SECOND AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
OF
GILA RIVER CELLULAR GENERAL PARTNERSHIP
between
GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC.
and
XXXXXX CELLULAR OF ARIZONA, INC.
Date: September 30, 1997
TABLE OF CONTENTS
PAGE
ARTICLE I FORMATION OF PARTNERSHIP.........................2
1.1 Formation........................................2
1.2 Name and Office..................................2
1.3 Business Purpose.................................3
1.4 Approval and Effectiveness of the Agreement......3
ARTICLE II DEFINITIONS......................................3
2.1 Acquisition Costs................................3
2.2 Affiliate........................................4
2.3 Capital Account..................................4
2.4 Capital Contribution.............................4
2.5 Cell(s)..........................................4
2.6 Cellular Radio Decisions.........................4
2.7 Cellular Service.................................4
2.8 CGSA.............................................5
2.9 Income and Losses................................5
2.10 Majority Vote....................................5
2.11 Partnership Interest.............................5
2.12 RSA..............................................5
2.13 System Manager...................................5
2.14 Unanimous Vote...................................6
2.15 Voting Rights....................................6
ARTICLE III REGULATORY MATTERS...............................6
3.1 Contingency......................................6
3.2 Cooperation......................................6
3.3 Conflicts of Interest............................6
ARTICLE IV PARTNERSHIP OWNERSHIP, MANAGEMENT
AND OPERATIONS.................................7
4.1 Partnership Interests............................7
4.2 Management and Operating Services................7
4.3 Operating and Management Expenses................8
4.4 Ownership of Properties..........................8
4.5 Licenses.........................................9
4.6 Resale of Cellular Service.......................9
4.7 Cellular Service in Other Areas..................9
4.8 Voting...........................................9
ARTICLE V CAPITALIZATION OF PARTNERSHIP....................10
5.1 Capital Accounts.................................10
5.2 Form of Capital Contributions....................10
5.3 Non-Withdrawal of Capital Contribution...........10
5.4 No Interest on Capital Contributions.............11
5.5 No Priority......................................11
ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS....................11
6.1 Allocations Among Partners.......................11
6.2 Distributions....................................11
ARTICLE VII RIGHTS AND POWERS OF PARTNERSHIP AND PARTNERS....12
7.1 Partnership Powers...............................12
7.2 Partners' Meetings...............................13
7.3 Rights of the Partners...........................13
7.4 Actions Requiring Unanimous Vote of Partners.....14
7.5 Ownership or Conduct of Other Businesses.........14
ARTICLE VIII OBLIGATIONS OF SYSTEM MANAGER....................15
8.1 Duties...........................................15
8.2 Filings..........................................17
8.3 Maintenance of Accounts..........................17
8.4 Financial Reports................................17
8.5 Performance of Partnership Obligations...........18
ARTICLE IX BANKING, ACCOUNTING, BOOKS AND RECORDS...........18
9.1 Banking..........................................18
9.2 Accounting Method; Books and Records.............18
9.3 Fiscal Year; Partnership Tax Returns.............18
ARTICLE X TRANSFER OF PARTNER'S INTEREST...................19
10.1 Assignment.......................................19
10.2 Withdrawal.......................................19
10.3 Right of First Refusal...........................20
10.4 Rights of New Partner............................21
10.5 No Assignments or Transfers Allowed Under
Certain Circumstances..........................21
10.6 Further Transfers................................22
ARTICLE XI DISSOLUTION AND TERMINATION OF PARTNERSHIP.......22
11.1 Dissolution......................................22
11.2 Cessation of Existence of a Partner..............23
11.3 Distribution upon Dissolution....................23
11.4 Distributions in Cash or in Kind.................24
11.5 Time for Liquidation.............................25
11.6 Termination......................................25
11.7 Partners not Liable for Return of Distribution...25
ARTICLE XII EXCULPATION AND INDEMNIFICATION..................25
12.1 Exculpation of Partners and System Manager.......25
12.2 Indemnification of Partners and System Manager...25
12.3 Indemnification to Partnership and Partners......26
ARTICLE XIII AMENDMENTS.......................................26
ARTICLE XIV TECHNOLOGY AND INFORMATION.......................26
14.1 Technology License...............................26
14.2 Proprietary Information..........................27
ARTICLE XV MISCELLANEOUS PROVISIONS.........................28
15.1 Warranties.......................................28
15.2 Table of Contents and Headings...................28
15.3 Successors and Assigns...........................28
15.4 Severability.....................................28
15.5 Non-Waiver.......................................28
15.6 Applicable Law...................................29
15.7 Notices..........................................29
15.8 Amended Certificates of Partnership..............30
15.9 Further Assistance...............................30
15.10 Attorneys' Fees.................................30
15.11 Remedies........................................31
15.12 Arbitration.....................................31
15.13 Counterparts....................................32
SECOND AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
THIS SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT dated as of the
30th day of September, 1997, by and between XXXXXX CELLULAR OF ARIZONA,
INC., a corporation organized and existing under the laws of the State of
Oklahoma, and having its principal place of business at 00000 Xxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxx 00000 ("Xxxxxx"),
and GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC., which after the date
hereof will be known as Gila River Telecommunications, Inc., a corporation
duly organized pursuant to GRIC Resolution No. 10-97 of the Gila River
Indian Community, and having its principal place of business at 0000 Xxxx
Xxxxxxx Xxxx, Xxx 0000, Xxxxxxxx, Xxxxxxx 00000 ("GRT"). Xxxxxx and GRT
are herein sometimes collectively referred to as the "Partners".
WITNESSETH:
WHEREAS, U S WEST NewVector Group, Inc. ("NewVector"), Tohono X'xxxxx
Utility Authority ("TOUA"), Gila River Telecommunications, Inc. ("Former
GRTI"), and AZTEL, INC. ("AZTEL") entered into that certain Partnership
Agreement of GILA RIVER CELLULAR GENERAL PARTNERSHIP (the "Partnership")
dated as of September 1, 1990, as amended and restated in its entirety
pursuant to that certain Amended and Restated Partnership Agreement of the
Partnership dated as of October 13, 1994 (as amended and restated prior to
the date hereof, the "Partnership Agreement"); and
WHEREAS, pursuant to that certain Purchase Agreement dated as of
February 28, 1997 (the "Purchase Agreement") by and among Xxxxxx,
NewVector, XXXX, Former GRTI and AZTEL, Xxxxxx and GRT, as an assignee of a
portion of Xxxxxx'x purchase rights under the Purchase Agreement, purchased
all of the outstanding Partnership Interests (as defined in the Purchase
Agreement) and Voting Rights Interests (as defined in the Purchase
Agreement) of the Partnership from NewVector, XXXX, Former GRTI and AZTEL;
and
WHEREAS, contemporaneously with the purchase described in the
paragraph immediately above, Xxxxxx and GRT desire to amend and restate the
Partnership Agreement in its entirety in order to reflect, among other
matters, the Partners' understandings with respect to the continued
operation of the Partnership and the continued provision of Cellular
Service within the RSA.
NOW, THEREFORE, it is mutually agreed that:
ARTICLE I
FORMATION OF PARTNERSHIP
1.1 FORMATION. The Partners mutually covenant and agree and hereby
do form a general partnership pursuant to the provisions of the Uniform
Partnership Act of the State of Arizona (the "Act").
1.2 NAME AND OFFICE.
(a) NAME. The name of the Partnership is GILA RIVER CELLULAR
GENERAL PARTNERSHIP and its business shall be carried on in its name with
such variations and changes as the Partners deem necessary to comply with
requirements of the jurisdictions in which operations are conducted or as
the Partners deem necessary to change for any reasonable business purpose.
(b) PLACE OF BUSINESS. The principal place of business and the
registered office of the Partnership shall be at c/o CT Corporation System,
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or such other location
as the Partnership may from time to time select.
(c) REGISTERED AGENT. The name of the agent for service of the
Partnership and its address are CT Corporation System, 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or such other qualified person and address
as the Partnership may from time to time select.
1.3 BUSINESS PURPOSE. The purpose of the Partnership shall be to
fund, establish and provide Cellular Service within the RSA and to perform
all other lawful acts as may be necessary or advisable in connection
therewith or reasonably related thereto.
1.4 APPROVAL AND EFFECTIVENESS OF THE AGREEMENT. To the extent
necessary from time to time, the Partnership shall submit this Partnership
Agreement to all appropriate local, state, federal and tribal governmental
and regulatory authorities for review and/or approval. The Partners shall
reasonably support the Partnership's interests in obtaining the review
and/or approval of this Partnership Agreement before any governmental
and/or regulatory authorities. The Partnership shall continue until
December 31, 2099, or until earlier terminated by the terms of this
Partnership Agreement, the FCC or as otherwise provided by law.
ARTICLE II
DEFINITIONS
2.1 ACQUISITION COSTS. All costs of acquiring an asset (excluding
Partnership Interests) plus any interest cost properly capitalized in
accordance with the Financial Accounting Standards Board - Standard No. 34.
2.2 AFFILIATE. A person, association, co-partnership, partnership,
corporation or joint-stock company or trust (hereinafter collectively
"person") that directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with a Partner.
Control shall be defined as (i) ownership of a majority (i.e., more than
fifty percent (50%)) of the voting power of all classes of voting stock or
(ii) ownership of a majority of the beneficial interests in income and
capital of an entity other than a corporation.
2.3 CAPITAL ACCOUNT. The respective accounts established and
maintained for each Partner pursuant to Section 5.1.
2.4 CAPITAL CONTRIBUTION. Funds paid by a Partner to the Partnership
pursuant to Article V to this Partnership Agreement including amounts paid
by any former owner of the Partnership Interest held by such Partner.
2.5 CELL(S). The cellular transmitting/receiving location defined by
thirty-two (32) dBu coverage, or such other mathematical calculations as
approved by the Federal Communications Commission (the "FCC") from time to
time.
2.6 CELLULAR RADIO DECISIONS. The FCC orders made in CELLULAR
COMMUNICATIONS SYSTEMS, 86 FCC 2d 469 (1981) as modified and in CELLULAR
RECONSIDERATION ORDER, 89 FCC2d 58 (1982).
2.7 CELLULAR SERVICE. Any and all service and equipment and its
differentiated goods and services authorized by the FCC under Part 22 of
its cellular rules as promulgated under the Cellular Radio Decisions, as
modified or amended from time to time, and provided pursuant to the terms
of this Partnership Agreement.
2.8 CGSA. The Cellular Geographic Service Area as initially
designated in the attached APPENDIX A, which is generally contained within
the boundaries of RSA Market No. 322, Arizona 5 - Gila, and any and all
other areas within the RSA to which the Partners agree from time to time.
2.9 INCOME AND LOSSES. The income and losses of the Partnership for
Federal income tax purposes as of the close of the Partnership's fiscal
year or any other fiscal period, as well as, where the context requires,
each Federal tax item of capital gain or loss, tax preference and credits.
2.10 MAJORITY VOTE. A vote approving an action or approving not to
take an action of those Partners who, in the aggregate, exercise at least
fifty-one percent (51%) of the Voting Rights in the Partnership.
2.11 PARTNERSHIP INTEREST. The entire ownership interest of a Partner
in the Partnership at any particular time determined in accordance with
Section 4.1 below. Such interest includes, without limitation, the
interest of the Partner to participate in the Partnership's Income and
Losses.
2.12 RSA. Xxx XXX Xxxxxx Xx. 000, Xxxxxxx 0 - Xxxx Rural Service
Area.
2.13 SYSTEM MANAGER. The party selected by a Majority Vote of all of
the Partners as being responsible for the management and operation of
Cellular Service for the Partnership. Until a successor System Manager is
appointed by Majority Vote, System Manager shall be Xxxxxx.
2.14 UNANIMOUS VOTE. A vote approving an action or approving not to
take action of those Partners who, in the aggregate, exercise one hundred
percent (100%) of the Voting Rights of the Partnership.
2.15 VOTING RIGHTS. The rights of a Partner to vote on Partnership
matters as further described in Section 4.8.
ARTICLE III
REGULATORY MATTERS; CONFLICTS
3.1 CONTINGENCY. The permits or licenses to be issued to the
Partnership by regulatory authorities in connection with the provision of
Cellular Service may be contingent during the pendency of litigation or
regulatory action concerning the present wireline allocation; however, the
pendency of such litigation or regulatory action shall not affect the
Partners' obligations under this Partnership Agreement.
3.2 COOPERATION. The Partners pledge their best efforts and mutual
cooperation to permit the Partnership to (i) continue to operate and
maintain a fully integrated and technically seamless Cellular Service
system throughout the RSA and (ii) continue to obtain all necessary
approvals to provide Cellular Service consistent with this Partnership
Agreement.
3.3 CONFLICTS OF INTEREST. Each Partner agrees not to, directly or
indirectly, through an Affiliate, shareholder, officer or director, engage
in or possess an interest in any other Cellular Service provider to the RSA
so long as such Partner owns any Partnership Interest in the Partnership.
The ownership of less than 2% of the outstanding shares of a public company
which provides such service shall not be deemed to violate this Section
3.3.
ARTICLE IV
PARTNERSHIP OWNERSHIP, MANAGEMENT AND OPERATIONS
4.1 PARTNERSHIP INTERESTS. Each Partner's current Partnership
Interest and share of Income and Losses is as follows:
Xxxxxx: 75%
GRT: 25%
4.2 MANAGEMENT AND OPERATING SERVICES. The System Manager, on behalf
of the Partnership and under the supervision of the Partners, shall be
responsible for obtaining interconnection with the landline network, for
constructing, operating and maintaining the Cellular Service system, for
marketing Cellular Service, as further described in Article VIII and for
funding all working capital and capital expenditures of the Partnership in
accordance with Section 4.3 below. In carrying out the Partnership's
responsibility to provide Cellular Service, the Partners hereto agree that
the System Manager shall perform all day-to-day activities and/or functions
as the Partners may designate as necessary or appropriate to market, sell,
establish, operate, maintain and manage the Cellular Service system. All
Partners agree to aid the System Manager in the performance of such
activities and functions. It is understood that the Partnership shall
directionalize and coordinate appropriate cells, and/or utilize reasonable
and practicable accounting divisions and traffic allocations, to accomplish
the result of equitably segregating the Partnership's cell site traffic
(and its respective profits and losses) from adjacent system traffic and
individual Partner's cell site traffic within the RSA (and the respective
profits and losses attributable to the individual Partner's cell site
traffic.
4.3 OPERATING AND MANAGEMENT EXPENSES. The System Manager shall be
reimbursed by the Partnership monthly, or at such other longer periods as
the Partnership deems appropriate, for any reasonable and necessary
expenses incurred by the System Manager on behalf of the Partnership in
providing Cellular Service in accordance with the terms of this Partnership
Agreement, plus reasonable and necessary administrative and general
overhead expenses, including, but not limited to, marketing, maintenance,
message charges, facilities, engineering, data processing, legal,
accounting and audit fees, development and implementation of billing
procedures, expenses of preparing tax returns and reports, taxes, travel,
office rent, telephone, salaries (including social security, relief,
pensions and other benefits) and other incidental business expenses
incurred by the System Manager on behalf of the Partnership in connection
with the provision of Cellular Service in accordance with the terms of this
Partnership Agreement. To the extent funds are expended by the System
Manager which are to be reimbursed to it by the Partnership, the same shall
be treated as a loan from the System Manager to the Partnership, bearing
interest at a per annum rate no greater than the System Manager's composite
cost of money from time to time, with the loan commencing thirty (30) days
after the date of billing to the Partnership and terminating at the date of
reimbursement.
4.4 OWNERSHIP OF PROPERTIES. The Partnership shall acquire and hold
in its name, directly or through license, all real and personal property,
equipment, permits, contractual agreements, software and all other assets
required by the Partnership to provide Cellular Service based upon a
cellular system financed, implemented and operated by the Partnership as
opposed to any Partner or Partners.
4.5 LICENSES. The System Manager shall, on behalf of the
Partnership, (a) cause to be transferred to the Partnership's name all
licenses, permits and other regulatory approvals (if any) in the name of
the System Manager and necessary to provide Cellular Service; and (b) if
other local, state or Federal licenses, permits, certificates of
convenience, franchises or other approvals or authorities are necessary to
provide Cellular Service, make application therefor, on behalf of the
Partnership, to the appropriate authority.
4.6 RESALE OF CELLULAR SERVICE. Nothing herein shall preclude any
Partner or an Affiliate thereof from reselling Cellular Service, or from
selling or leasing terminal equipment used in connection with Cellular
Service, independently from the Partnership, whether within or outside the
RSA. No such Partner nor any Affiliate thereof shall be funded or staffed
by the Partnership for such resale activity, and any transactions between
such Partner or any such Affiliate and the Partnership shall be on arms-
length basis and on prices, terms and conditions equivalent to the prices,
terms and conditions of any agreements by Partnership and other resellers
of Cellular Service.
4.7 CELLULAR SERVICE IN OTHER AREAS. Nothing herein shall preclude a
Partner or any Affiliate or stockholder thereof from providing Cellular
Service independently from the Partnership in areas other than the RSA.
4.8 VOTING. The Voting Rights of each Partner shall be proportionate
to such Partner's Capital Account as of the date hereof as set out on ANNEX
X. Xxxxxx shall be entitled to cast three (3) votes and GRT shall be
entitled to cast one (1) vote on all matters submitted to a vote of the
Partners. There shall be a total of four (4) votes to be cast on all
Partnership matters. Except as specified in Section 7.4 and Article XIII,
a Majority Vote shall be required on all matters submitted to the Partners
for a vote. Except as otherwise provided herein, any vote required of the
Partners under this Partnership Agreement may be taken without a meeting if
a consent in writing, setting forth the action so taken, is signed by the
Partners having not less than the minimum vote that would be necessary to
authorize or take that action.
ARTICLE V
CAPITALIZATION OF PARTNERSHIP
5.1 CAPITAL ACCOUNTS. An individual capital account ("Capital
Account") shall be established and maintained for each Partner. The
Capital Contributions made or deemed made by each Partner and the capital
account of each Partner as of the date of the consummation of the
transactions contemplated by the Purchase Agreement are agreed to be the
respective amounts set forth on ANNEX B hereto. Each such Capital Account
shall be (a) increased by such Partner's allocable share of income and
gain, and (b) decreased by such Partner's allocable share of distributions
and Partnership deductions, expenses and losses. Notwithstanding anything
contained herein to the contrary, the Capital Accounts of the Partners
shall be determined and maintained throughout the term of the Partnership
in accordance with the capital accounting rules of Treasury Regulation
Section 1.704-(b)(2)(iv).
5.2 FORM OF CAPITAL CONTRIBUTIONS. Funding of all Capital
Contributions to the Partnership shall be in cash and not real or personal
property.
5.3 NON-WITHDRAWAL OF CAPITAL CONTRIBUTIONS. Except upon dissolution
and liquidation of the Partnership or as otherwise provided herein, no
Partner shall have the right to withdraw its Capital Contributions.
5.4 NO INTEREST ON CAPITAL CONTRIBUTION. No Partner shall be
entitled to interest of any kind on account of its Capital Contributions.
5.5 NO PRIORITY. Except as otherwise provided herein, no Partner
shall have priority over any other Partner as to return of its Capital
Contributions or as to distributions.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 ALLOCATIONS AMONG PARTNERS. All Income and Losses of the
Partnership shall be apportioned ratably to each day of the Partnership's
taxable year and each day's share of such items shall be allocated to the
Partners in proportion to their respective Partnership Interests on such
days.
6.2 DISTRIBUTIONS. Funds of the Partnership from all sources, less
appropriate reserves as are determined by the System Manager to be
reasonably necessary to fund Acquisition Costs, necessary construction,
expansion, management or operation of the Cellular Service and for future
administrative and operating expenses, loan payments and other costs and
expenses and contingencies, shall be distributed on a fiscal quarterly
basis as promptly as practicable after the end of each quarter but in no
event later than 60 days' after the end of each quarter. Each distribution
pursuant to this Section 6.2 shall be made to the Partners in proportion to
their respective Partnership Interests during the period to which the
distribution applies, subject to the provisions of Section 5.1.
ARTICLE VII
RIGHTS AND POWERS OF PARTNERSHIP
AND PARTNERS
7.1 PARTNERSHIP POWERS. In furtherance of the business purpose
specified in Section 1.3, the Partnership shall be empowered to do or cause
to be done any and all acts reasonably deemed by the Partners to be
necessary or appropriate in furtherance of the purposes of the Partnership
or forebear from doing any act if the Partners reasonably deem such
forbearance necessary or appropriate in furtherance of the Partnership,
including, without limitation, the power and authority:
(a) To enter into, perform and carry out contracts and
agreements of every kind necessary or incidental to the accomplishment of
the Partnership's purposes, including, without limitation, contracts and
agreements with a Partner and any Affiliates of any Partner, and to take or
omit such other or further action in connection with the Partnership's
business as may be necessary or desirable in the opinion of the System
Manager to further the purposes of the Partnership; provided, however, that
if any goods or services are to be provided to the Partnership by any
Partner or any Affiliates of any Partner not expressly provided for
hereunder, such goods or services shall be at rates or prices no less
favorable to the Partnership than from unrelated third parties in the
business of providing comparable goods or services;
(b) To borrow from banks and other lenders on such terms and
conditions as shall be approved by the System Manager and to secure any
such borrowings by mortgaging, pledging or assigning assets and revenues of
the Partnership to the extent deemed necessary or desirable by the System
Manager;
(c) To invest such funds as are temporarily not required for
Partnership purposes in short-term debt obligations selected by the System
Manager, including government securities, certificates of deposit of
commercial banks (domestic or foreign), commercial paper, bankers'
acceptances and other money market instruments;
(d) To accept loans from any Partner, that such loans may bear
interest or charges in excess of the amount which would be charged to the
Partnership on a nonrecourse basis by unrelated banks on comparable loans
for the same purpose; and
(e) To carry on any other activities necessary to, with or
incidental to any of the foregoing.
7.2 PARTNERS' MEETINGS. The System Manager shall hold at least five
meetings each year with the Partners (one meeting each quarter and one
annual meeting on a mutually agreeable date each year) in order to discuss
the business and affairs of the Partnership and to vote on any matters
requiring a vote of the Partners. GRT shall have the right to send five
representatives to each meeting. The Partners' Meetings will be held in
Arizona at such location as the System Manager deems appropriate. The
System Manager shall provide the Partners with at least thirty (30) days'
prior written notice of the time and place of each quarterly meeting. Each
representative of GRT attending a Partners' meeting shall be entitled to be
reimbursed for such representative's costs and expenses for attending such
meeting in an amount up to $100.
7.3 INFORMATION AND OTHER RIGHTS OF THE PARTNERS. Each Partner shall
have the right to:
(a) At its cost inspect and copy, upon ten (10) business days'
notice to the Partnership, any of the Partnership books of record,
accounting records, financial statements or other records or reports at the
place or places such records are kept;
(b) Whenever circumstances render it just and reasonable, have a
formal account of Partnership affairs;
(c) Audit, at its own expense and once every calendar year, the
Partnership books of record, accounting records and financial statements of
the Partnership;
(d) Petition the court for dissolution and winding up of the
Partnership when permitted under the Act; and
(e) Receive the financial reports described in Section 8.4
below.
7.4 ACTIONS REQUIRING UNANIMOUS VOTE OF PARTNERS. The Partnership
shall not, without a prior Unanimous Vote (with each Partner having the
Voting Rights as described in Section 4.8), take any of the following
actions:
(a) Sell, pledge or otherwise dispose of all, or substantially
all, of the assets of the Partnership;
(b) Remove a System Manager other than for cause;
(c) Implement a capital expenditure budget for each of the
Partnership's fiscal years;
(d) Engage in any other business besides the provision of
Cellular Service to the CGSA and other acts as may be necessary or
advisable in connection therewith or reasonably related thereto; or
(e) Merge, dissolve, terminate or liquidate the Partnership.
7.5 OWNERSHIP OR CONDUCT OF OTHER BUSINESSES. Subject to the
provisions of Section 3.3, the Partners may engage in or possess an
interest in other business ventures of every kind and description. Neither
the Partnership nor any Partner shall have any rights by virtue of this
Partnership Agreement in such independent business ventures or to the
income or profits therefrom.
ARTICLE VIII
OBLIGATIONS OF SYSTEM MANAGER
8.1 DUTIES. In connection with the Partnership's efforts to
establish, operate and maintain Cellular Service within the RSA, the System
Manager shall provide day-to-day management and administrative services to
the Partnership, and may execute all contracts, agreements and instruments
as the System Manager reasonably deems necessary or desirable to carry on
the purpose of the Partnership. The System Manager shall at all times act
in the best interest of the Partnership. Without intending to limit the
generality of the foregoing and in furtherance of the services to be
rendered and under the supervision of the Partners, the System Manager
shall, at the Partnership's cost, have the power to:
(a) Provide management and accounting services to the
Partnership consisting of, but not limited to, maintaining books and
records, opening bank accounts, preparing accounting reports (in accordance
with generally accepted accounting principles, as varied by appropriate
regulatory authorities) and other records or reports necessary to meet
regulatory and legal filings, as the System Manager may deem necessary or
appropriate;
(b) Make any and all tax elections, including, but not limited
to, the method of accounting to be elected for tax purposes of the
Partnership and whether or not to make an election pursuant to Section 754
of the Internal Revenue Code to adjust for Federal income tax purposes the
basis of Partnership property upon the transfer of a Partner's Partnership
Interest, or the distribution of Partnership property;
(c) Incur obligations or make payments on behalf of the
Partnership in its own name or in the name of the Partnership;
(d) Approve all design and construction of the Partnership's
cellular system and prepare a capital expenditure budget each year to be
submitted for the Partners' approval in accordance with Section 7.4(c)
above;
(e) From time to time increase the coverage area of Cellular
Service and apply for regulatory approval to expand the geographic area of
the CGSA;
(f) Maintain such insurance coverage for public liability, fire
and casualty, and any and all other insurance necessary or appropriate to
the business of the Partnership, in such amounts and of such types as the
System Manager shall determine from time to time;
(g) Retain services of any kind or nature in connection with the
Partnership business, and pay therefor such remuneration as the System
Manager may deem reasonable and proper;
(h) Hire employees in connection with the Partnership business
and to pay therefor such remuneration as the System Manager may deem
reasonable and proper;
(i) Negotiate and conclude agreements on behalf of the
Partnership with respect to any of the rights, powers and authority
conferred upon the System Manager;
(j) Purchase, lease, rent or otherwise, acquire or obtain the
use of machinery, equipment, tools, materials and all other kinds and types
of personal property that may in any way be deemed necessary, convenient or
advisable in connection with carrying on the business of the Partnership;
(k) Establish reserves for payment of debts, working capital,
contingencies, repairs, improvements, maintenance and replacements, and
withdrawals of capital, if any, and as otherwise provided in Section 6.2;
and
(l) Any other action requested by the Partners in accordance
with the terms of this Partnership Agreement.
8.2 FILINGS. The System Manager, on behalf of the Partnership, shall
file all certificates, notices, statements or other instruments required by
law for the formation, operation and termination of the Partnership and its
business in all appropriate jurisdictions and shall prepare and file all
necessary Partnership tax returns. The System Manager shall advise the
Partners of any elections under applicable tax laws that may affect
Partnership Income or Losses.
8.3 MAINTENANCE OF ACCOUNTS. The System Manager shall maintain or
cause to be maintained, in accordance with the provisions of this
Partnership Agreement, Capital Accounts on the books and records of the
Partnership with respect to each Partner.
8.4 FINANCIAL REPORTS. The System Manager shall furnish or cause to
be furnished to the Partners annual, audited Partnership financial
statements examined by a recognized firm of independent certified public
accountants and quarterly unaudited financial statements will be furnished
to the Partners within sixty (60) business days after the close of each
quarter and be certified by an officer of the System Manager. Year-end
audited financial statements will be made available by the System Manager
to the Partners within one hundred (100) business days after the close of
the fiscal year, with unaudited financials for year-end provided on an
interim basis within sixty (60) business days after the close of the fiscal
year.
8.5 PERFORMANCE OF PARTNERSHIP OBLIGATIONS. The System Manager,
pursuant to and in accordance with any and all authority granted to it by
the Partners and under this Partnership Agreement, shall use its best
efforts to cause the Partnership to observe and perform each and every
obligation under all agreements and undertakings made by the Partnership or
imposed on the Partnership by law or regulatory authority.
ARTICLE IX
BANKING, ACCOUNTING, BOOKS AND RECORDS
9.1 BANKING. All funds of the Partnership shall be deposited in the
bank account or accounts as shall be established and designated by the
System Manager. Withdrawals from any such bank account or accounts shall
be made upon such signatures as the System Manager may designate.
9.2 ACCOUNTING METHOD; BOOKS AND RECORDS. The System Manager shall
keep or cause to be kept full and accurate books and records of the
transactions of the Partnership in proper books of account in accordance
with generally accepted accounting principles, as varied by appropriate
regulatory authorities. Such books and records shall be maintained or
available on notice at the principal place of business of the System
Manager, or such other place designated by the System Manager, and be made
available for reasonable inspection, examination and copying by the
Partners or their respective duly authorized agents or representatives upon
ten (10) business days' notice to the System Manager.
9.3 FISCAL YEAR; PARTNERSHIP TAX RETURNS. The fiscal year of the
Partnership shall begin on the 1st day of January in each year and end on
the 31st day of December in each year. The System Manager shall cause to
be filed the Federal income tax Partnership return and all other tax
returns required to be filed for the Partnership for all applicable tax
years, and shall furnish as promptly as practicable, but in no event later
than one hundred thirty (130) business days after the close of the fiscal
year, a statement of the Partners' allocated share of income, gains,
losses, deductions and credits for such taxable year.
ARTICLE X
TRANSFER OF PARTNER'S INTEREST
10.1 ASSIGNMENT. A Partner may transfer or assign its Partnership
Interest, and all rights and obligations' therein, to an Affiliate or
Affiliates. For purposes of this Article X, an assignment shall be deemed
to have occurred if in a single transaction or in a series of transactions
any interest in a Partner, except to an Affiliate of such Partner (whether
stock, partnership interest or otherwise) is transferred, diluted, reduced
or otherwise affected. An assignment shall not be deemed to have occurred
(i) due to the transfer of any or all of the outstanding capital stock of
any corporate Partner or any Affiliate through any recognized national
securities exchange or in connection with an initial public offering of its
capital stock, or (ii) due to the mortgage of all or any part of a
Partnership Interest to a bank, trust company or other institutional lender
licensed pursuant to any state or Federal banking laws. Any such transfer
or assignment shall be subject to any required regulatory approval.
10.2 WITHDRAWAL. The withdrawal of a Partner will not cause the
dissolution and termination of the Partnership. A Partner may not withdraw
until it has given the other Partners ninety (90) days' written notice of
its intention to withdraw. In such event, the remaining Partners, or any
of them by agreement of the remaining Partners, shall have the right for a
period of thirty (30) days to purchase all, but not less than all, of the
withdrawing Partner's Partnership Interest proportionately based upon the
relative Partnership Interests of the Partners interested in purchasing, or
as otherwise agreed by the remaining Partners in writing, and the total
purchase price for the withdrawing Partner's Partnership Interest shall
equal such Partner's Capital Account on the date the ninety (90) day notice
is given. If the remaining Partners, or any of them, do not elect to
purchase all of the withdrawing Partner's Partnership Interest, and if at
any time during the remainder of such ninety (90) day period any other
Partner or Partners designates a substitute Partner who will agree both to
purchase the withdrawing Partner's Partnership Interest, on terms
acceptable to the withdrawing Partner and all other Partners, and to
continue the business of the Partnership, subject to any required
regulatory approval, the withdrawing Partner agrees to transfer or assign
its Partnership Interest to the designated substitute Partner. The
withdrawing Partner shall not unreasonably withhold its acceptance of terms
for purchase of its Partnership Interest proposed by the substitute
Partner.
10.3 RIGHT OF FIRST REFUSAL. Except as provided in Section 10.2,
before any Partner sells, transfers or assigns any part of its Partnership
Interest to a non-Affiliate of such Partner, it shall offer, by giving
written notice to the other Partners, that Partnership Interest to all of
the other Partners for the price at which and the terms under which such
non-Affiliate has offered, pursuant to a bona fide offer in writing (the
"Offer"), to pay for such Partnership Interest. Each Partner shall
initially be entitled to purchase that fraction of the offering Partner's
Partnership Interest equal to its Partnership Interest divided by the
Partnership Interests of all non-selling Partners. If any Partner(s)
declines to exercise its right of purchase hereunder, the other Partners
electing to exercise that right shall be entitled to purchase that portion
of the Partnership Interest intended to be sold that has been declined by
the other Partner(s) in amounts allocably determined based upon the ratio
that the purchasing non-selling Partners' relative Partnership Interests
bears to the Partnership Interests of all purchasing non-selling Partners.
The purchase price payable by each purchasing nonselling Partner shall be
allocably determined based upon the price set forth in the Offer and the
percentage that the portion of the Partnership Interest purchased by a
Partner bears to the entire Partnership Interest being sold. Each non-
selling Partner shall notify the System Manager and the selling Partner, in
writing, of its intention to exercise or not to exercise its purchase
rights hereunder within thirty (30) calendar days following receipt of the
offer of sale. The System Manager shall promptly notify each Partner of
the elections by the other Partner(s). Subsequent written notifications,
if necessary, shall be required within ten (10) calendar days after receipt
by the Partners which have not previously declined to exercise their rights
of purchase, of their intentions with respect to that portion of the
selling Partner's Partnership Interest still subject to a right of
purchase. If the purchase rights are not timely exercised they shall
expire. No portion of a Partnership Interest offered under this
Section 10.3 shall be permitted to be purchased by any Partner pursuant to
this Section 10.3 unless the entire Partnership Interest offered is
purchased by one or more Partners.
10.4 RIGHTS OF NEW PARTNER. Every person receiving any portion of a
Partnership Interest by transfer or assignment shall thereafter possess all
of the rights, duties and obligations of a Partner specified herein;
provided, however, that the transferee or assignee shall be entitled to
Voting Rights as described in Section 4.8.
10.5 NO ASSIGNMENTS OR TRANSFERS ALLOWED UNDER CERTAIN CIRCUMSTANCES.
Notwith-standing anything contained herein to the contrary, a Partner shall
not assign or transfer its Partnership Interest, or any portion thereof, if
such assignment or transfer would result (directly or indirectly) in the
(1) termination of the Partnership for tax purposes, except with approval
of a Majority Vote of the Partners; (2) violation of any applicable federal
or state securities laws or any rules or regulations thereunder; or
(3) violation of any applicable FCC rules or regulations.
10.6 FURTHER TRANSFERS. An assignee or transferee of a Partnership
Interest who desires to make a further assignment or transfer of its
Partnership Interest shall be subject to the provisions of this Article X
to the same extent and in the same manner as an original Partner desiring
to assign or transfer its Partnership Interest.
ARTICLE XI
DISSOLUTION AND TERMINATION OF PARTNERSHIP
11.1 DISSOLUTION. The Partnership shall be dissolved and terminated
if:
(a) The FCC Cellular Radio Decisions are not continued in
substantially the same form and such change materially and adversely
impacts the Partnership's ability to conduct its business and all available
administrative and judicial appeals regarding such Cellular Radio Decisions
have been finally exhausted;
(b) The Partners, upon a Unanimous Vote, agree to dissolve and
terminate the Partnership and receive any approvals required by the FCC or
any other regulatory authority for such dissolution and termination;
(c) The expiration of the term of the Partnership;
(d) The acquisition by a Partner of all of the Partnership
Interests of the other Partners; or
(e) The sale of all the property of the Partnership.
11.2 CESSATION OF EXISTENCE OF A PARTNER. The cessation of existence
of a Partner shall not dissolve the Partnership. In such event, such
Partner's Partnership Interest shall be distributed to the successors in
interest to such Partner; provided, that in the event the successors in
interest collectively are not comprised of persons or entities that owned
more than fifty percent (50%) of the voting power or beneficial interests
in income and capital of such Partner, the transfer of such Partner's
Partnership Interest shall be subject to the provisions of Section 10.3.
The successors in interest shall be required to execute such documents as
may be necessary or required in the opinion of legal counsel for the
Partnership to evidence their ownership of such Partner's Partnership
Interest. The successors in interest to such Partner shall have the same
proportionate rights and obligations under this Partnership Agreement as
those possessed by such Partner. The transfer of a Partnership Interest
upon the cessation of existence of any successor in interest to a Partner
shall be subject to the provisions of this Section 11.2.
11.3 DISTRIBUTION UPON DISSOLUTION. Upon dissolution of the
Partnership as provided in Section 11.1 above, the Partners shall proceed,
subject to the provisions herein, to liquidate the Partnership and apply
the proceeds of such liquidation, or to distribute Partnership assets, in
the following order of priority:
(a) All of the Partnership's debts and liabilities to persons
other than Partners, including expenses of liquidation, shall be paid and
discharged, but excluding secured creditors whose obligations will be
assumed or otherwise transferred on the liquidation of Partnership assets,
and any reserve deemed necessary by the System Manager for the payment of
such debts shall be set aside. Such reserve may be paid over by the
Partnership to any attorney at law, or other acceptable party, as escrow
agent to be held for disbursement in payment of any of the aforementioned
liabilities and, at the expiration of such period as shall be deemed
advisable by the System Manager, for distribution of the balance, in manner
hereinafter provided in this paragraph;
(b) All of the Partnership's debts and liabilities to Partners
shall be paid and discharged; and
(c) The remaining assets shall be distributed to the Partners
first for the return of their Capital Accounts in proportion to the
Partners' respective Capital Accounts at the time of such dissolution, with
any remaining Partnership assets being distributed in proportion to the
Partners' respective Partnership Interests on the date of dissolution.
11.4 DISTRIBUTIONS IN CASH OR IN KIND. Upon dissolution, the
Partnership may in its discretion (a) liquidate all or a portion of the
Partnership assets and apply the proceeds of such liquidation in the
priorities set forth in Section 11.3 or (b) hire independent recognized
appraisers to appraise the value of Partnership assets not sold or
otherwise disposed of (the cost of such appraisal to be considered a debt
of the Partnership), allocate any unrealized gain or loss to the Partners'
Capital Accounts as though the properties in question had been sold on the
date of distribution and, after giving effect to any such adjustment,
distribute said assets in accordance with the priorities as set forth in
Section 11.3. The Partnership may determine whether undivided portions of
assets distributed in kind will be distributed pro rata to Partners in
accordance with their respective Partnership Interests at the time of
dissolution or assets may be distributed otherwise in accordance with their
respective Partnership Interests at the time of dissolution. In the case
of any distribution in kind of Partnership assets to a Partner under this
Section 11.4, the value of the asset determined by appraisal as provided
above shall be applied against the Partner's Capital Account.
11.5 TIME FOR LIQUIDATION. A reasonable amount of time shall be
allowed for the orderly liquidation of the assets of the Partnership and
the discharge of liabilities to creditors so as to enable the Partnership
to minimize any losses which otherwise might be incurred.
11.6. TERMINATION. Upon compliance with the foregoing distribution
plan, the Partnership shall cease to exist and the System Manager shall
cause the certificate of partnership to be canceled and shall take such
other action as may be necessary to terminate the Partnership.
11.7 PARTNERS NOT LIABLE FOR RETURN OF DISTRIBUTION. The Partners
shall not be liable for any distribution required pursuant to
Sections 11.3(b) and (c), and such distributions shall be made solely from
available Partnership assets, if any.
ARTICLE XII
EXCULPATION AND INDEMNIFICATION
12.1 EXCULPATION OF PARTNERS AND SYSTEM MANAGER. The System Manager,
along with all Partners, will not be liable for any loss to the Partnership
or the Partners by reason of any act or failure to act in the course of
their supervision or management of Partnership operations unless such
Partner or System Manager was guilty of willful misconduct or gross
negligence.
12.2 INDEMNIFICATION OF PARTNERS AND SYSTEM MANAGER. The Partnership
shall indemnify the Partners and System Manager against any loss or damage
incurred by any of them (including legal expenses) by reason of any acts
performed or not performed by such Partner or System Manager for and on
behalf of the Partnership, unless such Partner or System Manager was guilty
of willful misconduct or gross negligence. The Partners and System Manager
shall indemnify the Partnership against any damages incurred by the
Partnership by reason of the willful misconduct or gross negligence of such
Partner or System Manager.
12.3 INDEMNIFICATION TO PARTNERSHIP AND PARTNERS. Each Partner, its
receiver or its trustee, shall indemnify the Partnership and each other
Partner against and save them harmless from any claim, demand, judgment or
liability, and against and from any loss, cost or expense (including, but
not limited to attorneys' fees and court costs, which may be paid by a
party as incurred), which may be imposed on them by reason of any action or
inaction taken by it contrary to the express provisions of this Partnership
Agreement or inconsistent with applicable law.
ARTICLE XIII
AMENDMENTS
Except for amendments made in accordance with this Partnership
Agreement in connection with assignment of Partnership Interests by
Partners to their Affiliates and to reflect additional or substitute
Partners or changes in Capital Contributions, this Partnership Agreement
may not be amended except upon a Unanimous Vote (with each Partner having
the Voting Rights as described in Section 4.8).
ARTICLE XIV
TECHNOLOGY AND INFORMATION
14.1 TECHNOLOGY LICENSE. The System Manager shall, on behalf of the
Partnership, obtain the right to use hardware and software technology
associated with Cellular service. The System Manager is hereby authorized,
on behalf of the Partnership, to engage in negotiations and to enter into
contracts for licenses to use cellular hardware, software or related
processes. In general, such contracts shall be merely right to use
contracts and will not vest any title in any Partner to this Partnership
Agreement.
14.2 PROPRIETARY INFORMATION. All information, including but not
limited to, specifications, microfilm, photocopies, keypunch cards,
magnetic tapes, drawings, sketches, models, samples, tools, technical
information, data, employee records, maps, customer information, financial
reports and market data marked or identified in writing as proprietary (all
hereinafter designated as "Proprietary Information") furnished to or
obtained by a Partner from any other Partner, whether written or oral or in
other form, shall remain the disclosing Partner's property. All copies of
such information, whether written, graphic or other tangible form, shall be
returned to the disclosing Partner upon the disclosing Partner's request,
except that one (1) copy may be retained for archival purposes. Unless
otherwise agreed, no obligation hereunder shall extend beyond five (5)
years from the date of receipt of such information, and the obligation does
not apply to such Proprietary Information as was previously known to the
receiving Partner free of any obligation to keep it confidential or that
has been or in subsequently made public by the disclosing Partner or a
third party. Such Proprietary Information shall be kept confidential by
the receiving Partner and shall be used only for performing the covenants
contained in this Partnership Agreement and may be used for such other
purposes only upon such terms as may be agreed upon between the disclosing
Partner and receiving Partner in writing.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 WARRANTIES. Each Partner warrants as follows:
(a) It has the legal capacity to enter into and execute this
Partnership Agreement, and
(b) This Partnership Agreement does not breach any of its
existing agreements with other parties.
15.2 TABLE OF CONTENTS AND HEADINGS. The table of contents and the
headings of the Sections of this Partnership Agreement are inserted for
convenience only and shall not be deemed to constitute a part hereof.
15.3 SUCCESSORS AND ASSIGNS. This Partnership Agreement shall inure
to the benefit of and be binding upon the Partners and their respective
successors and assigns, except that nothing contained in this Section shall
be construed to permit any attempted assignment or other transfer which
would be unauthorized by or void pursuant to any other provision of this
Partnership Agreement.
15.4 SEVERABILITY. Every provision of this Partnership Agreement is
intended to be severable. If any term or provision hereof is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of the Partnership Agreement;
provided, however, that the general intent of this Partnership Agreement
shall not be voided thereby.
15.5 NON-WAIVER. No provision of this Partnership Agreement shall be
deemed to have been waived unless such waiver is contained in a written
notice given to the Partner claiming such waiver, and no such waiver shall
be deemed to be a waiver of any other or further obligation or liability of
the Partner or Partners in whose favor the waiver was given.
15.6 CERTIFICATES OF PARTNERSHIP INTEREST. All interests in the
Partnership shall be represented by partnership interest certificates
issued by the Partnership. Such certificates shall be signed by the System
Manager and by the Chairman of the Board, the President or a Vice President
of each Partner.
15.7 ADOPTION OF LAW. The Partnership and the Partners expressly
agree that all Partnership Interests are securities governed by Title 47,
Chapter 8 of the Arizona Revised Statutes. Solely for the purposes of this
Partnership Agreement, each of the Partners, and the Gila River Indian
Community as the jurisdiction of domicile of GRT, agree that the
interpretation and enforcement of this Partnership Agreement shall be
governed by and construed in accordance with the laws of the State of
Arizona (without giving effect to conflict of laws principles), the
constitutional law of the United States prohibiting impairment of contracts
by a governmental body and, to the extent required, by the general laws of
the United States, and the parties hereby adopt such laws. Particularly,
but without limitation, the parties choose and adopt the Uniform Commercial
Code in effect in Arizona as to personal property interests and security,
the laws of Arizona as they pertain to filing and recording in order to
perfect and give constructive notice of security interests and encumbrances
upon real and personal property, and the laws of Arizona as to the
enforcement of encumbrances and security interests. Execution by the Gila
River Indian Community on the signature page of this Agreement shall be
evidence of its consent to be bound by the terms of this Section.
15.8 NOTICE. Any written notice, offer, demand or communication
required or permitted to be given by any provision of this Partnership
Agreement shall be deemed to have been sufficiently given for all purposes
if delivered personally to the party to whom the game is directed or if
sent using; United States mail, postage prepaid, registered or certified
mail; a nationally removed recognized private express courier service
providing proof of receipt and delivery and "same day" or "next day"
delivery; or facsimile, addressed as follows (or to such other address as a
Partner may specify in a written notice to all other Partners given in
accordance with this Section 15.8):
Partner: GRT
Box 5015, 0000 X. Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 520-796-7534
Partner: Xxxxxx Cellular of Arizona, Inc.
c/x Xxxxxx Communications Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any such notice that is sent by registered or certified mail shall be
deemed to be given three (3) days after the date on which the same is
postmarked. Any such notice that is sent by express courier shall be
deemed to be given one (1) day after the date on which the same is
deposited with the express courier. Any such notice that is sent by
facsimile shall be deemed to be given the same day if transmitted before
5:00 p.m. [M.S.T.], or if transmitted after 5:00 p.m. [M.S.T.], then the
next business day.
15.9 AMENDED CERTIFICATE OF PARTNERSHIP. The Partners hereby agree to
execute an amended certificate of partnership whenever the execution of an
amended certificate of partnership in requested by the System Manager, and
they agree to execute such other instruments and documents, and to perform
such other acts as may be required to comply with the Act for the valid
formation and existence of the Partnership as a partnership thereunder
whenever the execution or performance thereof shall be requested by the
System Manager, all within ten (10) days after the request by the System
Manager. In the event that any of the provisions of any amended
certificate of partnership shall be inconsistent with any of the provisions
of this Partnership Agreement (if they are different documents), the
provisions of this Partnership Agreement shall govern and control as among
the parties.
15.10 FURTHER ASSISTANCE. The Partners will execute and deliver such
further instruments and do such further acts and things as may be required
to carry out the intent and purposes of this Partnership Agreement.
15.11 ATTORNEYS' FEES. In the event any party to this Partnership
Agreement shall be required to initiate legal proceedings or arbitration to
enforce performance of any term or condition of this Partnership Agreement,
including, but not limited to, the payment of monies or the enjoining of
any action prohibited hereunder, the prevailing party shall be entitled to
recover such sums, in addition to any other damages or compensation
received, as will reimburse the prevailing party for reasonable attorneys'
fees, court costs and arbitration fees incurred on account hereof,
notwithstanding the nature of the claim or cause of action asserted by the
prevailing party.
15.12 REMEDIES. The rights, options and remedies of the Partnership
and Partners hereunder shall not be mutually exclusive, and the exercise by
the Partnership or any Partner of any right, option or remedy to which it
is entitled shall not preclude the exercise of any other right or option it
may have. Similarly, the exercise by the Partnership or a Partner of any
right, option or remedy shall not be construed to limit the Partnership's
or Partner's rights, options and remedies in the event of a subsequent or
similar situation.
15.13 ARBITRATION. Any differences, claims or matters in dispute
arising between the Partners out of the interpretation, performance, breach
or enforcement of this Partnership Agreement or connected herewith, and all
other matters relating to the provision of Cellular Service hereunder, that
cannot otherwise be resolved by the Partners shall be submitted by them to
binding arbitration in accordance with the then effective commercial
arbitration rules of the American Arbitration Association by an arbitrator
mutually agreed upon by the Partners, or in the event of failure to agree
upon a single arbitrator, one arbitrator shall be selected by each Partner
and the arbitrators selected by the Partners shall appoint an additional
arbitrator. The decision, award, determination, order or relief, whether
in law or in equity, of the majority of the arbitrators on such matters
shall be final and conclusive and a judgment on such decision may be
entered in any federal or Arizona court of competent jurisdiction. Such
arbitrators shall have no power to modify or amend any of the provisions of
this Partnership Agreement and their jurisdiction is limited accordingly.
Any arbitration under this Section 15.12 will occur in Maricopa County,
Arizona or such other place as the parties may agree. Any Partner
requesting arbitration hereunder shall give notice to the other Partners
ten (10) days prior to requesting arbitration hereunder.
15.14 COUNTERPARTS. This Partnership Agreement may be executed in
counterparts, each of which shall be considered an original.
IN WITNESS WHEREOF, the undersigned have caused this Partnership
Agreement to be duly executed by their duly authorized representatives.
ATTEST: XXXXXX CELLULAR OF ARIZONA, INC.
By: N/A By: XXXXXXX XXXXXX
Xxxxxxx Xxxxxx
President
ATTEST: GILA RIVER TELECOMMUNICATIONS
SUBSIDIARY, INC.
By: N/A By: XXXXXXX XXXXXXXX
Title:
ACCEPTED AND AGREED:
The Gila River Indian Community hereby acknowledges and agrees to be bound
by the terms of Article 15.7 of this Partnership Agreement.
By: XXXX X. XXXXXX
Xxxx X. Xxxxxx
Its: Governor
SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF
THE GILA RIVER CELLULAR GENERAL PARTNERSHIP
APPENDIX A
Cellular Geographic Service Area
(See Attached)
ANNEX B
Partner's Capital Account
Xxxxxx Cellular of Arizona, Inc. [$39,825,000]
Gila River Telecommunications Subsidiary, Inc. [$13,275,000]
