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EXHIBIT 10.29
DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT
OF LIMITED PARTNERSHIP
Dated As of October ___, 1995
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DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
TABLE OF CONTENTS
1.1 "Act" . . . . . . . . . . . . . . . . . . . . . . . . - 1 -
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1.2 "Adjusted Capital Account" . . . . . . . . . . . . . - 1 -
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1.3 "Affiliate" . . . . . . . . . . . . . . . . . . . . . - 1 -
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1.4 "Agreement" . . . . . . . . . . . . . . . . . . . . . - 1 -
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1.5 "Capital Account" . . . . . . . . . . . . . . . . . . - 1 -
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1.6 "Capital Contribution" . . . . . . . . . . . . . . . . - 1 -
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1.7 "Capital Proceeds" . . . . . . . . . . . . . . . . . . - 2 -
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1.8 "Code" . . . . . . . . . . . . . . . . . . . . . . . . - 2 -
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1.9 "Consent" . . . . . . . . . . . . . . . . . . . . . . - 2 -
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1.10 "Contract Date" . . . . . . . . . . . . . . . . . . . - 2 -
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1.11 "DCR" . . . . . . . . . . . . . . . . . . . . . . . . - 2 -
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1.12 "DCR PCS Network" . . . . . . . . . . . . . . . . . . - 2 -
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1.13 "Debt Service" . . . . . . . . . . . . . . . . . . . - 2 -
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1.14 "Depreciation" . . . . . . . . . . . . . . . . . . . - 2 -
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1.15 "Encumber" . . . . . . . . . . . . . . . . . . . . . - 2 -
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1.16 "FCC" . . . . . . . . . . . . . . . . . . . . . . . . - 2 -
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1.17 "FCC Auction" . . . . . . . . . . . . . . . . . . . . - 2 -
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1.18 "General Partner" . . . . . . . . . . . . . . . . . . - 3 -
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1.19 "Gross Operating Receipts" . . . . . . . . . . . . . - 3 -
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1.20 "Interest" . . . . . . . . . . . . . . . . . . . . . . - 3 -
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1.21 "Limited Partner" . . . . . . . . . . . . . . . . . . - 3 -
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1.22 "Loan Documents" . . . . . . . . . . . . . . . . . . - 3 -
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1.23 "Management Agreement" . . . . . . . . . . . . . . . - 3 -
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1.24 "Net Distributable Cash" . . . . . . . . . . . . . . - 3 -
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1.25 "New Allocation" . . . . . . . . . . . . . . . . . . - 3 -
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1.26 "Nonrecourse Debt" . . . . . . . . . . . . . . . . . - 3 -
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1.27 "Notice" . . . . . . . . . . . . . . . . . . . . . . . - 3 -
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1.28 "Partner" . . . . . . . . . . . . . . . . . . . . . . - 4 -
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1.29 "Partnership" . . . . . . . . . . . . . . . . . . . . - 4 -
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1.30 "Partnership Minimum Gain" . . . . . . . . . . . . . - 4 -
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1.31 "Partner Nonrecourse Debt Minimum Gains" . . . . . . - 4 -
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1.32 "Pay Amount" . . . . . . . . . . . . . . . . . . . . - 4 -
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1.33 "PCS Licenses" . . . . . . . . . . . . . . . . . . . - 4 -
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1.34 "Person" . . . . . . . . . . . . . . . . . . . . . . - 4 -
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1.35 "Post-Auction Period" . . . . . . . . . . . . . . . . - 4 -
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1.36 "Profits and Losses" . . . . . . . . . . . . . . . . - 4 -
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1.37 "Project" . . . . . . . . . . . . . . . . . . . . . . - 5 -
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1.38 "Project Costs" . . . . . . . . . . . . . . . . . . . - 5 -
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1.39 "Project Development Budget" . . . . . . . . . . . . - 5 -
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1.40 "Regulations" . . . . . . . . . . . . . . . . . . . . - 5 -
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1.41 "Value" . . . . . . . . . . . . . . . . . . . . . . . - 5 -
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2.1 Formation and Name . . . . . . . . . . . . . . . . . - 6 -
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2.2 General and Limited Partners . . . . . . . . . . . . - 6 -
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2.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . - 6 -
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2.4 Principal Office and Place of Business . . . . . . . - 6 -
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2.5 Statutory Compliance . . . . . . . . . . . . . . . . - 7 -
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3.1 Initial Capital Contribution . . . . . . . . . . . . - 7 -
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3.2 Additional Contributions . . . . . . . . . . . . . . - 7 -
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3.3 Limit . . . . . . . . . . . . . . . . . . . . . . . . - 8 -
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3.4 No Third-Party Rights . . . . . . . . . . . . . . . . - 8 -
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3.5 Loans by Partners . . . . . . . . . . . . . . . . . . - 8 -
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3.6 Limitation on Withdrawal of Capital . . . . . . . . . - 8 -
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3.7 Interest on Contributions . . . . . . . . . . . . . . - 9 -
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3.8 Auction Pricing . . . . . . . . . . . . . . . . . . . - 9 -
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3.9 Condition Precedent . . . . . . . . . . . . . . . . . - 10 -
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3.10 Options of Partners . . . . . . . . . . . . . . . . . - 10 -
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3.11 Limitation of Liability . . . . . . . . . . . . . . . - 11 -
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4.1 Maintenance of Capital Accounts . . . . . . . . . . . - 11 -
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4.2 Transfers . . . . . . . . . . . . . . . . . . . . . . - 11 -
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4.3 Revaluation . . . . . . . . . . . . . . . . . . . . . - 11 -
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4.4 Compliance . . . . . . . . . . . . . . . . . . . . . - 11 -
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5.1 Allocations of Gain, Loss, Etc. . . . . . . . . . . . - 12 -
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5.2 Allocations of Gain, Loss, Etc. Upon a Capital
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Event . . . . . . . . . . . . . . . . . . . . . . . . - 14 -
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5.3 Allocations Upon Assignment . . . . . . . . . . . . . - 14 -
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5.4 Tax Benefits and Burdens . . . . . . . . . . . . . . - 14 -
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5.5 Other Allocation Rules . . . . . . . . . . . . . . . - 15 -
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5.6 Authority of General Partner to Vary Allocations
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to Preserve and Protect Partner's Interest . . . . . - 15 -
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6.1 Net Distributable Cash . . . . . . . . . . . . . . . - 16 -
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7.1 Duties of the General Partner . . . . . . . . . . . . - 17 -
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7.2 Powers of the General Partners . . . . . . . . . . . - 17 -
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7.3 Compensation of General Partners; Expense
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Reimbursement . . . . . . . . . . . . . . . . . . . . - 19 -
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7.4 Liability and Indemnification of the General
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Partner . . . . . . . . . . . . . . . . . . . . . . . - 19 -
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7.5 Prohibition of Management by Limited Partners . . . . - 21 -
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7.6 Liability of Limited Partners . . . . . . . . . . . . - 21 -
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7.7 Rights of Limited Partners . . . . . . . . . . . . . - 21 -
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7.8 Duties and Obligations of the General Partner . . . . - 22 -
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8.1 Voting and Decisions by Partners and the
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Partnership . . . . . . . . . . . . . . . . . . . . . - 23 -
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8.2 Amendments . . . . . . . . . . . . . . . . . . . . . - 23 -
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9.1 Transfer of the General Partner's Interests . . . . . - 23 -
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9.2 Transfer of a Limited Partner's Interest . . . . . . - 23 -
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9.3 Substituted Limited Partner . . . . . . . . . . . . . - 24 -
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9.4 Encumbrance of a Partner's Interest . . . . . . . . . - 24 -
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9.5 Withdrawal of Limited Partner . . . . . . . . . . . . - 25 -
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9.6 Transfers in Connection with the Sale of the
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Business . . . . . . . . . . . . . . . . . . . . . . - 25 -
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10.1 Term . . . . . . . . . . . . . . . . . . . . . . . . - 25 -
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10.2 Dissolution . . . . . . . . . . . . . . . . . . . . . - 25 -
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10.3 Winding Up and Liquidation . . . . . . . . . . . . . - 26 -
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10.4 Compliance With Timing Requirements of
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Regulations . . . . . . . . . . . . . . . . . . . . . - 26 -
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10.5 Death, Dissolution or Other Disqualification of a
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General Partner . . . . . . . . . . . . . . . . . . . - 27 -
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10.6 Successor Partnership . . . . . . . . . . . . . . . . - 28 -
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11.1 Books and Records . . . . . . . . . . . . . . . . . . - 28 -
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11.2 Fiscal Year and Method of Accounting . . . . . . . . - 29 -
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11.3 Reports . . . . . . . . . . . . . . . . . . . . . . . - 29 -
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11.4 Tax Elections . . . . . . . . . . . . . . . . . . . . - 29 -
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11.5 Tax Matters Partner . . . . . . . . . . . . . . . . . - 29 -
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12.1 Management Agreement . . . . . . . . . . . . . . . . - 30 -
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12.2 Services Agreement . . . . . . . . . . . . . . . . . - 30 -
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12.3 Compensation . . . . . . . . . . . . . . . . . . . . - 30 -
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13.1 IPO . . . . . . . . . . . . . . . . . . . . . . . . . - 30 -
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13.2 Agreed Valuation . . . . . . . . . . . . . . . . . . - 32 -
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14.1 Buy-Out . . . . . . . . . . . . . . . . . . . . . . . - 32 -
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15.1 Bank Accounts . . . . . . . . . . . . . . . . . . . . - 33 -
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15.2 Waiver of Partition . . . . . . . . . . . . . . . . . - 33 -
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15.3 Choice of Law and Severability . . . . . . . . . . . - 33 -
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15.4 Captions, Gender and Number . . . . . . . . . . . . . - 33 -
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15.5 Counterparts . . . . . . . . . . . . . . . . . . . . . - 34 -
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15.6 Binding Effect . . . . . . . . . . . . . . . . . . . - 34 -
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15.7 Entire Agreement . . . . . . . . . . . . . . . . . . - 34 -
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15.8 Plain Meaning . . . . . . . . . . . . . . . . . . . . - 34 -
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15.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . - 34 -
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15.10 DE Status . . . . . . . . . . . . . . . . . . . . . . - 34 -
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16.1 Ratification . . . . . . . . . . . . . . . . . . . . - 35 -
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16.2 Power of Attorney . . . . . . . . . . . . . . . . . . - 35 -
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DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
EXHIBITS
EXHIBIT A -- Names, Addresses and Percentage Interests of Partners
EXHIBIT B -- Management Agreement
EXHIBIT C -- Project Development Budget
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DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
The undersigned, being all of the Partners of the Partnership, hereby
enter into this Agreement of Limited Partnership for the Partnership, dated as
of October __, 1995, as follows:
ARTICLE I
DEFINED TERMS
Capitalized terms used herein without further definition, and
variations thereof, have the meanings set forth below unless the context
otherwise clearly requires:
1.1 "Act" means the Nevada Revised Uniform Limited Partnership Act.
1.2 "Adjusted Capital Account" shall be an amount equal to the Partner's
Capital Account (x) increased by the sum of (A) the amount of the Partner's
share of Partnership Minimum Gain, (B) the amount of the Partner's share of
Partner Nonrecourse Debt Minimum Gain, and (C) any amount of the deficit
balance in its Capital Account the Partner is obligated to restore on
liquidation of the Partnership, and (y) decreased by reasonably expected
adjustments, allocations and distributions described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6).
1.3 "Affiliate" means with respect to any Person, any Person that,
directly or indirectly, controls, is under common control with, or is
controlled by that Person. For purposes of this definition, "control"
(including, with correlative meaning, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct and cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
1.4 "Agreement" means this Agreement of Limited Partnership, and all
amendments thereto.
1.5 "Capital Account" means the separate account maintained for each
Partner pursuant to Article IV of this Agreement.
1.6 "Capital Contribution" means the amount of cash and the value of
property contributed by the Partners to the Partnership.
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1.7 "Capital Proceeds" means the sum of (i) the amount by which the net
proceeds of any sale or other disposition of the Partnership assets exceed the
aggregate amount of Partnership indebtedness, (ii) condemnation and excess
title, property and casualty or liability insurance proceeds not required for
the restoration or repair of the DCR PCS Network and (iii) the amount by which
any refinancing of any loan on the Project or the DCR PCS Network exceeds the
sum of the then outstanding principal balance of any loan being refinanced plus
such reasonable closing costs and reasonable reserves for interest or other
expenses as the General Partner deems advisable.
1.8 "Code" means the Internal Revenue Code of 1986, as amended or
recodified.
1.9 "Consent" means the prior written consent or approval of a Person to
do the act or thing for which this consent or approval is solicited, or the act
of granting such consent or approval as the context may require.
1.10 "Contract Date" means the date of this Agreement.
1.11 "DCR" means DCR Communications, Inc., a Maryland corporation, its
successors and assigns.
1.12 "DCR PCS Network" means the personal communications services network
(including tangible and intangible property) to be owned and operated by the
Partnership in the Las Vegas basic trading area.
1.13 "Debt Service" means principal, interest and other payments of every
kind on or in connection with the outstanding indebtedness of the Partnership.
1.14 "Depreciation" means, for each fiscal year or other period, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that
if the Value of an asset differs from its adjusted basis for federal income tax
purposes at the beginning of such year or other period, Depreciation shall be
an amount which bears the same ratio to such beginning Value as the federal
income tax depreciation, amortization or other cost recovery deduction for such
year or other period bears to such beginning adjusted tax basis.
1.15 "Encumber" (or "Encumbrance" as the context requires) means mortgage,
pledge, hypothecate, grant a security interest in or otherwise encumber,
directly or indirectly, voluntarily or involuntarily.
1.16 "FCC" means the Federal Communications Commission.
1.17 "FCC Auction" means the broadband PCS block auction to commence on
December 11, 1995 by the FCC.
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1.18 "General Partner" means each Person named as such in Exhibit A
attached hereto and any other Person who becomes a successor or additional
General Partner of the Partnership pursuant to the terms hereof, and who is a
General Partner at the time of reference thereto, in such Person's capacity as
a General Partner of the Partnership.
1.19 "Gross Operating Receipts" means all rents and receipts, cash or
otherwise (including Capital Proceeds), from the conduct of the business of
the Partnership and all other income of the Partnership of any nature
whatsoever, including without limitation, loans from Partners and tax-exempt
income, arising out of the operation of the DCR PCS Network or otherwise,
calculated in accordance with the cash basis method of accounting.
1.20 "Interest" or "Partnership Interest" means the entire ownership
interest (which may be expressed as a percentage) of a Partner in the
Partnership at any particular time, including the right of such Partner to any
and all benefits to which a Partner may be entitled pursuant to this Agreement
and under the Act, together with all obligations of such Partner to comply
with the terms and provisions of this Agreement and the Act. The Interest of
each Partner is set forth on Exhibit A hereto, as the same is amended from time
to time.
1.21 "Limited Partner" means any Partner who is designated as a Limited
Partner on Exhibit A to this Agreement at the time of reference thereto, in
such Partner's capacity as a Limited Partner of the Partnership.
1.22 "Loan Documents" shall have the meaning set forth in Section 7.2(h)
hereof.
1.23 "Management Agreement" means the Management Agreement, dated as of
the Contract Date, between the Partnership and DCR, a copy of which is to be
attached as Exhibit B hereto.
1.24 "Net Distributable Cash" means Gross Operating Receipts less Project
Costs.
1.25 "New Allocation" shall have the meaning set forth in Section 5.6(b)
hereof.
1.26 "Nonrecourse Debt" means a liability of the Partnership (or portion
thereof) with respect to which none of the Partners has any economic risk of
loss (other than through their Interests as Partners in Partnership assets
subject to such liability).
1.27 "Notice" means a writing containing the information required by this
Agreement to be communicated to any Person, sent by registered or certified
mail, postage prepaid, or given by personal delivery, or sent by confirmed air
courier to such Person at the last known address of such Person, the date of
registry thereof or the date of the certification or receipt therefor as
evidenced by postal or air courier records or the date of personal delivery (or
refusal thereof during normal business hours) being
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deemed the date of receipt of Notice; provided, however, that any communication
sent to such a Person and actually received by such a Person shall constitute
Notice for all purposes of this Agreement.
1.28 "Partner" means any Person listed on Exhibit A hereto in such
Person's capacity as a General Partner or a Limited Partner and any Partners
admitted pursuant to the terms hereof.
1.29 "Partnership" means the limited partnership herein created and
established as DCR PACIFIC PCS LIMITED PARTNERSHIP, as said Partnership may
from time to time be constituted.
1.30 "Partnership Minimum Gain" shall have the meaning assigned to such
term in Regulations Section 1.704-2(d).
1.31 "Partner Nonrecourse Debt Minimum Gains" shall have the meaning
assigned to such term in Regulations Section 1.704-2(i)(3).
1.32 "Pay Amount" shall have the meaning set forth in Section 3.9 hereof.
1.33 "PCS Licenses" means the PCS C block licenses sold to bidders at the
FCC Auction.
1.34 "Person" means any individual, partnership, firm, corporation, trust,
estate or other entity.
1.35 "Post-Auction Period" shall have the meaning set forth in Section 3.9
hereof.
1.36 "Profits and Losses" means, for each fiscal year or other period, an
amount equal to the Partnership's taxable income or loss for such year or
period, determined in accordance with Code Section 703(a) (for this purpose,
all items of income, gain, loss, or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or
loss), with the following adjustments:
1.36(a) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be added to such taxable income or loss;
1.36(b) any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits or Losses pursuant to this definition,
shall be subtracted from such taxable income or loss;
1.36(c) gain or loss resulting from any disposition of Partnership
property with respect to which gain or loss is recognized for federal income
tax purposes shall be computed by reference to the Value of the property
disposed of, notwithstanding
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that the adjusted tax basis of such property differs from its Value; and
1.36(d) in lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such fiscal year or
other period hereof.
1.37 "Project" means the acquisition of licenses at the FCC Auction for,
and the development, engineering, construction, build-out, installation,
operation and maintenance of, the DCR PCS Network.
1.38 "Project Costs" means amounts paid by the Partnership in connection
with the Project, including, without limitation, financing and costs for loans
pertaining to the Project or the DCR PCS Network; bank charges for letters of
credit; insurance and bond premiums; interest and principal repayments in
connection with loans pertaining to the Project or the DCR PCS Network or any
other property of the Partnership (excluding loans by Partners); real and
personal property taxes; accounting, auditing and legal fees; fees and deposits
for permits, licenses and other governmental authorizations; promotional
expenses directly related to the DCR PCS Network; public utility charges;
sales, use and income taxes; employee salaries, benefits and payroll taxes;
contracts and/or subcontracts for equipment, services, software, labor and
materials; supplies, tools and equipment; costs of repair, maintenance and
replacement; leasing and rental commissions; development, engineering,
construction management, and management fees; franchise fees; and all other
capital or operating charges, costs and expenses actually paid in connection
with the ownership and operation of the Project or the DCR PCS Network and
properly charged to the Partnership, all determined in accordance with the cash
basis method of accounting, together with reserves for any of the foregoing
determined to be necessary or advisable by the General Partner.
1.39 "Project Development Budget" means the budget setting forth costs of
the Project, a copy of which Project Development Budget is to be attached
hereto as Exhibit C.
1.40 "Regulations" means the final regulations under the Code, unless the
context clearly requires otherwise.
1.41 "Value" means, with respect to any asset, the asset's adjusted basis
for federal income tax purposes, except as follows:
1.41(a) The initial Value of any asset contributed by a Partner to
the Partnership shall be the gross fair market value of such asset, as
determined by the contributing Partner and the Partnership;
1.41(b) the Values of all Partnership assets shall be adjusted to
equal their respective gross fair market values, as determined by the General
Partner as of the following times: (a) the acquisition of any additional
Interest in the Partnership by
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any new or existing Partner in exchange for more than a de minimis capital
contribution; (b) the distribution by the Partnership to a Partner of more than
a de minimis amount of Partnership property, unless all Partners receive
simultaneous distributions of undivided interests in the distributed property
in proportion to their Interests in the Partnership; and (c) the termination of
the Partnership for federal income tax purposes pursuant to Code Section
708(b)(1)(B); and
1.41(c) if the Value of an asset has been determined or adjusted
pursuant to Sections 1.41(a) or 1.41(b) above, such Value shall thereafter be
adjusted by the Depreciation taken into account with respect to such asset for
purposes of computing Profits and Losses.
ARTICLE II
THE PARTNERSHIP
2.1 Formation and Name
2.1(a) The undersigned Partners do hereby create and establish a
limited partnership under the name "DCR PACIFIC PCS LIMITED PARTNERSHIP"
pursuant to the provisions of the Act and this Agreement.
2.1(b) Upon execution hereof, the Partners agree to execute and
file for record with the State of Nevada Secretary of State and in any other
place which the law may prescribe, a Certificate of Limited Partnership along
with such other documents, if any, as may be required in connection with the
creation and establishment of this Partnership.
2.2 General and Limited Partners. The names and addresses of the General
Partner and the Limited Partners of the Partnership are set forth in Exhibit A
attached hereto.
2.3 Purpose. The purpose and business of the Partnership shall be,
subject in all respects to the terms and provisions of this Agreement: (a) to
be and at all times remain a "small business" and a "designated entity" as
those terms are defined in applicable orders and regulations of the FCC; (b) to
acquire at the FCC Auction and to own PCS Licenses for the Las Vegas basic
trading area; (c) to own, develop, engineer, construct, build-out and operate
the DCR PCS Network as an investment and for income producing purposes; (d) to
form other partnerships or Persons to engage in other projects or in businesses
ancillary to the business carried on by this Partnership; and (e) to carry on
all activities required in connection with the Project and the DCR PCS Network
or which are necessary, convenient, incidental or related to the foregoing.
2.4 Principal Office and Place of Business. The principal office of the
Partnership shall be 11910 Yellow Rush Pass, Columbia, Maryland 21044, and the
principal place of business of
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the Partnership shall be 2550 M Street, N.W., Suite 200, Washington, D.C.
20037, or such other address as is designated with the Consent of the General
Partner. The Partnership may have such additional offices as the General
Partner deems advisable. The name and address of the agent for service of
process on the Partnership is:
The Corporation Trust Company of Nevada
One East First Street
Reno, NV 89501
Said agent for service of process is a natural person who is a resident of
Nevada, a Nevada corporation or a foreign corporation authorized to do business
in Nevada.
2.5 Statutory Compliance. The Partnership shall exist under and be
governed by, and this Agreement shall be construed in accordance with, the
applicable laws of the State of Nevada, including the Act. The Partnership
shall make all filings and disclosures required by, and otherwise shall comply
with, all such laws. All real and personal property owned by the Partnership
shall be deemed owned by the Partnership as an entity, and no Partner shall
have any beneficial ownership interest in such property in its individual name
or right.
ARTICLE III
CONTRIBUTIONS BY THE PARTNERS
3.1 Initial Capital Contribution. The initial Capital Contributions of
each of the Partners is set forth on Exhibit A hereto. Contemporaneously with
the signing of this Agreement, said initial Capital Contributions shall be
paid, in cash, to the Partnership by the Partners in the respective amounts
set forth opposite their names on Exhibit A hereto. The General Partner shall
cause such Capital Contributions to be held in a depositary account which is in
the name of the Partnership and shall not commingle such funds with those of
any other entity. Notwithstanding the foregoing provision, the Partners agree
that all or part of the Capital Contribution of the General Partner and of any
Limited Partner that is an Affiliate of the General Partner will be deposited
as part of the downpayment for PCS Licenses to be acquired at the FCC Auction.
3.2 Additional Contributions
3.2(a) Subject to the limitations set forth in Section 3.3,
additional Capital Contributions to the Partnership, as and when the same have
been determined by the General Partner, shall be made by the Partners in
proportion to their then respective Interests. The Partnership shall give each
Partner at least thirty (30) days Notice of any call for additional Capital
Contributions.
3.2(b) In the event a Partner fails to make a Capital Contribution as
required by Section 3.1 or subsection 3.2(a) or is
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not obligated to make such Capital Contribution pursuant to Section 3.3, such
Partner shall be deemed to be in default of this Agreement (hereinafter, for
purposes of this Section 3.2, such Partner is referred to as the "Defaulting
Partner"). Upon the occurrence of such default, either one or all of the
non-defaulting Partners (the "Non-Defaulting Partners") shall have the right to
cause a dilution of the Defaulting Partner's Partnership Interest in accordance
with the terms and provisions of Subsection 3.2(c).
3.2(c) In the event any one or more of the Non-Defaulting Partners
elect to cause a dilution of the Defaulting Partner's Partnership Interest,
those of the Non-Defaulting Partners so electing shall have the right to pay
the amount of the defaulted additional Capital Contribution and elect to have
the Partnership Interest of those of the Non-Defaulting Partners making such
payment increased by the percentage of the non-contributing Partner's Interest
that the amount of such defaulted additional Capital Contribution bears to the
total sum of the Capital Contributions which such Defaulting Partner is then
obligated to have contributed to the capital of the Partnership (including the
initial and all additional Capital Contributions and including the Capital
Contribution with respect to which the Defaulting Partner is in default). The
Partnership Interest of the Defaulting Partner shall be correspondingly
reduced, and the Defaulting Partner shall have no further obligation to the
Non-Defaulting Partners with respect to said default.
3.3 Limit. Notwithstanding the foregoing provisions, no Partner shall be
obligated, but upon Notice by the Partnership shall have the option, to
contribute to the Partnership any amounts in excess of its respective initial
Capital Contribution as set forth in Exhibit A. The details of any call for
additional Capital Contributions shall be set forth in the aforesaid Notice.
In the event that any Partner does not elect, after such Notice, to make an
additional contribution, the Interest of said Partner shall be subject to
dilution pursuant to Section 3.2 above.
3.4 No Third-Party Rights. No provision in this Article III set forth
shall be construed to be for the benefit of any third party including without
limitation any creditor of the Partnership and no such third party or creditor
shall be entitled to enforce any such provision.
3.5 Loans by Partners. Any loans made to the Partnership by a General
Partner or a Limited Partner shall not increase such Partner's respective
Capital Account, but shall be repaid, together with interest, as a priority
distribution, as provided in Article VI, or in accordance with such other terms
as the Partnership and such Partner agree.
3.6 Limitation on Withdrawal of Capital. Except as expressly provided in
this Agreement, no Partner
3.6(a) shall be required at any time to make any contribution to the
Partnership,
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3.6(b) shall have the right to withdraw or receive any return on its
Capital Contributions or claim to any Partnership capital prior to termination
of the Partnership pursuant to Article X hereof,
3.6(c) shall have any right to demand and receive property other than
cash in return for its Capital Contributions, or
3.6(d) shall be liable to any other Partner for the return of such
Partner's Capital Contributions to the Partnership, or any portion thereof, it
being expressly understood that such return shall be made solely from
Partnership assets.
3.7 Interest on Contributions. Capital Contributions (as opposed to
loans) to the Partnership are not entitled to and shall not earn any interest.
3.8 Auction Pricing.
3.8(a) Contemporaneously with the signing of this Agreement, the
Partners have agreed upon a maximum dollar amount per pop to be bid by the
Partnership for PCS Licenses at the FCC Auction.
3.8(b) If, notwithstanding the foregoing, the General Partner
during the FCC Auction decides to cause the Partnership to pay a higher price
per pop for any PCS License, said General Partner shall give Notice to the
Limited Partners of its intent to do so with details appurtenant thereto and
the amount of additional capital required from the Limited Partners as their
respective pro rata shares of such increased price and said Limited Partners
shall have the right, pro rata, in accordance with their respective Interests,
exercisable in a Notice given by the Limited Partners to the General Partner
within twenty-four (24) hours after the receipt of the first above-mentioned
Notice or such longer time as the Partners may agree to either
(i) pay to the Partnership the full amount of their additional
Capital Contribution; or
(ii) pay to the Partnership a portion (rounded up to the nearest
$100,000) of said respective shares of such additional Capital Contribution; or
(iii) pay no portion of the additional Capital Contribution,
in which event the Limited Partners who have not made an additional Capital
Contribution pursuant to this Section 3.8 (for purposes of this Section
3.8(b)(iii) and of Section 3.10, "Non-Contributing Limited Partner") shall have
the option set forth in Section 3.10(a)(i) below and the General Partner shall
have the option set forth in Section 3.10(a)(ii) below.
3.8(c) In the event that any one or more of the Limited Partners
exercises one of the options specified in Subsection 3.8(b)(ii) or (iii),
the remaining Partners (the "Contributing Partners") shall have the right, but
not the obligation, to
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contribute to the Partnership the amount which the Non-Contributing Limited
Partner was to have contributed but elected not to contribute (the
"Contribution Deficiency"), in which event the Interest of the Non-Contributing
Limited Partner shall be reduced by that percentage of the Non-Contributing
Limited Partner's Interest that the amount of such Contribution Deficiency
bears to the total sum of the Capital Contributions which such Non-Contributing
Limited Partner would be required to have contributed to the capital of the
Partnership had the Non-Contributing Limited Partner exercised the option set
forth in subsection 3.8(b)(i) (including the initial and all additional Capital
Contributions). In such event, the Interest of the Contributing Partners shall
be increased accordingly.
3.9 Condition Precedent. In the event that the Partnership does not
acquire the PCS Licenses required to own and operate the DCR PCS Network in the
Las Vegas basic trading area, then, with respect to each Limited Partner, a sum
equal to the aggregate amount of all Capital Contributions (i.e. the initial
Capital Contribution and all additional Capital Contributions) paid by such
Limited Partner to the Partnership, plus accrued interest thereon, less an
amount equal to ten percent (10%) times the aggregate amount of all such
Capital Contributions to cover costs attributable to preparation for and
participation in the bidding for said PCS Licenses at the FCC Auction ("Pay
Amount") shall be returned to such Limited Partner within thirty (30) days
subsequent to the date on which said FCC Auction is concluded ("Post-Auction
Period"). Upon the payment by the Partnership to any Limited Partner of the
Pay Amount, said Limited Partner shall thereafter own no Interest in the
Partnership.
3.10 Options of Partners
3.10(a) In the event described in Section 3.8(b)(iii),
(i) each Non-Contributing Limited Partner shall have the option
exercisable in a Notice given to the General Partner during the Post-Auction
Period to put its Interest to the Partnership at a price equal to the Pay
Amount, and
(ii) The General Partner shall have the option exercisable in a
Notice given to each Non-Contributing Limited Partner during the Post-Auction
Period to purchase the Interest of said Non-Contributing Limited Partner at a
price equal to the Pay Amount.
3.10(b) In the event any Partner shall exercise its respective option
as above set forth, the General Partner shall pay or cause a third-party to pay
to the Non-Contributing Limited Partners the Pay Amount within sixty (60) days
subsequent to the end of the Post-Auction Period and each Partner shall execute
and deliver such documents and take such action as may be necessary or
appropriate to transfer the Limited Partner's Interest to the General Partner
or such other Person.
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3.11 Limitation of Liability. Notwithstanding any other provision of this
Agreement, no Limited Partner shall in any event be required to make any
contribution beyond its share of the amount provided in Sections 3.1, 3.2 and
3.3, nor shall any Limited Partner be liable for any Partnership liabilities,
obligations, expenses or losses, or to pay any Partnership obligations
whatsoever, except as expressly provided in this Agreement.
ARTICLE IV
CAPITAL ACCOUNTS
4.1 Maintenance of Capital Accounts. A separate Capital Account shall be
maintained and adjusted for each Partner on the books and records of the
Partnership in accordance with the Code and the Regulations.
4.1(a) Increase. There shall be credited to each Partner's Capital
Account such Partner's Capital Contribution, such Partner's distributive share
of Profits, including any items in the nature of income or gain that are
specially allocated to a Partner pursuant to Article V, and the amount of any
Partnership liabilities that are assumed by such Partner or that are secured by
any Partnership property distributed to such Partner. Nonrecourse loans shall
be allocated among the Partners in accordance with their respective Partnership
Interests.
4.1(b) Decrease. There shall be debited to each Partner's Capital
Account the amount of cash and the Value of any Partnership property
distributed to such Partner pursuant to any provision of this Agreement, such
Partner's distributive share of Losses, including any items in the nature of
expenses or losses that are specially allocated to a Partner pursuant to
Article V, and the amount of any liabilities of such Partner that are assumed
by the Partnership or that are secured by any property contributed by such
Partner to the Partnership.
4.2 Transfers. In the event any Interest in the Partnership is
transferred in accordance with the terms of this Agreement, the transferee
shall succeed to the Capital Account of the transferor to the extent the
transferor's Capital Account relates to the Partnership Interest so
transferred.
4.3 Revaluation. In the event the Values of Partnership assets are
adjusted pursuant to the definition of the term Value, the Capital Accounts of
all Partners shall be adjusted simultaneously to reflect the aggregate net
adjustment as if the Partnership recognized gain or loss equal to the amount of
such aggregate net adjustment, and such adjustment shall be allocated to the
Partners in accordance with Article V.
4.4 Compliance. The foregoing provisions and other provisions of this
Agreement relating to the maintenance of Capital Accounts are intended to
comply with Section 704 of the Code and
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the Regulations thereunder and shall be interpreted and applied in a manner
consistent therewith.
ARTICLE V
PROFITS AND LOSSES
5.1 Allocations of Gain, Loss, Etc.
5.1(a) Gains and Losses. Except as otherwise provided in this
Article V, for tax years in which the Partnership has net Losses for federal
income tax purposes, net taxable losses and other deductions shall be allocated
pro rata among the Partners in accordance with their respective Partnership
Interests. For tax years in which the Partnership has net Profits for federal
income tax purposes, said Profits shall be allocated pro rata among the
Partners in accordance with their respective Partnership Interests.
5.1(b) Qualified Income Offset. In the event any Partner
unexpectedly receives any adjustments, allocations, or distributions described
in Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be
specially allocated to eliminate the deficit balances in their Adjusted Capital
Accounts created or increased by such adjustments, allocations, or
distributions as promptly as possible. Any special allocations of items of
income or gain pursuant to this Section 5.1(b) shall be taken into account in
computing subsequent allocations of Profits pursuant to this Article V, so that
the net amount of any items so allocated and the Profits, Losses and all other
items so allocated to each Partner pursuant to this Article V, to the extent
possible, shall be equal to the net amount that would have been allocated to
each such Partner pursuant to the provisions of this Article V if such
unexpected adjustments, allocations or distributions had not occurred. The
foregoing is intended to be a "qualified income offset provision" as described
in Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and
applied in all respects in accordance with that Regulation.
5.1(c) Tax Allocations: Code Section 704(c) . Subject to the
provisions of Section 5.3 hereof, in accordance with Code Section 704(c) and
the Regulations thereunder, income, gain, loss and deduction with respect to
any property contributed to the capital of the Partnership, solely for tax
purposes, shall be allocated among the Partners so as to take into account any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes and its initial Value (computed in accordance with
Subsection 1.41 hereof). In the event the Value of any Partnership asset is
adjusted pursuant to said subsection 1.41, subsequent allocations of income,
gain, loss and deduction with respect to such asset shall take into account any
variation between the adjusted basis of such asset for federal income tax
purposes and its gross asset Value in the same manner as under Code Section
704(c) and the Regulations. Any election or
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other decision relating to such allocations shall be made by the General
Partner in any manner that reasonably reflects the purposes and intention of
this Agreement. Allocations pursuant to this Section 5.1(c) are solely for
purposes of federal, state and local taxes and shall not affect, or in any way
be taken into account in computing any Partner's Capital Account or share of
Profits, Losses, other items, or distributions pursuant to any provision of
this Agreement.
5.1(d)(1) Deficit Limited to Share of Minimum Gain. At no time shall
allocations of Loss (or items thereof) be made to a Partner if such allocations
would create or increase any deficit in the Partner's Adjusted Capital Account
balance.
5.1(d)(2) Partnership Minimum Gain Chargeback. If there is a net
decrease in Partnership Minimum Gain for a taxable year of the Partnership,
then there shall be allocated to each Partner items of income and gain for that
year equal to that Partner's share of the net decrease in Partnership Minimum
Gain (within the meaning of Regulations Section 1.704-2(g)(2)), subject to the
exceptions set forth in Regulations Section 1.704-2(f)(2), (3) and (5),
provided that if the Partnership has any discretion as to an exception set
forth pursuant to Regulations Section 1.704-2(f)(5), the General Partner may
exercise such discretion on behalf of the Partnership. In the event that the
application of this minimum gain chargeback requirement would cause a
distortion in the economic arrangement among the Partners, the General Partner
shall request that the Commissioner of Internal Revenue waive the minimum gain
chargeback requirement pursuant to Regulations Section 1.704-2(f)(4). The
foregoing is intended to be a "minimum gain chargeback" provision as described
in Regulation Section 1. 704-2(f) and shall be interpreted and applied in all
respects in accordance with that Regulation.
5.1(d)(3) Partner Nonrecourse Debt Minimum Gain Chargeback. If,
during a taxable year, there is a net decrease in Partner Nonrecourse Debt
Minimum Gain, then, in addition to the amounts, if any, allocated pursuant to
Section 5.1(d)(2), any Partner with a share of that Partner Nonrecourse Debt
Minimum Gain (determined in accordance with Regulations Section 1.704-2(i)(5))
as of the beginning of the taxable year shall, subject to exceptions in
Regulations Section 1.704-2(i)(4)), including the exceptions analogous to those
in Regulations Section 1.704-2(f)(2), (3) and (5), (provided, that if the
Partnership has any discretion as to the exception set forth pursuant to
Regulations Section 1.704-2(f)(5) as made applicable by Regulations Section
1.704-2(i)(4), the General Partner may exercise such discretion on behalf of
the Partnership), be allocated items of income and gain for the year (and, if
necessary, for succeeding years) equal to that Partner's share of the net
decrease in the Partner Nonrecourse Debt Minimum Gain. In the event that the
application of the Partner Nonrecourse Debt Minimum Gain chargeback requirement
would cause a distortion in the economic arrangement among the Partners, the
General Partner shall request that the Commissioner of Internal Revenue waive
the minimum gain chargeback requirement pursuant to Regulations Sections
1.704-2(f)(4) and 1.704-2(i)(4). The
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foregoing is intended to be the "chargeback of partner nonrecourse debt minimum
gain" required by Regulations Section 1.704-2(i)(4) and shall be interpreted
and applied in all respects in accordance with that Regulation.
5.2 Allocations of Gain, Loss, Etc. Upon a Capital Event.
5.2(a) Notwithstanding the provisions of Section 5.1 above, any
taxable gain or loss recognized on the sale or other disposition of all or
substantially all of the Partnership assets shall be allocated among all of the
Partners taking into account the impact on such Partners' Capital Accounts of
distributions under Article VI as follows:
(i) as to Profits: first among the Partners in proportion to
their negative Capital Account balances until all such Capital Accounts shall
have a zero balance; and then among the Partners in proportion to their
Partnership Interests.
(ii) as to Losses: first an amount of Losses equal to the
aggregate positive balances (if any) in the Capital Accounts of all Partners
having positive Capital Account balances shall be allocated to such Partners in
proportion to their positive Capital Account balances until such Capital
Accounts shall have a zero balance; and then among all Partners in proportion
to their Partnership Interests.
5.2(b) Subsequent Distributions. For purposes of computing the
sum of the negative Capital Accounts balances in connection with any allocation
of Profits, if any assets (including cash) are held by the Partnership at the
end of the Partnership taxable year and there is a reasonable expectation that
such assets will be distributed to the Partners (other than pursuant to a
distribution in liquidation under Article X hereof) prior to a corresponding
increase in such Partner(s) Capital Accounts, such assets shall be treated as
having been distributed to such Partners on the last day of such taxable year.
5.3 Allocations Upon Assignment. Except as otherwise provided in this
Article V, the Profits or Losses and other allocable items for any Partnership
fiscal year in which a Partner owns all or a part of any Partnership Interest
for less than the full fiscal year shall be allocated to such Partner in
proportion to the number of days as a percentage of 365 that the Partnership
Interest is effectively owned by such Partner during that year, according to
the provisions of this Agreement, although the General Partner has discretion
to determine such allocation under any other reasonable method permitted under
Section 706 of the Code.
5.4 Tax Benefits and Burdens. The Partners acknowledge that, to the
fullest extent permitted by law, the intent of the Partners is to obtain tax
benefits and share tax burdens from their participation in the Partnership in
proportion to their respective Partnership Interests, and the General Partner
shall apply its best commercially reasonable efforts to give effect to this
intent.
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5.5 Other Allocation Rules.
5.5(a) Allocations Upon the Admission of Additional Partners. In the
event additional Partners are admitted to the Partnership on different dates
during any taxable year, the Profits (or Losses) allocated to the Partners for
each such taxable year shall be allocated among the Partners in proportion to
the Interest of each during such taxable year in accordance with Code Section
706, using any convention permitted by law and selected by the General Partner.
In such event, subsequent allocations of Losses (or Profits) pursuant to this
Article V shall be allocated (i) first, so as to offset the Profits (or Losses)
allocated for such taxable year or years and (ii) the balance, if any, to the
Partners in proportion to their Partnership Interest.
5.5(b) Items Not Specifically Dealt With. Except as otherwise
provided in this Agreement, all items of Partnership income, gain, loss
deduction, and any other allocations not otherwise provided for shall be
allocated among the Partners according to their Partnership Interests.
5.5(c) Allocations Within Periods. For purposes of determining the
Profits, Losses, or any other items allocable to any period, Profits, Losses,
and any such other items shall be determined on a daily, monthly, or other
basis, as determined by the General Partner, using any permissible method under
Section 706 of the Code and the Regulations thereunder.
5.5(d) Allocations Binding on Partners. The Partners are aware of
the income tax consequences of the allocations made by this Article V and
hereby agree to be bound by the provisions of this Article V in reporting their
shares of Partnership income and loss for income tax purposes.
5.6 Authority of General Partner to Vary Allocations to Preserve and
Protect Partner's Interest.
5.6(a) It is the intent of the Partners that each Partner's tax
allocations of income, gain, loss deduction or credit (or any item thereof)
shall be determined and allocated in accordance with this Article V to the
fullest extent permitted by Section 704(b) of the Code and the Regulations. In
order to preserve and protect the determinations and allocations provided for
in this Article V, the General Partner is authorized and directed to allocate
income, gain, loss, deduction or credit (or any item thereof) arising in any
year differently than otherwise provided for in this Article V to the extent
that allocating income, gain, loss, deduction or credit (or any item thereof)
in the manner provided for in this Article V would cause the determinations and
allocations of the Partner's tax allocations of income, gain, loss, deduction
or credit (or any item thereof) not to be permitted by Section 704(b) of the
Code and the Regulations. Any allocations made pursuant to this Section shall
be deemed to be a complete substitution for any allocation otherwise provided
for in this Article V, and no amendment of this Agreement or approval of any
Partner shall be required.
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5.6(b) In making any allocation under this Section (the "New
Allocation"), the General Partner is authorized to act only after having been
advised by legal counsel to the Partnership that under Section 704(b) of the
Code and the Regulations thereunder, (i) the New Allocation appears necessary,
and (ii) the New Allocation appears to be the minimum modification of the
allocations otherwise provided for in this Article V necessary in order to
attempt to assure that, either in the then current year or in any preceding
year, each Partner's distributive share of income, gain, loss, deduction or
credit (or any item thereof) is determined and allocated in accordance with
this Article V to the fullest extent permitted by Section 704(b) of the Code
and the Regulations.
5.6(c) If the General Partner is required by this Section to make
any New Allocation in a manner less favorable to the Partners than is otherwise
provided for in this Article V, such General Partner is authorized and
directed, insofar as advised by legal counsel to the Partnership that it is
permitted by Section 704(b) of the Code, to allocate income, gain, loss,
deduction or credit (or any item thereof) arising in later years in a manner so
as to bring the allocations of income, gain, loss, deduction or credit (or item
thereof) to the Partners as nearly as possible to the allocations thereof
otherwise contemplated by this Article V.
5.6(d) New Allocations made under this Section in reliance upon
the advice of legal counsel to the Partnership shall be deemed to be made in
compliance with the fiduciary obligation of such General Partner to the
Partnership and Partners, and no such allocations shall give rise to any claim
or cause of action by any other Partner.
ARTICLE VI
DISTRIBUTIONS
6.1 Net Distributable Cash. So far as is practicable, and except as set
forth in Article X, the General Partner shall determine the amount of Net
Distributable Cash available for distribution, and shall distribute Net
Distributable Cash on an annual basis in the following order of priority:
6.1(a) To repay General Partner or Limited Partners loans (except for
those loans which provide for repayment terms not based upon the Net
Distributable Cash), with interest, pro rata, among the Partners which have
made such loans, based upon the outstanding principal and interest balances
thereof; and
6.1(b) to the Partners in proportion to their respective Partnership
Interests.
All distributions in repayment of Partner loans shall be credited
first to accrued but unpaid interest and then to principal.
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ARTICLE VII
RIGHTS, DUTIES, POWERS AND COMPENSATION OF PARTNERS
7.1 Duties of the General Partner.
7.1(a) The General Partner shall manage and supervise the Project,
the DCR PCS Network and the other business and affairs of the Partnership in
accordance with and subject to the terms and conditions of this Agreement and
the Act. The General Partner shall not be required to devote its full time and
efforts to the Partnership, but only so much of its time and efforts as
reasonably is necessary to carry out its duties.
7.1(b) None of the Limited Partners (other than a Limited Partner
that is an Affiliate of the General Partner) nor any of their Affiliates may
engage for its or their own account or for the account of others in any
business activities or ventures, which compete, directly or indirectly, with
the business of the Partnership or which involve, directly or indirectly,
personal communication services (PCS), without the Consent of the General
Partner, which Consent may be denied in the sole and absolute discretion of
such General Partner.
7.1(c) The General Partner shall report regularly to the Limited
Partners (and, in no event, less than quarter-annually) with respect to the
affairs of the Partnership. The General Partner shall furnish to the Limited
Partners, upon request, access to or copies of any correspondence, reports,
analyses, appraisals, feasibility studies, development plans and memoranda
received or sent by the Partnership.
7.2 Powers of the General Partners. In addition to the powers now or
hereafter granted the general partners of a limited partnership under the Act
or which are granted the General Partner under any other provisions of this
Agreement, but in all cases subject to the provisions of Section 7.7(a) and any
other provision of this Agreement relating to the rights of the Limited
Partners, the General Partner shall have the sole power and authority to
manage, control, administer and operate the business and affairs of the
Partnership for the purposes herein stated, to make all decisions affecting
such business and affairs, to adopt such accounting rules and procedures as it
deems appropriate in the conduct of the business and affairs of the
Partnership, including without limitation (whether similar or dissimilar) for
Partnership purposes, the power:
7.2(a) to submit applications to the FCC and to submit bids at the
FCC Auction;
7.2(b) to acquire by purchase, lease or otherwise, any real or
personal property, tangible or intangible, which may be necessary or
appropriate to the accomplishment of the purposes of the Partnership, and to
acquire PCS licenses;
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7.2(c) to sign such documents and to take such action as may be
necessary or appropriate to complete the Project and to own and operate the DCR
PCS Network according to the time schedule to be established therefor;
7.2(d) to own, develop, engineer, construct, build-out and operate
the DCR PCS Network;
7.2(e) to sell, dispose, trade or exchange all or any portion of
the assets of the Partnership in furtherance of the Partnership's business upon
such terms and conditions and for such consideration as the General Partner
deems appropriate;
7.2(f) to enter in good faith into agreements and contracts with
Persons and to give receipts, releases and discharges with respect to the
Partnership's business and to attend to, manage and follow-up on any matters
incident thereto as the General Partner deems advisable or appropriate;
7.2(g) to purchase, at the reasonable expense of the Partnership,
liability and other insurance to protect the Partnership's properties and
business;
7.2(h) to borrow money for and on behalf of the Partnership to
cover the costs, expenses and capital expenditures of the Partnership for any
Partnership purposes, and as security therefor to mortgage or grant deeds of
trust on all or any part of the assets owned by the Partnership, real, personal
or mixed and in connection therewith to execute for and on behalf of the
Partnership such loan agreements, notes, mortgages, deeds of trust, security
agreements, financing statements, assignments, pledges, certificates and other
documents (collectively "Loan Documents") as may be required or appropriate in
connection therewith;
7.2(i) to prepay in whole or in part, refinance, amend, modify or
extend any mortgages or deeds of trust which may affect any of the assets owned
by the Partnership and in connection therewith to execute for and on behalf of
the Partnership any amendments to Loan Documents including, without limitation,
any extensions, renewals or modifications of such mortgages or deeds of trust
on any such assets in lieu of then existing mortgages or deeds of trust;
7.2(j) to cause the Partnership to make or revoke any of the
elections referred to in Section 754 of the Code;
7.2(k) to place record title to, or the right to use, Partnership
assets in the name or names of a nominee or nominees, trustee or trustees for
any purpose convenient or beneficial to the Partnership;
7.2(l) to require in any or all Partnership contracts that the
Partners may have limited or no personal liability thereon but that the Person
or entity contracting with the Partnership may be required to look solely, or
only in part, to the Partnership and its assets for satisfaction;
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7.2(m) except as otherwise provided in this Agreement, but subject
to the provisions of all applicable laws, to have all the rights and power and
to be subject to all the restrictions and liabilities of a general partner in a
partnership with limited partners;
7.2(n) to execute any and all other instruments and documents
which may be necessary or in the reasonable opinion of the General Partner
desirable to carry out the intent and purposes hereof, including, but not
limited to, documents whose operation and effect extend beyond the term of the
Partnership;
7.2(o) to make any and all reasonable expenditures which the
General Partner, in its sole and absolute discretion, deems necessary or
appropriate in connection with the management of the affairs of the Partnership
and the carrying out of its obligations and responsibilities under this
Agreement, including, without limitation, all legal, accounting and other
related expenses incurred in connection with the organization, financing and
operation of the Partnership;
7.2(p) to enter into any kind of activity and to perform and carry
out contracts of any kind necessary to, or in connection with, or incidental to
the accomplishment of the purposes of the Partnership, so long as such
activities and contracts may be lawfully carried on or performed by a limited
partnership under the laws of the State of Nevada;
7.2(q) to invest and reinvest Partnership reserves in short-term
instruments or money market funds;
7.2(r) to confess a judgment against the Partnership;
7.2(s) to submit a Partnership claim or liability to arbitration
or reference; and
7.2(t) to enter into services or other agreements with any Person
or the General Partner or any Limited Partner or any Affiliate of the General
Partner or of a Limited Partner on commercially competitive terms and
conditions.
7.3 Compensation of General Partners; Expense Reimbursement. The General
Partner shall be entitled to reasonable compensation for its management and
other services rendered to the Partnership and to reimbursement of reasonable
expenses incurred in carrying out its obligations hereunder.
7.4 Liability and Indemnification of the General Partner.
7.4(a) Neither the General Partner nor any Affiliate of the
General Partner nor any officer, director, employee, partner, agent or advisor
of the General Partner or any Affiliate of the General Partner shall be
personally liable to the Partnership or to any Partner for loss or damage
caused by any act or omission in such capacity, except for losses or damages
adjudicated to have been caused by such party's fraudulent, willful or wanton
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misconduct, material breach of this Agreement or gross negligence. The
Partnership shall indemnify (only to the extent of Partnership assets without
recourse to any Partner) any Person who was or is a party or threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or on behalf of the Partnership), which action, suit or
proceeding arises out of or relates to any claim, issue or matter involving or
affecting the Partnership, by reason of the fact that such Person is or was the
General Partner, an Affiliate of the General Partner or an officer, director,
employee, partner, agent or advisor of the General Partner or an Affiliate of
the General Partner, or is or was serving at the request of the Partnership as
an officer, director, employee, agent or advisor of another partnership,
corporation, joint venture, trust or other enterprise, against all expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement,
actually and reasonably incurred by such Person in connection with such action,
suit or proceeding, so long as such Person acted in good faith in a manner
reasonably believed to be in or not opposed to the best interests of the
Partnership, except that no indemnification shall be made in respect of any
claim, issue or matter as to which a Person has been adjudged to be liable for
fraudulent, willful or wanton misconduct, material breach of this Agreement or
gross negligence, or with respect to any criminal action or proceeding unless,
in the latter case, only if such Person had no reasonable good faith cause to
believe its conduct was unlawful. The determination of any action, suit or
proceeding by judgment, order, settlement or conviction, or a plea of no
contest or its equivalent shall not, of itself, create a presumption that the
Person did not act in good faith and in a manner which such Person reasonably
believed to be in or not opposed to the best interests of the Partnership, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that such Person's conduct was unlawful.
7.4(b) To the extent that the General Partner, an Affiliate of the
General Partner or an officer, director, employee, partner, agent or advisor of
the General Partner or an Affiliate of the General Partner has been successful
on the merits or otherwise in defense of any action, suit or proceeding
referred to in Subsection 7.4(a), or in defense of any claim, issue or
matter therein, such Person shall be indemnified against expenses, including
reasonable attorneys' fees, actually and reasonably incurred by such Person in
connection therewith.
7.4(c) Expenses, including reasonable attorneys' fees, incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
Partnership in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking reasonably satisfactory to the
Partnership by or on behalf of the General Partner, an Affiliate of the General
Partner, or an officer, director, employee, partner, agent or advisor of the
General Partner or an Affiliate of the General Partner, to repay the amount
thereof unless it shall be determined ultimately that such Person is entitled
to be indemnified by the Partnership as authorized in this Section 7.4.
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7.4(d) The indemnification provided by this Section 7.4 shall not be
deemed exclusive of any other rights to which an indemnified party may be
entitled under any agreement, by vote of Partners or otherwise, both as to
action in such Person's official capacity and as to action in another capacity
while holding such office, and shall continue as to a Person who has ceased to
be the General Partner, an Affiliate of the General Partner or an officer,
director, employee, partner, agent or advisor of the General Partner or an
Affiliate of the General Partner and shall inure to the benefit of the heirs,
executors, administrators, assigns and successors of any such Person.
7.4(e) The Partnership may maintain insurance on behalf of any Person
who is or was the General Partner, who is or was an Affiliate of the General
Partner or an officer, director, employee, partner, agent or advisor of the
General Partner or an Affiliate or who is or was serving at the request of the
Partnership or an Affiliate of the Partnership as an officer, director,
employee, agent or advisor of another partnership, corporation, joint venture,
trust or other enterprise against any insurable liability asserted against and
incurred by such Person in any such capacity or arising out of such Person's
status as such, whether or not the Partnership would have the power to
indemnify such Person against such liability under this Section 7.4.
7.5 Prohibition of Management by Limited Partners. Except as
specifically provided otherwise in Section 7.7 of this Agreement, the Limited
Partners (except for any Limited Partner which is an Affiliate of the General
Partner) shall have no right to, and shall not take any part in the management
of the Partnership and shall have no right or authority to act on behalf of or
to bind the Partnership.
7.6 Liability of Limited Partners. So long as a Limited Partner is not a
General Partner and does not take part in the control of the Partnership's
business within the meaning of the Partnership Act, the liability of a Limited
Partner for the obligations or losses of the Partnership shall in no event
exceed such Limited Partner's Capital Contributions to the Partnership.
Notwithstanding the foregoing, if a Limited Partner has received the return of
all or any part of such Limited Partner's Capital Contribution, such Partner is
liable to the Partnership for the return of the contribution so received, but
only to the extent necessary to discharge the Partnership's liabilities to
creditors whose claims arose before such return, provided that for the purposes
hereof, no General Partner or Affiliate shall be deemed a creditor of the
Partnership.
7.7 Rights of Limited Partners.
7.7(a) Anything in this Agreement to the contrary notwithstanding
and only to the extent not prohibited by applicable law, the following
enumerated items shall require the Consent of the Limited Partners:
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(i) the Sale of the Business (as defined in Section 9.6 below);
(ii) doing any act in contravention of this Agreement;
(iii) possessing Partnership property, or assigning rights in
specific Partnership property, for other than a Partnership purpose;
(iv) except as provided in this Agreement, admitting additional
partners to the Partnership; or
(v) borrowing money from any source, except in furtherance of
Partnership purposes including, without limitation, for normal operations of
the Partnership or for the DCR PCS Network and for capital expenditures
required for the Project or for the DCR PCS Network.
For the purpose of this Subsection 7.7(a), Consent, if not denied by
Limited Partners who hold a majority of the Partnership Interests then owned by
Limited Partners within ten (10) business days after receipt by the Limited
Partners of Notice thereof from the General Partner, shall be deemed given.
7.7(b) Any Limited Partner shall have the right, for any proper
purpose, to call a meeting of the Partnership, to examine and copy during
regular business hours and upon not less than five (5) business days Notice at
the principal office of the Partnership the Partnership's books and records,
and to obtain from the General Partner a list showing the Partnership's records
of the names, addresses and the Partnership Interests of the Partners. The
General Partner shall deliver a copy of the Agreement and/or Certificate of
Limited Partnership or any amendment thereto to any Limited Partner upon
written request made by such Limited Partner to the General Partner.
7.8 Duties and Obligations of the General Partner.
7.8(a) The General Partner shall initiate and prosecute
diligently, as it, in its reasonable business judgment determines, the Project
and the operation and maintenance of the DCR PCS Network.
7.8(b) The General Partner shall be under a fiduciary duty to
conduct the affairs of the Partnership in the best interests of the
Partnership, including the safekeeping and use of all Partnership funds and
assets for the benefit of the Partnership. The General Partner at all times
shall act in good faith and exercise commercially reasonable due diligence in
all activities relating to the conduct of the business of the Partnership. The
General Partner shall take such actions as are necessary or appropriate to
protect the interests of the Limited Partners.
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ARTICLE VIII
PARTNERSHIP ADMINISTRATION
8.1 Voting and Decisions by Partners and the Partnership.
Except as otherwise expressly set forth in Section 7.7 hereof,
Partnership decisions and acts shall be made or performed by the General
Partner.
8.2 Amendments. The General Partner, without seeking the Consent of the
Limited Partners, shall have authority to amend this Agreement to make such
ministerial or technical changes which the General Partner determines are
necessary or desirable in order to achieve the intent of the Partners in
entering into this Agreement, including without limitation, to clarify
ambiguities, to correct inconsistencies, to insert unintentional omissions, to
attempt to ensure compliance with applicable tax, partnership and securities
laws, and to make any other changes which do not alter the rights or
obligations of the Limited Partners in a manner which would materially
disadvantage said Limited Partners. Such changes may only be made by the
General Partner after specific consultation with legal counsel on each such
matter, and prompt Notice of any such change shall be given to the Limited
Partner.
ARTICLE IX
ASSIGNMENT OF INTERESTS
9.1 Transfer of the General Partner's Interests. Except as provided
below, no General Partner may withdraw as a General Partner of the Partnership
nor transfer, assign or Encumber all or any part of such General Partner's
Interest to or for the benefit of any Person without the Consent of all other
Partners. Notwithstanding the foregoing, the General Partner shall have the
right without the Consent of the Limited Partners to transfer or assign in
whole or in part its Interest to an Affiliate and to cause such Affiliate to be
admitted to the Partnership as an additional General Partner, in the case of a
partial transfer or assignment, or substitute General Partner, in the case of a
whole transfer or assignment of such Interest. Notwithstanding the foregoing,
the General Partner may Encumber its Interest or its right to receive
distributions or proceeds from the Partnership in accordance with the
provisions of Section 9.4 below.
9.2 Transfer of a Limited Partner's Interest. No Limited Partner may
transfer, assign or Encumber all or any part of such Limited Partner's Interest
without the Consent of the General Partner which Consent may be granted or
denied in such General Partner's sole and absolute discretion. Notwithstanding
the foregoing, each Limited Partner shall Encumber its Interest or its right to
receive distributions or proceeds from the Partnership in accordance with the
provisions of Section 9.4 below.
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9.3 Substituted Limited Partner. An assignee of an interest of a Limited
Partner shall become a substituted Limited Partner if, and only if:
9.3(a) the Consent of the General Partner has been obtained;
9.3(b) the assignor gives the assignee such right in the instrument
of assignment;
9.3(c) the assignor delivers an opinion of counsel satisfactory to
the General Partner that such transfer does not require registration under
applicable federal and state securities laws; and
9.3(d) all costs, including reasonable attorney's fees incurred in
connection with the assignment, have been paid.
Absent such substitution, an assignor of a Limited Partner's Interest in
the Partnership shall continue to be a Limited Partner with all of the rights
and obligations thereof, except for entitlement to any Partnership
distributions or allocations attributable to such Interests. Notwithstanding
the foregoing, any Limited Partner which is an Affiliate of the General Partner
shall have the right, without the Consent of the General Partner or the other
Limited Partners, to transfer or assign its Interest in whole or in part to any
other Affiliate of the General Partner and to cause such Affiliate to be
admitted to the Partnership as an additional or substitute Limited Partner or
as an additional General Partner.
9.4 Encumbrance of a Partner's Interest. Without limiting the generality
of the foregoing provisions of this Article IX, no Partner shall Encumber such
Partner's Interest nor make any assignment (including collateral assignments)
of its rights to receive distributions or proceeds from the Partnership, except
as hereinafter provided in this Article IX. Each Partner agrees to allow such
Partner's Interest to be Encumbered to the extent deemed reasonably necessary
or appropriate by the General Partner in order to secure indebtedness of the
Partnership incurred for Partnership purposes. Each Limited Partner hereby
appoints the General Partner such Limited Partner's true and lawful
attorney-in-fact, coupled with an interest, to execute on behalf of such
Limited Partner such financing instruments and other documents including
assignments and collateral assignments of such Limited Partner's Interest or
such Limited Partner's right to receive distributions or proceeds from the
Partnership as the General Partner deems necessary or advisable in connection
with such financing. Notwithstanding the foregoing, the General Partner and
each Limited Partner which is an Affiliate of the General Partner shall have
the right to Encumber its respective Interest for reasons other than
Partnership purposes, including without limitation by reason of enumeration, to
secure indebtedness of DCR or of any DCR Affiliate in connection with the
financing of other PCS networks in which DCR or any such Affiliate has an
interest.
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9.5 Withdrawal of Limited Partner. Except as provided in this Article
IX, no Limited Partner may withdraw from the Partnership without the Consent of
the General Partner. In the event of death, incompetency, dissolution or
bankruptcy of a Limited Partner,
9.5(a) the Partnership shall not be dissolved, and
9.5(b) such Limited Partner's successors, assigns and personal
representatives shall have all the rights of such Limited Partner for the
purpose of settling or managing its estate or property, but shall not be
entitled to vote on any matter affecting the Partnership, and, unless admitted
as a substitute Limited Partner pursuant to' Section 9.3, shall be a mere
assignee with respect to such rights.
9.6 Transfers in Connection with the Sale of the Business. The Partners
acknowledge and agree that, with respect to the sale or exchange of all or
substantially all of the operating assets of the Partnership, other than a
Networks Sale as defined in Section 14.1 below (a "Sale of the Business"), it
may be advantageous for the Partnership and the Partners to sell or assign all
or substantially all of the Partnership Interests rather than to effect a
direct conveyance of the assets. In the event there is to be a Sale of the
Business as provided under the terms of this Agreement, and in the event the
General Partner determines that it is in the best interest of the Partnership
and the Partners to sell or assign all of their respective Partnership
Interests in lieu of providing a direct conveyance of assets, each of the
Partners hereby agrees to sell or assign their respective Partnership Interests
in such transaction. In such event, the net proceeds (after reduction for any
expenses of sale) shall be distributed and allocated among the Partners in
accordance with Section 10.3, as if the Partnership had sold the assets
directly. Each Limited Partner hereby appoints the General Partner such
Limited Partner's true and lawful attorney-in-fact, coupled with an interest,
to execute on behalf of such Limited Partner any and all documents as the
General Partner deems necessary or advisable in connection with such Sale of
the Business.
ARTICLE X
DISSOLUTION AND WINDING UP
10.1 Term. The Partnership shall continue in effect until 12:00 midnight,
December 31, 2050 unless sooner dissolved and liquidated in accordance with the
provisions hereof. All provisions of this Agreement relative to dissolution
and liquidation shall be cumulative and the exercise or use of one of the
provisions hereof shall not preclude the exercise or use of any other
provision.
10.2 Dissolution. The Partnership shall be dissolved upon the happening
of any of the following:
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10.2(a) The affirmative vote by all Partners to dissolve the
Partnership;
10.2(b) The sale of all or substantially all of the Partnership's
tangible assets and receipt of all net proceeds from such sale, unless the
Partners unanimously decide to continue the Partnership;
10.2(c) Following the death, dissolution or other disqualification of
a General Partner under Section 10.5, if any remaining General Partner(s)
fail(s) to elect, within ninety (90) days after such disqualifying event, to
continue the business of the Partnership, subject to the right of the Limited
Partners to continue the business of the Limited Partnership as provided in
Section 10.6;
10.2(d) Upon the occurrence of any event specified in the Act as
resulting in the dissolution of the Partnership; or
10.2(e) In any event, at 12:00 midnight, December 31, 2050.
10.3 Winding Up and Liquidation. Subject to the provisions, of Section
10.4 hereof, upon a dissolution of the Partnership, the remaining General
Partner(s), or if none, the remaining Limited Partners, shall liquidate the
Partnership's assets, and shall do so as promptly as is consistent with
obtaining fair value for such assets, and shall apply and distribute the net
proceeds thereof, any previously set-aside reserves and any unliquidated
property (at fair market value) in the following order of priority:
10.3(a) First, toward all Partnership obligations, including loans
by Partners, except as otherwise provided in this Agreement, and any reserves
for contingent obligations or liabilities as the General Partner (or, if none,
a majority in interest of the Limited Partners) deems necessary;
10.3(b) Second, to the Partners, in proportion to their positive
Capital Account balances, determined after all allocations pursuant to Article
V hereof and all prior distributions pursuant to Article VI hereof. All
distributions of Net Distributable Cash shall cease following any event calling
for dissolution under Section 10.1 or any sale of all or substantially all of
the Partnership's tangible assets.
10.4 Compliance With Timing Requirements of Regulations. In the event the
Partnership is "liquidated" within the meaning of Section 1.704-1(b)(2)(ii)(g)
of the Regulations, (a) distributions shall be made pursuant to this
Article X (if such liquidation constitutes a dissolution of the Partnership) or
Article VI hereof (if it does not) to the General and Limited Partners in
accordance with this Agreement. Distributions pursuant to the preceding
sentence may be made to a trust established for the benefit of the General and
Limited Partners for the purposes of liquidating Partnership assets, collecting
amounts owed to the Partnership, and paying any contingent or unforeseen
liabilities or obligations of
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the Partnership or of the General Partner(s) arising out of or in connection
with the Partnership. The assets of any such trust shall be distributed to the
General and Limited Partners from time to time, in the reasonable discretion of
the General Partner(s), in the same proportions as the amount distributed to
such trust by the Partnership would otherwise have been distributed to the
Partners pursuant to this Agreement, provided, however, that such trust may be
created only if the Partnership has received an opinion from counsel which is
recognized as having expertise in the area of federal income taxation that such
trust will not be classified as an association which will be taxed as a
corporation for federal income tax purposes.
10.5 Death, Dissolution or Other Disqualification of a General Partner. A
General Partner shall cease to be a general partner of the Partnership upon the
happening of any of the following events:
10.5(a) The death, insanity or adjudication of incompetence of such
General Partner (in the case of a natural person);
10.5(b) the dissolution or termination of such General Partner for
state law purposes (in the case of a corporation, trust, partnership or other
business entity);
10.5(c) the withdrawal of such General Partner with the Consent of
all the Limited Partners;
10.5(d) an assignment by such General Partner for the benefit of
creditors;
10.5(e) the filing of a voluntary petition in bankruptcy by such
General Partner;
10.5(f) the filing by such General Partner of a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any federal or state bankruptcy or
insolvency laws;
10.5(g) the filing of an answer or other pleading by such General
Partner admitting or failing to contest the material allegations of a petition
filed against such General Partner under paragraph (f);
10.5(h) the consent or acquiescence by such General Partner to or
in the appointment of a trustee, receiver, or liquidator for such General
Partner or of all or any substantial part of such General Partner's property;
10.5(i) the institution of any proceeding against such General
Partner seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any federal or state
bankruptcy laws, which proceeding has not been dismissed within ninety (90)
days after the commencement thereof;
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10.5(j) the appointment, without such General Partner's consent or
acquiescence, of a trustee, receiver, or liquidator of such General Partner or
of all or any substantial part of such General Partner's property unless the
appointment is vacated or stayed within ninety (90) days; or
10.5(k) an appointment for such General Partner which is stayed
under the preceding paragraph and which is not vacated within ninety (90) days
after the expiration of the stay.
The Partnership Interest of a General Partner who ceases to be a
General Partner automatically shall convert into that of a Limited Partner and
(whether or not the Partnership dissolves or is terminated) shall represent an
identical interest in the Partnership's taxable income or loss, allocation and
distributions as such Interest had as a General Partnership Interest, and this
Agreement shall be amended accordingly to reflect the happening of any such
disqualifying event. If such General Partner is the last remaining General
Partner, the Partnership shall be dissolved, wound up and liquidated in
accordance with the provisions of Section 10.3, unless the Limited Partners
elect to continue the Partnership pursuant to Section 10.6.
10.6 Successor Partnership. If the Partnership would otherwise be
dissolved as provided in Section 10.2(c) , all Partners other than the
disqualified General Partner may determine, within ninety (90) days of the
event giving rise to dissolution, to continue the business of the Partnership
and elect one or more new General Partners, if necessary. Unless otherwise
agreed by such remaining Partners, this Agreement, as it may from time to time
be amended, shall constitute the limited partnership agreement of such new
partnership.
ARTICLE XI
BOOKS, REPORTS, ACCOUNTING
AND TAX DECISIONS
11.1 Books and Records. The General Partner shall maintain or cause to be
maintained at the Partnership's principal office complete and accurate books
and records with respect to all Partnership transactions, which books and
records shall be kept in accordance with generally accepted accounting
principles. At a minimum, the following books and records shall be kept at the
principal office of the Partnership:
11.1(a) a current list of the full name and last-known business
address of each Partner;
11.1(b) a copy of this Agreement and the Certificate of Limited
Partnership and all amendments, together with executed copies of any powers of
attorney pursuant to which any document has been executed;
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11.1(c) copies of the Partnership's federal, state and local income
tax returns and reports for the three (3) most recent years; and
11.1(d) copies of any effective written Partnership agreements and
of all financial statements of the Partnership for the three (3) most recent
years.
11.2 Fiscal Year and Method of Accounting. The Partnership's fiscal year
for both tax and financial reporting purposes shall be the calendar year. The
method of accounting for both tax and financial reporting purposes will be the
accrual basis method, unless the General Partner determines, upon at least
sixty (60) days prior written notice to all Partners, that there would be a
significant advantage to the Partnership if a different method or methods were
followed or another method is required by law. Where significant deviations
exist between the two methods, such deviations shall be fully explained in the
financial statements.
11.3 Reports. In addition to complying with the requirements of Section
7.1 of this Agreement, the General Partner shall prepare, or cause to be
prepared, and shall send to all Partners, within thirty (30) days after the end
of each fiscal quarter, unaudited statements of Partnership gross receipts and
operating expenses for such quarter. The General Partner shall send, by June
30 of each year, to each Person who was a Partner during that fiscal year, tax
information necessary for the preparation of such party's federal, state and
other required tax returns. The General Partner shall employ, at the
Partnership's expense, independent certified public accountants for the purpose
of compiling the Partnership's annual financial statements. Such statements,
at a minimum, shall include a balance sheet, related statements of income and
loss, Partners' equity, changes in financial position and cash flow statement
and such supplemental financial information as is deemed desirable by the
General Partner. A copy of the annual financial statements shall be sent to
each Partner within 120 days after the end of each fiscal year. The
Partnership's income tax return shall be prepared annually by an independent
certified public accountant.
11.4 Tax Elections. The General Partner shall have the sole and absolute
discretion and authority to make or revoke any elections on behalf of the
Partnership for tax purposes, including but not limited to the elections
referred to in Sections 734, 743, and 754 of the Code or any successor
provisions. Each of the Partners, upon request of a General Partner, shall
supply such information as reasonably may be necessary to properly give effect
to any such election.
11.5 Tax Matters Partner.
11.5(a) The General Partner hereby is designated the tax matters
partner of the Partnership (the "Tax Matters Partner"), as provided in the
Regulations issued pursuant to Section 6231 of the Code, and is authorized to
perform such duties as are required or appropriate in the capacity of Tax
Matters Partner. Each
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Partner, by the execution of this Agreement, consents to such designation of
the Tax Matters Partner, and agrees to execute, certify, acknowledge, deliver,
swear to, file and record at the appropriate public offices such documents as
may be necessary or appropriate to evidence such consent.
11.5(b) The Tax Matters Partner shall not settle any audit of the
Partnership or file any tax consent proceeding on behalf of the Partnership
without the Consent of a majority in Interest of the Partners.
ARTICLE XII
CONTRACTS WITH PARTNERS/AFFILIATES
12.1 Management Agreement. The Partnership shall enter into a Management
Agreement (to be attached to this Agreement as Exhibit B) with DCR or with an
Affiliate of DCR to provide for, inter alia, the coordination and control of
all matters relating to the Partnership's participation in the FCC Auction; the
management of the Project; the dealing with equipment, services and other
vendors; the provision or controlling the providing of marketing, billing,
customers service, fraud management, cash management, financial management and
related services and the general management of the Partnership's business. The
Management Agreement shall comply with all applicable rules, regulations and
policies of the FCC.
12.2 Services Agreement. The Partnership may enter into a services
agreement with any Limited Partner or with any Affiliate of any Limited Partner
for, inter alia, the rendering of certain build-out, marketing and site
location services as well as assistance to the Partnership in establishing
strategic alliances in the Las Vegas area, all in furtherance of the purposes
of the Partnership. The foregoing services agreement shall comply with all
applicable rules, regulations and policies of the FCC.
12.3 Compensation. All compensation paid to and the provision of any
agreement with any Partner or DCR or of any Affiliate of any Partner or of DCR
shall be on commercially competitive terms and conditions.
ARTICLE XIII
CONVERSION RIGHT
13.1 IPO. In the event that the General Partner intends to undertake an
initial public offering ("IPO") of its stock, each Limited Partner shall have
the option, exercisable pursuant to the terms and conditions in this Article
XIII set forth, to convert its respective Interest into the shares of stock
which are intended to be covered by the IPO ("DCR Shares").
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13.1.1 The General Partner shall give Notice ("First Notice") of
said intention to the Limited Partners within a period of at least ninety (90)
days prior to the target date of the intended IPO. Said First Notice shall be
accompanied by (a) an appraisal ("DCR Appraisal") by a nationally recognized
appraiser of partnership business interests or by any of the "Big Six"
nationally recognized certified public accounting firms ("Appraiser") of the
net value of the Partnership determined on a cash-flow basis and, based on said
net value, of the net value of each Limited Partner's Interest, and (b) a
description of the procedures and other information and instructions applicable
to the conversion of Partnership Interests into DCR shares (collectively,
"Conversion Procedures"). The aforesaid DCR appraisal shall be made as of the
last day of the most recently ended fiscal year of the Partnership ("Appraisal
Year End").
13.1.2 Within thirty (30) days after the date of receipt of the
First Notice, the Limited Partners shall give Notice ("Second Notice") to the
General Partner indicating (a) whether or not said Limited Partners intend to
exercise their options to convert their Interests into DCR Shares, and (b) if
said Limited Partners do intend to so exercise their option, whether or not
said Limited Partners accept the valuation of their Interests as set forth in
the DCR Appraisal.
13.1.3 In the event that the Limited Partners desire to exercise
their option to convert but do not accept the valuation of their Interests as
set forth in the DCR Appraisal, said Limited Partners may procure, at their
cost, their own appraisal as of the Appraisal Year End ("LP Appraisal") of
their Interests as determined by their Appraiser, in which event said LP
Appraisal shall be delivered in a Notice ("Third Notice") by the Limited
Partners to the General Partner within thirty (30) days subsequent to the date
of receipt by the General Partner of the Second Notice.
13.1.4 Within the thirty (30) days subsequent to the receipt by
the General Partner of the LP Appraisal and Third Notice, the General Partner
and the Limited Partners shall negotiate in good faith a compromise valuation
of the Limited Partners' Interests taking into consideration the analysis and
valuation set forth in the DCR Appraisal and the LP Appraisal, respectively.
In the event that said Partners cannot agree amicably on such valuation of the
Limited Partners' Interests, the dispute shall be resolved definitively and in
a manner binding upon the General Partner and the Limited Partners by an
Appraiser selected jointly by the respective Appraisers which made the DCR
Appraisal and the LP Appraisal. The expenses and costs of said third Appraiser
shall be paid by the Partnership.
13.1.5 In the event that the respective Appraisers for the General
Partner and the Limited Partners cannot agree upon a third Appraiser, the
matter of valuation of the Partnership and of the Limited Partners' Interests,
as of the Appraisal Year End, shall be submitted to binding arbitration under
the Rules of the American Arbitration Association. The award in such
arbitration shall be final and enforceable in any court of competent
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jurisdiction. All costs and expenses of the American Arbitration Association
and of the arbitrator(s) shall be paid by the party whose Appraisal valuation is
farthest from the valuation determined as a result of the aforesaid
arbitration.
13.1.6 Upon the valuation of the Partnership and of the Limited
Partners' Interests having been finally determined as in this Article XIII set
forth, the conversion of the Limited Partners' Interests shall proceed in
accordance with the Conversion Procedures.
13.1.7 Notwithstanding any other provision in this Article XIII to
the contrary, if the IPO undertaken by the General Partner shall be, in whole
or in part, an underwritten public offering, any exercise by the Limited
Partners of their option to convert their Interests to DCR Shares shall be
subject to the approval of the managing underwriter (or the General Partner if
there is no such managing underwriter), and the number of DCR Shares available
for issuance upon conversion by a Limited Partner may be reduced if and to the
extent that the managing underwriter (or the General Partner if there is no
such managing underwriter) shall be of the opinion that such conversion could
adversely affect the marketing of the securities to be sold by the General
Partner. Any such reduction shall be pro rata among the Limited Partners
requesting to exercise their conversion rights in accordance with their
respective Partnership Interests.
13.2 Agreed Valuation. Notwithstanding any other provision in this
Article XIII, the General Partner and the Limited Partners may agree upon the
valuation of the Limited Partners' Interests without the need for any, or any
further, Appraisals, as the case may be.
ARTICLE XIV
SALE OF DCR NETWORKS
14.1 Buy-Out. In the event that DCR intends to sell all of the PCS
networks, or most of such PCS networks, owned or controlled by DCR, including
the DCR PCS Network owned by the Partnership ("Network Sale"), the General
Partner shall have the right to buy-out the Interests of the Limited Partners
pursuant to the terms and conditions of this Article XIV.
14.1.1 The General Partner shall give Notice ("First Network
Notice") of said intention to the Limited Partners within a period of at least
ninety (90) days prior to the target date of the intended Networks Sale. Said
First Notice shall be accompanied by (a) an appraisal ("DCR Network Appraisal")
by an Appraiser as of the Appraisal Year End (as those terms are defined in
Subsection 13.1.1 above) of the net value of the Partnership determined on a
cash-flow basis and, based on said value, of the net value of each Limited
Partner's Interest, and (b) a description of the procedures and other
information and instructions applicable to the buy-out of the Limited Partners'
Interests ("Buy-Out Instructions").
- 32 -
38
14.1.2 Within thirty (30) days after the date of receipt of the
First Network Notice, the Limited Partners shall give Notice ("Second Network
Notice") to the General Partner indicating whether or not said Limited Partners
accept the valuation of their Interests as set forth in the DCR Network
Appraisal.
14.1.3 In the event that the Limited Partners decide not to accept
the DCR Network Appraisal, the provisions of Sections 13.1.3, 13.1.4 and 13.1.5
and 13.2 shall be applied, to the extent necessary, to determine the valuation
of the Interests of the Limited Partners.
14.1.4 Upon the valuation of the Partnership and of the Limited
Partners' Interests having been finally determined as in this Article XIV set
forth, the buy-out of the Limited Partners' Interests shall proceed in
accordance with the Buy-Out Instructions.
ARTICLE XV
MISCELLANEOUS
15.1 Bank Accounts. Partnership funds shall be deposited in the name of
the Partnership in accounts designated by the General Partner, and withdrawals
shall be made only by Persons duly authorized by the General Partner.
15.2 Waiver of Partition. The Partners hereby agree that no Partner, nor
any successor in interest of any Partner, shall have the right, while this
Agreement remains in effect, to have the Property or any other Partnership
property partitioned, or to file a complaint or institute any proceeding at law
or in equity to have such Property or other property partitioned, and all
Partners, on behalf of themselves and their heirs, successors and assigns,
hereby waive any such right.
15.3 Choice of Law and Severability. This Agreement shall be construed in
accordance with the laws of the State of Nevada. If any provision of this
Agreement shall be contrary to the laws of the State of Nevada or any other
applicable law, at the present time or in the future, such provision only shall
be deemed null and void, but such nullity shall not affect the remaining
provisions of this Agreement, which shall continue in full force and effect.
This Agreement shall be deemed to be modified and amended so as to be in
compliance with all applicable laws and this Agreement shall then be construed
in such a way as will best serve the intention of the parties at the time of
the execution of this Agreement.
15.4 Captions, Gender and Number. The captions in this Agreement are
inserted only as a matter of convenience and in no way affect the terms or
intent of any provision of this Agreement. All defined phrases, pronouns and
other variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the context or the actual identity of the
organization, person or persons may require.
- 33 -
39
15.5 Counterparts. This Agreement may be executed in one or more
counterparts, each bearing the signatures of one or more Partners. Each such
counterpart shall be considered an original and all of such counterparts shall
constitute a single agreement binding all of the parties as if all had signed a
single document.
15.6 Binding Effect. Except as may otherwise be provided to the contrary
in this Agreement, the terms and provisions of this Agreement shall be binding
upon and shall inure to the benefit of all the Partners, their personal
representatives, heirs, successors and assigns.
15.7 Entire Agreement. This Agreement, including any schedules and
exhibits, each of which is incorporated herein by this reference, constitutes
the entire agreement among the Partners regarding the terms and operations of
the Partnerships except as amended in writing pursuant to the requirements
hereof, and supersedes all prior and contemporaneous agreements, statements,
understandings and representations of the parties with respect to the
Partnership.
15.8 Plain Meaning. This Agreement shall be construed in accordance with
its plain meaning, without giving effect to any inference or implication
arising from the fact that it may have been drafted in whole or in part by
counsel to one or more but less than all Partners.
15.9 Notices. For purposes of Section 1.23 hereof, Notices shall be sent
to the Partners at their respective addresses set forth on Exhibit A hereto.
15.10 DE Status. During the term of the Partnership, no Limited
Partner shall, directly or indirectly, without the express written consent of
the General Partner (which consent may be granted or withheld by the General
Partner in the sole and absolute discretion of the General Partner) take any
action or omit to take any action which could, in the opinion of the General
Partner, jeopardize the General Partner's and/or the Partnership's compliance
with all criteria for (a) special financing, credits and other benefits to be
made available by the FCC with respect to the Auction to "small businesses" and
a "business owned by members of minority groups and women", (b) all applicable
foreign ownership requirements pursuant to the Communications Act of 1934, as
amended, and/or (c) ownership of a PCS License. If required by FCC regulations
and with the advice of FCC counsel, the Partners agree to modify the structure
of the Partnership to conform to such FCC regulations taking into consideration
and preserving to the extent possible the economic benefits of each Partner as
set forth in this Agreement.
- 34 -
40
ARTICLE XVI
RATIFICATION, POWER OF ATTORNEY
16.1 Ratification. Each Partner who executes this Agreement at the end
of this Article by such Partner's personal signature or by the signature of
such Partner's authorized attorney-in-fact or signatory, hereby specifically
adopts and approves each and every provision of this Agreement.
16.2 Power of Attorney. Each Limited Partner, including any Limited
Partner who shall become a party to this Agreement on or after the date hereof,
constitutes and appoints the General Partner, or if more than one, the Managing
General Partner, its true and lawful attorney-fact, and in its name, place and
stead, to make, execute, sign, acknowledge, and file, but in all cases subject
to the limitations set forth elsewhere in this Agreement:
16.2(a) One or more certificates of limited partnership;
16.2(b) all instruments (including, e.g., Amended Certificates of
Limited Partnership) which such General Partner deems appropriate to reflect
any amendment, change, or modification of the Partnership Agreement in
accordance with the terms of Section 8.3 of this Agreement;
16.2(c) any and all other certificates or other instruments which
may be required to be filed by the Partnership under the laws of the State of
Nevada or of any other state or jurisdiction, including, without limitation,
any certificate or other instruments necessary in order that the Partnership
continue as a limited partnership under the laws of the State of Nevada;
16.2(d) one or more certificates of fictitious or assumed name;
16.2(e) any and all other documents which may be required to
effectuate the operation of this Partnership pursuant to the terms of this
Agreement; and
16.2(f) all documents which may be required to effectuate the
dissolution and termination of the Partnership in accordance with the
provisions of this Agreement, including cancellation of its Certificate of
Limited Partnership, as amended from time to time.
The foregoing Power of Attorney hereby is declared to be irrevocable
and a power coupled with an interest, and (to the extent permitted by
applicable law) shall survive the incapacity of a Limited Partner and the
delivery of an assignment by a Limited Partner of a Partnership Interest,
except that where the assignee is approved for admission as a Substituted
Limited Partner, the power of attorney shall survive the delivery of such
assignment for the sole purpose of enabling the General Partner or Managing
General Partner, as the case may be, to execute, acknowledge and
- 35 -
41
file any instrument to effectuate such substitution. The Limited Partners
hereby agree to be bound by any representations made by the General Partner or
the Managing General Partner acting in good faith pursuant to such Power of
Attorney.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
GENERAL PARTNER:
---------------
DCR NEVADA, INC.
Attest: By: [SIG]
----------------------- -------------------------------
LIMITED PARTNERS:
----------------
DCR COMMUNICATIONS, INC.
Attest: By: [SIG]
----------------------- -------------------------------
ONYX TELECOMMUNICATIONS,
L.L.C.
Attest: By: [SIG]
----------------------- -------------------------------
WIRELESS PCS, INC.
Attest: By:
----------------------- -------------------------------
Witness: /s/ ANDREW MOLASKY
----------------------- ----------------------------------
Andrew Molasky
Witness: /s/ ALAN MOLASKY
----------------------- ----------------------------------
Alan Molasky
Witness: /s/ STEVEN MOLASKY
----------------------- ----------------------------------
Steven Molasky
- 36 -
42
EXHIBIT A
to
DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
Partners' Names, Addresses, Percentage Interests
and Capital Contributions
Initial 10%
Names/Addresses % Interests Capital Contributions Contribution
- --------------- ----------- --------------------- ------------
GENERAL PARTNER
DCR Nevada, Inc. 1.0 $20,000 $2,000
2550 M Street, N.W.
Suite 200
Washington, D.C. 20037
LIMITED PARTNERS
DCR Communications, Inc. 54.1 $1,380,000 $138,000
2550 M Street, N.W.
Suite 200
Washington, D.C. 20037
Onyx Telecomm L.L.C. 24.9 $400,000 $40,000
1221 11th Street N.W.
Washington DC 20005
Andrew Molasky 5.0 $100,000 $10,000
3111 S. Maryland Parkway
Las Vegas, NV 89109
Alan Molasky 5.1 $100,000 $10,000
3111 S. Maryland Parkway
Las Vegas, NV 89109
Steven Molasky 5.0 $100,000 $10,000
3111 S. Maryland Parkway
Las Vegas, NV 89109
Wireless PCS, Inc. 4.9 $100,000 $10,000
2305 Kelbe Drive
Little Chute, WI 54140
A - 1
43
EXHIBIT A
to
DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
Partners' Names, Addresses, Percentage Interests
and Capital Contributions
Initial
Names/Addresses % Interests Capital Contributions
- --------------- ----------- ---------------------
GENERAL PARTNER
DCR Nevada, Inc. 1.0 $20,000
2550 M Street, N.W.
Suite 200
Washington, D.C. 20037
LIMITED PARTNERS
DCR Communications, Inc. 54.1 $1,380,000
2550 M Street, N.W.
Suite 200
Washington, D.C. 20037
Onyx Telecomm L.L.C. 24.9 $400,000
1221 11th Street N.W.
Washington DC 20005
Andrew Molasky 5.0 $100,000
3111 S. Maryland Parkway
Las Vegas, NV 89109
Alan Molasky 5.1 $100,000
3111 S. Maryland Parkway
Las Vegas, NV 89109
Steven Molasky 5.0 $100,000
3111 S. Maryland Parkway
Las Vegas, NV 89109
Wireless PCS, Inc. 4.9 $100,000
2305 Kelbe Drive
Little Chute, WI 54140
A - 1
44
FIRST AMENDMENT TO
DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
The undersigned, being all of the Partners of the Partnership, hereby
enter into this First Amendment to the Agreement of Limited Partnership for DCR
Pacific PCS Limited Partnership (the "Partnership"), dated as of October 17,
1995 (the "Agreement").
I. Section 3.1 of the Agreement is hereby amended to read as follows:
3.1 Initial Capital Contribution. The initial Capital Contributions of
each of the Partners is set forth on Exhibit A hereto. On or before
October 24, 1995, each of the Partners shall pay, in cash, to the
Partnership an amount equal to ten per centum (10%) of their respective
initial Capital Contribution to such account of the Partnership as the
General Partner may direct. No later than two weeks before the date that
the General Partner shall give Notice of as being the date the initial
deposit for the FCC Auction is due, each of the Limited Partners shall
pay, in cash, to the Partnership the balance of their respective initial
Capital Contribution, being ninety per centum (90%) of the amount set
forth opposite their names on Exhibit A hereto, which payments the General
Partner shall cause to be held in an escrow account to be established by
the General Partner on behalf of the Partnership and held by an escrow
agent separate from funds of any other entity. Notwithstanding the
foregoing provision, the Partners agree that all or part of the Capital
Contribution of the General Partner and of any Limited Partner that is an
Affiliate of the General Partner will be deposited as part of the
downpayment for PCS Licenses to be acquired at the FCC Auction.
II. Section 3.9 of the Agreement is amended to read as follows:
3.9 Condition Precedent. In the event that the Partnership does not
acquire the PCS Licenses required to own and operate the DCR PCS Network
in the Las Vegas basic trading area, then, with respect to each Limited
Partner, a sum (the "Pay Amount") equal to the aggregate amount of (i) all
Capital Contributions (i.e. the initial Capital Contribution and all
additional Capital Contributions) paid by such Limited Partner to the
Partnership, plus (ii) accrued interest thereon, less (iii) an amount
determined by the General Partner to cover costs attributable to
preparation for and participation in the bidding for said PCS Licenses at
the FCC Auction, but not to exceed ten percent (10%) of the aggregate
amount of all such Capital Contributions paid by such Limited Partner,
shall be returned to such Limited Partner within thirty (30) days
subsequent to the date on which the FCC Auction is concluded
("Post-Auction Period"). Upon the payment by the Partnership to any
Limited Partner of the Pay Amount, said Limited Partner shall thereafter
own no Interest in the Partnership.
45
III. Section 9.2 of the Agreement is amended to read as follows:
9.2 Transfer of a Limited Partner's Interest. No Limited Partner
may transfer, assign or Encumber all or any part of such Limited Partner's
Interest except in accordance with the provisions of this Section.
9.2(a) For a period of one year from the date of this First Amendment,
no Limited Partner may transfer, assign or Encumber all or part of such
Limited Partner's Interest except upon Consent of the General Partner
which Consent shall not unreasonably be withheld.
9.2(b) After the passage of one year from the date of this First
Amendment, should any Limited Partner decide to transfer or assign such
Limited Partner's interest, such Limited Partner (hereinafter called
"Offeror") shall first offer all or part of such Limited Partner's
Interest by Notice to the other Partners.
Every such offer shall be in writing, shall state that the Offeror offers
to sell all of Offeror's Interest, and shall specify the cash price
therefor. Each Partner other than the Offeror shall have the option to
purchase some or all of the Interest of the Offeror. Within ten (10) days
after receipt of such Notice, any Partner who desires to exercise such
option shall make, execute and deliver in writing to the Offeror, either
personally or by registered mail, such Partner's acceptance of the offer
and agreement to acquire the Interest of the Offeror at the price offered
by Offeror. Should more than one Partner exercise this option, then each
such Partner (hereinafter called an "Accepting Partner") shall acquire the
Interest of the Offeror in the proportion that the Interest of such
Accepting Partner bears to the aggregate Interests of all Accepting
Partners at the price and upon the terms hereinafter set forth. The
Accepting Partner(s) shall make payment of the entire purchase price
within (30) days of the acceptance of the offer.
Notwithstanding the foregoing, acquisition by an Accepting Partner of all
or part of such Offeror's Interest shall be permitted only to the extent
such transfer would not, in the opinion of the General Partner, contravene
Section 15.10 of the Agreement of Limited Partnership.
The Offeror shall not be required to sell its Interest pursuant to the
terms hereof if the options which have been exercised pursuant hereto to
purchase Offeror's Interest are for less than all of the Interest owned by
Offeror. In such event, Offeror shall thereafter be free to enter into an
agreement to dispose of Offeror's Interest free of the restrictions of
this Agreement for a period of six (6) months from the date of the offer
to the other Partners. At the expiration of this six-month period, the
restrictions and limitations imposed by this Agreement shall reapply to
any Interest then owned by the Offeror.
9.2(c) Notwithstanding the foregoing, each Limited Partner shall Encumber
its Interest or its right to receive distributions or proceeds from the
Partnership in accordance with the provisions of Section 9.4 below.
- 2 -
46
IV. Section 16.2(b) of the Agreement is hereby amended to read:
16.2(b) All instruments (including, e.g., Amended Certificates of Limited
Partnership) which such General Partner deems appropriate to reflect any
amendment, change or modification of the Partnership Agreement in
accordance with the terms of Section 8.2 of this Agreement;
V. Except as so amended, the terms and provisions of the Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of October 19, 1995.
GENERAL PARTNER:
----------------
DCR NEVADA, INC.
Attest: By: [SIG]
---------------------- -----------------------------
LIMITED PARTNERS:
-----------------
DCR COMMUNICATIONS, INC.
Attest: By: [SIG]
---------------------- -----------------------------
ONYX TELECOMMUNICATIONS,
L.L.C.
Attest: By: /s/ THOMAS HART, JR.
---------------------- -----------------------------
WIRELESS PCS, INC.
Attest: By: [SIG]
---------------------- -----------------------------
Witness: /s/ ANDREW MOLASKY
---------------------- --------------------------------
Andrew Molasky
Witness: /s/ ALAN MOLASKY
---------------------- --------------------------------
Alan Molasky
Witness: /s/ STEVEN MOLASKY
---------------------- --------------------------------
Steven Molasky
- 3 -
47
SECOND AMENDMENT
TO
DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
The undersigned General Partner and DCR Communications, Inc., a limited
partner holding a majority of the partnership interests in DCR Pacific PCS
Limited Partnership (the "Partnership"), and Todd Marshall, as Trustee of the
Todd and Vivica Marshall Revocable Trust, hereby enter into this SECOND
AMENDMENT to the Agreement of Limited Partnership for DCR Pacific PCS Limited
Partnership dated as of October 17, 1995, as amended by a First Amendment dated
as of October 19, 1995 (as so amended, the "Agreement").
I. Exhibit A of the Agreement is hereby restated and amended to add the
Todd and Vivica Marshall Revocable Trust as a new limited partner in the
Partnership by partial assignment of the partnership interest of limited
partner DCR Communications, Inc. and to reduce the percentage interest of
limited partner DCR Communications, Inc. in the Partnership, all as set forth
in the Second Amended and Restated Exhibit A as attached hereto and which
partial assignment of limited partner's interest is hereby consented to by the
General Partner.
II. The Todd and Vivica Marshall Revocable Trust hereby acknowledges
receipt of the Agreement and all exhibits thereto which precede the date hereof
and adopts and approves each and every provision of the Agreement.
III. Except as so restated and amended, the terms and provisions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Second Amendment to
be executed as of March 19, 1996.
GENERAL PARTNER:
DCR NEVADA, INC.
Attest: [SIG] By: [SIG]
---------------------- -------------------------------
ASS'T SEC.
LIMITED PARTNERS:
DCR COMMUNICATIONS, INC.
Attest: [SIG] By: [SIG]
---------------------- -------------------------------
ASS'T SEC.
TODD AND VIVICA MARSHALL
REVOCABLE TRUST
Attest: By: /s/ TODD MARSHALL
---------------------- -------------------------------
Todd Marshall, Trustee
- 4 -
48
EXHIBIT A
TO
DCR PACIFIC PCS LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
Partners' Names, Addresses, Percentage Interests and Capital Contributions
(Amended and Restated as of March 19, 1996)
Names/Addresses % Interests Capital Contributions
- --------------- ----------- ---------------------
GENERAL PARTNER
DCR Nevada, Inc. 1.0 $45,837
2550 M Street, N.W., Suite 200
Washington, D.C. 20037
LIMITED PARTNERS
DCR Communications, Inc. 72.1 $3,404,186*
2550 M Street, N.W., Suite 200
Washington, D.C. 20037
Onyx Telecomm L.L.C. 10.9 $500,000
1221 11th Street N.W.
Washington DC 20005
Andrew Molasky 3.0 $138,678
3111 S. Maryland Parkway
Las Vegas, NV 89109
Alan Molasky 3.1 $141,252
3111 S. Maryland Parkway
Las Vegas, NV 89109
Steven Molasky 3.0 $138,678
3111 S. Maryland Parkway
Las Vegas, NV 89109
Wireless PCS, Inc. 4.9 $224,603
2305 Kelbe Drive
Little Chute, WI 54140
Todd and Vivica Marshall Revocable Trust 2.0 $90,509
2330 Industrial Road
Las Vegas, NV 89102
- ----------------------
* Contribution in cash and services pledged to license acquisition.