Contributions. A Partner may contribute from
time to time such additional cash or other property on such terms and
conditions as may be agreed to by the Partners.
2.4 Failure to Contribute Capital.
The following provisions shall apply if a Partner fails to make any
Capital Contribution required to be made by it on the applicable Contribution
Date:
(a) An additional amount shall accrue as a penalty with
respect to the amount that such Partner (the "Delinquent Partner") failed to
contribute (the "Unpaid Amount") at the Floating Rate from and including the
Contribution Date until the Unpaid Amount and the full amount of the penalty
accrued thereon (as of any date of determination, the "Penalty") are paid as
provided in this Section 2.4.
(b) Upon contributing the Unpaid Amount to the
Partnership, if the other Partner made its Capital Contribution in full on or
before the applicable Contribution Date and has cured any prior failure to make
any required Capital Contribution on the Contribution Date applicable thereto,
the Delinquent Partner shall pay (i) to the other Partner the lesser of (A) the
Penalty or (B) the amount of interest that would have accrued at the Floating
Rate on the Capital Contribution made by the other Partner on the applicable
Contribution Date from the Contribution Date to the date the Delinquent Partner
pays the Unpaid Amount to the Partnership, and (ii) to the Partnership the
amount, if any, by which the Penalty exceeds the amount paid to
-31- December 12, 1996
<PAGE> 37
the other Partner pursuant to clause (i). Any portion of the Penalty paid to
the Partnership shall be deemed to be a "Special Contribution" by the
Delinquent Partner to the capital of the Partnership. Any portion of the
Penalty paid to the other Partner shall not, for any purpose, be deemed to be a
Capital Contribution.
(c) Subject to the last two sentences of Section 2.6(b),
the term "Floating Rate" means the rate per annum (computed on the basis of the
actual number of days elapsed in a year of 365 or 366 days, as applicable),
compounded monthly, equal to the greater of (i) the Prime Rate (adjusted as and
when changes in the Prime Rate occur) plus (x) during the period ending at the
close of business on the tenth (10th) day following the applicable Contribution
Date, two percent (2%) and (y) thereafter, five percent (5%), and (ii) the rate
per annum applicable to borrowings by the Partnership under its principal
credit facility, if any, or, if a choice of rates is then available to the
Partnership, the highest such rate (in either case adjusted as and when changes
in such applicable rate occur) plus, following the close of business on the
tenth (10th) day following the applicable Contribution Date, two percent (2%).
2.5 Partnership Funds.
The funds of the Partnership shall be deposited in such bank accounts
or invested in such investments as shall be designated by the Managing Partner.
Partnership funds shall not be commingled with those of any Person other than a
wholly owned Subsidiary of the Partnership unless both Partners agree. The
Partnership shall not lend or advance funds to, or guarantee any obligation of,
a Partner or any Affiliate thereof without the prior written consent of the
other Partner.
2.6 Partner Loans; Other Borrowings; Purchase of Partner Loans.
(a) In order to satisfy the Partnership's financial
needs, subject to Section 5.1(d), the Partnership may borrow from (i) banks,
lending institutions, vendors or other unrelated third parties, and may pledge
Partnership properties or the production of income therefrom to secure and
provide for the repayment of such loans, and (ii) either Partner or an
Affiliate of either Partner. Except in the case of Interim Funding Loans
pursuant to Section 2.9(a), loans made by a Partner or an Affiliate of a
Partner (a "Partner Loan") shall be evidenced by a promissory note of the
Partnership in the form attached as Exhibit 2.6 and, subject to the last two
sentences of Section 2.6(b), shall bear interest payable quarterly from the
date made until paid in full at a rate per annum to be determined by the
Managing Partner that is no less favorable to the Partnership than if the loan
had been made by an independent third party. Unless a Partner declines to make
such loan or is subject to Bankruptcy, Partner Loans shall be made pro rata in
accordance with the respective Percentage Interests of the Partners (or in such
other proportion as may be agreed to by both Partners).
(b) Unless otherwise determined by the Managing Partner,
all Partner Loans shall be unsecured and the promissory notes evidencing the
same shall be non-negotiable and, except as otherwise provided in this Section
2.6 or Section 13.3(c), nontransferable. Repayment
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<PAGE> 38
of the principal amount of and accrued unpaid interest on all Partner Loans
shall be subordinated to the repayment of the principal of and accrued interest
on any indebtedness of the Partnership to third party lenders to the extent
required by the applicable provisions of the instruments creating such
indebtedness to third party lenders ("Senior Credit Agreements"). All amounts
required to be paid in accordance with the terms of such notes and all amounts
permitted to be prepaid shall be applied to the notes held by the Partners in
accordance with the order of payment contemplated by Section 15.2(b)(ii) and
Section 15.2(b)(iii). Subject to the terms of applicable Senior Credit
Agreements, Partner Loans shall be repaid to the Partners at such times as the
Partnership has sufficient funds to permit such repayment without jeopardizing
the Partnership's ability to meet its other obligations on a timely basis.
Nothing contained in this Agreement or in any promissory note issued by the
Partnership hereunder shall require the Partnership, either Partner, or any
Affiliate of either Partner to pay interest or any amount as a penalty at a
rate exceeding the maximum amount of interest permitted to be collected from
time to time under applicable usury laws. If the amount of interest or of such
penalty payable by the Partnership, either Partner, or any Affiliate of either
Partner on any date would exceed the maximum permissible amount, it shall be
automatically reduced to such amount, and interest or the amount of the penalty
for any subsequent period, to the extent less than that permitted by applicable
usury laws, shall, to that extent, be increased by the amount of such
reduction.
(c) An election by a Partner to purchase or to require
that the other Partner purchase all or any portion of the other Partner's
Interest pursuant to Section 12, Section 13.4, Section 13.5, Section 13.6 or
Section 15.6 shall also constitute an election to purchase or to require that
the other Partner purchase, as applicable, an equivalent portion of any
outstanding Partner Loans held by the other Partner, and the purchasing Partner
shall be obligated to purchase a percentage of such Partner Loans equal to the
percentage of the Interest of the selling Partner that the purchasing Partner
is obligated to purchase for a price equal to the same percentage of the
outstanding principal and accrued and unpaid interest on such Partner Loans
through the date of the closing of such purchase (except in the case of a
Transfer pursuant to Section 13.4, in which case the terms of the Purchase
Offer shall apply).
2.7 Other Matters.
(a) Neither Partner shall have the right to demand or,
except as otherwise provided in Section 4.1 and Section 15.2, receive a return
of all or any part of its Capital Account or its Capital Contributions or
withdraw from the Partnership without the consent of the other Partner. Under
circumstances requiring a return of all or any part of its Capital Account or
Capital Contributions, neither Partner shall have the right to receive Property
other than cash.
(b) Subject to Section 5.4 and Section 15.3, an Exclusive
Limited Partner shall not be liable for the debts, liabilities, contracts or
any other obligations of the Partnership. Except as otherwise provided by any
other agreement between the Partners or mandatory provisions of applicable
state law, a Partner shall be liable only to make Capital Contributions
-33- December 12, 1996
<PAGE> 39
to the extent required by Section 2.2, Section 2.3 and Section 15.3 and shall
not be required to lend any funds to the Partnership or to make any other
Capital Contributions to the Partnership.
(c) Neither Partner shall have any personal liability for
the repayment of any Capital Contributions of the other Partner.
(d) Neither Partner shall be entitled to receive interest
on its Capital Contributions or Capital Account.
2.8 Sale of Assets and Reimbursement of Research and Experimental
Expenditures and Start-Up Expenditures.
(a) Immediately following the execution and delivery of
this Agreement, the Partnership shall enter into the System Assets Sales and
Expenditure Reimbursement Agreement (the "System Assets Sales Agreement") with
Cox Parent, Cox California, and PCS Leasing Co., Inc., in the form attached as
Exhibit 2.8(a). On the terms and conditions specified in the System Assets
Sales Agreement, Cox Parent and its Subsidiaries shall sell, assign, transfer
and convey to the Partnership, or, at the Partnership's option, to LeasingCo or
any other Subsidiary of the Partnership, all right, title and interest in the
System Assets held by Cox Parent and its Subsidiaries on the date of such sale.
The sale, assignment, transfer and conveyance to the Partnership of any System
Assets pursuant to the System Assets Sales Agreement shall not, for any
purpose, be deemed to be a Capital Contribution.
(b) If Cox Parent and its Subsidiaries sell the System
Assets to the Partnership, LeasingCo or any other Subsidiary of the Partnership
pursuant to the System Assets Sales Agreement, then, on the Sale Date (as
defined in the System Assets Sales Agreement), the Partnership shall reimburse
Cox Parent and its Subsidiaries for Research and Experimental Expenditures and
Start-Up Expenditures, as provided in the System Assets Sales Agreement.
2.9 Interim Funding Loans.
(a) In order to satisfy the Partnership's financial needs
with respect to the development of the business of the Partnership during the
period from the date of this Agreement through the License Contribution Date,
CPP or a Controlled Affiliate of CPP (the "Interim Lender") will lend money to
the Partnership and the Partnership will borrow money from the Interim Lender
on the terms described in this Section 2.9. Such loans (the "Interim Funding
Loans") shall be evidenced by a promissory note of the Partnership in the form
attached as Exhibit 2.9(a) and, subject to the last two sentences of Section
2.6(b), shall bear simple interest from the date made until paid in full at a
rate of 7.25% per year. Unless otherwise determined by the Managing Partner,
all Interim Funding Loans shall be unsecured and the promissory notes
evidencing any Interim Funding Loans shall be non-negotiable and, except for
transfers to CPP or a Controlled Affiliate of CPP and transfers in connection
with the contributions contemplated by Section 2.2(b)(iv), nontransferable.
-34- December 12, 1996
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(b) The Partnership shall repay all Interim Funding
Loans, together with all interest accrued thereon, in full on the License
Contribution Date unless the Interim Funding Loans are contributed to the
Partnership pursuant to Section 2.2(b)(iv).
(c) If Interim Funding Loans are contributed to the
Partnership pursuant to Section 2.2(b)(iv), then the Partnership shall repay
the Interim Funding Loans, together with interest accrued thereon, on the
License Contribution Date to the extent that the sum of the aggregate initial
Gross Asset Value of any System Assets contributed to the Partnership on the
License Contribution Date plus the outstanding principal amount and accrued
unpaid interest with respect to the Interim Funding Loans (before giving effect
to such repayment) exceeds the FCC Payment Obligation.
SECTION 3. ALLOCATIONS
3.1 Profits.
After giving effect to the special allocations set forth in Section
3.3 and Section 3.4, Profits for any Allocation Year shall be allocated in the
following order and priority:
(a) First, to the Partners, in proportion to, and to the
extent of, an amount equal to the excess, if any, of (i) the cumulative Losses
allocated to each such Partner pursuant to Section 3.5 for all prior Allocation
Years, over (ii) the cumulative Profits allocated to such Partner pursuant to
this Section 3.1(a) for all prior Allocation Years;
(b) Second, to the Partners, in proportion to, and to the
extent of, an amount equal to the excess, if any, of (i) the cumulative Losses
allocated to each such Partner pursuant to Section 3.2(c) for all prior
Allocation Years, over (ii) the cumulative Profits allocated to such Partner
pursuant to this Section 3.1(b) for all prior Allocation Years;
(c) Third, to the extent such Profits arise during or
after the Allocation Year in which all or substantially all of the
Partnership's assets are disposed of (or revalued pursuant to subparagraph (ii)
of the definition of Gross Asset Value), to the Partners in such ratios and
amounts as may be necessary to cause the balances in their Capital Accounts to
be as nearly as practicable in the same ratio as their respective Percentage
Interests at the time of such disposition (or immediately prior to such
revaluation); and
(d) The balance, if any, between the Partners in
proportion to their Percentage Interests.
3.2 Losses.
After giving effect to the special allocations set forth in Section
3.3 and Section 3.4 and subject to Section 3.5, Losses for any Allocation Year
shall be allocated in the following order and priority:
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(a) First, to the Partners in proportion to, and to the
extent of, the excess, if any, of (i) the cumulative Profits allocated to each
such Partner pursuant to Section 3.1(d) for all prior Allocation Years, over
(ii) the cumulative Losses allocated to such Partner pursuant to this Section
3.2(a) for all prior Allocation Years;
(b) Second, to the extent such Losses arise during or
after the Allocation Year in which all or substantially all of the
Partnership's assets are disposed of (or revalued pursuant to subparagraph (ii)
of the definition of Gross Asset Value), to the Partners in such ratios and
amounts as may be necessary to cause the balances in their Capital Accounts to
be as nearly as practicable in the same ratio as their respective Percentage
Interests at the time of such disposition (or immediately prior to such
revaluation); and
(c) The balance, if any, between the Partners in
proportion to their Percentage Interests.
3.3 Special Allocations.
The following special allocations shall be made in the following
order:
(a) Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(f), notwithstanding any other provision
of this Section 3, if there is a net decrease in Partnership Minimum Gain
during any Allocation Year, each Partner shall be specially allocated items of
Partnership income and gain for such Allocation Year (and, if necessary,
subsequent Allocation Years) in an amount equal to such Partner's share of the
net decrease in Partnership Minimum Gain, determined in accordance with
Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Regulations Sections 1.704-2(f)(6) and
1.704-2(j)(2). This Section 3.3(a) is intended to comply with the minimum gain
chargeback requirement in Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise
provided in Regulations Section 1.704-2(i)(4), notwithstanding any other
provision of this Section 3, if there is a net decrease in Partner Nonrecourse
Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any
Allocation Year, each Partner that has a share of the Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Regulations Section 1.704-2(i)(5), shall be specially allocated
items of Partnership income and gain for such Allocation Year (and, if
necessary, subsequent Allocation Years) in an amount equal to such Partner's
share of the net decrease in Partner Nonrecourse Debt Minimum Gain attributable
to such Partner Nonrecourse Debt, determined in accordance with Regulations
Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be determined in
accordance with Regulations Sections 1.704- 2(i)(4) and 1.704-2(j)(2). This
Section 3.3(b) is intended to comply with the
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<PAGE> 42
minimum gain chargeback requirement in Regulations Section 1.704-2(i)(4) and
shall be interpreted consistently therewith.
(c) Qualified Income Offset. In the event any Exclusive
Limited Partner unexpectedly receives any adjustments, allocations, or
distributions described in 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 each such Exclusive Limited Partner in
an amount and manner sufficient to eliminate, to the extent required by the
Regulations, the Adjusted Capital Account Deficit of such Exclusive Limited
Partner as quickly as possible, provided that an allocation pursuant to this
Section 3.3(c) shall be made only if and to the extent that such Exclusive
Limited Partner would have an Adjusted Capital Account Deficit after all other
allocations provided for in this Section 3 have been tentatively made as if
this Section 3.3(c) were not in the Agreement.
(d) Gross Income Allocation. In the event any Exclusive
Limited Partner has a deficit Capital Account at the end of any Allocation Year
which is in excess of the sum of (i) the amount such Exclusive Limited Partner
is obligated to restore pursuant to any provision of this Agreement, and (ii)
the amount such Exclusive Limited Partner is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), each such Exclusive Limited Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible, provided that an allocation pursuant to this Section
3.3(d) shall be made only if and to the extent that such Exclusive Limited
Partner would have a deficit Capital Account in excess of such sum after all
other allocations provided for in this Section 3 have been made as if Section
3.3(c) and this Section 3.3(d) were not in the Agreement.
(e) Nonrecourse Deductions. Nonrecourse Deductions for
any Allocation Year shall be specially allocated between the Partners in
proportion to their Percentage Interests.
(f) Partner Nonrecourse Deductions. Any Partner
Nonrecourse Deductions for any Allocation Year 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 Regulations Section 1.704-2(i)(1).
(g) Section 754 Adjustments. To the extent an adjustment
to the adjusted tax basis of any Partnership asset pursuant to Code Section
734(b) or Code Section 743(b) is required pursuant to Regulations Section
1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) to be taken into account in
determining Capital Accounts as the result of a distribution to a Partner in
complete liquidation of its Interest, the amount of such adjustment to Capital
Accounts 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 accordance with
their interests in the Partnership in the event Regulations Section
1.704-1(b)(2)(iv)(m)(2) applies, or to the Partner to which such distribution
was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
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<PAGE> 43
3.4 Curative Allocations.
The allocations set forth in Section 3.3(a), Section 3.3(b), Section
3.3(c), Section 3.3(d), Section 3.3(e), Section 3.3(f), Section 3.3(g) and
Section 3.5 (the "Regulatory Allocations") are intended to comply with certain
requirements of the Regulations. It is the intent of the Partners 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 3.4.
Therefore, notwithstanding any other provision of this Section 3 (other than
the Regulatory Allocations), the Managing Partner shall make such offsetting
special allocations of Partnership income, gain, loss or deduction in whatever
manner it determines appropriate so that, after such offsetting allocations are
made, each Partner's Capital 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 the Agreement and all Partnership items were
allocated pursuant to Section 3.1 and Section 3.2. In exercising its
discretion under this Section 3.4, the Managing Partner shall take into account
future Regulatory Allocations under Section 3.3(a) and Section 3.3(b) that,
although not yet made, are likely to offset other Regulatory Allocations
previously made under Section 3.3(e) and 3.3(f).
3.5 Loss Limitation.
The Losses allocated pursuant to Section 3.2 shall not exceed the
maximum amount of Losses that can be so allocated without causing (or
increasing the amount of) any Exclusive Limited Partner to have an Adjusted
Capital Account Deficit at the end of any Allocation Year. All Losses in
excess of such limitation shall be allocated to the Partners that are not
Exclusive Limited Partners in proportion to their Percentage Interests.
3.6 Other Allocation Rules.
(a) For purposes of determining the Profits, Losses, or
any other items allocable to any period, Profits, Losses, and any such other
items shall be determined on a daily, monthly, or other basis, as determined by
the Partners using any permissible method under Code Section 706 and the
Regulations thereunder. If the Percentage Interests of the Partners are
adjusted pursuant to Section 2.3(a)(iii) during any Allocation Year, Profits,
Losses, and other items allocable to such Allocation Year shall be allocated
between the periods before and after such adjustment by the closing of the
books method.
(b) The Partners are aware of the income tax consequences
of the allocations made by this Section 3 and hereby agree to be bound by the
provisions of this Section 3 in reporting their shares of Partnership income
and loss for income tax purposes.
(c) Solely for purposes of determining a Partner's
proportionate share of the "excess nonrecourse liabilities" of the Partnership
within the meaning of Regulations Section
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<PAGE> 44
1.752-3(a)(3), the Partners' interests in Partnership profits are in proportion
to their Percentage Interests.
(d) To the extent permitted by Regulations Section
1.704-2(h)(3), the Managing Partner shall endeavor to treat distributions of
cash as having been made from the proceeds of a Nonrecourse Liability or a
Partner Nonrecourse Debt only to the extent that such distributions would cause
or increase an Adjusted Capital Account Deficit for any Exclusive Limited
Partner.
3.7 Tax Allocations: Code Section 704(c).
In accordance with Code Section 704(c) and the 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 method with
curative allocations as described in Regulations Section 1.704-3(c), applied as
necessary in any reasonable manner not expressly precluded by Regulations
Section 1.704-3; provided, however, that if the Partners determine that the
so-called "ceiling rule" is likely to apply to the Partnership under such
method, the Partnership shall adopt the remedial allocation method described in
Regulations Section 1.704-3(d).
In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to subparagraph (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 Regulations thereunder.
Any elections or other decisions relating to such allocations shall be
made by the Managing Partner in any manner that reasonably reflects the purpose
and intention of this Agreement. Allocations pursuant to this Section 3.7 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 Profits, Losses, other items, or distributions pursuant to any
provision of this Agreement.
3.8 Special Profits and Special Losses.
Each item of Special Profit or Special Loss shall be specially
allocated to the holders of the Special Interests, allocated between them in
proportion to the amount of Special Interests held by each of them as of the
last day of the fiscal period for which the allocation of income, gain,
deduction or loss by LeasingCo to the Partnership that gave rise to such item
of Special Profit or Special Loss was made.
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<PAGE> 45
3.9 Allocations for Financial Reporting Purposes
The income or loss of the Partnership determined under GAAP shall be
allocated to the Partners in accordance with the principles described in
Section 3.1, Section 3.2 and Section 3.5 for the allocation of Profits and
Losses and Section 3.8 for the allocation of Special Profit and Special Loss as
if Section 3.3, Section 3.4, Section 3.6 and Section 3.7 were not part of this
Agreement.
SECTIN 4. PAYMENTS AND DISTRIBUTIONS
4.1 Available Cash.
Except as otherwise provided in Section 15.2, Available Cash, if any,
shall be distributed to the Partners in cash, and allocated between them in
proportion to their Percentage Interests, at such times and in such amounts as
the Managing Partner shall determine, subject to Section 5.1(d). The
Partnership shall pay in full all Partner Loans prior to making any cash
distributions to the Partners pursuant to this Section 4.1.
4.2 Cash Distributed by LeasingCo.
Upon the Partnership's receipt from LeasingCo of any cash distributed
by LeasingCo pursuant to Section 4.1(a) of the Agreement of Limited Partnership
of LeasingCo or any cash distributed by LeasingCo pursuant to Section 8.2 of
the Agreement of Limited Partnership of LeasingCo to the extent such
distributions pursuant to Section 8.2 do not exceed the Partnership's
"Preferred Capital Contribution" (as defined in the Agreement of Limited
Partnership of LeasingCo), the Partnership shall distribute the amount of cash
so received to the holders of the Special Interests, allocated between them in
proportion to the amount of Special Interests held by each of them on the date
that the Partnership received such distribution from LeasingCo.
4.3 Amounts Withheld.
All amounts withheld pursuant to the Code or any provision of any
state or local tax law from any payment or distribution to a Partner shall be
treated as amounts paid or distributed to such Partner pursuant to this Section
4 for all purposes under this Agreement. The Partnership is authorized to
withhold from payments and distributions to either Partner and to pay over to
any federal, state, or local government any amounts required to be so withheld
pursuant to the Code or any provisions of any other federal, state, or local
law.
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<PAGE> 46
SECTION 5. MANAGEMENT
5.1 Authority of the General Partners and the Managing Partner.
(a) General Authority. Subject to the limitations and
restrictions set forth in this Agreement, the General Partner or, if there is
more than one, the General Partners shall conduct the business and affairs of
the Partnership, and all powers of the Partnership, except those specifically
reserved to all Partners by the Act or this Agreement, hereby are granted to
and vested in the General Partner or, if there is more than one, the General
Partners.
(b) Designation and Authority of Managing Partner. The
Partner designated pursuant to the following provisions shall be the "Managing
Partner" and, in its capacity as Managing Partner, shall have the powers and
authority assigned to it in this Agreement and any additional powers and
authority that are necessary or appropriate to conduct the business and affairs
of the Partnership, subject to Section 8.2(a). The Partner that is not the
Managing Partner, regardless of whether such Partner is a General Partner, is
referred to in this Agreement as the "Non-Managing Partner." The Non-Managing
Partner agrees that, except as expressly provided for in this Agreement, it
will not exercise individually any of the powers with respect to the business
and affairs of the Partnership that are granted to general partners under the
Act other than at the direction of or pursuant to authority delegated to it by
the Managing Partner. The Managing Partner shall be designated pursuant to the
following provisions:
(i) Except as otherwise provided in this Section
5.1(b), CPP shall be the Managing Partner.
(ii) Except as otherwise provided in this Section
5.1(b), Holdings shall become the Managing Partner upon the later to occur of
(A) such time as the aggregate Percentage Interests of Holdings and its
Controlled Affiliates exceeds fifty percent (50.0%) and (B) the receipt by the
Partnership and Holdings of all consents, approvals, waivers, or authorizations
of Governmental Authorities that are necessary for Holdings to become a General
Partner of the Partnership pursuant to Section 14.1 and to exercise the powers
and authority of the Managing Partner under this Agreement. In connection with
any transaction that would result in the aggregate Percentage Interests of
Holdings and its Controlled Affiliates exceeding fifty percent (50.0%), CPP
agrees to use diligent efforts to obtain, or to assist Holdings or the
Partnership in obtaining, any such consent, approval, waiver or authorization
and shall cooperate and use diligent efforts to respond as promptly as
practicable to all inquiries received by CPP, by Holdings or by the Partnership
from any Governmental Authority for initial or additional information or
documentation in connection therewith.
(iii) If the Partner designated as the Managing
Partner pursuant to the foregoing provisions of this Section 5.1(b) becomes an
Adverse Partner and the other Partner is not at that time an Adverse Partner,
then, at the election of the Non-Adverse Partner and upon the receipt of all
consents, approvals, waivers, or authorizations of Governmental Authorities
-41- December 12, 1996
<PAGE> 47
necessary for the Non-Adverse Partner to become a General Partner of the
Partnership, if the Non-Adverse Partner is not a General Partner, and to
exercise the powers and authority of the Managing Partner under this Agreement,
the Non-Adverse Partner shall become the Managing Partner; provided, however,
that, subject to the receipt of all consents, approvals, waivers, or
authorizations of Governmental Authorities that may be required:
(A) if the Managing Partner became an
Adverse Partner as the result of the occurrence of an Adverse Act described in
subparagraph (iv), (v) or (viii) of the definition of such term in Section 1.10
and has Transferred its Interest in compliance with Section 13 to a Person that
is not an Adverse Partner and did not become an Adverse Partner as a result of
such Transfer, then, if the aggregate Percentage Interests of the transferee of
such Partner's Interest and its Controlled Affiliates exceeds fifty percent
(50.0%), the transferee of such Partner's Interest will be entitled to become
the Managing Partner;
(B) if the Managing Partner became an
Adverse Partner as a consequence of Bankruptcy, such Partner will again become
the Managing Partner if (i) such Partner ceases to be in a state of Bankruptcy
and (ii) at the time such Partner ceases to be in a state of Bankruptcy, the
aggregate Percentage Interests of such Partner and its Controlled Affiliates
exceeds fifty percent (50.0%);
(C) if the Managing Partner became an
Adverse Partner as a consequence of the occurrence of any IXC Transaction, such
Partner will again become the Managing Partner if (i) such Partner ceases to
have the relationship with the IXC that caused such IXC Transaction to occur
and (ii) at the time such Partner ceases to have the relationship with the IXC
that caused such IXC Transaction to occur, the aggregate Percentage Interests
of such Partner and its Controlled Affiliates exceeds fifty percent (50.0%);
and
(D) if the Managing Partner became an
Adverse Partner as a consequence of the occurrence of an event described in
subparagraph (viii) of the definition of such term in Section 1.10, such
Partner will again become the Managing Partner if (i) such Partner eliminates
the circumstances that constituted such an Adverse Act and (ii) at the time
such Partner eliminates the circumstances that constituted such an Adverse Act,
the aggregate Percentage Interests of such Partner and its Controlled
Affiliates exceeds fifty percent (50.0%).
(c) Delegation. The Managing Partner shall have the
power to delegate authority to such officers, employees, agents and
representatives of the Partnership as it may from time to time deem
appropriate, except that the Managing Partner shall not, without the prior
written consent of the Non-Managing Partner, delegate to any officer, employee,
agent or representative of the Partnership the authority to take any action
that would require the prior written consent of the Non-Managing Partner
pursuant to Section 5.1(d) if such action were taken by the Managing Partner
itself.
(d) Partner Approvals. No action may be taken by the
Managing Partner or the Partnership in connection with any of the matters
listed on Schedule 5.1(d) (to the extent
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<PAGE> 48
provided in Schedule 5.1(d)) without the prior written consent of the
Non-Managing Partner, except that the Non-Managing Partner shall be deemed to
have consented to any action for purposes of this Section 5.1(d) if the action
was specifically described in a Proposed Budget for the Fiscal Year in which
the action was taken and the Non-Managing Partner failed to object to such
action in a Budget Objection pursuant to Section 5.2(c) or was specifically
described in the budget for the period ending December 31, 1997 that was
included in the Initial Business Plan.
(e) Regular Meetings; Information Rights. The Managing
Partner shall hold regular meetings with the Non-Managing Partner no less
frequently than once each calendar quarter at dates, times and places mutually
acceptable to the Partners. At each such regular meeting, the Managing Partner
shall provide the Non-Managing Partner with an overview of the business and
affairs of the Partnership. The Managing Partner shall provide the
Non-Managing Partner with any information concerning the business and affairs
of the Partnership that the Non-Managing Partner may have reasonably requested.
5.2 Business Plan and Budget.
(a) CPP has prepared and delivered to Holdings a business
plan, dated January 31, 1996, and updated by the "1997 Budget Overview"
presented to Holdings on September 16, 1996, for the Partnership covering a
period that includes the period from the date of this Agreement through
December 31, 1999 (such business plan, as so updated, being referred to herein
as the "Initial Business Plan"). The Initial Business Plan includes capital
expenditure and operating budgets for each Fiscal Year covered thereby.
(b) Prior to the start of each Fiscal Year, the Managing
Partner shall adopt (i) a budget (the "Budget") for the forthcoming Fiscal Year
including an income statement (prepared on an accrual basis), which shall show
in reasonable detail the revenues and expenses projected for the Partnership's
business for the forthcoming Fiscal Year, and a balance sheet and cash flow
statement, which shall show in reasonable detail the receipts and disbursements
projected for the Partnership's business for the forthcoming Fiscal Year and
the amount of any corresponding cash deficiency or surplus, projected Capital
Contributions, if any, and any contemplated borrowings of the Partnership and
(ii) a revised Business Plan ("Business Plan") for the Fiscal Year covered by
the Budget and the succeeding four Fiscal Years. Each Budget and Business Plan
shall be prepared on a basis consistent with the Proposed Budget and Proposed
Business Plan submitted by the Managing Partner pursuant to Section 5.2(c) and
the Partnership's audited financial statements. The day-to-day business and
operations of the Partnership during each Fiscal Year shall be conducted in
accordance with the Business Plan and Budget adopted by the Managing Partner
for such Fiscal Year (as it may have been amended in accordance with Section
5.2(c)) and the policies, strategies and standards established by the Managing
Partner. Nothing contained in the Initial Business Plan (or any subsequent
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<PAGE> 49
Business Plan) shall be binding upon the Partners or the Partnership, except to
the extent specifically set forth in the applicable provisions of this
Agreement. Notwithstanding anything to the contrary set forth in the Initial
Business Plan (or any subsequent Business Plan) or this Agreement, in the event
of any conflict or inconsistency between the Initial Business Plan (or any
subsequent Business Plan) and this Agreement, such conflict or inconsistency
shall be resolved in favor of the applicable terms and provisions of this
Agreement to the extent required to give full effect to such applicable terms
and provisions. For example, by failing to object to any Business Plan in a
Budget Objection pursuant to Section 5.2(c), a Partner will not have thereby
agreed that any assumption or set of assumptions contained in such Business
Plan (i) is the basis for any agreement by or between the Partners and/or the
Partnership (or any of their respective Affiliates), (ii) cannot be changed (to
the extent any such change would not thereby become inconsistent with the
applicable terms and provisions of this Agreement), or (iii) is binding with
respect to any transaction or other course of dealing or otherwise between the
Partnership and such Partner or between the Partners other than as specifically
set forth in this Agreement.
(c) The Managing Partner shall submit annually to the
Non-Managing Partner at least sixty (60) days prior to the start of each Fiscal
Year after the first full Fiscal Year a proposed Budget ("Proposed Budget") for
the forthcoming Fiscal Year and a proposed Business Plan ("Proposed Business
Plan") for the Fiscal Year covered by the Proposed Budget and the succeeding
four Fiscal Years. If the Managing Partner proposes to make any amendment or
modification to the Business Plan or Budget then in effect (each, a "Proposed
Change"), the Managing Partner shall submit to the Non-Managing Partner at
least thirty (30) days prior to the proposed effective date of the Proposed
Change a brief description of the Proposed Change and an analysis of the effect
such Proposed Change would have on the Business Plan or Budget then in effect.
The Managing Partner shall solicit the comments of the Non-Managing Partner
with respect to each Proposed Budget and Proposed Business Plan or Proposed
Change. If the Non- Managing Partner objects to any provision of a Proposed
Budget or Proposed Business Plan or to any Proposed Change, the Non-Managing
Partner may commence the negotiation procedures described below by giving
written notice to the Managing Partner of its objections to the Proposed
Business Plan, Proposed Budget or Proposed Change (a "Budget Objection") within
twenty (20) days after its receipt of the Proposed Business Plan and Proposed
Budget or ten (10) days after its receipt of notice of the Proposed Change.
Following the delivery of a Budget Objection, the Partners shall cooperate in
good faith and confer with the Chief Executive Officer and senior officers of
the Partnership for the purpose of resolving by agreement between the Partners
the objections described in the Budget Objection; if the Partners are unable to
resolve the objections described in the Budget Objection within ten (10) days,
the Non-Managing Partner may, by written notice to the Managing Partner, elect
to require the Partners to further attempt to resolve the objections as
follows:
(i) The Partners shall refer the objections
described in the Budget Objection to the chief executive officers of Holdings
and Cox Parent for resolution.
(ii) If the chief executive officers of Holdings
and Cox Parent fail to resolve the objections within ten (10) days after the
objections are referred to them, each Partner shall prepare a brief (a
"Brief"), which includes a summary of the issue, its proposed resolution of the
issue and considerations in support of such proposed resolution, not later than
ten (10) days following the failure of the chief executive officers to resolve
the objections, and the Briefs will be submitted to such reputable and
experienced mediation service as is selected by
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<PAGE> 50
agreement between the Partners or, failing such agreement, by the Chief
Executive Officer (the "Mediator"). During a period of ten (10) days, the
Mediator and the Partners shall attempt to resolve the objections described in
the Budget Objection.
(d) Neither the solicitation by the Managing Partner of
the Non-Managing Partner's comments on each Proposed Budget and Proposed
Business Plan and on each Proposed Change nor the right of the Non-Managing
Partner to give notice of a Budget Objection and to initiate the negotiation
procedures described in Section 5.2(c) will impair or delay the right and
obligation of the Managing Partner to adopt, or the right and obligation of the
Managing Partner and the management of the Partnership to implement, a Budget
and Business Plan and any Proposed Change in accordance with Section 5.2(b)
(regardless whether any objections of the Non-Managing Partner have been
resolved prior to the adoption of such Budget and Business Plan or
implementation of any Proposed Change); provided, however, if the Non-Managing
Partner has given notice of a Budget Objection, the Managing Partner shall not
adopt or cause the management of the Partnership to implement the Budget,
Business Plan or Proposed Change to which the Budget Objection relates until
the conclusion of the negotiation procedures described in Section 5.2(c).
(e) With respect to each Fiscal Year after the first full
Fiscal Year, the Managing Partner shall submit to the Non-Managing Partner a
preliminary draft of the Proposed Budget to be submitted by the Managing
Partner pursuant to Section 5.2(c) at least one hundred twenty (120) days prior
to the start of such Fiscal Year and a final draft of the Proposed Budget to be
submitted by the Managing Partner pursuant to Section 5.2(c) at least ten (10)
Business Days prior to the date on which the chief executive officer of
Holdings is obligated under Section 5.2(c) of the Holdings Partnership
Agreement (taking into account any extensions agreed to by the Holdings
Partners) to submit a proposed annual budget and business plan to the
Partnership Board of Holdings for the fiscal year of Holdings that corresponds
to such Fiscal Year. Such drafts of the Proposed Budget shall be prepared by
the Managing Partner in good faith, but the Managing Partner shall have the
right to modify such drafts in its discretion in preparing the Proposed Budget
to be submitted by it pursuant to Section 5.2(c).
5.3 Employees.
The Managing Partner will appoint the senior management of the
Partnership and will establish policies and guidelines for the hiring of
employees by the Partnership. The Managing Partner may adopt appropriate
management incentive plans and employee benefit plans.
5.4 Limitation of Agency.
The Partners agree not to exercise any authority to act for or to
assume any obligation or responsibility on behalf of the Partnership except (i)
as approved by written agreement between the Partners and (ii) as expressly
provided herein. Neither Partner shall have any authority to act for or to
assume any obligations or responsibility on behalf of the other Partner under
this Agreement except (i) as approved by written agreement between the Partners
and (ii)
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as expressly provided herein. Subject to Section 5.6, in addition to the other
remedies specified herein, each Partner agrees to indemnify and hold the
Partnership and the other Partner harmless from and against any claim, demand,
loss, damage, liability or expense (including reasonable attorneys' fees and
disbursements and amounts paid in settlement, but excluding any indirect,
special or consequential damages) incurred by or against such other Partner or
the Partnership and arising out of or resulting from any action taken by the
indemnifying Partner in violation of this Section 5.4.
5.5 Liability of Partners and Partnership Employees.
No Partner, former Partner or Affiliate of any thereof, no partner,
shareholder, director, officer, employee or agent of any of the foregoing, nor
any officer or employee of the Partnership, shall be liable in damages for any
act or failure to act in such Person's capacity as a Partner or otherwise on
behalf of the Partnership unless such act or omission constituted bad faith,
gross negligence, fraud or willful misconduct of such Person or a violation by
such Person of this Agreement or an agreement between such Person and the
Partnership. Subject to Section 5.6, each Partner, former Partner, Affiliate
of any thereof, each partner, shareholder, director, officer, employee and
agent of any of the foregoing, and each officer and employee of the
Partnership, shall be indemnified and held harmless by the Partnership, or its
receiver or trustee from and against any liability for damages and expenses,
including reasonable attorneys' fees and disbursements and amounts paid in
settlement, resulting from any threatened, pending or completed action, suit or
proceeding relating to or arising out of such Person's acts or omissions in
such Person's capacity as a Partner or (except as provided in Section 5.4)
otherwise involving such Person's activities on behalf of the Partnership,
except to the extent that such damages or expenses result from the bad faith,
gross negligence, fraud or willful misconduct of such Person or a violation by
such Person of this Agreement or an agreement between such Person and the
Partnership. Any indemnity by the Partnership, its receiver or trustee under
this Section 5.5 shall be provided out of and to the extent of Partnership
Property only.
5.6 Indemnification.
Any Person asserting a right to indemnification under Section 5.4 or
Section 5.5 shall so notify the Partnership or the other Partner, as the case
may be, in writing. If the facts giving rise to such indemnification shall
involve any actual or threatened claim or demand by or against a third party,
the indemnified Person shall give such notice promptly (but the failure to so
notify shall not relieve the indemnifying Person from any liability that it
otherwise may have to such indemnified Person hereunder except to the extent
the indemnifying Person is actually prejudiced by such failure to notify). The
indemnifying Person shall be entitled to control the defense or prosecution of
such claim or demand in the name of the indemnified Person, with counsel
satisfactory to the indemnified Person, if it notifies the indemnified Person
in writing of its intention to do so within twenty (20) days of its receipt of
such notice, without prejudice, however, to the right of the indemnified Person
to participate therein through counsel of its own choosing, which participation
shall be at the indemnified Person's expense unless (i) the indemnified Person
shall have been advised by its counsel that use of the same counsel to
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represent both the indemnifying Person and the indemnified Person would present
a conflict of interest (which shall be deemed to include any case where there
may be a legal defense or claim available to the indemnified Person which is
different from or additional to those available to the indemnifying Person), in
which case the indemnifying Person shall not have the right to direct the
defense of such action on behalf of the indemnified Person, or (ii) the
indemnifying Person shall fail vigorously to defend or prosecute such claim or
demand within a reasonable time. Whether or not the indemnifying Person
chooses to defend or prosecute such claim, the Partners shall cooperate in the
prosecution or defense of such claim and shall furnish such records,
information and testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may reasonably be requested in connection
therewith. The indemnifying Person may not control the defense of any claim or
demand that involves any material risk of the sale, forfeiture or loss of, or
the creation of any Lien (other than a judgment lien) on, any material property
of the indemnified Person or could entail a risk of criminal liability to the
indemnified Person, without the consent of such indemnified Person.
The indemnified Person shall not settle or permit the settlement of
any claim or action for which it is entitled to indemnification without the
prior written consent of the indemnifying Person (which shall not be
unreasonably withheld), unless the indemnifying Person shall have been entitled
to assume the defense thereof pursuant to this Section 5.6 but failed to do so
after the notice and in the manner provided in the preceding paragraph.
The indemnifying Person may not without the consent of the indemnified
Person agree to any settlement (i) that requires such indemnified Person to
make any payment that is not indemnified hereunder, (ii) that does not grant a
general release to such indemnified Person with respect to the matters
underlying such claim or action, or (iii) that involves the sale, forfeiture or
loss of, or the creation of any Lien on, any material property of such
indemnified Person. Nothing contained in this Section 5.6 is intended to
authorize the indemnifying Person, in connection with any defense or settlement
as to which it has assumed control, to take or refrain from taking, without the
consent of the indemnified Person, any action that would reasonably be expected
to materially impair the right to indemnification of such indemnified Person
hereunder or would require such indemnified Person to take or refrain from
taking any action or to make any public statement, which such indemnified
Person reasonably considers to affect its interests materially and adversely.
Upon the request of any indemnified Person, the indemnifying Person
shall use reasonable efforts to keep such indemnified Person reasonably
apprised of the status of those aspects of such defense controlled by the
indemnifying Person and shall provide such information with respect thereto as
such indemnified Person may reasonably request. If the defense is controlled
by the indemnified Person, such indemnified Person, upon the request of the
indemnifying Person, shall use reasonable efforts to keep the indemnifying
Person reasonably apprised of the status of those aspects of such defense
controlled by such indemnified Person and shall provide such information with
respect thereto as the indemnifying Person may reasonably request.
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5.7 Temporary Investments.
All Property in the form of cash not otherwise invested shall be
deposited for the benefit of the Partnership in one or more accounts of the
Partnership, or any of its wholly owned Subsidiaries, maintained with such
financial institutions as the Managing Partner shall determine or shall be
invested in accordance with the guidelines set forth in Schedule 5.7 (which
guidelines may be modified from time to time by the Managing Partner), or shall
be left in escrow, and withdrawals shall be made only for Partnership purposes
on such signature or signatures as the Managing Partner may determine from time
to time.
SECTION 6. PARTNERSHIP OPPORTUNITIES;
CONFIDENTIALITY
6.1 Engaging in Wireless Business in the Los Angeles MTA.
For so long as any Person is a Partner, neither such Person nor any of
its Controlled Affiliates shall engage in any Competitive Activity in the Los
Angeles MTA except (i) through the Partnership or (ii) as permitted by Section
6.3. The term "Competitive Activity" means to bid on, acquire or, directly or
indirectly, own, manage, operate, join, control, or finance or participate in
the ownership, management, operation, control or financing of, or to be
connected as a principal, agent, representative, consultant, beneficial owner
of an interest in any Person, or otherwise with, or to use or permit its name
to be used in connection with, any business or enterprise that (i) engages in
the bidding for or acquisition of any Wireless Business license or engages in
any Wireless Business or (ii) provides, offers, promotes or brands services
encompassed by the definition of "Wireless Business."
6.2 Enforceability and Enforcement.
(a) The Partners acknowledge and agree that the time,
scope, geographic area and other provisions of Section 6.1 have been
specifically negotiated by sophisticated parties and agree that such time,
scope, geographic area, and other provisions are reasonable under the
circumstances. If, despite this express agreement of the Partners, a court
should hold any portion of Section 6.1 to be unenforceable for any reason, the
maximum restrictions of time, scope and geographic area reasonable under the
circumstances, as determined by the court, will be substituted for the
restrictions held to be unenforceable.
(b) Each Partner shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages or
posting any bond or other security, to prevent a breach by the other Partner or
any of its Controlled Affiliates of Section 6.1, which rights shall be
cumulative and in addition to any other rights or remedies to which the Partner
may be entitled.
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6.3 General Exceptions to Section 6.1.
The restrictions set forth in Section 6.1 on Competitive Activities
shall not be construed to prohibit any of the following actions by a Partner or
any of its Controlled Affiliates except to the extent any such action would (i)
cause the Partnership (including the ownership of its assets and the conduct of
its business) to be in violation of any law or regulation or otherwise result
in any restriction or other limitation on the Partnership's ownership of its
assets or conduct of its business or (ii) in any way impair, prevent or delay
the ability of the Partnership to hold, utilize or maintain the License:
(a) The acquisition or ownership of any debt or equity
securities of a Publicly Held Person that (i) were not acquired from the issuer
thereof in a private placement or similar transaction, (ii) do not represent
more than five percent (5%) of the aggregate voting power of the outstanding
capital stock of any Person that engages in a Competitive Activity in the Los
Angeles MTA (assuming the conversion, exercise or exchange of all such
securities held by such Partner or its Controlled Affiliates that are
convertible, exercisable or exchangeable into or for voting stock) and (iii) in
the case of debt securities, entitle the holder to receive only interest or
other returns that are fixed, or vary by reference to an index or formula that
is not based on the value or results of operations of such Person;
(b) The acquisition (through merger, consolidation,
purchase of stock or assets, or otherwise) of a Person or an interest in a
Person, which engages (directly or indirectly through an Affiliate that is
controlled by such Person) in any Competitive Activity in the Los Angeles MTA
if either (i) such acquisition results from a foreclosure or equivalent action
with respect to debt securities permitted to be held under Section 6.3(a) or
(ii) the Competitive Activity in the Los Angeles MTA does not constitute the
principal activity, in terms of revenues or fair market value, of the
businesses acquired in such acquisition or conducted by the Person in which
such interest is acquired; provided, in each case, that such Partner or
Controlled Affiliate divests itself of the Competitive Activity in the Los
Angeles MTA or interest therein as soon as is practicable, but in any event
within twenty-four (24) months, after the acquisition;
(c) The continued holding of an equity interest in a
Person that commences to engage in a Competitive Activity in the Los Angeles
MTA following the acquisition of such equity interest if neither the Partner
nor its Controlled Affiliate has any responsibility or control over the conduct
of such Competitive Activity, does not permit its name to be used in connection
with such Competitive Activity and uses all commercially reasonable efforts,
including voting its equity interest, to cause such Person either to cease such
Competitive Activity or, if permitted by applicable law, to enter into an
affiliation agreement with respect to such Competitive Activity with the
Partnership on terms and conditions comparable to those that the Partnership
offers to other affiliated Persons engaged in a Wireless Business in similar
situations (or, if no such agreement then exists, such terms and conditions
shall include a provision for competitive pricing), pursuant to which such
Person will provide its services to the public as an affiliate of the
Partnership's wireless network;
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<PAGE> 55
(d) The conduct of any Competitive Activity in the Los
Angeles MTA involving the provision of any product or service that is an
ancillary value-added addition to a Wireless Business and which does not itself
require an FCC license (including operator services, location services and
weather, sports and other information services);
(e) The conduct by a Partner or any of its Controlled
Affiliates of any Competitive Activity in the Los Angeles MTA that is a
necessary component of or an incidental part of the conduct of a business other
than a Wireless Business or the entering into by a Partner or any of its
Controlled Affiliates of an arrangement with an independent third party for the
provision of any services that are a necessary component of or an incidental
part of the conduct of a business other than a Wireless Business, so long as,
in each case, the Partner or its Controlled Affiliate first uses all
commercially reasonable efforts to negotiate agreements with the Partnership,
which are reasonable in the independent judgment of both Partners, pursuant to
which the Partnership would provide such services on terms no less favorable to
the Partner or its Controlled Affiliate than the Partner or its Controlled
Affiliate could obtain from an independent third party or could provide itself;
(f) Prior to the License Contribution Date, the ownership
by Cox Parent of the License and the System Assets and, subject to Section 8.7,
the operation by Cox California of a PCS system in the Los Angeles MTA using
the License; and
(g) The conduct by any Partner or its Controlled
Affiliates of any Competitive Activity, either directly or indirectly through
an ownership interest in and/or other relationship with any other Person, where
such Competitive Activity involves the provision of any product or service on a
regional or national basis and (i) the provision of such product or service in
the Los Angeles MTA does not constitute a material portion, in terms of
revenues or fair market value, of such Competitive Activity as conducted by the
Partner or other Person on a regional or national basis, and (ii) such
Competitive Activity is not conducted in a material portion, in terms of
population, of the Los Angeles MTA.
(h) The conduct by the Non-Managing Partner (or the
Managing Partner if such Competitive Activity was commenced at a time when the
Managing Partner was the Non- Managing Partner) or its Controlled Affiliates of
services encompassed within the definition of "Wireless Business" on a resale
basis in geographic areas where neither the Partnership nor any of its
Subsidiaries is then providing, offering, promoting or branding such services
and, in the reasonable judgment of such Partner, such Partner or its Controlled
Affiliate must offer in such geographic area such services in a package with
other products and services of such Partner or its Controlled Affiliates in
order to compete with an actual or anticipated initiative by a service provider
that is not a Controlled Affiliate of such Partner; provided in each case that
such Partner or its Controlled Affiliate must (x) first offer, or cause to be
offered, to the Partnership the opportunity to be the provider of such services
on terms no less favorable to the Partnership than those made available to such
Partner or its Controlled Affiliate and (y) use its commercially reasonable
efforts to insure that any provision of such services is in accordance with the
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<PAGE> 56
Partnership's technical requirements in a manner that would facilitate the
transition of such business to the Partnership. At such time as the
Partnership commences providing, offering, promoting or branding services
encompassed within the definition of "Wireless Business" within such geographic
area, such Partner shall, promptly following its receipt of written notice from
the Partnership, offer, or cause its Controlled Affiliate to offer, to Transfer
to the Partnership such Partner's or its Controlled Affiliate's business of
providing such services in such geographic area, and (at the Partnership's
option) to Transfer, lease or otherwise make available (at the election of such
Partner or its Controlled Affiliate) to the Partnership the assets that are
utilized in the provision of such services, such offer in each case to be at a
price equal to the costs that the Partnership would incur to achieve a like
business, including the costs associated with the creation or acquisition of
the customer base of such business and the replacement cost of any assets so
Transferred, leased or otherwise made available.
(i) The conduct by Holdings and its Controlled Affiliates
of the business of reselling paging services as such business is conducted on
the date of this Agreement or as Holdings contemplates conducting such business
on the date of this Agreement under the provisions of the Paging Sales Agency
resolution adopted by the Partnership Board of Holdings on January 11, 1996.
Notwithstanding anything to the contrary in this Section 6, any investment fund
in which a Partner or any of its Affiliates has an investment (including
pension funds) that invests funds on behalf of, and has a fiduciary duty to,
third party investors shall be permitted to engage in or invest in entities
engaged in any activity whatsoever so long as such Partner and its Controlled
Affiliates do not, directly or indirectly, exercise any management or
operational control whatsoever in any such entity engaging in a Competitive
Activity.
6.4 Freedom of Action.
Except as set forth in this Section 6, no Partner or Affiliate of a
Partner shall have any obligation not to (i) engage in the same or similar
activities or lines of business as the Partnership or develop or market any
products or services that compete, directly or indirectly, with those of the
Partnership, (ii) invest or own any interest publicly or privately in, or
develop a business relationship with, any Person engaged in the same or similar
activities or lines of business as, or otherwise in competition with, the
Partnership, (iii) do business with any client or customer of the Partnership,
or (iv) employ or otherwise engage a former officer or employee of the
Partnership.
6.5 Confidentiality.
(a) Maintenance of Confidentiality. Each Partner and its
Controlled Affiliates and the Partnership (each a "Restricted Party") shall,
shall cause their respective officers and directors (in their capacity as such)
to, and shall take all reasonable measures to cause their respective employees,
attorneys, accountants, consultants and other agents and advisors
(collectively, and together with their respective officers and directors,
"Agents") to, keep secret
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and maintain in confidence all confidential and proprietary information and
data of the Partnership and the other Partner or their Affiliates disclosed to
it in connection with the formation of the Partnership and the conduct of the
Partnership's business (the "Confidential Information") and shall not, shall
cause their respective officers and directors not to, and shall take all
reasonable measures to cause their respective other Agents not to, disclose
Confidential Information to any Person other than the Partners, their
Controlled Affiliates and their respective Agents that need to know such
Confidential Information, or the Partnership. Each Partner further agrees that
it shall not use the Confidential Information for any purpose other than
monitoring and evaluating its investment, determining and performing its
obligations and exercising its rights under this Agreement. The Partnership
and each Partner shall take all reasonable measures necessary to prevent any
unauthorized disclosure of the Confidential Information by any of their
respective Controlled Affiliates or any of their respective Agents. The
measures taken by a Restricted Party to protect Confidential Information shall
not be deemed unreasonable if the measures taken are at least as strong as the
measures taken by the disclosing party to protect such Confidential
Information.
(b) Permitted Disclosures. Nothing herein shall prevent
any Restricted Party or its Agents from using, disclosing, or authorizing the
disclosure of Confidential Information it receives in the course of the
business of the Partnership which:
(i) has been published or is in the public
domain, or which subsequently comes into the public domain, through no fault of
any Restricted Party or Agent (each, a "Receiving Party");
(ii) prior to receipt hereunder (or under Section
6.6 of the Holdings Partnership Agreement or Section 6.6 of the WirelessCo
Partnership Agreement) was properly within the legitimate possession of the
Receiving Party or, subsequent to receipt hereunder (or under such agreement),
is lawfully received from a third party having rights therein without
restriction of the third party's right to disseminate the Confidential
Information and without notice of any restriction against its further
disclosure;
(iii) is independently developed by the Receiving
Party through Persons that have not had, either directly or indirectly, access
to or knowledge of such Confidential Information;
(iv) is disclosed to a third party with the
written approval of the party originally disclosing such information; provided
that such Confidential Information shall cease to be confidential and
proprietary information covered by this Agreement only to the extent of the
disclosure so consented to;
(v) subject to the Receiving Party's compliance
with Section 6.5(d), is required to be produced under order of a court of
competent jurisdiction or other similar requirements of a Governmental
Authority; provided that such Confidential Information to the
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<PAGE> 58
extent covered by a protective order or its equivalent shall otherwise continue
to be Confidential Information required to be held confidential for purposes of
this Agreement; or
(vi) subject to the Receiving Party's compliance
with Section 6.5(d), is required to be disclosed by applicable law or a stock
exchange or association on which such Receiving Party's securities (or those of
its Affiliate) are listed.
(c) Notwithstanding this Section 6.5, either Partner may
provide Confidential Information (i) to any other Person considering the
acquisition (whether directly or indirectly) of all or a portion of such
Partner's Interest pursuant to Section 13 of this Agreement, (ii) to any other
Person considering the consummation of a Permitted Transaction with respect to
such Partner or (iii) to any financial institution in connection with
borrowings from such financial institution by such Partner or any of its
Controlled Affiliates, so long as prior to any such disclosure such other
Person or financial institution executes a confidentiality agreement that
provides protection substantially equivalent to the protection provided the
Partners and the Partnership in this Section 6.5.
(d) In the event that any Receiving Party (i) must
disclose Confidential Information in order to comply with applicable law or the
requirements of a stock exchange or association on which such Receiving Party's
securities or those of its Affiliates are listed or (ii) becomes legally
compelled (by oral questions, interrogatories, requests for information or
documents, subpoenas, civil investigative demands or otherwise) to disclose any
Confidential Information, the Receiving Party shall provide the disclosing
party with prompt written notice so that in the case of clause (i), the
disclosing party can work with the Receiving Party to limit the disclosure to
the greatest extent possible consistent with legal obligations, or in the case
of clause (ii), the disclosing party may seek a protective order or other
appropriate remedy or waive compliance with the provisions of this Agreement.
In the case of clause (ii), (A) if the disclosing party is unable to obtain a
protective order or other appropriate remedy, or if the disclosing party so
directs, the Receiving Party shall, and shall cause its employees to, exercise
all commercially reasonable efforts to obtain a protective order or other
appropriate remedy at the disclosing party's reasonable expense, and (B)
failing the entry of a protective order or other appropriate remedy or receipt
of a waiver hereunder, the Receiving Party shall furnish only that portion of
the Confidential Information that it is advised by opinion of its counsel is
legally required to be furnished and shall exercise all commercially reasonable
efforts to obtain reliable assurance that confidential treatment shall be
accorded such Confidential Information, it being understood that such
reasonable efforts shall be at the cost and expense of the disclosing party
whose Confidential Information has been sought.
(e) The obligations under this Section 6.5 shall survive
for a period of two (2) years from (i) as to both Partners and their respective
Controlled Affiliates, the termination of the Partnership, and (ii) as to
either Partner and its Controlled Affiliates, such Partner's withdrawal
therefrom (or otherwise ceasing to be a Partner); provided that such
obligations shall continue indefinitely with respect to any trade secret or
similar information that is proprietary to the Partnership and provides the
Partnership with an advantage over its competitors.
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(f) All references in this Section 6.5 to the Partnership
shall, unless the context otherwise requires, be deemed to refer also to any
Subsidiary of the Partnership.
SECTION 7. ROLE OF EXCLUSIVE LIMITED
PARTNERS
Except as otherwise provided in this Agreement, an Exclusive Limited
Partner shall not have any right or power to take part in the management or
control of the Partnership or its business and affairs or to act for or bind
the Partnership in any way.
SECITON 8. TRANSACTIONS WITH PARTNERS;
CERTAIN ADDITIONAL AGREEMENTS
8.1 Transactions with Partners.
(a) Sprint Brand License Agreement. Immediately
following the execution and delivery of this Agreement, the Partnership shall
enter into a brand license agreement with Sprint Communications Company, L.P.,
a Delaware limited partnership (the "Trademark License") to provide the
Partnership with a license to use the Sprint Brand in connection with the
conduct of the Partnership's business, in the form attached as Exhibit 8.1(a).
During the term of the Trademark License, the Partnership's products and
services will be offered, promoted and packaged solely under the Licensed Mark
(as defined in the Trademark License), except that products and services of the
Partnership bearing the Licensed Mark may be included in a package with any
products or services offered, promoted or packaged by a Partner or Holdings
Partner or their respective Controlled Affiliates (whether such package is
offered by any Partner or Holdings Partner or any of their respective
Controlled Affiliates or by any of their respective sub-agents or distributors)
that bear a mark or brand other than the Licensed Mark. To the extent
authorized by Sprint Communications Company, L.P. under the Trademark License
or otherwise, any products and services that are offered, promoted or packaged
by a Person other than the Partnership or any Subsidiary of the Partnership
pursuant to an affiliation agreement with the Partnership (including an
affiliation agreement entered into pursuant to Section 6.3(c)) will be offered,
promoted and packaged solely under the Licensed Mark.
(b) Affiliation Agreement. Immediately following the
execution and delivery of this Agreement, the Partnership shall enter into an
affiliation agreement with Sprint Spectrum L.P. to provide for the affiliation
of the Partnership with Sprint Spectrum L.P. and Sprint Spectrum L.P.'s
national wireless network, in the form attached as Exhibit 8.1(b).
(c) Leased Employees.
(i) The Managing Partner, on behalf of the
Partnership, will undertake to establish policies and arrangements for the
Partnership with respect to the hiring, compensation, supervision, instruction,
management and administration of employees, including
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employee benefit plans, as soon as practicable after the date of this
Agreement. In order to permit the Partnership to operate its business in a
proper and efficient manner prior to the time that the Partnership has
established and implemented such policies and arrangements, Cox California will
(A) employ and make available to the Partnership employees of Cox California
who are capable of performing the duties required by the Partnership, (B) hire,
supervise, instruct, discharge and otherwise manage those employees and (C)
administer employee benefit plans applicable to those employees, all in
accordance with this Section 8.1(c). The obligations of Cox California under
this Section 8.1(c) shall terminate on a date to be specified by the
Partnership on thirty (30) days' written notice to Cox California, after the
Partnership has established and implemented, in its discretion, employment
policies and arrangements with respect to the hiring, compensation,
supervision, instruction, management and administration of employees, including
employee benefit plans (the "Leased Employment Termination Date").
(ii) Prior to the Leased Employment Termination
Date, Cox California shall lease to the Partnership those employees who will
perform services with respect to the business of the Partnership, including
those persons employed by Cox California on the date of this Agreement and all
replacements for and additions to such persons and less any such persons whose
employment by Cox California terminates prior to the Leased Employment
Termination Date (all such persons, collectively, the "Leased Employees"), for
the purpose of operating the business of the Partnership. The number of Leased
Employees shall be determined from time to time by the Partnership. The
Partnership shall have the right, from time to time and at any time, in its
discretion, and for any reason whatsoever, to discontinue the services of any
Leased Employee under this Section 8.1(c), but shall have no right to terminate
Cox California's employment of any Leased Employee. In addition, the
Partnership shall have the right, in its discretion, to approve in advance any
individual whom Cox California desires to designate as an additional or
replacement Leased Employee. The Partnership shall have the right to control
the general scope, manner, and method of activities of the Leased Employees,
which shall be directed in writing to Cox California. Cox California shall
have the right at any time to terminate the status of any employee as a Leased
Employee (either upon the termination of such employee's employment by Cox
California or the assignment to such employee of duties not relating to the
business of the Partnership) if it makes available to the Partnership a
substitute Leased Employee acceptable to the Partnership to replace the
employee whose status as a Leased Employee was terminated.
(iii) Notwithstanding the services provided by the
Leased Employees to the Partnership, the parties acknowledge and agree that Cox
California is and shall remain the sole employer of the Leased Employees until
the Leased Employment Termination Date, and, subject to the provisions of this
Agreement, shall be responsible for the employment and training of all the
Leased Employees and for the payment of salaries, wages, benefits (including
health insurance, retirement, and other similar benefits, if any) and other
compensation applicable to the Leased Employees, subject to reimbursement by
the Partnership in accordance with
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Section 8.1(c)(iv). Cox California shall be responsible for the payment of all
Federal, state, and local withholding taxes on the compensation of the Leased
Employees and other such employment related taxes, subject to reimbursement by
the Partnership in accordance with Section 8.1(c)(iv). The Partnership will
cooperate with Cox California to facilitate Cox California's compliance with
applicable Federal, state, and local laws, rules, regulations, and ordinances
applicable to the employment of the Leased Employees by Cox California, and
their services under this Agreement.
(iv) The Partnership will reimburse Cox California
for all costs and expenses that are incurred by Cox California directly in
connection with its employment of the Leased Employees pursuant to this Section
8.1(c) (other than any such costs and expenses that constitute Qualified
Pre-Operating Expenses, Research and Experimental Expenditures or Start-Up
Expenditures), including:
(A) salaries, wages, bonuses and severance
payments made to Lease Partners, for services performed for the Partnership,
and contributions for benefits and costs accrued with respect to benefits under
Cox California's employee benefit plan packages, allocable to periods during
which the Leased Employees performed services for the Partnership;
(B) any additional compensation or payments
required under applicable law to be made by Cox California to or with respect
to Leased Employees allocable to periods during which the Leased Employees
performed services for the Partnership (including legally mandated severance
payments in connection with the termination of any Leased Employee, except for
any severance pay due as a result of Cox California's failure to provide Leased
Employees with timely notice of the termination of their employment under the
Worker Readjustment and Retraining Act ("WARN") or any applicable state
equivalent to WARN);
(C) any legally mandated unemployment,
worker's compensation or other insurance with respect to a Leased Employee and
costs relating to any unemployment, worker's compensation, wrongful termination
or discrimination claims with respect to a Leased Employee, allocable to
periods during which the Leased Employee performed services for the
Partnership; and
(D) expenses directly incurred in connection
with Cox California's performance under this Agreement for Leased Employees'
travel, professional fees, office supplies, office equipment, rent, telephone,
postage, meals and entertainment, cafeteria supplies, similar miscellaneous
office expenses directly related to the Leased Employees' services for the
Partnership.
(v) Cox California shall give the Partnership a
credit equal to the amount of any costs savings or refunds to Cox California
resulting from the forfeiture by any Leased Employee of any employee benefits
the costs of which were reimbursed to Cox California by the Partnership
pursuant to this Section 8.1(c).
(d) Preferred Provider. The Partnership shall contract
with each Partner, each Holdings Partner, their respective Affiliates and third
parties, as appropriate, on a negotiated arms-length basis, for services it may
require, which may include billing and information
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systems and marketing and sales services. The Partnership may in the normal
course of its business enter into any transaction with a Partner or any of its
Affiliates, so long as (i) the Managing Partner has determined that the price
and other terms of such transaction are fair to the Partnership and are not
less favorable to the Partnership than those generally prevailing with respect
to comparable transactions involving non-Affiliates of Partners and (ii) the
transaction has been approved pursuant to Section 8.2(a). The Partnership is
expressly authorized to enter into the agreements expressly referred to in this
Section 8.1.
(e) Access to Technical Information. Subject to the
provisions of Section 6 and Section 11.4 of this Agreement and to applicable
confidentiality restrictions, the Partnership shall grant to each Partner and
its Controlled Affiliates access to Technical Information of the Partnership
("Partnership Technical Information"). Such access shall be granted at such
reasonable times and locations and on such other reasonable terms as the
Managing Partner may approve, subject to Section 8.2(a). Subject to Section 6
and, in the case of rights to use Technical Information that have been licensed
to the Partnership, to the terms and conditions contained in the related
license to the Partnership, the Partnership shall grant to any such Partner or
its Controlled Affiliate a license to use any Partnership Technical Information
to which it is granted access pursuant to this Section 8.1(e) (and to make
copies thereof at such Partner's expense), which license shall provide for
royalties and fees and other terms and conditions that are generally prevailing
with respect to comparable transactions involving unrelated third parties and
are at least as favorable to such Partner or its Controlled Affiliate as those
generally prevailing with respect to comparable licenses (if any) granted to
non-Affiliates of Partners. The rights of access granted pursuant to this
Section 8.1(e) shall be subject to the pre-existing rights of any third party
to such Partnership Technical Information.
(f) Support By Partners of Holdings. Concurrently with
the execution and delivery of this Agreement, each of Cox Communications, Inc.,
Comcast Corporation, Tele-Communications, Inc., and Sprint Corporation has
executed and delivered to the Partnership an agreement, in the form attached as
Exhibit 8.1(f), pursuant to which each such company has agreed, to the extent
permitted by applicable law, to cause each of its Controlled Affiliates that
provides cable television or local exchange telephone service and to use
commercially reasonable efforts to cause each of its other Affiliates that
provides cable television or local exchange telephone service to provide
appropriate services to the Partnership in support of the Partnership's conduct
of its Wireless Business in the Los Angeles MTA. Such services may include
antenna sites and/or strand mounting of RF and transmission equipment owned by
the Partnership or any Affiliate of the Partnership, and transmission
facilities between cell sites and designated switching locations. Services
also may include provision of primary power, standby power and maintenance.
Pricing of the foregoing services will be negotiated at a local level and is
expected to reflect all relevant costs plus a reasonable return.
(g) FCC Action.
(i) If a change in FCC policy or rules makes it
necessary to obtain the approval or consent of the FCC for the implementation,
continuation or further effectuation of
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any term or provision of this Agreement, the Partners shall use all
commercially reasonable efforts to diligently prepare, file and prosecute
before the FCC all petitions, waivers, construction applications, amendments,
rulemaking comments and other related documents necessary to secure and/or
retain such approval of or consent to all aspects of this Agreement or
conformance with FCC rules or regulations. Each Partner shall bear its own
costs incurred in connection with the preparation of such documents and
prosecution of such actions, including attorneys' and filing fees.
Notwithstanding any provision in this Agreement to the contrary, the Partners
acknowledge and agree that no filing shall be made with the FCC by the
Partnership or either Partner with respect to this Agreement unless both
Partners have reviewed such filing and consented to its submission, which
consent shall not be unreasonably withheld.
(ii) In the event the FCC determines that
consummation of the transactions contemplated under this Agreement is
inconsistent with the terms and conditions of the License or is otherwise
contrary to FCC policies, rules and regulations, or if regulatory or
legislative action subsequent to the date hereof alters the permissibility of
the consummation of the transactions contemplated under this Agreement under
the FCC's rules or other applicable law, rules or regulations, the Partners
shall use all commercially reasonable efforts to renegotiate this Agreement in
good faith and to enter into such amendments to this Agreement and such
additional agreements as may be necessary to preserve to the extent reasonably
possible the economic and commercial effects of the transactions contemplated
under this Agreement.
(h) LeasingCo. On the date of this Agreement, the
Partnership and Holdings shall enter into the Agreement of Limited Partnership
of LeasingCo, in the form attached as Exhibit 8.1(h).
(i) Sales Agency.
(i) The Holdings Partners will be non-exclusive
commission sales agents for the Partnership's products and services pursuant to
agency agreements that conform to the provisions of this Section 8.1(i) and are
otherwise in form and substance reasonably satisfactory to the parties thereto.
The agency agreements will provide that all of the Partnership's products and
services will be made available to each of the Holdings Partners to offer,
promote and package. The sales agency agreements referenced in this Section
8.1(i) will include appropriate customer and territorial restrictions.
(ii) Commissions payable to the Holdings Partners
under sales agency agreements for the Partnership's products and services will
be not less favorable to the agent than those for comparable agency
arrangements (considering churn, marketing support provided by agent, etc.) of
the Partnership with third parties, irrespective of volume. Commissions will
be paid on the basis of net customer growth (i.e., after taking into account
churn) and in the case of a sale to an existing customer will only be paid on
the basis of incremental sales revenue from such customer resulting from such
sale, if any.
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8.2 Additional Agreements of the Partners.
(a) Interested Party Transactions. As used in this
Agreement, an "Interested Party Decision" is any decision to enter into, amend,
terminate or abandon any contract, agreement, relationship or transaction
between the Partnership or any of its Subsidiaries, on the one hand, and the
Managing Partner or any Person in which the Managing Partner (or any of its
Controlled Affiliates) has a direct or indirect material financial interest or
which has a direct or indirect material financial interest in the Managing
Partner, on the other hand, any determination whether there has been a breach
of any such contract, agreement, relationship or transaction, or any decision
to exercise, waive or release any rights of the Partnership with respect
thereto. Any Interested Party Decision shall be made by the Managing Partner
on behalf of the Partnership only with the approval of the Non-Managing Partner
to the extent provided in Section 5.1(d), after full disclosure to the
Non-Managing Partner of all material facts relating to such matter. For
purposes of this Section 8.2(a),
(i) a Person shall not be deemed to have a
material financial interest in a Partner solely as a result of its ownership of
less than 10% (by value) of the outstanding economic interests in a Publicly
Held Parent of such Partner or a Publicly Held Intermediate Subsidiary of such
Parent; and
(ii) neither CPP nor any Controlled Affiliate of
CPP shall be deemed to have a material financial interest in Holdings or any of
its Subsidiaries.
(b) Foreign Ownership.
(i) For purposes of this Section 8.2(b):
(A) "Foreign Ownership Restriction" means
any federal law or regulation restricting the amount of ownership or voting
control that may be held by non-citizens of the United States in holders of
licenses or other authorizations issued by the FCC or in Persons controlling
such holders (including 47 U.S.C. Section 310(b) and the rules and regulations
promulgated thereunder by the FCC).
(B) "Foreign Ownership Threshold" means the
maximum amount of foreign ownership or foreign voting control of the
Partnership that is permitted by any Foreign Ownership Restriction applicable
to the Partnership, less the amount of foreign ownership or foreign voting
control of the Partnership that is attributable from any Person other than a
Partner.
(C) A Partner's "Attribution Cap" equals the
product of the Percentage Interest of such Partner times the Foreign Ownership
Threshold.
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(ii) Subject to Section 8.2(b)(iii), no Partner
shall cause or permit the amount of foreign ownership or foreign voting control
attributable to the Partnership from such Partner and its Controlled Affiliates
(determined in accordance with the method of attribution prescribed in the
applicable Foreign Ownership Restrictions) to exceed the Attribution Cap of
such Partner, increased by any portion of the other Partner's applicable
Attribution Cap that the other Partner has authorized such Partner to use for
purposes of determining compliance with this Section 8.2(b)(ii), and decreased
by any portion of such Partner's applicable Attribution Cap that such Partner
has authorized the other Partner to use for purposes of determining compliance
with this Section 8.2(b)(ii).
(iii) So long as a Partner and its Controlled
Affiliates are using their respective commercially reasonable efforts to cause
the amount of foreign ownership and foreign voting control attributable to the
Partnership from such Partner and its Controlled Affiliates to be reduced below
the maximum amount permitted by Section 8.2(b)(ii) (without regard to this
Section 8.2(b)(iii)), such Partner shall not be deemed to be in violation of
its covenant in Section 8.2(b)(ii) until the earlier of:
(A) such time as the aggregate amount of
foreign ownership or foreign voting control attributable to the Partnership
(including the foreign ownership and foreign voting control attributable from
such Partner and its Controlled Affiliates) exceeds ninety percent (90%) of the
Foreign Ownership Threshold, or
(B) thirty (30) days after such Partner
receives written notice from the other Partner that the other Partner or any of
its Controlled Affiliates desires to engage in any transaction permitted by
Section 8.2(b)(ii) that, if consummated, would cause the aggregate amount of
foreign ownership or foreign voting control attributable to the Partnership to
exceed ninety percent (90%) of the Foreign Ownership Threshold if the foreign
ownership attributable to the Partnership from such Partner and its Controlled
Affiliates continued to exceed the maximum amount permitted by Section
8.2(b)(ii).
(iv) Any authorization by one Partner to the other
Partner of the right to use any portion of the authorizing Partner's applicable
Attribution Cap for purposes of determining compliance with Section 8.2(b)(ii)
shall be evidenced by a written instrument.
(c) Advice of Changes in Government Filings; Petitions to
Deny. Each Partner promptly shall advise the other Partner in writing of any
change or event known to such Partner having or which, insofar as such Partner
can reasonably foresee, could have a material adverse effect on the ability of
CPP to hold or use the License or to contribute the License to the Partnership,
or on the right of the Partnership to hold or use the License following such
contribution. Each Partner promptly shall provide the other Partner with
copies of all filings made by it (or made by the Partnership while such Partner
is the Managing Partner) or any of its Controlled Affiliates with any
Governmental Authority in connection with the License. Each Partner promptly
shall provide the other Partner with copies of all petitions to deny or similar
petitions with the FCC or any other Governmental Authority by any Person
challenging or
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<PAGE> 66
questioning the right of the Partnership to hold or use the License or
otherwise in connection with this Agreement and the transactions contemplated
hereunder.
(d) BOC. Each Partner agrees that neither it nor any of
its Controlled Affiliates shall take any action that causes such Partner to
become a BOC.
8.3 Certain Additional Agreements.
(a) Subject to Section 8.3(c), (i) prior to the License
Contribution Date, neither CPP nor any of its Controlled Affiliates will take
any action or knowingly fail to take any action (including actions relating to
the initial buildout of the Partnership's PCS system) within its control that
would result in the revocation of CPP's right to hold or use the License or in
the prohibition of CPP's contribution of the License to the Partnership, and
(ii) following the License Contribution Date, neither CPP or Holdings, nor any
of their respective Controlled Affiliates, will take any action or knowingly
fail to take any action (including actions relating to the initial buildout of
the Partnership's PCS system) that would result in the revocation of the
Partnership's right to hold or use the License.
(b) Subject to Section 8.3(c), after the License
Contribution Date, CPP, as Managing Partner, shall cause the Partnership to
satisfy the construction requirements applicable to the five-year buildout
period specified in Section 24.203(a) of the FCC rules and regulations with
respect to the Los Angeles MTA on or before December 14, 1997.
(c) CPP shall not be in breach of its covenants in
Section 8.3(a) or Section 8.3(b) and Holdings shall not be in breach of its
covenants in Section 8.3(a) to the extent that the revocation of CPP's right to
hold or use the License, the prohibition of CPP's contribution of the License
to the Partnership, the revocation of the Partnership's right to hold or use
the License or the Partnership's failure to satisfy the initial buildout
requirement under the License on or before December 14, 1997, as applicable,
resulted from (i) insufficient capital (but only if such Partner has made all
Capital Contributions required to be made by it pursuant to this Agreement),
(ii) any FCC order or any other injunction issued by any Governmental Authority
impeding the Partnership's construction of its PCS system, (iii) the failure of
any Governmental Authority to grant any consent, approval, waiver or
authorization or any delay on the part of any Governmental Authority in
granting any consent, approval, waiver or authorization, (iv) the failure of
any vendor to deliver timely any equipment or (v) any act of God, act of war or
insurrection, riot, fire, accident, explosion, labor unrest, strike, civil
unrest, work stoppage, condemnation or any similar cause or event not
reasonably within the control of CPP or Holdings, as applicable.
(d) Cox Parent and the Partnership shall file with the
FCC within ten (10) Business Days after the date of this Agreement an
application for the pro forma transfer of the license to the Partnership. CPP
and Holdings shall use their respective diligent efforts to obtain all
consents, approvals, waivers and authorizations of any Governmental Authority
(including
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<PAGE> 67
the FCC) required to be obtained in connection with the contribution of the
License to the Partnership.
(e) CPP shall file with the FCC appropriate documentation
demonstrating the Partnership's satisfaction of the construction requirements
applicable to the five-year buildout period specified in Section 24.203(a) of
the FCC rules and regulations within ten (10) days after the date on which the
Partnership satisfies such construction requirements.
(f) CPP shall use commercially reasonable efforts to
cause any expenses that are to be incurred in connection with the business of
the Partnership on or after the date of this Agreement and on or before the
earlier of the License Contribution Date or December 31, 1996 to be incurred by
the Partnership instead of by Cox Parent or a Subsidiary of Cox Parent.
8.4 Parent Undertaking.
Simultaneously with the execution and delivery of this Agreement, Cox
Parent has executed and delivered to Holdings a Parent Undertaking.
8.5 Cooperation on Transactions With Vendors.
Holdings and the Partnership will cooperate with each other in a
commercially reasonable manner to structure arrangements whereby (a) Holdings
and its Subsidiaries and the Partnership would, to the extent permitted by
applicable law and regulation, coordinate their respective buying and financing
efforts from third-party vendors in a manner that makes the benefits of such
coordinated efforts available to the Partnership in making and financing
purchases of equipment and materials that are required for the accomplishment
of the purposes of the Partnership, and (b) Holdings and its Subsidiaries would
pass through to the Partnership a pro rata portion (based on the projected
dollar amount of their respective purchases of equipment and materials) of the
benefits of any financing from a third-party vendor to the extent that,
notwithstanding the coordinated efforts of Holdings and its Subsidiaries and
the Partnership pursuant to this Section 8.5, the benefits of such financing
are directly available from such third-party vendor to Holdings and its
Subsidiaries but not to the Partnership.
8.6 Holdings's Right to Investigate Qualified Pre-Operating
Expenses, Research and Experimental Expenditures and Start-Up
Expenditures; Arbitration of Disputes.
(a) CPP and its Controlled Affiliates shall, upon
reasonable advance notice, give Holdings and its counsel, accountants and other
authorized representatives reasonable access to the books, records, contracts
and documents relating to the System Assets, the Qualified Pre-Operating
Expenses, the Research and Experimental Expenditures and the Start-Up
Expenditures for the purpose of investigating and auditing the amount and
timing of payment of Qualified Pre-Operating Expenses, Research and
Experimental Expenditures and Start-Up Expenditures, and will, upon reasonable
advance notice, furnish or cause to be furnished to Holdings or its authorized
representatives any information with respect to the Qualified Pre-Operating
Expenses,
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Research and Experimental Expenditures and Start-Up Expenditures that Holdings
may reasonably request.
(b) If the System Assets are contributed to the
Partnership pursuant to Section 2.2(b)(i) and, following Holdings's
investigating and auditing of the amount of the Qualified Pre-Operating
Expenses, Research and Experimental Expenditures and Start-Up Expenditures
pursuant to Section 8.6(a), Holdings disputes CPP's determination of the amount
of Qualified Pre-Operating Expenses, Research and Experimental Expenditures and
Start-Up Expenditures, CPP and Holdings shall use good faith efforts to resolve
such dispute as soon as practicable. If CPP and Holdings are unable to resolve
such dispute within sixty (60) days following the License Contribution Date,
CPP and Holdings shall jointly designate an independent certified public
accountant to resolve the dispute. The accountant's resolution of the dispute
shall be final and binding on the Partners. Any fees or expenses of this
accountant shall be paid by the Partnership.
8.7 Management of PCS System Before License Contribution Date.
If the License Contribution Date has not occurred on or prior to the
date on which the Partnership plans to commence commercial operations of the
PCS system to be operated under the License, then, subject to applicable law,
until the License Contribution Date, (a) Cox California shall be permitted to
engage in the business of operating the PCS system to be operated under the
License, (b) the Partnership will make available for use by Cox California any
assets of the Partnership constituting part of such PCS system, (c) the
Partnership will manage the business of operating such PCS system, (d) the
Partnership will be responsible for all costs and expenses attributable to the
operations of such PCS system, (e) as consideration for making its assets
available to Cox California and for its management of the PCS system, the
Partnership will be entitled to receive and retain all revenues attributable to
the operations of the PCS system and (f) operation of such PCS System by Cox
California will be in accordance with the terms and conditions of the
affiliation agreement described in Section 8.1(b), except that the Partnership
shall be responsible for all payments due to Sprint Spectrum L.P. thereunder.
The Partnership and Cox California will negotiate in good faith and, upon the
successful completion of such negotiations, enter into a management agreement
incorporating the provisions of this Section 8.7 to the extent the Partnership
or Cox California deems it necessary or desirable.
8.8 Product Integration.
(a) The Partnership shall undertake to architect and
design its systems, platforms, networks and products in a manner that
facilitates seamless integration of the Partnership's products and services
with the telecommunications products and services offered by each Partner, the
Holdings Partners and the Subsidiaries of Holdings.
(b) Each Partner and each of the Holdings Partners shall
have the right to cause the Partnership to undertake, in cooperation with such
Partner or Holdings Partner, as the case may be (the "Requesting Party"), and
at the Requesting Party's cost and expense (unless
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the Partnership is already obligated to incur such expense under the
affiliation agreement described in Section 8.1(b) or the Trademark License),
the development of Technical Information that such Partner reasonably believes
is necessary to integrate the Partnership's products and services with the
wireline telecommunications products and services of the Requesting Party or
its Controlled Affiliates ("Proprietary Technical Information"); provided, that
such undertaking by the Partnership shall not materially interfere with the
Partnership's ongoing planning, design and development activities and any such
integration shall not adversely impact in any material respect the operating
characteristics of the Partnership's existing systems, platforms, networks or
products.
(c) If a Requesting Party requests the development of
Proprietary Technical Information under this Section 8.8, then, as between the
Partnership and the Requesting Party, the Requesting Party shall have the
irrevocable, royalty-free exclusive right and license to make (or have made),
use, sell, copy, modify and sublicense such Proprietary Technical Information.
The relative rights and obligations of the Requesting Party with respect to
such Proprietary Technical Information will be governed by the provisions of
Section 8.12 of the Holdings Partnership Agreement in the same manner as if the
Proprietary Technical Information had been developed by Holdings under that
section. If the Proprietary Technical Information is requested from the
Partnership directly by a Holdings Partner or by Holdings at the specific
request of a Holdings Partner, then the requesting Holdings Partner will be
deemed to be the "Initiating Partner" for purposes of Section 8.12 of the
Holdings Partnership Agreement, and if the Proprietary Technical Information is
requested by Holdings on its own behalf (rather than at the specific request of
a Holdings Partner), then Holdings will be deemed to be the "Initiating
Partner."
SECTION 9. REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties of the Partners.
Each Partner hereby represents and warrants that as of the date
hereof:
(a) Due Formation; Authorization of Agreement. Such
Partner is a partnership duly formed, validly existing and, if applicable, in
good standing under the laws of the jurisdiction of its formation and has the
partnership power and authority to own its property and carry on its business
as owned and carried on at the date hereof and as contemplated hereby. Such
Partner is duly licensed or qualified to do business and, if applicable, is in
good standing in each of the jurisdictions in which the failure to be so
licensed or qualified would have a material adverse effect on its financial
condition or its ability to perform its obligations hereunder. Such Partner
has the partnership power and authority to execute and deliver this Agreement
and to perform its obligations hereunder, and the execution, delivery and
performance by such Partner of this Agreement have been duly authorized by all
necessary partnership action. Assuming the due execution and delivery by the
other party hereto, this Agreement constitutes the legal, valid and binding
obligation of such Partner enforceable against such Partner in accordance with
its terms, subject as to enforceability to limits imposed by
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<PAGE> 70
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and the availability of equitable remedies.
(b) No Conflict with Restrictions; No Default. Except as
could not reasonably be expected to have a material adverse effect on the
Partnership or to materially impair such Partner's ability to perform its
obligations under this Agreement or to have a material adverse effect on the
consolidated financial condition of such Partner or its Parent, neither the
execution, delivery and performance of this Agreement nor the consummation by
such Partner of the transactions contemplated hereby,
(i) will conflict with, violate or result in a
breach of any of the terms, conditions or provisions of any law, regulation,
order, writ, injunction, decree, determination or award of any court, any other
Governmental Authority, or any arbitrator, applicable to such Partner or any of
its Controlled Affiliates,
(ii) will conflict with, violate, result in a
breach of or constitute a default under any of the terms, conditions or
provisions of the articles of incorporation, bylaws or partnership agreement of
such Partner or any of its Controlled Affiliates or of any material agreement
or instrument to which such Partner or any of its Controlled Affiliates is a
party or by which such Partner or any of its Controlled Affiliates is or may be
bound or to which any of its material properties or assets is subject (other
than any such conflict, violation, breach or default that has been validly and
unconditionally waived),
(iii) will conflict with, violate, result in a
breach of, constitute a default under (whether with notice or lapse of time or
both), accelerate or permit the acceleration of the performance required by,
give to others any material interests or rights or require any consent,
authorization or approval under any indenture, mortgage, lease agreement or
instrument to which such Partner or any of its Controlled Affiliates is a party
or by which such Partner or any of its Controlled Affiliates is or may be
bound, or
(iv) will result in the creation or imposition of
any Lien upon any of the material properties or assets of such Partner or any
of its Controlled Affiliates.
(c) Governmental Authorizations. Any registration,
declaration or filing with, or consent, approval, license, permit or other
authorization or order by, any Governmental Authority that is required to be
obtained by such Partner as of the date hereof in connection with the valid
execution, delivery, acceptance and performance by such Partner under this
Agreement or the consummation by such Partner of any transactions contemplated
hereby has been completed, made or obtained.
(d) Litigation. There are no actions, suits, proceedings
or investigations pending or, to the knowledge of such Partner or its Parent,
threatened against or affecting such Partner or any of its Controlled
Affiliates or any of their properties, assets or businesses in any court or
before or by any other Governmental Authority or any arbitrator that could, if
adversely
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determined (or, in the case of an investigation, could lead to any action, suit
or proceeding, that, if adversely determined, could), reasonably be expected to
materially impair such Partner's ability to perform its obligations under this
Agreement or to have a material adverse effect on the consolidated financial
condition of such Partner or its Parent; and neither such Partner nor any of
its Controlled Affiliates has received any currently effective notice of any
default, and neither such Partner nor any of its Controlled Affiliates is in
default, under any applicable order, writ, injunction, decree, permit,
determination or award of any court, any other Governmental Authority, or any
arbitrator, which default could reasonably be expected to materially impair
such Partner's ability to perform its obligations under this Agreement or to
have a material adverse effect on the consolidated financial condition of such
Partner.
(e) Finders Fees. There is no investment banker, broker
or finder that has been retained by or is authorized to act on behalf of such
Partner who might be entitled to any fee or commission from the other Partner
or the Partnership upon consummation of the transactions contemplated under
this Agreement.
(f) BOC. Such Partner is not a BOC.
9.2 Representations and Warranties of CPP Regarding the License
and the System Assets.
CPP hereby represents and warrants to Holdings as follows:
(a) License. CPP and its Controlled Affiliates have
satisfied all terms and conditions required to be satisfied on or before the
date hereof imposed by the FCC, by any other Governmental Authority, or by
federal law as a condition of the award of the License, including the FCC's
pioneers' preference rules as codified at 47 C.F.R. Sections 1.402, 1.403 and
5.207 (1993); orders issued in Federal Communications Commission dockets ET
Docket No. 93-266, GEN Docket No. 90-314 and GEN Docket No. 90-217; and
conditions imposed as of the date hereof in response to CPP's application for
authority to provide broadband PCS service on frequency block "A" of the Los
Angeles MTA.
(b) Compliance with Laws. CPP and its Controlled
Affiliates have not made any untrue statement of fact, or omitted to disclose
any facts, to the FCC or any other Governmental Authority or taken or failed to
take any action, which misstatements, omissions, actions or failures to act,
individually or in the aggregate, could reasonably be expected to cause CPP to
forfeit its right to hold or use the License or that, insofar as can reasonably
be foreseen, could have a material adverse effect on the ability of CPP to
contribute the License to the Partnership, or on the right of the Partnership
to hold or use the License following such contribution.
(c) Litigation. There are no actions, suits, proceedings
or investigations pending or, to the knowledge of CPP, threatened against or
affecting CPP in, before or by any Governmental Authority or any arbitrator
that could, if adversely determined (or, in the case of
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an investigation could lead to any action, suit or proceeding, that, if
adversely determined, could) reasonably be expected to affect the right of CPP
to hold or use the License or to contribute the License to the Partnership, or
the right of the Partnership to hold or use the License following such
contribution, or impose any material restrictions or limitations on the
operation of the Partnership's business; and CPP has not received any currently
effective notice of any default, and CPP is not in default, under any
applicable order, writ, injunction, decree, permit, determination or award of
any Governmental Authority or any arbitrator that could reasonably be expected
to affect the right of CPP to hold or use the License or to contribute the
License to the Partnership, or the right of the Partnership to hold or use the
License following such contribution, or impose any material restrictions or
limitations on the operation of the Partnership's business.
(d) Qualified Pre-Operating Expenses, Research and
Experimental Expenditures and Start-Up Expenditures. Schedule 9.2(d) sets
forth CPP's good faith estimate of the amount of the aggregate Qualified
Pre-Operating Expenses, Research and Experimental Expenditures and Start-Up
Expenditures as of September 30, 1996 and the periods during which such
expenses were paid.
(e) Certain Conditions Not Present. Except for
liabilities of the types listed on Schedule 9.2(e) (in the approximate amounts
reflected on such schedule with subsequent changes in the ordinary course of
developing the business to be conducted by the Partnership) and except for
contractual liabilities pursuant to contracts, leases and other agreements
identified on Schedule 1.10 hereto, there are no liabilities or obligations
required to be assumed by the Partnership pursuant to Section 2.2(b)(iii) or
the System Assets Sales Agreement, whether accrued, contingent, absolute,
determined, determinable or otherwise, that would be required by GAAP to be
disclosed on a balance sheet of the Partnership or in footnotes to the
financial statements of the Partnership, assuming such balance sheet and
footnotes were prepared on a pro forma basis after giving effect to the
assumption of such liabilities and obligations by the Partnership.
(f) Condition of Equipment. As of the date of this
Agreement, the machinery, equipment, furniture, vehicles and other tangible
personal property included in the System Assets are in adequate operating
condition for the proposed operation of a PCS system in the Los Angeles MTA
under the License.
(g) Title to Property; Liens. Except as set forth in
Schedule 1.10, as of the date of this Agreement, CPP has title to all of the
assets included in the System Assets, free and clear of all Liens. Upon the
contribution of the License pursuant to Section 2.2(a)(i) and Section
2.2(a)(ii), the License will be owned by the Partnership free and clear of all
Liens, except for any Liens that may be created by the Partnership in
accordance with this Agreement. Upon the contribution of the System Assets
pursuant to Section 2.2(b)(i) or the assignment of the System Assets pursuant
to System Assets Sales Agreement, as applicable, the System Assets so
contributed or assigned will be owned by the Partnership free and clear of all
Liens, except for any Liens that may be created by the Partnership in
accordance with this Agreement and any
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other Liens that, individually or in the aggregate, are not material to the
System Assets taken as a whole.
(h) No Breach. As of the date of this Agreement, (i)
each permit, contract, agreement, lease, insurance policy, license, commitment,
arrangement and understanding (whether evidenced by a written document or
otherwise) listed on Schedule 1.10, including each lease for real or personal
property included in the System Assets, is in full force and effect in
accordance with its terms, and (ii) there does not exist under any such permit,
contract, agreement, lease, insurance policy, license, commitment, arrangement
or understanding any default, or event which, with the giving of notice or the
lapse of time or both, would become a breach or default, the consequences of
which would result in a material adverse effect on the Partnership's operation
of a PCS system in the Los Angeles MTA under the License taken as a whole.
(i) Assets. All of the material assets, properties and
contract rights included in the System Assets as of the date of this Agreement
are described on Schedule 1.10.
(j) Environmental Protection. Except as set forth on
Schedule 9.2(j),
(i) CPP is not aware of, nor has CPP received
notice of, any events, conditions, circumstances, activities, practices,
incidents, actions or plans that CPP reasonably expects would result in claims
or liabilities, (A) based on or related to alleged on-site or off-site
contamination with respect to or affecting the System Assets or (B) arising out
of or related to the System Assets under any law, statute, rule, regulation,
order, decree or judgment related to public or occupational safety and health,
pollution and/or protection of the environment, including the Resource
Conservation and Recovery Act of 1976 and the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986 (collectively, "Environmental
Laws"), in each case that, individually or in the aggregate, would have a
material adverse effect on the Partnership's operation of a PCS system in the
Los Angeles MTA under the License taken as a whole.
(ii) To the knowledge of CPP, as of the date of
this Agreement, there is not on or in any of the System Assets any leaking
underground storage tanks or surface impoundments; and
(iii) As of the date of this Agreement, CPP has
owned and operated the System Assets in compliance with all Environmental Laws
except to the extent that any such noncompliance, individually or in the
aggregate, would not have a material adverse effect on the Partnership's
operation of a PCS system in the Los Angeles MTA under the License taken as a
whole.
(k) Intellectual Property. To the knowledge of CPP,
neither CPP nor any of its Controlled Affiliates, in connection with the
business to be conducted by the Partnership, is
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using any copyright, patent, proprietary information, technical information or
other similar intangible property right that is owned by any Person other than
CPP or any of its Controlled Affiliates in a manner that is not in compliance
in all material respects with the applicable license of such intangible
property right to CPP or its Controlled Affiliate.
SECTION 10. CONDITIONS TO ORIGINAL CAPITAL
CONTRIBUTION OBLIGATIONS
10.1 Conditions to Each Partner's Obligation to Contribute the
License.
The obligations of the Partners to make the Original Capital
Contributions required by Section 2.2(a)(i) and Section 2.2(a)(ii) are subject
to the satisfaction of the following conditions, compliance with which or the
occurrence of which may be waived, to the extent legally permissible, in whole
or in part in writing by each of the Partners:
(a) Approvals. The Partnership and each Partner shall
have received all material consents, approvals, licenses and other
authorizations of any Governmental Authority (including the FCC) required for
the lawful contribution of the License to the Partnership and shall have
satisfied the notice requirements of Decision No. 95-10-032 of the California
Public Utilities Commission.
(b) Absence of Injunctions. No preliminary or permanent
injunction or other order, decree or ruling issued by a Governmental Authority,
nor any statute, rule, regulation or executive order promulgated or enacted by
any Governmental Authority shall be in effect, in any case that enjoins or
delays in any material respect the Transfer of the License to the Partnership
on the License Contribution Date or imposes any material restrictions or
requirements thereon, on the business of the Partnership, or on either of the
Partners in connection therewith.
10.2 Conditions to Holdings's Obligation to Contribute the
Holdings License.
The obligation of Holdings to make its Original Capital Contribution
required by Section 2.2(a)(ii) is subject to the satisfaction of the following
conditions, compliance with which or the occurrence of which may be waived in
whole or in part in writing by Holdings:
(a) Representations and Warranties. The representations
and warranties of CPP contained in Section 9 of this Agreement shall be true
and correct in all material respects as of the License Contribution Date as if
made as of such date, and CPP shall have provided to Holdings a certificate
dated the License Contribution Date certifying that the representations and
warranties of CPP contained in Section 9 are true and correct in all material
respects as of the License Contribution Date.
(b) Covenants. CPP shall have performed and satisfied in
all material respects the covenants in this Agreement to be performed or
satisfied by it at or prior to the License Contribution Date, and CPP shall
have provided to Holdings a certificate dated the License
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Contribution Date certifying that such covenants have been performed and
satisfied in all material respects as of such date.
(c) Ownership of License. CPP shall be the authorized
legal holder of the License, free and clear of all Liens (except for any Liens
relating to CPP's deferred payment obligations with respect to installments
that are not yet due).
(d) Legal Opinion. Holdings shall have received an
opinion, substantially in the form attached as Exhibit 10.2(d), from Dow,
Lohnes & Albertson, or other legal counsel reasonably acceptable to Holdings,
that the License will constitute an "amortizable section 197 intangible" for
federal income tax purposes pursuant to Code Section 197(a).
(e) Contribution of License. CPP shall have contributed
the CPP License to the Partnership pursuant to Section 2.2(a)(i) and shall have
contributed the Holdings License to Holdings pursuant to the Holdings
Partnership Agreement.
10.3 Conditions to CPP's Obligation to Make Original Capital
Contribution.
The obligation of CPP to make its Original Capital Contribution in
accordance with Section 2.2(a)(i) is subject to the satisfaction of the
following conditions, compliance with which or the occurrence of which may be
waived in whole or in part in writing by CPP:
(a) Representations and Warranties. The representations
and warranties of Holdings contained in Section 9.1 of this Agreement shall be
true and correct in all material respects as of the License Contribution Date
as if made as of such date, and Holdings shall have provided to CPP a
certificate dated the License Contribution Date certifying that the
representations and warranties of Holdings contained in Section 9.1 are true
and correct in all material respects as of the License Contribution Date.
(b) Original Capital Contribution of Holdings. Holdings
shall have made its Original Capital Contribution to the Partnership pursuant
to Section 2.2(a)(ii).
10.4 Condition to Holdings's Obligation to Make Certain Cash
Contributions Prior to the License Contribution Date.
The obligation of Holdings to make any Holdings Required Cash
Contribution in accordance with Section 2.2(c) at any time prior to the License
Contribution Date is subject to the condition, which may be waived by Holdings,
that Holdings shall have received an opinion, similar in form to Exhibit
10.2(d), from Dow, Lohnes & Albertson, or other legal counsel reasonably
acceptable to Holdings, that the License would constitute an "amortizable
section 197 intangible" for federal income tax purposes pursuant to Code
Section 197(a) if it were contributed to the Partnership on the Contribution
Date for such Holdings Required Cash Contribution.
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SECTION 11. ACCOUNTING, BOOKS AND RECORDS
11.1 Accounting, Books and Records.
The Partnership shall maintain at its principal office separate books
of account for the Partnership which (i) shall fully and accurately reflect all
transactions of the Partnership, all costs and expenses incurred, all charges
made, all credits made and received, and all income derived in connection with
the conduct of the Partnership and the operation of its business in accordance
with GAAP or, to the extent inconsistent therewith, in accordance with this
Agreement and (ii) shall include all documents and other materials with respect
to the Partnership's business as are usually maintained by persons engaged in
similar businesses. The Partnership shall use the accrual method of accounting
in preparation of its annual reports and for tax purposes and shall keep its
books and records accordingly. Subject to Section 11.4, either Partner and its
designated representative shall have the right, at any reasonable time and for
any lawful purpose related to the affairs of the Partnership or the investment
in the Partnership by such Partner, (i) to have access to and to inspect and
copy the contents of such books or records, (ii) to visit the facilities of the
Partnership and (iii) to discuss the affairs of the Partnership with its
officers, employees, attorneys, accountants, customers and suppliers. The
Partnership shall not charge such Partner for such examination and each Partner
shall bear its own expenses in connection with any examination made for any
such Partner's account.
11.2 Reports.
(a) In General. The chief financial officer of the
Partnership shall be responsible for the preparation of financial reports of
the Partnership and the coordination of financial matters of the Partnership
with the Accountants.
(b) Periodic and Other Reports. The Partnership shall
cause to be delivered to each Partner the financial statements listed in
subparagraphs (i) through (iv) below, prepared, in each case, in accordance
with GAAP (and, if required by either Partner or its Controlled Affiliates for
purposes of reporting under the Securities Exchange Act of 1934, Regulation
S-X), and such other reports as either Partner may reasonably request from time
to time, provided that, if the Managing Partner so determines within thirty
(30) days thereof, such other reports shall be provided at such requesting
Partner's sole cost and expense. Such financial statements shall be
accompanied by an analysis, in reasonable detail, of the variance between the
financial condition and results of operations reported therein and the
corresponding amounts for the applicable period or periods in the Business Plan
in effect for the applicable period. The monthly and quarterly financial
statements referred to in subparagraphs (ii) and (iii) below may be subject to
normal year-end audit adjustments.
(i) As soon as practicable following the end of
each Fiscal Year (and in any event not later than seventy-five (75) days after
the end of such Fiscal Year) and at such time as distributions are made to the
Partners pursuant to Section 15.2 following the occurrence
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of a Liquidating Event, a balance sheet of the Partnership as of the end of
such Fiscal Year and the related statements of operations, Partners' Capital
Accounts and changes therein, and cash flows for such Fiscal Year, together
with appropriate notes to such financial statements and supporting schedules,
all of which shall be audited and certified by the Accountants, and in each
case, to the extent the Partnership was in existence, setting forth in
comparative form the corresponding figures for the immediately preceding Fiscal
Year (in the case of the balance sheet) and the two (2) immediately preceding
Fiscal Years (in the case of the statements). If Holdings is the Non-Managing
Partner, the Partnership will also prepare and deliver to Holdings a draft of
such financial statements at least ten (10) Business Days prior to the date on
which Holdings is obligated under the Holdings Partnership Agreement (taking
into account any extensions agreed to by the Holdings Partners) to submit
financial statements to the Holdings Partners or to the Partnership Board of
Holdings for the corresponding fiscal year of Holdings.
(ii) As soon as practicable following the end of
each of the first three calendar quarters of each Fiscal Year (and in any event
not later than forty (40) days after the end of each such calendar quarter), a
balance sheet of the Partnership as of the end of such calendar quarter and the
related statements of operations, Partners' Capital Accounts and changes
therein, and cash flows for such calendar quarter and for the Fiscal Year to
date, in each case, to the extent the Partnership was in existence, setting
forth in comparative form the corresponding figures for the prior Fiscal Year's
calendar quarter and interim period corresponding to the calendar quarter and
interim period just completed. If Holdings is the Non-Managing Partner, the
Partnership will also prepare and deliver to Holdings a draft of such financial
statements at least ten (10) Business Days prior to the date on which Holdings
is obligated under the Holdings Partnership Agreement (taking into account any
extensions agreed to by the Holdings Partners) to submit financial statements
to the Holdings Partners or to the Partnership Board of Holdings for the
corresponding fiscal quarter of Holdings.
(iii) As soon as practicable following the end of
each of the first two calendar months of each calendar quarter (and in any
event not later than thirty (30) days after the end of such calendar month), a
balance sheet as of the end of such month and statements of operations for the
interim period through such month and the monthly period then ended, setting
forth in comparative form the corresponding figures from the Business Plan for
such month and the interim period through such month.
(iv) As soon as practicable following receipt of
written notice from any Partner requesting such information, financial
statements and any other financial information required by such Partner in
order for such partner and its Controlled Affiliates to comply with their
disclosure obligations under the Securities Act of 1933 or under any other
applicable law in connection with the filing of a registration statement under
such Act or other applicable law.
The quarterly or monthly statements described in subparagraphs (ii)
and (iii) above shall be accompanied by a written certification of the chief
financial officer of the Partnership that such statements have been prepared in
accordance with GAAP or this Agreement, as the case may be.
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(c) Reporting Obligations Prior to Initial Buildout
Completion Date.
(i) Prior to the Initial Buildout Completion
Date, the Partnership shall cause to be delivered to Holdings, as soon as
practicable following the end of each calendar quarter of each Fiscal Year (and
in any event not later than fifteen (15) days after the end of each such fiscal
quarter), a status report certified by the Chief Executive Officer describing
the Partnership's progress with respect to the buildout of the Partnership's
PCS system.
(ii) Prior to the Initial Buildout Completion
Date, the Partnership shall promptly provide to Holdings copies of all filings,
notices and other correspondence with the FCC relating to the License.
11.3 Tax Returns and Information.
(a) The Managing Partner shall act as the "Tax Matters
Partner" of the Partnership within the meaning of Code Section 6231(a)(7) (and
in any similar capacity under applicable state or local law) (the "Tax Matters
Partner"). The Tax Matters Partner shall take reasonable action to cause the
other Partner to be treated as a "notice partner" within the meaning of Code
Section 6231(a)(9). All reasonable expenses incurred by a Partner while acting
in its capacity as Tax Matters Partner shall be paid or reimbursed by the
Partnership. The other Partner shall be given at least five (5) Business Days
advance notice from the Tax Matters Partner of the time and place of, and shall
have the right to participate (and the Partnership and the Tax Matters Partner
shall take such action as may be necessary to cause the tax matters partner of
any Subsidiary of the Partnership to extend to the Partners the right to
participate) in (i) any material aspect of any administrative proceeding
relating to the determination of partnership items at the Partnership level (or
at the level of any Subsidiary thereof) and (ii) any material discussions with
the Internal Revenue Service relating to the allocations pursuant to Section 3
of this Agreement or pursuant to the partnership agreement of any Subsidiary of
the Partnership. The Tax Matters Partner shall not, and the Partnership shall
not permit the tax matters partner of any Subsidiary of the Partnership to,
initiate any action or proceeding in any court, extend any statute of
limitations, or take any other action contemplated by Code Sections 6222
through 6232 that would legally bind the other Partner, the Partnership or any
Subsidiary of the Partnership without approval by the other Partner. The Tax
Matters Partner shall from time to time upon request of the other Partner
confer, and cause the tax attorneys and Accountants of the Partnership and any
Subsidiary of the Partnership to confer, with such other Partner and its
attorneys and accountants on any matters relating to any tax return or any tax
election of the Partnership or any Subsidiary of the Partnership. If Holdings
is not the Tax Matters Partner, the notice, participation and approval rights
granted to Holdings under this Section 11.3(a) shall extend to the Holdings
Partners.
(b) The Tax Matters Partner shall cause all federal,
state, local and other tax returns and reports (including amended returns)
required to be filed by the Partnership or any
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<PAGE> 79
Subsidiary thereof to be prepared and timely filed with the appropriate
authorities and shall cause all income or franchise tax returns or reports
required to be filed by the Partnership or any Subsidiary thereof to be sent to
each Partner for review at least fifteen (15) Business Days prior to filing.
Unless otherwise determined by the Managing Partner, all such income or
franchise tax returns of the Partnership shall be prepared by the Accountants.
The cost of preparation of any returns by the Accountants or other outside
preparers shall be borne by the Partnership or the applicable Subsidiary of the
Partnership, as the case may be. In the event of a Transfer of all or part of
an Interest, the Tax Matters Partner shall at the request of the transferee
cause the Partnership to elect, pursuant to Code Section 754, to adjust the
basis of the Partnership's property (and the Partnership shall cause the tax
matters partner of any Subsidiary of the Partnership to make a corresponding
Code Section 754 election with respect to such Subsidiary's property);
provided, however, that such transferee shall reimburse the Partnership and any
Subsidiary of the Partnership promptly for all costs associated with such basis
adjustment, including bookkeeping, appraisal and other similar costs. Except
as otherwise expressly provided herein, all other elections required or
permitted to be made by the Partnership or any Subsidiary thereof under the
Code (or applicable state or local tax law) shall be made in such manner as may
be determined by the Managing Partner (after consultation with the Non-Managing
Partner) to be in the best interests of the Partners as a group.
(c) The Tax Matters Partner shall cause to be provided to
the other Partner as soon as possible after the close of each Fiscal Year (and,
in any event, no later than one hundred twenty-five (125) days after the end of
each Fiscal Year), a schedule setting forth such Partner's distributive share
of the Partnership's income, gain, loss, deduction and credit as determined for
federal income tax purposes and any other information relating to the
Partnership that is reasonably required by such Partner to prepare its own
federal, state, local and other tax returns. At any time after such schedule
and information have been provided, upon at least two (2) Business Days' notice
from the other Partner, the Tax Matters Partner shall also provide each Partner
with a reasonable opportunity during ordinary business hours to review and make
copies of all work papers related to such schedule and information or to any
return prepared under paragraph (b) above. The Tax Matters Partner shall also
cause to be provided to the other Partner, at the time that the quarterly
financial statements are required to be delivered pursuant to Section
11.2(b)(ii) above, an estimate of each Partner's share of all items of income,
gain, loss, deduction and credit of the Partnership for the calendar quarter
just completed and for the Fiscal Year to date for federal income tax purposes.
11.4 Proprietary Information.
Notwithstanding anything to the contrary in this Section 11, an
Adverse Partner shall only have access to such information regarding the
Partnership as is required by applicable law and shall not have access for such
time as the Managing Partner deems reasonable to such information relating to
the Partnership's business that the Managing Partner reasonably believes to be
in the nature of trade secrets or other information the disclosure of which the
Managing Partner in good faith believes is not in the best interest of the
Partnership or could damage the Partnership or its business or which the
Partnership is required by law or by agreement with a third party to keep
confidential.
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<PAGE> 80
SECTION 12. ADVERSE ACT
12.1 Remedies.
(a) Subject to Section 12.1(b), if an Adverse Act has
occurred and is continuing with respect to a Partner, the other Partner (the
"Non-Adverse Partner") may elect:
(i) to commence the procedures specified in
Section 12.2 for the purchase of the Adverse Partner's Interest (and the
Adverse Partner's Special Interest, if applicable); or
(ii) to seek to enjoin such Adverse Act or to
obtain specific performance of the Adverse Partner's obligations or to recover
from the Adverse Partner in an appropriate proceeding any and all damages,
losses and expenses (including reasonable attorneys' fees and disbursements)
(collectively, "Damages") suffered or incurred by the Non-Adverse Partner as a
result of such Adverse Act; provided that the Non-Adverse Partner shall not
have or assert any claim against the Adverse Partner for, and the term
"Damages" shall not include, punitive damages or indirect, special or
consequential damages suffered or incurred by the Non-Adverse Partner as a
result of an Adverse Act.
(b) Notwithstanding anything to the contrary contained in
this Section 12,
(i) none of the remedies specified in Section
12.1(a) (nor any other provision of this Section 12) shall apply to an Adverse
Act specified in subparagraph (v) of the definition of such term in Section
1.10;
(ii) the remedy specified in Section 12.1(a)(i)
shall be available only with respect to an Adverse Act occurring or continuing
after the Initial Buildout Completion Date;
(iii) the remedy specified in Section 12.1(a)(i)
shall not be available with respect to any Adverse Act described in
subparagraph (iii) of the definition of "Adverse Act" that results from a
material breach of any covenant in, or a material default on any obligation
provided for in, Section 8.3 of this Agreement, unless the event or
circumstances giving rise to the Adverse Act constituted bad faith, gross
negligence, fraud or willful misconduct by the Adverse Partner;
(iv) the remedy specified in Section 12.1(a)(i)
shall not be available to a Non-Adverse Partner that also is an Adverse
Partner; and
(v) the remedies specified in Section 12.1(a)(ii)
shall not be available to the Partners with respect to an Adverse Act specified
in subparagraph (viii) of such definition unless the circumstances under which
such event arose also constituted a breach by the Adverse Partner of the
covenant contained in Section 8.2(d).
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<PAGE> 81
(c) The election of a remedy specified in Section 12.1(a)
with respect to an Adverse Act for which such remedy is available may be
exercised by notice given to the Adverse Partner (i) in case of an Adverse Act
specified in subparagraph (i) of the definition of such term in Section 1.10,
within ninety (90) days after the occurrence of such Adverse Act or (ii) in the
case of any other Adverse Act, within ninety (90) days after the Non-Adverse
Partner obtains actual knowledge of the occurrence of such Adverse Act,
including, if applicable, that any cure period has expired; provided that, if
an election is made pursuant to Section 12.1(a)(ii) to seek an injunction,
specific performance or other equitable relief, an action seeking such relief
is commenced promptly thereafter and a final judgment in such action is
rendered denying such equitable remedy and no election was made pursuant to
Section 12.1(a)(i), then, by notice given within ten (10) days after such final
judgment is rendered, the Non-Adverse Partner may elect to pursue the remedy
specified in Section 12.1(a)(i) unless (x) prior to the giving of such notice,
the Adverse Partner has cured in full (or caused to be cured in full) the
Adverse Act in question (other than an Adverse Act specified in subparagraph
(i) of the definition of such term in Section 1.10, which may only be cured
with the consent of the Non-Adverse Partner) and no other Adverse Act with
respect to such Adverse Partner has occurred and is continuing or (y) the final
judgment denying equitable relief specifically held that there was no Adverse
Act or that the conditions in Section 12.1(b) to electing the remedy specified
in Section 12.1(a)(i) have not been satisfied.
(d) The foregoing remedies shall not be deemed to be
mutually exclusive, and, subject to the requirements of Section 12.1(c)
regarding the timing of the election of such remedies, selection or resort to
any thereof shall not preclude selection or resort to the others. The resort to
any remedy pursuant to Section 12.1(a) shall not for any purpose be deemed to
be a waiver of any other available remedy. The failure to elect to pursue a
remedy within the time periods provided in Section 12.1(c) shall be
conclusively presumed to be a waiver of the remedies provided in this Section
12 with respect to the subject Adverse Act.
(e) 1If the Partnership is dissolved pursuant to Section
15.1(a) at any time as a result of a Liquidating Event that occurs prior to a
remedy having been elected pursuant to Section 12.1(a) with respect to any
Adverse Partner, the time periods for such election shall thereupon expire and
the Non-Adverse Partner shall be entitled only to recover Damages incurred by
it as a result of the Adverse Act.
12.2 Adverse Act Purchase.
(a) Determination of Net Equity of Adverse Partner's
Interest. If the Non-Adverse Partner makes an election pursuant to Section
12.1(a)(i) to commence the purchase procedures set forth in this Section 12.2,
the Net Equity of the Adverse Partner's Interest (and its Special Interest, if
applicable) shall be determined in accordance with this Section 12 as of the
last day of the calendar quarter immediately preceding the calendar quarter in
which notice of such election (the "Election Notice") was given to the Adverse
Partner, and the Adverse Partner shall be obligated to sell to the Non-Adverse
Partner all but not less than all of the
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Adverse Partner's Interest (and its Special Interest, if applicable) in
accordance with this Section 12.2 at a purchase price equal to:
(i) in the case of any Adverse Act (other than
(A) an Adverse Act identified in subparagraph (i) of the definition of such
term that arises from a Partner's failure to make any Original Capital
Contribution under Section 2.2 or (B) an Adverse Act identified in subparagraph
(iv) of the definition of such term or, unless such Adverse Act occurred in
connection with any breach by such Partner of its obligations under Section
8.2(d), an Adverse Act identified in subparagraph (viii)), ninety percent (90%)
of the Net Equity of the Adverse Partner's Interest (and its Special Interest,
if applicable) as so determined,
(ii) in the case of an Adverse Act specified in
subparagraph (iv) of the definition of such term or, unless such Adverse Act
occurred in connection with any breach by such Partner of its obligations under
Section 8.2(d), subparagraph (viii) of the definition of such term, the Net
Equity of the Adverse Partner's Interest, and
(iii) in the case of an Adverse Act identified in
subparagraph (i) of the definition of such term that arises from a Partner's
failure to make any Original Capital Contribution under Section 2.2, the lesser
of (A) ninety percent (90%) of the Net Equity of the Adverse Partner's Interest
as so determined or (B) eighty percent (80%) of the remainder of (1) the sum of
such Adverse Partner's Capital Contributions minus (2) the cumulative
distributions made to such Partner pursuant to Section 4, each determined as of
the date on which the Adverse Partner's Interest is purchased.
Such Election Notice shall designate the First Appraiser as required by Section
12.4 and the Adverse Partner shall appoint the Second Appraiser within ten (10)
Business Days of receiving such notice designating the First Appraiser.
(b) Election to Purchase Interest of Adverse Partner.
During the thirty (30) day period ending at 11:59 p.m. (local time at the
Partnership's principal office) on the thirtieth (30th) day following the day
on which notice of the Net Equity of the Adverse Partner's Interest is given
pursuant to Section 12.3 (the "Election Period"), the Non-Adverse Partner may
elect, by notice to the Adverse Partner (the "Purchase Notice"), to purchase
the entire Interest of the Adverse Partner, which notice shall state that the
Non-Adverse Partner is willing to purchase the entire interest of the Adverse
Partner.
(c) Terms of Purchase; Closing. Unless the Non-Adverse
Partner and the Adverse Partner otherwise agree, the closing of the purchase
and sale of the Adverse Partner's Interest, Partner Loans (as required by
Section 13.3(c)), Special Interest (as required by Section 13.3(d)) and
LeasingCo Interest (as required by Section 13.3(e)), shall occur at the
principal office of the Partnership at 10:00 a.m. (local time at the place of
the closing) on the first Business Day occurring on or after the thirtieth
(30th) day following the last day of the Election Period (subject to Section
12.5). At the closing, the Non-Adverse Partner shall pay to the Adverse
Partner, by cash or other immediately available funds, the purchase price for
the
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Adverse Partner's Interest, Partner Loans, Special Interest and LeasingCo
Interest and the Adverse Partner shall deliver to the Non-Adverse Partner good
title, free and clear of any Liens (other than those created by this Agreement
and those securing financing obtained by the Partnership) to the Adverse
Partner's Interest, Partner Loans, Special Interest and LeasingCo Interest thus
purchased.
At the closing, the Partners shall execute such documents and
instruments of conveyance as may be necessary or appropriate to effectuate the
transactions contemplated hereby, including the Transfer of the Adverse
Partner's Interest, Partner Loans, Special Interest and LeasingCo Interest to
the Non-Adverse Partner and the assumption by the Non-Adverse Partner of the
Adverse Partner's obligations with respect to the Adverse Partner's Interest
Transferred to such Non-Adverse Partner. The Partnership and each Partner
shall bear its own costs of such Transfer and closing, including attorneys'
fees and filing fees. The cost of determining Net Equity shall be borne
one-half by the Adverse Partner and one-half by the Non-Adverse Partner.
In the event that the Non-Adverse Partner fails to perform its
obligation to purchase hereunder on the scheduled closing date, the Adverse
Partner will not be obligated to sell its Interest, Partner Loans, Special
Interest or LeasingCo Interest to the Non-Adverse Partner.
12.3 Net Equity.
The "Net Equity" of a Partner's Interest or Special Interest, as of
any day, shall be (a) the amount that would be distributed to such Partner with
respect to its Interest or Special Interest, as applicable, in liquidation of
the Partnership pursuant to Section 15 if (i) all of the Partnership's business
and assets and all of LeasingCo's business and assets were sold substantially
as an entirety for Gross Appraised Value, (ii) Profits and Losses and items
specially allocated in accordance with Section 3.3 and Section 3.4 for the
Allocation Year ending on the date that Net Equity is determined, including any
gain or loss resulting from the deemed sale described in clause (i), were
allocated in accordance with Section 3, (iii) the Partnership paid its
liabilities and established reserves pursuant to Section 15.2 for the payment
of reasonably anticipated contingent or unknown liabilities, (iv) Holdings
contributed to the Partnership the amount, if any, required by Section 2.2(c)
and paid to the Partnership all accrued and unpaid interest pursuant to Section
2.2(e)(i) with respect to such Capital Contribution, (v) CPP contributed to the
Partnership the amount, if any, required by Section 2.2(d) and paid to the
Partnership all accrued and unpaid interest pursuant to Section 2.2(e)(ii) with
respect to such Capital Contribution (vi) LeasingCo were liquidated and
dissolved in accordance with the comparable provisions of the Agreement of
Limited Partnership of LeasingCo and (vii) the Partnership distributed the
remaining proceeds to the Partners in liquidation, all as of such day, minus
(b) with respect to each Partner's Interest, in the case of Holdings, the
aggregate amount of the Capital Contributions and interest payments described
in clause (iv) and, in the case of CPP, the aggregate amount of the Capital
Contributions and interest payments described in clause (v); provided that in
determining such Net Equity, no reserve for contingent or unknown liabilities
shall be taken into account if such Partner (or its successor in interest)
(other than a Partner that is an Adverse Partner as a result of Bankruptcy)
agrees to indemnify the Partnership
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and the other Partner for that portion of any such reserve as would be treated
as having been withheld pursuant to Section 15.3 from the distribution such
Partner would have received pursuant to Section 15.2 if no such reserve were
established.
The Net Equity of a Partner's Interest and, if applicable, Special
Interest shall be determined, without audit or certification, from the books
and records of the Partnership by the Accountants. The Net Equity of a
Partner's Interest and, if applicable, Special Interest shall be determined
within thirty (30) days of the day upon which the Accountants are apprised in
writing of the Gross Appraised Value, and the amount of such Net Equity shall
be disclosed to the Partnership and each of the Partners by written notice
("Net Equity Notice"). The Net Equity determination of the Accountants shall
be final and binding in the absence of a showing of manifest error.
12.4 Gross Appraised Value.
"Gross Appraised Value," as of any date, means the price at which a
willing seller would sell, and a willing buyer would buy, the business and
assets of the Partnership and LeasingCo, free and clear of all Liens,
substantially as an entirety and as a going concern in a single arm's- length
transaction for cash, without time constraints and without being under any
compulsion to buy or sell.
Each provision of this Agreement (other than Section 2.3(a)(iii)(D))
that requires a determination of Gross Appraised Value also provides the manner
and time for the appointment of two (2) appraisers (the "First Appraiser" and
the "Second Appraiser"). If the Second Appraiser is not timely designated, the
determination of the Gross Appraised Value shall be made by the First
Appraiser. The First Appraiser, or each of the First Appraiser and the Second
Appraiser if the Second Appraiser is timely designated, shall submit its
determination of the Gross Appraised Value to the Partnership, the Partners and
the Accountants within forty-five (45) days after the date of its selection (or
the selection of the Second Appraiser, as applicable). If there are two (2)
Appraisers and their respective determinations of the Gross Appraised Value
vary by less than ten percent (10%) of the higher determination, the Gross
Appraised Value shall be the average of the two determinations. If such
determinations vary by ten percent (10%) or more of the higher determination,
the two Appraisers shall promptly designate a third appraiser (the "Third
Appraiser"). Neither the Partnership nor either Partner shall provide, and the
First Appraiser and Second Appraiser shall be instructed not to provide, any
information to the Third Appraiser as to the determinations of the First
Appraiser and the Second Appraiser or otherwise influence the Third Appraiser's
determination in any way. The Third Appraiser shall submit its determination
of the Gross Appraised Value to the Partnership, the Partners and the
Accountants within forty-five (45) days of the date of its selection. The
Gross Appraised Value shall be equal to the average of the two closest of the
three determinations, provided that, if the difference between the highest and
middle determinations is no more than one hundred five percent (105%) and no
less than ninety-five percent (95%) of the difference between the middle and
lowest determinations, then the Gross Appraised Value shall be equal to the
middle determination. The determination of the Gross Appraised Value in
accordance with this Section
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12.4 shall be final and binding on the Partnership and each Partner. Each
Appraiser selected pursuant to the provisions of this Section 12.4 shall be an
investment banking firm or other qualified Person with prior experience in
appraising businesses comparable to the business of the Partnership and in
which neither Partner has a direct or indirect material financial interest.
Each Appraiser selected pursuant to the provisions of this Section 12.4 shall
be required to submit a single value, and not a range of possible values, as
its determination of the Gross Appraised Value.
12.5 Extension of Time.
If any Transfer of a Partner's Interest in accordance with this
Section 12 or Section 13 or Section 15.6 requires the consent, approval, waiver
or authorization of any Governmental Authority as a condition to the lawful and
valid Transfer of such Partner's Interest to the proposed transferee thereof,
then each of the time periods provided in this Section 12 or Section 13 or
Section 15.6, as applicable, for the closing of such Transfer shall be
suspended for the period of time during which any such consent, approval,
waiver or authorization is being diligently pursued; provided, however, that in
no event shall the suspension of any time period pursuant to this Section 12.5
extend for more than three hundred sixty-five (365) days other than in the case
of a purchase of an Adverse Partner's Interest or any purchase and sale
pursuant to Section 13.6 that results in a transfer of control of the
Partnership for purposes of the rules and regulations of the FCC. Each Partner
agrees to use diligent efforts to obtain, or to assist the affected Partner or
the Partnership in obtaining, any such consent, approval, waiver or
authorization and shall cooperate and use diligent efforts to respond as
promptly as practicable to all inquiries received by it, by the affected
Partner or by the Partnership from any Governmental Authority for initial or
additional information or documentation in connection therewith.
SECTION 13. DISPOSITIONS OF INTERESTS
13.1 Restriction on Dispositions.
Except as otherwise permitted by this Agreement, neither Partner shall
Dispose of all or any portion of its Interest.
13.2 Permitted Transfers.
Subject to the conditions and restrictions set forth in Section 13.3,
(i) Holdings may pledge its Interest as collateral to secure any indebtedness
incurred by Holdings to fund its Capital Contribution (but any Transfer of
Holdings's Interest upon or in connection with the exercise by the secured
party of its rights pursuant to any such pledge shall be subject to all the
restrictions on Transfer set forth in this Section 13; provided, however, that
such restrictions on Transfer shall be applied as if the fourth anniversary of
the Initial Buildout Completion Date had occurred), (ii) CPP or Holdings may
distribute all or any portion of its Interest to its partners in accordance
with such partners' respective partnership interests, (iii) CPP may Transfer
all or
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part of its Interest pursuant to Section 13.6, (iv) either Partner may Transfer
all or part of its Interest in connection with a Permitted Transaction and (v)
a Partner may at any time Transfer all or any portion of its Interest (A) to
any Controlled Affiliate of such Partner, (B) to the administrator or trustee
of such Partner to which such Interest is transferred in an Involuntary
Bankruptcy, (C) pursuant to and in compliance with Section 12.2, Section 13.4,
Section 13.5 and Section 15.6 or (D) with the prior written consent of the
other Partner (each a "Permitted Transfer"). In the event a Permitted Transfer
results in the Partnership having more than two (2) Partners (excluding any
Controlled Affiliate of an existing Partner), this Agreement shall be amended
where appropriate to take into account the existence of any additional Partner.
After any Permitted Transfer, the Transferred Interest shall continue
to be subject to all the provisions of this Agreement, including the provisions
of this Section 13 with respect to the Disposition of Interests. Except in the
case of a Transfer of a Partner's entire Interest made in compliance herewith,
neither Partner shall withdraw from the Partnership without the prior written
consent of the other Partner. The withdrawal of a Partner, whether or not
permitted, shall not relieve the withdrawing Partner of its obligations under
Section 5.4 or 6.5 and shall not relieve such Partner or any of its Affiliates
of its obligations under, or result in a termination of or otherwise affect,
any agreement between the Partnership and such Partner or Affiliate then in
effect, except to the extent provided therein.
13.3 Conditions to Permitted Transfers.
A Transfer shall not be treated as a Permitted Transfer unless and
until the following conditions are satisfied:
(a) Except in the case of a Transfer involuntarily by
operation of law, the transferor and transferee shall execute and deliver to
the Partnership such documents as may be necessary or appropriate in the
opinion of counsel to the Partnership to effect such Transfer. In the case of
a Transfer of Interests involuntarily by operation of law, the Transfer shall
be confirmed by presentation to the Partnership of legal evidence of such
Transfer, in form and substance satisfactory to counsel to the Partnership. In
all cases, the Partnership shall be reimbursed by the transferor and/or
transferee for all costs and expenses that it reasonably incurs in connection
with such Transfer (including reasonable attorneys' fees and expenses);
(b) Except in the case of a Transfer involuntarily by
operation of law, the transferee of an Interest (other than, with respect to
clauses (i) and (ii) below, a transferee that was a Partner prior to the
Transfer) shall, by written instrument in form and substance reasonably
satisfactory to the non-transferor Partner (and, in the case of clause (iii)
below, the transferor Partner), (i) make representations and warranties to the
non-transferor Partner equivalent to those set forth in Section 9.1, (ii)
accept and adopt the terms and provisions of this Agreement, including this
Section 13, and (iii) assume the obligations of the transferor Partner under
this Agreement with respect to the Transferred Interest. The transferor
Partner shall be released from all such assumed obligations except (i) as
otherwise provided in Section 6 in the case of a Transfer to a Controlled
Affiliate, (ii) those obligations or liabilities of the transferor
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Partner arising out of a breach of this Agreement or pursuant to Section 5.4 or
6.5, (iii) in the case of a Transfer to any Person other than a Partner or any
of its Controlled Affiliates, those obligations or liabilities of the
transferor Partner based on events occurring, arising or maturing prior to the
date of Transfer, and (iv) in the case of a Transfer to any of its Controlled
Affiliates, any obligation of the transferor Partner to make any Capital
Contribution under this Agreement;
(c) Except in the case of a Transfer involuntarily by
operation of law, the transferor of any Interest and its Affiliates will be
obligated to sell to the transferee, and the transferee will be obligated to
buy from the transferor and its Affiliates, a percentage of the Partner Loans
(if any) held directly or indirectly by the transferor or an Affiliate thereof
equal to the percentage of the transferor's Interest being Transferred to the
transferee. If the transferee is a Partner or a Controlled Affiliate thereof,
the terms of such purchase will be as provided in Section 2.6. In connection
with any such purchase of Partner Loans, the transferee shall surrender to the
Partnership the promissory note or notes evidencing such Partner Loans in
exchange for the issuance by the Partnership of a new promissory note made
payable to the order of the transferee in a principal amount equal to the
outstanding balance of such Partner Loans and otherwise having the same terms
as the promissory note surrendered therefor;
(d) Except in the case of a Transfer involuntarily by
operation of law, the transferor of any Interest and its Affiliates will be
obligated to sell to the transferee, and the transferee will be obligated to
buy from the transferor and its Affiliates, a percentage of the Special
Interests (if any) held directly or indirectly by the transferor or an
Affiliate thereof equal to the percentage of the transferor's Interest being
Transferred to the transferee. If the transferee is a Partner or a Controlled
Affiliate thereof, the purchase price of such Special Interests shall be the
Net Equity thereof.
(e) Except in the case of a Transfer involuntarily by
operation of law, the transferor of any Interest and its Affiliates will be
obligated to sell to the transferee, and the transferee will be obligated to
buy from the transferor and its Affiliates, a percentage of the LeasingCo
Interests (if any) held directly or indirectly by the transferor or an
Affiliate thereof equal to the percentage of the transferor's Interest being
Transferred to the transferee. If the transferee is a Partner or a Controlled
Affiliate thereof, the purchase price of such LeasingCo Interests shall be the
"Net Equity" thereof (determined as provided in Section 12.3 as if all
references therein and in any defined term used therein to the Partnership were
deemed references to LeasingCo and all references to Section 15 contained
therein were deemed references to the corresponding provisions of the Agreement
of Limited Partnership of LeasingCo);
(f) Except in the case of a Transfer involuntarily by
operation of law, if required by the non-transferor Partner, the transferee
shall deliver to the Partnership an opinion, satisfactory in form and substance
to the non-transferor Partner, of counsel reasonably satisfactory to the
non-transferor Partner to the effect that the Transfer of the Interest is in
compliance with applicable state and Federal securities laws;
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(g) Except in the case of a Transfer involuntarily by
operation of law, if required by the non-transferor Partner, the transferee
(other than a transferee that was a Partner prior to the Transfer) shall
deliver to the Partnership evidence of the authority of such Person to become a
Partner and to be bound by all of the terms and conditions of this Agreement,
and the transferee and transferor shall each execute and deliver such other
instruments as the non-transferor Partner reasonably deems necessary or
appropriate to effect, and as a condition to, such Transfer, including
amendments to the Certificate or any other instrument filed with the State of
Delaware or any other state or Governmental Authority;
(h) Unless otherwise agreed to by the Partners, and
except for any Transfer pursuant to Section 13.6, or any other Transfer by one
Partner to the other Partner, no Transfer of an Interest shall be made except
upon terms which would not, in the opinion of counsel chosen by and mutually
acceptable to the Partners, result in the termination of the Partnership within
the meaning of Code Section 708 or cause the application of the rules of Code
Sections 168(g)(1)(B) and 168(h) or similar rules to apply to the Partnership.
If the immediate Transfer of such Interest would, in the opinion of such
counsel, cause a termination within the meaning of Code Section 708, then if,
in the opinion of such counsel, the following action would not precipitate such
termination, the transferor Partner shall be entitled (or required, as the case
may be) (i) immediately to Transfer only that portion of its Interest as may,
in the opinion of counsel to the Partnership, be Transferred without causing
such a termination and (ii) to enter into an agreement to Transfer the
remainder of its Interest, in one or more Transfers, at the earliest date or
dates on which such Transfer or Transfers may be effected without causing such
termination. The purchase price for the Interest shall be allocated between
the immediate Transfer and the deferred Transfer or Transfers as agreed to by
the parties to the Transfer. In determining whether a proposed Transfer will
result in a termination of the Partnership, counsel to the Partnership shall
take into account the existence of prior written commitments to Transfer made
pursuant to this Agreement and such commitments shall always be given
precedence over subsequent proposed Transfers. Each Partner agrees that,
solely for purposes of this Section 13.3(h), any Transfer of an ownership
interest in a Partner that has the same effect as a Transfer of such Partner's
Interest for purposes of determining whether the Partnership has been
terminated within the meaning of Code Section 708 shall be treated as a
Transfer of such Partner's Interest. Each Partner shall notify the Partnership
and each other Partner in writing not less than five (5) days prior to any
Transfer of an ownership interest in such Partner to which this Section 13.3(h)
applies. No Partner shall be deemed to have breached this Section 13.3(h) to
the extent that such Partner's failure to comply with the foregoing provisions
in connection with a Transfer of an ownership interest in such Partner resulted
solely from the failure of any other Partner to comply with the notice
obligation set forth in the preceding sentence;
(i) The transferor or transferee shall furnish the
Partnership with the transferee's taxpayer identification number, sufficient
information to determine the transferee's initial tax basis in the Interest
Transferred, and any other information reasonably necessary to permit the
Partnership to file all required federal and state tax returns and other
legally required
December 12, 1996
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<PAGE> 89
information statements or returns. Without limiting the generality of the
foregoing, the Partnership shall not be required to make any distribution
otherwise provided for in this Agreement with respect to any Transferred
Interest until it has received such information;
(j) If the Parent of a transferee is not the same Person
as the Parent of the transferring Partner, then the Parent of the transferee
(other than a transferee Partner) shall execute and deliver to the other
Partner a Parent Undertaking;
(k) If CPP ceases to be a Controlled Affiliate of Cox
Parent as a result of a Permitted Transaction, then the new Parent of CPP shall
execute and deliver a Parent Undertaking to Holdings; and
(l) Except in the case of a Transfer involuntarily by
operation of law, (A) the Partnership shall have received any consent or
approval of the FCC legally required for the consummation of such Transfer,
which consent or approval shall be deemed to have been received upon the
issuance of any FCC order or ruling, regardless of whether any period for
reconsideration has expired or whether any period for seeking judicial review
of such FCC action or inaction has expired or whether any such review is
pending, (B) no stay or injunction issued by any Governmental Authority shall
be in effect that prohibits the consummation of such Transfer, and (C) if the
lawful consummation of such Transfer requires that the FCC not have taken any
action within an applicable time period to prohibit such Transfer, the FCC
shall have failed to take such action within the applicable time period.
Upon completion of any Permitted Transfer and compliance with the
provisions of this Section 13.3, the transferee of the Interest (if not already
a Partner) shall be admitted as a Partner without any further action.
13.4 Right of First Refusal.
Following the fourth anniversary of the Initial Buildout Completion
Date, a Partner may Transfer all or any portion of its Interest (the "Offered
Interest") if (i) such Partner (the "Seller") first offers to sell the Offered
Interest pursuant to the terms of this Section 13.4, and (ii) the Transfer of
the Offered Interest to the Purchaser (as defined below) would not cause an
Adverse Act under subparagraph (viii) of the definition thereof.
(a) Limitation on Transfers. No Transfer may be made
under this Section 13.4 unless the Seller has received a bona fide written
offer (the "Purchase Offer") from a Person that is not a Controlled Affiliate
of such Partner (the "Purchaser") to purchase the Offered Interest for a
purchase price (the "Offer Price") denominated and payable in United States
dollars at closing, which offer shall be in writing signed by the Purchaser and
shall be irrevocable for a period ending no sooner than the Business Day
following the end of the Offer Period, as hereinafter defined.
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(b) Offer Notice. Prior to accepting the Purchase Offer,
the Seller shall give to the other Partner written notice (the "Offer Notice")
which shall include a copy of the Purchase Offer and an offer (the "Firm
Offer") to sell the Offered Interest to the other Partner (the "Offeree") for
the Offer Price, payable according to the same terms (without regard to any FCC
filing or approval requirement or delays associated therewith) as (or on more
favorable terms than) those contained in the Purchase Offer, provided that the
Firm Offer shall be made without regard to the requirement of any earnest money
or similar deposit required of the Purchaser prior to closing. If the
Purchaser is not an entity that is subject to the periodic reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, the Seller shall also provide any information concerning the ownership of
the Purchaser that may be reasonably requested by the Offeree, to the extent
such information is available to the Seller.
(c) Offer Period. The Firm Offer shall be irrevocable
for the sixty (60) day period (the "Offer Period") ending at 11:59 p.m., local
time at the Partnership's principal place of business, on the sixtieth (60th)
day following the date of the Offer Notice.
(d) Acceptance of Firm Offer. At any time during the
Offer Period, the Offeree may accept the Firm Offer as to all (but not less
than all) of the Offered Interest, by giving written notice of such acceptance
to the Seller, and the Offeree shall be obligated to purchase, and the Seller
shall be obligated to sell to the Offeree, the Offered Interest.
(e) Closing of Purchase Pursuant to Firm Offer. If the
Offeree has accepted the Firm Offer in accordance with the terms of Section
13.4(d), unless the Offeree and the Seller otherwise agree, the closing of any
purchase pursuant to this Section 13.4 shall be held at the principal office of
the Seller at 10:00 a.m. (local time at the place of closing) on the first
Business Day on or after the thirtieth (30th) day following the end of the
Offer Period (subject to the provisions of Section 12.5). At the closing, the
Offeree shall pay to the Seller, by cash or other immediately available funds,
the purchase price for the Offered Interest, and the Seller shall deliver to
the Offeree good title, free and clear of any Liens (other than those created
by this Agreement and those securing financing obtained by the Partnership), to
the Offered Interest, Partner Loans, Special Interest and LeasingCo Interest
thus purchased.
At the closing, the Partners shall execute such documents and
instruments of conveyance as may be necessary or appropriate to effectuate the
transactions contemplated hereby, including the Transfer of the Offered
Interest, Partner Loans, Special Interest and LeasingCo Interest to the Offeree
and the assumption by the Offeree of the Seller's obligations with respect to
the portion of the Seller's Interest Transferred to the Offeree. Each Partner
and the Partnership shall bear its own costs of such Transfer and closing,
including attorneys' fees and filing fees.
(f) Sale Pursuant to Purchase Offer If Firm Offer
Rejected. If the Firm Offer is not accepted in the manner provided in Section
13.4(d), or the Offeree fails to close the purchase on the closing date, then
in either such event, but subject to Section 13.3, the Seller shall be free for
the period described below (the "Free to Sell Period") to sell the Offered
Interest to the Purchaser upon terms and conditions that are the same as, or
more favorable to
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<PAGE> 91
the Seller than, those contained in the Purchase Offer (including at the same
or greater price). The Free to Sell Period shall be the applicable of (i) if
the Firm Offer is not accepted, sixty (60) days after the last day of the Offer
Period (subject to the provisions of Section 12.5) or (ii) if the Firm Offer is
accepted but the purchase is not closed, sixty (60) days (subject to the
provisions of Section 12.5) after the scheduled closing date. If the Offered
Interest is not so sold within the Free to Sell Period, the Seller's right to
Transfer its Interest shall again be subject to the restrictions of this
Section 13.4.
(g) Restrictions on Notice. No notice initiating the
procedures contemplated by this Section 13.4 may be given by either Partner
while any notice, purchase or Transfer is pending under Section 12 or this
Section 13.4 or after a Liquidating Event has occurred. No notice initiating
the procedures contemplated by this Section 13.4 may be given by an Adverse
Partner, and no Seller shall be required to offer any portion of its Interest
to an Adverse Partner during the period that an election may be made to pursue
any remedy specified in Section 12.1(a) with respect to such Adverse Partner.
13.5 Tagalong Rights.
(a) Tagalong Transactions. In the event that (i) a
Partner proposes to Transfer its Interest (as part of a single transaction or
any series of related transactions) to any Person (other than the other
Partner, a Controlled Affiliate of the other Partner, or a Controlled Affiliate
of such Partner) following the fourth anniversary of the Initial Buildout
Completion Date and such Transfer would cause the proposed transferee together
with any Affiliate of the proposed transferee that the proposed transferee or
its Parent can directly or indirectly unilaterally cause to take or refrain
from taking any action regarding the Partnership, whether through ownership of
voting securities, contractually or otherwise, to own more than fifty percent
(50%) of the Percentage Interests (a "Tagalong Transaction") and (ii) the Firm
Offer is not accepted in the manner provided in Section 13.4, the Tagalong
Transaction shall not be permitted hereunder unless the proposed transferee
(the "Tagalong Purchaser") offers to purchase the entire Interest of the other
Partner (if the other Partner desires to sell its Interest to the Tagalong
Purchaser) at the same price per each one percent (1%) Percentage Interest and
otherwise on the same terms and conditions as the Tagalong Purchaser has
offered to the Partner proposing to make such Transfer (the "Transferring
Partner"). If such Transfer occurs as part of a series of related
transactions, the price and terms shall be the price and terms most favorable
to the Transferring Partner for which any portion of the Interest of the
Transferring Partner is Transferred as part of such series of transactions.
Prior to effecting any Tagalong Transaction, the Transferring Partner shall
deliver to the other Partner a binding, irrevocable offer (the "Tagalong
Offer") by the Tagalong Purchaser to purchase the entire Interest of the other
Partner at the same price per each one percent (1%) Percentage Interest and on
the same terms and conditions as the Tagalong Purchaser has offered to the
Transferring Partner (the "Tagalong Notice"). The Tagalong Offer shall be
irrevocable for a period (the "Tagalong Period") ending at 11:59 p.m., local
time at the Partnership's principal place of business, on the first anniversary
of the date of the Tagalong Notice. At any time during the Tagalong Period,
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the other Partner may accept the Tagalong Offer as to the entire amount of its
Interest by giving written notice of such acceptance to the Tagalong Purchaser.
(b) Limitations on Acceptance of Tagalong Offers. An
Adverse Partner may not accept a Tagalong Offer during the period that an
election may be made to pursue any remedy specified in Section 12.1(a) with
respect to such Adverse Partner and, if an election is made to pursue the
remedy specified in Section 12.1(a)(i), during the period that the purchase of
the Adverse Partner's Interest is pending, unless, in any such case, the
Adverse Partner agrees that the purchase price for its Interest under this
Section 13.5 will not be greater than the price at which its Interest could
then be purchased under Section 12.2.
(c) Closing Matters. Unless the Tagalong Purchaser, on
the one hand, and the Partner accepting the Tagalong Offer, on the other hand,
otherwise agree, the closing of the purchase and sale of Interests pursuant to
this Section 13.5 shall occur at the principal office of the Partnership at
10:00 a.m. (local time at the place of the closing) on the first Business Day
occurring on or after the sixtieth (60th) day following the expiration of the
Tagalong Period, subject to Section 12.5. At the closing, the Tagalong
Purchaser shall pay to the other Partner, by cash or other immediately
available funds, the purchase price for the Interest, Partner Loans, Special
Interest and LeasingCo Interest being Transferred, and the Partner selling its
Interest, Partner Loans, Special Interest and LeasingCo Interest shall deliver
to the Tagalong Purchaser good title, free and clear of any Liens (other than
those created by this Agreement and those securing financing obtained by the
Partnership), to the Interest, Partner Loans, Special Interest and LeasingCo
Interest thus purchased.
At the closing, the other Partner shall execute such documents and
instruments of conveyance as may be necessary or appropriate to effectuate the
transactions contemplated hereby, including the Transfer of the Interest,
Partner Loans, Special Interest and LeasingCo Interest to the Tagalong
Purchaser and the assumption by the Tagalong Purchaser of the obligations with
respect to the Interest so Transferred. Each Partner and the Partnership shall
bear its own costs of such Transfer and closing, including attorneys' fees and
filing fees.
1.3.6 Put and Call Rights.
(a) Put Rights. Subject to Section 13.6(d), CPP shall
have the right to require Holdings to acquire all or part of CPP's Interest,
for the consideration and on the other terms specified in this Section 13.6, in
accordance with the following provisions:
(i) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the Initial Buildout
Completion Date or (B) the date the determination is made pursuant to Section
13.6(g), as of the Initial Buildout Completion Date, of the Net Equity of CPP's
Interest and the fair market value of any interest in Holdings that CPP may
elect to receive in exchange for all or part of any Interest Transferred to
Holdings and ending ninety days after such later date, to require that Holdings
acquire from CPP up to that amount of CPP's Interest representing a Percentage
Interest equal to 10.2%.
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(ii) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the first anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the first anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and, if required,
the fair market value of any interest in Holdings that CPP may elect to receive
in exchange for all or part of any Interest Transferred to Holdings and ending
ninety days after such later date, to require that Holdings acquire from CPP up
to that amount of CPP's Interest representing a Percentage Interest equal to
10.2%.
(iii) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the second anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the second anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and, if required,
the fair market value of any interest in Holdings that CPP may elect to receive
in exchange for all or part of any Interest Transferred to Holdings and ending
ninety days after such later date, to require that Holdings acquire from CPP up
to that amount of CPP's Interest representing a Percentage Interest equal to
10.2%.
(iv) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the third anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the third anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and, if required,
the fair market value of any interest in Holdings that CPP may elect to receive
in exchange for all or part of any Interest Transferred to Holdings and ending
ninety days after such later date, to require that Holdings acquire from CPP up
to that amount of CPP's Interest representing a Percentage Interest equal to
10.2%.
(v) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the fourth anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the fourth anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and, if required,
the fair market value of any interest in Holdings that CPP may elect to receive
in exchange for all or part of any Interest Transferred to Holdings and ending
on the later of (A) ninety days after such later date or (B) thirty days after
CPP's receipt of a notice from Holdings pursuant to Section 13.6(b)(i) with
respect to less than all of CPP's Interest, to require that Holdings acquire
from CPP up to all of CPP's Interest.
(vi) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the fifth anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the fifth anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and the fair
market value of any interest in Holdings that CPP may elect to receive in
exchange for all or part of any Interest Transferred to Holdings and ending on
the later of (A) ninety days after such later
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date or (B) thirty days after CPP's receipt of a notice from Holdings pursuant
to Section 13.6(b)(ii) with respect to less than all of CPP's Interest, to
require that Holdings acquire from CPP up to all of CPP's Interest.
(vii) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the sixth anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the sixth anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and the fair
market value of any interest in Holdings that CPP may elect to receive in
exchange for all or part of any Interest Transferred to Holdings and ending on
the later of (A) ninety days after such later date or (B) thirty days after
CPP's receipt of a notice from Holdings pursuant to Section 13.6(b)(iii) with
respect to less than all of CPP's Interest, to require that Holdings acquire
from CPP up to all of CPP's Interest.
(viii) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the seventh
anniversary of the Initial Buildout Completion Date or (B) the date the
determination is made pursuant to Section 13.6(g), as of the seventh
anniversary of the Initial Buildout Completion Date, of the Net Equity of CPP's
Interest and the fair market value of any interest in Holdings that CPP may
elect to receive in exchange for all or part of any Interest Transferred to
Holdings and ending on the later of (A) ninety days after such later date or
(B) thirty days after CPP's receipt of a notice from Holdings pursuant to
Section 13.6(b)(iv) with respect to less than all of CPP's Interest, to require
that Holdings acquire from CPP up to all of CPP's Interest.
(ix) CPP may elect, by written notice delivered to
Holdings during the period beginning on the later of (A) the eighth anniversary
of the Initial Buildout Completion Date or (B) the date the determination is
made pursuant to Section 13.6(g), as of the eighth anniversary of the Initial
Buildout Completion Date, of the Net Equity of CPP's Interest and the fair
market value of any interest in Holdings that CPP may elect to receive in
exchange for all or part of any Interest Transferred to Holdings and ending on
the later of (A) ninety days after such later date or (B) thirty days after
CPP's receipt of a notice from Holdings pursuant to Section 13.6(b)(v) with
respect to less than all of CPP's Interest, to require that Holdings acquire
from CPP up to all of CPP's Interest.
(x) If CPP, as the Non-Managing Partner of the
Partnership, with respect to each of two consecutive Fiscal Years, commences
the negotiation procedures described in Section 5.2(c) and, for each of those
Fiscal Years, after completion of such negotiation procedures, Holdings, as the
Managing Partner of the Partnership either adopts a Budget or Business Plan or
implements a Proposed Change that does not satisfy CPP's objections to the
Proposed Budget, Proposed Business Plan or Proposed Change as specified in its
Budget Objections, then CPP may elect, by written notice delivered to Holdings
during the period beginning upon the date the determination is made pursuant to
Section 13.6(g), as of the date of Holdings's adoption of the Budget and
Business Plan for the
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second such Fiscal Year or, if applicable, Holdings's adoption of a Proposed
Change to the Budget or Business Plan for the second such Fiscal Year, of the
Net Equity of CPP's Interest and the fair market value of any interest in
Holdings that CPP may elect to receive in exchange for all or part of any
Interest Transferred to Holdings and ending thirty days later, to require that
Holdings acquire from CPP all of CPP's Interest.
(b) Call Rights. Subject to Section 13.6(d), Holdings
shall have the right to require that CPP Transfer to Holdings all or part of
CPP's Interest, for the consideration and on the other terms specified in this
Section 13.6, in accordance with the following provisions:
(i) Holdings may elect, by written notice
delivered to CPP during the period beginning on the later of (A) the fourth
anniversary of the Initial Buildout Completion Date or (B) the date the
determination is made pursuant to Section 13.6(g), as of the fourth anniversary
of the Initial Buildout Completion Date, of the Net Equity of CPP's Interest
and the fair market value of any interest in Holdings that CPP may elect to
receive in exchange for all or part of any Interest to be Transferred to
Holdings and ending on the later of (A) ninety days after such later date or
(B) thirty days after Holdings's receipt of a notice from CPP pursuant to
Section 13.6(a)(v) with respect to less than all of CPP's Interest, to require
that CPP Transfer to Holdings up to all of CPP's Interest.
(ii) Holdings may elect, by written notice
delivered to CPP during the period beginning on the later of (A) the fifth
anniversary of the Initial Buildout Completion Date or (B) the date the
determination is made pursuant to Section 13.6(g), as of the fifth anniversary
of the Initial Buildout Completion Date, of the Net Equity of CPP's Interest
and the fair market value of any interest in Holdings that CPP may elect to
receive in exchange for all or part of any Interest Transferred to Holdings and
ending on the later of (A) ninety days after such later date or (B) thirty days
after Holdings's receipt of a notice from CPP pursuant to Section 13.6(a)(vi)
with respect to less than all of CPP's Interest, to require that CPP Transfer
to Holdings up to all of CPP's Interest.
(iii) Holdings may elect, by written notice
delivered to CPP during the period beginning on the later of (A) the sixth
anniversary of the Initial Buildout Completion Date or (B) the date the
determination is made pursuant to Section 13.6(g), as of the sixth anniversary
of the Initial Buildout Completion Date, of the Net Equity of CPP's Interest
and the fair market value of any interest in Holdings that CPP may elect to
receive in exchange for all or part of any Interest Transferred to Holdings and
ending on the later of (A) ninety days after such later date or (B) thirty days
after Holdings's receipt of a notice from CPP pursuant to Section 13.6(a)(vii)
with respect to less than all of CPP's Interest, to require that CPP Transfer
to Holdings up to all of CPP's Interest.
(iv) Holdings may elect, by written notice
delivered to CPP during the period beginning on the later of (A) the seventh
anniversary of the Initial Buildout Completion Date or (B) the date the
determination is made pursuant to Section 13.6(g), as of the seventh
anniversary of the Initial Buildout Completion Date, of the Net Equity of CPP's
Interest and the fair market value of any interest in Holdings that CPP may
elect to receive in exchange for all
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<PAGE> 96
or part of any Interest Transferred to Holdings and ending on the later of (A)
ninety days after such later date or (B) thirty days after Holdings's receipt
of a notice from CPP pursuant to Section 13.6(a)(viii) with respect to less
than all of CPP's Interest, to require that CPP Transfer to Holdings up to all
of CPP's Interest.
(v) Holdings may elect, by written notice
delivered to CPP during the period beginning on the later of (A) the eighth
anniversary of the Initial Buildout Completion Date or (B) the date the
determination is made pursuant to Section 13.6(g), as of the eighth anniversary
of the Initial Buildout Completion Date, of the Net Equity of CPP's Interest
and the fair market value of any interest in Holdings that CPP may elect to
receive in exchange for all or part of any Interest Transferred to Holdings and
ending on the later of (A) ninety days after such later date or (B) thirty days
after Holdings's receipt of a notice from CPP pursuant to Section 13.6(a)(ix)
with respect to less than all of CPP's Interest, to require that CPP Transfer
to Holdings up to all of CPP's Interest.
(vi) If Holdings is to be converted to corporate
form at any time prior to the eighth anniversary of the Initial Buildout
Completion Date in connection with an initial public offering of shares of
common stock of the corporate successor to Holdings as the result of the
exercise by any Holdings Partner of its rights under Section 12.6 of the
Holdings Partnership Agreement, Holdings may elect, by written notice delivered
to CPP during the period beginning on the first date on which the condition in
the first sentence of Section 12.6(g) of the Holdings Partnership Agreement is
satisfied and ending thirty days later, to require that CPP Transfer to
Holdings up to all of CPP's Interest; provided that such Transfer shall occur
concurrently with, and shall be conditioned upon the consummation of, such
initial public offering.
(vii) If Holdings, as the Non-Managing Partner of
the Partnership, with respect to each of two consecutive Fiscal Years beginning
after the Initial Buildout Completion Date, commences the negotiation
procedures described in Section 5.2(c) and, for each of those Fiscal Years,
after completion of such negotiation procedures, CPP, as the Managing Partner
of the Partnership either adopts a Budget or Business Plan or implements a
Proposed Change that does not satisfy Holdings's objections to the Proposed
Budget, Proposed Business Plan or Proposed Change as specified in its Budget
Objections, then Holdings may elect, by written notice delivered to CPP during
the period beginning upon the date the determination is made pursuant to
Section 13.6(g), as of the date of CPP's adoption of the Budget and Business
Plan for the second such Fiscal Year or, if applicable, CPP's adoption of a
Proposed Change to the Budget or Business Plan for the second such Fiscal Year,
of the Net Equity of CPP's Interest and the fair market value of any interest
in Holdings that CPP may elect to receive in exchange for all or part of any
Interest Transferred to Holdings and ending thirty days later, to require that
CPP Transfer to Holdings up to all of CPP's Interest (but not less than an
Interest representing a Percentage Interest of twenty percent (20%)).
(c) Requirements as to Notice. Any notice pursuant to
Section 13.6(a) or Section 13.6(b) shall specify the amount of CPP's Interest
that CPP elects to require Holdings
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<PAGE> 97
to acquire or that Holdings elects to require CPP to Transfer, as applicable.
Such amount shall be stated in terms of the Percentage Interest represented by
the Interest to be Transferred and acquired.
(d) Limitations.
(i) Notwithstanding anything to the contrary in
Section 13.6(a), the first election by CPP pursuant to Section 13.6(a) shall be
for a portion of CPP's Interest that represents a Percentage Interest equal to
the amount by which the aggregate Percentage Interest of CPP (before giving
effect to the Transfer pursuant to such election) exceeds forty-nine percent
(49%).
(ii) Unless Holdings has previously made an
election pursuant to Section 13.6(b)(vii), CPP will not be entitled to make an
election:
(A) pursuant to Section 13.6(a)(ii), unless
CPP made an election pursuant to Section 13.6(a)(i) with respect to the maximum
amount of its Interest for which it could make an election pursuant to Section
13.6(a)(i);
(B) pursuant to Section 13.6(a)(iii), unless
CPP made an election pursuant to each of Section 13.6(a)(i) and Section
13.6(a)(ii) with respect to the maximum amount of its Interest for which it
could make an election pursuant to Section 13.6(a)(i) and Section 13.6(a)(ii);
and
(C) to Section 13.6(a)(iv), unless CPP made
an election pursuant to each of Section 13.6(a)(i), Section 13.6(a)(ii) and
Section 13.6(a)(iii) with respect to the maximum amount of its Interest for
which it could make an election pursuant to Section 13.6(a)(i), Section
13.6(a)(ii) and Section 13.6(a)(iii).
(iii) Neither CPP nor Holdings may make an election
pursuant to Section 13.6(a) or Section 13.6(b) unless CPP or Holdings shall
have elected to commence the appraisal procedures required by this Section 13.6
pursuant to Section 13.6(g)(i):
(A) in the case of an election pursuant to
Section 13.6(a)(x) or Section 13.6(b)(vii), within ten (10) days after the date
on which Holdings or CPP, as applicable, adopts the Budget and Business Plan
for the second relevant Fiscal Year or, if applicable, adopts the Proposed
Change to the Budget or Business Plan for the second relevant Fiscal Year;
(B) in the case of an election pursuant to
Section 13.6(b)(vi), within ten (10) days after the first date on which the
condition in the first sentence of Section 12.6(g) of the Holdings Partnership
Agreement is satisfied;
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<PAGE> 98
(C) in the case of an election pursuant to
Section 13.6(a)(i), prior to the earlier of October 15, 1997 or the tenth
(10th) day after the Initial Buildout Completion Date; or
(D) in the case of any other election, at
least sixty (60) days prior to the date on which the applicable election
pursuant to Section 13.6(a) or Section 13.6(b) could be made if the Net Equity
of CPP's Interest and the fair market value of any interest in Holdings that
CPP may elect to receive in exchange for all or part of any Interest
Transferred to Holdings, each as of such date, had been determined.
(e) Consideration for Put or Call.
(i) Except as provided in Section 13.6(e)(ii), if
CPP or any Controlled Affiliate of CPP owns an equity interest in Holdings at
the time of an election pursuant to Section 13.6(a) or Section 13.6(b) and the
aggregate Percentage Interest (as defined in, and determined in accordance
with, the Holdings Partnership Agreement) in Holdings of CPP and its Controlled
Affiliates is greater than five percent (5%), then CPP will have the option to
receive in exchange for all or any part of any Interest Transferred to Holdings
pursuant to this Section 13.6 an equity interest in Holdings. If CPP elects
pursuant to this Section 13.6(e)(i) to receive an equity interest in Holdings
in exchange for all or any part of any Interest Transferred to Holdings:
(A) with respect to
(1) any election made by CPP pursuant
to Section 13.6(a)(i), Section 13.6(a)(vi), Section 13.6(a)(vii), Section
13.6(a)(viii), or Section 13.6(a)(ix),
(2) any election made by CPP pursuant
to Section 13.6(a)(x) on or after the fifth anniversary of the Initial Buildout
Completion Date,
(3) any election made by CPP pursuant
to Section 13.6(a)(ii), Section 13.6(a)(iii), Section 13.6(a)(iv), or Section
13.6(a)(v), or any election made by CPP pursuant to Section 13.6(a)(x) prior to
the fifth anniversary of the Initial Buildout Completion Date, in each case
described in this clause (3) if and to the extent that the amount of Original
Capital Contributions (as defined in the Holdings Partnership Agreement) plus
the amount of Additional Capital Contributions (as defined in the Holdings
Partnership Agreement) made or requested to be made by the Holdings Partners
other than PioneerCo Contributions (as defined in the Holdings Partnership
Agreement) prior to the Transfer of CPP's Interest to Holdings pursuant to such
election plus any Preemptive Contributions (as defined in the Holdings
Partnership Agreement) that the Holdings Partners would be entitled to make in
connection with the Transfer of CPP's Interest to Holdings pursuant to the
preemptive rights described in Section 8.10 of the Holdings Partnership
Agreement would not exceed Five Billion Dollars ($5,000,000,000), or
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(4) any election by Holdings pursuant
to Section 13.6(b),
such equity interest shall consist of a partnership interest in Holdings having
the same rights and obligations (proportionate to the size thereof, if
applicable) as the Interests (as defined in the Holdings Partnership Agreement)
of the Holdings Partners on the date of this Agreement;
(B) with respect to any election made by CPP
pursuant to Section 13.6(a)(ii), Section 13.6(a)(iii), Section 13.6(a)(iv), or
Section 13.6(a)(v), or any election made by CPP pursuant to Section 13.6(a)(x)
prior to the fifth anniversary of the Initial Buildout Completion Date, in each
case if and to the extent that the amount of Original Capital Contributions
plus the amount of Additional Capital Contributions made or requested to be
made by the Holdings Partners (other than PioneerCo Contributions) prior to the
Transfer of CPP's Interest to Holdings pursuant to such election plus any
Preemptive Contributions that the Holdings Partners would be entitled to make
in connection with the Transfer of CPP's Interest to Holdings pursuant to the
preemptive rights described in Section 8.10 of the Holdings Partnership
Agreement would exceed Five Billion Dollars ($5,000,000,000), such equity
interest shall consist of a preferred partnership interest in Holdings on the
terms described in Schedule 13.6; and
(C) size of any partnership interest in
Holdings to be issued in exchange for an Interest subject to a put or call
under this Section 13.6 shall be such that the fair market value of such
interest shall equal the Net Equity of the Transferred Interest, each
determined in accordance with Section 13.6(g), as of the closing date for the
Transfer of the Interest.
(ii) If Holdings shall have been converted to
corporate form in the manner contemplated by Section 5.9 of the Holdings
Partnership Agreement and, in connection therewith, the corporate successor to
Holdings ("MajorCorp") shall have succeeded to the rights and obligations of
Holdings under this Agreement, including this Section 13.6, then, if CPP or any
Controlled Affiliate of CPP owns an equity interest in MajorCorp or if
MajorCorp is Publicly Held at the time of an election pursuant to Section
13.6(a) or Section 13.6(b), then CPP will have the option to receive in
exchange for all or any part of any Interest Transferred to MajorCorp pursuant
to this Section 13.6 common stock of MajorCorp. If CPP elects pursuant to this
Section 13.6(e)(ii) to receive common stock of MajorCorp. in exchange for all
or any part of any Interest Transferred to MajorCorp:
(A) if CPP or any Controlled Affiliate of
CPP owns an equity interest in MajorCorp at the time of an election pursuant to
Section 13.6(a) or Section 13.6(b), the common stock received by CPP will be
the same series of common stock held by the former Holdings Partners and will
have the same liquidity, standstill and transferability rights and restrictions
that are applicable to the equity interest in MajorCorp held by CPP or its
Controlled Affiliate;
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<PAGE> 100
(B) if neither CPP nor any Controlled
Affiliate of CPP owns an equity interest in MajorCorp at the time of an
election pursuant to Section 13.6(a) or Section 13.6(b), the common stock
received by CPP will be freely tradeable and transferable, subject only to
restrictions imposed by applicable securities laws, and MajorCorp will grant
CPP reasonable demand and piggyback registration rights with respect to such
common stock (no less favorable than those contemplated by Section 5.9(b) of
the Holdings Partnership Agreement); and
(C) number of shares of common stock to be
issued in exchange for an Interest subject to a put or call under this Section
13.6 shall be such that the fair market value of such shares shall equal the
Net Equity of the Transferred Interest, each determined in accordance with
Section 13.6(g), as of the closing date for the Transfer of the Interest.
(iii) To the extent that CPP does not elect (or is
not eligible to elect) to receive an equity interest in exchange for all or any
part of any Interest Transferred to Holdings or MajorCorp pursuant to this
Section 13.6, CPP will receive cash in exchange for such Interest in an amount
equal to the Net Equity of the Transferred Interest, determined in accordance
with Section 13.6(g), as of the closing date for the Transfer of the Interest.
(f) Other Terms and Conditions of Purchase and Sale.
(i) Unless CPP and Holdings otherwise agree, the
closing of any Transfer of an Interest pursuant to this Section 13.6 shall be
held at the principal office of the Partnership at 10:00 a.m. (local time at
the place of closing) on the first Business Day on or after the thirtieth
(30th) day following the election by CPP or Holdings pursuant to Section
13.6(a) or Section 13.6(b), subject to (A) the provisions of Section 12.5 and
Section 13.6(g)(vi), (B) any reasonable delay (not to exceed three hundred
sixty-five (365) days, except as the Partners may otherwise agree) that may be
required to implement any tax-free transaction agreed to by the Partners
pursuant to Section 13.6(f)(iii) and (C) any delay that may be required to
permit Holdings to issue an equity interest to CPP with respect to all or part
of the Interest being Transferred. At the closing, Holdings shall pay to CPP,
by cash or other immediately available funds, the purchase price for any
Partner Loans, Special Interest and LeasingCo Interest being purchased and that
portion, if any, of the Interest being Transferred for which the consideration
is to be paid in cash and shall issue to CPP any equity interest to be issued
with respect to that portion, if any, of the Interest being Transferred for
which CPP has elected to receive an equity interest, and CPP shall deliver to
Holdings good title, free and clear of any Liens (other than those created by
this Agreement and those securing financing obtained by the Partnership), to
the Interest being Transferred and the Partner Loans, Special Interest and
LeasingCo Interest thus purchased.
(ii) At the closing, the Partners shall execute
such documents and instruments of conveyance as may be necessary or appropriate
to effectuate the transactions contemplated hereby, including the Transfer of
the Interest being Transferred and any Partner
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<PAGE> 101
Loans, Special Interest or LeasingCo Interest to Holdings, the issuance to CPP
of any equity interest and the assumption by Holdings of CPP's obligations with
respect to the portion of CPP's Interest Transferred to Holdings. Each Partner
and the Partnership shall bear its own costs of such Transfer and closing,
including attorneys' fees and filing fees.
(iii) The Partners will use all commercially
reasonable efforts to structure any Transfer pursuant to this Section 13.6 as a
tax-free transaction (including, in the case of a Transfer to MajorCorp, by way
of a merger of the corporate owners of CPP with and into MajorCorp, subject in
such event to MajorCorp's receipt of appropriate protections against any
liabilities of CPP and its corporate owners that are not attributed to them
from the Partnership) to the extent that a Transfer on the terms described
herein can be so structured under federal and state tax laws then in effect.
(g) Determination of Values.
(i) Commencement of Appraisals. Either Partner
may elect to commence the appraisal procedures necessary to determine the Net
Equity of CPP's Interest and, if required, the fair market value of any equity
interest in Holdings or MajorCorp that CPP may elect to receive in exchange for
all or part of any Interest Transferred to Holdings or MajorCorp, by sending
written notice of its election to the other Partner, which notice shall
designate the First Appraiser. Within ten (10) Business Days after its receipt
of such notice, the other Partner shall send a written notice to the electing
Partner designating the Second Appraiser. Each Partner shall bear the costs of
the appraisal submitted by the appraiser designated by such Partner. If a
Third Appraiser is appointed, the costs of the appraisal submitted by such
Third Appraiser shall be borne one-half by CPP and one-half by Holdings.
(ii) Net Equity of CPP's Interest. Net Equity of
CPP's Interest for purposes of any determination referred to in Section 13.6(a)
or Section 13.6(b) shall be determined in accordance with Section 12.3 by the
First Appraiser and the Second Appraiser designated pursuant to Section
13.6(g)(i) (and, if applicable, by a Third Appraiser selected by such
appraisers); provided, however, that, if, in order to permit the assignment of
CPP's Interest to Holdings or MajorCorp to be accomplished on a tax-free basis,
the assignment is structured in a manner that does not result in a "step-up" in
the basis of the assets of the Partnership to their respective fair market
values (or produce an equivalent result from the standpoint of the other
Holdings Partners under Section 704 of the Internal Revenue Code), the
appraisers shall adjust the Gross Appraised Value of the assets of the
Partnership for purposes of their appraisals to take into account the effect of
the absence of a step-up in basis on the price at which a willing seller would
sell, and a willing buyer would buy, such assets. Net Equity of CPP's Interest
as of the closing date of any Transfer of an Interest, for purposes of Section
13.6(e)(i)(C), Section 13.6(e)(ii)(C) or Section 13.6(e)(iii), shall be the Net
Equity as determined above immediately prior to the election pursuant to
Section 13.6(a) or Section 13.6(b) or, if the closing date is more than six
months after the applicable date referred to in Section 13.6(a) or Section
13.6(b), Net Equity as re-determined pursuant to Section 13.6(g)(vi) as of the
six-month anniversary of the applicable date referred to in Section 13.6(a) or
Section 13.6(b) that immediately precedes the
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closing date of such Transfer, adjusted in any case for any Capital
Contributions by and distributions to the Partners from the applicable date as
of which Net Equity was determined.
(iii) Fair Market Value of Partnership Interest in
Holdings. The fair market value of any partnership interest in Holdings to be
issued in exchange for an Interest subject to a put or call under this Section
13.6, as described in Section 13.6(e)(i)(A), for purposes of any determination
referred to in Section 13.6(a) or Section 13.6(b), will equal the Net Equity of
such interest (determined as provided in Section 11.3 of the Holdings
Partnership Agreement). The Gross Appraised Value of Holdings, for purposes of
calculating the Net Equity of any partnership interest, shall be determined in
the manner described in Section 11.4 of the Holdings Partnership Agreement by
the First Appraiser and the Second Appraiser designated pursuant to Section
13.6(g)(i) (and, if applicable, by a Third Appraiser selected by such
appraisers). The fair market value of such partnership interest as of the
closing date of any Transfer of an Interest, for purposes of Section
13.6(e)(i)(C), shall be the Net Equity of such interest as determined above
immediately prior to the election pursuant to Section 13.6(a) or Section
13.6(b) with respect to which such Transfer is being made or, if the closing
date is more than six months after the applicable date referred to in Section
13.6(a) or Section 13.6(b), Net Equity of such interest as re-determined
pursuant to Section 13.6(g)(vi) as of the six-month anniversary of the
applicable date referred to in Section 13.6(a) or Section 13.6(b) that
immediately precedes the closing date of such Transfer, adjusted in any case
for any capital contributions by and distributions to the Holdings Partners
from the applicable date as of which Net Equity of such interest was
determined.
(iv) Fair Market Value of Preferred Partnership
Interest in Holdings. The fair market value of any preferred partnership
interest in Holdings to be issued in exchange for an Interest subject to a put
under this Section 13.6, as described in Section 13.6(e)(i)(B), will be deemed
to equal its par value.
(v) Fair Market Value of Stock.
(A) If MajorCorp is not Publicly Held, the
fair market value of any common stock to be issued in exchange for CPP's
Interest, for purposes of any determination referred to in Section 13.6(a) or
Section 13.6(b), will equal the product of (1) the percentage of the total
common stock of MajorCo represented by such common stock multiplied by (2) the
price at which a willing seller would sell, and a willing buyer would buy, 100%
of the common stock of MajorCorp, as determined by the First Appraiser and the
Second Appraiser designated pursuant to Section 13.6(g)(i) (and, if applicable,
by a Third Appraiser selected by such appraisers) in the manner described in
Section 11.4 of the Holdings Partnership Agreement, and with the results of the
individual appraisals being averaged in the manner described in Section 11.4 of
the Holdings Partnership Agreement. The fair market value of such stock as of
the closing date of any Transfer of an Interest, for purposes of Section
13.6(e)(ii)(C), shall be the fair market value of such stock as determined
above immediately prior to the election pursuant to Section 13.6(a) or Section
13.6(b) with respect to which such Transfer is being made or, if the closing
date is more than six months after the applicable date referred to in Section
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13.6(a) or Section 13.6(b), the fair market value of such stock as
re-determined pursuant to Section 13.6(g)(vi) as of the six-month anniversary
of the applicable date referred to in Section 13.6(a) or Section 13.6(b) that
immediately precedes the closing date of such Transfer, adjusted in any case
for any capital contributions by and distributions to the stockholders of
MajorCorp from the applicable date as of which the fair market value of such
stock was determined.
(B) If MajorCorp is Publicly Held, the fair
market value as of any date of each share of common stock to be issued in
exchange for CPP's Interest will be the average for the twenty full trading
days preceding such date of (1) the last reported sales prices, regular way, as
reported on the principal national securities exchange on which shares of such
common stock are listed or admitted for trading or (2) if shares of such common
stock are not listed or admitted for trading on any national securities
exchange, the last reported sales prices, regular way, as reported on the
Nasdaq National Market or, if shares of such common stock are not listed on the
Nasdaq National Market, the average of the highest bid and lowest asked prices
on each such trading day as reported on the Nasdaq Stock Market, or (3) if
shares of such common stock are not listed or admitted to trading on any
national securities exchange, the Nasdaq National Market or the Nasdaq Stock
Market, the average of the highest bid and lowest asked prices on each such
trading day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization. For
purposes of this Section 13.6(g)(v)(B), a "trading day" means a day on which
the principal national securities exchange on which shares of such common stock
are listed or admitted to trading, or the Nasdaq National Market or the Nasdaq
Stock Market, as applicable, if shares of such common stock are not listed or
admitted to trading on any national securities exchange, is open for the
transaction of business (unless such trading shall have been suspended for the
entire day) or, if shares of such common stock are not listed or admitted to
trading on any national securities exchange, the Nasdaq National Market or the
Nasdaq Stock Market, any Business Day.
(vi) Re-Determination of Values. If the closing
of any Transfer of an Interest is to occur more than six months after the
applicable date referred to in Section 13.6(a) or Section 13.6(b) or any
six-month anniversary thereof, the Net Equity of the Interest to be
Transferred, the Net Equity of any interest in Holdings to be issued in
exchange for such Interest and the fair market value of any stock in MajorCorp
to be issued in exchange for such Interest (if MajorCorp is not Publicly Held),
as applicable, shall be re-determined as of the six-month anniversary of the
applicable date referred to in Section 13.6(a) or Section 13.6(b) that
immediately precedes the closing date of such Transfer by the same First
Appraiser and Second Appraiser (and, if applicable, Third Appraiser) that
determined such values as of the applicable date referred to in Section 13.6(a)
or Section 13.6(b). Any such re-determination shall be made in accordance with
the procedures specified above in this Section 13.6(g) except that each of the
First Appraiser and the Second Appraiser shall submit its determination of
Gross Appraised Value and any other
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relevant values within fifteen (15) days after such six-month anniversary and
the Third Appraiser shall submit its determination of Gross Appraised Value and
any other relevant values within fifteen (15) days after the latest date on
which either the First Appraiser or the Second Appraiser submitted its
determination of Gross Appraised Value and any other relevant values. The
closing date of any Transfer of an Interest pursuant to this Section 13.6 shall
be postponed as required to permit the relevant values to be re-determined
pursuant to this Section 13.6(g)(vi).
13.7 Prohibited Dispositions.
Any purported Disposition of all or any part of an Interest that is
not a Permitted Transfer shall be null and void and of no force or effect
whatever; provided that, if the Partnership is required to recognize a
Disposition that is not a Permitted Transfer (or if the non-transferor Partner
elects to recognize a Disposition that is not a Permitted Transfer), the
Interest Disposed of shall be strictly limited to the transferor's rights to
allocations and distributions as provided by this Agreement with respect to the
Transferred Interest, which allocations and distributions may be applied
(without limiting any other legal or equitable rights of the Partnership) to
satisfy any debts, obligations, or liabilities for damages that the transferor
or transferee of such Interest may have to the Partnership.
13.8 Representations Regarding Transfers.
Each Partner hereby represents and warrants to the other Partner that
such Partner's acquisition of Interests hereunder is made as principal for such
Partner's own account and not for resale or distribution of such Interests.
13.9 Distributions and Allocations in Respect of Transferred
Interests.
If any Interest is Transferred during any Fiscal Year in compliance
with the provisions of this Section 13, Profits, Losses, 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 by
taking into account their varying Percentage Interests during the Fiscal Year
in accordance with Code Section 706(d), using any conventions permitted by law
and selected by agreement between the Partners. All distributions on or before
the date of such Transfer with respect to the Transferred Interest shall be
made to the transferor, and all distributions thereafter with respect to the
Transferred Interest shall be made to the transferee. Solely for purposes of
making such allocations and distributions, the Partnership shall recognize such
Transfer not later than the end of the calendar month during which it is given
notice of such Transfer, provided that, if the Partnership is given notice of a
Transfer at least ten (10) Business Days prior to the Transfer, the Partnership
shall recognize such Transfer as of the date of such Transfer, and provided
further, that if the Partnership does not receive a notice stating the date
such Interest was Transferred and such other information as the Managing
Partner may reasonably require within thirty (30) days after the end of the
Fiscal Year during which the Transfer occurs, then all such items shall be
allocated, and all distributions shall be made, to the Person that, according
to the books and records of the Partnership, was the owner of the Interest on
the last day of such Fiscal Year. Neither the Partnership nor the
non-transferor Partner shall incur any liability for making allocations and
distributions in accordance with the provisions of
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this Section 13.9, whether or not or the Partnership or either Partner has
knowledge of any Transfer of ownership of any Interest.
SECTION 14. CONVERSION OF INTERESTS
14.1 Conversion of Holdings Interest.
Holdings's Interest shall be converted to both a General Partner
Interest and a Limited Partner Interest upon the later to occur of (a) such
time as the aggregate Percentage Interests of Holdings and its Controlled
Affiliates exceeds fifty percent (50.0%) and (b) the receipt by the Partnership
and Holdings of all consents, approvals, waivers, or authorizations of
Governmental Authorities necessary for Holdings to become a General Partner of
the Partnership. Thereafter, Holdings's Interest shall be deemed held by
Holdings ninety-nine percent (99.0%) as a General Partner and one percent
(1.0%) as a Limited Partner, all as provided in Section 2.1.
14.2 Termination of Status as General Partner.
(a) A General Partner shall cease to be a General Partner
upon the occurrence of any of the following:
(i) the Transfer of such Partner's entire
Interest as a Partner in a Permitted Transfer (in which event the transferee of
such Interest shall be admitted as a successor General Partner and a Limited
Partner upon compliance with Section 13.3),
(ii) the agreement of the Partners permitting such
General Partner to withdraw,
(iii) an Adverse Act occurs or is continuing with
respect to such Partner following the Initial Buildout Completion Date, or
(iv) in the case of CPP, if its Percentage
Interest is less than eight percent (8%).
In the event a Person ceases to be a General Partner pursuant to subparagraph
(ii), (iii) or (iv) above, the Interest of such Person as a General Partner
shall automatically and without any further action by the Partners be converted
into an Interest solely as a Limited Partner, and such Partner shall thereafter
be an Exclusive Limited Partner.
(b) The Partners intend that the Partnership not dissolve
as a result of the cessation of any Person's status as a General Partner;
provided, however, that if it is determined by a court of competent
jurisdiction that the Partnership has dissolved, the provisions of Section 15
shall govern.
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14.3 Restoration of Status as General Partner.
(a) An Adverse Partner that ceases to be a General
Partner in accordance with Section 14.2(a)(iii) shall be restored to the status
of a General Partner, and its Interest shall thereafter be deemed held in part
as a General Partner and in part as a Limited Partner as provided in Section
2.1, in the following circumstances:
(i) if the Partner became an Adverse Partner as a
consequence of Bankruptcy, such Partner will again become a General Partner if
such Partner ceases to be in a state of Bankruptcy;
(ii) if the Partner became an Adverse Partner as a
consequence of the occurrence of any IXC Transaction, such Partner will again
become a General Partner if such Partner ceases to have the relationship with
the IXC that caused such IXC Transaction to occur; and
(iii) if the Partner became an Adverse Partner as a
consequence of the occurrence of an event described in subparagraph (viii) of
the definition of such term in Section 1.10, such Partner will again become a
General Partner if such Partner eliminates the circumstances that constituted
such an Adverse Act.
(b) If an Adverse Partner ceases to be a General Partner
in accordance with Section 14.2(a)(iii) as a result of the occurrence of an
Adverse Act described in subparagraph (iv), (v) or (viii) of the definition of
such term in Section 1.10, the transferee of such Partner's Interest will be
entitled to become a General Partner, and the transferee's Interest shall be
deemed held in part as a General Partner and in part as a Limited Partner as
provided in Section 2.1, if the Adverse Partner Transfers its Interest in
compliance with Section 13 to a Person that is not an Adverse Partner and does
not become an Adverse Partner as a result of such Transfer.
SECTION 15. DISSOLUTION AND WINDING UP
15.1 Liquidating Events.
(a) In General. Subject to Section 15.1(b), the
Partnership shall dissolve and commence winding up and liquidating upon the
first to occur of any of the following ("Liquidating Events"):
(i) The sale of all or substantially all of the
Property;
(ii) Agreement of both Partners to dissolve, wind
up, and liquidate the Partnership (which may not occur until after the Initial
Buildout Completion Date);
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(iii) The withdrawal of a General Partner, the
assignment by a General Partner of its entire Interest or any other event that
causes a General Partner to cease to be a general partner under the Act,
provided that any such event shall not constitute a Liquidating Event if the
Partnership is continued pursuant to this Section 15.1(a);
(iv) At the election of either Partner, if (A) the
License Contribution Date has not occurred on or prior to June 30, 1998 or (B)
prior to the License Contribution Date, the License has been canceled or
revoked by the FCC and the FCC's order canceling or revoking the License is no
longer subject to administrative or judicial review or appeal; provided that a
Partner may not elect to dissolve the Partnership pursuant to clause (A) of
this Section 15.1(a)(iv) if the failure of the License Contribution Date to
occur by such date was caused by such Partner's breach of this Agreement; and
(v) At the election of either Partner, after the
License Contribution Date, if the License has been canceled or revoked by the
FCC as a result of the breach by the other Partner of any of its covenants in
Section 8.3 or any circumstance constituting a breach of any of its
representations in Section 9.2(a), Section 9.2(b) or Section 9.2(c) and the
FCC's order canceling or revoking the License is no longer subject to
administrative or judicial review or appeal.
The Partners hereby agree that, notwithstanding any provision of the Act or the
Delaware Uniform Partnership Act, the Partnership shall not dissolve prior to
the occurrence of a Liquidating Event. Upon the occurrence of any event set
forth in Section 15.1(a)(iii) the Partnership shall not be dissolved or
required to be wound up if at the time of such event there are at least two
Partners and (x) there is at least one remaining General Partner and that
General Partner carries on the business of the Partnership (any such remaining
General Partner being hereby authorized to carry on the business of the
Partnership), or (y) within ninety (90) days after such event all remaining
Partners agree in writing to continue the business of the Partnership and to
the appointment, effective as of the date of such event, of one or more
additional General Partners.
(b) Special Rules. The events described in Section
15.1(a)(ii), Section 15.1(a)(iii) and Section 15.1(a)(iv) shall not constitute
Liquidating Events until such time as the Partnership is otherwise required to
dissolve, and commence winding up and liquidating, in accordance with Section
15.6.
(c) Negotiations with Respect to Alternative
Arrangements. If the Partnership is dissolved, wound-up and liquidated
following an election by either Partner pursuant to clause (A) of Section
15.1(a)(iv), the Partners will negotiate in good faith with respect to
alternative arrangements that, consistent with applicable law, would achieve
their respective strategic, economic and business objectives regarding the
ownership and operation of a PCS system in the Los Angeles MTA (as evidenced by
the terms of this Agreement, the affiliation agreement described in Section
8.1(b), the Trademark License and the other agreements contemplated
thereunder).
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15.2 Winding Up.
Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs and those of
LeasingCo in an orderly manner, liquidating its assets and those of LeasingCo,
and satisfying the claims of its creditors and Partners, and neither Partner
shall take any action that is inconsistent with, or not appropriate for, the
winding up of the Partnership's business and affairs. To the extent not
inconsistent with the foregoing, this Agreement shall continue in full force
and effect until such time as the Partnership's Property has been distributed
pursuant to this Section 15.2 and the Certificate has been canceled in
accordance with the Act; provided that upon the occurrence of the event
described in Section 15.1(a)(iv), the Partners shall be released from all
obligations under this Agreement except (i) as otherwise provided in Section
6.5, (ii) any obligations or liabilities arising out of a breach of this
Agreement or pursuant to Section 5.4, and (iii) any obligations or liabilities
based on events occurring, arising or maturing prior to the date that such
event occurred. The Managing Partner, or, if the Managing Partner caused the
Liquidating Event through conduct that constituted a breach of this Agreement,
the other Partner, shall act as liquidator (the "Liquidator") to wind up the
Partnership. The Liquidator shall be responsible for overseeing the winding up
and dissolution of the Partnership, shall take full account of the
Partnership's liabilities and Property, shall cause the Partnership's Property
to be liquidated as promptly as is consistent with obtaining the fair value
thereof, and shall cause the proceeds therefrom, to the extent sufficient
therefor, to be applied and distributed in the following order:
(a) First, to the payment of all of the Partnership's
debts and liabilities (other than Partner Loans) to creditors other than the
Partners and to the payment of the expenses of liquidation;
(b) Second, to the payment of all Partner Loans and all
of the Partnership's debts and liabilities to the Partners in the following
order and priority:
(i) first, to the payment of all debts and
liabilities owed to a Partner other than in respect of Partner Loans;
(ii) second, to the payment of all accrued and
unpaid interest on Partner Loans, such interest to be paid to each Partner and
its Affiliates (considered as a group) pro rata in proportion to the interest
owed to each such group; and
(iii) third, to the payment of the unpaid principal
amount of all Partner Loans, such principal to be paid to each Partner and its
Affiliates (considered as a group) pro rata in proportion to the outstanding
principal owed to each such group; and
(c) The balance, if any, to the Partners in accordance
with their Capital Accounts, after giving effect to all contributions,
distributions and allocations for all periods.
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(d) In the discretion of the Liquidator, a pro rata
portion of the distributions that would otherwise be made to the Partners
pursuant to this Section 15.2 may be:
(i) distributed to a trust established for the
benefit of the Partners for the purposes of liquidating Partnership assets,
collecting amounts owed to the Partnership, and paying any contingent or
unforeseen liabilities or obligations of the Partnership arising out of or in
connection with the Partnership. The assets of any such trust shall be
distributed to the Partners from time to time, in the reasonable discretion of
the Liquidator in the same proportions as the amount distributed to such trust
by the Partnership would otherwise have been distributed to the Partners
pursuant to Section 15.2; or
(ii) withheld to provide a reasonable reserve for
Partnership liabilities (contingent or otherwise) and to reflect the unrealized
portion of any installment obligations owed to the Partnership, provided that
such withheld amounts shall be distributed to the Partners as soon as
practicable.
Each Partner and each of its Affiliates (as to Partner Loans only) agrees that
by accepting the provisions of this Section 15.2 setting forth the priority of
the distribution of the assets of the Partnership to be made upon its
liquidation, such Partner or Affiliate expressly waives any right which it, as
a creditor of the Partnership, might otherwise have under the Act to receive
distributions of assets pari passu with the other creditors of the Partnership
in connection with a distribution of assets of the Partnership in satisfaction
of any liability of the Partnership, and hereby subordinates to the other
creditors of the Partnership any such right.
15.3 Compliance With Certain Requirements of Regulations; Deficit
Capital Accounts.
In the event the Partnership is "liquidated" within the meaning of
Regulations Section 1.704-1(b)(2)(ii)(g), (a) distributions shall be made
pursuant to this Section 15 to the Partners that have positive Capital Accounts
in compliance with Regulations Section 1.704-1(b)(2)(ii)(b)(2), (b) Holdings
shall contribute in cash the amount, if any, required by Section 2.2(c)(iii)
and shall pay to the Partnership all accrued and unpaid interest pursuant to
Section 2.2(e)(i) with respect to such Capital Contribution, (c) CPP shall
contribute to the Partnership the amount, if any, required by Section 2.2(d)
and shall pay to the Partnership all accrued and unpaid interest pursuant to
Section 2.2(e)(ii) with respect to such Capital Contribution, and (d) if the
Capital Account of any General Partner has a deficit balance (after giving
effect to all contributions, distributions, and allocations for all taxable
years, including the year during which such liquidation occurs), such General
Partner shall contribute to the capital of the Partnership the amount necessary
to restore such deficit balance to zero in compliance with Regulations Section
1.704-1(b)(2)(ii)(b)(3). Except as provided in Section 2.2(c)(iii) and clauses
(b) and (c) of the preceding sentence, no Exclusive Limited Partner shall have
any obligation to contribute capital to restore such Exclusive Limited
Partner's Capital Account to zero; provided, however, that an Exclusive Limited
Partner that at any time was a General Partner shall be obligated to contribute
capital to the Partnership pursuant to clause (b) of the preceding sentence to
the extent of the deficit balance, if any, that existed in such Exclusive
Limited Partner's Capital Account
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at the time it became an Exclusive Limited Partner (taking into account for
this purpose any revaluation of Partnership assets pursuant to clause (D) of
subparagraph (ii) of the definition of Gross Asset Value made as a result of
such Partner's becoming an Exclusive Limited Partner).
15.4 Deemed Distribution and Recontribution.
Notwithstanding any other provision of this Section 15, in the event
the Partnership is liquidated within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g) but no Liquidating Event has occurred, the Property shall
not be liquidated, the Partnership's liabilities shall not be paid or
discharged, and the Partnership's affairs shall not be wound up. Instead,
solely for federal income tax purposes, the Partnership shall be deemed to have
distributed the Property in kind to the Partners, and the Partners shall be
deemed to have assumed and taken the Property subject to all Partnership
liabilities, all in accordance with their respective Capital Accounts and, if
either Partner's Capital Account has a deficit balance that such Partner would
be required to restore pursuant to Section 15.3 (after giving effect to all
contributions, distributions, and allocations for all Fiscal Years, including
the Fiscal Year during which such liquidation occurs), such Partner shall
contribute to the capital of the Partnership the amount necessary to restore
such deficit balance to zero in compliance with Regulations Section
1.704-1(b)(2)(ii)(b)(3). Immediately thereafter, the Partners shall be deemed
to have recontributed the Property to the Partnership, which shall be deemed to
have assumed and taken subject to all such liabilities.
15.5 Rights of Partners.
Except as otherwise provided in this Agreement, (a) each Partner shall
look solely to the assets of the Partnership for the return of its Capital
Contributions and shall have no right or power to demand or receive property
other than cash from the Partnership, and (b) neither Partner shall have
priority over the other Partner as to the return of its Capital Contributions,
distributions, or allocations. If, after the Partnership ceases to exist as a
legal entity, a Partner is required to make a payment to any Person on account
of any activity carried on by the Partnership, such paying Partner shall be
entitled to reimbursement from each other Partner consistent with the manner in
which the economic detriment of such payment would have been borne had the
amount been paid by the Partnership immediately prior to its cessation.
15.6 Buy/Sell Arrangements.
(a) As soon as practicable after the occurrence of an
event described in Section 15.1(a)(ii), Section 15.1(a)(iv) or, subject to the
proviso contained therein, Section 15.1(a)(iii), the Net Equity of the
Interests shall be determined in accordance with Section 12.3 and notice of
such determination shall be delivered to each Partner. For purposes of such
determination of Net Equity pursuant to this Section 15.6, the Partner that
(together with its Controlled Affiliates) holds the largest Percentage Interest
shall designate the First Appraiser as required by Section 12.4 within thirty
(30) days after an occurrence of the applicable Liquidating Event, and the
other Partner shall appoint the Second Appraiser within ten (10) days of
receiving notice of the appointment of the First Appraiser.
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(b) Within thirty (30) days after its receipt of the
determination of Net Equity, each Partner must submit to the Chief Executive
Officer a sealed statement (the "Initial Offer") notifying the other Partner in
writing either (i) that such Partner offers to sell all of its Interest or (ii)
that such Partner offers to buy all of the other Partner's Interest. Upon
receipt of both of the Initial Offers, the Chief Executive Officer shall
deliver the Initial Offer submitted by Holdings to CPP and shall deliver the
Initial Offer submitted by CPP to Holdings.
(c) If the Initial Offers state that one Partner wishes
to buy and the other Partner wishes to sell, the Partner wishing to buy will
purchase the Interest of the Partner wishing to sell, and the Net Equity of the
Interest of the Partner wishing to sell shall be the price at which its
Interest will be sold.
(d) If the Initial Offers state that both Partners wish
to sell their Interests, the Partnership shall dissolve, and commence winding
up and liquidating in accordance with Section 15.2.
(e) If the Initial Offers state that each Partner wishes
to purchase the other Partner's Interest, then the Partners shall begin the
bidding process described below and the highest bidder (determined as the
amount bid per each one percent (1%) Percentage Interest) shall buy the other
Partner's Interest. Each of the Partners may make an offer to purchase the
Interest of the other Partner, which offer may not be less than the Net Equity
of the Interest to be purchased and shall be made within fifteen (15) days of
the last day for submission of the Initial Offers. If neither Partner makes an
offer within such fifteen (15) day period, the Partnership shall dissolve, and
commence winding up and liquidating in accordance with Section 15.2. If only
one Partner timely makes an offer, the offering Partner will purchase the
Interest of the other Partner, and the price set forth in the offering
Partner's offer shall be the price at which the other Partner's Interest shall
be sold to the offering Partner. If both Partners timely make an offer, each
Partner must respond within fifteen (15) days of the last day of the 15-day
period for submitting such offers either by accepting the other Partner's offer
or delivering a counteroffer to purchase the Interest of the other Partner. A
counteroffer must be at least one percent (1%) higher than the prior offer of
which the offering Partner has received notice. The bidding process shall
continue until a Partner has either accepted the immediate prior offer or
failed to make a timely response, in which case the immediate prior offer shall
be deemed accepted. For purposes of this Section 15.6, all offers, acceptances
and counteroffers must be in writing, in a form which is firm and binding and
delivered to the other Partner.
(f) The closing of the purchase and sale of the selling
Partner's Interest, Partner Loans, Special Interest and LeasingCo Interest
shall occur at the principal office of the Partnership at 10:00 a.m. (local
time at the place of the closing) on the first Business Day occurring on or
after the thirtieth (30th) day following the date of the final determination of
the purchase price pursuant to Section 15.6(e) (subject to Section 12.5). At
the closing, the purchasing Partner shall pay to the selling Partner, by cash
or other immediately available funds, the purchase price for the selling
Partner's Interest, Partner Loans, Special Interest and
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LeasingCo Interest, and the selling Partner shall deliver to the purchasing
Partner good title, free and clear of any Liens (other than those created by
this Agreement and those securing financing obtained by the Partnership), to
the selling Partner's Interest, Partner Loans, Special Interest and LeasingCo
Interest thus purchased.
At the closing, the Partners shall execute such documents and
instruments of conveyance as may be necessary or appropriate to effectuate the
transactions contemplated hereby, including the Transfer of the Interest,
Partner Loans, Special Interest and LeasingCo Interest of the selling Partner
to the purchasing Partner and the assumption by the purchasing Partner of the
selling Partner's obligations with respect to the selling Partner's Interest
Transferred to the purchasing Partner. Each Partner shall bear its own costs
of such Transfer and closing, including attorneys' fees and filing fees. The
costs of determining Net Equity shall be borne by the Partners pro rata based
on their respective Percentage Interests as of the occurrence of the
Liquidating Event.
15.7 Notice of Dissolution.
If a Liquidating Event occurs or an event described in Section
15.1(a)(iii) occurs that would, but for the provisions of Section 15.1, result
in a dissolution of the Partnership, the Managing Partner shall, within thirty
(30) days thereafter, provide written notice thereof to the Non-Managing
Partner.
SECTION 16. MISCELLANEOUS
16.1 Notices.
Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and mailed
(certified or registered mail, postage prepaid, return receipt requested) or
sent by hand or overnight courier, or by facsimile (with acknowledgment
received), charges prepaid and addressed as follows, or to such other address
or number as such Person may from time to time specify by notice to the
Partners:
(a) If to the Partnership, to the address or number set
forth on Schedule 16.1; and
(b) If to a Partner, to the address or number set forth
in Schedule 16.1.
Any Person may from time to time specify a different address by notice to the
Partnership and the Partners. Any notice or other communication given to a
Person in accordance with the provisions of this Agreement shall be deemed to
have been given and received (i) four (4) Business Days after it is sent by
certified or registered mail, postage prepaid, return receipt requested, (ii)
when delivered by hand or transmitted by facsimile (with acknowledgment
received and, in the case of a facsimile only, a copy of such notice is sent no
later than the next Business Day by a reliable overnight courier service, with
acknowledgment of receipt) or (iii)
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one (1) Business Day after it is sent by a reliable overnight courier service,
with acknowledgment of receipt.
16.2 Binding Effect.
Except as otherwise provided in this Agreement, this Agreement shall
be binding upon and inure to the benefit of the Partners and their respective
successors, transferees and assigns.
16.3 Construction.
This Agreement shall be construed simply according to its fair meaning
and not strictly for or against either Partner.
16.4 Time.
Time is of the essence with respect to this Agreement.
16.5 Table of Contents; Headings.
The table of contents and section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement.
16.6 Severability.
Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal, invalid or unenforceable for any reason
whatsoever, that term or provision will be enforced to the maximum extent
permissible so as to effect the intent of the Partners, and such illegality,
invalidity or unenforceability shall not affect the validity or legality of the
remainder of this Agreement. If necessary to effect the intent of the
Partners, the Partners will negotiate in good faith to amend this Agreement to
replace the unenforceable language with enforceable language which as closely
as possible reflects such intent.
16.7 Incorporation by Reference.
Unless expressly provided otherwise in this Agreement, no exhibit
(other than the Schedules attached hereto) attached to this Agreement and
referred to herein shall be incorporated in this Agreement by reference.
16.8 Further Action.
Each Partner, upon the reasonable request of the other Partner, agrees
to perform all further acts and execute, acknowledge and deliver any documents
which may be reasonably necessary, appropriate or desirable to carry out the
intent and purposes of this Agreement.
-108- December 12, 1996
<PAGE> 114
16.9 Governing Law.
The internal laws of the State of Delaware (without regard to
principles of conflict of law) shall govern the validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of
the Partners.
16.10 Waiver of Action for Partition; No Bill For Partnership
Accounting.
Each Partner irrevocably waives any right that it may have to maintain
any action for partition with respect to any of the Property; provided that the
foregoing shall not be construed to apply to any action by a Partner for the
enforcement of its rights under this Agreement. Each Partner waives its right
to seek a court decree of dissolution (other than a dissolution in accordance
with Section 15).
16.11 Counterpart Execution.
This Agreement may be executed in two counterparts with the same
effect as if both Partners had signed the same document. Both counterparts
shall be construed together and shall constitute one agreement.
16.12 Specific Performance; Attorneys' Fees.
Each Partner agrees with the other Partner that the other Partner
would be irreparably damaged if any of the provisions of this Agreement were
not performed in accordance with their specific terms and that monetary damages
would not provide an adequate remedy in such event. Accordingly, in addition to
any other remedy to which the non-breaching Partner may be entitled, at law or
in equity, but subject to Section 12.1(c), the non-breaching Partner shall be
entitled to injunctive relief to prevent breaches of this Agreement and
specifically to enforce the terms and provisions hereof, and the breaching
Partner shall reimburse the non-breaching Partner for all costs and expenses
reasonably incurred by the non-breaching Partner in enforcing its rights under
this Section 16.12. In the event of a breach by either party that results in
a lawsuit or other proceeding for any remedy available under this Agreement,
the prevailing party shall be entitled to reimbursement from the other party of
its reasonable attorneys' fees and expenses.
16.13 Entire Agreement.
The provisions of this Agreement set forth the entire agreement and
understanding between the Partners as to the subject matter hereof and
supersede all prior agreements, oral or written, and other communications
between the Partners relating to the subject matter hereof. This Agreement
cannot be amended, supplemented or changed except by an agreement in writing
that makes specific reference to this Agreement and which is signed by the
party against which enforcement of any such amendment, supplement or change is
sought. Section 13.6 of this Agreement cannot be amended, supplemented or
changed without the consent of each of the Persons then admitted as partners of
Holdings.
-109- December 12, 1996
<PAGE> 115
16.14 Limitation on Rights of Others.
Nothing in this Agreement, whether express or implied, shall be
construed to give any Person other than the Partners any legal or equitable
right, remedy or claim under or in respect of this Agreement.
16.15 Waivers; Remedies.
The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) by the party or parties entitled to enforce such term, but any
such waiver shall be effective only if in a writing signed by the party or
parties against which such waiver is to be asserted. Except as otherwise
provided herein, no failure or delay of either Partner in exercising any power
or right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
16.16 Jurisdiction; Consent to Service of Process.
(a) Each Partner hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court sitting in the County of New York or any Federal court of
the United States of America sitting in the Southern District of New York, and
any appellate court from any such court, in any suit, action or proceeding
arising out of or relating to the Partnership or this Agreement, or for
recognition or enforcement of any judgment, and each Partner hereby irrevocably
and unconditionally agrees that all claims in respect of any such suit, action
or proceeding may be heard and determined in such New York State court or, to
the extent permitted by law, in such Federal court.
(b) Each Partner hereby irrevocably and unconditionally
waives, to the fullest extent it may legally do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to the Partnership or this Agreement in any New York
State court sitting in the County of New York or any Federal court sitting in
the Southern District of New York. Each Partner hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such suit, action or proceeding in any such court and
further waives the right to object, with respect to such suit, action or
proceeding, that such court does not have jurisdiction over such Partner.
(c) Each Partner irrevocably consents to service of
process in the manner provided for the giving of notices pursuant to this
Agreement, provided that such service shall be deemed to have been given only
when actually received by such Partner. Nothing in this Agreement shall affect
the right of a party to serve process in any other manner permitted by law.
-110- December 12, 1996
<PAGE> 116
16.17 Waiver of Jury Trial.
Each Partner waives, to the fullest extent permitted by applicable
law, any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to the Partnership or this Agreement.
16.18 No Right of Set-off.
Neither Partner shall be entitled to offset against any of its
financial obligations to the Partnership under this Agreement, any obligation
owed to it or any of its Affiliates by the other Partner or any of the other
Partner's Affiliates.
[SIGNATURES FOLLOW ON A SEPARATE PAGE]
-111- December 12, 1996
<PAGE> 117
IN WITNESS WHEREOF, the parties have entered into this Agreement of
Limited Partnership of Cox Communications PCS, L.P. as of the date first above
set forth.
COX PIONEER PARTNERSHIP
By Cox Communications Pioneer, Inc., its
Managing General Partner
By: /s/ DAVID M. WOODROW
------------------------------
Name: David M. Woodrow
-----------------------
Title: Vice President
-----------------------
SPRINT SPECTRUM HOLDING COMPANY,
L.P.
By Sprint Enterprises, L.P., its General Partner
By US Telecom, Inc., its General Partner
By: /s/ DON A. JENSEN
---------------------------
Name: Don A. Jensen
----------------------
Title: Vice President & Secretary
---------------------
By TCI Telephony Services, Inc., its General
Partner
By: /s/ GERALD W. GAINES
------------------------------
Name: Gerald W. Gaines
----------------------
Title: President & CEO
-----------------------
By Comcast Telephony Services, Inc., its General
Partner
By Comcast Telephony Services, Inc., its
General Partner
By: /s/ ARTHUR R. BLOCK
---------------------------
Name: Arthur R. Block
----------------------
Title: Vice President
---------------------
THIS IS A SIGNATURE PAGE TO THE AGREEMENT OF LIMITED
PARTNERSHIP OF COX COMMUNICATIONS PCS, L.P.
-112- December 12, 1996
<PAGE> 118
By Cox Telephony Partnership, its General
Partner
By Cox Communications Wireless, Inc., its
General Partner
By: /s/ DAVID M. WOODROW
---------------------------
Name: David M. Woodrow
----------------------
Title: Vice President
---------------------
THIS IS A SIGNATURE PAGE TO THE AGREEMENT OF LIMITED
PARTNERSHIP OF COX COMMUNICATIONS PCS, L.P.
-113- December 12, 1996
<PAGE> 119
By executing this signature page below, each of the Holdings Partners
(i) accepts and agrees to the provisions of Section 8.1(i), Section 8.8 and
Section 11.3(a) of the Agreement, (ii) consents to the performance by Holdings
of its obligations under Section 13.6 of the Agreement, including the issuance
by Holdings of any equity interest that it may be required to issue pursuant to
Section 13.6 of the Agreement, and agrees that the equity interest referred to
in Section 13.6 is that referred to in Section 8.10 of the Holdings Partnership
Agreement and (iii) agrees that the contribution to Holdings of the "Holdings
License" as described in the Agreement shall constitute the License
Contribution required to be made by Cox Telephony Partnership pursuant to
Section 2.3(a)(i) of the Holdings Partnership Agreement.
SPRINT ENTERPRISES, L.P.
By US Telecom, Inc., its General Partner
By: /s/ DON A. JENSEN
-------------------------------
Name: Don A. Jensen
--------------------------
Title: Vice President
-------------------------
TCI TELEPHONY SERVICES, INC.
By: /s/ GERALD W. GAINES
-------------------------------
Name: Gerald W. Gaines
--------------------------
Title: President & CEO
-------------------------
COMCAST TELEPHONY SERVICES
By Comcast Telephony Services, Inc., its
General Partner
By: /s/ ARTHUR R. BLOCK
-------------------------------
Name: Arthur R. Block
--------------------------
Title: Vice President
-------------------------
-114- December 12, 1996
<PAGE> 120
COX TELEPHONY PARTNERSHIP
By Cox Communications Wireless, Inc.,
its General Partner
By: /s/ DAVID W. WOODROW
-------------------------------
Name: David W. Woodrow
--------------------------
Title: Vice President
-------------------------
-115- December 12, 1996
<PAGE> 121
By executing this signature page below, Cox California PCS, Inc. accepts
and agrees to the provisions of Section 8.1(c) and Section 8.7 of the
Agreement.
COX CALIFORNIA PCS, INC.
By: /s/ DAVID W. WOODROW
-------------------------------
Name: David W. Woodrow
--------------------------
Title: Vice President
-------------------------
-116- December 12, 1996
<PAGE> 1
EXHIBIT 10.2
PARTNERSHIP AGREEMENT OF
COX PIONEER PARTNERSHIP
December 31, 1996
December 13, 1996
<PAGE> 2
PARTNERSHIP AGREEMENT OF
COX PIONEER PARTNERSHIP
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-----------
SECTION 2 THE PARTNERSHIP AND ITS BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--------------------------------
2.1 Formation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
---------
2.2 Partnership Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
----------------
2.3 Term of the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-----------------------
2.4 Purposes of the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
---------------------------
2.5 Authority of the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
----------------------------
2.6 Principal Office and Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
----------------------------------
2.7 Foreign Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
---------------------
2.8 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-----------
SECTION 3 PARTNERSHIP CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-------------------
3.1 Capital Contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
---------------------
3.2 Loans by Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-----------------
3.3 Disbursements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-------------
3.4 Withdrawal of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
---------------------------
SECTION 4 MANAGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
----------
4.1 Management Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
--------------------
4.2 Meetings of the Management Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
------------------------------------
4.3 Power and Authority of the Management Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-----------------------------------------------
4.4 Rights, Powers, and Duties of the Managing Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
--------------------------------------------------
4.5 Limitations on Authority of the Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
----------------------------------------
4.6 Authority, Responsibilities, and Fiduciary Obligations of the Partners. . . . . . . . . . . . . . . . . . . 16
----------------------------------------------------------------------
4.7 Compensation of Managing Partner and Reimbursement of Expenses . . . . . . . . . . . . . . . . . . . . . . 17
--------------------------------------------------------------
4.8 Tax Matters Partner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-------------------
4.9 Permitted Transactions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
----------------------
4.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
---------------
SECTION 5 CASH DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND LOSSES 19
-----------------------------------------------------
5.1 Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-------------
5.2 Allocations of Net Profit and Net Loss. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
--------------------------------------
5.3 Special Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
-------------------
5.4 Curative Allocations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
--------------------
</TABLE>
- i - December 13, 1996
<PAGE> 3
<TABLE>
<S> <C>
5.5 Special Allocations Relating to Certain Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
------------------------------------------------
5.6 Other Allocation Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
----------------------
5.7 Section 704(c) Allocations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
--------------------------
SECTION 6 ASSIGNMENT, TRANSFER, OR SALE OF INTERESTS IN PARTNERSHIP . . . . . . . . . . . . . . . . . . . 23
---------------------------------------------------------
6.1 Transfer of the Partnership Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-------------------------------------
6.2 Withdrawal of Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
---------------------
6.3 Admission of Additional Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
--------------------------------
SECTION 7 DISSOLUTION AND TERMINATION OF THE PARTNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . 23
----------------------------------------------
7.1 Events of Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
---------------------
7.2 Actions on Dissolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
----------------------
SECTION 8 BOOKS, RECORDS, AND RETURNS; TAX YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------------------------------
8.1 Books of Account and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
----------------------------
8.2 Accounting Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
------------------
8.3 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-----------
8.4 Deposit of Partnership Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
----------------------------
SECTION 9 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
-------------
9.1 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
--------
9.2 Pronouns, Singular and Plural Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
----------------------------------
9.3 Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
--------------
9.4 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
----------------
9.5 Agreement Binding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
-----------------
9.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
-------
9.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
------------
9.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
------------
9.9 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-------------
9.10 No Third-Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
----------------------------
</TABLE>
- ii - December 13, 1996
<PAGE> 4
PARTNERSHIP AGREEMENT OF
COX PIONEER PARTNERSHIP
This PARTNERSHIP AGREEMENT of Cox Pioneer Partnership is entered into
as of December 31, 1996, by and between Cox Communications Pioneer, Inc., a
Delaware corporation ("CCI Pioneer"), and CEI Pioneer, Inc., a Delaware
corporation ("CEI Pioneer").
RECITAL
The Partners desire to enter into this Agreement to provide for the
formation and organization of a general partnership to be known as "Cox Pioneer
Partnership," the allocation of profits and losses, cash flow, and other
proceeds of the Partnership between the Partners, the respective rights,
obligations, and interests of the Partners to each other and to the
Partnership, and certain other matters.
AGREEMENT
In consideration of the foregoing and of the mutual covenants and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be bound legally, agree as follows:
SECTION 1 DEFINITIONS.
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Act" means the Uniform Partnership Law of the State of Delaware.
"Agreement" means this Partnership Agreement, as it may be amended,
restated, modified, or supplemented from time to time in accordance with its
terms.
"Capital Account" means an account to be maintained for each Partner
in accordance with the Code, which, subject to any contrary requirements of the
Code, shall equal the sum of (i) the amount of money contributed by such
Partner to the Partnership, if any; (ii) the fair market value without regard
to Code Section 7701(g) of property, if any, contributed by such Partner to the
Partnership (net of liabilities that are secured by such contributed property
or that the Partnership or the other Partner is considered to assume or take
subject to under Code Section 752); (iii) allocations to the Partner of Net
Profit pursuant to Section 5; and (iv) other additions made in accordance with
the Code; decreased by (i) the amount of cash distributed to such Partner by
the Partnership; (ii) allocations to the Partner of Net Loss pursuant to
Section 5; (iii) the fair market value without regard to Code Section 7701(g)
of property distributed to such Partner by the Partnership (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 Partners' respective Capital
Accounts shall
December 13, 1996
<PAGE> 5
be determined and maintained at all times in accordance with all the provisions
of Treasury Regulation Section 1.704-1(b)(2)(iv).
"Capital Contribution" means, for each Partner, the amount of money,
and the fair market value of any other property (net of liabilities assumed or
taken subject to by the Partnership), contributed by such Partner to the
Partnership pursuant to this Agreement.
"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 period, an amount equal to the
depreciation, amortization, or other cost recovery deduction allowable with
respect to an asset for such fiscal period, 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 period, Depreciation shall be
determined in the manner described in Regulations Section
1.704-1(b)(2)(iv)(g)(3) or Regulations Section 1.704-3(d)(2), whichever is
applicable.
"FCC" means the Federal Communications Commission.
"Fiscal Year" means the Partnership's fiscal year.
"Gross Asset Value" means with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by
a Partner to the Partnership shall be the gross fair market value of such
asset, as agreed to by the Partners;
(ii) The Gross Asset Values of all Partnership assets shall
be adjusted to equal their respective gross fair market values, as agreed to by
the Partners, as of the following times: (a) the acquisition of an additional
interest in the Partnership by either Partner in exchange for more than a de
minimis Capital Contribution; (b) the distribution by the Partnership to either
Partner of more than a de minimis amount of Partnership property as
consideration for an interest in the Partnership; and (c) the liquidation of
the Partnership within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses
(a) and (b) above shall be made only if the Managing Partner determines that
such adjustments are necessary or appropriate to reflect the relative economic
interests of the Partners in the Partnership;
(iii) The Gross Asset Value of any Partnership asset
distributed to either Partner shall be the gross fair market value of such
asset on the date of distribution, as agreed to by the Partners; and
- 2 - December 13, 1996
<PAGE> 6
(iv) The Gross Asset Value of Partnership assets 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 Regulation Section 1.704-1(b)(2)(iv)(m) and
Section 5.3(e); provided, however, that Gross Asset Value shall not be adjusted
pursuant to this paragraph (iv) to the extent that an adjustment was made
pursuant to paragraph (ii) of this definition in connection with a transaction
that would otherwise have resulted 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), (ii), or (iv) 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.
"License Contribution Date" means the date on which the PCS License is
to be contributed to the Partnership pursuant to Section 2.2(a) of the
PioneerCo Agreement.
"Management Committee" means the committee appointed in accordance
with the provisions of Section 4.1 hereof.
"Managing Partner" means the Managing Partner designated pursuant to
Section 4.4(a).
"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 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, which 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 Partnership asset is
adjusted pursuant to paragraph (ii) or (iii) 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
Partnership property with respect to which gain or loss is recognized for
federal income tax purposes shall be computed
- 3 - December 13, 1996
<PAGE> 7
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) To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Code Section 734(b) or 743(b) is required,
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into
account in determining Capital Accounts as a result of a distribution other
than in liquidation of a Partner's interest in the Partnership, the amount of
such adjustment to the Capital Accounts 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) from the disposition of the asset, and such gain or loss
shall be taken into account for purposes of computing Net Profit and Net Loss;
(vii) 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 5.3, Section 5.4, Section 5.5, Section
5.6, or Section 5.7 of this Agreement shall not be taken into account in
computing Net Profit or Net Loss; and
(viii) For purposes of this Agreement, any deduction for a
loss on a sale or exchange of Partnership property that is disallowed to the
Partnership under Code Section 267(a)(1) or 707(b) shall be treated as a Code
Section 705(a)(2)(B) expenditure.
"Nonrecourse Deductions" has the meaning set forth in Treasury
Regulation Section 1.704-2(b)(i). The amount of Nonrecourse Deductions shall
be determined pursuant to Treasury Regulation Section 1.704-2(c).
"Nonrecourse Liability" has the meaning set forth in Treasury
Regulation Sections 1.704-2(b)(3) and 1.752-1(a)(2).
"Partner" means each of the signatories hereto in their respective
capacities as partners of the Partnership.
"Partner Nonrecourse Debt" has the meaning set forth in Treasury
Regulation Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Minimum Gain" has the meaning set forth in
Treasury Regulation Section 1.704-2(i)(2). The amount of Partner Nonrecourse
Debt Minimum Gain shall be determined in accordance with Treasury Regulation
Section 1.704-2(i)(3).
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<PAGE> 8
"Partner Nonrecourse Deductions" has the meaning set forth in Treasury
Regulation Sections 1.704-2(i)(1) and 1.704-2(i)(2). The amount of Nonrecourse
Deductions shall be determined pursuant to Treasury Regulation Section
1.704-2(i)(2).
"Partnership" means the partnership created by the Partners pursuant
to this Agreement.
"Partnership Minimum Gain" has the meaning set forth in Treasury
Regulation Sections 1.704-2(b)(2) and 1.704-2(d). The amount of Partnership
Minimum Gain shall be determined in accordance with Treasury Regulation Section
1.704-2(d).
"PCS License" means the 30 MHz "A" block broadband PCS license for the
Los Angeles-San Diego MTA that is held by Cox Communications, Inc. on the date
of this Agreement.
"Percentage Interest" means, with respect to CCI Pioneer, a fraction,
expressed as a percentage, equal to 40/51, and, with respect to CEI Pioneer, a
fraction, expressed as a percentage, equal to 11/51.
"Person" means an individual, corporation, association, partnership,
joint venture, trust, estate, limited liability company, limited liability
partnership, or other entity or organization.
"PioneerCo" means Cox Communications PCS, L.P., a limited partnership
to be formed by the Partnership and Sprint Spectrum Holding Company, L.P., for
the purpose of owning and operating a personal communications system in the Los
Angeles-San Diego MTA using the PCS License.
"PioneerCo Agreement" means the Agreement of Limited Partnership of
PioneerCo, to be entered into by the Partnership and Sprint Spectrum Holding
Company, L.P. (formerly known as MajorCo, L.P.), as it may be amended from time
to time.
"Regulatory Allocations" is defined in Section 5.4.
"Subsidiary" means, with reference to the Partnership, any Person
controlled directly or indirectly by the Partnership and, with reference to any
other Person, any Person that is a "Subsidiary" of such Person for purposes of
the PioneerCo Agreement.
"System Assets" means all tangible and intangible assets owned by any
of Cox California PCS, Inc., PCS Leasing Co., Inc., Cox Communications, Inc.,
or any other Subsidiary of Cox Communications, Inc. that are held for use in
the development of a PCS system in the Los Angeles MTA under the PCS License,
including any technology rights and the other assets to be identified on
Schedule 1.10 to the PioneerCo Agreement, but excluding the PCS License.
- 5 - December 13, 1996
<PAGE> 9
"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).
SECTION 2 THE PARTNERSHIP AND ITS BUSINESS.
2.1 Formation. The Partners hereby form the Partnership as a general
partnership pursuant to the provisions of the Act. Except as provided in this
Agreement, all rights, liabilities, and obligations of the Partners, both as
between themselves and with respect to Persons not parties to this Agreement,
shall be as provided in the Act, and this Agreement shall be construed in
accordance with the provisions of the Act. 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 Partnership Name. The name of the Partnership shall be "Cox
Pioneer Partnership." The business of the Partnership may be conducted under
that name or, upon compliance with applicable laws, any other name that the
Management Committee deems appropriate or advisable. The Managing Partner
shall file any assumed name certificates and similar filings, and any
amendments thereto, that it considers appropriate or advisable.
2.3 Term of the Partnership. The term of the Partnership shall
commence on the date of this Agreement and shall continue until December 31,
2046 or until earlier terminated in accordance with Section 7.
2.4 Purposes of the Partnership. The purposes of the Partnership
shall be (a) to acquire an equity interest in PioneerCo and to be a general
partner, a limited partner, or both a general partner and a limited partner in
PioneerCo, as provided in the PioneerCo Agreement; (b) to acquire, own, and
dispose of interests in PioneerCo and to exercise all rights and powers
incident thereto; (c) to engage in the business, through PioneerCo, of
acquiring, owning, constructing, maintaining, operating, promoting, selling,
disposing, and otherwise developing a personal communications system in the Los
Angeles-San Diego MTA using the PCS License; (d) to acquire an equity interest
in Sprint Spectrum Holding Company, L.P., a Delaware limited partnership (or in
any successor-in-interest to Sprint Spectrum Holding Company, L.P.), upon the
disposition by the Partnership of its interest in PioneerCo as contemplated by
Section 13.6 of the PioneerCo Agreement, and to exercise all rights and powers
incident thereto; and (e) to do any other lawful things necessary, appropriate,
or advisable in connection with those activities.
2.5 Authority of the Partnership. The Partnership shall be empowered
and authorized to do all lawful acts and things necessary, appropriate, proper,
advisable, incidental to, or convenient for the furtherance and accomplishment
of its purposes. In particular, the Partnership shall be empowered and
authorized, for itself or on behalf of any Subsidiary of the Partnership:
- 6 - December 13, 1996
<PAGE> 10
(a) to construct, operate, maintain, improve, expand, buy,
own, sell, convey, assign, mortgage, refinance, rent, or lease real or personal
property, which may be held in the name of the Partnership or any Subsidiary of
the Partnership, in the name of the Managing Partner as nominee or trustee for
the beneficial owner of the property, or in any other manner that the Management
Committee deems to be in the best interests of the Partnership or any Subsidiary
of the Partnership, so long as all such property is properly reflected on the
books of the Partnership and any Subsidiary of the Partnership;
(b) to enter into, perform, and carry out contracts and
agreements of any kind necessary to, in connection with, or incidental to
accomplishing the purposes of the Partnership;
(c) to borrow money and issue evidences of indebtedness in
furtherance of the purposes of the Partnership and to secure any such
indebtedness by mortgage, security interest, or other lien;
(d) to maintain and operate the assets of the Partnership and
any Subsidiary of the Partnership;
(e) to negotiate for and conclude agreements for the sale,
exchange, or other disposition of any property of the Partnership or of any
Subsidiary of the Partnership, or for the purchase or lease of additional
property of the Partnership or any Subsidiary of the Partnership;
(f) to hire and compensate employees, agents, independent
contractors, attorneys, and accountants; and
(g) to bring and defend actions in law and equity.
2.6 Principal Office and Other Offices. The principal office of the
Partnership shall be located at 1400 Lake Hearn Drive, N.E., Atlanta, Georgia
30319. The Partnership may maintain any other offices at any other places that
the Management Committee deems advisable. The Partnership may, upon compliance
with the applicable provisions of the Act, change its principal office from
time to time in the discretion of the Management Committee.
2.7 Foreign Qualification. The Managing Partner shall take all
necessary actions to cause the Partnership to be authorized to conduct business
legally in all appropriate jurisdictions.
2.8 Fiscal Year. The Fiscal Year of the Partnership shall be the
calendar year. The Partnership shall have the same Fiscal Year for income tax
purposes and for financial and partnership accounting purposes.
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<PAGE> 11
SECTION 3 PARTNERSHIP CAPITAL.
3.1 Capital Contributions.
(a) Contribution of PCS License.
(i) CCI Pioneer agrees to contribute to the
Partnership, on the License Contribution Date, an undivided fractional interest
in the PCS License equal to $404,883,238 divided by $422,530,297. Concurrently
with the contribution required to be made by CCI Pioneer pursuant to this
Section 3.1(a)(i), CCI Pioneer, as Managing Partner of the Partnership, shall
cause the Partnership to contribute to PioneerCo the undivided fractional
interest in the PCS License that is contributed to it by CCI Pioneer.
(ii) The Partners agree that (A) the gross fair
market value of the PCS License equals $422,530,297, (B) the fair market value
of the Capital Contribution to be made by CCI Pioneer pursuant to Section
3.1(a)(i) equals $404,883,238 less the total payment obligations assumed by the
Partnership pursuant to Section 3.1(e) (other than any payment obligation
representing interest on any payments that are permitted to be deferred by the
FCC), and (C) the fair market value and the initial Gross Asset Value of the
undivided fractional interest in the PCS License that is contributed by CCI
Pioneer pursuant to Section 3.1(a)(i) equals $404,883,238.
(b) System Assets and Interim Funding Loans.
(i) If PioneerCo assumes the FCC Payment Obligations
(as defined in the PioneerCo Agreement) pursuant to Section 2.2(a)(iv) of the
PioneerCo Agreement and the License Contribution Date precedes a purchase and
sale of the System Assets pursuant to the System Assets Sales Agreement (as
defined in the PioneerCo Agreement), then, on the License Contribution Date,
CCI Pioneer shall contribute to the Partnership the System Assets.
Concurrently with the contribution required to be made by CCI Pioneer pursuant
to this Section 3.1(b)(i), CCI Pioneer, as Managing Partner of the Partnership,
shall cause the Partnership to contribute the System Assets to PioneerCo. The
Partners agree that the gross fair market value and the aggregate initial Gross
Asset Value of the System Assets shall be determined as provided in the
PioneerCo Agreement.
(ii) If PioneerCo assumes the FCC Payment
Obligations (as defined in the PioneerCo Agreement) pursuant to Section
2.2(a)(iv) of the PioneerCo Agreement, then CCI Pioneer shall acquire and shall
contribute to the Partnership on the License Contribution Date all rights of
each Interim Lender (as defined in the PioneerCo Agreement) as of the License
Contribution Date to any payment of principal or interest with respect to the
Interim Funding Loans (as defined in the PioneerCo Agreement), other than
Interim Funding Loans required to be repaid pursuant to Section 2.9(c) of the
PioneerCo Agreement. A contribution of Interim Funding Loans pursuant to this
Section 3.1(b)(ii) shall be deemed to be a contribution of money
- 8 - December 13, 1996
<PAGE> 12
in an amount equal to the outstanding principal amount and accrued unpaid
interest with respect to such Interim Funding Loans on the date of their
contribution to the Partnership.
(c) Required Cash Contributions and Interest Payments.
(i) The Partners agree to make additional cash
Capital Contributions for the purpose of (A) funding the obligations of the
Partnership to satisfy the payment obligations to the FCC that are assumed by
the Partnership pursuant to Section 3.1(e), and (B) to make capital
contributions to PioneerCo in accordance with the PioneerCo Agreement, in each
case in the respective amounts determined under Section 3.1(c)(ii), at any time
and from time to time upon written notice from the Managing Partner. The
Managing Partner's notice shall:
(A) specify the respective amounts of the
Capital Contributions to be made by the Partners, which shall be determined
under Section 3.1(c)(ii); and
(B) specify a date (not fewer than five
business days following the delivery of the notice to the Partners) on which
the Capital Contributions shall be made.
(ii) The respective amounts of the Capital
Contributions to be made by the Partners shall be determined in accordance with
the following provisions:
(A) All Capital Contributions pursuant to
this Section 3.1(c) shall be made by CEI Pioneer until the aggregate amount of
Capital Contributions made by CEI Pioneer pursuant to this Section 3.1(c)
equals 11/40 of the sum of (1) the fair market value of the undivided
fractional interest in the PCS License contributed by CCI Pioneer pursuant to
Section 3.1(a)(i) (as determined pursuant to Section 3.1(a)(ii)) plus (2) the
aggregate initial Gross Asset Value of any System Assets contributed pursuant
to Section 3.1(b)(i) plus (3) the outstanding principal amount and accrued
unpaid interest with respect to any Interim Funding Loans that are contributed
to the Partnership pursuant to Section 3.1(b)(ii), determined as of the date of
their contribution to the Partnership.
(B) After CEI Pioneer has made all Capital
Contributions required to be made by it pursuant to Section 3.1(c)(ii)(A), all
additional Capital Contributions pursuant to this Section 3.1(c) shall be made
by CCI Pioneer and CEI Pioneer in proportion to their respective Percentage
Interests.
(iii) CEI Pioneer agrees to pay to the Partnership,
concurrently with any Capital Contribution by CEI Pioneer pursuant to Section
3.1(c)(ii)(A), interest on the amount of such Capital Contribution, computed at
the rate of 7.25%, compounded quarterly, from the later of (A) the first date
on which interest began to accrue on the obligation of Cox Communications, Inc.
to pay the FCC for the PCS License or (B) March 1, 1996, until the date such
Capital Contribution is made. Except as otherwise required under the Code or
applicable Treasury Regulations, any interest payment pursuant to this Section
3.1(c)(iii) shall not constitute a Capital Contribution for purposes of this
Agreement. For purposes of this Section 3.1(c)(iii),
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<PAGE> 13
the first date on which interest began to accrue on the obligation of Cox
Communications, Inc. to pay the FCC for the PCS License shall be determined
from the amount of interest ultimately assessed against Cox Communications,
Inc. and required to be paid to the FCC regardless of the date specified for
the commencement of such accrual in any FCC order.
(d) Additional Capital Contributions. Except as provided
above, there shall be no assessments for additional Capital Contributions by
the Partners to the Partnership, and neither Partner shall be required to make
any Capital Contributions to the Partnership in addition to the Capital
Contributions to be made by it pursuant to Section 3.1(a), Section 3.1(b)(i),
Section 3.1(b)(ii), and Section 3.1(c).
(e) Assumption of Liabilities. Upon the contribution by CCI
Pioneer of an undivided fractional interest in the PCS License pursuant to
Section 3.1(a)(i), the Partnership shall assume, and shall undertake to pay,
satisfy and discharge, all payment obligations of Cox Communications, Inc. to
the FCC that were imposed as a condition to the issuance of the PCS License to
Cox Communications, Inc. (including any obligation to pay interest on any
payments that are permitted to be deferred by the FCC).
(f) Manner of Effecting Contributions. All Capital
Contributions pursuant to this Agreement shall be made in a manner that
conforms with the provisions of the PioneerCo Agreement, which contemplates,
among other things, a direct conveyance to PioneerCo by Cox Communications,
Inc. of the PCS License.
3.2 Loans by Partners. Either Partner may lend funds to the
Partnership on terms and conditions agreed to by the Management Committee and
the lending Partner. Except as otherwise provided in this Agreement or as
agreed to by the Partners, any advance of funds to the Partnership by a Partner
shall be treated as a loan and not as a Capital Contribution.
3.3 Disbursements. The Partnership shall pay all costs and expenses
of the Partnership business, including financing costs and related expenses,
investment expenses, real estate taxes and other carrying charges, stamp taxes,
stock taxes, all costs of construction of improvements on Partnership property
or leaseholds, management, leasing, and loan placement fees, and operating
expenses, and including all reasonable costs and expenses incurred by or on
behalf of the Partnership by the Partners. The Partnership may set aside funds
for any items that are proper Partnership purposes, including operating
expenses, debt service, capital improvements, replacements, repairs,
amortization, other capital requirements, and liabilities, contingent or
otherwise, of the Partnership or any Subsidiary of the Partnership, in each
case as determined by the Management Committee.
3.4 Withdrawal of Contributions. Neither Partner shall have the
right to withdraw from the Partnership or to demand a return of 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.
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<PAGE> 14
The Partners expressly acknowledge that certain provisions of this Agreement
that may preclude a Partner from realizing appreciation in the value of
Partnership assets are essential to protect the Partners' mutual interests in
the Partnership assets; accordingly, the Partners hereby waive any right they
otherwise would have to seek a partition or judicial liquidation of the
Partnership or any comparable action.
SECTION 4 MANAGEMENT.
4.1 Management Committee.
(a) The Partners, together, shall be responsible for the
management and operations of the Partnership and shall have all powers
necessary to manage and control the Partnership and to conduct its business and
all powers possessed by general partners under the Act. The Partnership shall
be managed by the Partners jointly through a Management Committee and, except
as expressly provided for in this Agreement, each Partner agrees not to
exercise individually any of the powers described in the preceding sentence
other than at the direction of or pursuant to authority delegated to it by the
Management Committee. The Management Committee shall consist of four members.
Each Partner shall be entitled to designate two members of the Management
Committee. Each Partner shall be entitled to designate one or more alternates
to each member of the Management Committee designated by it.
(b) Each member of the Management Committee shall be entitled
to one vote with respect to all matters that come before the Management
Committee. All actions of the Management Committee shall require the
affirmative vote at a meeting of a majority of the total number of members of
the Management Committee or, if the Management Committee is acting without a
meeting, the unanimous written consent of the members of the Management
Committee.
(c) Each Partner shall have the right, exercisable upon
written notice to the other Partner, to remove any member of the Management
Committee (or any alternate) designated by such Partner pursuant to this
Section 4.1. A Partner that removes a member of the Management Committee shall
promptly designate a successor member by giving notice of such designation to
the other Partner. If, as a result of death, disability, retirement,
resignation, or removal there exists any vacancy on the Management Committee,
the Partner entitled to designate the person whose, death, disability,
retirement, resignation, or removal resulted in such vacancy shall designate
another individual to fill such capacity and to serve as a member of the
Management Committee.
(d) Each Partner agrees that each member of the Management
Committee designated by such Partner shall have the authority to execute any
document and take any other action on behalf of such Partner pursuant to the
terms of this Agreement. Any action taken, and any document executed, by a
member of the Management Committee designated by a Partner shall be binding
upon such Partner, and neither the Partnership nor the other Partner shall be
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<PAGE> 15
obligated to inquire as to the authority of a member of the Management
Committee to take any action or execute any document on behalf of the
designating Partner.
4.2 Meetings of the Management Committee.
(a) Meetings of the Management Committee shall be held from
time to time at the request of either Partner, at a time (within ten business
days after the request therefor) and place determined by the Managing Partner.
The Managing Partner shall give each Partner at least five business days notice
of the time and place of any meeting of the Management Committee. Attendance
of a member designated by a Partner at a meeting of the Management Committee
shall constitute waiver of notice of such meeting by the designating Partner,
unless such Partner objects in writing at or prior to such meeting.
(b) The Management Committee may take any action without a
meeting if a written consent to such action is signed by each member of the
Management Committee and such written consent is filed with the records of the
Partnership. The members of the Management Committee may participate in a
meeting by means of conference telephone or similar communications equipment by
means of which all members participating in the meeting can hear each other,
and participation in such a meeting shall constitute presence in person by any
such member at such meeting.
(c) Minutes of each meeting of the Management Committee shall
be prepared by the Managing Partner and circulated to the Partners.
4.3 Power and Authority of the Management Committee. The Management
Committee shall have full and complete charge of the day-to-day affairs of the
Partnership and the management and control of the Partnership's business.
Notwithstanding the foregoing, except as otherwise provided in this Agreement,
the Management Committee may delegate all or any portion of the management of
the day-to-day affairs of the Partnership and its business to the Managing
Partner, to any other Person selected by the Management Committee, and to the
employees of the Partnership (or any Subsidiary of the Partnership).
4.4 Rights, Powers, and Duties of the Managing Partner.
(a) Designation and Removal. CCI Pioneer shall be the
Managing Partner until it resigns as Managing Partner or is removed as Managing
Partner pursuant to this Agreement. CCI Pioneer may be removed as Managing
Partner, at the election of CEI Pioneer, if CCI Pioneer has engaged in willful
misconduct, recklessness, or negligence in exercising the duties,
responsibilities, powers, and authority assigned to it by this Agreement or
delegated to it by the Management Committee. If CCI Pioneer resigns as
Managing Partner or is removed as Managing Partner pursuant to this Agreement,
CEI Pioneer shall be the Managing Partner.
(b) Powers in General. The Managing Partner shall have the
powers and authority assigned to it in this Agreement and any additional powers
and authority that may be
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<PAGE> 16
delegated to it from time to time by the Management Committee. The Managing
Partner shall act at all times in accordance with the decisions and directions
of the Management Committee. Except as otherwise provided in this Agreement,
and subject to any limitations that may be imposed by the Management Committee,
the Managing Partner shall have the power to bind the Partnership through the
exercise of the powers granted to it hereunder or delegated to it by the
Management Committee, to the extent consistent with the terms of this
Agreement, and shall have the power, on behalf of the Partnership or any
Subsidiary of the Partnership (without regard to the term of the Partnership),
to:
(i) acquire by purchase, lease, or otherwise any
real or personal property;
(ii) operate, maintain, finance, improve, construct,
own, grant options with respect to, sell, convey, assign, mortgage, and lease
real and personal property;
(iii) sell or exchange all or any part of the
property and assets of the Partnership for property, cash, or on terms, or any
combination thereof;
(iv) execute and modify leases and other agreements
(including leases and agreements for terms extending beyond the term of the
Partnership or of any Subsidiary of the Partnership), and execute and modify
options, licenses, or agreements with respect to any of the assets or the
business of the Partnership;
(v) obtain loans for the Partnership and secure the
same by mortgaging, assigning for security purposes, pledging, or otherwise
hypothecating all or any part of the property and assets of the Partnership
(and in connection therewith to place record title to any such property or
assets in the name or names of a nominee or nominees);
(vi) prepay in whole or in part, refinance, recast,
increase, decrease, modify, amend, restate, or extend any such mortgage,
security assignment, pledge, or other security instrument, and in connection
therewith to execute and deliver, for and on behalf of the Partnership, any
extensions, renewals, or modifications thereof, any new mortgage, security
assignment, pledge, or other security instrument in lieu thereof;
(vii) draw, make, accept, endorse, sign, and deliver
any notes, drafts, or other negotiable instruments or commercial paper;
(viii) establish, maintain, and draw upon checking,
savings, and other accounts in the name of the Partnership or any Subsidiary of
the Partnership in such banks or other financial institutions as the Managing
Partner may from time to time select;
(ix) employ, fix the compensation of, oversee, and
discharge agents and employees of the Partnership and of any Subsidiary of the
Partnership as the Managing Partner shall deem advisable in the operation and
management of the business of the Partnership,
- 13 - December 13, 1996
<PAGE> 17
including but not limited to such accountants, attorneys, architects,
consultants, engineers, and appraisers, on such terms and for such
compensation, as the Managing Partner shall determine;
(x) compromise any claim or liability due to the
Partnership;
(xi) execute, acknowledge, verify, and file any and
all certificates, documents, and instruments that the Managing Partner
considers necessary or desirable to permit the Partnership to conduct business
in any state in which the Managing Partner deems advisable; and
(xii) do any or all of the foregoing, discretionary
or otherwise, through agents selected by the Managing Partner and compensated
or uncompensated by the Partnership.
(c) Duties of the Managing Partner. The Managing Partner
shall have the duties and responsibilities assigned to it in this Agreement and
any additional duties and responsibilities that may be assigned to it from time
to time by the Management Committee. The Managing Partner, on behalf of and at
the expense of the Partnership, shall perform duties as follows:
(i) take all steps and do all things within its
powers that are reasonable and necessary in connection with the management and
operations of the Partnership;
(ii) promote the success of the business of the
Partnership;
(iii) file and publish all certificates, statements,
and instruments, and all amendments thereto, that are required by law for the
formation, continuation, and operation of the Partnership and for the
qualification of the Partnership to do business in any other jurisdiction;
(iv) pay any uncontested taxes, charges, and
assessments that are levied, assessed, or imposed upon the Partnership or its
property, as they become due;
(v) discharge in good faith the duties and
obligations of the Partnership under any agreement, contract, or other document
to which it is a party;
(vi) maintain complete and accurate books of account
of the Partnership's affairs and all other records required to be maintained by
the Partnership at the Partnership's principal office;
(vii) inform the other Partner concerning the
operations of the Partnership; and
(viii) retain the services of accountants or legal
counsel as required for the Partnership.
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<PAGE> 18
(d) Third Parties. No Person dealing with the Managing
Partner shall be required to inquire into the necessity or expediency of any
act taken by the Managing Partner or be obligated or privileged to inquire into
the authority of the Managing Partner to perform any such act. Every contract,
agreement, or other instrument executed by the Managing Partner shall be
conclusive evidence in favor of any Person relying thereon or claiming
thereunder that (i) the Partnership was in existence at the time of the
execution and delivery thereof, (ii) such instrument was duly executed in
accordance with the terms and provisions of this Agreement and is binding upon
the Partnership, and (iii) the Managing Partner was duly authorized and
empowered to execute and deliver such instrument in the name and on behalf of
the Partnership.
4.5 Limitations on Authority of the Partners. Notwithstanding any
other provision of this Agreement, neither Partner shall have any authority to
cause the Partnership do any of the following, except with the prior approval
of the Management Committee:
(a) sell or otherwise dispose of, or agree to sell or
otherwise dispose of, (i) any assets of the Partnership or any Subsidiary of
the Partnership other than in the ordinary course of business of the
Partnership or any Subsidiary of the Partnership or (ii) all or substantially
all the assets of the Partnership (except, in either case, in a liquidating
sale upon dissolution of the Partnership in accordance with this Agreement and
except, in either case, for the disposition of the Partnership's interest in
PioneerCo to Sprint Spectrum Holding Company, L.P., a Delaware limited
partnership (or to any successor-in-interest to Sprint Spectrum Holding
Company, L.P.), in exchange for an equity interest therein as contemplated by
Section 13.6 of the PioneerCo Agreement, or do any other act that would make it
impossible to carry on the business of the Partnership except upon the
dissolution of the Partnership in accordance with this Agreement;
(b) merge or consolidate with any other Person;
(c) confess a judgment against the Partnership, or make,
execute, or deliver any assignment for the benefit of creditors;
(d) possess Partnership property, or assign any rights in
specific Partnership property, for other than a Partnership purpose, or
otherwise use any funds or assets of the Partnership other than for the benefit
of the Partnership;
(e) for so long as the Partnership is the Managing Partner of
PioneerCo, adopt any Budget or Business Plan for PioneerCo (or any amendment to
any Budget or Business Plan for PioneerCo) pursuant to Section 5.2(b) of the
PioneerCo Agreement or submit to the Non-Managing Partner of PioneerCo any
Proposed Budget, Proposed Business Plan, or Proposed Change pursuant to Section
5.2(c) of the PioneerCo Agreement;
(f) establish any business, strategic, or financial plan for
the Partnership or approve any annual budget for the Partnership;
- 15 - December 13, 1996
<PAGE> 19
(g) cause or permit PioneerCo to take any action that, under
the terms of the PioneerCo Agreement, requires the consent or approval of any
limited partner of PioneerCo; or
(h) amend the PioneerCo Agreement in any material respect or
waive any material right of the Partnership under the PioneerCo Agreement.
4.6 Authority, Responsibilities, and Fiduciary Obligations of the
Partners.
(a) Scope of Partners' Authority. Neither Partner shall have
any authority to execute any contract or other agreement, application, or other
document on behalf of the Partnership or any Subsidiary of the Partnership, or
otherwise to act for, or assume any obligation or responsibility on behalf of,
the Partnership or any Subsidiary of the Partnership, unless such action has
been approved by the Management Committee in accordance with this Section 4 or
responsibility for such action has been delegated to such Partner by the
Management Committee in accordance with this Section 4. Each Partner shall
have authority to execute such contracts or other agreements, applications, or
other documents on behalf of the Partnership, or otherwise to act for, or
assume any obligation or responsibility on behalf of, the Partnership, if such
action has been approved by the Management Committee in accordance with this
Section 4 or responsibility for such action has been delegated to such Partner
by the Management Committee in accordance with this Section 4.
(b) Responsibilities and Fiduciary Obligations of the
Partners.
(i) Conduct of Partnership Business. Each Partner
shall be required to devote to the conduct of the business of the Partnership
only as much time and attention as it deems necessary to accomplish the
purposes and to conduct properly the business of the Partnership. The Partners
agree that day-to-day operation, management, and supervision of the assets and
business of the Partnership may be delegated by the Management Committee to the
Managing Partner, to other Persons selected by the Management Committee, and to
the employees of the Partnership (or any Subsidiary of the Partnership), and by
the Managing Partner to other Persons selected by the Managing Partner and to
the employees of the Partnership (or any Subsidiary of the Partnership).
(ii) Fiduciary Obligations. A Partner shall be
liable under this Agreement for personal benefits improperly received, willful
misconduct, recklessness, and gross negligence with respect to the business of
the Partnership, but shall not be liable for errors in judgment or for any acts
or omissions that do not constitute the improper receipt of personal benefits,
willful misconduct, recklessness, or gross negligence with respect to the
business of the Partnership. The Managing Partner shall not be liable for the
negligence, whether of omission or commission, dishonesty, or bad faith of any
employee or agent of the Partnership selected and supervised by the Managing
Partner with reasonable care. Any act or omission of the Managing Partner, if
done in reliance upon the advice of legal counsel or public accountants
selected with the exercise of reasonable care by the Managing Partner, shall be
conclusively presumed not to
- 16 - December 13, 1996
<PAGE> 20
constitute the improper receipt of personal benefits, willful misconduct,
recklessness, or gross negligence with respect to the business of the
Partnership.
4.7 Compensation of Managing Partner and Reimbursement of Expenses.
The Managing Partner shall not be paid any compensation from the Partnership
for its services rendered to the Partnership. The Partnership shall reimburse
the Managing Partner and any agent or representative of the Managing Partner
for all costs and expenses incurred by them that are directly attributable to
the business of the Partnership. The Partnership shall, promptly after the
date hereof, reimburse the Managing Partner, and any agent or representative of
the Managing Partner, for all costs and expenses incurred (whether incurred
before or after the formation of the Partnership) in connection with the
formation and organization of the Partnership.
4.8 Tax Matters Partner.
(a) Designation. The Managing Partner is designated the "tax
matters partner" in accordance with Code Section 6231(a)(7).
(b) Authority. The Managing Partner shall have all powers
necessary to perform fully as tax matters partner, including the power to
retain attorneys and accountants of its choice. The Managing Partner, as the
tax matters partner, is authorized to represent the Partnership before taxing
authorities and courts in tax matters affecting the Partnership and the
Partners in their capacity as Partners and is entitled to take any actions on
behalf of the Partnership in any such tax proceedings that it, in its
reasonable business judgment, deems to be in the best interests of the
Partnership.
(c) Duties. To the extent and in the same manner as provided
by applicable law, the Managing Partner, as tax matters partner, (i) shall
furnish the name, address, Percentage Interest, and taxpayer identification
number of each Partner to the Secretary of the Treasury or its delegate, and
(ii) shall keep each Partner informed of any administrative and judicial
proceedings for the adjustment at the Partnership level of any items required
to be taken into account by a Partner for income tax purposes. The Managing
Partner shall give notice to each Partner of a Partnership audit.
(d) Expenses and Indemnification. The Managing Partner shall
be entitled to be reimbursed by the Partnership for all costs and expenses
incurred by it in connection with any administrative or judicial proceeding
with respect to any tax matter involving the Partnership or the Partners in
their capacity as Partners and to be indemnified by the Partnership (solely out
of Partnership assets) with respect to any action brought against it in
connection with any judgment in or settlement of any such proceeding.
4.9 Permitted Transactions.
(a) Other Businesses. Either Partner, and any partner,
affiliate, agent, or representative of either Partner, may engage in or possess
an interest in other business ventures
- 17 - December 13, 1996
<PAGE> 21
of any nature or description, independently or with others, whether currently
existing or hereafter created and whether or not competitive with or advanced
by the business of the Partnership. Neither the Partnership nor the other
Partner shall have any rights in or to the income or profits derived therefrom,
nor shall either Partner have any obligation to the other Partner with respect
to any such enterprise or related transaction.
(b) Dealings with Partnership. The Partnership may, in the
sole discretion of the Managing Partner, contract with any Person (including
either Partner or any Person affiliated with either Partner or in which either
Partner may be interested) for the performance of any services that may
reasonably be required to carry on the business of the Partnership, and any
such Person dealing with the Partnership, whether as an independent contractor,
agent, employee, or otherwise, may receive from others or from the Partnership
profits, compensation, commissions, or other income incident to such dealings.
4.10 Indemnification.
(a) In any threatened, pending, or completed claim, action,
suit, or proceeding to which either Partner was or is a party or is threatened
to be made a party by reason of its activities on behalf of the Partnership,
the Partnership shall indemnify and hold harmless such Partner against losses,
damages, expenses (including attorneys' and accountants' fees), judgments, and
amounts paid in settlement actually and reasonably incurred in connection with
such claim, action, suit, or proceeding, except that neither Partner shall be
indemnified for actions constituting the improper receipt of personal benefits,
willful misconduct, recklessness, or gross negligence with respect to the
business of the Partnership. To the extent either Partner has been successful
on the merits or otherwise in defense of any other action, suit, or proceeding
to which it was or is a party or is threatened to be made a party by reason of
the fact that it was or is a Partner of the Partnership, or in defense of any
claim, issue, or matter in connection therewith, the Partnership shall
indemnify such Partner and hold it harmless against the expenses (including
attorneys' and accountants' fees) actually incurred by such Partner in
connection therewith.
(b) Expenses (including attorneys' and accountants' fees)
incurred in defending a civil or criminal claim, action, suit, or proceeding
shall be paid by the Partnership in advance of the final disposition of the
matter upon receipt of an undertaking by or on behalf of the Partner to repay
such amount if such Partner is ultimately determined not to be entitled to
indemnity.
(c) To the fullest extent permitted by law, the Partnership
shall indemnify the Managing Partner and its agents and representatives for the
defense of any action brought in the name of the Partnership to procure a
judgment in its favor by the other Partner if and to the extent that
indemnification is permitted by the Act and the actions of the Managing
Partner, agent, or representative are not found to constitute the improper
receipt of personal benefits, willful misconduct, recklessness, or gross
negligence with respect to the business of the Partnership.
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<PAGE> 22
(d) Each Partner shall look solely to the assets of the
Partnership for return of the Partner's investment, and if the property of the
Partnership remaining after the discharge of the debts and liabilities of the
Partnership is insufficient to return a Partner's investment, the Partner shall
have no recourse against the other Partner, except as expressly provided in
this Agreement.
(e) For purposes of this Section 4.10, the termination of any
action, suit, or proceeding by judgment, order, settlement, or otherwise
adverse to either Partner shall not, of itself, create a presumption that the
conduct of such Partner constitutes the improper receipt of personal benefits,
willful misconduct, recklessness, or gross negligence with respect to the
business of the Partnership.
SECTION 5 CASH DISTRIBUTIONS; ALLOCATIONS OF PROFITS AND
LOSSES.
5.1 Distributions.
(a) Distributions Prior to Liquidation. Except as provided
in Section 5.1(b), all cash of the Partnership available for distribution shall
be distributed at such times and in such amounts as the Management Committee
shall determine. All distributions of cash pursuant to this Section 5.1(a)
shall be allocated between the Partners in proportion to their Percentage
Interests.
(b) Net Proceeds on Liquidation. Upon the liquidation of the
Partnership within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(g), after payment of, or adequate provision for, the debts
and obligations of the Partnership, the remaining assets of the Partnership
shall be distributed (or deemed distributed in the event of a termination under
Code Section 708(b)(1)(B)) to the Partners (after giving effect to all
contributions, distributions, allocations, and other Capital Account
adjustments for all taxable years, including the year during which such
liquidation occurs) in the same proportion that each Partner's positive Capital
Account balance bears to the aggregate of all positive Capital Account balances
of the Partners in compliance with Treasury Regulation Section
1.704-1(b)(2)(ii)(b)(2).
(c) Withholding. All amounts withheld pursuant to the Code
or any provision of any state or local tax law with respect to any distribution
to the Partners shall be treated as amounts distributed to Partners pursuant to
Section 5.1 for all purposes of this Agreement.
5.2 Allocations of Net Profit and Net Loss.
(a) Allocations Prior to Liquidation. Except as otherwise
provided in this Agreement, Net Profit and Net Loss for each Fiscal Year (or
portion thereof) shall be allocated between the Partners in proportion to their
Percentage Interests.
- 19 - December 13, 1996
<PAGE> 23
(b) Allocations upon Liquidation.
(i) Except as otherwise provided in this Agreement,
Net Profit in connection with the sale of all or substantially all the assets
of the Partnership or the liquidation of the Partnership shall be allocated as
follows:
(A) First, to the Partners having deficit
balances in their Capital Accounts to the extent of, and in proportion to,
those deficits;
(B) Second, so as to cause the ratio of the
credit balance in each Partner's Capital Account to the credit balances in all
Partners' Capital Accounts to equal such Partner's Percentage Interest; and
(C) Thereafter, to all Partners in
proportion to their Percentage Interests.
(ii) Except as otherwise provided in this Agreement,
Net Loss in connection with the sale of all or substantially all the assets of
the Partnership or the liquidation of the Partnership shall be allocated to the
Partners so as to cause the ratio of the credit balance in each Partner's
Capital Account to the credit balances in all Partners' Capital Accounts to
equal such Partner's Percentage Interest.
5.3 Special Allocations. The following special allocations shall be
made in the following order:
(a) Minimum Gain Chargeback. Except as otherwise provided in
Treasury Regulation Section 1.704-2(f), notwithstanding any other provision of
this Section 5, if there is a net decrease in Partnership Minimum Gain during
any Fiscal Year, each Partner shall be specially allocated items of Partnership
income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal
Years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Treasury Regulation
Section 1.704-2(g). Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Partner pursuant thereto. The items to be so allocated shall be determined in
accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2).
This Section 5.3(a) is intended to comply with the minimum gain chargeback
requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted
consistently therewith.
(b) Partner Minimum Gain Chargeback. Except as otherwise
provided in Treasury Regulation Section 1.704-2(i)(4), notwithstanding any
other provision of this Section 5, if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during
any Fiscal Year, each Partner who has a share of the Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt, determined
- 20 - December 13, 1996
<PAGE> 24
in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be
specially allocated items of Partnership income and gain for such Fiscal Year
(and, if necessary, subsequent Fiscal Years) in an amount equal to such
Partner's share of the net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the
previous sentence shall be made in proportion to the respective amounts
required to be allocated to each Partner pursuant thereto. The items to be
allocated shall be determined in accordance with Treasury Regulation Sections
1.704-2(i)(4) and 1.704-2(j)(2). This Section 5.3(b) is intended to comply
with the minimum gain chargeback requirement in Treasury Regulation Section
1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Nonrecourse Deductions. Nonrecourse Deductions for any
Fiscal Year or other period shall be specially allocated between the Partners
in proportion to their Percentage Interests.
(d) Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any Fiscal Year or other period shall be specially allocated to
the Partner who 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 Regulation Section 1.704-2(i).
(e) Code Section 754 Adjustment. To the extent an adjustment
to the adjusted tax basis of any Partnership asset pursuant to Code Section
734(b) or Code Section 743(b) is required, pursuant to Treasury Regulation
Section 1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4), to be taken
into account in determining Capital Accounts as a result of a distribution to a
Partner in complete liquidation of its interest, the amount of such adjustment
to the Capital Accounts 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 specifically allocated to the Partners in
accordance with their interests in the Partnership if Treasury Regulation
Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Partners to whom such
distribution was made if Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4)
applies.
5.4 Curative Allocations. The allocations set forth in Section 5.3
(other than Section 5.3(e)) (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
5.4. Therefore, notwithstanding any other provision of this Section 5 (other
than the Regulatory Allocations), the Managing Partner shall make such
offsetting special allocations of Partnership income, gain, loss, or deduction
in whatever manner it determines appropriate so that, after such offsetting
allocations are made, each Partner's Capital 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 5.2. In exercising its discretion
under this Section 5.4, the Managing Partner shall take into account
- 21 - December 13, 1996
<PAGE> 25
any future Regulatory Allocations under Sections 5.3(a) and 5.3(b) that,
although not yet made, are likely to offset Regulatory Allocations made under
Sections 5.3(c) and 5.3(d).
5.5 Special Allocations Relating to Certain Interest. The Partners
intend that the interest payable by CEI Pioneer pursuant to Section 3.1(c)(iii)
shall be treated as interest and not as a Capital Contribution and shall be
deductible by CEI Pioneer for federal income tax purposes (and shall constitute
income to the Partnership). The Partners further intend that any interest
payable by the Partnership to the FCC pursuant to its assumption of certain
liabilities of Cox Communications, Inc. pursuant to Section 3.1(e) shall be
deductible by the Partnership for federal income tax purposes and shall not be
a deduction of Cox Communications, Inc. If any other treatment shall be
required under the Code or applicable Treasury Regulations, then the Managing
Partner shall make such offsetting allocations of Partnership income, gain,
loss, or deduction in whatever manner it determines appropriate so that, after
such allocations are made, each Partner is, as nearly as possible, in the same
economic position it would have been in if the interest payable by CEI Pioneer
pursuant to Section 3.1(c)(iii) had been treated as described in the first
sentence of this Section 5.5 and the interest payable by the Partnership to the
FCC pursuant to Section 3.1(e) had been treated as set forth in the second
sentence of this Section 5.5.
5.6 Other Allocation Rules.
(a) Solely for purposes of determining a Partner's
proportionate share of the "excess nonrecourse liabilities" of the Partnership
within the meaning of Treasury Regulation Section 1.752-3(a)(3), the Partners'
interests in Partnership profits are equal to their respective Percentage
Interests.
(b) To the extent permitted by Treasury Regulation Sections
1.704-2(h) and 1.704-2(i)(6), the Managing Partner shall endeavor not to treat
distributions as having been made from the proceeds of a Nonrecourse Liability
or a Partner Nonrecourse Debt.
(c) If any fees or other payments deducted for federal income
tax purposes by the Partnership are recharacterized by a final determination of
the Internal Revenue Service as nondeductible distributions to either Partner,
then, notwithstanding all other allocation provisions (other than the
Regulatory Allocations), gross income shall be allocated to such Partner (for
each Fiscal Year in which such recharacterization occurs) in an amount equal to
the fees or payments recharacterized.
(d) All items of Partnership income, gain, loss, deduction,
and any other allocations not otherwise provided for shall be allocated between
the Partners in the same manner as they share Net Profits or Net Losses, as the
case may be, for the year.
- 22 - December 13, 1996
<PAGE> 26
5.7 Section 704(c) Allocations.
(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.
(b) If the Gross Asset Value of any Partnership asset 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) Any elections or other decisions relating to such
allocations shall be made by the Managing Partner in any manner that reasonably
reflects the purpose and intention of this Agreement. Allocations pursuant to
this Section 5.7 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.
SECTION 6 ASSIGNMENT, TRANSFER, OR SALE OF INTERESTS IN
PARTNERSHIP.
6.1 Transfer of the Partnership Interests. Neither Partner shall
sell, assign, pledge, or otherwise encumber or transfer all or any part of its
interest in the Partnership to any Person, without the consent of the other
Partner, and any attempt to do so shall be null and void.
6.2 Withdrawal of Partner. Each Partner agrees not to withdraw from
the Partnership without the prior consent of the other Partner. For purposes
of this Section 6.2, the term "withdrawal" shall include the bankruptcy of a
Partner for purposes of Section 1531 of the Act.
6.3 Admission of Additional Partners. Additional Partners may be
admitted to the Partnership on such terms and conditions as shall be agreed to
by all the Partners.
SECTION 7 DISSOLUTION AND TERMINATION OF THE PARTNERSHIP.
7.1 Events of Dissolution. The Partnership shall dissolve upon the
earliest to occur of:
(a) subject to any restriction in any agreement to which the
Partnership is a party, an election to dissolve the Partnership made by all
Partners;
- 23 - December 13, 1996
<PAGE> 27
(b) the sale, exchange, involuntary conversion, or other
disposition or transfer of all or substantially all the assets of the
Partnership (other than the disposition or transfer of the Partnership's
interest in PioneerCo to Sprint Spectrum Holding Company, L.P., a Delaware
limited partnership (or to any successor-in-interest to Sprint Spectrum Holding
Company, L.P.), in exchange for an equity interest therein as contemplated by
Section 13.6 of the PioneerCo Agreement;
(c) the occurrence of any event described in Section 1531 of
the Act;
(d) the happening of any event that, under applicable law,
causes the dissolution of a general partnership; or
(e) the expiration of the term of the Partnership.
7.2 Actions on Dissolution.
(a) Liquidator. Upon the dissolution of the Partnership, the
Managing Partner, or, if the Managing Partner is unable to do so or if the
Managing Partner wrongfully caused the dissolution of the Partnership, the
other Partner, shall act as liquidator to wind up the Partnership. The
liquidator shall have full power and authority to sell, assign, and encumber
any of the Partnership's assets and to wind up and liquidate the affairs of the
Partnership in an orderly and businesslike manner.
(b) Application of Proceeds. The proceeds of liquidation
shall be applied first to the payment of the debts and liabilities of the
Partnership (including any loans to the Partnership made by either Partner),
then to the expenses of liquidation, and then to the establishment of any
reserves that the liquidator deems necessary for potential or contingent
liabilities of the Partnership. Remaining proceeds shall be distributed to the
Partners as provided in Section 5.1(b).
(c) Distribution in Kind. If the liquidator determines that
the Partners would be materially adversely affected by a liquidation of the
Partnership's assets, the liquidator may distribute all or a portion of the
Partnership's assets in kind to the Partners, if the Partners so agree.
(d) Deferral of Liquidation. If the liquidator determines
that an immediate sale of part or all of the Partnership's assets would cause
undue loss to the Partners, the liquidator may, to avoid the loss, defer the
liquidation of, and withhold from distribution for a reasonable time, any
assets of the Partnership except those necessary to satisfy debts and
liabilities of the Partnership (other than debts or liabilities to the
Partners).
(e) Final Accounting. Upon the dissolution and winding up of
the Partnership, a proper accounting shall be made from the date of the last
previous accounting to the date of winding up.
- 24 - December 13, 1996
<PAGE> 28
(f) Statement of Liquidation. Within a reasonable time
following the completion of the liquidation of the Partnership, the liquidator
shall submit a statement (which need not be audited) to each Partner setting
forth the assets and liabilities of the Partnership as of the date of
liquidation and the amount of the distribution to each Partner pursuant to
Section 5.1(b).
(g) Effect of Withdrawal of Partner. The withdrawal of
either Partner (including the bankruptcy of a Partner for purposes of Section
1531 of the Act) shall not alter the allocations and distributions to be made
to the Partners pursuant to this Agreement.
(h) Termination of Partnership. Upon the completion of the
distribution of Partnership assets and the proceeds of liquidation as provided
in this Section 7.2, the Partnership shall be terminated.
SECTION 8 BOOKS, RECORDS, AND RETURNS; TAX YEAR.
8.1 Books of Account and Records. The Partnership's books and
records, including a register showing the names and addresses of the Partners,
a copy of this Agreement, and any other records required to be maintained by
the Act, shall be maintained at the principal office of the Partnership at the
location specified in Section 2.6. All such books and records shall be
available for inspection and copying by the Partners or their duly authorized
representatives during ordinary business hours. The Managing Partner shall
keep accurate books and records of the operation of the Partnership that shall
reflect all transactions and be appropriate and adequate for the Partnership's
business and for carrying out the provisions of this Agreement.
8.2 Accounting Reports. Within 120 days after the end of each Fiscal
Year of the Partnership, the Managing Partner shall cause to be furnished to
the Partners a report of the activities of the Partnership for the preceding
Fiscal Year, financial statements for the Fiscal Year (which need not be
audited) consisting of a balance sheet, a statement of income and expense, and
a statement of cash flows, all prepared in accordance with generally accepted
accounting principles consistently applied, except as the financial statements
shall otherwise specify.
8.3 Tax Returns. The Managing Partner shall cause the Partnership's
tax returns to be prepared and filed. Within 90 days after the end of each
Fiscal Year of the Partnership, the Managing Partner shall cause to be
furnished to each Partner a statement, to be used in the preparation of the
Partner's income tax returns, showing the amounts of any Profits and Losses,
tax credits, and gains allocable to the Partner for the Fiscal Year, and the
amount of any distributions made to the Partner by the Partnership during the
Fiscal Year.
8.4 Deposit of Partnership Funds. All revenues, assessments, loan
proceeds, and other receipts of the Partnership shall be maintained on deposit
in interest-bearing and non-interest bearing accounts and other investments as
the Managing Partner deems appropriate. Any interest or other income generated
by the Partnership's deposits or investments will be for the
- 25 - December 13, 1996
<PAGE> 29
Partnership's account. Partnership funds from any of the various sources
mentioned above may be commingled with other Partnership funds, and may be
withdrawn, expended, and distributed as authorized by this Agreement. The
Partnership shall not commingle Partnership funds with the separate funds of
the Partners, their affiliates, or any other Person.
SECTION 9 MISCELLANEOUS.
9.1 Captions. All section captions contained in this Agreement are
for convenience only and shall not be deemed part of this Agreement.
9.2 Pronouns, Singular and Plural Form. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, and
neuter as the identity of the Person or Persons referred to may require, and
all words shall include the singular or plural as the context or the identity
of Persons may require.
9.3 Further Action. The parties shall execute and deliver all
documents, provide all information, and take, or forbear from, all actions that
may be necessary or appropriate to achieve the purposes of this Agreement.
9.4 Entire Agreement. This Agreement contains the entire
understanding between the parties and supersedes any prior understandings and
agreements between them regarding the subject matter of this Agreement.
9.5 Agreement Binding. This Agreement shall be binding upon the
successors and assigns of the parties. No provision of this Agreement may be
waived except by a written instrument specifically waiving such provision and
executed by the party to be charged with such waiver. No provision of this
Agreement may be amended or modified except by a written instrument executed by
all of the parties.
9.6 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be in
writing and shall be deemed to have been duly delivered and received (a) on the
date of personal delivery, or (b) on the date of receipt (as shown on the
return receipt) if mailed by registered or certified mail, postage prepaid and
return receipt requested, or if sent by courier service, with all charges
prepaid, in each case addressed to the Partner at the last address furnished by
the Partner to the other Partner by notice pursuant to this Section 9.6.
Nothing in this Section 9.6 shall preclude the delivery of notices by
appropriate means other than those described above, including facsimile.
9.7 Severability. If any provision or part of any provision of this
Agreement is invalid or unenforceable in any respect, such provision or part of
any provision shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts of such
provision or the remaining provision of this Agreement.
- 26 - December 13, 1996
<PAGE> 30
9.8 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
9.9 Governing Law. This Agreement shall be governed, construed, and
enforced in accordance with the laws of the State of Delaware (without regard
to the choice of law provisions thereof).
9.10 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 creditor of the Partnership or of either of
the Partners.
- 27 - December 13, 1996
<PAGE> 31
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
COX COMMUNICATIONS PIONEER, INC.
By: /s/ DAVID M. WOODROW
----------------------------------------
Name: DAVID M. WOODROW
--------------------------------------
Title: VP
-------------------------------------
CEI PIONEER, INC.
By: /s/ DAVID M. WOODROW
----------------------------------------
Name: DAVID M. WOODROW
--------------------------------------
Title: VP
-------------------------------------
- 28 - December 13, 1996
