Exhibit 10.34


RIGHT TO USE AGREEMENT


THIS
RIGHT TO USE AGREEMENT, including the attached appendices
(collectively, the “Agreement”), is entered into as of the 6th  day of December, 2002 (the “Effective
Date”) by and between Mountain Telecommunications, Inc., an Arizona
corporation with principal place of business at 1430 West Broadway, Suite
A-200, Tempe, Arizona, 85282 (“MTI’) and the Salt River Pima-Maricopa
Indian Community (“SRPMIC”), on behalf of itself and Saddleback Communications
Company (“Saddleback”), a division of SRPMIC with its principal place of
business at 10190 East McKellips Road, Scottsdale, Arizona, 85256. MTI and
SRPMIC are sometimes referred to herein individually as a “Party” and
collectively as “Parties.” As used herein, the term “SRPMIC” shall
include Saddleback.


WITNESSETH:


WHEREAS,
MTI and SRPMIC are parties to that certain Class A
Convertible Stock Purchase Agreement (the “Stock Purchase Agreement”) of
even date herewith, pursuant to which SRPMIC is acquiring shares of MTI’s Class
A Convertible Common Stock (the “Stock”); and


WHEREAS,
in consideration for receiving the Stock, and other consideration hereinafter
described, SRPMIC shall grant to MTI the irrevocable right to use the Switch
Capacity during the Term of this Agreement, and the irrevocable right to use
the Fiber Capacity during the Term of this Agreement, and the Parties desire to
enter into this Agreement to define the terms and conditions of such rights.


NOW,
THEREFORE, in consideration of the premises and the mutual
covenants, agreements, undertakings, representations, and warranties set forth
herein, and subject to the terms and conditions hereof, the Parties hereby
agree as follows:


ARTICLE I


DEFINITIONS


1.1       “Confidential
Information” means proprietary information or material that has been
created, discovered, developed, or otherwise become known to a receiving party
which is  treated and designated
by the disclosing party as confidential, including any engineering design,
manufacturing processes, or source code, non-public financial information
regarding the disclosing party, information relating to research and
development, new product pricing and marketing plans of the disclosing party,
and non-public information relating to the disclosing party’s operations,
revenue, trade secrets, or management practices.


1.2       “Conversion Event”
shall have the same meaning as defined in MTI’s Amended and Restated Articles
of Incorporation adopted as of December 6, 2002.


1.3       “Fiber” means the
fiber optic cables or conduits owned or controlled by SRPMIC and installed as
of the Effective Date, or installed after the Effective Date in order to
facilitate redundant diverse paths in accordance with Article 3.3 of
this Agreement. Nothing contained in this Agreement shall prohibit the Parties
from contracting for the use of fiber installed by













SRPMIC after the Effective Date upon terms and
conditions mutually agreeable to the Parties, and subject to the requirements
of Article 13.10.


1.4       “Fiber Capacity”
means the total capacity of all lit Fiber which traverses paths between the
Premises and locations within or to the exterior boundaries of the SRPMIC.


1.5       “Premises” means the
structure located at 10190 East McKellips Road, Scottsdale, Arizona 85256,
where the Switch Facilities are housed.


1.6       “Switch” means the
DMS-500 telecommunications switch located at the Premises.


1.7       “Switch Capacity”
means the available capacity of any of the various applications of the Switch,
as listed on Appendix A which is attached hereto and incorporated herein
by this reference.


1.8       “Switch Facilities”
means the Switch and all peripheral equipment attached to the Switch,
irrespective of whether such equipment is owned by SRPMIC, MTI or other
entities.


ARTICLE II


SWITCH CAPACITY


2.1       Grant of Right to Use
Switch Capacity. Subject to the terms and conditions of this Agreement,
SRPMIC hereby grants to MTI and MTI hereby accepts from SRPMIC the right to use
the Switch Capacity as specified in Appendix A, except for that certain
Switch Capacity reserved for the sole and exclusive use of SRPMIC as specified
in Appendix B which is attached hereto and incorporated herein by this
reference (the “Switch Capacity Reservation”). During the Term of this
Agreement, MTI’s right to use the Switch Capacity shall be irrevocable. It is
understood and agreed that MTI’s right to use the Switch Capacity pursuant to
this Agreement shall not include the right to use any telecommunications
facilities, equipment or software purchased or installed by SRPMIC after the
Effective Date, excluding Fiber installed after the Effective Date in order to
facilitate redundant diverse paths in accordance with Article 3.3 or
necessary upgrades of the Switch in accordance with Article 4.2.
Further, MTI’s right to use the Switch Capacity pursuant to this Agreement shall
not include the right to use any telecommunications facilities, equipment or
software owned or controlled by any division of SRPMIC other than Saddleback.


2.2       Temporary Switch
Capacity for SRPMIC.


(a)       Upon written notice from
SRPMIC to MTI that SRPMIC has exhausted or is approaching exhaust of its Switch
Capacity Reservation for any frame application subject to this Agreement, MTI
shall make available to SRPMIC, at the earliest practicable date, and on a
temporary basis only, up to twenty-five percent (25%) of the available Switch
Capacity of an equivalent frame application (the “Temporary Switch Capacity”)
in order to defer SRPMIC’s need to develop new Switch Capacity. MTI’s
determination regarding the availability of Temporary Switch Capacity shall be conclusive.



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(b)       SRPMIC shall pay MTI for
any Temporary Switch Capacity at the monthly wholesale rate for the same or
substantially similar service (i) as contained in that certain Interconnection
Agreement between Qwest Corporation (“Qwest”), or any successor or
assignee thereto, and MTI dated [INSERT DATE] (the “Interconnection
Agreement”), if the Interconnection Agreement contains such a monthly
wholesale rate, and so long as such Interconnection Agreement or a successor
agreement shall remain in effect; or (ii) as contained in Qwest’s Statement of
Generally Available Terms (“SGAT”) on file with the Arizona Corporation
Commission (“ACC”) if the Interconnection Agreement does not contain
such a monthly wholesale rate, or if the Interconnection Agreement or a
successor agreement is no longer in effect.


(c)       MTI shall not be required
to provide Temporary Switch Capacity beyond the date which is the earlier of:
(i) one hundred eighty (180) days from the date SRPMIC reaches exhaust on the
applicable frame application; or (ii) two hundred seventy (270) days from the
date SRPMIC projected the need for Temporary Switch Capacity as communicated to
MTI in the notice required under Article 2.2(a). Within ten (10) days
from the date SRPMIC exhausts its Switch Capacity Reservation for a particular
frame application, MTI shall provide written notice to SRPMIC (x) that SRPMIC
has exhausted its Switch Capacity Reservation; (y) the date SRPMIC exhausted
its Switch Capacity Reservation; and (z) the date after which MTI will have no
further obligation under this Article 2.2 to provide Temporary Switch
Capacity to SRPMIC.


2.3       Management, Operation
and Maintenance of the Switch. MTI shall manage, operate and maintain the
Switch in accordance with that certain Management Agreement (the “Management
Agreement”) of even date herewith between Saddleback and MTI. The
Management Agreement terminates and supersedes that certain Management
Agreement between SRPMIC and MTI dated December 18, 1997 (the “1997
Management Agreement”), which is of no further force or effect whatsoever.


2.4       Reconfiguration of the
Switch. As MTI adds and loses customers from its customer base during the
Term of this Agreement, MTI shall reconfigure the Switch in a manner which
segregates, to the extent practicable, the customers of MTI from the customers
of SRPMIC.


2.5       Use of Switch Capacity.
MTI may use the Switch Capacity for the provision of any telecommunications
services authorized by the Federal Communications Commission (“FCC”),
the ACC, or other regulatory authority of competent jurisdiction, or for any
other lawful purpose. SRPMIC covenants and agrees that MTI may peaceably and
quietly enjoy the use of the Switch Capacity, subject at all times to the terms
and conditions of this Agreement.


ARTICLE II


FIBER


3.1       Grant of Right to Use
Fiber. SRPMIC hereby grants to MTI and MTI hereby accepts from SRPMIC the
right to use the Fiber, subject to SRPMIC’s right to obtain Fiber Capacity from
MTI under Article 3.2 of this Agreement (the “Fiber Capacity
Reservation”). During the Term of this Agreement, MTI’s right to use the
Fiber shall be irrevocable. It is



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understood and agreed that MTI’s right to use the
Fiber pursuant to this Agreement shall not include the right to use any
additional fiber purchased or installed by SRPMIC after the Effective Date,
excluding Fiber installed after the Effective Date in order to facilitate
redundant diverse paths in accordance with Article 3.3 of this
Agreement. Nothing contained in this Agreement shall prohibit the Parties from
contracting for the use of fiber installed by SRPMIC after the Effective Date
upon terms and conditions mutually agreeable to the Parties. The Parties agree
that MTI’s right to use the Fiber granted hereunder shall be separate and apart
from MTI’s right to use the Switch Capacity.


3.2       Fiber Capacity
Reservation: Additional Consideration. SRPMIC shall allow MTI to utilize up
to and including forty-eight (48) Fibers (the “Tier 1 Fiber”) subject to
Articles 3.2(a) and 3.3, and may allow MTI to utilize additional Fiber
(the “Tier 2 Fiber”) subject to Article 3.2(b) below if SRPMIC
determines in its sole discretion that it does not require the Tier 2 Fiber for
SRPMIC’s own use, which use includes, but is not limited to, the right of
SRPMIC to sell rights to use Tier 2 Fiber to persons or entities other than
MTI.


(a)       Tier 1 Fiber.
Certain of the Tier 1 Fiber has been equipped as of the Effective Date with
electronics to enable the Tier 1 Fiber to transport telecommunications traffic
(the “Lit Tier 1 Fiber”) from points within the SRPMIC to one or more
central office locations outside the exterior boundary of the SRPMIC. The
remainder of the Tier 1 Fiber (the “Dark Tier 1 Fiber”) has not been
equipped with electronics as of the Effective Date. Subject to the rights of
SRPMIC to the Fiber Capacity Reservation described in subarticles (i) and (ii)
of this Article 3.2(a), MTI may use Lit Tier 1 Fiber and, in its sole
discretion and at its sole expense, may attach the electronics necessary to
light Dark Tier 1 Fiber. MTI shall notify SRPMIC in writing of its intent to
use any Lit Tier 1 Fiber or Dark Tier 1 Fiber. MTI’s written notice shall
specify the number of Fibers requested, and the date MTI requires the Fibers.
As additional consideration to SRPMIC for MTI’s use of Tier 1 Fiber under this
Agreement, SRPMIC shall have the option and the right, in its sole discretion,
to one of the following: (i) the use of up to and including ten percent (10%)
of the Fiber Capacity of any Lit Tier 1 Fiber requested by MTI under this Article
3.2(a), without payment of any recurring or non-recurring charges to MTI;
(ii) the use of up to and including ten percent (10%) of the Fiber Capacity of
any Dark Tier 1 Fiber requested, lit and placed in service by MTI under this Article
3.2(a), without payment of any recurring or non-recurring charges to MTI;
or (iii) payment from MTI for any Lit Tier 1 Fiber or any Dark Tier 1 Fiber
requested by MTI under this Article 3.2(a) at a monthly charge equal to
the applicable Qwest monthly recurring charge for unbundled dark fiber,
inter-office facility (“UDF-IOF”), as set forth in the Interconnection
Agreement, so long as such Interconnection Agreement or a successor agreement
shall remain in effect, or as set forth in Qwest’s SGAT, if the
Interconnection Agreement or a successor agreement are no longer in effect or
if the Interconnection Agreement does not contain a UDF-IOF rate.


(b)       Tier 2 Fiber. If at
any time during the Term of this Agreement MTI desires to use Tier 2 Fiber, MTI
shall notify SRPMIC in writing that it desires to use Tier 2 Fiber. Within
thirty (30) days of SRPMIC’s receipt of such written notice from MTI, SRPMIC
shall respond to MTI in writing stating whether SRPMIC has Tier 2 Fiber
available for the use of MTI. SRPMIC’s determination regarding the availability
of the Tier 2 Fiber shall be conclusive, and nothing contained herein shall
preclude SRPMIC from providing Tier 2 Fiber to persons or entities other than
MTI, subject to the limitations of Article 13.6. In the event SRPMIC
makes



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Tier 2 Fiber available to MTI, SRPMIC shall have the
option and the right, in its sole discretion, to one of the following: (i) the
use of up to and including ten percent (10%) of the Fiber Capacity of any Tier
2 Fiber that is lit and placed in service by MTI (the “Lit Tier 2 Fiber”),
without payment of any recurring or non-recurring charges to MTI (“Option 1”):
or (ii) payment from MTI for any Tier 2 Fiber requested by MTI under this Article
3.2(b), whether such Tier 2 Fiber is lit or dark, at a monthly charge equal
to the applicable Qwest monthly recurring charge for UDF-IOF, as set forth in
the Interconnection Agreement, so long as such Interconnection Agreement or a
successor agreement shall remain in effect, or as set forth in Qwest’s SGAT,
if the Interconnection Agreement or a successor agreement are no longer in
effect or if the Interconnection Agreement does not contain a UDF-IOF rate (“Option
2”).  If SRPMIC selects Option
I, and desires Fiber Capacity on the Lit Tier 2 Fiber in excess of ten percent
(10%), then MTI shall make such additional Fiber Capacity available to SRPMIC
if MTI determines, in MTI’s sole discretion, that MTI has additional Fiber
Capacity available on the Lit Tier 2 Fiber. In such event, SRPMIC shall pay MTI
for the use of the additional Fiber Capacity (i.e.,
in excess of 10%) at a monthly charge equal to the applicable Qwest
monthly recurring charge for UDF-IOF, as set forth in the Interconnection
Agreement, so long as such Interconnection Agreement or a successor agreement
shall remain in effect, or as set forth in Qwest’s SGAT, if the
Interconnection Agreement or a successor agreement are no longer in effect or
if the Interconnection Agreement does not contain a UDF-IOF rate.
Alternatively, If SRPMIC selects Option 2, then the monthly charge payable by
MTI to SRPMIC hereunder shall continue so long as this Agreement shall remain
in effect, and shall apply regardless of whether MTI lights any Tier 2 Fiber or
leaves the Tier 2 Fiber dark.


(c)       Nothing contained in this Article
3.2 or this Agreement shall be construed as requiring SRPMIC to pay any
costs or expenses incurred by MTI in lighting Tier 1 Fiber or Tier 2 Fiber.


3.3       Redundant and Diverse
Paths. The Parties acknowledge that whenever technically and economically
feasible, as determined in MTI’s reasonable discretion, MTI shall provision
Fiber with redundant and diverse paths. Subject to the preceding sentence, MTI
shall be solely responsible for the costs of any fiber and/or facilities that
must be installed, constructed, purchased or leased outside of the exterior
boundary of the SRPMIC in order to provide redundant and diverse paths from the
Premises to one or more central offices outside of the exterior boundary of the
SRPMIC.


3.4       Use of Fiber Capacity
and Fiber Capacity Reservation. MTI may use the Fiber Capacity for the
provision of any telecommunications services authorized by the FCC, the ACC, or
other regulatory authority of competent jurisdiction, or for any other lawful
purpose. SRPMIC may use its Fiber Capacity Reservation for the provision of any
telecommunications services authorized by the FCC or other regulatory authority
of competent jurisdiction, or for any other lawful purpose. SRPMIC covenants
and agrees that MTI may peaceably and quietly enjoy the use of the Fiber Capacity,
subject at all times to the terms and conditions of this Agreement.



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ARTICLE IV


EQUIPMENT AND OPERATION


4.1       Ownership of the Switch
and Fiber. Subject to Article 4.3. SRPMIC or Saddleback shall own
the Switch and the Fiber at all times during the Term. SRPMIC shall maintain
the Premises in its capacity as a landlord pursuant to that certain
Telecommunications Space Lease between the Parties of even date herewith.
Without the prior written consent of MTI, which consent shall not be
unreasonably withheld, SRPMIC shall not transfer title to the Switch or the
Fiber during the Term to any entity other than a division of the SRPMIC, or an
entity which is wholly-owned by the SRPMIC.


4.2       Shared Costs of Switch
and Software Upgrades. In accordance with the allocation mechanism
contained in Appendix C which is attached hereto and incorporated herein
by this reference, the Parties shall allocate the costs associated with any
upgrades of the Switch and related software required in order to (i) maintain
in effect any manufacturer’s or vendor’s maintenance agreements regarding the
Switch and/or Switch software; and (ii) comply with applicable statutes or laws
and any regulatory requirements of the FCC, the ACC, or other governmental
entity with authority over either of the Parties. Without limiting the
generality of the foregoing, SRPMIC shall not be required to share in the cost
of any upgrade of the Switch that is necessary in order to provision a feature
solely for the benefit of MTI.


4.3       Abandonment of Equipment.


(a)       Notification. SRPMIC
shall notify MTI in writing of SRPMIC’s intention to abandon and dispose of any
equipment subject to this Agreement because such equipment is no longer useful
in SRPMIC’s telecommunications network. Within thirty (30) days from the date
of SRPMIC’s written notice, MTI shall respond in writing stating whether MTI
will agree to purchase such equipment from SRPMIC as provided herein and assume
sole responsibility for the maintenance, upkeep, removal and proper disposal of
the equipment. In the event MTI fails to timely respond to SRPMIC’s written
notice as provided herein, then such failure shall be deemed an acknowledgement
by MTI that the equipment is not needed by MTI, and SRPMIC may thereafter
abandon and dispose of the equipment without further notice to MTI.


(b)       Purchase Price. In
the event MTI timely notifies SRPMIC that it desires to purchase the equipment
to be abandoned, the Parties shall mutually agree upon the purchase price for
such equipment. In the event SRPMIC receives a bona
fide offer from any person or entity to purchase the equipment, then
SRPMIC shall notify MTI in writing of such offer, and MTI shall have a first
right of refusal to match the terms and conditions of the offer. In the event
MTI declines to match the offer within five (5) business days from the date of
SRPMIC’s notice to MTI, then SRPMIC may sell the equipment to the person or
entity making the offer notwithstanding the fact that MTI maybe using the
equipment; provided,  however, that SRPMIC shall allow MTI a
reasonable period of time not to exceed thirty (30) days to prepare for the
removal of the equipment.


(c)       Bill of Sale. In the
event SRPMIC and MTI agree upon a purchase price, SRPMIC shall transfer title
to the equipment via bill of sale in a form reasonably satisfactory to



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MTI, and MTI shall assume sole responsibility for the
maintenance, upkeep, removal and proper disposal of the equipment as of the
date of execution of the bill of sale.


ARTICLE V


CONSIDERATION; TAXES


5.1       Consideration. In
consideration for the rights to use the Switch Capacity and the Fiber granted
by SRPMIC under this Agreement, the release by SRPMIC and Saddleback of claims
to amounts they allege are owed by MTI arising out of that certain Sales
Agreement between MTI and SRPMIC dated January 5, 1998, and amended March 2,
1999 (the “Sales Agreement”), the execution of the Management Agreement,
and other consideration, the receipt and sufficiency of which is hereby
acknowledged, MTI shall issue to SRPMIC the Stock pursuant to the terms and
conditions of the Stock Purchase Agreement.


5.2       Taxes. Each Party
shall be responsible for the payment of any and all ad valorem, property, gross
receipts, sales, use, and other taxes applicable to property owned by it and
for taxes on its net income. SRPMIC shall not impose any tax or fee upon MTI
which is not generally applicable to a class of businesses existing or as may
exist within the exterior boundaries of the SRPMIC.


ARTICLE VI


ADDITIONAL OBLIGATIONS OF
THE PARTIES


6.1       Obligations of SRPMIC.


(a)       During the Term of this
Agreement, SRPMIC shall (a) maintain in full force and effect all federal
regulatory authorizations pertaining to the use of the Fiber and the Switch
Facilities within the exterior boundary of the SRPMIC; (b) timely file all requests
for renewals or replacements thereof; (c) supply all information reasonably
requested by federal agencies, subject at all times to the confidentiality
provisions of this Agreement; (d) provide to MTI all information reasonably
requested under this Agreement; and (e) execute any and all documents necessary
to accomplish the same. SRPMIC must take all reasonable steps to comply with
the Communications Act of 1934, as amended, and the rules and regulations of
the FCC, and must timely file all reports, schedules, and/or forms required by
the FCC.


(b)       SRPMIC shall take all
actions reasonably necessary to secure and preserve its authorizations to use
the Switch Facilities and the Fiber, and to permit MTI’s use of the Switch
Capacity and the Fiber authorized by this Agreement. SRPMIC shall not take any
action which could reasonably be expected to cause the FCC or any other federal
governmental agency or department of competent authority to impair, restrict,
revoke, cancel, suspend, or refuse to renew the Licenses, as hereinafter
defined, for the use of the Switch Facilities or the Fiber.


(c)       SRPMIC shall obtain and
maintain in full force and effect all easements and rights-of-way necessary to
utilize the Fiber and to operate the Switch.



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(d)       So long as this Agreement
shall remain in effect, SRPMIC shall maintain and have in full force and effect
comprehensive general liability insurance coverage written on an occurrence
form with respect to the Switch in amounts and types that are customary in the
industry for similar assets, including coverage for disaster recovery.


(e)       SRPMIC shall be responsible
for payment of all applicable federal regulatory fees imposed upon SRPMIC in
connection with services provided by SRPMIC using the Switch Facilities and the
Fiber. Such fees include, but are not limited to, federal universal service
fees, federal regulatory assessment fees, and fees to support the
Telecommunications Relay Service.


6.2       Obligations of MTI.


(a)       During the Term of this
Agreement, MTI shall (a) maintain in full force and effect all necessary
federal, state, and local regulatory authorizations and easements and
rights-of-way pertaining to the use of the Fiber and the Switch Facilities; (b)
timely file all requests for renewals or replacements thereof; (c) supply all
such agencies with all information lawfully required which relates to the
operation of the Switch Facilities, subject at all times to the confidentiality
provisions of this Agreement; (d) provide to SRPMIC all information reasonably
requested under this Agreement; and (e) execute any and all documents necessary
to accomplish the same. MTI must take all reasonable steps to comply with the
Communications Act of 1934, as amended, and the rules and regulations of the
FCC, as well as any applicable laws of the State of Arizona and applicable
rules and regulations of the ACC, and must timely file all reports, schedules,
and/or forms required by the FCC and/or the ACC.


(b)       So long as this Agreement
shall remain in effect, MTI shall maintain and have in full force and effect
comprehensive general liability insurance coverage written on an occurrence
form with respect to any claims made against MTI arising out of its use of the
Switch Facilities and/or the Fiber. MTI shall add SRPMIC, its council members,
officers, employees, and agents, and Saddleback, its directors, officers,
employees and agents, as additional insured parties (collectively, the “SRPMIC
Insured Parties”) on MTI’s insurance policy or policies, and such policy or
policies shall provide for the defense of and coverage for the SRPMIC Insured
Parties.


(c)       MTI shall be responsible
for payment of all applicable federal, state, and local regulatory fees imposed
upon it in connection with services provided by MTI using the Switch Facilities
and the Fiber. Such fees include, but are not limited to, federal and state
Universal Service fees, regulatory assessment fees, fees to support the
Telecommunications Relay Service, and local franchise fees.


ARTICLE VII


REPRESENTATIONS AND
WARRANTIES


7.1       Mutual Representations.
Each Party represents and warrants to the other that:


(a)       it has the requisite power
and authority to enter into this Agreement and to carry out the transactions
contemplated by the Agreement;



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(b)       the execution, delivery,
and performance of the Agreement have been duly authorized by the requisite
action on the part of such Party;


(c)       the Agreement has been duly
executed and delivered, and creates lawful, valid, and legally binding
obligations in accordance with their respective terms; and


(d)       the execution and delivery
of this Agreement is not prohibited by, does not violate or conflict with any
provision of, and does not constitute a default under or a breach of: (i) any
contract, agreement, or other instrument to which it is a party or by which any
of the assets that are the subject hereof are bound; or (ii) to the Party’s
knowledge, any order, writ, injunction, decree, or judgment of any court or
governmental agency.


7.2       Representations of
SRPMIC. SRPMIC hereby represents and warrants to MTI that SRPMIC has all
requisite authorizations, approvals and/or licenses to operate the Switch, to
provide telecommunications service, and to install and use the Fiber (each a “License”
and collectively, the “Licenses”). Each License was validly issued, is
in full force and effect, and is unimpaired by any act or omission by SRPMIC.
There is no complaint, inquiry, investigation, or proceeding pending before any
government authority or, to the best knowledge of SRPMIC, threatened, which
could result in the revocation, modification, restriction, cancellation,
termination, non-renewal, or other action adversely affecting any License and
SRPMIC knows of no facts that, if brought to the attention of any government
authority, could result in the revocation, modification, restriction,
cancellation, termination, non-renewal, or other action adversely affecting any
License. SRPMIC has not entered into any agreement to permit any third party to
utilize, whether or not for compensation, any portion of the Switch Capacity.


7.3       Representations of MTI.


(a)       MTI hereby represents and
warrants to SRPMIC that MTI has all requisite authorizations, approvals and/or
licenses to utilize the Switch Capacity and the Fiber as provided herein and to
provide telecommunications service pursuant to a certificate of convenience and
necessity issued by the Arizona Corporation Commission (each a “License”
and collectively, the “Licenses”). Each License was validly issued, is
in full force and effect, and is unimpaired by any act or omission by MTI.
There is no complaint, inquiry, investigation, or proceeding pending before any
government authority or, to the best knowledge of MTI, threatened which could
result in the revocation, modification, restriction, cancellation, termination,
non-renewal, or other action adversely affecting any License and MTI knows of
no facts that, if brought to the attention of any government authority, could
result in the revocation, modification, restriction, cancellation, termination,
non-renewal, or other action adversely affecting any License.


(b)       MTI hereby represents and
warrants to SRPMIC that: (i) MTI has the financial wherewithal to perform this
Agreement; (ii) there is no complaint, inquiry, investigation, or proceeding
pending before any government authority or, to the best knowledge of MTI,
threatened, which could adversely affect MTI’s ability to perform this
Agreement; and (iii) MTI has no present plan to file for protection under the
bankruptcy laws of the United States, nor has MTI consulted with any attorney
regarding the filing of a petition in bankruptcy.



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ARTICLE VIII


TERM, TERMINATION AND
EXPIRATION


8.1       Term. The term of
this Agreement shall commence on the Effective Date and shall continue in full
force and effect until its termination or expiration in accordance with this Article
VIII (the “Term”). Nothing contained in this Agreement shall
prohibit the Parties from modifying the Term based upon their mutual agreement,
in accordance with Article 13.10.


8.2       Loss of Licenses or
Authority. Without further liability to MTI, MTI may terminate this
Agreement if: (i) SRPMIC’s Licenses are terminated by the FCC or any other
governmental agency or department of competent jurisdiction; provided,  however,
that SRPMIC shall be required to use its commercially reasonable best efforts
in order to retain all such Licenses and its ability to provide the Switch
Capacity and the Fiber pursuant to the terms of this Agreement; or (ii) MTI’s
authority to use the Switch Capacity and the Fiber as provided herein is
terminated by the FCC or the ACC. Termination of this Agreement under this Article
8.2 shall not effect the validity or enforceability of the Stock Purchase
Agreement or the Management Agreement, which shall remain in full force and
effect according to their respective terms.


8.3       Mutual Agreement.
This Agreement may be terminated at any time by mutual agreement of the Parties
without liability to the Parties. Any such termination must be in writing and
signed by each of the Parties; provided, however, that such
termination shall not relieve the Parties of liabilities accrued hereunder
prior to such termination. Termination of this Agreement under this Article
8.3 shall not affect the validity or enforceability of the Stock Purchase
Agreement or the Management Agreement, which shall remain in full force and
effect according to their respective terms.


8.4       Bankruptcy. This
Agreement shall automatically terminate, without further action by the Parties,
on the thirtieth (30th) day following the date that (i) MTI files a petition in
bankruptcy; or (ii) any creditor of MTI or any other entity files a petition
seeking to place MTI in bankruptcy.


8.5       Conversion Event;
Expiration: First Renewal Term; Additional Renewal Terms; No Automatic Renewal.


(a)       Expiration. Upon the
occurrence of a Conversion Event, this Agreement shall continue in full force
and effect and shall automatically expire on the tenth anniversary of the
Conversion Event (the “Initial Expiration Date”) unless terminated
earlier in accordance with this Article VIII, or unless extended in
accordance with this Article 8.5.


(b)       Renewal Term. On or
before the fifth anniversary of the Conversion Event, SRPMIC shall notify MTI
in writing of SRPMIC’s willingness to renew this Agreement for an additional
five (5) year term (the “First Renewal Term”) on the same terms or on
such different terms as SRPMIC may specify in its written notification. Within
ninety (90) days following the date of SRPMIC’s written notification, MTI shall
notify SRPMIC in writing that MTI: (i) agrees to the extension of the Agreement
for the First Renewal Term on the terms specified in SRPMIC’s written
notification; (ii) MTI desires to extend the Agreement for the



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First Renewal Term but upon terms different than those
proposed by SRPMIC in its written notification; or (iii) declines the extension
of the Agreement, in which case the Agreement shall automatically expire on the
Initial Expiration Date without any further action by either Party. In the
event SRPMIC and MTI agree to extend the Agreement for the First Renewal Term
on terms different than those contained in this Agreement, then the Parties
shall execute an amendment to this Agreement consistent with such modified
terms within one (1) year from the date of SRPMIC’s written notification under
this Article 8.5(b). In the event either Party desires to extend this
Agreement for the First Renewal Term but on terms different than those
contained in this Agreement, and the Parties are unable to agree upon new terms
within one (1) year from the date of SRPMIC’s written notification under this Article
8.5(b), then this Agreement shall automatically expire on the Initial
Expiration Date without further action by either Party.


(c)       Additional Renewal Terms.
On or before the first day of the First Renewal Term, if applicable, SRPMIC
shall notify MTI in writing of SRPMIC’s willingness to renew this Agreement for
one or more five (5) year renewal terms following the First Renewal Term (an “Additional
Renewal Term”) on the same terms or on such different terms as SRPMIC may
specify in its written notification. Within ninety (90) days following the date
of SRPMIC’s written notification, MTI shall notify SRPMIC in writing that MTI:
(i) agrees to the extension of the Agreement for the Additional Renewal Term on
the terms specified in SRPMIC’s written notification; (ii) desires to extend
the Agreement for an Additional Renewal Term but upon terms different than
those proposed by SRPMIC in its written notification; or (iii) declines the
extension of the Agreement, in which case the Agreement shall automatically
expire at the end of the First Renewal Term without any further action by
either Party. In the event SRPMIC and MTI agree to extend the Agreement for an
Additional Renewal Term on terms different than those contained in this
Agreement, then the Parties shall execute an amendment to this Agreement
consistent with such modified terms within one (1) year from the date of SRPMIC’s
written notification under this Article 8.5(c). In the event either
Party desires to extend this Agreement for an Additional Renewal Term but on
terms different than those contained in this Agreement, and the Parties are
unable to agree upon new terms within one (1) year from the date of SRPMIC’s
written notification under this Article 8.5(c), then this Agreement
shall automatically expire at the end of the First Renewal Term without any
further action by either Party. This Agreement may be renewed for subsequent
and successive Additional Renewal Terms according to the process outlined in
this Article 8.5(c).


(d)       No Automatic Renewal.
Neither SRPMIC nor MTI shall be obligated to agree to an extension of this
Agreement beyond the Initial Expiration Date, the First Renewal Term, if
applicable, or any Additional Renewal Term, if applicable. In the event that
either SRPMIC or MTI elects not to renew this Agreement beyond the Initial
Expiration Date, the First Renewal Term, if applicable, or any Additional
Renewal Term, if applicable, then this Agreement shall expire on the tenth
anniversary of the Conversion Event, in the case of the initial term, or at the
end of the First Renewal Term or any Additional Renewal Term, if applicable,
without further notice or action on the part of either Party. In the event that
SRPMIC fails to provide written notification as provided in this Article 8.5,
then such failure shall be deemed notice to MTI that SRPMIC elects not to renew
this Agreement beyond the Initial Expiration Date, the First Renewal Term or
any Additional Renewal Terms, if applicable. Nothing set forth in this
Agreement shall be construed as providing for the automatic renewal of this
Agreement.



 11
 









ARTICLE IX


REMEDIES FOR BREACH OF
AGREEMENT


9.1       General. Subject to Article
9.2 of this Agreement, disputes regarding the interpretation, breach, or
enforcement of this Agreement shall be resolved through binding arbitration
conducted in accordance with Article X of this Agreement. The
arbitrators shall have the authority to resolve all such disputes, but neither
Party shall be entitled to an award of monetary damages, nor shall any Party be
entitled to an award of attorneys’ fees and costs.


9.2       Injunctive Relief:
Specific Performance. Where either Party has a reasonable, good-faith
belief that a material breach of this Agreement by the other Party is imminent,
and that such breach will cause substantial and irreparable harm to the
non-breaching party, then the non-breaching party shall be entitled to seek
injunctive relief in the United States District Court in Phoenix, Arizona, or
if such court lacks jurisdiction, in the Maricopa County Superior Court for the
State of Arizona. In the event the court determines that a material breach of
this Agreement has occurred or is imminent, and that such breach or imminent
breach will cause substantial and irreparable harm, then the non-breaching
Party shall be entitled to temporary and/or permanent injunctive relief,
including specific performance of this Agreement, upon a showing of actual
damage, or the reasonable likelihood of actual damage. Under no circumstances
shall the court have the authority to award monetary damages, nor shall the
court have authority to award attorneys’ fees and costs.


9.3       Limitation of Liability
for Breach of Agreement. Neither Party shall be liable to the other Party
for monetary damages of any kind arising out of the breach of this Agreement.
The sole and exclusive remedy of either Party for a material breach or
threatened material breach of this Agreement shall be injunctive relief and/or
specific performance, enforced through the courts in accordance with Article
9.2 or through the arbitration mechanism of Article X. Neither Party
shall be entitled to an award of attorneys’ fees and costs for any breach or
threatened breach of this Agreement.


ARTICLE X


ARBITRATION


10.1     Informal
Dispute Resolution. The
Parties shall make good faith efforts to resolve any dispute arising out of or
relating to the interpretation, performance, nonperformance or enforcement of
this Agreement through amicable settlement discussions to be commenced by the
giving of a written notice of dispute by the Party claiming to be aggrieved.
The notice of dispute must state with specificity the matter or matters in
dispute, the position of the Party giving the notice of dispute and the
rationale for that position. If the Parties fail to resolve the dispute by
amicable settlement within five (5) business days from the date the notice of
dispute is given, either Party may then request the final settlement of such
dispute through binding arbitration at a location to be mutually agreed upon by
the Parties under the Commercial Arbitration Rules (the “Rules”) of the
American Arbitration Association (the “AAA”) by notifying the other
Party and the AAA in accordance with the Rules.



 12
 









10.2     Binding Arbitration.
In the event the Parties are unable to informally resolve any dispute arising
under this Agreement, the Parties shall submit the matter or matters to binding
arbitration, which shall be the Parties’ exclusive mechanism for dispute
resolution, except as provided in Article 9.2 of this Agreement. The
arbitration shall be conducted by a panel of three (3) arbitrators appointed in
accordance with the Rules and knowledgeable in the telecommunications industry.
The arbitration shall be conducted pursuant to expedited and accelerated
procedures established by the arbitrators. Discovery may be conducted either
upon mutual consent of the Parties or by order of the arbitrators upon good
cause being shown. In ruling on motions pertaining to discovery, the
arbitrators shall consider that the purpose of arbitration is to provide for
the efficient and inexpensive resolution of disputes, and the arbitrators shall
limit discovery whenever appropriate to insure that this purpose is preserved.
The dispute between the Parties shall be submitted for determination within
sixty (60) calendar days after the arbitrators have been selected. The
arbitrators shall conduct all proceedings pursuant to the then existing Rules
of the AAA, to the extent such Rules are not inconsistent with the provisions
of this Article X. The decision of the arbitrators shall be rendered
within thirty (30) calendar days after the conclusion of the arbitration
hearing. The decision of the arbitrators shall be in writing and shall specify
the factual and legal basis for the decision. Upon stipulation of the Parties,
or upon a showing of good cause by either party, the arbitrators may lengthen
or shorten the time periods set forth herein for conducting the hearing or for
rendering a decision. The decision of the arbitrators shall be final and binding
upon the Parties. Each Party shall bear its own attorneys’ fees and costs in
connection with the arbitration, and the parties shall share equally the costs
of the arbitrators.


10.3     Enforcement of Right to
Arbitrate: Entry of Arbitrators’ Final Decision. The right of each Party to
arbitration under this Agreement shall be enforced in the United States
District Court in Phoenix, Arizona, or if such court lacks jurisdiction, in the
Maricopa County Superior Court for the State of Arizona. Judgment to enforce
the final decision of the arbitrators may be entered in the United States
District Court in Phoenix, Arizona, or if such court lacks jurisdiction, in the
Maricopa County Superior Court for the State of Arizona.


10.4     Preservation of Status Quo.
The Parties shall make commercially reasonable efforts to preserve the status quo between written notice of
dispute under Article 10.1 and the earlier of a settlement of the
dispute or the issuance of a final decision by the arbitrators.


10.5     Finality of Arbitration
Award. The Parties agree that the award of the arbitrators will be final
and waive any right to challenge the arbitrators’ award on appeal. Anything in
this Agreement to the contrary notwithstanding, in no event may the arbitrators
award monetary damages or attorneys’ fees to either Party.


10.6     Cooperation. The
Parties shall facilitate the arbitration by (i) making available to one another
and to the arbitrators for examination, inspection and extraction, all
documents, books, records and personnel under their control if determined by
the arbitrators to be relevant to the dispute and not otherwise privileged from
disclosure, subject to written agreement by the arbitrators to hold all
confidential information so disclosed in confidence, and (ii) observing
strictly the time periods established by the Rules or by the arbitrators for
submission of evidence or briefs. The Parties acknowledge and agree that time
is of the essence in resolving any dispute submitted to arbitration.



 13
 









ARTICLE XI


ASSIGNMENT


11.1     Assignment.


(a)       SRPMIC shall not assign its
rights and obligations under this Agreement without the prior written consent
of MTI, which consent shall not be unreasonably withheld; provided, however,
that SRPMIC may assign its rights and obligations under this Agreement without
such consent to any division of SRPMIC, or to any entity which is wholly-owned
by SRPMIC.


(b)       MTI shall not assign its
rights and obligations under this Agreement or pledge, hypothecate or grant a
security interest in its rights under this Agreement as collateral or security
for any financing arrangements it makes without the prior written consent of
SRPMIC, which consent shall not be unreasonably withheld or delayed; provided,
however, that MTI may assign its rights and obligations under this
Agreement without such consent to any entity which controls, is controlled by,
or is under common control with MTI.


ARTICLE XII


LIMITED WAIVER OF
SOVEREIGN IMMUNITY


12.1     SRPMIC hereby waives its
sovereign immunity from suit for the limited and sole purposes of (i)
permitting MTI to enforce any of the provisions of this Agreement through
binding arbitration in accordance with Article X, including the
enforcement of MTI’s rights to arbitration under Article X and the
enforcement of any decision rendered by the arbitrators under Article X;
and (ii) permitting MTI to seek injunctive relief and/or specific performance
of this Agreement in accordance with Article 9.2 where MTI has a
reasonable, good-faith belief that a material breach of this Agreement by SRPMIC
is imminent, and that such breach will cause substantial and irreparable harm
to MTI. For purposes of this Article 12.1, SRPMIC consents to the
jurisdiction of the United States District Court in Phoenix, Arizona, the Ninth
Circuit Court of Appeals and the U.S. Supreme Court, or if the federal courts
lack jurisdiction, in the state courts for the State of Arizona, with venue in
Maricopa County, Arizona. SRPMIC hereby waives any requirement of exhaustion of
tribal remedies, and agrees that it will not present any affirmative defense
based on any alleged failure to exhaust such remedies in any judicial
proceeding or arbitration brought pursuant to this Agreement in accordance with
this Article 12.1. SRPMIC covenants that it will not attempt or take any
action to revoke this grant of limited waiver of immunity. SRPMIC’s waiver of
sovereign immunity is expressly limited as provided in this Article 12.1.


ARTICLE XIII


MISCELLANEOUS


13.1     Right of Cancellation.
Contemporaneous with the execution of this Agreement, the Parties have executed
the Stock Purchase Agreement. Pursuant to A.R.S. §40-301 et seq., the issuance of stock as provided
in the Stock Purchase Agreement must be approved by the



 14
 









Arizona Corporation Commission before the Stock
Purchase Agreement is effective. In the event the ACC does not approve the
issuance of stock as provided in the Stock Purchase Agreement by the earlier
of: (i) twelve (12) months after the date of submission of an application with
the ACC seeking approval of the issuance of stock as provided in the Stock
Purchase Agreement; or (ii) twelve (12) months after the Effective Date of this
Agreement, then either Party may unilaterally terminate this Agreement thirty
(30) days after giving written notice to the other Party that it is exercising
its right to terminate under this Article 13.1.


13.2     Relationship of the
Parties. This Agreement does not render MTI or SRPMIC joint venturers,
partners or employees of the other or an agent or representative of the other.
MTI on the one hand, and SRPMIC on the other hand, shall have no right, power,
or authority, nor shall they hold themselves out as having the right, power, or
authority, to create any contract or obligation, express or implied, binding
the other Party.


13.3     Relationship between SRPMIC
and Saddleback. The Parties acknowledge that Saddleback is a division of
SRPMIC with responsibility for operating and maintaining the Switch, Fiber and
Premises. Accordingly, the Parties agree that all or part of the obligations
and duties imposed upon SRPMIC under this Agreement may be fulfilled or
performed by Saddleback as a division of SRPMIC.


13.4     Confidentiality. Each
Party acknowledges that Confidential Information of the other Party may be
disclosed to it in the course of the performance of this Agreement.
Accordingly, except as may be required for the performance of this Agreement,
or for compliance with applicable law or order of a court or governmental
entity having jurisdiction, during the Term and for a period of five (5) years
thereafter neither Party nor any of its employees, representatives, agents, or
affiliates will make use of, disseminate, or in any way disclose any
Confidential Information to any third person, firm, corporation, or other
entity for any reason whatsoever, said undertaking to be enforceable by
injunctive relief or specific performance pursuant to Article 9.2 hereof
to prevent any violation or threatened violation thereof. Each Party must
exercise reasonable care to protect the Confidential Information of the other
Party and will disclose such Confidential Information only to those of its
employees, representatives, agents or affiliates who need to know such
information. A Party who received Confidential Information (“Receiving Party”)
may disclose Confidential Information if required by any judicial or
governmental request, requirement or order, provided that such Party will take
reasonable steps to give the Party which disclosed the information (“Disclosing
Party”) sufficient prior notice in order to contest such request,
requirement or order by notifying the Disclosing Party of such request.
Confidential Information does not include information which (i) is or becomes
generally available to the public, other than as a result of an unauthorized
disclosure by the Receiving Party or any of its employees, representatives,
agents or affiliates; (ii) was available to the Receiving Party on a
non-confidential basis prior to its disclosure to the Receiving Party; or (iii)
becomes available to the Receiving Party on a non-confidential basis from a
source other than the Disclosing Party, provided that such source is not bound
by a confidentiality agreement with the Disclosing Party or is not otherwise
prohibited from transmitting the information to the Receiving Party.


13.5     No Publicity Without
Consent. Neither Party shall issue or permit the issuance of any press
release or publicity regarding the other or this Agreement without prior
coordination



 15
 









with and advance written approval by the other Party,
which may be granted or withheld at the other Party’s sole discretion.


13.6     Covenant Not To Compete.
SRPMIC recognizes that, during the term of this Agreement, SRPMIC’s cooperation
with MTI is essential to the success of MTI’s commercial venture, and that such
cooperation may be impaired by conflicts of interest. SRPMIC also recognizes
that, during the Term of this Agreement, SRPMIC will become privy to
Confidential Information concerning MTI’s business practices, technology,
subscriber growth rates, business plans, and other information which, if
revealed to a competitor, could be used in a manner harmful to MTI. Therefore,
during the Term of this Agreement, without the consent of MTI, SRPMIC will not,
directly or indirectly, acting alone, through an affiliate, or as a member of a
partnership or association, or other business entity (i) offer, provide, or
deliver, utilizing the Switch, any local exchange carrier telecommunications
services or long distance services which compete with any similar service
offered by MTI as of the Effective Date outside of the exterior boundary of the
SRPMIC (a “Competing Service”) or (ii) lease or license any part of the
Switch Capacity to a third party that offers, provides, or delivers a Competing
Service, as defined above. Nothing in this Article 13.6 shall prohibit
SRPMIC from providing Fiber to persons or entities other than MTI in accordance
with Article 3.2(b).


13.7     Governing Law. This
Agreement and all questions relating to its validity, interpretation,
performance, and enforcement shall be governed by and construed in accordance
with the laws of the State of Arizona, to the extent such laws do not conflict
with the Laws of the Salt River Pima-Maricopa Indian Community as duly enacted
in writing by the SRPMIC Council, in which case the laws of the Salt River
Pima-Maricopa Indian Community shall control with regard to the conflict.


13.8     Notices. All notices
and other communications given or made pursuant to this Agreement must be in
writing and will be deemed duly delivered and received (a) if mailed by
registered or certified mail, three business days after deposit in the United
States mail, postage prepaid, return receipt requested; (b) upon confirmation
of a receipt of a facsimile transmission; (c) if hand-delivered, upon delivery
against receipt or upon refusal to accept the notice; or (d) if delivered by a
standard overnight courier, one business day after deposit with such courier,
postage prepaid, in each case, addressed to such party at the address set forth
below:


If to SRPMIC:


Saddleback Communications Company 

10190 E. McKellips Road 

Scottsdale, Arizona 85256 

Attention: General Manager 

Phone: (480) 850-7000 

Fax: (480) 850-7010



 16
 









With a copy given in the manner prescribed above to:


Snell & Wilmer, LLP 

One Arizona Center 

Phoenix, Arizona 85004 

Attention: Jeffrey W. Crockett 

Phone: (602) 382-6234 

Fax: (602) 382-6070


If to MTI:


Mountain Telecommunications, Inc. 

1430 W. Broadway, Suite A-200 

Tempe, Arizona 85282 

Attention: Jack Pleiter 

Phone: (480) 850-9500 

Fax: (480) 850-9599


With a copy given in the manner prescribed above to:


Greenberg Traurig, LLP

2375 E. Camelback, Road, Suite 700

Phoenix, Arizona 85016

Attention: Robert S. Kant

Phone: (602) 445-8000

Fax: (602) 445-8100


13.9     Interpretation and
Construction. The headings and captions of this Agreement are inserted for
convenience and identification only and are in no way intended to define,
limit, or expand the scope and intent of this Agreement or any provision
hereof. Where the context so requires, the singular shall include the plural.
The references contained in this Agreement to “Articles” are to articles of
this Agreement unless the context clearly requires otherwise.


13.10   Amendment and Waiver.
Unless otherwise provided herein, this Agreement may be amended or terminated
only by an instrument in writing duly executed by both Parties. Any waiver by
any Party of any breach of or failure to comply with any provision of this
Agreement by the other Party shall not be construed as or constitute a
continuing waiver of such provision, or a waiver of any other provision hereof.


13.11   Third Parties. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns, as permitted hereunder. It is not
the intent of the Parties that there be any third party beneficiaries of this
Agreement, and this Agreement is exclusively for the benefit of the Parties
hereto and their respective successors and assigns, as permitted hereunder.


13.12   Entire Understanding.
THIS AGREEMENT SETS FORTH THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS INCLUDING THE
SALES



 17
 









AGREEMENT AND THE 1997 MANAGEMENT AGREEMENT, AND
COLLATERAL COVENANTS, ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS, AND WARRANTER
WHETHER ORAL OR WRITTEN, BY ANY PARTY (OR ANY OWNER, MEMBER, OFFICER, DIRECTOR,
PARTNER, EMPLOYEE, OR REPRESENTATIVE OF EITHER PARTY) WITH RESPECT TO THE
SUBJECT MATTER HEREOF.


13.13   Severability. If any
provision or provisions of this Agreement are determined to be invalid or
contrary to any existing or future law, statute or ordinance of any
governmental entity having jurisdiction, or any order, rule or regulation of a
court or regulatory or other governmental authority of competent jurisdiction,
such invalidity shall not impair the operation of or affect those provisions in
any other jurisdiction or any other provisions hereof which are valid, and the
invalid provisions shall be construed in such manner as shall be as similar in
terms to such invalid provisions as may be possible, consistent with applicable
law; provided, however, that if a provision cannot be severed
without substantially diminishing the economic value of this Agreement to a
Party, that Party, notwithstanding anything to the contrary herein, may
terminate this Agreement on ninety (90) days’ written notice to the other
Party.


13.14   Further Assistance. From
time to time after the Effective Date, the Parties shall utilize their best
efforts, consistent with sound business practice, to take such further action
and execute such further documents, assurances and certificates as either Party
may reasonably request of the other in order to effectuate the purpose of this
Agreement. In addition, each Party agrees that it will not take any action
which would adversely affect the rights granted by it to the other Party
hereunder.


13.15   Force Majeure. If either
Party is rendered unable, wholly or in part, by force majeure to carry out its
obligations under this Agreement, other than the obligation of a Party to make
payments of amounts due hereunder, then the obligations of both Parties, so far
as they are affected by such force majeure, shall be suspended during the
continuance of any inability so caused, but for no longer period, and such cause
shall so far as possible be remedied within a reasonable time. The term “force
majeure” as used in this Agreement shall mean acts of God, strikes, lockouts,
or other industrial disturbances, acts of public enemies including acts of
terrorism, wars, blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, storms, floods, washouts, interruptions by
government not due to the fault of the Parties, civil disturbances, explosions,
or unforeseeable action or inaction by governmental bodies in approving the
applications for approvals or permits or any material change in circumstances
arising out of legislation, regulation or litigation.


13.16   Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be
an original for all purposes, but all of which together shall constitute one
agreement.


13.17   Word Meanings. As used
in this Agreement, the term “including” is deemed to mean “including, without
limiting the generality of the foregoing.” All pronouns and any variations
therefor are deemed to refer to the masculine, feminine, neuter, singular or
plural as the context may require.



 18
 









13.18 Survival
of Obligations. All obligations of MTI or SRPMIC which by their nature
involve performance, in any particular, after the end of the Term, or which
cannot be ascertained to have been fully performed until after the end of the
Term, will survive the expiration or sooner termination of the Term.


13.19 Time of the
Essence. Time is of the essence for every provision of this Agreement for
which time is a factor.


IN WITNESS WHEREOF, the Parties have caused this
Agreement to be executed as of the day and year first above written.


	
  SALT RIVER PIMA-MARICOPA

  INDIAN COMMUNITY

  	
   

  	
  MOUNTAIN
  TELECOMMUNICATIONS,

  INC.

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  

  /s/ Ivan Makil

  	
   

  	
   

  	
  By: 

  	
  

  /s/ Jack O. Pleiter

  	
   

  
	
  Name: 

  	
   

  	
   

  	
   

  	
  Name: 

  	
  Jack O. Pleiter

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  

  By:

  	
  /s/ Wilmot Wickramasuriya

  	
   

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Wilmot Wickramasuriya

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President and Chief Financial Officer

  	
   

  



 



 19














APPENDIX “A”


SWITCH CAPACITY


DMS-500 Front End:


·      Lineups “A” and “B” of the
DMS, consisting of the following frames:


Lineup “A”


One (1) DPCC with six (6) 96MB memory cards and two (2) BRISC70
processors

One (1) LIM with eight (8) SS7 LIU and four (4) Ethernet EIU Interfaces

Two (2) ENC

Two (2) CMSS (empty spares cabinets)


Lineup “B”


Two (2) MIS with miscellaneous modems

Two (2) ISME

Two (2) IOE with one (1) 9-track tape drive

One (1) PDF (power distribution frame)


DMS Port Frames:


·      Eleven (11) DTEI Frames pack
filled as follows:


8,640 DTC Ports (18 shelves)

2,400 DTCI Ports (5 shelves)

480 LTCI Ports (1 shelf)


·      Two (2) MVIE Frames pack
filled as follows:


1,440 ESMA Ports (3 SMA2 shelves) with BRI “D” channel controllers


Excluding the ports already utilized, there is a
potential balance of up to 78,000 ports remaining. MTI will have the option of
adding 39,000 ports and Saddleback will have the option of adding 39,000 ports.
Either Party may add ports to the specified limits without the approval of the
other Party. Expansion beyond these limits will require the approval of the
both Parties, which shall not be unreasonably withheld.



 A-1
 








Ancillary
Equipment:


One (1) Alcatel 1631 SMC DCS (4 frames) populated with 24 DS3s and 672
DS1s


One (1) Alcatel 1630 CSX DCS (1 frame) populated with 112 DS1s


One (1) ETC VRU with 24 voice ports (1 DS1)


One (1) Telecom Solutions Stratum 1 clock


Two (2) Nortel Smartbank Channel banks (SS7 connections)


One (1) Nortel Passport 7480 with:


One (l)16-slot shelf

Three (3) DC power supplies

Two (2) CP cards

One (1) 3-port DS3 ATM UNI card

One (1) 6-port l0baseT Ethernet card

Two (2) 4-port DS1c Frame Relay cards

Three (3) 8-port DS1 Frame Relay cards


One (1) Centigram 640 Voicemail system with 48 analogue ports, 480
hours of message space (two (2) 4GB disks)


One (1) Nortel HDT with 20 voice module or 28 DS1 capacity


One (1) Nortel OC-48 Classic with OC-48 Linear optics (1310ns), 24 DS3
and 1 OC-3 ports.


Note:
The DSX panels and connectivity are utilized in association with the attached
hardware.



 A-2














APPENDIX “B”


SWITCH CAPACITY
RESERVATION


DMS-500
Front End:


Excluding the ports already utilized, there is a
potential balance of up to 78,000 ports remaining. MTI will have the option of
adding 39,000 ports and Saddleback will have the option of adding 39,000 ports.
Either Party may add ports to the specified limits without the approval of the
other Party. Expansion beyond these limits will require the approval of both
Parties, which shall not be unreasonably withheld.


DMS Ports:


DTC Ports reserved: 960 (2 shelves)


DTCI Ports reserved: 480 (1 shelf)


LTCI Ports reserved: 480 (1 shelf)


SMA Ports reserved: 960 (2 shelves)


Ancillary Equipment:


Alcatel 1631 SMC DCS: Eight (8) DS3s with 224 DSls


ETC VRU: As required to capacity


Stratum 1 Clock: As required to capacity


Smartbank Channel banks: As required to capacity


Passport: Six (6) slots in the Passport Network


Centigram: As required to capacity


HDT:75% of current capacity


Note:
The DSX panels and connectivity are utilized in association with the attached
hardware.



 B-1














APPENDIX “C”


UPGRADE REQUIREMENTS—COST
ALLOCATION


DMS:


The upgrades to the switch will be broken into several categories:


1)                        Hardware:
100% to owner


2)                        Software
upgrades requiring switch hardware upgrades:


a.                          Mandated
(regulatory or vendor):


i.                            Software:
100% to owner


ii.                         Frames
impacted: 100% to frame user


b.                         Feature
Upgrade desired by one party:


i.                            Software:
100% to desiring party


ii.                         Frames
impacted: 100% to desiring party


c.                          Feature
Upgrade desired by both parties:


i.                            Software:
50% to each party


ii.                         Frames
impacted: 100% to frame user


Note: If a material impact can be achieved by
Saddleback purchasing upgrades, Saddleback has the right to pay 100% of a given
upgrade.


Ports:


1)                        Hardware:
100% by user


2)                        Software
upgrades requiring frame upgrades


a.                          Mandated
(regulatory or vendor): User of frame


b.                         Feature
upgrade desired by one party: 100% by desiring party


c.                          Feature
upgrade desired by both parties: User of frame












Ancillary Equipment:


Passport: Due to the integrated nature of the
Passport Network the following allocation applies to the Network and each node
in it:


1)                        Mandated
upgrades: 100% to owner of Node


2)                        Feature
upgrade desired by one party:


a.                          Software/Hardware:
100% all nodes to desiring party


3)                        Feature
upgrade desired by both parties:


a.                          Software:
100% to owner of node


b.                         Hardware:
100% to owner



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