AGREEMENT ESTABLISHING
CASS CELLULAR LIMITED PARTNERSHIP
THIS AGREEMENT is made as of the day of December 5, 1989, by and among
ROCHESTER TEL CELLULAR HOLDING CORPORATION ("RTCHC"), a corporation organized
and exiting under the laws of the State of Delaware and having its mailing
address at Rochester Tel Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx
00000; DEERFIELD FARMERS' TELEPHONE COMPANY ("DEERFIELD"), a corporation
organized and existing under the laws of the State of Michigan and having its
principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000; XXXXX
TELEPHONE COMPANY ("XXXXX"), a corporation organized and existing under the
laws of the State of Michigan and having its principal place of business at
0000 X. Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000; SAND CREEK TELEPHONE COMPANY ("SAND
CREEK"), a corporation organized and existing under the laws of the State of
Michigan and having its principal place of business at 0000 Xxxx Xxxxx
Xxxxxxx, Xxxx Xxxxx, XX 00000-0000; XXXXXXX TELEPHONE COMPANY ("WALDRON"), a
corporation organized and existing under the laws of the State of Michigan and
having its principal place of business at 000 X. Xxxx Xxxxxx, Xxxxxxx, XX
00000-0000. RTCHC, as general partner hereunder, is herein sometimes referred
to as the "General Partner" and RTCHC, as a limited partner hereunder,
DEERFIELD, XXXXX, SAND CREEK, and XXXXXXX are sometimes collectively referred
to as the "Limited Partners." The General Partner and the Limited Partners
are herein sometimes collectively referred to as the "Partners".
W I T N E S E T H:
WHEREAS, RTCHC, DEERFIELD, XXXXX, SAND CREEK and WALDRON desire to participate
in providing Cellular Service in Michigan RSA No. 9; and
WHEREAS, the Federal Communications Company ("FCC") in its cellular orders set
forth in "An Inquiry Into The Use of The Bands 825-845 MHz and 870-890 MHz for
Cellular Communications Systems; and Amendment of Parts 2 and 22 of the
Commission's Rules Relative to Cellular Communications Systems" (CC Docket No.
79-318), 86 F.C.C.2d 469 (1981) ("Final Decision"), modified as set forth in
reconsideration order 89 F.C.C.2d 58 (1982) ("Reconsideration Order"), and as
further modified as set forth in reconsideration order FCC 82-308 (released
July 8, 1982) ("Further Reconsideration Order") and as set forth in its orders
concerning Rural Service Areas ("RSA"), specifically "In the Matter of
Amendment of the Commission's Rules for Rural Cellular Service, Third Report
and Order" (CC Docket No. 85-388), FCC 88-155, released May 18, 1988. ("RSA
Orders") (the Final Decision, the Reconsideration Order, the Further
Reconsideration Order and the RSA Orders being collectively referred to herein
as the "Cellular Radio Decisions") stated that (a) a pressing need exists for
expeditious implementation of cellular service, (b) one of the two frequency
allocations for providing cellular service within designated metropolitan
areas would be assigned to a wireline carrier having an exchange presence in
that metropolitan area, (c) it expected that the wireline carriers would
commence providing cellular service promptly, and (d) it strongly urged
wireline carriers eligible and desiring to provide cellular service in any
such designated metropolitan area to reach mutually acceptable arrangements to
provide such service and it continued to allow partial and full market
settlements among wireline applicants in the RSAs; and
WHEREAS, the Partners desire to further the objectives of the FCC set forth in
the Cellular Radio Decisions by expeditiously providing cellular service to
the public and believe that this agreement, as so encouraged by the FCC, is
consistent with the FCC's cellular communications policy and is lawful and in
the public interest; and
WHEREAS, DEERFIELD, XXXXX, SAND CREEK and XXXXXXX have entered into an
agreement with the General Partner or its predecessor, which is attached as
Attachment C and which terms are incorporated by reference herein and made a
part hereof; and
WHEREAS, the areas with respect to which the Partners hereto presently provide
wireline telephone service are contiguous, a community of interests exists
therein, and such areas can most economically and efficiently be served by a
unified cellular system, and the Partners accordingly desire to form a limited
partnership to arrange for the funding, establishment and provision of
Cellular Service through this Partnership directly or its involvement in
another partnership or joint venture;
NOW, THEREFORE, it is mutually agreed that:
ARTICLE I
DEFINITIONS
The below referenced words shall have the meanings contained herein.
1.1 Act. The Michigan Uniform Limited Partnership Act.
1.2 Affiliate. A person, association, co-partnership, partnership,
corporation or joint-stock company or trust (hereinafter "person") that
directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with another person. Control shall
be defined as (i) ownership of a majority 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.
1.3 Agreed Value. The credit the General Partner receives in its capital
account upon its initial Capital Contributions for contributed equipment and
real property (including buildings) valued as set forth in Section 5.3.
1.4 Capital Contribution. Funds paid or property contributed to the
Partnership for the purchase of the Partnership Interests issued pursuant to
Article V, in the amount and manner as set forth for the General Partner and
the Limited Partners in Attachment B to this Agreement and as supplemented
from time to time pursuant to Sections 5.2 and 5.3 hereof.
1.5 Cellular Service. Any and all service authorized by the FCC under Part
22 of its cellular rules as promulgated under the Cellular Radio Decisions and
provided pursuant to the terms of this Agreement.
1.6 CGSA. The Cellular Geographic Service Area, which initially is generally
contained within the boundaries of the RSA (a copy of which is designated in
the attached Attachment B) and which constitutes the geographical limits of
the initial area in which Cellular Service will be provided hereunder or as
amended in accordance with the terms of this agreement.
1.7 General Partner's Interest. The Partnership Interest of the General
Partner.
1.8 Income and Losses. The income and losses of the Partnership as of the
close of the Partnership's fiscal year or any other fiscal period, determined
in accordance with generally accepted accounting principles, provided however
that Income and Losses will be determined as though equipment and real
property (including buildings) contributed to the Partnership have been
purchased by the Partnership at its Agreed Value.
1.9 Initial Capital Account Amount. The respective amounts initially
credited to the capital account established for the General Partner and the
Limited Partners pursuant to Section 5.1, which amounts shall equal the sum of
the amount of cash and the Agreed Value contributed as provided in Section
5.1.
1.10 Limited Partner's Interest. The Partnership Interest of a Limited
Partner.
1.11 Partnership Interest. The fractional ownership of a Partner in the
Partnership at any particular time as determined by the ratio which that
Partner's aggregate Capital Contributions bears to the aggregate capital
contributions of all Partners. Such interest includes, without limitation,
the interest of the General Partner or any such Limited Partner in the
Partnership's Income and Losses and any and all benefits to which the General
Partner or any such Limited Partner may be entitled as provided in this
Agreement and in the Act, together with the obligations of the General Partner
or any such Limited Partner to comply with all the terms and provisions of
this Agreement and the Act.
1.12 RSA. The Rural Service Area designated No. 480 by the Federal
Communications Commission, otherwise known as Michigan RSA No. 9, which
consists of the counties of Cass, St. Xxxxxx, Hillsdale, Lenawee and Branch
Counties, Michigan.
ARTICLE II
FORMATION OF LIMITED PARTNERSHIP
2.1 Formation. The Partners mutually covenant and agree and hereby do form a
limited partnership as of the effective date of this Agreement pursuant to the
provisions of the Act, in accordance with the further terms and provisions
hereof.
2.2 Name and Office.
(a) The name of the Partnership is Cass Cellular Limited Partnership and its
business shall be carried on in this name with such variations and changes as
the General Partner deems necessary to comply with requirements of the
jurisdictions in which operations are conducted or as the General Partner
deems necessary to change for any reasonable business purpose.
(b) The principal office and place of business of the Partnership shall be
maintained at Rochester Tel Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000 or at such other location as the General Partner may from time to
time select, upon prior written notice to the Limited Partners.
2.3 Business Purpose. The purpose of the Partnership shall be to fund,
establish and provide Cellular Service, and to engage in any and all
activities related or incidental thereto. It is understood and agreed that
Cellular Service provided by the Partnership directly or through its
involvement with another partnership or joint venture shall initially be
limited to the CGSA which is generally located within the boundaries of the
RSA, but may, subject to the provisions of this Agreement and applicable
licensing requirements, be expanded to include other areas.
2.4 Effectiveness of the Agreement. This Agreement shall become effective no
later than the date the FCC conditionally dismisses or authorizes the
conditional dismissal or withdrawal of all applications other than that of the
Partnership or of a partnership or joint venture in which the Partnership is
involved, to provide Cellular Service. The General Partner shall be
responsible for the filing of a Certificate of Limited Partnership with the
appropriate state authorities. The Partners agree to take no action
inconsistent with the provisions of this Agreement and shall reasonably
support the Partnership's interest at all times.
2.5 First Partnership Meeting. The first partnership meeting will be held
after the signing hereof and after reasonable notice as to time and place but
no later than ninety (90) days after the grant of the construction permit for
the RSA covered by this partnership agreement to RTCHC, the Partnership
directly, or any other partnership or joint venture in which the Partnership
may participate.
(a) The Limited Partners shall be presented with a plan developed by the
General Partner to provide Cellular Service which may consist of Partnership
participation in a full or partial market settlement as a limited or general
partner if in the opinion of the General Partner the Partners are best served
thereby. Participation by the Partnership in such full or partial market
settlement shall be contingent upon an affirmative vote of sixty percent (60%)
of the Partnership Interests.
(b) Alternatively, the Limited Partners shall be presented with a three year
capital/network coverage plan developed by the General Partner ("initial
coverage plan"), consisting of the network design, coverage areas, equipment
and the amount and sources of funds necessary to complete same. The General
Partner shall consult with the Limited Partners in the development of such
capital network coverage plan.
(c) In the event that the initial coverage plan submitted by the General
Partner does not meet with the expectations of one or more of the Limited
Partners, the Limited Partner(s) will have the option of presenting an
expanded coverage plan to the General Partner with sixty (60) days of the
initial partnership meeting.
(d) The General Partner shall review the expanded coverage plan and determine
if the initial coverage plan should include the expanded coverage plan.
If the General Partner determines that the expanded coverage plan should not
be included in the initial coverage plan, then the Limited Partner(s) shall
have the one time option to fund its expanded coverage plan. All costs and
expenses of such additional coverage requested by the Limited Partner(s) will
be charged directly to those Limited Partner(s) supporting such a plan, and
the capital costs associated therewith will be charged to those Limited
Partner's capital account. The respective interests of all Partners will be
adjusted to reflect the change contemplated herein. Any increase in a Limited
Partner's Interest as a result of any reduction in the General Partner's
General Partner Interest under this Paragraph 2.5 shall not constitute that
Limited Partner as a General Partner hereunder.
ARTICLE III
REGULATORY MATTERS
3.1 Contingency. The permits or licenses to be issued 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
Agreement.
3.2 Cooperation. The Partners pledge their best efforts and mutual
cooperation to permit the Partnership to implement Cellular Service
expeditiously and to obtain all necessary approvals to provide Cellular
Service.
3.3 Operational Date. The Partners recognize that the date when Cellular
Service can first be offered to the public depends upon the time required to
obtain cellular licenses for providing such Cellular Service and other
federal, state and local approvals, the time required to organize any
necessary proposed affiliated companies and to vest them with appropriate
authority to provide Cellular Service, and the time required to construct and
test the cellular system taking into account the General Partner's
construction schedule and the cellular system manufacturer's schedule.
ARTICLE IV
PARTNERSHIP OPERATIONS
4.1 Management and Operating Services. The General Partner, on behalf of the
Partnership, shall be responsible for providing Cellular Service. Such
provision may, consistent with provisions of Article 2.5(a) hereof, take the
form of Partnership participation in a full or partial market settlement as a
limited or general partner if in the opinion of the General Partner the
Partners are best served thereby. Alternatively, the General Partner may
arrange for obtaining interconnection with the landline network, for operating
and maintaining the Cellular Service system, including but not limited to,
frequency coordination, engineering, construction and the ensuring of system
compatibility and for marketing Cellular Service. In carrying out the
Partnership's responsibility to provide Cellular Service, the Partners hereto
agree that the General Partner shall perform all activities and/or functions
as the General Partner may deem necessary or appropriate to market, establish,
operate, maintain and manage the Cellular Service system or Partnership
participation in another partnership or joint venture. The Limited Partners
agree to aid the General Partner and to take no action inconsistent with the
provisions of this Agreement and shall reasonably support the Partnership's
interest at all times.
The General Partner shall provide management and accounting services to the
Partnership, either directly or through an affiliate, consisting of, but not
limited to, maintaining books of record, 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
General Partner may deem necessary or appropriate.
4.2 Operating and Management Expenses. The General Partner shall be
reimbursed by the Partnership monthly for any reasonable and necessary
expenses incurred by the General Partner on behalf of the Partnership in
providing Cellular Service plus reasonable and necessary administrative and
general overhead expenses, including, but not limited to, marketing,
maintenance, message charges, facilities, engineering, customary legal,
accounting and auditing fees, development and implementation of billing
procedures, expense 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
General Partner on behalf of the Partnership in connection with the provision
of Cellular Services. The General Partner or any affiliate thereof shall not
be entitled to any profit in rendering such services to the Partnership, as
described in this paragraph, it being understood that the General Partner or
any affiliate thereof will be entitled to its proportionate allocated share of
Income and Losses as provided in Article VI. Expenses incurred prior to the
date of the formation of the Partnership, except as stated in Section 5.3
below, shall not be reimbursed.
4.3 Ownership of Properties. In addition to the properties contributed to
the Partnership by the General Partner pursuant to Section 5.3, the
Partnership shall acquire and hold in its name, directly or through license,
all real and personal property, equipment, software and other assets required
to provide Cellular Service.
4.4 Licenses. The General Partner shall, on behalf of the Partnership and
consistent with Section 13.1, (a) cause to be transferred to the Partnership's
name all licenses, permits or other regulatory approvals 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 to the appropriate
authority therefor.
ARTICLE V
CAPITALIZATION OF PARTNERSHIP
5.1 Initial Capital Contributions. Initial Capital Contributions, in the
amount of Five Thousand Dollars ($5,000.00) for each Partner, shall be set
forth in Attachment A hereto, as such Capital Contributions may be modified
pursuant to Sections 2.5 and 5.3 and in accordance with the General Partner's
rights and powers in Sections 7.2 and 15.1. Such initial Capital
Contributions shall result in the following respective Partnership Interests
for the partners:
(A) 10.00% for RTCHC as General Partner
(B) 10.00% for RTCHC as Limited Partner
(C) 20.00% for DEERFIELD as Limited Partner
(D) 20.00% for XXXXX as Limited Partner
(E) 20.00% for SAND CREEK as Limited Partner
(F) 20.00% for XXXXXXX as Limited Partner
Initial Capital Contributions shall be made within sixty (60) days of receipt
of written requests by the General Partner; provided, however, that no initial
Capital Contributions shall be made prior to issuance to the Partnership of
the FCC's permission to construct. The Limited Partners shall notify the
General Partner within ten (10) days after receipt of such requests, each
notice stating whether or not the Limited Partner intends to make the
requested initial Capital Contribution. The Partners understand that the
contribution schedule under this Article V is intended for the purpose of this
Agreement only and that the schedule may not reflect the full level of
expenditures (or Capital Contributions) appropriate for regulatory purposes.
5.2 Additional Capital Contributions. From time to time additional capital
may be required to be invested by the Partnership to fund expansion or
operation of Cellular Service. In the event the General Partner determines
that additional capital is so needed, each Partner shall be entitled to
provide all (but not part of) its share of additional capital in proportion to
its then current Partnership Interest. This additional funding is due and
payable on the date set forth in a written notice requesting an additional
Capital Contribution given by the General Partner to a Partner, which date
shall not be less than sixty (6) days from the date of the notice. The
Limited Partner shall notify the General Partner within ten (10) days after
receipt of such requests, each notice stating whether or not the Limited
Partner intends to make the requested additional Capital Contribution. Should
any Partner decline to make such additional Capital Contribution, or fail to
pay its contribution when due, the other Partners may contribute pro rata,
according to their then current respective Partnership Interests, an aggregate
amount equal to the additional Capital Contribution declined by the
non-participating Partner(s), thereby increasing their interest in such
proportion to the other Partners' Partnership Interests (it being understood
that the General Partner may make such additional Capital Contribution as a
Limited Partner, if it desires). In such event, the Partnership Interest of a
non-participating Partner shall be diluted accordingly and such Partner shall
be limited in its right to provide future additional capital in proportion to
its Partnership Interest as so revised.
5.3 Capital Contributions in Cash. Funding of both initial and additional
Capital Contributions to the Partnership shall be in cash and not real or
personal property, provided, however, that with respect to its initial Capital
Contribution the General Partner for its Partnership Interest as General
Partner and as a Limited Partner may contribute, in lieu of or in addition to
cash, real property (including buildings), equipment acquired and other direct
expenses incurred in anticipation of and for use by the Partnership in the
provision of Cellular Service. The approximate or actual cost associated with
and directly related to the acquisition of such real property (including
buildings), equipment and other direct expenses incurred is set forth in
Attachment A. The value of such contributed real property (including
buildings), equipment acquired and other direct expenses incurred is to be
determined on the basis of acquisition cost plus interest calculated at the
General Partner's average cost of debt, compounded annually from the date of
acquisition to the date by which all other initial Capital Contributions have
been received. The Partners recognize the General Partner may have acquired
and may continue to acquire real property (including buildings), and equipment
and incur other direct expenses in anticipation of and for use by the
Partnership in the provision of Cellular Service. Additional real property
(including buildings) and equipment may be purchased between execution of this
Agreement and the date when the initial Capital Contribution is made;
therefore, Attachment A may not list all such real property (including
buildings), equipment and direct expenses the General Partner would contribute
to the Partnership. In the event such further property, equipment, or direct
expenses is contributed (a) it shall be valued as set forth in this Section
5.3, and (b) its value shall be deducted from the cash portion of the General
Partner's initial Capital Contribution as set forth in Attachment A.
5.4 Additional Limited Partners. In providing Cellular Service within the
RSA, the General Partner may invite one or more carriers to become additional
Limited Partners hereunder subject to approval by at least sixty percent (60%)
of the Limited Partners. Similarly, in providing Cellular Service outside the
RSA covered by this Agreement the General Partner shall have the right to
invite one or more carriers not affiliated with the General Partner to become
additional limited partners hereunder upon the approval of sixty percent (60%)
of the Limited Partners. The Limited Partners hereby consent to amend this
Agreement to reflect any such inclusion. In the event of any such addition
(a) the new Limited Partner shall participate in the Partnership on the same
terms and conditions described herein (or as hereafter amended), and (b) the
Partnership Interests of the other Partners shall be adjusted according to
their then current respective Partnership Interests.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTION
6.1 Capital Accounts. A capital account shall be established for each
Partner in such Partner's Initial Capital Account Amount. Such capital
accounts shall be increased to reflect allocable shares of Income, as defined
in Section 1.8, and additional Capital Contributions pursuant to Section 2.5,
5.2 and 5.4, and decreased to reflect allocable shares of Losses, as defined
in Section 1.8, and cash distributions made by the Partnership. For purposes
of this Section 6.1, Income and Losses shall be apportioned ratably to each
day of the fiscal period and each day's share shall be allocated pursuant to
the Partnership Interests on such date. In the case of distributions in kind
pursuant to Section 14.3, capital accounts shall be adjusted in accordance
with Section 14.3.
6.2 Tax Allocations Among Partners. All items of income, gain, loss,
deduction and credit (including items of tax preference) of the Partnership
for Federal income tax purposes 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 Limited Partners and to the General Partner in proportion to
their respective Partnership Interests on such days, provided however,
depreciation and gain or loss recognized for Federal income tax purposes with
respect to property contributed to the Partnership shall be allocated to the
Limited Partners (other than the Limited Partner who is also the General
Partner) as though such property had been purchased by the Partnership at its
Agreed Value. The remainder of any depreciation and gain or loss recognized
for Federal income tax purposes with respect to such contributed property
shall be allocated to the General Partner in respect of its General Partner's
Interest and Limited Partner's Interest proportionately.
6.3 Distributions. Funds of the Partnership from all sources, less
appropriate reserves as are determined by the General Partner to be reasonably
necessary 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.
Each distribution pursuant to this Section 6.3 shall be made to the Partners
in proportion to the daily weighted average of their respective Partnership
Interests as in effect from time to time during the relevant quarterly time
period.
6.4 Tax Compliance. It is the intention of the Partners that each Partner's
distributive share of tax items shall be determined and allocated in
accordance with the allocation provisions of this Agreement. If the General
Partner reasonably determines that the allocation provisions of this Agreement
are unlikely to be respected for federal income tax purposes, due to the
application of Internal Revenue Code sections 704(b) and (c), the regulations
promulgated thereunder, or otherwise, the General Partner shall recommend
appropriate amendments to this Agreement in order to effectuate the allocation
provisions contemplated therein.
ARTICLE VII
RIGHTS AND POWERS OF PARTNERSHIP, GENERAL PARTNER
AND LIMITED PARTNERS
7.1 Partnership Powers. In furtherance of the business purpose specified in
Section 2.3, the Partnership, and the General Partner on behalf of the
Partnership, shall be empowered to do or cause to be done any and all acts
reasonably deemed by the General Partner to be necessary or appropriate in
furtherance of the purposes of the Partnership or forbear from doing any act
if the General Partner reasonably deems such forbearance necessary or
appropriate in furtherance of the purposes 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 the
General 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 General Partner to further the purposes of the Partnership,
provided, however, that any transaction between the Partnership and Partners
or their Affiliates shall be documented and shall become parts of the records
of the Partnership;
(b) To borrow from banks and other lenders on such terms and conditions as
shall be approved by the General Partner 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 General Partner;
(c) To invest such funds as are temporarily not required for Partnership
purposes in short-term debt obligations selected by the General Partner,
including government securities, certificates of deposit of commercial banks
(domestic or foreign), commercial paper, bankers' acceptances and other money
market instruments; and
(d) To carry on any other activities necessary to, in connection with or
incidental to any of the foregoing.
7.2 Powers of the General Partner. In addition to those powers vested
pursuant to Section 7.1, the General Partner hereby is vested with the power
to:
(a) Manage, supervise and conduct the affairs of the Partnership;
(b) Make all elections, investigations, evaluations and decisions, binding
the Partnership thereby, that may be necessary or appropriate in connection
with the business purposes of the Partnership;
(c) Incur obligations or make payment on behalf of the Partnership in its own
name or in the name of the Partnership;
(d) Execute all instruments of any kind or character which the General
Partner in its discretion shall deem necessary or appropriate in connection
with the business purposes of the Partnership;
(e) From time to time increase the coverage area of Cellular Service within
the RSA or to apply for regulatory approval to expand the geographic area of
the RSA; and
(f) Subject to the provisions of Sections 5.2 and 5.4 herein, apply to the
FCC on behalf of the Partnership for permits and licenses to provide Cellular
Service in an adjoining area or where a community of interest exists and would
result in Cellular Service being provided by the Partnership in a unified
area, negotiate on behalf of the Partnership to reach mutually acceptable
arrangements with other carriers desiring to provide service in such areas and
decide to conduct all matters pertaining to such applications and to the
Cellular Service that may result from such applications.
7.3 Rights of Limited Partners. Each Limited Partner shall have the right
to:
(a) Inspect and copy, upon three (3) business days notice to the General
Partner, any of the books of record, accounting records, financial statements
or other records or reports of the Partnership or of the General Partner
relating to its operation of the Partnership;
(b) Have on demand true and full information of all things affecting the
Partnership, and a formal account of Partnership affairs whenever
circumstances render it just and reasonable;
(c) Audit, at its own expense once every calendar year, the Partnership books
of record, accounting records, and financial statements of the Partnership;
(d) Have dissolution and winding up by decree of court when permitted under
the Act; and
(e) Meet with representatives of the General Partner as required by Section
2.5 and thereafter on an annual basis at a time and place designated by the
General Partner or as designated by an affirmative vote of sixty percent (60%)
of the Limited Partnership interests to discuss with the General Partner the
operation of the Partnership (such meeting may be waived upon a unanimous vote
of the Limited Partners).
(f) Consistent with the provisions of Sections 2.5(a), 5.2, 5.4, 7.1, and 7.2
herein, the Limited Partners shall have the right to approve, upon an
affirmative vote of sixty percent (60%) of the Partnership Interests,
agreements to enter into full or limited market settlement agreements,
admission of additional Limited Partners and the sale or disposition of all or
substantially all of the assets of the Partnership assets other than in the
ordinary course of its business.
(g) The Limited Partners shall have the right, upon the affirmative vote of
all of the Limited Partners, less one, to remove the General Partner on
account of willful misconduct or gross negligence.
7.4 Ownership or Conduct of Other Business. Subject to the provisions of
Sections 8.8 and 10.4, 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 Agreement
in such independent business ventures or the income or profits therefrom.
7.5 Incorporation of Prefilling Settlement Agreement. In addition to the
rights bestowed and duties imposed in this Agreement, the parties shall
continue to have those rights and duties bestowed and imposed by a Prefilling
Settlement Agreement dated October 15, 1987, a copy of which is attached as
Attachment C and is incorporated herein by reference. The Partners expressly
acknowledge that RTCHC shall be deemed to be substituted for C, C & S Telco,
Inc. in said Prefilling Settlement Agreement pursuant to paragraph G therein
and RTCHC shall be entitled to all associated rights bestowed and shall assume
all associated duties imposed therein, the same as if RTCHC had been an
original signatory in place and stead of C, C & S Telco, Inc.
ARTICLE VIII
OBLIGATIONS OF GENERAL PARTNER
8.1 Duty of the General Partner. The General Partner will at all times act
in the best interests of the Partnership.
8.2 Conduct of Business. The General Partner shall manage and provide
administrative services to the Partnership, and shall execute all contracts,
agreements and instruments as the General Partner reasonably may deem
necessary or desirable to carry on the purpose of the Partnership.
8.3 Filings. The General Partner 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 General Partner shall advise the Limited Partners of any
elections under applicable tax laws that may affect Partnership Income or
Losses.
8.4 Maintain Accounts. Pursuant to the provisions of this Agreement, the
General Partner shall maintain or cause to be maintained capital accounts on
the books and records of the Partnership in respect of each Partnership
Interest.
8.5 Financial Reports. The General Partner shall furnish annual audited
Partnership financial statements examined by a recognized firm of independent
certified public accountants and quarterly unaudited Partnership financial
statement to the Limited Partners. Quarterly unaudited financial statements
will be furnished to the Limited Partners within thirty (30) business days
after the close of each quarter and be certified by an officer of the General
Partner. Year-end audited financial statements will be made available to the
Limited Partners by April 30 following the close of the fiscal year.
8.6 Performance of Partnership Obligations. The General Partner 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.
8.7 Resale of Cellular Service. Nothing herein shall preclude the General
Partner or an Affiliate thereof from reselling Cellular Service or selling or
leasing terminal equipment used in connection with Cellular Service
independently from the Partnership whether within or outside the RSA. Neither
the General Partner nor any Affiliate thereof shall be funded or staffed by
the Partnership for such provision of Cellular Service or resale activity and
any transaction between the General Partner or any such Affiliate and the
Partnership shall be on an arms-length basis and on prices, terms and
conditions equivalent to the prices, terms and conditions of any agreements
between the Partnership and other resellers of Cellular Service.
8.8 Cellular Service in Other Areas. Nothing herein shall preclude the
General Partner or an Affiliate thereof from providing Cellular Service
independently from the Partnership in areas other than the RSA.
ARTICLE IX
BANKING, ACCOUNTING, BOOKS AND RECORDS
9.1 Banking. All funds of the Partnership shall be deposited in a bank
account or accounts as shall be established and designated by the General
Partner. Withdrawals from any such bank accounts shall be made upon such
signature or signatures as the General Partner may designate.
9.2 Maintenance of Books and Accounting Method. The General Partner shall
keep or cause to be kept full and accurate accounts of the transactions of the
Partnerships in proper books of account in accordance with generally accepted
accounting principles, as varied by the appropriate regulatory authorities.
Such books and records shall be maintained or available on notice at the
principal place of business of the General Partner and be made available for
reasonable inspection, examination and copying by the Limited Partners or
their respective duly authorized agents or representatives upon three (3)
business days' notice to the General Partner.
9.3 Fiscal Year; Partnership Tax Returns. The fiscal year of the Partnership
shall begin on the first day of January in each year and end on the 31st day
of December in each year. The General Partner 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 a statement of each Limited Partner's appropriate
share of income, gains, losses, deductions and credits for such taxable year.
ARTICLE X
LIMITED PARTNERS
10.1 Limited Partners Not to Take Part in Business. The Limited Partners,
acting in their capacity as a Limited Partner, shall not take part in, or
interfere in any manner with, the conduct or control of the Partnership
business, nor shall the Limited Partners have any right or authority to act
for or bind the Partnership.
10.2 Limitation on Liability of Limited Partners. The liability of each
Limited Partner to provide funds or any other property to the Partnership
shall be limited to the amount of Capital Contributions which the Limited
Partner makes or otherwise agrees to make pursuant to the provisions of
Article V. The obligation of any Limited Partner to return any distributions
previously made shall be as set forth in the Act. Subject to the provisions
of the Act, the Limited Partner shall have no further liability to contribute
money to the Partnership for, or in respect of, the liabilities or obligations
of the Partnership and shall not be personally liable for any obligations
under the Partnership.
10.3 Resale of Cellular Service. Nothing herein shall preclude any Limited
Partner or an Affiliate thereof from reselling Cellular Service or selling or
leasing terminal equipment used in connection with Cellular Service
independently from the Partnership whether within or outside the RSA. Neither
the Limited Partners nor any Affiliates thereof shall be funded or staffed by
the Partnership for such provision of Cellular Service or resale activities
and any transactions between any such Limited Partner or Affiliate and the
Partnership shall be on an arms-length basis and on prices, terms and
conditions equivalent to the prices, terms and conditions of any agreements
between the Partnership and other resellers of Cellular Service.
10.4 Cellular Service in Other Areas. Nothing herein shall preclude any
Limited Partner or an Affiliate thereof from providing Cellular Service in
areas other than the RSA. In addition, after a five-year period commencing
with the date that the Partnership obtains a construction permit from the FCC,
nothing herein shall preclude any Limited Partner or Affiliate thereof from
providing Cellular Service in areas within the RSA provided that the
Partnership has refused to approve a change in the CGSA to provide service in
the RSA which the Partner desires to serve. No partner, however, may seek
such approval if that Partner has voted against authorizing the Partnership to
provide Cellular Service in the area under consideration. Any such Limited
Partner or Affiliate shall however withdraw from the Partnership pursuant to
Article XII prior to seeking any regulatory approval to provide Cellular
Service within the RSA.
ARTICLE XI
TRANSFER OF LIMITED PARTNER'S INTEREST
11.1 Limitation on Transfer; Right of First Refusal. Any Limited Partner may
transfer its Partnership Interest to an Affiliate thereof at any time without
any consent or restriction from the General Partner or any other Limited
Partner. Otherwise, there shall be no sale, exchange or other transfer or
assignment of the whole or any portion of any Limited Partner's Interest
without the prior written consent of the General Partner, which consent shall
not be unreasonably withheld. In addition, before any Limited Partner sells,
exchanges or transfers any part of its Partnership Interest to a non-Affiliate
of such Limited Partner, it shall offer, by giving written notice to the
General Partner, that interest to all of the other Partners for the price and
on the terms at which such non-Affiliate has offered in writing to acquire
such interest. The General Partner, in turn shall forward such notice to all
other Limited Partners. Each Partner shall initially be entitled to purchase
that fraction of the offering Partner's Interest equal to its Partnership
Interest divided by the Partnership Interests of all non-selling Partners. If
any Partner declines to exercise its right of purchase hereunder, the
remaining Partner(s) electing to exercise that right shall be entitled to
purchase that portion of the interest intended to be sold that has been
declined by the other Partner(s) in amounts determined pursuant to
reapplication of the principles set forth in this Section 11.1, excluding from
consideration the Partnership Interests of the selling and declining Partners.
Each non-selling Partner shall notify the General Partner and the selling
Limited Partner, in writing, of its intention to exercise or not to exercise
its purchase rights hereunder within thirty (30) days following receipt of the
offer of sale. The General Partner shall promptly notify each Limited Partner
of the elections by the other Limited Partners. Subsequent written
notifications, if necessary, shall be required within ten (10) days after
receipt by the Limited Partners which have not previously declined to exercise
their rights of purchase, of their intentions with respect to that portion of
the selling Limited Partner's Partnership Interest still subject to a right of
purchase.
11.2 Substitute Limited Partner. No assignee, purchaser or transferee of the
whole or any portion of any Limited Partner's Interest shall have the right to
become a substitute Limited Partner, unless:
(a) The transferring Limited Partner has designated such intention in a
written instrument of assignment, sale or transfer, a copy of which has been
delivered to the General Partner;
(b) The transferring Limited Partner has obtained the written consent of the
General Partner, which consent shall not be unreasonably withheld;
(c) The person acquiring the Limited Partner's Interest has adopted and
agreed in writing to be bound by all of the provisions hereof, as the same may
have been amended;
(d) All documents reasonably required by the General Partner and the Act to
effect the substitution of the person acquiring the Limited Partner's Interest
as a Limited Partner shall have been executed and filed at no cost to the
Partnership; and
(e) Any necessary prior consents have been obtained from any regulatory
authorities.
Provided, however, that subsections (a) and (b) above shall not apply in the
case of an assignment or sale to an Affiliate of the assignor or seller.
11.3 Indemnification. Each Limited Partner transferring a Limited Partner's
Interest hereby indemnifies the Partnership and the other Partners against any
and all loss, damage or expense (including, without limitation, tax
liabilities or loss of tax benefits) arising, directly or indirectly, as a
result of any transfer or purported transfer in violation of any provision
contained in this Article XI.
11.4 Distribution and Allocation Subsequent to Transfer.
(a) The Income and Losses of the Partnership attributable to any Partnership
Interest acquired by reason of the assignment of the Partnership Interest or
substitution of a Partner with respect to that Interest and any distributions
made with respect thereto shall be allocated between the assignor and assignee
based upon the length of time during any fiscal year of the Partnership, as
measured by the effective date of the assignment or substitution, that the
Partnership Interest so assigned or with respect to which there is a
substitution was owned by each of them.
(b) The effective date of an assignment, sale or transfer of the Limited
Partner's Interest or any portion thereof shall be the date on which written
consent has been obtained from the General Partner as provided in Section
11.2(b).
ARTICLE XII
WITHDRAWAL BY LIMITED PARTNER
12.1 Withdrawal.
(a) Effective upon thirty (30) days written notice to each Partner, any
Limited Partner may withdraw from the Partnership subject to any required
regulatory approval;
(b) Any Limited Partner shall promptly withdraw from the Partnership upon the
occurrence of default in performance by such Limited Partner of any obligation
under this Agreement if such default shall not be corrected within sixty (60)
days after the same shall be called to the attention of such Limited Partner
by the General Partner by written notice specifying the thing or matter in
default and the General Partner chooses to insist upon such withdrawal;
provided, however, that such sixty (60) day period shall cease to run during
the pendency of any arbitration proceeding institute pursuant to Section 19.9
to determine the existence of such a default. The General Partner shall
notify each nondefaulting Limited Partner of such default in performance;
(c) Any Limited Partner shall promptly withdraw upon the bankruptcy or
assignment for the benefit of creditors of such Limited Partner;
(d) Any Limited Partner shall promptly withdraw upon failure by such Limited
Partner to make its initial Capital Contribution pursuant to Section 5.1;
(e) Upon withdrawal pursuant to (a), (b) or (c) above, the Limited Partner so
withdrawing shall, subject to the provisions of Section 12.2, receive
distribution of its capital account in cash; and
(f) Upon withdrawal pursuant to (a), (b), (c) or (d) above, the proportionate
Partnership Interests of the remaining Limited Partners shall be increased pro
rata to reflect such withdrawal.
12.2 Distribution on Withdrawal. If distribution is made pursuant to Section
12.1, amounts payable to the Limited Partner so withdrawing shall be paid to
such Limited Partner by the Partnership and may at the General Partner's
option and consistent with regulatory and other legal constraints, be paid
over a period not to exceed three (3) years in order to provide the
Partnership sufficient time to raise capital to replace that capital being
withdrawn and to ensure the continued provision of Cellular Service. In such
event, the Limited Partner so withdrawing shall be entitled to interest on the
amounts payable to such Limited Partner. Such interest shall be calculated at
a rate equal to the average of the then current prime interest rate which has
been charged on new borrowings by Citibank N.A., the Chase Manhattan Bank
N.A., and Xxxxxx Guaranty Trust Company of New York as applied to the
outstanding balance due.
ARTICLE XIII
TRANSFER OF GENERAL PARTNER'S INTEREST
13.1 Assignment. The General Partner may transfer or assign its General
Partner's Interest only after written notice to all the other Partners and the
unanimous vote of all the other Partners to permit such transfer and to
continue the business of the Partnership with the assignee of the General
Partner as General Partner. Any such transfer or assignment shall be subject
to required regulatory approval.
13.2 Withdrawal. Withdrawal of the General Partner will cause the
dissolution and termination of the Partnership in accordance with the terms of
Article XIV except in the case of assignments as provided in Sections 11.1 and
13.1. The General Partner may not withdraw until it has given the other
Partners ninety (90) days' notice. If during that time the other Partners
unanimously designate a substitute General Partner who will agree both to
purchase the General Partner's Interest and its Limited Partner's Interest, on
terms acceptable to the General Partner, and continue the business of the
Partnership, subject to required regulatory approval, the General Partner
agrees to transfer or assign its Interests to the designated General Partner.
The General Partner shall not unreasonably withhold its acceptance of terms
for purchase of its Partnership Interest proposed by the substitute General
Partner.
ARTICLE XIV
DISSOLUTION AND TERMINATION OF LIMITED PARTNERSHIP
14.1 Dissolution. The Partnership shall be dissolved and terminated if:
(a) The FCC approves this Agreement subject to terms and conditions that are
unacceptable to both the General Partner and one Limited Partner which is not
also the General Partner and all available administrative and judicial appeals
of such FCC approval have been finally exhausted;
(b) The 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;
(c) The FCC finally denies to the Partnership licenses empowering it to
construct and provide Cellular Service;
(d) The Partnership applies for and is finally denied state or other
regulatory approvals or is granted such approval subject to terms and
conditions that are unacceptable to both the General Partner and one Limited
Partner that is not also the General Partner on the grounds that such denial
or conditional grant has a materially adverse impact on the Partnership's
ability to conduct its business; or
(e) The Partners unanimously 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.
Regarding (c) and (d) above, any such denial of regulatory approval shall not
be considered finally denied until all available administrative and judicial
appeals of such denial have been finally exhausted.
14.2 Distribution Upon Dissolution. Upon dissolution of the Partnership, the
General Partner 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) To creditors, including Partners who are creditors, to the extent
otherwise permitted by law, in satisfaction of liabilities of the Partnership
other than liabilities for distribution to Partners under Articles XII and
XIII;
(b) To the establishment of any reserve which the General Partner may deem
reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Partnership. Such reserve may be paid over by the General
Partner 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
General Partner, for distribution of the balance, in the manner hereinafter
provided in this Section 14.2;
(c) To Partners and former Partners in satisfaction of liabilities for
distributions under Articles XII and XIII; and
(d) To Partners first for the return of their capital accounts as set forth
in Section 6.1 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 Partner's respective Partnership Interests on
the date of dissolution.
14.3 Distributions in Cash or in Kind. Upon dissolution, the General Partner
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 14.2 or (b) hire independent recognized appraisers to appraise the
value of the 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 has 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 14.2. The General Partner may
determine in its sole discretion 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;
provided, however, that any distributions of unrealized receivables or
substantially appreciated inventory within the meaning of Section 751 of the
Internal Revenue Code shall be made proportionately to the Partners'
Partnership Interests at the time of dissolution unless the Partners otherwise
unanimously agree. In the case of any distribution in kind of Partnership
assets under this Section to a Partner, the value of the asset determined by
the appraisal as provided above shall be applied against the Partner's capital
account.
14.4 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 General Partner to minimize any
losses which otherwise might be incurred.
14.5 Termination. Upon compliance with the foregoing distribution plan the
Partnership shall cease to be such, and the General Partner shall execute,
acknowledge and cause to be filed a certificate of dissolution of the
Partnership pursuant to the power of attorney contained in Article XV.
14.6 General Partner Not Liable for Return of Distribution. The General
Partner shall not be liable for any distribution required pursuant to Sections
14.2(b), (c) and (d) and such distribution shall be made solely from available
Partnership assets, if any.
14.7 General Partner's Right to Continue Providing Cellular Service. Each
Limited Partner hereby agrees that, in the event that such Limited Partner
withdraws pursuant to Article XII or the Partnership is dissolved pursuant to
Articles XIII or XIV, the General Partner shall have the right to provide
Cellular Service either singly or with others, subject to any necessary
regulatory approval. In such event, the General Partner shall invite all
other parties to this Agreement, including their successors and assigns, to
participate in a new partnership to carry out such business. The terms of any
such offer made hereunder shall be substantially on the same terms and
conditions as those contained in this Agreement. In the event that any party
declines to contribute capital to the new partnership, as may be required,
that party's interest shall be diluted accordingly. Until such partnership is
formed, if at all, the General Partner shall have the right to continue to
provide Cellular Service, subject to any necessary regulatory approval.
ARTICLE XV
POWER OF ATTORNEY
15.1 Grant of Power of Attorney. Each Limited Partner hereby irrevocably
constitutes and appoints the General Partner as its true and lawful attorney
and agent, in its name, place and stead to make, execute, acknowledge and, if
necessary, file and record:
(a) Any certificates or other instruments or amendments thereof which the
Partnership may be required to file under the laws of each state governing
this Agreement or pursuant to the requirements of any governmental authority
having jurisdiction over the Partnership or which the General Partner shall
deem it advisable to file, including, without limitation, this Agreement, any
amended Agreement and a certificate of dissolution as provided in Section
14.5;
(b) Any certificates or other instruments (including counterparts of this
Agreement with such changes as may be required by the law of other
jurisdictions) and all amendments thereto which the General Partner deems
appropriate or necessary to qualify, or continue the qualification of, the
Partnership as a limited partnership (or a partnership in which the Limited
Partner has limited liability) and to preserve the limited liability status of
the Partnership in the jurisdictions in which the Partnership may own
properties, conduct business and acquire investment interests;
(c) Any certificates or other instruments which may be required to admit
additional or substitute Limited Partners pursuant to the terms of this
Agreement, to reflect the withdrawal of any Limited Partner, to reflect
changes in capital contributions or changes in respective Partnership
Interests of the Partners or to effectuate the dissolution and termination of
the Partnership, pursuant to Article XIV; and
(d) Any amendments to any certificate necessary to reflect any other changes
made pursuant to the exercise of the powers of attorney contained in this
Article XV.
15.2 Irrevocable and Coupled with an Interest: Copies to be Transmitted. The
powers of attorney granted under Section 15.1 shall be deemed irrevocable and
to be coupled with an interest. A copy of each document executed by the
General Partner pursuant to the powers of attorney granted in Section 15.1
shall be transmitted to each Limited Partner promptly after the date of the
execution of any document.
15.3 Survival of Power of Attorney. The powers of attorney granted in
Section 15.1 shall survive delivery of an assignment by a Limited Partner of
the whole or any portion of its Limited Partner's Interest, except that if
such assignment was of all of its Limited Partner's Interest and the
substitution of the assignee as a Limited Partner has been consented to by the
General Partner, the foregoing powers of attorney shall survive the delivery
of such assignment for the purpose of enabling the General Partner to execute,
acknowledge and file any and all certificates and other instruments necessary
to effectuate the substitution of the assignee as a Limited Partner. Such
powers of attorney shall survive the dissolution or termination of a Limited
Partner and shall extend to such Limited Partner's successors and assigns.
15.4 Limitation of Power of Attorney. Except as set forth in this Article
XV, the General Partner may not modify the terms of this power of attorney or
this Agreement without the written consent of all the Limited Partners. The
powers of attorney granted under Section 15.1 of this Article cannot be
utilized by the General Partner to increase or extend any financial obligation
or liability of any Limited Partner without the written consent of such
Limited Partner.
ARTICLE XVI
EXCULPATION AND INDEMNIFICATION
16.1 Exculpation of the General Partner. The General Partner will not be
liable for any loss to the Partnership or the Limited Partners by reason of
any act or failure to act unless the General Partner was guilty of willful
misconduct or gross negligence.
16.2 Indemnification of the General Partner. The Partnership shall indemnify
the General Partner against any loss or damage incurred by the General Partner
(including legal expenses) by reason of any acts performed or not performed by
the General Partner for and on behalf of the Partnership, unless the General
Partner was guilty of willful misconduct or gross negligence. The General
Partner shall indemnify the Partnership against any damages incurred by reason
of the General Partner's willful misconduct or gross negligence.
ARTICLE XVII
AMENDMENTS
17.1 Amendments. Except for amendments made in accordance with this
Agreement in connection with assignments of Partnership Interests by Partners
to their Affiliates and to reflect additional or substitute Partners or
changes in Capital Contributions, this Agreement may not be amended except
upon written consent of the General Partner and all the Limited Partners.
17.2 Execution of Amended Agreements. Each Limited Partner agrees to execute
or cause to be executed promptly any amendments to this Agreement and
certificates of the Partnership reasonably requested by the General Partner
and authorized under Section 17.1
ARTICLE XVIII
TECHNOLOGY AND INFORMATION
18.1 Technology License. The General Partner shall, on behalf of the
Partnership, obtain the right to use hardware and software technology
associated with Cellular Service. The General Partner 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 Agreement.
18.2 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 in
written, graphic or other tangible form, shall be returned to the disclosing
Partner upon the disclosing Partner's request except that one 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 has been or is 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 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 XIX
MISCELLANEOUS PROVISIONS
19.1 Warranties. Each Partner warrants as follows:
(a) It has the legal capacity to enter into and execute this Agreement, and
(b) This Agreement does not breach any of its existing agreements with other
parties.
19.2 Table of Contents and Headings. The table of contents and the headings
of the Sections of this Agreement are inserted for convenience only and shall
not be deemed to constitute a part hereof.
19.3 Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the Partners and any additional or substitute Limited
Partner or General Partner and to 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 Agreement.
19.4 Severability. Every provision of this 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 Agreement; provided, however, that the general intent
of this Agreement shall not be voided thereby.
19.5 Non-Waiver. No provision of this 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.
19.6 Applicable Law. This Agreement and the rights and obligations of the
Partners shall be interpreted in accordance with the laws of the State of
Michigan. The Partnership will be bound by and fully comply with any
applicable provisions of the equal employment opportunity laws, including any
Executive Orders issued thereunder.
19.7 Entire Agreement. This Agreement constitutes the entire Limited
Partnership Agreement between the Partners and (a) shall supersede all
previous negotiations, commitments, representations and writings, and (b) to
the extent inconsistent with any provision contained in the documents attached
hereto as Attachment A, shall supersede such provision, and without limiting
the foregoing, there shall be no requirement for the Partners to make
additional Capital Contributions by virtue of anything contained in Attachment
A.
19.8 Notices. All notices given by any Partner to any other Partner under
this Agreement shall be in writing, registered or certified mail, postage
prepaid, addressed as follows (or to such other address as a Partner may
specify in such a notice to all other Partners):
General Partner and Limited Partner:
ROCHESTER TEL CELLULAR HOLDING CORPORATION
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Vice President
Limited Partner:
DEERFIELD FARMERS' TELEPHONE COMPANY
000 Xxxxxx Xxxxxx; X.X. Xxx 00
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx XxXxxxx
Limited Partner:
XXXXX TELEPHONE COMPANY
0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Limited Partner:
SAND CREEK TELEPHONE COMPANY
0000 Xxxx Xxxxx Xxxxxxx; X.X. Xxx 00
Xxxx Xxxxx, XX 00000-0000
Attention: Xx. Xxxx Xxxxxx
Limited Partner:
XXXXXXX TELEPHONE COMPANY
000 X. Xxxx Xxxxxx; X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxxx Xxx
Such notices shall be effective on the third business day subsequent to the
date of mailing.
19.9 Arbitration.
(a) If any disagreement as to the existence of a default by a Partner
hereunder, which cannot be resolved by negotiation, shall arise between any
Limited Partner or group of Limited Partners and the General Partner, the
General Partner or such Limited Partner or group of Limited Partners may
initiate proceedings to submit such disagreement to arbitration by serving
written notice of arbitration on the other party, which notices shall include
appointment of an arbitrator, naming such arbitrator. Within thirty (30) days
after the date that such notice is deemed to be given, pursuant to the
provisions of Section 19.8, the Partner (or group thereof, if applicable) to
whom such notice is given shall similarly appoint an arbitrator by filing like
written notice to the initiating Partner or Partners; or, failing to make such
appointment, the arbitrator initially appointed shall be empowered to act as
the sole arbitrator and to render a binding decision. In such event, such
sole arbitrator shall set a date for hearing the dispute not later than ninety
(90) days after the date of his or her appointment, and shall render a
decision in writing to the disputing Partners not later than sixty (60) days
after the last hearing date.
(b) In the event that the disputing Partners duly appoint arbitrators
pursuant to subparagraph (a) above, the two arbitrators so appointed shall,
with thirty (30) days after the appointment of the latter of them to be
appointed, select a third arbitrator who shall act as Chairman of the
arbitration panel. Such arbitration panel shall set a time for the hearing of
the dispute which shall not be later than sixty (60) days after the date of
appointment of the third arbitrator, and the final decision of the arbitrators
shall be rendered in writing to the disputing Partners not later than sixty
(60) days after the last hearing date.
(c) In the event that the arbitrators appointed by the disputing Partners are
not able within thirty (30) days after the appointment of the later of them to
be appointed to agree on the selection of a third arbitrator, either one of
them may request the American Arbitration Association to select a third
arbitrator, and the selection of such third arbitrator of such Association
shall be binding.
(d) The place of any arbitration shall be Jackson, Michigan or at such other
place as agreed to by the disputing Partners.
(e) The arbitration shall be conducted in accordance with the rules of the
American Arbitration Association then prevailing, and the decision of the
arbitrator or arbitrators, as the case may be, shall be final and binding on
the disputing Partners, and shall be enforceable in the courts of the United
States.
19.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed by their duly authorized representatives.
GENERAL PARTNER AND LIMITED PARTNER
ROCHESTER TEL CELLULAR HOLDING CORPORATION
By:____________________________ Date:______________________
Attest:________________________ Title: President
Date:__________________________
LIMITED PARTNER
DEERFIELD FARMERS' TELEPHONE COMPANY
By:____________________________ Date:______________________
Attest:________________________ Title:_____________________
Date:__________________________
LIMITED PARTNER
XXXXX TELEPHONE COMPANY
By:____________________________ Date:______________________
Attest:________________________ Title:_____________________
Date:__________________________
LIMITED PARTNER
SAND CREEK TELEPHONE COMPANY
By:____________________________ Date:______________________
Attest:________________________ Title:_____________________
Date:__________________________
LIMITED PARTNER
WALDRON TELEPHONE COMPANY
By:____________________________ Date:______________________
Attest:________________________ Title:_____________________
Date:__________________________
c:\...\sandcree\exhibits\final\exhibit.10i
ATTACHMENT A
APPROXIMATE INITIAL CAPITAL CONTRIBUTION
A. General Partner: RTCHC
Cash: $2,500
Real Property and Equipment: $0
B. Limited Partner: RTCHC
Cash: $2,500
Real Property and Equipment: $0
C. Limited Partner: Deerfield Farmers' Telephone Company
Cash: $5,000
D. Limited Partner: Xxxxx Telephone Company
Cash: $5,000
E. Limited Partner: Sand Creek Telephone Company
Cash: $5,000
F. Limited Partner: Waldron Telephone Company
Cash: $5,000
ATTACHMENT B
GEOGRAPHIC DESCRIPTION OF _______________________ RURAL SERVICE AREA (RSA)
Rural Service Area No. 479 as established by the Federal Communications
Commission, also referred to as Michigan RSA No. 9, which encompasses the
following Michigan counties:
Branch
Cass
Hillsdale
Lenawee
St. Xxxxxx
FIRST AMENDMENT TO THE CASS CELLULAR
LIMITED PARTNERSHIP AGREEMENT
This First Amendment is effective as of July 1, 1991, between Rochester
Tel Cellular Holding Corporation ("RTCHC"), Deerfield Farmers' Telephone
Company ("Deerfield"), D & P Communications, Inc. ("D & P"), Xxxxx Telephone
Company ("Xxxxx"), Sand Creek Telephone Company ("Sand Creek"), and Xxxxxxx
Telephone Company ("Waldron") collectively referred to as "Partners".
WHEREAS, the parties hereto, with the exception of D & P, entered into a
Limited Partnership Agreement dated December 5, 1989 (the "Agreement"); and
WHEREAS, Deerfield intends to assign and transfer its interest in the
Cass Cellular Limited Partnership (the "Partnership") to its wholly-owned
subsidiary, D & P; and
WHEREAS, all parties hereto have consented to the assignment and transfer
by Deerfield of its interest in the Partnership to D & P and the withdrawal of
Deerfield as a Partner; and
WHEREAS, RTCHC has provided notice to all Partners of its intention to
accept an offer from Centel Corporation to purchase RTCHC's interest in the
Partnership for certain consideration in accordance with the terms of the
Agreement; and
WHEREAS, D & P (as assignee of the partnership interest of Deerfield),
Xxxxx, Sand Creek, and Waldron have provided notice of their election pursuant
to the terms of the Agreement to exercise their purchase rights as reflected
in Exhibit A, which is attached hereto and incorporated herein by reference;
and
WHEREAS, pursuant to Articles 11 and 13 of the Agreement, RTCHC intends
to assign and transfer its interest as a General Partner in the Partnership to
D & P for consideration and assign and transfer its interest as a Limited
Partner in the Partnership equally to D & P, Xxxxx, Sand Creek and Waldron for
consideration.
NOW, THEREFORE, the parties hereto choose to amend the Agreement as
described below.
1. Addition of Limited Partner. The Agreement is amended to add D & P
as a Limited Partner and party to said Agreement due to the assignment and
transfer by Deerfield to D & P of its interest as a Limited Partner. D & P
agrees to be bound by all terms and conditions of the Agreement.
2. Withdrawal of Partners. The Agreement is amended to delete Deerfield
as a Limited Partner due to Deerfield's assignment and transfer of its
interest in the Partnership to D & P. The Agreement is also amended to delete
RTCHC as a General Partner and Limited Partner due to RTCHC's assignment and
transfer of its interest as a General Partner to D & P and RTCHC's assignment
and transfer of its interest as Limited Partner equally to D & P, Xxxxx, Sand
Creek and Waldron.
3. General Partner. General Partner, as referred to in the Agreement
shall mean D & P.
4. Limited Partners. Limited Partners, collectively, as referred to in
the Agreement shall mean D & P, Xxxxx, Sand Creek and Waldron.
5. Amendment to Section 2.2(b). Section 2.2(b) of the Agreement is
hereby amended to read as follows:
(b) The principal office and place of business of the Partnership shall be
maintained at D & P Communications, Inc., 000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 or at other such location as the General Partner may from time
to time select, upon prior written notice to the Limited Partners.
6. Amendment to Section 5.1. Section 5.1 of the Agreement is hereby
amended to read as follows:
5.1 Initial Capital Contributions. Initial Capital Contributions, in the
amount of Five Thousand Dollars ($5,000.00) for each Partner, shall be set
forth in Attachment A hereto, as such Capital Contributions may be modified
pursuant to Sections 2.5 & 5.3 and in accordance with the General Partner's
rights and powers in Sections 7.2 & 15.1. Due to the assignment and transfer
by Deerfield of its interest as a Limited Partner to D & P, the assignment and
transfer by RTCHC of its interest as a General Partner to D & P, and the
assignment and transfer by RTCHC of its interest as a Limited Partner equally
to D & P, Xxxxx, Sand Creek and Waldron, the following shall be the respective
Partnership Interests for the Partners):
(A) 10.0% for D & P as General Partner
(B) 22.5% for D & P as Limited Partner
(C) 22.5% for XXXXX as Limited Partner
(D) 22.5% for SAND CREEK as Limited Partner
(E) 22.5% for WALDRON as Limited Partner
Initial Capital Contributions shall have been made within sixty (60) days
of receipt of written requests by the General Partner; provided, however, that
no initial Capital Contributions shall be made prior to issuance to the
Partnership of the FCC's permission to construct. The Limited Partners shall
notify the General Partner within ten (10) days after receipt of such
requests, each notice stating whether or not the Limited Partner intends to
make the requested initial Capital Contribution. The Partners understand that
the contribution scheduled under this Article V is intended for the purpose of
this Agreement only and that the schedule may not reflect the full level of
expenditures (or Capital Contributions) appropriate for regulatory purposes.
7. Amendment to Section 19.8. Section 19.8 of the Agreement is hereby
amended to read as follows:
19.8 Notices. All notices given by any Partner to any other Partner under
this agreement shall be in writing, registered or certified mail, postage
prepaid, addressed as follows (or to such other address as a Partner may
specify in such a notice to all other Partners):
General Partner and Limited Partner:
D & P COMMUNICATION, INC.
000 Xxxxxx Xxxxxx; X.X. Xxx 00
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx XxXxxxx
Limited Partner:
XXXXX TELEPHONE COMPANY
0000 X. Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxx
Limited Partner:
SAND CREEK TELEPHONE COMPANY
0000 Xxxx Xxxxx Xxxxxxx; X.X. Xxx 00
Xxxx Xxxxx, XX 00000-00000
Attention: Xx. Xxxx Xxxxxx
Limited Partner:
XXXXXXX TELEPHONE COMPANY
000 X. Xxxx Xxxxxx; X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Ms. Xxxxxxx Xxx
Such notices shall be effective on the third business day subsequent to the
date of mailing.
8. Ratification. The parties hereto hereby adopt and ratify by
reference all other terms and conditions of the Agreement as if set forth
herein in full.
IN WITNESS WHEREOF, the undersigned have caused this First Amendment to
the Cass Cellular Limited Partnership Agreement to be executed by their duly
authorized representatives.
WITHDRAWING PARTNER:
ROCHESTER TEL CELLULAR HOLDING
CORPORATION
By: /s/ Xxxxx X. Xxxxx
Attest: /s/ Joes Shael Title: Vice President and Director
Date: 6/28/91 Date: 6/28/91
WITHDRAWING PARTNER:
DEERFIELD FARMERS' TELEPHONE COMPANY
By: /s/ Xxxxx XxXxxxx
Attest: /s/ Xxxxxxx X. Miliran Title: General Manager
Date: 07/2/91 Date: 7/2/91
GENERAL PARTNER AND LIMITED PARTNER:
D & P COMMUNICATIONS, INC.
By: /s/ Xxxxx XxXxxxx
Attest: /s/ Xxxxxxx X. Miliran Title: General Manager
Date: 07/2/91 Date: 7/2/91
LIMITED PARTNER:
XXXXX TELEPHONE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Attest: /s/ Xxxxxxx X. Miliran Title: President
Date: 07/2/91 Date: 7/2/91
LIMITED PARTNER:
SAND CREEK TELEPHONE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
Attest: /s/ Xxxxxxx X. Miliran Title: President
Date: 07/2/91 Date: 7/2/91
LIMITED PARTNER:
XXXXXXX TELEPHONE COMPANY
By: /s/ Xxxxxxx X. Xxx
Attest: /s/ Xxxxxxx X. Miliran Title: President
Date: 07/2/91 Date: 7/2/91
EXHIBIT A
Existing Additional Revised
Capital
Owner Interest Ownership Ownership Account
D & P Communications
Inc.
(General Partner) -------% 10.0000% 10.0000% $
D & P Communications
Inc.
(Limited Partner) 20.0000% 2.5000% 22.5000% $
Xxxxx Telephone Co. 20.0000% 2.5000% 22.5000% $
Sand Creek
Telephone Co. 20.0000% 2.5000% 22.5000% $
Xxxxxxx Telephone Co. 20.0000% 2.5000% 22.5000% $
