AGREEMENT OF LIMITED PARTNERSHIP
A DELAWARE LIMITED PARTNERSHIP
dated as of October 24, 1994
SPRINT SPECTRUM, INC.
TCI NETWORK, INC.
COMCAST TELEPHONY SERVICES
COX COMMUNICATIONS WIRELESS, INC.
TABLE OF CONTENTS
SECTION 1 THE PARTNERSHIP 1
1.1 Formation. 1
1.2 Name. 1
1.3 Purpose. 1
1.4 Principal Executive Office. 2
1.5 Term. 2
1.6 Filings; Agent for Service of Process. 3
1.7 Title to Property. 3
1.8 Payments of Individual Obligations. 3
1.9 Independent Activities. 3
1.10 Definitions. 4
1.11 Additional Definitions. 23
1.12 Terms Generally. 26
SECTION 2 PARTNERS' CAPITAL CONTRIBUTIONS 27
2.1 Percentage Interests; Preservation of Percentages of
Interests Held as General Partners and as Limited
2.2 Partners' Original Capital Contributions. 27
2.3 Additional Capital Contributions. 28
2.4 Failure to Contribute Capital. 32
2.5 Other Additional Capital Contributions. 47
2.6 Partnership Funds. 37
2.7 Partner Loans; Other Borrowings. 37
2.8 Other Matters. 38
SECTION 3 ALLOCATIONS 39
3.1 Profits. 39
3.2 Losses. 40
3.3 Special Allocations. 40
3.4 Curative Allocations. 42
3.5 Loss Limitation. 43
3.6 Other Allocation Rules. 43
3.7 Tax Allocations: Code Section 704(c). 44
SECTION 4 DISTRIBUTIONS 44
4.1 Available Cash. 44
4.2 Tax Distributions. 44
4.3 Amounts Withheld. 45
SECTION 5 MANAGEMENT 45
5.1 Authority of the Management Committee. 45
5.2 Business Plan and Annual Budget. 50
5.3 Employees. 53
5.4 Limitation of Agency. 53
5.5 Liability of Partners and Representatives. 54
5.6 Indemnification. 54
5.7 Temporary Investments. 56
5.8 Deadlocks. 56
5.9 Conversion to Corporate Form. 57
SECTION 6 PARTNERSHIP OPPORTUNITIES;
6.1 Engaging in Wireless Businesses. 58
6.2 Enforceability and Enforcement. 61
6.3 General Exceptions to Section 6.1. 61
6.4 Comcast Exceptions. 63
6.5 Freedom of Action. 67
6.6 Confidentiality. 68
SECTION 7 ROLE OF EXCLUSIVE LIMITED PARTNERS 70
7.1 Rights or Powers. 70
7.2 Voting Rights. 70
SECTION 8 TRANSACTIONS WITH PARTNERS; OTHER
8.1 Sprint Cellular. 71
8.2 Sprint Brand Licensing Agreement. 71
8.3 Joint Marketing Agreement. 72
8.4 Network Services Agreement. 72
8.5 Preferred Provider. 72
8.6 MFJ 73
8.7 Interested Party Transactions. 73
8.8 Access to Technical Information 74
8.9 Parent Undertaking. 74
8.10 Certain Additional Covenants. 74
8.11 PioneerCo Preemptive Rights. 75
8.12 Foreign Ownership 75
SECTION 9 REPRESENTATIONS AND WARRANTIES 76
SECTION 10 ACCOUNTING, BOOKS AND RECORDS 78
10.1 Accounting, Books and Records. 78
10.2 Reports. 78
10.3 Tax Returns and Information. 80
10.4 Proprietary Information. 81
SECTION 11 ADVERSE ACT 81
11.1 Remedies. 81
11.2 Adverse Act Purchase. 83
11.3 Net Equity. 86
11.4 Gross Appraised Value. 87
11.5 Extension of Time. 88
SECTION 12 DISPOSITIONS OF INTERESTS 89
12.1 Restriction on Dispositions. 89
12.2 Permitted Transfers. 89
12.3 Conditions to Permitted Transfers. 89
12.4 Right of First Refusal. 92
12.5 Tagalong Rights. 96
12.6 Partner Put Rights. 97
12.7 Prohibited Dispositions. 100
12.8 Representations Regarding Transfers. 100
12.9 Distributions and Allocations in Respect of
Transferred Interests 100
SECTION 13 CONVERSION OF INTERESTS 101
13.1 Termination of Status as General Partner. 101
13.2 Restoration of Status as General Partner. 101
SECTION 14 DISSOLUTION AND WINDING UP 102
14.1 Liquidating Events. 102
14.2 Winding Up. 102
14.3 Compliance With Certain Requirements of Regulations;
Deficit Capital Accounts. 104
14.4 Deemed Distribution and Recontribution. 104
14.5 Rights of Partners. 105
14.6 Notice of Dissolution. 105
14.7 Buy/Sell Arrangements. 105
SECTION 15 MISCELLANEOUS 108
15.1 Notices. 108
15.2 Binding Effect. 108
15.3 Construction. 108
15.4 Time. 108
15.5 Table of Contents; Headings. 109
15.6 Severability. 109
15.7 Incorporation by Reference. 109
15.8 Further Action. 109
15.9 Governing Law. 109
15.10 Waiver of Action for Partition; No Bill For
Partnership Accounting. 109
15.11 Counterpart Execution. 110
15.12 Sole and Absolute Discretion. 110
15.13 Specific Performance. 110
15.14 Entire Agreement. 110
15.15 Limitation on Rights of Others. 110
15.16 Waivers; Remedies. 110
15.17 Jurisdiction; Consent to Service of Process. 111
15.18 Waiver of Jury Trial. 111
15.19 No Right of Set-Off. 112
AGREEMENT OF LIMITED PARTNERSHIP
A DELAWARE LIMITED PARTNERSHIP
This AGREEMENT OF LIMITED PARTNERSHIP is entered into as of the 24th day of October, 1994, by and among Sprint Spectrum, Inc., a Kansas corporation ("Sprint"), TCI Network, Inc., a Colorado corporation ("TCI"), Comcast Telephony Services, a Delaware general partnership ("Comcast"), and Cox Communications Wireless, Inc., a Delaware corporation ("Cox"), each as a General Partner and a Limited Partner, pursuant to the provisions of the Delaware Revised Uniform Limited Partnership Act, on the following terms and conditions:
The Partners hereby form the Partnership as a limited partnership pursuant to the provisions of the Act for the purposes and upon the terms and conditions set forth in this Agreement.
The name of the Partnership shall be WirelessCo, L.P, and all business of the Partnership shall be conducted in such name or, in the discretion of the Management Committee, under any other names (but excluding a name that includes the name of a Partner unless such Partner has consented thereto).
(a) Subject to, and upon the terms and conditions of this Agreement, the purposes and business of the Partnership shall be to develop (through acquisition, lease, construction, investment or otherwise) a seamless, integrated, competitive Wireless Business providing Wireless Exclusive Services and Non-Exclusive Services nationwide, and to operate, manage and maintain such business. Without the unanimous consent of the Partners, the Partnership shall not engage in any other business, including any of the Excluded Businesses. During the term of the Trademark License and upon the terms and conditions thereof, the Partnership's services will be marketed under the Sprint Brand. In furtherance of its purposes, but subject to the terms and conditions of this Agreement, the Partnership may do any or all of the following: provide certain services to other operators of Wireless Businesses that provide Wireless Exclusive Services and Non-Exclusive Services pursuant to Affiliation Agreements or other contractual relationships with such operators (including
PioneerCo); make and prosecute applications and bids for licenses for such Wireless Business and renewals thereof; invest in Persons holding licenses for such Wireless Businesses (including PioneerCo); and design, construct, develop and dispose of systems for such Wireless Business.
(b) The Partnership shall have all the powers now or hereafter conferred by the laws of the State of Delaware on limited partnerships formed under the Act and, subject to the limitations of this Agreement, may do any and all lawful acts or things that are necessary, appropriate, incidental or convenient for the furtherance and accomplishment of the purposes of the Partnership. Without limiting the generality of the foregoing, and subject to the terms of this Agreement, the Partnership may enter into, deliver and perform all contracts, agreements and other undertakings and engage in all activities and transactions as may be necessary or appropriate to carry out its purposes and conduct its business.
(c) Simultaneously with the execution of this Agreement, the Parents of the Partners have entered into the Joint Venture Formation Agreement, pursuant to which (subject to the satisfaction of certain conditions) NewTelco will be formed by the Partners on the NewTelco Closing Date to engage in the businesses described in the Joint Venture Formation Agreement. On the NewTelco Closing Date, NewTelco and the Partnership will be combined in a manner to be agreed upon by the Partners.
1.4 Principal Executive Office.
The principal executive office of the Partnership shall be located in such place as determined by the Management Committee, and the Management Committee may change the location of the principal executive office of the Partnership to any other place within or without the State of Delaware upon ten (10) Business Days prior notice to each of the Partners, provided that such principal executive office shall be located in the United States. The Management Committee may establish and maintain such additional offices and places of business of the Partnership, within or without the State of Delaware, as it deems appropriate.
The term of the Partnership shall commence on the date the certificate of limited partnership described in Section 17-201 of the Act (the "Certificate") is filed in the office of the Secretary of State of Delaware in accordance with the Act and shall continue until the winding up and liquidation of the Partnership and its business is completed following a Liquidating Event, as provided in Section 14.
1.6 Filings; Agent for Service of Process.
(a) Promptly following the execution of this Agreement, the General Partners shall cause the Certificate to be filed in the office of the Secretary of State of Delaware in accordance with the Act. The Management Committee shall take any and all other actions reasonably necessary to perfect and maintain the status of the Partnership as a limited partnership under the laws of Delaware. The General Partners shall cause amendments to the Certificate to be filed whenever required by the Act. The Partners shall be provided with copies of each document filed or recorded as contemplated by this Section 1.6 promptly following the filing or recording thereof.
(b) The General Partners shall execute and cause to be filed original or amended Certificates and shall take any and all other actions as may be reasonably necessary to perfect and maintain the status of the Partnership as a limited partnership or similar type of entity under the laws of any other states or jurisdictions in which the Partnership engages in business.
(c) The registered agent for service of process on the Partnership shall be The Corporation Trust Company or any successor as appointed by the Management Committee in accordance with the Act. The registered office of the Partnership in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
1.7 Title to Property.
No Partner shall have any ownership interest in its individual name or right in any real or personal property owned, directly or indirectly, by the Partnership, and each Partner's Interest shall be personal property for all purposes. The Partnership shall hold all of its real and personal property in the name of the Partnership or its nominee and not in the name of any Partner.
1.8 Payments of Individual Obligations.
The Partnership's credit and assets shall be used solely for the benefit of the Partnership, and no asset of the Partnership shall be transferred or encumbered for, or in payment of, any individual obligation of any Partner.
1.9 Independent Activities.
Each Partner and any of its Affiliates shall be required to devote only such time to the affairs of the Partnership as such Partner determines in its sole discretion may be necessary to manage and operate the Partnership to the extent contemplated by this Agreement, and each such Person, except as expressly provided herein, shall be free to serve any other Person or enterprise in any capacity that it may deem appropriate in its discretion.
Capitalized words and phrases used in this Agreement have the following meanings:
"Act" means the Delaware Revised Uniform Limited Partnership Act, as set forth in Del. Code Ann. tit. 6, 17-101 to 17-1109.
"Accountants" means, as of any time, such firm of nationally recognized independent certified public accountants that, as of such time, has been appointed by the Management Committee as the accountants for the Partnership.
"Additional Capital Contributions" means, with respect to each Partner, the Capital Contributions made by such Partner pursuant to Sections 2.3, 2.4 and 2.5, reduced by the amount of any liabilities of such Partner assumed by the Partnership in connection with such Capital Contributions or which are secured by any property contributed by such Partner as a part of such Capital Contribution. In the event all or a portion of an Interest is Transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Additional Capital Contributions of the transferor to the extent they relate to the transferred Interest.
"Additional Contribution Agreement" means a contribution agreement the terms of which have been approved by the Unanimous Vote of the Management Committee pursuant to which a Partner makes an Additional Capital Contribution to the Partnership pursuant to Section 2.5.
"Additional Contribution Notice" means a written notice given to all Partners, which shall (i) state the Additional Contribution Amount being requested of all Partners and each Partner's proportionate share thereof determined as provided in Section 2.3(a) (or, in the case of a required Additional Capital Contribution in respect of a Declined Accelerated Contribution, as provided in Section 2.3(c)), (ii) specify in reasonable detail the purposes for which the Additional Contribution Amount is required, (iii) identify a date (the "Contribution Date"), not more than forty-five (45) days nor less than thirty (30) days after the date of such notice, upon which the Additional Capital Contributions are to be made and (iv) specify the account of the Partnership to which the contribution is to be made; provided that any Additional Contribution Notice with respect to any portion of the Auction Commitment of the Partners may require the Additional Capital Contribution to be made on a date that is less than thirty (30) days, but not less than two (2) days, after the date of such notice.
"Adjusted Capital Account Deficit" means, with respect to any Exclusive Limited Partner, the deficit balance, if any, in such Exclusive Limited Partner's Capital Account as of the end of the relevant Allocation Year, after giving effect to the following adjustments:
(i) Credit to such Capital Account any amounts which such Exclusive Limited Partner is obligated to restore pursuant to any provision of this Agreement or is deemed to be obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.
"Adverse Act" means, with respect to any Partner, any of the following:
(i) Such Partner becomes a Defaulting Partner;
(ii) Such Partner Disposes of all or any part of its Interest except as required or permitted by this Agreement; provided, however, that no Adverse Act shall be considered to have occurred until thirty (30) days following the involuntary encumbrance of all or any part of such Interest if during such thirty (30) day period the affected Partner acts diligently to, and prior to the end of such thirty (30) day period does, remove any such encumbrance, including effecting the posting of a bond to prevent foreclosure where necessary;
(iii) Such Partner has committed a material breach of any covenant contained in this Agreement (other than as otherwise expressly enumerated in this definition) or a material default on any obligation provided for in this Agreement (other than as otherwise expressly enumerated in this definition) and such breach or default continues for thirty (30) days after the date written notice thereof has been given to such Partner by any other Partner (with a copy to the Management Committee and each other Partner); provided that if such breach or default is not a failure to pay money and is of such a nature that it cannot reasonably be cured within such thirty (30) day period, but is curable and such Partner in good faith begins efforts to cure it within such thirty (30) day period and continues diligently to do so, such Partner shall have a reasonable additional period thereafter to effect the cure (which shall not exceed an additional ninety (90) days unless otherwise approved by the Management Committee by Required Majority Vote; and provided further that if, within thirty (30) days after the date written
notice of such breach or default has been given to such Partner, such Partner delivers written notice (the "Contest Notice") to the Management Committee and all other Partners that it contests such notice of breach or default, such breach or default shall not constitute an Adverse Act unless and until (and assuming that such breach or default has not theretofore been cured in full) (A) the disinterested Representatives determine in good faith by Required Majority Vote that such Partner has committed such a breach or default or (B) there is a Final Determination that such Partner's actions or failures to act constituted such a breach or default; and provided further that this clause (iii) shall not apply in the event of a breach of Section 8.6 hereof, which breach shall constitute an Adverse Act (if at all) pursuant to clause (vii) below;
(iv) The Bankruptcy of such Partner or the occurrence of any other event which would permit a trustee or receiver to acquire control of the affairs or assets of such Partner;
(v) The occurrence of a Change in Control of such Partner without the unanimous written consent of the other General Partners;
(vi) An IXC Transaction has occurred with respect to such Partner;
(vii) The occurrence of any event with respect to such Partner (A) that causes such Partner or the Partnership to become a BOC or (B) that causes the Partnership to become a BOC Affiliated Enterprise or an entity subject to any restriction or limitation under Section II of the MFJ, provided, however, that (a) in the case of an event specified in clause (B) above, such event must have a material adverse effect on the business, assets, liabilities, results of operations, financial condition or prospects of the Partnership and (b) no Adverse Act shall be considered to have occurred if such Partner has taken actions which have cured the event that would otherwise have constituted an Adverse Act under clause (B) of this clause (vii) within ninety (90) days following its receipt of notice from a General Partner of the occurrence of such event; and provided further that if, within ninety (90) days after the date written notice of such occurrence has been given to such Partner, such Partner delivers a Contest Notice to the Management Committee and all other Partners that it contests such occurrence (or contests whether such occurrence constitutes an Adverse Act under this clause (vii)), such occurrence shall not constitute an Adverse Act unless and until (and assuming that such event has not theretofore been cured in full) (A) the disinterested Representatives determine in good faith by Required Majority Vote that such occurrence constitutes an Adverse Act under this clause (vii) or (B) there is a Final Determination that such occurrence constitutes an Adverse Act under this clause (vii); or
(viii) Such Partner otherwise causes a dissolution of the Partnership in contravention of the terms of this Agreement (other than solely by reason of the Bankruptcy of such Partner).
An "Adverse Partner" is any Partner with respect to which an Adverse Act has occurred.
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with such Person. For purposes of this definition, the term "controls" (including its correlative meanings "controlled by" and "under common control with") shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing, (i) neither the Partnership, NewTelco nor any Person controlled by the Partnership or NewTelco shall be deemed to be an Affiliate of any Partner or of any Affiliate of any Partner and (ii) no Partner or any Affiliate thereof shall be deemed to be an Affiliate of any other Partner or any Affiliate thereof solely by virtue of its Interest in the Partnership or its partnership interest in NewTelco.
"Agreement" or "Partnership Agreement" means this Agreement of Limited Partnership, including all Schedules hereto, as amended from time to time.
"Allocation Year" means (i) the period commencing on the effective date of this Agreement and endi