COLUMBUS CELLULAR TELEPHONE COMPANY
PARTNERSHIP AGREEMENT
THIS AGREEMENT, dated as of March 1, 1989, is by and among Xxxxxx
Communications Incorporated, a Delaware corporation ("PCI") and the parties who
have timely executed and delivered a counterpart signature page for this
Agreement (each a "Party", and collectively, the "Parties"). The counterpart
signature pages, together with the Agreement, constitute the entire agreement of
the Parties ("Agreement").
Each Party, as an original party to or as the assignee of an original
party to one of several settlement agreements among applicants for the
Authorization, is a third-party beneficiary of the Joint Agreement, dated May
28, 1986 ("Joint Agreement") by and among Cellular Equity Settlement Group; CPS
Telecom, Inc.; Cellular Management Services, Inc.; Xxxxxx Resources, Inc.; The
Genesis Enterprises, Inc.; Mobile Communications Enterprises, Inc.; Mobile
Telephone Corporation; Settlecom, Inc.; and Western Cellular Alliance, pursuant
to which the Parties agreed to allocate their respective rights in applications
before the FCC for Authorization to build and operate the System.
Xx. Xxxxxx Xxxxxx ("Xxxxxx") was the selectee originally designated by the
FCC to receive the Authorization to build and operate the System.
Pursuant to a Purchase Agreement, dated as of April 8, 1988, PCI has
become the successor-in-interest to Xxxxxx with respect to the Authorization and
the other assets and interests set forth in such Purchase Agreement.
In order to clarify each Party's rights and obligations with respect to
the Authorization and to allow for the management of the System by PCI, the
Parties desire to enter into this Agreement in order to supersede and replace
the Joint Agreement with the terms and conditions set forth herein;
In consideration of the mutual obligations herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each of the Parties, the Parties agree as follows:
1. Definitions
As used in this Agreement, the following terms have the following
meanings:
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"Agreement" has the meaning ascribed to such term in the first
paragraph of this Agreement.
"Assign" has the meaning ascribed to such term in Section 7.1 of
this Agreement.
"Assignee" has the meaning ascribed to such term in Section 7.1 of
this Agreement.
"Authorization" means action by the FCC granting its consent to the
building and operation of the System.
"Capital Accounts" shall mean the capital accounts maintained by the
Partnership with respect to each Party hereto, pursuant to Section 4.2 of this
Agreement.
"Capital Call" has the meaning ascribed to such term in Section 3.2
of this Agreement.
"Executive Committee" shall mean the committee, composed of three
members, with responsibility for conducting the business affairs of the
partnership pursuant to Section 5.3 of this Agreement.
"FCC" means the Federal Communications Commission.
"Joint Agreement" has the meaning ascribed to such term in the
second paragraph of this Agreement.
"Majority Vote" shall mean a vote of the Parties representing more
than fifty percent (50%) of the aggregate Ownership Interests in the
Partnership.
"Market" means the geographic area in and around Columbus, Georgia,
which is served by the System pursuant to authorizations issued by the FCC.
"Xxxxxx" has the meaning ascribed to such term in the third
paragraph of this Agreement.
"Ownership Interest" means, with respect to each Party, the
percentage interest in the partnership held by such Party.
"PCI" has the meaning ascribed to such term in the first paragraph
of this Agreement.
"Partnership" has the meaning ascribed to such term in Section 2.1
of this Agreement.
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"Partnership Business" has the meaning ascribed to such term in
Section 2.3 of this Agreement.
"Party" or "Parties" has the meaning ascribed to such term in the
first paragraph of this Agreement.
"Supermajority Vote" shall mean a vote of the Parties representing
sixty percent (60%) of the aggregate Ownership Interests in the Partnership.
"System" means the cellular radio telephone system for the Columbus,
Georgia metropolitan area.
2. Organization
2.1. Governing Agreement. The partnership formed by the parties (the
"Partnership") shall be governed by the terms and conditions set forth herein.
2.2. Name and Place of Business. The name of the Partnership shall be the
Columbus Cellular Telephone Company. The name may be changed from time to time
by the Executive Committee. The principal place of business of the Partnership
shall be Columbus, Georgia or any other place authorized by the Executive
Committee. The Partnership shall be a Georgia Partnership.
2.3. Purpose. The purpose and scope of the Partnership is to construct and
to operate the System for the Market and the surrounding areas ("Partnership
Business"). The Partnership may take any and all action necessary, incidental or
convenient to carry out the partnership Business, including, but not limited to:
leasing, purchasing and improving property and equipment for the System;
borrowing and raising money; executing documents; operating the System;
contracting with PCI and other parties for the provision of management services;
selling the services of the System to wholesale and retail customers; selling,
leasing, installing and maintaining customer units used on the System, and
reselling or contracting to resell competing wireline cellular services in the
Market and in any available surrounding markets.
2.4. Term. The term of the partnership commenced on March 28, 1986. The
term shall continue until March 28, 2085, or until earlier terminated as
provided herein.
2.5. Formation. The partnership shall consist of each Party who has
returned an executed counterpart signature page on or by the date specified
thereon.
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3. Capital Contributions
3.1. Initial Ownership Interest and Capital Contribution. The parties
acknowledge and agree that the value of the Authorization, for purposes, inter
alia, of determining the amounts of the respective capital Accounts of the
Parties is $8,839,309. Each Party has contributed to the partnership its
interest in the Authorization pursuant to the Joint Agreement, and each Party's
contribution shall be valued at the percentage of $8,839,309 equal to its
percentage interest in the Authorization pursuant to the Joint Agreement. Each
Party shall have an initial Ownership Interest in the Partnership equal to its
percentage interest in the Authorization pursuant to the Joint Agreement.
3.2. Capital Contributions. Each Party shall from time to time contribute
to the partnership in cash its pro rata share of the amounts requested in
writing ("Capital Call") by the Executive Committee. Each Party's additional
capital contribution(s) shall be made within a period specified in the Capital
Call which shall be not less than thirty days following the date that the
Capital Call for the contribution is delivered to such Party pursuant to Section
11.10 below. For purposes of this Agreement, each Party's pro rata share shall
equal the result by dividing its ownership Interest by the ownership Interest of
all Parties at the time of the Capital Call. Capital Calls made to the Parties
shall include an explanation of the anticipated uses of the funds requested
thereby.
3.3. Ownership Percentages. Each Party shall initially have an ownership
interest in the partnership as set forth in Schedule A. After contributions have
been made in response to each Capital Call, the Ownership Interest held by each
Party shall equal the percentage derived by dividing such Party's total capital
contributions by the total capital contributions made by all of the Parties.
3.4. Failures to Contribute. If any Party fails to make all or part of any
Capital Call when due pursuant to Section 3.2 above, then such Party shall be
considered to be in default of its obligations hereunder, and the provisions of
Section 9.2 hereof shall apply. No right to cure under this Agreement shall
apply to any failure to make a Capital Call when due, unless approved by
unanimous vote of the Executive Committee. Each deficiency in meeting a Capital
Call may be met by a further pro rata Capital Call on Parties other than the
Party or Parties responsible for the deficiency. Such further contributions
shall be credited to
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the Capital Accounts and the ownership Interests of the Parties making such
further contributions.
3.5. Application Expenses. No Party shall be entitled to any reimbursement
of, or to be credited as having made a capital contribution as a result of,
expenses incurred in connection with its own application or with the dismissal
or contribution thereof on behalf of the partnership; provided, however, that
the Capital Account of each Party shall be deemed to include each such Party's
share of the value of the Authorization as set forth in Section 3.1 hereof. The
costs of prosecuting the application to construct and build the System which are
incurred after the lottery, defending the grant of such application, and other
costs associated with or incidental to the development of the partnership
Business shall be borne by the Partnership, and not individually by any Party.
This includes all such costs incurred subsequent to the applicable lottery and
prior to the formation of the partnership.
3.6. Loans. Any funds heretofore or hereafter provided to the partnership
by a Partner other than the Partner's capital contributions pursuant to Sections
3.1 and 3.2 shall be treated as a loan. A loan by a Partner to the partnership
shall not enlarge the lending Partner's Ownership Interest but shall constitute
a debt due from the partnership to the lending Partner. Partners' loans shall be
on terms (including terms relating to the accrual and payment of interest,
security, and events of default) that the Executive Committee determines in its
sole discretion to be in the best interests of the Partnership.
4. Capital Accounts and Allocations
4.1. Title to Property. The Partnership shall hold sole and exclusive
title to the capital of the Partnership and to all applications, authorizations,
equipment and other property, whether real, personal or intangible, acquired by
the Partnership. No Party shall have any right, in law or equity, to request the
partition of any asset or property of the Partnership, or to demand property
other than cash upon any distribution by the Partnership.
4.2. Capital Accounts. A separate Capital Account shall be maintained for
each Party on the books of the Partnership, in accordance with generally
accepted accounting principles. The Capital Account of each Party shall consist
of (i) such Party's share of the value attributed to the Authorization pursuant
to Section 3.1 hereof, (ii) capital contributions already made by such Party as
of the date
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hereof, and (iii) additional capital contributions made pursuant to Capital
Calls. In addition, the Capital Account of each Party shall be credited with the
net income and gain, if any, of the Partnership allocated to such Party and be
charged with the net losses, if any, of the Partnership allocated to such Party,
together with all distributions made by the Partnership to such Party. The
Partnership shall keep separate account of each Party's capital contributions
pursuant to Capital Calls. No Party shall be entitled to interest on its Capital
Account. For purposes of this Agreement, Partnership net income, loss and gain
shall be determined by the Executive Committee in accordance with generally
accepted accounting principles.
4.3. Distributions. Distributions of net income and other Partnership
proceeds to the Parties shall be made quarterly in accordance with their
Ownership Interests at the time of distribution. However, the amount available,
if any, for each such distribution shall be determined by the Executive
Committee. Distributions of net income shall not exceed such quarter year's net
income, less the amount determined by the Executive Committee to be reasonably
required for non-expensed items in the Partnership's budget, such as payments
of debt principal due or past due, capital investment needs, and working
capital. No Party shall be required to make a capital contribution to provide
the funds necessary to make a distribution, nor shall the Partnership be
required to borrow money for such purpose.
4.4. Tax Allocations. Taxable income, gain or loss, and items of tax
credit of the Partnership for each taxable year shall be determined by the
Executive Committee in accordance with applicable federal income tax laws,
rules, and regulations and shall be allocated among the Parties in proportion to
their Ownership Interests. Income of the Partnership in any taxable year which
is exempt from federal income taxation shall be allocated among the Parties in
proportion to the allocation of taxable income among the Parties for such year.
5. Management
5.1. Voting. Each Party's voting percentage shall equal the percentage of
its Ownership Interest in the Partnership. A Majority Vote shall be required to
act on all matters requiring a vote of the Parties, except that a Supermajority
Vote shall be necessary for (i) the participation of the Partnership in any
business other than the Partnership Business; (ii) the amendment or modification
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of this Agreement; and (iii) the sale or transfer of control of the
Authorization (except for pro forma transfers).
5.2. Meetings. A meeting of the Parties shall be held at least once during
each calendar year beginning after the date of this Agreement. Special meetings
of the Parties may be called at any time by the Executive Committee, or by any
Party or combination of Parties representing in the aggregate at least
thirty-five percent (35%) in Ownership Interests. Parties holding a total of at
least fifty percent (50%) in Ownership Interests shall constitute a quorum
necessary for a meeting. Each Party may designate a person who will represent
such Party at meetings of the Parties, either directly or by proxy, by giving
written notice thereof to the Executive Committee. The person so designated will
continue to be that Party's representative and to hold its proxy until the
Executive Committee receives written notice of the designation of a successor
representative by the Party in question.
5.3. Executive Committee. Except as otherwise provided in this Agreement,
complete and exclusive power to conduct the business affairs of the Partnership
shall be delegated to the Executive Committee. Prior to the first annual meeting
of the Parties, PCI shall be deemed to be the Executive Committee and to have
all the powers thereof. Each member of the Executive Committee shall be elected
at the annual Parties' meeting, and each member may be removed at any time, by
the Majority Vote of the Parties. However, if one Party is entitled or
authorized to vote at least fifty percent of the Partnership votes but less than
seventy-five percent of the Partnership votes, then one Executive Committee
member shall be elected, and may be removed, only by the Majority Vote of the
other Parties. Notwithstanding the foregoing, the Executive Committee may fill
by appointment any vacancy in its membership which occurs between annual
meetings, or if the annual meeting fails to elect all required members of the
Executive Committee. More than one of a Party's representatives may be elected
to membership on the Executive Committee at the same time. Meetings of the
Executive Committee shall be held not less than once each fiscal quarter, and
such meetings may be held by conference telephone call. A majority of the
Executive Committee shall constitute a quorum for the transaction of its
business. Each action of the Executive Committee shall require a vote of a
majority of the Executive Committee members casting a vote.
5.4. Chairman and Employees. The Executive Committee shall elect a
Chairman from among its members. The Chairman
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shall preside at all Executive Committee meetings and all meetings of the
Parties. The Executive Committee may delegate responsibilities and authority to
the Chairman, the System's General Manager, or to other Partnership employees to
the extent it considers appropriate in its sole discretion. The System's General
Manager may be delegated the day-to-day responsibility for conducting the
Partnership Business.
5.5. Meeting Notices. Written notice of each meeting of the Parties and
each meeting of the Executive Committee shall be given by the Chairman of the
Executive Committee to each Party and Executive Committee member, respectively.
The notice shall state the place, date, hour and purpose of the meeting. Notice
of any meeting shall be given not less than ten nor more than thirty days before
the date of the meeting, unless otherwise waived in writing. When a meeting is
adjourned to reconvene at another time or place, it shall not be necessary to
give notice of the reconvened meeting, if the time and place of the reconvened
meeting are announced at the adjourned meeting.
5.6. Minutes. Minutes reflecting the actions taken at meetings of the
Partnership and the Executive Committee shall be kept. Copies of the minutes
shall be maintained at the office of the Partnership and shall be promptly
transmitted to any Party or such Party's representative upon written request.
5.7. Arrangements with Parties. The partnership may enter into reasonable
agreements with any Party or an affiliate of such Party for the performance of
services or the acquisition and/or leasing of equipment or other property.
However, each such agreement shall be on terms not substantially less favorable
to the Partnership than could readily be obtained from a person or entity who is
not a Party or an affiliate of such Party.
5.8. Reasonable Skill and Care. In carrying out its duties and exercising
its powers hereunder, the Executive Committee shall exercise reasonable skill
and care and reasonable business judgment. The Executive Committee shall not be
liable to the Partnership or to the Parties for any act or omission performed or
omitted by it in good faith pursuant to the authority granted to it by this
Agreement, unless such act or omission constitutes gross negligence or willful
misconduct by the Executive Committee.
5.9. Indemnification. The Partnership shall indemnify and hold harmless
the Executive Committee and each of its
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members from any loss or damage, including attorney's fees, incurred by it by
reason of any act performed by it on behalf of the Partnership or in furtherance
of the Partnership Business; provided, however, that such indemnification or
agreement to hold harmless shall be recoverable only out of the assets of the
Partnership and not from the Parties; and provided, further, that the foregoing
indemnity shall extend only to acts or omissions performed or omitted by the
Executive Committee in good faith and in the belief that its acts or omissions
were in the Partnership's interest, and which are not a result of gross
negligence or willful misconduct on the part of the Executive Committee. Nothing
in this Section 5.9 shall prohibit the Executive Committee from acquiring and
entering into contracts of insurance at the expense of the Partnership that will
provide protection to the Executive Committee from liability for its negligence.
5.10. Individual Parties to Have No Authority. No Party shall take any
part in the conduct or control of the Partnership's business or have any right
or authority to act for or on behalf of the Partnership except as (a) a member
of the Executive Committee or (b) an agent or employee of the Partnership.
6. Books and Accounts
6.1. Fiscal Year. The fiscal year of the Partnership shall end on December
31st in each year, or on such other date as may be approved by the Executive
Committee from time to time.
6.2. Books and Records. The Partnership shall maintain proper books and
accounts in accordance with generally accepted accounting principles and the
provisions of this Agreement. Upon the close of each fiscal year ending after
the date of this Agreement, or as otherwise approved by the Executive Committee,
all such books and accounts shall be audited by the accountants for the
partnership selected by the Executive Committee in its sole discretion.
6.3. Reports and Tax Returns. At least fifteen days prior to the
commencement of each fiscal year beginning after the date of this Agreement, the
Executive Committee shall mail to each Party the budget for the Partnership for
the fiscal year. Within one-hundred and twenty days after the end of each fiscal
year ending after the date of this Agreement, except in extraordinary
situations, the Executive Committee shall mail to each Party (i) financial
statements for the Partnership, including its balance sheet as of the
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end of such preceding fiscal year, its statement of income and earnings for the
preceding fiscal year, and a statement of cash flows for the preceding fiscal
year; and (ii) all necessary financial, tax, and other data required for
inclusion in or preparation of tax returns for the Parties. The Executive
Committee may issue other reports from time to time as it considers appropriate.
6.4. Right of Inspection. Each Party shall have the right, at its own
expense, to examine and inspect, at reasonable times during normal business
hours, the books, records, accounts, properties, and operations of the
Partnership. Such examination and inspection may be conducted by a Party or its
authorized agents. However, such examination or inspection shall not
unreasonably interfere with the operation of the Partnership or the System.
7. Transfers of Interests
7.1. Assignment Permitted. Subject to the grant by final order of any
required FCC or other regulatory consent, and subject to the terms of this
Agreement, each Party may sell, assign, or exchange (collectively "Assign") all
or part of its Ownership Interest to or with any other person or entity
("Assignee"). However, the assigning Party shall remain fully liable for any and
all of its obligations as a Party which are incurred prior to the date upon
which the assignment of its Ownership Interest is effective. The Assignee
thereafter shall be subject to all the terms and conditions of this Agreement,
including all obligations under this Agreement which are attributable to the
assigned Ownership Interest.
7.2. Notice of Assignment. A Party who agrees or is required to sell,
assign or exchange all or part of its ownership Interest shall notify the
Executive Committee at least ten (10) days in advance of the consummation of
such sale, assignment, or exchange (collectively "Assignment"). The notice shall
set forth the name, address, citizenship, and other information necessary to
establish the legal qualifications of the Assignee to hold the interest to be
assigned. This notice is for information purposes only, and shall not constitute
the offering of any right of first refusal to purchase the interest.
7.3. Approvals and Documentation. If the prior consent of the FCC, any
state regulatory agency or other governmental authority is required for any
Assignment, such consent shall be obtained by final order prior to the
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consummation of any Assignment and admittance of the Assignee as a Party. The
Assignee shall execute and acknowledge all instruments and applications, in form
and substance satisfactory to counsel for the Partnership, which are necessary
or desirable to obtain such consent, to effectuate the Assignment, to admit the
Assignee as a Party, and to bind the Assignee under all of the terms and
conditions of this Agreement. Prior to admission as a Party, the Assignee shall
reimburse the Partnership for all reasonable expenses, including attorney's
fees, incurred by the Partnership in connection with the Assignment.
7.4. Preservation of Authorization. No Party may assign all or part of its
Ownership Interest to any other person or entity unless the Assignment, in the
opinion of the Partnership's counsel, will not disqualify the Partnership from
receiving or holding the Authorization.
7.5. Involuntary Assignment. Upon the death, bankruptcy, insolvency or
incompetency of any Party, the legal representative, guardian, receiver,
creditor's committee or other successor-in-interest of such Party, as the case
may be, shall notify the Executive Committee in writing of such event and,
subject to section 7.3 and Section 7.4 above, shall be assigned such Party's
Ownership Interest and be admitted as a Party.
7.6. Encumbrance of Ownership Interest. No Party shall pledge,
hypothecate, grant a security interest in, or otherwise encumber its Ownership
Interest in the Partnership, unless (i) such Party gives not less than fifteen
(15) days prior written notice to the Executive Committee of the creation of the
encumbrance; (ii) the encumbrance attaches solely to the subject ownership
Interest, and does not attach to any real, personal or intangible property,
equipment, or other asset of the Partnership; (iii) the secured party is
obligated to comply with Sections 7.2, 7.3, 7.4, and 7.5, above, in the event it
attempts to enforce the encumbrance. Notwithstanding the foregoing, any Party
may be required, by a vote of the Executive Committee, to pledge its Ownership
Interest to a vendor or financial institution if such pledge is reasonably
necessary to finance the construction and/or operation of the System.
8. Representations and Warranties
Each Party to this Agreement hereby represents and warrants that:
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(a) it is duly formed (if not a natural person), validly existing,
and in good standing under the state and local laws to which it is subject, with
full power and authority to enter into and to perform its obligations under this
Agreement;
(b) its execution and performance of this Agreement will not
conflict with, or result in a material breach of or default under, any
agreement, instrument, law, regulation, order, decree or judgment to which it is
subject;
(c) this Agreement is binding and enforceable against it;
(d) it shall appoint a representative who shall have full power and
authority to vote for it on Partnership matters and such authority shall not be
abrogated until a successor representative is appointed;
(e) it is and will remain qualified under applicable FCC standards
to hold the Authorization, and to hold its Ownership Interest in the
Partnership;
(f) it has no knowledge of any fact or circumstance which would
disqualify it or the Partnership from receiving or holding a final grant of the
Authorization;
(g) the statements made in its application for the Authorization are
true, correct and complete and it neither has nor will have any prohibited
cross-interest in any other mutually exclusive application or settlement group;
(h) it has not engaged and shall not engage in any improper act,
practice or omission which, if not timely corrected, would result in
disqualification of the Partnership for the Authorization, or any recision,
revocation or non-renewal of the Authorization;
(i) it is experienced enough in the business of the partnership to
be capable of exercising its partnership voting rights intelligently;
(j) it has received no solicitation or general advertisement, has
attended no seminar or meeting, and has received no other written communication
concerning its acquisition of an interest in the Partnership;
(k) it confirms that no representations or warranties have been made
to it and that it has not relied
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upon any representation or warranty in connection with its acquisition of an
interest in the Partnership;
(1) it acquired its interest in the Partnership for its own account
and not with a view to, or for sale in connection with, the distribution
thereof;
(m) it is aware of and understands that no governmental agency has
made a finding or determination concerning the fairness of an investment in the
Partnership or any recommendation or endorsement of interests therein, and that
interests in the Partnership were not and have not been registered under the
Securities Act of 1933 and cannot be resold unless they are registered under the
Act or unless an exemption from registration is available.
9. Default
9.1. Default. If a Party for any reason breaches any agreement,
representation or warranty contained in this Agreement, and such breach is not
cured within thirty (30) days after written notice of the breach is provided to
the defaulting Party, then the Party shall be considered to be in default under
this Agreement. Any Party who is in default shall be liable to the Partnership
for, and shall indemnify the Partnership against, all damages, losses, and/or
expenses suffered or incurred by the Partnership, including reasonable
attorney's fees and litigation expenses resulting from such default. The
Partnership shall have the right to offset any damages, losses, and/or expenses
suffered or incurred by it, including reasonable attorney's fees and litigation
expenses, as the result of a default by any Partner against any amounts owed by
the Partnership to the defaulting Party. The exercise by the Partnership of its
rights as provided in Section 9.2 below shall not relieve the Party of such
liability or indemnification obligation and shall not constitute a waiver, by
any Party or the Partnership, of any right or remedy against the defaulting
Party under this Agreement, including the right to offset damages, losses and
expenses against any amount owed to the defaulting Party.
9.2. Sale on Material Default. Each Party who is in default under the tens
of this Agreement shall be required, upon the request of the Partnership, and
subject to any required FCC consent, to transfer to the Partnership the whole of
its Ownership Interest in the Partnership, for consideration equal to the
balance of its Capital Account. The provisions of this paragraph may be waived
by the Executive Committee in its sole discretion.
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10. Dissolution and Termination
10.1. Dissolution. Subject to prior FCC and regulatory consent, if any is
required, the Partnership shall be dissolved upon the occurrence of any of the
following events: (i) a Majority Vote to dissolve the Partnership (ii) the sale
or assignment of substantially all of the assets of the Partnership; (iii) the
filing by, or against, the Partnership of any petition in bankruptcy or the
appointment of a creditors committee with respect to the Partnership; and (iv)
any other act of termination by a Party, except for involuntary assignments
addressed by Section 7.5 above.
10.2. Right to Continue. If the Partnership is dissolved pursuant to
Section 10.1 (iv), above, or otherwise by law, the Parties agree to continue the
Partnership Business in order to ensure uninterrupted service to the public
until such time as a successor entity has been established to operate the
system.
10.3. Winding Up. In the event of the dissolution of the Partnership for
any reason, unless the Partnership is continued pursuant to Section 10.2 above,
the Partnership shall be liquidated and its affairs wound up by the Executive
Committee in an orderly yet proper manner. The Parties shall continue to share
all items of income, gain, loss, deduction or credit for tax purposes, and all
profits and losses for accounting purposes, during the period of liquidation in
the same manner as before the dissolution. In order to obtain full market value
from the sale of Partnership assets, the Executive Committee shall have the full
right and discretion to determine the time, manner and terms of each sale of
partnership property pursuant to the liquidation.
10.4. Distribution Upon Liquidation. After paying or providing for the
payment of all debts and liabilities of the Partnership and all expenses of
liquidation, and after reserving funds reasonably sufficient to cover contingent
or unforeseen liabilities or obligations of the Partnership, the proceeds of the
liquidation and any other assets of the Partnership shall be distributed to the
Parties in accordance with their Ownership Interests at the time of
distribution.
11. Power of Attorney.
11.1. Appointment. Each Partner irrevocably constitutes and appoints PCI
as the Partner's true and lawful attorney-in-fact, with full power and authority
in the name,
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place, and stead of such Partner to make, execute, verify, consent to, swear to,
acknowledge, publish, record, and file all the following:
(a) Any amendment to this Agreement approved pursuant to the terms
of this Agreement.
(b) Any certificate, consent, or other instrument that may be
required to be filed by the Partnership or the Partners under the laws of any
state or jurisdiction, if the Executive Committee deems filing necessary or
desirable.
(c) Any documents or other instruments described in Section 12.1.
(d) Any pledge agreement pursuant to Section 7.6 and any financing
statement relating to the pledge of interests in the Partnership.
(e) Any amendments to or modifications of the instruments described
above.
11.2. Power Irrevocable. Each Partner understands and intends that the
foregoing power of attorney is coupled with an interest and is irrevocable. The
foregoing power of attorney shall survive the death, incapacity, or dissolution
of the Partner and the assignment of all or part of the Partner's interest in
the Partnership.
11.3. Evidence of Authority. The execution and delivery by PCI of any
agreement, certificate, consent, or other instrument shall be conclusive
evidence that its execution and delivery was authorized by the foregoing power
of attorney.
12. Miscellaneous
12.1. Mutual Cooperation. Each Party shall, in good faith, cooperate with
each other Party, the Partnership, and the Executive Committee in promptly
undertaking all actions, executing all documents, and filing all materials with
the FCC, any other governmental body, any lender, vendor, or financial
institution as may reasonably be necessary or desirable to fulfill each of the
Party's obligations under this Agreement.
12.2. Other Business. Nothing contained in this Agreement shall restrict
any Party or any affiliate of such Party from engaging in any business outside
of and independent from the Partnership, except that no Party or
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affiliate of such Party shall be a sales agent or reseller of the wireline
cellular system in the Market.
12.3. Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the Parties, their legal
representatives, heirs, administrators, executors, successors, and permitted
assigns.
12.4. No Agency. The Parties understand and agree that neither this
Agreement nor the Partnership itself grants or creates in any Party or the
Partnership any power of agency to bind or obligate the Parties, except as
expressly set forth in this Agreement.
12.5. Confidential Information. Under no circumstances shall any Party
utilize or disclose in any manner which is in any way adverse to the interests
of the Partnership or any other Party any confidential information, including
engineering, technical, managerial and marketing information, whether or not
patentable or subject to copyright, disclosed by a Party to the partnership or
to the other Parties in connection with Partnership matters or created by the
Partnership itself or by the Parties in connection with Partnership matters.
12.6. Specific Performance. Each Party acknowledges that monetary damages
for breach of any of the provisions of this Agreement would be inadequate. Each
Party therefore acknowledges that specific performance, temporary and permanent
injunctive relief, and other appropriate remedies may be granted to enforce such
provision without proof of actual damage or the inadequacy of the remedy at law.
12.7. Severability. If any provision of this Agreement is determined by
any court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall continue to be in full force and effect.
12.8. Governing Law. This Agreement and the rights of the Parties
hereunder shall be governed, interpreted, and enforced in accordance with the
laws of the State of Georgia.
12.9. Final Order. For purposes of this Agreement, a final order of a
government authority shall mean an order which is effective and is no longer
subject to administrative or court reconsideration, review, appeal or stay.
12.10. Notices. All notices, demands, and Capital Calls required or
permitted under this Agreement shall be in
- 17 -
writing and shall be conclusively presumed to have been delivered to the
recipient three business days after posting in the United States mail, first
class, postage prepaid, to the recipient's address shown at the time in the
records of the Partnership. Any Party may specify a different address by
notifying each of the Parties or the Executive Committee in writing of the
change in address.
12.11. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon the same instrument.
12.12. Headings. All article, section and paragraph titles or captions
contained in this Agreement are for convenience only and shall not be deemed
part of the text of this Agreement.
12.13. Pronouns. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or plural as the context
may require.
12.14. Entire Agreement. This Agreement and the Counterpart Signature
pages specifying the Partnership constitute the entire Agreement between the
parties, superseding all prior agreements or understandings between the Parties.
This Agreement may be modified or amended only by an instrument in writing
adopted in accordance with the provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned has executed this agreement this
______ day of ___________ 1989.
Name of Party:
By:________________________
Name:______________________
Title:______________________
COUNTERPART SIGNATURE PAGE TO
COLUMBUS CELLULAR TELEPHONE COMPANY
PARTNERSHIP AGREEMENT
The undersigned, being the transferee of general partnership interests of
Columbus Cellular Telephone Company, a Georgia partnership, as of March 21,
1995, hereby accepts and agrees to be bound by all of the terms of the Columbus
Cellular Telephone Company Partnership Agreement, dated as of March 1, 1989, as
a partner thereunder.
XXXXXX WIRELESS, INC.
Dated: March 21, 1995 By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Its: PRESIDENT CEO
COUNTERPART SIGNATURE PAGE TO
COLUMBUS CELLULAR TELEPHONE COMPANY
PARTNERSHIP AGREEMENT
The undersigned, being the transferee of general partnership interests of
Columbus Cellular Telephone Company, a Georgia partnership, as of March 21,
1995, hereby accepts and agrees to be bound by all of the terms of the Columbus
Cellular Telephone Company Partnership Agreement, dated as of March 1, 1989, as
a general partner thereunder.
XXXXXX WIRELESS HOLDINGS, INC.
Dated: March 21, 1995 By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Its: President and Chief Executive
Officer
