SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) OCTOBER 1, 1997
DOBSON COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
OKLAHOMA 333-23769 73-1110531
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
13439 North Broadway Extension, Suite 200
Oklahoma City, Oklahoma 73114
(Address of principal executive offices) (Zip Code)
(405) 391-8500
(Registrant's telephone number, including area code)
<PAGE>
INFORMATION TO BE INCLUDED IN THE REPORT
Item 2. ACQUISITION OR DISPOSITION OF ASSETS
On October 1, 1997, Dobson Cellular of Arizona, Inc. ("Dobson
Arizona"), a wholly owned subsidiary of Dobson Communications Corporation
(the "Company"), acquired a 75% interest in Gila River Cellular General
Partnership, an Arizona partnership (the "Partnership"). At the same time,
Gila River Telecommunications Subsidiary, Inc. ("GRTSI"), a wholly owned
subsidiary of the Gila River Indian Community ("GRIC"), acquired a 25%
interest in the Partnership. The Partnership owns the cellular license and
system for the Arizona 5 RSA. It will continue to provide cellular service
under the AIRTOUCH<trademark> CELLULAR name to an estimated population of
188,000 between Phoenix and Tucson, Arizona. Dobson Arizona is the
operating manager of the Partnership.
The total purchase price paid by the Company and GRTSI for the
Partnership was $53.1 million. The sellers were the former partners of the
Partnership: Gila River Telecommunications, Inc. ("GRTI") (41.95%), Aztel,
Inc. (22.25%), the Tohono O'odham Utility Authority (22.25%), and U S West
NewVector Group, Inc. (13.55%).
The Company acquired its 75% interest in the Partnership for a
total consideration of $39.8 million. Of this amount, $17.5 million was
paid to the sellers other than GRTI. The Company acquired the fourth
seller, GRTI, through a series of transactions. First, the Company
purchased all the outstanding stock of Associated Telecommunications and
Technologies, Inc. ("ATTI") for $14.2 million. As of October 1, 1997,
ATTI's only asset was a 49% interest in GRTI. Previously owned assets had
been distributed to ATTI's shareholders. Russell L. Dobson, a director
of the Company, and Everett R. Dobson, the chief executive officer and
chairman of the board and the principal shareholder of the Company, who
together beneficially owned two-thirds of ATTI's outstanding stock, received
$9.5 million of the purchase price for the ATTI stock. Contemporaneously,
the Company received the following payments on outstanding loans: $446,000
from Russell L. Dobson, $1.9 million from Everett R. Dobson, and $1.9
million from ATTI and its subsidiary.
Following the Company's acquisition of ATTI, the Company made an
$8.1 million capital contribution to ATTI, which then contributed the same
amount to the capital of GRTI. GRTI then used such funds, together with
other consideration, to redeem all of its shares held by GRIC, leaving ATTI
as the sole shareholder of GRTI. GRTI also transferred its wireline
telephone assets to GRTSI, and GRTSI assumed all related liabilities. All
liabilities of GRTI and GRTSI to the Rural Telephone Bank and Rural
Utilities Service, Inc., as administrator ($10.9 million principal amount
as of October 1, 1997), with respect to the transferred assets have been
guaranteed by the Company for a period expected not to exceed 90 days.
At the conclusion of these transactions, GRTI and Dobson Arizona were
merged.
The Company financed $6.1 million of the $13.3 million purchase
price paid by GRTSI for its 25% interest in the Partnership. The non-
recourse loan is secured by GRTSI's interest in the Partnership with
interest and principal payable as and to the extent GRTSI receives
distributions from the Partnership; provided that from and after September
30, 1998, only 60% of GRTSI's Partnership distributions will be payable on
the loan. All remaining principal and accrued interest will be payable on
the earlier of December 31, 2013 or the sale of the Partnership. Interest
accrues on the loan at the same rate paid by the Company under its bank
facility.
The Company funded all payments made in connection with the
Partnership acquisition by borrowings under its existing bank facility, for
which CoreStates Bank, N.A., First Union National Bank of North Carolina
and Nationsbank of Texas, N.A. are agents.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements of Businesses Acquired
The audited financial statements of the Partnership as of and for
the year ended December 31, 1996 and the unaudited 1997 interim financial
statements of the Partnership will be filed by amendment to this report on
or before December 15, 1997.
(b) Pro Forma Financial Information
The unaudited pro forma financial statements required pursuant to
Article 11 of Regulation S-X will be filed by amendment to this report on
or before December 15, 1997.
(c) Exhibits
The following exhibits are filed as a part of this report:
Exhibit
NO. DESCRIPTION
2.1 Purchase Agreement dated February 28, 1997 among Aztel,
Inc., Gila River Telecommunications, Inc., U S West New
Vector Group, Inc., Tohono O'odham Utility Authority and
Dobson Cellular of Arizona, Inc. Incorporated herein by
reference to Exhibit 10.5.3 to the Company's Registration
Statement on Form S-4 (No. 333-23769)
2.1.1 First Amendment to Purchase Agreement dated August 29, 1997
2.2 Stock Purchase Agreement dated September 30, 1997 among
Dobson Operating Company, Associated TTI Limited Partnership
and Hinton CATV relating to the Company's purchase of the
ATTI stock
10.7 Non-Recourse Term Loan Agreement dated September 30, 1997
between the Company and Gila River Telecommunications
Subsidiary, Inc., as borrower, with respect to $6.1 million
loan
10.8 Second Amended and Restated Partnership Agreement of Gila
River Cellular General Partnership dated September 30, 1997
99 Press release dated October 6, 1997 announcing the Company's
acquisition of its interest in the Partnership
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: October 15, 1997 Dobson Communications Corporation
(Registrant)
By EVERETT R. DOBSON
Everett R. Dobson
Chairman of the Board and
Chief Executive Officer
By BRUCE R. KNOOIHUIZEN
Bruce R. Knooihuizen
Vice President and Chief
Financial Officer
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION METHOD OF FILING
<S> <C> <C>
2.1 Purchase Agreement dated February Incorporated herein by
28, 1997 among Aztel, Inc., Gila reference
River Telecommunications, Inc.,
U S West New Vector Group, Inc.,
Tohono O'odham Utility Authority
and Dobson Cellular of Arizona,
Inc.
2.1.1 First Amendment to Purchase Filed herewith
Agreement dated August 29, 1997 electronically
2.2 Stock Purchase Agreement dated Filed herewith
September 30, 1997 among Dobson electronically
Operating Company, Associated TTI
Limited Partnership and Hinton
CATV relating to the Company's
purchase of the ATTI stock
10.7 Non-Recourse Term Loan Agreement Filed herewith
dated September 30, 1997 between electronically
the Company and Gila River
Telecommunications Subsidiary,
Inc., as borrower, with respect
to $6.1 million loan
10.8 Second Amended and Restated Filed herewith
Partnership Agreement of Gila electronically
River Cellular General Partnership
dated September 30, 1997
99 Press release dated October 6, Filed herewith
1997 announcing the Company's electronically
acquisition of its interest in
the Partnership
</TABLE>
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT is made and entered into as
of the 29th day of August 1997, by and among AZTEL, INC., an Arizona
corporation ("Aztel"), GILA RIVER TELECOMMUNICATIONS, INC., a corporation
organized pursuant to Gila River Indian Community Resolution Number GR-101-
88 ("Gila"), U S WEST NEWVECTOR GROUP, INC., a Colorado corporation
("NewVector"), TOHONO O'ODHAM UTILITY AUTHORITY, a subsidiary organization
of the Tohono O'odham Nation, duly organized pursuant to a Plan of
Operation approved by Resolution No. 91-175 of the Tohono O'odham
Legislative Council ("TOUA") (TOUA, NewVector, Gila and Aztel may sometimes
hereinafter be referred to individually as a "Seller" and collectively as
the "Sellers"), and DOBSON CELLULAR OF ARIZONA, INC., an Oklahoma
corporation (the "Purchaser").
W I T N E S S E T H:
WHEREAS, the Purchaser and Sellers entered into that certain Purchase
Agreement dated February 28, 1997 (the "Purchase Agreement") pursuant to
which the Sellers agreed to sell all of the Interests (as defined in the
Purchase Agreement) on the terms and conditions set forth in the Purchase
Agreement; and
WHEREAS, the Purchaser and the Sellers desire to amend the Purchase
Agreement as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein set forth, the parties hereto agree as follows:
1. Clause (ii) of Section 22(a) of the Purchase Agreement is hereby
amended in its entirety to read as follows:
"(ii) may be terminated by either Purchaser or any two of the
Sellers if the Closing shall not have occurred on or before November
15, 1997 by reason of the failure of any of the conditions set forth
in Sections 6.6 or 7.5 to be satisfied by such date, provided Sellers
or Purchaser, as the case may be, shall not have the right to so
terminate this Agreement if such party's breach of this Agreement
contributed in any material way to the failure of such conditions to
be satisfied;"
2. Except as amended hereby, the Purchase Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused this
First Amendment to Purchase Agreement to be executed by their duly
authorized representatives as of the day and year first written above.
PURCHASER:
DOBSON CELLULAR OF ARIZONA, INC.
By EVERETT DOBSON
Everett Dobson
President
SELLERS:
AZTEL, INC.
By LEROY T. CARLSON
Title: Authorized Representative
GILA RIVER TELECOMMUNICATIONS, INC.
By ROBERT PORTER
Title: Chairman
U S WEST NEWVECTOR GROUP, INC.
By TIMOTHY A. SAMPLES
Title: Vice President Domestic Wireless
Operations and Investment
TOHONO O'ODHAM UTILITY AUTHORITY
By CHARLES W. WIESE
Title: General Manager
STOCK PURCHASE AGREEMENT
AGREEMENT made as of the 30th day of September, 1997 by and among
Dobson Operating Company ("Buyer") and Associated TTI Limited Partnership
and Hinton CATV Company, Inc. (each individually, a "Seller" and
collectively, the "Sellers").
1. PURCHASE AND SALE. Subject to the terms and conditions set forth in
this Agreement, Sellers hereby convey, sell, and assign to Buyer, and
Buyer hereby purchases the shares of the common stock, par value $.01
per share, of Associated Telecommunications and Technologies, Inc., an
Oklahoma corporation (the "Corporation") in the amounts set out
opposite each Seller's name on SCHEDULE A hereto ("Sale Shares").
2. PURCHASE PRICE. The purchase price for the Sale Shares is Fourteen
Million Two Hundred Twenty Two Thousand Four Hundred Seventy
($14,222,470) Dollars (the "Purchase Price"), which is being paid as
provided in SECTION 3(B) of this Agreement.
3. CLOSING. The parties have executed or caused to be executed and
delivered the following documents and have effected the following
transactions contemporaneously with the execution and delivery of this
Agreement ("Closing"):
(a) Sellers have delivered to Buyer certificates representing the
Sale Shares and a duly executed stock assignments separate from the
certificates transferring the Sale Shares to Buyer; and
(b) Buyer has delivered to each Seller good collected funds in the
amount set out opposite its name on SCHEDULE A hereto, totaling
Fourteen Million Two Hundred Twenty Two Thousand Four Hundred Seventy
($14,222,470) Dollars.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Each Seller individually
represents and warrants to Buyer that:
(a) Seller has full power, authority and capacity to execute this
Agreement and perform the transactions required of it at the
Closing.
(b) Seller's execution, delivery and performance of this Agreement,
and the execution and delivery of the documents delivered
and transactions effected by it at the Closing violate no contract,
agreement, order, judgment or the like that is binding on
Seller or the enforcement of which is threatened by any pending or
anticipated litigation, hearing or investigation.
(c) Seller has not utilized any finder or broker in connection with
this Agreement or the sale of the Sale Shares to Buyer.
(d) Seller is the owner of record and the sole beneficial owner of
the Sale Shares set out opposite its name on SCHEDULE A hereto.
(e) The Sale Shares will be transferred to Buyer free and clear of
all liens, encumbrances, security interests and claims of
third parties.
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants
to Sellers that:
(a) Buyer has full power, authority and capacity to execute this
Agreement and perform the transactions required of it at the Closing.
(b) Buyer's execution, delivery and performance of this Agreement, and
the execution and delivery of the documents delivered and transactions
effected by it at the Closing violate no contract, agreement, order,
judgment or the like that is binding on Buyer or the enforcement of
which is threatened by any pending or anticipated litigation, hearing
or investigation.
(c) Buyer has not utilized any finder or broker in connection with this
Agreement or the purchase of the Sale Shares from Sellers.
(d) The Sale Shares are being acquired for Buyer's own account, and
not with a view of their resale, distribution or division among others.
(e) Buyer is aware of the business and financial condition of the
Corporation, has been afforded access to the corporate and financial
books and records of the Corporation and has no unanswered questions
concerning the Corporation.
6. INDEMNIFICATION. Each Seller and Buyer agrees to defend, indemnify
and hold harmless the other from and against any breach of the
respective party's warranties and representations set forth above.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each party shall survive the Closing.
8. MISCELLANEOUS. This Agreement: (a) may be executed in any number of
counterparts, each of which, when executed by both parties to this
Agreement, shall be deemed to be an original, and all of which
counterparts together shall constitute one and the same instrument;
(b) shall be governed by and construed under the laws of the State of
Oklahoma applicable to contracts made, accepted, and performed wholly
within Oklahoma, without application of principles of conflicts of
laws; (c) constitutes the entire agreement of the parties with
respect to its subject matter, superseding all prior oral and written
communications, proposals, negotiations, representations,
understandings, courses of dealing, agreements, contracts, and the
like between the parties in such respect; (d) may be amended,
modified, or terminated, and any right under the Agreement may be
waived in whole or in part, only by a writing signed by both parties;
(e) contains headings only for convenience, which headings do not
form part, and shall not be used in construction, of this Agreement;
and (f) shall bind and inure to the benefit of the parties and their
respective legal representatives, heirs, successors and assigns.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
SELLERS:
ASSOCIATED TTI LIMITED PARTNERSHIP
By: EVERETT DOBSON
Name: Everett Dobson
Title: General Partner
Address: 13439 N. Broadway Extension
Oklahoma City, OK 73114
<PAGE>
HINTON CATV COMPANY, INC.
By: KENNETH DAUGHTY
Name: Kenneth Daughty
Title: Secretary-Treasurer
Address: P.O. Box 70
Hinton, Oklahoma 73047
BUYER:
DOBSON OPERATING COMPANY
By: EVERETT DOBSON
Name: Everett Dobson
Title: President
Address: Dobson Operating Company
13439 N. Broadway Extension
Oklahoma City, OK 73114
<PAGE>
SCHEDULE A
SELLER NUMBER OF SALE SHARES
Associated TTI Limited Partnership 670
Hinton CATV Company, Inc. 330
NON-RECOURSE TERM LOAN AGREEMENT
NON-RECOURSE TERM LOAN AGREEMENT ("Agreement") made as of the 30th
day of September, 1997 by and between DOBSON OPERATING COMPANY, an
Oklahoma corporation with its principal office at 13439 North Broadway
Extension, Oklahoma City, Oklahoma 73114 ("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 7065 West Allison Road, Box 5015, Chandler, Arizona 85226, 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 Dobson
Communications of Arizona, Inc. dated as of September 30, 1997 (the
former partners of which were U.S. West New Vector Group, Inc.,
Tohono O'Odham 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
O'Connor, Cavanagh, Anderson, Killingsworth & Beshears, 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:
Dobson Operating Company
13439 North Broadway Extension
Oklahoma City, Oklahoma 73114
Attention: Everett Dobson, President
Fax No: 405-391-8515
if to Borrower:
Gila River Telecommunications, Inc.
7065 West Allison Road, Box 5015
Chandler, AZ 85226
Attention: Robert Porter
FAX No.: 520-796-7534
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 Dobson
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 O'odham 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.
DOBSON OPERATING COMPANY
By EVERETT DOBSON
Everett Dobson
Title: President
BORROWER:
GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC.
By DARRELL GERLAUGH
Darrell Gerlaugh
Title: President
<PAGE>
SCHEDULE OF EXHIBITS
Exhibit A - Form of Secured Term Note
<PAGE>
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 7065 West Allison Road, Chandler, Arizona
85226-5135 ("Borrower"), promises to pay to DOBSON OPERATING COMPANY, an
Oklahoma corporation ("DOC") or to its order, at its principal office at
13439 North Broadway Extension, Oklahoma City, Oklahoma 73114, 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 Dobson 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 O'odham 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: DOBSON OPERATING COMPANY
_________________________ By: __________________________________
SECOND AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
OF
GILA RIVER CELLULAR GENERAL PARTNERSHIP
between
GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC.
and
DOBSON CELLULAR OF ARIZONA, INC.
Date: September 30, 1997
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I FORMATION OF PARTNERSHIP.........................2
1.1 Formation........................................2
1.2 Name and Office..................................2
1.3 Business Purpose.................................3
1.4 Approval and Effectiveness of the Agreement......3
ARTICLE II DEFINITIONS......................................3
2.1 Acquisition Costs................................3
2.2 Affiliate........................................4
2.3 Capital Account..................................4
2.4 Capital Contribution.............................4
2.5 Cell(s)..........................................4
2.6 Cellular Radio Decisions.........................4
2.7 Cellular Service.................................4
2.8 CGSA.............................................5
2.9 Income and Losses................................5
2.10 Majority Vote....................................5
2.11 Partnership Interest.............................5
2.12 RSA..............................................5
2.13 System Manager...................................5
2.14 Unanimous Vote...................................6
2.15 Voting Rights....................................6
ARTICLE III REGULATORY MATTERS...............................6
3.1 Contingency......................................6
3.2 Cooperation......................................6
3.3 Conflicts of Interest............................6
ARTICLE IV PARTNERSHIP OWNERSHIP, MANAGEMENT
AND OPERATIONS.................................7
4.1 Partnership Interests............................7
4.2 Management and Operating Services................7
4.3 Operating and Management Expenses................8
4.4 Ownership of Properties..........................8
4.5 Licenses.........................................9
4.6 Resale of Cellular Service.......................9
4.7 Cellular Service in Other Areas..................9
4.8 Voting...........................................9
ARTICLE V CAPITALIZATION OF PARTNERSHIP....................10
5.1 Capital Accounts.................................10
5.2 Form of Capital Contributions....................10
5.3 Non-Withdrawal of Capital Contribution...........10
5.4 No Interest on Capital Contributions.............11
5.5 No Priority......................................11
ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS....................11
6.1 Allocations Among Partners.......................11
6.2 Distributions....................................11
ARTICLE VII RIGHTS AND POWERS OF PARTNERSHIP AND PARTNERS....12
7.1 Partnership Powers...............................12
7.2 Partners' Meetings...............................13
7.3 Rights of the Partners...........................13
7.4 Actions Requiring Unanimous Vote of Partners.....14
7.5 Ownership or Conduct of Other Businesses.........14
ARTICLE VIII OBLIGATIONS OF SYSTEM MANAGER....................15
8.1 Duties...........................................15
8.2 Filings..........................................17
8.3 Maintenance of Accounts..........................17
8.4 Financial Reports................................17
8.5 Performance of Partnership Obligations...........18
ARTICLE IX BANKING, ACCOUNTING, BOOKS AND RECORDS...........18
9.1 Banking..........................................18
9.2 Accounting Method; Books and Records.............18
9.3 Fiscal Year; Partnership Tax Returns.............18
ARTICLE X TRANSFER OF PARTNER'S INTEREST...................19
10.1 Assignment.......................................19
10.2 Withdrawal.......................................19
10.3 Right of First Refusal...........................20
10.4 Rights of New Partner............................21
10.5 No Assignments or Transfers Allowed Under
Certain Circumstances..........................21
10.6 Further Transfers................................22
ARTICLE XI DISSOLUTION AND TERMINATION OF PARTNERSHIP.......22
11.1 Dissolution......................................22
11.2 Cessation of Existence of a Partner..............23
11.3 Distribution upon Dissolution....................23
11.4 Distributions in Cash or in Kind.................24
11.5 Time for Liquidation.............................25
11.6 Termination......................................25
11.7 Partners not Liable for Return of Distribution...25
ARTICLE XII EXCULPATION AND INDEMNIFICATION..................25
12.1 Exculpation of Partners and System Manager.......25
12.2 Indemnification of Partners and System Manager...25
12.3 Indemnification to Partnership and Partners......26
ARTICLE XIII AMENDMENTS.......................................26
ARTICLE XIV TECHNOLOGY AND INFORMATION.......................26
14.1 Technology License...............................26
14.2 Proprietary Information..........................27
ARTICLE XV MISCELLANEOUS PROVISIONS.........................28
15.1 Warranties.......................................28
15.2 Table of Contents and Headings...................28
15.3 Successors and Assigns...........................28
15.4 Severability.....................................28
15.5 Non-Waiver.......................................28
15.6 Applicable Law...................................29
15.7 Notices..........................................29
15.8 Amended Certificates of Partnership..............30
15.9 Further Assistance...............................30
15.10 Attorneys' Fees.................................30
15.11 Remedies........................................31
15.12 Arbitration.....................................31
15.13 Counterparts....................................32
<PAGE>
SECOND AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
THIS SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT dated as of the
30th day of September, 1997, by and between DOBSON CELLULAR OF ARIZONA,
INC., a corporation organized and existing under the laws of the State of
Oklahoma, and having its principal place of business at 13439 North
Broadway Extension, Suite 200, Oklahoma City, Oklahoma 73114 ("Dobson"),
and GILA RIVER TELECOMMUNICATIONS SUBSIDIARY, INC., which after the date
hereof will be known as Gila River Telecommunications, Inc., a corporation
duly organized pursuant to GRIC Resolution No. 10-97 of the Gila River
Indian Community, and having its principal place of business at 7065 West
Allison Road, Box 5015, Chandler, Arizona 85226 ("GRT"). Dobson and GRT
are herein sometimes collectively referred to as the "Partners".
WITNESSETH:
WHEREAS, U S WEST NewVector Group, Inc. ("NewVector"), Tohono O'odham
Utility Authority ("TOUA"), Gila River Telecommunications, Inc. ("Former
GRTI"), and AZTEL, INC. ("AZTEL") entered into that certain Partnership
Agreement of GILA RIVER CELLULAR GENERAL PARTNERSHIP (the "Partnership")
dated as of September 1, 1990, as amended and restated in its entirety
pursuant to that certain Amended and Restated Partnership Agreement of the
Partnership dated as of October 13, 1994 (as amended and restated prior to
the date hereof, the "Partnership Agreement"); and
WHEREAS, pursuant to that certain Purchase Agreement dated as of
February 28, 1997 (the "Purchase Agreement") by and among Dobson,
NewVector, TOUA, Former GRTI and AZTEL, Dobson and GRT, as an assignee of a
portion of Dobson's purchase rights under the Purchase Agreement, purchased
all of the outstanding Partnership Interests (as defined in the Purchase
Agreement) and Voting Rights Interests (as defined in the Purchase
Agreement) of the Partnership from NewVector, TOUA, Former GRTI and AZTEL;
and
WHEREAS, contemporaneously with the purchase described in the
paragraph immediately above, Dobson and GRT desire to amend and restate the
Partnership Agreement in its entirety in order to reflect, among other
matters, the Partners' understandings with respect to the continued
operation of the Partnership and the continued provision of Cellular
Service within the RSA.
NOW, THEREFORE, it is mutually agreed that:
ARTICLE I
FORMATION OF PARTNERSHIP
1.1 FORMATION. The Partners mutually covenant and agree and hereby
do form a general partnership pursuant to the provisions of the Uniform
Partnership Act of the State of Arizona (the "Act").
1.2 NAME AND OFFICE.
(a) NAME. The name of the Partnership is GILA RIVER CELLULAR
GENERAL PARTNERSHIP and its business shall be carried on in its name with
such variations and changes as the Partners deem necessary to comply with
requirements of the jurisdictions in which operations are conducted or as
the Partners deem necessary to change for any reasonable business purpose.
(b) PLACE OF BUSINESS. The principal place of business and the
registered office of the Partnership shall be at c/o CT Corporation System,
3225 North Central Avenue, Phoenix, Arizona 85012, or such other location
as the Partnership may from time to time select.
(c) REGISTERED AGENT. The name of the agent for service of the
Partnership and its address are CT Corporation System, 3225 North Central
Avenue, Phoenix, Arizona 85012, or such other qualified person and address
as the Partnership may from time to time select.
1.3 BUSINESS PURPOSE. The purpose of the Partnership shall be to
fund, establish and provide Cellular Service within the RSA and to perform
all other lawful acts as may be necessary or advisable in connection
therewith or reasonably related thereto.
1.4 APPROVAL AND EFFECTIVENESS OF THE AGREEMENT. To the extent
necessary from time to time, the Partnership shall submit this Partnership
Agreement to all appropriate local, state, federal and tribal governmental
and regulatory authorities for review and/or approval. The Partners shall
reasonably support the Partnership's interests in obtaining the review
and/or approval of this Partnership Agreement before any governmental
and/or regulatory authorities. The Partnership shall continue until
December 31, 2099, or until earlier terminated by the terms of this
Partnership Agreement, the FCC or as otherwise provided by law.
ARTICLE II
DEFINITIONS
2.1 ACQUISITION COSTS. All costs of acquiring an asset (excluding
Partnership Interests) plus any interest cost properly capitalized in
accordance with the Financial Accounting Standards Board - Standard No. 34.
2.2 AFFILIATE. A person, association, co-partnership, partnership,
corporation or joint-stock company or trust (hereinafter collectively
"person") that directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with a Partner.
Control shall be defined as (i) ownership of a majority (i.e., more than
fifty percent (50%)) of the voting power of all classes of voting stock or
(ii) ownership of a majority of the beneficial interests in income and
capital of an entity other than a corporation.
2.3 CAPITAL ACCOUNT. The respective accounts established and
maintained for each Partner pursuant to Section 5.1.
2.4 CAPITAL CONTRIBUTION. Funds paid by a Partner to the Partnership
pursuant to Article V to this Partnership Agreement including amounts paid
by any former owner of the Partnership Interest held by such Partner.
2.5 CELL(S). The cellular transmitting/receiving location defined by
thirty-two (32) dBu coverage, or such other mathematical calculations as
approved by the Federal Communications Commission (the "FCC") from time to
time.
2.6 CELLULAR RADIO DECISIONS. The FCC orders made in CELLULAR
COMMUNICATIONS SYSTEMS, 86 FCC 2d 469 (1981) as modified and in CELLULAR
RECONSIDERATION ORDER, 89 FCC2d 58 (1982).
2.7 CELLULAR SERVICE. Any and all service and equipment and its
differentiated goods and services authorized by the FCC under Part 22 of
its cellular rules as promulgated under the Cellular Radio Decisions, as
modified or amended from time to time, and provided pursuant to the terms
of this Partnership Agreement.
2.8 CGSA. The Cellular Geographic Service Area as initially
designated in the attached APPENDIX A, which is generally contained within
the boundaries of RSA Market No. 322, Arizona 5 - Gila, and any and all
other areas within the RSA to which the Partners agree from time to time.
2.9 INCOME AND LOSSES. The income and losses of the Partnership for
Federal income tax purposes as of the close of the Partnership's fiscal
year or any other fiscal period, as well as, where the context requires,
each Federal tax item of capital gain or loss, tax preference and credits.
2.10 MAJORITY VOTE. A vote approving an action or approving not to
take an action of those Partners who, in the aggregate, exercise at least
fifty-one percent (51%) of the Voting Rights in the Partnership.
2.11 PARTNERSHIP INTEREST. The entire ownership interest of a Partner
in the Partnership at any particular time determined in accordance with
Section 4.1 below. Such interest includes, without limitation, the
interest of the Partner to participate in the Partnership's Income and
Losses.
2.12 RSA. The RSA Market No. 322, Arizona 5 - Gila Rural Service
Area.
2.13 SYSTEM MANAGER. The party selected by a Majority Vote of all of
the Partners as being responsible for the management and operation of
Cellular Service for the Partnership. Until a successor System Manager is
appointed by Majority Vote, System Manager shall be Dobson.
2.14 UNANIMOUS VOTE. A vote approving an action or approving not to
take action of those Partners who, in the aggregate, exercise one hundred
percent (100%) of the Voting Rights of the Partnership.
2.15 VOTING RIGHTS. The rights of a Partner to vote on Partnership
matters as further described in Section 4.8.
ARTICLE III
REGULATORY MATTERS; CONFLICTS
3.1 CONTINGENCY. The permits or licenses to be issued to the
Partnership by regulatory authorities in connection with the provision of
Cellular Service may be contingent during the pendency of litigation or
regulatory action concerning the present wireline allocation; however, the
pendency of such litigation or regulatory action shall not affect the
Partners' obligations under this Partnership Agreement.
3.2 COOPERATION. The Partners pledge their best efforts and mutual
cooperation to permit the Partnership to (i) continue to operate and
maintain a fully integrated and technically seamless Cellular Service
system throughout the RSA and (ii) continue to obtain all necessary
approvals to provide Cellular Service consistent with this Partnership
Agreement.
3.3 CONFLICTS OF INTEREST. Each Partner agrees not to, directly or
indirectly, through an Affiliate, shareholder, officer or director, engage
in or possess an interest in any other Cellular Service provider to the RSA
so long as such Partner owns any Partnership Interest in the Partnership.
The ownership of less than 2% of the outstanding shares of a public company
which provides such service shall not be deemed to violate this Section
3.3.
ARTICLE IV
PARTNERSHIP OWNERSHIP, MANAGEMENT AND OPERATIONS
4.1 PARTNERSHIP INTERESTS. Each Partner's current Partnership
Interest and share of Income and Losses is as follows:
Dobson: 75%
GRT: 25%
4.2 MANAGEMENT AND OPERATING SERVICES. The System Manager, on behalf
of the Partnership and under the supervision of the Partners, shall be
responsible for obtaining interconnection with the landline network, for
constructing, operating and maintaining the Cellular Service system, for
marketing Cellular Service, as further described in Article VIII and for
funding all working capital and capital expenditures of the Partnership in
accordance with Section 4.3 below. In carrying out the Partnership's
responsibility to provide Cellular Service, the Partners hereto agree that
the System Manager shall perform all day-to-day activities and/or functions
as the Partners may designate as necessary or appropriate to market, sell,
establish, operate, maintain and manage the Cellular Service system. All
Partners agree to aid the System Manager in the performance of such
activities and functions. It is understood that the Partnership shall
directionalize and coordinate appropriate cells, and/or utilize reasonable
and practicable accounting divisions and traffic allocations, to accomplish
the result of equitably segregating the Partnership's cell site traffic
(and its respective profits and losses) from adjacent system traffic and
individual Partner's cell site traffic within the RSA (and the respective
profits and losses attributable to the individual Partner's cell site
traffic.
4.3 OPERATING AND MANAGEMENT EXPENSES. The System Manager shall be
reimbursed by the Partnership monthly, or at such other longer periods as
the Partnership deems appropriate, for any reasonable and necessary
expenses incurred by the System Manager on behalf of the Partnership in
providing Cellular Service in accordance with the terms of this Partnership
Agreement, plus reasonable and necessary administrative and general
overhead expenses, including, but not limited to, marketing, maintenance,
message charges, facilities, engineering, data processing, legal,
accounting and audit fees, development and implementation of billing
procedures, expenses of preparing tax returns and reports, taxes, travel,
office rent, telephone, salaries (including social security, relief,
pensions and other benefits) and other incidental business expenses
incurred by the System Manager on behalf of the Partnership in connection
with the provision of Cellular Service in accordance with the terms of this
Partnership Agreement. To the extent funds are expended by the System
Manager which are to be reimbursed to it by the Partnership, the same shall
be treated as a loan from the System Manager to the Partnership, bearing
interest at a per annum rate no greater than the System Manager's composite
cost of money from time to time, with the loan commencing thirty (30) days
after the date of billing to the Partnership and terminating at the date of
reimbursement.
4.4 OWNERSHIP OF PROPERTIES. The Partnership shall acquire and hold
in its name, directly or through license, all real and personal property,
equipment, permits, contractual agreements, software and all other assets
required by the Partnership to provide Cellular Service based upon a
cellular system financed, implemented and operated by the Partnership as
opposed to any Partner or Partners.
4.5 LICENSES. The System Manager shall, on behalf of the
Partnership, (a) cause to be transferred to the Partnership's name all
licenses, permits and other regulatory approvals (if any) in the name of
the System Manager and necessary to provide Cellular Service; and (b) if
other local, state or Federal licenses, permits, certificates of
convenience, franchises or other approvals or authorities are necessary to
provide Cellular Service, make application therefor, on behalf of the
Partnership, to the appropriate authority.
4.6 RESALE OF CELLULAR SERVICE. Nothing herein shall preclude any
Partner or an Affiliate thereof from reselling Cellular Service, or from
selling or leasing terminal equipment used in connection with Cellular
Service, independently from the Partnership, whether within or outside the
RSA. No such Partner nor any Affiliate thereof shall be funded or staffed
by the Partnership for such resale activity, and any transactions between
such Partner or any such Affiliate and the Partnership shall be on arms-
length basis and on prices, terms and conditions equivalent to the prices,
terms and conditions of any agreements by Partnership and other resellers
of Cellular Service.
4.7 CELLULAR SERVICE IN OTHER AREAS. Nothing herein shall preclude a
Partner or any Affiliate or stockholder thereof from providing Cellular
Service independently from the Partnership in areas other than the RSA.
4.8 VOTING. The Voting Rights of each Partner shall be proportionate
to such Partner's Capital Account as of the date hereof as set out on ANNEX
B. Dobson shall be entitled to cast three (3) votes and GRT shall be
entitled to cast one (1) vote on all matters submitted to a vote of the
Partners. There shall be a total of four (4) votes to be cast on all
Partnership matters. Except as specified in Section 7.4 and Article XIII,
a Majority Vote shall be required on all matters submitted to the Partners
for a vote. Except as otherwise provided herein, any vote required of the
Partners under this Partnership Agreement may be taken without a meeting if
a consent in writing, setting forth the action so taken, is signed by the
Partners having not less than the minimum vote that would be necessary to
authorize or take that action.
ARTICLE V
CAPITALIZATION OF PARTNERSHIP
5.1 CAPITAL ACCOUNTS. An individual capital account ("Capital
Account") shall be established and maintained for each Partner. The
Capital Contributions made or deemed made by each Partner and the capital
account of each Partner as of the date of the consummation of the
transactions contemplated by the Purchase Agreement are agreed to be the
respective amounts set forth on ANNEX B hereto. Each such Capital Account
shall be (a) increased by such Partner's allocable share of income and
gain, and (b) decreased by such Partner's allocable share of distributions
and Partnership deductions, expenses and losses. Notwithstanding anything
contained herein to the contrary, the Capital Accounts of the Partners
shall be determined and maintained throughout the term of the Partnership
in accordance with the capital accounting rules of Treasury Regulation
Section 1.704-(b)(2)(iv).
5.2 FORM OF CAPITAL CONTRIBUTIONS. Funding of all Capital
Contributions to the Partnership shall be in cash and not real or personal
property.
5.3 NON-WITHDRAWAL OF CAPITAL CONTRIBUTIONS. Except upon dissolution
and liquidation of the Partnership or as otherwise provided herein, no
Partner shall have the right to withdraw its Capital Contributions.
5.4 NO INTEREST ON CAPITAL CONTRIBUTION. No Partner shall be
entitled to interest of any kind on account of its Capital Contributions.
5.5 NO PRIORITY. Except as otherwise provided herein, no Partner
shall have priority over any other Partner as to return of its Capital
Contributions or as to distributions.
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
6.1 ALLOCATIONS AMONG PARTNERS. All Income and Losses of the
Partnership shall be apportioned ratably to each day of the Partnership's
taxable year and each day's share of such items shall be allocated to the
Partners in proportion to their respective Partnership Interests on such
days.
6.2 DISTRIBUTIONS. Funds of the Partnership from all sources, less
appropriate reserves as are determined by the System Manager to be
reasonably necessary to fund Acquisition Costs, necessary construction,
expansion, management or operation of the Cellular Service and for future
administrative and operating expenses, loan payments and other costs and
expenses and contingencies, shall be distributed on a fiscal quarterly
basis as promptly as practicable after the end of each quarter but in no
event later than 60 days' after the end of each quarter. Each distribution
pursuant to this Section 6.2 shall be made to the Partners in proportion to
their respective Partnership Interests during the period to which the
distribution applies, subject to the provisions of Section 5.1.
ARTICLE VII
RIGHTS AND POWERS OF PARTNERSHIP
AND PARTNERS
7.1 PARTNERSHIP POWERS. In furtherance of the business purpose
specified in Section 1.3, the Partnership shall be empowered to do or cause
to be done any and all acts reasonably deemed by the Partners to be
necessary or appropriate in furtherance of the purposes of the Partnership
or forebear from doing any act if the Partners reasonably deem such
forbearance necessary or appropriate in furtherance of the Partnership,
including, without limitation, the power and authority:
(a) To enter into, perform and carry out contracts and
agreements of every kind necessary or incidental to the accomplishment of
the Partnership's purposes, including, without limitation, contracts and
agreements with a Partner and any Affiliates of any Partner, and to take or
omit such other or further action in connection with the Partnership's
business as may be necessary or desirable in the opinion of the System
Manager to further the purposes of the Partnership; provided, however, that
if any goods or services are to be provided to the Partnership by any
Partner or any Affiliates of any Partner not expressly provided for
hereunder, such goods or services shall be at rates or prices no less
favorable to the Partnership than from unrelated third parties in the
business of providing comparable goods or services;
(b) To borrow from banks and other lenders on such terms and
conditions as shall be approved by the System Manager and to secure any
such borrowings by mortgaging, pledging or assigning assets and revenues of
the Partnership to the extent deemed necessary or desirable by the System
Manager;
(c) To invest such funds as are temporarily not required for
Partnership purposes in short-term debt obligations selected by the System
Manager, including government securities, certificates of deposit of
commercial banks (domestic or foreign), commercial paper, bankers'
acceptances and other money market instruments;
(d) To accept loans from any Partner, that such loans may bear
interest or charges in excess of the amount which would be charged to the
Partnership on a nonrecourse basis by unrelated banks on comparable loans
for the same purpose; and
(e) To carry on any other activities necessary to, with or
incidental to any of the foregoing.
7.2 PARTNERS' MEETINGS. The System Manager shall hold at least five
meetings each year with the Partners (one meeting each quarter and one
annual meeting on a mutually agreeable date each year) in order to discuss
the business and affairs of the Partnership and to vote on any matters
requiring a vote of the Partners. GRT shall have the right to send five
representatives to each meeting. The Partners' Meetings will be held in
Arizona at such location as the System Manager deems appropriate. The
System Manager shall provide the Partners with at least thirty (30) days'
prior written notice of the time and place of each quarterly meeting. Each
representative of GRT attending a Partners' meeting shall be entitled to be
reimbursed for such representative's costs and expenses for attending such
meeting in an amount up to $100.
7.3 INFORMATION AND OTHER RIGHTS OF THE PARTNERS. Each Partner shall
have the right to:
(a) At its cost inspect and copy, upon ten (10) business days'
notice to the Partnership, any of the Partnership books of record,
accounting records, financial statements or other records or reports at the
place or places such records are kept;
(b) Whenever circumstances render it just and reasonable, have a
formal account of Partnership affairs;
(c) Audit, at its own expense and once every calendar year, the
Partnership books of record, accounting records and financial statements of
the Partnership;
(d) Petition the court for dissolution and winding up of the
Partnership when permitted under the Act; and
(e) Receive the financial reports described in Section 8.4
below.
7.4 ACTIONS REQUIRING UNANIMOUS VOTE OF PARTNERS. The Partnership
shall not, without a prior Unanimous Vote (with each Partner having the
Voting Rights as described in Section 4.8), take any of the following
actions:
(a) Sell, pledge or otherwise dispose of all, or substantially
all, of the assets of the Partnership;
(b) Remove a System Manager other than for cause;
(c) Implement a capital expenditure budget for each of the
Partnership's fiscal years;
(d) Engage in any other business besides the provision of
Cellular Service to the CGSA and other acts as may be necessary or
advisable in connection therewith or reasonably related thereto; or
(e) Merge, dissolve, terminate or liquidate the Partnership.
7.5 OWNERSHIP OR CONDUCT OF OTHER BUSINESSES. Subject to the
provisions of Section 3.3, the Partners may engage in or possess an
interest in other business ventures of every kind and description. Neither
the Partnership nor any Partner shall have any rights by virtue of this
Partnership Agreement in such independent business ventures or to the
income or profits therefrom.
ARTICLE VIII
OBLIGATIONS OF SYSTEM MANAGER
8.1 DUTIES. In connection with the Partnership's efforts to
establish, operate and maintain Cellular Service within the RSA, the System
Manager shall provide day-to-day management and administrative services to
the Partnership, and may execute all contracts, agreements and instruments
as the System Manager reasonably deems necessary or desirable to carry on
the purpose of the Partnership. The System Manager shall at all times act
in the best interest of the Partnership. Without intending to limit the
generality of the foregoing and in furtherance of the services to be
rendered and under the supervision of the Partners, the System Manager
shall, at the Partnership's cost, have the power to:
(a) Provide management and accounting services to the
Partnership consisting of, but not limited to, maintaining books and
records, opening bank accounts, preparing accounting reports (in accordance
with generally accepted accounting principles, as varied by appropriate
regulatory authorities) and other records or reports necessary to meet
regulatory and legal filings, as the System Manager may deem necessary or
appropriate;
(b) Make any and all tax elections, including, but not limited
to, the method of accounting to be elected for tax purposes of the
Partnership and whether or not to make an election pursuant to Section 754
of the Internal Revenue Code to adjust for Federal income tax purposes the
basis of Partnership property upon the transfer of a Partner's Partnership
Interest, or the distribution of Partnership property;
(c) Incur obligations or make payments on behalf of the
Partnership in its own name or in the name of the Partnership;
(d) Approve all design and construction of the Partnership's
cellular system and prepare a capital expenditure budget each year to be
submitted for the Partners' approval in accordance with Section 7.4(c)
above;
(e) From time to time increase the coverage area of Cellular
Service and apply for regulatory approval to expand the geographic area of
the CGSA;
(f) Maintain such insurance coverage for public liability, fire
and casualty, and any and all other insurance necessary or appropriate to
the business of the Partnership, in such amounts and of such types as the
System Manager shall determine from time to time;
(g) Retain services of any kind or nature in connection with the
Partnership business, and pay therefor such remuneration as the System
Manager may deem reasonable and proper;
(h) Hire employees in connection with the Partnership business
and to pay therefor such remuneration as the System Manager may deem
reasonable and proper;
(i) Negotiate and conclude agreements on behalf of the
Partnership with respect to any of the rights, powers and authority
conferred upon the System Manager;
(j) Purchase, lease, rent or otherwise, acquire or obtain the
use of machinery, equipment, tools, materials and all other kinds and types
of personal property that may in any way be deemed necessary, convenient or
advisable in connection with carrying on the business of the Partnership;
(k) Establish reserves for payment of debts, working capital,
contingencies, repairs, improvements, maintenance and replacements, and
withdrawals of capital, if any, and as otherwise provided in Section 6.2;
and
(l) Any other action requested by the Partners in accordance
with the terms of this Partnership Agreement.
8.2 FILINGS. The System Manager, on behalf of the Partnership, shall
file all certificates, notices, statements or other instruments required by
law for the formation, operation and termination of the Partnership and its
business in all appropriate jurisdictions and shall prepare and file all
necessary Partnership tax returns. The System Manager shall advise the
Partners of any elections under applicable tax laws that may affect
Partnership Income or Losses.
8.3 MAINTENANCE OF ACCOUNTS. The System Manager shall maintain or
cause to be maintained, in accordance with the provisions of this
Partnership Agreement, Capital Accounts on the books and records of the
Partnership with respect to each Partner.
8.4 FINANCIAL REPORTS. The System Manager shall furnish or cause to
be furnished to the Partners annual, audited Partnership financial
statements examined by a recognized firm of independent certified public
accountants and quarterly unaudited financial statements will be furnished
to the Partners within sixty (60) business days after the close of each
quarter and be certified by an officer of the System Manager. Year-end
audited financial statements will be made available by the System Manager
to the Partners within one hundred (100) business days after the close of
the fiscal year, with unaudited financials for year-end provided on an
interim basis within sixty (60) business days after the close of the fiscal
year.
8.5 PERFORMANCE OF PARTNERSHIP OBLIGATIONS. The System Manager,
pursuant to and in accordance with any and all authority granted to it by
the Partners and under this Partnership Agreement, shall use its best
efforts to cause the Partnership to observe and perform each and every
obligation under all agreements and undertakings made by the Partnership or
imposed on the Partnership by law or regulatory authority.
ARTICLE IX
BANKING, ACCOUNTING, BOOKS AND RECORDS
9.1 BANKING. All funds of the Partnership shall be deposited in the
bank account or accounts as shall be established and designated by the
System Manager. Withdrawals from any such bank account or accounts shall
be made upon such signatures as the System Manager may designate.
9.2 ACCOUNTING METHOD; BOOKS AND RECORDS. The System Manager shall
keep or cause to be kept full and accurate books and records of the
transactions of the Partnership in proper books of account in accordance
with generally accepted accounting principles, as varied by appropriate
regulatory authorities. Such books and records shall be maintained or
available on notice at the principal place of business of the System
Manager, or such other place designated by the System Manager, and be made
available for reasonable inspection, examination and copying by the
Partners or their respective duly authorized agents or representatives upon
ten (10) business days' notice to the System Manager.
9.3 FISCAL YEAR; PARTNERSHIP TAX RETURNS. The fiscal year of the
Partnership shall begin on the 1st day of January in each year and end on
the 31st day of December in each year. The System Manager shall cause to
be filed the Federal income tax Partnership return and all other tax
returns required to be filed for the Partnership for all applicable tax
years, and shall furnish as promptly as practicable, but in no event later
than one hundred thirty (130) business days after the close of the fiscal
year, a statement of the Partners' allocated share of income, gains,
losses, deductions and credits for such taxable year.
ARTICLE X
TRANSFER OF PARTNER'S INTEREST
10.1 ASSIGNMENT. A Partner may transfer or assign its Partnership
Interest, and all rights and obligations' therein, to an Affiliate or
Affiliates. For purposes of this Article X, an assignment shall be deemed
to have occurred if in a single transaction or in a series of transactions
any interest in a Partner, except to an Affiliate of such Partner (whether
stock, partnership interest or otherwise) is transferred, diluted, reduced
or otherwise affected. An assignment shall not be deemed to have occurred
(i) due to the transfer of any or all of the outstanding capital stock of
any corporate Partner or any Affiliate through any recognized national
securities exchange or in connection with an initial public offering of its
capital stock, or (ii) due to the mortgage of all or any part of a
Partnership Interest to a bank, trust company or other institutional lender
licensed pursuant to any state or Federal banking laws. Any such transfer
or assignment shall be subject to any required regulatory approval.
10.2 WITHDRAWAL. The withdrawal of a Partner will not cause the
dissolution and termination of the Partnership. A Partner may not withdraw
until it has given the other Partners ninety (90) days' written notice of
its intention to withdraw. In such event, the remaining Partners, or any
of them by agreement of the remaining Partners, shall have the right for a
period of thirty (30) days to purchase all, but not less than all, of the
withdrawing Partner's Partnership Interest proportionately based upon the
relative Partnership Interests of the Partners interested in purchasing, or
as otherwise agreed by the remaining Partners in writing, and the total
purchase price for the withdrawing Partner's Partnership Interest shall
equal such Partner's Capital Account on the date the ninety (90) day notice
is given. If the remaining Partners, or any of them, do not elect to
purchase all of the withdrawing Partner's Partnership Interest, and if at
any time during the remainder of such ninety (90) day period any other
Partner or Partners designates a substitute Partner who will agree both to
purchase the withdrawing Partner's Partnership Interest, on terms
acceptable to the withdrawing Partner and all other Partners, and to
continue the business of the Partnership, subject to any required
regulatory approval, the withdrawing Partner agrees to transfer or assign
its Partnership Interest to the designated substitute Partner. The
withdrawing Partner shall not unreasonably withhold its acceptance of terms
for purchase of its Partnership Interest proposed by the substitute
Partner.
10.3 RIGHT OF FIRST REFUSAL. Except as provided in Section 10.2,
before any Partner sells, transfers or assigns any part of its Partnership
Interest to a non-Affiliate of such Partner, it shall offer, by giving
written notice to the other Partners, that Partnership Interest to all of
the other Partners for the price at which and the terms under which such
non-Affiliate has offered, pursuant to a bona fide offer in writing (the
"Offer"), to pay for such Partnership Interest. Each Partner shall
initially be entitled to purchase that fraction of the offering Partner's
Partnership Interest equal to its Partnership Interest divided by the
Partnership Interests of all non-selling Partners. If any Partner(s)
declines to exercise its right of purchase hereunder, the other Partners
electing to exercise that right shall be entitled to purchase that portion
of the Partnership Interest intended to be sold that has been declined by
the other Partner(s) in amounts allocably determined based upon the ratio
that the purchasing non-selling Partners' relative Partnership Interests
bears to the Partnership Interests of all purchasing non-selling Partners.
The purchase price payable by each purchasing nonselling Partner shall be
allocably determined based upon the price set forth in the Offer and the
percentage that the portion of the Partnership Interest purchased by a
Partner bears to the entire Partnership Interest being sold. Each non-
selling Partner shall notify the System Manager and the selling Partner, in
writing, of its intention to exercise or not to exercise its purchase
rights hereunder within thirty (30) calendar days following receipt of the
offer of sale. The System Manager shall promptly notify each Partner of
the elections by the other Partner(s). Subsequent written notifications,
if necessary, shall be required within ten (10) calendar days after receipt
by the Partners which have not previously declined to exercise their rights
of purchase, of their intentions with respect to that portion of the
selling Partner's Partnership Interest still subject to a right of
purchase. If the purchase rights are not timely exercised they shall
expire. No portion of a Partnership Interest offered under this
Section 10.3 shall be permitted to be purchased by any Partner pursuant to
this Section 10.3 unless the entire Partnership Interest offered is
purchased by one or more Partners.
10.4 RIGHTS OF NEW PARTNER. Every person receiving any portion of a
Partnership Interest by transfer or assignment shall thereafter possess all
of the rights, duties and obligations of a Partner specified herein;
provided, however, that the transferee or assignee shall be entitled to
Voting Rights as described in Section 4.8.
10.5 NO ASSIGNMENTS OR TRANSFERS ALLOWED UNDER CERTAIN CIRCUMSTANCES.
Notwith-standing anything contained herein to the contrary, a Partner shall
not assign or transfer its Partnership Interest, or any portion thereof, if
such assignment or transfer would result (directly or indirectly) in the
(1) termination of the Partnership for tax purposes, except with approval
of a Majority Vote of the Partners; (2) violation of any applicable federal
or state securities laws or any rules or regulations thereunder; or
(3) violation of any applicable FCC rules or regulations.
10.6 FURTHER TRANSFERS. An assignee or transferee of a Partnership
Interest who desires to make a further assignment or transfer of its
Partnership Interest shall be subject to the provisions of this Article X
to the same extent and in the same manner as an original Partner desiring
to assign or transfer its Partnership Interest.
ARTICLE XI
DISSOLUTION AND TERMINATION OF PARTNERSHIP
11.1 DISSOLUTION. The Partnership shall be dissolved and terminated
if:
(a) The FCC Cellular Radio Decisions are not continued in
substantially the same form and such change materially and adversely
impacts the Partnership's ability to conduct its business and all available
administrative and judicial appeals regarding such Cellular Radio Decisions
have been finally exhausted;
(b) The Partners, upon a Unanimous Vote, agree to dissolve and
terminate the Partnership and receive any approvals required by the FCC or
any other regulatory authority for such dissolution and termination;
(c) The expiration of the term of the Partnership;
(d) The acquisition by a Partner of all of the Partnership
Interests of the other Partners; or
(e) The sale of all the property of the Partnership.
11.2 CESSATION OF EXISTENCE OF A PARTNER. The cessation of existence
of a Partner shall not dissolve the Partnership. In such event, such
Partner's Partnership Interest shall be distributed to the successors in
interest to such Partner; provided, that in the event the successors in
interest collectively are not comprised of persons or entities that owned
more than fifty percent (50%) of the voting power or beneficial interests
in income and capital of such Partner, the transfer of such Partner's
Partnership Interest shall be subject to the provisions of Section 10.3.
The successors in interest shall be required to execute such documents as
may be necessary or required in the opinion of legal counsel for the
Partnership to evidence their ownership of such Partner's Partnership
Interest. The successors in interest to such Partner shall have the same
proportionate rights and obligations under this Partnership Agreement as
those possessed by such Partner. The transfer of a Partnership Interest
upon the cessation of existence of any successor in interest to a Partner
shall be subject to the provisions of this Section 11.2.
11.3 DISTRIBUTION UPON DISSOLUTION. Upon dissolution of the
Partnership as provided in Section 11.1 above, the Partners shall proceed,
subject to the provisions herein, to liquidate the Partnership and apply
the proceeds of such liquidation, or to distribute Partnership assets, in
the following order of priority:
(a) All of the Partnership's debts and liabilities to persons
other than Partners, including expenses of liquidation, shall be paid and
discharged, but excluding secured creditors whose obligations will be
assumed or otherwise transferred on the liquidation of Partnership assets,
and any reserve deemed necessary by the System Manager for the payment of
such debts shall be set aside. Such reserve may be paid over by the
Partnership to any attorney at law, or other acceptable party, as escrow
agent to be held for disbursement in payment of any of the aforementioned
liabilities and, at the expiration of such period as shall be deemed
advisable by the System Manager, for distribution of the balance, in manner
hereinafter provided in this paragraph;
(b) All of the Partnership's debts and liabilities to Partners
shall be paid and discharged; and
(c) The remaining assets shall be distributed to the Partners
first for the return of their Capital Accounts in proportion to the
Partners' respective Capital Accounts at the time of such dissolution, with
any remaining Partnership assets being distributed in proportion to the
Partners' respective Partnership Interests on the date of dissolution.
11.4 DISTRIBUTIONS IN CASH OR IN KIND. Upon dissolution, the
Partnership may in its discretion (a) liquidate all or a portion of the
Partnership assets and apply the proceeds of such liquidation in the
priorities set forth in Section 11.3 or (b) hire independent recognized
appraisers to appraise the value of Partnership assets not sold or
otherwise disposed of (the cost of such appraisal to be considered a debt
of the Partnership), allocate any unrealized gain or loss to the Partners'
Capital Accounts as though the properties in question had been sold on the
date of distribution and, after giving effect to any such adjustment,
distribute said assets in accordance with the priorities as set forth in
Section 11.3. The Partnership may determine whether undivided portions of
assets distributed in kind will be distributed pro rata to Partners in
accordance with their respective Partnership Interests at the time of
dissolution or assets may be distributed otherwise in accordance with their
respective Partnership Interests at the time of dissolution. In the case
of any distribution in kind of Partnership assets to a Partner under this
Section 11.4, the value of the asset determined by appraisal as provided
above shall be applied against the Partner's Capital Account.
11.5 TIME FOR LIQUIDATION. A reasonable amount of time shall be
allowed for the orderly liquidation of the assets of the Partnership and
the discharge of liabilities to creditors so as to enable the Partnership
to minimize any losses which otherwise might be incurred.
11.6. TERMINATION. Upon compliance with the foregoing distribution
plan, the Partnership shall cease to exist and the System Manager shall
cause the certificate of partnership to be canceled and shall take such
other action as may be necessary to terminate the Partnership.
11.7 PARTNERS NOT LIABLE FOR RETURN OF DISTRIBUTION. The Partners
shall not be liable for any distribution required pursuant to
Sections 11.3(b) and (c), and such distributions shall be made solely from
available Partnership assets, if any.
ARTICLE XII
EXCULPATION AND INDEMNIFICATION
12.1 EXCULPATION OF PARTNERS AND SYSTEM MANAGER. The System Manager,
along with all Partners, will not be liable for any loss to the Partnership
or the Partners by reason of any act or failure to act in the course of
their supervision or management of Partnership operations unless such
Partner or System Manager was guilty of willful misconduct or gross
negligence.
12.2 INDEMNIFICATION OF PARTNERS AND SYSTEM MANAGER. The Partnership
shall indemnify the Partners and System Manager against any loss or damage
incurred by any of them (including legal expenses) by reason of any acts
performed or not performed by such Partner or System Manager for and on
behalf of the Partnership, unless such Partner or System Manager was guilty
of willful misconduct or gross negligence. The Partners and System Manager
shall indemnify the Partnership against any damages incurred by the
Partnership by reason of the willful misconduct or gross negligence of such
Partner or System Manager.
12.3 INDEMNIFICATION TO PARTNERSHIP AND PARTNERS. Each Partner, its
receiver or its trustee, shall indemnify the Partnership and each other
Partner against and save them harmless from any claim, demand, judgment or
liability, and against and from any loss, cost or expense (including, but
not limited to attorneys' fees and court costs, which may be paid by a
party as incurred), which may be imposed on them by reason of any action or
inaction taken by it contrary to the express provisions of this Partnership
Agreement or inconsistent with applicable law.
ARTICLE XIII
AMENDMENTS
Except for amendments made in accordance with this Partnership
Agreement in connection with assignment of Partnership Interests by
Partners to their Affiliates and to reflect additional or substitute
Partners or changes in Capital Contributions, this Partnership Agreement
may not be amended except upon a Unanimous Vote (with each Partner having
the Voting Rights as described in Section 4.8).
ARTICLE XIV
TECHNOLOGY AND INFORMATION
14.1 TECHNOLOGY LICENSE. The System Manager shall, on behalf of the
Partnership, obtain the right to use hardware and software technology
associated with Cellular service. The System Manager is hereby authorized,
on behalf of the Partnership, to engage in negotiations and to enter into
contracts for licenses to use cellular hardware, software or related
processes. In general, such contracts shall be merely right to use
contracts and will not vest any title in any Partner to this Partnership
Agreement.
14.2 PROPRIETARY INFORMATION. All information, including but not
limited to, specifications, microfilm, photocopies, keypunch cards,
magnetic tapes, drawings, sketches, models, samples, tools, technical
information, data, employee records, maps, customer information, financial
reports and market data marked or identified in writing as proprietary (all
hereinafter designated as "Proprietary Information") furnished to or
obtained by a Partner from any other Partner, whether written or oral or in
other form, shall remain the disclosing Partner's property. All copies of
such information, whether written, graphic or other tangible form, shall be
returned to the disclosing Partner upon the disclosing Partner's request,
except that one (1) copy may be retained for archival purposes. Unless
otherwise agreed, no obligation hereunder shall extend beyond five (5)
years from the date of receipt of such information, and the obligation does
not apply to such Proprietary Information as was previously known to the
receiving Partner free of any obligation to keep it confidential or that
has been or in subsequently made public by the disclosing Partner or a
third party. Such Proprietary Information shall be kept confidential by
the receiving Partner and shall be used only for performing the covenants
contained in this Partnership Agreement and may be used for such other
purposes only upon such terms as may be agreed upon between the disclosing
Partner and receiving Partner in writing.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 WARRANTIES. Each Partner warrants as follows:
(a) It has the legal capacity to enter into and execute this
Partnership Agreement, and
(b) This Partnership Agreement does not breach any of its
existing agreements with other parties.
15.2 TABLE OF CONTENTS AND HEADINGS. The table of contents and the
headings of the Sections of this Partnership Agreement are inserted for
convenience only and shall not be deemed to constitute a part hereof.
15.3 SUCCESSORS AND ASSIGNS. This Partnership Agreement shall inure
to the benefit of and be binding upon the Partners and their respective
successors and assigns, except that nothing contained in this Section shall
be construed to permit any attempted assignment or other transfer which
would be unauthorized by or void pursuant to any other provision of this
Partnership Agreement.
15.4 SEVERABILITY. Every provision of this Partnership Agreement is
intended to be severable. If any term or provision hereof is illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of the Partnership Agreement;
provided, however, that the general intent of this Partnership Agreement
shall not be voided thereby.
15.5 NON-WAIVER. No provision of this Partnership Agreement shall be
deemed to have been waived unless such waiver is contained in a written
notice given to the Partner claiming such waiver, and no such waiver shall
be deemed to be a waiver of any other or further obligation or liability of
the Partner or Partners in whose favor the waiver was given.
15.6 CERTIFICATES OF PARTNERSHIP INTEREST. All interests in the
Partnership shall be represented by partnership interest certificates
issued by the Partnership. Such certificates shall be signed by the System
Manager and by the Chairman of the Board, the President or a Vice President
of each Partner.
15.7 ADOPTION OF LAW. The Partnership and the Partners expressly
agree that all Partnership Interests are securities governed by Title 47,
Chapter 8 of the Arizona Revised Statutes. Solely for the purposes of this
Partnership Agreement, each of the Partners, and the Gila River Indian
Community as the jurisdiction of domicile of GRT, agree that the
interpretation and enforcement of this Partnership Agreement shall be
governed by and construed in accordance with the laws of the State of
Arizona (without giving effect to conflict of laws principles), the
constitutional law of the United States prohibiting impairment of contracts
by a governmental body and, to the extent required, by the general laws of
the United States, and the parties hereby adopt such laws. Particularly,
but without limitation, the parties choose and adopt the Uniform Commercial
Code in effect in Arizona as to personal property interests and security,
the laws of Arizona as they pertain to filing and recording in order to
perfect and give constructive notice of security interests and encumbrances
upon real and personal property, and the laws of Arizona as to the
enforcement of encumbrances and security interests. Execution by the Gila
River Indian Community on the signature page of this Agreement shall be
evidence of its consent to be bound by the terms of this Section.
15.8 NOTICE. Any written notice, offer, demand or communication
required or permitted to be given by any provision of this Partnership
Agreement shall be deemed to have been sufficiently given for all purposes
if delivered personally to the party to whom the game is directed or if
sent using; United States mail, postage prepaid, registered or certified
mail; a nationally removed recognized private express courier service
providing proof of receipt and delivery and "same day" or "next day"
delivery; or facsimile, addressed as follows (or to such other address as a
Partner may specify in a written notice to all other Partners given in
accordance with this Section 15.8):
Partner: GRT
Box 5015, 7065 W. Allison Road
Chandler, Arizona 85226-5135
Attn: Mr. Robert N. Porter
Telephone: 520-796-3333
Facsimile: 520-796-7534
Partner: Dobson Cellular of Arizona, Inc.
c/o Dobson Communications Corporation
13439 North Broadway Extension
Oklahoma City, Oklahoma 73114
Attn: Mr. Everett R. Dobson
Telephone: (405) 391-8500
Facsimile: (405) 391-8515
Any such notice that is sent by registered or certified mail shall be
deemed to be given three (3) days after the date on which the same is
postmarked. Any such notice that is sent by express courier shall be
deemed to be given one (1) day after the date on which the same is
deposited with the express courier. Any such notice that is sent by
facsimile shall be deemed to be given the same day if transmitted before
5:00 p.m. [M.S.T.], or if transmitted after 5:00 p.m. [M.S.T.], then the
next business day.
15.9 AMENDED CERTIFICATE OF PARTNERSHIP. The Partners hereby agree to
execute an amended certificate of partnership whenever the execution of an
amended certificate of partnership in requested by the System Manager, and
they agree to execute such other instruments and documents, and to perform
such other acts as may be required to comply with the Act for the valid
formation and existence of the Partnership as a partnership thereunder
whenever the execution or performance thereof shall be requested by the
System Manager, all within ten (10) days after the request by the System
Manager. In the event that any of the provisions of any amended
certificate of partnership shall be inconsistent with any of the provisions
of this Partnership Agreement (if they are different documents), the
provisions of this Partnership Agreement shall govern and control as among
the parties.
15.10 FURTHER ASSISTANCE. The Partners will execute and deliver such
further instruments and do such further acts and things as may be required
to carry out the intent and purposes of this Partnership Agreement.
15.11 ATTORNEYS' FEES. In the event any party to this Partnership
Agreement shall be required to initiate legal proceedings or arbitration to
enforce performance of any term or condition of this Partnership Agreement,
including, but not limited to, the payment of monies or the enjoining of
any action prohibited hereunder, the prevailing party shall be entitled to
recover such sums, in addition to any other damages or compensation
received, as will reimburse the prevailing party for reasonable attorneys'
fees, court costs and arbitration fees incurred on account hereof,
notwithstanding the nature of the claim or cause of action asserted by the
prevailing party.
15.12 REMEDIES. The rights, options and remedies of the Partnership
and Partners hereunder shall not be mutually exclusive, and the exercise by
the Partnership or any Partner of any right, option or remedy to which it
is entitled shall not preclude the exercise of any other right or option it
may have. Similarly, the exercise by the Partnership or a Partner of any
right, option or remedy shall not be construed to limit the Partnership's
or Partner's rights, options and remedies in the event of a subsequent or
similar situation.
15.13 ARBITRATION. Any differences, claims or matters in dispute
arising between the Partners out of the interpretation, performance, breach
or enforcement of this Partnership Agreement or connected herewith, and all
other matters relating to the provision of Cellular Service hereunder, that
cannot otherwise be resolved by the Partners shall be submitted by them to
binding arbitration in accordance with the then effective commercial
arbitration rules of the American Arbitration Association by an arbitrator
mutually agreed upon by the Partners, or in the event of failure to agree
upon a single arbitrator, one arbitrator shall be selected by each Partner
and the arbitrators selected by the Partners shall appoint an additional
arbitrator. The decision, award, determination, order or relief, whether
in law or in equity, of the majority of the arbitrators on such matters
shall be final and conclusive and a judgment on such decision may be
entered in any federal or Arizona court of competent jurisdiction. Such
arbitrators shall have no power to modify or amend any of the provisions of
this Partnership Agreement and their jurisdiction is limited accordingly.
Any arbitration under this Section 15.12 will occur in Maricopa County,
Arizona or such other place as the parties may agree. Any Partner
requesting arbitration hereunder shall give notice to the other Partners
ten (10) days prior to requesting arbitration hereunder.
15.14 COUNTERPARTS. This Partnership Agreement may be executed in
counterparts, each of which shall be considered an original.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Partnership
Agreement to be duly executed by their duly authorized representatives.
ATTEST: DOBSON CELLULAR OF ARIZONA, INC.
By: N/A By: EVERETT DOBSON
Everett Dobson
President
ATTEST: GILA RIVER TELECOMMUNICATIONS
SUBSIDIARY, INC.
By: N/A By: DARRELL GERLAUGH
Title:
ACCEPTED AND AGREED:
The Gila River Indian Community hereby acknowledges and agrees to be bound
by the terms of Article 15.7 of this Partnership Agreement.
By: MARY V. THOMAS
Mary V. Thomas
Its: Governor
SIGNATURE PAGE TO THE SECOND AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF
THE GILA RIVER CELLULAR GENERAL PARTNERSHIP
<PAGE>
APPENDIX A
Cellular Geographic Service Area
(See Attached)
<PAGE>
ANNEX B
Partner's Capital Account
Dobson Cellular of Arizona, Inc. [$39,825,000]
Gila River Telecommunications Subsidiary, Inc. [$13,275,000]
FOR IMMEDIATE RELEASE
Contact: Cynthia Dutton, 405.391.8500
DOBSON COMMUNICATIONS AND GILA RIVER INDIAN COMMUNITY ANNOUNCE ARIZONA
ACQUISITION
OKLAHOMA CITY, OKLA -October 6, 1997 -- Dobson Communications
Corporation of Oklahoma and Gila River Indian Community (GRIC) today
announced they have closed a transaction to acquire the Arizona 5 RSA
cellular market from U. S. WEST, U.S. Cellular and the Tohono O'Odome
Indian Nation. A partnership was formed between Dobson and GRIC to
purchase the assets and operations of the Arizona 5 wireline cellular
operation. The Arizona 5 market has a population base of 188,088.
The new firm - which operates under the AirTouch cellular brand name
- - is owned jointly by Dobson and Gila River Telecommunications
Subsidiary, Inc. (GRTSI). Dobson holds a 75 percent interest in the
company and serves as operating manager while GRTSI owns the remaining 25
percent.
Cellular telephone customers in Arizona's Pinal and Gila counties
will see upgrades in their cellular service with the purchase of the
Arizona 5 cellular operations.
"We're committed to bringing state-of-the-art telecommunications
service to the residents of Pinal and Gila counties," said Everett
Dobson, president of Dobson Communications Corp. "Soon after closing, we
will add digital service along I-10 between Phoenix and Tucson -
including the town of Casa Grande."
-- more --
Dobson Communications Corp. manages a cellular population base of
1.7 million with more than 90,000 customers, two independent telephone
companies with 12,000 access lines and 450 miles of fiber optics. The
Oklahoma-based company currently employs more than 375 people.
Gila River Telecommunications is owned by Gila River Indian
Community and is an independent telephone company serving over 2,600
customers in Arizona.
