PH02A/13896.11
CROWN ATLANTIC HOLDING COMPANY LLC
OPERATING AGREEMENT
THIS OPERATING AGREEMENT (this "Operating Agreement") is made and entered
into as of March 31, 1999 (the "Effective Date") by and between Cellco
Partnership, a Delaware general partnership doing business as Xxxx Atlantic
Mobile ("BAM"), and CCA Investment Corp., a Delaware corporation ("CCIC Member")
and a wholly-owned indirect subsidiary of Crown Castle International Corp., a
Delaware corporation ("CCIC"). BAM and CCIC Member (and such other persons who
shall be admitted in the future in accordance with the terms hereof and shall
have agreed to be bound hereby), being hereinafter sometimes referred to
individually as a "Member" and collectively as the "Members."
WHEREAS, BAM, CCIC, CCIC Member and certain transferring partnerships (the
"Transferring Partnerships") have entered into a Formation Agreement dated as of
December 8, 1998, as amended by Amendment Number One to such Formation Agreement
dated as of March 31, 1999 and as further amended by the Schedule updates
contemplated by Sections 6.1.2 and 6.2.1 of such Formation Agreement (as so
amended, the "Formation Agreement"), pursuant to which, among other things, BAM
and the Transferring Partnerships will (i) contribute the BAM Contributed Assets
and the BAM Assumed Liabilities (both as defined in the Formation Agreement) to
Crown Atlantic Company LLC, a Delaware limited liability company ("OpCo"), in
exchange for membership interests in OpCo; (ii) thereafter, contribute their
membership interests in OpCo (other than the BAM Retained Interest (as
hereinafter defined)) to Crown Atlantic Holding Sub LLC, a Delaware limited
liability company ("HoldCo Sub") in exchange for membership interests in HoldCo
Sub; and (iii) thereafter, contribute their membership interests in HoldCo Sub
to Crown Atlantic Holding Company LLC, a Delaware limited liability company
("HoldCo" or the "Company"), and, in addition, CCIC Member will contribute the
CCIC Contributed Shares (as defined below) to the Company, in exchange for
membership interests in the Company;
WHEREAS, in exchange for certain consideration, each Transferring
Partnership will transfer its respective interest in the Company to BAM
immediately following the formation of the Company;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
GENERAL PROVISIONS
Section I.1 Certain Definitions. As used in this Agreement, the following
terms have the respective meanings assigned to them below:
"Affiliates" means, with respect to any Person, any Persons controlling,
controlled by or under common control with that Person, as well as any executive
officers, directors and majority-owned entities of that Person or its other
Affiliates.
"Allocated Share" shall mean, except as otherwise provided in Section
9.5(b), (i) fourteen percent (14.0%) of the Fair Market Value (as defined in
Section 9.5(b)), if the BAM HoldCo Interest as set forth on Exhibit A is 37.7%,
or (ii) if the BAM HoldCo Interest as set forth on Exhibit A is other than
37.7%, the fraction, expressed as a percentage, the numerator of which is the
difference between (V) $650,000,000, increased by any Additional Consideration
(as defined in Section 3.8 of the Formation Agreement) or decreased by any
Amount of Decrease in Consideration (as defined in Section 3.8 of the Formation
Agreement) (the "Adjusted Total Consideration") and the sum of (W) the BAM
Capital Distribution (as defined in Section 3.4 of the Formation Agreement and
(X) the Adjusted Aggregate Share Value (as defined in Section 3.8 of the
Formation Agreement), and the denominator of which is the difference between the
sum of (Y) the Adjusted Total Consideration and the Bidder Contributed Cash (as
defined in the Formation Agreement) minus (Z) the BAM Capital Distribution (as
defined in Section 3.4 of the Formation Agreement).
"Anticipated Financing" shall mean the proposed financing by HoldCo Sub
contemplated by Section 3.6 of the Formation Agreement of an amount equal to not
less than One Hundred Eighty Million Dollars ($180,000,000.00) (the "Closing
Financing Amount"), except as adjusted pursuant to its terms and conditions.
"BAM" is defined in the Preamble.
"BAM HoldCo Interest" is defined in Section 8.2.
"BAM HoldCo Interest Purchaser" is defined in Section 8.5.
"BAM Offer" is defined in Section 8.4.
"BAM Retained Interest" shall mean the .001 Percentage Interest in OpCo
held by BAM.
"Bidder Services Agreement" shall mean the Services Agreement among CCIC,
OpCo and HoldCo Sub, in form and substance reasonably acceptable to BAM and CCIC
and consistent with the terms set forth in the letter agreement between BAM and
CCIC set forth as Exhibit 2.7 to the Formation Agreement, pursuant to which CCIC
shall offer to OpCo and HoldCo Sub certain services with respect to the tower
structures owned by OpCo and HoldCo Sub on the terms and conditions described
therein.
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"Build-to-Suit Agreement" shall mean the Build-to-Suit Agreement among
OpCo, HoldCo Sub and BAM (for itself and on behalf of the Transferring
Partnerships) pursuant to which BAM and the Transferring Partnerships shall
offer to OpCo and HoldCo Sub from time to time the right to build tower
structures on the terms and conditions described therein.
"Business Plan" is defined in Section 10.3.
"CCIC" is defined in the Preamble.
"CCIC Common Stock" shall mean the common stock, $.01 par value of CCIC.
"CCIC Contributed Shares" shall mean those shares of CCIC Common Stock
contributed to the Company by CCIC Member pursuant to Section 3.5 of the
Formation Agreement.
"CCIC HoldCo Interest" is defined in Section 8.1.
"CCIC HoldCo Interest Purchaser" is defined in Section 8.5.
"CCIC Member" is defined in the Preamble.
"CCIC Offer" is defined in Section 8.3.
"CPI" means the Consumer Price Index for All Urban Consumers, U.S. City
Average, for All Items (1982-1984 = 100), as published by the Bureau of Labor
Statistics of the U.S. Department of Labor, and any successor index. If the CPI
is discontinued and there is no successor index, BAM shall in good faith select
a comparable index to replace the CPI and the index selected by BAM shall be
subject to CCIC Member's approval, which approval shall not be unreasonably
withheld or delayed.
"Effective Date" is defined in the Preamble.
"Exchange Act" is defined in Section 10.4(a).
"Fair Market Value" is defined in Section 9.5(b).
"Formation Agreement" is defined in the Preamble. All terms not defined
herein shall have the meaning given to them in the Formation Agreement.
"GAAP" is defined in Section 3.8(e).
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"Global Lease" shall mean the Global Lease Agreement among OpCo and BAM
(for itself and on behalf of the Transferring Partnerships) pursuant to which
OpCo shall lease to BAM and the Transferring Partnerships space on certain
communications towers.
"Governmental Authority" means any federal, state, territorial, county,
municipal, local or other government or governmental agency or body or any other
type of regulatory body, whether domestic or foreign, including without
limitation the Federal Communications Commission, or any successor Governmental
Authority and the Federal Aviation Administration, or any successor Governmental
Authority.
"HoldCo" is defined in the Preamble.
"HoldCo Sub" is defined in the Preamble.
"HoldCo Sub Operating Agreement" shall mean the Operating Agreement of
HoldCo Sub entered into as of March 31, 1999 by HoldCo.
"Lender" shall mean Key Corporate Capital Inc.
"Management Agreement" shall mean the Management Agreement between HoldCo
Sub and OpCo, in form and substance reasonably acceptable to BAM and CCIC and
consistent with the terms set forth in the letter agreement between BAM and CCIC
as set forth on Exhibit 2.7 to the Formation Agreement, pursuant to which HoldCo
Sub shall manage and lease OpCo's assets.
"Managers" is defined in Section 1.2.
"Members" is defined in the Preamble.
"OpCo" is defined in the Preamble.
"OpCo Towers" is defined in Section 10.3.
"Person" means any natural person or entity.
"Solvent" is defined in Section 3.8(c).
"Taxes" means all taxes, duties, charges, fees, levies or other assessments
imposed by any taxing authority, whether domestic or foreign, including, without
limitation, income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on minimum
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estimated and franchise taxes (including any interest, levies, charges,
penalties or additions attributable to or imposed on or with respect to any such
assessment).
"Transaction Documents" means, collectively, the Formation Agreement, the
Global Lease, the Build-to-Suit Agreement, the Bidder Services Agreement, the
Management Agreement and each of the other documents and agreements listed in
Section 4.2 of the Formation Agreement.
"Transferring Partnership" is defined in the Preamble.
Section I.2 Formation. Upon the filing of the Certificate of Formation (the
"Certificate") with the Secretary of State of the State of Delaware, the Members
and the Transferring Partnerships have formed Crown Atlantic Holding Company
LLC, a limited liability company, pursuant to the Delaware Limited Liability
Company Act of 1992, as amended from time to time (the "Act"), for the purposes
hereinafter set forth. The Transferring Partnerships, after the filing of the
Certificate and prior to the execution and delivery of this Agreement,
transferred all of their respective interests in the Company to BAM. The Company
was formed as a limited liability company managed by its managers (the
"Managers") under the supervision of the Board of Representatives (as defined in
Section 1.10) and the laws of the State of Delaware, upon the terms and
conditions hereinafter set forth. The Members intend that the Company shall be
taxed as a partnership. Promptly following the execution hereof, the Members
shall execute or cause to be executed all other necessary certificates and
documents, and shall make all other such filings and recordings, and shall do
all other acts as may be necessary or appropriate from time to time to comply
with all requirements for the formation, continued existence and operation of a
limited liability company in the State of Delaware. This Operating Agreement is
intended to serve as a "limited liability company agreement" as such term is
defined in ss. 18-101(7) of the Act.
Section I.3 Company Name and Address. The Company shall do business under
the name Crown Atlantic Holding Company LLC or such other name as the Board of
Representatives may determine from time to time. The Board of Representatives
shall promptly notify the Members of any change of name of the Company. The
initial registered agent for the Company shall be CT Corporation System. The
initial registered office of the Company in the State of Delaware shall be 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The registered office and the
registered agent may be changed from time to time by action of the Board of
Representatives by filing notice of such change with the Secretary of State of
the State of Delaware. The Board of Representatives will promptly notify the
Members of any change of the registered office or registered agent. The Company
may also have offices at such other places within or outside of the State of
Delaware as the Board of Representatives may from time to time determine.
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Section I.4 Term. The Company shall commence operating as of the date the
Certificate is filed with the Secretary of the State of Delaware, and shall have
perpetual existence unless terminated or dissolved pursuant to Section 9.1 of
this Operating Agreement.
Section I.5 Business of the Company. The purpose of the Company is to own
(i) one hundred percent (100%) of the percentage interests in HoldCo Sub and
(ii) the CCIC Contributed Shares. The Company shall not engage in any line of
business except for (i) the ownership of the membership interests in, and
operation and management of, HoldCo Sub and any and all activities ancillary or
related thereto and (ii) the ownership of the CCIC Contributed Shares. The
Company shall possess and may exercise all the powers and privileges granted by
the Act or by any other law, together with any powers incidental thereto, so far
as such powers and privileges are necessary or convenient to the conduct,
promotion or attainment of the business, purposes or activities of the Company.
Section I.6 Names and Addresses of the Members. The names and addresses of
the Members are set forth in Schedule A.
Section I.7 Partition. No Member, nor any successor-in-interest to any
Member, shall have the right, while this Operating Agreement remains in effect,
to have the property of the Company partitioned, or to file a complaint or
institute any proceeding at law or in equity to have the property of the Company
partitioned, and each of the Members, on behalf of itself and its successors,
representatives and assigns, hereby irrevocably waives any such right.
Section I.8 Fiscal Year. The fiscal year of the Company shall begin on
January 1 and end on December 31 of each calendar year.
Section I.9 Title to Company Property. All property owned by the Company,
whether real or personal, tangible or intangible, shall be deemed to be owned by
the Company, and no Member individually shall have any interest in such
property. Title to all such property may be held in the name of the Company or a
designee, which designee may be a Member or an entity affiliated with a Member.
Section I.10 Board of Representatives.
(a) General. A Board of Representatives (the "Board of
Representatives") shall be established to oversee the Managers and review
the Business Plan (as defined in Section 10.3). There shall be no less than
five (5) Representatives, nor more than fifteen (15) Representatives, as
may be determined from time to time by the Board of Representatives.
Initially, there shall be six (6) Representatives. Each Member shall
designate that number of Representatives determined by multiplying the
total number of Representatives by that Member's Percentage Interest in the
Company and rounding to the nearest whole number. If such calculation shall
result in a greater number of Representatives than the total to be
designated, then the Board of Representatives shall be expanded to the
extent permitted by the
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second sentence of this Section 1.10(a) or if, despite such expansion,
there would still be a greater number of Representatives than the total to
be designated, the Members shall by vote determine a proportionate
readjustment with each Member entitled to a number of votes equal to its
Percentage Interest. Notwithstanding the foregoing, for so long as BAM
maintains ownership of at least a five percent (5%) Percentage Interest in
the Company, BAM shall have the right to designate from time to time a
number of Representatives that is equal to the greater of (i) one (1)
Representative or (ii) the number of Representatives (rounded to the
nearest whole number) which is equal to the same percentage of all
Representatives as the Percentage Interest in the Company held by BAM.
Initially, BAM shall designate two (2) Representatives and CCIC Member
shall designate four (4) Representatives.
(b) Representatives and Alternates. Each Member shall also be entitled
to designate one (1) alternate to each such Representative (each an
"Alternate"). In the event a Representative is unable to attend a meeting
of the Board of Representatives or otherwise participate in any action to
be taken by the Board of Representatives, the Alternate associated with
such Representative shall take such Representative's place for all purposes
on the Board of Representatives. Each Member shall designate its
Representatives and the associated Alternates by written notice to the
Company and each other Member. The initial Representatives and Alternates
of each Member are set forth on Schedule B. The Representatives and
Alternates shall at all times be executive officers or other full-time
employees of either such Member or any affiliate of such Member. For so
long as BAM has the right to designate at least one (1) Representative of
the Company, the Representatives and Alternates of the Company shall also
serve as the Representatives and Alternates of HoldCo Sub and OpCo.
(c) Resignation. A Representative or Alternate of the Company may
resign at any time by giving written notice to the Company or to the Member
who designated such Representative or Alternate.
(d) Removal. Each Member may, at any time, replace any of its
Representatives or Alternates with a new Representative or Alternate and,
upon such change or upon the death or resignation of any Representative or
Alternate, a successor shall be designated in writing by the Member that
appointed the Representative or Alternate being replaced.
(e) Vacancies. Any vacancy with respect to any Representative or
Alternate occurring for any reason may be filled by the Member who
designated the Representative or Alternate who vacated or was removed from
his or her position.
(f) Compensation. Without the approval of the Members, the
Representatives or Alternates will not be entitled to compensation for
their services as Representatives or Alternates. The Company shall,
however, reimburse the Representatives and Alternates for their reasonable
expenses incurred in connection with their services to the Company.
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Section I.11 Membership Interests Uncertificated. The interests of the
Members in the Company shall not be certificated.
ARTICLE II
MEETINGS GENERALLY
Section II.1 Manner of Giving Notice.
(a) A notice of meeting shall specify the place, day and hour of the
meeting and any other information required by any provision of the Act, the
Certificate or this Operating Agreement.
(b) When a meeting at which there is a duly constituted quorum is
adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at an adjourned meeting, other
than by announcement at the meeting at which the adjournment is taken,
unless the adjournment is for more than sixty (60) days in which event
notice shall be given in accordance with Section 2.2 or Section 2.3, as
applicable.
Section II.2 Notice of Meetings of the Board of Representatives. Notice of
every meeting of the Board of Representatives shall be given to each
Representative by telephone or in writing at least 24 hours (in the case of
notice by telephone, telex or facsimile transmission) or 48 hours (in the case
of notice by telegraph, courier service or express mail) or five (5) days (in
the case of notice by first class mail) before the time at which the meeting is
to be held. Every such notice shall state the time and place of the meeting.
Subject to the provisions of Sections 3.3 and 4.5, neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Representatives
need be specified in a notice of the meeting.
Section II.3 Notice of Meetings of Members. Written notice of every meeting
of the Members shall be given to each Member of record entitled to vote at the
meeting at least five (5) days prior to the day named for the meeting. If the
Managers neglect or refuse to give notice of a meeting, the person or persons
calling the meeting may do so.
Section II.4 Waiver of Notice.
(a) Whenever any written notice is required to be given under the
provisions of the Act, the Certificate or this Operating Agreement, a
waiver thereof in writing, signed by the person or persons entitled to the
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of the notice. Neither the business to be
transacted at, nor the purpose of, a meeting need be specified in the
waiver of notice of the meeting.
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(b) Attendance of a person at any meeting shall constitute a waiver of
notice of the meeting except where a person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened.
Section II.5 Use of Conference Telephone and Similar Equipment. Any
Representative may participate in any meeting of the Board of Representatives,
and any Member may participate in any meeting of the Members, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this Section shall constitute presence in person at the
meeting.
Section II.6 Consent in Lieu of Meeting. Any action required or permitted
to be taken at a meeting of the Board of Representatives or Members may be taken
without a meeting if, prior or subsequent to the action, written consents
describing the action to be taken are signed by the minimum number of
Representatives or Members that would be necessary to authorize the action at a
meeting at which all Representatives or Members entitled to vote thereon were
present and voting; provided that, prior to any such written consent becoming
effective, such written consent has been provided to all Representatives or
Members entitled to vote, and the Representatives or Members shall have ten (10)
days to review such consent prior to such written consent becoming effective
(unless otherwise agreed to by all Representatives or their respective
Alternates or each Member, respectively). The consents shall be filed with the
Managers. Prompt notice of the taking of Company action without a meeting by
less than unanimous written consent shall be given to those Members who have not
consented in writing.
ARTICLE III
MANAGEMENT
Section III.1 Management of the Company Generally. The business and affairs
of the Company shall be managed by its Managers under the supervision of the
Board of Representatives (a) in accordance with the provisions of this Operating
Agreement and the Business Plans and the other resolutions and directives of the
Board of Representatives adopted by the Board of Representatives and in effect
from time to time, and (b) subject to the provisions of the Act, the Certificate
and this Operating Agreement including, without limitation, the provisions of
Section 3.8 hereof. Unless authorized to do so by this Operating Agreement or by
the Board of Representatives or the Managers of the Company (provided that the
Managers are authorized to grant such authority), no attorney-in-fact, employee,
officer or agent of the Company other than the Managers shall have any power or
authority to bind the Company in any way, to pledge its credit or to render it
liable pecuniarily for any purpose. No Member shall have any power or authority
to bind the Company unless the Member has been expressly authorized by the Board
of Representatives to act as an agent of the Company. All Managers of the
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Company, as between themselves and the Company, shall have such authority and
perform such duties in the management of the Company as may be provided by or
pursuant to resolutions or orders of the Board of Representatives or in the
Business Plan, or, in the absence of controlling provisions in the resolutions
or orders of the Board of Representatives, as may be determined by or pursuant
to this Operating Agreement. The Board of Representatives may confer upon any
Manager such titles as the Board deems appropriate, including, but not limited
to, President, Vice President, Secretary or Treasurer, and subject to the
limitations set forth in Section 3.8 of this Operating Agreement, delegate
specifically defined duties to the Managers. Notwithstanding the foregoing or
any other provision of this Operating Agreement or of the Act to the contrary,
no Manager of the Company shall have the power or authority to do or perform any
act with respect to any of the matters set forth in Section 3.8 of this
Operating Agreement unless such matter has been approved by the mutual consent
of BAM and CCIC Member in accordance with the provisions of this Operating
Agreement.
Section III.2 Meetings of the Board of Representatives. Meetings of the
Board of Representatives shall be held at such time and place within or without
the State of Delaware as shall be designated from time to time by resolution of
the Board of Representatives or by written notice of any Manager or by written
notice of any Member; provided that meetings of the Board of Representatives
shall be held no less than quarterly, on a date to be determined by the mutual
consent of BAM and CCIC Member. At each meeting of the Board of Representatives,
the Managers shall (i) provide the Board of Representatives with a report on the
financial condition and operations of the Company, including, without
limitation, a report on the results of operations compared to the then
applicable Business Plan, (ii) disclose to the Board of Representatives any
material event or contingency occurring since the previous meeting and (iii)
disclose to the Board of Representatives all matters which would require
disclosure to, or the approval of, the board of directors of a Delaware
corporation. For so long as BAM is entitled to designate at least one (1)
Representative to the Board of Representatives of the Company, any meeting of
the Board of Representatives of the Company shall also be deemed to be a meeting
of the Boards of Representatives of HoldCo Sub and OpCo.
Section III.3 Quorum. The presence of at least one of the Representatives
or Alternates designated by each of BAM and CCIC Member shall be necessary to
constitute a quorum for the transaction of business at a meeting of the Board of
Representatives and the acts of a majority of the Representatives or Alternates
present and voting at a meeting at which a quorum is present shall be the acts
of the Representatives or Alternates; provided, however, that if notice of a
meeting is provided to the Representatives and Alternates, and such notice
describes the business to be considered, the actions to be taken and the matters
to be voted on at the meeting in reasonable detail, and insufficient
Representatives or Alternates attend the meeting to constitute a quorum, the
meeting may be adjourned by those Representatives or Alternates attending such
meeting for a period not to exceed twenty (20) days. Such meeting may be
reconvened by providing notice of the reconvened meeting to the Representatives
and Alternates no less than ten (10) days prior to the date of the meeting
specifying that the business to be considered, the actions to be taken and the
matters to be voted upon are those set forth in
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the notice of the original adjourned meeting. If, at the reconvened meeting, a
quorum of Representatives or Alternates is not present, a majority of the
Representatives and Alternates present and voting will constitute a quorum for
purposes of the reconvened meeting; provided, however that such Representatives
and Alternates may only consider the business, take the actions or vote upon the
matters set forth in the notice of the original meeting.
Notwithstanding the foregoing or any other provision in this Operating
Agreement, no Representative, Alternate or Manager shall have any power or
authority to do or perform any act with respect to any of the matters set forth
in Section 3.8 of this Operating Agreement unless such matter has been approved
by the mutual consent of BAM and CCIC Member in accordance with the provisions
of this Operating Agreement.
Section III.4 Manner of Acting. Other than any action contemplated by
Section 3.8, which shall require the mutual consent of CCIC Member and BAM,
whenever any Company action is to be taken by a vote of the Board of
Representatives, it shall be authorized upon receiving the affirmative vote of a
majority of the Representatives and Alternates present and voting at a duly
constituted meeting at which a quorum is present.
Section III.5 Designation of Managers. CCIC Member shall designate all
Managers. The initial Managers are set forth on Schedule C. CCIC Member shall
promptly give each Member notice of the designation of any new Manager.
Section III.6 Qualifications. Each Manager of the Company shall be a
natural person of full age who need not be a resident of the State of Delaware.
Section III.7 Number, Selection and Term of Office.
(a) There shall be no less than 2 Managers, nor more than 10, as may
be determined from time to time by the Board of Representatives. Initially,
there shall be 5 Managers.
(b) Each Manager shall hold office until a successor has been selected
and qualified or until his or her earlier death, resignation or removal.
Section III.8 Approval of Certain Matters by the Members. Notwithstanding
any provision of this Operating Agreement or the Act to the contrary, the
following matters require the mutual consent of BAM and CCIC Member, given by
their respective Representatives (acting as a group) at a meeting of the Board
of Representatives or by written consent, or if BAM has no Representatives, such
consent shall be given by BAM in its capacity as a Member, and the Managers
shall have no power or authority to do or perform any act with respect to any of
the following matters without the mutual consent of BAM and CCIC Member, given
in accordance with the provisions of this Operating Agreement:
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(a) Certain Contracts. The entering into any contract, agreement or
arrangement (whether written or oral) by the Company, other than agreements
and contracts in force as of the date hereof and renewals thereof, which
(i) contains provisions restricting HoldCo or HoldCo Sub or any member
thereof from competing in any business activity in any geographic area,
(ii) contains provisions requiring HoldCo or HoldCo Sub or any member
thereof to deal exclusively with any third party with respect to providing
any goods, services or rights to or acquiring any goods or services or
rights from such third party, (iii) contains provisions which are
inconsistent with the obligations of HoldCo or HoldCo Sub under any of the
Transaction Documents, or (iv) provides for the purchase or sale of goods,
services or rights involving an amount in excess of $10,000,000 per year in
any transaction or series of similar transactions.
(b) Conduct of Business. The engagement by the Company in any line of
business other than (i) the ownership of the membership interests in HoldCo
Sub and (ii) the ownership of the CCIC Contributed Shares. The engagement
by HoldCo Sub in any line of business other than the business of acquiring
or constructing, owning or leasing, and maintaining and operating
communications towers in the United States and performing its obligations
under the Management Agreement and performing all business activities
related thereto. The making by HoldCo Sub of any investment in, or the
acquisition by HoldCo Sub of any equity securities of, any Person other
than OpCo.
(c) Solvency. The voluntary taking of any action by the Company or
HoldCo Sub that would cause the Company or HoldCo Sub to cease to be
Solvent. As used herein, the term "Solvent" means that the aggregate
present fair saleable value of the Company's (or HoldCo Sub's, as
applicable) assets is in excess of the total cost of its probable liability
on its existing debts to third parties as they become absolute and matured,
the Company (or HoldCo Sub, as applicable) has not incurred debts beyond
its foreseeable ability to pay such debts as they mature, and the Company
(or HoldCo Sub, as applicable) has capital adequate to conduct the business
in which it is presently employed.
(d) Bankruptcy. The voluntary dissolution or liquidation of the
Company or HoldCo Sub, the making by the Company or HoldCo Sub of a
voluntary assignment for the benefit of creditors, the filing of a petition
in bankruptcy by the Company or HoldCo Sub, the Company or HoldCo Sub
petitioning or applying to any tribunal for any receiver or trustee, the
Company or HoldCo Sub commencing any proceeding relating to itself under
any bankruptcy, reorganization, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, the Company or HoldCo Sub
indicating its consent to, approval of or acquiescence in any such
proceeding and failing to use its respective best efforts to have
discharged the appointment of any receiver of or trustee for the Company or
HoldCo Sub or any substantial part of their respective properties.
(e) Indebtedness. The direct or indirect modification, amendment or
prepayment of the Anticipated Financing under the Formation Agreement by
the Company or
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HoldCo Sub prior to the seventh (7th) anniversary of the closing of the
transactions contemplated by the Formation Agreement. The Company directly or
indirectly, creating, incurring, assuming, guaranteeing, or otherwise becoming
or remaining directly or indirectly liable with respect to any Indebtedness. As
used herein, "Indebtedness" means, at any time, (i) liabilities for borrowed
money, (ii) liabilities for the deferred purchase price of property acquired by
the Company (excluding accounts payable arising in the ordinary course of
business but including all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such property);
(iii) all liabilities appearing on its balance sheet in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved ("GAAP") in respect of capital leases; (iv) all liabilities for
borrowed money secured by any Encumbrance with respect to any property owned by
the Company (whether or not it has assumed or otherwise become liable for such
liabilities); (v) all liabilities in respect of letters of credit or instruments
serving a similar function issued or accepted for its account by banks and other
financial institutions (whether or not representing obligations for borrowed
money); and (vi) any guaranty of the Company with respect to liabilities of a
type described in any of clauses (i) through (v) hereof.
(f) Liens. The Company, directly or indirectly, maintaining, creating,
incurring, assuming or permitting to exist any Encumbrance (other than
Encumbrances on the membership interests in HoldCo Sub granted to the
Lender to secure the Anticipated Financing) on or with respect to any
property or asset (including any document or instrument in respect of goods
or accounts receivable) of the Company, whether now owned or hereafter
acquired, or any income or profits therefrom.
(g) Issuance of Interests. Except pursuant to a transfer permitted by
Section 8.1 or Section 8.2, the authorization or issuance of any interests
in, or the admission of any members to, the Company or HoldCo Sub, other
than BAM and CCIC Member, including, without limitation, the authorization
or issuance of any additional interests in the Company to BAM or CCIC
Member beyond those interests authorized and issued in connection with the
formation of the Company.
(h) Contingent Obligations. The Company, directly or indirectly,
creating or becoming or being liable with respect to any Contingent
Obligation.
As used herein, the term "Contingent Obligations" means any direct or indirect
liability, contingent or otherwise (i) with respect to any indebtedness, lease,
dividend or other obligation of another if the primary purpose or intent thereof
is to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligations
will be protected (in whole or in part) against loss in respect thereof and (ii)
with respect to any letter of credit. Contingent Obligations shall include with
respect to the Company, without limitation, the direct or indirect guaranty,
endorsement (otherwise than for the collection or deposit in the ordinary course
of business), co-making, discounting with recourse or sale with recourse by the
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Company, the obligation to make take-or-pay or similar payments if required
regardless of non-performance by any other party or parties to an agreement, and
any liability of the Company for the obligations of another through any
agreement (contingent or otherwise) (x) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), and (y) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another, if in the case of any agreement described under subclause (x) or (y) of
this sentence, the primary purpose or intent thereof is as described in the
preceding sentence.
(i) Preservation of Existence. Any action contrary to the preservation
and maintenance of the Company's and HoldCo Sub's existence, rights,
franchises and privileges as a limited liability company under the laws of
the State of Delaware. Any action which would prevent the Company or HoldCo
Sub from qualifying and remaining qualified as a foreign limited liability
company in each jurisdiction in which such qualification is necessary or
desirable in view of its business and operations or the ownership or lease
of its properties.
(j) Merger or Sale of Assets. Any merger or consolidation by the
Company or HoldCo Sub with any Person. Any sale, assignment, lease or other
disposition by the Company or HoldCo Sub of (whether in one transaction or
in a series of transactions), or any voluntarily parting with the control
of (whether in one transaction or in a series of transactions), a material
portion of the Company's or HoldCo Sub's assets (whether now owned or
hereinafter acquired), except in accordance with the provisions of any of
the Transaction Documents, and except for sales or other dispositions of
assets in the ordinary course of business. Any sale, assignment or other
disposition of (whether in one transaction or in a series of transactions)
any of the Company's or HoldCo Sub's accounts receivable (whether now in
existence or hereinafter created) at a discount or with recourse, to any
Person, except for sales or other dispositions of assets in the ordinary
course of business.
(k) Dealings with Affiliates. Except pursuant to the Transaction
Documents, the entering into by the Company or HoldCo Sub of any
transaction, including, without limitation, any loans or extensions of
credit or royalty agreements with any Representative, Manager, officer or
member of the Company or HoldCo Sub or any officer, director of CCIC or
CCIC Member or holder of more than five percent (5%) of the outstanding
CCIC Common Stock, or any member of their respective immediate families or
any corporation or other entity directly or indirectly controlled by one or
more of such officers, directors or stockholders or members of their
immediate families except in the ordinary course of business and on terms
not less favorable to the Company or HoldCo Sub than it would reasonably
expect to obtain in a transaction between unrelated parties.
(l) Dividends; Distributions. The declaration or payment by the
Company or HoldCo Sub of any dividend, or making by the Company or HoldCo
Sub of any distribution or return of capital, or the redemption by the
Company or HoldCo Sub of any equity
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interest, or the making by the Company or HoldCo Sub of any similar
payments or transfer of property to its Members (excluding payments for
goods or services).
(m) Method of Certain Calculations. The determination of any method to
be used in calculating any of the payments to be made under the Management
Agreement or the Bidder Services Agreement.
(n) Business Plan. The approval of the Business Plan as set forth in
Section 10.3.
(o) Actions as Member of HoldCo Sub. The Company giving any consent,
in its capacity as a member of HoldCo Sub, under Section 3.8 of the HoldCo
Sub Operating Agreement.
(p) Voting of CCIC Contributed Shares held by the Company. The Company
exercising any voting rights with respect to the CCIC Contributed Shares
held by the Company, and in the absence of the mutual agreement of BAM and
CCIC Member as to the exercise of such voting rights, the CCIC Contributed
Shares shall be voted on each matter submitted to a vote of the
stockholders of CCIC for and against such matter in the same proportion as
the vote of all other shares entitled to vote thereon are voted (whether by
proxy or otherwise) for and against such matter.
Whenever the mutual consent of BAM and CCIC Member is required under either this
Operating Agreement, the HoldCo Sub Operating Agreement or the OpCo Operating
Agreement, the Managers shall only take action, vote the membership interests in
HoldCo Sub or authorize the Managers of HoldCo Sub to vote the membership
interest in OpCo in accordance with the direction of BAM and CCIC Member as
provided for in this Section 3.8.
Section III.9 Exculpation. No Member, Manager, Representative, Alternate or
officer shall be liable to the Company or to any Member for any losses, claims,
damages or liabilities arising from, related to, or in connection with, this
Operating Agreement or the business or affairs of the Company, except for any
losses, claims, damages or liabilities as are determined by final judgment of a
court of competent jurisdiction to have resulted from such Member, Manager,
Representative, Alternate or officer's gross negligence or willful misconduct.
To the extent that, at law or in equity, any Member, Manger, Representative,
Alternate or officer has duties (including fiduciary duties) and liabilities
relating thereto to the Company or to any Member, such Member, Manager,
Representative, Alternate or officer acting in connection with this Operating
Agreement or the business or affairs of the Company shall not be liable to the
Company or to any Member, Manager, Representative, Alternate or officer for its
good faith conduct in accordance with the provisions of this Agreement or any
approval or authorization granted by the Company or any Member, Manager,
Representative, Alternate or officer. The provisions of this Operating
Agreement, to the extent that they restrict the duties and liabilities of any
Member, Manager, Representative, Alternate or officer otherwise existing at law
or in
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equity, are agreed by the Members to replace such other duties and liabilities
of such Member, Manager, Representative, Alternate or officer.
Section III.10 Reliance on Reports and Information by Member,
Representative, Alternate or Manager. A Member, Representative, Alternate or
Manager of the Company shall be fully protected in relying in good faith upon
the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any of its other Managers, Members,
Representatives, Alternates, officers, employees or committees of the Company,
or by any other person, as to matters the Member, Representative, Alternate or
Manager reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or on behalf
of the Company, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits or losses of the Company or
any other facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid.
Section III.11 Bank Accounts. The Managers may from time to time open bank
accounts in the name of the Company, and the Managers, or any of them, shall be
the sole signatory or signatories thereon, unless the Managers determine
otherwise.
Section III.12 Resignation. A Manager of the Company may resign at any time
by giving written notice to the Company. The resignation of a Manager shall be
effective upon receipt of such notice or at such later time as shall be
specified in the notice. Unless otherwise specified in the notice, the
acceptance of the resignation shall not be necessary to make such resignation
effective.
Section III.13 Removal. Any individual Manager may be removed from office
at any time, without assigning any cause, by CCIC Member.
Section III.14 Vacancies. Any vacancy with respect to a Manager occurring
for any reason may be filled by CCIC Member.
Section 3.15 Salaries. The salaries of the Managers shall be fixed from
time to time by the Board of Representatives in accordance with the Business
Plan or by such Manager as may be designated by resolution of the Board of
Representatives. The salaries or other compensation of any other employees and
other agents shall be fixed from time to time by the Board of Representatives or
by such Manager as may be designated by resolution of the Board of
Representatives.
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ARTICLE IV
MEMBERS
Section IV.1 Admission of Members.
(a) A person acquiring an interest in the Company in connection with
its formation shall be admitted as a Member of the Company upon the later
to occur of the formation of the Company or when the admission of the
person is reflected in the records of the Company.
(b) After the formation of the Company, a person acquiring an interest
in the Company from the Company, is admitted as a Member upon the
satisfaction of all requirements in Article VIII of this Operating
Agreement.
Section IV.2 Meetings. Meetings of the Members, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by any Manager
or by any Member.
Section IV.3 Place of Meeting. The Managers or Members calling a meeting
pursuant to Section 4.2 may designate any place as the place for any meeting of
the Members. If no designation is made, the place of meeting shall be the
principal office of the Company.
Section IV.4 Record Date. For the purpose of determining Members entitled
to notice of, or to vote at, any meeting of Members or any adjournment of the
meeting, or Members entitled to receive payment of any distribution, or to make
a determination of Members for any other purpose, the date on which notice of
the meeting is mailed or the date on which the resolution declaring the
distribution or relating to such other purpose is adopted, as the case may be,
shall be the record date for the determination of Members. Only Members of
record on the date fixed shall be so entitled notwithstanding any permitted
transfer of a Member's Membership Interest after any record date fixed as
provided in this Section. When a determination of Members entitled to vote at
any meeting of Members has been made as provided in this section, the
determination shall apply to any adjournment of the meeting.
Section IV.5 Quorum. A meeting of Members of the Company duly called shall
not be organized for the transaction of business unless a quorum is present. The
presence of each Member, represented in person or by proxy, shall constitute a
quorum at any meeting of Members, provided, however, that if notice of a meeting
is provided to the Members, and such notice describes the business to be
considered, the actions to be taken and the matters to be voted on at the
meeting in reasonable detail, and insufficient Members attend the meeting to
constitute a quorum, the meeting may be adjourned by those Members attending
such meeting for a period not to exceed twenty (20) days. Such meeting may be
reconvened by providing notice of the reconvened meeting to the Members no less
than ten (10) days prior to the date of the meeting specifying that the business
to be considered, the actions to be taken and the matters to be voted
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upon are those set forth in the notice of the original adjourned meeting. If, at
the reconvened meeting, a quorum of Members is not present, a majority of the
Members present and voting will constitute a quorum for purposes of the
reconvened meeting; provided, however that such Members may only consider the
business, take the actions or vote upon the matters set forth in the notice of
the original meeting. At an adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been transacted
at the meeting as originally noticed. The Members present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal during the meeting of Members whose absence would cause less than a
quorum.
Notwithstanding the foregoing or any other provision in this Agreement, no
Member shall have any power or authority to do or perform any act with respect
to any of the matters set forth in Section 3.8 of this Operating Agreement
unless such matter has been approved by the mutual consent of BAM and CCIC
Member in accordance with the provisions of this Operating Agreement.
Section IV.6 Manner of Acting. Except as otherwise provided in the Act or
the Certificate or this Operating Agreement, including, without limitation,
Section 3.8 hereof, whenever any Company action is to be taken by vote of the
Members of the Company, it shall be authorized upon receiving the affirmative
vote of Members entitled to vote who own a majority of the Percentage Interests
(as defined in Section 6.1) then held by Members.
Section IV.7 Voting Rights of Members. Unless otherwise provided in the
Certificate, every Member of the Company shall be entitled to a percentage of
the total votes equal to that Member's then current Percentage Interest.
Section IV.8 Relationship of Members. Except as otherwise expressly and
specifically provided in or as authorized pursuant to the Certificate or this
Operating Agreement, (a) in the event that any Member (or any of such Member's
shareholders, partners, members, owners, or Affiliates (collectively, the
"Liable Member")) has incurred any indebtedness or obligation prior to the date
of this Agreement that relates to or otherwise affects the Company, neither the
Company nor any other Member shall have any liability or responsibility for or
with respect to such indebtedness or obligation unless such indebtedness or
obligation is assumed by the Company pursuant to this Operating Agreement, the
Formation Agreement or any of the other Transaction Documents, or a written
instrument signed by all Members; (b) neither the Company nor any Member
pursuant to this Agreement shall be responsible or liable for any indebtedness
or obligation that is incurred after the date of this Agreement by any Liable
Member, and in the event that a Liable Member, whether prior to or after the
date hereof, incurs (or has incurred) any debt or obligation that neither the
Company nor any of the other Members is to have any responsibility or liability
for, the Liable Member shall indemnify and hold harmless the Company and the
other Members from any liability or obligation they may incur in respect
thereof; (c) nothing contained herein shall render any Member personally liable
for any debts, obligations or liabilities incurred by the other Members or the
Company whether arising in
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contract, tort or otherwise or for the acts or omissions of any other Member,
Manager, agent or employee of the Company; (d) no Member shall be constituted an
agent of the other Members or the Company; (e) nothing contained herein shall
create any interest on the part of any Member in the business or other assets of
the other Members; (f) nothing contained herein shall be deemed to restrict or
limit in any way the carrying on (directly or indirectly) of separate businesses
or activities by any Member now or in the future, even if such businesses or
activities are competitive with the Company; and (g) no Member shall have any
authority to act for, or to assume any obligation on behalf of, the other
Members or the Company. No Member or any of its affiliates or any of their
respective officers, directors, employees or former employees shall have any
obligation, or be liable, to the Company or any other Member pursuant to this
Agreement for or arising out of the conduct described in the preceding clause
(f), for exercising, performing or observing or failing to exercise, perform or
observe, any of its rights or obligations under the Formation Agreement or any
other Transaction Document, for exercising or failing to exercise its rights as
a Member or, solely by reason of such conduct, for breach of any fiduciary or
other duty to the Company or any Member. In the event that a Member, any of its
Affiliates or any of their respective officers, directors, employees or former
employees acquires knowledge of a potential transaction, agreement, arrangement
or other matter which may be a corporate opportunity for both the Member and the
Company, neither the Member nor such Affiliate, officers, directors, employees
or former employees shall have any duty to communicate or offer such corporate
opportunity to the Company, and neither the Member nor such Affiliate, officers,
directors, employees or former employees shall be liable to the Company for
breach of any fiduciary or other duty, as a member or otherwise, by reason of
the fact that the Member or such Affiliate, officers, directors, employees or
former employees pursue or acquire such corporate opportunity for the Member,
direct such corporate opportunity to another person or entity or fail to
communicate such corporate opportunity or information regarding such corporate
opportunity to the Company.
Section IV.9 Business Transactions of Member, Representative or Alternate
with the Company. A Member, Representative or Alternate may lend money to,
borrow money from, act as a surety, guarantor or endorser for, guarantee or
assume one or more obligations of, provide collateral for, and transact any and
all other business with the Company and, subject to other applicable law, has
the same rights and obligations with respect to any such matter as a person who
is not a Member, Representative or Alternate.
ARTICLE V
INDEMNIFICATION
Section V.1 Indemnification by the Company.
(a) The Company shall indemnify an indemnified representative against
any liability incurred in connection with any proceeding in which the
indemnified representative
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may be involved as a party or otherwise, as and when incurred, by reason of
the fact that such person is or was serving in an indemnified capacity,
including, without limitation, liabilities resulting from any actual or
alleged breach or neglect of duty, error, misstatement or misleading
statement, negligence, gross negligence or act giving rise to liability,
except:
(1) where such indemnification is expressly prohibited by
applicable law;
(2) where the conduct of the indemnified representative has been
finally determined:
(i) to constitute willful misconduct or recklessness
sufficient in the circumstances to bar indemnification against
liabilities arising from the conduct; or
(ii) to be based upon or attributable to the receipt by the
indemnified representative from the Company of a personal benefit
to which the indemnified representative is not legally entitled;
or
(3) to the extent such indemnification has been finally
determined in a final adjudication to be otherwise unlawful.
(b) If an indemnified representative is entitled to indemnification in
respect of a portion, but not all, of any liabilities to which such person
may be subject, the Company shall indemnify such indemnified representative
to the maximum extent for such portion of the liabilities.
(c) The termination of a proceeding by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent shall not of
itself create a presumption that the indemnified representative is not
entitled to indemnification.
(d) Definitions. For purposes of this Article:
(1) "indemnified capacity" means any and all past, present and
future service by an indemnified representative in one or more
capacities as a Member, Manager, Representative, Alternate or
authorized agent of the Company;
(2) "indemnified representative" means any and all Members,
Managers, Representatives, Alternates and authorized agents of the
Company and any other person designated as an indemnified
representative by the mutual consent of BAM and CCIC Member, given in
accordance with the provisions of this Operating Agreement;
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(3) "liability" means any damage, judgment, amount paid in
settlement, fine, penalty, punitive damages, excise tax assessed with
respect to an employee benefit plan, or cost or expense of any nature
(including, without limitation, attorneys' fees and disbursements);
and
(4) "proceeding" means any threatened, pending or completed
action, suit, appeal or other proceeding of any nature, whether civil,
criminal, administrative or investigative, whether formal or informal,
and whether brought by or in the right of the Company, a class of its
Members or security holders or otherwise.
Section V.2 Proceedings Initiated by Indemnified Representatives.
Notwithstanding any other provision of this Article, the Company shall not
indemnify under this Article an indemnified representative for any liability
incurred in a proceeding initiated (which shall not be deemed to include
counterclaims or affirmative defenses) or participated in as an intervenor or
amicus curiae by the person seeking indemnification unless such initiation of or
participation in the proceeding is authorized, either before or after its
commencement, by the unanimous consent of the Board of Representatives. This
Section does not apply to reimbursement of expenses incurred in successfully
prosecuting or defending the rights of an indemnified representative granted by
or pursuant to this Article.
Section V.3 Advancing Expenses. The Company shall pay the expenses
(including attorneys' fees and disbursements) incurred in good faith by an
indemnified representative in advance of the final disposition of a proceeding
described in Section 5.1 or the initiation of or participation in which is
authorized pursuant to Section 5.2 upon receipt of an undertaking by or on
behalf of the indemnified representative to repay the amount if it is ultimately
determined that such person is not entitled to be indemnified by the Company
pursuant to this Article. The financial ability of an indemnified representative
to repay an advance shall not be a prerequisite to the making of such advance.
Section V.4 Payment of Indemnification. An indemnified representative shall
be entitled to indemnification within thirty (30) days after a written request
for indemnification has been delivered to the secretary of the Company.
Section V.5 Arbitration.
(a) Any dispute related to the right to indemnification, contribution
or advancement of expenses as provided under this Article, except with
respect to indemnification for liabilities arising under the Securities Act
of 1933, as amended, that the Company has undertaken to submit to a court
for adjudication, shall be decided only by arbitration in the metropolitan
area in which the principal executive offices of the Company are located at
the time, in accordance with the commercial arbitration rules then in
effect of the American Arbitration Association ("AAA"), before a panel of
three arbitrators, one of whom shall be
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selected by the Company, the second of whom shall be selected by the
Indemnified Representative and the third of whom shall be selected by the
other two arbitrators. In the absence of the AAA, or if for any reason
arbitration under the arbitration rules of the AAA cannot be initiated, and
if one of the parties fails or refuses to select an arbitrator or the
arbitrators selected by the Company and the Indemnified Representative
cannot agree on the selection of the third arbitrator within thirty (30)
days after such time as the Company and the Indemnified Representative have
each been notified of the selection of the other's arbitrator, the
necessary arbitrator or arbitrators shall be selected by the presiding
judge of the court of general jurisdiction in such metropolitan area.
(b) Each arbitrator selected as provided in this Section is required
to be or have been a manager, director or executive officer of a limited
liability company, corporation or other entity whose equity securities were
listed during at least one (1) year of such service on the New York Stock
Exchange or the American Stock Exchange or quoted on the National
Association of Securities Dealers Automated Quotations System.
(c) The party or parties challenging the right of an Indemnified
Representative to the benefits of this Article shall have the burden of
proof.
(d) The Company shall reimburse an Indemnified Representative for the
expenses (including attorneys' fees and disbursements) incurred in
successfully prosecuting or defending such arbitration.
(e) Any award entered by the arbitrators shall be final, binding and
nonappealable and judgment may be entered thereon by any party in
accordance with applicable law in any court of competent jurisdiction,
except that the Company shall be entitled to interpose as a defense in any
such judicial enforcement proceeding any prior final judicial determination
adverse to the indemnified representative under Section 5.1 in a proceeding
not directly involving indemnification under this Article. This arbitration
provision shall be specifically enforceable.
Section V.6 Contribution. If the indemnification provided for in this
Article or otherwise is unavailable for any reason in respect of any liability
or portion thereof, the Company shall contribute to the liabilities to which the
indemnified representative may be subject in such proportion as is appropriate
to reflect the intent of this Article or otherwise.
Section V.7 Mandatory Indemnification of Members and Managers. To the
extent that an indemnified representative of the Company has been successful on
the merits or otherwise in defense of any proceeding or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses
(including attorneys' fees and disbursements) actually and reasonably incurred
by such person in connection therewith.
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Section V.8 Contract Rights; Amendment or Repeal. All rights under this
Article shall be deemed a contract between the Company and the indemnified
representative pursuant to which the Company and each indemnified representative
intend to be legally bound. Any repeal, amendment or modification hereof shall
be prospective only and shall not affect any rights or obligations then
existing.
Section V.9 Scope of Article. The rights granted by this Article shall not
be deemed exclusive of any other rights to which those seeking indemnification,
contribution or advancement of expenses may be entitled under any statute,
agreement, vote of disinterested Members or disinterested Representatives,
Alternates, Managers or otherwise, both as to action in an indemnified capacity
and as to action in any other capacity. The indemnification, contribution and
advancement of expenses provided by or granted pursuant to this Article shall
continue as to a person who has ceased to be an indemnified representative in
respect of matters arising prior to such time, and shall inure to the benefit of
the heirs, executors, administrators, personal representatives, successors and
permitted assigns of such a person.
Section V.10 Reliance on Provisions. Each person who shall act as an
indemnified representative of the Company shall be deemed to be doing so in
reliance upon the rights of indemnification, contribution and advancement of
expenses provided by this Article.
ARTICLE VI
CAPITAL ACCOUNTS
Section VI.1 Definitions. For the purposes of this Operating Agreement,
unless the context otherwise requires:
(a) "Adjusted Capital Account" shall mean, for any Member, its Capital
Account balance maintained and adjusted as required by Treasury Regulation
Section 1.704-1(b)(2)(iv).
(b) "Capital Account" shall mean, with respect to a Member, such
Member's capital account established and maintained in accordance with the
provisions of Section 6.5.
(c) "Capital Contribution" means any contribution to the capital of
the Company in cash, property or expertise by a Member whenever made. A
loan by a Member of the Company shall not be considered a Capital
Contribution.
(d) "IRC" shall mean the Internal Revenue Code of 1986, as amended.
(e) "Membership Interest" means a Member's interest in the Company.
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(f) "Percentage Interest" means, with respect to any Member, the
Percentage Interest set forth opposite such Member's name on Schedule A
attached hereto, as amended from time to time to reflect transfers of
Membership Interests in accordance with this Operating Agreement.
(g) "Profits" and "Losses" mean, for each fiscal year, an amount equal
to the Company's taxable income or loss for such fiscal year, determined in
accordance with IRC ss.703(a). For the purpose of this definition, all
items of income, gain, loss or deduction required to be stated separately
pursuant to IRC ss.703(a)(1) shall be included in taxable income or loss
with the following adjustments:
(1) Any income of the Company that is exempt from federal income
tax and not otherwise taken into account in computing Profits or
Losses pursuant to this Section shall be added to such taxable income
or loss;
(2) Any expenditures of the Company described in IRC
ss.705(a)(2)(B) or treated as IRC ss.705(a)(2)(B) expenditures
pursuant to Treasury Regulation ss.1.704-1(b)(2)(iv)(i), and not
otherwise taken into account in computing Profits or Losses pursuant
to this Section shall be subtracted from such taxable income or loss.
(h) "Treasury Regulations" include proposed, temporary and final
regulations promulgated under the IRC in effect as of the date of this
Operating Agreement and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
Section VI.2 Determination of Tax Book Value of Company Assets.
(a) Except as set forth below, the "Tax Book Value" of any Company
asset is its adjusted basis for federal income tax purposes.
(b) The initial Tax Book Value of any assets contributed by a Member
to the Company shall be the agreed fair market value of such assets,
increased by the amount of liabilities of the contributing Member assumed
by the Company in connection with the contribution of such assets plus the
amount of any other liabilities to which such assets are subject.
(c) The Tax Book Values of all Company assets may be adjusted by the
Managers to equal their respective gross fair market values as of the
following times: (i) the admission of an additional Member to the Company
or the acquisition by an existing Member of an additional Membership
Interest; (ii) the distribution by the Company of money or property to a
withdrawing, retiring or continuing Member in consideration for the
retirement of all or a
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portion of such Member's Membership Interest; and (iii) the termination of
the Company for Federal income tax purposes pursuant to Section
708(b)(1)(B) of the IRC.
Section VI.3 Capital Contributions.
(a) The initial capital contributions to be made by the Members shall
be contributed in cash, property, services rendered, as a credit for
expenses incurred by such Member for the benefit of the Company or a
promissory note or other obligation to contribute cash or property or
perform services. The initial capital contribution of each Member will be
reflected in the books and records of the Company.
(b) No Member shall be obligated to make any capital contributions to
the Company in excess of its initial capital contribution.
(c) No Member shall be permitted to make any capital contributions to
the Company unless mutually agreed by BAM and CCIC Member.
Section VI.4 Liability for Contribution.
(a) A Member of the Company is obligated to the Company to perform any
promise to contribute cash or property or to perform services, even if the
Member is unable to perform because of death, disability or any other
reason. If a Member does not make the required contribution of property or
services, the Member is obligated at the option of the Company to
contribute cash equal to that portion of the agreed value (as stated in the
records of the Company) of the contribution that has not been made. The
foregoing option shall be in addition to, and not in lieu of, any other
rights, including the right to specific performance, that the Company may
have against such Member under applicable law.
(b) The obligation of a Member of the Company to make a contribution
or return money or other property paid or distributed in violation of the
Act may be compromised only by consent of all the Members. Notwithstanding
the compromise, a creditor of the Company who extends credit, after
entering into this Operating Agreement or an amendment hereof which, in
either case, reflects the obligation, and before the amendment hereof to
reflect the compromise, may enforce the original obligation to the extent
that, in extending credit, the creditor reasonably relied on the obligation
of a Member to make a contribution or return. A conditional obligation of a
Member to make a contribution or return money or other property to the
Company may not be enforced unless the conditions of the obligation have
been satisfied or waived as to or by such Member. Conditional obligations
include contributions payable upon a discretionary call of the Company
prior to the time the call occurs.
Section VI.5 Capital Accounts. A separate Capital Account will be
maintained for each Member. The initial Capital Accounts shall consist solely of
the initial capital contributed by the Members pursuant to Section 6.3. BAM's
Capital Account will be reduced immediately
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after the BAM Capital Distribution by the amount distributed to BAM (and the
Transferring Partnerships). BAM's Capital Account balance after the BAM Capital
Distribution will be reflected on the books and records of the Company.
Notwithstanding any other provision hereof, the Company shall determine and
adjust the Capital Accounts in accordance with the rules of Treasury Regulation
Section 1.704-1(b)(2)(iv). Except as otherwise required in the Act, no Member
shall have any liability to restore all or any portion of a deficit balance in
the Member's Capital Account.
Section VI.6 No Interest on or Return of Capital. No Member shall be
entitled to interest on any Capital Contribution or Capital Account. No Member
shall have the right to demand or receive the return of all or any part of any
Capital Contribution or Capital Account except as may be expressly provided
herein, and no Member shall be personally liable for the return of the Capital
Contributions of any other Member.
Section VI.7 Percentage Interest. The Percentage Interests of the Members
are as set forth on Schedule A. The Percentage Interests shall be updated by the
Managers to reflect any transfers of Membership Interests, set forth on a
revised Schedule A and filed with the records of the Company. The sum of the
Percentage Interests for all Members shall equal 100 percent.
Section VI.8 Allocations of Profits and Losses Generally. After the
allocations in Section 6.9, at the end of each year (or shorter period if
necessary or longer period if agreed by all of the Partners), Profits and Losses
shall be allocated as follows:
(a) Profits. Profits shall be allocated to the Members in proportion
to their respective Percentage Interests.
(b) Losses. Losses shall be allocated to the Members in proportion to
their respective Percentage Interests.
Section VI.9 Allocations Under Regulations.
(a) Company Nonrecourse Deductions. Loss attributable (under Treasury
Regulation Section 1.704-2(c)) to "partnership nonrecourse liabilities"
(within the meaning of Treasury Regulation Section 1.704-2(b)(1)) shall be
allocated among the Members in the same proportion as their respective
Percentage Interests.
(b) Member Nonrecourse Deductions. Loss attributable (under Treasury
Regulation Section 1.704-2(i)(2)) to "partner nonrecourse debt" (within the
meaning of Treasury Regulation Section 1.704-2(b)(4)) shall be allocated,
in accordance with Treasury Regulation Section 1.704- 2(i)(1), to the
Member who bears the economic risk of loss with respect to the debt to
which the Loss is attributable. The Members acknowledge that the
Anticipated Financing shall be treated as "partner nonrecourse debt."
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(c) Minimum Gain Chargeback. Each Member will be allocated Profits at
such times and in such amounts as necessary to satisfy the minimum gain
chargeback requirements of Treasury Regulation Sections 1.704-2(f) and
1.704-2(i)(4).
(d) Qualified Income Offset. Losses and items of income and gain shall
be specially allocated when and to the extent required to satisfy the
"qualified income offset" requirement within the meaning of Treasury
Regulation Section 1.704-1(b)(2)(ii)(d).
Section VI.10 Other Allocations.
(a) Allocations when Tax Book Value Differs from Tax Basis. When the
Tax Book Value of a Company asset is different from its adjusted tax basis
for income tax purposes, then, solely for federal, state and local income
tax purposes and not for purposes of computing Capital Accounts, income,
gain, loss, deduction and credit with respect to such assets ("Section
704(c) Assets") shall be allocated among the Members to take this
difference into account in accordance with the principles of IRC Section
704(c), as set forth herein and in the Treasury Regulations thereunder and
under IRC Section 704(b). Except to the extent otherwise required by final
Treasury Regulations, the calculation and allocations eliminating the
differences between Tax Book Value and adjusted tax basis of the Section
704(c) Assets shall be made on an asset-by-asset basis without curative or
remedial allocations to overcome the "ceiling rule" of Treasury Regulation
Section l.704-1(c)(2) and Treasury Regulation Section 1.704-3(b)(1).
(b) Change in Member's Interest.
(1) If during any fiscal year of the Company there is a change in
any Member's Membership Interest, then for purposes of complying with
IRC Section 706(d), the determination of Company items allocable to
any period shall be made by using any method permissible under IRC
Section 706(d) and the Regulations thereunder as may be determined by
the Managers.
(2) The Members agree to be bound by the provisions of this
Section 6.10(b) in reporting their shares of Company income, gain,
loss, and deduction for tax purposes.
(c) Allocations on Liquidation. Notwithstanding any other provision of
this Article VI to the contrary, in the taxable year in which there is a
liquidation of the Company, after the allocations in Sections 6.8 and 6.9
hereof, the Capital Accounts of the Members will, to the extent possible,
be brought to the amount of the liquidating distributions to be made to
them under Section 9.5 hereof by allocations of items of profit and loss
and, if necessary, by guaranteed payments (within the meaning of Code
Section 707(c)) credited to the Capital Account of a Member whose Capital
Account is less than the amount to be distributed to it and
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debited from the Capital Account of the Member whose Capital Account is
greater than the amount to be distributed to it.
Section VI.11 Limitations Upon Liability of Members. Except as otherwise
expressly and specifically provided in or required by the Certificate or this
Operating Agreement, the personal liability of each Member to the Company, to
the other Members, to the creditors of the Company or any third party for the
losses, debts or liabilities of the Company shall be limited to the amount of
its Capital Contribution which has not theretofore been returned to it as a
distribution (including a distribution upon liquidation). For purposes of the
foregoing sentence, distributions to a Member shall first be deemed a return of
its Capital Contribution. No Member shall at any time be liable or held
accountable to the Company, to the other Members, to the creditors of the
Company or to any other third party for or on account of any negative balance in
its Capital Account.
ARTICLE VII
DISTRIBUTIONS
Section VII.1 Net Cash From Operations and Distributions.
(a) Except as otherwise provided in this Operating Agreement
including, without limitation, in Section 3.8 hereof, and subject to any
restrictions contained in any credit or other agreements to which the
Company is a party, Net Cash From Operations, if any, shall be determined
annually by the Managers and distributed for each fiscal year to the
Members in accordance with their Percentage Interests.
(b) For purposes of this Operating Agreement, "Net Cash From
Operations" means the gross cash proceeds from Company operations less the
portion thereof used to, or expected to be used to, pay expenses, debt
payments, capital improvements, replacements and increases to reserves
therefor. "Net Cash From Operations" shall not be reduced by depreciation,
amortization, cost recovery deductions or similar allowances, but shall be
increased by any reductions to reserves previously established.
Section VII.2 Limitations on Distributions.
(a) The Company shall not make a distribution to a Member to the
extent that at the time of the distribution, after giving effect to the
distribution, all liabilities of the Company, other than liabilities to
Members on account of their interests in the Company and liabilities for
which the recourse of creditors is limited to specified property of the
Company, exceed the fair value of the assets of the Company, except that
the fair value of property that is subject to a liability for which the
recourse of creditors is limited shall be included in the assets of the
Company only to the extent that the fair value of that property exceeds
that liability.
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(b) A Member who receives a distribution in violation of subsection
(a), and who knew at the time of the distribution that the distribution
violated this section, shall be liable to the Company for the amount of the
distribution. A Member who receives a distribution in violation of this
section, and who did not know at the time of the distribution that the
distribution violated this section, shall not be liable for the amount of
the distribution. Subject to subsection (c), this subsection shall not
affect any obligation or liability of a Member under other applicable law
for the amount of a distribution.
(c) A Member who receives a distribution from the Company shall have
no liability under this Section, the Act or other applicable law for the
amount of the distribution after the expiration of three (3) years from the
date of the distribution unless an action to recover the distribution from
such Member is commenced prior to the expiration of the said three (3)-year
period and an adjudication of liability against such Member is made in the
action.
Section VII.3 Amounts of Tax Paid or Withheld. All amounts paid or withheld
pursuant to the IRC or any provision of any state or local tax law with respect
to any Member shall be treated as amounts distributed to the Member pursuant to
this Article for all purposes under this Operating Agreement.
Section VII.4 Distribution in Kind. The Company shall not distribute any
assets in kind, except pursuant to a dissolution in accordance with Article IX.
ARTICLE VIII
TRANSFERABILITY
Section VIII.1 Restriction on Transfers by CCIC Member. Without the prior
written consent of BAM, CCIC Member shall not have the right, directly or
indirectly, to sell, assign, transfer, pledge, hypothecate, mortgage or dispose
of, by gift or otherwise, or in any way encumber, any interest in the Company
held by CCIC Member (the "CCIC HoldCo Interest") unless either (a) the transfer
is made to an entity of which CCIC or CCIC Member owns directly or indirectly
all of the voting power of the outstanding capital stock (provided that (x) such
entity executes an instrument reasonably satisfactory in form and substance to
BAM pursuant to which it agrees to be bound hereby and (y) CCIC (or its
successor by merger) shall not thereafter at any time cease to own directly or
indirectly less than all of the voting power of the outstanding capital stock of
such entity), or (b) CCIC Member has complied with the procedures described in
this Article VIII and (i) the transfer is made subject to the right of first
refusal described in Section 8.3 hereof, and (ii) to the extent BAM does not
exercise its right of first refusal described in Section 8.3 hereof, the
transfer is made subject to the right of participation in sales described in
Section 8.5(a) hereof. For purposes of the foregoing, CCIC Member shall not be
deemed to have indirectly transferred any of the CCIC HoldCo Interest if CCIC or
any other parent corporation of CCIC Member is a party to any merger or
consolidation transaction, whether or
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not such parent corporation is the surviving entity in such merger. Any
purported transfer of the CCIC HoldCo Interest in violation of this Section 8.1
shall be void.
Section VIII.2 Restriction on Transfers by BAM. Without the prior written
consent of CCIC Member, BAM shall not have the right, directly or indirectly, to
sell, assign, transfer, pledge, hypothecate, mortgage or dispose of, by gift or
otherwise, or in any way encumber, any of the interest in the Company held by
BAM (the "BAM HoldCo Interest") unless either (a) the transfer is made to any
entity of which either Xxxx Atlantic Corporation or BAM owns directly or
indirectly all of the voting power of the outstanding capital stock (provided
that (x) such entity executes an instrument reasonably satisfactory in form and
substance to CCIC Member pursuant to which it agrees to be bound hereby and (y)
Xxxx Atlantic Corporation or BAM (or the successor by merger to either) shall
not thereafter at any time cease to own directly or indirectly less than all of
the voting power of the outstanding capital stock of such entity), or (b) BAM
has complied with the procedures described in this Article VIII and (i) the
transfer is made subject to the right of first refusal described in Section 8.4
hereof or (ii) to the extent CCIC Member does not exercise its right of first
refusal described in Section 8.4 hereof, the transfer is made subject to the
right of participation in sales described in Section 8.5(b) hereof. For purposes
of the foregoing, BAM shall not be deemed to have indirectly transferred any of
the BAM HoldCo Interest if Xxxx Atlantic Corporation or any other parent
corporation of BAM is a party to any merger or consolidation transaction,
whether or not such parent corporation is the surviving entity in such merger.
Any purported transfer of the BAM HoldCo Interest in violation of this Section
8.2 shall be void.
Section VIII.3 BAM Right of First Refusal of Transfer.
(a) If at any time CCIC Member wishes to sell all or any part of the
CCIC HoldCo Interest, CCIC Member shall submit a written offer to sell such
CCIC HoldCo Interest to BAM on terms and conditions, including price, not
less favorable to BAM than those on which CCIC Member proposes to sell the
CCIC HoldCo Interest to any other purchaser (the "CCIC Offer"). The CCIC
Offer shall disclose the identity of the proposed purchaser or transferee,
the percentage of the CCIC HoldCo Interest to be sold, the terms of the
sale, any amounts owed to CCIC Member with respect to the CCIC HoldCo
Interest and any other material facts relating to the sale. BAM shall
respond to the CCIC Offer as soon as practicable after receipt thereof, and
in all events within thirty (30) days after receipt thereof. The CCIC Offer
may be revoked at any time. BAM shall have the right to accept the CCIC
Offer as to all (but not less than all) of the CCIC HoldCo Interest offered
thereby. In the event that BAM shall elect on a timely basis to purchase
all (but not less than all) of the CCIC HoldCo Interest covered by the CCIC
Offer, BAM shall communicate in writing such election to purchase to CCIC
Member, which communication shall be delivered by hand or mailed to CCIC
Member at the address set forth in Schedule A hereto and shall, when taken
in conjunction with the CCIC Offer, be deemed to constitute a valid,
legally binding and enforceable agreement for the sale and purchase of the
CCIC HoldCo Interest covered thereby; provided, however, that CCIC Member
may elect in its sole discretion to terminate such agreement at any time
prior to the closing of such sale and
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purchase, in which case such CCIC HoldCo Interest shall again become
subject to the requirements of a prior offer pursuant to this Section. In
the event CCIC Member terminates any such agreement prior to closing, CCIC
Member shall be prohibited from consummating a transaction for the sale and
purchase of the CCIC HoldCo Interest with the proposed purchaser or
transferee for two (2) years from the date of such termination, and shall
be prohibited from consummating a transaction for the sale and purchase of
the CCIC HoldCo Interest with any other party for six (6) months from the
date of such termination. In the event that any CCIC Offer includes any
non-cash consideration, BAM may in its sole discretion elect to pay a cash
amount equal to the fair market value of such non-cash consideration in
lieu of such non-cash consideration. The closing of the sale and purchase
contemplated by any agreement for the sale and purchase of any portion of
the CCIC HoldCo Interest entered into between BAM and CCIC Member pursuant
to this Section 8.3 shall be consummated within sixty (60) days after the
date that such agreement becomes valid, legally binding and enforceable as
aforesaid, subject to extension to the extent necessary to secure required
approvals or consents from Governmental Authorities. Each of BAM and CCIC
Member hereby agrees to use its reasonable best efforts to obtain such
required approvals or consents from Governmental Authorities.
(b) In the event that BAM does not purchase the CCIC HoldCo Interest
offered by CCIC Member pursuant to the CCIC Offer, such CCIC HoldCo
Interest not so purchased may be sold by CCIC Member at any time within
ninety (90) days after the expiration of the CCIC Offer, subject to the
provisions of Section 8.5 below. Any such sale shall be to the same
proposed purchaser or transferee, at not less than the price and upon other
terms and conditions, if any, not more favorable to the purchaser than
those specified in the CCIC Offer. If such CCIC HoldCo Interest is not sold
within such ninety (90)-day period, it shall again become subject to the
requirements of a prior offer pursuant to this Section 8.3. In the event
that such CCIC HoldCo Interest is sold pursuant to this Section 8.3 to any
purchaser other than BAM, such CCIC HoldCo Interest shall continue to be
subject to the restrictions imposed by this Operating Agreement and Section
9.3 of the Formation Agreement with the same effect as though such
purchaser were CCIC Member for purposes of this Section.
Section VIII.4 CCIC Member's Right of First Refusal of Transfer.
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(a) If at any time BAM wishes to sell all or any part of the BAM
HoldCo Interest, BAM shall submit a written offer to sell such BAM HoldCo
Interest to CCIC Member on terms and conditions, including price, not less
favorable to CCIC Member than those on which BAM proposes to sell the BAM
HoldCo Interest to any other purchaser (the "BAM Offer"). The BAM Offer
shall disclose the identity of the proposed purchaser or transferee, the
percentage of the BAM HoldCo Interest to be sold, the terms of the sale,
any amounts owed to BAM with respect to the BAM HoldCo Interest and any
other material facts relating to the sale. CCIC Member shall respond to the
BAM Offer as soon as practicable after receipt thereof, and in all events
within thirty (30) days after receipt thereof. The BAM Offer may be revoked
at any time. CCIC Member shall have the right to accept the BAM Offer as to
all (but not less than all) of the BAM HoldCo Interest offered thereby. In
the event that CCIC Member elects on a timely basis to purchase all (but
not less than all) of the BAM HoldCo Interest covered by the BAM Offer,
CCIC Member shall communicate in writing such election to purchase to BAM,
which communication shall be delivered by hand or mailed to BAM at the
address set forth in Schedule A hereto and shall, when taken in conjunction
with the BAM Offer, be deemed to constitute a valid, legally binding and
enforceable agreement for the sale and purchase of the BAM HoldCo Interest
covered thereby; provided, however, that BAM may elect in its sole
discretion to terminate such agreement at any time prior to the closing of
such sale and purchase, in which case such BAM HoldCo Interest shall again
become subject to the requirements of a prior offer pursuant to this
Section. In the event BAM terminates any such agreement prior to closing,
BAM shall be prohibited from consummating a transaction for the sale and
purchase of the BAM HoldCo Interest with the proposed purchaser or
transferee for two (2) years from the date of such termination, and shall
be prohibited from consummating a transaction for the sale and purchase of
the BAM HoldCo Interest with any other party for six (6) months from the
date of such termination. In the event that any BAM Offer includes any
non-cash consideration, CCIC Member may in its sole discretion elect to pay
a cash amount equal to the fair market value of such non-cash consideration
in lieu of such non-cash consideration. The closing of the sale and
purchase contemplated by any agreement for the sale and purchase of any
portion of the BAM HoldCo Interest entered into between BAM and CCIC Member
pursuant to this Section 8.4 shall be consummated within sixty (60) days
after the date that such agreement becomes valid, legally binding and
enforceable as aforesaid, subject to extension to the extent necessary to
secure required approvals or consents from Governmental Authorities. Each
of BAM and CCIC Member hereby agrees to use its reasonable best efforts to
obtain such required approvals or consents from Governmental Authorities.
(b) In the event that CCIC Member does not purchase the BAM HoldCo
Interest offered by BAM pursuant to the BAM Offer, such BAM HoldCo Interest
not so purchased may be sold by BAM at any time within ninety (90) days
after the expiration of the BAM Offer, subject to the provisions of Section
8.5 below. Any such sale shall be to the same proposed purchaser or
transferee, at not less than the price and upon other terms and conditions,
if any, not more favorable to the purchaser than those specified in the BAM
Offer. If such BAM HoldCo Interest is not sold within such ninety (90)-day
period, such BAM HoldCo Interest shall continue to be subject to the
requirements of a prior offer pursuant to this Section. In the event
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that such BAM HoldCo Interest is sold pursuant to this Section to any
purchaser other than CCIC Member, such portion of the BAM HoldCo Interest
shall continue to be subject to the restrictions imposed by this Operating
Agreement and Section 9.4 of the Formation Agreement with the same effect
as though such purchaser were BAM for purposes of such Section.
Section VIII.5 Right of Participation in Sales.
(a) If at any time CCIC Member wishes to sell all or any portion of
the CCIC HoldCo Interest to any person or entity other than BAM or any
Affiliate of CCIC Member (the "CCIC HoldCo Interest Purchaser"), BAM shall
have the right to offer for sale to the CCIC HoldCo Interest Purchaser, as
a condition of such sale by CCIC Member, at the same price and on the same
terms and conditions as involved in such sale by CCIC Member, the same
proportion of the BAM HoldCo Interest as the proposed sale represents with
respect to the CCIC HoldCo Interest. BAM shall notify CCIC Member of such
intention as soon as practicable after receipt of the CCIC Offer made
pursuant to Section 8.3, and in all events within thirty (30) days after
receipt thereof. In the event that BAM elects to participate in such sale
by CCIC Member, BAM shall communicate such election to CCIC Member, which
communication shall be delivered in accordance with Section 11.5. CCIC
Member and BAM shall sell to the CCIC HoldCo Interest Purchaser the CCIC
HoldCo Interest proposed to be sold by CCIC Member and the BAM HoldCo
Interest proposed to be sold by BAM, at not less than the price and upon
other terms and conditions, if any, not more favorable to the CCIC HoldCo
Interest Purchaser than those in the CCIC Offer provided by CCIC Member
under Section 8.3 above; provided, however, that any purchase of less than
all of the CCIC HoldCo Interest and the BAM HoldCo Interest by the CCIC
HoldCo Interest Purchaser shall be made from CCIC Member and BAM pro rata
based upon the amount offered to be sold by each. Any portion of the CCIC
HoldCo Interest and the BAM HoldCo Interest sold pursuant to this Section
8.5(a) shall no longer be subject to the restrictions imposed by Sections
8.3 or 8.4 of this Operating Agreement or entitled to the benefit of this
Section 8.5(a).
(b) If at any time BAM wishes to sell all or any portion of the BAM
HoldCo Interest to any person or entity other than CCIC Member or Xxxx
Atlantic Corporation or any other Affiliate of BAM (the "BAM HoldCo
Interest Purchaser"), CCIC Member shall have the right to offer for sale to
the BAM HoldCo Interest Purchaser, as a condition of such sale by BAM, at
the same price and on the same terms and conditions as involved in such
sale by BAM, the same proportion of the CCIC HoldCo Interest as the
proposed sale represents with respect to the BAM HoldCo Interest. CCIC
Member shall notify BAM of such intention as soon as practicable after
receipt of the BAM Offer made pursuant to Section 8.4, and in all events
within thirty (30) days after receipt thereof. In the event that CCIC
Member elects to participate in such sale by BAM, CCIC Member shall
communicate such election to BAM, which communication shall be delivered in
accordance with Section 11.5. BAM and CCIC Member shall sell to the BAM
HoldCo Interest Purchaser the BAM HoldCo Interest proposed to be sold by
BAM and the CCIC HoldCo Interest proposed to be sold by CCIC Member, at not
less than the price and upon other terms and conditions, if any, not more
favorable to the BAM HoldCo Interest Purchaser
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than those in the BAM Offer provided by BAM under Section 8.4 above;
provided, however, that any purchase of less than all of the BAM HoldCo
Interest and the CCIC HoldCo Interest by the BAM HoldCo Interest Purchaser
shall be made from BAM and CCIC Member pro rata based upon the amount
offered to be sold by each. Any portion of the BAM HoldCo Interest and the
CCIC HoldCo Interest sold pursuant to this Section 8.5(b) shall no longer
be subject to the restrictions imposed by Sections 8.3 or 8.4 or entitled
to the benefit of this Section 8.5(b).
Section VIII.6 Effect of Transfer.
(a In addition to satisfaction of Section 4.1 and the above provisions
of this Article VIII, no assignee or transferee of all or part of a
Membership Interest in the Company shall have the right to become admitted
as a Member, unless and until:
(1 the assignee or transferee has executed an instrument
reasonably satisfactory to the Managers accepting and adopting
the provisions of this Operating Agreement;
(2 the assignee or transferee has paid all reasonable
expenses of the Company requested to be paid by the Managers in
connection with the admission of such assignee or transferee as a
Member; and
(3 such assignment or transfer shall be reflected in a
revised Schedule A to this Operating Agreement.
(b A person who is a permitted assignee of an interest in the Company
transferred in compliance with the provisions of this Article VIII shall be
admitted to the Company as a Member and shall receive an interest in the
Company without making a contribution or being obligated to make a
contribution to the Company.
Section VIII.7 No Resignation of Members. A Member may not withdraw or
resign from the Company prior to dissolution or winding up of the Company. If a
Member is a corporation, trust or other entity and is dissolved or terminated,
the powers of that Member may be exercised by its legal representative or
successor.
ARTICLE IX
DISSOLUTION AND TERMINATION
Section IX.1 Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events:
(a By the written consent of both BAM and CCIC Member;
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(b Upon the entry of a decree of judicial dissolution under ss. 18-802
of the Act;
(c Upon the unilateral election by BAM, exercisable at any time after
the third anniversary of the Effective Date of this Agreement by BAM giving
written notice thereof to CCIC Member; or
(d Upon the unilateral election by CCIC Member, exercisable at any
time after the fourth anniversary of the Effective Date of this Agreement
by CCIC Member giving written notice thereof to BAM.
Section IX.2 Events of Bankruptcy of Member. The occurrence of any of the
events set forth in this Section 9.2, with respect to any Member, shall not
result in the dissolution of the Company. Such Member shall cease to be a Member
of the Company, but shall, however, retain its interest in allocations and
distributions, upon the happening of any of the following bankruptcy events:
(a) A Member takes any of the following actions:
(1) Makes an assignment for the benefit of creditors.
(2) Files a voluntary petition in bankruptcy.
(3) Is adjudged a bankrupt or insolvent, or has entered against
the Member an order for relief, in any bankruptcy or insolvency
proceeding.
(4) Files a petition or answer seeking for the Member any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation.
(5) Files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against the
Member in any proceeding of this nature.
(6) Seeks, consents to or acquiesces in the appointment of a
trustee, receiver or liquidator of the Member or of all or any
substantial part of the properties of the Member.
(b) one hundred twenty (120) days after the commencement of any
proceeding against the Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation, if the proceeding has not been dismissed,
or if within ninety (90) days after the appointment without the consent or
acquiescence of the Member, of a trustee, receiver or liquidator of the
Member or of all or any
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substantial part of the properties of the Member, the appointment is not
vacated or stayed, or within ninety (90) days after the expiration of any
such stay, the appointment is not vacated.
Section IX.3 Judicial Dissolution. On application by or for a Member or a
Manager, a court may decree dissolution of the Company whenever it is not
reasonably practicable to carry on the business in conformity with this
Operating Agreement.
Section IX.4 Winding Up.
(a The Managers shall wind up the affairs of the Company or may
appoint any person or entity, including a Member, who has not wrongfully
dissolved the Company, to do so (the "Liquidating Trustee").
(b Upon dissolution of the Company and until the filing of a
certificate of cancellation as provided in Section 9.6, the persons winding
up the affairs of the Company may, in the name of, and for and on behalf
of, the Company, prosecute and defend suits, whether civil, criminal or
administrative, gradually settle and close the business of the Company,
dispose of and convey the property of the Company, discharge or make
reasonable provision for the liabilities of the Company, and distribute to
the Members any remaining assets of the Company, all without affecting the
liability of Members and Managers and without imposing liability on a
Liquidating Trustee.
Section IX.5 Distribution of Assets.
(a In the event of any dissolution of the Company, upon the winding up
of the Company, its assets shall be distributed as follows:
(1 First, to creditors, including Members and Managers who are
creditors, to the extent otherwise permitted by law, in satisfaction
of liabilities of the Company (whether by payment or the making of
reasonable provision for payment thereof) other than liabilities for
which reasonable provision for payment has been made;
(2 Next, (i) the CCIC Contributed Shares, including all changes
in the CCIC Contributed Shares by reason of dividends payable in stock
of CCIC, distributions, issuance of stock, stock splits,
recapitalizations, reorganizations, mergers, consolidations,
combinations, exchanges or other similar changes with regard to CCIC
Common Stock occurring following the Effective Date, and together with
all cash, securities (and rights and interests therein) and other
property received or receivable with respect to the CCIC Contributed
Shares shall be distributed to BAM and (ii) subject to the condition
that CCIC Member makes the payment required under the following
subsection (b), the one hundred percent (100%) percentage membership
interest in HoldCo Sub held by the Company shall be distributed
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to CCIC Member; provided, however, (iii) that in the event that (x)
the value of the CCIC Contributed Shares at the date of dissolution of
the Company exceeds (y) the value of the CCIC Contributed Shares on
the Closing Date compounded to the date of dissolution of the Company
at twenty percent (20%) per annum (the excess of (x) over (y) is
referred to as the "Excess Return" herein), then at CCIC Member's
election, CCIC Member shall be entitled to ten percent (10%) of the
Excess Return, to be provided to CCIC Member as a cash distribution of
the net proceeds of the sale of a number of the CCIC Contributed
Shares equal in value to ten percent (10%) of the Excess Return; with
such election to be made as part of CCIC Member's election pursuant to
Section 9.1(d) or within ten (10) days of receipt of BAM's election
pursuant to Section 9.1(c); and
(3 Then, to the Members in proportion to their Percentage
Interests.
(b) In consideration of the distribution to CCIC Member of the HoldCo
Sub membership interest, CCIC Member shall make a payment to BAM in an
amount equal to the Allocated Share of the Fair Market Value of such
membership interest in HoldCo Sub, which reflects the underlying value of
the assets held by each of HoldCo and OpCo; provided, however, that in the
event that CCIC Member makes the election set forth in Section
9.5(a)(2)(iii), then (x) "nineteen percent (19.0%)" shall be substituted
for "fourteen percent (14.0%)" in subsection (i) of the definition of
"Allocated Share" in Section 1.1; and (y) the determination of "Allocated
Share" pursuant to subsection (ii) of such definition shall be performed
appropriately taking into account the substitution described in (x) above.
At the option of CCIC Member, such payment shall be made either (i) in cash
or (ii) in shares of CCIC Common Stock, with the number of shares of CCIC
Common Stock determined by dividing the Allocated Share by the average
trading price of CCIC Common Stock in the sixty (60) trading days preceding
payment. For purposes of this Section, "Fair Market Value" of the HoldCo
Sub membership interest shall be calculated as follows: (i) BAM and CCIC
Member shall negotiate in good faith to determine Fair Market Value and
(ii) if BAM and CCIC Member fail to agree on Fair Market Value within
thirty (30) days after such trigger event, the Fair Market Value of the
HoldCo Sub membership interest shall be determined pursuant to the
appraisal process described below:
(1) Not later than five (5) days after the expiration of the
period during which BAM and CCIC Member are to negotiate in good faith
to determine the Fair Market Value, BAM and CCIC Member shall each
select an appraiser (which may or may not be a Qualified Investment
Banking Firm (as hereinafter defined)) and shall give the other party
notice of such selection. Each of such appraisers (the "Original
Appraisers") shall determine the fair market value of the HoldCo Sub
membership interest at the time such appraiser renders its written
appraisal.
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(2) Each Original Appraiser shall deliver its written appraisal
to the party retaining such Original Appraiser within twenty (20) days
following the date of the selection of both Original Appraisers. Such
written appraisals shall be exchanged by BAM and CCIC Member at the
offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, or such other place as the
parties shall designate, at 10:00 a.m. local time on the twenty-first
(21st) day following the date of the selection of both Original
Appraisers. In the event that the Original Appraisers agree on the
fair market value, the Fair Market Value shall be such agreed-upon
amount. In the event that the Original Appraisers do not agree on the
fair market value, (i) if the higher of the two valuations is not more
than one hundred ten percent (110%) of the lower valuation of the
Original Appraisers, the Fair Market Value shall be the mean of the
two valuations, and (ii) if the higher of the two valuations is
greater than one hundred ten percent (110%) of the lower valuation,
the Original Appraisers shall elect a Qualified Investment Banking
Firm which shall independently calculate the fair market value within
fifteen (15) days of such election. If the Original Appraisers cannot
agree upon a third appraiser within five (5) days following the end of
the twenty (20) day period referred to above, then the third appraiser
shall be a Qualified Investment Banking Firm appointed by the AAA.
Neither BAM nor CCIC Member nor either of the Original Appraisers
shall provide the third appraiser, directly or indirectly, with a copy
of the written appraisal of either of the Original Appraisers, an oral
or written summary thereof, or the valuation determined by either of
the Original Appraisers, either orally or in writing. The valuation of
the third appraiser will be compared with the two valuations of the
Original Appraisers, and the valuation farthest from the third
valuation will be disregarded. The Fair Market Value shall be the mean
of the two remaining valuations.
(3) BAM and CCIC Member shall give to the Original Appraisers and
the third appraiser, and shall cause HoldCo Sub and OpCo to give to
the appraisers, free and full access to and the right to inspect,
during normal business hours, all of the premises, properties, assets,
records, contracts and other documents relating to HoldCo Sub and OpCo
and shall permit them and cause HoldCo Sub and OpCo to permit them to
consult with the officers, employees, accountants, counsel and agents
of HoldCo Sub, OpCo, BAM and CCIC Member for the purpose of making
such investigation of HoldCo Sub and OpCo as they shall desire to
make. Furthermore, BAM and CCIC Member shall furnish to the Original
Appraisers and the third appraiser, and shall cause HoldCo Sub and
OpCo to furnish to such appraisers, all such documents and copies of
documents and records and information with respect to the affairs of
HoldCo Sub and OpCo and copies of any working papers relating thereto
as they shall from time to time reasonably request.
(4) "Qualified Investment Banking Firm" means any firm engaged in
providing corporate finance, merger and acquisition, and business
valuation services and deriving revenues therefrom (excluding any
revenues derived from merchant banking activities) of at least $25
million during its last completed fiscal year, but excluding, however,
any firms which received more than $250,000 in fees during the
preceding twenty-four (24) calendar months from BAM or CCIC Member or
their respective affiliates and any firms selected by BAM or CCIC
Member as an Original Appraiser.
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(c) The Company following dissolution shall pay or make reasonable
provision to pay all claims and obligations, including all contingent,
conditional or unmatured claims and obligations, known to the Company and
all claims and obligations which are known to the Company but for which the
identity of the claimant is unknown. If there are sufficient assets, such
claims and obligations shall be paid in full and any such provision for
payment made shall be made in full. If there are insufficient assets, such
claims and obligations shall be paid or provided for according to their
priority and, among claims and obligations of equal priority, ratably to
the extent of assets available therefor. Any remaining assets shall be
distributed as provided in subsection (a). Any Liquidating Trustee winding
up the affairs of the Company who has complied with this Section shall not
be personally liable to the claimants of the dissolved Company by reason of
such person's actions in winding up the Company.
Section IX.6 Cancellation of Certificate. The Certificate of the Company
shall be canceled upon the dissolution and the completion of winding up of the
Company.
ARTICLE X
BOOKS; REPORTS TO MEMBERS; TAX ELECTIONS
Section X.1 Books and Records.
(a The Managers shall maintain separate books of account for the
Company which shall show a true and accurate record of all costs and
expenses incurred, all charges made, all credits made and received and all
income derived in connection with the conduct of the Company and the
operation of its business, and, to the extent inconsistent therewith, in
accordance with this Operating Agreement.
(b Except as and until otherwise required by the IRC, the books of the
Company shall be kept in accordance with the accrual method of accounting.
(c Each Member of the Company has the right to obtain from the Company
from time to time upon demand for any purpose reasonably related to the
Member's interest as a Member of the Company:
(1) True and full information regarding the status of the
business and financial condition of the Company.
(2) Promptly after they become available, a copy of the federal,
state and local income tax returns for each year of the Company.
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(3) A current list of the name and last known business, residence
or mailing address of each Member and Manager.
(4) A copy of this Operating Agreement, the Certificate and all
amendments thereto.
(5) Any information or report deemed necessary by either BAM or
CCIC Member in order to prepare Securities and Exchange Commission
filing documents, financial statements or tax returns.
(6) Other information regarding the affairs of the Company as is
just and reasonable.
(d Each Manager shall have the right to examine all of the information
described in subsection (c) of this Section for a purpose reasonably
related to its position as a Manager.
Section X.2 Tax Information. Within ninety (90) days after the end of each
fiscal year, the Company shall supply to each Member all information necessary
and appropriate to be included in each Member's income tax returns for that
year.
Section X.3 Business Plans. On or before November 30 of each year, the
Managers of the Company shall, in consultation with BAM, develop a business plan
and budget for the Company (including HoldCo Sub and OpCo) (the "Business Plan")
for the following calendar year of HoldCo (and HoldCo Sub and OpCo). The
Business Plan for the period between the Effective Date and December 31, 1999 is
attached hereto as Schedule D. Each subsequent Business Plan shall be submitted
to the Members for review and, subject to the second following sentence,
comment, and shall be adopted only with the mutual consent of BAM and CCIC
Member. The Company shall use commercially reasonable efforts to, and cause each
of HoldCo Sub and OpCo to, conduct their respective businesses in accordance
with the then current Business Plan.
If by the first date of any year the proposed Business Plan for that year has
not been adopted, the Business Plan for such year shall be deemed to be the
expense portion of the Business Plan in effect for the preceding year increased,
at the discretion of CCIC Member, to an amount not to exceed the sum of:
(a) the average operating cost per communications tower owned by OpCo
(or of which it has the economic benefit) (the "OpCo Towers") based on the
most recent quarterly financial statements available as of the first day of
the current year multiplied by fifty percent (50%) of the sum of (i) the
aggregate number of OpCo Towers constructed, completed or otherwise
acquired in the course of the prior year and (ii) the aggregate number of
OpCo Towers projected to be constructed,
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completed or otherwise acquired in the current year in the Business Plan
for the prior year; and
(b) the sum of (x) with respect to all contractual price increases
with respect to contracts and agreements to which OpCo is a party and all
increases in Taxes with respect to OpCo Towers, the amount of such increase
and (y) with respect to all other expense items in the previous year's
budget, (A) the amount of such expenses multiplied by (B) the sum of one
(1) plus an amount equal to the percentage increase in the CPI during the
previous year.
If BAM and CCIC Member are unable to mutually agree on the Business Plan for the
year commencing January 1, 2000, the Business Plan for such year shall be deemed
to be the quotient of (a) the expense portion of the initial Business Plan for
the period ending December 31, 1999, increased as contemplated by the foregoing
sentence, multiplied by three hundred sixty-five (365) (b) divided by the number
of days elapsed between the Effective Date and December 31, 1999 (including both
the Effective Date and December 31, 1999).
Notwithstanding the foregoing, each Business Plan that is implemented pursuant
to the foregoing two paragraphs of this Section 10.3 because BAM and CCIC Member
are unable to mutually agree on the Business Plan must provide for the payment
by OpCo, prior to the allocation of revenues pursuant to such two paragraphs,
of: (i) any and all costs, expenses or payments reasonably necessary to fulfill
OpCo's obligations under the Global Lease; (ii) any and all costs, expenses or
payments reasonably necessary to fulfill OpCo's obligations under the
Build-to-Suit Agreement; (iii) any and all taxes of any kind due and owing by
OpCo; (iv) any payments or expenditures required under any lease of real estate,
grant of easement, right of way or similar agreement to which OpCo is a party;
(v) any and all costs, expenses or payments reasonably necessary to fulfill
OpCo's obligations under any lease or sublease of tower space or real estate to
any third party; (vi) insurance premiums (including without limitation, any
payments pursuant to premium financing) and/or deductibles of OpCo; (vii)
payments to third parties for equipment or any other goods and services required
to perform OpCo's obligations under existing agreements including, without
limitation, payments required to satisfy any mechanics's liens; (viii) salaries,
commissions, compensation, benefits, and payments or obligations of a similar
nature; and (ix) any and all costs, expenses and payments required to comply
with, or payable pursuant to any applicable laws, rule, regulations, ordinances,
permits or licenses. Further, any such Business Plan may have the effect of
reducing amounts payable under the Management Agreement so long as the
Anticipated Financing remains outstanding.
Section X.4 Reports. The Company shall cause to be prepared, and each
Member furnished with, financial statements accompanied by a report thereon of
the Company's accountants stating that such statements are prepared and fairly
stated in all material respects in accordance with generally accepted accounting
principles, and, to the extent inconsistent therewith, in accordance with this
Operating Agreement, including the following:
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(a) within thirty (30) days of the end of each month, the Company
shall deliver to BAM and CCIC Member an unaudited income statement and
schedule as to the sources and application of funds for such month and an
unaudited balance sheet of the Company as of the end of such month, in
reasonable detail and prepared in accordance with GAAP (except as permitted
by Form 10-Q under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), together with an analysis by management of the Company's
financial condition and results of operations during such period and
explanation by management of any differences between such condition or
results and the budget and business plan for such period;
(b) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of the Company, a consolidated income
statement for such fiscal year, a consolidated balance sheet of the Company
as of the end of such year, a schedule as to the cash flow and a statement
of the Members' Capital Accounts, changes thereto for such fiscal year and
Percentage Interests at the end of such year, such year-end financial
reports to be in reasonable detail, prepared in accordance with GAAP and
audited and certified by the Company's independent public accountants;
(c) as soon as practicable, but in any event within thirty (30) days
after the end of each of the first three (3) quarters of each fiscal year
of the Company, an unaudited consolidated profit or loss statement and
schedule as to consolidated cash flow for such fiscal quarter and an
unaudited consolidated balance sheet of the Company as of the end of such
fiscal quarter, in reasonable detail and prepared in accordance with GAAP
(except as permitted by Form 10-Q under the Exchange Act); and
(d) such other information relating to the financial condition,
business, prospects or limited liability company affairs of the Company as
any Member may from time to time reasonably request.
Section X.5 Tax Matters Partner.
(a) BAM is hereby appointed and shall serve as the tax matters partner
of the Company (the "Tax Matters Partner") within the meaning of IRC ss.
6231(a)(7) for so long as it is not the subject of a bankruptcy event as
defined in Section 9.2 and otherwise is entitled to act as the Tax Matters
Partner. The Tax Matters Partner may file a designation of itself as such
with the Internal Revenue Service. The Tax Matters Partner shall (i)
furnish to each Member affected by an audit of the Company income tax
returns a copy of each notice or other communication received from the IRS
or applicable state authority, (ii) keep such Member informed of any
administrative or judicial proceeding, as required by Section 6223(g) of
the Code, and (iii) allow such Member an opportunity to participate in all
such administrative and judicial proceedings. The Tax Matters Partner shall
take such action as may be reasonably necessary to constitute the other
Member a "notice partner" within the meaning of Section 6231(a)(8) of the
Code, provided that the other Member provides the Tax Matters Partner with
the information that is necessary to take such action; and
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(b) The Company shall not be obligated to pay any fees or other
compensation to the Tax Matters Partner in its capacity as such. However,
the Company shall reimburse the expenses (including reasonable attorneys'
and other professional fees) incurred by the Tax Matters Partner in such
capacity. Each Member who elects to participate in Company administrative
tax proceedings shall be responsible for its own expenses incurred in
connection with such participation. In addition, the cost of any
adjustments to a Member and the cost of any resulting audits or adjustments
of a Member's tax return shall be borne solely by the affected Member; and
(c) The Company shall indemnify and hold harmless the Tax Matters
Partner from and against any loss, liability, damage, cost or expense
(including reasonable attorneys' fees) sustained or incurred as a result of
any act or decision concerning Company tax matters and within the scope of
such Member's responsibilities as Tax Matters Partner, so long as such act
or decision was not the result of gross negligence, fraud, bad faith or
willful misconduct by the Tax Matters Partner. The Tax Matters Partner
shall be entitled to rely on the advice of legal counsel as to the nature
and scope of its responsibilities and authority as Tax Matters Partner, and
any act or omission of the Tax Matters Partner pursuant to such advice
shall in no event subject the Tax Matters Partner to liability to the
Company or any Member.
Section X.6 Tax Audits/Special Assessments. If the federal tax return of
either the Company or an individual Member with respect to an item or items of
Company income, loss, deduction, etc., potentially affecting the tax liability
of the Members generally is subject to an audit by the Internal Revenue Service,
the Managers may, in the exercise of their business judgment, determine that it
is necessary to contest proposed adjustments to such return or items. If such a
determination is made, the Managers will finance the contest of the proposed
adjustments out of the Net Cash From Operations.
Section X.7 Tax Elections. The Company will elect to amortize
organizational costs. Upon the death of a Member, or in the event of the
distribution of property, the Company may file an election, in accordance with
applicable Treasury Regulations, to cause the basis of the Company's property to
be adjusted for federal income tax purposes as provided by IRC ss.734, IRC
ss.743 and IRC ss.754. The determination whether to make and file any such
election shall be made by the Managers in their sole discretion.
ARTICLE XI
MISCELLANEOUS
Section XI.1 Binding Effect. This Operating Agreement shall be binding upon
BAM and CCIC Member and any permitted transferee or permitted assignee of an
interest in the Company.
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Section XI.2 Entire Agreement. This Operating Agreement, the Certificate,
the Formation Agreement and the other Transaction Documents contain the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior understandings and agreements of the parties with respect
thereto.
Section XI.3 Amendments. The Certificate and this Operating Agreement may
not be amended except by the written agreement of all of the Members.
Section XI.4 Choice of Law. Notwithstanding the place where this Operating
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all the terms and provisions hereof shall be construed under the laws
of Delaware (without regard to any conflicts of law principles).
Section XI.5 Notices. Except as otherwise provided in this Operating
Agreement, any notice, demand or communication required or permitted to be given
by any provision of this Operating Agreement shall be deemed to have been
sufficiently given or served for all purposes if delivered personally or sent by
facsimile transmission or overnight express to the party or to an executive
officer of the party to whom the same is directed or, if sent by registered or
certified mail, postage and charges prepaid, addressed to the Member's or
Company's address, as appropriate, which is set forth in this Operating
Agreement or Schedule A hereto.
Section XI.6 Headings. The titles of the Articles and the headings of the
Sections of this Operating Agreement are for convenience of reference only and
are not to be considered in construing the terms and provisions of this
Operating Agreement.
Section XI.7 Pronouns. All pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the person
or persons, firm or corporation may require in the context thereof.
Section XI.8 Waivers. The failure of any party to seek redress for
violation of or to insist upon the strict performance of any covenant or
condition of this Operating Agreement shall not prevent a subsequent act, that
would have originally constituted a violation, from having the effect of an
original violation.
Section XI.9 Severability. If any provision of this Operating Agreement or
its application to any person or circumstance shall be invalid, illegal or
unenforceable to any extent, the remainder of this Operating Agreement and its
application shall not be affected and shall be enforceable to the fullest extent
permitted by law.
Section XI.10 No Third Party Beneficiaries. None of the provisions of this
Operating Agreement shall be for the benefit of or enforceable by any person
other than the parties to this Agreement and their respective permitted
successors and permitted transferees and assigns.
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Section XI.11 Interpretation. It is the intention of the Members that,
during the term of this Operating Agreement, the rights of the Members and their
successors-in-interest shall be governed by the terms of this Agreement, and
that the right of any Member or successor-in-interest to assign, transfer, sell
or otherwise dispose of any interest in the Company shall be subject to
limitations and restrictions of this Operating Agreement.
Section XI.12 Further Assurances. Each Member shall execute all such
certificates and other documents and shall do all such other acts as the
Managers deem appropriate to comply with the requirements of law for the
formation of the Company and to comply with any laws, rules, regulations and
third-party requests relating to the acquisition, operation or holding of the
property of the Company.
Section XI.13 Counterparts. This Operating Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned Members, intending to be legally bound,
have executed this Operating Agreement as of the date first above written.
CELLCO PARTNERSHIP
By XXXX ATLANTIC MOBILE INC., its managing
general partner
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and
Administration
CCA INVESTMENT CORP.
By: /s/ Xxxxx X. Xxx
------------------------------------
Name: Xxxxx X. Xxx
Title: President
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SCHEDULE A
MEMBER NAME AND
NOTICE ADDRESS PERCENTAGE INTEREST
Xxxx Atlantic Mobile 38.53%
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, CFO
CCA Investment Corp. 61.47%
Crown Castle International Corp.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxx, President
PH02A/13896.11
SCHEDULE B
LIST OF INITIAL REPRESENTATIVES AND ALTERNATES
REPRESENTATIVES ALTERNATES
--------------- ----------
1. Xxxxx Xxxxxx 1. Xxxxxxxxx Xxxxx
2. Xxxxx X. Xxx 2. Xxxxxxx X. Xxxxx, III
3. Xxxxx Xxxxx 3. Xxxxxxx Xxxx
4. Xxxx Xxxxxxx Xxxxx 4. Xxxx Xxxxxx
5. Xxxxxxx Xxxxx 5. Xxxx Xxxxxx
6. Xxx X. Xxxxxx, Xx. 6. Xx Xxxxxxxxx
SCHEDULE C
INITIAL MANAGERS
NAME TITLE
---- -----
Xxxx Xxxxxxx Xxxxx President
Xxxxx X. Xxx Executive Vice President
Xxxxxxx X. Xxxxx, III Executive Vice President, Chief
Financial Officer and Treasurer
Xxxxx Xxxxx Xxxxxxxxx Secretary
Xxxxx Xxxxx Groschner Assistant Secretary
SCHEDULE D
BUSINESS PLAN
(for period beginning Effective Date and ending December 31, 1999)
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