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EXHIBIT 10.55
AGREEMENT OF PURCHASE AND SALE OF
PARTNERSHIP INTEREST
AGREEMENT OF PURCHASE AND SALE OF PARTNERSHIP INTEREST, dated
as of January 31, 1996, among Halcyon Communications, Inc., an Oklahoma
corporation ("HCI"), ECP Holdings, Inc., an Oklahoma corporation ("Seller"),
and Xxxxxx Communications Associates, L.L.C., a Colorado limited liability
company ("Buyer").
Halcyon Communications Partners is a general partnership
organized and existing under the laws of the State of Oklahoma (the
"Partnership"). The general partners of the Partnership are ECP and HCI.
Buyer desires to acquire from Seller a portion of Seller's
partnership interest in the Partnership and an option to acquire the balance of
such partnership interest of Seller, and Seller has agreed to sell such portion
of such partnership interest and to grant such option to Buyer on the terms and
subject to the conditions set forth herein.
Therefore, for and in consideration of the mutual promises,
upon the terms and subject to the conditions set forth herein and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged by each party, the parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
In addition to the terms defined elsewhere herein, as used
herein the following terms shall have the following respective meanings:
"Agreement" means this Agreement, including any Exhibits and Schedules
attached hereto.
"Business Day" means a day of the year on which banks are not required
or authorized to close in the State of Colorado.
"Closing" means the consummation of the transactions contemplated
hereby.
"Partners" means the Seller and HCI, in their capacities as partners
of the Partnership.
"Partnership Agreement" means the Partnership Agreement, dated as of
October 31, 1989, of the Partnership, as the same may have been amended or
modified through and including the date hereof.
"Partnership Interest" means, as to any partner of the Partnership,
the entire partnership interest of such partner in the Partnership, including
such partner's (i) right to a share of the income, gain, losses and deductions
of and distributions made by the Partnership, (ii) right to a share of
Partnership assets, (iii) rights with respect to initial and additional capital
contributions
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made to the Partnership by such partner, including such partner's rights with
respect to allocations of income, gain losses and deductions of and
distributions made by the Partnership which are based upon or determined by
reference to such capital contributions, (iv) rights with respect to the
management of the business and affairs of the Partnership, (v) voting, consent
and approval rights, (vi) rights to unpaid interest under Section 6.8 or 7.2 of
the Partnership Agreement, whether accrued as of or accruing on or after the
date hereof, (vii) rights with respect to such partner's Capital Account (as
defined in the Partnership Agreement), (viii) rights, if any, under Articles X,
XI and XII of the Partnership Agreement, (ix) any and all other rights,
interests and benefits to which such partner is or may become entitled by
reason of its status as a partner of the Partnership, and (x) all liabilities
and obligations of such partner by reason of its status as a partner of the
Partnership, in each case as provided in the Partnership Agreement or the
partnership laws of the state of the Partnership's organization.
"Person" means any individual, corporation, partnership, trust,
unincorporated association or other entity.
"Purchased Interest" means one-third of Seller's Partnership Interest.
"Related Instruments" means any and all agreements, instruments and
documents executed and delivered or required to be executed and delivered
pursuant to the terms of this Agreement or in connection with the transactions
contemplated hereby, including the Option Agreement executed and delivered
pursuant to Section 2.02 hereof.
"WestMarc" means WestMarc Communications, Inc., a Nevada corporation.
"WestMarc Preferred Stock" means the 12% Series C Cumulative
Compounding Preferred Stock, par value $0.01 per share, of WestMarc.
The definitions in this Article I and elsewhere in this
Agreement shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The words "herein", "hereof" and "hereunder" and words of
similar import refer to this Agreement in its entirety and not to any part
hereof unless the context shall otherwise require. All references herein to
Articles, Sections, Exhibits and Schedules shall be deemed references to
Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Unless the context shall otherwise
require, any references to any agreement or other instrument or statute or
regulation are to it as amended and supplemented from time to time (and, in the
case of a statute or regulation, to any corresponding provisions of successor
statutes or regulations). Any reference in this Agreement to a "day" or number
of "days" (without the explicit qualification of "Business") shall be
interpreted as a reference to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day,
and such calendar day is not a Business Day, then such action or notice shall
be deferred until, or may be taken or given on, the next Business Day.
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ARTICLE II.
THE CLOSING
Section 2.01. The Closing. The Closing is taking place at
10:00 A.M., local time, as of the date hereof (the "Closing Date") at the
offices of Tele-Communications, Inc., Terrace Tower II, 0000 XXX Xxxxxxx,
Xxxxxxxxx, Xxxxxxxx.
Section 2.02. Sale and Purchase of the Purchased Interest;
Grant of Option. On the terms and subject to the conditions set forth in this
Agreement, at the Closing Seller shall sell, convey, and assign to Buyer, and
Buyer shall purchase from Seller, for the consideration specified below in this
Section, all of Seller's right, title and interest in and to the Purchased
Interest. The consideration payable by Buyer to Seller in exchange for the
Purchased Interest shall be 14.8836 shares of WestMarc Preferred Stock set
forth on Schedule I hereto, together with the right to receive all unpaid
dividends or other distributions payable with respect to such shares. Such
sale, conveyance. assignment and purchase shall be effected by (i) the
delivery to Seller by Buyer at the Closing of (A) the stock certificate or
certificates representing the number of shares of WestMarc Preferred Stock to
which Seller is entitled as set forth in Schedule I hereto, duly endorsed in
blank and otherwise in proper form for transfer and with all necessary
documentary or transfer tax stamps affixed thereto and (B) such other documents
or instruments which may be necessary, or which Seller reasonably may request,
in order to effectively vest in Seller good and marketable title to such shares
and the right to receive such unpaid dividends or other distributions, (ii) the
execution and delivery by Buyer and Seller of a duly completed and executed
Assignment and Assumption Agreement substantially in the form of Exhibit A
hereto and (iii) the execution and delivery by such Seller or Buyer of such
other documents or instruments which may be necessary, or which the other such
party may reasonably request, in connection with the transactions contemplated
hereby. At the Closing, Seller also is granting to Buyer an option (the
"Option") on the part of Buyer to purchase the remaining Partnership Interest
of Seller for the consideration and on the terms and subject to the conditions
set forth in the form of Option Agreement attached hereto as Exhibit B.
Section 2.03. Amendment to Partnership Agreement. Each Partner
agrees that it shall, at the Closing, execute and deliver the Consent and
Amendment in the form of Exhibit C hereto and such other documents as may be
reasonably requested by Buyer in connection with the consummation of the
transactions contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of Seller. Seller
represents and warrants to Buyer as follows:
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(a) Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the jurisdiction of its
incorporation and has all requisite corporate power and authority to own, hold
and operate its properties and assets, and to carry on its business as
presently conducted. Seller has all requisite corporate power and authority to
enter into this Agreement and each Related Instrument to which it is or shall
become a party and perform its obligations hereunder and thereunder.
(b) The execution, delivery and performance by Seller of this
Agreement and such Related Instruments and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of such Seller.
(c) This Agreement has been, and each such Related Instrument,
when executed and delivered, shall be, duly executed and delivered by Seller
and constitutes (or, in the case of such Related Instruments, when executed and
delivered will constitute) a valid and binding obligation of Seller,
enforceable in accordance with its terms, except insofar as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, or by principles governing
the availability of equitable remedies.
(d) To the best knowledge of Seller, the Partnership is (i) duly
organized and validly, existing as a limited partnership under the laws of the
State of Oklahoma; (ii) has all requisite partnership power and authority to
own, hold and operate its properties and assets, and to carry on its business
as presently conducted; and (iii) treated as a "partnership" under the Code for
federal income tax purposes.
(e) At the Closing, Seller will transfer to Buyer the Purchased
Interest, free and clear of any lien, pledge, security interest, claim, or
charge or other encumbrance or any restriction on transfer voluntarily created
by Seller, other than as expressly set forth in the Partnership's Partnership
Agreement or existing or arising under applicable law and other than the
possible lien of taxes not yet due and payable and minor imperfections in title
and encumbrances and other minor matters, if any, which singly or in the
aggregate are not substantial in an amount, do not materially detract from the
value of such Purchased Interest.
Section 3.02. Representations and Warranties of Buyer. Buyer
represents and warrants to Seller as follows:
(a) Buyer is duly organized, validly existing and in good standing
as a limited liability company under the laws of the State of Colorado and has
all requisite power and authority as a limited liability company to own, hold
and operate its properties and assets, and to carry on its business as
presently conducted. Buyer has all requisite power and authority as a limited
liability company to enter into this Agreement and each Related Instrument to
which it is or shall become a party and perform its obligations hereunder and
thereunder.
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(b) The execution, delivery and performance by Buyer of this
Agreement and such Related Instruments and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action on the part of Buyer.
(c) This Agreement has been, and each such Related Instrument,
when executed and delivered, shall be, duly executed and delivered by Buyer and
constitutes (or, in the case of such Related Instruments, when executed and
delivered will constitute) a valid and binding obligation of Buyer, enforceable
in accordance with its terms, except insofar as enforceability may, be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, or by principles governing the
availability of equitable remedies.
(d) Buyer understands that the Purchased Interest, the Option and
the interest in the Partnership subject to the Option (the "Option Interest")
have not been registered under the Securities Act of 1933, as amended (the
"Act"), nor qualified under any state securities law, and that, if and to the
extent that any thereof constitute securities subject to the Act or any,
applicable state securities law, they are being offered and sold pursuant to
exemptions from such registration and qualification based in part upon the
representations of Buyer contained herein.
(e) Buyer is familiar with the business and operations of the
Partnership and has been given the opportunity to obtain from the Partnership
all information that it has requested regarding its current operations,
business plans and prospects.
(f) Buyer has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
investment contemplated by this Agreement and Buyer is able to bear the
economic risk of such investment.
(g) Buyer understands that, if and to the extent that the
Purchased Interest, the Option and the Option Interest constitute securities
subject to the Act or any applicable state securities law, Buyer must bear the
economic risk of its investment therein indefinitely unless the same are
registered or qualified pursuant to the Act or such state securities law or an
exemption from such registration or qualification is available, and that the
Partnership has no obligation to effect any such registration or qualification.
Buyer further understands that there is no assurance that any such exemption
from registration or qualification will be available, or, if available, that
such exemption will allow Buyer to dispose of or otherwise transfer any or all
of the Purchased Interest, the Option or the Option Interest in the amounts, in
the manner or at the times Buyer might propose. Buyer further understands that
the Partnership Agreement contains significant restrictions on transfers of
interests in the Partnership.
(h) Buyer is acquiring the Purchased Interest and the Option (and
will acquire the Option Interest upon exercise of the Option) solely for its
own account for investment and not with a view toward the resale, transfer, or
distribution thereof, nor with any present intention of transferring any
thereof or any interest therein in any transaction which would constitute a
"distribution" within the meaning of the Securities Act. No other person has
any right with
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respect to or interest in the Purchased Interest, the Option or the Option
Interest to be acquired by Buyer, nor has Buyer agreed to give any person any
such interest or right in the future.
(i) At the Closing, Buyer will transfer to Seller the shares
of WestMarc Preferred Stock to which Seller is entitled under Section 2.02,
free and clear of any lien, pledge, security interest, claim, or charge or
other encumbrance or any restriction on transfer voluntarily created by Buyer,
other than any such restrictions as may be expressly set forth in the
resolution of the Board of Directors of WestMarc designating and establishing
the WestMarc Preferred Stock and in the certificate of incorporation and
by-laws of WestMarc or as may exist or arise under applicable federal and state
securities laws.
ARTICLE IV.
MISCELLANEOUS
Section 4.01. Survival of Representations, Warranties and
Covenants. The respective representations, warranties, agreements and
covenants of the parties contained in this Agreement will survive and continue
in full force and effect after the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
Section 4.02. Notices. All notices and other communications
required or permitted by this Agreement shall be in writing and given (i) if to
the Partnership, at the address of its principal executive offices or at such
other address as the Partnership may designate in a written notice to the other
parties and (ii) if to any other party, to such party at its address as it
appears on the records of the Partnership or to such other address as such
party may designate in a written notice to each other party. All notices and
other communications required or permitted by this Agreement shall be deemed to
have been duly given if personally delivered to the intended recipient at the
proper address determined pursuant to this Section 4.02 or sent to such
recipient at such address by registered or certified mail, return receipt
requested, Express Mail, Federal Express or similar overnight delivery service
for next Business Day delivery or by telegram, telex or facsimile transmission
and will be deemed given, unless earlier received: (1) if sent by certified or
registered mail, return receipt requested, five calendar days after being
deposited in the United States mail, postage prepaid; (2) if sent by Express
Mail, Federal Express or similar overnight delivery service for next Business
Day delivery, the next Business Day after being entrusted to such service, with
delivery charges prepaid or charged to the sender's account; (3) if sent by
telegram or telex or facsimile transmission, on the date sent and (4) if
delivered by hand, on the date of delivery.
Section 4.03. Expenses. Whether or not the transactions contemplated
hereby are consummated, each of the parties shall bear the fees and expenses
relating to its compliance with the various provisions of this Agreement and
the Related Instruments, and each of the parties agrees to pay all of its own
expenses (including, without limitation, all legal and accounting fees)
incurred in connection with this Agreement and the Related Instruments, the
transactions
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contemplated hereby and thereby, the negotiations leading to the same and the
preparation made for carrying the same into effect.
Section 4.04. Headings. The headings of the Articles,
Sections and other subdivisions of this Agreement are for convenience of
reference only and shall not modify, define or limit any of the terms or
provisions of this Agreement.
Section 4.05. Governing Law. This Agreement shall be
construed in accordance with, and governed by, the internal laws of the State
of Colorado without regard to principles of conflict of laws, except to the
extent that the laws of the jurisdiction of organization of the Partnership
shall be mandatorily applicable.
Section 4.06. Severability. If any provision of this
Agreement shall be held to be illegal, invalid or unenforceable, that provision
will be enforced to the maximum extent permissible so as to effect the intent
of the parties and the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. If necessary,
to effect the intent of the parties hereto, the parties hereto will negotiate
in good faith to amend this Agreement to replace the unenforceable language
with enforceable language which as closely as possible reflects such intent.
Section 4.07. Amendments. This Agreement may be modified or
amended only by a written amendment signed by Persons authorized to so bind
each party hereto.
Section 4.08. Entire Agreement. The provisions of this
Agreement and the Related Instruments collectively set forth the entire
agreement and understanding between the parties hereto as to the subject matter
hereof and thereof and merge and supersede all prior discussions, agreements
and understandings, oral or written, of any and every nature among them with
respect to such subject matter. Except as and to the extent set forth in this
Agreement or a Related Instrument, no party makes any representation, warranty,
covenant or agreement whatsoever and each party disclaims all liability and
responsibility for any representation, warranty, covenant, agreement or
statement made or information communicated (orally or in writing) by any other
Person. Buyer expressly agrees and acknowledges that, in purchasing the
Purchased Interest and the Option and in making decisions regarding whether or
not to exercise the Option, Buyer (i) is not and will not be relying on the
representations and warranties of Seller or any other Person, (ii) has made and
will make its own inquiry and investigation into, and based thereon, has formed
an independent judgment concerning, the Partnership and the business conducted
by it, (iii) has been furnished or given adequate access to such information as
it has requested concerning the Partnership and the business conducted by it
and (iv) will not assert any claim against Seller or any of Seller's
affiliates, directors, officers, employees, agents, stockholders, advisors,
counsel or representatives, nor will seek to hold any of such other Persons
liable for any inaccuracies, misstatements or omissions with respect to
information concerning the Partnership and the business conducted by it,
provided that the foregoing shall not in any manner be construed or deemed to
limit the ability of Buyer to make any claim it may otherwise
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have arising out of the breach of any express representation or warranty of
Seller contained in this Agreement or any Related Instrument.
Section 4.09. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors, heirs, executors, legal representatives and permitted assigns;
provided, however, that, except as otherwise specifically permitted or
contemplated by this Agreement, neither this Agreement nor any of the rights,
interests or obligations of any party hereunder shall be assigned or delegated
without the prior written consent of all the parties.
Section 4.10. Further Assurances. Upon reasonable request
from time to time, each party, hereto shall execute and deliver all documents
and instruments and do all other acts that may be reasonably necessary or
desirable to carry out the intent and purposes of this Agreement and give
effect to the exercise by a party of its rights hereunder.
Section 4.11. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts shall have
been signed by each party hereto and delivered to the other party hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
HALCYON COMMUNICATIONS, INC. EPC HOLDINGS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXXX X. XXXXX
------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name: XXXXXXX X. XXXXX
-------------------- -------------------------
Title: PRESIDENT Title:
------------------- ------------------------
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By: /s/ XXXXX X. XXXXXX 2-12-96
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Xxxxx X. Xxxxxx, Member
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EXHIBIT A
ASSIGNMENT AND
ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made
as of January 31, 1996 between ECP HOLDINGS, INC., an Oklahoma corporation
("Assignor"), and XXXXXX COMMUNICATIONS ASSOCIATES, L.L.C., a Colorado limited
liability company ("Assignee").
WITNESSETH
WHEREAS, Assignor owns a partnership interest in HALCYON
COMMUNICATIONS PARTNERS, an Oklahoma limited partnership (the "Partnership");
WHEREAS, Assignor, the other partner of the Partnership and
Assignee have entered into an Agreement of Purchase and Sale of Partnership
Interest dated as of the date hereof (the "Purchase Agreement") providing for
the sale by Assignor of a portion of Assignor's partnership interest in the
Partnership (such portion of such interest is defined in the Purchase Agreement
as, and shall be referred to hereinafter as, the Assignor's "Purchased
Interest") and the assumption by Assignee of all liabilities and obligations of
Assignor by virtue thereof; and
WHEREAS, the execution and delivery of this Agreement for the
purpose of effecting such sale and such assumption has been authorized in all
respects as required by law;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the consideration specified in the Purchase
Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Assignment of Transferred Interests. Assignor by this
instrument does convey, sell, transfer, assign and deliver the Assignor's
Purchased Interest to Assignee, without any representation or warranty of any
nature whatsoever, except as may be expressly set forth in the Purchase
Agreement.
2. Assumption of Obligations with Respect to Transferred
Interests. Assignee hereby assumes, and agrees to indemnify Assignor for and
hold Assignor harmless from and against, all liabilities and obligations of any
nature whatsoever existing or arising under the Partnership's limited
partnership agreement or applicable law by virtue of the ownership of the
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Assignor's Purchased Interest, whether accrued or unaccrued, known or unknown,
disclosed or undisclosed and whether now existing or hereafter arising.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized signatories in their respective
names, all as of the day, and year first above written.
ASSIGNOR:
ECP HOLDINGS, INC.
ATTEST: By: /s/ XXXXXXX X. XXXXX
----------------------------------
Name: XXXXXXX X. XXXXX
----------------------------- --------------------------------
Title:
-------------------------------
ASSIGNEE
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
ATTEST: By: /s/ XXXXX X. XXXXXX 2-12-96
----------------------------------
Xxxxx X. Xxxxxx, Member
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EXHIBIT B
OPTION AGREEMENT
Option Agreement, dated as of January 31, 1996, between Xxxxxx
Communications Associates, L.L.C., a Colorado limited liability company
("Purchaser"), and ECP Holdings, Inc., an Oklahoma corporation ("Seller").
Seller is a partner of Halcyon Communications Partners, a general
partnership organized and existing under the laws of the State of Oklahoma (the
"Partnership"). Pursuant to a certain Agreement of Purchase and Sale of
Partnership Interest, dated as of the date hereof, among Seller, the other
partner of the Partnership and Purchaser (as the same may be amended from time
to time in accordance with its terms, the "Purchase Agreement"), as of the date
hereof Purchaser is purchasing from Seller a portion of Seller's partnership
interest in the Partnership. Purchaser desires to acquire from Seller an option
to purchase the balance of the partnership interest in the Partnership that
Seller will continue to own immediately after giving effect to such purchase,
and Seller has agreed to grant such an option to Purchaser on the terms and
subject to the conditions set forth herein.
Therefore, in consideration of the payment of $100 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Option. Seller hereby grants to Purchaser an
irrevocable option (the "Option") to purchase all, but not less than all of the
Option Interest (as hereinafter defined). The exercise price of the Option (the
"Exercise Price") shall be an amount in cash equal to $1,200,000, without
interest. The Exercise Price will be payable by Purchaser at the Closing (as
hereinafter defined) by wire transfer or by certified or bank check in
immediately available funds.
2. Exercise Period; Exercise of the Option.
(a) The Option may be exercised, in whole but not in part, at any
time during the period (the "Exercise Period") commencing on the date hereof
and ending at 12:01 A.M., Denver, Colorado time, on the tenth anniversary of
the date hereof (the "Scheduled Expiration Date").
(b) Purchaser may exercise the Option by delivering written notice
thereof (an "Exercise Notice") to Seller at any time prior to the expiration of
the Exercise Period.
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Subject to paragraph 3 hereof, and unless the parties otherwise agree, the
closing of the sale of the Option Interest (the "Closing") shall occur on the
tenth Business Day (as hereinafter defined) following delivery of the Exercise
Notice. The date the Closing occurs is hereinafter referred to as the "Closing
Date". At the Closing, Seller shall, against receipt of the Exercise Price as
provided in paragraph 1 hereof, convey and deliver the Option Interest to
Purchaser by the delivery to Purchaser by such Seller of a duly completed and
executed instrument of assignment reasonably satisfactory to both parties and
such other documents or instruments which may be necessary, or which Purchaser
may reasonably request, in order to effectively vest in Purchaser beneficial
ownership of the Option Interest.
(c) Prior to the sale of the Option Interest to Purchaser pursuant
to this Agreement. Seller shall, subject only to the express provisions of
paragraph 5(a) of this Agreement, retain all rights as the holder of the Option
Interest, including all voting and consent rights as a partner of the
Partnership, and may exercise or refrain from exercising such rights as Seller
may determine in its sole discretion, even if the result is a diminution in the
value of the Option Interest and this Option to Purchaser.
3. Conditions to Closing. The Closing of the purchase of the
Option Interest pursuant to the exercise of the Option shall be subject to the
satisfaction of all of the following conditions:
(a) Each of the representations of Purchaser made in this
Agreement, in the Purchase Agreement and in each Related Instrument
(as defined in the Purchase Agreement) shall be true and correct in
all material respects at and as of the time of the Closing and
Purchaser shall have performed in all material respects each and every
covenant of Purchaser contained in this Agreement, in the Purchase
Agreement and in each Related Instrument required to be performed by
the time of or at the Closing. If requested by Seller, Purchaser shall
execute a certificate by which Purchaser confirms the satisfaction of
the foregoing condition.
(b) No order, preliminary or permanent injunction,
temporary restraining order, stay, judgment, decree or other order of
any court or governmental or regulatory body preventing the sale of
the Option Interest by the Seller or the consummation of the other
transactions contemplated hereby.
(c) All consents, orders and approvals of any
governmental authority, any partner or partners of the Partnership and
of any other third party that either Purchaser or Seller reasonably
deems necessary or advisable shall have been obtained and shall be in
full force and effect and any waiting period under applicable law
shall have expired. Without limiting the generality of the foregoing,
all such consents and approvals necessary to permit the withdrawal of
Seller from the Partnership without further obligation or liability as
a partner thereof shall have been obtained and shall be in full force
and effect.
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(d) Purchaser shall, by written instrument in form and
substance reasonably satisfactory to Seller, assume and agree to
indemnify Seller for all obligations and liabilities of Seller under
the Partnership Agreement with respect to the Option Interest of every
kind or nature, whether accrued or unaccrued, asserted or unasserted,
known or unknown, disclosed or undisclosed, absolute or contingent,
arising by law, contract or otherwise and including any liability or
obligation arising out of any event, fact or circumstance existing or
occurring as of or prior to the date hereof that, with the passage of
time or the giving of notice, or otherwise, which constitutes a breach
or violation of or default under any contract or law binding upon or
applicable to the Partnership.
(e) If required by Seller, Purchaser will be obligated to
buy from Seller at the Closing, all evidences of indebtedness of the
Partnership held directly or indirectly by Seller or any subsidiary of
Seller, and the purchase price for such evidences of indebtedness
shall be the outstanding principal amount thereof at the time of the
Closing plus accrued and unpaid interest thereon which, unless
otherwise agreed by Seller and Purchaser, shall be paid in cash.
(f) Purchaser and Seller shall each execute and deliver
such other instruments as either party or the Partnership reasonably
deems necessary or appropriate to effect, and as a condition to, the
exercise of the Option, including amendments to the Partnership
Agreement or any other instrument filed with any governmental agency
or official.
(g) Purchaser shall have exercised all options to acquire
partnership interests in Halcyon Communications Limited Partnership,
an Oklahoma limited partnership ("HCLP"), granted to Purchaser by
partners of HCLP who are affiliates of Seller simultaneously with the
exercise of this Option, and the closings of the sale of all such
partnership interests pursuant to the exercise of all such other
options shall occur simultaneously with the Closing under this Option
Agreement.
(h) If the exercise of the Option requires any consent,
approval, waiver, or authorization of any government department,
board, bureau, commission, agency or instrumentality or the expiration
of any waiting period imposed by applicable law, then the date fixed
for the Closing pursuant to paragraph 2(b) hereof shall be extended
for the period of time during which efforts to obtain each such
consent, approval, waiver, or authorization and the termination of
each such waiting period at the earliest reasonably practicable time
are diligently being made; provided, however, that, unless Seller and
Purchaser otherwise agree, the extension of such Closing date pursuant
to this paragraph may not exceed 180 days. Seller and Purchaser will,
and will use their commercially reasonable efforts to cause the
Partnership to, reasonably cooperate with each other in obtaining any
such consent, approval, waiver, or authorization and in obtaining the
termination of any such waiting period at the earliest practicable
time.
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(i) If, in the opinion of legal counsel to Purchaser, the
immediate proposed transfer of the entire Option Interest would result
in the termination of the Partnership within the meaning of Section
708 of the Internal Revenue Code of 1986, as amended (or any successor
provision of law), but an immediate transfer of less than all of the
Option Interest would not have such a result, Purchaser shall be
entitled to elect, in its sole discretion, to either (i) exercise the
Option in full notwithstanding such termination or (ii) to (A) require
Seller to immediately transfer only that portion of the Option Interest
as may, in the opinion of such counsel, be transferred without causing
such a result and (B) extend the Exercise Period of the Option with
respect to the balance of the Option Interest until the later of the
Scheduled Expiration Date or the last day of the period of thirteen
months after the date of the closing of the transfer referred to in
subclause (ii)(A) of this sentence, in which event, unless otherwise
agreed by Seller and Purchaser, the Exercise Price shall be allocated
proportionately between the portion of the Option Interest immediately
transfer and the remainder of the Option Interest as to which the
Exercise Period of the Option shall have been so extended.
4. Distributions After Exercise. Distributions declared or made
on or prior to the effective date of the exercise of the Option with respect to
the Option Interest shall be made to Seller, regardless of when such
distributions accrued on the books of the Partnership or the date fixed for
payment thereof.
5. Certain Covenants of Seller. Seller hereby covenants and
agrees with Purchaser as follows:
(a) During the Exercise Period, Seller shall not sell or
otherwise transfer or dispose of the Option Interest or any part
thereof or interest therein, other than a sale or transfer as to which
Seller gives Purchaser at least 14 days prior written notice and in
which the transferee agrees, pursuant to an instrument in form and
substance reasonably satisfactory to Purchaser, to be bound by the
terms of this Option Agreement with respect to such transferred
interest to the same extent as the transferor was so bound with
respect to such transferred interest.
(b) Upon the Closing, Seller shall convey to Purchaser
legal title to, and beneficial ownership of, the Option Interest, free
and clear of any lien, pledge, security interest, claim, or charge or
other encumbrance and free of any restriction on transfer voluntarily
created by Seller, other than as expressly set forth in the
Partnership Agreement or existing or arising under applicable law and
other than the possible lien of taxes not yet due and payable and
minor imperfections in title and encumbrances and other minor matters,
if any, which singly or in the aggregate are not substantial in an
amount, do not materially detract from the value of the Option
Interest.
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6. Binding Effect; Assignment. Subject to the following provision
of this paragraph 6, this Option Agreement shall inure to the benefit of, and
be binding upon, the parties and their respective successors, heirs, legal
representatives and permitted assignees. Except as otherwise expressly provided
herein, this Option Agreement shall not be assigned by either party hereto
without the prior written consent of the other party. Purchaser may assign this
Option Agreement, in whole or in part, to any FCA Permitted Transferee (as
defined in the Partnership Agreement).
7. Notices. All notices and other communications required or
permitted by this Agreement shall be in writing and addressed to the intended
recipient at such person's address specified under its or his signature below
or at such other address as such person may designate in a written notice to
the other party hereto. All notices and other communications required or
permitted by this Agreement shall be deemed to have been duly given if
personally delivered to the intended recipient at the proper address determined
pursuant to this paragraph 7 or sent to such recipient at such address by
registered or certified mail, return receipt requested, Express Mail, Federal
Express or similar overnight delivery service for next Business Day delivery or
by telegram, telex or facsimile transmission and will be deemed given, unless
earlier received; (1) if sent by certified or registered mail, return receipt
requested, five calendar days after being deposited in the United States mail,
postage prepaid; (2) if sent by Express Mail, Federal Express or similar
overnight delivery service for next Business Day delivery, the next Business
Day after being entrusted to such service, with delivery charges prepaid or
charged to the sender's account; (3) if sent by telegram or telex or facsimile
transmission, on the date sent and (4) if delivered by hand, on the date of
delivery.
8. Definitions. As used in this Agreement, the following terms
have the meanings indicated:
"Agreement" or "Option Agreement" means this Option Agreement,
as the same may be amended from time to time in accordance with its terms.
"Business Day" means a day of the year on which banks are not
required or authorized to close in the State of Colorado.
"Option Interest" means the entire partnership interest of
Seller as a partner of the Partnership, including such partner's (i) right to a
share of the income, gain, losses and deductions of and distributions made by
the Partnership, (ii) right to a share of Partnership assets, (iii) rights with
respect to initial and additional capital contributions made to the Partnership
by such partner, including such partner's rights with respect to allocations of
income, gain losses and deductions of and distributions made by the Partnership
which are based upon or determined by reference to such capital contributions,
(iv) rights with respect to the management of the business and affairs of the
Partnership, (v) voting, consent and approval rights, (vi) rights to unpaid
interest under Section 6.8 or 7.2 of the Partnership
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Agreement, whether accrued as of or accruing on or after the date hereof, (vii)
rights with respect to such partner's Capital Account (as defined in the
Partnership Agreement), (viii) rights, if any, under Articles X, XI and XII of
the Partnership Agreement, (ix) any and all other rights, interests and
benefits to which such partner is or may become entitled by reason of its
status as a partner of the Partnership, and (x) all liabilities and obligations
of such partner by reason of its status as a partner of the Partnership, in
each case as provided in the Partnership Agreement or the partnership laws of
the state of the Partnership's organization.
"Partnership Agreement" means the Partnership Agreement, dated
as of October 31, 1989, of the Partnership, as the same heretofore may have
been or hereafter may be amended or modified in accordance with its terms.
9. Terms Generally; Certain Rules of Construction. The
definitions in paragraph 8 and elsewhere in this Option Agreement shall apply
equally to both the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof" and "hereunder" and words of similar import refer to this
Option Agreement in its entirety and not to any part hereof unless the context
shall otherwise require. All references herein to paragraphs shall be deemed
references to paragraphs of this Option Agreement unless the context shall
otherwise require. Any reference in this Agreement to a "day" or number of
"days" (without the explicit qualification of "Business") shall be interpreted
as a reference to a calendar day or number of calendar days. If any action or
notice is to be taken or given on or by a particular calendar day, and such
calendar day is not a Business Day, then such action or notice shall be deferred
until, or may be taken or given on, the next Business Day.
10. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of Colorado without
regard to principles of conflict of laws, except to the extent that the laws of
the jurisdiction of organization of the Partnership shall be mandatorily
applicable.
11. Headings. The headings contained in this Option Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Option Agreement.
12. Waivers; Amendment. Any term or provision of this Option
Agreement may be waived at any time by an instrument in writing signed by the
party which is entitled to the benefit thereof. This Option Agreement may be
amended or supplemented at any time only by an instrument in writing signed by
the parties hereto.
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17
13. Counterparts. This Option Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same agreement.
14. Expenses. Each party hereto will pay its own expenses in
connection with the negotiation and execution of this Option Agreement and the
consummation of the transactions contemplated hereby, including all fees and
disbursements of its legal counsel.
15. Further Actions After the Closing. If, subsequent to the
Closing, further documents are reasonably requested in order to carry out the
provisions and purposes of this Option Agreement, the parties hereto shall
execute and deliver such further documents.
16. Severability. In the event that any part or parts of this
Option Agreement shall be held to be unenforceable to its or their full extent,
then it is the intention of the parties hereto that such part or parts shall be
enforced to the full extent permitted under the laws, and in any event, that
all other parts of this Option Agreement shall remain valid and fully
enforceable as if the unenforceable part or parts had never been a part hereof.
17. Entire Agreement. The provisions of this Agreement, the
Purchase Agreement and the Related Instruments collectively set forth the
entire agreement and understanding between the parties hereto as to the subject
matter hereof and thereof and merge and supersede all prior discussions,
agreements and understandings, oral or written, of any and every nature
between them with respect to such subject matter. Except as and to the extent
set forth in this Agreement, the Purchase Agreement or a Related Instrument,
neither party makes any representation, warranty, covenant or agreement
whatsoever and each party disclaims all liability and responsibility for any
representation, warranty, covenant, agreement or statement made or information
communicated (orally or in writing) by any other Person. Purchaser expressly
agrees and acknowledges that, in purchasing this Option and making decisions
regarding whether or not to exercise this Option, Purchaser (i) is not and will
not be relying on the representations and warranties of Seller or any other
Person, (ii) has made and will make its own inquiry and investigation into, and
based thereon, has formed an independent judgment concerning, the Partnership
and the business conducted by it, (iii) has been furnished or given adequate
access to such information as it has requested concerning the Partnership and
the business conducted by it and (iv) will not assert any claim against Seller
or any of its affiliates, directors, officers, employees, agents, stockholders,
advisors, counsel or representatives, nor will seek to hold any of such other
Persons liable for any inaccuracies, misstatements or omissions with respect to
information concerning the Partnership and the business conducted by it,
provided that the foregoing shall not in any manner be construed or deemed to
limit the ability of Purchaser to make any claim it may otherwise have arising
out
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of the breach of any express representation or warranty of Seller contained in
this Agreement, the Purchase Agreement or any Related Instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
ECP HOLDINGS, INC.
By:
------------------------------
Name:
Title:
Terrace Tower 11
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By:
------------------------------
Xxxxx X. Xxxxxx, Member
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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EXHIBIT C
CONSENT AND AMENDMENT OF AMENDED AGREEMENT OF PARTNERSHIP FOR
HALCYON COMMUNICATIONS PARTNERS
THIS CONSENT AND AMENDMENT, dated as of January 31, 1996, is
made and entered into by and among the undersigned parties.
Halcyon Communications Partners, an Oklahoma general
partnership (the "Partnership"), was formed under the Oklahoma Uniform
Partnership Act pursuant to a Partnership Agreement dated as of October 31,
1989 (the "Original Agreement") between Halcvon Communications, Inc., an
Oklahoma corporation ("HCI"), and ECP Holdings, Inc., an Oklahoma corporation
("ECP"). The Original Agreement, as heretofore amended, is referred to herein
as the "Partnership Agreement").
The undersigned parties desire to (i) consent to the
assignment to Xxxxxx Communications Associates, L.L.C., a Colorado limited
liability company, ("FCA") by ECP of one-third of its partnership interest in
the Partnership, (ii) consent to the grant to FCA by ECP of an option to acquire
the entire balance of ECP's partnership interest in the Partnership and any
future exercise of such option and (iii) consent to the admission of FCA to the
Partnership as a partner. The undersigned parties also desire to amend the
Partnership Agreement in certain respects.
Therefore, for and in consideration of the premises and for
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged by each party, the parties hereto agree as follows:
1. Certain Consents; Section 754 Election.
(a) HCI and ECP, in their capacities as, and constituting
all of, the partners of the Partnership hereby (i) consent to (A) the sale to
FCA, pursuant to the Agreement of Purchase and Sale of Partnership Interest,
dated as of the date hereof, among the parties hereto (the "Purchase
Agreement"), of the Purchased Interest (as defined in the Purchase Agreement)
of ECP, (B) the grant to FCA by ECP of an option to acquire the entire balance
of ECP's partnership interest in the Partnership pursuant to the Option
Agreements substantially in the form of Exhibit B to the Purchase Agreement
(the "Option Agreement"), (C) the admission of FCA, as the holder of the
Purchased Interest of ECP, to the Partnership as a partner effective as of the
date hereof and (D) any future exercise by FCA (or any of its permitted
assignees) of its option and rights under the Option Agreement pursuant to the
terms thereof and, upon such exercise, the transfer of the partnership interest
and consummation of the other transactions contemplated thereby (including,
without limitation, the withdrawal contemplated by the last sentence of
paragraph 3(c) of the Option Agreement); and (ii) agrees that the Partnership
shall file, in a timely manner for the tax year of the Partnership in which the
sale referred to in subclause (i)(A) of this sentence occurs, an election,
pursuant to Section 754 of the Internal Revenue Code of 1986, as amended (the
"Code") and applicable Treasury Regulations, to have the Partnership's assets
adjusted as
20
provided in Section 743 of the Code, and if requested by FCA (or any of its
permitted assignees) upon any purchase of any additional partnership interest
in the Partnership in connection with the exercise of its option under the
Option Agreement, also shall make such election in a timely manner for the tax
year of the Partnership in which such exercise occurs. FCA hereby agrees to be
admitted to the Partnership as a Partner and, as such, to be bound by the
provisions of the Partnership Agreement, as amended hereby.
(b) Without in any way limiting the generality of the
definitions of the terms "Partnership Interest" and "Purchased Interest" in the
Purchase Agreement or the definition of "Option Interest" in the Option
Agreement, the parties acknowledge, confirm and agree that (i) for purposes of
Paragraphs 6.8 and 7.2 of the Partnership Agreement and any other provision of
the Partnership Agreement pursuant to which the rights of a partner of the
Partnership are based upon or determined by reference to such partner's initial
or additional Capital Contributions (as defined in the Partnership Agreement)
as of any time of determination, FCA shall be deemed to have made (in addition
to any Capital Contributions actually made by it) a pro rata portion of all
Capital Contributions made by ECP on or prior to the date hereof, with such
portion being equal to the aggregate percentage of the Partnership Interest of
ECP which FCA shall have acquired, at or before such time, pursuant to the
Purchase Agreement or the Option Agreement; and (ii) as of the date hereof,
automatically by virtue of the sale of the Purchased Interest to FCA, all
rights of ECP under or by virtue of the Management Agreement, dated as of
October 31, 1989, among the Partnership, ECP and HCI, as "Manager," as
heretofore amended (the "Management Agreement") shall be rights of each of ECP
and FCA; provided, however, that in the event of the removal of Manager
pursuant to Section 5.2 by the mutual consent of ECP and FCA, ECP shall serve
as manager of the Partnership unless ECP and FCA agree to select a new manager.
The parties further acknowledge, confirm and agree that, notwithstanding any
provision of the Purchase Agreement, the Option Agreement or this instrument
apparently to the contrary, ECP shall have no obligation, liability or
responsibility for any obligations of ECP pursuant to Paragraph 7.2 of the
Partnership Agreement.
2. Amendments to Restated Partnership Agreement. The
undersigned parties hereby agree that, effective as of the date hereof, the
Restated Partnership Agreement is hereby amended as follows:
(a) Paragraph 5.1 of the Partnership Agreement is amended
to read in its entirety as follows:
"5.1 'Affiliate,' when used with respect to a
specified Person, shall mean any other Person that
directly, indirectly or through one or more
intermediaries Controls, is Controlled by or is under
Common Control with such Person. For purposes of the
foregoing, 'Control,' as to any Person, means the
possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of such Person (whether through ownership of
securities, partnership interests or
2
21
other ownership interests, by contract, by
partnership or involvement in the board of directors,
management committee or other management structure of
such Person, or otherwise). The terms 'Controlled,'
'Controlling' and similar variations shall have
correlative meanings."
(b) The defined term "Partner" set forth in Paragraph
5.14 of the Partnership Agreement is amended to read in its entirety as
follows:
"5.14 'Partner' shall mean each of ECP
Holdings, Inc., an Oklahoma corporation, Halcyon
Communications, Inc., an Oklahoma corporation, Xxxxxx
Communications, L.L.C, a Colorado limited liability
company, and each other Person, if any, who is
admitted as a successor or additional partner of the
Partnership in accordance with this Agreement, in
each case unless and until such Person ceases to be a
limited partner of the Partnership in accordance with
this Agreement."
(c) Article V of the Partnership Agreement is further
amended by adding thereto, immediately after Paragraph 5.3 thereof, a new
Paragraph 5.3(a) which shall read in its entirety as follows:
"5.3(a) 'FCA' shall mean Xxxxxx
Communications Associates, L.L.C., a Colorado limited
liability company."
(d) Article V of the Partnership Agreement is further
amended by adding thereto, immediately after Paragraph 5.19 thereof, a new
Paragraph 5.19(a) which shall read in its entirety as follows:
"5.19(a) 'Person' shall mean any individual,
firm, corporation or other legal entity."
(e) The first sentence of Paragraph 8.7 of the
Partnership Agreement is amended to read in its entirety as follows:
"All distributions of Excess Cash Flow shall be
distributed seventy-five percent (75%) to ECP and FCA
(in proportion to their respective Capital Accounts)
and twenty-five percent (25%) to Halcyon."
(f) Paragraph 9.1 of the Partnership Agreement is amended
to read in its entirety as follows:
"9.1 Allocations of Profits. For bookkeeping
and income tax purposes, in the event of the sale of
all or substantially all of the Partnership Assets or
upon dissolution of the Partnership:
3
22
"(a) Profit shall be allocated first to ECP
and FCA (in proportion to their respective Capital
Accounts) until such time as each has been allocated
Profits under this Paragraph 9.1(a) equal to the
amount of interest earned on its Capital
Contributions pursuant to Paragraphs 6.8 and 7.2;
"(b) Profit shall then be allocated to ECP
and FCA (in proportion to their respective Capital
Accounts) until such time as each has received the
excess, if any, of the Losses allocated previously to
such Partner under Article VIII over all Profits
allocated under Article VIII or this Paragraph
9.1(b);
"(c) Profit shall next be allocated to
Halcyon until such time as it has received the
excess, if any, of the Losses allocated previously to
Halcyon under Article VIII over all Profits allocated
under Article VIII or this Paragraph 9.1(c); and
"(d) Any remaining Profit or Loss shall be
allocated seventy-five percent (75%) to ECP and FCA
(in proportion to their respective Capital Accounts)
and twenty-five percent (25%) to Halcyon."
(g) Article IX of the Partnership Agreement is further
amended by deleting therefrom Paragraph 9.2 in its entirety.
(h) Article XV of the Partnership Agreement is amended to
read in its entirety as follows:
"ARTICLE XV
"Assignability of Partnership Interests; Admission of
Additional Partners.
"No Partner shall mortgage, pledge, hypothecate,
transfer, sell, assign or otherwise dispose of all or any part
of its interest in the Partnership, whether voluntarily, by
operation of law or otherwise, or any right, title or interest
in or to such interest without obtaining the prior written
consent of the other Partners, except as provided for in this
Agreement. Notwithstanding the foregoing, ECP or FCA shall
have the right, in its sole discretion, to transfer all or any
part of its interest in the Partnership to (i)
Tele-Communications, Inc., a Delaware corporation, or any
Affiliate thereof or (ii) FCA or any FCA Permitted Transferee
(as hereinafter defined). For purposes of this Agreement, the
term 'FCA Permitted Transferee' shall mean (i) any Affiliate
of Donne
4
23
X. Xxxxxx, currently a resident of Littleton, Colorado
("Xxxxxx"), (ii) any member of Xxxxxx'x immediate family (ie.,
wife, parents, children, including those adopted before the
age of 18, grandchildren, brothers, sisters, and the spouses
or children of the foregoing), (iii) any custodian under the
Uniform Gifts to Minors Act or similar fiduciary for the
exclusive benefit of Xxxxxx'x children during their lives,
(iv) in the event of Xxxxxx'x adjudication of incompetency,
his legal representatives, (v) in the event of Xxxxxx'x death,
his executors or the administrators of his estate and his
heirs who are members of his immediate family, and (v) any
trust described in Section 664 of the I.R.C. of which Xxxxxx
or one or more members of his immediate family (and no other
persons) are income beneficiaries. In the event of a permitted
transfer of any interest in the Partnership, the transferee
(other than, with respect to clauses (i) of this sentence
below, a transferee who was already a partner prior to the
permitted transfer) shall, by written instrument in form and
substance reasonably satisfactory to the non-transferring
Partners (i) agree to become a Partner and accept and adopt
the terms and provisions of this Agreement and (ii) assume the
obligations of the transferor Partner under this Agreement
with respect to the transferred partnership interest. If
required by the nontransferring Partners, the transferee shall
deliver to the Partnership an opinion, reasonably satisfactory
in form and substance to the nontransferring Partners, of
counsel reasonably satisfactory to the nontransferring
Partners to the effect that the transfer is in compliance with
applicable state and Federal securities laws. Upon completion
of any permitted transfer in accordance with the foregoing,
the transferee (if not already a Partner) shall be admitted as
a substituted Partner in the place and stead of the transferor
Partner with respect to the transferred partnership interest,
without any further action, and if such transfer is of the
entire partnership interest of the transferor Partner, such
transferor Partners shall be deemed to have withdrawn from the
Partnership without further action. Except for the transferee
of a partnership interest permitted by and in accordance with
this Article XV, no Person shall be admitted as a general or
limited partner of the Partnership without the prior written
consent of all the Partners."
(i) Paragraph 18.1 of the Partnership Agreement is amended by (i)
redesignating clause (iii) thereof as clause (iv) and (ii) adding, immediately
after clause (ii) thereof a new clause (iii) which shall read in its entirety
as follows:
"(iii) the sale of all or substantially all of the Partnership
Assets; or"
(j) Paragraph 19.2 of the Partnership Agreement is amended to read
in its entirety as follows:
5
24
"19.2 Designation of Purchaser. Each of ECP and FCA
shall have the right to designate another entity to
exercise its purchase rights under this Agreement as
long as the designated entity is (i) ECP or an
Affiliate of ECP or (ii) FCA or an FCA Permitted
Transferee."
(k) Paragraph 19.3 of the Partnership Agreement is
amended by adding thereto, immediately before the words "in the case of ECP"
appearing therein, the following:
"in the case of FCA, at 0000 Xxxxxx Xxxxx,
Xxxxxxxxx, XX 00000."
3. Reaffirmation. The undersigned parties hereby
acknowledge that the Partnership Agreement, as amended hereby, remains in full
force and effect and is hereby ratified and confirmed.
IN WITNESS WHEREOF, the undersigned parties have duly executed and
delivered this Consent and Amendment as of the date first above written.
HALCCYON COMMUNICATIONS EPC HOLDINGS INC.
By: /s/ XXXXXX X. XXXXX By:
------------------------- -------------------------------
Name: XXXXXX X. XXXXX Name:
-------------------- -------------------------
Title: PRESIDENT Title:
------------------- ------------------------
XXXXXX COMMUNICATIONS
ASSOCIATES, L.L.C.
By: /s/ XXXXX X. XXXXXX 2-12-96
-------------------------------
Xxxxx X. Xxxxxx, Member
6
