NON-RECOURSE TERM LOAN AGREEMENT
NON-RECOURSE TERM LOAN AGREEMENT ("Agreement") made as of the 30th
day of September, 1997 by and between XXXXXX OPERATING COMPANY, an
Oklahoma corporation with its principal office at 00000 Xxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 ("DOC") and GILA RIVER
TELECOMMUNICATIONS SUBSIDIARY, INC., a corporation organized pursuant to
Gila River Indian Community Resolution Number GR-10-97, having an office
at 0000 Xxxx Xxxxxxx Xxxx, Xxx 0000, Xxxxxxxx, Xxxxxxx 00000, which after
the date hereof shall be known as Gila River Telecommunications, Inc.
("Borrower").
W I T N E S S E T H T H A T:
Borrower has requested a $6,110,554.75 secured non-recourse term
loan (the "Loan") from DOC and DOC has agreed to make the Loan upon the
terms and subject to the conditions hereinafter set forth. Capitalized
terms set forth herein are defined in Article I of this Agreement.
ARTICLE I
DEFINITIONS
As used herein, the following terms shall have the indicated
meanings:
"BASE RATE" on any date shall mean the rate of interest then in
effect and being charged to DOC by the Senior Lenders pursuant to
the Senior Loan Agreement.
"COLLATERAL" shall mean all of the Borrower's interest in the
Partnership, as more fully described in the Partnership Agreement,
and evidenced by a Certificate of General Partnership Interest (the
"Certificate"), together with any cash or property received in
exchange or in substitution for or in respect of such partnership
interest (such partnership interest and any income, proceeds, cash
or other property received in exchange or substitution therefor or
in respect of are collectively referred to herein as the
"Partnership Interest"), including distributions which may be made
on, or distributed in consequence of the ownership of, the
Partnership Interest, (the "Partnership Distributions") and any
securities, instruments or distributions of any kind issuable,
issued or received upon conversion of, in respect of, or in exchange
for the Partnership Interest; all proceeds thereof; and all equity
interests or other rights issued by the Partnership which are now or
hereafter owned by Borrower.
"COSTS" shall mean all costs and expenses incurred or to be
incurred by DOC or Borrower in connection with or incidental to an
Event of Default in connection with the Loan including, without
limitation, filing fees, fees associated with UCC lien search
reports, legal fees and all other costs and fees incurred in
connection therewith.
"DEFAULT RATE" shall have the meaning specified in Section 7.02
of this Agreement.
"EVENT OF DEFAULT" shall have the meaning specified in Section
7.01 of this Agreement.
"GOVERNMENTAL AUTHORITY" shall mean the United States
government, any state or other political subdivision thereof, any
agency, court or body of the United States government, any state or
other political subdivision thereof, or any quasi-governmental
agency or authority exercising executive, legislative, judicial,
regulatory or administrative functions.
"LOAN" shall have the meaning set forth in the preamble of this
Agreement.
"LOAN DOCUMENTS" shall mean this Agreement, the Note, the
Security Agreement, and all other documents or instruments executed
and delivered by or on behalf of Borrower in connection with the
Loan and the transactions contemplated hereby, as the same may be
supplemented or amended from time to time.
"MATURITY DATE" shall mean the earliest of (i) December 31,
2013; (ii) a Sale of the Partnership and (iii) the date upon which
all Principal and Accrued Interest have been repaid by Borrower to
DOC.
"NOTE" shall mean the $6,110,554.75 secured term non-recourse
note of even date herewith in the form attached hereto as EXHIBIT A,
made by Borrower in favor of DOC to evidence the Loan, as the same
may be supplemented or amended from time to time.
"PARTNERSHIP" means Gila River Cellular General Partnership, a
general partnership organized pursuant to the provisions of the
Uniform Partnership Act of the State of Arizona.
"PARTNERSHIP AGREEMENT" means that certain Amended and Restated
Partnership Agreement of the Partnership between Borrower and Xxxxxx
Communications of Arizona, Inc. dated as of September 30, 1997 (the
former partners of which were U.S. West New Vector Group, Inc.,
Tohono X'Xxxxx Utility Authority, Gila River Telecommunications,
Inc. and Aztel, Inc.).
"PERSON" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization or
any governmental department or agency, or political subdivision
thereof.
"SALE OF THE PARTNERSHIP" shall mean a single transaction or
group of related transactions between the Partnership and/or its
partners and any Person or group of Persons pursuant to which such
Person or group of Persons will (i) acquire all or substantially all
of the ownership interests in the Partnership, (ii) acquire all or
substantially all of the Partnership's assets or (iii) consummate a
merger or consolidation as a result of which the partners of the
Partnership who own partnership interests of the Partnership prior
to such transaction(s) shall own less than 50% of the ownership
interests of the surviving Person or its Parent.
"SECURITY AGREEMENT" shall mean that certain Collateral
Assignment and Pledge Agreement of even date herewith made by
Borrower in favor of DOC as security for the obligations,
indebtedness and liabilities of Borrower to DOC, whether under the
Note or otherwise, creating a first priority lien on the Collateral,
as the same may be supplemented or amended from time to time.
"SECURITY DOCUMENTS" shall have the meaning set forth in
Section 2.06 of this Agreement.
"SENIOR LENDERS" shall mean those banks and financial
institutions named as "Banks" in the Senior Loan Agreement.
"SENIOR LOAN AGREEMENT" shall mean that certain Second Amended
and Restated Credit Agreement dated February 27, 1997, as amended,
between DOC and certain of its subsidiaries and CoreStates Bank,
N.A. for itself and as administrative agent (the "Administrative
Agent"), and the other "Banks" named therein. It is expressly
understood that Borrower shall have no direct obligations under the
Senior Loan Agreement for any reason whatsoever; provided however
that Borrower acknowledges and agrees that DOC is collaterally
assigning its rights under the Loan Documents and the Collateral to
the Administrative Agent on behalf of the Banks to secure its
obligations under the Senior Loan Agreement and agrees to make
payments of the Loan directly to Administrative Agent consistent
with the terms thereof in the event the Administrative Agent
enforces its rights under such collateral assignment.
ARTICLE II
GENERAL TERMS
Section 2.01. AMOUNT OF LOAN. Borrower agrees to borrow from DOC
the principal sum of Six Million One Hundred Ten Thousand Five Hundred
Fifty-four Dollars and seventy-five cents ($6,110,554.75) and DOC agrees
to make the Loan to Borrower, subject to all the terms and conditions of
this Agreement.
SECTION 2.02. NOTE. The Loan shall be evidenced by the Note, which
Note is hereby incorporated herein by reference and made a part hereof.
SECTION 2.03. PAYMENTS OF PRINCIPAL AND INTEREST ON THE LOAN.
(a) The outstanding principal balance of the Loan and Accrued
Interest (as hereinafter defined) thereon shall bear interest at a rate
per annum equal to the Base Rate with each change in said rate to be
effective on the effective date of each change in the Base Rate (without
notice to Borrower) under the Senior Loan Agreement. Interest will be
computed in arrears and based on a three hundred sixty (360) day year
counting the actual number of days elapsed. Borrower shall make payments
of accrued interest and prepayments of principal on the Note as and to
the extent Borrower is entitled to receive Partnership Distributions;
PROVIDED, HOWEVER, from and after September 30, 1998 only 60% of the
Partnership Distributions shall be applied to the payment of accrued
interest and principal on the Note. All such payments shall be applied
first to accrued and unpaid interest and the balance thereof to principal
on the Note. To the extent that such Partnership Distributions are not
sufficient to pay in full all interest then accrued on the Note as of the
end of any calendar year, the unpaid amounts shall be accrued (such
amounts being referred to herein as the "Accrued Interest"). A final
payment of all remaining principal and accrued interest will be made by
Borrower to DOC on the Maturity Date.
(b) By its execution hereof, Borrower irrevocably authorizes
and directs the Partnership to deliver all Partnership Distributions
until September 30, 1998 and 60% of Partnership Distributions after
September 30, 1998 to DOC for application to the Note in accordance with
Section 2.03(a) hereof.
SECTION 2.04. PREPAYMENT PERMITTED. Borrower may prepay the
principal of the Note, in whole at any time, or in part from time to
time, upon not less than two (2) business days' prior notice to DOC, and
provided in the case of a partial payment, that such payment is in an
amount of not less than Ten Thousand Dollars ($10,000). Any such
prepayment shall be made without premium or penalty. Each prepayment
shall be accompanied by the interest accrued on the principal amount so
prepaid through the date of prepayment.
SECTION 2.05. USE OF PROCEEDS. The proceeds of the Loan shall be
used exclusively by Borrower for: (i) the purchase of Partnership
Interests and (ii) the payment of any costs or expenses incurred by
Borrower in connection with or incidental to the Loan or the purchase of
Partnership Interests.
SECTION 2.06. SECURITY. The obligations, indebtedness and
liabilities of Borrower to DOC, whether under the Note or otherwise,
shall be secured by a first priority pledge and security interest in the
Collateral pursuant to the terms of the Security Agreement. The Security
Agreement, together with any and all other agreements and instruments now
or hereafter securing the Note, are sometimes hereinafter referred to
collectively as the "Security Documents" and individually as a "Security
Document".
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce DOC to enter into this Agreement and to make the Loan,
Borrower hereby represents and warrants to DOC (which representations and
warranties shall survive the delivery of the Note and the making of the
Loan) that:
SECTION 3.01. ORGANIZATION, ETC. Borrower (a) is duly organized,
validly existing and in good standing under the laws of Gila River Indian
Community, and (b) has full power and authority to own its properties and
to execute, deliver and perform its obligations under the Loan Documents.
SECTION 3.02. AUTHORIZATION, COMPLIANCE, ETC. The execution and
delivery of, and the performance by Borrower of its obligations under the
Loan Documents (a) have been duly authorized by all requisite corporate
action of Borrower, (b) will not violate any provision of law, any order
of any court or other agency of government, or the Articles of
Incorporation or By-laws of Borrower, and (c) will not violate any
indenture, agreement or other instrument to which it is a party, or by
which it is bound, or be in conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under, or
except as may be provided by this Agreement, result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever
upon any of the property or assets of Borrower pursuant to, any such
indenture, agreement or instrument. Borrower is not required to obtain
any consent, approval or authorization from, or to file any declaration
or statement with, any tribal or Governmental Authority or other agency
in connection with or as a condition to the execution, delivery or
performance of the Loan Documents, or if required, such consent, approval
or authorization has been obtained or such filing has been made.
SECTION 3.03. LITIGATION. There is no action, suit or proceeding
at law or in equity or by or before any Governmental Authority now
pending or, to the knowledge of Borrower, threatened against or affecting
Borrower's interest in the Partnership or the Collateral.
SECTION 3.04. TITLE TO PROPERTIES. Borrower has good title to the
Collateral, free and clear of all mortgages, security interests,
restrictions, liens and encumbrances of any kind other than as encumbered
by this Agreement and the Security Documents.
ARTICLE IV
CONDITIONS OF MAKING THE LOAN
The obligation of DOC to make the Loan hereunder is subject to
compliance by Borrower with the following conditions precedent:
(a) The representations and warranties set forth in Article
III hereof and in all other Loan Documents shall be true and correct on
and as of the date hereof and the date the Loan is made.
(b) Borrower shall have executed and delivered to DOC, upon
the execution of this Agreement, the following:
(i) The Note;
(ii) The Security Documents, together with all other
documents required by the terms thereof, including, but not
limited to, the Certificate;
(iii) A certificate of the Chairman of Borrower
certifying to (a) the votes of Borrower's Board of Directors
authorizing the execution, delivery and performance of this
Agreement and all other Loan Documents, and (b) the names of
the officers or other representatives of Borrower authorized to
sign this Agreement, the Note, the Security Documents and any
other Loan Documents or certificates (or any amendments
thereto) to be delivered pursuant to this Agreement (or any
amendments thereto) by Borrower or any of its officers,
together with the true signatures of such officers. DOC may
conclusively rely on such certificate until it shall receive a
further certificate of the Chairman of Borrower canceling or
amending the prior certificate and submitting the signatures of
the officers named in such further certificate.
(c) DOC shall have received the favorable written opinion of
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx & Xxxxxxxx, counsel for
Borrower, dated the date of the Loan, satisfactory to DOC and its counsel
in scope and substance.
(d) All legal matters incident to the transactions hereby
contemplated shall be satisfactory to counsel for DOC.
(e) No Event of Default, nor any event which upon notice or
lapse of time, or both, would constitute such an Event of Default, shall
have occurred and be continuing.
ARTICLE V
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, from the date hereof and until
payment in full of the principal of, and interest on, the Note and any
other indebtedness, obligation and liability of Borrower to DOC under the
Loan Documents, whether now existing or arising hereafter, Borrower will:
SECTION 5.01. PRESERVATION OF EXISTENCE; COMPLIANCE WITH LAW.
(a) Do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its existence, rights, licenses,
permits and franchises; and
(b) Comply with all applicable laws and regulations, whether
now in effect or hereafter enacted or promulgated by any Governmental
Authority having jurisdiction over Borrower.
SECTION 5.02. TAXES, ETC. Pay and discharge or cause to be paid
and discharged all taxes, if any, assessments and governmental charges or
levies imposed upon it, if any, or upon its respective income and profits
or upon any of its property, real, personal or mixed, or upon any part
thereof, unless disputed in good faith, before the same shall become in
default, which, if unpaid, might become a lien or charge upon the
Collateral or any part thereof.
SECTION 5.03. NOTICE OF PROCEEDINGS. Give prompt written notice to
DOC of any proceedings instituted against it by or in any Federal or
state court or before any commission or other regulatory body, whether
Federal, state or local that have a reasonable likelihood of affecting
the Borrower's interest in the Partnership or the Collateral.
SECTION 5.04. NOTICE OF EVENT OF DEFAULT. Promptly advise DOC of
any material adverse change in its condition, financial or otherwise that
have a reasonable likelihood of affecting or impairing the Borrower's
interest in the Partnership or the Collateral, or of the occurrence of
any Event of Default.
ARTICLE VI
NEGATIVE COVENANTS
Borrower covenants and agrees that, until payment in full of the
principal of, and interest on, the Note and any other indebtedness,
obligation or liability of Borrower to DOC, whether now existing or
arising hereafter, Borrower will not, directly or indirectly:
SECTION 6.01. LIENS. Create, incur, assume or suffer to exist any
mortgage, pledge, lien, charge or other encumbrance of any nature
whatsoever on the Partnership Interest or the Collateral.
SECTION 6.02. DISPOSITION OF COLLATERAL. Sell, lease, transfer or
otherwise dispose of any Partnership Interest or the Collateral.
SECTION 6.03. FUNDAMENTAL CHANGES. Dissolve, liquidate,
consolidate with or merge with, any corporation or entity other than a
merger or a consolidation with any subsidiary ("Affiliate Transaction")
of Gila River Indian Community ("GRIC Subsidiary"); PROVIDED, HOWEVER,
that prior to any such Affiliate Transaction the surviving entity shall
execute and deliver such new Security Documents and assignments of this
Loan Agreement and the Note as DOC may reasonably request.
ARTICLE VII
DEFAULTS/RIGHTS AND REMEDIES OF DOC UPON DEFAULT
Section 7.01. EVENTS OF DEFAULT. In each case of happening of any
of the following events (each of which is herein and in the Note
sometimes called an "Event of Default"):
(a) any representation or warranty made herein, or in any of
the Security Documents shall prove to be false or misleading in any
material respect and shall continue to be false or misleading for five
(5) days after notice thereof by DOC to Borrower;
(b) default in the payment of the principal of, or interest
on, the Note or any other indebtedness, obligation or liability of
Borrower to DOC when the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment or by acceleration
or otherwise and only as a result of any action or omission within the
control of or caused by Borrower and such default shall continue
unremedied for twenty (20) days after notice thereof by DOC to Borrower
of its default;
(c) default in the due observance or performance of any other
material covenant, condition or agreement, on the part of Borrower to be
observed or performed pursuant to the terms hereof, relating to the Loan,
the Partnership Interest or the Collateral other than (i) as set forth in
other paragraphs of this Article VII or (ii) a default by Borrower as a
result of any act or omission of DOC, and such default shall continue
unremedied for twenty (20) days after notice thereof by DOC to Borrower
of its default;
(d) the occurrence of an "Event of Default" as defined in any
Security Document (other than an Event of Default defined under this
Section 7.01) and such Event of Default shall continue unremedied for
twenty (20) days after notice thereof by DOC to Borrower;
(e) Borrower shall, in any way which would materially
adversely affect or impair the Collateral, (i) apply for or consent to or
suffer the appointment of a receiver, trustee, custodian or liquidator of
it, (ii) admit in writing its inability to pay its debts as they mature,
(iii) make a general assignment for the benefit of creditors, (iv) file,
or have filed against it, a petition for relief under Title 11 of the
United States Code and if such petition is filed against Borrower, such
petition is not dismissed within ninety (90) days after such filing or
(v) file, or have filed against it, a petition in bankruptcy, or a
petition or an answer seeking reorganization or an arrangement with
creditors or to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or
statute, and if such petition is filed against Borrower, such petition is
not dismissed within ninety (90) days after such filing, or an answer
admitting the material allegations of a petition filed against it in any
proceeding under any such law, or if corporate action shall be taken for
the purpose of effecting any of the foregoing;
then, upon the occurrence of any such Event of Default and at any time
thereafter during the continuance of such Event of Default, DOC may, by
notice to Borrower, declare the Note and any and all other liabilities,
indebtedness and obligations of Borrower to DOC to be due and payable.
Upon DOC's declaration, such liabilities, indebtedness and obligations
shall become immediately due and payable, both as to principal and
interest, without presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived, anything contained herein or in the
Note or other evidence of such indebtedness, obligations and liabilities
to the contrary notwithstanding (except in the case of an Event of
Default under paragraph (e) of this Section 7.01, in which event this
Agreement shall automatically terminate and the Note and all other
indebtedness, obligations and liabilities of Borrower to DOC shall
automatically become due and payable). DOC may enforce all of the
rights, powers and remedies possessed by DOC under this Agreement, the
Security Documents or under any agreement securing the obligations of
Borrower hereunder, whether afforded by the Uniform Commercial Code or
otherwise afforded by law or in equity. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT OR THE NOTE TO THE CONTRARY, IT IS
SPECIFICALLY UNDERSTOOD AND AGREED THAT THE OBLIGATIONS OF THE BORROWER
ARE WITHOUT RECOURSE TO THE BORROWER OR ANY OF THE ASSETS OF THE BORROWER
OTHER THAN THE COLLATERAL AND DOC MAY LOOK SOLELY TO THE COLLATERAL FOR
THE SATISFACTION OF THE NOTE AND ANY AND ALL OTHER LIABILITIES,
INDEBTEDNESS AND OBLIGATIONS TO DOC IN CONNECTION THEREWITH. Borrower
agrees to pay DOC's attorneys' fees and legal expenses incurred in
enforcing DOC's rights, powers and remedies under this Agreement, the
Note, the Security Documents and any other agreement securing the
liabilities, indebtedness or obligations of Borrower to DOC.
SECTION 7.02. RIGHT OF BORROWER TO TRANSFER PARTNERSHIP INTEREST.
Notwithstanding any other provision of this Agreement or the Note to the
contrary, it is specifically agreed and understood that Borrower may at
any time transfer the Partnership Interest, free and clear of all
mortgages, security interest, restrictions, liens and encumbrances of any
kind (other than as encumbered by this Agreement and the Security
Documents), to DOC and upon such transfer, DOC will cancel the Note and
terminate this Agreement and the Security Documents.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. SURVIVAL. This Agreement and all covenants,
agreements, representations and warranties herein and in the certificates
delivered pursuant hereto, shall survive the making by DOC of the Loan,
the execution and delivery to DOC of the Note, and shall continue in full
force and effect so long as the Note is outstanding and unpaid.
SECTION 8.02. EXPENSES. Borrower will reimburse DOC upon demand
for all Costs in connection with an Event of Default under this
Agreement, the Note, the Security Documents, and for all out-of-pocket
costs in connection with any amendments, modifications, consents or
waivers requested by the Borrower in respect of this Agreement, the Note,
the Security Documents and other Loan Documents and any enforcement
hereof or thereof.
SECTION 8.03. GOVERNING LAW. THIS AGREEMENT AND THE NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ARIZONA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SAID STATE.
SECTION 8.04. AMENDMENT; MODIFICATIONS. No modification or waiver
of any provision of this Agreement, or of the Note, or of any of the
Security Documents, nor consent to any departure by Borrower from a
provision, shall be effective unless the same shall be in writing. A
written consent shall be effective only in the specific instance, and for
the purpose, for which given. No notice to, or demand, on Borrower, in
any one case, shall entitle Borrower to any other or future notice or
demand in the same, similar or other circumstances.
SECTION 8.05. WAIVER. Neither any failure nor any delay on the
part of DOC in exercising any right, power or privilege hereunder, or
under the Note, or any Security Document shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any
other or future exercise, or the exercise of any other right, power or
privilege.
SECTION 8.06. NOTICES. All notices, requests, demands and other
communications provided for hereunder shall be in writing, including,
without limitation, facsimile transmission ("FAX") and mailed or
delivered by overnight courier, or transmitted by FAX confirmed in
writing mailed to the addressee, to the applicable party at the addresses
indicated below:
if to DOC:
Xxxxxx Operating Company
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, President
Fax No: 000-000-0000
if to Borrower:
Gila River Telecommunications, Inc.
0000 Xxxx Xxxxxxx Xxxx, Xxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
FAX No.: 000-000-0000
or, as to each party, at such other address as shall be designated by
such parties in a written notice to the other party complying as to
delivery with the terms of this Section. All such notices, requests,
demands and other communication shall be deemed given upon the earlier to
occur of (a) the third day following deposit thereof in the United States
mail, (b) twelve noon local time on the first business day following
timely deposit thereof with an overnight courier service or (c) receipt
by the party to whom such notice is directed.
SECTION 8.07. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of Borrower and DOC and their
respective successors and assigns, except that Borrower shall not have
the right to assign its rights hereunder or any interest herein without
the prior written consent of DOC.
SECTION 8.08. ARBITRATION. Any differences, claims or matters in
dispute arising between the parties out of the interpretation,
performance, breach or enforcement of this Loan Agreement or connected
herewith, that cannot otherwise be resolved by the parties shall be
submitted by them to binding arbitration in accordance with the then
effective commercial arbitration rules of the American Arbitration
Association by an arbitrator mutually agreed upon by the parties, or in
the event of failure to agree upon a single arbitrator, one arbitrator
shall be selected by each party and the arbitrators selected by the
parties shall appoint an additional arbitrator. The decision, award,
determination, order or relief, whether in law or in equity, of the
majority of the arbitrators on such matters shall be final and conclusive
and a judgment on such decision may be entered in any federal or Arizona
court of competent jurisdiction. Such arbitrators shall have no power to
modify or amend any of the provisions of this Loan Agreement and their
jurisdiction is limited accordingly. Any arbitration under this Section
8.08 will occur in Maricopa County, Arizona or such other place as the
parties may agree. Any party requesting arbitration hereunder shall give
notice to the other party ten (10) days prior to requesting arbitration
hereunder.
SECTION 8.09 REORGANIZATION DOCUMENTS. It is understood and agreed
that this Agreement has been entered into in connection with the
transactions contemplated by (i) the Capital Contribution Agreement
("Subscription Agreement") between Gila River Telecommunications, Inc., a
corporation formed pursuant to Gila River Indian Community Resolution
Number 91-175 (the "Corporation") and Associated Telecommunications and
Technologies, Inc. ("ATTI"); (ii) the Stock Redemption Agreement (the
"Redemption Agreement") by and between the Corporation and Gila River
Indian Community ("GRIC"); (iii) the Assignment and Assumption Agreement
(the "Assignment and Assumption Agreement") by and between Xxxxxx
Cellular of Arizona, Inc. ("DCA") and Borrower; (iv) the Second Amended
and Restated Partnership Agreement ("Partnership Agreement") of Gila
River Cellular General Partnership (the "Partnership") by and between
Borrower and DCA; and (v) the Purchase Agreement (the "Purchase
Agreement") by and among Aztel, Inc., the Corporation, U.S. West
NewVector Group, Inc., Tohono X'xxxxx Utility Authority and DCA (the
Subscription Agreement, the Redemption Agreement, Assignment and
Assumption Agreement, the Partnership Agreement and the Purchase
Agreement together, the "Reorganization Documents") and that drafts of
the Reorganization Documents have been provided to the Borrower and DOC.
If any of the transactions contemplated by the Reorganization Documents
should fail to occur, then this Agreement and the transactions
contemplated hereby shall be null and void and of no further force or
effect.
SECTION 8.10. SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 8.11. SECTION HEADINGS. Any Article and Section headings
in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose.
As used in this Agreement, the term "person" shall include any
individual, corporation, partnership, joint venture, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof.
SECTION 8.12. INTEGRATION. This Agreement supersedes all other
prior dealings between the parties hereto and their respective agents,
employees or officers with respect to the credit facilities extended
hereby, and this Agreement, together with the other Loan Documents,
constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof.
IN WITNESS WHEREOF, DOC and Borrower have caused this Agreement to
be duly executed by their duly authorized officers, all as of the day and
year first above written.
XXXXXX OPERATING COMPANY
By XXXXXXX XXXXXX
Xxxxxxx Xxxxxx
Title: President
BORROWER:
GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC.
By XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
Title: President
SCHEDULE OF EXHIBITS
Exhibit A - Form of Secured Term Note
EXHIBIT A
SECURED NON-RECOURSE TERM NOTE
$6,110,554.75 September 30, 1997
FOR VALUE RECEIVED, GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC., a
corporation organized pursuant to Gila River Indian Community Resolution
No. GR-10-97, with an office at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000-0000 ("Borrower"), promises to pay to XXXXXX OPERATING COMPANY, an
Oklahoma corporation ("DOC") or to its order, at its principal office at
00000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, the
principal sum of Six Million One Hundred Ten Thousand Five Hundred Fifty-
four Dollars and seventy-five cents ($6,110,554.75). This Note is the
"Note" referred to in, made pursuant to the terms of, and governed by that
certain Non-Recourse Term Loan Agreement by and between DOC and Borrower of
even date herewith (hereinafter, as amended or otherwise modified from time
to time, the "Loan Agreement"), which Loan Agreement is hereby incorporated
herein as if set forth at length. This Note is entitled to all of the
benefits of the Loan Agreement, including provisions governing the payment
and the acceleration of maturity hereof. This Note is secured, inter alia,
by certain "Security Documents" (as defined in the Loan Agreement) and is
entitled to the benefits thereof. Capitalized terms used herein and not
otherwise defined have the meaning given such terms in the Loan Agreement.
Interest shall accrue on the unpaid principal balance of this Note at
the Base Rate. Principal and interest hereunder is payable as set forth in
Section 2 of the Loan Agreement and the unpaid principal balance and all
accrued and unpaid interest shall be paid on the Maturity Date. All
payments hereon will be applied first to accrued and unpaid interest
hereunder calculated in arrears, and then to the principal balance
outstanding hereunder.
Payments of both principal and interest as required hereunder shall be
made in lawful money of the United States of America in immediately
available funds at the office of DOC set forth above. If any payment of
principal or interest shall become due on a Saturday, Sunday, public
holiday under the laws of the State of Oklahoma or on any other day on
which banking institutions are authorized or obligated by law to close in
Oklahoma City, Oklahoma, such payment shall be made on the next succeeding
business day and such extension of time shall in such case be included in
computing interest in connection with such payment.
If an Event of Default as defined in the Loan Agreement, or in any of
the Security Documents has occurred and is continuing, the entire unpaid
principal balance, and all other sums paid by DOC to or on behalf of
Borrower pursuant to the terms of this Note, the Loan Agreement, the
Security Documents, together with unpaid interest thereon, shall at the
option of DOC become immediately due and payable without further notice or
demand and DOC may forthwith exercise the remedies available to DOC at law
and in equity as well as those remedies set forth in this Note, the Loan
Agreement, the Security Documents and the other Loan Documents and one or
more executions may forthwith issue on any judgment or judgments obtained
by virtue thereof; and no failure on the part of DOC to exercise any of
DOC's rights hereunder or under any other Loan Document shall be deemed a
waiver of any such rights or of any default.
Borrower hereby waives presentment for payment, protest and demand,
and notice of protest, demand and/or dishonor and nonpayment of this Note,
notice of any Event of Default under the Loan Documents except as
specifically provided therein, and all other notices or demands otherwise
required by law that Borrower may lawfully waive. Borrower expressly
agrees that this Note, or any payment hereunder, may be extended from time
to time, without in any way affecting the liability of Borrower. No
unilateral consent or waiver by DOC with respect to any action or failure
to act which, without consent, would constitute a breach of any provision
of this Note shall be valid and binding unless in writing and signed by
DOC.
The rights and obligations of Borrower and all provisions hereof shall
be governed by and construed in accordance with the laws of the State of
Arizona.
Any differences, claims, or matters in dispute arising between the
parties out of the interpretation, performance, breach or enforcement of
this Note or connected herewith, that cannot otherwise be resolved by the
parties shall be submitted by them to binding arbitration in accordance
with the then effective commercial arbitration rules of the American
Arbitration Association by an arbitrator mutually agreed upon the parties,
or in the event of failure to agree upon a single arbitrator, one
arbitrator shall be selected by each party and the arbitrators selected by
the parties shall appoint an additional arbitrator. The decision, award,
determination, order or relief, whether in law or in equity, of the
majority of the arbitrators on such matters shall be final and conclusive
and a judgment on such decision may be entered in any federal or Arizona
court of competent jurisdiction. Such arbitrators shall have no power to
modify or amend any of the provisions of this Note and their jurisdiction
is limited accordingly. Any arbitration will occur in Maricopa County,
Arizona or such other place as the parties may agree. Any part requesting
arbitration hereunder shall give notice to the other party ten (10) days
prior to requesting arbitration hereunder.
All agreements between Borrower and DOC are hereby expressly limited
so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to DOC for the use, forbearance
or detention of the indebtedness evidenced hereby exceed the maximum
permissible under applicable law. As used herein, the term "applicable
law" shall mean the law in effect as of the date hereof, provided, however,
that in the event there is a change in the law which results in a higher
permissible rate of interest, then this Note shall be governed by such new
law as of its effective date. In this regard, it is expressly agreed that
it is the intent of Borrower and DOC in the execution, delivery and
acceptance of this Note to contract in strict compliance with the laws of
the State of Arizona from time to time in effect. If, from any
circumstance whatsoever, fulfillment of any provision hereof or of the Loan
Agreement or the Security Documents at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, the obligation to be fulfilled shall automatically
be reduced to the limit of such validity, and if from any circumstances DOC
should ever receive as interest an amount which would exceed the highest
lawful rate, such amount which would be excessive interest shall be applied
to the reduction of the principal balance evidenced hereby and not to the
payment of interest. This provision shall control every other provision of
all agreements between Borrower and DOC.
If this Note shall not be paid when due and shall be placed by the
holder hereof in the hands of any attorney for collection, through legal
proceedings or otherwise, Borrower will pay a reasonable attorney's fee to
the holder hereof together with reasonable costs and expenses of
collection.
Borrower shall remain primarily liable on this Note and the Security
Documents until full payment, unaffected by any agreement or transaction
between DOC and any subsequent Borrower as to payment of principal,
interest or other moneys, by any forbearance or extension of time, guaranty
or assumption by others, or by any other matter, as to all of which notice
is hereby waived by Borrower.
Notwithstanding any other provision of this Note or the Loan Agreement
to the contrary, it is specifically understood and agreed that the
obligations of the Borrower are without recourse to Borrower or any assets
of the Borrower other than the Collateral and DOC and any other holder of
this Note shall look solely to the Collateral for the satisfaction hereof
and will not seek recourse against Borrower or any of the assets of
Borrower other than the Collateral for the satisfaction hereof.
It is also specifically understood and agreed that this Note has been
entered into in connection with the transactions contemplated by (i) the
Capital Contribution Agreement ("Subscription Agreement") between Gila
River Telecommunications, Inc., a corporation formed pursuant to Gila River
Indian Community Resolution Number 91-175 (the "Corporation") and
Associated Telecommunications and Technologies, Inc. ("ATTI"); (ii) the
Stock Redemption Agreement (the "Redemption Agreement") by and between the
Corporation and Gila River Indian Community ("GRIC"); (iii) the Assignment
and Assumption Agreement (the "Assignment and Assumption Agreement") by and
between Xxxxxx Cellular of Arizona, Inc. ("DCA") and Borrower; (iv) the
Loan Agreement; (v) the Second Amended and Restated Partnership Agreement
("Partnership Agreement") of Gila River Cellular General Partnership (the
"Partnership") by and between Borrower and DCA; and (vi) the Purchase
Agreement (the "Purchase Agreement") by and among Aztel, Inc., the
Corporation, U.S. West NewVector Group, Inc., Tohono X'xxxxx Utility
Authority and DCA (the Redemption Agreement, Assignment and Assumption
Agreement, Loan Agreement, the Partnership Agreement and the Purchase
Agreement together, the "Reorganization Documents") and that drafts of the
Reorganization Documents have been provided to the Borrower and DOC. If
any of the transactions contemplated by the Reorganization Documents should
fail to occur, then this Note and the transactions contemplated hereby
shall be null and void and of no further force or effect.
Borrower acknowledges and agrees that this Note and the Security
Documents are being pledged and assigned by DOC to CoreStates Bank, N.A.,
as Administrative Agent, as collateral security for the obligations of DOC
under the Senior Loan Agreement (as defined in the Loan Agreement) and
agrees to make payments hereunder to the Administrative Agent consistent
with the terms hereof in the event the Administrative Agent enforces its
rights as assignee hereof.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by
its duly authorized officer as of the day and year first above written.
WITNESS: GILA RIVER TELECOMMUNICATIONS
SUBSIDIARY, INC.
__________________________ By: ____________________________________
Title: _________________________
This Note is hereby endorsed in favor of and assigned to CoreStates Bank,
N.A., as Administrative Agent under the Senior Loan Agreement (as defined
in the Loan Agreement)
Attest: XXXXXX OPERATING COMPANY
_________________________ By: __________________________________
