AMENDED AND RESTATED AGREEMENT
OF GENERAL PARTNERSHIP OF
ALBANY CELLULAR PARTNERS
This Agreement, by and among the parties who have timely executed
and delivered a Counterpart Signature Page for this Agreement and who have
contributed their share of the Initial Capital Call pursuant to Sections 2.3 and
2.4 hereof ("Parties"), is to amend and restate the Partnership Agreement of
Albany Cellular Partners (the "Partnership") dated as of December 21, 1987 (the
"Original Agreement"). The Counterpart Signature Pages, together with this
agreement, constitutes the entire agreement of the Parties ("Agreement").
Whereas, each Party is a third-party beneficiary, or a success or
thereof, pursuant to settlement agreements relating to MSA 261 or the Albany,
Georgia market (the "Settlement Agreements"); and
Whereas, Cellcom Corp. is the tentative selectee designated by the
Federal Communications Commission ("FCC") to receive the authorization
("Authorization") to build and operate the non-wireline cellular system
("System") for Albany, Georgia MSA ("Market"); and
Whereas, Cellcom Corp. has transferred the Authorization Cellular
Dynamics Telephone Company of Georgia, a Georgia corporation ("CDTCG") wholly
owned by the Partnership; and
Whereas, in order to effectuate a manageable organizational
structure for the construction and operation of the System, Cellcom Corp. and
Cellcom Telephone Company of Albany as nominee for the parties to the Settlement
Agreement other than Cellcom Corp., formed the Partnership; and
Whereas, in order to formalize each Party's rights and obligations
with respect to the Authorization for the Market, the Parties desire to amend
and restate in its entirety the Original Agreement to fulfill all obligations
and rights pursuant to the Settlement Agreements and to the extent Parties other
than Cellcom Corp. and Cellcom Telephone Company of Albany are admitted to the
Partnership, to correspondingly reduce Cellcom Telephone Company of Albany's
interest in the Partnership.
Now therefore, in consideration of the mutual obligations herein
contained, the receipt and sufficiency of which consideration the Parties hereby
acknowledge, the Parties agree as follows:
I. Organization
1.1. Governing Agreement. The Partnership shall be governed by the
terms and conditions set forth herein.
1.2 Name and Place of Business. The name of the Partnership shall be
Albany Cellular Partners. The name may be changed from time to time by the
Executive Committee (as defined in Section 4.3 hereof) of the Partnership. The
principal place of business of the Partnership shall be Albany, Georgia or any
other place authorized by the Executive Committee. The Partnership shall exist
under the laws of the State of Georgia.
1.3 Purpose. The purpose and scope of the Partnership is, directly
or through CDTCG or any other subsidiary, to construct and to operate the System
for the Market and the surrounding areas, if obtained by the Partnership
("Partnership Business"). The Partnership may take any and all action necessary,
incidental, or convenient to carry out the Partnership Business, including but
not limited to: (a) leasing, purchasing, and improving property and equipment
for the System; (b) raising money for the operation or improvement of the
System; (c) guaranteeing debt or other obligations; (d) selling service on the
System to wholesale and retail customers; (e) selling, leasing, installing and
maintaining customer units used on the System; (f) reselling or contracting to
resell competing wireline cellular services in the Partnership's Market and any
available surrounding areas; (g) constructing, operating, maintaining,
improving, expanding, buying, owning, selling, conveying, assigning, mortgaging,
refinancing, renting, and leasing real or personal property and any interest
therein; (h) entering into and performing any contracts and agreements; (i)
borrowing money and issuing evidences of indebtedness and securing any such
indebtedness by mortgage, security interest, or other lien; (j) negotiating for
and concluding agreements for the sale, exchange, or other disposition of all or
any part of the property of the Partnership or any subsidiary or for the
purchase or lease of additional property of the Partnership or any subsidiary;
(k) hiring, compensating, and terminating employees, agents, independent
contractors, attorneys, and accountants; (l) bringing and defending lawsuits;
and (m) voting the stock of any subsidiary.
1.4 Term. The term of the Partnership shall commence on December 21,
1987 ("Effective Date"). The term shall continue until the ninety-ninth
anniversary of the Effective Date, or until earlier terminated as provided
herein. Each term may be extended at its expiration date for a similar term upon
approval of the Partners.
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1.5 Formation. The Partnership shall consist of each Party who has
returned an executed Counterpart Signature Page on or before August 7, 1988.
Third party beneficiaries pursuant to the Settlement Agreement who fail to
become Parties to this Agreement by August 7, 1988 shall forfeit their interest
in the System and all such forfeited shares shall for all purposes be a
continuing interest of Cellcom Telephone Company of Albany, its successors and
assigns.
II. Capital Contributions
2.1 Initial Partnership Share. Cellcom Corp. ("Winning Partner") has
a 51.49876% interest in the Partnership. The other Parties to this Agreement
("Minority Partners") have in the aggregate the remaining ownership interest in
the Partnership as determined by the Settlement Agreements and this Agreement.
All computations under this Agreement shall be to the nearest one-ten-thousandth
of a percent.
2.2 Capital Contributions. Each Party who becomes a Partner
("Partner") hereby contributes to the Partnership all of its direct and indirect
interest in the System, whether obtained as a result of the Settlement Agreement
or otherwise, and shall contribute to the Partnership in cash its pro rata share
of the capital of the Partnership in the amounts requested in writing ("Capital
Call") from time to time by the Executive Committee of the Partnership. Each
Partner's capital contribution, other than the Initial Capital Call which is
payable by August 7, 1988 and deemed for all purposes hereof to have been
requested by the Executive Committee in compliance with the terms of this
Agreement, shall be made within thirty (30) days following the date that the
Capital Call for the contribution is delivered to the Partner pursuant to
Section 10.9 below. For purposes of this Agreement, each Partner's pro rata
share shall equal the percentage of its Ownership Interest (as defined in
Section 2.3 below) in the Partnership at the time of the Capital Call. Capital
Calls to the Partners shall include an explanation of the reasonably anticipated
uses of the funds.
2.3 Ownership Percentages. Each Partner who contributes an amount of
cash equal to its Ownership Interest multiplied by the Initial Capital Call
referred to in Section 2.4 hereof shall initially have an Ownership Interest in
the Partnership as specified on the Counterpart Signature Page and to be
incorporated on Attachment A hereto. Any person not contributing an amount of
cash equal to its Ownership Interest multiplied by the Initial Capital Call
shall not be deemed a Party to this Agreement even if it executes a Counterpart
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Signature Page. After the contributions have been made in response to each
successive Capital Call, the interest in the Partnership ("Ownership Interest")
held by each Partner shall equal the percentage derived by dividing the
Partner's total capital contributions pursuant to Capital Calls by the total
capital contributions pursuant to Capital Calls made by all of the Partners.
2.4 Initial Capital Call. In connection with the formation hereof,
each Partner has contributed to the Partnership as its initial Capital Call
("Initial Capital Call") an amount relative to its respective Ownership Interest
as set forth on the Counterpart Signature Page multiplied by $900,000. As
Cellcom Corp. has contributed cash and services and is currently personally
responsible to repay in connection with a certain loan from Astronet Corporation
to fund the working capital needs of the System through June 30, 1988 in an
aggregate amount of approximately $560,000, and estimates the Partnership will
require the additional funding or advancing by the Partners of an amount
approximately equal to $300,000 through September 30, 1988, Cellcom Corp. or any
successor to Cellcom Corp.'s interest is not obligated to contribute additional
amounts pursuant to the Initial Capital Call. Rather, such prior contributions
or working capital advances assumed by Cellcom Corp. may be credited to Cellcom
Corp.'s, or any successor to Cellcom Corp.'s interest, initial Capital
Contribution to satisfy its obligation pursuant to the Initial Capital Call.
Amounts contributed pursuant to the Initial Capital Call of all Parties shall be
used first to reimburse Cellcom Corp. for amounts advanced and services
performed by Cellcom Corp. or its affiliates (other than amounts credited
against Cellcom Corp.'s Initial Capital Call) and amounts currently outstanding
to third persons in connection with the Partnership's Business for which Cellcom
Corp. is personally liable to repay, with the balance used to fund additional
working capital needs of the Partnership. If in connection with any Capital
Call, other than the Initial Capital Call, Cellcom Corp. or any successor to
Cellcom's interest has advanced funds to the Partnership or in connection with
the Partnership's Business, and such sum is outstanding, Cellcom Corp. or its
successor may satisfy its obligation pursuant to any Capital Call by forgiving a
similar amount of money owing to it.
2.5 Failures to Contribute. Subject to Section 1.5 hereof, if any
Partner fails to make all or part of a Capital Call when due pursuant to Section
2.2 above, then the Partner shall not be considered to be in material default,
but its Ownership Interest in the Partnership shall be reduced by operation of
Section 2.3 above. No right to cure under this
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Agreement shall apply to any failure to make a Capital Call when due, unless
approved by a majority vote of the Executive Committee. Each deficiency in
meeting a Capital Call may be met by a further pro rata Capital Call on Partners
other than the Partner responsible for the deficiency. Such further
contributions shall be credited to the Capital Accounts as defined in Section
3.2 below, and the Ownership Interests of the Partners making the further
contributions.
2.6 Application Expenses. No Partner shall be entitled to any credit
as a capital contribution for the expenses the Partner incurred in connection
with its own application or with the dismissal or contribution thereof on behalf
of the Partnership. The costs of prosecuting the Winning Application which are
incurred after the lottery, and developing the Partnership Business shall be
borne by the Partnership, and not individually by the Winning Partner. This
includes all such costs incurred subsequent to the Lottery and prior to or after
the formation of the Partnership.
III. Capital Accounts and Allocations
3.1 Title to Property. The Partnership shall hold sole and exclusive
title to the capital of the Partnership, to stock of entities through which the
Partnership Business is being operated (including but not limited to CDTCG), and
to all applications, authorizations, equipment and other property, whether real,
personal or intangible, acquired by the Partnership. No Partner shall have any
right, in law or equity, to request the partition of any asset or property of
the Partnership, or to demand property other than cash upon any distribution by
the Partnership.
3.2 Capital Accounts. A separate capital account ("Capital Account")
shall be maintained for each Partner on the books of the Partnership in
accordance with generally accepted accounting principles and Section 704 of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder. The Capital Account of each Partner shall (i) be credited with the
Partner's cash or deemed cash capital contributions to the Partnership and with
the net income and gain, if any, of the Partnership allocated to such Partner
and (ii) be charged with the net losses, if any, of the Partnership allocated to
such Partner and with all distributions made by the Partnership to such Partner.
No Partner shall be entitled to interest on its Capital Account. For purposes of
this Agreement, Partnership net income, loss and gain shall be determined by the
Partnership's accountants in accordance with generally accepted accounting
principles and Section 704 of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
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3.3 Distributions. Distributions of net income and other Partnership
proceeds to the Partners shall be made quarterly in accordance with their
Ownership Interests at the time of distribution. However, the amount available,
if any, for each such distribution shall be determined by the Executive
Committee. Distributions of net income shall not exceed such quarter year's net
income, less the amount determined by the Executive Committee to be reasonably
required for nonexpensed items in the Partnership's budget, such as payments of
debt principal due or past due, prepayments of debt, other liabilities of the
Partnership (contingent or otherwise), capital investment needs, and working
capital. No Partner shall be required to make a capital contribution to provide
the funds necessary to make a distribution, nor shall the Partnership be
required to borrow money for such purpose.
3.4 Tax Allocations. Taxable income, gain or loss, and items of tax
credit of the Partnership for each taxable year shall be determined by the
Partnership's accountants in accordance with applicable federal income tax laws,
rules, and regulations and shall be allocated to the Partners in proportion to
their Ownership Interests. Income of the Partnership in any taxable year which
is exempt from federal income taxation shall be allocated in proportion to the
allocation of taxable income in the year.
IV. Management
4.1 Partner Voting. Each Partner's voting percentage shall equal the
percentage of its Ownership Interest in the Partnership. A vote reflecting more
than fifty percent (50%) in Ownership Interest ("Majority Vote") shall be
required to act on all matters requiring a vote of the Partners, except as
specifically set forth in this Agreement.
4.2 Partners Meetings. A meeting of the Partners shall be held at
least once each year for the transaction of business requiring a Partner's vote.
Special meetings of the Partners may be called at any time by the Executive
Committee, or by any Partner or combination of Partners representing in the
aggregate at least thirty five percent (35%) in Ownership Interests. Partners
holding a total of at least fifty percent (50%) in Ownership Interests shall
constitute a quorum necessary for a Partners Meeting. Each Partner may designate
a person who will represent it at Partners Meetings, either directly or by
proxy, by giving written notice thereof to the Executive Committee. The person
so designated will continue to be that Partner's representative and to hold its
proxy until the Executive Committee receives written notice of the designation
of a successor representative by the Partner.
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4.3 Executive Committee. Complete and exclusive power to conduct the
business affairs of the Partnership shall be delegated to the Executive
Committee of the Partnership ("Executive Committee"), consisting of three
members. Prior to such first annual meeting, the Winning Partner shall be deemed
to be the Executive Committee and have all powers thereof. Each member of the
Executive Committee shall be elected at the Annual Partners Meeting by a
Majority Vote of the Partners, and may be removed at any time, by Majority Vote
of the Partners. There shall be no cumulative voting in the election of members
of the Executive Committee. However, the Winning Partner may fill by appointment
any vacancy in its membership which occurs between Annual Partners meetings or
if the annual Partners Meeting fails to elect all required members of the
Executive Committee. More than one of the Partner's representatives may be
elected to membership at the same time on the Executive Committee. Meetings of
the Executive Committee shall be held not less than once per quarter year, and
such meetings may be held by conference telephone call. A majority (more than
fifty percent) of the Executive Committee shall constitute a quorum for the
transaction of its business. Each action of the Executive Committee shall
require a vote of a majority of the Executive Committee members casting a vote.
4.4 Chairman and Employees. The Executive Committee shall elect a
Chairman from among its members. The Chairman shall preside at all Executive
Committee meetings and all Partners meetings. The Executive Committee may
delegate responsibilities and authority to the Chairman, the System's General
Manager, or other Partnership employees to the extent it considers reasonable.
The System's General Manager may be delegated the day-to-day responsibility for
conducting the Partnership Business.
4.5 Meeting Notices. Written notice of each Partners Meeting and
each Executive Committee meeting shall be given by the Chairman of the Executive
Committee to each Partner and Executive Committee member; respectively. The
notice shall state the place, date, hour and purpose of the meeting. Notice of
any meeting shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, unless otherwise waived in writing. When a
meeting is adjourned to reconvene at another time or place, it shall not be
necessary to give notice of the reconvened meeting, if the time and place of the
reconvened meeting are announced at the adjourned meeting.
4.6 Minutes. Minutes reflecting the actions taken at meetings of the
Partnership and Executive Committee shall be kept. Copies of the minutes shall
be maintained at the office of the Partnership and shall be promptly transmitted
to a Partner or its representative upon written request.
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4.7 Arrangements With Partners. The Partnership may enter into
reasonable agreements with a Partner or affiliate of a Partner for the
performance of services or the acquisition of the equipment or other property.
4.8 Reasonable Skill and Care. In carrying out its duties and
exercising its powers hereunder, the Executive Committee shall exercise
reasonable skill and care and reasonable business judgment. The Executive
Committee shall not be liable to the Partnership or to the Partners for any act
or omission performed or omitted by it in good faith, pursuant to the authority
granted to it by this Agreement, unless such act or omission constitutes gross
negligence or willful misconduct by the Executive Committee.
4.9 Indemnification. The Partnership shall indemnify and hold
harmless the Executive Committee from any loss or damage, including attorney's
fees, incurred by it by reason of any act performed by it on behalf of the
Partnership or in furtherance of the Partnership's business; provided, however,
that such indemnification or agreement to hold harmless shall be recoverable
only out of the assets of the Partnership and not from the Partners; provided,
further, that the foregoing indemnity shall extend only to acts or omissions
performed or omitted by the Executive Committee in good faith and in the belief
that its acts or omissions were in the Partnership's interest, and which are not
a result of gross negligence or misconduct on the part of the Executive
Committee (unless a court having jurisdiction determines that the Executive
Committee is fairly and reasonably entitled to such indemnification). Nothing in
this Section 4.9 shall prohibit the Executive Committee from acquiring and
entering into contracts of insurance at the expense of the Partnership that will
provide protection to the Executive Committee from liability for its negligence.
4.10 No Partner Authority. No Partner shall take any part in the
conduct or control of the Partnership's business nor have any right or authority
to act for or on behalf of the Partnership, except as (a) a member of the
Executive Committee or (b) an agent or employee of the Partnership. The Parties
understand and agree that neither this Agreement nor the Partnership itself
grants or creates in any Party or the Partnership any power of agency to bind or
obligate the Partners, except as expressly set forth in this Agreement.
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V. Books and Accounts
5.1 Fiscal Year. The fiscal year of the Partnership shall end on
September 30th in each year, or such other date approved by the Executive
Committee.
5.2 Books and Records. The Partnership shall maintain proper books
and accounts in accordance with generally accepted accounting principles and the
provisions of this Agreement. Upon the close of each fiscal year, or as
otherwise approved by the Executive Committee, all such books and accounts shall
be audited by the Partnership accountants.
5.3 Reports and Tax Returns. Within one-hundred and twenty (120)
days after the end of each fiscal year, except in extraordinary situations the
Executive Committee shall mail to each Partner (i) financial statements for the
Partnership, including its balance sheet as of the end of the year, its
statement of income and earnings for the year, and a statement of changes in its
financial position for the year; (ii) all necessary financial, tax, and other
data required for inclusion in or preparation of tax returns for the Partners;
and (iii) a statement from the Partnership's accountants certifying the accuracy
of any allocations made for the fiscal year pursuant to Section 3.4 hereof. The
Executive Committee may issue other reports from time to time as it considers
appropriate.
5.4 Right of Inspection. Each Partner shall have the right, at its
own expense, to examine and inspect, at reasonable times during business hours,
the books, records, accounts, properties, and operations of the Partnership.
Such examination and inspection may be conducted by the Partner or its
authorized agents. However, such examination or inspection shall not
unreasonably interfere with the operation of the Partnership or the System.
VI. Transfers of Interests
6.1 Assignment Permitted. Subject to the grant by final order of any
required FCC or other regulatory consent, and subject to the terms of this
Agreement, each Partner may sell, assign, or exchange (collectively "Assign")
all or part of its Ownership Interest to or with any other person or entity
("Assignee"). However, the assigning Partner shall remain fully liable for any
and all of its obligations as a Partner which are incurred prior to the date
upon which the assignment of its Ownership Interest is effective. The Assignee
thereafter shall be subject to all the terms and conditions of the Partnership
Agreement, including all obligations under the agreement which are attributable
to the assigned Ownership Interest.
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6.2 Notice of Assignment. A Partner who agrees or is required to
sell, assign or exchange all or part of its Ownership Interest shall notify the
Executive Committee at least ten (10) days in advance of the consummation of the
sale, assignment, or exchange (collectively "Assignment"). The notice shall set
forth the name, address, citizenship, and other information necessary to
establish the legal qualifications of the Assignee to hold the interest to be
assigned. This notice is for information purposes only, and shall not constitute
the offering of any right of first refusal to purchase the interest.
6.3 Approvals and Documentation. If the prior consent of the FCC,
any state regulatory agency, or other governmental authority is required for the
Assignment, such consent shall be obtained by final order prior to consummation
of the Assignment and admittance of the Assignee as a Partner. The Assignee
shall execute and acknowledge all instruments and applications, in form and
substance satisfactory to counsel for the Partnership, which are necessary or
desirable to obtain such consent, to effectuate the Assignment, to admit the
Assignee as a Partner, and to bind the Assignee under all of the terms and
conditions of the Partnership Agreement. Prior to admission as a Partner, the
Assignee shall reimburse the Partnership for all reasonable expenses, including
attorney's fees, incurred by the Partnership in connection with the Assignment.
6.4 Preservation of Authorization. No Partner may assign all or part
of its Ownership Interest to any other person or entity unless the Assignment,
in the opinion of the Partnership's counsel, will not disqualify the Partnership
from receiving or holding the Authorization.
6.5 Involuntary Assignment. Upon the death, bankruptcy, insolvency
or incompetency of a Partner, the legal representative, guardian, receiver,
creditor's committee or other successor in interest of the Partner, as the case
may be, shall notify the Executive Committee in writing of such event and,
subject to Section 6.3 and 6.4 above, shall be assigned the Partner's Ownership
Interest and admitted as a Partner.
6.6 Encumbrance of Ownership Interest. No Partner shall pledge,
hypothecate, grant a security interest in, or otherwise encumber its Ownership
Interest in the Partnership, unless (i) the Partner gives not less than fifteen
(15) days prior written notice to the Executive Committee of the creation of the
encumbrance; (ii) the encumbrance attaches solely to the subject Ownership
Interest, and does not attach to any real, personal or intangible property,
equipment, or other asset of the Partnership; (iii) the secured party is
obligated to comply with Sections 6.2, 6.3, 6.4, and 6.5 above in the event it
attempts to enforce the encumbrance. Notwithstanding the
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foregoing, any Partner may be required by a majority vote of the Executive
Committee to pledge its Ownership Interest to a vendor or financial institution
if such pledge is reasonably necessary to finance the construction and/or
operation of the system.
VII. Representations and Warranties
7.1 Representations and Warranties. Each Party or Partner represents
and warrants that: (i) it is duly formed (if not a natural person), validly
existing, and in good standing under the state and local laws to which it is
subject, with full power and authority to enter into and to perform its
obligations under this Agreement; (ii) its execution and performance of this
Agreement will not conflict with, or result in a material breach of or default
under, any agreement, instrument, law, regulation, order, decree or judgment to
which it is subject; (iii) this Agreement is binding and enforceable against it;
(iv) it shall appoint a representative who shall have full power and authority
to vote for it on Partnership matters and such authority shall not be abrogated
until a successor representative is appointed; (v) it is and will remain
qualified under applicable FCC standards to hold the Authorization, and to hold
its Ownership Interest in the Partnership; (vi) it has no knowledge of any fact
or circumstance which would disqualify it or the Partnership from receiving a
final grant of the Authorization; (vii) it has not engaged and shall not engage
in any improper act, practice or omission which, if not timely corrected, would
result in disqualification of the Partnership for the Authorization, or any
rescission, revocation or nonrenewal of the Authorization; and (viii) it is
experienced enough in the business of the Partnership to be capable of
exercising its Partnership voting rights intelligently.
VIII. Default
8.1 Material Default. If a Party for any reason materially breaches
any representation or covenant of this Agreement as contained in Sections 4.10,
6.1-6.6 inclusive, 7.1, 10.1, 10.2, and 10.4 hereof, and the breach is not
cured within fifteen (15) days after written notice of the breach is provided by
the Executive Committee to the defaulting Party, then the Party shall be
considered to be in material default. Any Party who commits such a material
default shall be liable to the Partnership for, and shall indemnify the
Partnership against, all resulting damages, losses, expenses, suffered or
incurred by the Partnership including reasonable attorney's fees and litigation
expenses, suffered or incurred by the Partnership. The exercise of rights
provided in Section 8.2 below shall not relieve the Party of such liability or
indemnification and shall
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not constitute a waiver, by any Party or the Partnership, of any right or remedy
against the defaulting Party under this Agreement, including the right to offset
damages, losses and expenses against any amount owned to the defaulting Party.
8.2 Sale on Material Default. Each Party who commits a material
default shall be required to forfeit its interest in this Agreement, and subject
to any required FCC consent, to transfer to the other Partners pro rata its
Ownership Interest, if any, for an aggregate amount equal to the lesser of (i)
the balance of its Capital Account; or (ii) the Partnership book value of its
Ownership Interest, as determined in accordance with generally accepted
accounting principles. However, if such material default occurs before the
Party's payment of its share of the Initial Capital Call, the Party's Ownership
Interest shall be forfeited for no compensation whatsoever. The provision of
this paragraph may be waived on a case by case basis by majority vote of the
Executive Committee.
IX. Dissolution and Termination
9.1 Dissolution. Subject to prior FCC and regulatory consent, if any
is required, the Partnership shall dissolve upon the occurrence of any of the
following events: (i) Majority Vote of the Partners to dissolve the Partnership;
(ii) issuance by the FCC of a final order refusing to approve this Agreement, or
the issuance by the FCC of a final order denying the Authorization to the
Partnership; (iii) the sale or assignment of substantially all of the assets of
the Partnership; and (iv) any other act of dissolution of the Partnership by a
Partner, except involuntary assignments addressed by Section 6.6 above.
9.2 Right to Continue. If the Partnership is dissolved pursuant to
Section 9.1 (iv) above, the Partners not causing the dissolution shall continue
the Partnership Business in order to ensure uninterrupted service to the public
until such time as a successor entity has been established to operate the
system.
9.3 Winding Up. In the event of the dissolution of the Partnership
for any reason, unless the Partnership is continued pursuant to Section 9.2
above, the Partnership shall be liquidated and its affairs wound up by the
Executive Committee in an orderly yet proper manner. The Partners shall continue
to share all items of income, gain, loss, deduction or credit for tax purposes,
and all profits and losses for accounting purposes, during the period of
liquidation in the same manner as before the dissolution. In order to obtain
full market value from the sale of Partnership assets, the Executive
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Committee shall have the full right and discretion to determine the time, manner
and terms of each sale of Partnership property pursuant to the liquidation.
9.4 Distribution Upon Liquidation. After paying or providing for the
payment of all debts and liabilities of the Partnership and all expenses of
liquidation, and after reserving funds reasonably sufficient to cover contingent
or unforeseen liabilities or obligations of the Partnership, the proceeds of the
liquidation and any other assets of the proceeds of the liquidation and any
other assets of the Partnership shall be distributed to the Partners in
accordance with their Ownership Interests at the time of distribution.
X. Miscellaneous
10.1 Mutual Cooperation. Each Party shall, in good faith, cooperate
with each other Party, the Partnership, and the Executive Committee in promptly
undertaking all actions, executing all documents, and filing all materials with
the FCC, any other governmental body, any lender, vendor, or financial
institution as may reasonably be necessary or desirable to fulfill each of the
Party's obligations under this Agreement.
10.2 Other Business. Nothing contained in this Agreement shall
restrict any Partner or affiliate of a Partner from engaging in any business
outside of and independent from the Partnership, except that no Partner or
affiliate of a Partner shall be a sales agent or reseller of the wireline
cellular system in the Market.
10.3 Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the Parties, their
legal representatives, heirs, administrators, executors, successors, and
permitted assigns.
10.4 Confidential Information. Under no circumstances shall any
Party utilize or disclose in any manner which is in any way adverse to the
interests of the Partnership or any Party any confidential information,
including engineering, technical, managerial and marketing information, whether
or not patentable or copyrightable, disclosed by a Party to the Partnership or
to the other Parties in connection with Partnership matters or created by the
Partnership itself or by the Parties in connection with Partnership matters.
10.5 Specific Performance. Each Party acknowledges that monetary
damages for breach of any of the provisions of this Agreement would be
inadequate. Each Party therefore
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acknowledges that specific performance, temporary and permanent injunctive
relief, and other appropriate remedies may be granted to enforce such provision
without proof of actual damage or the inadequacy of the remedy at law.
10.6 Severability. If any provision of this Agreement is determined
by any court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Agreement shall continue to be in full force and effect.
10.7 Governing Law. This Agreement and the rights of the Parties
hereunder shall be governed, interpreted, and enforced in accordance with the
laws of the State of Georgia.
10.8 Final Order. For purposes of this Agreement, a final order of a
government authority shall mean an order which is effective and is no longer
subject to administrative or court reconsideration, review, appeal or stay.
10.9 Notices. All notices, demands, and Capital Calls required or
permitted under this Agreement shall be in writing and shall be conclusively
presumed to have been delivered to the recipient three business days after
posting in the United States mail, first class, postage prepaid, to the
recipient's address shown at the time in the records of the Partnership. Any
Party may specify a different address by notifying each of the Parties or the
Executive Committee in writing of the change in address. All notices or other
communications to be sent to the Partnership and/or the Executive Committee
shall be sent to ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
10.10 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures to each counterpart were
upon the same instrument.
10.11 Headings. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the text of this Agreement.
10.12 Pronouns. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
context may require.
10.13 Tax Matters Partner. Cellcom Corp., or its successor and
assign, shall be the "Tax Matters Partner" of the Partnership for purposes of
Sections 6221 through 6232.
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10.14 Entire Agreement. This Agreement and the Counterpart Signature
Pages constitute the entire agreement between the Parties, superseding all prior
agreements or understandings between the Parties. This Agreement may be modified
or amended only by giving Partners ten (10) days Notice and receiving the
consent in writing to such modification or amendment, or their successors and
assigns, owning sixty percent (60%) of the Ownership Percentages.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and date set forth below.
CELLCOM CORP.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇, President
Date: July 8. 1988
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Date:
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OWNERSHIP INTEREST:_____________%
1098D
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