Exhibit 10.2
FORM OF
VERIZON WIRELESS OF THE EAST LP
AGREEMENT
OF LIMITED PARTNERSHIP
DATED AS OF
___________________, 200_
AMONG
VERIZON WIRELESS OF GEORGIA LLC
[CELLCO SUB]
PRICE COMMUNICATIONS WIRELESS, INC.
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS......................................................................1
ARTICLE 2
THE PARTNERSHIP
SECTION 2.01. FORMATION........................................................................9
SECTION 2.02. NAME ............................................................................9
SECTION 2.03. PURPOSE..........................................................................9
SECTION 2.04. REGISTERED OFFICE................................................................9
SECTION 2.05. TERM ............................................................................9
SECTION 2.06. FILINGS; AGENT FOR SERVICE OF PROCESS...........................................10
SECTION 2.07. INDEPENDENT ACTIVITIES..........................................................10
SECTION 2.08. FISCAL YEAR.....................................................................11
ARTICLE 3
CONTRIBUTIONS; PERCENTAGE INTEREST
SECTION 3.01. MANAGING GENERAL PARTNER........................................................11
SECTION 3.02. LIMITED PARTNERS................................................................11
SECTION 3.03. ADDITIONAL CONTRIBUTIONS........................................................12
ARTICLE 4
ALLOCATIONS
SECTION 4.01. PROFITS.........................................................................12
SECTION 4.02. LOSSES..........................................................................12
SECTION 4.03. SPECIAL ALLOCATIONS.............................................................13
SECTION 4.04. ALLOCATION OF LIABILITIES.......................................................14
SECTION 4.05. CURATIVE ALLOCATIONS............................................................14
SECTION 4.06. LOSS LIMITATION.................................................................15
SECTION 4.07. TAX ALLOCATIONS.................................................................15
SECTION 4.08. TAX MATTERS PARTNER, TAX ELECTIONS..............................................15
SECTION 4.09. CLASSIFICATION AS PARTNERSHIP...................................................16
ARTICLE 5
DISTRIBUTIONS
SECTION 5.01. PRICE LP DISTRIBUTION...........................................................16
SECTION 5.02. AMOUNTS WITHHELD................................................................16
SECTION 5.03. OTHER DISTRIBUTIONS.............................................................17
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ARTICLE 6
MANAGEMENT
SECTION 6.01. AUTHORITY OF THE MANAGING GENERAL PARTNER.......................................17
SECTION 6.02. RIGHT TO RELY ON MANAGING GENERAL PARTNER.......................................17
SECTION 6.03. MANAGEMENT COMMITTEE............................................................17
SECTION 6.04. RESTRICTIONS ON AUTHORITY OF MANAGING GENERAL PARTNER...........................18
SECTION 6.05. DAY-TO-DAY MANAGEMENT...........................................................21
SECTION 6.06. DUTIES AND OBLIGATIONS; EXCULPATION.............................................21
SECTION 6.07. INDEMNIFICATION OF MANAGING GENERAL PARTNER.....................................22
SECTION 6.08. COMPENSATION AND REIMBURSEMENT..................................................22
SECTION 6.09. OPERATING RESTRICTIONS..........................................................23
SECTION 6.10. RIGHTS OR POWERS................................................................24
SECTION 6.11. VOTING RIGHTS...................................................................24
ARTICLE 7
BOOKS AND RECORDS
SECTION 7.01. BOOKS AND RECORDS...............................................................24
SECTION 7.02. PERIODIC REPORTS; FINANCIAL STATEMENTS..........................................24
SECTION 7.03. OPERATIONAL INFORMATION.........................................................26
SECTION 7.04. TAX INFORMATION.................................................................26
ARTICLE 8
CERTAIN COVENANTS
SECTION 8.01. CONFIDENTIALITY.................................................................27
SECTION 8.02. PRESS ANNOUNCEMENTS.............................................................27
ARTICLE 9
AMENDMENTS; MEETINGS
SECTION 9.01. AMENDMENTS......................................................................27
SECTION 9.02. MEETINGS OF THE PARTNERS........................................................28
ARTICLE 10
TRANSFERS OF INTERESTS, ETC
SECTION 10.01. RESTRICTION OF TRANSFERS OF INTERESTS..........................................28
SECTION 10.02. PERMITTED TRANSFERS............................................................29
SECTION 10.03. CONDITIONS TO PERMITTED TRANSFERS..............................................29
SECTION 10.04. PROHIBITED TRANSFERS...........................................................30
SECTION 10.05. RIGHTS OF UNADMITTED ASSIGNEES.................................................31
SECTION 10.06. ADMISSION OF TRANSFEREES AS PARTNERS...........................................31
SECTION 10.07. CURE PERIOD....................................................................31
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SECTION 10.08. DISTRIBUTIONS AND ALLOCATIONS WITH RESPECT TO
TRANSFERRED INTERESTS.............................................................32
ARTICLE 11
MANAGING GENERAL PARTNER
SECTION 11.01. BUSINESS ACTIVITIES............................................................33
SECTION 11.02. COVENANT NOT TO WITHDRAW, TRANSFER, OR DISSOLVE................................33
ARTICLE 12
DISSOLUTION AND WINDING UP
SECTION 12.01. LIQUIDATING EVENTS.............................................................33
SECTION 12.02. WINDING UP.....................................................................35
SECTION 12.03. ALLOCATIONS DURING PERIOD OF LIQUIDATION.......................................36
SECTION 12.04. INDEMNIFICATION OF THE LIQUIDATOR..............................................36
ARTICLE 13
POWER OF ATTORNEY
SECTION 13.01. MANAGING GENERAL PARTNER AS ATTORNEY-IN-FACT...................................36
SECTION 13.02. SPECIAL POWER..................................................................37
ARTICLE 14
MISCELLANEOUS
SECTION 14.01. NOTICES........................................................................37
SECTION 14.02. MANAGING GENERAL PARTNER OR NEW LP BREACH......................................38
SECTION 14.03. BINDING EFFECT.................................................................39
SECTION 14.04. CONSTRUCTION...................................................................39
SECTION 14.05. ASSIGNABILITY..................................................................39
SECTION 14.06. HEADINGS.......................................................................39
SECTION 14.07. SEVERABILITY; INTEGRATION......................................................39
SECTION 14.08. FURTHER ACTION.................................................................39
SECTION 14.09. VARIATION OF PRONOUNS..........................................................40
SECTION 14.10. GOVERNING LAW..................................................................40
SECTION 14.11. WAIVER OF ACTION FOR PARTITION; NO XXXX FOR
PARTNERSHIP ACCOUNTING.............................................................40
SECTION 14.12. COUNTERPART EXECUTION..........................................................40
SECTION 14.13. LIMITATION ON LIMITED PARTNER OBLIGATIONS......................................40
SECTION 14.14. LIMITED PARTNER RIGHTS.........................................................40
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AGREEMENT OF LIMITED PARTNERSHIP
OF
VERIZON WIRELESS OF THE EAST LP
This AGREEMENT OF LIMITED PARTNERSHIP is entered into and shall be
effective as of the __ day of , 200 , by and among (i) Verizon Wireless of
Georgia LLC, a
Delaware limited liability company (the "MANAGING GENERAL
PARTNER"), as Managing General Partner, and (ii) [Cellco Sub], a __________
("CELLCO LP"), and Price Communications Wireless, Inc., a
Delaware corporation
("PRICE LP"), as the Limited Partners, pursuant to the provisions of the
Delaware Revised Uniform Limited Partnership Act, 6 Del. C. Section 17-101 et
seq. (the "ACT").
WHEREAS,
Price Communications Corporation, a New York corporation
("PRICE PARENT"), Price Communications Cellular Inc., a
Delaware corporation
("PRICE CELLULAR"), Price Communications Cellular Holdings, Inc., a
Delaware
corporation ("PRICE SHAREHOLDER" and, together with Price Parent, Price Cellular
and Price LP, the "PRICE CORPORATIONS"), Cellco Partnership, a
Delaware general
partnership ("CELLCO"), and the Partnership are parties to a Transaction
Agreement dated as of December 18, 2001 (as amended from time to time, the
"TRANSACTION AGREEMENT"), and the Price Corporations, Verizon Communications
Inc., a
Delaware corporation, and Verizon Wireless Inc., a
Delaware corporation,
are parties to an Exchange Agreement dated as of December 18, 2001 (as amended
from time to time, the "EXCHANGE AGREEMENT");
WHEREAS, the parties hereto wish to set forth their rights and
obligations with respect to Verizon Wireless of the East LP;
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. (a) Capitalized words and phrases used in
this Agreement and not defined herein have the meanings ascribed thereto in the
Transaction Agreement. In addition, the following capitalized words and phrases
used in this Agreement have the following meanings:
"ADJUSTED BASE RATE" means 4.00% per annum compounded quarterly minus
the Rate Adjustment Percentage.
"ADDITIONAL CAPITAL CONTRIBUTIONS" means any Capital Contributions made
by the Managing General Partner or Cellco LP pursuant to Section 3.03 or by
Price LP pursuant to Section 5.01(c).
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Limited
Partner, the deficit balance, if any, in such Limited Partner's Capital Account
as of the end of the relevant Allocation Year, after giving effect to the
following adjustments: debit to such Capital Account the items described in
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) of the Regulations. The foregoing definition of Adjusted
Capital Account Deficit is intended to comply with the provisions of Section
1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
"ALLOCATION YEAR" means (i) the period commencing on the Closing Date
and ending on December 31, 2001, (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 Article 4 hereof.
"APPLICABLE RATE" means (i) prior to the Rate Reduction Date, the
Adjusted Base Rate, and (ii) on and after the Rate Reduction Date, zero.
"CAPITAL ACCOUNT" means, with respect to each 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 (A) such
Partner's Capital Contributions, (B) such Partner's share of Profit allocated
pursuant to Section 4.01 and any items of Partnership income or gain which are
specially allocated pursuant to Section 4.03, (C) any credit required pursuant
to Section 6.03 of the Transaction Agreement, and (D) the amount of any
Partnership liabilities assumed by such Partner or which are secured by any
Property distributed to such Partner.
(ii) To each Partner's Capital Account there shall be debited (A) the
amount of cash and the Gross Asset Value of any Property distributed to such
Partner pursuant to any provision of this Agreement, (B) such Partner's share of
Loss allocated pursuant to Section 4.02 and any items of Partnership deduction
or loss which are specially allocated pursuant to Section 4.03 (other than
pursuant to Section 4.03(d)), (C) any debit required pursuant to Section 6.03 of
the Transaction
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Agreement, and (D) the amount of any liabilities of such Partner assumed by the
Partnership or which are secured by any property contributed by such Partner to
the Partnership.
(iii) If all or a portion of an interest in the Partnership 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.
(iv) In determining the amount of any liability for purposes of clauses
(i) and (ii) above, 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), and shall be interpreted and applied in a manner consistent
with such Regulation.
"CAPITAL CONTRIBUTION" means, with respect to each Partner, the amount
of cash and initial Gross Asset Value of any Property (other than cash)
contributed to the Partnership with respect to the Interest in the Partnership
held by such Partner.
"CLOSING DATE" means the date on which the Original Capital
Contributions are made.
"CONVERSION" means the conversion of the technology used by the
Business to provide digital wireless service from time division multiple access
(TDMA) to code division multiple access (CDMA).
"DEPRECIATION" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable for federal income tax purposes with respect to an asset for such year
or other 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 year
or other period, Depreciation shall be an amount which bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation,
amortization, or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however, that if the
federal income tax depreciation, amortization, or other cost recovery deduction
for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Managing
General Partner.
"EXCHANGE" means a VCI Exchange or a VWI Exchange (as such terms are
defined in the Exchange Agreement).
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"EXCHANGE NOTICE DEADLINE" has the meaning ascribed to such term in the
Exchange Agreement.
"EXCHANGE REVOCATION NOTICE" has the meaning set forth in the Exchange
Agreement.
"EXCHANGE TRIGGER DATE" has the meaning set forth in the Exchange
Agreement.
"GROSS ASSET VALUE" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes; PROVIDED, HOWEVER, that 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 specified in
Section 3.01 or Section 3.02. If the Gross Asset Value has been determined under
the preceding proviso, such Gross Asset Value shall thereafter be adjusted by
the Depreciation taken into account with respect to such asset for purposes of
the allocations made pursuant to Article 4.
"INDEBTEDNESS" means, with respect to the Partnership, (i) all
indebtedness of the Partnership for borrowed money or for the deferred purchase
price of property, payment for which is deferred six (6) months or more (but
excluding accounts payable incurred in the ordinary course of business), (ii)
all obligations evidenced by notes, bonds, debentures or similar instruments,
(iii) all obligations under lease of property by the Partnership (whether real,
personal or mixed) that would be required to be classified as a capital lease in
accordance with GAAP and (iv) all guaranties by the Partnership of any the
foregoing obligations of any other Person.
"INTEREST" means the entire ownership interest of a Partner in the
Partnership at any time, including the rights of such Partner to capital,
Profit, Loss, distributions and other benefits to which such Partner may become
entitled hereunder, and the obligations of such Partner to comply with the terms
and provisions of this Agreement and the Act.
"LIMITED PARTNER" means Price LP or Cellco LP. "LIMITED PARTNERS" means
both such Persons.
"ORIGINAL CAPITAL CONTRIBUTION" means, with respect to each Partner,
the Capital Contribution made by such Partner pursuant to the Transaction
Agreement and Section 3.01 or Section 3.02 (as the case may be).
"PARTNERS" means the Managing General Partner and the Limited Partners,
where no distinction is required by the context in which the term is used
herein. "PARTNER" means any one of the Partners.
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"PARTNERSHIP" means the partnership continued pursuant to this
Agreement.
"PERCENTAGE INTEREST" means 1% with respect to the Managing General
Partner and 99% with respect to Cellco LP.
"PERMITTED TRANSFER" means a Transfer of an Interest pursuant to
Section 10.02.
"PERMITTED TRANSFEREE" means with respect to each of the Managing
General Partner, Cellco LP and Price LP, each of the Persons to whom its
Interest may be Transferred in accordance with Article 10.
"PREFERRED RETURN" means a return accreted quarterly on the weighted
daily average balance of Price LP's Capital Account at the Applicable Rate from
the Closing Date.
"PRICE PROFIT ALLOCATION" means, with respect to any fiscal year, Price
LP's share of any Profit for such fiscal year allocated to Price LP's Capital
Account pursuant to Sections 4.01(b) and 4.03.
"PROPERTY" means all real and personal property acquired by the
Partnership, including cash, and shall include both tangible and intangible
property.
"PROFITS" and "LOSSES" means, for each Allocation Year, an amount equal
to the Partnership's taxable income or loss for such Allocation Year, or portion
thereof, 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 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) gain or loss resulting from any disposition of Property with
respect to which gain or loss is recognized for United States federal income tax
purposes shall be computed by reference to the Gross Asset Value of the property
disposed of,
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notwithstanding that the adjusted tax basis of such property differs from its
Gross Asset Value, and such gain or loss shall be computed by taking into
account the cost of any appraisal of such Property incurred by the Partnership
or any expense of, or expense reimbursable by, the Partnership in connection
with such appraisal;
(iv) 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 Allocation Year, or portion
thereof, computed in accordance with the definition of Depreciation; and
(v) notwithstanding any other provision of this definition, any items
which are required to be specially allocated pursuant to Section 4.03 hereof
shall not be taken into account in computing Profits or Losses.
"QUARTERLY DISTRIBUTION AMOUNT" means, subject to Section 5.01(c), (i)
with respect to each of the first, second and third quarters of any fiscal year
(but not with respect to any quarter, or portion thereof, occurring prior to the
second anniversary of the Closing Date), an amount of cash estimated in good
faith by the Managing General Partner to be equal to 50.00% of Price LP's share
of any Profit for such fiscal quarter which would be allocated to Price LP's
Capital Account pursuant to Sections 4.01(b) and 4.03 if such allocation were
made on a quarterly basis, and (ii) with respect to the fourth quarter of any
fiscal year, an amount of cash equal to (A) if the Price Profit Allocation for
such fiscal year is less than the Threshold Profit Allocation for such fiscal
year, an amount of cash equal to (x) the Price Profit Allocation minus (y) the
sum of the Quarterly Distribution Amounts for the first, second and third
quarters of such fiscal year, or (B) if the Price Profit Allocation for such
fiscal year is greater than or equal to the Threshold Profit Allocation for such
fiscal year, an amount of cash equal to (x) the Threshold Profit Allocation
minus (y) the sum of the Quarterly Distribution Amounts for the first, second
and third quarters of such fiscal year. For purposes of clause (ii) above, with
respect to the fiscal year in which the second anniversary of the Closing Date
occurs, the Price Profit Allocation and the Threshold Profit Allocation shall
take into account only the portion of such fiscal year which occurs after such
anniversary. For purposes of determining the Quarterly Distribution Amount, it
shall be assumed that the aggregate amount of Profit allocated to Price LP for
the period from the Closing Date to and including the second anniversary of the
Closing Date is equal to the cumulative Preferred Return for such period.
"RATE ADJUSTMENT PERCENTAGE" means the product obtained by multiplying
(i) the difference between (A) the annual rate of interest payable by New LP in
respect of the New LP Financing determined as set forth in Section 2.06 of the
Transaction Agreement and (B) the rate of interest that would be payable by New
LP through Cellco Partnership on a loan extended to it by Verizon Global Funding
Corp.
6
as set forth in the most recent monthly Cash Pool Interest Notice delivered
prior to the Closing Date by VCI to Cellco, which rate shall be certified in
writing to the Company by the controller of Cellco and (ii) a fraction, the
numerator of which is $350,000,000 and the denominator of which is the Company's
Original Capital Contribution.
"RATE REDUCTION DATE" means the earliest date on which there occurs any
of the following (i) an Exchange, (ii) the Exchange Notice Deadline and (iii)
the fourth anniversary of the Closing Date; PROVIDED that, solely for purposes
of clause (ii) of this definition, the Exchange Notice Deadline will be deemed
not to have occurred if (A) Price LP has a right to deliver and delivers a VWI
Exchange Revocation Notice in compliance with Section 2.01(d) of the Exchange
Agreement, (B) Price LP delivers a VWI Exchange Notice in compliance with
Section 2.01 of the Exchange Agreement, the stockholders of Price Parent approve
the VWI Exchange contemplated by such VWI Exchange Notice, the VWI Exchange is
not consummated prior to the fourth anniversary of the Closing Date, the failure
to consummate the VWI Exchange is not the result of a failure by any Price
Corporation or VWI to have performed, in all material respects, their respective
obligations under the Transaction Agreement and the ELP Interest has not been
exchanged for VCI Stock pursuant to Section 2.02(b) of the Exchange Agreement,
(C) Price LP has a right to deliver, but has not delivered, a VWI Exchange
Revocation Notice pursuant to Section 2.01(d) of the Exchange Agreement and at
any time prior to the Revocation Deadline, the ELP Interest is exchanged for VCI
Stock pursuant to Section 2.02(b) of the Exchange Agreement or (D) the ELP
Interest has been exchanged for VCI Stock pursuant to Section 2.02(b) of the
Exchange Agreement prior to the fourth anniversary of the Closing Date, but
otherwise, all of the conditions set forth in clause (B) above have been met.
For the purposes of the foregoing, the determination that no Exchange Notice
Deadline has occurred shall be made on, and effective as of, (x) the Revocation
Deadline, in the case of clause (A), (y) the fourth anniversary of the delivery
by the Company of the VWI Exchange Notice, in the case of clause (B), and (z)
the date of the VCI Exchange, in the cases of clause (C) and (D) and any such
applicable date shall hereinafter be referred to as the "DETERMINATION DATE".
"REGULATIONS" means the Income Tax Regulations promulgated under the
Code, as amended from time to time.
"THRESHOLD PROFIT ALLOCATION" means, with respect to any fiscal year,
50.00% of (i) the weighted daily average balance of Price LP's Capital Account
during such fiscal year MULTIPLIED BY (ii) the Applicable Rate for such fiscal
year (adjusted for quarterly compounding (unless the Applicable Rate is zero)
and for any change in the Applicable Rate which occurs during such fiscal year).
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"TRANSFERS" means, as a noun, any voluntary or involuntary transfer,
sale, pledge, hypothecation, or other disposition and, as a verb, voluntarily or
involuntarily to transfer, sell, pledge, hypothecate or otherwise dispose of.
"UNALLOCATED PREFERRED RETURN" means the excess, if any, of (i) the
cumulative Preferred Return over (ii) the aggregate amount of Profits or income
allocated to Price LP pursuant to Sections 4.01(b) and 4.03 for all prior
Allocation Years.
"VWI EXCHANGE" has the meaning set forth in the Exchange Agreement.
"VWI EXCHANGE NOTICE" has the meaning set forth in the Exchange
Agreement.
(a) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
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Cellco LP Preamble
Cellco Preamble
Certificate 2.06
Cure Transfer 10.07
Determination Date definition of "Rate
Reduction Date"
Excess Distribution Amount 5.01(c)
Exchange Agreement Preamble
Information 8.01
Liquidating Events 12.01
Liquidator 12.02
Management Committee 6.03
Managing General Partner Preamble
Nonacquiesced Transaction 6.04(c)
Nonacquiesced Transaction Items 6.04(c)
Partnership Business 2.03
Price Shareholder Preamble
Price Parent Preamble
Price Corporations Preamble
Price Cellular Preamble
Price LP Preamble
Regulatory Allocations 4.05(a)
Relevant Party 6.06(b)
Statement of Partnership 6.09(b)
Subject Transfer 10.07
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TERM SECTION
---- -------
Tax Matters Partner 4.08
Transaction Agreement Preamble
ARTICLE 2
THE PARTNERSHIP
SECTION 2.01. FORMATION. The Partnership was formed on December 17,
2001. The Partners hereby agree to continue the Partnership as a limited
partnership pursuant to the provisions of the Act and upon the terms and
conditions set forth in this Agreement.
SECTION 2.02. NAME. The name of the Partnership shall continue to be
Verizon Wireless of the East LP and all business of the Partnership shall be
conducted in such name. The Managing General Partner may change the name of the
Partnership upon 10 days notice to Price LP. Except as otherwise provided in
this Agreement, the Partnership shall hold all of its property in the name of
the Partnership and not in the name of any Partner.
SECTION 2.03. PURPOSE. The purpose of the Partnership is to acquire the
Contributed Assets pursuant to the Transaction Agreement and to engage in the
business of constructing, developing, managing, operating, marketing and selling
cellular telephone systems and service, wireless service, paging service, PCS
service and other commercial mobile radio service, and any business related
thereto (the "PARTNERSHIP BUSINESS"), and to do everything necessary or
desirable for the accomplishment of the above purposes or the furtherance of any
of the powers set forth herein, and to do every other act and thing incident
thereto or connected therewith.
SECTION 2.04. REGISTERED OFFICE. The registered office of the
Partnership in the State of
Delaware is located at Corporation Service Company,
0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
SECTION 2.05. TERM. The term of the Partnership shall commence on the
date the Partnership was formed, as set forth in Section 2.01, 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
12.01 hereof.
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SECTION 2.06. FILINGS; AGENT FOR SERVICE OF PROCESS.
(a) A Certificate of Limited Partnership (the "CERTIFICATE") has been
filed in the office of the Secretary of State of the State of
Delaware in
accordance with the provisions of the Act. The Managing General Partner 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 the State
of Delaware. The Managing General Partner shall cause amendments to the
Certificate to be filed whenever required by the Act. Such amendments may be
executed by the Managing General Partner.
(b) The Managing General Partner shall execute and cause to be filed an
original or amended Certificate and shall take any and all other actions as 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
state or jurisdictions in which the Partnership engages in business.
(c) The registered agent for service of process on the Partnership in
the State of Delaware shall be Corporation Service Company, 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, or any successor as appointed by the Managing
General Partner in accordance with the Act.
(d) Upon the dissolution of the Partnership, the Managing General
Partner (or, if the Managing General Partner does not wind up the Partnership's
affairs, any Person elected pursuant to Section 12.02 hereof) shall promptly
execute and cause to be filed certificates of cancellation in accordance with
the Act and the laws of any other states or jurisdictions in which the
Partnership has filed Certificates.
SECTION 2.07. INDEPENDENT ACTIVITIES. Except as expressly provided in
the Transaction Agreement (including, without limitation, Section 9.07 and
Section 10.05 thereof), each Partner and each of their Affiliates may,
notwithstanding this Agreement, engage in whatever activities they choose,
whether the same are competitive with the Partnership or otherwise, without
having or incurring any obligation to offer any interest in such activities to
the Partnership or any Partner and, except as expressly provided for in the
Transaction Agreement, neither this Agreement nor any activity undertaken
pursuant hereto shall prevent any Partner or its Affiliates from engaging in
such activities, or require any Partner or its Affiliates to permit the
Partnership or any other Partner or its Affiliates to participate in any such
activities, and each Partner hereby waives, relinquishes, and renounces any such
right or claim of participation.
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SECTION 2.08. FISCAL YEAR. The fiscal year of the Partnership for
financial statement and federal income tax purposes shall end on December 31.
ARTICLE 3
CONTRIBUTIONS; PERCENTAGE INTEREST
SECTION 3.01. MANAGING GENERAL PARTNER. After giving effect to the
transactions contemplated by the Transaction Agreement to occur on the Closing
Date, the name, address and value of the Capital Contribution of the Managing
General Partner as of the date hereof are as follows:
Capital
Name and Address Contribution
---------------- ------------
Cash in the amount of $[ ]
[Cellco Sub]
c/o Verizon Wireless
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
SECTION 3.02. LIMITED PARTNERS. After giving effect to the transactions
contemplated by the Transaction Agreement to occur on the Closing Date, the
names, addresses and value of the Capital Contributions of the Limited Partners
as of the date hereof are as follows:
Capital
Name and Address Contribution
---------------- ------------
Price Communications Wireless, Inc. Property (other than cash) with an
00 Xxxxxxxxxxx Xxxxx initial Gross Asset Value of $[ ]
Suite 3200 and cash in the amount of $[ ]
Xxx Xxxx, XX 00000
Cellco Sub Property (other than cash) with an
c/o Verizon Wireless initial Gross Asset Value of $[ ]
000 Xxxxxxxxxx Xxxxxx Xxxx and cash in the amount of $[ ]
Xxxxxxxxxx, XX 00000
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SECTION 3.03. ADDITIONAL CONTRIBUTIONS. Subject to Section 6.04, each
of the Managing General Partner and Cellco LP may, from time to time, make
additional Capital Contributions at its sole discretion.
ARTICLE 4
ALLOCATIONS
SECTION 4.01. PROFITS. After giving effect to the special allocations
set forth in Sections 4.03 and 4.05, Profits for any Allocation Year shall be
allocated to the Capital Accounts of the Partners in the following order and
priority:
(a) First, to Price LP in the amount, if positive, equal to (i) the sum
of the cumulative Losses allocated to Price LP pursuant to Section 4.02(d) for
all prior Allocation Years MINUS (ii) the sum of the cumulative Profits
allocated to Price LP pursuant to this Section 4.01(a) for all prior Allocation
Years;
(b) Second, to Price LP until Price LP has been allocated an amount, if
any, equal to its Unallocated Preferred Return; and
(c) Third, to the Managing General Partner and Cellco LP in proportion
to their Percentage Interests.
SECTION 4.02. LOSSES. After giving effect to the special allocations
set forth in Sections 4.03 and 4.05, Losses for any Allocation Year shall be
allocated to the Capital Account of the Partners in the following order and
priority:
(a) First, to the Managing General Partner and Cellco LP, in proportion
to their Percentage Interests, in an amount, if positive, equal to (i) the sum
of the cumulative Profits allocated pursuant to Section 4.01(c) for all prior
Allocation Years MINUS (ii) the sum of the cumulative Losses allocated pursuant
to this Section 4.02(a) for all prior Allocation Years;
(b) Second, to the Managing General Partner until the Managing General
Partner has been allocated an amount, if any, equal to the Managing General
Partner's Capital Account;
(c) Third, to Cellco LP until Cellco LP has been allocated an amount,
if any, equal to Cellco LP's Capital Account;
(d) Fourth, to Price LP until Price LP has been allocated an amount, if
any, equal to Price LP's Capital Account and
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(e) Fifth, to the Managing General Partner.
SECTION 4.03. SPECIAL ALLOCATIONS. The following special allocations of
items of Partnership income, gain, loss or deduction (the amount of each such
item being determined by applying rules analogous to those set forth in clauses
(i) through (iv) of the definition of "Profits" and "Losses" in Section 1.01
hereof) shall be made in the following order:
(a) QUALIFIED INCOME OFFSET. If any Limited Partner unexpectedly
receives any adjustments, allocations, or distributions described in Section
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) of
the Regulations, items of Partnership income and gain shall be specially
allocated to such Limited Partner in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the Adjusted Capital
Account Deficit of the Limited Partner as quickly as possible, provided that an
allocation pursuant to this Section 4.03(a) shall be made only if and to the
extent that the Limited Partner would have an Adjusted Capital Account Deficit
after all other allocations provided for in this Article 4 have been tentatively
made as if this Section 4.03(a) were not in this Agreement.
(b) GROSS INCOME ALLOCATION. If a Limited Partner has a deficit Capital
Account at the end of any Partnership Allocation Year, such Limited Partner
shall be specially allocated items of Partnership income and gain in the amount
of such deficit as quickly as possible, provided that an allocation pursuant to
this Section 4.03(b) shall be made only if and to the extent that the Limited
Partner would have a deficit Capital Account after all other allocations
provided for in this Article 4 have been tentatively made as if Section 4.03(a)
hereof and this Section 4.03(b) were not in this Agreement.
(c) ADDITIONAL SPECIAL ALLOCATION. The following items shall be
allocated to the Managing General Partner and Cellco LP in proportion to their
Percentage Interests:
(i) all items of expense incurred in connection with the
purchase and defeasance of the Senior Subordinated Notes and the Senior
Secured Notes (including, without limitation, any premium paid in
connection therewith);
(ii) all Nonacquiesced Transaction Items;
(iii) all amortization in respect of any intangible asset;
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(iv) all gain realized upon sale or disposition of any
intangible asset to the extent of the aggregate amount of amortization
previously allocated in respect of such intangible asset under clause
(iii) above;
(v) all losses realized upon sale, disposition or write-off of
any assets in connection with the Conversion; and
(vi) all costs of purchasing handsets to be provided to then
existing customers in connection with the Conversion.
(d) EXCESS FINANCING COST. The Excess Financing Cost shall be allocated
to Price LP.
(e) GROSS INCOME ALLOCATION. During the Allocation Year, if any, that
includes a Determination Date, there shall be allocated to Price XX xxxxx income
of the Partnership in the amount not exceeding the aggregate amount of Profits
that would have been allocated to Price LP during the period starting on the
Exchange Notice Deadline and ending on the earliest of (i) the Determination
Date, (ii) the Exchange or (iii) the fourth anniversary of the Closing Date, if
no Exchange Notice Deadline occurred during such period.
SECTION 4.04. ALLOCATION OF LIABILITIES. Except to the extent that Code
Section 752 or Regulations thereunder are amended following the date hereof,
liability of the Partnership for the New LP Financing shall be allocated solely
for federal income tax purposes to the Company Contributed Assets and,
therefore, to Price LP. The Partnership shall file all Partnership tax returns
consistent with the foregoing allocation and shall not take a position
inconsistent therewith as long as the allocation is permitted under Code Section
752 and the Regulations thereunder. Notwithstanding the foregoing, if the
Managing General Partner determines in good faith that such allocation is not
permitted under Code Section 752 and the Regulations thereunder (as interpreted
from time to time by the U.S. courts, including the Tax Court, and by official
pronouncements of the Internal Revenue Service or the Treasury department, such
as revenue rulings, revenue procedures and notices), (i) the Partnership shall
inform the Partners about the conclusion of the Managing General Partner and
shall provide the Partners with an explanation underlying such conclusion, and
(ii) the Partnership shall no longer be required to file its tax returns in
accordance with such allocation. The Partners agree that allocating liability of
the Partnership for the New LP Financing to Price LP is permitted based on the
law and the facts in existence as of the date hereof.
SECTION 4.05. CURATIVE ALLOCATIONS. The amount of each item of
Partnership income, gain, loss or deduction allocated pursuant to the following
special allocations shall be determined by applying rules analogous to those set
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forth in clauses (i) through (iv) of the definitions of "Profits" and "Losses"
in Section 1.01 hereof.
(a) The "REGULATORY ALLOCATIONS" consist of allocations pursuant to
Sections 4.03(a) and (b) and 4.06 hereof. Notwithstanding any other provision of
the Agreement, other than the Regulatory Allocations, the Regulatory Allocations
shall be taken into account in allocating items of income, gain, loss and
deduction amounts to the Partners so that, to the extent possible, the net
amount of such allocations of such other items and the Regulatory Allocations to
each Partner shall be equal to the net amount that would have been allocated to
each such Partner if the Regulatory Allocations had not occurred.
(b) The Managing General Partner shall have reasonable discretion, with
respect to each Allocation Year, to (i) apply the provisions of Section 4.05(a)
in whatever order is likely to minimize the economic distortions that might
otherwise result from the Regulatory Allocations, and (ii) divide all
allocations pursuant to Section 4.05(a) hereof among the Partners in a manner
that is likely to minimize such economic distortions.
SECTION 4.06. LOSS LIMITATION. The Losses allocated pursuant to Section
4.02 and the items of loss or deduction allocated pursuant to Sections 4.03 and
4.05 shall not exceed the maximum amount of Losses and items of loss or
deduction that can be so allocated without causing any Limited Partner to have
an Adjusted Capital Account Deficit at the end of any Allocation Year. All
Losses and items of loss or deduction in excess of the limitation set forth in
this Section 4.06 shall be allocated to the Managing General Partner.
SECTION 4.07. TAX ALLOCATIONS. All items of income, gain, loss and
deduction with respect to any Partnership asset having a Gross Asset Value that
differs from the adjusted basis of such asset for U.S. federal income tax
purposes shall be allocated so as to take into account the difference between
the Gross Asset Value and the adjusted tax basis of such asset in accordance
with the principles of Code Section 704(c) using the traditional method
described in Treasury regulations Section 1.704-3(b).
SECTION 4.08. TAX MATTERS PARTNER, TAX ELECTIONS. The Managing General
Partner is hereby designated the "TAX MATTERS PARTNER," as defined in Code
Section 6231, for the Partnership. The Tax Matters Partner shall, with respect
to matters related to federal income taxes, (i) provide Price LP with prompt
notice of the commencement of the tax examinations or other tax proceedings and
with copies of all notices and other correspondence relating to the Partnership
in respect of a period during which Price LP was a Partner received from the
Internal Revenue Service, (ii) permit Price LP to be present at
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any meetings, conferences, hearings or other tax proceedings with or before the
Internal Revenue Service or a court on matters relating to the Partnership in
respect of a period during which Price LP was a Partner, and (iii) not settle
any federal income tax issue that would increase the tax liability of Price LP
by a material amount without obtaining consent of Price LP which consent shall
not be unreasonably withheld or delayed, but only if the items of such
settlement that would so increase the tax liability of Price LP would produce a
net tax benefit (based on a present value calculation using a discount rate
equal to the then borrowing rate of Cellco) to the Managing General Partner or
Cellco LP. All tax elections with respect to the Partnership shall be made by
the Tax Matters Partner.
SECTION 4.09. CLASSIFICATION AS PARTNERSHIP. It is the Partners' intent
that the Partnership be treated as a partnership for federal income tax
purposes. No election shall be made by the Managing General Partner or any
Partner to have the Partnership (i) be excluded from the application of the
provisions of Subchapter K of the Code or (ii) be treated as a corporation for
federal income tax purposes.
ARTICLE 5
DISTRIBUTIONS
SECTION 5.01. PRICE LP DISTRIBUTION. (a) The Partnership shall
distribute to Price LP on a fiscal quarterly basis the Quarterly Distribution
Amount with respect to each fiscal quarter ending after the second anniversary
of the Closing Date.
(a) The Quarterly Distribution Amount that is required to be
distributed to Price LP pursuant to Section 5.01(a) shall be made (i) with
respect to the first, second or third quarter of any fiscal year, within 45 days
after the end of such quarter, and (ii) with respect to the fourth quarter of
any fiscal year, within 90 days after the end of such quarter.
(b) If the Quarterly Distribution Amount for the fourth quarter of any
fiscal year is a negative number (the amount of such number being an "EXCESS
DISTRIBUTION AMOUNT"), the Managing General Partner shall promptly notify Price
LP of the Excess Distribution Amount and, within 10 days of receipt of such
notice, Price LP shall contribute to the Partnership, as an Additional Capital
Contribution, cash in the amount of the Excess Distribution Amount.
SECTION 5.02. AMOUNTS WITHHELD. All amounts withheld pursuant to the
Code or any provision of any state, local or foreign tax law with respect to any
payment, distribution or allocation to the Partnership or the Partners shall be
16
treated as amounts paid or distributed, as the case may be, to the Partners with
respect to which such amount was withheld pursuant to this Section 5.02 for all
purposes under this Agreement. The Managing General Partner is authorized to
withhold from payments and distributions to the Partners and to withhold with
respect to allocations to the Partners and to pay over to any United States
federal, state, local or foreign government any amounts required to be so
withheld pursuant to the Code or any provisions of any other United States
federal, state, local or foreign law, and shall allocate any such amounts to the
Partners with respect to which such amounts were withheld.
SECTION 5.03. OTHER DISTRIBUTIONS. Subject to Section 6.04, the
Partnership shall make distributions to the Partners as directed by the Managing
General Partner in its sole discretion.
ARTICLE 6
MANAGEMENT
SECTION 6.01. AUTHORITY OF THE MANAGING GENERAL PARTNER. Except to the
extent otherwise provided herein, the Managing General Partner shall have the
sole and exclusive right to manage the Partnership Business and shall have all
of the rights and powers which may be possessed by general partners under the
Act.
SECTION 6.02. RIGHT TO RELY ON MANAGING GENERAL PARTNER. Any Person
dealing with the Partnership may rely (without duty of further inquiry) upon a
certificate signed by the Managing General Partner as to:
(a) the identity of the Managing General Partner or any Limited
Partner;
(b) the existence or nonexistence of any fact or facts which constitute
a condition precedent to act by the Managing General Partner or which are in any
other manner germane to the affairs of the Partnership;
(c) the Persons who are authorized to execute and deliver any
instrument or document of the Partnership; or
(d) any act or failure to act by the Partnership or any other matter
whatsoever involving the Partnership or any Partner.
SECTION 6.03. MANAGEMENT COMMITTEE. The Partnership shall have a
management committee (the "MANAGEMENT COMMITTEE") which shall consist of three
members, two of which shall be appointed by the Managing General Partner
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and one of which shall be appointed by Price LP. The initial members of the
Management Committee are set forth in Schedule 6.03 hereto. Each of the Managing
General Partner and Price LP may replace any of its members of the Management
Committee at any time upon written notice to the other.
SECTION 6.04. RESTRICTIONS ON AUTHORITY OF MANAGING GENERAL PARTNER.
(a) Without the prior approval of a majority of the members of the Management
Committee, the Managing General Partner shall not have the authority to, and the
Managing General Partner covenants and agrees that it shall not cause the
Partnership to, take any of the following actions:
(i) approve the annual operating budget for the Partnership
and any amendments or revisions thereto;
(ii) other than in the ordinary course of business, acquire an
amount of assets in respect of which the consideration payable by the
Partnership is more than $50 million;
(iii) make any distribution prior to 6 months after the
Exchange Notice Deadline, other than distributions of the Quarterly
Distribution Amount and distributions pursuant to Section 12.02;
(iv) appoint or change the Partnership's independent auditor;
(v) approve the audited annual financial statements of the
Partnership; or
(vi) select the technology to be used by the Partnership in
conducting the Partnership Business, or change such technology.
(b) Without the approval of a majority of the Management Committee,
including the member appointed by Price LP, the Managing General Partner shall
not have the authority to, and the Managing General Partner covenants and agrees
that it shall not, cause the Partnership to take any of the following actions:
(i) subject to Sections 6.04(c) and (d), (A) sell, exchange or
otherwise dispose of any assets other than in the ordinary course of
business or as may be necessary or appropriate in connection with the
Conversion or acquire any other business or incur any Indebtedness or
(B) consolidate or merge with or into any other Person, or engage in
any similar transaction, unless the Profits allocated to Price LP, if
any, for the prior four calendar quarters, determined on a pro forma
basis after giving effect to such transaction and any related
transactions and, if the Closing
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Date occurred at any time during such calendar quarters, as if the
Closing Date had occurred immediately prior to the first of such fiscal
quarters, that would be allocated to Price LP under this Agreement
would be at least equal to the lesser of (A) the actual Profits
allocated to Price LP for such period (determined as if the Closing
Date had occurred immediately prior to the first of such fiscal
quarters) if the Closing Date actually occurred at any time during such
fiscal quarters or (B) $50 million if such sale, exchange, disposition,
incurrence of Indebtedness, merger, consolidation or similar
transaction (the "SPECIFIED TRANSACTIONS") is consummated on or after
the Closing Date but before the first anniversary of the Closing Date,
$52 million if the Specified Transaction is consummated on or after the
first anniversary of the Closing Date and before the second anniversary
of the Closing Date, $53 million if the Specified Transaction is
consummated on or after the second anniversary of the Closing Date and
before the third anniversary of the Closing Date, $54 million if the
Specified Transaction is consummated on or after the third anniversary
of the Closing Date and before the fourth anniversary of the Closing
Date and $0 if the Specified Transaction is consummated thereafter (as
applicable, the "APPLICABLE PROFIT ALLOCATION") and, in the case of any
such consolidation, merger or similar transaction, unless the
consolidation, merger or transaction would not adversely affect Price
LP's rights under this Agreement or in respect of the Partnership;
(ii) engage in any business other than the Partnership
Business and any related business;
(iii) incur any Indebtedness to the extent the Partnership's
ratio of long-term debt to net worth (as defined by GAAP) would exceed
three times as a result of incurring such indebtedness;
(iv) sell, exchange or otherwise dispose of, or distribute all
or substantially all of the Company Contributed Assets (including any
renewals and replacements thereof);
(v) sell, exchange or otherwise dispose of any Company
Contributed Asset (including any renewals and replacements thereof) to
the Managing General Partner or any of its Affiliates;
(vi) sell, exchange or otherwise dispose of any of the
cellular licenses included in the Company Contributed Assets (including
any renewals and replacements thereof) prior to the second anniversary
of the Closing Date;
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(vii) make any distribution of any of the cellular licenses
included in the Company Contributed Assets (including any renewals and
replacements thereof) prior to the seventh anniversary of the Closing
Date;
(viii) make any distribution to either the Managing General
Partner or Cellco LP or repurchase from the Managing General Partner or
Cellco LP any Interest if after giving effect thereto the aggregate
amount of their Capital Accounts would be less than the sum of the
Original Capital Contributions of the Cellco LP and the Managing
General Partner;
(ix) except as permitted by Section 6.08, engage in any
transaction with the Managing General Partner or any of its Affiliates,
unless such transaction is either on an arm's length basis or, in the
aggregate, no less favorable to the Partnership than substantially
similar transactions generally made between other Persons which are not
Affiliates of the Managing General Partner and its Affiliates and the
Managing General Partner and its Affiliates;
(x) amend the Certificate if such amendment would reasonably
be expected to adversely affect Price LP's rights under this Agreement
or in respect of the Partnership,
(xi) issue additional interests in the Partnership, other than
to any Partner or to an Affiliate of any Partner;
(xii) request any additional Capital Contributions by Price LP
other than as contemplated by Section 5.01(c);
(xiii) distribute to the Managing General Partner, the Cellco
LP or any of their Affiliates all or any portion of the Cellco
Contributed Assets or the Cellco Note;
(xiv) commence any voluntary case or other proceeding seeking
dissolution, liquidation or reorganization or other relief with respect
the Partnership or its debts under any bankruptcy law now or hereafter
in effect; or
(xv) take any action contrary to the preservation and
maintenance of the Partnership's existence, rights, franchises and
privileges as a limited partnership under the laws of the State of
Delaware.
(c) Notwithstanding Section 6.04(b)(i), the Managing General Partner
shall have the authority to, and to cause the Partnership to, take any of the
actions
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specified in Section 6.04(b)(i) if the majority of the Management Committee,
excluding the member appointed by Price LP, approves any such action (each such
action not approved by the member appointed by Price LP, a "NONACQUIESCED
TRANSACTION") PROVIDED that, in such case, all items of income, gain, loss and
expense resulting from such Nonacquiesced Transaction shall be considered as
"NONACQUIESCED TRANSACTION ITEMS" for the purposes of this Agreement and shall
be allocated in the manner set forth in Section 4.03(c); and PROVIDED FURTHER
that in the case of any consolidation, merger or similar transaction, the
proposed transaction would not adversely effect Price LP's rights under this
Agreement or with respect to the Partnership.
(d) Prior to the consummation of any acquisition, sale, exchange,
disposition, consolidation or merger or the incurrence of any Indebtedness
pursuant to Section 6.04(b)(i), the Managing General Partner shall deliver to
Price LP reasonably detailed documentation which demonstrates that the
conditions set forth in Section 6.04(b)(i) have been satisfied.
SECTION 6.05. DAY-TO-DAY MANAGEMENT. Day-to-day management of the
Partnership will be carried out by such officers of the Partnership as the
Managing General Partner shall determine.
SECTION 6.06. DUTIES AND OBLIGATIONS; EXCULPATION. (a) The Managing
General Partner shall take all actions which may be necessary or appropriate (i)
for the continuation of the Partnership's valid existence as a limited
partnership under the laws of the State of Delaware and (ii) for the
accomplishment of the Partnership's purposes, including the acquisition and
preservation of the Partnership's property in accordance with the provisions of
the Transaction Agreement, this Agreement and applicable laws and regulations.
(b) The Limited Partners agree that the duties and liabilities of the
Managing General Partner shall be strictly limited to the duties and liabilities
expressly set forth in this Agreement and required by applicable law. Without
limiting the generality of foregoing, except as set forth in this Agreement or
as required by applicable law, none of the Managing General Partner or any of
its officers, directors, members, employees, Affiliates, stockholders, partners,
agents or representatives, nor any member of the Management Committee (each a
"RELEVANT PARTY") shall, to the fullest extent permitted by applicable law, be
liable to the Partnership or to the Limited Partners for any losses, claims,
damages or liabilities arising out of, related to or in connection with any act
or omission performed or omitted by it in connection with this Agreement
(including, without limitation, pursuant to Section 6.08(c)) or the
Partnership's business or affairs (including, without limitation, any act or
omission by any Relevant Party). Notwithstanding the above, this Section 6.06(b)
shall only be enforced to the
21
maximum extent permitted by law and no Relevant Party shall be exculpated from
any liability for its fraud, bad faith or willful misconduct.
(c) Notwithstanding anything to the contrary in this Agreement, no
Affiliate of the Managing General Partner (other than the Partnership) shall
have any liability to any Limited Partner with respect to any obligations of the
Partnership or the Managing General Partner under this Agreement. In addition,
except as otherwise provided in this Agreement or the Transaction Agreement, no
Affiliate of the Managing General Partner (including, without limitation,
Cellco) shall under any circumstances have any obligation to contribute any
assets to the Partnership. Notwithstanding the above, this Section 6.06(c) shall
only be enforced to the maximum extent permitted by law and no Affiliate of the
Managing General Partner shall be exculpated from any liability for its fraud,
bad faith or willful misconduct.
SECTION 6.07. INDEMNIFICATION OF MANAGING GENERAL PARTNER. (a) The
Partnership, its receiver, or its trustee shall indemnify, save harmless, and
pay all judgments and claims against the Managing General Partner or a member of
the Management Committee relating to any liability or damage incurred by reason
of any act performed or omitted to be performed by the Managing General Partner
or any officer or director of the Managing General Partner or a member of the
Management Committee in connection with the business of the Partnership,
including attorneys' fees incurred by the Managing General Partner in connection
with the defense of any action based on any such act or omission, which
attorneys' fees may be paid as incurred, including all such liabilities under
federal and state securities laws as permitted by law.
(b) In the event of any action by any Limited Partner against the
Managing General Partner or a member of the Management Committee, including a
Partnership derivative suit, the Partnership shall indemnify, save harmless, and
pay all expenses of the Managing General Partner or such member of the
Management Committee, including attorneys' fees, incurred in the defense of such
action.
(c) Notwithstanding the provisions of Sections 6.07(a) and 6.07(b)
above, such Sections shall only be enforced to the maximum extent permitted by
law and the Managing General Partner and each member of the Management Committee
shall not be indemnified from any liability for its fraud, bad faith, or willful
misconduct.
SECTION 6.08. COMPENSATION AND REIMBURSEMENT. (a) Except as otherwise
provided in this Section 6.08, no Partner or Affiliate of any Partner shall
receive any salary, fee or draw for service rendered to or on behalf of the
22
Partnership, nor shall any Partner or Affiliate of any Partner be reimbursed for
any expenses incurred by such Partner or Affiliate on behalf of the Partnership.
(b) The Managing General Partner may charge the Partnership, and shall
be reimbursed, for any out-of-pocket expenses reasonably incurred by it on
behalf of the Partnership in connection with the Partnership Business.
(c) The Managing General Partner and its Affiliates may provide to the
Partnership such services as the Managing General Partner deems appropriate
(including, without limitation, accounting, billing, legal, administrative,
financial, cash management and network construction, maintenance and monitoring
services) and the Managing General Partner may charge the Partnership for such
services; PROVIDED that (i) the scope of services provided by the Managing
General Partner and its Affiliates shall be consistent with the scope of
services customarily provided by the Managing General Partner or any such
Affiliate to other partnerships managed by the Managing General Partner or any
such Affiliate that (A) have at least one partner which is not an Affiliate of
the Managing General Partner or such Affiliate managing the partnership and (B)
are engaged in a business substantially similar to the Partnership's business,
and (ii) determination by the Managing General Partner of the amount to be
charged to the Partnership shall be made in a manner that is, in the aggregate,
as favorable to the Partnership as the manner in which charges for services are
generally made by the Managing General Partner or such Affiliates to such other
partnerships.
SECTION 6.09. OPERATING RESTRICTIONS. (a) All property of the
Partnership 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 Affiliates, maintained in such financial institutions as the Managing
General Partner shall determine or shall be invested in short-term liquid
securities or other cash equivalent assets or shall be left in escrow, and
withdrawals shall be made only in the regular course of Partnership business and
on such signature or signatures as the Managing General Partner may determine
from time to time.
(b) The signature of the Managing General Partner shall be necessary
and, subject to Section 6.04, sufficient to convey title to any property owned
by the Partnership or to execute any promissory notes, trust deeds, mortgages,
or other instrument of hypothecation, and all of the Partners agree that a copy
of this Agreement may be shown to the appropriate parties in order to confirm
the same, and all of the Partners further agree that the signature of the
Managing General Partner shall be sufficient to execute any "STATEMENT OF
PARTNERSHIP" or other documents necessary to effectuate this or any other
provision of this Agreement. All of the Partners do hereby appoint the Managing
General Partner as their attorney-in-fact for the execution of any or all of the
documents described herein.
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(c) The Partnership shall not until the earlier of two days after the
Exchange Closing Date (as defined in the Exchange Agreement) and five years
after the Closing Date, (i) prepay the New LP Financing, (ii) effect a
defeasance with respect to the New LP Financing (other than a defeasance that
does not affect the treatment of the liability under Code Section 752), or (iii)
intentionally take any action or fail to take any action with the objective of
causing an acceleration of New LP's obligation to repay the New LP Financing.
SECTION 6.10. RIGHTS OR POWERS. No Limited Partner shall 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.
SECTION 6.11. VOTING RIGHTS. Except as expressly provided herein or
required by law, the Limited Partners shall have no right to vote on any
matters.
ARTICLE 7
BOOKS AND RECORDS
SECTION 7.01. BOOKS AND RECORDS. The Partnership shall keep adequate
books and records at its principal place of business, setting forth a true and
accurate account of all business transactions arising out of and in connection
with the conduct of the Partnership. Any Partner or its designated
representative shall have the right, at any reasonable time, to have access to
and inspect and copy the contents of such books or records, PROVIDED that any
such inspection shall be conducted in such manner as not to interfere
unreasonably with the conduct of the business of the Partnership. Any Limited
Partner, or its designee, shall also have access to such additional financial
information, documents, books and records, as are reasonably necessary to allow
such Limited Partner or its designee to comply with reporting requirements
pursuant to applicable law or regulations or the requirements of any applicable
stock exchange.
SECTION 7.02. PERIODIC REPORTS; FINANCIAL STATEMENTS. (a) Within 60
days after the end of each Partnership fiscal year, the Managing General Partner
shall cause to be prepared, and Price LP shall be furnished with, the following
audited financial statements, accompanied by the report thereon of a nationally
recognized accounting firm selected by the Managing General Partner:
(i) a balance sheet of the Partnership as of the end of such
fiscal year;
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(ii) a statement of profit and loss for the Partnership for
such fiscal year;
(iii) a statement of each Partner's capital account and
changes therein for such fiscal year;
(iv) a statement of Partnership cash flow for such fiscal
year; and
(v) a statement of distributable cash flow.
(b) Within 30 days after the close of each of the first three fiscal
quarters of each Partnership fiscal year, the Managing General Partner shall
cause to be prepared, and Price LP shall be furnished with, the following
unaudited financial statements:
(i) a balance sheet of the Partnership as of the end of such
fiscal quarter;
(ii) a statement of profit and loss for the Partnership for
such fiscal quarter;
(iii) a statement of Partnership cash flow for such fiscal
quarter; and
(iv) a statement of each Partner's capital account and changes
therein for such fiscal quarter.
(c) Within 30 days after the end of each calendar month, the Managing
General Partner shall cause to be prepared, and Price LP shall be furnished
with, the following unaudited financial statements:
(i) a balance sheet of the Partnership as of the end of such
calendar month;
(ii) a statement of profit and loss for the Partnership for
such calendar month;
(iii) a statement of Partnership cash flow for such calendar
month; and
(iv) a statement of each Partner's capital account and changes
therein for such calendar month.
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(d) Within 31 days after the end of each of the Partnership's fiscal
years, the Managing General Partner shall cause to be prepared, and Price LP
shall be furnished with, the following projected financial statements for the
following fiscal year:
(i) a balance sheet of the Partnership as of the end of such
following fiscal year;
(ii) a statement of profit and loss for the Partnership for
such following fiscal year;
(iii) a statement of Partnership cash flow for such following
fiscal year; and
(iv) a statement of each Partner's capital account for such
following fiscal year.
SECTION 7.03. OPERATIONAL INFORMATION. Price LP shall, from time to
time, be furnished with operating statistics with respect to the business of the
Partnership prepared in the ordinary course by the Managing General Partner,
including, without limitation, analysis of customer additions, churn rates and
cost per gross addition.
SECTION 7.04. TAX INFORMATION. Necessary tax information shall be
delivered to each Partner after the end of each calendar year of the
Partnership. Such information shall be furnished in final form (subject to
adjustments as permitted by law) by April 30 following such calendar year, and
preliminary information shall be provided before such date from time to time as
required to permit the Partners to file estimated payment returns and annual
return extension requests. Notwithstanding anything in this Agreement to the
contrary, the Tax Matters Partner shall file tax returns prepared in accordance
with the Code and the Regulations as in effect at the time of such filing. All
federal income tax returns (Form 1065) of the Partnership shall be furnished to
Price LP at least 15 days before the due date (after taking into account all
applicable extensions and waivers) for filing such returns.
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ARTICLE 8
CERTAIN COVENANTS
SECTION 8.01. CONFIDENTIALITY. Except as required by law or stock
exchange rule, each Partner and each of its Affiliates shall keep confidential
and not reveal, and shall cause its Subsidiaries and the officers, directors,
employees, agents and representatives of it and its Subsidiaries, to keep
confidential and not to reveal, to any other Person (other than to another
Partner or its officers and employees, to any of its Affiliates or any officer,
director, employee, agent or representative of such Partner or its Affiliates
(each of whom shall be subject to the confidentiality obligations set forth
herein)), from the date hereof through the third anniversary of the first date
on which such Partner is no longer a Partner of the Partnership, any
confidential documents, trade secrets, secret processes or methods and other
confidential information concerning, relating to or in connection with the
Partnership or the business of the Partnership that come to the knowledge of
such Partner or its Affiliates or their respective representatives or agents by
reason of the relationship of such Partner or Affiliate with the Partnership
("INFORMATION"), except for such Information that (a) is generally available to
the public (other than as a result of a disclosure by such Partner or its
Affiliates), (b) is available to such Person on a non-confidential basis from a
source that is not prohibited from disclosing such Information to such Person or
(c) after notice and (to the extent reasonably practicable) an opportunity to
contest, such Person is required to disclose under any applicable law or under
subpoena or other legal process; PROVIDED that nothing in this Section 8.01
shall preclude any Partner or its Affiliates from using any Information in any
manner reasonably connected to its investment in the Partnership or as
contemplated by this Agreement, the Transaction Agreement or any other
agreements entered into in connection therewith.
SECTION 8.02. PRESS ANNOUNCEMENTS. Except as required by law or stock
exchange rule, or if consented to by the Managing General Partner (such consent
not to be unreasonably withheld), no Partner (other than the Managing General
Partner) will make any public announcement regarding the Partnership.
ARTICLE 9
AMENDMENTS; MEETINGS
SECTION 9.01. AMENDMENTS. No amendment to this Agreement shall be
adopted or be effective as an amendment hereto unless it is in writing and is
executed by all of the Partners.
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SECTION 9.02. MEETINGS OF THE PARTNERS. (a) Meetings of the Partners
may be called by the Managing General Partner and shall be called upon the
written request of any Limited Partner. The notice of any such meeting shall
state the nature of the business to be transacted and shall be given to all
Partners not less than fifteen (15) days nor more than thirty (30) days prior to
the date of such meeting. Partners may vote in person or by proxy at such
meeting. Whenever the vote or consent of Partners is permitted or required under
this Agreement, such vote or consent may be given at a meeting of Partners or
may be given in accordance with the procedure prescribed in Section 9.02(c)
hereof. Except as otherwise expressly provided in this Agreement, the vote of
the Managing General Partner shall control.
(b) For the purpose of determining the Partners entitled to vote on, or
to vote at, any meeting of the Partners or any adjournment thereof, the Managing
General Partner may fix, in advance, a date as the record date for any such
determination. Such date shall not be more than 30 days nor less than 10 days
before any such meeting.
(c) Each Limited Partner and the MGP may authorize any Person or
Persons to act for it by proxy on all matters in which a Limited Partner is
entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Limited Partner or
its attorney-in-fact. No proxy shall be valid after the expiration of 12 months
from the date thereof unless otherwise provided in the proxy. Every proxy shall
be revocable at the pleasure of the Limited Partner or his attorney-in-fact
executing it.
(d) Each meeting of Partners shall be conducted by the Managing General
Partner or such other Person as the Managing General Partner may appoint
pursuant to such rules for the conduct of the meeting as the Managing General
Partner or such other Person deems appropriate.
ARTICLE 10
TRANSFERS OF INTERESTS, ETC
SECTION 10.01. RESTRICTION OF TRANSFERS OF INTERESTS. Except as
otherwise permitted by this Agreement, no Partner shall Transfer all or any
portion of its Interest.
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SECTION 10.02. PERMITTED TRANSFERS. (a) Subject to the conditions and
restrictions set forth in Section 10.03, the Managing General Partner may at any
time Transfer all but not less than all of its Interest to an Affiliate of
Cellco.
(b) Cellco LP may at any time Transfer all or any portion of its
Interest to an Affiliate of Cellco.
(c) Price LP or a Permitted Transferee thereof may at any time, with
the prior written consent of the Managing General Partner (such consent not to
be unreasonably withheld), grant a pledge of all but not less than all of its
Interest to any bank or other financial institution of recognized standing in
connection with any bona fide financing transaction.
(d) If Price LP or a Permitted Transferee thereof pledges its Interest
pursuant to Section 10.02(c), such Interest may, upon default under such
financing transaction, be transferred to the pledgee or another third party as a
result of a foreclosure sale under the Uniform Commercial Code or the exercise
of other remedies in connection with such pledge.
(e) Price LP and any other Price Corporation may at any time Transfer
all but not less than all of its Interest to another Price Corporation in
connection with a liquidation or merger of, with or into such other Price
Corporation.
(f) Price LP or a Permitted Transferee thereof may Transfer all but not
less than all of its Interest pursuant to the Exchange Agreement.
SECTION 10.03. CONDITIONS TO PERMITTED TRANSFERS. A Transfer of
Interests shall not be treated as a Permitted Transfer under Section 10.02(a),
(b), (c), (d) or (e) unless and until the following conditions are satisfied:
(a) The transferor and transferee shall execute and deliver to the
Partnership such documents and instruments of conveyance as may be necessary or
appropriate in the reasonable opinion of counsel to the Partnership to effect
such Transfer and to confirm the agreement of the transferee to be bound by the
provisions of this Agreement, the Exchange Agreement and the Lock-up Agreements
(as defined in the Exchange Agreement). 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.
(b) Unless the Managing General Partner has waived the requirements of
this Section 10.03(b) with respect to a Transfer by Price LP, the transferor
shall furnish to the Partnership an opinion of counsel, which counsel and
opinion shall be reasonably satisfactory to the Managing General Partner that
the Transfer will
29
not cause the Partnership to terminate for federal income tax purposes;
PROVIDED, however, that Price LP shall not be required to furnish such opinion
if the Partnership termination results from (i) an Exchange, (ii) a Permitted
Transfer (but only if such Permitted Transfer and all other Permitted Transfers
pursuant to Section 10.02(e) occur in the same Allocation Year), or (iii) a
Transfer to a pledgee or other third party pursuant to Section 10.02(d).
(c) The transferor and transferee shall furnish the Partnership with
the transferee's taxpayer identification number, sufficient information to
determine the transferee's initial tax basis in the Interests transferred, and
any other information reasonably necessary to permit the Partnership to file all
required federal and state tax returns and other legally required 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.
(d) The transferor shall provide an opinion of counsel, which opinion
and counsel shall be reasonably satisfactory to the Partnership, to the effect
that such Transfer is exempt from all applicable registration requirements and
that such Transfer will not violate any applicable laws regulating the Transfer
of securities.
SECTION 10.04. PROHIBITED TRANSFERS. (a) Any purported Transfer of
Interests that is not a Permitted Transfer (and which the Partnership, in its
sole discretion, has not otherwise elected to recognize) shall be null and void
and of no effect whatever; PROVIDED that, if the Partnership is required to
recognize a Transfer that is not a Permitted Transfer (and which the
Partnership, in its sole discretion, has not otherwise elected to recognize),
the Interest Transferred shall be strictly limited to the transferor's rights to
allocations and distributions as provided by this Agreement with respect to the
Transferred Interests, which allocations and distributions may be applied
(without limiting any other legal or equitable rights of the Partnership) to
satisfy any debts, obligations, liabilities or damages that the transferor or
transferee of such Interests may have to the Partnership.
(b) In the case of a Transfer or attempted Transfer of an Interest that
is not a Permitted Transfer, the parties engaging or attempting to engage in
such Transfer shall be liable to indemnify and hold harmless the Partnership and
the other Partners from all reasonable cost, liability, and damage that any of
such indemnified Persons may incur (including, without limitation, incremental
tax liability and lawyers fees and expenses) as a result of such Transfer or
attempted Transfer and efforts to enforce the indemnity granted hereby.
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SECTION 10.05. RIGHTS OF UNADMITTED ASSIGNEES. A transferee of one or
more Interests who is not admitted as a substituted Partner pursuant to Section
10.06 hereof shall be entitled only to allocations and distributions with
respect to such Interests in accordance with this Agreement, but shall have no
right to any information or accounting of the affairs of the Partnership, shall
not be entitled to inspect the books or records of the Partnership, and shall
not have any of the rights of the Managing General Partner or a Limited Partner
under the Act or this Agreement.
SECTION 10.06. ADMISSION OF TRANSFEREES AS PARTNERS. Subject to the
other provisions of this Article 10, a transferee of Interests may be admitted
to the Partnership as a substituted Partner only upon satisfaction of the
following conditions:
(a) (i) if such transferee (other than a Permitted Transferee) acquired
its Interest from a Limited Partner, the Managing General Partner consents to
such admission, which consent may be withheld in its sole discretion, or (ii)
the Interests with respect to which the transferee is being admitted were
acquired by means of a Permitted Transfer;
(b) the transferee becomes a party to this Agreement as a Partner and
executes such documents and instruments as the Managing General Partner may
reasonably request (including, without limitation, the Pledge Agreement (if the
Transfer to such transferee occurs prior to the Pledge Termination Date (as
defined in the Pledge Agreement)), counterparts or amendments to this Agreement
and amendments to the Certificate) as may be necessary or reasonably appropriate
to confirm such transferee as a Partner in the Partnership and such transferee's
agreement to be bound by the terms and conditions hereof;
(c) if the transferee is a corporation, the transferee provides the
Partnership with evidence reasonably satisfactory to counsel for the Partnership
that such transferee has the power and authority to execute and deliver this
Agreement and the other documents and instruments referred to in Section
10.06(b), and to perform its obligations hereunder and thereunder and the
execution, delivery and performance of this Agreement and such other documents
and instruments have been duly authorized by all necessary action; and
(d) the transferee executes and consents to any and all assignments or
Transfers previously executed by the transferor.
SECTION 10.07. CURE PERIOD. In the case of (i) a Transfer of Interests
that is not a Permitted Transfer or (ii) a Permitted Transfer where the
transferee is not admitted as a substituted Partner pursuant to Section 10.06
(each such Transfer in
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(i) and (ii), a "SUBJECT TRANSFER"), the transferor and transferee in such
Subject Transfer shall, within 30 days after the earlier to occur of (x) such
transferor or transferee becoming aware (A) of such Transfer and (B) that such
transaction is a Subject Transfer and (y) the Manager General Partner notifying
the transferor of such Subject Transfer, Transfer the Interest so Transferred
back to the transferor (a "CURE TRANSFER") without the Subject Transfer being
considered a Transfer for purposes of Section 10.04(a) or Section 10.05;
PROVIDED that such transferor shall be liable to indemnify and hold harmless the
Partnership and the other Partners from all reasonable cost, liability and
damage that any of such indemnified Persons may incur (including, without
limitation, incremental tax liability and lawyers fees and expenses) as a result
of such Subject Transfer or Cure Transfer and efforts to enforce the indemnity
granted hereby.
SECTION 10.08. DISTRIBUTIONS AND ALLOCATIONS WITH RESPECT TO
TRANSFERRED INTERESTS. If any Interests are Transferred during any accounting
period in compliance with the provisions of this Article 10, Profit, Loss, each
item thereof, and all other items attributable to the Transferred Interest for
such period shall be divided and allocated between the transferor and the
transferee by taking into account their varying interests during the period in
accordance with Code Section 706(d), using any conventions permitted by law and
elected by the Managing General Partner and agreed to by the transferor and
transferee. All distributions on or before the date of such Transfer shall be
made to the transferor, and all distributions thereafter 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 does not receive a notice stating the date such Interest was
Transferred and such other information as the Managing General Partner may
reasonably require within 30 days after the end of the accounting period during
which the Transfer occurs, then all of such items shall be allocated, and all
distributions shall be made, to the Person who, according to the books and
records of the Partnership, on the last day of the accounting period during
which the Transfer occurs, was the owner of the interest and provided further
that if a notice of Transfer of the Interest of Price LP to any Price
Corporation is given in the calendar month in which the Exchange occurs, the
Partnership will recognize that Transfer as of the date of the notice. Neither
the Partnership nor the Managing General Partner shall incur any liability for
making allocations and distributions in accordance with the provisions of this
Section 10.08, whether or not the Managing General Partner or the Partnership
has knowledge of any Transfer of ownership of any interest.
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ARTICLE 11
MANAGING GENERAL PARTNER
SECTION 11.01. BUSINESS ACTIVITIES. (a) The Managing General Partner
represents and warrants to the Limited Partners, as of the date hereof, that it
was formed solely for the purpose of entering into this Agreement and engaging
in the transactions and other business activities contemplated hereby and
thereby, and it has not engaged in any business activities or incurred any
liabilities other than in connection with the transactions and other business
activities contemplated by this Agreement.
(b) The Managing General Partner hereby covenants and agrees not to
engage in any business activities or incur any liabilities other than in
connection with the transactions and other activities contemplated hereby.
SECTION 11.02. COVENANT NOT TO WITHDRAW, TRANSFER, OR DISSOLVE. Except
as otherwise permitted by this Agreement, the Managing General Partner hereby
covenants and agrees not to (a) take any action to file a certificate of
dissolution or its equivalent with respect to itself, (b) take any action that
would cause a voluntary bankruptcy of the Managing General Partner or a consent
to its involuntary bankruptcy, (c) withdraw or attempt to withdraw from the
Partnership, (d) petition for judicial dissolution of the Partnership under
17-802 of the Act, (e) Transfer all or any portion of its Interest in the
Partnership as a general partner, except in accordance with this Agreement, or
(f) exercise any power under the Act to dissolve the Partnership. Further, the
Managing General Partner hereby covenants and agrees to continue to carry out
the duties of a general partner hereunder until the Partnership is dissolved and
liquidated pursuant to Article 12 hereof.
ARTICLE 12
DISSOLUTION AND WINDING UP
SECTION 12.01. LIQUIDATING EVENTS. The Partnership shall dissolve and
commence winding up and liquidating upon the first to occur of any of the
following ("LIQUIDATING EVENTS"):
(a) the unanimous vote of the Partners to dissolve, wind up and
liquidate the Partnership;
(b) the involuntary bankruptcy of the Managing General Partner;
33
(c) the happening of any other event that makes it unlawful or
impossible to carry on the business of the Partnership; or
(d) the withdrawal or removal of the Managing General Partner, the
assignment by the Managing General Partner of its entire Interest in the
Partnership (other than pursuant to Article 10) or any other event that causes
the Managing 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 12.01; PROVIDED FURTHER that
the Managing General Partner shall not intentionally assign its entire Interest
(other than pursuant to Article 10) or withdraw from the Partnership except as
required by applicable law or as contemplated by this Agreement.
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 12.01(b) or (d), the Partnership shall not be dissolved or
required to be wound up if within 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 a new general partner.
If it is determined by a court of competent jurisdiction that the Partnership
has dissolved prior to the occurrence of a Liquidating Event, or if upon the
occurrence of an event specified in Section 12.01(b) or (d) hereof, the Partners
fail to agree to continue the business of the Partnership as provided in this
Section 12.01, then (x) within an additional 80 days, all of the Partners may
elect to reconstitute the Partnership and continue its business on the same
terms and conditions set forth in this Agreement by forming a new limited
partnership on terms identical to those set forth in this Agreement and having
as a general partner a Person elected by all the Limited Partners or (y) if the
Partners do not so elect within such 80 day period, within an additional 10 days
after such 80 day period, Price LP may elect to reconstitute the Partnership and
continue its business by forming a new limited partnership (without Cellco LP as
a partner) and having as a general partner a Person elected by Price LP. Except
with respect to Cellco LP, if Price LP elects, pursuant to clause (y) of the
immediately preceding sentence, to reconstitute the Partnership without Cellco
LP as a partner, on any such election by Price LP, (A) all Partners, except
Cellco LP, shall be bound thereby and (B) all Partners shall be deemed to have
consented thereto. Unless such an election is made within 180 days after the
event causing dissolution, the Partnership shall wind up its affairs in
accordance with Section 12.02 hereof. If such an election is made within 180
days after the event causing dissolution, then:
(i) the reconstituted limited partnership shall continue until
the occurrence of a Liquidating Event as provided in this Section
12.01;
34
(ii) if the successor general partner is not the former
general partner, then the Interest of the former general partner shall
be treated thenceforth as the Interest of an unadmitted assignee of a
Partner; and
(iii) all necessary steps shall be taken to cancel this
Agreement and the Certificate and to enter into a new partnership
agreement substantially identical to this Agreement (except that Cellco
LP will not be obligated to enter into any new partnership agreement if
the Partnership shall have been reconstituted pursuant to an election
under clause (y) above) and a certificate of limited partnership;
PROVIDED that the right of all the Limited Partners to select a successor
general partner and to reconstitute and continue the business of the Partnership
shall not exist and may not be exercised unless the Partnership has received an
opinion of counsel that the exercise of the right would not result in the loss
of limited liability of any Limited Partner and neither the Partnership nor the
reconstituted partnership would cease to be treated as a partnership for federal
income tax purposes upon the exercise of such right to continue.
SECTION 12.02. WINDING UP. Upon the occurrence of a Liquidating Event,
unless the Partnership is continued or reconstituted pursuant to Section 12.01,
the Partnership shall continue solely for the purposes of winding up its affairs
in an orderly manner, liquidating its assets, and satisfying the claims of its
creditors and Partners and no Partner shall take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the
Partnership's business and affairs, PROVIDED that, all covenants contained in
this Agreement and all obligations provided for in this Agreement shall continue
to be fully binding upon the Partners until such time as the property of the
Partnership has been distributed pursuant to this Section 12.02 and the
Partnership has been terminated. The Managing General Partner, or, upon the
occurrence of a Liquidating Event specified in Section 12.01(b) or 12.01(d), a
Person elected by all of the Limited Partners, shall be responsible for
overseeing the winding up and dissolution of the Partnership (the Managing
General Partner or any other Person elected pursuant to this Section 12.02 to
wind up the affairs of the Partnership being referred to as the "LIQUIDATOR").
Not later than 90 days after the date on which the Liquidating Event occurred,
the Liquidator shall take full account of the Partnership's liabilities and
assets and shall cause the proceeds from the sale thereof, to the extent
sufficient therefor, to be applied and distributed, to the maximum extent
permitted by law, in the following order:
(a) FIRST, to the payment and discharge of all of the Partnership's
debts and liabilities to creditors other than the Managing General Partner which
are
35
known or ascertainable within 90 days after the occurrence of a Liquidating
Event, other than liabilities for distributions to Partners;
(b) SECOND, to the payment and discharge of all of the Partnership's
debts and liabilities to the Managing General Partner which are known or
ascertainable within 90 days after the occurrence of a Liquidating Event, other
than liabilities for distributions to Partners; 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.
SECTION 12.03. ALLOCATIONS DURING PERIOD OF LIQUIDATION. During the
period commencing on the date on which a Liquidating Event occurs and ending on
the date on which the assets of the Partnership are distributed to the Partners
pursuant to Section 12.02 hereof, the Partners shall continue to share Profit,
Loss and other items of Partnership income, gain, loss or deduction in the
manner provided in Article 4 hereof.
SECTION 12.04. INDEMNIFICATION OF THE LIQUIDATOR. In the event that the
Liquidator is a Person other than the Managing General Partner, the Managing
General Partner shall indemnify, save harmless, and pay all judgments and claims
against such Liquidator relating to any liability or damage incurred by reason
of its making distributions to the Partners and in accordance with Section 12.02
hereof, except to the extent such liability or damage is caused by the gross
negligence, fraud, or willful misconduct of the Liquidator.
ARTICLE 13
POWER OF ATTORNEY
SECTION 13.01. MANAGING GENERAL PARTNER AS ATTORNEY-IN-FACT. Each
Limited Partner hereby makes, constitutes, and appoints the Managing General
Partner and each successor general partner, with full power of substitution and
resubstitution, its true and lawful attorney-in-fact for it and in its name,
place, and stead and for its use and benefit, to sign, execute, certify,
acknowledge, swear to, file, and record all certificates of limited partnership,
assumed name or similar certificates, and other certificates and instruments
(including counterparts of this Agreement) which the Managing General Partner
deems necessary or appropriate to be filed by the Partnership under the laws of
the State of Delaware or any other state or jurisdiction in which the
Partnership is doing or intends to do business,
36
and to take any further action which such attorney-in-fact shall consider
necessary or advisable in connection with any of the foregoing.
SECTION 13.02. SPECIAL POWER. The power of attorney granted pursuant to
this Article 13:
(a) is a special power of attorney coupled with an interest and is
irrevocable;
(b) may be exercised by any such attorney-in-fact by listing the
Limited Partners executing any agreement, certificate, instrument, or other
document with the single signature of any such attorney-in-fact acting as
attorney-in-fact for such Limited Partners; and
(c) shall survive the bankruptcy, insolvency, dissolution, or cessation
of existence of a Limited Partner and shall survive the delivery of an
assignment by a Limited Partner of the whole or a portion of its interest in the
Partnership, except that where the assignment is of such Limited Partner's
entire interest in the Partnership and the assignee, in accordance with this
Agreement, is admitted as a substituted Limited Partner, the power of attorney
shall survive the delivery of such assignment for the sole purpose of enabling
any such attorney-in-fact to effect such substitution.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01. NOTICES. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be delivered personally or by hand to the Person or to an
officer of the Person to whom the same is directed, or sent by facsimile or
other similar and immediate method of delivery, addressed as follows, or to such
other address as such Person may from time to time specify by notice to the
Partners:
(a) If to the Partnership, to the address set forth in Section 2.04
hereof for the Managing General Partner;
(b) If to the Managing General Partner, to the address set forth in
Section 3.01 hereof; and
37
(c) If to a Limited Partner, to the address set forth in Section 3.02
hereof.
Any such notice shall be delivered by hand, facsimile or other similar and
immediate method of delivery and shall be deemed to be delivered, given, and
received for all purposes as of the date so delivered. Any Person may from time
to time specify a different address by notice to the Partnership and the
Partners.
SECTION 14.02. MANAGING GENERAL PARTNER OR NEW LP BREACH. (a) In the
event of any breach by the Managing General Partner of any of its obligations
under Section 6.04, Price LP's sole remedy shall be damages.
(b) Cellco LP hereby guarantees to Price LP payment of all obligations
of the Managing General Partner to Price LP in connection with any breach by the
Managing General Partner of any of its obligations under this Agreement (the
"GUARANTEED OBLIGATIONS"). Cellco LP agrees that this guarantee is a continuing
guaranty of payment and performance and not of collection and shall be absolute
and unconditional and shall not be discharged, impaired or otherwise affected by
the genuineness, validity, enforceability or any future amendment of, or change
in, this Agreement or any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Cellco LP expressly waives all rights it may have now or in the future under any
law or otherwise to compel Price LP to proceed in respect of the Guaranteed
Obligations against the Managing General Partner or any other person or entity
before proceeding against Cellco LP.
(c) Cellco LP hereby represents and warrants to Price LP as of the date
hereof and covenants that until the Guaranteed Obligations shall have been paid
in full,
(i) it does not own any material assets or property, and will
not own any material assets or property other than its Interest and the
Cellco Contributed Interest, it has not engaged and will not engage in
any business, directly or indirectly other than the ownership of its
Interest, the Cellco Contributed Interest and any other business
incidental thereto and it has not incurred and will not incur any
liabilities, directly, indirectly, contingent or otherwise other than
the Cellco Contributed License Liabilities, the Cellco Excluded
Liabilities, the Guaranteed Obligations and liabilities incidental
thereto;
(ii) it has done or caused to be done and will do all things
necessary to preserve and maintain its existence and will not merge or
consolidate with, or acquire by purchase or otherwise any assets or
38
business of, any other person or entity other than its Interest or any
cash or property distributed in connection therewith; and
(iii) it is solvent and has the ability to pay its obligations
as the same shall become due and payable.
SECTION 14.03. BINDING EFFECT. Except as otherwise provided in this
Agreement, every covenant, term, and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective
successors and permitted transferees and assigns.
SECTION 14.04. CONSTRUCTION. Every covenant, term, and provision of
this Agreement shall be construed simply according to its fair meaning and not
strictly for or against any Partner. The terms of this Agreement are intended to
embody the economic relationship among the Partners and shall not be subject to
modification by or conform with any actions by the Internal Revenue Service
except as this Agreement shall be explicitly so amended. The previous sentence
shall not apply to the filing of tax returns.
SECTION 14.05. ASSIGNABILITY. No Partner may assign its rights or
obligations under this Agreement to a third party except in connection with a
Permitted Transfer as described above.
SECTION 14.06. HEADINGS. Article 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 or
any provision hereof.
SECTION 14.07. SEVERABILITY; INTEGRATION. Every provision of this
Agreement is intended to be severable. If any term or provision hereof is
illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity or legality of the remainder of this Agreement.
This Agreement, the Transaction Agreement, the Exchange Agreement, the Pledge
Agreement and the Lock-up Agreements constitute the entire understanding among
the parties with regard to this subject matter, and no other understanding,
agreement, statement, promise, or practice among the parties relating to this
subject matter shall be binding on the parties.
SECTION 14.08. FURTHER ACTION. Each Partner, upon the request of any
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 provisions of this Agreement.
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SECTION 14.09. VARIATION OF PRONOUNS. All pronouns and any variation
thereof shall be deemed to refer to masculine, feminine, or neuter, singular or
plural, as the identity of the Person or Persons may require.
SECTION 14.10. GOVERNING LAW. The law of the State of Delaware shall
govern the validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the Partners.
SECTION 14.11. WAIVER OF ACTION FOR PARTITION; NO XXXX FOR PARTNERSHIP
ACCOUNTING. Each of the Partners irrevocably waives any right that such Partner
may have to maintain any action for partition with respect to any of the
property of the Partnership. To the fullest extent permitted by applicable law,
each of the Partners covenants that it will not (except with the consent of the
Managing General Partner) file a xxxx for Partnership accounting.
SECTION 14.12. COUNTERPART EXECUTION. This Agreement may be executed in
any number of counterparts with the same effect as if all of the Partners had
signed the same document. All counterparts shall be construed together and shall
constitute one agreement.
SECTION 14.13. LIMITATION ON LIMITED PARTNER OBLIGATIONS. Except as
otherwise required by law, no Limited Partner shall (i) have any liability for
the obligations or liabilities of the Partnership or (ii) owe any duty
(including, without limitation, fiduciary duties) to the Partnership or any
other Partner.
SECTION 14.14. LIMITED PARTNER RIGHTS. The Limited Partners shall not
have any rights with respect to the Partnership except as expressly set forth in
this Agreement or as required by applicable law.
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IN WITNESS WHEREOF, the parties have entered into this Agreement of
Limited Partnership as of the day first above set forth.
VERIZON WIRELESS OF
GEORGIA LLC
By:
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[CELLCO SUB]
By:
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By:
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PRICE COMMUNICATIONS
WIRELESS, INC.
By:
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